U.S. Senate Judiciary Commmittee Hearing on Oversight of the Department of Justice
U.S. Attorney General Alberto Gonzalez Testifies
JULY 24, 2007
SPEAKERS:
SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN
SEN. EDWARD M. KENNEDY, D-MASS.
SEN. JOSEPH R. BIDEN JR., D-DEL.
SEN. HERB KOHL, D-WIS.
SEN. DIANNE FEINSTEIN, D-CALIF.
SEN. RUSS FEINGOLD, D-WIS.
SEN. CHARLES E. SCHUMER, D-N.Y.
SEN. RICHARD J. DURBIN, D-ILL.
SEN. SHELDON WHITEHOUSE, D-R.I.
SEN. BENJAMIN L. CARDIN, D-MD.
SEN. ARLEN SPECTER, R-PA. RANKING MEMBER
SEN. ORRIN G. HATCH, R-UTAH
SEN. CHARLES E. GRASSLEY, R-IOWA
SEN. JON KYL, R-ARIZ.
SEN. JEFF SESSIONS, R-ALA.
SEN. LINDSEY GRAHAM, R-S.C.
SEN. JOHN CORNYN, R-TEXAS
SEN. SAM BROWNBACK, R-KAN.
SEN. TOM COBURN, R-OKLA.
WITNESSES:
ATTORNEY GENERAL ALBERTO R. GONZALES
[*]
LEAHY: Good morning.
I'd ask those who are standing in the back to show courtesy to the people who are -- who stood in line to be here to sit down. Everybody is welcome here who's here. But I would expect all those who are in here for the hearing to respect the rights of everybody who's here and to not stand and block those who are trying to watch the proceedings and have a right to be here.
Three months ago, when Attorney General Gonzales last appeared before this committee, I said that the Department of Justice was experiencing a crisis of leadership perhaps unrivaled during its history. Unfortunately, the crisis has not abated. Until there is independence and transparency and accountability, the crises will continue.
The attorney general's lost the confidence of the Congress and the American people. But through oversight we hope to restore balance and accountability to the executive branch.
The Department of Justice must be restored to being worthy of its name. It should not be reduced to another political arm of the White House; it was never intended to be that. Trust and confidence of the American people in federal law enforcement must be restored.
With the department shrouded in scandal, the deputy attorney general's announced his resignation. The nominee to become associate attorney general requested that his nomination be withdrawn, rather than testify under oath at a confirmation hearing. The attorney general's chief of staff, the deputy attorney general's chief of staff, the department's White House liaison and the White House political director have all resigned, as have others.
I would joke that the last one out the door should turn out the lights, but the Department of Justice is too important for that. We need to shine more light there, not less.
LEAHY: Investigation into the firing for partisan purposes of United States attorneys who had been appointed by this president, along with an ever-growing series of controversies and scandals, have revealed an administration driven by a vision of an all-powerful executive over our constitutional system of checks and balances, one that values loyalty over judgment, secrecy over openness and ideology over competence.
The accumulated and essentially uncontroverted evidence is that political considerations factored into the unprecedented firing of at least nine United States attorneys last year. Testimony and documents show that the list was compiled based on input from the highest political ranks in the White House, that senior officials were apparently focused on the political impact of federal prosecutions and whether federal prosecutors were doing enough to bring partisan voter fraud and corruption cases, and that the reasons given for these firings were contrived as part of a cover-up.
What the White House stonewalling is preventing is conclusive evidence for who made the decision to fire these federal prosecutors. We know from the testimony that it was not the president. Everyone who's testified has said that he was not involved. None of the senior officials at the Department of Justice could testify how people were added to the list or the real reasons that people were included among the federal prosecutors to be replaced. Indeed, the evidence we've been able to collect points to Karl Rove and the political operatives at the White House.
The stonewalling by the White House raises the question, what is it that the White House is so desperate to hide?
The White House has asserted blanket claims of executive privilege despite officials' contention that the president was not involved. They refuse to provide any factual basis for their blanket claims, have instructed former White House officials not to testify about what they know and then instructed Harriet Miers to refuse even to appear as required by a House Judiciary Committee subpoena.
Now, anonymous officials are claiming that the statutory mechanism to test White House assertions of executive privilege no longer govern. In essence, the White House asserts its claim of privilege is the final word, the Congress may not review it and, of course, there's no court dare review it. Here again, this White House claims to be above the law.
My oath, unlike those who have apparently sworn their allegiance to the president, is to the United States Constitution. I believe in checks and balances and in the rule of law.
Despite the stonewalling and obstruction, we've learned that Todd Graves, U.S. attorney in the Western District of Missouri, was fired after he expressed reservations about a lawsuit that would have stripped many African-American voters from the rolls in Missouri. When the attorney general replaced Mr. Graves with Bradley Schlozman, the person pushing the lawsuit, that case was filed and ultimately, of course, was thrown out of court.
LEAHY: Once in place in Missouri, though, Mr. Schlozman also brought indictments on the eve of a closely contested election, despite a Justice Department policy -- longstanding policy not to do so.
This is what happens when a responsible prosecutor is replaced by one considered a, quote, "loyal Bushie," for partisan political purposes.
Mr. Schlozman also bragged about hiring ideological soul-mates.
Monica Goodling, likewise, admitted crossing the line when she used a political litmus test for career prosecutors and immigration judges.
And rather than keep federal law enforcement above politics, this administration is more intent on placing its actions above the law.
The attorney general admitted recently in a video for Justice employees that injecting politics into the department's hiring is unacceptable. But is he committed to corrective action and rooting out the partisanship in federal law enforcement?
His lack of independence and tendency to act as if he were the president's lawyer rather than the attorney general of the United States makes that doubtful.
From the infamous torture memo to Mr. Gonzales' attempt to prevail on a hospitalized Attorney General Ashcroft to certify an illegal eavesdropping program to the recent opinion seeking to justify Harriet Miers' contemptuous refusal to appear before the House Judiciary Committee, the Justice Department has been reduced to the role of an enabler for this administration.
What we need instead is genuine accountability and real independence.
We learned earlier this year of systematic misuse and abuse of national security letters, a powerful tool for the government to obtain personal information without the approval of a court or a prosecutor.
The attorney general has said he had no inkling of these or other problems with vastly expanded investigative powers. But now we know otherwise. Recent documents obtained through the Freedom of Information Act lawsuits and reported in The Washington Post indicate that the attorney general was receiving reports in 2005 and 2006 of violations in connection with the Patriot Act and abuses of national security letters.
Yet, when the attorney general testified under oath before the Senate Select Committee on Intelligence in April 2005, he said that the track record established over the past three years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the act was passed.
Earlier this month, in response to written questions I sent to the attorney general about when he first learned of problems with national security letters, he once again failed to mention these reports of problems.
LEAHY: Only with the openness and honesty that brings true accountability will the department begin to move forward and correct the problems of the last few years.
Instead we have leadership at the Department of Justice who, when expressions of concerns and admissions of mistakes were made, only follow public revelations, and amount to regrets, really, not that mistakes and excesses were made but apparently regrets that somebody found out about those excesses.
In the wake of growing reports of abuses of national security letters, the attorney general announced a new internal program. This supposed self-examination, with no involvement by the courts, no reports to Congress, no other outside check, essentially translates to "trust us."
Well, with a history of civil liberty abuses and cover-ups, this administration has squandered our trust. I am not willing to accept a simple statement of "trust us." I don't trust you.
Early Internal Revenue reviews, like the Intelligence Oversight Board and the Privacy and Civil Liberties Oversight Board have been ineffective and inactive, failing to take action on the violations reported to them. Only with a real check from outside on the executive branch could we have any confidence that abuses will be curbed and balance restored.
And the tragic dimension of the ongoing crisis of leadership at the Justice Department is the undermining of good people and the crucial work that the department does.
Thousands of honest, hardworking prosecutors and agents and other civil servants labor every day to detect and prevent crime, uncover corruption, promote equality and justice, and keep all Americans safe from terrorism.
LEAHY: But sadly, prosecutions will now be questioned as politically motivated. Evidence will be suspected of having been obtained in violation of laws and civil liberties.
Once the government shows a disregard for the independence of the justice system and the rule of law, it's very hard to restore the people's faith. And it's going to be very hard to restore my trust in what is going on.
This committee will do its best to try to restore independence, accountability and commitment to the rule of law to the operations of the Justice Department. That is something that both Republicans and Democrats can agree on.
Senator Specter?
SPECTER: Thank you, Mr. Chairman.
Attorney General Gonzales, I direct the remarks in my opening statement to you.
Your photo appears in the morning press with the caption, "I accept full responsibility." Let me suggest to you that that is not enough. The question is whether the Department of Justice is functioning as it must in order to protect the vital interests of the American people.
Next to the Department of Defense, the Department of Justice has the major responsibility for protecting American security: investigation of terrorism, dealing with drug sales, dealing with organized crime, violent crime. And the issues relating to the resignations of the U.S. attorneys has placed a very heavy cloud over the department. There is evidence of low morale -- very low morale, lack of credibility -- candidly, your personable credibility.
The department is dysfunctional, as so many items have arisen where there is a substantial basis to conclude that there's a preoccupation with the investigation on the resignations of the attorneys.
And I have asked you, both formally in this room and in our private conversations, to give us an explanation as to why each one of these U.S. attorneys was asked to resign, and that has not been done.
We have sought an accommodation to question the remaining witnesses, and I believe that the administration has not had any significant degree of flexibility in trying to work it out with congressional oversight.
I believe we're prepared to concede that there won't be an oath, because there are penalties otherwise; prepared to concede that they could be in private, although they ought to be public, it's the public's business; prepared to concede that both houses wouldn't have to engage in the questioning of these witnesses, that a representative group from the House Judiciary Committee and the Senate Judiciary Committee -- bipartisan, bicameral -- would do the questioning.
SPECTER: But not to have a transcript, I think is patently unreasonable.
But I'm prepared even to do that, if we could get on with this matter, reserving the right for Congress to come back if the informal interviews are unsatisfactory, then to proceed with our authorities under subpoenas. And we were met with a response, "No, if you question these witnesses under our unilateral terms, you can't come back later."
Well, that's simply going too far. I do not believe that the Congress has the right to give up our power. We cannot delegate them, we cannot abrogate them. They are our responsibilities. And we cannot give them up as part of an arrangement with the administration.
And now we have a very remarkable turn of events. We now have the indication -- announcement that the administration will preclude the U.S. attorney from the District of Columbia from pursuing a contempt citation.
SPECTER: Now, if that forecloses a determination of whether executive privilege has been properly imposed, then the president in that manner can stymie congressional oversight by simply saying there is executive privilege. Since we can't take it to the court, the president's word stands and the constitutional authority and responsibility for congressional oversight is gone.
Now, that is carrying this controversy to really an incredible level. If that is to happen, the president can run the government as he chooses, answer no questions, say it's executive privilege. You can't go to court, and the president's word stands.
Now, we've been exploring some alternatives. And I'll be asking you about them.
The attorney general has the authority to appoint a special prosecutor. You're recused, but somebody else could do it. You're recused because you know all of the principals. You have a conflict of interest.
SPECTER: Your recusal is understandable.
But doesn't the president have an identical conflict of interest?
Can the president foreclose the Congress for moving ahead and making an effort at having a judicial determination as to the propriety of the claim of executive privilege?
We also have the alternative of convening the Senate and having a contempt citation and trying it in the Senate. That might be productive.
We could use the precedent of the Alcee Hastings impeachment proceeding, where a committee took over. We had it in this room. I was the vice chairman. Senator Bingaman was the chairman. So we wouldn't take up the full time of the sentiment (sic) in moving for a contempt citation.
But we're going to have to move ahead on that, Mr. Attorney General.
We have so many items that every week a new issue arises. And I sent you letters advising you that we would be pursuing these matters at this hearing.
One is on the legality for the terrorist surveillance program.
You said categorically there has not been any serious disagreement about the program. And yet we know from former Deputy Attorney General James Comey exactly the opposite is true.
This is what he testified. When you and the chief of staff went to extract from then-Attorney General Ashcroft, who was in the hospital under sedation, approval of the program, Mr. Comey, quote: "I was very upset. I was angry. I thought I had just witnessed an effort to take advantage of a very sick man."
I'll be asking you about that, giving you a chance to explain that, although it bedevils me to see any conceivable explanation for your saying "No disagreement," and you're going to the hospital of the attorney general, who's no longer in power -- he's delegated his authority -- and seek to extract approval from him.
SPECTER: It seems to me that it is just decimating, Mr. Attorney General, as to both your judgment and your credibility.
But that's not all. The list goes on and on.
I wrote to you about the death penalty case, where U.S. attorney Paul Charlton could only get five to 10 minutes of the time of the deputy attorney general, who talked to you. You wouldn't talk to him. We'll give you a chance to explain that.
The Patriot Act: You testified repeatedly, no problems. And there's a wealth of information about very serious incidents.
And then this OxyContin case, which has reached the newspapers, where there was malicious, deliberate falsification of the medicine -- people died.
Is your department functioning? Do you review these matters? How many matters are there which do not come to our attention because you don't tell us and the newspapers don't disclose them?
Thank you, Mr. Chairman.
LEAHY: Thank you very much.
And I might mention Senator Specter has requested a hearing on OxyContin. And I think he's absolutely right on that.
We will have one, at your request.
Mr. Attorney General, please stand and raise your right hand. Do you solemnly swear that the testimony you will give at this time will be the truth, the whole truth, and nothing but the truth, so help you God?
GONZALES: I do.
LEAHY: Go ahead, Mr. Attorney General.
GONZALES: Thank you, Mr. Chairman.
LEAHY: I should note before you start that there will be a series of votes around 10:20 and I'll consult with Senator Specter how best to continue during that time. At most, we will try to limit the break.
Go ahead.
GONZALES: I understand, Mr. Chairman.
I do have the great pleasure to work with over 100,000 dedicated public servants at the Department of Justice. I admire the dedication to pursue justice for all Americans.
GONZALES: The department's many accomplishments are, in reality, their accomplishments. As attorney general, I have worked with these fine men and women to keep our country safe from terrorists, our neighborhoods safe from violent crime and our children safe from predators. As my written statement explains in more detail, when it comes to keeping our neighborhoods safe and protecting our children, the department has made great progress.
In my brief remarks this morning, I want to focus on the department's number one priority, keeping our country safe from terrorists and the urgent need, quite frankly, for more help from Congress in this fight.
As the recent National Intelligence Estimate has -- as well as the attempted car bombings in London and Scotland demonstrate, the threat posed to America and its allies by Al Qaida and other terrorist groups remains very strong.
To respond effectively to this threat, it is imperative that Congress modernize the Foreign Intelligence Surveillance Act of 1978, known as FISA. Doing so is critically important to intelligence gathering, and it really just makes plain sense.
When Congress drafted FISA in 1978, it defined the statute's key provisions in terms of telecommunications technologies that existed at that time. As we all know, there have been sweeping changes in the way that we communicate since FISA became law and these changes have had unintended consequences on FISA's operation.
For example, without any change in FISA, technological advancements have actually made it more difficult to conduct surveillance on suspected terrorists and other subjects of foreign intelligence surveillance overseas.
In April, at the request of the Senate Select Committee on Intelligence, the director of national intelligence transmitted a comprehensive FISA modernization proposal to Congress. The proposal builds upon thoughtful (ph) bills introduced during the last Congress, and the bill would accomplish several key objectives. Most importantly, the administration's proposal restores FISA's original focus on protecting the privacy of U.S. persons in the United States.
FISA generally should apply when conducting surveillance on those in the United States, but it should not apply when our intelligence community targets persons overseas. Indeed, it was advancements in technology and not any policy decision of Congress that resulted in wide-scale application of FISA and its requirement to go to court to overseas targets.
This unintended consequence has clogged the FISA process and, quite frankly, hurts national security and civil liberties.
GONZALES: As amended, FISA's scope would focus on the subject of the surveillance and the subject's location, rather than on the means by which the subject transmits a communication or the location where the government intercepts the communication.
FISA would become technology-neutral. Its scope would no longer be affected by changes in communications technologies.
The bill would also fill a gap in current law by permitting the government to direct communications companies to assist in the conduct of lawful communications intelligence activities that do not constitute, quote, "electronic surveillance" under FISA.
This is a critical provision that is a necessary companion to any change in FISA's scope.
Importantly, the administration's proposal would provide a robust process of judicial review for companies that wish to challenge these directives.
The administration's proposal would also provide protections from liability to companies that are alleged to have assisted the government in the wake of the September 11th terrorist attacks.
The bill also streamlines the FISA application process to make FISA more efficient, while at the same time ensuring that the FISA Court has the information it needs to make the probable cause findings required.
Finally, the administration's proposal would amend the statutory definition of an agent of a foreign power to ensure that it includes groups who are engaged in international proliferation of weapons of mass destruction or who possess or who are expected to transmit or receive foreign intelligence information while in the United States.
FISA modernization is critically important and we urge the Senate to reform this critical statute as soon as possible.
I am hopeful that this is an area that we can work together with the Congress and this committee. I think we can find common ground on the central principles underpinning the administration's proposal and in particular on the fact that we should not extent FISA's protections to terrorist suspects located overseas.
We already have had several helpful sessions with the Intelligence Committees in the Senate and House on this issue. We look forward to continuing to work with the Senate and this committee on this important endeavor.
Thank you, Mr. Chairman.
LEAHY: Thank you, Mr. Attorney General. And your full statement, of course, will be made part of the record.
We have documents that we have not in answer to a request made by this and other committees, but obtained through Freedom of Information Act lawsuits. They indicate that you received reports in 2005 and 2006 of violations in connection with the Patriot Act, abuses of national security letters. The violations apparently included unauthorized surveillance, illegal searches and improper collection of data.
LEAHY: But when you testified before the Senate Select Committee on Intelligence in April of 2005, you sought to create the impression that Americans' civil liberties and privacies were being effectively safeguarded and respected.
And you said, and I quote, "The track record established over the past three years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the act was passed."
Then I sent you written questions. And earlier this month, you responded about when you first learned of problems with national security letters. But in those responses, you didn't mention these earlier reports of problems.
So my question is this. As you know, I've written a number of these questions to you in advance so that you will be able to answer. Would you like to revise or correct your April 2005 testimony to the Senate Select Committee on Intelligence, which was misleading, or your July 6, 2007, response to this committee's written questions, related?
You care to revise either of them?
GONZALES: Thank you for the question, Mr. Chairman.
And I can understand the confusion of concern about my prior statements, which, of course, were made in connection with the discussions about reauthorization of the Patriot Act, and were also made in the context of the I.G.'s investigation of abuses under the Patriot Act, exercising his authority under the Patriot Act to investigate abuses.
And my comments reflect -- are similar to comments made by the director of the FBI...
LEAHY: I don't care if they're similar to anybody else. They're your comments that I'm concerned about. I'm not concerned about somebody else's comments. I'm concerned about yours. They seemed contradictory.
GONZALES: And my comments reflected the understanding, on my part, Mr. Chairman, that IOB violations -- which is what I want to refer to these, as IOB violations, referrals or violations made to the Intelligence Oversight Board -- that these do not reflect, as a general matter, intentional abuses of the Patriot Act.
LEAHY: Are you saying they're not abuses if they're not committed without malice? Is that what you're saying?
GONZALES: That's not what I'm saying.
(CROSSTALK)
GONZALES: Obviously, they're very, very -- and every such abuse, because it does constitute abuse, is in fact referred to the IOB and also is in fact referred to the Inspection Division at the FBI.
Now, the good news is that when the referral occurs, there is an examination and appropriate action is taken.
The other bit of good news is, as I have directed, that each IOB referral to the FBI will also be made simultaneously to the National Security Division. And the National Security Division is going to study these IOBs, make a semiannual report to me, and identify whether or not there are any trends there that we identify.
LEAHY: Well, let me ask you about that. Because I understand that approximately 500 -- and if you want to go back and elaborate on your answer, I will certainly give you time, because I don't think you've answered the question I asked.
LEAHY: But you keep talking about the Intelligence Oversight Board. These things are referred to it.
I understand that approximately 500 incidents are annually referred to the Intelligence Oversight Board, but the general counsel of the FBI hasn't received a single response from the board. I mean, I thought I was the only one that didn't get responses, but apparently 500 a year you don't get back a single response. The board has not sent forward a single report of potentially unlawful intelligence activities. But you talk about oversight system and report to that same board.
I mean, I -- you know, is this, "Oh, gosh, we have a problem. We won't tell anybody about it. We'll send it to somebody who will file it away and nothing will ever be heard again, so therefore we have no problems"? It's almost an Alice in Wonderland situation.
GONZALES: I think you've misunderstood my response, Mr. Chairman.
What I said, or certainly intended to say, was the fact that it's referred to the IOB doesn't mean that it stops there. It is also sent to the Inspections Division and appropriate action is taken.
We've also instituted another check by involving the National Security Division so that they can also identify any trends and make suggestions in policies or training so that we can address these kinds of issues.
LEAHY: In April 2005, when you said, "The track record established in the past three years demonstrates the effectiveness of the safeguards" -- that there, basically there hadn't been any violations, was that correct or not? Had there been violations?
GONZALES: What I can say is...
LEAHY: Three years before you testified, had there been any violations?
GONZALES: The violations...
LEAHY: Yes or no?
GONZALES: A violation of IOB may not be a violation of the Patriot Act. In fact, the inspector general, I think, has indicated that.
And, Mr. Chairman, my view and the views of other leadership in the department is in fact when we're talking about abuses of the Patriot Act, we're talking about intentional, deliberate misuse of the Patriot Act, not when some agent writes down the wrong phone number in a national security letter.
And, of course, whenever a mistake like that happens, of course we address it and appropriate action is taken.
LEAHY: Such as?
GONZALES: We institute training for -- additional training. It's a question of providing additional guidance, providing additional training or disciplinary action against the agent.
LEAHY: Well, (inaudible) ask you this. We have 93 United States attorneys. Only 70 have been confirmed by the Senate. Any idea when we're going to get -- six have just been sent up -- when we're going to get the 17 remaining ones?
GONZALES: We are working as hard as we can with the White House and with members of Congress so that we can go through the vetting process, evaluation process, so we can make recommendations to the president.
The full intent is that, as I've committed to this committee, is that we are going to have Senate-confirmed U.S. attorneys in these positions.
LEAHY: I would hope so, because you tried to do that backdoor thing you got inserted into the law. And the Congress has repealed that because of revulsion (ph) of the use of it. The president signed that.
My last question is this: As you know, if either the Senate or House finds somebody in contempt, they have to refer it to the U.S. attorney for the District of Columbia, who has to then not necessarily prosecute, but at least present the contempt citation to a grand jury to determine whether criminal charges are appropriate.
LEAHY: Last week, the administration said that the U.S. attorney wouldn't be allowed to carry out that.
So my question to you is, if a house of Congress certified a contempt citation against former or current officials for failing to appear or comply with a congressional subpoena, would you permit the U.S. attorney to carry out the law and refer the matter to a grand jury, as required by 2 USC 194, and, therefore, fulfill the constitutional duty to faithfully execute the law, or would you block the execution of the law?
GONZALES: Mr. Chairman, your question relates to an ongoing controversy which I am recused from. I can't -- I'm not going to answer that question.
LEAHY: Is there anybody left in the Department of Justice who could answer the question?
GONZALES: Of course there is.
LEAHY: Who?
GONZALES: With respect to these kind of decisions...
LEAHY: Who?
GONZALES: ... will be made by the solicitor general.
LEAHY: Well, then we may ask him whether on this refusal to prosecute that the administration talked about, whether that extends to the executive branch lying to Congress,or perjury or destruction of evidence or obstruction of justice. Because, Mr. Attorney General, those are going to be real issues. They're not going to be -- they're not going to be just debating points.
Thank you.
Senator Specter?
SPECTER: Let me move quickly through a series of questions -- there's a lot to cover -- starting with the issue that Mr. Comey raises.
You said, quote, "There has not been any serious disagreement about the program."
Mr. Comey's testimony was that Mr. Gonzales began to discuss why they were there, to seek approval, and he then says, quote, "I was very upset. I was angry. I thought I had just witnessed an effort to take advantage of a very sick man."
SPECTER: First of all, Mr. Attorney General, what credibility is left for you when you say there's no disagreement and you're party to going to the hospital to see Attorney General Ashcroft under sedation to try to get him to approve the program?
GONZALES: The disagreement that occurred, and the reason for the visit to the hospital, Senator, was about other intelligence activities. It was not about the terrorist surveillance program that the president announced to the American people.
Now, I would like the opportunity...
SPECTER: Mr. Attorney General, do you expect us to believe that?
GONZALES: Well, may I have the opportunity to talk about another very important meeting in connection with the hospital visit that puts it into context?
It was an emergency meeting in the White House Situation Room that afternoon. It involved senior members of the administration and the bipartisan leadership of the Congress, both House and Senate, as well as the bipartisan leadership of the House and Senate Intel Committees, the gang of eight.
The purpose of that meeting was for the White House to advise the Congress that Mr. Comey had advised us that he could not approve the continuation of vitally important intelligence activities despite the repeated approvals during the past two years of the same activities.
SPECTER: OK.
Assuming you're leveling with us on this occasion...
(CROSSTALK)
SPECTER: No, I want to move to the point about how can you get approval from Ashcroft for anything when he's under sedation and incapacitated -- for anything.
GONZALES: May I continue the story, Senator?
SPECTER: No, I want you to answer my question.
GONZALES: Senator, obviously there was concern about General Ashcroft's condition.
GONZALES: And we would not have sought nor did we intend to get any approval from General Ashcroft if in fact he wasn't fully competent to make that decision.
But General -- there are no rules governing whether or not General Ashcroft can decide, "I'm feeling well enough to make this decision."
SPECTER: But, Attorney General Gonzales, he had already given up his authority as attorney general.
(CROSSTALK)
SPECTER: ... was no longer attorney general.
GONZALES: And he could always reclaim that.
There are no rules...
SPECTER: While he's in the hospital under sedation?
(LAUGHTER)
GONZALES: Again, we didn't know -- we knew, of course, that he was ill, that he'd had surgery...
SPECTER: Not making any progress here. Let me go to another topic.
(LAUGHTER)
Attorney General, I wouldn't -- and I'd like to have a lot of time, but I've got three minutes and 43 seconds left, and seven topics to cover with you.
Mr. Attorney General, do you think constitutional government in the United States can survive if the president has the unilateral authority to reject congressional inquiries on grounds of executive privilege and the president then acts to bar the Congress from getting a judicial determination as to whether that executive privilege is properly invoked?
GONZALES: Senator, you're asking me a question that is related to an ongoing controversy which I am recused -- I will say the president's tried very hard...
SPECTER: Oh, no, no. I'm not asking you a question about something you're recused. I'm asking you a question about constitutional law.
GONZALES: You're asking me a question that's related to an ongoing controversy.
SPECTER: I'm asking you whether you can have a constitutional government with the Congress exercising its constitutional authority for oversight if when the president claims executive privilege, the president then forecloses the Congress from getting a judicial determination of it. That's a constitutional law question.
GONZALES: Senator, both the Congress and the president have constitutional authorities. Sometimes they clash. In most cases, accommodations are reached. In very rare instances, they sometimes litigate it in the courts.
SPECTER: Would you focus on my question for just a minute, please?
GONZALES: Senator, I'm not going to answer this question, because it does relate to an ongoing controversy in which I am recused.
(BOOING)
LEAHY: I would note, please, we'll have decorum in here.
Senator Specter has a right to ask all the questions he has. The attorney general has a right to be heard. I have indicated to Senator Specter especially that I'm taking some of his time in saying this, so he has extra time.
But, please, let us continue without comments.
SPECTER: I'm not going to pursue that question, Mr. Attorney General, because I see it's hopeless. It's got nothing to do with your recusal.
You're the attorney general, and you're also a lawyer. And we're dealing with a very fundamental controversy, where the president is exerting executive authority under executive privilege and the Congress is exerting constitutional authority for oversight. And we're trying to take it to court.
The court decides when that conflict exists. It's got nothing to do with, necessarily, the U.S. attorneys who were asked to resign.
Let me move ahead to another subject, see if I get an answer here.
You have a conflict of interest on the matter involving the resignations of the U.S. attorneys.
GONZALES: Yes. I'm recused for that.
SPECTER: Does the president have a conflict of interest in deciding whether or not to allow a contempt citation to go forward to a former White House counsel, Harriet Miers?
GONZALES: Senator, I am not going to answer that question. Again, you're talking about -- asking me questions about a matter in which I am recused. I'm not going to answer that question.
SPECTER: Well, let's see if somehow, somewhere, we can find a question you'll answer.
(LAUGHTER)
How about the death penalty case? I wrote you about this.
Had a man who was convicted of murder. The victim's body was never recovered. There was no forensic evidence directly linking the defendant to the victim's death. The U.S. attorney, a man named Paul Charlton, contacted your office and said, "I don't think this is a proper case for the death penalty."
SPECTER: Deputy Attorney General Paul McNulty had a conversation with Mr. Charlton and had a conversation with you. And then McNulty's chief of staff, Mike Ellston, called Charlton. And this is Charlton's testimony: "Ellston indicated that McNulty had spoken to the attorney general and that McNulty wanted me to be aware of two things; first, that McNulty had spent a significant amount of time on this issue with the attorney general, perhaps as much as five or 10 minutes."
Is that accurate, factually? Will you answer a question as to a fact, as to whether you talked to McNulty about this case for as much as five or 10 minutes?
GONZALES: I have no specific recollection as to this particular case.
But I can tell you, we have a very detailed process, where hours are spent by lawyers, including the U.S. attorney, our capital case review unit, who then make recommendations to the deputy attorney general...
SPECTER: I'm not interested in that. I'm interested in an answer to my question. If you don't know, if you don't remember...
GONZALES: I don't -- I don't...
SPECTER: Wait a minute. I'm not finished asking you a question.
If you don't know or you don't remember what happened when you stood on a decision to have a man executed -- that's what you're saying.
GONZALES: I have no specific recollection about the amount of time that I talked with Paul McNulty on this particular issue.
SPECTER: Well, would you disagree with McNulty that it was five to 10 minutes?
GONZALES: I can't agree with that if I don't recall, Senator.
SPECTER: OK, you can't agree with it. I didn't ask you that. I asked you if you disagreed with it.
GONZALES: I can't agree or disagree with it.
SPECTER: Would you say that five to 10 minutes would be a, quote, "significant amount of time" for you to spend on a case involving the death penalty?
GONZALES: It would depend on the circumstances of the case and the recommendations coming up and the facts. Those would all dictate how much time I would spend, personally, on a particular case.
Because we have a very extensive review process within the department, where hours are spent analyzing what is the appropriate course of action for the department...
SPECTER: Well, Mr. Attorney General, I'm not totally unfamiliar with this sort of thing. When I was district attorney of Philadelphia, I had 500 homicides a year. I didn't allow any assistant to ask for the death penalty that I hadn't personally approved. And when I asked for the death penalty, I remembered the case.
Thank you, Mr. Chairman.
LEAHY: Thank you very much.
Senator Kohl?
KOHL: Thank you, Mr. Chairman.
Mr. Attorney General, the detention center at Guantanamo Bay continues to harm our image around the world. There's growing consensus on this. Secretary of Defense Robert Gates told the House Committee, quote, "I came to this job thinking that Guantanamo Bay should be closed."
KOHL: According to press reports, Secretary of State Rice has also supported efforts within the administration to close Guantanamo.
And former Secretary of State Colin Powell said, quote, "If it was up to me, I would close Guantanamo -- not tomorrow, but this afternoon."
Last year even the president himself recognized that Guantanamo has been the focus of international criticism and he said, I quote, "I'd like to, quote, 'close Guantanamo.'"
Recent press reports have disclosed that efforts are under way in the administration to do that. According to the New York Times, however, these efforts, quote, "were rejected after Attorney General Gonzales and some other government lawyers expressed strong objections."
So where are you on this? Do you think that we should close Guantanamo?
GONZALES: I wish we could close Guantanamo. I'm with everyone else: We should close Guantanamo.
However, a need remains -- and there are legitimate questions about what do you do with these individuals?
I guess we could turn them loose, Senator, and they could end up fighting against us again. We could bring them into the United States, although I understand the Senate recently rejected that overwhelmingly.
Bringing them into the United States raises some serious legal issues. And as the attorney general, my job was to make sure that all the policy-makers were aware that there were serious legal issues that would arise if in fact they were brought into the United States.
But if your question is, would I support closing Guantanamo? Absolutely, but not at the risk of the lives of our men and women who are fighting overseas and not at the risk of the national security of our country.
KOHL: But we can put them into the American justice system, an American justice system that you know has worked very effectively even with respect to dealing with terrorists and members of Al Qaida. There are ways in which we can restrict classified information, important information.
So if you support closing Guantanamo, then why don't you put into motion the kinds of things that will result in just that?
GONZALES: Senator, I do believe there are legitimate risks involved in bringing people into the United States and putting them into our system, quite frankly.
KOHL: What are the risks?
GONZALES: Let's say that the evidence that we have is not evidence that we want to compromise in order to bring someone to trial. Once they're into the United States, if they come from a country where if we send them back they may be tortured, they will have the right to ask for asylum. And so we may not have the ability to either hold them or to throw them out of the United States, and we have to let them go.
And so those are, sort of, the nightmare scenarios that we worry about in bringing people into the United States.
KOHL: Are you saying, therefore, that you do not support closing Guantanamo?
GONZALES: I support closing Guantanamo, Senator, but I think we need to do it with our eyes wide open.
I think we probably will come to the Congress and ask for legislation in order to ensure that we can protect this country.
KOHL: Why don't we do that?
GONZALES: That is certainly something that is of serious discussion and debate within the administration.
KOHL: So you may in fact decide to close Guantanamo and come to Congress for authorization.
GONZALES: Again, there's been no decision made by the president. My judgment is the president, like you, wants to close Guantanamo, but, like you, he doesn't want to do so if it means jeopardizing the security of our country.
And so, we're trying to work through these. And you're right, it will ultimately, in my judgment, require additional consultation with the Congress.
KOHL: Mr. Attorney General, consumers today, as you know, are suffering from near-record high gas prices, and most of this is due to the high price of crude oil.
Despite this, the administration has threatened to veto our NOPEC legislation, which would enable the Justice Department, and only the Justice Department, to sue OPEC member nations for violating U.S. antitrust law when they conspire to fix the price of oil, which they do.
This bill passed both the House and the Senate with overwhelming margins. Under this bill, the Justice Department, and only the Justice Department, could institute this kind of a proceeding. So why do you not want this authority?
GONZALES: I think cartels are bad, and we ought to prosecute them and go after them.
GONZALES: I agree with that.
The question is whether or not going after this cartel in this way, through litigation, is the right approach, because you implicate questions of sovereignty and state action. And, you know, it calls into question the fact that, you know, we have a presence overseas and does that mean that either the American government or American businesses are going to be subject to litigation and the jurisdiction of other countries overseas?
I think that that's a concern that we have is the downstream impact, or the result, the impetus that's going to arise as a result of this legislation.
And we think that a better approach is to continue to try to work through this through the Department of Energy and the Department of State, through diplomatic means.
And that's the concern that we have, Senator.
Again, cartels are bad. We'd like to deal with it. I just -- we're concerned that this may not be the best approach.
KOHL: But you don't have to use it. Because you don't -- you know that the only way in which the legislation can be effected is through the president and the Department of Justice. So if you think it's legislation that should not be used, so you won't use it.
GONZALES: But once Congress passes the legislation and puts it on the books, what's going to be the response of another country who sees this action taken by the Congress? And are they going to take some kind of action in response to simply the legislation passing?
It's hard to predict. I would simply urge the Congress to consider giving the Department of State and the Department of Energy additional time to try to work through this.
KOHL: Mr. Attorney General, since our last oversight hearing, it seems that very little has improved at the Justice Department. And many of the people in senior positions have resigned, as you know. And according to press reports, these positions have not been filled, in many cases because people have turned down these jobs. The American public has lost confidence in you according to recent polls. Morale at the Justice Department remains low. The integrity of the
Office of the Attorney General as an institution is obviously more important, I'm sure you would agree, than the person sitting in it. In other words, Mr. Attorney General, this cannot be just all about you.
And so, would you please explain to us why the administration of justice and the American people would not be better served by somebody sitting in the office who does not have all of the problems that you possess with respect to believability, credibility, confidence, trust? What keeps you in the job, Mr. Attorney General?
GONZALES: That's a very good question, Senator.
Ultimately I have to decide whether or not it would be better for me to leave or just stay and try to fix the problems. I've decided to stay and fix the problems. And that's what -- and that's what I have been doing.
You talked about vacancies. We're at a time in the administration where there are going to be vacancies in agencies. It's just natural.
Obviously there have been changes in personnel at the leadership of the department. In many ways, that is a good thing. We've just identified a new interim deputy attorney general who's a career prosecutor. I think he'll do a great job.
GONZALES: I've got a chief of staff who's also a United States attorney.
And so we've got -- we're bringing in good, experienced people into these positions, because we want to address the question about lack of leadership. I think we have some strong leadership in the Department of Justice.
We've changed policies. We've been made aware of some issues relating to some of our policies, with respect to hiring immigration judges, with respect to the honors program, with respect to hiring assistant United States attorneys, with respect to hiring in Civil Rights Division. And so we've implemented policies to address each and every one of these.
We've also worked very hard to improve communication; not with just the U.S. attorney community, but also with respect to every employee at the Department of Justice.
I think the way you measure morale is you measure output. And I think if you look at the output at the department these past six months, it's been outstanding.
Sure, we've had to deal with these issues. They're my responsibility, and I've accepted responsibility for it. But the wonderful career people at the department continue doing their job day in and day out, and justice is being served in this country.
KOHL: Thank you very much.
Thank you, Mr. Chairman.
LEAHY: Thank you.
Senator Hatch?
HATCH: Thank you, Mr. Chairman.
Well, I want to make it clear that having gone there -- one of the earliest ones to go there -- I do not agree with closing Guantanamo. The big issue is, even if we did, what do we do with them? What's the alternative? I've heard a lot of the senators around here bemoaning the fact they sure don't want these terrorists in their state. The fact of the matter is, it's a separate place where they can be contained and appropriately so.
So I'm opposed to it, closing Guantanamo. I think it's ridiculous. I think the arguments have been ridiculous. And I hope you will consider changing your mind on that, because I just think it's wrong.
But now, you may not have had -- having said that, I just thought I'd make that point.
You may not have had a full opportunity to explain what happened the day of your hospital visit to Attorney General Ashcroft. So if you would, please finish your description of those events so we can all understand just what happened there.
GONZALES: The meeting that I was referring to occurred on the afternoon of March 10th, just hours before Andy Card and I went to the hospital.
GONZALES: And the purpose of that meeting was to advise the gang of eight, the leadership of the Congress, that Mr. Comey had informed us that he would not approve the continuation of a very important intelligence activity despite the fact the department had repeatedly approved those activities over a period of over two years.
We informed the leadership that Mr. Comey felt the president did not have the authority to authorize these activities, and we were there asking for help, to ask for emergency legislation.
HATCH: Was Mr. Comey there during those two years?
GONZALES: He was not there during the entire time, no, sir.
HATCH: How much of that time?
GONZALES: I can't recall now, Senator, when Jim Comey became the deputy attorney general.
The consensus in the room from the congressional leadership is that we should continue the activities, at least for now, despite the objections of Mr. Comey.
There was also consensus that it would be very, very difficult to obtain legislation without compromising this program, but that we should look for a way ahead.
It is for this reason that within a matter of hours Andy Card and I went to the hospital. We felt it important that the attorney general knew about the views and the recommendations of the congressional leadership, that as a former member of Congress and as someone who had authorized these activities for over two years that it might be important for him to hear this information.
That was the reason that Mr. Card and I went to the hospital.
Obviously, we were concerned about the condition of General Ashcroft. We obviously knew he had been ill and had surgery. And we never had any intent to ask anything of him if we did not feel that he was competent.
When we got there, I will just say that Mr. Ashcroft did most of the talking. We were there maybe five minutes -- five to six minutes.
Mr. Ashcroft talked about the legal issues in a lucid form, as I've heard him talk about legal issues in the White House. But at the end of his description of the legal issues, he said, "I'm not making this decision. The deputy attorney general is."
And so Andy Card and I thanked him. We told him that we would continue working with the deputy attorney general and we left.
And so I just wanted to put in context for this committee and the American people why Mr. Card and I went. It's because we had an emergency meeting in the White House Situation Room, where the congressional leadership had told us, "Continue going forward with this very important intelligence activity."
I might also add...
HATCH: That was the gang of eight, you're saying.
GONZALES: Pardon me?
HATCH: That was the gang of eight.
GONZALES: This was the gang of eight.
HATCH: The two leaders in the House, the two leaders in the Senate, the two leaders of the Intelligence Committee in the House and the two leaders of the Intelligence Committee in the Senate, right?
GONZALES: That is correct.
I might also add...
HATCH: Democrats and Republicans?
GONZALES: Democrats and Republicans.
I might also add that the urgency was is that the authorities in question were set to expire the very next day.
HATCH: Right.
GONZALES: And the president believed this was a very important activity, as did the congressional leadership. In fact, the very next morning we had the Madrid bombings. And so that puts in perspective the context of the environment that we were operating under. And these are the reasons why we went to the hospital on the evening of March 10th.
HATCH: Well, thank you, sir.
The administration's made proposals to modernize FISA, of course, and is working with the Judiciary Committee to ensure that appropriate staff members have the necessary information about the terrorist surveillance plans of the administration.
However, some members of the committee have stated that they will not consider any legislation in this area until they receive additional information about the TSP. I do find this logic somewhat questionable, since this very committee not only considered but passed three different bills dealing with FISA modernization during the last Congress.
How do you view the decision to not discuss FISA modernization? Of all issues, isn't this one in which increased attention and expediency is paramount?
GONZALES: This is the most important legislative agenda item for the Department of Justice, FISA modernization.
The threats exist against the United States and we believe that FISA, while it's been a valuable tool, also has made it more difficult to engage in electronic surveillance of foreign targets overseas. We don't believe that was ever the intent of FISA.
It's a policy question. The Congress has to decide, do they want the department and the agency -- NSA, the FBI, the Department of Justice -- utilizing our resources, our agents, our analysts, our lawyers in order to make a probable cause determination and then present it to a judge in connection with a foreign terrorist who's located outside the United States?
GONZALES: Is that what the Congress wants us to do? Because if they do, we'll continue to do it, but I think it's a legitimate question to ask. Is that the right policy for the United States today.
HATCH: You've been accused of wanting to install interim U.S. attorneys to serve indefinitely without Senate confirmation. I don't think there's ever been any evidence for that, but then some accusations could be more useful than they are true.
Since you were first asked about this more than a year-and-a-half ago, you said that it is your intention to have a Senate-confirmed appointee to these positions.
Now, I raise this point to point out that we continue to see nominations to the U.S. attorney positions of men and women who have been serving in an interim capacity. This is exactly what you said the administration intended to do, if I recall it correctly. We've seen this recently in Nebraska, Puerto Rico and elsewhere.
Now, is that your continued commitment: to have Senate-confirmed U.S. attorneys in each jurisdiction?
GONZALES: It is. I believe that U.S. attorneys, quite frankly, are stronger in dealing with other law enforcement counterparts at the federal, state and local level. And it's also, I think, vitally important with respect to the deputy attorney general.
We have, I think, a very strong interim -- we will have soon a very strong interim deputy attorney general, but my intention and hope is that we have someone who is considered and confirmed by the Senate soon.
HATCH: Well, thank you.
Thank you, Mr. Chairman.
LEAHY: Are you saying that the interim attorney general who has served as an interim U.S. attorney in two different places -- his name was never sent up for confirmation for that -- his name will now probably be sent up here for confirmation for something?
GONZALES: His name -- well, I'm not saying that his name will be sent up for confirmation. After the White House has completed its very thorough background investigation and interviews of candidates, the intention is to send up someone for consideration by the Senate to confirm as the deputy attorney general.
LEAHY: He's interim, having been an interim U.S. attorney general in two different jurisdictions?
GONZALES: He is the -- he will be interim as soon as Mr. McNulty leaves.
LEAHY: Thought I'd ask. And you said that -- you spoke of how important it is to you -- to have this committee look at updates for FISA. Have you ever taking even 30 seconds or a minute to call me and tell me that? I mean, I just heard this from you for the first time here. You know, I have a listed telephone number.
GONZALES: I'm sorry. I lost my transmission.
LEAHY: You just said to Senator Hatch that it's extraordinarily important for you that this committee consider updates on FISA laws. Have you ever said that to me? Have you ever picked up the phone and called me or told me that?
GONZALES: Senator, I would be surprised if that hasn't been communicated in a letter, and certainly, it's been communicated to your staff in terms of the importance of FISA modernization.
LEAHY: I have a listed telephone number. Feel free to call anytime.
Senator Feinstein -- if it is that important to you.
FEINSTEIN: Thank you very much, Mr. Chairman.
Mr. Attorney General, I've sat here and listened particularly to the opening comment of the chairman and the ranking member, and in my time in the Senate, I have never heard comments quite like that coming from both sides of the aisle. And then I listened to your response, which was nonresponsive which went into something about FISA, unrelated to anything that had been said.
I don't think you understand what's happening in the Department of Justice, the diminution of credibility, integrity. It's almost as if the walls were actually crumbling on this huge department.
FEINSTEIN: And I listen to you. And nothing gets answered directly. Everything is obfuscated.
You can't tell me that you went up to see Mr. Comey for any other reason other than to reverse his decision about the terrorist surveillance program. That's clearly the only reason you would go to see the attorney general in intensive care.
GONZALES: May I respond to that?
FEINSTEIN: Yes, you may.
GONZALES: OK. You're right. This is an extraordinary event. But we were confronting extraordinary circumstances where we had been advised that something that the department had authorized for two years, they would no longer continue to approve.
We'd just been advised by the congressional leadership: Go forward anyway. And we felt it important that the attorney general, General Ashcroft, was aware of those facts.
Clearly, if we had been confident and understood the facts and was inclined to do so, yes, we would have asked him to reverse the DAG's position. But...
FEINSTEIN: Well, then, why would he have said Mr. Comey is in charge, if you hadn't asked him?
GONZALES: I don't understand the question.
FEINSTEIN: Well, clearly you asked him the question, because James Comey testified to us that...
GONZALES: My recollection, Senator, is -- and, of course, this happened some time ago and people's recollections are going to differ. My recollection is that Mr. Ashcroft did most of the talking. At the end, my recollection is, he said, "I've been told it would be improvident for me to sign. But that doesn't matter, because I'm no longer the attorney general."
FEINSTEIN: OK. All right.
GONZALES: And once he said that, Secretary Card and I didn't press him. We said thank you, and we left.
FEINSTEIN: OK.
GONZALES: But, again, we went there because we thought it important for him to know where the congressional leadership was on this. We didn't know whether or not he knew of Mr. Comey's position and, if he did know, whether or not he agreed with it.
FEINSTEIN: All right. I think we've taken care of this.
What I'd like to establish, once and for all, is who put the names on the list to fire what are now nine U.S. attorneys.
Since you were here last, we've had a number of your top staff appear before us. Kyle Sampson, your former chief of staff, said, "I was the aggregator of input that came in from different sources."
Paul McNulty said it was presented to me as here is the idea and here are the names of individuals that are being identified.
Jim Comey said, "I was not aware there was any kind of process going on."
FEINSTEIN: Bill Mercer said, "I didn't understand there was a list. I didn't keep a list."
Mike Battle: "A decision was made to compile a list. It was made by someone. I had no input. Nobody asked for my input."
Will Moschella: "Since I was not part of that process, I don't have firsthand knowledge."
Mike Ellston: "Kyle asked me to give him my thoughts, give him a draft list. I said, sure. I didn't actually do it. I was very busy."
Who approved those names?
GONZALES: I ultimately approved the list of recommendations that were submitted to me. I accept responsibility.
FEINSTEIN: And how many names did you approve for firing?
GONZALES: I think, on the list that was presented...
FEINSTEIN: Oh, no -- total. How many names have you approved for firing?
GONZALES: You mean total, for cause, not for cause?
I'd have to get back to you on that.
FEINSTEIN: There were seven on December 7.
GONZALES: Seven on December 7.
FEINSTEIN: We're now up to nine that we know about. How many -- this is important -- how many U.S. attorneys did you approve to be summarily fired?
GONZALES: Senator, there may have been others. I would be happy to get back to you with that kind of information about who has left. But I don't know the answer to your question. But I can certainly find out.
FEINSTEIN: You don't know, after all we've been through, the hearing after hearing after hearing?
GONZALES: Well, in connection with this review process that Mr. Sampson was coordinating, what was presented to me was a list of seven individuals, on December 7. And so those are the seven that I accepted the recommendation to ask for resignation.
FEINSTEIN: That's right. But those were the ones that were called on December 7 and told to leave by January 15.
GONZALES: Yes.
FEINSTEIN: There were others also asked to resign.
GONZALES: Yes.
FEINSTEIN: And I'm asking what the total number were.
GONZALES: Well, certainly, Mr. Cummins was asked to leave. Mr. Graves was asked to leave. I'm not aware, sitting here today, of any other U.S. attorney who was asked to leave, except there were some instances where people were asked to leave, quite frankly, because there was legitimate cause.
FEINSTEIN: So you're saying these were asked to leave because the cause was not legitimate?
GONZALES: I'm not saying -- no, what I'm saying is wrongdoing, misconduct. There may been some -- in fact, I'm sure there were others...
FEINSTEIN: What kind of misconduct?
GONZALES: Well, for -- and I'm not suggesting any of this conduct happened, but, for example, an inappropriate relationship, taking action where you have a direct conflict of interest, to help out a buddy, making a -- you know, those kinds of -- something like that, I would say, would constitute misconduct. And there...
FEINSTEIN: Were those specific things involved in any U.S. attorney that was terminated?
LEAHY: Good question.
GONZALES: No. With respect to the seven and with respect to Mr. Cummins and with respect to Mr. Graves, I am not aware that -- certainly, it wasn't, in my mind, a problem or basis to accept the recommendation that they be asked to leave.
FEINSTEIN: All right. Let me go to something else. You, of course, recognize these books, "The Federal Prosecution of Election Offenses." In prior hearings, we had the 1995 edition.
FEINSTEIN: Since May of this year, there is now a new edition. I'd like to read to you what has been dropped from the earlier edition.
The first thing that's been removed is this: "The Justice Department generally does not favor prosecution of isolated fraudulent voting transactions. This is based in part on constitutional issues that arise when federal jurisdiction is asserted in matters having only a minimal impact on the integrity of the voting process." This was removed in this new edition.
The second thing: "The Justice Department must refrain from any conduct which has the possibility of affecting the election itself." This is weakened on page 92. This language is removed. "Federal prosecutors and investigators should be extremely careful to not conduct overt investigations during the pre-election period of while the election is under way." Removed.
Then a sentence that's underlined in the '95 edition, which states thus: "Most, if not all, investigations of an alleged election crime must await the end of the election to which the allegation relates." It was removed in this new edition.
Weakened was this language: "It should also be kept in mind that any investigation undertaken during the final stages of a political contest may cause the investigation itself to become a campaign issue."
Why was it necessary to remove this language in this new edition in the Federal Prosecution of Election Offenses rules?
GONZALES: Senator, I don't -- sitting here today, I don't know the answer to that question. I would like to find out, because I am certainly committed to ensuring that we're smart in the way that we do investigations and prosecutions and we do in a way that doesn't intimidate voters, that doesn't chill potential voters from coming out and voting on Election Day.
So I would like the opportunity to look into this and respond back to you.
FEINSTEIN: Appreciate it. It becomes more relevant because two and possibly three of the fired U.S. attorneys were fired because they didn't bring those small cases that might affect an election.
And therefore, when one looks at this book now, sees a new book coming out in May '07 that deletes the very things that these U.S. attorneys were told to follow, something's rotten in Denmark.
GONZALES: Thank you for the opportunity for me to look into that.
FEINSTEIN: I appreciate that.
Thank you very much. My time is up.
LEAHY: Thank you.
Thank you very much, Senator Feinstein.
Senator Kyl?
KYL: Thank you, Mr. Chairman.
Mr. Attorney General, as I understand it -- and I'm going to ask you to correct me if I'm wrong, to your knowledge -- the administration position on Guantanamo Bay is that, while it would be nice if we didn't have the need for it and we'd like to be able to close it, we can't because the terrorists who represent a threat to the United States need to be held somewhere and there are no better alternatives.
KYL: Almost nobody wants them in the United States. You can't just let them go. Sending them to foreign countries is problematic, among other reasons for the reasons you discussed.
Is that your understanding? And, if not, what is your understanding?
GONZALES: Yes.
KYL: Do you have any different reasons for desiring to close Gitmo, for example, because to your knowledge or suspicion, is there anything going on down there that might be a violation of either U.S. law or applicable treaties or conventions?
GONZALES: Quite the contrary. I think if people who have gone down there in this body, from the House, other countries, have come away favorably impressed with what's going on down there.
KYL: I just want to associate myself with the remarks of Senator Hatch. It would be nice if we didn't have to have any prisons for that matter. And it would certainly be good if we didn't have to have a place for these threats to America. But they do have to be held somewhere, and I know of no better alternative than where they're being held right now.
Let me ask you this question about a matter that you know I'm very interested in -- and as a matter of fact in a related, potentially related, matter, there is a scandal now brewing with regard to the National Basketball Association.
Sports entities, in particularly the NFL, major league baseball, basketball, the NCAA -- amateur athletics, have for a long time been concerned about Internet betting, which is illegal under most state laws and we have our federal laws as well.
You have -- and you're aware that on October 13th the president signed into law the Unlawful Internet Gambling Enforcement Act to augment enforcement efforts by targeting offshore gambling operations that are not readily subject to U.S. prosecution.
KYL: There are additional, existing laws -- the Federal Wire Act and money laundering laws that can be and have been used to go after these Internet gambling operators.
I realize that you can't comment on any existing cases, but I'd like for you to just express to the committee generally what your views are with respect to the department's intentions with respect to going after these illegal Internet gambling operations.
GONZALES: Thank you, Senator. I appreciate your leadership on this issue.
We do believe it's a serious issue because, when you talk about Internet gambling, it's highly-addictive. Quite frankly, I think it affects our youth. I think it can be tied to money laundering and fraud, and we think it's tied to organized crime.
There are existing laws on the books, and we can and do enforce those laws. There are challenges because of the existing laws, challenges because, much of the time, the evidence is offshore. We may have difficulty in getting the evidence. Also, because it involves another country, there are sometimes serious issues of extradition.
So we appreciate the additional tools of this Unlawful Internet Gambling Act which bans certain financial payments to support Internet Gambling.
And, as you know, Treasury and the Federal Reserve have primary responsibility for the issuance of these regulations after consulting with the Department of Justice. We've provided input, and so my understanding is that those regs are moving forward.
KYL: The regs -- the proposed regs have been made public. My question really was a broader one. You have engaged in prosecutions under other laws as well, and I was simply giving you an opportunity to express your intentions to continue to enforce all of these laws to the extent that they need to be enforced.
GONZALES: We certainly intend to do that, and you have my commitment, Senator.
KYL: Incidentally, I may have not been clear in my reference to the NBA. I'm not suggesting that there's evidence of illegal Internet gambling with respect to that, but simply wanted to point out that these sports depend on the public's view that they are unadulterated, that they're clean, that they are not being affected by illegal forces.
And that's why they're so supportive of this legislation, to make sure that illegal Internet gambling does not, in any way, intrude into those sports. And I think Americans have a right to have that assurance.
Mr. Attorney General, the FBI is facing a mounting caseload of applications from foreign nationals seeking to enter the United States or to adjust status. The FBI, of course, does background checks, but there is a huge backlog, as you know.
What technologies or resources can Congress secure for the FBI to ensure that's it's able to timely process applications without compromising the safety and security of the American people?
GONZALES: This is a problem that I have discussed with the director. You're talking about background checks, individuals from other countries. It does take us a long time in some cases, because of the fact it requires us to get information and records from other countries.
I know that the director is focused on trying to get additional resources, additional individuals, maybe contract work out to helping in this endeavor. And so he's also looking at new computer system technology, taking advantage of technology...
KYL: Let me just interrupt because of the time.
There's a huge backlog. It shouldn't exist. Do we need to provide additional resources, Congress?
GONZALES: I don't know whether or not additional resources are required from the Congress. I do know that additional resources within the bureau have to be focused on this issue. And it may be -- the director may come to me and say, "Well, if we do that, we're not going to be able to protect America from terrorism the way we ought to be in other areas."
And so I don't know the answer to that. But certainly more resources are necessary. We may already have the resources within the bureau. I suspect the director will say no.
KYL: We need to know if there's something else we can do, because you cannot compromise security and we cannot tolerate the long backlogs that currently exist. So something needs to give here. And if it is that we need more resources, Congress needs to be advised.
Let me quickly, while I have just a second, ask one final question. A U.S. Customs and Border Protection -- DHS reports that 16 percent of foreign nationals apprehended illegally crossing the southern border have criminal histories. That's about 140,000 individuals in the year 2005.
And if that's not alarming enough, DOJ and the GAO indicate that criminal aliens in the U.S. are re-arrested on an average of six to eight times per offender, which puts a huge strain on both federal, state and local law enforcement officers, prosecutors, courts and our jails.
Is the Department of Justice undertaking any initiatives with DHS to proactively identify and prosecute and remove criminal aliens? And, here again, is there any authority or resource that Congress needs to provide to DOJ to assist in the prosecution of these criminal aliens?
GONZALES: I think that, quite candidly, Senator, if you were to talk to my board of U.S. attorneys, they would say we need more resources. And so, we're always looking at ways to try to find those resources within the existing budget.
Obviously the president has to consider a number of priorities with respect to the budget that he submits to the Congress. And the Congress, of course, ultimately makes the decision as to where those priorities should come out.
But we're having to be smart. We're trying to have -- to be more efficient. But it does present or has presented some challenges for us.
KYL: In effect -- Mr. Chairman, could I just do one follow-up question?
In effect, are you saying...
LEAHY: Go ahead.
KYL: ... you understand the president's budget priorities and needs all across the government but, if more resources could be made available to you, you could certainly take advantage of them, could certainly use them?
GONZALES: We certainly would put them to good use.
LEAHY: Of course, you're also aware that the president said if we put any money in there beyond what he's asked for, he'll veto the bill?
Senator Cardin?
CARDIN: Thank you very much, Mr. Chairman.
General Gonzales, I want to return to the U.S. attorney issue, because I think there is a great deal of concern and a lot of questions that have not been answered, and I want to give you a chance to do that.
You have offered conflicting testimonies as to who was responsible for the firing of the U.S. attorneys. We still don't know. And Senator Feinstein's questions really weren't answered. We don't know who was responsible for a particular name ending up being fired.
So let me just go over the U.S. attorneys who were fired and the concern that I think Americans have that your commitment to make sure the Department of Justice is not politicized is exactly what happened with the U.S. attorneys that were fired.
Mr. Iglesias was involved in New Mexico as U.S. attorney investigating certain Democratic -- Democrats. The prominent Republicans were very unhappy with the timing of that investigation, which I think has now become public. So there was a concern that the U.S. attorney wasn't doing what the local political establishment -- Republican establishment -- wanted.
In Nevada, there was an investigation of the Republican governor by the U.S. attorney, which certainly didn't make the local political establishment happy.
In Arizona, there was an investigation of two Republican members of Congress, which was not happy with the local Republican establishment in Arizona.
In Arkansas, there was an investigation by Mr. Cummings in regards to a Republican governor that was creating a lot of controversy.
In California, with Ms. Lam, there was the indictment and conviction of Duke Cunningham, but then the expansion of that investigation, which had Republicans concerned.
CARDIN: In Washington, the U.S. attorney declined to intervene in a disputed gubernatorial election, which angered the local Republican establishment.
And then, of course, Mr. Graves in Missouri -- we've already talked about the voter fraud investigations and the fact that the local political establishment was unhappy with that.
Here we have an unprecedented removal of U.S. attorneys without a change in party in the White House. And we look at those who were removed and find, in almost all cases, they were involved in highly visible political issues that were unpopular to the Republican establishment.
What is one to think?
And we don't have the answers from the White House. We don't have the answers from you. And we're having a very difficult time getting the information without the exertion of executive privilege.
So where do we go, in our -- what comfort can you give me that, in fact, these U.S. attorneys were fired for legitimate reasons and not because of political considerations, which all of us agree would be outrageous and wrong, if not illegal.
GONZALES: Well, Senator, I have already said repeatedly that I did not accept these recommendations with the understanding that this was to punish or interfere with an investigation for purely partisan reasons.
I accept responsibility for this. Senator Feinstein asked me: Who put the names on the list?
Quite frankly, I'm assuming this committee has talked to everyone involved in putting those names on the list and has asked that question.
CARDIN: But you haven't talked to the people in the White House?
GONZALES: I did not put the names on the list. I accepted the recommendations. There were some names on the list, the recommendations made to me, that didn't surprise me, based upon my -- what I'd heard of performance during my tenure as attorney general.
But no one, as far as I know, placed anyone on the list -- and I certainly did not accept the recommendation -- in order to punish someone because they -- they -- they...
CARDIN: But you don't know who put the names on the list?
At least, haven't quite figured out who put the names on the list...
GONZALES: That is correct.
CARDIN: So how do you know someone didn't put the names on the list because of partisan political...
GONZALES: Based on what I know, Senator -- that's what I know. You've had the opportunity, I think, to talk to everyone involved, or ask questions of those involved, more so than I.
The Office of Inspector General and OPR -- they're doing an investigation as well, to try to find out exactly how these names got on the list.
CARDIN: Let me move on to a second issue that troubles me, from your testimony today. And that is, you have talked about your visit to the hospital, the preliminary meetings with the leadership in Congress.
Those meetings are not public meetings, are they?
GONZALES: Well, what do you mean, with Congress?
CARDIN: With the gang of eight?
GONZALES: Well, I'm not sure that this meeting has been talked about, although I'm told this meeting has been -- information about the existence of this meeting has been transmitted to the Congress, I think, in a communication from the administration.
CARDIN: When you briefed the leadership of Congress and the leadership on the Intelligence Committee, are those briefings done in open session?
When you seek their advice, are they in open session?
GONZALES: No.
CARDIN: And are those proceedings kept confidential?
GONZALES: In most cases...
CARDIN: And the advice that the Congress gives you at those meetings are not released or made public?
GONZALES: In most cases, that is true.
CARDIN: And I would just suggest to you, to the extent that there is importance of confidence in working with the congressional leadership, the president's using the executive privilege to not make information available to Congress, it seems to me that you're being very selective in what information you're making available publicly.
GONZALES: Senator, I believe it's important, when people question and wonder what in the world were Andy Card and I doing going to the hospital, that it be placed in the appropriate context.
CARDIN: You're exactly right. And we want the appropriate context of the firing of the U.S. attorneys. We're entitled -- we have a responsibility to get that information.
CARDIN: And the White House -- when Sara Taylor testified, she was very clear about being able to give information that was self- serving to the White House but when we're trying to get independent information, we can't get it.
Do you understand our frustration?
GONZALES: I do understand your frustration.
CARDIN: Let me just -- I have only a few seconds left. I want to make sure I cover this last point, which is the hiring in the U.S. attorney's office.
And I very much appreciate your statement in your prepared testimony where you say, "There is no place for political considerations in the hiring of our career employees or in the administration of justice." You further assert that you plan to remain in office to fix the problem. I'm pleased that you acknowledge a problem.
We had a hearing in the Judiciary Committee with the Civil Rights Division in which the way career attorneys are now hired has been changed. It used to be that there was a -- career attorneys that reviewed those applications and made recommendations for the hiring of U.S. attorneys for the Civil Rights Division. That was taken over by political appointees.
I hope in your efforts to fix the problem that you will go back to a nonpartisan environment for selecting the career attorneys in the Department of Justice. We've had testimony here from Monica Goodling and others about White House interference and political interference that crosses the line.
And I hope as part of your efforts to fix the problem that you'll remove the political appointees from making certain recommendations or standards on bringing in career attorneys or firing or removing or repositioning career attorneys.
GONZALES: Thank you, Senator. I think we have taken those kinds of steps.
CARDIN: Thank you, Mr. Chairman.
LEAHY: Thank you.
Senator Grassley was actually the first one here, but is, like all of us, juggling more than one committee assignment. I'll recognize him now.
GRASSLEY: Thank you.
I was sharing my time with the Finance Committee.
Mr. Chairman, I have a list of outstanding requests and documents and information from the FBI, and I'm going to ask that this be put in the record and I'm going to refer to it.
LEAHY: Without objection, all the material will be part of the record.
And also without objection, opening statements by various senators who have asked be put in the record will be placed in the record as though read.
GRASSLEY: Thank you.
Mr. Attorney General, the request for documents and information relate to the oversight involving Special Agent Jane Turner, Special Agent Cecilia Woods, the Amerask (ph) investigation and e-mails relating to exigent letters that we detailed in the national security letters report.
I continue to wait for these responses, some of them months overdue. And as the FBI is a component of the Department of Justice and I'm doing it here at this hearing, to ask if you would personally ensure the prompt delivery of all information requested.
GONZALES: I'll personally assure you of the prompt delivery of the appropriate information requested.
GRASSLEY: I want to refer to the False Claims Act and its use in Iraq contracting.
GRASSLEY: I am referring to a Boston Globe, June 20th, 2007, entitled, "Justice Department Opts Out of Whistleblower Suits, Cases Alleged Fraud in Iraq Contract."
The article noted that the department declined to intervene in 10 false claims act -- whistleblower cases raising allegations of fraud, waste and abuse in contracts during reconstruction in Iraq.
Further, the article states that the department has only reached two civil settlements with contractors in Iraq, totalling $6.10 million. Congress has appropriated hundreds of billions of dollars to fund our troops and to support contractors as well as reconstruction projects, so I find it hard to believe that only $6.10 million has been lost to fraud and abuse by government contractors.
For instance, in government programs such as Medicaid, we know that fraud in program is around 5 percent and maybe higher. It's hard to imagine that fraud in Iraq would be less, but I'll leave the numbers to experts.
In addition, April 19th, 2006, a Wall Street Journal quotes critics of the department as saying, "The current administration's use of judicial seal of False Claims Act cases is unprecedented. Its critics argue that the department is using the judicial seal as a means to mask the true extent of possible fraud in Iraq."
So, General Gonzales, how many -- I want to ask -- well, let me ask a couple of questions at a time. I've got six questions in this series.
How many False Claims Act cases alleging fraud in Iraq has the department joined since 2003?
GONZALES: I think the answer to that -- I think there were 26, but I'd like to confirm that if I can. I think that's in the neighborhood.
GRASSLEY: OK.
Is the Boston Globe article accurate in stating that the department has declined intervention in 10 false claims cases alleging contract fraud in Iraq, and if so, why?
GONZALES: I don't know if that number is correct. But I will tell you, of course, the fact that we make -- we decline doesn't mean that we don't follow the case. We still remain the real party in interest, and so we closely monitor these cases. And we may decide to intervene at a later point in time. We may decide to file an amicus to protect the interest of the United States.
And so the fact that we have declined doesn't mean that we're not going to get involved in any way going forward.
GRASSLEY: Well, for the public and Chuck Grassley, it seems to me that declination of intervention does signal an unwillingness to pursue Iraq contracting fraud cases.
GONZALES: No, what it means is that we have to look at the cases and decide is there now, at this time, a judgment that we can prosecute these cases.
We have been very, very successful in those cases where we decide to join, because we evaluate the cases carefully and we think, "OK, there's something there. We can win this case."
In those cases where we don't join, the relator (ph) doesn't fare nearly as well, because they are taking on cases that are very, very difficult and they can't prove them. And so, we're trying to be smart in utilizing the resources that we have and prosecuting those cases where we think the evidence will support the charge.
GRASSLEY: OK.
Are there currently any FCA cases under seal relating to Iraq fraud contracting?
GONZALES: I believe the answer to that is yes, because, again, these are difficult cases and it takes us a period of time -- sometimes people would argue too long -- to decide whether or not we're going to intervene and join the case.
GRASSLEY: Let me ask you lastly on this point: How do you respond to the criticism outlawed -- outlined in the Wall Street Journal article? Is the department trying to escape accountability by using the seal as a shield? That's what was stated.
GONZALES: No. Far from it.
In fact, we want to expose fraud and mismanagement and waste, quite frankly, I think. And we have a special obligation at the department. If people are going to contract with the United States, they ought to be held to the highest standard.
And so, again, we use it as a way to protect the interests of the United States in litigation.
GRASSLEY: I want to go to the United States DRC, Inc. v. Custer Battles.
February 17th, 2005, I wrote you regarding this case, urging the department to comply with the request of district judge to file a brief on the issue of whether the Coalition Provisional Authority -- I'm going to refer to that as CPA -- was a government entity under the False Claims Act.
GRASSLEY: On April the 1st, 2005, the department filed a brief stating the government's position that knowingly false claims presented to the CPA by Custer Battles, if proven, would violate the False Claims Act.
The department also stated that, notwithstanding the brief, they declined to intervene with the whistleblowers.
Ultimately, the jury found Custer Battles violated the FCA and should return $10 million to the U.S. government. However, the judge overturned the verdict and dismissed the case, finding that the plainees (ph) failed to prove the false claims were actually submitted to the government. The department has filed a brief supporting the whistleblowers' position on appeal to the Fourth Circuit.
Why did the department decline to intervene in district court, yet continue to support to support the appellate litigation?
And lastly, is the department concerned that failing to intervene at an earlier time may lead to decisions that are detrimental to the False Claims Act?
GONZALES: It is a pending case, Senator, so I'm limited about what I can say.
But going back to a response to an earlier question, the fact that we don't intervene at the initial stages -- I mean, that we don't follow the case and we do have the opportunity, like we see in this case, of filing an amicus in the Fourth Circuit in order to protect the interests of the United States.
And so clearly, when we make a decision not to intervene, that doesn't mean that the interests of the United States are going to be jeopardized downstream. We do have the opportunity to file something to ensure that the interests of the United States are protected.
As to the individual decision, as to why we didn't get involved in the case in the first place, I don't have an answer to you but I'd be happy to go back and look at it.
GONZALES: If there's something we could provide to you, I'd be happy to do so.
GRASSLEY: I would like to have you provide that in writing.
Thank you, Mr. Chairman.
LEAHY: Thank you very much.
The attorney general has asked if we might take a brief break, and I should have asked for that before. But, yes, we'll stand in recess briefly.
GONZALES: Thank you, Mr. Chairman.
PROTESTER: Fire him. (OFF-MIKE)
LEAHY: You know, we're going to have quiet. We're going to have quiet in this committee room.
PROTESTER: (OFF-MIKE)
LEAHY: We're also going to have people stop blocking -- stop blocking others who are here. And, in one instance, I have been told of a person who was here who was harassed because somebody else wanted her seat. There will be none of that, or I will have the police remove those doing it.
Just want to make it clear.
(RECESS)
LEAHY: I have been advised that the vote originally scheduled on the Senate floor will be somewhat later; probably in about an hour there'll be a couple votes. I'm hoping we can finish the first round before then.
And, Senator Whitehouse, you're now recognized.
WHITEHOUSE: Thank you, Mr. Chairman.
Mr. Gonzales, just before our little break, you indicated, in describing your reason for visiting the stricken attorney general in his hospital room was to alert him to the change in the Department of Justice view of the program at issue.
And you testified that Attorney General Ashcroft -- and these are the words that I wrote down -- quote, "Authorized these activities for over two years."
Is it your testimony, under oath, that Attorney General Ashcroft was read into and authorized the program at issue for two years prior to your visit to him in that hospital?
GONZALES: I want to be very careful here, because it's fairly complicated.
What I can say is I'm referring to intelligence activities that existed for a period of over two years and what we were asking the Department of Justice to do was -- which they had approved and what we...
WHITEHOUSE: "They had approved" I guess is the point that I'm getting at.
GONZALES: General Ashcroft, yes.
WHITEHOUSE: You're saying that Attorney General Ashcroft...
GONZALES: Yes.
WHITEHOUSE: ... had authorized this program for over two years prior to that day...
GONZALES: General Ashcroft had authorized these very important intelligence activities for a period of two years. We had gone -- we had gone to the deputy attorney general and asked him to reauthorize these same activities.
But there are facts here, and I want to be fair to everyone involved. They're complicated. And we have had discussions in the Intel Committees about this issue. I'll try to be as forthcoming as we can.
Let me just say I believe everyone acted in good faith here. All the lawyers worked as hard as they could to try to find a way forward, the right solution.
But, yes. I mean, the view was is that these activities had been authorized.
GONZALES: We informed...
WHITEHOUSE: By Attorney General Ashcroft?
GONZALES: By Attorney General Ashcroft. But there are additional facts here that -- I want to be fair. And it's complicated, but...
WHITEHOUSE: I'm just trying to nail that one fact down. I'm not trying to...
GONZALES: Well, I'm not sure that I...
(CROSSTALK)
GONZALES: I'm not sure I can give you complete comfort -- I'm not sure I want to give you complete comfort on that point, out of fairness to others involved in what happened here.
I want to be very fair to them. But what I'm -- what we are talking about...
WHITEHOUSE: (inaudible) different question.
LEAHY: Why not just be fair to the truth?
Just be fair to the truth and answer the question.
(APPLAUSE)
WHITEHOUSE: Was Attorney General Ashcroft read into, and did he approve the program at issue from its inception?
GONZALES: General Ashcroft was read into these activities, and did approve these activities...
WHITEHOUSE: Beginning when?
GONZALES: From the very beginning. I believe, from the very beginning.
WHITEHOUSE: All right.
GONZALES: But, well...
WHITEHOUSE: I'm sorry? My question...
(CROSSTALK)
GONZALES: Again, it's very complicated. And I want to be fair to General Ashcroft and others involved in this. And it's hard to describe this in this open setting. We've tried to be -- we've tried to discuss -- we have discussed in the Intel Committees, in terms of exactly what happened here.
But I can't get into the fine details, quite frankly, because I want to be fair to General Ashcroft.
WHITEHOUSE: And I think it's also important that people know whether or not a program was run with or without the approval of the Department of Justice but without the knowledge and approval of the attorney general of the United States, if that was ever the case.
GONZALES: We believe we had the approval of the attorney general of the United States for a period of two years.
WHITEHOUSE: For a period of two years?
GONZALES: That is what...
(CROSSTALK)
WHITEHOUSE: Also from the inception of the program?
GONZALES: From the very -- from the inception, we believed that we had the approval of the attorney general of the United States for these activities, these particular activities.
WHITEHOUSE: Would that be reflected in any document?
GONZALES: Yes, it would.
WHITEHOUSE: We'll pursue the document later.
When you went into the attorney general's room at the hospital that night, what document did you have in your hand?
GONZALES: I had in my possession a document to reauthorize the program.
WHITEHOUSE: Where is it now?
GONZALES: I'm assuming the document is at the White House. It was a White House document.
WHITEHOUSE: And it would be covered by presidential records laws?
GONZALES: It is a White House document.
WHITEHOUSE: Director Mueller was involved that evening. Do you consider Director Mueller to be reasonable, sober and level-headed?
GONZALES: Yes.
WHITEHOUSE: He's a former deputy attorney general, former United States attorney?
GONZALES: Yes.
WHITEHOUSE: Why would he tell FBI agents not to allow you and Andy Card to throw the acting attorney general out of the attorney general's hospital room?
GONZALES: I don't know that he did that, and I can't respond to your question. I'm not Director Mueller.
WHITEHOUSE: But we have direct testimony that he did. You can't -- is there any series of events that led up to this that would so provoke him...
GONZALES: I wasn't aware of that comment until I read Mr. Comey's testimony.
WHITEHOUSE: Is there some background to this that would help elaborate why he would have that feeling?
I mean, when the FBI director considers you so nefarious that FBI agents had to be ordered not to leave you alone with the stricken attorney general, that's a fairly serious challenge.
GONZALES: Well, again, I'm not sure that the director knew at the time of the meeting and a conversation that we had had with the congressional leaders.
We were -- again, we were there following an emergency meeting in the White House Situation Room with the gang of eight, who said, "Despite the recommendation of the attorney general, go forward with very important intelligence activities for now and we'll see about moving forward some legislation." And that was important information that led us to go to the hospital room.
The director, I'm quite confident, did not have that information when he made those statements, if he made those statements.
WHITEHOUSE: Is it awkward to supervise the FBI after this piece of history has come out, that the director didn't feel comfortable leaving you alone with the attorney general?
GONZALES: I can't speak for the director's feelings about me. But I still have a great deal of confidence and admiration and respect for Bob Mueller.
WHITEHOUSE: Separate topic: Will you allow the White House to direct United States attorneys how to conduct litigation to which the White House is itself a party?
GONZALES: Would I...
WHITEHOUSE: Would you allow the White House to direct United States attorneys how to conduct litigation to which the White House is a party?
GONZALES: I don't believe so.
Again, you're asking me a hypothetical. But my reaction to that is no.
WHITEHOUSE: Is there any matter -- any matter that the Department of Justice is involved in in which you would allow the Department of Justice to agree to the investigative terms set by the White House for this committee: no transcript, closed-door interviews, one round of questions only and then nevermore?
WHITEHOUSE: Is there any matter in the department's jurisdiction where you would allow your lawyers to subject themselves to that kind of a restriction in doing their duties?
GONZALES: You know I can't answer that question.
I mean, I don't know. There may be a matter, but I don't know. I don't know.
WHITEHOUSE: Can you think of one...
GONZALES: Again, I mean, I could probably think of one, so...
WHITEHOUSE: ... where you would allow your lawyers to be subject to those restrictions?
GONZALES: Senator, again, you're asking me is it possible? I'd say virtually anything is possible. But, obviously, that's something we'd have to look at.
WHITEHOUSE: My time has expired, Mr. Chairman.
LEAHY: Thank you very much, Senator Whitehouse.
Senator Sessions?
SESSIONS: Thank you, Mr. Chairman.
Mr. Attorney General, on the question Senator Feinstein asked you about the voting rights changes, some of those are probably changes that need to be done, but they're very -- they're, I would say, controversial, within the group of people that practice in that area of the law.
I'm curious as to your statement saying that you were not aware of that.
As to those policies, who signs off on that and who approved a policy that significantly, at least in certain specific areas, alters the policies of the Department of Justice if you don't?
GONZALES: It would be the deputy attorney general, who is the chief operating officer of the department. And so in some -- certain cases, it would be certain policies that would be adopted by the deputy attorney generals. In other cases, depending on what we're talking about, it would be something that I would approve of.
SESSIONS: Is that a delegated in -- the policy for the voting rights section of the Department of Justice, something you've delegated to the deputy attorney general?
GONZALES: I can't answer that question, Senator, but I would be happy to give you that answer.
SESSIONS: Well, I think it's something the attorney general should do.
SESSIONS: I think that's a significant policy. There were several responsibilities I think you have. And to set major policy decisions ultimately should be your responsibility.
GONZALES: And I believe that that would be my responsibility, but I just want to confirm that with you.
SESSIONS: Mr. Attorney General, with regard to some of the immigration questions that we're facing, there's so many matters that are within the jurisdiction of the Department of Justice. The effectiveness of our immigration enforcement policies depend on good policies within the Department of Justice.
And I was recently reminded of a serious problem we have with regard to aliens who have been convicted of crimes in the United States. Mr. Harley Lappin, director of the Federal Bureau of Prisons, recently told us and this committee within the last year, I believe, that 27 percent of the federal prison population is foreign-born.
We have laws that I think authorize the removal from our country of persons who are convicted of crimes immediately upon the completion of their sentence, as I recall the statutes.
I would note the article by Michelle Malkin (ph) quoting some of the examples we've had here, where Mr. Adhahn was convicted of -- relating to his involvement in the kidnapping and murder of 12-year- old Zina Linnik in Tacoma, Washington, on July 4th.
SESSIONS: He had been convicted, apparently, of incest in 1990 and had sexually assaulted his 16-year-old relative, got that pleaded down to second-degree rape.
Two years later, he was convicted of intimidation with a dangerous weapon, and the law calls for -- says that anyone convicted of a weapons offense is deportable. But he wasn't deported, and that's how, apparently, this murder occurred.
Another instance was Mwenda Murithi, arrested 27 times without deportation before being arrested in the shooting death of a 13-year- old innocent bystander, Schanna Gayden, last month in Illinois.
So I guess I'm asking you about this whole policy, whether or not you have taken a lead to see that it's carried out. Do you believe it should be systematically and regularly carried out? And if there are any statutory weaknesses, do you have any suggestions about how they should be improved?
GONZALES: I think it should be carried out.
I am aware that probably the level of cooperation that exists between the department and DHS on this issue is not as good as it should be, Senator.
What I would like to do is have the opportunity -- maybe have a conversation with Secretary Chertoff -- to see whether or not we can do something to improve the situation.
Legislation may not be necessary, but, obviously, it may turn out to be the case that we may need to have some help from Congress.
SESSIONS: As I understand, the Department of Homeland Security I.G. estimated last year that half of the 650,000 foreign-born inmates in prisons and jails won't be removed because they say that, quote, "Does not have the resources to identify, detain and remove them."
Is that true?
GONZALES: I've heard that as a possible complaint or challenge. That very well may be the case.
Again, what I'd like to do is have the opportunity to sit down with Secretary Chertoff. I have not spoken with the secretary about this particular issue. I would be happy to do so.
And if there is something that would be helpful from the Congress, I'd like to have the opportunity to talk to you about.
SESSIONS: Well, I hope that you would, because I think that's a major issue here. People are concerned when we pass laws in Congress and then our law enforcement officials don't enforce them and don't execute them and leaving criminals in the United States in large numbers.
Now, I understand there are a number of prisons that do not participate in the institutional removal program. Do you think it would be beneficial to expand this program to all federal prisons?
GONZALES: I can see very good arguments why that would make sense. And I plan on speaking with Harley Lappin, the director, and see what the status is and the challenges that exist with respect to implementing in all the prisons.
SESSIONS: I understand there's a pilot program ongoing, I believe maybe in El Paso, in which persons who enter the country illegally, in violation of our laws, are being prosecuted before they're deported. And as a result there's been a significant reduction in the number of people attempting to enter that area of the border.
Is that true? And what are your plans to consider expanding that?
GONZALES: It is true.
It requires the cooperation of the judge, quite frankly. And so I've had -- we've had discussions with judges along the border to see whether or not they would be agreeable to such a process.
And so we'd like to expand it. There are challenges. And, again, it does require the cooperation of the judge.
SESSIONS: Well, I would hope that the judges would cooperate.
I mean, they don't get to decide who gets charged. They don't get to make the deciding function. Their responsibility is to enforce -- to give a fair trial to whoever is brought before them by the prosecutor. Isn't that right?
GONZALES: Yes, but they will insist on certain processes, that it follow certain timetables. And so unless a judge is willing to agree to an expedited process in the manner that we're seeing with respect to this particular judge, it can present some challenges for us.
SESSIONS: Well, I understand it's worked well. I think it's something that ought to be replicated. And I would expect that federal judges, if they understand the national interest in seeing that laws get enforced, would cooperate.
I hope that you will pursue that. Will you pursue that?
GONZALES: We'll certainly do that, yes.
SESSIONS: I wrote you a letter in April. My time is out, I'll just