U.S. Senate Judiciary Committee Holds a Hearing on Wartime Executive Power and the NSA's Surveillance Authority
Monday, February 6, 2006; 3:05 PM
FEBRUARY 6, 2006
U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
U.S. ATTORNEY GENERAL
SPECTER: It's 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 that was the exclusive way for electronic surveillance.
There is beyond, a constitutional issue as to whether the president has inherent powers under Article 2 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.
SPECTER: 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 and that 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. And 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. And 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; and, beyond that, the issue as to 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.
SPECTER: The Foreign Intelligence Surveillance Court has a great reputation for integrity, 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.
And 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, following up on the letter, is the practice of making disclosures only to the so-called gang of eight -- the speaker and the Democratic leader in the House, the majority leader and the Democratic leader in the Senate and the chairman and vice president (sic) of the two Intelligence Committees -- and the adequacy of that in terms of the statute, which calls for disclosure to the committees. And 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.
SPECTER: 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've 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. He 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 the 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'm 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; that if lawyers are concerned that what they write may later be subjected to review by others, they'll be less than candid in their positions.
SPECTER: This committee has faced those issues in recent times with requests for internal memoranda of Chief Justice Roberts. And 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 who are as capable as the Department of Justice in interpreting the law.
One other issue has arisen, and that is the issue of showing a video. And 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'm sure that those statements by the president, those statements by you, will receive considerable attention by this committee.
That's longer than I usually talk, but this is a very big subject.
FEINGOLD: Mr. 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, beyond statutory interpretation and the constitutional implications of the president's Article 2 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 response of the attorney general in being willing to come here today, and then the Supreme Court to resolve any conflicts.
SPECTER: I'd like to yield now to...
FEINGOLD: Mr. Chairman, could I just ask a quick clarification?
SPECTER: Senator Feingold?
FEINGOLD: 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?
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 their might be a showing, Senator Feingold, to warrant swearing.
FEINGOLD: Mr. Chairman, I'd 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're going to be asking about similar things, that he should be sworn in this occasion, as well.
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's going to be brought up during this hearing, and we should go into it.
LEAHY: I also recall the chairman and other Republicans insisting that former Attorney General Reno be sworn, which she came up here on occasions other than her confirmation.
I think, especially because of the article about the questions of the senator from Wisconsin, Senator Feingold, I believe he should have been sworn. That is, obviously, the prerogative of the chairman.
But I would state again, and state strongly for the record, what I've 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 did on -- insisted with then-Attorney General Reno, I believe he should be sworn.
SPECTER: Well, Senator Leahy and I have not disagreed on very much in the more than a year since we've worked together as the ranking and chairman, and I think it's strengthened the committee.
And I did receive your request. And I went back and I dug out the transcript and reviewed Senator Feingold's vigorous cross- examination of the attorney general at the confirmation hearings.
And I know the issues as to torture, which Senator Feingold raised, and the issues which Senator Feingold raised as to searches without warrants.
And I have reviewed the provisions of 18 USC 1001 in the case involving Admiral Poindexter, who was convicted under that provision; and have reviewed the provisions of 18 United States Code 1505, where Oliver North was convicted. And there are penalties provided there commensurate with perjury.
And it is my judgment that it is unnecessary to swear the witness.
LEAHY: But, Mr. Chairman, may I ask, if the witness has no objection to being sworn, why not just do it and then not have this question raised here? I realize only the chairman can do the swearing in.
LEAHY: Otherwise, I'd offer to give him the oath myself, insofar as he said he was willing to be sworn in. But if he's willing to be, why not just do it?
SESSIONS (?): Mr. Chairman...
SPECTER: Well, the answer to why I'm not going to do it is that I've examined all the facts and I've examined the law and I have asked the attorney general whether he would object or mind and he said he wouldn't. And I have put that on the record.
But the reason I'm not going to swear him in is not up to him. Attorney General Gonzales is not the chairman; I am. And I'm going to make the ruling.
LEAHY: I would point out that he's been here before this committee three times. The other two times he was sworn. It seems unusual not to swear him in this time.
FEINGOLD (?): Chairman, I move the witness be sworn.
SPECTER: The chairman has ruled. If there is an appeal from the ruling of the chair, I have a pretty good idea how it's going to come out.
FEINGOLD (?): Mr. Chairman, I appeal the ruling of the chair.
SPECTER: All in favor of the ruling of the chair, say "aye."
(UNKNOWN): Roll call.
FEINGOLD (?): Ask for a roll call vote.
SPECTER: The clerk will call the roll.
I'll call the roll.
SESSIONS: Out of the question.
SPECTER: Senator Hatch?
SPECTER: Senator Grassley?
SPECTER: Senator Kyl?
KYL: Mr. Chairman, is the question to uphold or to reject the ruling?
SPECTER: The question is to uphold the ruling of the chair, so we're looking for ayes, Senator.
LEAHY: But we're very happy with the noes that have started on the Republican side, they being the better position.
HATCH (?): I'm glad somebody clarified that.
SPECTER: So the question is, "Should the ruling of the chair be upheld that Attorney General Gonzales not be sworn?"
SPECTER: By proxy for Senator Brownback, aye.
SPECTER: We've got enough votes already.
LEAHY: Emphatically, no.
The ayes have it.
FEINGOLD: Mr. Chairman, I request to see the proxies given by the Republican senators.
SPECTER: Would you repeat that, Senator Feingold?
FEINGOLD: I request to see the proxies given by the Republican senators.
SPECTER: The practice is to rely upon the staffers. But without counting that vote -- well, we can rephrase the question if there's any serious challenge of the proxies.
This is really not a very good way to begin this hearing.
SPECTER: But I've found that patience is a good practice here.
SESSIONS: Mr. Chairman (OFF-MIKE) 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'll have a perfect answer to those questions when they come up at this hearing.
And I do not believe they're going to show he perjured himself in any way or was inaccurate in what he said.
And I remember having a conversation with General Myers 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 are not trustworthy in matters relating to the defense of this country.
And I think it's 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 don't tell the truth.
I think it's just a question of propriety and good taste and due respect from one branch to the other.
And that's why I would support the chair.
LEAHY: Mr. Chairman, I don't...
SPECTER: Let's not engage in protracted debate on this subject. We're not going to swear this witness, and we have the votes to stop it.
LEAHY: Mr. Chairman, I have 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.
LEAHY: The question facing us is not whether the government should have all the tools it needs to protect the American people. Of course, they should. Every single member of Congress agrees they should have 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's why I coauthored the Patriot Act five years ago and why it passed with such broad, bipartisan support.
And I would also remind everybody that's 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 Qaida terrorists calling we should be wiretapping them. We don't 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 Qaida messages legally, with checks to guard against abuses with Americans' conversations and e-mails that 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 monitory an Al Qaida 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'm glad the chairman's 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 investigation.
And if Congress is going to serve the role it should, instead of being a rubber stamp for whoever is in the executive, we have to have these kind of oversights.
The domestic spying program 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's issued secret orders to do this more than 30 times.
LEAHY: We've asked for those presidential orders allowing secret eavesdropping on Americans. They have not been provided.
We've asked for official legal opinions of the government that the administration says justify this program. They too have been withheld from us.
Now, the hearing is expressly about the legality of this program. It's not about the operational details; it's 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're an oversight committee of the United States 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's 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 don't have the power to decide what laws to ignore. They cannot violate the laws and 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 did not know about the president's secret spying program. I hope we're going to get some more 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's not authorized under this is a federal crime. That is what the law says, so it's 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.
Now, 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 early government officials.
LEAHY: After some of the so-called White House enemies in the Nixon White House enemies list -- during that time, another president asserted he did what was legal because he was president and, being president, he could do whatever he wanted to do.
The law's been updated five times since September 11, 2001. It provides broad and flexible authority.
In fact, on July 31st, 2002, your Justice Department testified, "This law is a highly flexible statute that's been proven effective." You noted, when you were 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 period of the last four or five 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.
And point two: The authorization for the use of military force Democratic and Republican lawmakers joined together to pass in the days immediately after the September 11th 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.
You know, let me be clear: Some Republican senators say that we're 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 Qaida.
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.
LEAHY: But my concern is the laws of America. My concern is when we see peaceful Quakers being spied upon, where we see babies and nuns who can't fly on airplanes because they're 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.
And after September 11th, 2001, I led an bipartisan effort to provide the legal tools. We passed amendments to FISA. We passed the U.S. Patriot Act. And we upgraded FISA four times since then.
Back when a Republican senator on this committee proposed a legal change to the standards needed for a FISA warrant, the Bush administration didn't support that effort, but raised questions about it and said it wasn't needed.
The administration told the Senate that FISA is working just fine.
You, Mr. Attorney General, said the administration did not ask for legislation authorizing warrantless wiretapping of Americans; did not think such legislation would pass.
Who did you ask? You didn't ask me. You didn't ask Senator Specter.
Not only did the Bush administration not seek broader legal authority, it kept its 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 has not suggested to Congress, the American people that FISA was inadequate, outmoded or irrelevant. You never did that until the press caught you violating the statute with this secret wiretapping of Americans without warrants.
In fact, in 2004, two years after you authorized the secret warrantless wiretapping program -- and this is a tape we're told we can't show -- the president said, quote, "Any time you hear the United States 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."
LEAHY: That was when he was running for re-election. Today we know, at the very least, that statement was misleading.
So 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 coequal branch of government and we make the laws. If you believe you need new laws, then come and tell us. If Congress agrees, we'll amend the law.
If you do not even attempt to persuade Congress to amend the law, then you're required to follow the law as it's written.
That is true of the president, just as it's true of me and you and every American. That's a rule of law. That's a rule on which our nation was founded. That's the rule on which it endures and prospers.
Thank you, Mr. 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 for a bachelor's degree, and from the Harvard Law School, and was a partner in the distinguished firm of Vinson & 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.
GONZALES: Good morning, Chairman Specter, Senator Leahy and members of the committee. I'm 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.
GONZALES: I also said that my answers would be the same, whether or not I was under oath or not.
Al Qaida and its affiliates remain deadly dangerous. Osama bin Laden recently warned America that, quote, "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 I 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 Qaida 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, counter-intelligence and counter-surveillance techniques. And their tactics 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.
GONZALES: 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 telephones.
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'm 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.
GONZALES: It's 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 Qaida or an affiliated terrorist organization. As the president has said, if you're talking with Al Qaida, we want to know what you're 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 Qaida 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.
GONZALES: 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 consistent with our Constitution. Under Article 2, the president has the duty and the authority to protect America from attack. Article 2 also makes the president, in the words of the Supreme Court, quote, "the sole organ of government in the field of international relations."
These inherent authorities vested in the president by the Constitution include the power to spy on enemies like Al Qaida 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, quote, "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, quote, "All the other courts who 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, quote, "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, 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 has 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 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.
GONZALES: 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, quote, "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 any 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 programs qualifies as electronic surveillance under FISA, it complies fully with the law.
This is especially so in light of the principle that statues should be read to avoid serious constitutional questions, a principle that has no more important application than during wartime.
GONZALES: By its plain terms, FISA prohibits the government from engaging in electronic surveillance, quote, "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 FISA's safety valve.
Just as the 1978 Congress anticipate, 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 Qaida. 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, quote, "to use all necessary and appropriate force against Al Qaida."
GONZALES: This is a very broadly worded authorization. It is also one that must permit electronic surveillance of those associated with Al Qaida.
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's a necessary and appropriate use of force to fire bullets and missiles at Al Qaida strongholds. Given this common ground, how can anyone conclude that it is not necessary and appropriate to intercept Al Qaida 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 Qaida.
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 Qaida.
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.
GONZALES: 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 Qaida. Instead, they authorize the use of all necessary and appropriate force.
Nor does the force resolution require the president to fight Al Qaida only in foreign countries. The preamble to the force resolution acknowledges the continuing threat, quote, "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 Qaida is authorized by the force resolution as an incident of waging war, how can it be that merely listening to Al Qaida 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 tradition 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've asked, "Why not FISA?" do not understand how that statute really works.
GONZALES: 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 the requirements of the statute. And then lawyers at the Justice Department must also review the request 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 courts within three 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 mass 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 Qaida, 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 Qaida.
Just as we can't 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 can't 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 Qaida operatives in real time.
GONZALES: 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 had been briefed on the details of its operation.
To end the program now would be to afford our enemy dangerous and potential 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 of what I can say about operational details.
Our enemy is listening. And I cannot help but wonder if they aren't 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.
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.
SPECTER: You're an experienced witness. And we will try to make our questions as pointed, as brief, as each senator sees it appropriate.
LEAHY: Mr. Chairman, could I also ask that we have, for the record, the statement that the attorney general has -- well, obviously, the statement 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?
SPECTER: Is there a difference between the two statements, Mr. Attorney General?
GONZALES: Sir, there is a difference between the written statement and the oral statement, yes, sir.
SPECTER: They're the same?
GONZALES: There is a difference, sir. They're not the same.
SPECTER: Well, both will be made a part of the record.
LEAHY: Thank you.
SPECTER: All right. Now for the 10-minute rounds.
Mr. Attorney General, starting with the FISA Court: well- respected, maintains secrecy, experienced in the field -- and 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?
GONZALES: Senator, I totally agree with you that the FISA Court should be commended for its great service. They are working on weekends, they're working at nights...
SPECTER: Now on to my question.
GONZALES: ... assisting us in the war on terror.
In terms of, "Why not 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 in a way that...
SPECTER: OK, you think you're right. But there are a lot of people who think you're wrong.
As a matter of public confidence, why not take it to the FISA Court? What do you have to lose if you're right?
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 Qaida.
SPECTER: Well, speaking for myself, I would urge the president to take this matter to the FISA Court. They're experts. They'll maintain the secrecy. And let's see what they have to say.
SPECTER: Mr. Attorney General, did Judge Robertson of the FISA Court resign in protest because of this program?
GONZALES: I do not know why Judge Robertson resigned, sir.
SPECTER: Has the FISA Court declined to consider any information obtained from this program when considering warrants?
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.
SPECTER: So if you have information that you're submitting to the FISA Court in support for a warrant, you tell them that it was obtained from this program?
GONZALES: Senator, I am uncomfortable talking in great detail about how this information is generally shared.
What I can say -- 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 formed the basis of an application.
SPECTER: I'm not asking you how you get the information from the program. I'm 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.
GONZALES: Senator, I believe that getting into those kind of details is getting into the details 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 very open and very candid discussion and relationship with the FISA Court. To the extent that we're 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.
SPECTER: I'm not going to press you further. But I'd ask you to reconsider your answer.
GONZALES: Yes, sir.
SPECTER: In your response to my letter, you said this, quote: "No communications are intercepted unless it is determined that" -- and then I'm leaving some material out -- "a party to the communication is a member or agent of Al Qaida or an affiliated terrorist organization."
You're representing to this committee that before there's an interception, there's a determination that one of the parties is a member of Al Qaida, an agent of Al Qaida or an affiliated terrorist organization. Is that true?
GONZALES: Sir, I believe that General Hayden, the deputy director of intelligence, yesterday, confirmed that before there is any interception, there is a determination made by an intelligence officers at NSA that, in fact, we have reasonable grounds to believe that one party in the communication is a member or agent of Al Qaida or an affiliated terrorist organization.
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 as very important statement. And if we were really sure that you were dealing only with the communication where you have a member of Al Qaida, an agent of Al Qaida or an affiliate of Al Qaida terrorist organization, it would be one thing, because the concern is that there is a broad sweep which includes people who have no connection with Al Qaida.
What assurance 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?
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 that, to 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 Qaida tactics and Al Qaida communications, Al Qaida 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 Qaida or a member of an affiliate organization.
The inspector general, as I've indicated, has been involved in this program from its early stages. There are monthly...
SPECTER: Mr. Attorney General, let me interrupt you, because I want to cover a couple more questions and time is fleeting. And I think you've given the substance of the response.
We have contacted former Attorney General Ashcroft about his availability to testify before this committee, and he hasn't said yes and he hasn't said no.
SPECTER: He's considering it.
I believe that the testimony of former Attorney General Ashcroft would fall under a little different line than line attorneys within the department who are giving information and the concern about having a chilling effect if they know their views are later to be determined.
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?
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'm 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.
SPECTER: That's all we'd ask him about. We would ask him about the operations.
I take it I heard you correctly, you would not have an objection?
GONZALES: Senator, this committee, of course, can ask who they want to ask come before the committee.
SPECTER: No, no, I know we can ask. A totally different question as to what we hear in response.
He hasn't told us that he's going to look to the Department of Justice, but I think he'd feel more comfortable knowing that you had no objection.
I thought I heard you say earlier that you didn't have an objection.
GONZALES: Senator, I don't think I would have an objection.
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 -- whether Congress intended for that in generalized resolution to carry an authorization for this electronic surveillance in distinction to the Foreign Intelligence Surveillance Act, you were quoted as saying, quote, "That was not something that we could likely get."
Now, that's different from the response you had that it might involve disclosures. But I'll limit it to just this one question.
If this is something you could not likely get, then how can you say Congress intended to give you this authority?
SPECTER: Let the record show my red light went on with the conclusion of the statement.
GONZALES: ... in that same press conference, I clarified that statement. And then at, I think, the next press conference -- I was there with Mike Chertoff -- I clarified that statement.
And 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.
SPECTER: Thank you very much.
LEAHY: Mr. Chairman, you raised some interesting points, and I -- listening to the attorney general who's now arguing that the president's wiretapping on Americans without a warrant is legal, it does not violate the controlling law, the Foreign Intelligence Surveillance Act -- he's given a fancy name to the president's surveillance, but I'd remind him that the terrorist surveillance program is the FISA law, which we passed -- I think you are violating an express provision of the act.
LEAHY: Let me just ask you a few questions that could easily be answered yes or no.
I'm not asking about operational details, I'm trying to understand when the administration came to the conclusion that the congressional resolution authorizing military force again Al Qaida, where we had hoped that we would actually catch Osama bin Laden, the man who hit us -- but where 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 14th, 2001?
GONZALES: Senator, what I can say is that the program was initiated subsequent to the authorization to use military force.
LEAHY: Well, then, let me...
GONZALES: And our legal analysis was completed prior to the authorization of that program.
LEAHY: So your answer is you did not come to that conclusion before the Senate passed the resolution on September 14th, 2001?
GONZALES: Sir, I certainly had not come to that conclusion. There may be others in the administration who did.
LEAHY: Were you aware of anybody in the administration that came to that conclusion before September 14th, 2001?
GONZALES: Senator, sitting here right now I don't have any knowledge of that.
LEAHY: Were you aware of anybody coming to that conclusion before the president signed the resolution on September 18th, 2001?
GONZALES: No, sir.
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...
LEAHY: Mr. 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 Qaida, and especially to go after Osama bin Laden, the man that we all understood masterminded the attacks, the man who's still at large.
LEAHY: 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 18th, 2001? You were the White House counsel at the time.
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.
LEAHY: When was that?
GONZALES: It was subsequent to the authorization to use military force.
GONZALES: Sir, it was just a short period of time after the authorization to use military force.
LEAHY: Was it before or after NSA began its surveillance program?
GONZALES: Again, the NSA did not commence the activities under the terrorist surveillance program before the president gave his authorization.
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.
LEAHY: So NSA didn't do this until the president gave them the green light that they could authorize warrantless wiretapping of Americans inside the United States, under the circumstances you described in your earlier testimony.
GONZALES: Of course, Senator, the NSA has other authorities to engage in electronic surveillance, and I'm told that they...
LEAHY: I understand that. But I'm talking about the specific program.
GONZALES: ... and I'm told they took advantage of those authorities.
But it's my understanding -- and I believe this to be true -- that the NSA did not commence in the kind of electronic surveillance which I am discussing here today prior to the president's authorization.
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?
GONZALES: Sir, I don't know. I don't know when he gave you those proposals.
LEAHY: Well, we enacted the USA Patriot Act in October 2001. And you were there at the signing ceremony. 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?
GONZALES: I'd have to go back and check. I don't know.
LEAHY: OK, you're going to back here this afternoon. Please check because I'll ask you this question again, and you'll have a chance to ask. I'm looking around the room, you've got an awful lot of staff here. Let's have that answer before.
You were there when he signed the act. Let us know when his first authorization -- whether it was before or after he signed that act.
GONZALES: Sir, may I make a statement?
We believe the authorization to use military force constituted statutory grant of authority to engage in this kind of surveillance and therefore...
LEAHY: Did you, with the first...
GONZALES: ... wouldn't be necessary to seek an amendment to FISA through the Patriot Act.
LEAHY: OK. My question still remains, and I, like Senator Specter, I want -- I'm trying to ask these basic things you could answer yes or no.
You talk about authorization for use of military force. We have a chart up over there; says that, "The president is authorized to use all necessary and appropriate force against those nations, organizations of persons that he determines planed, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001, or harbored such organizations of persons, in order to prevent future acts of international terrorism against the United States by such nations, organizations or persons."
Now, basically, what you're saying is that Congress must have 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 prosecutors here, we know what a wiretap statute looks like. This is not it.
So let me ask this: Under that logic, is there anything that stops you from wiretapping without a warrant somebody inside the United States that you suspect of having Al Qaida connections?
GONZALES: Clearly, Senator, that is not what's going on here, first of all.
The president had authorized a much more narrow program.
GONZALES: 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.
LEAHY: Well, Mr. Attorney General, we're getting the impression that this administration's, 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 that's authorizing wiretapping of Americans without a warrant?
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.
LEAHY: But there wasn't a law -- they didn't have a law specifically on this.
GONZALES: Sure they did, sir.
LEAHY: Using the Jackson test, they have a law on wiretapping. It's called FISA. It's called FISA. And if you don't like that law, if that law doesn't work, why not just ask us?
GONZALES: Sir, there was a law at question in Hamdi. It was 18 USC 4001(a). And that is: You cannot detain an American citizens except as authorized by Congress.
And Hamdi came into the court saying, "The authorization to use military force isn't 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.
SPECTER: Well, then, let me ask you this.
Under your interpretation of this, can you go in and do mail searches? Can you go into e-mails? Can you open mail? Can you do black-bag jobs?
And under the idea that you don't have much time to go through what you described as a cumbersome procedure, what most people think is a pretty easy procedure, to get a FISA warrant, can you go and do that of Americans?
GONZALES: Sir, I've tried to outline for you and the committee what the president has authorized, and that is all that he has authorized.
LEAHY: Did it authorize the opening of first-class mail of U.S. citizens? That you can answer yes or no.
GONZALES: There is all kinds of wild speculation about...
LEAHY: Did it authorize it?
SPECTER: Let him finish.
GONZALES: There is all kinds of wild speculation out there about what the president has authorized and what we're actually doing. And I'm not going to get into a discussion, Senator, about...
LEAHY: Mr. Attorney General, you're not answering my question. I'm not asking you what the president authorized.
Does this law -- you're 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?
GONZALES: Senator, I think that, again, that is not what is going on here.
We're only focused on international communications where one part of the communication is Al Qaida. That's what this program is all about.
LEAHY: You haven't answered my question .
Well, Mr. Chairman, I'll come back to this. And the attorney general understands there's some dates he's going to check during the break, and I'll go back to them.
SPECTER: Thank you, Senator Leahy.
HATCH: Well, this is a very interesting set of issues and a lot of constitutional issues for people who are watching this.
We've got -- in addition to all kinds of constitutional issues about interpreting statutes, you've got the canon of constitutional avoidance here; that is a very important rule in constitutional law. You've got the vesting cause, vesting power in the president. You've got inherent executive authority that people seem to just brush aside here.
HATCH: They'll talk in terms of, "Well, Congress is coequal with the president," but they don't ever really talk in terms of the president being coequal with the Congress. Or the past laws, you've 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's my understanding -- as I've reviewed this and as I've 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?
GONZALES: It is a fair statement, Senator, that all the courts 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.
HATCH: That's what the Katz v. U.S. case seemed to say, isn't it, that wiretapping to protect the security of the nation has been authorized by successive presidents? Is that correct?
GONZALES: It is certainly the case that successive presidents, particularly during a time of war, have authorized warrantless searches.
HATCH: And you're relying in the Hamdi case as well, where a majority of the court basically authorized the president exceptional powers under the authorize use of military force statute.
GONZALES: I wouldn't say they are exceptional powers. I think that they are traditional powers of a president under time of war.
HATCH: OK, then U.S. v. Truong. That was a 1983 case.
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.
HATCH: That was a case after the enactment of the FISA law, right?
GONZALES: It was a case after the enactment of FISA. But I think, to be fair, I don't think the court did a rigorous analysis about how FISA affects the analysis. But here was a decision by the court that the president had the inherent authority.
HATCH: Yes, that's the important part of the case, as far as I'm concerned.
U.S. v. Latenka (ph) -- that's a 1974 case -- before FISA; U.S. v. Brown, U.S. v. District Courts and the so-called Keith case.
GONZALES: The Keith case was where the court, for the first time, said that electronic surveillance for domestic security purposes is subject to the Fourth Amendment.
HATCH: Well, Haig v. Agee -- that's a 1981 case, again after FISA -- says that, "Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention."
That's a recognition that the president has to make some decisions, right?
If I could just follow up, 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.
HATCH: What about the Prize cases? They're very well-known cases, culminating in the case that quotes the Prize cases, in Campbell v. Clinton.
GONZALES: Again, there are a number of cases that recognize the president's inherent constitutional authority, particularly in a time of war...
HATCH: And the president's independent authority. Is that correct? That's that Campbell v. Clinton says.
GONZALES: ... to engage in surveillance in order to protect our country.
HATCH: In fact, there's a 2002 case, In Re. Sealed Case, right?
GONZALES: In Re. Sealed Case, as I said in my statement...
HATCH: I mean, that's a case decided by the FISA Court of Review, the actual FISA Court, right?
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.
HATCH: It couldn't encroach on the president's constitutional powers.
GONZALES: That's correct.
HATCH: So people who are wildly saying that the president is violating the law are ignoring all these cases that say that -- or 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.
GONZALES: And I want to emphasize, Senator, this is not a case of where we're saying FISA -- we're overriding FISA or we're ignoring FISA. Quite the contrary: We're interpreting the authorization to use military force as a statutory grant.
HATCH: You use FISA all the time, don't you?
GONZALES: FISA is an extremely important tool in fighting the war on terror.
GONZALES: And I know today there's going to be some discussion about whether or not we should amend FISA.
I don't 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 the peacetime.
And so when you're talking about domestic surveillance during peacetime, I think the procedures of FISA, quite frankly, are quite reasonable.
And so that's 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 the president has authorized, I'm concerned will jeopardize this program.
HATCH: They may even encroach on the inherent powers of the president, right?
GONZALES: Yes, sir.
HATCH: Well, let me just say this to you.
As I view your arguments, and we are faced with a war unlike any other war we've ever been in, we're faced with a war of international terrorists -- that's one reason we did the Patriot Act, was to bring our international anti-terrorism laws up to the equivalent of domestic criminal laws.
And you're saying that -- and I have to say I find some solace in this -- you're saying that when Congress, through a joint resolution, authorized the use of military force and 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.
GONZALES: This is an example of Congress exercising its Article 1 powers to pass legislation so that the president, in exercising his inherent authorities under Article 2, has all the authority that he needs to fight Al Qaida.
HATCH: Well, the authorize use of military force resolution, which is a joint resolution of both houses of Congress, declared that the nation faces, quote, "an unusual and extraordinary threat," unquote, 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, quote, "to use all necessary and appropriate force," unquote, against those he determines are linked to the September 11th attacks.
Now, that sweeping language goes a lot further than the usual single-sentence declaration of war, right?
GONZALES: It is a very broad authorization, which makes sense. I don't think anyone in those days and weeks, certainly not in the Congress, were thinking about cataloguing all 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," means 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.
HATCH: So you're relying on an act of Congress, a joint resolution; you're relaying on the inherent powers of the president to protect our borders and to protect us; and you're relying on the Fourth Amendment, which allows reasonable searches and seizures in the best interest of the American public. Is that a fair analysis?
GONZALES: That is a fair analysis, yes, sir.
HATCH: My time is up.
SPECTER: Thank you, Senator Hatch.
KENNEDY: Thank you, Mr. Chairman.
And 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.
GONZALES: Thank you, Senator.
KENNEDY: And I think all of us remember the time of 9/11 -- I certainly do, being actually with Mrs. Bush just before her testimony on an education hearing. It's a moment that is emblazoned in all our minds.
Now, I want to approach this as a somewhat different way in the questioning. I'm very concerned about the whole issue in question, if you're not right legally.
Now, you make a very strong case in your presentation here about the authority in 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 very important, thoughtful lawyers that were in the Department of Justice who questioned it, constitutional authorities that have questioned it.
So we're taking, really, a risk, I think, with national security, which I think is unwise.
KENNEDY: We're sending the wrong message to those that are on the front lines of the NSA that maybe someday they may actually be prosecuted, criminally or civilly. We're sending a message to the courts that perhaps the materials that we're going to take from -- let me just say from eavesdropping or signal intelligence may not be used in the court, again prosecuting Al Qaida, people we really want to go after, because it wasn't done legally.
We're 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.
So we have to get it right. Because if we don't get it right, we're going to find that we have paid a very harsh price on it.
Some of those toughest, meanest and cruelest members of Al Qaida may be able to use illegality in the court system to escape justice. Maybe or maybe not, but why take a chance?
Now, we were facing the issue of electronic surveillance at another time, in 1976, when we had the attorney general, Ed Levi, and President Ford. And 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 times. The memoranda that we have from that period of time point out the -- Buchin (ph) memorandas, 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 the important -- 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 was 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.
KENNEDY: Later it goes on to say, "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 then come down and work out FISA. And it passed with one dissenting vote in the United States Senate. It might not have gotten it right, but it certainly for that period of time that it got it right.
And the question that I have for you is, why didn't you follow that kind of pathway, which was so successful at a different time?
We had a Republican president, Republican attorney general. We're talking about electronic surveillance. And as you know from the FISA, there are very sensitive provisions that were included in there that were directed foreign nationals that this committee was able to deal with and do it in a responsible way.
Why didn't you follow that pattern?
GONZALES: Sir, the short answer is is that we didn't think we needed to, quite frankly.
I've 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, in terms of what existed in 1976. Of course, we are at war. And we have briefed certain members of Congress.
So it's not entirely true that we didn't reach out to the Congress and talk -- certain members of Congress and talk to them about this program and about what we were doing.
KENNEDY: Well, the point I'd say, we were facing a nuclear threat.
KENNEDY: We've got terrorism now, but it was a nuclear threat then. The Cold War was in full flow at that time. It was 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 to come down and 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 on this, General, is because we've been through the Bybee amendment, we've been through torture amendments, where you and the OLC and the White House counsel thought that those -- not amendments, memoranda -- but that the Bybee memoranda was just fine.
And then we find out, during the course of your hearings, that it wasn't fine and it was effectively repealed a year and a half after it was in effect.
So it's against that kind of background about certainty, about your view about its legality and in-house review of the legality -- some of us would have wondered: Did you do or take the steps that Ed Levi, a Republican attorney general -- on the same subject -- was willing to do to listen to outside constitutional authority? Because as we've seen subsequently, you've had difficulty in your own department and you've had substantial difficulty with constitutional and others that might not believe that you're correct.
If it is correct, we haven't got a problem. If you're not correct, then it is a step back in terms of national security.
And my question to you is, looking at the national security issue, wouldn't we be in a stronger position if you had come to the Congress and say, "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 didn't have any question as to the legality of this issue?
Wouldn't the people that are in the front lines of our national security be better protected and our court system better defended?
And when we were able to get those Al Qaida individuals and they know they don't have any loopholes by appealing illegal eavesdropping, maybe then they begin to talk and try and make a deal.
KENNEDY: Maybe then that enhances our national security as well.
GONZALES: Well, sir, you've said a lot, so I don't know...
KENNEDY: Got short time, but I've...
GONZALES: Let me just say: You're absolutely right. We've 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 out 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 that this was not a situation where we 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's the last thing we want to do.
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're in litigation now so I don't want to say much more than that. But, of course, we ought to be operating in a way where we're doing what we need to do to protect our investigations and to protect our prosecutions. And I think that we're doing that.
KENNEDY: My time is just about up.
Thank you very much, General.
SPECTER: I want to -- thank you very much, Senator Kennedy.
I want to acknowledge the presence in the audience of Ms. Debra Burlingame, who's the sister of Captain Charles F. Burlingame, the pilot on American Airlines Flight 77 which crashed into the Pentagon.
Attorney General Gonzales, would you like a break?
GONZALES: If you're offering a break, Mr. Chairman.
SPECTER: Well, I'm not going to offer you one unless you want one.
GONZALES: I'm fine, sir. I will defer to you, Mr. Chairman.
LEAHY: Take the break. Take the break.
GONZALES: All right, I'll take a break. Thank you, Mr. Chairman.
SPECTER: Well, let's take a vote here...
... a 10-minute break.
SPECTER: The hearing will resume.
Before proceeding, I'd like to acknowledge the presence of Ms. Monica Gabriel (ph) and Ms. Mindy Kleinberg, family members, husbands in the World Trade Center at the time of the 9/11 attack.
SPECTER: Mr. Attorney General, thank you for rejoining us.
And we turn now to Senator Grassley.
GRASSLEY: Thank you very much.
I'm going to start with something that's just peripheral to the issues we're on, but it does deal with our national security, and it's the leak of this information to the New York Times. And I'm 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?
GONZALES: Senator, we have confirmed the department has initiated an investigation into possible crimes here. And consistent with department practice, I'm 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'll have to make a decision about moving forward with a prosecution.
GRASSLEY: And I don't blame you for this, but I don't hear as much about public outcry about this leak as I did about Valerie Plame and the White House disclosures of her -- or presumed disclosures of her identify of a CIA agent. And to me that's a two-bit nothing compared to this sort of issue that we have before us of this information being leaked to the press.
And in the follow-up commentaries, reading the newspapers and TV, you get the impression that this is some sort of an LBJ, J. Edgar Hoover operation that's designed to skirt the law to spy on domestic enemies, and I think you're making very clear the opposite, that this is only concerned about the national security of the United States, and that's where the focus should be.
GRASSLEY: But the constant repetition on the news media of the term "domestic spying," as opposed to spying on -- 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's going on.
Also, for my colleagues on this committee, it seems to me that if we're doing our job right, we've got some problems, because let's just say the attorney general is wrong in the statutory authority and constitutional authority by which they've proceeded to do what they're doing, and yet members of Congress was told about this program over a period of four years -- a few members of Congress were; the appropriate ones were.
And then, all of sudden, it hits the New York Times, and all of a sudden, when that story breaks, congressmen change their tune from the one sung in private for four years to outrage that this is going on.
So if Senator Grassley, who's not a member of that elite group that has to be concerned about oversight of foreign intelligence, knows about it and doesn't tell -- if I were a member and didn't tell my colleagues about it and then expressed that outrage, where have I been as a member of that group for the last four years?
If something's wrong after the New York Times reported it, there had to be something wrong before the New York Times reported it. And all of a sudden, I see members of Congress who had that responsibility, if they really, sincerely, think it's 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's doing here.
GRASSLEY: So I think we in Congress have to do some internal looking of whether or not we're doing our job, as well, of oversight.
Now, I always want to remind people in the United States that what we're talking about here today is to make sure that September the 11th doesn't 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.
And it seems to me that what you're trying to tell us is the president's determined to make sure that it doesn't happen in the United States again and that's what this surveillance is all about, yes?
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 11 from happening again.
GRASSLEY: And I think you're telling us that, in the case of people giving some information on a telephone call, that it's very necessary to act with dispatch; that acting with dispatch or not can be a matter of life or death for Americans.
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 requirement of FISA present challenges -- and if we wait, we may lose valuable information.
It may help us get information. It might prevent another attack.
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.
GRASSLEY: 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 this program in a different light, particularly in regard to the president's over 225 years' use of the exercise of the power of commander in chief.
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 -- far broader -- without any kind of probable cause standard, all communications in and out of the country.
And so, for example, President Wilson, World War I. I mean, he relied upon his inherent constitutional authority and a use of force resolution, a declaration of war that -- very consistent with what we're dealing with today.
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 sort of...
GONZALES: President Roosevelt did authorize very broad surveillance of the enemy.
GRASSLEY: It's 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 couldn't look at his computer files and telephone contacts. Now, that's been changed so you can have that sort of communication now.
Could you tell us in the Department of Justice white paper entitled "Legal Authorities Supporting the Activities," of a president doing this, the administration argued that, quote, "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'd call it the Youngstown case -- could you please discuss the framework set by Justice Jackson for determining how much deference the president should be given, including why the administration believes that its power in this regard is at its zenith?
GONZALES: Yes, sir, I'll try to do it in the time remaining.
GRASSLEY: All I have to do is finish my question before the time's up.
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's what is occurring here. We believe the authorization to use military forces 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 of, 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's incompatible with congressional action.
In that particular case, you look at the president's constitutional authority minus whatever constitutional congressional authority Congress has.
And so the question is in which category we are in.
We believe we're 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're 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're talking here about a core constitutional action by the president -- a long history of presidents engaging in electronic surveillance of the enemy. And so this is a much different situation.
And my judgment is, while these are always very hard cases and there's 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 would have the constitutional authority to engage in these kind of activities.
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 myself, dated February 3rd of this year.
SPECTER: Senator Biden?
BIDEN: Thank you, Mr. Chairman.
I hope Chairman Roberts will see it his responsibility to also hold extensive hearings in the forum that is more appropriate, totally secret. Thus far, I'm 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'm going to focus on one, and that is the president's reassurance as to what is exactly happening. For if, in fact, the only people being wiretapped or e-mails read are Al Qaida operatives contacting American citizens, I don't think you're going to find anybody in America saying, "Oh, my God, don't do that."
What's really at stake here is the administration's made assertions in the past where their credibility has somewhat been questioned. And so it's not merely the constitutional reach you have; it is: What is actually happening, what is actually going on?
I'm going to focus on that first, if I may.
How will we know, General, when this war it over?
GONZALES: I presume the straightforward answer, Senator, is that when Al Qaida is destroyed and it no longer poses a threat to the United States.
Whenever that may be, we know it's not today. We know we're still at war today. We know we'll probably be at war still tomorrow. And so we know it still continues today.
BIDEN: The truth is, there is no definition of when we're going to know whether we've won, because Al Qaida, as the president points out, has mutated into many other organizations that are not directly dealing with bin Laden and are free agents themselves.
BIDEN: Is that correct?
GONZALES: It is certainly true that there are a number of terrorist groups who share many of the same objectives of Al Qaida in terms of destroying America.
BIDEN: So as long as any of them are there, I assume you would assert you have this plenary authority.
GONZALES: Well, Senator, obviously if Congress were to take some kind of action, and 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've already indicated in response to Senator Grassley, I believe that under those circumstances -- and again, it's a hard question, and it may have been irresponsible for me to offer up an opinion, because I would like the opportunity to study it.
But I think the facts would present a much different case than what we had in Youngstown v. Sawyer.
BIDEN: Why, if you -- and I've read everything you 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've been involved in this. It doesn't mean I'm right, but I've been deeply involved.
As I understand your reasoning, I don't understand why you would limit your eavesdropping only to foreign conversations -- in other words, Al Qaida communicating from Algeria -- I'm making it up -- or from France or Germany, wherever, to the United States.
That's the assertion. It's only emanating from a foreign country, correct?
GONZALES: Yes, sir: authorization of the program I'm talking about.
BIDEN: Why limit it to that?
GONZALES: Well, of course, that's a presidential decision.
And I believe, Senator -- and now I'm purporting to speak for the president, but I believe it's because of trying to balance concerns that might arise that, in fact, the NSA was engaged in electronic surveillance with respect to domestic calls.
And 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, why aren't you -- you know, if you've got reason to believe that you've got two members of Al Qaida talking to each 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.
BIDEN: Well, the president said he'd 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.
BIDEN: Is he refusing to do it for public relations reasons, for purist (ph) reasons or because he thinks he doesn't have the constitutional authority to do it?
GONZALES: I don't believe that it's a question of constitutional authority. That analysis, quite frankly, has not been conducted.
It's not a question of public relations. In his judgment, it was the appropriate thing to do, given the circumstances that we find ourselves in.
BIDEN: Who determines what calls or e-mails are to be monitored?
GONZALES: The decision as to which communications will 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 Qaida aims, objectives, communications. I've heard General Hayden say that they are the best at what they do. They know about Al Qaida.
And they would probably be in the best position -- better than, certainly, any lawyer -- in evaluating whether or not there is reasonable grounds to believe that this person is an agent or member of Al Qaida or an affiliated terrorist organization.
BIDEN: How many of them are there?
GONZALES: Sir, I do not know.
BIDEN: There's thousands of people who work for NSA. It would be useful for us to know. Are there two people, five people, 25 people, 250 people, 1,000 people?
GONZALES: Sir, I don't know the exact number of people out at NSA who are working on this program.
But, as I indicated to you, the people that are making the decision about whether surveillance should occur are people that are experts with respect to Al Qaida.
BIDEN: Well, what are the guidelines? Are there any written guidelines they are bound by?
GONZALES: Sir, 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 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's consistent with the president's authorization.
BIDEN: By definition, you've acknowledged that these minimization -- the very minimization programs that exist under FISA, you're not bound by. You've acknowledged that you're 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?
GONZALES: OK, I'm 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.
BIDEN: Would it be in any way compromising the program if you made available to the Intelligence Committee what those minimization procedures that are being followed are?
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.
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're talking about this very small group of the chairman and the ranking member.
GONZALES: Sir, I'm talking about the minimization procedures for 12333 and for FISA.
BIDEN: Let me very precise.
BIDEN: 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 other statutes." I'm unaware that that's written down or stated anywhere or been presented to the Intelligence Committee. Can you assure us that has been done?
GONZALES: No, sir, I can't assure you that.
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 can assure us 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 Qaida or otherwise?
GONZALES: Sir, I can't give you absolutely assurance of the kind that you've asked for.
BIDEN: Who can?
GONZALES: Certainly, General Hayden knows more about the operational details of this program.
What I can give the American people assurance is, is that we have a number of safeguards in place so that we can say with a high degree of confidence, (inaudible) of certainty, that what the president has authorized in connection with this program -- that those procedures are being followed.
BIDEN: Mr. Chairman, my time's up.
This is why the Intelligence Committee has the responsibility to be able to look at someone and have an absolute guaranteed assurance under no circumstance is any American being eavesdropped upon unless it's coming from a foreign soil and a suspected terrorist, and do it under oath and do it under penalty of law if they've misrepresented.
I'm not suggesting the attorney general can do that. We've got to find out who can do that.
SPECTER: Thank you, Senator Biden.
LEAHY: Mr. Chairman, just for Senator Biden's round, you put into record the letter from Senator Roberts sent to the two of us concerning the authority. I want to place in the record a letter from Mr. Bruce Fein, formerly a senior Justice Department official in the Reagan administration, basically responding to Senator Roberts' letter.
I mentioned earlier that Mr. Fein was very critical of this program. In fact, at that point, why don't you just put it -- I have a number of things here (inaudible).
SPECTER: Without objection, the letter from Mr. Bruce Fein will be made a part of the record.
SPECTER: And do you have other unanimous consent requests?
LEAHY: For other material regarding this hearing, if I might put them all in the record.
SPECTER: Without objection, those materials will be made a part of the record.
KYL: Thank you, Mr. Chairman.
Thank you, Mr. Attorney General.
I think it's 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's 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's being conducted illegally. That was the charge, and I would submit a very serious charge, that the ranking member made earlier in this remarks.
It seems to me that a little humility is called for by the members of this committee, especially before we accuse the president of committing a crime, which is what illegal activity is.
If our hearings with now-Justices Alito and Roberts demonstrated anything, I think it is that there are a lot of smart lawyers in Washington, D.C., other than those who are sitting here on this committee.
And in that regard, I appreciate the last couple of rounds of questions that were asked by Senators Kennedy, Biden and Grassley, because they got more into specifics about how we might have better oversight.
Before I get into that, let me just ask four specific questions that I think you can answer very, very briefly.
I'm reminded, by the way -- I told one of my staff the very first time I saw a murder trial before I went to law school, I was absolutely persuaded after the prosecution's summation that this guy was guilty as could be. Then after his lawyers argued, I was absolutely certain that he was innocent. And by the time the prosecutor finished, I was once again convinced that maybe he was guilty.
The bottom line being that, with tough legal questions, good lawyers take both sides and there are two sides to every question.
KYL: And you shouldn't prejudge.
And that's what I think happened with regard to this program. Before you and others in the administration explained the legal rationale for it, there were people jumping to conclusions about its illegality.
Now, I think you made four key points, and I just want to make sure that we've got them right.
Your first key point was that Article 2 of the U.S. Constitution has always been interpreted as allowing the president to do what's necessary to conduct war, and that includes surveillance of the enemy. Is that right?
GONZALES: Yes, sir.
KYL: Secondly, that when Congress passed the authorization of military force on September 18th, 2001, we actually did two things in that resolution. First of all, we affirmed the president's constitutional authority that I just spoke of.
KYL: And secondly, that we granted authority that included the words, "all necessary and appropriate force."
KYL: And your point has been that that activity has always included surveillance of the enemy, and, in fact, that the FISA Court itself has commented on that inherent authority in a situation in which it involved the detention of an American citizen who was involved in terrorist activity.
GONZALES: That would be the Supreme Court, sir, not the FISA Court.
KYL: The Supreme Court. I'm sorry.
GONZALES: Yes, sir.
KYL: And that also, your second point is that the statutory authorization is contemplated in the FISA language, "except as authorized by statute."
GONZALES: That is correct. We are acting in a way -- the president has authorized activities that are consistent with what FISA anticipated.
KYL: The third point is, you talked a little bit about FISA, and noted that in your view -- and it's difficult to further discuss the point, because you can't discuss the detail of the program itself -- but that the 1978 FISA law is really not well suited to the particular kind of program that's being conducted here, including the 72-hour provision of FISA. Is that correct?
GONZALES: That is correct, Senator.
But I don't want these hearings to concluded today with the notion that FISA has not been effective. And, again, I think a lot of the safeguards, some of the procedures in FISA, make a lot of sense. When you're talking about a peacetime situation, particularly domestic surveillance, FISA also covers that kind of activity.
And so when you're talking about amending FISA because FISA's broke, well, the procedures in FISA under certain circumstances I think seem quite reasonable.
KYL: And you continue to use FISA, not only -- well, you continue to use FISA, including in regard to the war on terrorism.
KYL: The fourth key point was that you argued about the checks and balances in the program: the fact that it has to be reauthorized every 45 days by the president himself, that there has been extensive congressional briefing of the Democrat and Republican leaders and chairmen and ranking members, respectively, of the Intelligence Committee, and that there is extensive I.G. review. Is that correct?
GONZALES: That is correct.
KYL: And the inspector general is what inspector general?
GONZALES: This is the inspector general for the NSA.
In addition, you noted the two qualifications of the program: international communications involving Al Qaida or affiliated individuals.
GONZALES: That is correct, Senator.
KYL: And finally, you noted that this was as interpreted by the NSA professionals.
Now, I thought there were two particularly interesting lines of inquiry. And one was Senator Biden's question about whether or not, if this program is really necessary, we shouldn't try to evaluate whether it should also be applied to calls from Al Qaida terrorist A to Al Qaida terrorist B, although they happen to be in the United States.
And it was my understanding you said that the analysis of that had not been conducted. Is that correct?
GONZALES: The legal analysis as to whether or not that kind of surveillance -- we haven't done that kind of analysis, because, of course, the president -- that's not what the president has authorized.
KYL: I understand that, but I would suggest that that analysis should be undertaken. Because I think most Americans now appreciate that this is a very important program. It might warn us of an impending attack.
It could be that the attackers are already in the United States. And therefore, it could involve communication within the United States.
Understanding the need to balance the potential intrusion on privacy of American citizens within the United States, you would want to have a very careful constitutional analysis.
KYL: And certainly the president wouldn't want to authorize such an activity unless he felt that he was on very sound legal ground.
On the other hand, there is no less reason to do it than there is to intercept international communications with respect to a potential terrorist warning or attack.
So I would submit that Senator Biden is correct and that this -- at least the inference was in his question that this study should be accomplished. And I would think that it should.
I also think that both he and Senator Grassley and Senator Kennedy, to some extent, talked about, "Well, what happens if we're wrong here? How can we be assured that there is no improper surveillance?"
And in this regard, I would ask you to think about it. And if you care to comment right now, fine. But this might hit you cold.
It seems to me that you might consider, either in the presidential directive and the execution of that or even potentially in congressional legislative authorization, some kind of after-action report, some kind of quarterly review or some other appropriate time frame -- maybe ever 45 days; whatever's appropriate -- to the eight people who are currently briefed in the Congress on questions such as whether the program acted as it was intended, whether it appeared that somebody might have been surveilled who, under the guidelines, should not have been, and if there ever were such a case, how it happened and what's done to ensure that it doesn't happen again and whether there was any damage as a result of that, and also just generally whether the program is having the intended result of being able to demonstrate important information to the people that we charge with that responsibility.
It seems to me that reporting on that kind of activity, including information about the guidelines to provide some additional assurance that it's being conducted properly, would be appropriately briefed to the members of Congress.
We do have an oversight responsibility, but we are not the only governmental entity with responsibility here. The president has critical responsibility.
And I agree with those who say that, should there be an attack and a review of all of this activity is conducted, the president would be roundly criticized if he had a tool like this at his disposal and did not utilize it to protect the people of the United States.
GONZALES: Senator, I can say that I have not been present in all the briefings with members of Congress.
But in connection with those briefings where I was present, there was discussion regarding some of the types of issues that you've just outlined.
GONZALES: Be happy to take back your comments.
KYL: Thank you, Mr. Attorney General.
SPECTER: Thank you, Senator Kyl.
Read Part II of the transcript.
Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved