S. Hrg. 109-500
WARTIME EXECUTIVE POWER AND THE NATIONAL SECURITY AGENCY'S SURVEILLANCE
AUTHORITY
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
FEBRUARY 6, FEBRUARY 28, AND MARCH 28, 2006
__________
Serial No. J-109-59
__________
Printed for the use of the Committee on the Judiciary
_____
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
FEBRUARY 6, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 233
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 7
prepared statement........................................... 338
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESS
Gonzales, Alberto R., Attorney General of the United States,
Department of Justice, Washington, D.C......................... 10
QUESTIONS AND ANSWERS
Responses of Alberto R. Gonzales to questions submitted by
Senator Specter................................................ 130
Responses of Alberto R. Gonzales to additional information
requested by Senators (February 28, 2006)...................... 141
Responses of Alberto R. Gonzales to questions from all Democratic
Senators (March 24, 2006)...................................... 147
Responses of Alberto R. Gonzales to questions submitted by
Senators Feingold, Schumer, Biden, Feinstein, Durbin, and Leahy
(July 17, 2006)................................................ 162
SUBMISSIONS FOR THE RECORD
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas,
February 6, 2006, vote-by-proxy form........................... 226
Buchen, Philip W., former Counsel to the President, March 15,
1976, memorandum and attachment................................ 227
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma,
February 6, 2006, vote-by-proxy form........................... 232
Cunningham, H. Bryan, Attorney at Law, Morgan and Cunningham LLC,
Denver, Colorado, letter....................................... 235
Fein, Bruce, former Associate Deputy Attorney General, Bruce Fein
& Associates, Washington, D.C., letter......................... 259
Former government officials with experience in national security
matters, joint statement....................................... 262
Gonzales, Alberto R., Attorney General of the United States,
Department of Justice, Washington, D.C., prepared statement and
attachments.................................................... 264
Gorelick, Jamie S., former Deputy Attorney General, Department of
Justice, Washington, D.C., letter.............................. 320
Halperin, Morton H., Director, U.S. Advocacy, Open Society
Institute and Senior Fellow, Center for American Progress and
Jerry Berman, President, Center for Democrary & Technology,
joint statement................................................ 321
Harmon, John M., former Assistant Attorney General, Office of
Legal Counsel, Department of Justice and Larry L. Simms, former
Deputy Assistant Attorney General, Office of Legal Counsel,
Department of Justice, joint statement......................... 333
Newsweek, February 6, 2006, article.............................. 342
New York Times:
December 16, 2005, article................................... 349
December 24, 2005, article................................... 357
January 17, 2006, article.................................... 360
January 29, 2006, article.................................... 365
Roll Call, January 19, 2006, article............................. 368
Scholars of constitutional law and former government officials:
January 9, 2006, joint letter................................ 371
February 2, 2006, joint letter............................... 382
September 11th Advocates, joint statement........................ 394
Smith, Jeffrey H., former General Counsel of the Central
Intelligence Agency and a former General Counsel of the Senate
Armed Services Committee, January 3, 2006, memorandum.......... 396
Washington Post:
December 20, 2005, article................................... 404
December 23, 2005, article................................... 406
February 5, 2006, article.................................... 408
Washington Times:
January 4, 2006, article..................................... 415
January 24, 2006, article.................................... 417
----------
FEBRUARY 28, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 421
prepared statement........................................... 640
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 419
WITNESSES
Fein, Bruce, Fein and Fein, Washington, D.C...................... 431
Gormley, Ken, Professor of Constitutional Law, Duquesne
University School of Law, Pittsburgh, Pennsylvania............. 435
Kmiec, Douglas W., Professor of Constitutional Law, Pepperdine
University School of Law, Malibu, California................... 429
Koh, Harold Hongju, Dean, Yale Law School, New Haven, Connecticut 425
Levy, Robert A., Senior Fellow in Constitutional Studies, Cato
Institute, Washington, D.C..................................... 427
Turner, Robert F., Associate Director and Co-Founder, Center for
National Security Law, University of Virginia School of Law,
Charlottesville, Virginia...................................... 433
Woolsey, R. James, Vice President, Global Strategic Security
Division, Booz Allen Hamilton, McLean, Virginia................ 424
QUESTIONS AND ANSWERS
Responses of Bruce Fein to questions submitted by Senators Leahy
and Kennedy.................................................... 467
Responses of Ken Gormley to questions submitted by Senators
Kennedy and Schumer............................................ 470
Responses of Douglas Kmiec to questions submitted by Senator
Schumer........................................................ 478
Responses of Harold Koh to questions submitted by Senator Schumer 480
Responses of Robert Levy to questions submitted by Senators
Schumer and Kennedy............................................ 484
Responses of Robert Turner to questions submitted by Senators
Kennedy and Schumer............................................ 490
Responses of R. James Woolsey to questions submitted by Senators
Kennedy and Schumer............................................ 513
SUBMISSIONS FOR THE RECORD
American Bar Association, Denise A. Cardman, Senior Legislative
Counsel, Washington, D.C., letter, resolution, and report...... 517
Constitution Project, Washington, D.C., joint statement and
attachment..................................................... 539
Fein, Bruce, Fein and Fein, Washington, D.C., prepared statement
and attachment................................................. 544
Franklin, Jonathan S., Partner, Hogan & Hartson, LLP, Washington,
D.C., letter and memorandum.................................... 564
Gormley, Ken, Professor of Constitutional Law, Duquesne
University School of Law, Pittsburgh, Pennsylvania, prepared
statement...................................................... 566
Kmiec, Douglas W., Professor of Constitutional Law, Pepperdine
University School of Law, Malibu, California, prepared
statement...................................................... 594
Koh, Harold Hongju, Dean, Yale Law School, New Haven,
Connecticut, prepared statement................................ 621
Levy, Robert A., Senior Fellow in Constitutional Studies, Cato
Institute, Washington, D.C., prepared statement................ 643
New York Times, February 12, 2006, editorial..................... 657
Turner, Robert F., Associate Director and Co-Founder, Center for
National Security Law, University of Virginia School of Law,
Charlottesville, Virginia, prepared statement.................. 659
Washington, Post, February 16, 2006, Washington, D.C., editorial. 705
Washington Times, Washington, D.C.:
December 20, 2005, article................................... 707
December 28, 2005, article................................... 711
January 4, 2006, article..................................... 715
January 24, 2006, article.................................... 719
January 31, 2006, article.................................... 723
February 6, 2006, article.................................... 727
February 14, 2006, article................................... 731
Woolsey, R. James, Vice President, Global Strategic Security
Division, Booz Allen Hamilton, McLean, Virginia, prepared
statement...................................................... 735
----------
TUESDAY, MARCH 28, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 829
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 748
prepared statement........................................... 870
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 747
WITNESSES
Baker, Hon. Harold A., Judge, U.S. District Court for the Central
District of Illinois, Urbana, Illinois......................... 759
Brotman, Hon. Stanley S., Judge, U.S. District Court for the
District of New Jersey, Camden, New Jersey..................... 760
Halperin, Morton J., Executive Director, Open Society Policy
Center, Washington, D.C........................................ 785
Keenan, Hon. John F., Judge, U.S. District Court for the Southern
District of New York, New York, New York....................... 762
Kornblum, Hon. Allan, Magistrate Judge, U.S. District Court for
the Northern Dirstrict of Florida, Gainesville, Florida........ 752
Kris, David S., Senior Vice President, Time Warner, Inc., New
York, New York................................................. 789
Stafford, Hon. William, Jr., Judge, U.S. District Court for the
Northern District of Florida, Pensacola, Florida............... 764
QUESTIONS AND ANSWERS
Responses of Judge Baker to questions submitted by Senator
Feingold....................................................... 797
Responses of Judge Brotman to questions submitted by Senator
Feingold....................................................... 799
Responses of Mort Halperin to a question submitted by Senator
Leahy.......................................................... 801
Responses of Judge Keenan to questions submitted by Senator
Feingold....................................................... 802
Responses of David Kris to questions submitted by Senator Leahy.. 804
Responses of Judge Stafford to questions submitted by Senator
Feingold....................................................... 811
SUBMISSIONS FOR THE RECORD
Halperin, Morton J., Executive Director, Open Society Policy
Center, Washington, D.C., prepared statement................... 812
Keenan, Hon. John F., Judge, U.S. District Court for the Southern
District of New York, New York, New York, prepared statement... 820
Kris, David S., Senior Vice President, Time Warner, Inc., New
York, New York, prepared statement............................. 830
National Journal, March 18, 2006, article........................ 873
New York Times, March 25, 2006, article.......................... 880
Robertson, James, Judge, U.S. District Court for the District of
Columbia, Washington, D.C., letter............................. 882
Stafford, Hon. William, Jr., Judge, U.S. District Court for the
Northern District of Florida, Pensacola, Florida, prepared
statement...................................................... 884
U.S. News & World Report, March 27, 2006, article................ 891
Washington Post:
February 9, 2006, article.................................... 895
March 9, 2006, editorial..................................... 899
WARTIME EXECUTIVE POWER AND THE NATIONAL SECURITY AGENCY'S SURVEILLANCE
AUTHORITY
----------
MONDAY, FEBRUARY 6, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
room SH-216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Leahy, Kennedy, Biden,
Kohl, Feinstein, Feingold, Schumer, and Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. It is 9:30. The Judiciary Committee will
now proceed with our hearing on the administration's program
administered by the National Security Agency on surveillance.
We welcome the Attorney General of the United States here
today, who will be testifying. We face as a Nation, as we all
know, an enormous threat from international terrorism. The
terrorists attacked this country on 9/11, and we remain in
danger of renewed terrorist attacks.
The President of the United States has the fundamental
responsibility to protect the country, but even as the Supreme
Court has said, the President does not have a blank check. And
this hearing is designed to examine the legal underpinnings of
the administration's program from the point of view of the
statutory interpretation and also from the point of view of
constitutional law.
The Foreign Intelligence Surveillance Act was passed in
1978 and has a forceful and blanket prohibition against any
electronic surveillance without a court order. That law was
signed by President Carter with a signing statement that said
it was the exclusive way for electronic surveillance. There is
also a constitutional issue as to whether the President has
inherent powers under Article II of the Constitution to
undertake a program of this sort. If the President has
constitutional authority, that trumps and supersedes the
statute. The Constitution is the fundamental law of the
country, and a statute cannot be inconsistent with a
constitutional provision.
We will be examining the administration's contention that,
notwithstanding the Foreign Intelligence Surveillance Act,
there is statutory authority for what the President has done by
virtue of the resolution of Congress authorizing the use of
force against the terrorists. I have already expressed myself
as being skeptical of that interpretation, but I believe the
administration is entitled to a full and fair opportunity to
advance their legal case on that important issue.
We will be examining with the Attorney General the
generalized rules of statutory interpretation. One of them is
that a repeal by implication is disfavored. Also, the specific
governs the generalizations. And in the Foreign Intelligence
Surveillance Act you have the specific prohibition contrasted
with the generalized authority under the resolution for the
authorization for the use of force.
I sent a letter to the Attorney General propounding some 15
questions, and I thank the Attorney General for his responses.
They will provide to a substantial extent the framework for our
discussion here today. One of the key points on my mind is the
role of the Foreign Intelligence Surveillance Court. One of the
questions which I asked of the Attorney General was the role of
the court in granting permission in advance, the role of the
court in granting permission within 72 hours after the
President exercises surveillance authority. I also asked
whether the administration might now consider having the
Foreign Intelligence Surveillance Court review this entire
issue.
The whole question of probable cause is one with very
substantial flexibility under our laws, depending upon the
circumstances of the case. The Foreign Intelligence
Surveillance Court has a great reputation for integrity, with
no leaks--candidly, unlike the Congress; candidly, unlike the
administration; candidly, unlike all of Washington, perhaps all
of the world. But when that court has secrets, they keep the
secrets, and they also are well respected in terms of their
technical competence.
One of the questions, the lead question, which I will be
asking the Attorney General is whether the administration would
consider sending this entire program to the court for their
evaluation. The scope of this hearing is to examine the law on
the subject, and the ground rules are that we will not inquire
into the factual underpinnings of what is being undertaken
here. That is for another Committee and for another day. That
is for the Intelligence Committee and that is for a closed
session.
It may be that some of the questions which we will ask the
Attorney General on legal issues may, in his mind, require a
closed session, and if they do, we will accommodate his request
in that regard.
One of the other questions which I will be directing to the
Attorney General to follow up on the letter is the practice of
making disclosures only to the so-called Gang of 8--the Speaker
and the Democrat Leader in the House, the Majority Leader and
the Democrat Leader in the Senate, and the Chairmen and Vice
Chairmen of the two Intelligence Committees--and the adequacy
of that in terms of the statute which calls for disclosure to
the committees. The committees are much broader. And if the
administration thinks that the current law is too broad, they
have the standing to ask us to change the law, and we would
certainly consider that on a showing of necessity to do so.
We have told the Attorney General we would require his
presence all day. We will have 10-minute rounds, which is
double what is the practice of this Committee, and as I have
announced in advance, we will have multiple rounds.
There has been some question about swearing in the Attorney
General, and I discussed that with the Attorney General, who
said he would be willing to be sworn. After reflecting on the
matter, I think it is unwarranted because the law provides
ample punishment for a false official statement or a false
statement to Congress. Under the provisions of 18 United States
Code 1001 and 18 United States Code Section 1505, the penalties
are equivalent to those under the perjury laws.
There has been a question raised as to legal memoranda
within the Department, and at this time and on this showing, it
is my judgment that that issue ought to be reserved to another
day. I am sure it will come up in the course of questioning.
The Attorney General will have an opportunity to amplify on the
administration's position. But there is a fairly well-settled
doctrine that internal memoranda within the Department of
Justice are not subject to disclosure because of the concern
that it would have a chilling effect. If lawyers are concerned
that what they write may later be subjected to review by
others, they will be less than candid in their positions.
This Committee has faced those issues in recent times with
requests for internal memoranda of Chief Justice Roberts. They
were not produced, and they were more relevant there than here
because of the issue of finding some ideas as to how Chief
Justice Roberts would function on the Court if confirmed. Here
we have legal issues, and lawyers on this Committee and other
lawyers are as capable as the Department of Justice in
interpreting the law.
One other issue has arisen, and that is the issue of
showing video. I think that would not be in order. The
transcripts of what the President said and the transcripts of
what you, Mr. Attorney General, said earlier in a discussion
with Senator Feingold are of record. This is not a Sunday
morning talk show, and the transcripts contain the full
statement as to legal import and legal effect, and I am sure
that those statements by the President and those statements by
you will receive considerable attention by this Committee.
That is longer than I usually talk, but this is a very big
subject.
Senator Feingold. Mr. Chairman?
Chairman Specter. This is the first of a series of
hearings, at least two more, because of the very profound and
very deep questions which we have here involving statutory
interpretation and the constitutional implications of the
President's Article II powers. And this is all in the context
of the United States being under a continuing threat from
terrorism. But the beauty of our system is the separation of
powers, the ability of the Congress to call upon the
administration for responses, the willingness of the Attorney
General to come here today, and the capability of the Supreme
Court to resolve any conflicts.
Senator Feingold. Mr. Chairman?
Chairman Specter. I would like to yield now--
Senator Feingold. Mr. Chairman?
Chairman Specter [continuing]. To the distinguished
Ranking--
Senator Feingold. Can I just ask a quick clarification?
Chairman Specter. Senator Feingold?
Senator Feingold. I heard your judgment about whether the
witness should be sworn. What would be the distinction between
this occasion and the confirmation hearing where he was sworn?
Chairman Specter. The distinction is that it is the
practice to swear nominees for Attorney General or nominees for
the Supreme Court or nominees for other Cabinet positions. But
the Attorneys General have appeared here on many occasions in
the 25 years that I have been here, and there should be a
showing, Senator Feingold, to warrant swearing.
Senator Feingold. Mr. Chairman, I would just say that the
reason that anyone would want him sworn has to do with the fact
that certain statements were made under oath at the
confirmation hearing, so it seems to me logical that since we
are going to be asking about similar things that he should be
sworn on this occasion as well.
Senator Leahy. And, Mr. Chairman, if I might on that
point--if I might on that point, of course, the Attorney
General was sworn in on another occasion other than his
confirmation when he and Director Mueller appeared before this
Committee for oversight. And I had asked the Chairman, as he
knows, earlier that he should be sworn on this. And I made that
request right after the press had pointed out where an answer
to Senator Feingold appeared not to have been truthful. And I
felt that that is an issue that is going to be brought up
during this hearing, and we should go into it.
I also recall the Chairman and other Republicans insisting
that former Attorney General Reno be sworn when she came up
here on occasions other than her confirmation.
I think because, especially because of the article about
the questions of the Senator from Wisconsin, Senator Feingold.
I believe he should be sworn. That is obviously the prerogative
of the Chairman, but I would state again, and state strongly
for the record what I have told the Chairman privately. I think
in this instance, similar to what you did in April with
Attorney General Gonzales and Director Mueller, both of whom
were sworn, and as the Chairman insisted with then-Attorney
General Reno, I believe he should be sworn.
Chairman Specter. Senator Leahy and I have not disagreed on
very much in the more than a year since we first worked
together as ranking member and Chairman, and I think it has
strengthened the Committee. I did receive the request. I went
back and dug out the transcript, and reviewed Senator
Feingold's vigorous cross-examination of the Attorney General
at the confirmation hearings. I know the issues as to torture,
which Senator Feingold raised, and the issues which Senator
Feingold raised as to searches without warrants. I have
reviewed the provisions of 18 USC 1001 and the case involving
Admiral Poindexter, who was convicted under that provision. I
have reviewed the provisions of 18 United States Code 1505,
where Oliver North was convicted, and there are penalties
provided there commensurate with perjury. It is my judgment
that it is unnecessary to swear the witness.
Senator Leahy. Mr. Chairman, may I ask, if the witness has
no objection to being sworn, why not just do it and not have
this question raised here? I realize only the Chairman can do
the swearing in. Otherwise, I would offer to give him the oath
myself, insofar as he said he would this morning be sworn in,
but if he is willing to be, why not just do it?
Senator Sessions. Mr. Chairman?
Chairman Specter. The answer to why I am not going to do it
is that I have examined all the facts, and I have examined the
law, and I have asked the Attorney General whether he would
object or mind, and he said he would not, and I have put that
on the record. But the reason I am not going to swear him in,
it is not up to him. Attorney General Gonzales is not the
Chairman. I am. And I am going to make the ruling.
Senator Sessions. Mr. Chairman?
Senator Feingold. Mr. Chairman?
Senator Leahy. Mr. Chairman, I would point out that he has
been here before this Committee three times. The other two
times he was sworn. It seems unusual not to swear him this
time.
Senator Durbin. Mr. Chairman, I move the witness be sworn.
Chairman Specter. The Chairman has ruled. If there is an
appeal from the ruling of the Chair, I have a pretty good idea
how it is going to come out.
Senator Durbin. Mr. Chairman, I appeal the ruling of the
Chair.
Chairman Specter. All in favor of the ruling of the Chair
say ``aye.''
[Chorus of ayes.]
Senator Schumer. Roll call.
Chairman Specter. Opposed?
Senator Leahy. Roll call has been requested.
Senator Feingold. Mr. Chairman, ask for a roll call vote.
Chairman Specter. The clerk will call the roll. I will call
the roll.
[Laughter.]
Chairman Specter. Senator Hatch?
Senator Hatch. No.
Chairman Specter. Senator Grassley?
Senator Grassley. No.
Chairman Specter. Senator Kyl?
Senator Kyl. Mr. Chairman, is the question to uphold or to
reject the ruling?
Chairman Specter. The question is to uphold the ruling of
the Chair, so we are looking for ayes here, Senator.
[Laughter.]
Senator Leahy. But we are very happy with the noes that
have started on the Republican side, being the better position.
Senator Hatch. I am glad somebody clarified that.
Chairman Specter. The question is, should the ruling of the
Chair be upheld that Attorney General Gonzales not be sworn?
Senator Hatch. Aye.
Senator Grassley. Aye.
Senator Kyl. Aye.
Senator DeWine. Aye.
Senator Sessions. Aye.
Senator Graham. Aye.
Senator Cornyn. Aye.
Chairman Specter. By proxy, for Senator Brownback, aye.
Senator Coburn?
[No response.]
Chairman Specter. We have enough votes already.
Senator Leahy?
Senator Leahy. Emphatically, no.
Senator Kennedy. No.
Senator Biden. No.
Senator Kohl. No.
Senator Feinstein. No.
Senator Feingold. No.
Senator Schumer. No.
Senator Durbin. No.
Chairman Specter. Aye. The ayes have it.
Senator Feingold. Mr. Chairman, I request to see the
proxies given by the Republican Senators.
Chairman Specter. Would you repeat that, Senator Feingold?
Senator Feingold. I request to see the proxies given by the
Republican Senators.
Chairman Specter. The practice is to rely upon the
staffers. But without counting that vote--well, we can rephrase
the question if there is any serious challenge to the proxies.
This is really not a very good way to begin this hearing, but I
found that patience is a good practice here.
Senator Sessions. Mr. Chairman?
Chairman Specter. Senator Sessions?
Senator Sessions. I am very disappointed that we went
through this process. This Attorney General, in my view, is a
man of integrity, and having read the questions, as you have,
that Senator Feingold put forward, and his answers, I believe
he will have a perfect answer to those questions when they come
up at this hearing, and I do not believe they are going to show
he perjured himself in any way or was inaccurate in what he
said. I remember having a conversation with General Meyers and
Secretary of Defense Rumsfeld, and one of the saddest days in
their career was having to come in here and stand before a
Senate Committee and raise their hand as if they were not
trustworthy in matters relating to the defense of this country.
And I think that is it not necessary that a duly confirmed
cabinet member have to routinely stand up and just give an oath
when they are, in effect, under oath and subject to prosecution
if they do not tell the truth.
I think it is just a question of propriety and good taste,
and due respect from one branch to the other, and that is why I
would support the Chair.
Senator Leahy. Mr. Chairman, I do not--
Chairman Specter. Let us not engage in protracted debate on
this subject. We are not going to swear this witness and we
have the votes to stop it.
Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Mr. Chairman, I stated my position why I
believe he should be sworn in, but I understand that you have
the majority of votes.
Now the question for this hearing goes into the illegality
of the Government's domestic spying on ordinary Americans
without a warrant.
The question facing us is not whether the Government should
have all the tools it needs to protect the American people. Of
course it should. Every single Member of Congress agrees they
should have all the tools necessary to protect the American
people. The terrorist threat to America's security remains very
real. We should have the tools to protect America's security.
That is why I co-authored the PATRIOT Act 5 years ago, and why
it passed with such broad bipartisan support, and I would also
remind everybody that is why we amended FISA, the Foreign
Intelligence Surveillance Act, five times since 9/11 to give it
more flexibility, twice during the time when I was Chairman.
We all agree that if you have al Qaeda terrorists calling
we should be wiretapping them. We do not even need authority to
do that overseas, and certainly going into, so far, the
unsuccessful effort to catch Osama bin Laden in Afghanistan.
Congress has given the President authority to monitor al Qaeda
messages legally with checks to guard against abuses when
Americans' conversations and e-mails are being monitored. But
instead of doing what the President has the authority to do
legally, he decided to do it illegally without safeguards.
A judge from the special court Congress created to monitor
domestic spying would grant any request to monitor an al Qaeda
terrorist. Of the approximately 20,000 foreign intelligence
warrant applications to these judges over the past 28 years,
about a half dozen have been turned down.
I am glad the Chairman is having today's hearing. We have
precious little oversight in this Congress, but the Chairman
and I have a long history of conducting vigorous bipartisan
oversight investigations, and if Congress is going to serve the
role it should, instead of being a rubber stamp for whoever is
the Executive, we have to have this kind of oversight.
The domestic spying programs into e-mails and telephone
calls, apparently conducted by the National Security Agency,
was first reported by the New York Times on December 16, 2005.
The next day President Bush publicly admitted that secret
domestic wiretapping has been conducted without warrants since
late 2001, and he has issued secret orders to do this more than
30 times.
We have asked for those Presidential orders allowing secret
eavesdropping on Americans. They have not been provided. We
have asked for official legal opinions of the Government that
the administration say justify this program. They too have been
withheld from us.
The hearing is expressly about the legality of this
program. It is not about the operational details. It is about
whether we can legally spy on Americans. In order for us to
conduct effective oversight, we need the official documents to
get those answers. We are an oversight Committee of the U.S.
Senate, the oversight Committee with jurisdiction over the
Department of Justice and over its enforcement of the laws of
the United States. We are the duly elected representatives of
the United States. It is our duty to determine whether the laws
of the United States have been violated. The President and the
Justice Department have a constitutional duty to faithfully
execute the laws. They do not write the laws. They do not pass
the laws. They do not have unchecked powers to decide what laws
to follow, and they certainly do not have the power to decide
what laws to ignore. They cannot violate the law or the rights
of ordinary Americans.
Mr. Attorney General, in America, our America, nobody is
above the law, not even the President of the United States.
There is much that we do not know about the President's
secret spying program. I hope we are going to get some answers,
some real answers, not self-serving characterizations.
Let's start with what we do know. Point one, the
President's secret wiretapping program is not authorized by the
Foreign Intelligence Surveillance Act.
The law expressly states it provides the exclusive source
of authority for wiretapping for intelligence purposes.
Wiretapping that is not authorized under this statute is a
Federal crime. That is what the law says. It is also what the
law means. This law was enacted to define how domestic
surveillance for intelligence purposes can be conducted while
protecting the fundamental rights of Americans.
A couple of generations of Americans are too young to know
why we passed this law. It was enacted after decades of abuses
by the Executive, including the wiretapping of Dr. Martin
Luther King, and other political opponents of earlier
Government officials. After some of the so-called White House
enemies on the Nixon White House enemies list, during that time
another President asserted that whatever he did what was legal
because he was President, and being President, he could do
whatever he wanted to do.
The law has been updated five times since September 11,
2001. It provides broad and flexible authority. In fact, on
July 31, 2002, your Justice Department testified this law is a
highly flexible statute that has been proven effective. And you
noted, ``When you are trying to prevent terrorist acts, that is
really what FISA was intended to do and it was written with
that in mind.''
But now the Bush administration concedes the President
knowingly created a program involving thousands of wiretaps of
Americans in the United States over the periods of the last
four or 5 years without complying with FISA.
And legal scholars and former Government officials,
including many Republicans, have been almost unanimous in
stating the obvious, this is against the law.
Point two, the authorization for the use of military force
that Democratic and Republican lawmakers joined together to
pass in the days immediately after the September 11 attacks did
not give the President the authority to go around the FISA law
to wiretap Americans illegally.
That authorization said to capture or kill Osama bin Laden,
and to use the American military to do that. It did not
authorize domestic surveillance of American citizens.
Let me be clear. Some Republican Senators say that we are
talking about special rights for terrorists. I have no interest
in that. Just like every member of this Committee and thousands
of our staffs, and every Member of the House of
Representatives, I go to work every single day in a building
that was targeted for destruction by al Qaeda. Of course, I
want them captured. I wish the Bush administration had done a
better job. I wish that when they almost had Osama bin Laden,
they had kept on after him and caught him, and destroyed him,
rather than taking our Special Forces out of Afghanistan and
sending them precipitously into Iraq.
My concern is the laws of America, and my concern is when
we see peaceful Quakers being spied upon, where we see babies
and nuns who cannot fly in airplanes because they are on a
terrorist watch list put together by your Government.
And point three, the President never came to Congress and
never sought additional legal authority to engage in the type
of domestic surveillance in which NSA has been secretly engaged
for the last several years.
After September 11, 2001, I led a bipartisan effort to
provide legal tools. We passed amendments to FISA. We passed
the U.S. PATRIOT Act, and we upgraded FISA four times since
then. In fact, when a Republican Senator on this Committee
proposed a legal change to the standards needed for a FISA
warrant, the Bush administration did not support that effort,
but raised questions about it and said it was not needed. The
administration told the Senate that FISA was working just fine.
You, Mr. Attorney General, said the administration did not
ask for legislation authorizing warrantless wiretapping of
Americans, and did not think such legislation would pass. Who
did you ask? You did not ask me. You did not ask Senator
Specter.
Not only did the Bush administration not seek broader legal
authority, it kept the very existence of this illegal
wiretapping program completely secret from 527 of the 535
Members of Congress, including members of this Committee and
members on the Intelligence Committee.
The administration had not suggested to Congress and the
American people that FISA was inadequate, outmoded or
irrelevant. You never did that until the press caught you
violating the statute with the secret wiretapping of Americans
without warrants. In fact, in 2004, 2 years after you
authorized the secret warrantless wiretapping program--and this
is a tape we are told we cannot show--the President said,
``Anytime you hear the U.S. Government talking about wiretap, a
wiretap requires a court order. Nothing has changed...When
we're talking about chasing down terrorists, we're talking
about getting a court order before we do so.'' That was when he
was running for reelection. Today we know at the very least,
that statement was misleading.
Let me conclude with this. I have many questions for you.
But first, let me give you a message, Mr. Attorney General, to
you, to the President and to the administration. This is a
message that should be unanimous from every single Member of
Congress, no matter what their party or their ideology. Under
our Constitution, Congress is a co-equal branch of Government,
and we make the laws. If you believe you need new laws, then
come and tell us. If Congress agrees, we will amend the law. If
you do not even attempt to persuade Congress to amend the law,
then you are required to follow the law as it is written. That
is true of the President, just as it is true of me and you and
every American. That is the rule of law. That is the rule on
which our Nation was founded. That is the rule on which it
endures and prospers.
Thank you, Mr. Chairman.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you, Senator Leahy.
We turn now to the Attorney General of the United States,
Alberto R. Gonzales. The Attorney General has held the office
for a little over a year. Before that he was Counsel to the
President, right after the President's inauguration in 2001. He
had served in State Government with Governor Bush. He attended
the U.S. Air Force Academy from 1975 to 1977, graduated from
Rice University with a bachelor's degree, and from Harvard Law
School. He was a partner in the distinguished law firm of
Vinson and Elkins in Houston before going into State
Government.
We have allotted 20 minutes for your opening statement, Mr.
Attorney General, because of the depth and complexity and
importance of the issues which you and we will be addressing.
You may proceed.
STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE
UNITED STATES, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Attorney General Gonzales. Good morning, Chairman Specter,
Senator Leahy and members of the Committee. I am pleased to
have this opportunity to speak with you.
And let me just add for the record, when Chairman Specter
asked me whether I would be willing to go under oath, I did say
I would have no objections. I also said that my answers would
be the same, whether or not I was under oath.
Al Qaeda and it affiliates remain deadly dangerous. Osama
bin Laden recently warned America, ``Operations are under
preparation and you will see them in your homes.'' Bin Laden's
deputy, Ayman Al-Zawahiri added just days ago that the American
people are, and again I quote, ``destined for a future colored
by blood, the smoke of explosions and the shadows of terror.''
None of us can afford to shrug off warnings like this or
forget that we remain a Nation at war. Nor can we forget that
this is a war against a radical and unconventional enemy. Al
Qaeda has no boundaries, no government, no standing army. Yet
they are capable of wreaking death and destruction on our
shores. And they have sought to fight us not just with bombs
and guns. Our enemies are trained in the most sophisticated
communications, counterintelligence, and counter-surveillance
techniques, and their tactics, they are constantly changing.
They use video feed and worldwide television networks to
communicate with their forces, e-mail, the Internet and cell
phones to direct their operations, and even our own training
academies to learn how to fly aircraft as suicide-driven
missiles.
To fight this unconventional war, while remaining open and
vibrantly engaged with the world, we must search out the
terrorists abroad and pinpoint their cells here at home. To
succeed we must deploy not just soldiers and sailors and airmen
and marines, we must also depend on intelligence analysts,
surveillance experts, and the nimble use of our technological
strength.
Before 9/11 terrorists were clustered throughout the United
States preparing their assault. We know from the 9/11
Commission report that they communicated with their superiors
abroad using e-mail, the Internet and telephone. General
Hayden, the Principal Deputy Director of National Intelligence,
testified last week before the Senate that the terrorist
surveillance program instituted after 9/11 has helped us detect
and prevent terror plots in the United States and abroad. Its
continuation is vital to the national defense.
Before going any further, I should make clear what I can
discuss today. I am here to explain the Department's assessment
that the President's terrorist surveillance program is
consistent with our laws and the Constitution. I am not here to
discuss the operational details of that program or any other
classified activity. The President has described the terrorist
surveillance program in response to certain leaks. And my
discussion in this open forum must be limited to those facts
the President has publicly confirmed, nothing more.
Many operational details of our intelligence activities
remain classified and unknown to our enemy, and it is vital
that they remain so.
The President is duty bound to do everything he can to
protect the American people. He took an oath to preserve,
protect and defend the Constitution. In the wake of 9/11 he
told the American people that to carry out this solemn
responsibility, he would use every lawful means at his disposal
to prevent another attack.
One of those means is the terrorist surveillance program.
It is an early warning system designed for the 21st century. It
is the modern equivalent to a scout team sent ahead to do
reconnaissance or a series of radar outposts designed to detect
enemy movements. And as with all wartime operations, speed,
agility and secrecy are essential to its success.
While the President approved this program to respond to the
new threats against us, he also imposed several important
safeguards to protect the privacy and the civil liberties of
all Americans.
First. Only international communications are authorized for
interception under this program, that is, communications
between a foreign country and this country.
Second. The program is triggered only when a career
professional at the NSA has reasonable grounds to believe that
one of the parties to a communication is a member or agent of
al Qaeda or an affiliated terrorist organization. As the
President has said, if you are talking with al Qaeda, we want
to know what you are saying.
Third. To protect the privacy of Americans still further,
the NSA employs safeguards to minimize the unnecessary
collection and dissemination of information about U.S. persons.
Fourth. This program is administered by career
professionals at NSA. Expert intelligence analysts and their
senior supervisors with access to the best available
information, they make the decisions to initiate surveillance.
The operation of the program is reviewed by NSA lawyers, and
rigorous oversight is provided by the NSA Inspector General. I
have been personally assured that no other foreign intelligence
program in the history of NSA has received a more thorough
review.
Fifth. The program expires by its own terms approximately
every 45 days. The program may be reauthorized, but only on the
recommendation of intelligence professionals, and there must be
a determination that al Qaeda continues to pose a continuing
threat to America based on the latest intelligence.
Finally, the bipartisan leadership of the House and Senate
Intelligence Committees has known about this program for years.
The bipartisan leadership of both the House and Senate has also
been informed. During the course of these briefings, no Members
of Congress asked that the program be discontinued.
Mr. Chairman, the terrorist surveillance program is lawful
in all respects. As we have thoroughly explained in our written
analysis, the President is acting with authority provided both
by the Constitution and by statute. First and foremost, the
President is acting consistent with our Constitution. Under
Article II, the President has the duty and the authority to
protect America from attack. Article II also makes the
President, in the words of the Supreme Court, ``the sole organ
of Government in a field of international relations.''
These inherent authorities vested in the President by the
Constitution include the power to spy on enemies like al Qaeda
without prior approval from other branches of Government. The
courts have uniformly upheld this principle in case after case.
Fifty-five years ago the Supreme Court explained that the
President's inherent constitutional authorities expressly
include, ``the authority to use secretive means to collect
intelligence necessary for the conduct of foreign affairs and
military campaigns.''
More recently, in 2002, the FISA Court of Review explained
that, ``All the other courts to have decided the issue have
held that the President did have inherent authority to conduct
warrantless searches to obtain intelligence information.'' The
court went on to add, ``We take for granted that the President
does have that authority, and assuming that that is so, FISA
could not encroach on the President's constitutional powers.''
Now, it is significant, that this statement, stressing the
constitutional limits of the Foreign Intelligence Surveillance
Act, or FISA, came from the very appellate court that Congress
established to review the decisions of the FISA Court.
Nor is this just the view of the courts. Presidents,
throughout our history, have authorized the warrantless
surveillance of the enemy during wartime, and they have done so
in ways far more sweeping than the narrowly targeted terrorist
surveillance program authorized by President Bush.
General Washington, for example, instructed his army to
intercept letters between British operatives, copy them, and
then allow those communications to go on their way.
President Lincoln used the warrantless wiretapping of
telegraph messages during the Civil War to discern the
movements and intentions of opposing troops.
President Wilson, in World War I, authorized the military
to intercept each and every cable, telephone and telegraph
communication going into or out of the United States.
During World War II, President Roosevelt instructed the
Government to use listening devices to learn the plans of spies
in the United States. He also gave the military the authority
to review, without warrant, all telecommunications, ``passing
between the United States and any foreign country.''
The far more focused terrorist surveillance program fully
satisfies the ``reasonableness'' requirement of the Fourth
Amendment.
Now, some argue that the passage of FISA diminished the
President's inherent authority to intercept enemy
communications even in a time of conflict. Others disagree,
contesting whether and to what degree the legislative branch
may extinguish core constitutional authorities granted to the
executive branch.
Mr. Chairman, I think that we can all agree that both of
the elected branches have important roles to play during a time
of war. Even if we assume that the terrorist surveillance
program qualifies as electronic surveillance under FISA, it
complies fully with the law. This is especially so in light of
the principle that statutes should be read to avoid serious
constitutional questions, a principle that has no more
important application than during wartime. By its plain terms,
FISA prohibits the Government from engaging in electronic
surveillance ``except as authorized by statute.'' Those words,
``except as authorized by statute,'' are no mere incident of
drafting. Instead, they constitute a far-sighted safety valve.
The Congress that passed FISA in 1978 included those words
so that future Congresses could address unforeseen challenges.
The 1978 Congress afforded future lawmakers the ability to
modify or eliminate the need for a FISA application without
having to amend or repeal FISA. Congress provided this safety
valve because it knew that the only thing certain about foreign
threats is that they change in unpredictable ways.
Mr. Chairman, the resolution authorizing the use of
military force is exactly the sort of later statutory
authorization contemplated by the FISA safety valve. Just as
the 1978 Congress anticipated, a new Congress in 2001 found
itself facing a radically new reality. In that new environment,
Congress did two critical things when it passed the force
resolution.
First, Congress recognized the President's inherent
constitutional authority to combat al Qaeda. These inherent
authorities, as I have explained, include the right to conduct
surveillance of foreign enemies operating inside this country.
Second, Congress confirmed and supplemented the President's
inherent authority by authorizing him ``to use all necessary
and appropriate force against al Qaeda.''
This is a very broadly worded authorization. It is also one
that must permit electronic surveillance of those associated
with al Qaeda. Our enemies operate secretly, and they seek to
attack us from within. In this new kind of war, it is both
necessary and appropriate for us to take all possible steps to
locate our enemy and know what they are plotting before they
strike.
Now, we all agree that it is a necessary and appropriate
use of force to fire bullets and missiles at al Qaeda
strongholds. Given this common ground, how can anyone conclude
that it is not necessary and appropriate to intercept al Qaeda
phone calls? The term ``necessary and appropriate force'' must
allow the President to spy on our enemies, not just shoot at
them blindly, hoping we might hit the right target. In fact,
other Presidents have used statutes like the force resolution
as a basis for authorizing far broader intelligence
surveillance programs. President Wilson in World War I cited
not just his inherent authority as Commander in Chief to
intercept all telecommunications coming into and out of this
country; he also relied on a congressional resolution
authorizing the use of force against Germany that parallels the
force resolution against al Qaeda.
A few Members of Congress have suggested that they
personally did not intend the force resolution to authorize the
electronic surveillance of the enemy, al Qaeda. But we are a
Nation governed by written laws, not the unwritten intentions
of individuals. What matters is the plain meaning of the
statute passed by Congress and signed by the President, and in
this case, those plain words could not be clearer. The words
contained in the force resolution do not limit the President to
employing certain tactics against al Qaeda. Instead, they
authorize the use of all necessary and appropriate force. Nor
does the force resolution require the President to fight al
Qaeda only in foreign countries. The preamble to the force
resolution acknowledges the continuing threat ``at home and
abroad.''
Congress passed the force resolution in response to a
threat that emerged from within our own borders. Plainly,
Congress expected the President to address that threat and to
do so with all necessary and appropriate force.
Importantly, the Supreme Court has already interpreted the
force resolution in the Hamdi case. There the question was
whether the President had the authority to detain an American
citizen as an enemy combatant, and to do so despite a specific
statute that said that no American citizen could be detained
except as provided by Congress. A majority of the Justices in
Hamdi concluded that the broad language of the force resolution
gave the President the authority to employ the traditional
incidents of waging war. Justice O'Connor explained that these
traditional powers include the right to detain enemy
combatants, and to do so even if they happen to be American
citizens.
If the detention of an American citizen who fought with al
Qaeda is authorized by the force resolution as an incident of
waging war, how can it be that merely listening to al Qaeda
phone calls into and out of the country in order to disrupt
their plots is not?
Now, some have asked if the President could have obtained
the same intelligence using traditional FISA processes. Let me
respond by assuring you that we make robust use of FISA in our
war efforts. We constantly search for ways to use FISA more
effectively. In this debate, however, I have been concerned
that some who have asked ``Why not FISA?'' do not understand
how that statute really works.
To be sure, FISA allows the Government to begin electronic
surveillance without a court order for up to 72 hours in
emergency situations or circumstances. But before that
emergency provision can be used, the Attorney General must make
a determination that all of the requirements of the FISA
statute are met in advance. This requirement can be cumbersome
and burdensome. Intelligence officials at NSA first have to
assess that they have identified a legitimate target. After
that, lawyers at NSA have to review the request to make sure it
meets all of the requirements of the statute. And then lawyers
at the Justice Department must also review the requests and
reach the same judgment or insist on additional information
before processing the emergency application. Finally, I as
Attorney General must review the request and make the
determination that all of the requirements of FISA are met.
But even this is not the end of the story. Each emergency
authorization must be followed by a detailed formal application
to the FISA Court within 3 days. The Government must prepare
legal documents laying out all of the relevant facts and law
and obtain the approval of a Cabinet-level officer as well as a
certification from a senior official with security
responsibility, such as the Director of the FBI. Finally, a
judge must review, consider, and approve the application. All
of these steps take time. Al Qaeda, however, does not wait.
While FISA is appropriate for general foreign intelligence
collection, the President made the determination that FISA is
not always sufficient for providing the sort of nimble early
warning system we need against al Qaeda. Just as we cannot
demand that our soldiers bring lawyers onto the battlefield,
let alone get the permission of the Attorney General or a court
before taking action, we cannot afford to impose layers of
lawyers on top of career intelligence officers who are striving
valiantly to provide a first line of defense by tracking
secretive al Qaeda operatives in real time.
Mr. Chairman, the terrorist surveillance program is
necessary, it is lawful, and it respects the civil liberties we
all cherish. It is well within the mainstream of what courts
and prior Presidents have authorized. It is subject to careful
constraints, and congressional leaders have been briefed on the
details of its operation. To end the program now would be to
afford our enemy dangerous and potentially deadly new room for
operation within our own borders.
I have highlighted the legal authority for the terrorist
surveillance program, and I look forward to our discussion and
know that you appreciate there remain serious constraints on
what I can say about operational details. Our enemy is
listening, and I cannot help but wonder if they are not shaking
their heads in amazement at the thought that anyone would
imperil such a sensitive program by leaking its existence in
the first place, and smiling at the prospect that we might now
disclose even more or perhaps even unilaterally disarm
ourselves of a key tool in the war on terror.
Thank you, Mr. Chairman.
[The prepared statement of Attorney General Gonzales
appears as a submission for the record.]
Chairman Specter. Thank you very much, Attorney General
Gonzales.
Before proceeding to the 10-minute rounds for each of the
Senators, let me request that you make your answers as brief as
possible. You are an experienced witness, and we will try to
make our questions as pointed and as brief as each Senator
finds it appropriate.
Senator Leahy. Mr. Chairman, could I also ask that we have
for the record the statement that the Attorney General--well,
obviously the statement that he just gave now, but the
statement that he submitted to the Committee under our rules a
couple days ago as part of the record.
Chairman Specter. Is there a difference between the two
statements, Mr. Attorney General?
Attorney General Gonzales. Sir, there is a difference
between the written statement and the oral statement, yes, sir.
Chairman Specter. Are they the same?
Attorney General Gonzales. There is a difference, sir. They
are not the same.
Chairman Specter. Well, both will be made a part of the
record.
All right. Now for the 10-minute rounds. Mr. Attorney
General, let's start with the FISA Court, which is well-
respected, maintains its secrets and is experienced in the
field. I posed this question to you in my letter: Why not take
your entire program to the FISA Court, within the broad
parameters of what is reasonable and constitutional, and ask
the FISA Court to approve it or disapprove it?
Attorney General Gonzales. Senator, I totally agree with
you that the FISA Court should be commended for its great
service. They are working on weekends, they are working at
nights--
Chairman Specter. Now on to my question.
Attorney General Gonzales. They are assisting us in the war
on terror. In terms of when I go to the FISA Court, once the
determination was made that neither the Constitution nor FISA
prohibited the use of this tool, then the question becomes for
the Commander in Chief which of the tools is appropriate given
a particular circumstance. And we studied very carefully the
requirements of the Constitution under the Fourth Amendment. We
studied very carefully what FISA provides for.
As I said in my statement, we believe that FISA does
anticipate that another statute could permit electronic
surveillance and--
Chairman Specter. OK. You think you are right, but there
are a lot of people who think you are wrong. As a matter of
public confidence, why not take it to the FISA Court? What do
you have to lose if you are right?
Attorney General Gonzales. What I can say, Senator, is that
we are continually looking at ways that we can work with the
FISA Court in being more efficient and more effective in
fighting the war on terror. Obviously, we would consider and
are always considering methods of fighting the war effectively
against al Qaeda.
Chairman Specter. Well, speaking for myself, I would urge
the President to take this matter to the FISA Court. They are
experts. They will maintain the secrecy. And let's see what
they have to say.
Mr. Attorney General, did Judge Robertson of the FISA Court
resign in protest because of this program?
Attorney General Gonzales. I do not know why Judge
Robertson resigned, sir.
Chairman Specter. Has the FISA Court declined to consider
any information obtained from this program when considering
warrants?
Attorney General Gonzales. Sir, what I can say is that the
sources of information provided or included in our application
are advised or disclosed to the FISA Court because obviously
one of the things they have to do is judge the reliability.
Chairman Specter. So if you have information that you are
submitting to the FISA Court for a warrant than you tell them
that it was obtained from this program?
Attorney General Gonzales. Senator, I am uncomfortable
talking about how this--in great detail about how this
information is generally shared. What I can say is just repeat
what I just said, and that is, we as a matter of routine
provide to the FISA Court information about the sources of the
information that form the basis of an application--
Chairman Specter. I am not asking you how you get the
information from the program. I am asking you, do you tell the
FISA Court that you got it from the program? I want to know if
they are declining to issue warrants because they are
dissatisfied with the program.
Attorney General Gonzales. Senator, I am not--I believe
that getting into those kind of details is getting into the
detail about how the program is operated. Obviously, the
members of the court understand the existence of this program.
What I can say is we have a very open and very candid
discussion and relationship with the FISA Court. To the extent
that we are involved in intelligence activities that relate in
any way to the FISA Court and they have questions about that,
we have discussions with the FISA Court.
Our relationship with the court is extremely important, and
we do everything that we can do to assure them with respect to
our intelligence activities that affect decisions that they
make.
Chairman Specter. I am not going to press you further, but
I would ask you to reconsider your answer.
Attorney General Gonzales. Yes, sir.
Chairman Specter. In your response to my letter, you said
this: ``No communications are intercepted unless it is
determined that''--and then I am leaving some material out--``a
party to the communication is a member or agent of al Qaeda or
an affiliated terrorist organization.'' You are representing to
this Committee that before there is an interception, there is a
determination that one of the parties is a member of al Qaeda,
an agent of al Qaeda, or an affiliated terrorist organization.
Is that true?
Attorney General Gonzales. Sir, I believe General Hayden,
the Deputy Director of Intelligence, yesterday confirmed that
before there is any interception, there is a determination made
by an intelligence officer at NSA that, in fact, we have
reasonable grounds to believe that one party in the
communication is a member or agent of al Qaeda or an affiliate
terrorist organization.
Chairman Specter. Is there any way you can give us
assurance that it is true without disclosing the methods and
sources of your program? It seems to me that that is a very
important statement. If we were really sure that you are
dealing only with a communication where you have a member of al
Qaeda, an agent of al Qaeda, or an affiliated with al Qaeda
terrorist organization, it would be a good thing, because the
concern is that there is a broad sweep which includes people
who have no connection with al Qaeda. What assurances can you
give to this Committee and beyond this Committee to millions of
Americans who are vitally interested in this issue and
following these proceedings?
Attorney General Gonzales. Well, I would say, Senator, and
to the American people and to this Committee, that the program
as operated is a very narrowly tailored program, and we do have
a great number of checks in place to ensure, I am told by the
operations folks, a great degree of certainty, a high degree of
confidence that these calls are solely international calls. We
have these career professionals out at NSA who are experts in
al Qaeda tactics, al Qaeda communications, al Qaeda aims. They
are the best at what they do, and they are the ones that make
the judgment as to whether or not someone is on a call that is
a member of al Qaeda or a member of an affiliated organization.
The Inspector General, as I have indicated, has been
involved in this program from its early stages. There are
monthly--
Chairman Specter. Mr. Attorney General, let me interrupt
you because I want to cover a couple more questions and time is
fleeting. I think you have given the substance of the response.
We have contacted former Attorney General Ashcroft about
his availability to testify before this Committee, and he has
not said yes and he has not said no. He is considering it. I
believe that the testimony of former Attorney General Ashcroft
would fall under a different category than that of line
attorneys within the Department who are giving information.
With them there is the concern about having a chilling effect
on their advice if they know their views are later to be
examined.
I think the Attorney General is different, and my question
to you is: Would you have any objection to former Attorney
General Ashcroft's appearance before this Committee on this
issue?
Attorney General Gonzales. I would not, Senator, although,
of course, if it relates to questions regarding the law and the
position of the executive branch, that is what I am doing
today, is conveying to this Committee what is the executive
branch position on the legal authorities of the President in
authorizing the terrorist surveillance program.
Chairman Specter. That is all we would ask him about. We
wouldn't ask him about the operations. I take it, if I heard
you correctly, you would not have an objection.
Attorney General Gonzales. Senator, this Committee, of
course, can ask who they want to ask to come before the
Committee.
Chairman Specter. I know we can ask. It is a totally
different question as to what we hear in response. He has not
told us that he is going to look to the Department of Justice.
But I think he would feel more comfortable knowing that you had
no objection. I thought I heard you say earlier that you didn't
have an objection.
Attorney General Gonzales. Senator, I don't think I would
have an objection.
Chairman Specter. OK. Two more questions, which I want to
ask before my red light goes on.
On looking at congressional intent as to whether the
resolution authorizing the use of force was intended to carry
an authorization for this electronic surveillance with respect
to the Foreign Intelligence Surveillance Act, you were quoted
as saying, ``That was not something that we could likely get.''
Now, that is different from the other response you had that it
might involve disclosures.
If this is something you could not likely get, then how can
you say Congress intended to give you this authority? Let the
record show my red light went on with the conclusion of the
question.
Attorney General Gonzales. Senator, in that same press
conference, I clarified that statement, and I think, the next
press conference I was at with Mike Chertoff, I clarified that
statement. That is, the consensus was in a meeting that
legislation could not be obtained without compromising the
program, i.e., disclosing the existence of the program, how it
operated, and thereby effectively killing the program.
Chairman Specter. Thank you very much.
Senator Leahy?
Senator Leahy. Mr. Chairman, you have raised some
interesting points. In listening to the Attorney General, who
is now arguing that the President's wiretapping of Americans
without a warrant is legal, that it does not violate the
controlling law, the Foreign Intelligence Surveillance Act,
they have given a fancy name to the President's program. But I
would remind him that the terrorist surveillance program is the
FISA law which we passed. I think you are violating express
provisions of that Act.
Let me just ask you a few questions that can be easily
answered yes or no. I am not asking about operational details.
I am trying to understand when the administration came to the
conclusion that the Congressional resolution authorizing the
military force against al Qaeda, where we had hoped that we
would actually catch Osama bin Laden, the man who hit us, but
when you came to the conclusion that it authorized warrantless
wiretapping of Americans inside the United States. Did you
reach that conclusion before the Senate passed the resolution
on September 14, 2001?
Attorney General Gonzales. Senator, what I can say is that
the program was initiated subsequent to the authorization to
use military force--
Senator Leahy. Well, then let me--
Attorney General Gonzales. [continuing]. And our legal
analysis was completed prior to the authorization of that
program.
Senator Leahy. So your answer is you did not come to that
conclusion before the Senate passed the resolution on September
14, 2001.
Attorney General Gonzales. Senator, I certainly had not
come to that conclusion. There may be others in the
administration who did.
Senator Leahy. Were you aware of anybody in the
administration that came to that conclusion before September
14, 2001?
Attorney General Gonzales. Senator, sitting here right now,
I don't have any knowledge of that.
Senator Leahy. Were you aware of anybody coming to that
conclusion before the President signed the resolution on
September 18, 2001?
Attorney General Gonzales. No, Senator. The only thing that
I can recall is that we had just been attacked and that we had
been attacked by an enemy from within our own borders and
that--
Senator Leahy. Attorney General, I understand. I was here
when that attack happened, and I joined with Republicans and
Democrats and virtually every Member of this Congress to try to
give you the tools that you said you needed for us to go after
al Qaeda, and especially to go after Osama bin Laden, the man
that we all understood masterminded the attack and the man who
is still at large.
Now, back to my question. Did you come to the conclusion
that you had to have this warrantless wiretapping of Americans
inside the United States to protect us before the President
signed the resolution on September 18, 2001. You were the White
House Counsel at the time.
Attorney General Gonzales. What I can say is that we came
to a conclusion that the President had the authority to
authorize this kind of activity before he actually authorized
the activity.
Senator Leahy. When was that?
Attorney General Gonzales. It was subsequent to the
authorization to use military force.
Senator Leahy. When?
Attorney General Gonzales. Sir, it was just a short period
of time after the authorization to use military force.
Senator Leahy. Was it before or after NSA began its
surveillance program?
Attorney General Gonzales. Again, the NSA did not commence
the activities under the terrorist surveillance program before
the President gave his authorization, and before the President
gave the authorization, he was advised by lawyers within the
administration that he had the legal authority to authorize
this kind of surveillance of the enemy.
Senator Leahy. So NSA didn't do this until the President
gave them the green light that they could engage in warrantless
wiretapping of Americans inside the United States under the
circumstances you described in your earlier testimony?
Attorney General Gonzales. Of course, Senator, the NSA has
other authorities to engage in electronic surveillance--
Senator Leahy. I understand that.
Attorney General Gonzales [continuing]. And I am told that
they--
Senator Leahy. I am talking about this specific program.
Attorney General Gonzales. And I am told they took
advantage of those authorities, but it is my understanding--and
I believe this to be true--that the NSA did not commence the
kind of electronic surveillance which I am discussing here
today prior to the President's authorization.
Senator Leahy. The President has said publicly that he gave
about 30 of these authorizations, having held off for a period
of time, I think, when the administration heard the New York
Times was looking into it. But you were White House Counsel.
Did the President give his first authorization before or after
Attorney General Ashcroft met with us and gave us the proposals
from the administration which ultimately went into the USA
PATRIOT Act?
Attorney General Gonzales. Sir, I don't know. I don't know
when he gave you those proposals.
Senator Leahy. Well, we enacted the USA PATRIOT Act in
October 2001, and you were there at the signing ceremony. We
used the--we tried to encompass those things that the
administration said they needed. Was the first one of the
President's authorizations done before he signed the USA
PATRIOT Act?
Attorney General Gonzales. Sir, I would have to go back and
check. I don't know.
Senator Leahy. OK. You are going to be back here this
afternoon. Please check because I will ask you this question
again, and you will have a chance to ask--I am looking around
the room. You have an awful lot of staff here. Let's have that
answer. You were there when he signed the Act. Let us know when
his first authorization was, whether it was before or after he
signed that Act.
Now--
Attorney General Gonzales. Sir, may I make a statement? We
believe the authorization to use military force constituted a
statutory grant of authority to engage in this kind of
surveillance, and, therefore, it wouldn't be necessary to seek
an amendment to FISA through the PATRIOT Act.
Senator Leahy. OK. My question still remains, and like
Senator Specter, I am trying to ask basically things you could
answer yes or no. You talk about the authorization for use of
military force. We have a chart up over there that says that,
``The President is authorized to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided
the terrorist attacks that occurred September 11, 2001, or
harbored such organizations or persons in order to prevent any
future acts of international terrorism against the United
States by such nations, organizations, or persons.''
Now, basically what you are saying is that Congress must be
understood to have authorized the President to do it, not that
we actually did but that we must have understood it.
Now, this authorization is not a wiretap statute. I was a
prosecutor. Senator Specter was a prosecutor. A lot of other
prosecutors are here. We know what a wiretap statute looks
like. This is not it.
So let me ask this: Under that logic, is there anything to
stop you from wiretapping without a warrant somebody inside the
United States that you suspect of having al Qaeda connections?
Attorney General Gonzales. Clearly, Senator, that is not
what is going on here, first of all. The President has
authorized a much more narrow program. We are always, of
course, subject to the Fourth Amendment, so the activities of
any kind of surveillance within the United States would, of
course, be subject to the Fourth Amendment.
Senator Leahy. Well, Mr. Attorney General, we are getting
the impression that this administration is kind of picking and
choosing what they are subject to, can you show us in the
authorization for use of military force, what is the specific
language you say is authorized in wiretapping of Americans
without a warrant?
Attorney General Gonzales. Sir, there is no specific
language, but neither is there specific language to detain
American citizens, and the Supreme Court said that the words
``all necessary and appropriate force'' means all activities
fundamentally incident to waging war.
Senator Leahy. But there was not a law--they did not have a
law specifically on this.
Attorney General Gonzales. Sure they did, sir.
Senator Leahy. If you use the Jackson test, they have a law
on wiretapping. It is called FISA. It is called FISA. And if
you do not like that law, if that law does not work, why not
just ask us to amend it?
Attorney General Gonzales. Sir, there was a law in question
in Hamdi. It was 18 USC 4001(a), and that is, you cannot detain
an American citizen except as authorized by Congress. And Hamdi
came into the Court saying the authorization to use military
force is not such a permission by Congress to detain an
American citizen, and the Supreme Court, Justice O'Connor said,
even though the words were not included in the authorization,
Justice O'Connor said Congress clearly and unmistakably
authorized the President to detain an American citizen, and
detention is far more intrusive than electronic surveillance.
Senator Leahy. Let me ask you this: under your
interpretation of this, can you go in and do mail searches? Can
you open first-class mail? Can you do black-bag jobs? And under
the idea that you do not have much time to go through what you
describe as a cumbersome procedure, but most people think it is
a pretty easy procedure, to get a FISA warrant, can you go and
do that, of Americans?
Attorney General Gonzales. Sir, I have tried to outline for
you and the Committee what the President has authorized, and
that is all that he has authorized.
Senator Leahy. Did it authorize the opening of first-class
mail of U.S. citizens? That you can answer yes or no.
Attorney General Gonzales. There is all kinds of wild
speculation about what the--
Senator Leahy. Did it authorize it?
Chairman Specter. Let him finish.
Attorney General Gonzales. There is all kinds of wild
speculation out there about what the President has authorized,
and what we are actually doing. And I am not going to get into
a discussion, Senator, about--
Senator Leahy. Mr. Attorney General, you are not answering
my question. I am not asking you what the President authorized.
Does this law--you are the chief law enforcement officer of the
country--does this law authorize the opening of first-class
mail of U.S. citizens? Yes or no, under your interpretation?
Attorney General Gonzales. Senator, I think that, again,
that is not what is going on here. We are only focused on
communications, international communications, where one party
to the communication is al Qaeda. That is what this program is
all about.
Senator Leahy. You have not answered my question.
Well, Mr. Chairman, I will come back to this, and the
Attorney General understands there are some dates he is going
to check during the break, and I will go back to him.
Chairman Specter. Thank you, Senator Leahy.
Senator Hatch.
Senator Hatch. This is a very interesting set of issues,
and a lot of constitutional issues, for people who are watching
this. We have got, in addition to all kinds of constitutional
issues about interpreting statutes, you have got the canon of
constitutional avoidance here, that is a very important rule in
constitutional law. You have got the Vesting Clause, vesting
power in the President. You have got inherent Executive
authority that people seem to just brush aside here. They will
talk in terms of, well, Congress is co-equal with the
President, but they do not ever really talk in terms of the
President being co-equal with the Congress, or to pass laws,
you have got the various canons of statutory interpretation.
All of these are here, and it makes this a very interesting
thing.
But let me just ask you some specific questions here. It is
my understanding, as I have reviewed this, and as I have looked
at a lot of the cases, that virtually all of the Federal Courts
of Appeal that have addressed the issue, have affirmed the
President's inherent constitutional authority to collect
foreign intelligence without a warrant. Is that a fair
statement?
Attorney General Gonzales. It is a fair statement, Senator,
that all of the Court of Appeals that have reviewed this issue
have concluded that the President of the United States has the
authority, under the Constitution, to engage in warrantless
searches consistent with the Fourth Amendment for purposes of
gathering foreign intelligence.
Senator Hatch. That is what the Katz v. U.S. case seemed to
say, is it not, that wiretapping to protect the security of the
Nation has been authorized by successive Presidents; is that
correct?
Attorney General Gonzales. It is certainly the case that
successive Presidents, particularly during a time of war, have
authorized warrantless searches.
Senator Hatch. And you are relying on the Hamdi case as
well, where a majority of the Court basically authorized the
President exceptional powers under the Authorized Use of
Military Force Statute?
Attorney General Gonzales. I would not say they are
exceptional powers. I think that they are traditional powers of
the President in a time of war.
Senator Hatch. Then U.S. v. Truong. That was a 1983 case.
Attorney General Gonzales. Yes. Once again, the Court
finding that the President of the United States does have the
inherent authority to engage in warrantless searches,
consistent with the Fourth Amendment, for purposes of gathering
foreign intelligence.
Senator Hatch. That was the case after the enactment of the
FISA law, right?
Attorney General Gonzales. It was a case after the
enactment of FISA, but I think to be fair, I do not think the
Court did a rigorous analysis about how FISA affects the
analysis, but there was a decision by the Court that the
President had the inherent authority.
Senator Hatch. That is the important part of the case, as
far as I am concerned. U.S. v. Butenko. It is a 1974 case,
before FISA. U.S. v. Brown, U.S. v. U.S. District Court, and
the so-called Keith case.
Attorney General Gonzales. The Keith case was where the
Court, for the first time, said that electronic surveillance,
it would be subject--electronic surveillance for domestic
security purposes is subject to the Fourth Amendment.
Senator Hatch. Haig v. Agee, that is a 1981 case, again,
after FISA, that matters intimately related to foreign policy
and national security are rarely proper subjects for judicial
intervention. That is a recognition that the President has to
make some decisions, right?
Attorney General Gonzales. Right. If I could just followup,
Senator. My statement on the Keith case where the Court did say
that electronic surveillance for purposes of domestic security
would be subject to warrant requirements under the Fourth
Amendment. The Court expressly made clear that they were not
talking about electronic surveillance for foreign intelligence
purposes. They were only talking about electronic surveillance
for domestic security purposes.
Senator Hatch. What about The Prize Cases, they are very
well-known cases, and culminating in the case that quotes The
Prize Cases in Campbell v. Clinton.
Attorney General Gonzales. Again, there are a number of
cases that recognize the President's inherent constitutional
authority, particularly in a time of war--
Senator Hatch. And the President's independent authority;
is that correct? That is what Campbell v. Clinton says.
Attorney General Gonzales. To engage in surveillance in
order to protect our country.
Senator Hatch. In fact, there is a 2002 case, In re: Sealed
Cases, right?
Attorney General Gonzales. In re: Sealed Cases, I said in
my statement is--
Senator Hatch. I mean that is a case decided by the FISA
Court of Review, the actual FISA Court, right?
Attorney General Gonzales. The FISA Court of Review was
created by Congress to review the decisions by the FISA Court.
In that decision, in that case, the FISA Court of Review
acknowledged that these cases by other Circuit Courts, that the
President does have the inherent authority, and the FISA Court
of Review said, assuming that to be true, that FISA could not
encroach upon the powers of the President.
Senator Hatch. They could not encroach on the President's
constitutional powers.
Attorney General Gonzales. That is correct.
Senator Hatch. So people who are wildly saying that the
President is violating the law are ignoring all of these cases
that say that--at least imply--that he has the inherent power
to be able to do what he should to protect our Nation during a
time of war?
Attorney General Gonzales. And I want to emphasize,
Senator, this is not a case where we are saying FISA--we are
overriding FISA or ignoring FISA. Quite the contrary. We are
interpreting the authorization to use military force as a
statutory grant--
Senator Hatch. You use FISA all the time, don't you?
Attorney General Gonzales. FISA is an extremely important
tool in fighting the war on terror. I know today there is going
to be some discussion about whether or not we should amend
FISA. I do not know that FISA needs to be amended, per se,
because when you think about it, FISA covers much more than
international surveillance. It exists even in peacetime. And so
when you are talking about domestic surveillance during
peacetime, I think the procedures of FISA, quite frankly, are
quite reasonable, and so that is one of the dangers of trying
to seek an amendment to FISA, is that there are certain parts
of FISA that I think provide good protections. And to make an
amendment to FISA in order to allow the activities that the
President has authorized, I am concerned will jeopardize this
program.
Senator Hatch. It may even encroach on the inherent powers
of the President, right?
Attorney General Gonzales. Yes, sir.
Senator Hatch. Let me just say this to you: as I view your
arguments, we are faced with a war unlike any other war we have
ever been in. We are faced with a war of international
terrorists. That is one reason we did the PATRIOT Act was to
bring our domestic criminal laws up--excuse me--our
international antiterrorism laws up to the equivalent of
domestic criminal laws. And you are saying that--and I have to
say I find some solace in this--you are saying that when
Congress, through a joint resolution, authorized the use of
military force, gave the President these wide powers that are
much wider than the ordinary single sentence declaration of war
up through World War II, which was the last one if I recall it
correctly, that that statute allowed you, coupled with inherent
powers of the President, to be able to go after these
terrorists before they hit us again?
Attorney General Gonzales. This is an example of Congress
exercising its Article I powers to pass legislation, so the
President, in exercising his inherent authorities under Article
II, has all the authority that he needs to fight al Qaeda.
Senator Hatch. The Authorized Use of Military Force
Resolution, which was a joint resolution of both Houses of
Congress, declared that the Nation faces, ``an unusual and
extraordinary threat,'' and acknowledges that the President has
authority under the Constitution to take action to deter and
prevent acts of international terrorism against the United
States and provides that the President is authorized ``to use
all necessary and appropriate force'' against those he
determines are linked to the September 11th attacks.
That sweeping language goes a lot further than the usual
single sentence declaration of war, right?
Attorney General Gonzales. It is a very broad authorization
which makes sense. I do not think anyone in those days and
weeks, certainly not in the Congress, were thinking about
cataloguing all of those authorities that they wanted to give
to the President. I think everyone expected the President of
the United States to do everything he could to protect our
country, and the Supreme Court has said that those words, ``all
necessary and appropriate force'' mean that the Congress has
given to the President of the United States the authority to
engage in all the activities that are fundamental and incident
to waging war.
Senator Hatch. So you are relying on an Act of Congress, a
joint resolution. You are relying on the inherent powers of the
President to protect our borders and to protect us, and you are
relying on the Fourth Amendment which allows reasonable
searches and seizures in the best interest of the American
public; is that a fair analysis?
Attorney General Gonzales. That is a fair analysis, yes,
sir.
Senator Hatch. My time is up, Mr. Chairman.
Chairman Specter. Thank you, Senator Hatch.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. I think the final
comments about all of us desiring to protect our country is
something which is common. We certainly respect your strong
dedication and commitment to that, Attorney General.
Attorney General Gonzales. Thank you, Senator.
Senator Kennedy. I think all of us remember the time of 9/
11. I certainly do, I was with Mrs. Bush just before her
testimony at an education hearing. It is a moment that is
emblazoned in all our minds.
I want to approach this in a somewhat different way. I am
very concerned about the whole issue in question if you are not
right legally. Now, you make a very strong case in your
presentation here about the authority which you are acting on.
You talk about the authorization by the Congress. You talk
about inherent power. You talk about the President having the
authority and the power to do this. But there is, of course, a
very significant legal opinion to the contrary. There was
within your Department, thoughtful lawyers who questioned it,
constitutional authorities that have questioned it.
So we are taking really a risk with national security,
which I think is unwise. We are sending the wrong message to
those that are in the front lines of the NSA, that maybe
someday they may actually be prosecuted, criminally or civilly.
We are sending a message to the courts, that perhaps the
materials that we are going to take from eavesdropping or
signal intelligence, may not be used in the courts, in
prosecutions against al Qaeda, people we really want to go
after, because it was not done legally. We are sending a
message to the telephone companies that they may be under
assault and attack as well. There are already cases now brought
by individuals against the telephone companies. We have to get
it right, because if we do not get it right, we are going to
find that we have paid a very harsh price. Some of the
toughest, meanest and cruelest members of al Qaeda may be able
to use illegality in the court system to escape justice, maybe
or maybe not. But why take a chance?
We were facing the issue of electronic surveillance at
another time, in 1976, with Attorney General Ed Levi and
President Ford. They followed a much different course than you
have followed. Ed Levi came and consulted with us. Members of
this Committee went down and visited the Justice Department on
four different occasions. The memoranda that we have from that
period of time, the Buchen memoranda which are part of the
record, the concerns that the Attorney General had about
getting it right in terms of electronic surveillance,
uncertainty in courts, validity of evidence, cooperation of the
phone companies. And in a series of memoranda that go to the
President of the United States and discussions that were
actually held with Henry Kissinger, Don Rumsfeld, Ed Levi,
Brent Scowcroft, George Bush, lengthy discussions with others,
finally, the Attorney General said the main concern was whether
this legislative initiative would succeed or whether, as some
feared, the legislation which is actually passed would depart
in objectionable ways, so that they were not sure about what
Congress would do. But they dealt with the Congress and they
got FISA.
He later goes on to say, that already the Attorney General
has found key members of the Senate Judiciary receptive to the
legislation. And then finally, ``the Attorney General is
strongly of the opinion that you,'' the President, ``should
support the legislation as drafted. If you feel any hesitancy,
I'll come by and brief you.''
This is what we had 27 years ago: an Attorney General that
came up to the Judiciary Committee, had them come down and work
out FISA, and it passed with one dissenting vote in the U.S.
Senate. We might not have gotten it right, but certainly for
that period of time, that it got it right.
The question that I have for you is, why did you not follow
that kind of pathway which was so successful at a different
time? We had a Republican President and a Republican Attorney
General. We are talking about electronic surveillance. And as
you know from the FISA, there are very sensitive provisions
that were included in there that were directed against foreign
nationals that this Committee was able to deal with, and did so
in a responsible way. Why didn't you follow that pattern?
Attorney General Gonzales. Sir, the short answer is, is
that we did not think we needed to, quite frankly. I have tried
to make clear today that we looked at this issue carefully,
decided that neither the Constitution nor FISA, which
contemplated a new statute, would prohibit this kind of
activity from going forward.
I might also say this is a little different time from what
existed in 1976. Of course, we are at war, and we have briefed
certain Members of Congress. So it is not entirely true that we
did not reach out to the Congress and talk--certain Members of
the Congress and talk to them about this program and about what
we were doing.
Senator Kennedy. The point, I would say, is that we were
facing a nuclear threat. We have got terrorism now, but it was
a nuclear threat then. The cold war was in full flow at that
time. It was a nuclear threat at that time.
And you know what Attorney General Levi did? He took a day
and a half to have outside constitutional authorities advise
him on the questions of the constitutionality of the
legislation, a day and a half. Now, did you talk to any outside
authorities--not inside authorities that are going to give you,
quite frankly, probably what you want to hear--but did you
check any--the reason I question this, General, is because we
have been through the Bybee memorandum, we have been through
torture memoranda, where you and the OLC and the White House
Counsel thought that the Bybee memorandum was just fine. Then
we find out, during the course of your hearings, that it was
not fine, and it was effectively repealed, a year and a half
after it was in effect.
So it is against that kind of background of certainty, of
your view about its legality, and in-house review of the
legality. Some of us would have wondered whether you took the
steps that an Ed Levi, Republican Attorney General, on the same
subject, was willing to take, to listen to outside
constitutional authority, because as we have seen subsequently,
you have had difficulty in your own Department and you have had
substantial difficulty with constitutional authorities and
others who might not believe that you are correct. If you are
correct, we do not have a problem. If you are not correct, then
it is a step back in terms of national security.
My question to you is, looking at the national security
issue, would we not be in a stronger position if you had come
to the Congress and said, ``Let's get the kind of legislative
authority that we need, rather than take a chance.'' Wouldn't
our national security have been better defended if we did not
have any question as to the legality of this issue? Wouldn't
the people in the front lines of our national security be
better protected, and our court system better defended? And
when we are able to get those al Qaeda individuals, and they
know they do not have any loopholes by appealing illegal
eavesdropping, maybe then they would begin to talk and try to
make a deal. Maybe that would enhance our national security as
well.
Attorney General Gonzales. Well, sir, you have said a lot,
so I do not know--
Senator Kennedy. Yes, it is short time.
Attorney General Gonzales. Let me just say you are
absolutely right, we have got to have a very clear message, and
we cannot be wrong on this. I do not think that we are wrong on
this. Are we worried about the front line people down at NSA?
Of course we are. That is why the President, the day after the
story ran in the New York Times, went out to the American
people to reassure them this was not a situation where you had
an agency running amok, that he had authorized this activity,
and it was very narrowly tailored.
In terms of whether or not, are we concerned about
activities that may jeopardize investigations or prosecutions?
Absolutely, we are. That is the last thing we want to do. We do
not believe this program is--we believe this program is lawful.
We do not believe that prosecutions are going to be jeopardized
as a result of this program. Obviously, we are in litigation
now, so I do not want to say much more than that, but, of
course, we ought to be operating in a way where we are doing
what we need to do to protect our investigations and to protect
our prosecutions, and I think that we are doing that.
Senator Kennedy. My time is just about up. Thank you very
much, General.
Chairman Specter. Thank you very much, Senator Kennedy.
I want to acknowledge the presence in the audience of Ms.
Deborah Burlingame, who is the sister of Captain Charles F.
Burlingame, the pilot on American Airlines Flight 77, which
crashed into the Pentagon.
Would you like a break?
Attorney General Gonzales. If you are offering a break, Mr.
Chairman, yes.
Chairman Specter. Well, I am not going to offer you one
unless you want one.
[Laughter.]
Attorney General Gonzales. I am fine, sir. I will defer to
you, Mr. Chairman.
Senator Leahy. Take the break.
Attorney General Gonzales. I will take a break.
Chairman Specter. Let's take a vote here.
[Laughter.]
Chairman Specter. Ten-minute break.
[Recess from 11:06 a.m. to 11:14 a.m.]
Chairman Specter. Before proceeding, I would like to
acknowledge the presence of Ms. Monica Gabrielle and Ms. Mindy
Kleinberg whose husbands were in the World Trade Center at the
time of the 9/11 attack.
Mr. Attorney General, thank you for rejoining us, and we
turn now to Senator Grassley.
Senator Grassley. Thank you very much.
I am going to start with something that is just peripheral
to the issues we are on, but it does deal with our national
security, and it is the leak of this information to New York
Times. I am greatly concerned about this, and these leaks could
be putting our Nation's safety into serious jeopardy. Could you
tell us what is being done to investigate who leaked this
national security information, and whether the Department of
Justice will initiate a prosecution of an individual leaking
the information?
Attorney General Gonzales. Senator, we have confirmed--the
Department has initiated an investigation into possible crimes
here, and consistent with Department practice, I am not going
to talk much further about an ongoing investigation. Obviously,
we have to look at the evidence and if the evidence shows that
a crime has been committed, then, obviously, we will have to
make a decision about moving forward with a prosecution.
Senator Grassley. I do not blame you for this, but I do not
hear as much about public outcry about this leak as I did about
Valerie Plame and the White House disclosures of her--presumed
disclosures of her identity as a CIA agent, and to me, that is
a two-bit nothing compared to this sort of issue that we have
before us or this information being leaked to the press.
In the followup commentaries, reading the newspapers and
TV, you get the impression that this is some sort of an LBJ-J.
Edgar Hoover operation that is designed to skirt the law to spy
on domestic enemies. And I think you are making very clear the
opposite, that this is only concerned about the national
security of the United States, and that is where the focus
should be.
The constant repetition on the news media of the term
``domestic spying,'' as opposed to spying and electronic
surveillance of somebody outside the United States connected
with an organization that has as their goal the killing of
Americans, or the threatening of America, or the destruction
that happened on September the 11th is entirely two different
things, but when domestic spying is often used, you can
understand, General, the people having outrage maybe at what is
going on.
Also, for my colleagues on this Committee, it seems to me
that if we are doing our job right, we have got some problems.
Because let's just say the Attorney General is wrong in the
statutory and constitutional authority by which they proceeded
to do what they are doing. And yet, Members of Congress were
told about this program over a period of 4 years, a few Members
of Congress were, the appropriate ones were. Then all of a
sudden it hits the New York Times, and all of a sudden, then
that story breaks, Congressmen change their tune from the one
sung in private for 4 years, to outrage that this is going on.
So if Senator Grassley, who is not a member of that elite
group that has to be concerned about oversight of foreign
intelligence knows about it, and does not tell--if I were a
member and did not tell my colleagues about it, and then
express that outrage, where have I been as a member of that
group for the last 4 years? If something is wrong after the New
York Times reported it, there had to be something wrong before
the New York Times reported it. All of a sudden I see Members
of Congress who had that responsibility, if they really,
sincerely think it is wrong today, that were caught not doing
their job of congressional oversight as they should have,
informing the other Members of Congress that there is really
something wrong that the President is doing here.
So I think we in Congress have to do some looking, internal
looking of whether or not we are doing our job as well of
oversight.
I always to want to remind people in the United States that
what we are talking about here today is to make sure that
September the 11th does not happen again, and somehow we tend
to have short memories. We ought to remember that it happened
in Madrid, it happened in London, it happened in Amman, it
happened in a resort in Egypt, it happened in Bali twice, and
it has happened here. It can happen again. It seems to me that
what you are trying to tell us is the President is determined
to make sure that it does not happen in the United States
again, and that is what this surveillance is all about. Yes?
Attorney General Gonzales. Senator, he is absolutely
determined to do everything that he can, under the Constitution
and the laws of this country, to prevent another September 11th
from happening again.
Senator Grassley. And I think you are telling us that in
the case of people giving some information, that it is very
necessary to act with dispatch, that acting with dispatch or
not can be a matter of life or death for Americans.
Attorney General Gonzales. Absolutely. If we get
information that may lead us to other information about a
terrorist operating in this country, we may not have a matter
of days or weeks or months, which is sometimes the case with
respect to a FISA application, but we may not have that much
time to begin surveillance. And if we wait--and again, FISA has
been a wonderful tool and has been very effective in the war on
terror. But there are certain circumstances where the
requirements of FISA present challenges, and if we wait, we may
lose valuable information that may help us, it may help us get
information that might prevent another attack.
Senator Grassley. I had an opportunity to speak to you on
the phone recently, and I asked you to come ready to give us
some specific instances of when past Presidents have ordered
warrantless intelligence surveillance in the prosecution of a
war or to otherwise fulfill the Commander in Chief's duties. I
think that as the American public hears examples of how
Democrat Presidents and Republican Presidents alike have done
similar things, they may begin to see that this program, in a
different light, particularly in regard to the Presidents' over
225 years use of the exercise of the power of Commander in
Chief.
Attorney General Gonzales. I gave in my opening statement,
Senator, examples where President Washington, President
Lincoln, President Wilson, President Roosevelt, have all
authorized electronic surveillance of the enemy on a far
broader scale, without any kind of probable cause standard, all
communications in and out of the country. So, for example,
President Wilson, World War I, he relied upon his
constitutional authority, inherent constitutional authority,
and a use of force resolution, declaration of war, very
consistent with what we are dealing with today.
Senator Grassley. And December the 8th, '41, the day after
Pearl Harbor, FDR ordered the FBI to intercept any
communications between our country and any other country,
whether it be by mail or any other source.
Attorney General Gonzales. President Roosevelt did
authorize very broad surveillance of the enemy.
Senator Grassley. It is well established that the President
has a number of inherent constitutional powers. Today's hearing
and the two that will follow will give the Senate an
opportunity to analyze the President's case on
constitutionality. When Moussaoui was arrested, the FBI could
not look at his computer files and telephone contacts. That has
been changed so you can have that sort of communication now.
Could you tell us in the Department of Justice white paper
entitled Legal Authority Supporting the Activities of a
President doing this, the administration argued that ``The
President's power to authorize the NSA activities is at its
zenith,'' citing Justice Jackson's concurrence in the Sawyer
case. I guess you would call it the Youngstown case.
Would you, please, discuss the framework set by Justice
Jackson for determining how much deference a President should
be given, including why the administration believes that its
power in this regard is at its zenith?
Attorney General Gonzales. Yes, sir. I will try to in the
time remaining. Justice Jackson--
Senator Grassley. All I have to do is finish my question
before the time is up.
Attorney General Gonzales. Pardon me, Senator. Justice
Jackson laid out a three-part test in terms of determining
Presidential power. The first part is where the President is
exercising his authority with the concurrence in essence of
Congress. We believe that is what is occurring here. We believe
the authorization to use military force is such a concurrence
by Congress for the President to engage in this kind of
activity, and therefore, we believe the President's power is at
its zenith in this first category.
The second category is where the President is exercising
his constitutional authority in the absence of any
congressional action. And there Justice Jackson talked about
being sort in the zone of twilight and trying to ascertain
where the limits are between Presidential authority and
congressional authority. That is not the case here.
The third part was where the President is acting in
contravention--not in contravention, but in a way that is
incompatible with congressional action. In that particular
case, you looked at the President's constitutional authority
minus whatever constitutional authority Congress has.
So the question is in which category we are in. We believe
we are in the first category, that the Congress has, through
the authorization to use military force, provided its support
for Presidential action.
If in fact that is not the case, then we are in the third
category, and I submit, Senator, that this case is very
different from Youngstown, where we talked about the President
of the United States taking over domestic industry. We are
talking here about a core constitutional action by the
President, and a long history of Presidents engaging in
electronic surveillance of the enemy. So this is a much
different situation.
My judgment is, while these are always very hard cases, and
there is very little precedent in this matter, I believe that
even under the third part, that the President does have the
constitutional authority. I will just remind the Committee that
Chairman Roberts just recently submitted a letter to the
Committee, and he, himself, opined that he also believes that
if we were in the third category, that he believes that the
President does, would have the constitutional authority to
engage in these kinds of activities.
Chairman Specter. Thank you, Senator Grassley.
Without objection we will admit into the record the letter
from Senator Pat Roberts, Chairman of the Intelligence
Committee, to Senator Leahy and to myself, dated February 3rd
of this year.
Senator Biden.
Senator Biden. Thank you, Mr. Chairman. I hope Chairman
Roberts will see it is his responsibility to also hold
extensive hearings in a forum that is more appropriate, totally
secret. Thus far, I am told, he intends on not holding any,
which I find bordering on lacking any responsibility in terms
of congressional oversight, but I hope he will do as you have
done here.
General, there are two real issues here in my view, and I
am going to focus on one. That is the President's reassurance
as to what is exactly happening, where if in fact the only
people being wiretapped or e-mails read are al Qaeda operatives
contacting American citizens, I do not think you are going to
find anybody in America saying, ``Oh, my God, don't do that.''
What is really at stake here is the administration has made
assertions in the past, where their credibility has somewhat
been questioned. So it is not merely the constitutional reach
you have, it is what is actually happening, what is actually
going on. I am going to focus on that first, if I may.
How will we know, General, when this war is over?
Attorney General Gonzales. I presume the straightforward
answer, Senator, is that when al Qaeda is destroyed and no
longer poses a threat to the United States. Whenever that may
be--we know it is not today. We know we are still at war today.
We know we will probably be at war still tomorrow, and so we
know it still continues today.
Senator Biden. The truth is there is no definition of when
we are going to know whether we have won, because al Qaeda, as
the President points out, has mutated into many other
organizations that are not directly dealing with bin Laden and
are free agents themselves; is that correct?
Attorney General Gonzales. It is certainly true that there
are a number of terrorist groups who share many of the same
objectives of al Qaeda in terms of destroying America.
Senator Biden. So as long as any of them are there, I
assume you would assert you have this plenary authority?
Attorney General Gonzales. Well, Senator, obviously, if
Congress were to take some kind of action to say the President
no longer has the authority to engage in electronic
surveillance of the enemy, then I think that would put us into
the third part of Justice Jackson's three-part test, and that
would present a much harder question as to whether or not the
President has the authority. As I have already indicated in
response to Senator Grassley, I believe that under those
circumstances--and again, it is a hard question, and it may
have been irresponsible for me to offer up an opinion because I
would like to have to study it. I would like the opportunity to
study it. But I think the fact would present a much different
case than what we had in Youngstown v. Sawyer.
Senator Biden. Why if you--and I have read everything you
have submitted, and I was here when FISA was written. I was a
cosponsor. I was on the Intelligence Committee and on the
Foreign Relations Committee, and as the Ranking Member of the
Foreign Relations Committee, I was charged by the Democratic
leadership to be part of the small group to write the
authorization for the use of force, so I have been involved in
this. Does not mean I am right, but I have been deeply
involved.
As I understand your reasoning, I do not understand why you
would limit your eavesdropping only to foreign conversations.
In other words, al Qaeda communicating from Algeria--I am
making it up--or from France or Germany or wherever, to the
United States. That is the assertion, it is only emanating from
a foreign country, correct?
Attorney General Gonzales. Yes, sir.
Senator Biden. Why limit it to that?
Attorney General Gonzales. The authorization of the program
I am talking about--well, of course, that is a Presidential
decision, and I believe, Senator--now I am purporting to speak
for the President, but I believe it is because of trying to
balance concerns that might arise that in fact the NSA was
engaged in electronic surveillance with respect to domestic
calls. So there was a decision made that this is the
appropriate balance. There may be some in America, I suspect
there are some in America who are saying, ``Well, you know, if
you've got reason to believe that you've got two members of al
Qaeda talking to each other in America, my God, why aren't you
listening to their conversations?''
Again, this was a judgment made that this was the right
balance between the security of our country and protecting the
privacy interests of Americans.
Senator Biden. Well, the President said he would do
everything under the law to prevent another 9/11. The
communications that occurred within this country, not outside
this country, which, in fact, brought about 9/11 would not be
captured by the President's efforts here. Is he refusing to do
it for public relations reasons, for appearance reasons, or
because he thinks he does not have the constitutional authority
to do it?
Attorney General Gonzales. I don't believe that it is a
question of constitutional authority. That analysis, quite
frankly, had not been conducted. It is not a question of public
relations. In his judgment, it was the appropriate thing to do
given the circumstances that we find ourselves in.
Senator Biden. Who determines what calls or e-mails are to
be monitored?
Attorney General Gonzales. The decisions as to which
communications are to be surveilled are made by intelligence
experts out at NSA. As I indicated, I believe, in response to
an earlier question, these are individuals who are expert in al
Qaeda's aims, objectives, communications. I have heard General
Hayden say that they are the best at what they do. They know
about al Qaeda, and they would probably be in the best
position, better than certainly any lawyer, in evaluating
whether or not there are reasonable grounds to believe that
this person is an agent or member of al Qaeda or an affiliated
terrorist organization.
Senator Biden. How many of them are there?
Attorney General Gonzales. Senator, I do not know.
Senator Biden. There are thousands of people who work for
NSA. It would be useful for us to know. Are there two people?
Five people? Twenty-five people? Two hundred and fifty people?
A thousand people?
Attorney General Gonzales. Senator, I don't know the exact
number of people out at NSA who are working on this program. As
I indicated to you, the people that are making the decision
about where the surveillance should occur are people that are
experts with respect to al Qaeda.
Senator Biden. Well, what are the guidelines? Are there any
written guidelines they are bound by?
Attorney General Gonzales. Senator, there are guidelines.
There are minimization procedures. As you know, there are
minimization procedures for the work of NSA with respect to its
collection activities under FISA, with respect to its
collection activities under 12333, Executive Order 12333. There
are minimization requirements that are generally comparable
with respect to this program.
I understand there is also a monthly sort of senior
directors' meeting, due diligence meeting out at NSA, where
they talk about how the program is going. They evaluate how the
program is going, try to identify if there are any problems.
And so they spend a great deal of time making sure the program
is being authorized in a way that is consistent with the
President's authorization.
Senator Biden. By definition, you have acknowledged,
though, the very minimization programs that exist under FISA
you are not bound by. You have acknowledged that you are not
bound by FISA under this program; therefore, are you telling me
the minimization programs that exist under FISA as the way FISA
is applied are adhered to?
Attorney General Gonzales. OK. I am sorry if I was
confusing in my response. What I was meaning to say is that
there are minimization requirements. Those minimization
requirements are basically consistent with the minimization
requirements that exist with respect to FISA if FISA were to
apply.
Senator Biden. Would it be in any way compromise the
program if you made available to the Intelligence Committee
what those minimization procedures that are being followed are?
Attorney General Gonzales. Well, of course, the
minimization procedures themselves under 12333, and I believe
perhaps under the FISA Court, are classified. I also believe
they probably have been shared with the Intel Committee.
Senator Biden. They have not, to the best of my knowledge.
They have not been shared with the Intelligence Committee, to
the best of my knowledge, unless you are talking about this
very small group, the Chairman and the Ranking Member.
Attorney General Gonzales. Senator, I am talking about the
minimization procedures for 12333 and for FISA.
Senator Biden. Let me be very precise. I have not heard of
NSA saying to the Intelligence Committee, ``We are binding
ourselves as we engage in this activity under the minimization
procedures of 12333 as well as statutes.'' I am unaware that
that is written down or stated anywhere or been presented to
the Intelligence Committee. Can you assure us that has been
done?
Attorney General Gonzales. No, Senator, I can't assure you
that.
Senator Biden. Can you assure us, General, that you are
fully, totally informed and confident that you know the
absolute detail with which this program is being conducted? Can
you assure us, you personally, that no one is being
eavesdropped upon in the United States other than someone who
has a communication that is emanating from foreign soil by a
suspected terrorist, al Qaeda, or otherwise?
Attorney General Gonzales. Senator, I can't give you
absolute assurance--
Senator Biden. Who can?
Attorney General Gonzales [continuing]. The kind that you
have asked for. Certainly General Hayden knows more about the
operational details of this program. What I can give the
American people assurance of is that we have a number of
safeguards in place so that we can say with a high degree of
confidence or certainty that what the President has authorized
in connection with this program, that those procedures are
being followed.
Senator Biden. Mr. Chairman, my time is up. This is why the
Intelligence Committee has a responsibility to be able to look
at someone and have an absolute, guaranteed assurance that
under no circumstance is any American being eavesdropped upon
unless it is coming from foreign soil and a suspected
terrorist, and do it under oath and do it under penalty of law
if they have misrepresented. I am not suggesting the Attorney
General can do that. We have got to find out who can do that.
Chairman Specter. Thank you, Senator Biden.
Senator Leahy?
Senator Leahy. Mr. Chairman, just for Senator Biden's
round, you put into the record the letter from Senator Roberts
that was sent to the two of us concerning the authority. I want
to place in the record a letter from Bruce Fein, formerly a
senior Justice Department official in the Reagan
administration, basically responding to Senator Roberts's
letter. I mentioned earlier that Mr. Fein was very critical of
this program. In fact, at that point, why don't I just put in--
I have a number of things here, if I could.
Chairman Specter. Without objection, the letter from Mr.
Bruce Fein will be made part of the record. And do you have
other unanimous consent requests?
Senator Leahy. For other material regarding this hearing,
if I might put them all in the record.
Chairman Specter. Without objection, those materials will
be made a part of the record.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. Thank you, Mr.
Attorney General.
I think it is very interesting how the argument over this
program has evolved in the last several weeks from initial
concerns about the program itself now to some very different
questions. And I think it is a good evolution because I doubt,
if we polled the members of this Committee today, that there
would be anybody who would vote against the conduct of this
particular kind of surveillance.
There was then the suggestion that while the program is
good, it is being conducted illegally. That was the charge, and
I would submit a very serious charge, that the Ranking Member
made earlier in his remar
