U.S. Senate Judiciary Committee Holds a Hearing on Wartime Executive Power and the National Security Agency's Surveillance Authority
Monday, February 6, 2006; 7:26 PM
SPECTER: Thank you very much, Senator Cornyn.
DURBIN: Thank you very much, Mr. Chairman.
Thank you, Attorney General, for being here.
During the course of this hearing, you have referred to FISA several times as "a useful tool, a useful tool in wiretapping and surveillance."
DURBIN: And I've thought about that phrase because it's a phrase that's been used by the White House too.
Referring to FISA as a useful tool in wiretapping is like referring to speed limits and troopers with radar guns as useful tools on a motoring trip.
I think FISA is not there as a useful tool to the administration. It is there as a limitation on the power of a president when it comes to wiretapping.
And I think your use of that phrase, "useful tool," captures the attitude of this administration toward this law: We'll use it when it doesn't cause a problem; we'll ignore it when we have to."
And I think that's why we're here today.
And I'm curious, Mr. Attorney General, as we get into this, and I look back on some of your previous testimony and what you said to this committee in confirmation hearings and the like, how far will this administration go, under the theories which you have stated today, to ignore or circumvent laws like FISA.
I asked you during the course of your confirmation hearing a question about this whole power of the commander in chief. I wish I could play it to you here, but there's a decision made by the committee that we aren't going to allow that sort of thing to take place.
But I do believe that, if I could play it, you would be asked to explain your answer to a question which I posed to you.
And the question was this: "Mr. Attorney General, has this president ever invoked that authority, as commander in chief or otherwise, to conclude that a law was unconstitutional and refused to comply with it?"
Mr. Gonzales: "I believe that I stated in my June briefing about these memos that the president has not exercised that authority."
You've said to us today, several times, that the president is claiming his power for this domestic spying -- whatever you want to call it, terrorist surveillance -- program because of the president's inherent powers, his core constitutional authority of the executive branch.
DURBIN: And so I have to ask you point-blank, as Senator Feingold asked you earlier.
You knew when you answered my question that this administration had decided that it was going to basically find a way around the FISA law, based on the president's, as you called it, inherent constitutional powers. So how can your response be valid today in light of what we now know?
GONZALES: Oh, it's absolutely valid, Senator.
And this is going to sound repetitious, but it has never been our position that we are circumventing or ignoring FISA. Quite the contrary, the president has authorized activities that are totally consistent with FISA, with what FISA contemplates.
I have indicated that I believe that, putting aside the question of the authorization to use military force, that, while it's a tough legal question as to whether or not Congress has the authority under the Constitution to cabin or to limit the president's constitutional authority to engage in electronic surveillance of the enemy, that is not a question that we even need to get to.
It has always been our position that FISA can be and must be read in a way that it doesn't infringe upon the president's constitutional authority.
DURBIN: So let me read to you what your own Justice Department just issued, within the last few weeks, in relation to the president's authority, the NSA program and FISA.
I quote, "Because the president also is determined that NSA activities are necessary to defend the United States from a subsequent terrorist attack in the armed conflict with Al Qaida," I quote, "FISA would impermissably interfere with the president's most solemn constitutional obligation to defend the United States against foreign attack."
You can't have it both ways.
DURBIN: You can't tell me that you're not circumventing it and then publish this and say that FISA interferes with the president constitutional authority.
GONZALES: And that's why you have to interpret FISA in a way where you don't tee up that very difficult constitutional question under the canon of constitutional avoidance.
DURBIN: What you have to do is take out the express language in FISA which says it is the exclusive means -- it is exclusive. And the way you take it out is by referring to -- and I think you've said it over and over here again -- you just have to look to that phrase you say, "except as otherwise authorized by statute."
Senator Feinstein and I were struggling. We were looking through FISA. Where is that phrase, "except as otherwise authorized by statute"? It's not in FISA. It's not in the FISA law.
You may find it in the criminal statute and may want to adopt it by reference. But this FISA law, signed by a president and the law of the land, is the exclusive way that a president can wiretap.
And I want to ask you, if this is exclusive, why didn't you take advantage of the fact that you had and the president had such a strong bipartisan support for fighting terrorism that we gave the president the Patriot Act with only one dissenting vote? We're supported this president with every dollar he's asked for to fight terrorism.
Why didn't you come to this Congress and say, "There are certain things we need to change," which you characterized as cumbersome and burdensome in FISA? Why didn't you work with us to make the law better and stronger and more effective when you knew that you had a bipartisan consensus behind you?
GONZALES: Senator, the primary criminal provision in FISA, Section 109, 50 USC 1809, it is page 179 if you've got one of these books, provides that "a person is guilty of offense if he intentionally engages in electronic surveillance under cover of law except as authorized by statute."
This provision means that you have to engage in electronic surveillance as provided here except as otherwise provided by statute. And this is the provision that we're relying upon. It's in the Foreign Intelligence Surveillance Act.
DURBIN: It's Title XVIII. But let me just tell you, what you don't want to read to us is...
GONZALES: Sir, it's not Title XVIII.
DURBIN: ... "The Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and interception of domestic wire electronic communication may be conducted."
DURBIN: And so what you've said is, "Well, when you authorizes the war, you must have known that we were going to really expand beyond FISA."
I've got the book here; you can look through it if you like. There's not a single reference in our passing this AUMF that we talk about -- authorize use of military force -- not a single reference to surveillance and intelligence in the manner that you've described it.
GONZALES: Sir, there's probably not a single reference to the detainment of American citizens, either, but the Supreme Court has said that that is exactly what you have authorized because it is a fundamental incident of waging war.
DURBIN: So, since you quoted that repeatedly, let me read what that court has said.
"We conclude..." -- Hamdi decision -- "We conclude that detention of individuals falling into the limited category we are considering for the duration of the particular conflict in which they are captured is so fundamental and accepted an incident to war to be an exercise of necessary and appropriate force."
GONZALES: No question: That case was not about electronic surveillance. I will concede that.
DURBIN: But I'll tell you something else, Mr. Attorney General. If you then read, I think, the fine reasoning of Justice O'Connor, she comes to a point which brings us here today. And I thank the chairman for allowing us to be here today.
And this is what she says, in the course of this decision: "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."
We have said repeatedly, as nominees for the Supreme Court have come here, "Do you accept the basis of Hamdi that a war is not a blank check for a president?" They have said, "Yes; that's consistent with Johnson and Youngstown."
And now, what we hear from you is that you are going to take this decision in Hamdi and build it into a way to avoid the most basic statute when it comes to electronic surveillance in America, a statute which describes itself as the exclusive means by which this government can legally do this.
GONZALES: Senator, I think that, in reading that provision you just cited, you have to consider Section 109.
Section 109 contemplates an additional authorization by the Congress. Congress provided that additional authorization when it authorized the use of military force following the attacks of 9/11.
DURBIN: The last thing I'd like to say -- and I only have a minute to go -- is the greatest fear that we have is that what this president is now claiming is going to go far beyond what you've described today.
What you've described today is something we would all join in on a bipartisan basis to support: Use every wiretap capacity you have to stop dangerous terrorists from hurting Americans.
If you came to Capitol Hill and asked us to change a law in a reasonable way to reach that goal, you'd have the same bipartisan support.
Our concern is that what this president is asking for will allow this administration to comb through thousands of ordinary Americans' e-mails and phone calls.
In the audience today is Richard Fleischer (ph) of Willowbrook, Illinois; I don't know if Mr. Fleischer (ph) is still here. Mr. Fleischer (ph) wrote to the NSA and asked if he had been wiretapped because he had had conversations with people overseas.
And after several letters that he sent back and forth, the best he could get from the National Security Administration is that they would neither confirm nor deny the existence of records responsive to his request.
Ordinary Americans wondering if their telephone calls, if their e-mails overseas have been wiretapped. And there is no safeguard for their liberty and freedom.
What we have today is your announcement that career professionals and experts will watch out for the freedoms of America.
Career professionals and experts, sadly, in our nation's history, have done things in the past that we're not proud of. Career professionals have made bad decisions: Japanese internment camps, enemies lists.
What we really rely on is the rule of law and the Constitution: safeguards we can trust by people we can see. And when it comes to some person working at NSA, I don't think it gives us much comfort.
SPECTER: Thank you, Senator Durbin.
Before yielding to Senator Brownback, I want to announce that I'm going to have to excuse myself for just a few minutes. We're starting a floor debate this afternoon at 3 o'clock on the asbestos reform bill, of which Senator Leahy and I are co-sponsors.
And I am scheduled to start the debate at 3 o'clock. And I will return as soon as I have made a floor statement.
And, in the interim, Senator Hatch has agreed to chair the hearing.
Senator Brownback, you're recognized.
BROWNBACK: Thank you, Mr. Chairman. I appreciate the hearing.
Attorney General, thank you for being here.
I want to look at the reason we're in this war on terrorism. I want to talk about the length of time we may be in this war on terrorism. And then I want to look at FISA's use, forward from this point, in the war on terrorism.
I don't need to remind the attorney general, but I certainly would my colleagues, that we are very actively engaged in a war on terrorism today.
BROWNBACK: January 19th of this year, Osama bin Laden in a tape says this, quote: "The reason why we didn't have such an operation will take place and you will see such operations, by the grace of God." And by that he's talking about more 9/11s. And that was January 19th, 2006.
Al Zawahiri, number two person, January 30th of this year, says this: "Bush, do you know where I am? I'm among the Muslim masses enjoying their care with God's blessings and sharing with them their holy war against you until we defeat you, God willing. The lion of Islam, Sheik Osama bin Laden, may God protect him, offered you a decent exit from your dilemma, but your leaders, who are keen to accumulate wealth, insist on throwing you and battles and killing your souls in Iraq and Afghanistan and, God willing, on your own land."
I just want to remind people that as we get away from 9/11 in 2001, we'd not forget that we're still very much in a war on terrorism and people are very much at war against us.
And we're talking about probably one of the lead techniques we can use in this war, which I would note recent testimony of General Hayden said this about the technique of the information you're using right now, he said, quote, "Had this program been in effect prior to 9/11, it's my professional judgment that we would have detected some of the 9/11 Al Qaida operatives in the United States and we would have identified them as such."
So, Attorney General, I don't know if you have a different opinion from General Hayden on that, but...
GONZALES: I never have a different opinion from General Hayden on the intel capabilities that we're talking about here. Both he and Director Mueller have recently testified about the importance of the terrorist surveillance program.
General Hayden did say it's been very successful, that we've gotten information we would not have otherwise gotten, that it has helped us -- I think he said -- deter and detect attacks here and abroad.
FBI Director Mueller said that it was a valuable tool, it helped identified would-be terrorists in the United States and helped identify individuals providing material support to terrorists.
So those are the experts saying how valuable this tool has been.
BROWNBACK: Having said that, I've read through most of your white paper material, and I've looked at a great deal of it. I'm struck and I think we have an issue we need to deal with.
Part of what we're working off of is a war declaration dated September 18th, 2001, and the war declaration on Afghanistan, and the war declaration October 16th, 2002 on the use of military force in Iraq, and "The president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks."
It strikes me that we're going to be in this war on terrorism possibly for decades; maybe not. But this could be the Cold War of our generation. Maybe it doesn't go that period of time, but it has the possibilities of going for some extended period of time.
And I share Senator DeWine's concern that we should look, then, at the FISA law, and make sure that as we move forward in this, that we're not just depending upon these authorizations of war to say that that puts us in a superior position under the Article II powers, but that to maintain the support of the American public, to have another set of eyes also looking at this surveillance technique is an important thing in maintaining the public's support for this.
And so I want to look and direct you to looking at the FISA law in particular. And you've made some comments here this today that have been very well stated and thought through. You've talked to one point the FISA law was not well structured to the needs of today's terrorist war effort. The law was passed -- what? -- 27 years ago or something of that nature, and certainly didn't contemplate a war on terrorism like we're in today.
And I want to look specifically at how we could amend that FISA law, looking at a possible decades-long war on terrorism.
Now, one of the areas you've talked about that's cumbersome is the 72-hour provision within the law, if I'm gathering what you're saying correctly.
BROWNBACK: Congress extended this period from 24 to 72 hours in 2001.
Just looking narrowly at what would need to be done to use the FISA authority more broadly and still be able to stop terrorists, if that is extended further, would it make it more likely that she would use the FISA process, if that's extended beyond 72 hours?
GONZALES: It's hard to say, Senator, because whether it's 24 or 72, whatever, I have got to make a determination under the law that at the time I grant emergency authorization, that all the requirements of FISA are met. I think General Hayden said it best yesterday: This is not a 72-hour sort of hall pass.
I've got to know when I grant that authorization, whether I then have 24 or 72 hours to submit a written application to the court, I've got to know at the time I say, "Yes, go forward," that all the requirements of FISA are met. That's the problem.
If I could just also make one final point.
BROWNBACK: Fair enough.
GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.
I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.
BROWNBACK: Looking forward in the war on terrorism and the use of FISA and this committee's desire, I believe, to have the administration wherever possibly and more frequently use FISA -- and you noted you've used it more this past year than the year before -- what specific areas would make this decision on your part easier, more likely to use the FISA process?
GONZALES: Well, Senator, if you're talking about domestic surveillance in a peacetime situation for other kinds of terrorists beyond Al Qaida...
BROWNBACK: No. I'm talking about the war on terrorism.
GONZALES: Senator, I would like to get the opportunity to think about that and maybe talk to the experts in the department, I think who have a better sense about what kinds of specific things.
I can say that the Patriot Act includes a provision which allows these orders to stay in place a longer period of time before they're renewed. It is quite burdensome, the fact that these things expire. We then have to go back and get a renewal. That just places an additional burden on our staff.
But I would like to have the opportunity to get back to you about what other kinds of specific changes might be helpful.
BROWNBACK: If you could, because I think we're going to be in this for a period of time, and we're going to be in it for succeeding administrations in this war on terrorism. And probably our most valuable took that we have is information, early information, to be able to cut this off.
So the American public I think clearly wants us to be able to get as much information as we can. And yet I think we need to provide a process that has as much security to the American public that there's no abuse in this system. This is about us trying to protect people and protect people in the United States.
And I want to know, too, presidential authority that you're protecting, this has been talked about by the Clinton administration attorney general before, many others; it's not just this administration at all, as others have specifically quoted.
BROWNBACK: But I do think, as this wears on, we really need to have those thoughts of how we can make the FISA system work better.
GONZALES: Senator, we are as likewise concerned about ensuring that we protect the rights of all Americans.
BROWNBACK: I'm sure you are. And I appreciate that. I want you to protect us from security attacks, too. And bin Laden has, to my knowledge, when he normally makes a threat, he has followed through on these.
This is a very active and live area. I just want to see if we can make that law change where it can work for a long-term war on terrorism.
Thank you, Mr. Chairman.
HATCH: Senator Leahy?
LEAHY: Thank you, Mr. Chairman.
You know, incidentally, Senator Brownback rightfully pointed out the date when FISA enacted. Of course, we have updated it five times since 9/11, two of those when I was chairman.
In the year 2000, the last year of the Clinton administration, they used the FISA Court 1,005 times. The year of September 11, your administration actually used it less times even than the Clinton administration used it before.
I'm just curious. You know, when I started this morning, I asked you a very straightforward question. I told you I'd come back to it, so I'm sure you've had time to check for the answer during the lunch hour.
So, I come to you again with it. When did the Bush administration come to the conclusion that the congressional resolution authorizing the use of military force against Al Qaida also authorized warrant-less wiretapping of Americans inside the United States?
LEAHY: So I'm sure you've had time to check for the answer during the lunch hour.
So I come to you again with it: When did the Bush administration come to the conclusion that the congressional resolution authorizing the use of military force against Al Qaida also authorized warrantless wiretapping of Americans inside the United States?
GONZALES: Sir, the authorization of this program began...
LEAHY: I can't hear you. Can you pull your mike a little bit...
GONZALES: Pardon me. The authorization regarding the terrorist surveillance program occurred subsequent to the authorization to use military force and prior to the Patriot Act.
LEAHY: OK. So what you call terrorist surveillance, some would call the breaking of the Foreign Intelligence security?
I'm asking, when did you decide that the authorization for use of military force gave you the power to do this? I mean, you were White House counsel then. What date did it give you the power?
GONZALES: Well, sir, I can't give you specific dates about when...
LEAHY: That's what I asked you this morning, and you had the time to go and look. I mean, you had to sign that, or sign off on that before the president.
When did you reach the conclusion that you didn't have to follow FISA?
GONZALES: Sir, I'm not going to give an exact date as to when the program actually commenced, but it's always been the case...
LEAHY: Why not?
GONZALES: Because that's an operational detail, sir, and I've already indicated the chairman has invited me -- the committee has invited me here to talk about the legal analysis of what the president authorized.
LEAHY: We're asking for a legal analysis. I mean, obviously you had to make a determination that you had the right to do this. When did you make the determination that AUMF gave you the right to do this?
GONZALES: From the very outset, before the program actually commenced, it has always been the position that FISA cannot be interpreted in a way that infringes upon the president's constitutional authority, that FISA must be interpreted, can be interpreted in a way...
LEAHY: Did you tell anybody that when you were up here seeking the Patriot Act and seeking the changes in FISA?
LEAHY: Did you tell anybody you had already determined -- it was your testimony here today that you made the determination, virtually immediately -- that you had this power without using FISA?
GONZALES: Well, sir, the fact that we were having discussions about the Patriot Act -- and there wasn't a specific mention about electronic surveillance with respect to this program -- I would remind the committee that there was also discussion about detention in connection with the Patriot Act discussions.
Justice Souter, in the Hamdi decision, made that as an argument, that, clearly, Congress did not authorize...
LEAHY: Judge Gonzales, I'm not asking about what happens when you catch somebody on a battlefield and detain them; I'm not asking about what you do in the battlefield in our failed attempt to catch Osama bin Laden, what we were actually asking the administration to do. I'm not asking about what happens on that battlefield.
I'm asking, why did you feel that -- now, your testimony is that, virtually immediately, you determined you had the power to do this warrantless wiretapping because of AUMF.
You didn't ask anybody up here. Did you tell anybody that you needed something more than FISA?
GONZALES: Sir, I don't recall. Did I tell anyone in Congress or tell...
LEAHY: Congress. I said Congress first.
GONZALES: Sir, I don't recall having conversations with anyone in Congress about it.
LEAHY: Do you recall that anybody on this committee, which actually is the one that would be amending FISA, was told?
GONZALES: Sir, I have no personal knowledge that anyone on this committee was told.
LEAHY: Apparently then, according to your interpretation, Congress -- and a lot of Republicans and a lot of Democrats disagree with you on this when we voted for the authorization for military force -- that we were authorizing warrantless wiretapping.
Did we -- were we authorizing you to go into people's medical records here in the United States by your interpretation?
GONZALES: Senator, whatever the limits of the president's authority given under the authorization of the use of military force and his inherent authority as commander in chief in a time of war, it clearly includes the electronic surveillance of the enemy.
LEAHY: Well, just let it be noted that you did not answer my question. But here you also said, "We've had discussions with the Congress in the past, certain members of Congress, as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat. We were advised that that would be difficult, if not impossible."
That's your statement. All right. Who told you that?
GONZALES: Senator, there was discussion with a bipartisan group of leaders in Congress, leaders of the Intel Committee, to talk about legislation. And the consensus was that obtaining such legislation -- the legislative process is such that it could not be successfully accomplished without compromising...
LEAHY: When did they give you that advice?
GONZALES: Sir, that was some time in 2004.
LEAHY: Oh, three years later. You mean you've been doing this wiretapping for three years and then suddenly you come up here and say, "Oh, by the way, guys, could we have a little bit of authorization for this"? Is that what you're saying?
GONZALES: Sir, it's always been our position that the president has the authority, under the authorization to use military force and under the Constitution.
LEAHY: It's always been your position but, frankly, it flies in the face of the statute, Mr. Attorney General. And I doubt very much if one single person of Congress would have known that was your position, had you not known the newspapers were going to print what you were doing -- not that anybody up here knew it.
When you found out the newspapers were going to bring it, you came up here.
Did you talk to any member of the Judiciary Committee that would actually write it?
And let me ask you this: Did any member of this committee, this Judiciary Committee which has to write the law, did anybody here tell you we couldn't write a law that would allow you to go after Al Qaida in the way you're talking about?
GONZALES: Sir, I don't believe there were any discussions with any members of the Judiciary Committee...
LEAHY: Even though we're the ones that have to write the law, and you're saying that you were told by members of Congress we couldn't write a law that would fit it, and now you tell us that the committee that has to write the law never was asked.
GONZALES: We had...
LEAHY: Does this sound like a CYA on your part? It does to me.
GONZALES: We had discussions with a bipartisan leadership of the Congress about this program.
LEAHY: But not from this committee. We have both Republicans and Democrats on this committee, you know?
GONZALES: Yes, sir, I do know that.
LEAHY: And this committee has given you, twice under my chairmanship, we have given you five amendments to FISA because you requested it.
But this, you never came to us.
Mr. Attorney General, can you see why I have every reason to believe we never would have found out about this if the press hadn't?
LEAHY: Now, there's been talk about, "Well, let's go prosecute the press." Heavens, thank God we have a press that at least tells us what the heck you guys are doing because you're obviously not telling us.
GONZALES: Sir, we have advised bipartisan leadership of the Congress and the Intel Committees about this program.
LEAHY: Well, did you tell them that before the passage of the USA Patriot Act?
GONZALES: Sir, I don't recall when the first briefing occurred. But my recollection is that it was shortly after the program was initiated.
LEAHY: OK, well, let me ask you this, then.
You say, several years after it started, you came up here and talked to some group of members of Congress. The press reports said that the president's program of spying on Americans without warrants was shut down for some time in 2004. That sounds like the time you were up here.
If the president believed the program was necessary and legally justified, why did he shut it down?
GONZALES: Sir, you're asking me about the operations of the program.
LEAHY: Of course, I'm sorry, Mr. Attorney General, I forgot you can't answer any questions that might be relevant to this.
Well, if the president has that authority, does he also have the authority to wiretap Americans' domestic calls and e-mails under this authority if he feels it involves Al Qaida activity?
I'm talking about within this country, under this authority you have talked about. Does he have the power under your authority to wiretap Americans within the United States if they're involved in Al Qaida activity?
GONZALES: Sir, I've been asked this question several times.
LEAHY: I know. And you've had somewhat of a vague answer, so I'm asking again.
GONZALES: And I've said that that presents a different legal question, a possibly tough constitutional question. And I am not comfortable, just off the cuff, talking about whether or not such activity would, in fact, be constitutional.
GONZALES: I will say that that is not what we are talking about here. That is not...
LEAHY: Are you doing that?
GONZALES: ... what the president has authorized.
LEAHY: Are you doing that?
GONZALES: I can't give you assurances. That is not what the president has authorized for this program.
LEAHY: Are you doing that? Are you doing that?
GONZALES: Senator, you're asking me again about operations, what are we doing.
LEAHY: Thank you.
HATCH: Throughout this process, you don't know when it began, but at least eight members of Congress have been informed about what has been disclosed by people who have violated the law in disclosing it and by the media that has printed the disclosures. Is that correct?
GONZALES: That is generally correct, sir, yes, sir.
HATCH: Did you have one complaint about the program from any of the eight?
And that was bipartisan by the way, those eight people: four Democrat leaders in the Congress, four Republican leaders in the Congress. Is that right?
GONZALES: It was a bipartisan briefing, yes, sir.
HATCH: Did you have any gripes or complaints about what was disclosed to them, to the best of your recollection?
GONZALES: Again, I want to be careful about speaking for members, but...
HATCH: I'm not asking you to speak for members. I'm asking you if you had any gripes or complaints...
GONZALES: And again, I wasn't present...
HATCH: ... or suggestions.
GONZALES: I wasn't present at all the briefings.
But for those briefings that I was present at, they received very detailed briefings about these operations. They were given ample opportunity to ask questions. They were given ample opportunity to express concerns.
HATCH: You were somewhat criticized here in some of the questions that your argument that the authorized use of military force is a faulty argument, because the FISA act does not really talk about "except as authorized by statute."
But you pointed out that Section 109, or, if you want to be more specific, Title 50, Chapter 36 of Chapter 1, 1809 does say that "a person is guilty of an offense if he intentionally engages in electronic surveillance under cover of law except as authorized by statute."
GONZALES: That is the main criminal prohibition against engaging in electronic surveillance, except as otherwise provided by FISA or except as otherwise provided by statute.
HATCH: Now, this authorized use of military force enabled you, quote, "to use all necessary and appropriate force against the nations, organizations or persons the president determines planned, authorized, committed or aided the terrorist attacks." Is that correct?
GONZALES: This is a very important point, Senator.
Think about it. The authorization doesn't identify -- specifically never mentions the word "Al Qaida." It authorizes the president to engage in "all necessary and appropriate force to identify those he determines" -- who the president determines. And the president is not able to do that without information, without intelligence, without the kind of electronic surveillance we're talking about today.
HATCH: That's right.
As someone who helped to write the original Patriot Act, I can't help but express the awareness of those of us around here that here we are, well over a month after the expiration of the Patriot Act, and we keep renewing it from month to month because we can't get Congress to really agree on what the changes should be. Is that a fair assessment?
GONZALES: Well, what I will say is I think the tools of the Patriot Act are important, and I hope that they are reauthorized.
HATCH: But the reason I'm bringing that up is because at one time, at least one report was is that one of these eight members was asked -- who had the program disclosed to them -- or at least remarked that he didn't think that a statute could be passed to resolve these issues.
GONZALES: I don't want to attribute to any particular member that statement.
What I will say is that...
HATCH: You don't have to do that, but is that true?
GONZALES: There was a consensus that pursuing the legislative process would result likely in compromising the program.
HATCH: In other words, it's not easy to get things through 535 members of Congress, 435 in the House and 100 in the Senate.
HATCH: Now, I know that you love the Congress and will not find any fault with any of us...
GONZALES: Sir, you've been at this a little bit longer than I have. But it's certainly been my experience that it's sometimes difficult.
HATCH: Yes, it is.
Is it not true that one check on the president's power to operate the NSA surveillance program is the Congress' power over the purse, as listed in Article 1, Section 8 of the Constitution?
I think even those who are sort of in the pro-executive camp in terms of the allocation of constitutional powers in a time of war would have to concede that the power of the purse is an extremely strong check on the president's commander in chief.
HATCH: Well, I've noticed that while many in Congress have sharply criticized the president and the NSA program that we've been discussing here, I am not aware of any member of Congress introducing legislation to end the program through either an authorization or an appropriations mechanism.
From what we know about the intent of the program today, I expect that few members of either the House or the Senate would vote to eliminate this program or cut off its funding.
And the reason I state that is because all of us are concerned about this battle that we're raging; that this is not an easy battle. This is a war unlike any war we've ever had before, and it's a very secret war on their side.
And I think the administration has taken the position that we've got to be very careful about disclosures on our side as well.
Is it not true that the disclosures that have occurred have very definitely hurt our ability to gather intelligence?
GONZALES: The director of the CIA, I believe, has publicly commented that it has hurt us.
HATCH: Well, it's important, General, to bring out that President Clinton's administration ordered several warrantless searches on the home and property of a domestic spy, Aldrich Ames.
That's true, isn't it?
GONZALES: That is correct, sir.
HATCH: That was a warrantless set of searches.
GONZALES: That is correct, sir.
HATCH: And the Clinton administration also authorized the warrantless search of the Mississippi home of a suspected terrorist financier. Is that correct?
GONZALES: I think that is correct, sir.
HATCH: The Clinton Justice Department authorized these searches because it was the judgment of Deputy Attorney General Jamie Gorelick, somebody I have great admiration for, that -- and let me quote her. It has been quoted before, but I think it's worth quoting it again. This is the deputy attorney general of the United States in the Clinton administration.
The president, quote, she said, "The president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes." Now this is against the domestic people.
"And the rules and methodologies for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
You're aware of that quote.
GONZALES: I am aware of it, yes, sir.
HATCH: But if the president has inherent ability to surveil American citizens in national security cases during peacetime, I guess what's bothering me, how can it be that President Bush is precluded, as some have argued, from surveilling Al Qaida sources by intercepting foreign calls into this country to people who may be Al Qaida or affiliated with Al Qaida or affiliated with somebody who is affiliated with Al Qaida?
How can that be?
GONZALES: Senator, I think that the president's authority as commander in chief obviously is stronger during a time of war. If the authorization to use military force did not exist or was repealed or was not interpreted in the way that we are advocating, then it seems to me you're teeing up a fairly difficult constitutional question as to whether or not Congress can constitutionally limit the president's ability to engage in electronic surveillance of the enemy during a time of war.
HATCH: Well, we were aware of the Clinton administration's approaches. I don't know of any Republicans who raised Cain about that.
Walter Dellinger, the former head of the office of legal counsel under President Clinton, in a final opinion published on July 14th, 1994, wrote, quote, "Specifically, we believe that the prohibition on destruction of aircraft would not apply to the actions of United States military forces acting on behalf of the United States during a state of hostilities.
"We note specifically that the application of the provision to acts of the United States military personnel in a state of hostilities could lead to absurdities. For example, it could mean in some circumstances that military personnel would not be able to engage in reasonable self-defense without subjecting themselves to the risk of criminal prosecution."
General, do you believe that Walter Dellinger, who is now a critic of the president's authorization of wartime surveillance of Al Qaida was correct in 1994?
GONZALES: Sir, I haven't studies that opinion in a while, but it sounds like it would be correct, in my judgment.
HATCH: All right.
Let me just bring up again, as I understand it, just so we can repeat it one more time, the administration takes the position that a further statute, on top of Section 109, the FISA act, would also complement the act.
And the authorized use of military force, granted by Congress, is an acceptable, legitimate statute that goes to the point that I made earlier "to use all necessary and appropriate force against the nations, organizations or persons the president determines planned, authorized, committed or aided the terrorist attacks," and that justifies doing what you can to interdict these foreign terrorists who are calling into our country to people who may also be affiliated.
HATCH: Now as I understand it, that's part of it.
The second part of it is the fact that you are citing that the president does have inherent powers under Article 2 of the Constitution to engage in these activities; and, thirdly, that you have not violated the Fourth Amendment of the Constitution because the position you're taking under these circumstances, with the obligation to protect this country, are reasonable searches and seizures.
GONZALES: I think clearly these searches are reasonable given the circumstances: the fact that we have been attacked by enemy here within this country.
I think it would fall within the special needs jurisprudence of the Supreme Court that would allow warrantless searches.
Let me just say that an important component of our argument relies upon the canon of constitutional avoidance, because I've heard some members of the committee say they're not sure they buy the authorization to use military force analysis.
If our interpretation is simply fairly possible, if it is only fairly possible, then the court has held that that interpretation must be adopted if it means that we can avoid a tough constitutional issue.
HATCH: Well, thank you, sir. My time's done.
FEINSTEIN: Thank you, Mr. Chairman.
Mr. Chairman, I want to respond to you on the Jamie Gorelick/Aldrich Ames situation...
FEINSTEIN: ... because, in fact, the law was changed directly after the Aldrich Ames case.
I called -- because I heard you say this before -- so I called Jamie Gorelick and I asked her to put this in writing. She has done so and I have it before me now.
And she points out in this letter that her '94 testimony arose in context of congressional consideration of an extension of FISA to cover physical searches.
And at the time, FISA covered only electronic surveillance such as wiretaps.
In 1993, the attorney general had authorized foreign intelligence physical searches in the investigation of Aldrich Ames, whose counsel thereafter raised legal challenges to those searches.
FEINSTEIN: Point: There was no law at that time.
And then she goes on to say that the Clinton administration believed, quote, "It would be better if there were congressional authorization and judicial oversight of such searches. My testimony did not address inherent presidential authority to conduct electronic surveillance which was already covered by FISA."
I would ask that this letter and her testimony be entered into the record.
HATCH: Without question, it will be entered into the record.
FEINSTEIN: Thank you.
You know, I respect you greatly, but I think that's a bit of a red herring.
HATCH: But you need to also quote, in the same letter, that she said, "My testimony did not address whether there would be inherent authority to conduct physical searches if FISA were extended to cover physical searches."
And she goes on -- we'll put it into the record.
FEINSTEIN: All right.
SESSIONS: Mr. Chairman, can I just make one point...
FEINSTEIN: If I have extra time...
HATCH: You will have extra time. You'll have extra time.
SESSIONS: The attorney general explained that when I asked him. He narrowed my question when I raised it and made that qualification. Perhaps you weren't here when he did that.
FEINSTEIN: All right.
And, Mr. Attorney General, it's my view that the briefings of the big eight essentially violate the law as well. I believe that's a second violation of law, because I believe that Section 502 of 5 USC 13(a)(1) and (a)(2) and (b)(1) and (2) specifically say how the Intelligence Committee should be notified.
I was present in the Intelligence Committee in December of 2001 when this was considered. And Senator Graham was chairman of the committee and the committee really wanted all sensitive intelligence reported in writing. And what this did was set up a mechanism for that.
So, in my view, it was very clear that what the Intelligence Committee wanted at the time was all sensitive intelligence outside of covert to be reported to the committee. And this set up the format.
Now, let me just move on if I can.
GONZALES: Senator, could I respond to that?
FEINSTEIN: Sure, of course.
GONZALES: Because I disagree.
First of all, both Chairman Roberts and Chairman Hoekstra disagree. They believe that we have provided notice as required by the law to the Intel Committees. And they both take the position that nowhere in the law does it require that each individual member of the Intel Committee be briefed.
The section that I think you quoted to -- and I must tell you, sometimes it gets, kind of, confusing to read these (bb)s and (1.1)s -- it gets kind of confusing.
GONZALES: I think you're referring to a section which imposes an obligation on the president to ensure that agencies within the administration meet the notice requirements.
If you go at the actual notice requirements, however, under 413(aa) and 413(bb), those impose the obligations to provide to make sure that the Intel Committees are currently and fully informed.
However, (aa), which deals with noncovert action, and (bb), which deals with covert action, both have a proviso that to the extent it doesn't mean compromising -- and I'm paraphrasing here -- sources and methods, and especially sensitive matters.
And so I think we've been acting consistent with the law based upon these provisions that I just cited to. There's been a long practice of giving briefings only to the chair and ranking or a certain limited subset of the Intel Committees.
And, again, I would just simply remind the senator, chairmen I know guard their prerogatives jealously. And both the chairman of the Intel Committee, Senate and House, both chairmen had said, "We have met our obligations to provide briefings to the Intel Committee."
FEINSTEIN: Well, my reading of the law, I disagree. I still disagree. I recognize we have a difference of opinion.
I will propose an amendment to strengthen it in the next authorization bill.
And I remember being there, I remember the discussion.
Anyway, I'd like to move on.
I am puzzled -- and I want to go back to why you didn't come for a change in FISA. Let me just read off a few of the changes that we have made to FISA.
We extended the emergency exemption from 24 to 72 hours.
We lowered the legal standard for surveillance to the significant purpose test.
We allowed for John Doe roving wiretaps.
We lowered the standard for FISA pen traps.
We expanded their scope to include Internet routing information.
We extended the scope of business records that could be sought under FISA.
We extended the duration of FISA warrants.
We broadened FISA to enable the surveillance of lone wolf terrorists.
And we made the director of national intelligence the lead authority.
FEINSTEIN: Now, in view of the changes that we have made, I cannot understand why you didn't come to the committee unless the program was much broader and you believed it would not be authorized. That's the only reason I can figure you didn't come to the committee.
Because if the program is as the president has said and you have said, to this date you haven't briefed the Intelligence Committee, you haven't let us ask the question, "What is a link? What is an affiliate? How many people are covered? What are the precise -- and I don't believe in the briefings those questions were asked -- what are the precise numbers? What happens to the data? How long is it retained in a database? When are innocent people taken out of the database?"
And I can only believe -- and this is my honest view -- that this program is much bigger and much broader than you want anyone to know.
GONZALES: Well, Senator, of course, I cannot talk about aspects here that are beyond what the president has already confirmed.
What I can say is that those members of Congress who have received briefings know -- I think they know; and, of course, I don't know what they actually know -- but they have been briefed on all the details about all of the activities. So they know what's going on.
FEINSTEIN: I understand your point of view.
Let me go to this morning. I asked you whether there was any Supreme case -- this goes to precedent -- that's held that the president can wiretap Americans since the Congress passed the FISA law? And you responded In Re. Sealed Case.
GONZALES: Which, of course, is not a Supreme Court case.
FEINSTEIN: That's right. I was going to bring that -- which is not a Supreme Court case.
GONZALES: And I apologize if I wasn't clear in making...
FEINSTEIN: I just wanted to come back at you.
GONZALES: Yes, ma'am.
FEINSTEIN: So is pure dicta and...
GONZALES: It was not...
FEINSTEIN: I wanted to ask a question that you might not like, but I'm going to ask it anyway.
At the time of the In Re. Sealed Case, did the Department of Justice or other administration officials tell the FISA Court that warrantless domestic electronic wiretapping was going on?
GONZALES: In connection with the litigation, not to my knowledge, Senator.
And since the passage of FISA, has any court spoken specifically to the president's authority to conduct warrantless domestic electronic surveillance -- since the passage of FISA? Any Supreme Court?
GONZALES: The Supreme Court, I do not believe so.
I think the last word on this by the Supreme Court is the Keith case, the 1972 case. And I think that year is right.
And there the court dealt with domestic security surveillance. And the court was very clear -- it went out of its way I believe to make it clear that they were not talking about electronic surveillance for foreign intelligence purposes.
FEINSTEIN: Was the program mentioned to the court in the Hamdi case?
GONZALES: I do not know the answer to that question, Senator.
FEINSTEIN: I'd appreciate it if you could find the answer and let us know.
HATCH: Senator, take another two minutes, because of our interruptions.
FEINSTEIN: Thank you very much.
This morning you said, and I quote, "Presidents throughout our history have authorized the warrantless surveillance of the enemy during wartime," end quote.
Has any president ever authorized warrantless surveillance in the face of a statute passed by the Congress which prohibits that surveillance?
GONZALES: I think, actually I think there was a statute on the books in connection with the order by President Roosevelt. I want to confirm that, but it's my recollection that that is, in fact, the case, that even though there was a statute on the books -- and maybe even a Supreme Court case; I can't remember now -- President Roosevelt ordered electronic surveillance.
FEINSTEIN: I'd be very interested to know that.
If I understand your argument, it's that if one doesn't agree that the resolution to authorize military force provides a statutory exception to FISA, then FISA is unconstitutional.
GONZALES: No -- well, if I was -- if that's the impression I gave, I don't want to leave you with that impression.
GONZALES: That tees up, I think, a difficult constitutional issue. I think the -- it's an easier issue for the executive branch side than the facts that were dealt with under Youngstown v. Sawyer because there you were talking about the president of the United States exercising dominion over part of our domestic industry, the steel industry.
Here you're talking about what I think is a much more core constitutional right of the commander in chief.
I believe that the president -- that a statute that would infringe upon that, I think there would be some serious constitutional questions there -- but I'm not prepared at this juncture to say, absolutely, that if the AUMF argument doesn't work here that FISA is unconstitutional as applied. I'm not saying that.
FEINSTEIN: All right, but you sidestepped FISA, using the plenary authority as commander in chief. The problem there, as I see it, is that Article 1 Section 8 gives the Congress the authority to make the regulations for the military. NSA is part of DOD; therefore the Congress has the right to make those regulations.
GONZALES: I think that the clause you're referring to is the clause in Section 8 of Article 1 which clearly gives to the Congress the authority and power to make rules regarding the government and regulation of our armed forces.
And then the question is, well -- electronic surveillance -- is that part of the government and regulation of our armed forces?
There are many scholars who believe that, there, we are only talking about, sort of, the internal administration of our military, like courts-martial, like selective service.
And so, I think there would be a question, a good debate and discussion about whether or not -- what does that clause mean and does it give to the Congress, under the Constitution, the authority to impose regulations regarding electronic surveillance?
I'm not saying that it doesn't. I'm just saying that I think that's obviously a question that would have to be resolved.
HATCH: Senator, your time is up. Senator Grassley?
FEINSTEIN: Thank you very much.
Thanks, Mr. Attorney General.
GRASSLEY: Thank you.
It appear to me that FISA generally requires that, if surveillance is initiated under the Emergency Authorization provisions and an order is not obtained from the FISA Court, that the judge must, quote, "cause to be served on any U.S. person named in the application and on such other U.S. persons subject to electronic surveillance as the judge and the court," quote, "believes warranted the fact of the application; two, the period of the surveillance; and, three, the fact that during the period information was or was not obtained."
So, that brings these questions, if that is the factual reading of the statute.
GRASSLEY: Does this explain the caution and the care and the time that is used when deciding whether to authorize 72-hour emergency surveillance?
And let me follow up. And then the possibility that if you got it wrong, could you wind up tipping off an enemy? In this case, we're worried about Al Qaida terrorists.
Would this interfere with the president's ability to establish this vital early warning system under FISA?
And is this one of the reasons then -- and this is the last question -- is this one of the reasons why FISA is not as nimble and quick a tool as you need to combat terrorist threats and that members of this committee think ought to be used to a greater extent?
GONZALES: Senator, those are all very good questions.
The reason we're careful about our work in seeking a FISA is that we want to get it right. We absolutely want to get it right in every case.
And we have career professionals working hard on these kinds of issues. And we want to get it right.
It is true that if I give an emergency authorization and an order is not obtained, my understanding of the statute is that the presumption is that the judge will then notify the target of that surveillance during that 72-hour period.
We would have the opportunity and make arguments as to why the judge should not do that. But in making those arguments, we may have to disclose information certainly to the target.
And if we fail, the judge may very well notify the target that they were under surveillance. And that would be damaging. That could possibly tip off a member of Al Qaida or someone working with Al Qaida that -- and we have reasons to be concerns about their activities.
And so it is one of the many reasons why we take such great care to ensure that when I grant an emergency authorization, that all the requirements of FISA are met.
The reason we have such a high approval rate at the FISA Court is not because the FISA Court is a rubber stamp. It's because we do our work in ensuring that those applications are going to meet the requirements of the statute.
GRASSLEY: What we know about Al Qaida and their method of operation -- which I think, at the very least, we think that it involves the placement of sleeper cells in our country for months -- or they look way ahead; it could even be for years -- for a planned attack, and the need to rely upon electronic communication network to convey instructions to those cells from command structures that would be located, for Al Qaida, outside the country.
The surveillance program authorized by the president was tailored precisely to meet the natures of the threat that we face as a nation, particularly with sleeper cells.
Would that be right?
GONZALES: It is a narrowly tailored program. And, of course, that helps us in the Fourth Amendment analysis as to whether or not these are reasonable searches.
And we believe that, under the special needs jurisprudence, given the fact that we have been attacked from folks from Al Qaida within our country, we believe that these would satisfy the requirements of the Fourth Amendment.
GRASSLEY: I think in your opening statement, didn't you make a reference to bin Laden about his recent speech two weeks ago -- and that's obviously a reiteration of the threat -- and he said that these future attacks could dwarf the 9/11 magnitude?
GRASSLEY: If that is true, is it in some sense incredible to you that we're sitting here having this discussion today about whether the president acted lawfully and appropriately in authorizing a program narrowly targeted at communication that could well lead to a disruption or prevention of such an attack?
GONZALES: Senator, I think that we should all be concerned to ensure that all branches of government are operating within the limits of the Constitution. And so I certainly -- I can't disagree with this hearing, the discussions, the questions in these hearings.
I think we have a good story to tell from the administration viewpoint.
I wish there were more that we could tell, because it's not simply a coincidence that the United States of America has not been hit again since 9/11. It's because of the brilliant and wonderful work of our men and women in the military overseas, it's because of tools like the Patriot Act, it's because of tools like the terrorist surveillance program.
GRASSLEY: Howard Dean, the chairman of the Democratic Party, was quote recently as equating the terrorist surveillance program authorized by President Bush to, quote, "abuses of power during the dark days of the Nixon administration."
You're awful young, but does that have a fair comparison to you? And if it isn't a fair comparison, why or why not?
GONZALES: Well, it is not a fair comparison.
I would direct you and the other members of the committee to Chairman Roberts' response to Mr. Dean in terms of making it clear that what's going on here is much more akin to the directive by President Roosevelt to Attorney General Jackson in terms of authorizing his administration to initiate warrantless surveillance of the enemy.
And so, again, this is not domestic surveillance, this is not going after our political enemies. This is about international communications, this is about going after Al Qaida.
GRASSLEY: I wonder if you'd discuss the nature of the threat posed by Al Qaida to our country because Al Qaida operates not under the rules of law, but disregard and contempt for conventional warfare.
GRASSLEY: In combating Al Qaida, can we afford to rely purely upon conventional law enforcement techniques such as those traditionally used to combat organized crime groups or narcotic traffickers?
And if we were to do that, what would be the result?
GONZALES: The president expects us to use all the tools available under the Constitution.
Obviously, we have strong law enforcement tools that we have been using and will continue to use. But this is also a very serious military campaign. And we're going to exercise and use all the tools, again, that are available to us in fighting this new kind of threat in this new kind of war.
GRASSLEY: I think we had some discussion from you about the review that goes on every 45 days, or approximately every 45 days.
But the president himself said, quote, "carefully reviewed approximately every 45 days to ensure its ongoing propriety."
The surveillance is then reauthorized only after the president signs off on it. So I want to ask you a few questions about this review process. I want to ask these questions because it's important that the American people know whether the president has instituted appropriate procedures to guard against abuses.
In the 42-page legal memorandum from your department, it's noted about the program, quote, "reviewed for legality by the Department of Justice and are monitored by the general counsel and the inspector general of the NSA to ensure that civil liberties are being protected."
I'd like to give you the opportunity to explain to the fullest extent possible without compromising the programs, the what, who, when, why, where and how of the periodic review.
What can you tell us about the periodic review and reauthorization of the surveillance program? What assurances can you give the American people about their constitutional rights being zealously guarded against abuses?
GONZALES: There's a lot there in that question, Senator. I will do my best to respond.
Obviously, this is a periodic review, approximately every 45 days or so. And we have people from the intelligence community evaluate whether or not Al Qaida -- what is the level of threat that continues to be posed by Al Qaida?
And during that period of time, we have monthly meetings out at NSA where people who are involved in the program, senior officials, get together, sit down, talk about how the program is operating, ensure that the program is being operated in a way that's consistent with the president's authorization.
GONZALES: In connection with each authorization, the Department does make an analysis with respect to the legal authority of the president of the United States to move forward.
And so there are administration lawyers that are involved, looking to see whether or not -- does the president still have the authority to authorize the terrorist surveillance program that I've described here today?
GRASSLEY: I think my time's up. I was going to have some follow-up questions on that point but, if it's necessary, I'll submit it for answer in writing.
HATCH: Thank you, Senator.
FEINGOLD: Thank you, Mr. Chairman. General Gonzales, when my time ended last time, we were beginning to talk about the president's statements in the State of the Union that his predecessors used the same legal authority that he is asserting.
Let me first ask: Do you know of any other president who has authorized warrantless wiretaps outside of FISA since 1978 when FISA was passed?
GONZALES: None come to mind, Senator, but I'd be happy to look to see whether or not that's the case.
FEINGOLD: I'll take it as a "no" unless you submit something.
GONZALES: I can't give you an answer.
FEINGOLD: OK. Isn't it true that the only federal courts to decide the president's authorized warrantless national security wiretaps were considering wiretaps carried out before the enactment of FISA?
GONZALES: I'm sorry, Senator, I was thinking about your question and I...
FEINGOLD: Would you like to answer the previous question?
GONZALES: No, but I was thinking about -- I was trying to think of an answer and I didn't catch the first part of your second question.
FEINGOLD: Isn't it true that the only federal courts to decide the president's authority to authorize warrantless national security wiretaps were considering wiretaps that were carried out before the enactment of FISA?
GONZALES: In which there were actual decisions? Actually, there was a 4th Circuit decision, the Truong decision, which was decided after FISA.
To be fair, I don't think they really got into an analysis...
FEINGOLD: And that case was about a Vietnam era wiretap, before FISA was enacted, right?
GONZALES: The collection occurred before FISA was enacted. The decision was made after FISA. And consequently my recollection is that case doesn't really get into a discussion about how the passage of FISA impacts or affects the...
FEINGOLD: If it was based on facts prior to FISA, then the only law that controls is the law prior to FISA, right?
GONZALES: That's right.
And then of course In Re. Sealed Case...
FEINGOLD: You covered that with Senator Feinstein. That was dicta...
FEINGOLD: Thank you.
So when the president said that federal courts have, quote, "approved the use of that authority," unquote, he was trying to make people think that the courts had approved the authority he was invoking and the legal theory that you put forward here. That isn't really accurate, is it?
GONZALES: The president was totally accurate in saying that in considering the question as to whether or not the president has inherent constitutional authority to authorize warrantless searches consistent with the Fourth Amendment to obtain foreign intelligence, the statement I think is perfectly accurate.
FEINGOLD: But he said the federal courts had said it was all right.
GONZALES: That's right.
FEINGOLD: And you weren't able to give me anything here since FISA that indicates that.
GONZALES: But, Senator, I don't believe that he was making a statement since or before FISA. He was making the statement that courts who have considered the president's inherent constitutional authority, the court of appeals have said, there were five court of appeals decisions cited in the In Re. Sealed Case, all of them have said, I believe, that the president does have the constitutional authority to engaged in this kind of surveillance.
FEINGOLD: Mr. Attorney General, that's why we just went over all this, because all of that is based on pre-FISA law. And here's my concern. The president has somehow suggested that he couldn't wiretap terrorists before he authorized this program.
He said, quote, "If there are people inside our country who are talking with Al Qaida, we want to know about it," unquote. And of course I agree with that 100 percent, and have a law that permits it.
Isn't it true that FISA permits the NSA to wiretap people overseas without a court, even if they call into the United States.
GONZALES: Well, of course, it depends, Senator.
FEINGOLD: Well, it does do that in some circumstances, does it not?
GONZALES: It could do it in certain circumstances, depending on whether or not it is an electronic surveillance, as defined under FISA. As you know, it's a very -- I don't want to say convoluted -- it's a very complicated definition of what kind of radio or wire communications would in fact be covered.
FEINGOLD: General, I understand that, but clearly FISA in part does permit that kind of activity, in certain cases.
GONZALES: Depending on the circumstances.
FEINGOLD: To leave the impression that there is no law permitting that would be incorrect.
GONZALES: Of course not. We use FISA...
FEINGOLD: That's what I'm trying to get at is the impression that the president left I think in the State of the Union was not completely accurate.
Isn't it true that FISA permits the FBI to wiretap individuals inside the United States who are suspected of being terrorists or spies, so long as the FBI gets secret approval from a judge?
GONZALES: Senator, I think I've already said that with respect to even domestic communication involving members of Al Qaida we use all the tools available to us, including FISA. If we can get a FISA...
FEINGOLD: So the fact is when the president suggested he doesn't have that, that power doesn't exist, that power does exist, at least in part, under FISA, under current law.
GONZALES: I don't know whether or not that's what the president suggested. But clearly the authority does exist for the FBI, assuming we can meet the requirements of FISA, assuming it is electronic surveillance covered by FISA, to engage in electronic surveillance of Al Qaida here in this country.
FEINGOLD: Here is what the president said. He said again, quote, "If there are people inside our country who are talking with Al Qaida, we want to know about it," unquote.
I was sitting in the room. He sure left me the impression that he was suggesting that without this NSA program somehow he didn't have the power to do that. That's misleading.
So when the president said that he authorized a program to, quote, "aggressively pursue the international communications of suspected Al Qaida operatives and affiliates to and from America," trying to suggest that without this program he could not do that under the law, that's not really right, is it?
GONZALES: Senator, I believe what the president has said is accurate. It is not misleading. The day following the New York Times story, he came out to the American people and explained what he had authorized.
GONZALES: We have given numerous briefings to Congress since that day. I'm here today to talk about the legal authorities for this program.
FEINGOLD: I think the president's comments in the State of the Union were highly misleading. The American people need to know that you already have legal authority to wiretap anyone you suspect of helping Al Qaida.
And every person on this committee in the Senate supports your use of FISA to do just that.
Let me switch to another subject. Senator Feinstein sort of got at this, but I want to try a different angle.
If you can answer this with a yes or no, I would obviously appreciate it: Has the president taken or authorized any other actions, any other actions that would be illegal if not permitted by his constitutional powers or the authorization to use military force?
GONZALES: Repeat your question please, Senator.
FEINGOLD: Has the president taken or authorized any other actions that would be illegal if not permitted by his constitutional powers or the authorization to use military force?
GONZALES: You mean in direct contradiction of a statute, and relying upon his commander in chief authority?
FEINGOLD: Has he taken any other action that would be illegal...
GONZALES: Not to my knowledge, Senator.
FEINGOLD: In other words, are there other actions under the use of military force for Afghanistan resolution that, without the inherent power, would not be permitted because of the FISA statute? Are there any other programs like that?
GONZALES: Well, I guess what I'd like to do, Senator, is I want to be careful about answering your question. I obviously cannot talk about operational matters that are not before this committee today. And I don't want to leave you with the wrong impression.
And so I would like to get back to you with an answer to that question.
FEINGOLD: I definitely prefer that to being told that something's a hypothetical.
On September 10th, 2002, Associate Attorney General David Kris testified before the Senate Judiciary Committee. His prepared testimony includes the following statement, quote:
"Thus both before and after the Patriot Act, FISA can be used only against foreign powers and their agents and only where there is at least a significant foreign intelligence purpose for the surveillance."
FEINGOLD: Let me repeat, for emphasis: "We cannot monitor anyone today whom we could not have monitored at this time last year," unquote.
And this last sentence was actually underlined for emphasis in the testimony, so let me repeat it, too: "We cannot monitor anyone today whom we could not have monitored at this time last year."
Now, I understand that Mr. Kris did not know about the NSA program and has been highly critical of the legal justifications offered by the department.
I also realize that you were not the attorney general in 2002. So, I know you won't know the direct answer to my question.
But can you find out -- and I'd like if you could give a response in writing -- who in the White House and at the Department of Justice reviewed and approved Mr. Kris' testimony?
And, of those people, which of them were aware of the NSA program and thus let what was obviously a highly misleading statement be made to the Congress of the United States?
Will you provide me with that information?
GONZALES: We'll see what we can provide to you, Senator.
Sir, my understanding is that Mr. Kris -- I don't think it's fair to characterize his position as highly critical. I think he may disagree, but saying it's highly critical, I think, is unfair.
FEINGOLD: Well, we could debate that. But the point here is to get to the underlying information. I appreciate your willingness to get that for me if you can.
General Gonzales, I'd like to explore a bit further the role of the telecommunications companies and Internet service providers in this program.
As I understand it, surveillance often requires the assistance of these service providers.
And the providers are protected from criminal and civil liability if they have been provided a court order from the FISA court or criminal court or if a high-ranking Justice Department official has certified in writing that, quote, "No warrant or court order is required by law, that all statutory requirements have been met and that the specified assistance is required."
Am I accurately stating the law?
GONZALES: I believe that's right, Senator. But...
FEINGOLD: Have you or anyone at the Justice Department provided any telephone companies or ISPs with these certifications in the course of implementing the NSA's program?
GONZALES: Senator, that is an operational detail that I just can't go into in this hearing.
FEINGOLD: I look forward to an opportunity to pursue it in other venues. And thank you very much.
GONZALES: Thank you, Senator.
HATCH: Thank you, Senator.
KYL: Thank you, Mr. Chairman.
I hadn't intended to ask any questions. But I think there are two areas that need to be cleared up.
First, with regard to two points that Senator Feingold said, in which the president made highly misleading statements, one in the State of the Union, allegedly, leaving the impression that the president had authority he didn't have -- when he discussed -- the president -- the authority that he had that other presidents had or had exercised, what was he referring to there?
Was he referring to FISA or was he referring to something else?
GONZALES: Senator, he was referring to the president's inherent constitutional authority to engage in electronic surveillance of the enemy.
And, secondly, Senator Feingold asked you if there was authority under FISA to conduct wiretaps, including of suspected Al Qaida terrorists and that it was misleading of the president to infer otherwise.
Is it possible to acknowledge the FISA authority exists while also making the point that it's not the optimal or maybe even workable method of collection of the kind that's done under the surveillance program at issue here?
GONZALES: No question about it. It was one of the reasons for the terrorist surveillance program, is that while FISA ultimately may be used, it would be used in a way that's ineffective, because of the procedures that are in FISA.
KYL: Thank you.
Now, let me clear up a concern expressed by Senator Feinstein that the reason that Congress hadn't been asked to statutorily authorize this surveillance program may be because it's much bigger than we have been led to believe. Is that the reason?
GONZALES: Senator, the reason is because, quite frankly, we didn't think we needed it under the Constitution, and also because we thought we had it with respect to the action by the Congress. We have believed from the outset that FISA has to be read in a way where it's not inconsistent with the president's constitutional authority as commander in chief.
KYL: Right. Now, there was also discussion about briefings by the intelligence community, General Hayden and perhaps others, to what's been called the big eight, which are the four elected leaders, bipartisan, of the House and Senate, and the four chairmen and ranking members of the two intelligence committees of the Congress.
Was that the group that you referred to when you said that there had been discussion about whether to seek an amendment of FISA in the Congress?
GONZALES: Senator, it did include the leadership of the Congress and the leadership of the Intel Committees.
KYL: OK. And in terms of evaluating -- there was also Senator Leahy asked the question about why you didn't come to members of this committee.
Who would be in a better position to judge the or to assess the impact on our intelligence with respect to compromise of the program? Would it be the leadership and chairmen and ranking members of the Intelligence Committees or members of this committee that hadn't been read into the program?
GONZALES: Senator, the judgment was made that the conversation should occur with members of the Intel Committee and the leadership of the Congress, bipartisan.
KYL: And, in fact, if you came to this committee to seek amendments to cover the program at issue, the members of this committee would have to be read into the program, would they not?
GONZALES: Yes, sir.
KYL: Now, Senator Leahy also said: "Thank goodness" -- I'm paraphrasing now -- "Thank goodness that we have the press to tell us what the administration's doing with this program, because we wouldn't know otherwise."
And of course the press did disclose the existence of this highly classified program, which you have indicated has compromised the program to some extent or has done damage to it.
KYL: I forgot your exact phrase.
GONZALES: Those, I believe, were the comments from the CIA director.
KYL: All right.
And it seems to me, Mr. Chairman, that the attitude that it's a good thing that this program was compromised validates the view of the bipartisan leadership that briefing members of Congress further or at least briefing members of this committee would further jeopardize the program.
It seems to me those entrusted with knowledge of this program must be committed to its protection.
Thank you, Mr. Chairman.
HATCH: Thank you, Senator.
SCHUMER: Thank you, Mr. Chairman.
I just want to go back to where we left off, and then I'll move forward.
And thank you, General Gonzales. I know it's been a long day for you, especially with all that bobbing and weaving. It's not so easy.
We talked before about the legal theory that you have, under AUMF. And I had asked you that under your legal theory, can the government, without ever going to a judge or getting a warrant, search an American's home or office.
I'm not saying -- well, can you give me an answer to that? Why wouldn't the same exact legal theory apply? That the Congress in the resolution gave the president power he needed to protect America. Why is one different than the other? Both are Fourth Amendment.
GONZALES: I'm not suggesting that it is different, quite frankly. I would like the opportunity, simply, to think...
SCHUMER: I'm sorry. If you could pull the mike up. Sorry.
GONZALES: I'm sorry. I'm not saying that it would be different. I would simply like the opportunity to contemplate over it and give you an answer.
SCHUMER: And you will be back here so we can ask that. Right?
GONZALES: According to the chairman.
SCHUMER: OK. Good.
If not, I would ask unanimous consent that General Gonzales be given time to answer that one in writing.
HATCH: He said he would.
SCHUMER: OK. Good.
Now, here's the next question I have: Has the government done this? Has the government searched someone's home, an American citizen, or office, without a warrant since 9/11, let's say?
GONZALES: To my knowledge, that has not happened under the terrorist surveillance program, and I'm not going to go beyond that.
SCHUMER: I don't know what that -- what does that mean, under the terrorist surveillance program? The terrorist surveillance program is about wiretaps. This is about searching someone's home. It's different.
So it wouldn't be done under the surveillance program. I'm asking you if it has been done, period.
GONZALES: But now you're asking me questions about operations or possible operations, and I'm not going to get into that, Senator.
SCHUMER: I'm not asking you about any operation. I'm not asking you how many times. I'm not asking you where...
GONZALES: You asked me has that been done.
GONZALES: Have we done something?
GONZALES: That is an operational question, in terms of how we're using capabilities.
SCHUMER: So you won't answer whether it is allowed and you won't answer whether it's been done.
I mean, isn't part of your -- in all due respect, as somebody who genuinely likes you, but isn't this part of your job, to answer a question like this?
GONZALES: Of course it is, Senator.
SCHUMER: But you're not answering it.
GONZALES: Well, I'm not saying that I will not answer the question.
GONZALES: I'm just not prepared to give you an answer at this time.
SCHUMER: OK. All right. Well, I'll accept.
And I have another one, and we can go through the same thing.
How about wiretaps? Under the legal theory, can the government, without ever going to a judge, wiretap purely domestic phone calls?
GONZALES: Again, Senator, give me the opportunity to think about that. But, of course, that is not what this program is...
SCHUMER: It's not. I understand. I'm asking because, under the AUMF theory, you were allowed to do it for these wiretaps. I just want to know what's going on now.
Let me just -- has the government done this? You can get back to me in writing.
GONZALES: Thank you, Senator.
SCHUMER: OK. And one other. Same issue. Placed a listening device -- has the government, without every going to a judge, placed a listening device inside an American home to listen to the conversations that go on there?
GONZALES: Same answer, Senator.
But now I have another one. And let's see if you give the same answer here.
GONZALES: All right.
SCHUMER: And that is: Under the legal theory, can the government, without going to a judge -- this is legal theory; I'm not asking you whether they do this -- monitor private calls of its political enemies, people not associated with terrorism but people who they don't like politically?
GONZALES: We're not going to do that. That's not going to happen.
All right. Next, different issue.
Last week in the hearing before the Intelligence Committee, General Hayden refused to state publicly how many wiretaps have been authorized under this NSA program since 2001. Are you willing to answer that question, how many have been authorized?
GONZALES: I cannot. No, sir. I am not at liberty to do that.
I believe -- and, of course, I have not been to all the briefings to the congressional leaders and the leaders of the Intel Committee -- I believe that that number has been shared, however, with members of Congress.
SCHUMER: You mean the chair of the Intelligence Committee or something?
It's not a classified number, is it?
GONZALES: I believe it is a classified number -- yes, sir.
SCHUMER: But here's the issue. FISA is also important to our national security. And you've praised the program, right?
GONZALES: I couldn't agree more with you, Senator.
GONZALES: It's very important.
SCHUMER: Now FISA makes public every year the number of applications. In 2004, there were 1,758 applications. Why can't we know how many under this program? Why should one be any more classified than the other?
GONZALES: I don't know whether or not I have a good answer for you, Senator.
SCHUMER: I don't think you do.
GONZALES: The information is classified, and I certainly would not be at liberty to talk about it here in this public forum.
SCHUMER: And I understand this isn't exactly your domain, but I can't even think of a rationale why one should be classified and one should be made routinely public. Both involve wiretaps, both involve terrorism, both involve protecting American security, and we've been doing the FISA one all along.
I'm sure if the -- well, let me ask you this. If the administration thought that revealing the FISA number would damage security, wouldn't they move to classify it?
GONZALES: I think maybe -- of course, now I'm going to give you an answer. Perhaps it has to do with the fact that FISA, of course, is much, much broader. We're talking about enemies beyond Al Qaida. We're talking about domestic surveillance. We're talking about surveillance that may exist in peacetime, not just in wartime.
And so perhaps the equities are different in making that information available to Congress.
SCHUMER: Would you support declassifying that number?
GONZALES: Senator, I would have to think about that.
SCHUMER: OK, we'll wait. Wait for the next (inaudible), it's another one. We have a lot of questions to follow up on here.
GONZALES: I look forward to our conversation.
SCHUMER: Me, too. Me, too.
Abuses. When Frank Church was speaking at the hearing that Senator Kennedy, I think, talked about much earlier this morning, he said the NSA's, quote, "capability at any time could be turned around on the American people and no American would have any privacy left -- such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter, there would be no place to hide."
Now it's 31 years later and we have even more technology. So the potential that Senator Church mentioned for abuse is greater.
So let me ask you these questions. I'm going to ask a few of them so you can answer them together.
Have there been any abuses of the NSA surveillance program? Have there been any investigations arising from concerns about abuse of NSA program? Has there been any disciplinary action taken against any official for abuses of the program?
GONZALES: Senator, I think that...
SCHUMER: Because this gets to another thing. This is what we're worried about.
Most of us -- I think all of us -- want to give the president the power he needs to protect us. I certainly do. But we also want to make sure there are no abuses.
And so if there have been some abuses, we ought to know about it. And it might make your case to say, "Yes, we found an abuse or a potential abuse and we snuffed it out."
Tell me what the story is.
GONZALES: Well, I do not have answers to all those questions. I'd like to remind people that, of course, even in the area of criminal law enforcement, when you talk about probable cause, sometimes there are mistakes made, as you know.
SCHUMER: No question -- no one's perfect.
GONZALES: A mistake has to be one that would be made by a reasonable man. And so when you ask, "Have there been abuses?," these are all investigations, disciplinary action...
SCHUMER: So has there been -- yes, this is something you ought to know, if there's been any disciplinary action, because I take it that would be taken...
GONZALES: Not necessarily. I think the NSA, I think, has a regimen in place where they ensure that people are abiding by agency policies and regulations.
SCHUMER: If I asked those two questions about the Justice Department, any investigations arising out of concerns about abuse of NSA surveillance or any disciplinary action taken against official, in either case by the Justice Department, you would know the answer to that.
GONZALES: I'd probably know the answer to that. To my knowledge, no.
SCHUMER: OK. Could you commit when we come back to tell us if there have been -- you know, you can then go broader than -- more broadly than what you know now...
GONZALES: As to what's going on at NSA or Justice?
SCHUMER: I mean, as the chief law enforcement officer, it's still your job to sort of know what's going on at other agencies.
GONZALES: Sir, but if we're not talking about -- each agency has its own policies...
SCHUMER: Yes. Just asking you when you come back next time to try and find...
GONZALES: I'll see what I can do about providing you additional information to your questions.
SCHUMER: It's a little soft, but I'll have to take it, I guess.
Thank you, Mr. Chairman.
HATCH: Thank you.
DEWINE: Thank you, Mr. Chairman.
Long day, Mr. Attorney General.
Let me just ask you a few questions. We've had a lot of discussion today, and you've referenced a lot to this group of eight, reporting to this group of eight.
I just want to make a point. It's a small point, I guess, but the statutory authorization for this group of eight is 50 USC 413(b). When you look at that section, the only thing this references as far as what this Group of Eight does is receive reports in regard to covert action. So that's really what all it is. It does not cover a situation like we're talking about here at all.
I just want to make that point. We all have a great deal of respect for these eight people. And it's a different group of eight at different periods of time. We've elected them; we've selected them. They're leaders of the Congress. But there's no statutory authority for this group, other than the section that has to do with covert operation, and this is not a covert operation as defined in this specific section.
GONZALES: Senator, could I respond to you, because I had a similar question from Senator Feinstein? I don't know whether or not you were here or not.
First of all, again repeating for the record that of course the chairman of the Senate Intel Committee and the chairman of the House Intel Committee...
DEWINE: And I was here when she...
GONZALES: OK. Well, they both have communicated that we are meeting our statutory obligations.
There is a provision that requires the president of the United States to ensure that agencies are complying with their notice requirements.
The actual notice requirements, as I read it, are 413(aa) and 413(bb). And 413(aa) deals with noncovert action, 413(bb) deals with covert action. And both of them...
DEWINE: Mr. Attorney General, I don't have much time. I don't mean to be impolite. I listened to that, and I respect your position on it. My only point was a small point, and that point simply is that when we reference the group of eight, there's no statutory authorization for the group of eight other than for a covert operation.
I guess I'm just kind of a strict constructionist, kind of a conservative guy, and that's how I read the statute. And that's my only point. And I understand your legal interpretation, I respect that, but that's it. I don't see it any other way on that.
Let me ask you a couple other questions that I wonder if you could clarify for me.
One is the legal standard that you are using -- that's being used by the NSA under this program for deciding when to conduct surveillance of a suspected terrorist.
In your December 19th press conference you said that you must have a, and I quote, "reasonable basis to conclude that one party to the communication is affiliated with Al Qaida."
Speaking on Fox TV yesterday, General Hayden referred to the standard as "in the probable cause range."
Could you just define it for me? I know you talked about it today, but we're hearing a lot of different definitions. You're the attorney general, just clarify it for me, pinpoint it, give me the definition that the people who are administering this every single day in the field are following.
GONZALES: To the extent there's confusion, we must take some of the credit for some of the confusion, because we have used different words.
The standard is a probable cause standard. It is reasonable grounds to...
DEWINE: A probable cause standard. Is that different than probable cause as we would normally learn that in law school...
GONZALES: Not in my judgment.
DEWINE: OK. So that means...
GONZALES: I think it's probable cause. But it's not probable cause as to guilt.
DEWINE: I understand.
GONZALES: Or probable cause as to a crime being committed. It's probable cause that a party to the communication is a member or agent of Al Qaida. The precise language that I'd like to refer to is, "There are reasonable grounds to believe that a party to communication is a member or agent or Al Qaida or of an affiliated terrorist organization." It is a probable cause standard, in my judgment.
DEWINE: So probable cause...
GONZALES: ... is probable cause.
DEWINE: And so all the case law or anything else that we would learn throughout the years about probable cause, about that specific question, would be what we would look at and what the people are being instructed to follow.
GONZALES: But, again, it has nothing to do with probable cause of guilt or probable cause that a crime had been committed. It's about...
DEWINE: I understand. We're extrapolating that traditional standard over to another question.
GONZALES: And the reason that we use these words instead of "probably cause" is because people who are relying upon the standard are not lawyers.
DEWINE: All right, let me follow up. I don't have much time. General Hayden described the standard as a softer trigger than the one that's used under FISA.
What does that mean?
GONZALES: I think what General Hayden meant was that the standard is the same but the procedures are different and that you have more procedures that have to be complied with under FISA.
But the standards are the same in terms of probable cause. But there clearly are more procedures that have to be met under FISA. And that's what I believe General Hayden meant by "a softer trigger."
DEWINE: So, it's a procedure issue, then. In other words, I have to go through more hoops on one, loops on the other. I mean, it's a difference, what I have to go through, but my legal standard is the same. Is that what you're saying?
GONZALES: There's a probable cause standard for both. And yes, sir, what has to...
DEWINE: It's the same standard?
GONZALES: It is the same standard...
DEWINE: Different question, but same standard?
GONZALES: Different procedures.
DEWINE: Final follow-up question on this. I believe you've said that the individual NSA analysts are the ones who are making these decisions -- people who are actually doing this are making the decisions, obviously.
What kind of training are these individuals given in regard to applying this standard?
Are you involved in that or are you not involved in that?
GONZALES: This is primarily handled by the general counsel's office out at NSA. And, as you know, they are very, very aware of the history of abuses.
They care very much about ensuring that all the activities that are ongoing out at NSA are consistent with the Constitution and, certainly, consistent with the authorization by the president for this terrorist surveillance program?
DEWINE: So this is not something your department is directly involved in?
GONZALES: No, sir, I think it would be unfair to say that we are directly involved. We have provided some guidance, but I think it would be unfair to say that we are directly involved.
We have provided some guidance, but I think it would be unfair to say that the Department of Justice has been intimately involved in providing training and guidance.
I think it's fair to say that that responsibility has fallen primarily to the general counsel's office out at NSA.
DEWINE: Mr. Attorney General, I want to conclude at this point. I'll just go back to what I said this morning. And that is, we've heard a lot of debate, even more debate than we had this morning, about these legal issues, people on different sides of these legal issues.
I just really believe it's in the country's best interest, the president's best interest, the war on terrorism's best interest, which is what we're all concerned about, some four years or so after this program has been initiated for the president to come to Congress and to get -- for us -- the Intelligence Committee, which is the committee that has jurisdiction, to take a look at this program, to get the briefing on the program, and then to see whatever changes in the law have to be made and to deal with it.
DEWINE: I think you will be in a -- the president will be in a much stronger position at this point to go forward and it will be in the best interest of the country.
GONZALES: Thank you, Senator.
HATCH: Thank you, Senator.
KENNEDY: Thank you, Mr. Chairman.
And thank you, General Gonzales. I join all of those that pay tribute to you for your patience on this and thank you for responding to these questions.
Just to pick up on what my friend and colleague Senator DeWine has mentioned, I am in strong agreement with that recommendation. It's bipartisan. I didn't have a chance to talk to Senator DeWine.
I mentioned earlier in the course of our visit this morning that we had, I thought, extraordinary precedent with Attorney General Levi -- Ed Levi and President Ford, where the members of this committee, a number of us went down to the Justice Department, worked with them. And they wanted to get it right. The issue was on eavesdropping, very related subject matter. They wanted to get it right.
And then General Levi had a day and a half of where he listened to outside constitutional experts, because he wanted to get it right.
My very great concern is that we're not getting it right. Maybe in terms of the NSA thinks that they're getting the information, but what we are seeing now with the leaks and others, that there are many people out there that wonder whether they are going to face future prosecution, whether the court system is going to be tied up because of information that's gained as a result of the NSA taps that's not going to be permitted, and that we're going to have these known Al Qaida personnel that are going to be either freed or given a lesser sentence or whatever, and that they're less inclined to sort of spill the beans, because if they know that they're going away, or worse, they'll be better prepared to make a deal with the law enforcement authorities than if they think they can tie up the courts.
So in the FISA act, as you well know, the 15 days that were included in there were included, as the legislative history shows, so that if they needed to have a broader context, it was spelled out in the legislative history. The administration would have seven days, allegedly, to make emergency recommendations, and we'd have seven days to act.
Maybe that was too precipitous, but that was certainly the intent, the invitation at the time to recognize the time.
And I think I believe very strongly that that, as Senator DeWine has made, we want to get -- we have uncertainty now, when you have those within your own department who wonder about the legality, the list of constitutional authorities that question the legality. You have Professor Curtis Bradley, someone who had been a part of the administration, the State Department, who questions the legality. I think this is a matter of concern.
I understand, I asked you -- I don't think I gave you a chance to answer, but you really didn't have a chance to test this out with outside constitutional authority, as I understand it.
GONZALES: Of course I wasn't at the department when the program commenced. And so, certainly, from within the White House, I'm not aware of any discussions generally or specifically. I don't think there would have been any specific discussions with outside experts.
And I suspect -- in fact, I'm fairly sure -- that there were not discussions with outside experts at the department, although I don't know for sure.
KENNEDY: Well, we'll have our chance and an opportunity, hopefully, to find that out, in further hearings.
KENNEDY: But it is impressive what was done previously and the coming together when the legislation was passed with virtually unanimity in the House and the Senate.
And I think that, as others have expressed, we want to give the president the power to get what's right in terms of protecting us, but we need, as we do on other issues, have the kinds of checks and balance to make sure that it's done right.
Let me just -- I have just a couple of other areas that I'm not sure that you might have been asked about this, and if you can't answer it you can't answer.
But since September 11th, has the president authorized any other surveillance program within the United States under his authority as commander in chief or under the authorization for use of military force in Afghanistan?
GONZALES: Senator, I can't answer that question in terms of other operations.
KENNEDY: OK. All right.
On another issue, and I've heard from staff -- I apologize for not being here through the whole session. We were dealing with the asbestos legislation on the floor at the time, and I needed to go over to the floor.
I'm interested in the telephone companies that assist the government engaging in electronic surveillance face potential criminal and civil penalties if they disclose consumer information unlawfully.
So they are protected from such liability if they receive a written certification from the attorney general or his designee saying that, and I quote, "No warrant or court order is required by law, that all statutory requirements have been met and that the specific assistance is required."
So you understand that telephone companies can face criminal and civil liability if they provide wiretapping assistance in a way that's not authorized by statute?
GONZALES: I do understand that -- yes, sir.
KENNEDY: And have you provided a certification to the telephone companies that all statutory requirements have been met?
GONZALES: Senator, I can't provide that kind of information.
KENNEDY: You can't answer that? And you couldn't even provide us with redacted copies.
So, I guess we'd assume that, since that's a requirement, or otherwise, that they can be -- they will be held under the criminal code and that is a requirement, one would have to assume that you've given them that kind of authority, by that...
GONZALES: Sir, two points: There is a lot in the media about, potentially, what the president has authorized.
GONZALES: Much of it is incomplete; much of it is, quite frankly, wrong. And so, you have this muddled picture that the president has authorized something that's much greater than what, in fact, he has authorized.
I can't remember my second point.
KENNEDY: But your response to the earlier question about the range of different programs...
GONZALES: Oh, I remember my second point. My second point is that your question -- again, I think this is true and I want to give you -- well, maybe I shouldn't make this statement. I'm sorry. Go ahead, Senator.
KENNEDY: Well, we were looking at, sort of, the range of different programs.
I want to just mention, General, as someone that was here when we had the testimony, just quickly, on the wiretaps, there was -- prior to the time that J. Edgar Hoover used to appear, they used to lift all the wiretaps.
They'd just had 450 or 500 wiretaps; then they'd have 20 the day he'd testify and then 500 the next day. No one's suggesting that that's what's happening.
But that's really what -- many of us who have been on this committee for some time have seen those abuses. No one's suggesting that. And we understand your reluctance in mentioning this. But this is an issue that's been around over some period of time.
I'd just say, in conclusion, Mr. Chairman, I'm very hopeful. We want to have as much certainty on the program as possible.
I think what we've seen out in the public now is the information that has been out there almost, certainly, weekly, as a result of concerned individuals in these agencies, hardworking Americans that are trying to do a job and are concerned about the legality of this job.
And I think they are entitled to the protections that we ought to be able to provide for them.
Now, someone who has been a member of this committee, I think that this committee has in the past, and certainly would, recognizing the extraordinary sensitivity and the importance of it, do the job and do it right and do it well.
KENNEDY: And then, done so, I think we would have a different atmosphere and a different climate. And I think we'd be able to get the kind of information that is going to be so important to our national security.
I hope that'll be a judgment that you'll consider, as Senator DeWine has mentioned and others have mentioned.
And I appreciate your testimony.
Thank you, Mr. Chairman.
SPECTER: Before proceeding to Senator Sessions, who's next on the Republican side -- and I will defer my turn until after Senator Sessions has had his turn -- I think this is a good time to make an announcement.
Senator Kennedy made this suggestion earlier today about the committee's intentions with respect to renewing the Voting Rights Act -- especially propitious time with the death of Coretta Scott King.
We have been talking about hearings, and we're going to move to renew the Voting Rights Act this year if we possible can in advance of the 2007 date.
We have been laboring under a very, very heavy workload, which everybody knows about. And we will be scheduling those hearings early on. They have to be very comprehensive, provide an evidentiary base, and it is a matter of great concern, really, to everybody on the committee.
KENNEDY: Well, I want to thank the chair. We've had a chance to talk about this at other times. And I particularly increase his sensitivity as many of us are going down to the funeral for Coretta Scott King. I think it's an important statement, the comment that her legacy will continue.
So I thank the chair. I know we have broad support, my friend. Senator Leahy has been a strong supporter, others here -- Senator Biden.
I look around this committee. It's a very, very important legislation.
In the time that we inquired of General Gonzales, he had indicated the full support of the administration on this. We'll look forward to working with you.
I thank the chair for making that announcement.
SPECTER: Thank you, Senator Kennedy.
SESSIONS: Thank you, Mr. Chairman.
I would like to offer for the record a letter from Mr. H. Bryan Cunningham, who served for six years with the CIA and the Department of Justice in President Clinton's administration and for a term in President Bush's administration in which he defends the actions of the terrorist surveillance program.
I would also join with the chairman in welcoming Ms. Debra Burlingame here. She's been here all day. Her brother was a pilot who lost his life in the plane that crashed into the Pentagon.
And I think her presence today is a vivid reminder of the human cost that can occur as a result of negligence or failure of will or failure to utilize the capabilities that are constitutional and legal in this country.
SESSIONS: And we have a responsibility to make sure that we do those things that are appropriate and legal to defend this country. It's not merely an academic matter. We've had some good discussions here today. But it's beyond academics, it's a matter of life and death, and we've lost a lot of people. Nearly 3,000 people have no civil rights today. They're no longer with us as the result of a terrorist attack.
Thank you, Ms. Burlingame, for coming and being with us today.
We talked about the inherent power of the president. I think there's been a remarkable unanimity of support for the inherent power of the president to do these kind of things in the interest of national security. And I know post-Aldrich Ames, as you pointed out when I asked you about it, Mr. Gonzales, Attorney General Gonzales, that laws were changed with regard to that.
But, in fact, Jamie Gorelick, the deputy attorney general in the Clinton administration, testified before Congress in defense of a warrantless search of Aldrich Ames' home and the warrantless search of the Mississippi home of a terrorist in the Aldrich Ames case. She testified that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.
That sounds to me like that she was saying that that is an inherent constitutional power. I don't understand it any other way. Would you?
BIDEN: Would Senator yield for a question? What year was that? I'm sorry.
SESSIONS: This would have been after the Aldrich Ames case, '94, '95.
BIDEN: Thank you.
SESSIONS: It was before the statute was changed by the Congress. But she did not discuss it in that context. Her context was that it's the inherent power of the president. And she went on to say: And the rules and methodologies for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.
SESSIONS: And in addition to that, Judge Griffin Bell, who served as a federal judge for a number of years and was attorney general under a Democratic president, Jimmy Carter, when the FISA act was passed, acknowledged that while the bill did not recognize the president's inherent power to conduct electronic surveillance, he said this, quote, "This does not take away the power of the president under the Constitution. It simply in my view is not necessary to state that power, so there is no reason to reiterate or iterate it, as the case may be. It is in the Constitution, whatever it is."
And then he went on to say a little later when asked about the inherent power of the president to order electronic surveillance without first obtaining a warrant, former Attorney General Griffin Bell testified, "We can't change the Constitution by agreement," or by statute, I would add.
A little later, he said, when asked if he thought the president has, quote -- he was asked this question: Does the president have, quote, "the inherent right to engage in electronic surveillance of an American citizen in this country." Judge Bell responded, "I do. I think he has a constitutional right to do that, and he has a concomitant constitutional duty to do it under certain circumstances."
So I don't know all the answers to what the powers are here. There are a lot of different opinions. I would say this. You've almost been criticized some today for not going further, not surveilling purely phone calls within our country. Some on the other side have criticized you, apparently, I'm surprised you didn't assert that authority.
But the president I think acted narrowly and within what he thought would be appropriate, given our constitutional and statutory structure and after having informed eight of the top leaders in the United States Congress.
Would you comment on that?
GONZALES: It is a very narrow authorization. And again, I want to repeat what I said earlier in the hearings in terms of I want to assure you that while domestic to domestic is not covered under the terrorist surveillance program, we are using all the tools available, including FISA, to get information regarding those kind of communications.
I mean, if there are other ways to do it that are permitted under the Constitution, we're going to try to get that information. It's so very, very important.
SESSIONS: Thank you.
I would just observe that I think the system was working. It was a narrow program that the president explained to congressional leaders. He had his top lawyers in the Department of Justice and the White House review its constitutionality, and he was convinced that it was legal. He narrowly constrained it to international calls, not domestic calls, and Al Qaida connected individuals. And he also did it with the one group that he has concluded was responsible for 9/11, Al Qaida, the group that this Congress has authorized him to have hostilities against, to go to war against.
SESSIONS: And they declared war on us even before 9/11.
That's the one group, not other groups that may have hostile interests to the United States like Hezbollah or any other Colombian group or terrorist group around the world.
That's what he authorized to occur. So I think he showed respect for the Congress, not a disrespect.
And, General Gonzales, other groups that may have violent elements within them are not authorized to be surveilled through this terrorist surveillance program -- isn't that correct?
GONZALES: Senator, under the president's terrorist surveillance program again, as I've indicated, what we're talking about today is members or agents of Al Qaida or related terrorist organizations. That's what we're talking about.
And I think General Hayden, I believe, testified before the Intel Committee that there are professionals out at NSA -- and I presume from other branches of the intel community -- that provide input as to what it does that mean to be sort of related or working with Al Qaida.
SESSIONS: Well, let me just conclude with this point. I think the system was working in that way. We were conducting a highly classified important operation that had the ability to prevent other people from being killed, as Ms. Burlingame's brother was killed, and several thousand others, on 9/11.
I believe that CIA Director Porter Goss recently in his statement that the revealing of this program resulted in severe damage to our intelligence capabilities is important to note.
And I would just like to follow up on Senator Cornyn's questions, General Gonzales, and ask you to assure us that you will investigate this matter and, if people are found to have violated a law, that the Department of Justice will prosecute those cases when they revealed this highly secret, highly important program?
GONZALES: Of course, we are going to investigate it. And we will make the appropriate decisions regarding a subsequent prosecution.
SESSIONS: Will you prosecute if it's appropriate?
GONZALES: We will prosecute if it's appropriate, yes sir.
SESSIONS: Thank you.
SPECTER: Thank you, Senator Sessions.
BIDEN: Thank you very much.
General, how has this revelation damaged the program?
I'm almost confused by it but, I mean, it seems to presuppose that these very sophisticated Al Qaida folks didn't think we were intercepting their phone calls.
I mean, I'm a little confused. How did it damage this?
GONZALES: Well, Senator, I would first refer to the experts in the Intel Committee who are making that statement, first of all. I'm just the lawyer.
And so, when the director of the CIA says this should really damage our intel capabilities, I would defer to that statement. I think, based on my experience, it is true -- you would assume that the enemy is presuming that we are engaged in some kind of surveillance.
But if they're not reminded about it all the time in the newspapers and in stories, they sometimes forget.
And you're amazed at some of the communications that exist. And so when you keep sticking it in their face that we're involved in some kind of surveillance, even if it's unclear in these stories, it can't help but make a difference, I think.
BIDEN: Well, I hope you and my distinguished friend from Alabama are right, that they're that stupid and naive because we're much better off if that's the case.
I go the impression from the work I've done in this area that they're pretty darn sophisticated; they pretty well know.
It's a little like when we talk about -- when I say you all haven't -- not you, personally -- the administration has done very little for rail security.
They've done virtually nothing and people say, oh, my Lord, don't tell them; don't tell them there's vulnerabilities in the rail system. They'll know to use terror. Don't tell them that that tunnel was built in 1860 and there's no lighting, no ventilation.
BIDEN: I mean, I hope they're that stupid.
GONZALES: Sir, I think you can be very, very smart and be careless.
BIDEN: Well, OK. But if that's the extent of the damage, then I hope we focus on some other things, too.
Look, I'd like to submit for the record a letter to the -- it's probably already been done -- to Senators Specter and Leahy from former Secretary Jamie Gorelick. She makes a very basic point. I don't want to debate at this time. She said the Aldrich Ames case is about physical search. FISA didn't cover physical searches, as my distinguished friend from Alabama knows. At the time they conducted the search, FISA did not cover physical searches.
And then she went on to say, "My testimony did not address whether there would be inherent authority to conduct physical search if FISA were extended to cover physical searches. After FISA was extended to cover physical searches, to my knowledge, FISA warrants were sought."
So, I mean, let's compare apples and apples and oranges and oranges.
Let me ask a few other basic questions, because for me, I have real doubts about the constitutionality, as others have raised here. I used to have a friend who used to say, you got to know how to know. You got to know how to know. And we don't know.
Now, you're telling me and the rest of us that the director of the CIA says we've been damaged. Well, the former director told us that we were be going to be greeted with open arms, that they had weapons of mass destruction. It was honest mistakes. I mean, for me to accept the assertion made by a single person is something I'd consider, but is not dispositive.
Let me ask you this question. Do you know -- and you may not -- do you know how many of these wiretaps and/or e-mail intercepts have resulted in anything?
BIDEN: Any criminal referral.
GONZALES: Without getting into specifics, Senator, I can say that the director of the FBI said this has been a very valuable program. And it has helped identify would-be terrorists here in the United States, it has helped identify individuals providing material support for terrorists.
General Hayden has said this has been a very successful program, that but for this program, we would not have discovered certain kinds of information.
General Hayden also said that this program has helped detect and prevent -- I think those were his words -- attacks both here and abroad.
These folks are the ones that are paid to make these kinds of assessments. I'm not.
BIDEN: Have we arrested those people? Have we arrested the people we've identified as terrorists in the United States?
GONZALES: When we can use our law enforcement tools to go after the bad guys, we do that.
BIDEN: No, that's not my question, General. You said that -- you cited the assertions made by Defense Department, by General Hayden, by the FBI that this has identified Al Qaida terrorists. Have we arrested them?
GONZALES: Senator, I'm not going to go into specific discussions about...
BIDEN: I'm not asking for specifics, with all due respect.
GONZALES: ... in terms of how that information has been used and the results of that information.
BIDEN: Well, I hope we arrested them, if you identified them. I mean, it kind of worries me because you all talk about how you identify these people, and I've not heard anything about anybody being arrested. I hope they're not just hanging out there like we had these other guys hanging out prior to 9/11. I don't think you'd make that mistake again.
Can I ask you again, how is this material that proves not to -- suspected Al Qaida terrorist calls from Abu Dhabi, American citizen in Selma, Alabama. Turns out that when you do the intercept the person on the other end from Abu Dhabi wasn't a terrorist -- understandable mistake -- and it turns out the person in Selma wasn't talking to a terrorist. What do you do with that conversation that's now been recorded?
GONZALES: What I can say, Senator, is there are minimization procedures in place. You and I had this conversation before about the minimization procedures that may exist with respect to this program.
BIDEN: That may exist? Either they do or they don't. Do they exist?
GONZALES: There are minimization procedures that do exist with this program. And they would govern what happens to that information.
BIDEN: Does anybody know what they are?
GONZALES: Yes, sir, the folks out at NSA who are actually administering this program.
BIDEN: Have they told anybody in the Congress? Have they told any court?
GONZALES: Sir, I don't know the answer to that question.
BIDEN: I guess maybe you all don't have the same problem I have. If, in fact, there are minimization procedures, and they are being adhered to, no problem. If, in fact, the people being intercepted are Al Qaeda folks, and they're talking to American citizens, no problem.
But how do we know? I mean, doesn't anybody get to look at this, ever? Doesn't a court, retrospectively get to look at it? Doesn't the royalty within the Senate get to look at it? You know, this two, four, or eight people. Doesn't somebody look at it?
Or, you know, the Cold War lasted 40 years. This war is likely to last 40 years. Is this for 40 years we have so sit here and assume that every president is, yes, well, we know old Charlie. He's a good man. We're sure they wouldn't do anything wrong.
And we know no one in the intelligence community would ever do anything wrong. We have a history of proving that never occurred. And we know nobody in the FBI will ever do anything wrong. That's clear. That never occurred.
I mean, is there someplace along the line that somebody other than an analyst who we don't know, but we know he's asserted to be an expert on Al Qaida, is there somebody other than that person who is ever going to know what happened?
And whether or not there is, the next president may be less scrupulous. Maybe he or she will be engaged in data mining.
GONZALES: Sir, as I indicated in my opening remarks, that of course, the inspector general out at NSA, he has the responsibility to ensure that the activities under this program are done in a way that's consistent with the president's authorization, including the minimization requirements.
BIDEN: OK. This reminds me of a Supreme Court hearing.
What goes into the president making his decision on reauthorization every 45 days? Does anybody come and say, Mr. President, look, we have done 2117 wire taps or 219. You've had 60 percent of them had some impact, or only 1 percent has an impact. And we think -- or is it automatic? What kinds of things does the president look at, other than we still have Al Qaida out there?
GONZALES: It's not automatic. As I also indicated in my opening statement, the president receives information from the intelligence community about the threat. The threat is carefully evaluated as to whether or not we believe Al Qaida continues to be a continuing threat to the United States of America.
BIDEN: So as long as it is the program, so that's the criteria, "is Al Qaida a threat," not "is the program working," but "is Al Qaida the threat"? Is that the criteria?
GONZALES: Well, of course not. If we don't have a tool, a lawful tool that's effective, why would we use it? We only use a tool if it's effective.
BIDEN: Thank you, General.
GONZALES: Mr. Chairman -- Mr. Chairman, could I ask for a short break?
GONZALES: Thank you, Mr. Chairman.
SPECTER: The Judiciary Committee hearing will resume.
SPECTER: We have four more senators who have not completed their next round who are on the premises. So it may be that we can finish today.
Other senators have looked toward another round, so let me negotiate that between today and some date in the future to see if it is necessary to ask to you come back, Mr. Attorney General.
And I had thought about limiting the time to five-minute rounds, but we're going to be here until at least about 5:30. So let's go ahead with the full 10 minutes.
And I'll yield at this time to Senator Graham.
BIDEN: Mr. Chairman, a parliamentary inquiry: I do have other questions. I'm not asking they be asked today or even tomorrow. But, if we end today, which I think makes a lot of sense.
The general has been very generous and his physical constitution has been required to be pretty strong today here, too.
Is it likely, if, after you survey us after we close down the day that you may very well ask the general back for more questions from us in open session?
SPECTER: Senator Biden, I would like to leave that open. Senator Leahy said that he was looking forward to another round, which is where we were when he left.
I thought we would have a number of senators who wouldn't have finished a second round, so Attorney General Gonzales would have had to have come back for a second round.
But it may be that others will have further questions or it may be that, in some of our other hearings, we'll have matters we want to take up with the attorney general.
And the attorney general has stated to me his flexibility in coming back. So, let's -- is that correct, Mr. Attorney General?
GONZALES: I try to be as helpful as I can to you, Mr. Chairman.
SPECTER: I take that to be a yes.
BIDEN: The only reason I ask -- I, like you, want to go to the floor and speak on the asbestos bill that's up. And I didn't whether I should stay here for a third round or...
SPECTER: Oh, I can answer that. You should stay here.
BIDEN: I oppose the chairman's position on asbestos. I shouldn't have asked that question.
I withdraw the question, Mr. Chairman.
I expect to go until 9:00, Senator Biden. You're going to miss very important materials if you leave.