[Senate Hearing 109-840]
[From the U.S. Government Publishing Office]
S. Hrg. 109-840
DEPARTMENT OF JUSTICE OVERSIGHT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
----------
JULY 18, 2006
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Serial No. J-109-99
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Printed for the use of the Committee on the Judiciary
DEPARTMENT OF JUSTICE OVERSIGHT
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S. Hrg. 109-840
DEPARTMENT OF JUSTICE OVERSIGHT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 18, 2006
__________
Serial No. J-109-99
__________
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 343
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 346
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
prepared statement........................................... 349
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESS
Gonzales, Alberto R., Attorney General, Department of Justice,
Washington, D.C................................................ 7
QUESTIONS AND ANSWERS
Responses of Alberto R. Gonzales to questions submitted by
Senators Specter, Hatch, Grassley, DeWine, Sessions, Leahy,
Kennedy, Biden, Feingold, and Schumer.......................... 72
SUBMISSION FOR THE RECORD
Boston Globe, Charles Savage, article............................ 263
Congressional Research Service, Morton Rosenberg, Specialist in
American Public Law, American Law Division, Washington, D.C.,
memorandum..................................................... 266
Gonzales, Alberto R., Attorney General, Department of Justice,
Washington, D.C., prepared statement and attachments........... 294
DEPARTMENT OF JUSTICE OVERSIGHT
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TUESDAY, JULY 18, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 9:35 a.m., in
room SH-219, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Hatch, Grassley, Kyl, DeWine, Sessions,
Cornyn, Leahy, Kennedy, Kohl, Feinstein, Feingold, Schumer, and
Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. The Senate Judiciary Committee will now
proceed with this oversight hearing on the Department of
Justice. We welcome the Attorney General of the United States
to this hearing.
After consultation with the distinguished Ranking Member,
it has been decided to have 10-minute rounds because of the
many issues which we are reviewing here today.
We will be taking a close look at what the administration
intends to do following the historic decision in Hamdan v.
Rumsfeld; what kinds of proceedings will be in order for those
accused of war crimes; what the proceedings will be for those
who are detained as enemy combatants with respect to periodic
review; and what is the situation with respect to rendition,
which is the next cutting-edge question in our handling of the
detainees in the war against terror.
We will be asking the Attorney General this morning to
elaborate on his comments on ABC Television on May 21st that
the Department of Justice is considering the prosecution of
newspapers and journalists for the disclosure of classified
information.
We will want to know his interpretation of what statute
would authorize that. We will be asking the Attorney General
for the specifics on what happened with respect to the
Administration's efforts to persuade the newspapers not to
publish the program relating to bank records. We will be asking
the Attorney General about the situation with respect to
telephone company records.
So far, the Administration has been unwilling to confirm or
deny the existence of that program, and I will be pursuing the
conversations which I have already had with Attorney General
Gonzales on the question of what court clearance there was on
such a program, with the Attorney General having said that the
only program which does not have judicial authorization is the
electronic surveillance program.
So it raises the inference that if there is an
administration program to get telephone records, there has been
judicial clearance. And that is a question, I think, of
importance, and from a practical point of view, it has been so
widely publicized there seems to be hardly any point in not
discussing it if, in fact, it does exist.
We will be discussing with the Attorney General the issue
about the electronic surveillance program and what factors are
operative to determine whether or not the President has Article
II powers. There is a great deal of discussion about the
Foreign Intelligence Surveillance Act, but the administration
has, in effect, declared that Act inoperative.
A lot of talk about the Act's exclusive authority to
authorize wiretaps, but in the context where the administration
claims that there are Article II powers which supersede the
statute, those provisions for an exclusive remedy have, in
effect, been discarded.
There is no doubt that the President does not have a blank
check. We know that from the Supreme Court. But the Supreme
Court has never ruled on the question as to whether the
President has inherent power to go after materials on foreign
agents like terrorists without a warrant. Three Federal
appellate courts have ruled that the President does have such
inherent power, and that is the essential claim which the
administration is now making.
There have been strenuous efforts to find some way to
submit the electronic surveillance program to judicial review,
and there has been a compromise reached, subject to
congressional approval, where the President has stated that he
will submit his program to the Foreign Intelligence
Surveillance Court if the negotiated legislation is enacted by
Congress, with the President getting certain flexibility: the 3
day period for emergency warrants will be extended to 7 days
and the Attorney General would have the authority to delegate
the application for emergency warrants.
Where both ends of the call are overseas but have a
terminal in the United States, the statute would not apply. If
there is a better way to obtain judicial review, I for one
would be anxious to hear about it.
I can say that the negotiations were very, very difficult,
really fierce, and it was a major breakthrough when the
President did agree to send the matter to the Foreign
Intelligence Surveillance Court, but it raises a lot of
questions which will have to be addressed and have to be
answered.
We will also be reviewing with the Attorney General the
legal foundation for the President's assertion of authority to
issue signing statements in which he declares which parts of
legislation he will enforce and which parts he will disregard.
The Constitution is explicit in providing for a
Presidential veto if the President disagrees with a piece of
legislation. We have seen the practice evolve under this
President with greater breadth and greater intensity than with
any President in the past.
We will also be inquiring of the Attorney General the
administration's position on the Lugar shield law, whether it
is the administration's position that it is appropriate to jail
reporters, like Judith Miller, in cases which do not involve
national security. That investigation started off as a national
security matter.
When the national security aspect was over and it was an
investigation in to only obstruction of justice or perjury,
they proceeded, nonetheless, with the jailing. We will want to
inquire of the Attorney General the administration's position
on that issue.
We have another very important line of inquiry on why the
Office of Professional Responsibility was not permitted to
carry forward the investigation which it began as to the
propriety of the legal advice given by the Department of
Justice approving the electronic surveillance program.
Forty Members of the House of Representatives asked for
that investigation. It was underway, and then it was stymied
when there were repeated requests by the Office of Professional
Responsibility for clearance, and they were all denied.
The Office of Professional Responsibility noted that the
Criminal Division was given clearance when it was looking at
potential prosecutions. The Civil Division had many lawyers
given clearance when it was defending civil cases.
But for some reason, OPR was not given clearance when they
were charged with the responsibility of conducting on
investigation, which they began to see if professional
standards were met when the Department of Justice cleared the
electronic surveillance program.
With so many other lawyers in the Department of Justice
being granted clearance, it raises the obvious question of
whether there was some interest on the part of the
administration in not having that opinion given.
We will also be asking the Attorney General for the
administration's position on House Resolution 890 and Senate
Resolution 524, which, in effect, condemn the newspapers for
disclosing classified information.
This is a long litany, but there is a great deal to be
covered on what the Department of Justice has done.
Let me say in conclusion, Mr. Attorney General, that the
Committee is very disturbed by your failure to comply with our
rules in submitting your statement on time. It was not
submitted until late yesterday afternoon, early evening.
There has not been an opportunity to review it, and serious
consideration has been given to not permitting you to make an
opening statement because of your failure to comply with the
rules. And let me say if there is a repetition, we will do just
that.
But out of respect for your office and for you, we will
permit you to give an opening statement, but we think that we
are entitled to some respect reciprocally.
Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. And I concur with
the Chairman. It is extremely difficult. It is so rare that we
have the Attorney General here, certainly less appearances than
most of his predecessors of either party. When he does come--
and at times actually several weeks later than he had first
offered to come--we should have the statement.
I will put my full statement in the record, but a couple of
points I would like to make so we can get on with the hearing.
Three weeks ago, in Hamdan, the Supreme Court ruled that
the President is bound to comply with the rule of law. In
effect, they said he cannot continue to break the law. Three
years ago, in Hamdi, the Supreme Court held that war is not a
blank check for the President when it comes to the rights of
the Nation's citizens and said even the President has follow
the law. These are two remarkable statements coming from the
Nation's highest Court.
Now, they are not remarkable in one area--for the
propositions they state. The rule of law was the basic premise
on which this Republic was founded 230 years ago. They are
remarkable instead for the fact that this administration's
unprecedented record of complete disregard for the rule of law,
coupled with its arrogance and secrecy, coupled with its
continued breaking of the law by the President, made it
necessary to say these things.
In Hamdi, the Court rejected the administration's
unprecedented claim--unprecedented claim--that an American
citizen could be stripped of the constitutional right to due
process simply on the say-so of the President, that the
President can say, ``Well, I know that is the law, but you do
not have to follow it in this case or that case.'' The Court
held instead what I suspect every first-year constitutional law
student would say they would hold, that Mr. Hamdi was entitled
to a fair hearing on the legality of his detention.
In Rasul, the Court rejected the legal premise upon which
the Guantanamo Detention Center was built. The Bush-Cheney
administration chose to hold prisoners captured in Afghanistan
on the island of Cuba as a means of avoiding the jurisdiction
of the United States court. And the Court held that the writ of
habeas corpus cannot be suspended by housing prisoners
offshore.
And so we come up to last month's setback in Hamdan--a
setback to the administration, a victory for the rights of
Americans. The path to the latest setback to the administration
begins with a memorandum written by today's witness.
In January 2002, then-White House Counsel Gonzales advised
President Bush that he need not and should not comply with the
Geneva Conventions, even though they are the rule--they have
become the rule of law because we accepted them.
And that was contrary to the advice of Secretary of State
Colin Powell, a man who had served in the military, had served
in combat and knew what the Geneva Convention was about. But
the President chose to take Mr. Gonzales' advice rather than
listen to General Powell.
In Hamdan, the Court held that the President is bound by
the Geneva Conventions and that the President's military
commissions are illegal. So basically the administration is
batting 0 for 3 in the Supreme Court--and, interestingly
enough, a Supreme Court where seven of the nine members were
appointed by Republicans.
But the result of this series of blunders is not merely a
strikeout. With respect to Mr. Hamdi, after nearly 3 years of
incarceration during which the administration insisted American
security would be seriously prejudiced by even affording him a
lawyer, they said, ``Oh, all right, we will just turn him free.
We will turn him free in the Middle East.''
If he is that much of a threat, we should have tried him.
Four years after the administration began transporting
prisoners to Guantanamo, that detention center has become an
embarrassment, an international embarrassment, which everyone
from Tony Blair to Colin Powell said it should be closed
immediately.
And more than 4 years after initiating a military
commissions program, which Attorney General Gonzales told us
was designed to ensure swift justice close to the battlefield,
the administration, out of those hundreds and hundreds of
people, has only charged ten, they have convicted zero, and
they are now back to square one. Some swift justice.
Perhaps the only lesson that this administration learns
from its mistakes is not to get caught next time. The
administration is allergic to accountability, whether in the
form of judicial review or in the form of Congressional
oversight. And the attempt to evade habeas review by holding
detainees at Guantanamo is just one of a series of measures the
administration has taken to shield its actions from the courts.
The Hamdan case addresses another. In one of those hundreds
upon hundreds of notorious signing statements issued after
Congress passed the Detainee Treatment Act of 2005, the
President asserted that the Act retroactively stripped the
courts of jurisdiction over pending cases--when, of course, it
did nothing of that nature at all.
The Court rejected his claim and instead followed the plain
language of the Act, informed by the legislative history that
was actually available to members before they voted on the Act.
The case of Jose Padilla presents another example. Three
and a half years after detaining Padilla as an unlawful
combatant, but on the eve of another Supreme Court review of
whether what they were doing was legal or not, the
administration moved to have his case dismissed by transferring
him from military to civilian custody. In other words, if you
are going to tell us to obey the law in one place, we will move
him to a different place.
In a unanimous decision, the very conservative Fourth
Circuit rejected the administration's motion. Judge Luttig
pointedly noted that the motion appeared to be an attempt to
evade Supreme Court review and, thus, they have damaged the
Government's credibility.
Meanwhile, the Chairman has mentioned the secret domestic
wiretapping program. The administration has for nearly 5 years
evaded even the limited judicial review afforded by the Foreign
Intelligence Surveillance Act. In fact, in just a few months
since the Republican Congress first learned of NSA's
warrantless wiretapping program, the Justice Department has
asserted the state secrets privilege in at least 19 different
court cases challenging that program.
And last week, we learned in closed-door negotiations with
Senator Specter that the administration made a conditional
offer to submit one of its domestic spying programs to secret
review by a single FISA judge.
As I understand the administration's offer, Congress must
first agree to completely gut FISA and deprive American
citizens of the right to challenge domestic wiretapping in open
court. It would change nothing more than the ratification of
the administration's actions after the fact, even if they had
acted illegally.
So when the President tells this Committee that he is
agreeable to judicial review of that program and his other
actions, I hope you understand why some of us are a bit wary. I
agree with President Reagan, who said, ``Trust, but verify.''
This administration asks an enormous amount of trust from us,
but they do not give much in the way of verification.
We in Congress have a responsibility not just to punt to
the courts, but do our job of holding the administration
accountable. Congressional oversight is the ultimate democratic
antidote to executive overreaching. Oversight makes Government
more accountable and more effective. So it is time for Congress
to fulfill its constitutional duty by acting as a real check on
the executive branch.
A Congress that defers to the President and ratifies his
continuing illegal actions is no better than a President who
seeks to immunize or ignore illegal conduct of those under his
command.
Congress needs to act. Congress needs to be an independent
branch of the Government. Congress has to stop acting as a
rubber stamp for this President and start its real oversight.
Mr. Chairman, I will put my full statement in the record.
Chairman Specter. Without objection, the balance of your
statement will be made a part of the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Senator Hatch has asked that his
statement be made part of the record, which will be done.
Just a word or two about scheduling and timing. We are
going to have 10-minute rounds, as I announced earlier, so that
Senators will have enough time to get into the subject matter
in some detail. We are going to be voting on the stem cell
bills in the range of 3:30 to 3:45.
It would be my hope that we could limit our lunch hour to
an hour. This is a day where we have caucuses, so it poses some
difficulty. But that is what I would like to do so we can have
plenty of time to ask the questions and give the Attorney
General an opportunity to respond.
Mr. Attorney General, would you rise to take the oath,
please? Do you solemnly swear that the testimony you will give
before the Judiciary Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Attorney General Gonzales. I do.
Chairman Specter. Attorney General Gonzales has held the
position since the beginning of President Bush's second term.
We had the confirmation hearings on January 6th, and the
Attorney General was confirmed not long thereafter. He comes to
this important office with a very distinguished background. He
is a Harvard Law School graduate. He received his bachelor's
degree from Rice University.
Before becoming Attorney General, he served President Bush
for 4 years as White House Counsel and had extensive contacts
with this Committee. He had been a Justice on the Texas Supreme
Court. He was Texas Secretary of State, served as general
counsel to Governor Bush, partner of a major, prestigious firm,
Vincent and Elkins, and served in the United States Air Force.
We welcome you here, Mr. Attorney General, and we are
setting the clock at 10 minutes. If you can stay within that
parameter, it would be appreciated. You may proceed.
STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE
UNITED STATES, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Attorney General Gonzales. Good morning. Chairman Specter
and Ranking Member Leahy, thank you for having me here today.
The Department of Justice's first priority remains
protecting America from terrorist attacks. Immediately after 9/
11, the President asked us to do everything we could within the
law to protect the American people. Those were intense,
purposeful times, as we all remember. We were anxious about the
possibility of more attacks, and we were committed to
preventing another deadly attack.
In Congress, you acted quickly to pass the PATRIOT Act. In
the executive branch, we increased our efforts to investigate
and prosecute terrorists before they could kill again and bring
to justice those who were responsible for 9/11.
When the war in Afghanistan began, we asked, How can
terrorists and unlawful combatants be tried for their war
crimes? And that is how the military commission process was
born in this current conflict.
Since the Revolutionary War, the United States has employed
military commissions in times of armed conflict to bring
unlawful combatants to justice. The process of convening
military commissions traditionally has been left to the
President. Thus, following the precedent established by prior
administrations, the President established fair and thoughtful
commission procedures.
Of course, the Supreme Court has now spoken. Under the
Court's reasoning in the Hamdan case, the most obvious and
feasible way to ensure that military commissions remain
available as a tool to protect America and bring terrorists to
justice is for Congress to establish the commissions'
procedures. And so we now look forward to working with Congress
on this issue.
As we work together to establish a statutory basis and new
procedures for military commissions, I would like to offer a
few specific concepts for you to consider.
First, the military commission procedures devised by the
Department of Defense, as well as the Uniform Code of Military
Justice, are useful resources to consider. DOD's current
procedures currently address in a balanced fashion specific
concerns.
For example, no one can expect members of our military to
read Miranda warnings to terrorists captured on the battlefield
or provide terrorists on the battlefield immediate access to
counsel or maintain a strict chain of custody for evidence. Nor
should terrorists' trials compromise sources and methods for
gathering intelligence or prohibit the admission of probative
hearsay evidence.
The current DOD military commissions take into account
these situational difficulties and, thus, provide a useful
basis for Congress's consideration of modified procedures.
The procedures Congress adopts must be fair, but also must
reflect that we are still at war and that our men and women on
the front lines operate in a war zone, not in a controlled
environment of an FBI forensics lab.
Second, we must eliminate the hundreds of lawsuits from
Guantanamo detainees that are clogging our court system. In
many instances, military commissions, not our civilian courts,
are the appropriate place to try terrorists.
In the Detainee Treatment Act, Congress recognized the need
for balance in this area. It afforded detainees the opportunity
to appeal military commission decisions and Combatant Status
Review Tribunal rulings to the D.C. Circuit, as well as to the
Supreme Court of the United States--something never before
provided to enemy combatants in a time of war.
At the same time, the DTA precluded Guantanamo detainees
from undertaking other litigation, including class actions,
tort suits, and conditions of confinement challenges. The DTA
struck an appropriate balance. I ask Congress to confirm that
it intended these provisions for limited and appropriate
judicial review to apply to all of the existing Guantanamo
detainee lawsuits.
Third, the application of Common Article 3 of the Geneva
Conventions must be defined. In Hamdan, the Supreme Court held
that because a war with al Qaeda is not of an international
character, Common Article 3 applies to our conflict with al
Qaeda, notwithstanding the fact that al Qaeda is not a
signatory to Geneva and does not abide by its strictures.
Because Common Article 3 applies to our conflict with al
Qaeda, it is imperative that we as a Nation are clear about
exactly what that requires of our men and women on the front
lines. After all, a proven violation of Common Article 3 could
serve as the basis for potential prosecution under the Federal
War Crimes Act.
Article 3 uses terms like ``outrages upon personal
dignity'' that are susceptible to different interpretations.
Making matters more unpredictable still, the Supreme Court has
stated in other contexts that American courts, when
interpreting a treaty, should give consideration to the way
foreign courts have interpreted that treaty. And that degree of
uncertainty is unfair to our men and women on the front lines,
and I encourage you to clarify the law in this area.
Now, let me say a few words on another subject related to
the war on terror. Recently, the media has published details of
classified intelligence programs that are vital to our National
security. It is wrong that someone would reveal intelligence
activities that are helping to prevent another terrorist attack
on America. American lives are potentially endangered by such
conduct.
The programs that have been disclosed are vital. Imagine,
for example, what a program like the President's terrorist
surveillance program might have accomplished before 9/11.
Terrorists were clustered throughout the United States,
preparing their assault, communicating with their superiors
abroad.
What might our world look like today if we had intercepted
a communication revealing their plans or tracked the flow of
money among the plotters? General Hayden has testified that the
terrorist surveillance program has helped us detect and prevent
terror plots in the United States and abroad. And Treasury
Under Secretary Stuart Levey has testified that the terrorist
finance tracking program has helped to identify, track, and
pursue suspected foreign terrorists, including members of al
Qaeda, Hamas, and Hezbollah.
Mr. Chairman, at my last appearance before the Committee,
you indicated that you wanted the terrorist surveillance
program briefed to every member of the Intelligence Committees,
and you expressed your desire that the program be submitted to
the Foreign Intelligence Surveillance Court.
All members of the House and Senate Intelligence Committees
have now been briefed, and your new draft legislation provides
a way for the program to be submitted to the FISA Court.
I thank you for your work on this matter, and I also thank
Senator DeWine for offering legislation on the program. I urge
this Committee to report favorably both the Specter and DeWine
bills so that they can be considered by the Intelligence
Committee.
Finally, I urge the Congress to confirm Ken Wainstein to
head the Department's new National Security Division, Alice
Fisher to head the Criminal Division, and Steve Bradbury to
head the Office of Legal Counsel. The National Security
Division, something called for by the WMD Commission, cannot be
established until Mr. Wainstein is confirmed.
Congress created the National Security Division in the
PATRIOT Act reauthorization bill, but the Senate's delay in
confirming Mr. Wainstein is preventing the Department from
doing everything that we can to protect the American people
from another terrorist attack. Similarly, we need Ms. Fisher
confirmed.
To have the Criminal Division, which is devoted to
disrupting terrorism, fighting corporate and public corruption,
and fighting child exploitation, operate without a confirmed
leader is unacceptable. She is doing an outstanding job, and
she deserves swift confirmation.
I thank the Committee for reporting favorably the Wainstein
and Fisher nominations, and I ask for your help in obtaining
the full Senate's confirmation of these stellar individuals.
Finally, I respectfully request that the Committee move
promptly to report favorably Steve Bradbury's nomination to be
Assistant Attorney General for the Office of Legal Counsel. Mr.
Bradbury's work is critical, and I know that the executive
branch and the Congress have benefited from his extraordinary
talents.
Mr. Chairman, today is September 12th for the people of the
Department of Justice, and tomorrow will be September 12th
again. We are fighting every single day for the security and
safety of Americans. We appreciate your support and the support
of this Committee. Thank you.
Chairman Specter. Thank you very much, Attorney General
Gonzales.
I begin with the issue on the Office of Professional
Responsibility, OPR, being compelled to discontinue its
investigation into the propriety of the legal advice given by
the Department of Justice approving the electronic surveillance
program. Note that I wrote to you about this subject on May the
10th and did not get an answer until late yesterday.
Without objection, your reply and all the attachments will
be made a part of the record.
It is very difficult to understand why OPR was not given
clearance so that they could conduct their investigation as to
the propriety of the Department of Justice action in approving
the electronic surveillance program in a context in which many
lawyers in the DOJ Criminal Division and Civil Division were
given clearance.
I think that in part this is a mark of the difficulty in
getting the administration to submit the surveillance program
to the FISA Court for judicial review. That legislation, which
was agreed upon last week subject to approval by the Congress,
is going to have quite a route to follow.
And it has been pressed by me because of the absence of any
other way to get judicial review. And the provisions of the
Foreign Intelligence Surveillance Act as the exclusive remedy
have been ignored because of the assertion of Article II power.
We do not know whether that is correct until there is a balance
made between the nature of the threat and the incursion into
civil liberties.
Now, when you had the first line of review, Mr. Attorney
General, by OPR, why was OPR not given clearance as so many
other lawyers in the Department of Justice were given
clearance?
Attorney General Gonzales. Mr. Chairman, you and I had
lunch several weeks ago, and we had a discussion about this,
and during the luncheon I did inform you that the terrorist
survival program is a highly classified program. It is a very
important program for the national security of this country
and--
Chairman Specter. Highly classified, very important. Many
other lawyers in the Department of Justice had clearance. Why
not OPR?
Attorney General Gonzales. And the President of the United
States makes decisions about who is ultimately given access--
Chairman Specter. Did the President make the decision not
to clear OPR?
Attorney General Gonzales. As with all decisions that are
non-operational in terms of who has access to the program, the
President of the United States makes the decisions, because
this is such an important program--
Chairman Specter. I want to move on to another subject. The
President makes the decision. That is that.
I want to take up the question of rendition now that we
have had the Supreme Court of the United States deal with the
issues of trials for people charged with war crimes and we are
pursuing the issue of detention of enemy combatants. I want to
ask you about a specific case which I wrote to you about to be
prepared to respond today.
Where the Department of Justice was involved, ordinarily
rendition might be said to be a matter for the CIA and under
the Intelligence Committee, but the FBI participated in the
interrogation of a man named Maher Arar, a Canadian engineer of
Syrian descent who was arrested in JFK on September 26, 2002,
questioned by the FBI and local police, then was flown to Rome,
then to Amman, Jordan, driven across the border to Syria, where
he alleges he was repeatedly tortured and forced to sign
confessions stating that he attended a training camp in
Afghanistan.
Is the Department of Justice involved in the issue of
rendition, Mr. Attorney General?
Attorney General Gonzales. Mr. Chairman, with respect to
this particular case, let me just say that this is a matter
that is currently in litigation, so I am going to be limited
about what I can say. This is not a case regarding rendition.
This is a case regarding deportation. This particular
individual--
Chairman Specter. Deportation, but also rendition.
Attorney General Gonzales. He was deported according to our
immigration laws. This is what happened --
Chairman Specter. Was he then not ultimately rendered to
Syria?
Attorney General Gonzales. He was returned. He was a dual
citizen of Canada and Syria, and he did request to be returned
to Canada. But exercising the discretion under the law, he was
returned--
Chairman Specter. He did not ask to go to Syria even though
he had dual citizenship there.
Attorney General Gonzales. He did not ask to go to Syria.
Chairman Specter. Nobody would ask to go to Syria where
they might be tortured.
Attorney General Gonzales. But, Senator, as we do in every
case where we deport or render, we receive assurances and get
assurances that someone will not be tortured. We do have
obligations to seek those kind of assurances.
Chairman Specter. Attorney General, let me interrupt you
because there is so much to cover. Perhaps we will go into
closed session on this because you say it is a matter in
litigation, and our oversight authority covers matters which
are in litigation.
But let me move on to the television interview you had on
May 21st where you said the Department of Justice was
considering the prosecution of journalists and newspapers, in
the context of the New York Times disclosure on December 16th
of the electronic surveillance program. Are you considering the
prosecution of the author of that article and the newspaper?
Attorney General Gonzales. Senator, I think we have an
obligation at the Department to ensure that criminal laws are
enforced. With respect to publications by the New York Times
and other publications of highly classified programs, our long-
standing practice--and it remains so today--is that we pursue
the leaker. That is our primary objective, to go after the
leakers, quite frankly. We hope to work with responsible
journalists and persuade them not to publish the story. With
respect to the New York--
Chairman Specter. But they did publish the story.
Attorney General Gonzales. They did publish the story.
Chairman Specter. And you said on May 21st you were
considering a prosecution. Now, we have had June and July. We
have had 2 months since then. Are you or are you not
considering a prosecution?
Attorney General Gonzales. Mr. Chairman, I will say that we
are focused primarily on the leakers, and we continue to work
with the media to try to persuade them not to publish stories.
I do think, quite frankly, Mr. Chairman, it is appropriate
to have a discussion and a dialog about what do we do when we
are in a time of war and we are talking about highly classified
programs that may save American lives--
Chairman Specter. I am prepared for a discussion of the
dialog, but on another day when we have more than 10 minutes. I
am going to move on and accept your non- answer because I do
not think I am going to get anything more on that subject, and
perhaps nothing more on the next subject.
You and I have discussed the issue of the administration's
alleged program to get information from telephone records, and
you have told me that you are not authorized to say whether
there is such a program. But you also told me contemporaneously
that there was no program that the administration has except
for the terrorist surveillance program which operates without a
court order.
Question: Is it true that it is only the terrorist
surveillance program, also known as the electronic surveillance
program, is the only program that the administration has which
is not functioning under a court order?
Attorney General Gonzales. Mr. Chairman, you and I did have
a conversation. What I can say is that what you are asking
about, the program's activities, to the extent that they exist,
they would be highly classified; to the extent they exist, they
have been and would be fully briefed to the Intelligence
Committees.
I can also tell you that we are currently having
discussions within the administration to see what additional
information we can provide to this Committee about any
additional activities.
Chairman Specter. But you can confirm your statement to me
that the only program which is not subject to judicial
authorization is the electronic surveillance program? You told
me that, did you not?
Attorney General Gonzales. Mr. Chairman, I believe what I
said--well, here is what I would like to be on record. To my
knowledge--
Chairman Specter. No, no. Answer if you told me that. Then
you can go on the record.
Attorney General Gonzales. I am not sure that those are the
words that I used, Mr. Chairman.
Chairman Specter. Well, the substance of the words you
used?
Attorney General Gonzales. Those are the substance of the
words I used, but those are not the exact words that I used.
Chairman Specter. All right. On to the next subject.
We have asked the administration for a position on the
Reporter's Shield bill. Senator Lugar has proposed legislation
that has been modified, and we have come down to a point where
we think it is appropriate to insist on not having the shield
apply if there is a genuine, serious national security interest
involved. We have the Judith Miller case, 85 days in jail; not
very pleasant circumstances, because I visited her there, as
many other people did.
If you have an investigation on national security,
Reporter's Shield may not apply. But should Reporter's Shield
be available if it turns out to be a perjury or obstruction of
justice issue?
Attorney General Gonzales. What happened in that particular
case is one that I would view as a last resort, quite frankly,
Mr. Chairman. We explore every other way we possibly can to get
information that we believe is absolutely essential in
connection with a criminal investigation.
This is information that we need to move forward to
prosecute a crime. We understand the importance of confidential
sources to the media, and for that reason we make
accommodations, we have procedures in place that reflect that
particular concern.
But I think it is important. I do not think a media shield,
quite frankly, is necessary. I do not think it is appropriate.
I think if you look at our record, quite frankly we have gone
after confidential sources, I think, 13 times in the last 15
years.
I do not see, as I read the papers today, any reluctance of
the media to publicize stories, even of the most confidential
and classified nature. I do not think the legislation is
necessary. I think we have acted in a responsible way. We have
got good procedures in place, and I think we should continue on
that route.
Chairman Specter. We will pick up your statement on last
resort in round two. The red light went on just as I had
finished the question.
Senator Leahy?
Senator Leahy. Thank you, Mr. Chairman. And I would ask
that the statement that Attorney General Gonzales gave us late
last night be also put in the record because it varies in some
areas--many areas--from his opening statement.
Chairman Specter. Without objection, it will be made a part
of the record.
[The prepared statement of Attorney General Gonzales
appears as a submission for the record.]
Senator Leahy. At our hearing last week, Mr. Attorney
General, one of your assistants testified, in effect, that we
in Congress should simply ratify the military commission
procedures that the President designed and that the Supreme
Court criticized and struck down as illegal. Is that, in fact,
the administration's position?
Attorney General Gonzales. Senator Leahy, I think our
position is we care less about where we began; we care more
about where we end up, and we would like to--
Senator Leahy. No, no. The question is very specific. Is it
the administration's position, as one of your assistants
suggested, that we should simply ratify the military commission
procedures that the President designed and the Supreme Court
struck down in Hamdan?
Attorney General Gonzales. That would certainly be one
alternative that Congress could consider, Senator Leahy.
Senator Leahy. That was the alternative that the one person
we had from the administration to testify suggested. Is that
the administration's position? Yes or no.
Attorney General Gonzales. I do not believe the
administration has a position as to where Congress should begin
its deliberations.
Senator Leahy. Thank you. So we were misled by that
testimony last week.
Let us say an American soldier is captured by a foreign
government, and they accuse him, say, of spying. They obtain
evidence against him by preventing him from sleeping for days
on end or requiring him to stand or squat for hours or
interrogating this American for 18 hours a day. Then they
convene a military commission with judges handpicked by their
King or President or Prime Minister, whatever it might be.
Then they exclude the accused from large portions of his
trial, introduce a statement from the interrogator that they
never gave the accused an opportunity to read, to say whether
that was what he said or not, and then permit the death penalty
to be imposed on that American soldier by a less than unanimous
vote.
Afterwards, you have an appeals panel whose members were,
again, handpicked by whoever the head of this foreign country
is, and who had also assisted the prosecution--the appeals
court had assisted the prosecution in the preparation of the
case.
Would you have any objection to that?
Attorney General Gonzales. I would have a lot of objections
to that. I do not know if you intend by that characterization
to describe the military procedures that the Department of
Defense has worked on for many, many months. That certainly
would not be accurate.
Senator Leahy. Well, it is hard to see where the
differences are with what has happened in practice. We are
saying that in this case the soldier is accused of being a spy,
and as you know, international law--in particular, The Hague
Convention--provides no protection for spies. But I am glad to
hear that you would object if another country tried this.
In 2002, 17 American POWs and their immediate family
members brought a claim against the Iraqi Government and Saddam
Hussein for the brutal torture and horrendous abuse they
suffered while they were detained during the 1991 Gulf War.
Now, after these POWs got a judgment in Federal district
court, your administration took legal steps that had the effect
of protecting Iraq and Saddam Hussein from liability, denying
these Americans any kind of compensation for the torture these
Americans received at the hands of the Iraqis.
Why do you oppose and continue to oppose justice for
Americans who were tortured under the regime of Saddam Hussein?
If he is as bad as everybody says, why do we stop Americans
from getting any recompense for the torture he committed?
Attorney General Gonzales. Well, of course, the treatment
that was dispensed by the Hussein regime was atrocious. It is
for that reason that he is now being tried--
Senator Leahy. That is not the question.
Attorney General Gonzales.--for that kind of conduct.
Senator Leahy. Why are we opposing justice for the
Americans? Why are we blocking it? Because that was a country
that was recognized by us and the U.N.
We sent high-ranking Republicans and others over to meet
with Saddam Hussein. We are doing everything possible to help
out Iraqis with their claims. Why are we blocking Americans who
have a claim because they were tortured?
Attorney General Gonzales. Well, again, Senator, this
implicates serious and delicate issues relating to actions of a
sovereignty, and the notion--
Senator Leahy. It is a pretty serious issue that those
Americans were tortured.
Attorney General Gonzales. Absolutely, and those involved
in that conduct are going to be held accountable and should be
held accountable. But allowing people to go into the courts and
to sue foreign leaders does implicate some serious issues
relating to sovereignty that I think must be considered in
making the decision--
Senator Leahy. We do not stop people from going in and
suing Fidel Castro, for example. Why should they not be allowed
to do this? You know, the Senate, the Republican-controlled
Senate, has twice passed resolutions asking the administration
to sit down and work with these people to get a just
settlement, and I supported those resolutions. So have you met
with these victims and their families?
Attorney General Gonzales. I have not personally met them.
Senator Leahy. Has anybody met with them from the
administration pursuant to the Senate resolutions?
Attorney General Gonzales. I do not know if that is, in
fact, the case, but I am happy to check and get back to you,
Senator.
Senator Leahy. At this point they are being blocked by
their own Government from seeking it, and I will introduce
whatever you want for the record, but the fact of the matter is
these Americans were tortured by Iraqis and now they are being
blocked by not the Iraqi Government from recovering, but by
your administration. It just does not make sense.
Now, in a number of States, when soldiers are killed in the
line of duty, the Governors will order the lowering of the
American flag, which is a mark of honor to those American
soldiers who were killed in the line of duty. Do you think that
is appropriate? Do you have any criticism of Governors doing
that?
Attorney General Gonzales. I do not.
Senator Leahy. Do you know of anybody in your
administration that does?
Attorney General Gonzales. I do not.
Senator Leahy. Interesting, because many have. They do not
think that this should be done by Governors. In my State, I
believe you will find it true that Vermont has lost more than
any other State on a per capita basis. And I applaud our
Governor, a Republican, for lowering the flags to half-staff
when that happens.
Attorney General Gonzales. Senator, I do not know who you
are referring to when you say people have criticisms about
that.
Senator Leahy. You have no criticism.
Attorney General Gonzales. Sir, I have no criticism. I
think our men and women should be honored for their service.
Senator Leahy. So do I. So let us ask another question that
profoundly affects the lives of many Americans. We have seen a
dramatic increase in violent crime in our Nation. The FBI
report shows its preliminary statistics on crime for last year
show the number of violent crimes is on the rise: murders up
almost 5 percent, the largest percentage increase in 15 years;
robberies rose by almost the same amount.
Now, we had seen crime come down during the Clinton
administration. We passed the Clinton administration's crime
bill. We put more cops on the street. And your administration
was glad to take credit for that.
In fact, in his 2004 resignation letter to the President,
your predecessor, John Ashcroft, boldly declared the objective
of securing the safety of Americans from crime and terror has
been achieved. ``Mission accomplished,'' some might say. Well,
we have seen how often the ``Mission accomplished'' sign is
accurate.
The administration has proposed cutting $2 billion in
Federal aid to State and local law enforcement. Do you think
that is the right signal to send at a time when crime is going
up?
Attorney General Gonzales. Well, of course, you said the
right word--``preliminary statistics.'' We need to understand
the reasons for those numbers, and obviously I am concerned
that, to the extent that crime is rising--
Senator Leahy. Well, you have had 6 months to be looking at
why crime is rising. These are last year's numbers.
Attorney General Gonzales. I do not think we are in a
position yet to definitively say the reasons for the rise in
crime.
Senator Leahy. Well, you are in a position to say whether
you agree or not whether the $2 billion cut your administration
has made to State and local law enforcement. Do you agree with
that?
Attorney General Gonzales. Well, my own sense, Senator, is
that you cannot look at just one particular number and
determine--
Senator Leahy. Would you agree with the $2 billion cut?
That should be easy enough. Do you agree with that $2 billion
cut? This is money going to local and State police to cut down
crime, and, of course, they have the preliminary
responsibility. Do you agree with that cut?
Attorney General Gonzales. Well, again, I might agree with
portions of it, depending on what those funds are being used
for. If they are used for programs that are ineffective, that
are being duplicated--
Senator Leahy. Do you disagree with any portion of it?
Attorney General Gonzales. Pardon me, sir?
Senator Leahy. Do you disagree with any portion of it?
Attorney General Gonzales. Sir, I do not know what the $2
billion covers. I would be happy to have--
Senator Leahy. Let me give you one area.
Attorney General Gonzales.--additional discussions with you
about it.
Senator Leahy. The Bush administration proposed to zero out
the Crime Victims Trust Fund. That would rescind money
collected from criminals intended to fund 4,400 direct service
programs to 4 million victims of crime annually.
Attorney General Gonzales. We support very much, of course,
having moneys available for victims.
Senator Leahy. Do you agree with zeroing out the Crime
Victims Trust Fund? Yes or no.
Attorney General Gonzales. Well, the reason that we support
that is because under congressional rules we cannot spend an
amount over the cap.
Senator Leahy. Well, let me ask you this: The House and the
Senate have passed bills asking you to abandon your efforts to
emptying the Crime Victims Fund. Do you agree with that?
Attorney General Gonzales. I am sorry, Senator? Can you
repeat that?
Senator Leahy. The House and the Senate both passed
legislation asking you not to abandon--or not to empty the
Crime Victims Fund. Do you agree with that or not?
Attorney General Gonzales. Of course, if it is the will of
the House and the Senate, we will abide by that.
Senator Leahy. Mr. Chairman, my time is up. I will have
more questions in the next round.
Chairman Specter. Thank you, Senator Leahy.
We will proceed under the early bird rule in the order of
arrival, and on the Republican side, the order is Senator
Hatch, Senator Cornyn, Senator Grassley, Senator DeWine,
Senator Sessions, and Senator Kyl. So we turn now to Senator
Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. Welcome, General
Gonzales.
I want to touch on a few of the issues that you have been
asked about already, and let me start with the questions that
Senator Leahy had about the treatment of Americans who might be
captured on the battlefield in some hypothetical circumstance
and whether they should be treated as unlawful combatants as
the detainees at Guantanamo, the al Qaeda detainees, are.
America is a signatory to the Geneva Conventions, and our
troops wear a uniform. They respond to a chain of command. They
obey the laws of war. And because they meet all four of those
criteria, they are entitled to be treated as prisoners of war
if they are captured on the battlefield, are they not?
Attorney General Gonzales. That is correct, Senator.
The reason that we would object to the kind of treatment
described by Senator Leahy is because the United States is a
signatory to the Geneva Conventions.
Our soldiers do fight according to the laws of war. As you
indicated, they do wear uniforms, they carry arms openly, they
fight under a command structure, and they follow the laws of
war. And as a result of all of that, they are entitled to the
full protections of the Geneva Conventions that are afforded to
prisoners of war.
Senator Cornyn. American troops do not divert from these
rules. Should there be an exception to that, they are
investigated and prosecuted to the fullest extent of the law,
are they not?
Attorney General Gonzales. In all the actions for the
Department of Defense, of course, one of the considerations is
what is going to be the collateral damage, what will be the
loss of innocent life. If the belief is that the risks for
collateral damage are too high, there are occasions where
certain maneuvers are not undertaken because of that very
concern.
Unfortunately, war is messy and there are instances when
civilian life is lost. When that happens, there is an
investigation by the Department of Defense to ensure that
everything that should have been done to protect against that
loss was, in fact, done.
Senator Cornyn. But what we do in the event there is a
criminal act and investigation and prosecution, the enemy that
we are confronting in this global war on terror actually
targets civilians, does it not?
Attorney General Gonzales. They not only target civilians,
they celebrate it. They emphasize that tactic, absolutely. The
difference between the United States and our enemy, between the
United States and our friends and allies around the world and
our enemy, is that there are certain standards that must be
met. We are held to account to those standards. Any infraction
against those standards is investigated. If people do not meet
those standards, they are held accountable.
Senator Cornyn. And I believe we covered this at your
confirmation hearing on January 6. It is pretty clear, from at
least three Federal court decisions--and the 9/11 Commission
made this observation as well, as well as the Schlesinger
Commission that independently investigated some of the
interrogation and detention policies of the U.S. Government--
that Al Qaeda, because it does target civilians, because it
does not observe the law of war, because it will engage in
whatever heinous or barbaric practice that it deems expedient
in order to kill innocent people, Al Qaeda detainees are not
entitled to the same privileges accorded to American prisoners
of war, because Americans do not operate the same way that Al
Qaeda does. Is that not right?
Attorney General Gonzales. We believe that that is true as
a matter of law, Senator. The President of the United States
made a formal determination that the Geneva Conventions do not
apply with respect to our conflict with Al Qaeda, as a general
matter, because they are not a state signatory to the Geneva
Conventions.
The President made a determination as well in 2002 that the
Geneva Convention does apply with respect to our conflict with
the Taliban. But because the Taliban is not fighting according
to the laws of war--for example, they do not wear a uniform and
do not operate under a command structure--the President
determined that they also were not entitled to the protections
of prisoners of war.
Nonetheless, the President also gave a directive that the
military treat those who have been captured humanely, and
subject to military necessity and as appropriate, consistent
with the Geneva Conventions. That was a directive that the
President gave to our soldiers in 2002.
Senator Cornyn. But the reason why that is important,
General Gonzales, would you not agree, that beyond just sort of
an intellectual exercise or whether we are checking off all the
right boxes, is because it is important for us to be able to
interrogate the detainees and to obtain actionable intelligence
that can, in fact, help us detect, disrupt and deter terrorist
attacks? Is that not correct?
Attorney General Gonzales. When you are fighting an enemy
like this, where you do not know whether or not someone you are
capturing is at a corporal level or a general level because
they do not wear uniforms, absolutely, getting information from
everyone that is captured is essential.
We do not have the luxury of being able to look at someone
and make a determination as an initial matter, well, this
person has no information that will help save American lives
either in America or on the battlefield.
Getting information about this enemy, this new kind of
enemy in this new kind of war, is absolutely essential if we
are going to be successful.
Senator Cornyn. Is that one of the reasons that you are
concerned that the Congress not overreact to the Hamdan
decision and perhaps create impediments to our ability to
interrogate detainees and obtain actionable intelligence? While
we treat them humanely, are you concerned about us erecting
unnecessary impediments to our ability to gain that
information?
Attorney General Gonzales. We must, of course, treat
detainees, enemy combatants, humanely. But we are still in a
conflict, and that is the difference between these commissions
and, other international commissions that have been established
in the past, which many people refer to or cite to as precedent
for the kind of procedures that we should use in our conflict
with Al Qaeda.
Because we are still at war, it is vitally important that
we are able to get information as quickly as possible. And we
are concerned that, for example, when someone kicks in a door,
they are potentially stumbling onto a crime scene, potentially
a war crime violation.
In order to prosecute under the UCMJ, once you suspect that
someone has committed a crime, you are obliged to give them
those Miranda warnings and to provide a lawyer.
Well, once you do all of that, you will not be able to get,
perhaps, very important information that is necessary to
protect the troops, perhaps necessary to protect Americans here
at home.
Senator Cornyn. And as I understood your testimony, that is
why you are concerned about perhaps an over- expansive
application of Common Article 3, insofar as it would outsource
to the European Commission on Human Rights and others whether
or not certain conduct constitutes an outrage on personal
dignity and other ambiguous terms that might be construed in a
way that would jeopardize our own troops.
Attorney General Gonzales. I do not want this to be
overstated. If you look at the words of the Common Article 3,
it clearly contemplates serious conduct that we would all agree
should be prohibited; things like maiming and torture.
The concern that we have is that there are some phrases
that have been interpreted by other courts and other treaties
in a way that I think could put at risk our soldiers who are
simply doing their job and getting information against this new
kind of enemy.
And I think when you have conduct that is now criminalized
under the War Crimes Act, there has to be absolute certainty
about what is or is not permitted. And that is why I think it
is important for the Congress to speak clearly about what the
limits are with respect to acceptable conduct to meet our
obligations under Common Article 3.
Senator Cornyn. On another subject, General Gonzales, in
the last minute that I have, let me ask you, in the 106th
Congress, a general statute criminalizing general unauthorized
leaks of classified information was passed by Congress, but
then vetoed by President Clinton.
The 108th Congress asked General Ashcroft, your
predecessor, to review the statutory framework and provide us
with recommendations. General Ashcroft determined there was no
single comprehensive statute that provided criminal penalties
for unauthorized disclosure of classified information, but he
said the main problem was the difficulty in identifying
leakers.
Would you give us your opinion as to whether it would be
helpful to the Department of Justice for us to update and
perhaps address this lack of a generalized statute
criminalizing the leak of classified information?
Attorney General Gonzales. I will say that we, as a general
matter, have great difficulty in our investigations and
prosecutions of those who divulge classified information.
Oftentimes, the larger the universe of people who
potentially could have access to that information, the more
likely it is that we will not be able to mount a successful
investigation or certainly a successful prosecution. By their
very nature, these are very, very tough cases to make.
Nonetheless, we are at a time of war, and there are some
highly classified programs that are being disclosed which are
harmful to the national security of this country. And under
those circumstances, we have an obligation to do the very best
we can to prosecute those who disclose this kind of
information.
You asked me if it is helpful. My response is that we are
having a very difficult time under the current regime, under
our current laws, in making these kinds of cases.
Senator Cornyn. Thank you. My time has expired.
Chairman Specter. Thank you, Senator Cornyn.
The Democrats, in order of arrival under the early bird
rule, are: Senator Kohl, Senator Kennedy, Senator Feingold,
Senator Feinstein and Senator Durbin, and Senator Kohl has
agreed to yield to the next round to Senator Kennedy.
Senator Kennedy. I thank the Senator. Attorney General,
have you had an opportunity to review the testimony that was
given by the JAGs before the Senate Armed Services Committee
recently? It might be worthwhile, if you have an opportunity to
review that testimony.
It was enormously constructive and very helpful. It dealt
with a lot of complexities, dealt with the history, and I think
made some very positive recommendations about how to deal with
some of the concerns you have expressed and some of the
concerns that have been expressed by the Supreme Court. I do
not know whether you have had a chance to review it.
Attorney General Gonzales. Senator, I have reviewed the
testimony, and I was able to watch a small portion of it.
Senator Kennedy. If you have a general response to it, or
in particular, maybe you could submit it. I will submit a
question on that.
You mentioned Alice Fisher to be nominated to the head of
the Criminal Division. As you know, she was reported out of the
committee. A number of us did not vote one way or the other,
but she has been voted out. She has been out, now, for several
months. We are eager, as you are, to get her as the head of the
Criminal Division. It is extremely important.
There was the one outstanding issue that was brought up by
the Ranking Member, Carl Levin, of the Armed Services
Committee, about communications between an FBI agent and her,
talking about torture in Guantanamo.
It is rather explicit on that issue. I have read the e-mail
myself. She was asked about it. She did not remember the e-mail
at all. No reason to question her good faith. It was the desire
of a member of the Senate to inquire of this FBI agent, without
a political operative being present, where someone from the
IG's office would be perfectly satisfactory.
A very distinguished judge in my part of the country, Judge
Wolf, who is a Republican, District Court, I asked him just
about these circumstances, whether he thought that this was an
unusual process or procedure. He agreed with Senator Levin.
It seems to me we could clear this up. The whole issue of
torture, obviously, is enormously important. I think we are
entitled to get that kind of information. We are mindful we are
getting close to an August period and the process of recess
appointments are out there.
But it does seem to me if you would review--that request
was made of the Justice Department and rejected, as I
understand, by the Justice Department, Senator Levin's request
to be able to talk to the FBI agent with a member, any member,
of the IG staff present, but not a political operative. If that
is your understanding--I do not want to spend much time on it,
but I would be glad to--
Attorney General Gonzales. Well, Senator, thank you for
raising it. This is very, very important.
We have tried to accommodate Senator Levin's request, and I
am happy to have him talk to the agent. If it is someone with
the IG--at first, he wanted no one but the agent.
But if that is acceptable and if the questions can be
limited to Alice Fisher, I think he--my concern is he wants to
use this as an opportunity to get into a lot of other areas. If
it is limited to Alice Fisher, we are fine and we have offered
this. And so, I hope we can move this forward.
Senator Kennedy. All right. Well, let us try and review it.
Attorney General Gonzales. Thank you.
Senator Kennedy. It is Senator Levin's request, but I
happen to be interested in the same issue. We would appreciate
that very much.
Now, the House of Representatives passed that Voting Rights
Act. I would like to know whether your position--the
administration's position--is for passing the House-passed bill
without amendments.
Attorney General Gonzales. I do not know if I am in a
position to state, as the administration, that we are going to
support that. I can say we have had some very productive
discussions on the bill, and I have every expectation that the
bill is going to be reauthorized. And the President is on
record, as I am on record, saying we fully support the
reauthorization of the Voting Rights Act, Senator.
Senator Kennedy. We are moving along in a very timely way,
and the House has moved along. The Chairman is having a markup
tomorrow afternoon, and we want to know where the
administration is. I had asked you previously about this issue.
As I say, time is of enormous importance. A request has been
made to the Majority Leader to get the time to deal with this
in the last few weeks of the Senate session. I am very hopeful
that that will be the case. The Chairman has pressed this. The
Majority Leader knows it.
It will be enormously important to the success of the
legislation if we have the strong support of the administration
to support the House-passed legislation. And that is my
question, again.
Attorney General Gonzales. Senator, I am not in a position
to say formally what our position is. But as you say, it is
moving along and it is going to move along.
Senator Kennedy. Well, can I say, if you cannot say yes,
can you tell us at least what the areas are that you want to
alter or change in any way?
Attorney General Gonzales. Senator, we want to ensure that
the language is sufficient, that it will withstand challenge,
because it will, undoubtedly, be challenged.
Senator Kennedy. Yes.
Attorney General Gonzales. We have every expectation that
the Voting Rights Act is going to be reauthorized. We fully
support the reauthorization. And I wish I could say more, but I
cannot, Senator.
Senator Kennedy. Well, I appreciate it. The time is moving
along, I want to cover some other areas, but this is enormously
important.
Attorney General Gonzales. It is important. It is important
to me, too.
Senator Kennedy. And to you, I am sure.
Attorney General Gonzales. Yes, sir.
Senator Kennedy. We have a situation where not only is it
important to get an Act passed, but also then get enforcement
of it. This is important, because from 2000 and 2004 elections,
the Department did not file a single lawsuit relating to either
of those elections on behalf of African-American voters.
The Bush administration Civil Rights Division has litigated
only three lawsuits on behalf of African-American voters, two
of which were initiated by Attorney General Reno. And just last
week, the Department filed a complaint against Euclid, Ohio,
the first voting rights lawsuit investigated and filed on
behalf of African-Americans.
It is even more astounding when one considers that the Bush
administration is in the process of litigating the Department's
first-ever case alleging discrimination against white voters.
So this is the record. We need to get a good bill and we
need the assurances of the enforcement.
Attorney General Gonzales. Senator, might I just say that
the Chairman expressed some concerns in response to a newspaper
story about the record of the Civil Rights Division, and we
provided to him a discussion about our record in this area, and
we will share a copy with you, which I think supports,
certainly, my view that the Civil Rights Division is doing a
good job in the protection of civil rights.
Senator Kennedy. Well, I just mentioned that. I am not
going to have time to go through the Section 5, where the
career attorneys were overruled in the Texas case and also
overruled in the Georgia case, and even your Department did not
find any problem with what has been labeled a $20 fee. Some
have called it a poll tax. And not surprisingly, it has been
struck down again.
Let me, if I could, go quickly to the immigration bill.
Attorney General Gonzales. One thing on VRA. I can say we
support the bill passed by the House. I have stated the
administration's SOP. So, I can say that.
Senator Kennedy. Could you repeat it one more time so we
all get it?
Attorney General Gonzales. We support the bill passed by
the House, as stated in the administration's SOP.
Senator Kennedy. Stated in the what?
Attorney General Gonzales. In the administration's position
on the legislation.
Senator Kennedy. Well, the problem with the
administration's position is that the administration supports
the legislative intent. That is what it says, ``legislative
intent.''
And that is what you are saying now: we support the bill
and the administration's statement. But your statement is not
saying that you support the bill. I do not want to be splitting
hairs.
Attorney General Gonzales. I know this is important to you.
It is important to me. Let me see if, during the day, we can
get additional information to give to you.
Senator Kennedy. All right. If we could get very strong on
it, I would tell you that it would be enormously significant
and important.
Just quickly on the immigration. We have had your support
for a comprehensive immigration bill. Would you spend maybe 20
seconds in saying that, as compared to enforcement only,
please?
Attorney General Gonzales. More importantly, the President
believes very strongly in comprehensive immigration reforms.
Obviously, border security is very, very important, but I do
not think you can have effective border security unless you are
also taking into account those that are here in this country
illegally.
We need to know who they are, where they are at and why
they are here. And so, I think this is a problem that will only
get worse over time. We need to deal with it, I think, at once.
I think the American people expect the Congress and the
President to deal with it at once. We know it is a tough issue,
but that is what we are here to do, is try to deal with these
tough issues.
Senator Kennedy. Just finally, on the FISA. They are
important questions and we cannot really deal with them in 15
seconds. How do you determine whether an entire program
complies with the Fourth Amendment's prohibition of
unreasonable search without knowing who the specific
individuals to be searched are and under what circumstances?
Does the Fourth Amendment not require such?
Attorney General Gonzales. Senator, obviously, that will be
something that will have to be worked out in the details of the
application that goes to the court, and that will be the
challenge for the administration, to present an application
where these judges, who, like every other Federal judge in the
United States, have taken an oath to preserve, protect and
defend the Constitution.
Well, they will have to make a determination based upon
that application that the search that will be undertaken is, in
fact, reasonable under the Fourth Amendment, which is sort of a
balancing test. And I think, in taking into account the purpose
of the search, which, of course, is the protection of this
country and the national security of our country during a time
of war, and when you talk about a program that is limited in
time and limited in scope to some degree, we have confidence
that the court will find that, in fact, this is a program that
is constitutional.
That is one of the reasons why the President was
comfortable in making the commitment to the Chairman, that if
the legislation passes consistent with what has been outlined
to the President, that it will be submitted to the FISA court
for review of constitutionality.
Senator Kennedy. My time is up.
Chairman Specter. Thank you, Senator Kennedy.
Senator Kennedy, you raised the issue of the Voting Rights
Act. A few moments ago I received a note that the Majority
Leader, Senator Frist, and the Democratic Leader, Senator Reid,
who want to act on the bill this week, and we are considering
taking our bill and putting it on Rule 14.
And I consulted with Senator Leahy, and my preference,
concurred with by Senator Leahy, is that we ought to go ahead
with our markup tomorrow afternoon and report the bill out by
the committee.
The Supreme Court has had a very stringent test on
constitutionality in a number of respects, holding some Acts
unconstitutional because of our ``method of reasoning'' and
using a principle of proportionate and very tough standards,
and I think it would be a better practice to move through the
committee.
So let me say to all the Committee members, we will move
ahead with our markup tomorrow afternoon to try to get it out
so that the Senate can take it up on Thursday, and we can pass
it this week in accordance with the schedule which Senator
Frist and Senator Reid would like to accomplish.
Next in line is Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Happy to welcome you, General, to the Committee. I know you
always enjoy these experiences up in front of the Judiciary
Committee.
The House and Senate are poised to pass today or tomorrow
the sex offender bill that Senator Biden and I sponsored back
in May of 2005, and we expect the President to sign that bill
next week, which would be July 27, which happens to be the 25th
anniversary of the abduction and murder of 6-year-old Adam
Walsh, son of John and Reve Walsh.
As you, Mr. Attorney General, are well aware, sex offenders
are a menace to our society, running unchecked through our
schools and neighborhoods with little or no communication
between the States regarding their whereabouts.
And I would like to know today, will you fully support all
aspects of this bill, and will the Department enforce these
provisions to the fullest extent possible?
Attorney General Gonzales. Yes, and yes.
Senator Hatch. Good.
One provision in this sex offender bill creates a new
office within the Department of Justice called the SMART
office, S-M-A-R-T, which is an acronym for Sentencing,
Monitoring, Apprehending, Registering and Tracking sex
offenders, and, of course, named after the Smart family, whose
daughter Elizabeth was abducted and treated so terribly.
The SMART office will have a Presidential appointee and
Senate-confirmed director. This new director will likely be
appointed during your tenure. Will you make this a priority
within your Department?
Attorney General Gonzales. I will make it a priority. It
already is a priority, Senator Hatch.
Can I just say a few words about this issue?
Senator Hatch. Sure.
Attorney General Gonzales. Because I want to commend the
Congress for this. The threat to our kids through predators and
sex offenders is tremendous, and I fear that because of
changing technology, like the Internet, the threats are even
greater.
This is one area I really encourage the Congress to remain
focused on. Because of changing technology, our battle against
predators is a tough battle and we need all the tools
necessary, and this as something, as a father of two young
boys, that I really, really worry about.
Senator Hatch. I appreciate that. It means a lot. In
December of 2005, I sponsored another piece of child protection
legislation called Protecting Children from Sexual Exploitation
Act, S. 2140, which deals specifically with recordkeeping by
producers of sexually explicit material. Members on both sides
of the aisle, as well as other interested parties, have
participated in a spirited and lengthy process of discussion
and negotiation.
Now, this bill is an example of the Congress working to
give you the tools necessary to do your job, and I think the
American people expect the Department to vigorously enforce
anti-pornography statutes and, of course, to assist the States
in keeping sex offenders away from our children.
I want to assure you and the Department that these laws
will be strictly enforced, and that you will use the U.S.
Marshal Service to hunt down sexual predators as our bill
authorizes.
I missed an awful lot of the early questioning. But I
presume that the Department is going to work very closely with
us to try and come up with a way of solving the problems raised
by the Hamdan decision. That cooperation began when we had
Steve Bradbury up last week, and of course it will continue.
Attorney General Gonzales. It is something that the
Department is spending a great deal of time on, looking at ways
that we can work with the Congress to find a way to make
military commissions remain a valuable tool for the President
of the United States in a time of war.
Senator Hatch. Well, unlike some of the hysterical comments
about that particular decision, as though it was a complete
slap in the face to the administration, I did not think it was.
There are a number of things the decision said, but
basically it said that they expect us to come up with a set of
procedures that will work during this process. They did not
necessarily outlaw military commissions.
Attorney General Gonzales. Absolutely. And we have to
remember that, until June 29th, everything the President was
doing and had authorized was, in fact, lawful. He had a
decision from the D.C. Circuit affirming, in fact, that what we
were doing was lawful.
These are very, very tough issues. You have to remember,
you had six out of eight justices write in that case, for a
total of 177 pages of analysis. So to say that this was
something that was so obviously wrong, I just disagree.
I think these are tough issues. We dealt with it the best
way that we could. We now have additional guidance from the
Supreme Court and we look forward to working with the Congress
to address this important tool.
Senator Hatch. We appreciate it. I think we need to have a
bipartisan effort to come up with the procedures that will
allow military commissions to function, and function as they
always have since the time of George Washington, right on down
to today, the most prominent of which were when Abraham Lincoln
was President, and also when, I guess it was, both FDR and
Truman were President. I guess I should not just highlight two
or three.
But the fact of the matter is, you have had this authority
until this Hamdan decision, and it did not take away the
authority from you. It just said that we have got to come up
with a way of doing it so it is more acceptable.
Attorney General Gonzales. The Supreme Court did not say we
could not use military commissions, but the court said that if
we were going to use procedures that were not uniform with the
Uniform Code of Military Justice, that there would have to be
practical necessity to do so, or Congress had to give express
authority for different kinds of procedures, and that is what
we are exploring with the Congress.
Senator Hatch. All I am asking is that the Department work
very closely with us, and hopefully we up here can do it in a
bipartisan way without all the politics that seem to permeate
this body in its current partisan status.
Attorney General Gonzales. I am confident we can work
together with Senators on both sides of the aisle, Senator, to
get this problem addressed.
Senator Hatch. Well, it is in the best interests of our
country and the best interests of our war against terrorism,
and I know that you will help us to get this done.
I personally have appreciated the work that your office has
done, and those in the White House have done, with Senator
Specter and his, I think, terrific effort to try and resolve
the warrantless surveillance issues in a way that would
require, or at least allow, the FISA court to play a
significant role, because current law really, in my opinion,
does not cover what was done there.
I think there are all kinds of precedents that the
President has inherent powers to do what was done, and we would
be criticizing him today if he was not on top of it, doing what
he should do.
But I want to compliment you for the efforts that you have
made to try and help resolve our problems, in the minds of many
Members of the Congress, and I think many members of the
administration, to try and get a system that everybody agrees
on, or most everybody agrees on, so that we can keep up this
war against terrorism in a way that works.
Attorney General Gonzales. Well, this is a very important
program, Senator, as you know. Being a member of the
Intelligence Committee, you know about how this program works,
the effectiveness of this program. We look forward to continue
working with the Congress to try to find a way to make this
tool remain available to the President of the United States.
Senator Hatch. One of the things I have appreciated about
your tenure and your service, is the way you are a ``Cool Hand
Luke.'' You do not lose your temper, you do not get emotional
about it. You just steadily plod ahead, trying to make sure
that we resolve these problems in the best way we can.
I do not know how we can ask any more of you than that, and
the excellent people who are around you who have worked with us
through the years, not just with my staff, but with the
Committee as a whole. I personally just want to congratulate
you for the work you have done as Attorney General. I have a
great admiration for you and have a great feeling of friendship
and respect. I think you have served well. In spite of all of
the massive criticism that seems to hit every Attorney General,
no matter which party.
Attorney General Gonzales. That is part of the job,
Senator.
Senator Hatch. One thing I am very concerned about, though.
I would like to just kind of make it here in open, public
forum. That is, I do not think ONDCP is doing the job that it
should be doing. I really believe that some there have ignored
the virulent problems with meth.
Meth is, in my opinion, one of the most important,
virulent, criminal drugs in America today. It does not take
much to have a young person, or anybody else, hooked on that
drug. It takes maybe just one usage of it for most people. I do
not believe it has been emphasized as much as it should over
there at ONDCP, and I am pretty upset about it.
Attorney General Gonzales. I have been at several events
with Director Walters where we talked about meth, and his focus
on meth. Obviously, it is a huge focus for the Department. But
perhaps there is information we can give you on what they are
doing in the area, and if there is more than can be done, not
just with ONDCP, but with the Department of Justice, in this
area, I would be very interested in talking to you further
about it.
Senator Hatch. Well, I would appreciate getting that
information. I would love to know that they are doing a better
job than I think they are doing.
Attorney General Gonzales. Yes, sir.
Senator Hatch. Thanks, Mr. Chairman.
Chairman Specter. Thank you, Senator Hatch.
Senator Kohl?
Senator Kohl. Thank you, Mr. Chairman.
Mr. Attorney General, when you worked at the White House
you advised the President that the Geneva Conventions,
including Common Article 3, did not apply to Al Qaeda or the
Taliban.
At your confirmation hearing, you said this was
``absolutely the right decision,'' and, of course, the Supreme
Court disagreed. At the time the recommendation was made,
Secretary Powell strongly disagreed with your position on
Geneva Conventions.
He warned that it would adversely affect our foreign
policy, lead to investigations of our troops, undermine
international cooperation among law enforcement and
intelligence officials, and lead to abuse. At your confirmation
hearing, you said finding any Geneva protections applicable to
the conflict would ``make no sense.''
Unfortunately, if we look at Secretary Powell's concerns
now, everything he warned about came to pass. Do you still
believe that, notwithstanding the Supreme Court's decision,
that your judgment at that time, finding Geneva applications
not applicable to the conflict made no sense?
Attorney General Gonzales. Of course, the court only said
that Common Article 3 of Geneva applies to the conflict with Al
Qaeda, not the rest of the Geneva Conventions. Let us be very,
very clear about that.
And whether or not I agree with the court's conclusion as
to whether or not Common Article 3 should apply with our
conflict with Al Qaeda, the court said that it does and, as far
as I am concerned, that is the end of the debate and the
discussion and we ought to move on and see what we should be
doing as a government to ensure that we have the tools
necessary to win this war on terror, and also that we have
procedures in place to ensure the safety of our men and women
fighting on the front lines in this war on terror.
Senator Kohl. You then do agree or do not agree with the
Supreme Court's decision?
Attorney General Gonzales. Let me just say again, of course
the position of the Department, which I believe was reflected
in our briefs, the Supreme Court disagreed with respect to
Common Article 3. As I have said before, I look at words of a
statute or words in a treaty and I think they should mean what
they say. Common Article 3 talks about its application to
conflicts not of an international nature.
I question whether or not our conflict with Al Qaeda meets
that definition. But again, no matter what I feel about it
personally, it is the law, according to the Supreme Court, and
we are going to abide by the law and we are going to conform
our conduct to ensure that it is consistent with the law. That
is the thing that is important. We talk about respect for the
rule of law, and that is that you comply with the decisions of
our courts.
Senator Kohl. Very good.
Mr. Attorney General, Federal funding for local law
enforcement has been dramatically reduced since President Bush
took office. Just a few years ago, the C.O.P.S. program
received a little more than a billion dollars in the Department
of Justice budget.
Earlier this year, the administration requested $100
million for the entire C.O.P.S. program and nothing for the
C.O.P.S. hiring program, which has been eliminated by this
administration.
The Byrne-Grant program is another law enforcement funding
program run by the Department of Justice. Byrne-Grants, as you
know, fund State and local drug task forces, crime prevention
programs, prosecution initiatives, and many other local law
crime control programs. For the past 2 years, you have proposed
wiping out this program.
Perhaps these budget cuts could be justified if violent
crime was not a problem any more, but as we know, that could
not be further from the truth. How can the administration
possibly justify cutting off programs that support local law
enforcement in the face of a resurgent crime wave? These were
the very programs that successfully reduced crime in the
1990's.
Attorney General Gonzales. Obviously we are very concerned
about measures to fight against violent crime. We obviously
want to make sure we are doing what we can do to help our State
and local partners deal with violent crime. We are operating
under tough budget times with a deficit, when we are fighting a
war. So, there are priorities that have to be accounted for in
making budgeting decisions.
With respect to C.O.P.S. hiring, it is true that we zeroed
out funding for that. That was first created in the Clinton
administration to achieve a goal of hiring, I think it was like
200 police officers, and that goal has been met.
I do not think it was ever the intention that it would
continue ad infinitum, that we would continue to provide money
to hire C.O.P.S. on the streets. You have to, Senator, look at
other ways in which we are getting moneys to State and local
governments.
For example, we now have the Department of Homeland
Security. There is a lot of money that is being made available
to first responders through grants through the Department of
Homeland Security. So when you look to see how much Federal
money is now being allocated to a specific city or State, you
cannot just look at the dollars coming through the Department
of Justice.
I think it is also appropriate to look at the dollars
coming through DHS, because there is a lot of money that is
being made available to first responders through DHS. No
question about it, these budget decisions can be tough.
It obviously requires us to be more efficient, to develop
better relationships with State and local governments
otherwise. They are important partners, and we need to figure
out a way to make sure that they have the resources absolutely
necessary in order to work with us in making our community
safer.
Senator Kohl. I would just comment that, as you know, the
Homeland Security does not fund any C.O.P.S. on the street. The
Homeland Security program does not fund any crime prevention
program, in specific. They would conclude, from your actions,
that you do not believe that the Byrne-Grant program deserves
to be promulgated into the future because what you want to do
is to eliminate that program.
Attorney General Gonzales. What I can say, when I talked
about DHS, there are times when they make money available to go
down to first responders that can be used to purchase assets
and resources that can be used by law enforcement, not just
emergency and EMT, and not just by firemen. So that would be
one way where dollars through DHS can be helpful and is, in
fact, used by C.O.P.S. on the streets.
I take issue with your characterization. Absolutely not.
The fact that we may eliminate a particular program does not
indicate a lack of support or commitment to State and locals.
In fact, what it reflects is a decision by the
administration that this is a program that either is no longer
efficient or effective, or that there is a better way to
address the particular problem.
In some cases, quite frankly, Senator, it may be a
determination that these are State and local issues that should
be, hopefully, dealt with by the State and locals, or that
there are other priorities for the Federal Government. We have
a responsibility to protect America, to fight on behalf of
America. So again, these are very, very tough budgeting
decisions.
But I do not want you to come away from this hearing
thinking that I am not fully committed to our State and local
partners, because nothing could be further from the truth.
Senator Kohl. Thank you.
Trigger locks, Mr. Attorney General. Federal law passed
last year with President Bush's signature requires gun
manufacturers and dealers to provide child safety locks with
all purchased handguns. Each year, children and teenagers are
involved in more than 10,000 accidental shootings. As you know,
many of these shootings could be prevented.
Many of these deaths and injuries could be prevented by the
use of a gun lock. In the face of such facts, as you know, 70
Senators voted to add the child safety lock provision to last
year's gun liability bill. Former Attorney General Ashcroft
affirmed the administration's support of this trigger lock
mandatory sale. But last month, the House added a provision to
a CJS appropriations bill that would prohibit your Department
from spending any money to enforce this law.
So, I would like some assurance that this administration
continues to stand by its previously stated positions in
support of the trigger lock requirement, and that you will do
everything in your power to see that it moves forward.
Attorney General Gonzales. I am not aware of the House
action that you are referring to.
Senator Kohl. Last week, they voted not to appropriate any
funds that would allow your Department to spend money to
enforce this law.
Attorney General Gonzales. Before commenting on that, I
would like to look at that, Senator. I would be happy to get
back to you on this issue.
Senator Kohl. Your position remains as it was, that you
support the law, support that the law should move forward?
Attorney General Gonzales. Well, again, I certainly support
where we were before, but there may be information that perhaps
my staff is aware of that I am not aware of, and rather than
making a firm commitment on this issue, I really would like to
have the opportunity to go back, study it, and give you a
response.
Senator Kohl. Thank you very much.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kohl.
Senator Grassley?
Senator Grassley. General Gonzales, as you know, many times
when we have these oversight hearings, whether it is you or
other members of the Cabinet, I take advantage of it to talk
about oversight issues, because I do not think Congress does
enough oversight.
I raise these questions for two reasons. One, because I
think Congress ought to do more oversight, and I want to
encourage my colleagues to do that. Second, the extent to which
we do not get the proper cooperation from the executive branch,
I want you to know about it so that we can get that cooperation
and make the checks and balance system of government so
Congress can do its constitutional job of oversight.
So I have got three issues I am going to bring up with you.
In regard to the first one, I want to remind you that, in
answer to Senator Kennedy's question, this is something for you
to keep in mind as I am going through my background for a
couple of questions I am going to ask you.
You just agreed to provide a line FBI agent for Senator
Levin if the Department of Justice IG staff is present. So as I
am going through my first point, make sure that you understand
that you just made that commitment to Senator Kennedy.
By the way, I am leading up to two questions that I am
going to ask for a yes or no answer, then a third one where I
would like a written response from you by the end of the week.
In recent months, the Department of Health and Human
Services has worked hand-in-glove with the Department of
Justice to obstruct the Finance Committee's investigation of
the antibiotic called Ketek.
In a letter to the Finance Committee, Assistant Secretary
Vince Ventimiglia stated that HHS consulted with the Justice
Department regarding the executive branch's assertion of
confidentiality.
The Assistant Secretary broadly referred to ``longstanding
policy'' and ``governing principles'' as a basis for denying
access to documents and employees. Because I know that these
claims are not correct, I asked the Congressional Research
Service--and I am not going to go through what they said, but I
am going to refer to what they said in this document--to look
into these so-called policies and governing principles.
As I anticipated, CRS told me that there is ``no legal
basis'' for these executive assertions of confidentiality. What
HHS and Justice are doing, I think, flies in the face of
numerous historical precedents and legal rulings.
In fact, the CRS memo identifies case after case where
Congressional committees have legitimately obtained access to
information about ongoing investigations, including
prosecutorial documents, and conducting interviews with law
enforcement officials, including line FBI agents and Assistant
U.S. Attorneys.
It seems to me that the Justice Department, in consultation
with the Department of Health and Human Services, is part of a
concerted effort to obstruct legitimate Congressional oversight
into the government misconduct.
Now, I do not accuse you of that concerted effort because
that would be at a higher level, maybe, than you. But what is
bothering me, is a fundamental disregard for constitutional
mandates, long-established historical precedents, and bedrock
legal rulings. Frankly, these are obstructive policies and
principles.
So then, answer yes or no. Is it not true that
Congressional committees and their staff members have, in the
past, had access to deliberative prosecutorial documents at the
Department of Justice?
Attorney General Gonzales. Do you mean during an ongoing
investigation at the Department? If that is your question, I do
not know the answer to that. As a general matter, I would see
the natural problems that would arise if that were to occur,
because if you are talking about an ongoing investigation at
the Department and you subject yourself to in any way
influencing that investigation, I think that puts a Member of
Congress in serious jeopardy of being accused of somehow
guiding, affecting, or steering an investigation at the
Department.
I think, for that reason, Senator, we would typically urge
strongly, let us do our job and complete our investigation, and
then we enter into a normal course of dialog to try to reach an
accommodation to share information with the Congress. Or maybe
I have misunderstood your question.
Senator Grassley. No. As I get to a written answer, you can
include that in your answer if you really do not know, now.
Attorney General Gonzales. All right.
Senator Grassley. But then this next one, in light of what
I said that you said to Senator Kennedy, is it not true that
Congressional committees and their staff members have, in the
past, had access to line attorneys, line FBI agents, Assistant
U.S. Attorneys and investigators in the performance of its
oversight responsibilities? An obvious ``yes'' in regard to
what you just promised Senator Kennedy.
Attorney General Gonzales. I believe that the answer has to
be yes, but I think those instances have been rare, and
depending on the circumstances.
Senator Grassley. Well, I have had access to them.
So when I want to investigate something on Ketek that is
killing people, a death in my own State from the use of it, and
I want to talk to the people that are investigating it, they
get advice from your Department that they do not have to let us
do it. So, I want a review of that.
So here is what I would like to have your written response
on by the end of the week. I understand that this would be,
expect for executive privilege or national security.
I want the legal justification, not policies or principles,
for denying access to deliberative, prosecutorial documents and
for obstructing interviews with line agents in the performance
of oversight responsibilities to examine allegations of
government misconduct.
Attorney General Gonzales. And this is in the course of an
ongoing investigation at the Department, or just generally,
sir?
Senator Grassley. Well, this would be within the Department
of Health and Human Services, but based on your advice.
Attorney General Gonzales. Now, let me go on. The
Department of Office of Professional Responsibility recently
found that there was a reasonable basis to believe that the FBI
retaliated against its highest-ranking Arab-American agency for
raising concerns about being frozen out of counterterrorism
assignments after 9/11.
After the agent, Bassam Youssef, expressed his concern to
Director Mueller, the FBI halted its plan to transfer him to
the FBI's primary counterterrorism section. While I am glad
that the OPR of the Department of Justice has recommended that
Youssef's transfer be implemented as it should have been 4
years ago, I am concerned that the person--or maybe persons--
responsible for halting his transfer will not be held
accountable.
As I understand the Department's whistle-blower
regulations, OPR's finding will be reviewed by another office,
but there will not necessarily be any further investigation to
determine who is responsible for retaliation.
How will retaliation against whistle-blowers like this ever
stop if DOJ's internal process does not identify who is
responsible and discipline them? So would you determine for me
who ordered his transfer be halted, and why?
Also, would you commit to reviewing the Department's
regulations to make sure that there is a process for
identifying and punishing those who retaliate against whistle-
blowers?
Attorney General Gonzales. I will do that. Senator, let me
just say, of course, this is a matter that is in litigation. I
am firmly committed, and I believe that the Director is firmly
committed, to ensure that there is not retaliation against
whistle-blowers.
I know the Director issued such a directive when he first
came on board. He issued another directive in 2004 about this
issue. But let me look into it and see what I can find out, and
provide it to you.
Senator Grassley. Yes.
I am going to quickly go through my next question without
reading it in detail. You recently had a settlement with
Boeing. That settlement was for $615 million. Now, that sounds
like a lot of money and a big victory for you, and the
government generally, against somebody who did things wrong, a
major company that did something wrong.
But what I cannot find out from your Department, do not get
an answer on, is whether or not some of that is tax deductible.
The law is very clear, that you can have a penalty that spells
out that it is not tax deductible, because if this is tax
deductible, it is not a $615 million settlement, it is a
settlement probably 35 percent less than the $615 million.
The law is clear that you can settle that way. You need to
know that lawyers sitting across the table from you know what
the law is. It is just ludicrous that I cannot get an answer
from your Department that they never took that into
consideration.
Attorney General Gonzales. That is our policy. Our policy
is, with respect to entering into settlements, that they are
tax-neutral. We do not take into consideration the tax
consequences of settlements. That has been our longstanding
policy and our agreement with the IRS.
What we do, is after such a settlement, we provide relevant
facts and information to the IRS so they can make a calculation
as to what the tax consequences are of the settlement.
Oftentimes, these are very, very complicated settlements,
as you know. We can rarely get agreement on a lot of issues,
except perhaps sometimes the amount. So to also expect that we
also get agreement as to the tax consequences, Senator, that is
just not something that we do as a matter of routine or policy.
Senator Grassley. Well, the law allows you to do it, and
you ought to be doing it and save the taxpayers 35 percent of
that settlement, so a settlement is a settlement.
Chairman Specter. Thank you, Senator Grassley.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
Attorney General Gonzales, I would like to followup on a
letter that I sent you yesterday about the Hamdan decision and
the NSA wire tapping program. The last time you testified
before this Committee you told us that the program expires
approximately every 45 days, and that the President has to,
himself, reauthorize it.
When is the program next due to be reviewed?
Attorney General Gonzales. I do not know the exact date,
Senator.
Senator Feingold. Does your staff know?
Attorney General Gonzales. They would not know.
Senator Feingold. Well, if there is some way we could get
that information, because I want to ask you how this process is
working.
Will you or anyone else at the Justice Department
participate in the review?
Attorney General Gonzales. Yes.
Senator Feingold. Last week, Acting Assistant Attorney
General Bradbury argued that the Hamdan decision had no effect
on the Justice Department's legal justification for the NSA
program, and he pointed to a letter on this topic that the
Department of Justice sent to Senator Schumer.
Since then, a group of 14 distinguished law professors sent
a letter to Congress, stating that Hamdan ``significantly
weakens the administration's legal footing.'' At least two
commentators who had previously defended the legality of the
program have indicated that Hamdan makes it very difficult now
to argue that the program is legal.
So my question is this: do you agree with Mr. Bradbury's
conclusion that the Hamdan decision does not change the
Department's view of whether the NSA program is legal?
Attorney General Gonzales. We continue to believe that the
NSA program is legal. We continue to believe that the
authorization to use military force is still a basis for that
conclusion and that, of course, the President does have the
inherent authority, under the Constitution, to engage in
electronic surveillance of the enemy during a time of war
without a warrant.
I do not know how much time you want to spend talking about
this.
Senator Feingold. Well, let me pursue those two arguments.
Attorney General Gonzales. All right.
Senator Feingold. Because I think, in both cases, the
Hamdan decision seriously weakens what were already weak
arguments. First, on the AUMF, you have the decision in Hamdi
saying that the AUMF authorized holding individuals detained on
the battlefield, because that would be a fundamental incident
of war. Let me just finish, then you can answer.
But then the Hamdan court said that the AUMF did not
authorize military force, that lacked basic procedural
safeguards and fairness.
So you can give your answer, but one thing I want you to
address is, do you really believe that the tapping of the
phones of Americans is more of a fundamental incident of war
than trying detainees in military commissions?
Attorney General Gonzales. It is tapping the phones of the
enemy, not Americans.
Senator Feingold. In some cases, it is Americans.
Attorney General Gonzales. Who may be talking to Al Qaeda.
I think the American people expect us to try to understand why.
Senator Feingold. But do you really think that that is more
an incident of war than the matter that the Supreme Court
clearly identified as something that is not justified by the
authorization of military force?
Attorney General Gonzales. I think these are good
questions, Senator. I think that the importance of Hamdi, is
that the Supreme Court said that the authorization to use
military force authorizes the President to take those actions
that are fundamental and incidental in waging war.
They then determined that detention of an enemy combatant
is fundamental and incident to waging war, even though the
Congress never used those words in the authorization to use
military force. So we have got that decision that informs us as
to what the authorization to use military commissions means.
You also now have the Hamdan decision, and the court there
said that the military commission procedures--I presume,
because they never got into this analysis, which is one of
several aspects of the opinion that I am still trying to
understand.
The court never got into an analysis as to whether or not
the military commission procedures are a fundamental incident
to waging war. Obviously, the court, I presume, concluded that
it is not.
I believe that electronic surveillance of the enemy during
a time of war is much closer to the day-to-day military
campaign operational control of a commander in chief than the
procedures for a military commission of someone who has already
been captured. So I still believe that, while the arguments are
clearly more muddled--
Senator Feingold. I hear your argument. But let us cut to
what you really think is the case here in terms of the Supreme
Court. Do you really believe that the majority of this Supreme
Court would rule that your saying is correct with regard to the
authorization of military commissions? Do you really believe
that a majority of this court would say that it is authorized
by the AUMF?
Attorney General Gonzales. I continue to believe that a
majority of this court would find that the electronic
surveillance of the enemy during a time of war is fundamentally
incident to waging war.
Senator Feingold. That is not what I asked. I asked if you
believe that this court, who just made this decision, would
rule that under the authorization of military force for
Afghanistan, that in fact that is permitted under that statute.
Attorney General Gonzales. I stand by the arguments of the
Department.
Senator Feingold. I assure you, I have rarely been as sure
as I am of this fact, that this court would not rule that way.
With regard to the inherent authority argument, that
argument was made and rejected in Hamdi. Both Justice Stevens
and Justice Kennedy made it clear that, when Congress has
passed a law, the President must follow it, even when, in the
absence of the law, he might otherwise have had the inherent
power to do what he wants to do. That is essentially
Youngstown, which you and I have talked about before.
I really find it amazing that the Attorney General of the
United States could argue that this is not the case. The
stubbornness of this administration in refusing to recognize
its own mistakes and to take action to correct them, really
surprises me.
We have a clear-cut Supreme Court decision rejecting this
unprecedented theory of executive power in which the legal
justification for the NSA program is based. The AUMF argument,
as I have already indicated, is very weak, but I think that the
Article 2 argument has been rejected as well. So, feel free to
respond.
Attorney General Gonzales. Well, there is a lot to respond
to there, Senator. I disagree with respect to the court
rejection of our constitutional arguments. I think the court
went to lengths to explain what they were doing was trying to
decide this issue on a statutory basis and not on a
constitutional basis, albeit, I think the court might have been
clearer in its reasoning.
I can understand why some may believe that, as you have
indicated. But we continue to believe that the President has
the inherent authority to engage in electronic surveillance.
And it still remains true today, Senator, that of all the
courts to consider this issue directly, including, most
recently, the FISA Court of Review, that all the courts have
held that the President of the United States does have inherent
authority to engage in electronic surveillance for foreign
intelligence purposes, and these decisions were during peace
time. I think the arguments will be even stronger during a time
of war.
Senator Feingold. But did the court not say, just putting
it simply, in Hamdan, that the President has to obey the
statutes we write? Did the court say that?
Attorney General Gonzales. I think what the court said was,
if the President of the United States wants to use military
commissions, that unless he could justify it with practical
necessity--
Senator Feingold. Mr. Attorney General, I am not asking
that. I am asking you whether the President has to obey the
statutes we write. Yes or no? Did the court say that the
President has to obey the statutes we write?
Attorney General Gonzales. I would not take the Hamdan
decision as that clear a directive, quite frankly, Senator. I
think what the court said, is if the President of the United
States want to use military commissions, they have got to use
procedures that are consistent with the UC&J and consistent
with Common Article 3.
Senator Feingold. I cannot believe you cannot
straightforwardly answer the question.
Chairman Specter. Let him finish his answer, Senator
Feingold.
Senator Feingold. Well, it is the same answer. I asked a
different question, Mr. Chairman, which is whether the court
said that the President has to obey the statutes we write. That
is what Justice Kennedy said.
Attorney General Gonzales. Of course, we have an obligation
to enforce the laws passed by the Congress. But the President
also takes an oath, Senator, to preserve, protect, and defend
the Constitution. If, in fact, there are constitutional rights
given to the President of the United States, he has an
obligation to enforce those rights.
Senator Feingold. Has the Justice Department issued any new
legal guidance to anyone in the executive branch regarding any
aspect of the treatment of detainees since Hamdan was issued?
Attorney General Gonzales. Of course. Privately and
publicly, we have said that the court now says that Common
Article 3 applies to our conflict with Al Qaeda, and that our
conduct should conform with that standard, whatever it may
mean.
One of the things I want to urge this Congress to do is to
provide clarity and definition to what those standards are,
because those violations of Common Article 3 now constitute a
war crime, a felony, for people on the front lines, and they
need to understand what the rules are.
Senator Feingold. Has any specific Department or agency
requested this advice?
Attorney General Gonzales. I am not aware of any specific
requests, Senator. I think that, again, we have been very
public, both here in the Committee and elsewhere, in expressing
our views about how we interpret the decision by the Supreme
Court in Hamdan.
Senator Feingold. Mr. Attorney General, I have been briefed
on the NSA program as a member of the Intelligence Committee. I
am prohibited from sharing what I know with the other members
of the Judiciary Committee, so I sent you a letter last month,
asking you and the Director of National Intelligence to brief
the Judiciary Committee on the NSA program.
The Judiciary Committee is considering a variety of
legislative proposals relating to the program, and I firmly
believe that the Committee cannot do its job without access to
contemporaneous legal justifications for the program and a
candid exchange with administration officials about the basis
for bypassing FISA.
The Judiciary Committee, I would agree, does not need to
know all the operational details, but it does need some basic
factual understanding, at a minimum. Will you commit to me
today that you will provide this information to the Committee
before the August recess?
Attorney General Gonzales. I cannot commit to you, sir,
that we will do it. We will, of course, continue to provide as
much information as we can for the Committee to do its work.
You have received full information in the Intelligence
Committee. I cannot commit to your request.
Senator Feingold. Well, it is generally helpful, when
legislating, to know the factual basis for the legislation
before drafting it. So, this is terribly important.
Attorney General Gonzales. We, of course, have provided our
contemporaneous legal justification for the program. That has
been on the table since early January of this year. We will
continue to work with the Committee as best we can, as well as
the Intelligence Committee, to provide information that they
need to engage in their oversight responsibilities.
Senator Feingold. Well, would you commit to provide us--
when I say ``contemporaneous,'' I mean at the time that the NSA
program was established. That is what I am talking about, not
the white paper. Would you commit to provide us with that?
Attorney General Gonzales. I have said to the Committee
before, Senator, that our analysis has not remained static. It
has evolved over time. But with respect to what the program
currently looks like today, we have provided our legal
analysis. That has been made available to the Committee.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Feingold.
Senator DeWine?
Senator DeWine. Attorney General, good to be with you.
Thanks for coming.
I would like to discuss once again with you the backlog of
FISA applications. Over the last few years, I have asked about
this repeatedly. I have asked you, I have asked the Director of
the FBI. I am really going to keep asking about it, because we
need to understand why there is a backlog and exactly what we
can do to solve the problem.
FISA is one of the most important tools we have to fight
terrorism, and we need to make the FISA process as efficient,
as rapid, and as effective as we possibly can. So, I am going
to keep talking about it until, frankly, we get it fixed.
When I asked Director Mueller about FISA at a Judiciary
Committee hearing in 2004, he said, ``We still have some
concerns and we are addressing it with the Department of
Justice, but there is still frustration out there in the field
in certain areas where, because we have had to prioritize, we
cannot get to certain requests for FISA as fast as perhaps we
might have had in the past.''
Now, I discussed this topic with you also in February when
you testified in front of the Judiciary Committee, and you also
were concerned about it. You said, Mr. Attorney General, ``It
still takes too long, in my judgment, to get FISAs approved.
FISA applications are often an inch thick, and it require a
sign-off by analysts out at NSA, lawyers at NSA, lawyers of the
Department, and, finally, me. Then it has to get approved by
the FISA court.''
Now, Mr. Attorney General, when Director Mueller testified
in May, I asked him what we could do to fix the problem. In
summary, what he told me was that we needed more attorneys
working on the application process, reduced application
paperwork, and an expedited process.
After Director Mueller testified in May, my staff contacted
your staff to find out how we could followup to explore the
suggestions that Director Mueller made. My staff was told,
basically, that these problems will be addressed when Kenneth
Wainstein takes over as Assistant Attorney for National
Security.
You, yourself, testified to that effect back in February.
After Mr. Wainstein's confirmation hearing in the Intelligence
Committee on May 16, I asked a series of specific questions to
him regarding the backlog problem and some of the possible
solutions suggested by Director Mueller. His answer, basically,
was that he would examine the issue once he was confirmed.
Now, of course, we know, unfortunately, that Assistant
Attorney General Wainstein has not yet been confirmed. It is
unclear exactly when we will vote on his nomination. However,
this problem, I think, is, frankly, just too urgent to wait for
that.
My staff has recently discussed the backlog problem with an
FBI special agent, and we have confirmed, unfortunately, that
the same problems still exist today. So, I get to my question:
what exactly are you, Mr. Attorney General, doing today to
resolve this problem?
Attorney General Gonzales. Well, that is a good question,
Senator. You are right, it is a very important issue. I think
we have made progress in addressing the issue in terms of,
shortly after 9/11 we detailed additional lawyers to OPR to
help with the FISA process. We established an FBI-OPR task
force to look at additional ways that we could streamline the
process.
We do think it is going to make a difference to get Ken on
board, because I have instructed him that this is something
that has to be fixed. But, quite frankly, without changes in
the law in terms of what is required under FISA, I am not sure
that this can be solved, unless you are really just talking
about throwing additional resources, additional manpower at the
problem. There are clear requirements under FISA.
Senator DeWine. You say, unless we are talking about
putting additional resource?
Attorney General Gonzales. Exactly.
Senator DeWine. All right. It seems to me, Mr. Attorney
General, we have a problem. Everyone agrees we have a problem.
Nobody wants to talk about it, publicly, very much. When I prod
you or prod the head of the FBI, you all will admit there is a
problem. Everyone wants to sort of down-play it.
You will admit it. You will say there is a problem. But
when I talk to people in the field, they tell me there is a big
problem. There is a big problem, when I talk to people behind
the scenes.
So there is either a resource problem or there is a law
problem, or there is both. It seems to me that if there is a
law problem, the administration has an obligation to come
forward and say there is a law problem, and then we look at
that, and we can either fix that, or maybe we cannot fix it.
Maybe that is something that, for many reasons, we cannot
muster the votes to change that, and maybe we should not change
it; I do not know.
But if it is a resource problem, what is more important
than processing FISA cases? What in the world is more important
than processing FISA cases, and how much money could it cost to
get more lawyers? I keep getting the same answer. Let us go
spend the money, Mr. Attorney General. Come forward and tell us
what you need. You are not telling us what you need.
Attorney General Gonzales. I do not know who you are
talking to out in the field. You may be talking to an agent,
for example, who is not working on terrorism cases.
Senator DeWine. No, Mr. Attorney General. I am talking to
some people pretty close to it, and I am talking to a lot of
them. I quoted you as saying that there is a problem. I quoted
the head of the FBI as saying there is a problem. No one is
saying there is not a problem. So there is a problem. Would you
not grant me there is a problem?
Attorney General Gonzales. Of course there is a problem.
Senator DeWine. All right. There is a problem. You just got
through saying, short of throwing resources at it. My question
to you is, why do we not throw resources at it and fix it?
Attorney General Gonzales. We have thrown resources at it,
Senator. What I hear you saying is perhaps we should think
about throwing additional resources at it. Certainly that would
be helpful, and that is certainly something we ought to be
looking at. But there also needs to be changes in the law,
quite frankly.
Senator DeWine. I have got to move on. But will you come
forward with those specific recommendations?
Attorney General Gonzales. Yes, sir.
Senator DeWine. That was a yes?
Attorney General Gonzales. Yes, sir.
Senator DeWine. All right.
Let me turn to gas prices. Everyone is concerned about gas
prices. As Chairman of the Antitrust Subcommittee, I have
worked for years to address this concern. We have held
oversight hearings on oil mergers, we have requested
investigations of fuel price spikes by the enforcement
agencies.
I sponsored the NOPEC bill with Senator Kohl. We put it
into a new bill with Chairman Specter. That bill makes it clear
that the Justice Department can, in fact, prosecute the OPEC
oil cartel for its illegal price fixing of oil prices. We have
passed that bill once in the Senate.
I have also co-sponsored legislation with Chairman Specter
to prohibit oil companies from manipulating supply. I have
sponsored legislation with Senator Kohl, and of course there
have been a number of other legislative efforts by many other
members of the Senate.
One thing is clear, however. We need to make sure that oil
companies are obeying the laws as they exist today, and playing
by the rules in the marketplace.
Recently, Senator Kohl and I asked the Justice Department
to work with the Federal Trade Commission to make sure that oil
companies are not gouging consumers or engaging in any other
illegal or anti-competitive conduct. We recently received
confirmation, Mr. Attorney General, from your Department that
you are, in fact, working together with the FTC to examine the
market.
Can you tell us more specifically what you are doing to
address this extremely important issue and help give consumers
in Ohio, and across this country, some relief from these very
high oil prices?
Attorney General Gonzales. We are obviously aware of the
high oil prices, Senator. First of all, the FTC did do an
evaluation and examination of the market to look at the conduct
of the oil companies.
I have met with the FTC Chairman and States' Attorneys
General to talk about these issues to see what they can be
doing, what they are doing to see whether or not we have the
appropriate mechanism or framework in place to be sharing
information that would allow us to move forward with respect to
prosecutions. That dialog continues today.
There are, quite frankly, though, limits on what we can do
in terms of Federal prosecutions. There is no Federal law
against price gouging, unless you are talking about collusion,
fraud, market allocation, or bid rigging. There are limits to
what we can do at the Federal level in terms of prosecuting
these kinds of cases.
I know there has been some discussion that perhaps we ought
to have a Federal law against price gouging. I would urge
caution as we head down that road. If you put a cap on what can
be charged in a distressed area--
Senator DeWine. My time is almost up, and I have one more
question. I assume that you will, though, continue to pursue
this special inquiry that you referenced in your letter to me
dated July 3, and you are going to continue to do that?
Attorney General Gonzales. Yes, sir.
Senator DeWine. Last question. Mr. Attorney General, on May
2nd of this year, Director Mueller testified in front of the
Judiciary Committee. On May 9, I submitted a number of written
followup questions to the Director on a range of important
topics.
Specifically, I asked questions regarding the FBI's
computer system, its allocation of resources to fight crime,
the backlog in name checks being done by the FBI, and efforts
to increase the facilities available to FBI agents so they can
safely examine classified material in criminal intelligence
cases.
It has been about two and a half months, and I have not
received the answers to any of these questions. Now, I am told
that the FBI has drafted responses and sent the over to the
Justice Department last week for approval.
Now, I am not sure why it takes the FBI over two months to
just draft responses to questions such as these, but I
certainly hope, Mr. Attorney General, that the Justice
Department can find a way to get these answers to me quickly
now that the FBI has finally come up with a draft response. Can
I expect this response fairly soon?
Attorney General Gonzales. We will do our best. Yes, sir.
Senator DeWine. I thank you, and I thank the Chairman.
Chairman Specter. Thank you, Senator DeWine.
Senator Durbin?
Senator Durbin. Thank you, Mr. Chairman.
Mr. Attorney General, thank you for being with us. Mr.
Attorney General, Arthur Schlesinger, Jr. is a Pulitzer Prize-
winning historian. He was recently quoted in New Yorker
magazine, commenting on this administration's legal defense of
torture. This is what Mr. Schlesinger said: ``No position taken
has done more damage to the American reputation in the world,
ever.''
You were there at the moment of creation, when this
administration's torture policy was being debated shortly after
9/11. You recommended to the President that the Geneva
Conventions should not apply to the war on terrorism. In a
January, 2002 memo to the President, you concluded: ``The war
on terrorism renders obsolete the Geneva Conventions.''
This was clearly not a unanimous view within the
administration. Secretary of State Colin Powell objected to
your recommendation. With decades of military experience
informing his judgment, he argued that we could comply with
Geneva Conventions and fight the war on terrorism.
He wrote a memo to you pointing out that the Geneva
Conventions do not limit the ability to hold and question a
detainee. In his memo, Secretary Powell concluded that setting
aside the Geneva Conventions will ``reverse over a century of
U.S. policy and practice in supporting the Geneva Conventions
and undermine the protections of the law of war for our
troops.''
Secretary Powell said, ``It will undermine public support
among critical allies, making military cooperation more
difficult to sustain.''
Mr. Attorney General, as you look back on what has
transpired over the last 4 years, from Washington, D.C. to
Guantanamo, to Abu Ghraib and the damage that this decision to
abandon the Geneva Conventions has done to the country's image,
was Secretary of State Colin Powell not right?
Attorney General Gonzales. Senator, you began by talking
about a defense of torture. We do not, and will not, defend
torture. Our policy, our legal obligations, are that the United
States does not engage in torture. So, I will not defend our
policies that promote torture, because no such policies exist.
The Supreme Court of the United States has not held that
the full protections of Geneva apply to our conflict with Al
Qaeda. What the Supreme Court held, was that Common Article 3,
which requires basic humane treatment to detainees, apply to
our conflict with Al Qaeda.
As you will remember, in February of 2002, the President
issued a directive to our military that, even though Geneva
does not apply to our conflict with Al Qaeda, they would
nonetheless be treated humanely, and as appropriate and subject
to military necessity, consistent with the Geneva Conventions.
Senator Durbin. Mr. Attorney General, it is clear from the
Hamdan decision that they did not agree with your conclusion
that the Geneva Conventions were obsolete. I have been
struggling with this, because last week I went to Guantanamo
and I met with the leading interrogator. This gentleman, who
works for the Defense Intelligence Agency, has been engaged in
questioning prisoners for 30 years.
I asked him point-blank, if I were to tell you tomorrow
that you had to follow the Geneva Conventions in the way you
are interrogating prisoners at Guantanamo, what would change
here? He said, ``Nothing.'' What about the Uniform Code of
Military Justice? He said, ``we follow it.'' What about the
McCain torture amendment? He said, ``we follow it.''
I have been struggling, Mr. Attorney General, to try to
understand your statement, the statement of Mr. Bradbury, and
some of the supportive questioning from Republican Senators
here. Why, then, do you not acknowledge the obvious, that the
Geneva Conventions that we have followed for more than half a
century do apply?
I can only come up with two rationales for why you still
cling to the hair-splitting on the Geneva Conventions. One,
generated by your own memo, a memo that was disclosed by
Newsweek magazine, a memo related to the War Crimes Act.
In that memo, you wrote, one key advantage of declaring
that Taliban and Al Qaeda fighters did not have Geneva
Convention protection is that it ``substantially reduces the
threat of domestic criminal prosecution under the War Crimes
Act.''
Is that what this is about, reserving the possibility that
the Geneva Conventions do not apply as a protection for those
members of the administration who argued otherwise four or 5
years ago?
Attorney General Gonzales. Of course not, Senator. What
this is about, is looking at the words of the statute and to
see whether or not, by its words--which is, of course, what the
Senate looked at when it ratified the treaty--are the words
that we look at with respect to how the treaties are
implemented as a domestic matter.
And based on the words of the statute and the conduct of Al
Qaeda and the Taliban, a determination was made that the full
protection of the Geneva Conventions would not apply. That is
what that is about. Now, if you are talking about--
Senator Durbin. But if you do not deny this memo, the memo
you sent to the President, which says, as long as you hold to
the position that the Geneva Conventions do not apply to Al
Qaeda and the Taliban, then we do not have to worry about
prosecution under the War Crimes Act.
Attorney General Gonzales. Well, I think it is certainly
important for the President to understand all the ramifications
of the decision that he is going to make.
I might add, I think that the memo that you are referring
to that has been disclosed or discussed in other publications
relate to a draft memo, not the memo that actually went to the
President of the United States.
Senator Durbin. May I see the final memo? Will you send
that to us?
Attorney General Gonzales. That is something you will have
to raise with the White House, Senator.
Senator Durbin. I think the answer is, no, you will not
send us the memo.
Attorney General Gonzales. Well, the memo was written while
I was at the White House. That is a decision to be raised with
the White House.
Senator Durbin. May I ask you, the second part that is
interesting, is I am trying to figure out the rationale for the
hair-splitting on the Geneva Conventions here, because the
people on the ground at Guantanamo and others tell us they live
by it, they can live with it, and they think it is a valid
starting point in terms of basic human rights. The difficulty
seems to be within the administration.
I am wondering this. Was there a signal sent our way by
Vice President Cheney when the McCain torture amendment passed
90 to 9, when he said, ``We want to exempt intelligence
personnel from the coverage of this amendment?'' Is that what
this is about?
Attorney General Gonzales. I do not know what the Vice
President may have said or what signal he may have been
sending, Senator.
Senator Durbin. Well, then let me ask you point-blank. When
it comes to intelligence agents of the American government who
are working in the field of intelligence, are they bound by the
McCain torture amendment?
Attorney General Gonzales. Absolutely.
Senator Durbin. They are?
Attorney General Gonzales. Yes.
Senator Durbin. All U.S. personnel, including intelligence
personnel, are now required, do you believe, to abide by Common
Article 3 in the treatment of detainees?
Attorney General Gonzales. I read the opinion, it says it
applies to our conflict with Al Qaeda.
Senator Durbin. All U.S. personnel.
Attorney General Gonzales. That is what it says, without
qualification.
Senator Durbin. So we have sent a directive, not only to
the military, but also to intelligence personnel, that they are
to apply the Geneva Conventions?
Attorney General Gonzales. Well, I do not know about a
directive. Again, DoD sent a directive, I presume, because they
felt that it was appropriate to do so. I do not know what the
agency has done, or other departments and agencies have done,
with respect to a directive. We stand available to provide
guidance, if asked by agencies and departments, in terms of
what our legal obligations are.
Senator Durbin. Despite questions raised by Vice President
Cheney, you are saying to us, clearly, the Geneva Conventions
apply to intelligence personnel, as well as military personnel?
Attorney General Gonzales. I think the logical conclusion
or result of that--I mean, the court says, we believe, in
Hamdan, that in our conflict with Al Qaeda, Common Article 3
applies.
Senator Durbin. And one of the other questions I raised at
Guantanamo related to a memo which we heard about earlier from
an FBI agent who made a statement in e-mail, which was FOIAed,
relative to the treatment of a prisoner at Guantanamo.
The statement has become very controversial; it has been
raised on the Senate floor, it has been raised in this
Committee. I wrote to the Department of Justice and FBI and
asked them if they would authenticate the e-mail, and they
authenticated it.
When I asked about this particular experience that was
related in this e-mail, I was told it was under investigation
by the Inspector General, Mr. Fine. Can you tell us, when that
investigation is complete, that his findings will be made
public?
Attorney General Gonzales. I will certainly see what we can
do to make the information from that investigation public, his
conclusions. But that is a discussion that I will have with the
Inspector General.
Senator Durbin. I hope they will be made public.
There was a time, many years ago, when you were notified
that detainees being held at Guantanamo may have had no
connection whatsoever to the war on terrorism and should be
released.
It goes back to a period in the summer of 2002, when an
analyst was sent to Guantanamo and came back and reported,
through a classified report, which reached General John Gordon.
It was then sent to the White House, to you, and Mr. Addington,
that potentially innocent people were being held in Guantanamo.
Do you recall this?
Attorney General Gonzales. I do not. I guess the important
word is ``potentially.'' I mean, one of the things that we do
is we make evaluations, both before people come to Guantanamo
and after they come to Guantanamo.
Senator Durbin. But Article 5 determinations were not being
made as to these people.
Attorney General Gonzales. I think we did far more than
Section 5 determinations. There were assessments made on the
ground, and before people were sent to Guantanamo of a person's
particular status. So I think we went well beyond Section 5
determinations.
Again, once people arrived in Guantanamo, there was an
assessment made. We now have Combatant Status Review tribunals
where an assessment is made, and we have annual review boards
which, annually review a person's status and make a
determination as to whether or not they should remain in
Guantanamo.
We give far and away much more process than is required
under the Geneva Conventions for prisoners of war, and that has
been true for many years.
Senator Durbin. Thank you.
Chairman Specter. Thank you, Senator Durbin. Attorney
General Gonzales, would you care for a short break?
Attorney General Gonzales. Thank you, Mr. Chairman.
Chairman Specter. You are welcome.
Attorney General Gonzales. Actually, I am fine, if Senator
Feinstein is ready to go.
Chairman Specter. All right.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
Good morning. I understand that you were already asked a
question about Secretary Englund's memorandum to DoD to conform
with Hamdan, and I believe the question you were asked was,
would you send out a similar letter? I think, as was reported
to me, the response was, well, it is up to the Department to
inquire. Is that a correct assessment?
Attorney General Gonzales. Well, Defense made a
determination that they wanted to send out this guidance. As I
understand it, the Department was consulted about what the
guidance should say. But this was not a decision by the
Department to send out the guidance, this was a decision by the
Department of Defense.
Senator Feinstein. I understand that. Let me put this
question to you: will you be sending a letter, let us say, to
the CIA, pointing out the same constraints?
Attorney General Gonzales. I am not aware of any plans to
send out a similar letter, Senator.
Senator Feinstein. Why would that be?
Attorney General Gonzales. Well, again, the Department of
Defense made a decision that they needed to send out this
guidance; perhaps the CIA believes it does not need to send out
similar guidance.
Senator Feinstein. Yes.
Attorney General Gonzales. We have been very public about
what we think this decision means, and I do not think anyone
can misunderstand, even at the agency, what the requirements
are. And believe me, if there is anyone that is concerned about
complying with the rule of law, it would be the folks down at
the CIA.
Senator Feinstein. It would just seem to me that everybody
should be on the same page. The decision made no exception for
anybody. I, for one, very much appreciated what the Secretary
of Defense did, with Secretary Englund did.
Attorney General Gonzales. Again, without confirming
anything that the CIA may be doing, of course, if you look at
just the raw numbers of individuals within DoD who are
involved, day-to-day, with members of Al Qaeda, certainly,
apparently the Department of Defense believed it was
appropriate, if not necessary, to simply remind everyone about
this decision.
Senator Feinstein. All right. I got the message.
The message is, you do not feel it is appropriate to remind
everybody about the decision.
Attorney General Gonzales. No, ma'am. I did not say that.
What I am saying, is I am not aware that the CIA believes that
such guidance is necessary. There may be a number of reasons
why they believe it may not be necessary.
And, quite frankly, Senator, they may have sent out
guidance that I am not aware of. It is possible that they have
sent out guidance and I simply am not aware of it.
Senator Feinstein. All right. Thank you.
In his testimony before this Committee last week on Hamdan,
Acting Assistant Attorney General in charge of the DOJ's Office
of Legal Counsel, Mr. Bradbury, stated, ``The court did not
address the President's constitutional authority and did not
reach any constitutional question.'' He then repeated the same
sworn testimony the next day in a hearing before the House
Armed Services Committee.
Is it really the position of the Department of Justice that
Hamdan did not issue a constitutional ruling on the Separation
of Powers Doctrine?
Attorney General Gonzales. You know, Senator, that is a
very good question. It is one that I have been wrestling with.
I think the bottom line for me is, it did not. In fact, I think
there is a statement, even by Justice Stevens, where he says we
do not have to reach that constitutional question. But oddly
enough--I believe I recall, and I may be wrong--he says
Congress has already said something in this area.
I have a hard time following the analysis. I think at the
end of the day, my ultimate conclusion is that the court
decided this on fairly narrow grounds, on statutory grounds,
and did not take a position on the constitutional authority of
the President here, and the Congress, vis-a-vis military
commissions. So, that is my view.
Senator Feinstein. All right.
I know that Senator Schumer sent you a letter and received
a response from Will Maciella, asking you to explain why the
reasoning in Hamdan does not also apply to the NSA domestic
surveillance program.
In the letter to Senator Schumer, Mr. Maciella stated that
DOJ's initial impression is that the court's opinion does not
affect our analysis of the terrorist surveillance program
because, in part, Congress ``left open the question of what
rules should apply to electronic surveillance during war
time.''
Now, Congress did not leave the question open. FISA
explicitly says that warrantless surveillance can continue for
only 15 days after a declaration of war. Now that you have had
an opportunity to examine Hamdan, is it still DOJ's opinion
that it does not affect the legality of the TSP?
Attorney General Gonzales. Of course, there has been no
declaration of war here, so we cannot take advantage of that
particular provision. Our judgment is, it does not affect the
legality of the TSP program. But let me explain why.
Senator Feinstein. Oh. But if I might just interrupt you.
Then you are saying, clearly, that the AUMF does not carry the
full constitutional weight of a declaration of war.
Attorney General Gonzales. Yes, that is correct. When you
declare war, that affects diplomatic relations.
Senator Feinstein. I understand that.
Attorney General Gonzales. That maybe nullifies treaties.
So there is a reason why Congress has not declared war in 60
years, but they have authorized the use of force several times.
Clearly, there is a difference, yes.
Senator Feinstein. But you are creating a caveat now and
saying that the 15 days does not extend to the AUMF.
Attorney General Gonzales. No. What I said was, we cannot
take advantage of that provision under FISA because there has
been no declaration of war. Maybe I misunderstood your
question. I am sorry, Senator.
Senator Feinstein. Well, see, I think Congress did prepare
for that eventuality by providing the 15 days. You are saying,
well, it really does not apply. In essence, you are restricting
the AUMF, which I think should be restricted. So you are, in
essence, agreeing with my point.
Attorney General Gonzales. Well, I agree with your point
that the authorization to use military force is not a
declaration of war. That is certainly true.
Senator Feinstein. All right. So the President's plenary
powers are somewhat restricted then, anyway.
Senator Specter's new FISA bill eliminates the 15-day
window on surveillance outside of FISA after a declaration of
war, leaving unanswered the question of what a President could
do in that situation.
In Hamdan, the court assumed that the AUMF had triggered
the President's war powers. Would this combination, in your
opinion, give the President the ability to claim that Senator
Specter's bill gives him statutory power to conduct
surveillance outside of FISA until the end of the war on
terror, unless we repeal the AUMF?
Attorney General Gonzales. Senator, I am sorry. I am not
sure that I understand your question. I hesitate to ask you to
repeat it. If you do not want to repeat it, I would be happy to
try to respond in writing.
Senator Feinstein. Well, Senator Specter's new bill
eliminates the 15-day window on surveillance.
Attorney General Gonzales. Yes. It requires us now, at the
option of the President, to submit for constitutional analysis
to the FISA court whether or not it is constitutional.
Senator Feinstein. So essentially it gives the President
the ability, under that bill, the statutory power to conduct
surveillance outside of FISA for as long as the war on terror
continues.
Attorney General Gonzales. The President has already
committed that, if in fact legislation passes in a form that is
not otherwise unacceptable to the President, that he is going
to submit the program to the court and the court is going to
reach a conclusion as to whether or not the program is, in
fact, constitutional. So, we will have, at the end of the day,
a decision by a court saying what the President is doing is, in
fact, constitutional.
Senator Feinstein. All right. Let me continue on. Maybe
this is too obtuse.
Attorney General Gonzales. I apologize, Senator.
Senator Feinstein. That is all right.
The President is saying that if there is agreement without
amendment to Senator Specter's bill, he, in essence, will sign
the bill.
Attorney General Gonzales. I was not present in the meeting
with the Chairman and the President, but my understanding is
that, of course, if there were amendments made that are
acceptable to the President of the United States, that that
would not vitiate the agreement.
Senator Feinstein. Well, as I understand it, he will then
voluntarily agree to submit the domestic surveillance program
to the FISA court if the Congress passes the bill.
Attorney General Gonzales. Yes.
Senator Feinstein. My question is, why does he not submit
it now?
Attorney General Gonzales. I am not sure that the FISA
court has the authority, quite frankly. I think the FISA court
responsibility is to see whether or not an application comports
with the statute, the FISA statute. I think that this
legislation would be important in clarifying the responsibility
and jurisdiction of the court.
Senator Feinstein. Well, we are in open session, but I
really do not accept that because of past actions with respect
to the FISA court. I will not go into it. He could submit the
program to the FISA court. I think we are all prepared to take
care of any problems.
When you testified before us once before, you said, well,
it is too hard to prepare, it takes too long, we need to move
on an emergency basis. All of those are remedial problems.
Attorney General Gonzales. Senator, I beg your pardon. I am
going to go back and look at the transcript of your question. I
probably will want to modify. I want to make sure that I am
being as accurate as I can about what we are doing, because
there may be some things here that may affect my response.
Senator Feinstein. I would appreciate that, because the way
I view it, a very conscious effort has been made not to submit,
certainly, content collection to the FISA court.
Attorney General Gonzales. Senator, this is something that
you and I should have a conversation about.
Senator Feinstein. All right.
Now, several of us here, and especially those of us serving
on the Intelligence Committee--
Chairman Specter. Senator Feinstein, how much more time do
you want?
Senator Feinstein. Is my time up? It is. I will yield.
Chairman Specter. Thank you very much, Senator Feinstein.
Senator Feinstein. Thank you, Mr. Chairman.
Senator Schumer. Mr. Chairman? Just before you call on
Senator Kyl.
Chairman Specter. Senator Schumer?
Senator Schumer. I am at the back of the line here because
I came last, and that is fine. I have a 12:22 appointment on
the floor of the Senate to speak on stem cells. That is the
only time I get.
I know Senator Sessions still may want to ask questions, at
which point I could come back after that. But if we start a
second round, would it be all right for me to have my 10
minutes right when I got back at, say, 12:35?
Chairman Specter. Well, if we are here at that time. We
will arrange to be here then.
Senator Schumer. Great. Thank you, Mr. Chairman. I
appreciate that.
Chairman Specter. Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman.
Mr. Attorney General, now you know what the Senate means by
promising we will give you a warm welcome when you come up here
to Capitol Hill.
It is obviously a time when we can all share our
grievances, but I also want to share some kudos. The line
prosecutors that represent the Department of Justice, as well
as your very capable staff here in Washington, do a great deal
of work, especially relative to the war on terror that
sometimes goes unnoticed.
I just want to state for the record my appreciation for the
work that they do, and especially your acknowledgement that
some of the tools that we have helped to provide for the
Department of Justice to fight this war against the terrorists
have been put to good use, and I appreciate that.
Attorney General Gonzales. Thank you, Senator.
Senator Kyl. Mr. Attorney General, I have, I think, five
questions. One relates to a question that Senator Leahy asked
you.
On this rare occasion Senator Leahy and I appear to be in
agreement, therefore, I would ask you to be especially
attentive to this point, and that has to do with the Crime
Victims Rights Fund.
The intention here was that the money end of that fund be
spent for the benefit of victims. There is not nearly enough
money to meet all of their needs, yet everything above the cap
gets zeroed out and we have to start from scratch the next
year. It would be my hope that the Department of Justice would
support removing the cap so that the money that goes into that
fund, which I believe is the cap is $650 million.
I believe there is $1.255 billion in the fund, so there
would be another $605 million available. I would just ask you
to consider supporting a removal of the cap and not zeroing out
the money above the cap so that that can be spent for crime
victims. Would you be willing to consider that, please?
Attorney General Gonzales. I am obviously willing to
consider it. If you remove the cap, I am not sure if it is even
possible to spend that much money. Maybe a better approach to
consider would be raising the cap. But obviously we want to
help victims as much as you do, Senator, and we want to work
with you, and we will obviously consider it.
Senator Kyl. And I appreciate, there were some recent
proposals regarding staff changes, and so on, and you were very
attentive to the concerns that I expressed. Just raising the
cap would be of tremendous benefit here, if you would consider
doing that. I appreciate it.
Something else I would like to compliment your office on,
is the work now that has been done recently with respect to
Internet gambling, and especially the laws that prohibit sports
gambling, the Wire Act. I think, just yesterday, there was
another indictment announced relating to a bet on sports.com.
I wrote to you May 18, complimenting the office for an
indictment obtained against a William Scott and a Jessica Davis
of Solberry Limited and Worldwide Telesports, Inc. for
laundering about $250 million worth of Internet gambling wages.
The point here is, we have legislation that has just passed
the House of Representatives that would give further
enforcement mechanisms to not just the Department of Justice
and the States' Attorney General, but also enable the
Department of the Treasury to issue regulations to banks with
respect to how they honored these gambling debts of the
prohibited businesses, thus to help put them out of business.
The Department's statement of position in the House of
Representatives was in support of that legislation, although it
indicated that there were other changes that you would be
willing to discuss with us.
We are hoping to get that legislation up in the Senate.
There is not a lot of time. But I appreciate the statement in
support of the legislation and would hope that the Department
would work with us in trying to get this important Internet
gambling legislation passed in this session of Congress.
Attorney General Gonzales. It is very important for us as
well, and we look forward to working with you on it, Senator.
Senator Kyl. Thank you very much.
Now, a third subject has to do with a complaint that I
often hear in my State of Arizona from the county prosecutors.
We have 15 counties, and there is a county attorney in every
county.
Well, I guarantee you that the four busiest are the
counties that border the international border with Mexico, as
well as Maricopa County, the seat of government in the State,
because much of the prosecution that has heretofore been done
by the U.S. Attorneys has had to be neglected because there are
simply too many cases being brought for the court time, the
number of attorneys available, the public defenders, the
judges. I mean, every aspect of the criminal justice system is
stressed.
We have just about doubled the number of Border Patrol
agents in the last 6 years, and so the number of apprehensions
is going way up. Over 10 percent of the people apprehended are
criminals, either wanted or have serious criminal records.
The amount of crime committed by and against illegal
immigrants is mushrooming, which makes it very difficult for
either the U.S. Attorney's office or the county prosecutors to
do their job. They complain that, because of the squeeze on the
U.S. Attorney's office, the U.S. Attorney is not able to
prosecute drug-related cases, for example, that in the past
they have prosecuted.
The common practice, of course, is to have a threshold, a
number of ounces, for example, of marijuana or cocaine that
represents the threshold that will justify a U.S. Attorney
prosecuting the case. That threshold has continued to go up as
these cases have mushroomed.
I checked, because of these complaints by the county
attorneys, and in 2004, I worked with Attorney General
Ashcroft, who obtained an additional 10 spots for the U.S.
Attorney's office in the State of Arizona.
But because of budget cuts over the last 3 years, it has
now been reduced again by 10 percent and we are now worse off
than we were in August of 2004 when I was able to get those
additional 10 spots.
What I would ask you to do, is this. Considering the
extraordinary pressure as a result of the failure of the
Federal Government to be able to adequately enforce our border
with Mexico, would you and would the Department of Justice be
willing to support, both in next year's budget, but also in a
supplementary way, additional funding to add U.S. Attorneys, as
well as other necessary components to our Federal criminal
justice system, both to meet the Federal needs, as well as
relieve some of the burden that has been placed on our State
law enforcement officials as a result of this?
Attorney General Gonzales. Senator, of course, the
President, in the 2007 budget, has asked for additional
resources for U.S. Attorneys' offices, which, quite frankly, we
really need to have total funding with respect to U.S.
Attorneys.
There was additional moneys available in the supplemental,
which we very much appreciate. But the truth of the matter is,
we have had some issues because we have not had our request for
U.S. Attorney funding honored in the past, and we hope that
that is corrected.
There is no question about it, that I fear that the demands
on the Department, given the focus on apprehension, securing
our borders, closing our borders, at the front end, that at the
back end, we may have a serious problem, a serious problem for
the Department. It is one that we are looking at internally.
I am talking to the White House about this, expressing,
``guys, let us pay attention, not to just what happens at the
front end, but what happens at the back end.'' We cannot simply
be detaining someone or arresting them, and if we do not have
the resources to prosecute them, we do not have the resources
to put them somewhere, what good are we doing?
So it is something that I am worried about, and I know that
you are, likewise, concerned about. You are from a border State
and you understand the pressures there. So we are looking at
it, and obviously we want to work with you to try to find the
appropriate solution.
Senator Kyl. Well, great. I will take that as an offer to
perhaps meet with our appropriation legislators, as well as
others, to find a way to get as much funding as possible for
the Federal criminal justice system to meet this need.
Attorney General Gonzales. I will just say that of course
there are other priorities that have to be met, and other
issues we are tackling, like terrorism and things like that, so
we just have to find a way to accommodate all of those
priorities. It may mean that we have to be simply smarter, more
efficient, and more effective. But we are obviously happy to
talk with you about the best way we can find to solve this
problem.
Senator Kyl. Well, somebody has likened this to the pig and
the python: it has got to go through the system once. As you
point out, you have hired more Border Patrol and they apprehend
more people, and a bunch of them are criminals and they have
got to be prosecuted.
There is no alternative but to prosecute them. That has to
be one of our highest priorities. In our oaths of office and in
the establishment of our government, the security of the people
is the first responsibility of the Federal Government. That is
both from threats without and threats within.
Given the Federal nature of some of these crimes, it seems
to me that that is a top priority. I would certainly hope that
you would work with us to increase the funding on that.
Let me just close. I would like to ask you to just submit
for the record for me a brief statement of your position with
respect to limiting the kind of habeas rights that American
citizens have to detainees in places like Guantanamo Bay, if
you could just give us a short statement on your views with
respect to that and the legislation that Congress passed.
Then, finally, I would just ask if you are supportive of
legislation that I hope we are about to get through the Senate
dealing with child crime and some ways of fighting that,
including an establishment of a national registry of the people
who have been found as abusers throughout the various States as
a means of helping to protect children when the abuser moves
from State to State. If you are familiar with that, could you
express an opinion on that, please?
Attorney General Gonzales. Well, we support it. It is a
serious issue. We ought to be doing, I think, more to protect
our kids. We support this effort. I would be happy to submit,
for the record, my views on habeas challenges for aliens held
at Guantanamo.
Senator Kyl. I thank you very much, Mr. Attorney General.
Chairman Specter. Thank you, Senator Kyl.
Mr. Attorney General, I have been advised by your staff,
through my staff, that you would prefer to finish before the
luncheon break, and we will try to accommodate that.
Attorney General Gonzales. If it meets with your schedule,
Mr. Chairman.
Chairman Specter. Well, we are going to try to accommodate
that. It is not possible to say how many Senators will appear.
It looks as if we are about to finish, and then more Senators
exercise their right to come back when their time is close.
Senator Leahy and I each have a second round, and it may
well be that there will be no other second rounds. Senator
Schumer, as you know, will be returning here shortly after
12:30 to have his round. So, I think there is a realistic
expectation that we could finish before 1, that is, subject to
other Senators not coming in to request a second round.
Mr. Attorney General, coming back to the point of departure
from my first round, you said it was a last resort to have a
contempt citation and a jailing of New York Times reporter
Judith Miller for 85 days. I questioned that in the context of
the issues which were before the grand jury at the time she was
held in contempt and incarcerated.
You have a question as to whether there ought to be a
privilege, generally. But if the Congress comes to the
conclusion on the Lugar bill to establish a Reporter's Shield,
we may well make an exception for serious national security
cases. I am not sure, but if there is to be an exception, it is
my judgment that that would be the only one.
Now, if you start off with the grand jury investigation on
the issue of the outing of an undercover CIA agent, Valerie
Plame, and when that issue is no longer in the grand jury
investigation, as it was not, then it seems to me that it is an
entirely different situation when you are looking at perjury
and obstruction of justice, not to say that those are not
serious offenses, but they do not rise to the level of a
serious national security issue.
Now, if the Congress comes to the conclusion that the only
exception to the Reporter's Shield would be a serious national
security question, would you think it appropriate to proceed
with a contempt citation and incarceration of a reporter in the
context that the charge is perjury and obstruction of justice?
Attorney General Gonzales. You mean, following the passage
of legislation that would provide that sort of immunity to a
reporter?
Chairman Specter. A shield, yes.
Attorney General Gonzales. It seems to me, at that point
the courts would have to look at that. What the courts decided
was that there was not otherwise a shield and that, therefore,
she had to come forward with that information.
But if the Congress says there should be such a shield,
limited only for national security reasons, it seems to me that
that would be something the court would have to consider, and
would consider.
Chairman Specter. Let me move, now, to signing statements,
Mr. Attorney General. There are a couple of more subjects I
want to take up with you.
The Constitution, as we all know, provides that when the
President disagrees with legislation sent by Congress, he
vetoes it. What is the legal authority for the President to
decide which provisions he will enforce and which provisions he
will not enforce, to cherry-pick on legislation?
Attorney General Gonzales. Sir, his authority is the oath
of office that he takes to preserve, protect, and defend the
Constitution. With or without a signing statement, all a
President can do is to preserve, protect and defend the
Constitution.
So if there is a statute that is passed that is subject to
different interpretations, he has an obligation under his oath
of office to interpret that statute and to have that statute
enforced in a way that he believes is constitutional. That is
his duty under his oath of office.
Signing statements have been around since Thomas Jefferson.
There is nothing unusual or unique about signing statements. It
is a way for the Executive to communicate to the Congress, to
communicate to the executive branch, and to communicate to the
public about his views about legislation.
Chairman Specter. If the President finds portions of the
legislation unconstitutional, would it not be preferable, in
his oath to uphold the Constitution, that he follows the
constitutional provision to veto the bill, and say to the
Congress, send me a constitutional bill?
Attorney General Gonzales. That is certainly an option for
the President of the United States.
Chairman Specter. How many options does he have?
Attorney General Gonzales. Well, sir, I think what he wants
to do, as much as he can, is respect the will of the Congress.
To veto the bill means everything about the legislative will is
gone.
But there may be a particular provision in a massive piece
of legislation that may be subject to a different
interpretation, and I think it would be more disrespectful to
the Congress to simply veto that legislation, to veto all of
that work, when, in fact, we can maintain the will of the
Congress subject to the President upholding his constitutional
authority.
Chairman Specter. I think you are wrong on your evaluation
of what the Congress would conclude represented respect for the
Congress. I think the Congress would prefer a veto and battling
it out within the constitutional confines of a veto, as opposed
to a cherry-picker.
Let me move on to the issue--
Attorney General Gonzales. Can I make one final point, Mr.
Chairman?
Chairman Specter. Sure.
Attorney General Gonzales. With or without a signing
statement, I do not think would alter this President's actions.
With or without the signing statement, subsequent to the
signing of the legislation, he is going to interpret the
legislation in a way that he believes is consistent with his
oath of office, and I believe every President would do that.
Chairman Specter. Well, that comes back to the idea that,
if he thinks a bill is unconstitutional, to veto it, unless
Congress sends him a constitutional bill.
Let me move back to the electronic surveillance program and
the issues as to how we are going to get it submitted for
judicial review.
Does the provision in the Foreign Intelligence Surveillance
Act, that it is the exclusive procedure for authorizing wire
tapping, have any impact at all on the President's Article 2
constitutional authority?
Attorney General Gonzales. Well, I think it would be one
factor. In applying the Youngstown analysis, you would see what
Congress has said in a particular area, what is Congress's
constitutional authority in a particular area, and what is the
President's constitutional authority in a particular area.
We believe, though, the statute contemplates Congress
otherwise giving approval for the President engaging in
electronic surveillance, and our position has always been that
the AUMF constitutes such approval.
Chairman Specter. Well, if you reject that, as almost
everyone else has, is it not your base contention that the
three Federal appellate positions--the Supreme Court has
reserved on the question. You are nodding yes.
Attorney General Gonzales. Yes, sir.
Chairman Specter. As to whether the President has inherent
authority to conduct warrantless wire taps. Three Federal
appellate courts have said that the President does, providing
he meets the balancing test.
So if a President meets the balancing test, which is the
test of Article 2 power, at least according to three Federal
appellate courts, then the provision of the Foreign
Intelligence Surveillance Act on exclusive procedure is
superseded by inherent authority, is it not?
Attorney General Gonzales. That is correct, sir. I think
that was the finding of Judge Silberman in In re: Sealed Case,
which says, assuming the President has this constitutional
authority, based upon these other decisions by Circuit Courts,
FISA cannot encroach upon that constitutional authority.
Chairman Specter. Similarly, when there is language in a
statute which says nothing in this statute shall encroach upon
the President's Article 2 inherent power, that provision,
similarly, is meaningless, is it not, because the President has
whatever constitutional authority the Constitution says.
Attorney General Gonzales. It does not change the status
quo.
Chairman Specter. It cannot change the status quo. But we
have a lot of arguments. The President's negotiations insisted
on putting in a provision, that ``nothing in this statute shall
affect the President's inherent constitutional authority,''
where nothing can, just like those who want to modify the FISA
Act, want to put in, FISA has exclusive authority, which does
not affect whatever the constitutional power of the President
is.
May the record show that the witness is nodding in the
affirmative. Now, you were nodding in the affirmative?
Attorney General Gonzales. Yes, sir.
Chairman Specter. All right.
When Senator Feinstein asked you, why does the President
not submit the program to the FISA court, you accurately
answered, I think, that the court does not have jurisdiction,
but there would be a grant of jurisdiction by the bill.
Now, the question that I come to, Mr. Attorney General, is
how to have the rule of law govern, and how to have a core
review of the constitutionality of the program, while
maintaining its secrecy. The FISA court has an unblemished
record for not leaking, and it has expertise.
We had a series of hearings--four to be exact--and at one
of them, four former judges of the Foreign Intelligence
Surveillance Court looked at the proposed legislation, made
improvements in it, and said that the FISA court would be well
qualified and well suited to make a determination on
constitutionality.
Now, for us to pass a statute conferring jurisdiction on
the FISA court, we are going to have to have the concurrence of
the President, unless we can override a veto, which is a total
impossibility, given the complexion of the House and Senate.
The President is getting something from the statute in
terms of increased flexibility, 7 days instead of three; you
can delegate the authority; if a call both originates and ends
overseas, it could be construed as being subject to FISA if a
terminal is in the United States. We clarify that point.
There may be revisions, as you have noted, if they are
acceptable to the President. I think Senator Feinstein makes a
good point, retain the 15 days. There can be improvements,
subject to agreement by the President.
So in the search for a way to get the President to make the
commitment to give the FISA court jurisdiction, it has been
necessary to accommodate compromises, necessarily.
But the bill does not expand on the President's
constitutional authority because the statute cannot do that. It
does give the President greater flexibility. And
understandably, he did not want a legislative mandate, which
the statute initially included that he had to submit it.
He understandably said, no, that would encroach upon the
institutional powers of the President and could bind a future
President, although, again, it is doubtful if any statute can
bind any President, because of whatever Article 2 power he has,
or she has.
I do believe that a significant precedent would be created
if we worked this out and the President fulfills a commitment
to refer to FISA, conditioned on the statute being possed as
negotiated.
The future President would look back and note what
President Bush did, and he would not be bound by what President
Bush did, but it would be a very solid precedent, which would
weigh in public opinion as a political issue, do you not think?
Attorney General Gonzales. Mr. Chairman, this is a very
significant effort. I appreciate and applaud your efforts in
this respect, because it is an important program.
We need to find a way to continue the program, but do it in
a way where everyone is comfortable regarding the legalities.
This is an opportunity to present it to Federal judges and let
them tell us whether or not, in fact, we are meeting our
obligations under the Constitution.
Chairman Specter. Well, in the final negotiating session,
Mr. Attorney General, we missed you. It was worth attending.
Attorney General Gonzales. I got a report on it, sir.
Chairman Specter. Even if you had a non-speaking role, it
was worth attending.
In light of only Senator Leahy being present, I have
exceeded the red light, as a rarity.
Senator Sessions. I do not count, Mr. Chairman? I heard I
was a member of the Committee.
Senator Leahy. You do in my mind, Senator Sessions.
Chairman Specter. I would not have exceeded the red light.
If it is all right with you, Senator Sessions, I will yield to
Senator Leahy, then to you.
Senator Sessions. Thank you.
Senator Leahy. Attorney General Gonzales, there is nothing
stopping the President of the United States from submitting
that program today, just voluntarily, to FISA, is there? You
have talked about the enormous authority you feel he has. There
is nothing to stop him. If he wanted to do that, there is
nothing to stop him from doing that today, is there?
Attorney General Gonzales. Obviously, as a physical matter,
no. The President could submit an application, even knowing
that the court may not have any jurisdiction or authority to
rule on the application.
Senator Leahy. But you do not know whether they do or not.
There is nothing to stop the President. If legislation was
passed exactly the way he wants it written, which gives him a
whole lot of other benefits, he has agreed to submit it to the
court. There is nothing to stop him from submitting it to the
court today, is there?
Attorney General Gonzales. Sir, if the President of the
United States wanted to do that. But I think the approach that
the Chairman has outlined is a correct approach.
Senator Leahy. I understand that, because the President
gets so much on the other side. But there is nothing to stop
him from doing it today, if he wanted to.
Attorney General Gonzales. Well, again, the test would be
different. Under the current statute, the court would--
Senator Leahy. A minute ago, you said there was nothing to
stop him.
Chairman Specter. Let him finish.
Senator Leahy. Yes, I know.
Chairman Specter. He is saying things favorable to my bill.
Let him finish.
Senator Leahy. I know. But he is saying two different
things here.
Attorney General Gonzales. Sir, of course, if the President
wanted to submit an application, he could.
Senator Leahy. Thank you.
Attorney General Gonzales. It would be, perhaps, an effort
in futility, in that he would submit an application--
Senator Leahy. But you do not know that.
Attorney General Gonzales. [Continuing]. And seek an
opinion from the court.
Senator Leahy. But you do not know that. Attorney General
Gonzales. Well, if the court, clearly, does not have
jurisdiction, that would be one reason why you would not
submit.
Senator Leahy. Mr. Attorney General, on to another matter.
I will look at what I think are two different answers on that,
and I will pick the one I like, you pick the one you like.
I was in Vermont on July 15th, and I was reading a
Washington Post front-page story online that talked about a
series of bribery and smuggling cases and increased corruption
among Federal officers along our southern border. Last year in
Texas, 10 Federal officers were charged with taking bribes from
drug dealers and human smugglers. It was reported that 17
others were arrested for similar offenses in Arizona.
Now, the part that troubles me the most. Most of our border
agents are totally honest, dedicated, hard-working men and
women. But here is what I heard: the president of the National
Border Patrol Council says that agents that were trying to help
stem the corruption, those agents are trying to turn in the bad
apples in the barrel, were told to shut up and not make waves.
What are you doing to protect whistle-blowers who report
such unlawful conduct?
Attorney General Gonzales. These are Border Patrol agents,
sir?
Senator Leahy. Yes.
Attorney General Gonzales. Well, of course, they work for
DHS.
Senator Leahy. Yes. But you end up bringing prosecutions.
The Justice Department brings prosecutions. If somebody comes
to you with a charge, do you work to protect that whistle-
blower?
Attorney General Gonzales. Of course.
Senator Leahy. So you do not agree with whatever Federal
agents that were telling these people to shut up and not make
waves?
Attorney General Gonzales. Sir, I do not believe it is
appropriate to retaliate against whistle-blowers. I mean, we
want people to come forward. If they have information about
wrongdoing, I would like to know about it.
Senator Leahy. Are you actively investigating such
corruption?
Attorney General Gonzales. Sir, I am not aware of the
specific case you are referring to. We can get back to you and
let you know.
Senator Leahy. There were 17 in Arizona, 10 in Texas. Has
the Department of Justice been actively investigating?
Attorney General Gonzales. Sir, I do not know, but we can
find out and get back to you.
Senator Leahy. All right.
Now, a study by the Southern Poverty Law Center has drawn
attention recently to the infiltration of skinheads and white
supremacists into our military.
A Defense Department investigator was quoted recently as
saying that they know that recruiters are allowing these white
supremacists to join the Armed Forces, but the pressure is on
them to get recruits. Due to the unpopularity of the war in
Iraq, they are lowering, and lowering, and lowering the
standards.
What is most alarming, is this same Defense Department
investigator said that when he provided evidence of the
presence of extremists, 320 in the past year from one
investigator, commanders will not remove them. I worry about
this, because we saw what happened.
We always worry about terrorists outside of our country,
but we look at Timothy McVeigh, one of the worst terrorist
attacks here. He was an American, served in our military.
If Department of Defense is not going to remove these
extremists, and we have seen what has happened when they have
gotten out of hand, attacking, raping, killing Iraqis, at least
as the charges have now been brought in Federal court.
Are you involved at all in trying to stop these kinds of
people from getting into the military, or investigating them if
they are not removed?
Attorney General Gonzales. Sir, first of all, I do not know
about the story that you may be referring to or allegations
that the military is lowering its standards. I would find that
very hard to believe.
Senator Leahy. Well, if they had 320 incidences of this
found by one investigator in 1 year--
Attorney General Gonzales. Well, sir, it is a big military.
Again, I do not know whether or not those facts are even true.
But to the extent that someone has engaged in criminal conduct
and we are asked to participate, we do so.
But as a general matter, if you are talking about someone
who is in the military who engages in that kind of criminal
conduct, it is something that is investigated by DoD and
prosecuted by DoD, and not by the Department of Justice.
Senator Leahy. Going back to what you were saying about the
President introducing legislation, Senator Feinstein and
Representative Harman were briefed on the President's program
for warrantless wire taps of Americans. After the briefing,
they said the FISA statute, as currently written, could
accommodate everything NSA is doing.
Are they wrong? You know what the law is. You know what
FISA can do, and you know what is happening. Are they wrong
when they say that FISA, as currently written, could
accommodate everything NSA is doing?
Attorney General Gonzales. I have doubts about it.
Senator Leahy. You think they are wrong? Do you think
Senator Feinstein and Representative Harman are wrong?
Attorney General Gonzales. I think there is a serious
question as to whether or not FISA could accommodate what it is
that the President has authorized, quite frankly, Senator.
Senator Leahy. Will you be coming back in to talk to us
about changes in FISA?
Attorney General Gonzales. Sir, we are always happy to talk
about changes in the tools that we utilize to fight the war on
terror.
Senator Leahy. I know. But I love it, when we have a
hearing up here, where we actually get it answered that way.
Attorney General Gonzales. I would be happy to come by and
speak with you directly, one-on-one, Senator.
Senator Leahy. I think you ought to speak to the Committee
about this. If we are going to make changes, I would expect I
would certainly be reluctant to support any changes in the FISA
statute, unless I have heard clear evidence from you and others
of why it is needed, because I do find what Senator Feinstein
and Congresswoman Harman stated to be compelling.
Incidentally, there are press reports now that say that the
FBI has tracked the telephone calls of journalists, of wire
tapping journalists. The Christian Science Monitor recently
reported that the FBI may be using national security letters to
access the phone records of reporters at ABC News, New York
Times, the Washington Post.
Are you doing that? Are you monitoring the phone calls of
journalists?
Attorney General Gonzales. Well, I presume that it is
conceivable that somewhere in America there is someone who
happens to be a journalist that we believe has committed a
crime where there may be some kind of wire tap. But as far as I
know, and I do not believe it to be true that there is some
kind of program to engage in surveillance--
Senator Leahy. The Christian Science Monitor speaks of
reporters at ABC News, the New York Times, and the Washington
Post.
Attorney General Gonzales. I do not believe the story is
true.
Senator Leahy. All right. And you would know if it was
happening?
Attorney General Gonzales. I would hope so.
Senator Leahy. I would hope so. You are the Attorney
General.
Attorney General Gonzales. That is why I said I would hope
so.
Senator Leahy. All right.
You talked about bill signing statements that have been
discussed here. When the President signed the PATRIOT Act
Reauthorization bill, the second part of the PATRIOT Act, he
said in his signing statements that he did not feel obligated
to obey requirements in the bill to inform Congress about how,
and how often, the FBI was using expanded police powers.
I was one of those that fought very hard for the oversight
provisions to make sure that the FBI did not abuse the special
terrorism-related powers to search homes and to seize papers
that were given under the PATRIOT Act II.
Now, our laws specifically required oversight reporting to
the Congress. The President said in his signing statement that
he does not have to follow that. Is that the case? Or will the
Bush-Cheney administration fully comply with the reporting and
oversight provisions of the reauthorized USA PATRIOT Act?
Attorney General Gonzales. Senator, we are going to work
with the Congress to make sure that you have the information
that you need.
Senator Leahy. I wanted the specific reporting and
oversight provisions in the reauthorized PATRIOT Act. Will the
Bush-Cheney administration follow what is written in there with
those specific requirements?
Attorney General Gonzales. Sir, we are going to follow our
legal obligations. As you know, with respect to sensitive
classified information, Senator, sometimes there are
disagreements about whether or not you satisfy your reporting
obligations if you simply give the information to the Chair and
Ranking Member.
Senator Leahy. No, no. That is not my point, Mr. Attorney
General. That is not my point, and you know that is not my
point. The point is, it was written out very specifically in
the Act, after months of negotiation, including negotiation
with the administration, to get a bill that the President would
sign.
He signed it with great fanfare, said this would protect
us, and we are going to follow this law. But he then said he is
not going to follow all the reporting and oversight provisions,
which are very, very, very specific.
My question is very simple: taking those very specific
provisions, will the Bush-Cheney administration follow the law
or will they follow the signing statement?
Attorney General Gonzales. Sir, he will follow his oath of
office. That is all I can respond. We understand how important
it is to provide information to the Congress about what we are
doing. It has always been the case, however, that the President
of the United States has to make decisions with respect to
access to certain classified information. We are going to do
the best we can to work with the Congress.
Senator Leahy. Mr. Attorney General, there has always been
a provision, from the beginning of this country, that the
President is supposed to follow the law, and the President is
not above the law.
Attorney General Gonzales. That is certainly true.
Senator Leahy. Basically what the President is saying on a
lot of these signing statements, is I am not going to follow
the law. You and I have a strong disagreement on that, but the
fact is, he signed 700 of these, more than all other Presidents
put together. He is not following the law.
Attorney General Gonzales. That is not true. That number by
The Boston Globe is wrong.
Senator Leahy. What is the number?
Attorney General Gonzales. The Boston Globe retracted that
number.
Senator Leahy. What is the number then?
Attorney General Gonzales. I think the number is closer to
125 to 110. President Clinton signed 382 signing statements in
his 8 years of office.
Senator Leahy. President Clinton's signing statements were
usually oratory things, like press releases saying, is this not
great, we signed this bill. They did not say, we are not going
to follow the law.
Attorney General Gonzales. This administration will follow
the law, Senator.
Senator Leahy. At some point, this administration has to
reach a point to stop trying to blame everything on the Clinton
administration and to start taking responsibility for your own
mistakes.
Attorney General Gonzales. Yes, sir.
Chairman Specter. Thank you, Senator Leahy.
Senator Sessions?
Senator Sessions. Thank you, Attorney General Gonzales. As
I have the numbers, this was not 700. The Boston Globe did
retract those numbers. President Bush's signing statements,
when they deal with actual constitutional issues on which the
President has suggested that there may be a constitutional
limit to how far the language of the bill should be
interpreted, his numbers are less than what President Clinton
did. Is that your understanding? President Bush had even more.
Ronald Reagan had quite a number.
This is not an unusual thing for a President to explain, as
the chief law officer, how he will enforce problematic,
constitutionally dubious, or gray area statutes. Is that right?
Attorney General Gonzales. I believe that the actions of
this President are quite consistent with his predecessors. And
again, he has an obligation, whether or not he issues a signing
statement, to preserve, protect and defend the Constitution.
Senator Sessions. I agree. I just think this is much ado
about little or nothing. First, let me congratulate your
predecessor, Attorney General Ashcroft, the President of the
United States, and you as his chief counsel, his personal White
House counsel, for helping us go almost, what, 5 years now
without another attack since 9/11. Everybody was concerned
about more attacks coming any moment, from any number of
sources.
There still remain concerns that there might be sleeper
cells operating in this country this very date. I do not see
how anybody could deny that, do you? Is that not a possibility,
some that you may have inkling of and some that you may have no
inkling of?
Attorney General Gonzales. We clearly are safer today,
Senator, but we are not yet safe. I see it every morning in the
intelligence briefings. We have a very dedicated, very
dangerous, very smart enemy, a very patient enemy. Obviously,
we are fortunate to not have had an attack in 5 years.
Congress deserves credit for that, giving us tools like the
PATRIOT Act, giving us additional tools. Obviously, a lot of
the credit goes to our fine men and women in uniform, fighting
overseas. So, we have much to be thankful for. But make no
mistake about it: we have a very dangerous enemy.
Senator Sessions. I could not agree more. The President
told us early on that he intended to use all the powers, the
legal authority he had, the legal powers he had, to protect the
American people. I think the American people appreciate that.
We do not want him to go beyond his powers, but we expect him
to use what powers he does have to protect the people of this
country.
Attorney General Gonzales. That has been his directive. His
standard is that we do everything that we can do legally to
protect this country. Obviously, some of these issues are
tough. They present tough legal questions. In some cases, the
courts have said we have drawn the lines in the wrong place.
That is fine; that is what courts exist for.
But we make these decisions in good faith, based upon our
interpretation of precedent. When the Supreme Court says
otherwise, we conform our conduct because we are a country of
the rule of law.
Senator Sessions. Let us take the Hamdan case. You
authorized, or the President did, and the Department of Defense
also authorized, military commissions. Those military
commissions have been used since the founding of the Republic.
This Supreme Court, by a 5 to 3 ruling--really 5 to 4,
since Chief Justice Roberts had ruled the other way in the
lower court and had to recuse himself--concluded that military
commissions are legitimate to try the kind of people that were
being discussed as to be tried, but they suggested some
additional enhancements to provide a certain number of
additional protections. Is that basically the summation of
where we were in that case?
Attorney General Gonzales. Well, there was no question in
this decision about the ability to have military commissions.
What the court said was, in essence, if you are going to have
military commissions, however, they need to be uniform with the
Uniform Code of Military Justice, unless there is a practical
necessity for the difference.
The court rejected the President's determination that there
was a practical necessity in this particular case, but invited
the Congress and the President, if this was a tool that we
continued to believe was a necessary tool in fighting the war
on terror; to pursue legislation that would codify the
procedures that we would want to use.
Senator Sessions. The point is, the commissions, only by a
5 to 4 opinion, really were asked to be enhanced a bit and
provide some additional protections. I am just saying this to
the American people who are listening to some of the rhetoric
we have had here. They have suggested that the Supreme Court of
the United States completely rejected the administration's
position on military commissions. That is not a fair statement,
is it?
Attorney General Gonzales. That is not a fair statement.
Even with respect to specific procedures, there were some
concerns raised by four of the Justices about some of the
Department of Defense procedures for military commissions.
But there were not five votes indicating a concern or
expressing disapproval for any of the procedures that have been
promulgated by the Department of Defense. Nonetheless, I am not
sure how productive it is to reargue the case.
I think what we are all focused on, as I am sure you are,
Senator, is what to do, moving forward, to make sure that
military commissions remain available tools to the commander in
chief in a way that allows us to protect America and bring
terrorists to justice.
Senator Sessions. I would just mention also, Mr. Chairman,
we approved the National Security Division in the Department of
Justice, Mr. Wainstein. We have funded it and we still have not
confirmed him. We have Ms. Fisher in the Criminal Division, and
Steve Bradbury, a nominee for legal counsel. All of those are
critical positions in the Department of Justice. Do you not
need those people on quickly, Mr. Gonzales?
Attorney General Gonzales. Everybody wants to have their
own team. If you do not have a full complement of your team, I
do not think you can be quite as effective. So I think these
people do deserve to be confirmed, and I appreciate the work of
the Committee in getting Ken Wainstein and Alice Fisher out. We
need to now get them confirmed.
Obviously, I would respectfully ask that we get Steve
Bradbury out of this Committee. This is all very important
because they all play very critical roles, not just in the war
on terrorism, but other big issues that we have to deal with at
the Department of Justice.
Senator Sessions. Mr. Attorney General, we continue to have
this problem with local law enforcement and the funding through
Byrne-Grant and C.O.P.S.. I think those joint task forces--I
used to lead one to prosecute drugs locally, and the OCEDF
program, the local ones and the others. I think we are going to
have to get, next year in your budget, straight about how we
are going to fund the local law enforcement.
The C.O.P.S. program really should have already been
completed several years ago, as you noted. But that does not
mean that there might not be other, more effective ways to help
local law enforcement be more effective. So, just briefly, will
you talk with us about that and help us reach a happy
conclusion to this so we can make sure we are not ending
funding for local law enforcement? Sometimes Congress has
overruled the President.
Attorney General Gonzales. I am not sure how, in the time
remaining, I can help us reach a happy conclusion on this
particular issue, which is a tough issue, there is no question
about it. But I would be happy to engage in a dialog with you
long term, Senator, about how we meet the priorities of the
Department.
Obviously, the President is concerned about a deficit.
Obviously there are other big priorities as well. At the same
time, we understand that we are asking more and more of our
State and local partners. They have limited resources as well,
so we need to figure out a way to make all this work.
Senator Sessions. Mr. Attorney General, I am concerned that
in your written remarks there were no references to enforcing
immigration law. You have got to know that those of us who talk
to our constituents on a regular basis understand that the
American people are just aghast that we blithely go about our
business without enforcing the laws. And some of the comments
you made to Senator Kyl were a bit concerning to me.
So I guess my question to you is, are you committed to
working creatively and imaginatively to utilize resources that
you have, to ask for more resources if necessary, to make sure
that we have workplace enforcement, border enforcement, that
the organized groups that bring in people illegally, the
Coyotes and the document fraud people are brought to justice?
Frankly, as you know--I will not go through the list--we
have had an actual decline in prosecution in so many key areas
when it comes to work site enforcement, and even border
enforcement over the last number of years.
So let me just ask you, will you commit to us that you will
give the leadership and directive to make sure that we make
this system a lawful system instead of an unlawful system?
Attorney General Gonzales. Absolutely, Senator. We already
are doing that. The fact that it was not mentioned was an
oversight, quite frankly. It is something that I am concerned
about.
Obviously, we know that there may be limits on the amount
of resources available, and therefore we have already directed
the DAG to look to see what else we ought to be doing, what can
we do, to ensure that we are enforcing our immigration laws.
You are absolutely right; it sends the wrong signal when we
have laws on the books that are not being enforced. That is not
the way that it should be, so we have an obligation to try to
find ways to do a better job here.
Senator Sessions. I think Senator Kyl is correct. We are
going to need some additional resources in some areas, and in
some areas it simply has got to come from the top that these
are priorities.
Some of the cases, by their very nature, are going to be
misdemeanors or felonies with small penalties. Some Assistant
U.S. Attorneys think that is beneath their dignity. But if you
do not prosecute those cases, then you send a signal that you
basically, de facto, wiped out the statute. So we have got to
get better enforcement there.
One more thing about the reporter's privilege and that
concept. What we are dealing with is a circumstances in which a
reporter receives information from a person who violated the
law, violated the security standards of the United States. They
have given information to a reporter and that reporter then
publishes it to the whole world, including our enemies.
Now, it is my understanding, under aiding and abetting, the
statute is: aid, abet, counsel, or procure the commission of a
crime, or conspiracy. Either one of those could very well make
a reporter subject to prosecution.
Second, of course, and primarily, as you noted, the person
we should be focusing on is a government official who broke
their oath and actually set forth a chain of events that could
lead to publishing this information and giving it to someone
who is not authorized to receive it.
So I do not think you should dismiss the possibility that
reporters, simply, in top-secret matters involving the national
security of this country, they have to be subject to
prosecution if they violate the law.
Attorney General Gonzales. I did not mean to dismiss it. If
that was the message I conveyed, I apologize.
Senator Sessions. Well, it was not very strong.
Attorney General Gonzales. But again, Senator, as you
indicated, the focus has to be, as it traditionally has been,
on those in government. In many cases, they sign non-disclosure
agreements, so they breach these agreements when they disclose
this information. We hope to continue to work with the press to
persuade them not to publish.
Senator Sessions. Let me just follow that. The problem is
that it provides a perfect wall and a protection for the leaker
if the reporter is never required to testify and to reveal who
gave it.
Chairman Specter. Senator Sessions, how much more time
would you like?
Senator Sessions. Mr. Chairman, I did go over, but I
missed, by 1 minute, my second round. So I guess I will just
finish up with one further comment.
That is, if you are unwilling to challenge that reporter,
you may never be able to identify the person who may have
released information that led to the death or failure of the
foreign policy of the United States of America.
Attorney General Gonzales. I think that in certain cases,
that may be the last stop for the prosecution. If we cannot get
this information from the reporter, we cannot go forward with a
criminal investigation. I cannot imagine that the American
people would support that.
Senator Sessions. The Department of Justice manual puts
high standards on it. You do not do it lightly.
Attorney General Gonzales. Absolutely.
Senator Sessions. You do it very, very few times. But every
now and then, it may be necessary and I hope you will not
dismiss it.
Chairman Specter. Thank you, Senator Sessions.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman.
Thank you, General Gonzales.
I would like to continue in the subject of leaks and damage
to national security. Since September 11, there have been a
series of leaks of sensitive classified information reported in
the media.
Sometimes the administration condemns those leaks;
sometimes, however, the administration is completely silent.
Sometime the administration alleges that great harm was done to
national security; sometimes the administration says nothing.
Sometimes the administration publicly announces an
investigation into a leak; sometimes, however, the
administration appears to sweep it under the rug.
Now, I worry, frankly, that you and others in the
administration have engaged in a pattern of selective outrage,
and I worry that you and others in the administration speak out
of both sides of your mouth on the subject of leaks and their
harm to our National security.
When it serves your purpose, you condemn leaks; when it
does not serve your purpose, you do not. In fact, it is
reported over and over again that White House officials engage
in leaks, and that is part of Washington. But what is good for
the goose is good for the gander.
So with those concerns in mind, let me ask you a series of
questions. First, during your last appearance before the
Committee, Senator Biden asked you about what harm had been
caused by public disclosure of the NSA's warrantless
surveillance program.
This was your response: ``You would assume that the enemy
is presuming we are engaged in some kind of surveillance, but
if they are not reminded about it all the time in the
newspapers and in stories, they sometimes forget.''
That statement was astounding to me. It is like saying
banks should not advertise because it reminds bank robbers
where the money is.
Now, 6 months have passed. Do you have a more concrete
answer on how the disclosure that wire tapping is going on
harmed national security?
Attorney General Gonzales. Let me just say, Senator, my
comment that ``the more we talk about what we are doing to get
information about the enemy, the more we inform the enemy about
what we do'' should not be viewed as astounding.
This is something that the intelligence experts tell me is,
in fact, the case. It seems to make sense to me. Obviously they
know that we are engaged in surveillance. But if we talk more
and more about what we do and how we are doing it, we are just
going to help the enemy.
Senator Schumer. Well, how we are doing it is one issue.
Talking about it, which is what this article did, as I
understand it, simply said it was going on, and it had been
sort of known that it was going on before.
Sometimes I think the administration's high dudgeon, if you
will, is aimed at where the source, where the leak, appeared.
If it is the New York Times, it is terrible. If it is the
Washington Times, it seems to be all right.
So just be a little more concrete with me. How did that NSA
article, now 6 months later, hurt our National security? As I
recall, the article avoided specifics, avoided who, where, what
or when. It did not talk about the details, just revealed that
it was happening, something that had been known repeatedly.
Attorney General Gonzales. Well, sir, certainly since then
there have been 7 months of discussion about this program. Your
question, quite frankly, is one that can be better addressed by
the intelligence experts in terms of how it has been damaged.
All I can say is, in testimony before the Intelligence
Committee, both General Hayden and Director Mueller have
indicated that this is a very important program. It has helped
us identify terrorist plots. By talking about this program, we
have made it more difficult to gather intelligence about our
enemy.
And for the record, sir, let me just say, whether or not I
say anything publicly here on out, I condemn all leaks. So,
just for the record.
Senator Schumer. I know. But it is a lot different when
you, and the President, and the Vice President on that last
one, on banking, on following the money, the administration had
bragged about that previously. But all of a sudden it becomes
an issue. Many of us doubt the motivation here.
I want to ask you about specific leak investigations. There
appears to be little rhyme or reason to the administration's
approach. It is not one area or one type, again. It seems, to
the casual observer, that it is where the leak appeared: a
friendly newspaper is all right, a non-friendly, not all right.
Now, a review of the record leaves the impression the
administration is unconcerned about leaks of classified
information to certain media sources, and when the revelation
may have provided certain political advantage to the
administration.
So I have sent this letter to you with Congressman
Delahunt, who I have worked with on this, to you and to John
Negroponte, asking you to explain the classification and
declassification process and to correct any misimpression that
you are only selectively investigating leaks, that when it is a
leak you investigate all of them.
I will wait for written answers to the detailed questions
in that letter; I just hope it will not be many months.
But here is what I want to know now. How many leak
investigations are going on in the Justice Department right
now?
Attorney General Gonzales. I do not know the answer to
that. Typically, Senator, as you know, we do not confirm or
deny the existence of a leak. There is a process that we go
through before making a decision to initiate a leak
investigation.
In some cases, there may be what appears to be a leak in
the paper of a classified program, and we go through that
process. It may take a period of time before we are ultimately
in a position to make a decision that, yes, we should go
forward with an investigation.
Senator Schumer. Can you give me a ballpark figure? Are
there 100? Are there 5?
Attorney General Gonzales. Sir, I do not know. I really
cannot give you that.
Senator Schumer. Is every leak investigated?
Attorney General Gonzales. Not every leak is investigated.
Obviously the most egregious leaks are investigated.
Senator Schumer. Let me ask you this. How do we determine
which are the most egregious?
Attorney General Gonzales. Well, oftentimes, in most cases
it begins with a referral from the offended agency, in most
cases from the FBI and from the NSA or the CIA.
Senator Schumer. So do you make the decision?
Attorney General Gonzales. No.
Senator Schumer. Has the White House ever asked you to
investigate a leak?
Attorney General Gonzales. No. This is a decision made by
career folks down in the Criminal Division. Once we get a
referral, we normally submit an 11-question questionnaire to
the agency, have them answer the questions, and the answers
often dictate whether or not we move forward with an
investigation. That is a decision made by the career folks in
the Criminal Division.
Senator Schumer. So Dick Cheney, Karl Rove, or John
Negroponte has never called you up and said, please investigate
this leak?
Attorney General Gonzales. No.
Senator Schumer. It all comes from the bottom up?
Attorney General Gonzales. Yes.
Senator Schumer. What happened with the banking one where
the President and Dick Cheney publicly asked for an
investigation 2 days or 3 days after it was published?
Attorney General Gonzales. Well, listen. The fact that they
have asked for an investigation, this is something they say
publicly. But we have a process that we use internally. We will
initiate an investigation when we believe the circumstances,
based upon the recommendations of the career folks, are
warranted.
Senator Schumer. Let me ask you about some specific ones.
Here is an article from the Washington Times, which regularly
reports high sources. This one seems to me to have the kind of
detail that does compromise security, far more than the
articles that the White House has gone in high dudgeon about.
This one was from February 24, 2004, ``U.S. Search for Bin
Laden Intensifies.'' ``The Pentagon is moving elements of a
super-secret commando unit from Iraq to the Afghanistan theater
to step up the hunt for Bin Laden.'' It gives the name of the
task force.
It says, for instance, ``The Washington Times is
withholding some person's name because of the secret nature of
the operation.'' A lot of details here. Do you know if this one
was ever investigated?
Attorney General Gonzales. I know that that is a very
troubling story. I cannot tell you there has been a final
decision as to whether or not a formal investigation should
commence.
Senator Schumer. Wait a second. Sir, it occurs--
Chairman Specter. Let him finish his answer.
Senator Schumer. All right. I just wanted to--
Chairman Specter. He was right in the middle of his answer.
Go ahead.
Attorney General Gonzales. Well, let me just say, Senator,
you may have a very serious story like that, and then once we
begin looking at it, we may determine that there are a million
people that have access to that kind of information.
That would tell us whether or not, all right, does it make
sense to initiate an investigation when there are a million
interviews that we have to do. So, there are factors that we
have to weigh in deciding whether or not to initiate an
investigation, no matter how egregious it may look.
Senator Schumer. This one occurred. You said we have to
determine it. This one occurred two and a half years ago.
Attorney General Gonzales. And there may have already been
a decision on that, Senator. I just do not know, quite frankly.
Senator Schumer. Can you get back to us and let us know?
Attorney General Gonzales. If I can share that information,
I will try to do so.
Senator Schumer. Well, if you do, I would be happy to do it
in a top-secret setting, if you cannot share it publicly.
But here is what I want to know. Is there a standard? Is
there a pattern to any observer that this one does far more
damage than a general article in the New York Times saying that
we trace money in banks?
Attorney General Gonzales. It depends on the disclosure.
Senator Schumer. I did not hear the President talk--
Chairman Specter. Let him finish his answer, Senator.
Senator Schumer. No, no. I did not finish mine. I did not
hear the President talk about it. I did not hear the Vice
President talk about it. I never heard anybody get up on their
high horse about it. So the question I have is, what is the
standard? Is there a set standard? Does every referral get
investigated?
Attorney General Gonzales. No.
Senator Schumer. How is it determined if you get a higher
one? That is what I would like to know. Do you know the
standard that determines whether a leak is investigated or not?
Attorney General Gonzales. Again, Senator, we have this
process that we follow in virtually every case, and the
decisions are made by the career prosecutors in the Criminal
Division as to whether or not an investigation should be
initiated. A number of factors are weighed in deciding whether
or not an investigation should go forward.
One, I have already talked about, the number of people that
have access, the damage to the national security of our
country. So there are a number of factors that are weighed.
Ultimately, the decisions are made down at the Criminal
Division as to whether or not to move forward with an
investigation.
Senator Schumer. Right. How about this one? Congressman
Hoekstra. He is an ally of the President. He is a defender of
the President's efforts on the war on terror. He wrote a letter
concerning another government program that the President has
kept secret from Congress. He reportedly got that secret
information from--and these are his words--''government
tipsters.'' Is an investigation going on about those government
tipsters?
Attorney General Gonzales. I do not know.
Senator Schumer. Would you get me an answer to that?
Attorney General Gonzales. I will see what I can provide to
you, sir.
Senator Schumer. All right.
Mr. Chairman, I think I would make a suggestion, with all
due respect. We could use a hearing here on leak
investigations, how they are conducted, how they are started,
et cetera.
There are too many people--myself included--who think that
this is used as a tool to bludgeon certain papers in certain
instances, but it is not a uniform process that you see
proceeding apace in the government.
Now, maybe it is and maybe we just hear about certain ones
or others, but I think it certainly merits an investigation. So
I will send you a letter asking that maybe we have a hearing on
this particular issue.
Chairman Specter. Senator Schumer, it is an important
subject and we would be glad to consider where we go from here.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Specter. Senator Leahy has one more question.
Senator Leahy. Mr. Attorney General, I do not want people
to think we disagree all the time. We have a number of areas we
do agree, and I think this is one we probably agree on.
In August of 2000, President Clinton adopted Executive
Order 13166. That order improves access to Federal programs and
activities where people are limited in their English
proficiency. I have written the President about this, and I
recently asked the Commerce Secretary about this issue, when he
was before us. So I ask you, will the Bush-Cheney
administration continue to adhere--they presently are, but will
they continue--to the Clinton Executive Order 13166?
Attorney General Gonzales. I have no reason to believe that
we will not, sir.
Senator Leahy. Thank you. We have discussed this before. My
wife was born of immigrant parents and English became her
second language. My mother was born of immigrant parents, with
English as her second language. Fortunately, they learned it as
young people. But sometimes older people coming here could be
helped greatly with this. I appreciate that. I thought you were
sympathetic.
Attorney General Gonzales. Yes, sir.
Senator Leahy. I know Secretary Gutierrez was. I appreciate
that.
Attorney General Gonzales. Yes, sir.
Chairman Specter. Thank you very much, Mr. Attorney
General. You have been good, sitting through almost four hours.
You are to be commended for your stamina and your good cheer in
handling a lot of questions which have been direct and
difficult.
Attorney General Gonzales. Yes, sir.
Chairman Specter. I noted that National Public Radio had a
program on yesterday morning about your appearing here today,
and about the relationship between the Judiciary Committee and
the Department of Justice, and perhaps more pointedly, the
relationship between the Attorney General and the Chairman.
I do hope that NPR will replay the 4-hour hearing, because
I think it shows that while there is a certain tension, which
is entirely appropriate may the record show that the Attorney
General is nodding yes--when you have the administration,
Article 2, and the Congress, Article 1. I know the
administration would like to renumber the Constitution. Maybe
the administration already has.
Attorney General Gonzales. We have a great Constitution,
Mr. Chairman.
Chairman Specter. We have had a lot of questions for you,
but I think it is a fair assessment that it has been a very
civil proceeding. There are times, because of limitations,
where we do want to move on, and perhaps interrupt a little
more than we should, or perhaps not. You are in a position to
speak up and to defend yourself, and you are an experienced
lawyer. You are an experienced counselor. You are an
experienced judge.
You have responded to the questions, and we have tried to
frame them in a way which tries to get at positions, facts, and
understanding what it is the President wants to accomplish,
what it is the Department of Justice wants to accomplish, and
to give you our concerns and our views, which naturally do
differ from time to time, and especially in an era where there
have been as many difficult issues as we have had in President
Bush's tenure, really, since 9/11.
There are just a tremendous number of issues. There are
differing views. The separation of powers has never been more
sorely tested than it has been recently. It has been tested
sorely over the years on other occasions, but this ranks among
the real tests of separation of powers and our respective
responsibilities.
So we thank you, and we renew our request that NPR play our
session in its entirety.
That concludes our hearing.
[Whereupon, at 1:14 p.m. the hearing was concluded.]
[Questions and answers and submissions for the record
follow.]
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