U.S. Senate Judiciary Committee Holds a Hearing on Wartime Executive Power and the National Security Agency's Surveillance Authority
Tuesday, February 7, 2006; 11:51 AM
GRAHAM: Thank you, Mr. Chairman.
Mr. Attorney General, we'll see if we can talk a little more about this constitutional tension that is sort of my pet peeve, for lack of a better word.
I would just echo again what Senator DeWine said. Instead of another round at another time, I would love to engage in a collaborative process with the administration to see if we can resolve this tension.
I want to talk to you exclusively about inherent power and your view of it and the administration's view of it and share some thoughts about my view of it.
GRAHAM: The signing statement issued by the administration on the McCain language prohibiting cruel, inhumane and degrading treatment -- are you familiar with the administration's signing statement?
GONZALES: I am familiar with it, Senator.
GRAHAM: What does that mean?
GONZALES: The entirety of the statement, Senator?
GRAHAM: Well, I mean -- I guess to me, I was taken back a bit by saying "notwithstanding." It was sort of an assertion that the president's inherent authority may allow him to ignore the dictates of the statute.
Does it mean that, or did I misunderstand it?
GONZALES: Well, of course, it may mean that this president -- first of all, no president can waive constitutional authority of the executive branch.
GRAHAM: And my question is very simple but very important: Is it the position of the administration that an enactment by Congress prohibiting the cruel, inhumane and degrading treatment of a detainee intrudes on the inherent power of the president to conduct the war?
GONZALES: Senator, I don't know whether or not we have done that specific analysis.
GRAHAM: Can I ask you this question, then?
GRAHAM: Is it your opinion and the administration's position, without the force resolution that FISA is unconstitutional in the sense it intrudes on the power of the president to conduct surveillance in the time of war?
GONZALES: I think that question has been raised a couple of times today. I have indicated that that, then, puts us into the third part of the Jackson analysis.
I've also indicated that these are difficult questions, and...
GRAHAM: I'll accept that as an honest, sincere answer, because they are difficult.
Let's get back to my scenario about the military member who has a detainee under their charge.
GRAHAM: They get an order from the commander in chief or some higher authority to do certain techniques. The justification is that we need to know about what's going to happen in terms of battlefield developments: "We believe this person possesses information." And those techniques are expressly prohibited by prior statute under the authority of the Congress to regulate the military.
That is another classic moment of tension. What do we tell that troop? I mean, if they called you as a lawyer and they said, "I've got the order from my commander, maybe even from the president, to engage in five things, but I've been told there's a statute that says I can't do that passed by Congress. What should I do?"
What would be your answer to that?
GONZALES: I don't know if I could give that person an immediate answer. I think that's the point that you're making. To put our military in that kind of a position, that's a very difficult place to be.
GRAHAM: Thank you for -- that is absolutely the point I've been trying to make for a year and a half. I want to give that troop an answer that we can all live with.
And let me take this just a little bit further. The FISA statute, in a time of war, is a check and balance. But here's where I think I'm your biggest fan. During the time of war, the administration has the inherent power, in my opinion, to surveil the enemy and to map the battlefield electronically -- not just physical, but to electronically map what the enemy is up to by seizing information and putting that puzzle together.
And the administration has not only the right, but the duty, in my opinion, to pursue fifth column movements.
And let me tell folks who are watching what a fifth column movement is. It is a movement known to every war where American citizens will sympathize with the enemy and collaborate with the enemy. And it's happened in every war.
And President Roosevelt talked about, "We need to know about fifth column movements."
So my friends on the other side, I stand by this president's ability, inherent to being commander in chief, to find out about fifth column movements, and I don't think you need a warrant to do that.
GRAHAM: But here's my challenge to you, Mr. Attorney General. There will come a point in time where the information leads to us believe that citizen A may be involved in a fifth column movement. At that point in time where we will need to know more about citizen A's activity on an ongoing basis, here is where I part.
I think that's where the courts really come in. I would like you and the next attorney general and next president, if you have that serious information that you need to monitor this American's citizen's conduct in the future, that they may be part of a fifth column movement to collaborate with the enemy, I want a check and a balance.
Here's why: Emotions run high in war. And we've put a lot of people in prison who just looked like the enemy and never did anything wrong, just as loyal American as you or I.
But it would be very easy in this war for an American citizen to be called up by the enemy and labeled as something they are not. It would be very easy, in my opinion, if you're a business person dealing in the Mideast who happens to be an American citizen, the business deal goes bad, that bad things could happen to you.
And I would just like the administration to entertain the idea of sitting down with Senator DeWine and others to see if we can find a way at some point in the process of monitoring fifth column movements to have a check and balance system that not only would strengthen the commander in chief's role, it will give guidance to the people fighting the war. You'll have Congress on board. You'll be stronger in courts. And the enemy will be weaker.
How does that proposition sit with you?
GONZALES: Senator, the president already said we'd be happy to listen to your ideas.
GRAHAM: But do you understand my inherent authority argument concern with that argument? Because taken the next president may not be as sensitive to this limited role of the government.
Really, Mr. Attorney General, you could use the inherent authority argument of a commander in chief at a time in war almost wipe out anything Congress wanted to do.
GONZALES: See, I disagree with that, Senator. I really meant what I said earlier that in...
GRAHAM: Is there a situation where the Congress could regulate or trump the inherent power argument when it comes to war?
GONZALES: I think Congress has a powerful check on the commander in chief, is through the purse.
GRAHAM: If the Congress decided to limit treatment or interrogation techniques of a detainee, would the president have to honor that? Is that part of our authority under the Constitution to regulate the military? Do we have the authority to tell the military, "You will not do the following things"? Would that intrude on the inherent power of the president to run the military.
GONZALES: ... the question is whether or not this is an interference of the day-to-day command functions of the commander in chief or does it fall within that clause of Section 8 of Article I, which says that Congress...
GRAHAM: Do you believe it's lawful for the Congress to tell the military that, "You cannot physically abuse a prisoner of war"?
GONZALES: I'm not prepared to say that, Senator. I think you can make an argument that that's part of the rule...
GRAHAM: Mr. Attorney General, if we can't do that, if we can't, during a time of war, regulate the behavior of our troops, then really we have no power in a time of war.
And that's the point here. I think we share power.
GONZALES: I agree. I agree that power is shared in a time of war.
GRAHAM: I think we share a purpose of winning the war.
GONZALES: No question about that.
GRAHAM: But we need to get together so the people on the front lines who are pulled and torn -- if the Bybee memo, Mr. Attorney General, had become the policy there would have been people subject to court-martial. And in your good judgment you repealed that. But I can assure, Mr. Attorney General, that if the Bybee memo's view of how you handle a detainee and what's torture and what's not, if it had been implemented, it would have violated the Uniform Code of Military Justice and our guys could have gone to jail.
And in your good judgment, you repealed that. I'm asking for you to use that good judgment again and advise our president to come to this Congress and let us sit down and work through these constitutional tensions, because we don't need tension among ourselves, we need unanimity.
Thank you for your service to our country.
GONZALES: Thank you, Senator.
SPECTER: Thank you very much, Senator Graham.
DURBIN: Thank you.
Attorney General, you've said that the safeguards for this program, this terrorist surveillance or domestic spying program, include the fact that they're reviewed by career professionals -- I believe you referred to the National Security Agency, perhaps other agencies -- and that there is a 45-day review as to whether you will continue the program.
Where did the 45-day review requirement come from?
GONZALES: Senator, that really sort of arose by, quite frankly, schedules in terms of having folks be in a position to provide recommendations and advice as to whether the program can continue. There's nothing magical about the 45 days.
DURBIN: I'm not worried about the magic so much as is there a statute that drives this? Is there a legal requirement of a 45-day review?
GONZALES: I think it helps us in the Fourth Amendment analysis in terms of, is this a reasonable search, the fact that it is reviewed periodically. And I think it's more sort of by happenstance that it really has come out to be approximately every 45 days.
Let me just also mention that when I talked about the review out at NSA, there are monthly meetings, as I understand it, unconnected with this 45-day review, in which senior officials involved in this program sit down and evaluate how the program is being operated. That's a process that's totally independent of this 45-day review process.
DURBIN: Who chooses the professionals that evaluate this program?
GONZALES: Senator, I'm led to believe -- I don't know for sure, but I'm led to believe that they are people -- I'm assuming that senior officials at NSA identify people at NSA who have Al Qaida experience, Al Qaida expertise, knowledge about Al Qaida tactics and aims, and therefore in the best position to evaluate whether or not a person who is on the call is in fact a member or agent of Al Qaida or an affiliated terrorist organization. DURBIN: Which gets to my point. This so-called safeguard -- and it has been referred to as a check and balance -- is literally the administration talking to itself. People within the administration meet within their offices and decide about the civil liberties and freedoms of those who are going to be subjected to this surveillance.
That is a significant departure from the ordinary checks and balances of our government, is it not, that all of this is being decided within the same executive branch?
GONZALES: I don't know if I would characterize it that way. I think that there is intelligence that is collected by the National Security Agency, where they have control over this information, they have internal rules and regulations. They are subject to minimization requirements. Those are classified. Those have been shared, as I understand it, with the Intel Committee, if you're talking about Executive Order 12333.
And so I don't know it's so unique to this program.
DURBIN: Well, let me just say, if you want to wiretap, as attorney general, you know what you have to do.
GONZALES: Yes, sir.
DURBIN: You have to go to another branch of our government. You have to get a warrant. That's the case in criminal cases...
GONZALES: In a criminal case, Title III, that's right.
DURBIN: In terrorist cases you know that FISA applies. And now, when it comes to these wiretaps or whatever they may be, this surveillance, whatever it may be, you don't go to another branch of government, you meet within your own branch of government.
DURBIN: And that, I think, is the significant difference.
Here's what it comes down to: There's a general concern here as to whether or not the scope of what we're talking about and what it might be -- and I know you're limited in what you can tell us, but I also know that Michael Chertoff, the secretary of homeland security, recently said the NSA was, quote, "culling through literally thousands of phone numbers and trying to sift through an enormous amount of data very quickly."
You've assured us this is not a dragnet. But I think the thing that it continues to come back to is whether innocent Americans, ordinary Americans, are going to have their e-mails and their phone calls combed through.
And you may shake your head and say, "Oh, we would never do that," but, Attorney General, no one's looking over your shoulder. You're not going to anyone, as you would with another wiretap request, to determine whether or not it's a reasonable about or goes too far or, in fact, is targeted rather than random.
I talked to you about Mr. Fleischer (ph), who is sitting out here, who asked the very basic question: Have I been victimized by this program? Have I been subject to this program?
He couldn't get an answer. He's had communications overseas. The fact that he's sitting here today is a suggestion that he's not worried about what the outcome might be, but he is worried about his freedoms and his liberties.
There is no one for him to speak to. When he contacts your administration, they neither confirm nor deny. So there's no check and balance here. There's nothing to protect his freedom or liberty or the freedom and liberty of a lot of innocent people who wonder if you're going too far.
That, I think, is why many of us are absolutely stunned that this administration won't come to Capitol Hill and ask us, on a bipartisan basis, for help with this FISA act -- if, in fact, it does create a problem.
I voted for the Patriot Act. All but one of the senators in the Senate voted for the Patriot Act. It isn't as if we're not ready to cooperate with you.
We would feel better about your conduct and the conduct of this administration if there was a law you that followed. We're not asking you to spell out the operational details, but we're asking you to have at least a FISA court judge -- someone from another branch of government -- taking a look at what you're doing.
DURBIN: There is some assurance under that situation, for 28 years, that there is a check and balance. Do you understand why the blank check that you've asked for causes so much heartburn?
GONZALES: Senator, I do understand concern about a blank check. I don't believe that that is what we have here.
In your comments, you've talked about going around the law, going around FISA. That is not the case here. We believe we are acting consistent with the requirements of FISA.
I don't know about the comments that Secretary Chertoff made. General Hayden has been out very publicly talking about what this program is about and it is not about -- it doesn't sound like it's the kind of program that Secretary Chertoff is talking about, but I would be very interested in studying his remarks. This is a very narrowly tailored program.
DURBIN: But how do I know that? There's no one -- other than your good word today -- there's no one that can tell me, "I've looked at this program; trust me, Senator, you can tell Mr. Fleischer (ph) and your constituents in Illinois not to worry."
We're not going to comb through the records of innocent Americans. There is no one for me to turn to.
GONZALES: I don't know if it's proper ask you a question, but I'm going to ask you a question.
If we were to brief you into the program, how would anyone be assured that you would protect the rights of ordinary citizens? Because we have briefed congressional leaders. And so they know what we're doing.
DURBIN: They are sworn to secrecy, are they not?
GONZALES: This is a highly classified program.
DURBIN: They were sworn to secrecy. If they found the most egregious violation of civil rights taking place in this program, they are sworn not to say one word about it.
GONZALES: Senator, I have to believe all of us -- we take an oath of office and if we honestly believe that a crime is being committed that we would do something about it.
DURBIN: How would they?
I've been on the Intelligence Committee. And I can tell you that when you're briefed with classified material -- I sat in briefings not from here, just a few feet away and listened to what I thought was very meager evidence about weapons of mass destruction before the invasion of Iraq.
Based on that, I voted against it. But I couldn't walk outside that room until it became public much later and say this administration was at war within when it came to this issue.
GONZALES: I think we're letting members of Congress off the hook easily by saying that, if they get briefed into a secret program and they believe it's against the law, that they can't do anything about it.
GONZALES: I think you have an obligation, quite frankly, when you take that oath of office, if you believe that conduct is fact unlawful, I think you can do something about it.
DURBIN: Let's talk about one congressman, congresswoman in this case, who has spoken out, Congresswoman Jane Harman. She has been briefed on the program and she has said publicly, "You can use FISA. You don't need to do what you're doing. You don't need to go through this warrantless process." From her point of view, I think she's gone as far as she can go. That's it.
GONZALES: Senator, I don't think we've ever said that we couldn't use FISA in particular cases, but the time it would take to get a FISA application approved would mean that we may lose access to valuable information.
DURBIN: You won't come before us and tell us how to change the law to overcome that problem. That's what I find absolutely inexplicable.
Last thing, I'd like to do, Mr. Chairman, or whoever is now presiding, we've had several references to Mrs. Burlingame who is here. I thank her for joining us today and for her statements to the press.
I would like to acknowledge the presence of Monica Gabriel and Mindy Kleinberg, who are also in the families of victims of 9/11. They are here today, and they've made a statement for the record.
I'll read the last sentence, and ask that this be part of the record: "Retaining our civil liberties and our cherished democracy in the face of a looming terrorist threat is the only way we will win this war on terror." I ask that this statement be made a part of the record.
GRAHAM: Without objection.
DURBIN: Thank you very much, Chairman Graham.
Thank you, General.
GONZALES: Thank you, Senator.
CORNYN: Attorney General Gonzales, Chairman Specter had to step out, but he asked me to proceed after Senator Durbin, and I'm happy to do that, so we can move on. If an employee of the National Security Agency has a concern about the legality of what they're being asked to do, is it -- are they authorized to have a press conference or to otherwise leak that information to outside sources?
GONZALES: Senator, I think there are laws that prohibit the disclosure of classified information. I think there might be other ways that maybe would -- that would certainly be more appropriate.
CORNYN: Let me suggest one to you.
CORNYN: 1998, Congress passed the Intelligence Community Whistleblower Protection Act, which provides in part that an employee of the DIA, The National Imagery and Mapping Agency, the National Reconnaissance Office or the National Security Agency or a contractor of any of those agencies who intends to report to Congress a complaint about the legality of the program, that they can report that to the inspector general of the Department of Defense or to the leadership of the Intelligence Committees in the United States Congress.
Would you consider that to be a more appropriate place for a so- called whistleblower to report their concerns?
GONZALES: Yes, sir, I would.
CORNYN: Well, at the very least, there would be an opportunity for those officials to evaluate the complaint of this individual, and we wouldn't risk the disclosure of highly classified information or programs that are collecting intelligence.
GONZALES: No question about it.
The danger or problem of going to the media as an initial matter is that you have some people, I think, whose motivation, I think can be questioned in terms of why are they doing that.
And when they go out an talk to the public about a highly classified program, they harm the national security of this country.
I think Congress realized that when they passed the statute that you just described, to try to provide an avenue for those people who legitimately are concerned about perhaps wrongdoing, that they have an avenue to pursue to express their grievances and to do so in a way that we don't jeopardize the nation's secrets.
CORNYN: Let me ask you the last theory I want to ask you about. You've endured through a long day, and I know we're trying to wrap up.
I've read a lot about the debate on this program and trying to understand why it is the administration believed that it needed to exercise the authority that it was granted by Congress in the authorization for the use of military force.
CORNYN: And perhaps the president's power under the Constitution -- over and above what FISA would ordinarily provide.
First of all, if the NSA wants to listen to communications between terrorists abroad that are wholly located in some other country, they can do that without a warrant, can they not?
GONZALES: Whether or not FISA applies depends on the answer to basically four key questions: Who is the target? Primarily, we're concerned about whether or not the communication involves a U.S. person.
Where is the target? Primarily we're concerned whether or not the person is in the United States.
Where is the acquisition taking place?
And then, finally, what are you trying to acquire? Is it wire communication? Is it radio communication?
And so the answer as to whether or not FISA would apply with respect to a particular communication primarily depends upon answering those kinds of questions.
CORNYN: Thank you for the precise answer. But, as a general matter, if the persons are located in a foreign country, and they are not American citizens and the communications are taking place within that foreign country, then FISA does not require the issuance of a warrant.
GONZALES: As a general matter, if you're talking about non-U.S. persons outside the United States and, certainly, if the acquisition is outside the United States, you don't have to worry about FISA.
CORNYN: Isn't it true that the problem that this program has tried to address, the gap in FISA that it tries to address, is that, in order in order to got a warrant under FISA, the government must have grounds to believe that the U.S. person it wishes to monitor is a foreign spy or terrorist?
And, even if a person is here on a student or tourist visa or no visa, the government can't get a warrant to find out whether they are a terrorist; they must already have reason to believe they are one?
GONZALES: Well, certainly, to obtain an order from the FISA Court, the court has to be satisfied that there's probable cause to believe that the target is either a foreign power or an agent of a foreign power and probably cause to believe that the facility being targeted is actually being used or about to be used by a foreign power or an agent of a foreign power.
CORNYN: Stated another way...
CORNYN: The problem with FISA, as written, is that the surveillance it authorizes is unusable to discover who is a terrorist, is distinct from eavesdropping on known terrorists.
Would you agree with that?
GONZALES: That would be a different way of putting it, yes, sir.
CORNYN: You would agree with that statement?
GONZALES: Yes, sir.
CORNYN: So the particular program that's been debated here and the authority that the National Security Agency has to conduct it is filling a gap that exists in our intelligence-gathering capabilities.
Is that an accurate description?
GONZALES: I think we quickly realized, after the attacks of 9/11, that the tools that we had traditionally been using were insufficient.
And this was the opinion of the intelligence community. And that's why the president authorized this program. It's because we did have vulnerabilities into our access to information about the enemy.
CORNYN: Finally, with regard to exclusivity, there have been some on the committee who have asked whether the statement that Congress has made in the FISA statute, that it's the exclusive means to gather foreign intelligence, whether that is necessarily binding obligation when it comes in conflict, if it does, with the Constitution.
And I know you've cited the doctrine of I guess constitutional avoidance or -- did I get that correct?
GONZALES: The canon of constitutional avoidance -- yes, sir.
CORNYN: Thank you.
For example, this has more than just hypothetical applications. For example, are the law enforcement authorities in this country authorized to shoot down a plane that they believe is carrying illegal drugs or committing some other crime?
GONZALES: Senator, I guess I'd have to think about that. If you were asking whether or not the military has the authorization to shoot down and airplane...
CORNYN: Well, I'm asking about law enforcement authorities other than the military.
GONZALES: Well, let me just say that we do not expect our law enforcement officers to be perfect in their judgment when you're talking about the Fourth Amendment and searches.
The standard is probable cause. It is a totality of the circumstances.
But it's very, very important to remember, we're talking about the judgment from the eye of a professional officer. This is what the courts have said.
And that's why in the terrorist surveillance program, we have the determination made by someone who is experienced for knowing Al Qaida tactics and communications. He's making that decision from the view of -- like the police officer on the beat in terms of what is reasonable, what satisfies a probable cause standard.
CORNYN: Well, making this very personal and real, if a plane is heading toward the Capitol, don't you believe that the use of force resolution in Article 2 of the Constitution authorized the president to have the United States military forces shoot that plane down, if necessary?
GONZALES: I believe so, sir. And I, quite frankly, believe that the president had the authority prior to the authorization to use military force.
I think even though proponents, pro-Congress group of scholars who believe very strongly in the power of Congress during a time of war, even they acknowledge that with respect to initiation of hostilities, that only the Congress can declare war, but of course military force can be initiated if the United States has been attacked -- initiated by the president, if the United States has already been attacked or if there is an imminent threat to the United States.
And so I think there are strong arguments that would support the notion that the president of the United States, even before the authorization to use military force was passed by Congress, after we had been attacked already, of course, could then use military force to repel an additional attack.
We have to remember, of course, that in the days and weeks following 9/11 there were combat air patrols. So the president was exercising his authority, even before the authorization to use military force, to have the military in place to protect us from another attack.
CORNYN: Thank you.
SPECTER: Thank you, Senator Cornyn.
KOHL: Thank you very much.
Just a couple questions, Mr. Attorney General. Can you tell us how many U.S. citizens have had communications intercepted, listened to or recorded by this program since it started?
GONZALES: Senator, I wish I could share more information with you, but that information is classified and I can't disclose that now.
KOHL: How many Americans have had their phone conversations recorded or their e-mails intercepted without a court order? Any idea?
GONZALES: Again, Senator, you're asking about the operations of this program, and I really can't get into it. I've outlined today that this is a very narrowly tailored program that's been authorized by the president of the United States. And we have taken great pains to try to protect the privacy interests of every American.
But as the president has said, even if you're an American citizen, if you're talking to a member of Al Qaida, we'd like to know why.
KOHL: You've talked at length today and over the course of the past month about how the program has to be authorized every 45 days. And you have lauded that as a strong check and a balance on the potential for abuse. And news reports suggest that one of the authorizations has led to changes in the program. Could you tell us what those changes were?
GONZALES: Again, Senator, you're asking me about operational details of the program, and I can't get into operational details.
KOHL: All right. The New York Times reported that in interviews with current and former law enforcement officials, that the flood of NSA tips that came from this program led them to expend considerable resources in following the leads and diverted some agents from work that they had viewed as more productive.
KOHL: Law enforcement officials interviewed said that the program had uncovered no active plots in the United States.
One said that, quote, "The information was so thin and connections were so remote that they never led to anything," unquote.
Another said, quote, "It affected the FBI in the sense that they had to devote so many resources to tracking every single one of these leads and, in my experience, they were all dry leads," unquote.
So was there a concern that this program is not collecting enough worthwhile information?
And does this suggest that the net was perhaps too large and that you ensnared too many Americans who were not in fact involved in any terrorist activities?
GONZALES: Thank you for that question, Senator. I'm aware of these stories.
First of all, it is true that Director Mueller feels very strongly that we cannot afford to not investigate, one way or the other, or to check out every particular tip. We have an obligation to do that.
I think General Hayden has already indicated publicly that, immediately following the attacks of 9/11, he exercised his own independent authorities which do exist for the NSA to gather up information -- gather up more information than he normally would do -- again, these are under existing authorities, lawful authorities -- and to share all that information with the FBI.
And so you had a situation where the NSA was gathering up more information than it normally does and then sharing more of that information with the FBI.
We quickly discovered that that was not very efficient because of the fact that it required the FBI to utilize their resources. And so that procedure stopped.
And so, I think the stories that you're referring to do not relate to the terrorist surveillance program about which I'm testifying today.
KOHL: I thank you very much.
And I thank you, Mr. Chairman.
SPECTER: I thank you, Senator Kohl.
BROWNBACK: Mr. Chairman, thank you.
General, interesting line of questioning. And I want to pursue going after a FISA warrant with some specificity with you because I want to understand this process better. And I think you've covered it in bits and pieces today. And I've been in and out at times.
And I want to go into it in some depth. although, before I do that, I want to note, in the New York Post online edition, February 6, just really in response to the last question here, a 2004 NBC report graphically illustrated -- and I'm reading from this -- what not having the program cost us 4.5 years ago.
BROWNBACK: In 1999, the NSA began monitoring a known Al Qaida switchboard in Yemen. They relayed calls from Osama bin Laden to operatives all over the world. Surveillance picked up the phone number of a Khalid in the United States, but the NSA didn't intercept those calls, fearing it would be accused of, quote, "domestic spying."
After 9/11, investigators learned that Khalid was Khalid al- Mihdhar, then living in San Diego under his own name, one of the hijackers who flew American Airlines Flight 77 into the Pentagon.
He made more than a dozen calls to the Yemen house where his brother in law lived.
NBC News called this, quote, "one of the missed clues that could have saved 3,000 lives."
It's a very real thing and very real thing for us today -- and one that, had we been operating that effectively prior to 9/11, could have possibly saved thousands of lives.
Mr. Attorney General, we continue to hear -- and I certainly appreciate the need for expediency in carrying out electronic surveillance. And you've mentioned that getting a FISA warrant is often a time-consuming procedure.
I wondered, could you go into some specificity for me, so I can hear this, how long that process generally takes? Just to the degree you can, without revealing information that's classified, how long does this process take?
GONZALES: Well, it varies.
What I can say, Senator, is that we have, for a variety of reasons, some applications that have been pending for months, quite frankly.
Sometimes that's a result because we can't get sufficient information from the FBI or NSA in order to satisfy the lawyers at the department that, in fact, we can meet the requirements of the FISA act.
Sometimes it's a situation where priorities -- with each passing day, renewals expire on very important programs, so we then have to prepare a renewal package to submit to the FISA court.
And that means other FISA applications that our lawyers have been working on kind of get pushed to the side as they work on the more important cases.
So there are a variety of reasons why it takes some time to get a FISA application approved.
GONZALES: If you want me to get into a more down-in-the-weeds discussion...
BROWNBACK: I would. What is it that takes so much time in these FISA applications?
GONZALES: Well, of course, we can't begin surveillance just based on a whim by someone, say, at the FBI. There has to be a reason to believe that all of the standards of the FISA statute can be satisfied. We have to know that a FISA court judge is going to be absolutely convinced that this is an agent of a foreign power, that this facility is going to be a facility that's going to be used or is being used by an agent of a foreign power.
The things that I have to approve, I have to, when I sign an application, we have to identify the target, we have to set forth the circumstances and the reasons that I believe that the target is a foreign power or an agent of a foreign power. I have to set forth the circumstances for why I believe that this facility is being used or about to be used by a foreign power or agent of a foreign power.
We have to set forth in the application the minimization requirements that we intend to use. We have to set forth in the application, with specificity, the type of information we're hoping to get and the type of facilities or communications that we're targeting.
So those are just some of the things that I have to include in the application. The application has to be accompanied by a certification that is signed by a senior official of the administration who has national security responsibility. Normally it's the FBI director. It could be the director of the CIA.
And so that person has to certify that, in fact, this is foreign intelligence information. That person has to certify that the primary purpose -- a significant purpose of the surveillance is for foreign intelligence purposes. That person has to certify that normal investigative techniques or means are not otherwise available. And there are some other provisions that have to be certified.
So all those conditions, requirements, have to be met, even before I authorize verbally an emergency authorization, and it takes time. Even in a perfect world, even in an ideal case it's going to take a period of time. And I'm not talking about hours. We're normally talking about days, weeks. On the more complicated cases, again, sometimes months. BROWNBACK: And this would include these sort of operations we've read about, about data-mining operations? Would that include those sorts of operations or are those totally a separate type of field?
GONZALES: I'm not here to talk about that. Again, let me just caution everyone that you need to read these stories with caution.
GONZALES: There is a lot of mumbling -- I mean mixing and mangling of activities that are totally unrelated to what the president has authorized under the terrorist surveillance program. So I'm uncomfortable talking about other kinds of operations that might -- that are unrelated to the terrorist surveillance program.
BROWNBACK: These would be strictly ones where you are going after a targeted set of individuals that are...
GONZALES: Is this under FISA?
BROWNBACK: Yes, that are done under the FISA application.
GONZALES: You have to remember, of course...
BROWNBACK: Along the lines of what you've just described in some detail; this is the sort of information you're seeking before you're going after anything under FISA?
GONZALES: In every case. And of course, we always have to remember that we're not just talking about Al Qaida when you're talking about FISA. You are talking about agents of other countries. And it's not limited to only international communications under FISA, it's domestic communications. So we want to get it right, of course.
And as I said earlier in response to another question, the fact that we've had such a high approval rate by the FISA Court isn't an indication that the FISA Court is a rubber stamp, it is more, I think, a proof that we've got a legitimate process. We take this very seriously.
BROWNBACK: Well, I don't want to drag on the questioning. You've been here a long period of time.
I just do want to encourage us, that as the war on terrorism wears on, because it is going to wear on for a period of time, that we do have a check and balance system in place that's workable, so that you can get the type of information that you need, that we need, to protect the country, but at the same time can protect the civil liberties of the nation. And you're doing everything you can in that regard.
I just think as we look on forward, this is going to be a key policy factor of how we move forward and sustain support for the war on terrorism over the periods of various administrations and possible length of time that this could well take. Thank you for being here.
Thank you, Chairman.
SPECTER: Thank you, Senator Brownback.
Mr. Attorney General, you've held up remarkably well for a long day. I have deferred my second round until everyone else has concluded a second round, because as chairman, I have to stay, so I thought I'd go last, in any event.
So it's just you and me. When we came here today there was a long line in the hallway, waiting to get in and now only a few people are here and the senators' bench is pretty well cleared.
SPECTER: I want to come back to the issue as to whether the resolution authorizing the use of force of September 14th gives the president congressional authority to undertake the electronic surveillance.
And I said candidly at the outset that I did not think that it did. And let me explore with you a number of questions I have that I'm interested in the administration's response.
Let me start first with the signing statement of President Carter, when he signed the Foreign Intelligence Surveillance Act in 1978, on October 25th.
He said in part, quote, "the bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted.
"It clarifies the executive's authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are conducted to protect our country against espionage and international terrorism."
So that when you talk about what happened in Washington's time on intercepting messages or unsealing envelopes -- what happened in Lincoln's time -- or what happened in Franklin Delano Roosevelt's time, or when you talk about a number of the circuit court opinions giving broad presidential authority saying that the gathering of intelligence was his prerogative without respect to the Fourth Amendment, that's before Congress acted.
Now, a signing statement is subject to a number of limitations. If the president, in a signing statement, seeks to distinguish his view from what the Congress has passed, I think they're entitled to very little, if any waive.
Where the president, as President Carter did, squarely backs what the Congress has done, then you have a concurrence of the Congress and the president.
And you really have very forceful, very plain, very strict language in the Foreign Intelligence Surveillance Act.
How do you counter what President Carter has said, that it applies to all U.S. persons and covers all foreign intelligence by electronic surveillance in the United States?
GONZALES: Well, of course, Senator, I don't believe that it is possible for any president to waive, for future presidents, any constitutional authority, any authority given to a president under the Constitution.
I haven't read that statement in a while. I don't think in the statement President Carter says, "I have no inherent authority remaining in this area."
Finally, I would just simply remind the chair -- I think this was mentioned earlier by one of the senators -- his attorney general in hearings in connection with the legislation -- I think it was before the House, I think it was before a committee of the House -- talked about the fact that this is -- and I'm paraphrasing here -- this in no way takes away from the president's inherent constitutional authority, this legislation.
And so that's how I would respond to your question.
SPECTER: Well, Mr. Attorney General, that's not the Jackson test, which you've subscribed to, but I'm going to come back to that in just a minute.
In your responses to my question about statutory interpretation -- and we've covered the line that it is disfavored to have a repeal by implication, and you have the statute of FISA specific, no interception of electronic communication without a warrant, which is very specific. And then you have the generalized statement of the September 14th resolution, which at best would be repealed by implication, which is disfavored.
But then we come upon another very important provision of statutory construction, and that is the one which relates to specific language takes precedence over more generalized pronouncements. And in our answer you said, quote, "It is not clear which provision is more specific," close quote.
Well, that is false on its face. If you have the statute saying no electronic surveillance without a warrant, there's no doubt that that is more specific than the September 14th resolution.
SPECTER: Isn't it?
How could you disagree with those plain words?
GONZALES: By that answer, I only meant to convey, Senator, that the resolution is more specific with respect to Al Qaida, certainly. And, of course, the FISA statute is not limited only to Al Qaida.
I might also, as the answer also indicates -- we had -- this same discussion occurred with respect in the Hamdi decision.
We had the same situation; you had a specific statute, 18 USC 4000 (1)(a) that said no American citizen could be detained except as otherwise provided by Congress or, maybe, otherwise provided by a statute by Congress.
And the Supreme Court said that, nonetheless, you had a broader authorization on the authorization to use military force and that would satisfy the statute, even though you had a specific statute with respect to detention and you had a broad authorization.
SPECTER: Did the Supreme Court deal with that statute?
GONZALES: That was the statute at issue, yes, sir, in the Hamdi decision, of course.
SPECTER: Did the Supreme Court deal with it, specifically?
GONZALES: Sir, in Hamdi, Mr. Hamdi was contesting that that statute prohibited the president of the United States from detaining him because he was an American citizen.
And the Supreme Court said, well, OK, you're right; you have this specific statute, but you also have this broad ground of authority by the Congress. And that is sufficient to allow the president of the United States to detain you, even as an American citizen.
SPECTER: Well, I think you're dealing with very different circumstances when you talking about a soldier on the field, as opposed to a United States person whose conversations are being electronically surveilled.
But let me move on here. It may well be that you and I won't agree on this point.
The resolution of September 14 did not add the words "in the United States" after the words, quote "appropriate force." That was rejected to give the president the broad authority, not just overseas, but in the United States.
Isn't that a clear indication of congressional intent not to give the president the authority for interceptions in the United States?
GONZALES: Sir, I don't know where that record is to reflect that that actually happened.
I think the CRS, Congressional Research Service, said that in the legislative history -- and I may be wrong; it's late -- but I believe that they said there's no record to indicate that that ever occurred, quite frankly.
I think, as I indicated in my opening statement, I think the American public, I think our soldiers, I think our courts ought to be able to rely upon the plain language passed by the Congress.
And there's no question that the resolution talked about the president of the United States protecting Americans both here and abroad.
And we have to put it in context. We were just attacked here in this country, from folks within our country, communicating within our country.
It's hard to imagine, as smart as you are, that you wouldn't provide to the president of the United States the grantive authority to at least deal with a similar kind of threat to the one we just experienced.
SPECTER: The law involving wiretapping, prior to the enactment of the Foreign Intelligence Surveillance Act, had the preceding sentence, quote: "Nothing contained" -- referring to the law -- "shall limit the constitutional power of the president to obtain foreign intelligence information deemed essential to the security of the United States."
When the Foreign Intelligence Surveillance Act was passed, that language was stricken. So by all customary standards of statutory interpretation, FISA, Foreign Intelligence Surveillance Act, changed that 180 degrees, didn't it?
GONZALES: There is no question, if you look at the legislative history and in the record, that Congress intended to try to limit whatever president's inherent authority existed.
But there's also, from my review of the record, a clear indication that some members of Congress were concerned about the constitutionality of this effort.
And I think the House conference report talked about the fact -- this is what we're trying to do. It may be that the Supreme Court may have a different view of this. And I'm paraphrasing here. But that's a remarkable acknowledgement by a member of Congress that: Geez, is what we're doing here is constitutional?
No question about it than that.
Certainly, Congress intended to (inaudible) the president's authority, but also Congress, when they passed FISA, included Section 109, which is a main criminal provision in FISA that talks about, "You can't engage in electronic surveillance under (inaudible) law, except as otherwise provided by statute."
And so I think we have to apply a fairly possible reading of the statute in that way, in order to avoid a very, in my judgment, a tough constitutional question as to whether or not -- does the Congress have the constitutional authority to pass the statute that infringes upon the president's inherent authority as commander in chief to engage in electronic surveillance of an enemy during a time of war?
SPECTER: I don't think you can use the principle of avoiding a tough constitutional conflict by disagreeing with the plain words of the statute.
Attorney General Gonzales, when members of Congress heard about your contention that the resolution authorizing the use of force amended the Foreign Intelligence Surveillance Act, there was general shock.
GONZALES: Sir, we've never asserted that FISA has been amended. We've always asserted that our interpretation of FISA, which contemplates another statute and we have that here in the authorization to use force, that those complement each other. This is not a situation where FISA has been overwritten or FISA has been amended. That's never been our position.
SPECTER: That just defies logic and plain English. FISA says squarely that you can't have electronic surveillance of any person without a warrant.
And you are saying, when you tag on to this other statute, which isn't a penal provision, that those words in FISA are no longer applicable, that there's been a later statutory resolution by Congress which changes that.
Attorney General Gonzales, I think we come back to the Jackson formula. And my judgment, with some experience in the field -- and I was starting to tell you how shocked people were when we found out you thought that what we had done on the resolution of September 14th authorized electronic surveillance, just nobody had that in the remotest concept.
And Senator Graham has articulated in very forceful terms the consequence of the administration making this interpretation, that before you ever get any authority from Congress again, we're going to go through every conceivable exception we can think of, or we just may not give the authority, because you come back to relying on inherent authority.
And you may have the inherent authority. You may have the Article II authority, but I do not think that any fair, realistic reading of the September 14th resolution gives you the power to conduct electronic surveillance.
That brings me to, really, what Jackson said, and it's so wise, it's worth reading again, quote: "When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely upon his own constitutional powers, minus any constitutional powers of Congress over the matter."
Now, my reading of this situation legally is that there has been an express will of Congress to the contrary. And that when the president seeks to rely upon his own inherent power, then he is disregarding Congressional constitutional power. And then Jackson goes on, quote, "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon subject."
And I think that's what you're doing, you're disabling Congress from acting on the subject which Congress did, signed by the president.
And then Justice Jackson goes on for really the critical language, "Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution."
SPECTER: That's what we're doing here today. We're going to do it a lot more.
And then these are the critical words, more so than any of the others, quote: "For what is at stake is the equilibrium established by our constitutional system."
And there's a very high value placed on the equilibrium of our constitutional system. That means everything.
GONZALES: I agree, Senator.
SPECTER: OK. Well, finally we found something to agree upon.
Now, on the issue of the inherent power of the president, I believe the president has very substantial Article II power. I believe he does. And we have to be concerned, as a life-or-death matter, about Al Qaida. We really do.
And I subscribe to the good faith of the president as to what he has done here. And I've said that publicly. And I subscribe to your good faith in what you have done here.
And I just hope that there will be oversight somewhere along the line -- perhaps in the Intelligence Committee, perhaps in the Intelligence Committee -- to get into the details, the interstices, the semicolons is what you're doing -- because I know you can't do that here.
But I don't think you can measure the president's inherent authority under Article II without knowing what you're doing. Just cannot do it. Because that authority is not unlimited, and you've agreed to that.
GONZALES: I agree with that.
SPECTER: It's not a blank check.
GONZALES: That is correct, sir.
SPECTER: So it has to be within the parameters of being reasonable. And the cases, the circuit opinions emphasize the reasonable parameters. And the Supreme Court hasn't ruled on this issue yet. It's an open question. And the circuit opinions are mostly, if not all predating the Foreign Intelligence Surveillance Act. So I just hope the Intelligence Committee is going to come down to brass tacks here, and I hope it's the committee and not just the ranking and chairman. Both Senator Roberts and Senator Rockefeller have expressed forcefully their concern about not being lawyers and not having an opportunity to present these issues to lawyers to get a legal interpretation to square the facts up with what the law is. They just have been very explicit in their own limitations.
So, in conclusion, two most popular words of any presentation, I hope you will give weighty thought to taking this issue to the Foreign Intelligence Surveillance Court, lock, stock and barrel. Let them see the whole thing and let them pass judgment. Because if they did disagree with you, it's the equilibrium of our constitutional system which is involved.
And the Al Qaida threat is very weighty, but so is the equilibrium of our constitutional system.
GONZALES: I agree, Senator.
SPECTER: And security is weighty, but so are civil rights.
Thank you very much, Attorney General Gonzales. You have established very forcefully your fortitude and stamina here today, even if we disagree with portions of your case.
GONZALES: Thank you, Mr. Chairman.
SPECTER: That concludes the hearing.