[Senate Hearing 110-47]
[From the U.S. Government Publishing Office]
S. Hrg. 110-47
DEPARTMENT OF JUSTICE OVERSIGHT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JANUARY 18, 2007
__________
Serial No. J-110-3
__________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican 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............................................. 233
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement and letters............................... 247
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESS
Gonzales, Alberto R., Attorney General of the United States,
Department of Justice, Washington, D.C......................... 6
QUESTIONS AND ANSWERS
Responses of Alberto R. Gonzales to questions submitted by
Senators Leahy, Specter, Kennedy, Biden, Feinstein, Feingold,
Schumer, Durbin, Grassley, and Cornyn.......................... 67
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, New York, New York, reports...... 177
Ehrlich-Steele Democrats, Official Voter Guide, November 7, 2006. 210
Gonzales, Alberto R., Attorney General of the United States,
Department of Justice, Washington, D.C., prepared statement.... 212
Law deans and professors, joint statement........................ 246
Wall Street Journal, Jan. 12, 2007, article...................... 255
Washington Post, Jan. 13, 2007, article.......................... 257
DEPARTMENT OF JUSTICE OVERSIGHT
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THURSDAY, JANUARY 18, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 9:32 a.m., in
room 106, Dirksen Senate Office Building, Hon. Patrick J. Leahy
(chairman of the committee) presiding.
Also present: Senators Kennedy, Kohl, Feinstein, Feingold,
Schumer, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, and
Cornyn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. Thank you, all of you, for
coming.
We are in a different hearing room than usual, but Attorney
General, there was some interest in your testimony so we
expanded the room somewhat.
We are going to hold what I believe is an important hearing
to examine the operations of the Department of Justice. This
is, after all, the Federal agency entrusted with ensuring the
fair and impartial administration of justice for all Americans.
As I have always done, I take our oversight responsibility
very seriously. In the 32 years since I first came to the
Senate, and that was during the era of Watergate and Vietnam, I
have never seen a time when our constitution and fundamental
rights as Americans were more threatened, unfortunately, by our
own government.
This last weekend, the President and Vice President
indicated that they intended to override the will of the
American people as expressed in the most recent national
elections and ignore actions of Congress in order to escalate
the war in Iraq.
For years, the administration has engaged in warrantless
wire tapping of Americans, I believe, contrary to the law. I
welcomed the President's decision yesterday to not reauthorize
this program and to instead seek approval for all wire taps
from the Foreign Intelligence Surveillance Court, as the law
requires, as many of us have been saying should have been done
years ago.
Now, we must engage in all surveillance necessary to
prevent acts of terrorism, but we can, and should, do so in
ways that protect the basic rights of all Americans, including
the right to privacy.
To ensure the balance necessary to achieve both security
and liberty for our Nation, the President must also fully
inform Congress and the American people about the contours of
the Foreign Intelligence Surveillance Court order authorizing
the surveillance program, but also the program itself.
Regrettably, the administration has all too often refused
to answer the legitimate oversight questions of the duly
elected representatives of the American people. Unfortunately,
the Justice Department has been complicit in advancing these
government policies which threaten our basic liberties and
overstep the bounds of our constitution. Some of the criticisms
have been made by members of both parties.
The Department has played a pivotal role, in my view, in
eroding basic human rights and undercutting America's leading
role as an advocate for human rights throughout the world.
Last week, the world marked the fifth anniversary of the
arrival of the first prisoners at Guantanamo Bay, and they
marked that anniversary with protests. That facility has
replaced Abu Ghraib in the eyes of many, including some of our
closest allies, our best allies, as a symbol of repression.
For more than 2 years we sought answers from the Department
of Justice about reported--and in some instances documented--
cases of the abuse of detainess at Guantanamo.
I wrote to the Attorney General regarding press reports
that the Central Intelligence Agency has finally acknowledged
the existence of additional classified documents detailing the
Bush administration's interrogation and detention policy for
terrorism suspects.
I am glad that after initially refusing to provide any new
information in response to my inquiries, the Attorney General
wrote to me last week to say that he would work to develop an
accommodation that would provide the Judiciary Committee with a
sufficient understanding of the Department's position on legal
questions related to that CIA program.
But I remain disappointed that the Department of Justice
and the White House have continued to refuse to provide the
requests documents to the committee. The administration's
secret policies have not only reduced America's standing around
the world to one of the lowest points in our history, but these
policies also jeopardize the Department's own efforts,
ironically, to prosecute terrorism.
Last week, USA Today reported that the Department's
terrorism case against Jose Padilla is imperiled by concerns of
Mr. Padilla's treatment during his lengthy detention. The back-
and-forth designation as a defendant and as an enemy combatant
has eroded his mental capacity to such a great extent, he may
not be fairly tried.
After the administration and, I must say, the Republican-
led Congress, eviscerated the great Writ of Habeus Corpus in
just a matter of hours, eviscerated the great Writ of Habeus
Corpus not just for detainees but for millions of permanent
residents living in the United States, this Department of
Justice filed a legal brief expressly reporting that result,
raising the specter that millions living in the United States
today can now be subjected to definite government detention.
The shudder that sent was felt not only throughout our country,
but around the world.
This week, we commemorated the life and contributions of
Dr. Martin Luther King, Jr. Sadly, while the Department has
defended the constitutionality of the Voting Rights Act, I am
concerned it is backing away from the vigorous enforcement of
the Voting Rights Act that the President promised only a few
months ago. I know some of the Senators on this panel will have
questions about that.
In nearly 6 years in office, the Bush-Cheney administration
has filed only one suit on behalf of African-American voters
under Section 2 of the Voting Rights Act, the key section that
provides a Cause of Action for discrimination against minority
voters.
I am deeply concerned the Department of Justice is
retreating from its core mission to hold those who would
violate our criminal laws accountable. Now, last week the
President told us he plans to spend $1.2 billion more, on top
of the billions of dollars sent to Iraq for reconstruction.
But despite mounting evidence of widespread corruption,
contracting fraud, billions unaccounted for, the Department of
Justice has not brought a single criminal case against a
corporate contractor in Iraq, even though we know, just reading
the press, about the huge amounts of money in taxpayers'
dollars that have been stolen in Iraq.
The Department also has to do better at addressing the
dangers that Americans face at home. According to the FBI's
preliminary crime statistics for the first half of 2006,
violent crimes in the United States rose again.
It troubles me that, while this administration is more than
willing to spend more and more American taxpayer funds for
police in Iraq, it is cutting back funding for our State and
4local police at home.
I do not want to get into a debate on the Iraq war, but if
we can spend money to buildup police forces in Iraq and we have
to pay for it by cutting money for police forces in the United
States of America, there are a lot of us across the political
spectrum who think that is a Hobson's choice.
This committee has a special stewardship role to protect
our most cherished rights and liberties as Americans and to
make sure that our fundamental freedoms are preserved for
future generations.
So, there is much more to be done. I believe civil
liberties and the Constitution of this great country have been
damaged during the past 6 years. We will try to repair some of
that damage.
Attorney General Gonzales, I do thank you for being here. I
want to say that I hope that disagreements we may have do not
obscure my desire to work with you to make the Department of
Justice a better defender of Americans and their constitutional
rights.
We will talk about this later on. I know there are areas
that you will be speaking about this morning, about the
competence of immigration reform, other areas. Let us find
those areas we can work together. Let us repair some of the
concerns--justifiable concerns--Americans have.
I will yield the rest of my time.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
STATEMENT OF ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman.
We welcome you here, Attorney General Gonzales. The
Congress has worked coordinately with the President on the
major issues facing the country, the war against terrorism,
with the resolution authorizing the use of force, and this
committee structured the renewal of the Patriot Act, giving the
Department of Justice substantial additional authority to fight
terrorism.
As we have authorized executive authority, we have
simultaneously expressed our concern about the balance with
civil liberties. I was pleased to note yesterday that the
Department of Justice has revised the Terrorist Surveillance
Program and has brought it within the review of the Foreign
Intelligence Surveillance Court.
Your letter to Senator Leahy, the Chairman, and me noted
that you had been working on it since the summer of 2005. It is
a little hard to see why it took so long. We will want to
inquire further into the details as to the process that you
used.
I thank you for the extensive briefing which I received
yesterday from Steve Bradbury and Ken Wainstein, two very, very
able attorneys in your Department. There are questions which
remain unanswered.
I talked to them and they said they would get back to me
about a review of the affidavits submitted establishing what
you have concluded is probable cause, and the orders which have
been entered, and the review, which they represented to me,
that the Foreign Intelligence Surveillance Court is making.
Without discussing many of the details in an open session,
there is a question which was already raised publicly about
whether review is programmatic or individual. Your
representatives have said that it is individualized on the
warrants. In their description to me, I think we need to know
more on the oversight process.
With respect to the time delay, the disclosure was made by
the New York Times on December 16. It was a Friday. We were
wrapping up the Patriot Act. The disclosure of that secret
surveillance program was a major complicating factor. I think
had that not been noted, that we would have gotten that Act
finished before December 31 and I think it would have been
stronger in some material respects.
I believe that the United States and the administration
have paid a heavy price for not acting sooner to bring the
Terrorist Surveillance Program under judicial review. That is
the traditional way; before there is a wire tap or a search and
seizure, to have probable cause established and to have court
approval.
We lost a close election. I would not want to get involved
in what was cause and effect, but the heavy criticism which the
President took on the program, I think, was very harmful in the
political process and for the reputation of the country. So I
will be inquiring further as to why it took so long and what
could have been done further.
As you know, this committee was hard at work with
legislation which I had proposed and others had co-sponsored.
We had four hearings, and I think we could have been of
assistance to you if we had been consulted.
Turning to the issue of habeus corpus, I note in your
statement that the bills which have been introduced ``defy
common sense''. I do not think Chairman Leahy and I would
object to the characterization of the legislation which we
introduced jointly to reinstate habeus corpus.
I do not think we would object to your characterization
that our actions have defied common sense. But when you take a
look at what the Supreme Court has said on this subject,
Justice Stevens wrote in Rasul v. Bush, habeus corpus has been
applied to persons detained within the United States. It has
embraced claims of aliens detained within the sovereign
territory of this country.
It is a little hard for me to understand how the Writ of
Habeus Corpus, which goes back to the Magna Carta, can be
modified by any legislation when there is an explicit
constitutional provision that the Writ of Habeus Corpus would
not be suspended except in time of invasion or rebellion. No
one contends that either of those situations is present.
When you come to the issue of common sense, it goes beyond
Pat Leahy and Arlen Specter to Justice Stevens and the four
justices who joined him. It goes to Justice O'Connor in Hamdi
v. Rumsfeld, when she outlined that the Writ of Habeus Corpus
applies to every individual detained within the United States.
When your prepared statement cites the 1950 Supreme Court
decision under totally different circumstances in World War II,
any vitality of that decision is long gone with the recent
pronouncements by the Supreme Court of the United States.
The issue of the signing statements, Mr. Attorney General,
continues to be a matter of major concern. They came up in the
Patriot Act, which was very carefully negotiated with the
Judiciary Committee and the Department of Justice. Then the
President issues a signing statement saying that he is at
liberty to disregard provisions on oversight. It came up with
the McCain legislation on torture.
Now it has come up with the legislation on the postal
authority, where the President signed the legislation which
prohibited opening mail, and then issues a signing statement
that he retains the authority to do that.
If the President is asserting that the Act of Congress is
unconstitutional, then he ought to say so and not sign the Act.
But if he signs the Act, as provided in the Constitution that
the Congress presents him an Act, he has the choice of either
approving the Act or of vetoing it. Matters of that sort put a
very, very considerable strain on the relations between the
legislative and executive branches.
I wrote to you on November 20 requesting two memoranda
which relate to the subject of rendition. You were quoted in
the Chicago Tribune, saying that the decision on whether there
will be rendition depends on the likelihood as to whether there
will be torture or no torture, leaving open the possibility of
torture.
I discussed this with you personally, and then got, really,
a pro forma letter back from one of your assistants. My
suggestion to you, Mr. Attorney General, would be that when the
Chairman or the Ranking press a matter, write to you, talk to
you about it personally, that you ought to give it your
personal attention on a response.
I would suggest to you, further, that when you cite in your
letter to me that these are highly classified matters, that you
consider informing at least the Chairman and the Ranking
Member, as is the practice on the Intelligence Committee, which
I know in some detail, having chaired that committee in the
104th Congress.
I have a number of other points to make, but my red light
is now going on so I shall thank the Chairman and conclude.
Chairman Leahy. Thank you. Thank you, Senator Specter.
What we will do, after the Attorney General's opening
statement, we will have 7-minute rounds. The Attorney General
is going to stay here throughout most of the day. I understand
from the floor that the flurry of votes we had late last night
will not be repeated, certainly during the morning, so I would
urge Senators to stay within that time.
Mr. Attorney General, please stand and raise your right
hand.
[Whereupon, the witness was duly sworn.]
Chairman Leahy. I would also note that this is, of course,
an open hearing. We have television. We have 18 Senators, both
Republicans and Democrats, who have a constitutional duty to
their constituents, to their office to ask questions, and they
want to be heard. They want to have the answers heard.
Also, though, it is a public hearing and the public has a
right to watch what is going on. I understand that there are
people in the audience who wish to demonstrate their feelings
about things.
I would point out, however, that in standing, you are
blocking the views of people who want to hear this. I think, as
matter of politeness, you do want to give those people behind
you a chance to watch these hearings. One of the great things
about this country, is we have such hearings and people can be
heard.
Mr. Attorney General, please proceed.
STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE
UNITED STATES, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Attorney General Gonzales. Thank you, Mr. Chairman. I look
forward to our conversation this morning about the important
work of the Department of Justice.
The Department of Justice's responsibilities are vast, as
we all know, but our top priority continues to be the
prevention of terrorist attacks. At the Department of Justice,
every day is September 12th.
I expect that much of our discussion today will focus on
matters related to the war on terror. In particular, I expect
that you will want to discuss the letter I sent to Chairman
Leahy and Senator Specter yesterday regarding the President's
decision not to reauthorize the Terrorist Surveillance Program.
Court orders issued last week by a judge of the Foreign
Intelligence Surveillance Court will enable the government to
conduct electronic surveillance, very specifically,
surveillance into or out of the United States, where there is
probable cause to believe that one of the communicants is a
member or agent of Al Qaeda or an associated terrorist
organization, subject to the approval of the FISA court.
We believe that the court's orders will allow the necessary
speed and agility the government needs to protect our Nation
from a terrorist threat. I look forward to discussing these
matters further.
I hope that we also can discuss other non-terrorism
matters. I am keenly aware of the responsibilities that I have,
and that all of you have, that are not related to terrorism,
but nonetheless are of great importance to the American people.
First, I hope we can discuss a few things we can do
together to keep American neighborhoods safe from the threat of
violent crime, gangs, and drugs. The vast majority of this work
is done by State and local law enforcement agencies, but the
Department of Justice plays an important and unique role.
The Department's indictment last week of 13 members of the
MS-13 street gang is an excellent example of the good work that
is being done by the law enforcement community that works
together at all levels, State, local, and Federal.
Despite our increased focus on combatting terrorism,
investigating and prosecuting violent criminals remains a core
function of DOJ. Although the overall violent crime rate is
down, near a 30-year low, we have an increase in certain types
of crime in some areas of the country and this concerns me.
To better understand these increases, Department officials
have, over the last 2 months, visited 18 cities. In some of
these cities the violent crime rate had increased, while in
others it had decreased.
In each State, we met with State, local, and Federal law
enforcement, as well as with community groups, to discuss the
unique causes of, and responses to, crime in their city.
Although our analysis is not complete, it is clear that there
is no one-size-fits-all response. Every city is different. The
appropriate response to crime in each city depends on its
particular circumstances.
In the coming months, we will make policy recommendations
based on our research, the crime trends we identify, and the
best practices that have been developed.
Second, I hope we can discuss an emerging problem, the
abuse of prescription drugs purchased over the Internet, and
the things that we can do together to address this issue.
Prescription drug abuse is now the second-largest form of drug
abuse in the United States, and the only rising category of
abuse among youth.
Now, feeding this abuse is a proliferation of illicit web
sites that offer controlled substances for sale, requiring
little more than a cursory online questionnaire and charging
double normal price.
Make no mistake, these illicit web sites are not about
getting necessary medicine to this in need. We must preserve
legitimate access to medications over the Internet, while
preventing online drug dealers from using cyberspace as a haven
for drug trafficking.
I look forward to working with the Congress to ensure that
controlled substances are dispensed over the Internet only for
legitimate medical purposes.
Similarly, I look forward to working with the Congress to
protect our children from pedophiles and sexual predators.
Protecting our kids is a top priority for me as Attorney
General and as a father.
It is a shame that the Internet, the greatest invention of
our time, has provided pedophiles and child pornographers with
new opportunities to harm our children. This is a new and
evolving criminal law enforcement challenge that we are
addressing aggressively.
Last year's enactment of the Adam Walsh Act was historic,
and I want to thank the committee for its work on that
important bill. It is clear to me every day, however, that more
tools are needed.
I continue to hear from Federal, State, and local law
enforcement that they need access to the information that will
help us find online predators and child pornographers. There
are children to be rescued through the prosecution of these
dangerous criminals. I ask you to work with me this year on
this critical issue of protecting those who cannot protect
themselves.
I also hope that your desire to protect our Nation's
children from unthinkable sexual abuse will influence you to
reform the mandatory nature of Federal sentencing guidelines.
The advisory guideline system we currently have as a result
of the Supreme Court's Booker decision can, and must be,
improved. The Sentencing Commission has determined that, post-
Booker, in almost 10 percent of all cases involving criminal
sexual abuse of a minor, judges have given below guideline
sentences. Similarly, in over 20 percent of cases involving
possession of child pornography, defendants are being sentenced
below the guidelines' ranges.
Now, sentences should be fair, determinant, and tough. I
call upon this body to enact legislation to restore the
mandatory nature of the guidelines to ensure that our criminal
justice system is both fair and tough.
One of the last issues I want to present to the committee
today is the urgent need to reform our immigration laws. As the
grandson of Mexican immigrants and as a law enforcement
official, border security and immigration reform are close to
my heart and always on my mind.
The President and I believe that we can take pride in being
an open country and a Nation of immigrants, while also
protecting our country from those who seek to harm us.
I will conclude with one final, and I believe urgent,
request: please give the President's judicial nominees an up-
or-down vote. Currently, there are 56 judicial vacancies, half
of which have been designed as ``judicial emergencies''.
During the 107th Congress when Senator Hatch chaired this
committee, 73 Federal judges nominated by President Clinton
were confirmed, 15 of those were for the Circuit Court. I urge
this committee to treat President Bush's nominees at least as
fairly as President Clinton's were treated.
Thank you for the opportunity to appear before you. I am
happy to answer your questions.
[The prepared statement of Attorney General Gonzales
appears as a submission for the record.]
Chairman Leahy. Thank you, Attorney General.
You know, there has been discussion of signing statements
here. I would like to go into that area, first. I was deeply
disturbed by the President's recent signing statement for the
Postal Accountability and Enhancement Act. It suggests that the
Bush administration is opening Americans' mail without first
obtaining a warrant.
Now, when you appeared before this committee in February of
2006, I asked you whether the President believed that he had
the legal authority to open mail under the Authorization for
the Use of Military Force, AUMF, the authorization we gave to
go into Afghanistan and get Osama bin Laden, something I wish
had happened. You went to great lengths to avoid directly
answering my questions.
Last week, our exchange appeared in the Washington Post
editorial critical of the President's signing statements, and I
put a copy of the editorial up there. I will, at this point,
place it in the record.
I just believe from that I had asked you whether AUMF had
permitted the warrantless opening of mail.
You answered, ``There was all kinds of wild speculation out
there about what the President has authorized. What we're
actually doing, I'm not going to get into a discussion,
Senator, about hypotheticals.''
I responded, ``Mr. Attorney General, you are not answering
my question. Does this law--you are the chief law enforcement
officer of the country. Does this law authorize the opening of
First Class mail of U.S. citizens, yes or no, under your
interpretation? ''
You responded, ``Senator, I think--I think that, again,
that is not what is going on here. We are only focused on
communications, international communications where one part of
the communication is Al Qaeda. That is what this program is all
about.'' I said, ``You have not answered my question.''
Now, my concerns about this issue are not, as suggested in
our exchange, hypothetical. Thirty years ago, Congress placed
limits on the government's authority to open private mail after
the Church Committee found that the CIA and the FBI had been
illegally opening citizens' mail for years.
It turned out they were doing that because they found some
of these citizens were protesting the war in Vietnam, as many
did, or that some opposed discrimination against blacks in
America. The FBI and CIA were going to investigate why they
would take such ``terrible'' positions.
Now, surely there are circumstances when the government
should not have to wait for court approval to open mail, so it
can save lives or protect public safety, but we have a
provision in the law that allows you to do that.
But given the willingness of this President to ignore the
law, to claim extraordinary information-gathering powers in the
name of the war on terror, I think would deserve a straight
answer on this question.
You are the chief law enforcement officer of this country
so I ask you, is the Bush administration opening Americans'
private mail without a warrant, yes or no?
Attorney General Gonzales. Senator, the answer is no, but
let me flesh out the answer. I mean, obviously there may be
instances where either the sender or recipient may consent to a
physical search, so that possibility may exist.
But to my knowledge, there is no physical search of mail
ongoing under either the authority to use military force or the
President's inherent authority under the Constitution, except
as otherwise authorized by statutes passed by the Congress. For
example, there are provisions in FISA which would allow
physical searches under certain circumstances.
Chairman Leahy. I understand. You understand some of our
concern because of the willingness--and we may disagree on
this--of the administration to ignore FISA in wire taps. Are
you saying that they are following FISA in mail openings?
Attorney General Gonzales. What I am saying, Senator, is
that to my knowledge there is no ongoing physical searches of
mail under the authority we have claimed, under the
authorization to use military force, or under the President's
inherent authority under the Constitution as far as I know.
Chairman Leahy. Not ongoing. Has there been some?
Attorney General Gonzales. Not that I am aware of. No, sir.
Chairman Leahy. Does the President believe he has the
inherent constitutional authority to open Americans' mail
without a warrant?
Attorney General Gonzales. Now you are asking me to get
into an analysis that, quite frankly, the Department has not
done. What I would point you to is Justice Jackson's analysis
under Youngstown in terms of looking at the inherent authority
of the President, looking at the inherent authority of the
Congress in weighing those.
Chairman Leahy. But if you take Youngstown, we have laid
out pretty clearly what the authority is following the Church
Committee with FISA and everything else. Do you think the
President has authority under AUMF, notwithstanding the
requirements of the FISA statute?
Attorney General Gonzales. Senator, I am not prepared to
answer that question. I think for purposes of today's hearing,
I think it is important for everyone to note that, as far as I
know, there is no ongoing physical searches of mail under the
authorization to use military force--
Chairman Leahy. And there has not been? Attorney General
Gonzales. And, to my knowledge, there has not been any kind of
authorization of that nature.
Would you know if there was?
Attorney General Gonzales. I think that I would know, sir.
Yes, sir.
Chairman Leahy. Well, then why in heaven's name did the
President feel he needed to issue a signing statement?
Attorney General Gonzales. Sir, he issued that signing
statement to preserve the authority we believe exists under
FISA, under other statutes. So when you have got the President
signing a statute saying, this is the only way you can engage
in physical searches, the President wanted to preserve the
authority you gave to him under the other statute. That is the
purpose of issuing the signing statement.
Chairman Leahy. Mr. Attorney General, can you understand a
certain skepticism up here? It was done late in the week on
something that actually is a compulsory organization, has
nothing to do with FISA, in no way--in no way--goes into FISA,
no way adds to or undercuts FISA.
And then we see one of these signing statements that, late
in the day, kind of slipped out--in fact, most people did not
find out about it until about a week later--saying, oh, by the
way, I have the authority to just open your mail.
Do you understand why we might be just a tad concerned?
Attorney General Gonzales. Senator, from our perspective
there was a possibility of misconstruing the statute in a way
that would take away from the President existing authorities
that the Congress had given under other statutes, and the
President simply wanted to preserve the authorities that
Congress had already granted to him.
Chairman Leahy. Well, let me go into another area of this.
The FBI has always had the ability to issue national security
letters, and it has done that. But now we find, not from
anything that has been told to us in our oversight, but we find
from the New York Times--sometimes I wish it would just mark
the New York Times ``top secret''. We would get the information
quicker, in more detail, with the wonderful crossword puzzle at
the same time.
But they reported that the Department of Defense and CIA
have greatly expanded the use of non-compulsory national
security letters to acquire Americans' sensitive financial
records. There were 500 requests for financial records since 9/
11.
Why in heaven's name do we have the Department of Defense
and CIA spying on Americans? I mean, if we are going to be
doing that, if we are going to be doing it legally, it should
be done through your Department?
We have always tried to keep the Department of Defense and
the CIA outside our borders and not delving into the
Americans'--especially since Corantelpo and things like that--
lives. Why are they doing it? Why has the Department of Justice
not said, if there is a need for this, we will do it?
Attorney General Gonzales. Senator, I do not know if the
DoD activity, which appears to be permitted--there are at least
five NSL statutes, so whether or not this is a grand expansion,
I think perhaps it is an incorrect characterization.
There has been authority provided by the Congress for
certain law enforcement agents and certain agencies to engage
in the collection of these kinds of business records. That is
what we are talking about here, business records in the hands
of third parties. So there is no constitutional issue here, per
se.
Chairman Leahy. But it has always been the law enforcement
in the FBI. Law enforcement officials have done that, or those
normally involved in law enforcement. All of a sudden, we have
the CIA and the Department of Defense going into internal
American matters.
Does this not trouble you?
Attorney General Gonzales. If the stories are true, of
course it would be very troubling.
Chairman Leahy. Well, are they true?
Attorney General Gonzales. Sir, I do not know if they are
true or not.
Chairman Leahy. Did you ask?
Attorney General Gonzales. I do not believe that they are
true.
Chairman Leahy. Have you asked?
Attorney General Gonzales. I have not asked, personally, in
terms of whether or not the Department of Defense--
Chairman Leahy. But this is going into your normal
bailiwick. Why have you not asked?
Attorney General Gonzales. Again, Senator, I think by
statute the Congress has decided that certain agencies do have
the authority to engage in this kind of collection of
information.
Let me just remind you, you cannot use it for criminal
investigation. You cannot use it for domestic terrorism. You
can only use it in connection with espionage investigations,
and only with international terrorism.
So when you have DoD, who has bases all around the country,
they could be involved in an espionage investigation. Congress
has decided that they do have the authority to use national
security letters.
Chairman Leahy. Attorney General, in fairness to my
colleagues, I will come back to this, because I have used my
time. I also know that DoD has even gone and found Quakers who
protest, that somehow they are going to protect their bases.
Quakers tend to protest wars. It has happened a lot in this
country.
But before I turn it over to Senator Specter, let mention
that Senator Specter and I joined together in asking the Chief
Judge of the FISA court for copies of the decisions of that
court that you announced publicly on Wednesday. The court is
apparently willing to provide these decisions to the committee.
You have no objection to that, do you?
Attorney General Gonzales. Senator, I think that is a
decision that I would like to take back to my principal, quite
frankly.
Listen, let me just be real clear about this, however. I am
extremely proud of the work of the lawyers involved in trying
to get this application completed and this application
approved.
I somewhat take issue--it is hard for me to do--with
Senator Specter's innuendo that this was something that we
could have pulled off the shelf and done in a matter of days or
weeks. There is a reason why we did not do this as an initial
matter shortly after the attacks of September 11th.
The truth of the matter is, we looked at FISA and we all
concluded, there is no way we can do what we believe we have to
do to protect this country under the strict reading of FISA.
Nonetheless, because of the concerns that have been raised,
we began working in earnest to try to be creative, to push the
envelope. Where is there a way that we could craft an
application that might be approved by the FISA court?
So shortly after I became Attorney General I asked that we
redouble our efforts to see if we could make that happen, so we
have been working on it for a long time. It took a great deal
of effort, and I am very, very proud of the work of the
attorneys at the Department.
Chairman Leahy. I do not think I fully understand. Are you
saying that you might object to the court giving us decisions
that you publicly announced? Are we a little Alice in
Wonderland here?
Attorney General Gonzales. I am not saying that I have
objections to it being released. What I am saying is, it is not
my decision to make.
Chairman Leahy. No, but it is the court's decision, is it
not?
Attorney General Gonzales. Let me just make one final
point.
Chairman Leahy. Well, we are going to ask the court for
them anyway.
Attorney General Gonzales. I cannot remember what is in the
orders now, but certainly in the application there is going to
be information about operational details about how we are doing
this that we want to keep confidential.
That has been shared with Senator Specter. We have offered
to make that information available to you, Mr. Chairman. We
will continue to have a dialog to provide as much information
as we can about the operational details, but I am sure you can
appreciate the need to keep that information confidential.
Chairman Leahy. We are going to continue our request that
the court give us those decisions. They appear to be willing
to. If parts of it have to be in closed session, we will do
that.
Senator Specter, I am sorry.
Senator Specter. Thank you, Mr. Chairman.
Attorney General Gonzales, I have already noted my request
to your subordinates to see the applications, the Statement of
Probable Cause, and the orders. That is really indispensable
for our appropriate oversight responsibilities.
Your letter to Senator Leahy and me yesterday recites that
you have been on this since the summer of 2005. Now, I am not
entirely unfamiliar with the issues involved here, but I cannot
help but conclude that there has not been a sufficient sense of
urgency on the part of the Department of Justice to get this
job done faster.
I just do not see it as a 19-month undertaking. I say that
in the context which, as you know, I introduced legislation a
year ago on this subject to send this matter to the Foreign
Intelligence Surveillance Court.
I cannot understand why, in that context where I discussed
it with you personally, with your subordinates, and with the
President personally, that this committee and I were not made
privy to what was going on so that we could help you.
But we are going to pursue this to see if there is any
conceivable justification for more than a year and a half
elapsing. I have dealt with complicated matters and I do not
see a justification with a sufficient sense of urgency.
Let me move on to the disclosures 10 days ago about the CIA
and the Department of Defense conducting surveillance on
American citizens.
There is a very basic distinction between the role of the
FBI and the CIA. That is, that the CIA is overseas and the FBI
has exclusive jurisdiction over domestic investigations. On
that fundamental point Attorney General Gonzales, is that
distinction not correct?
Attorney General Gonzales. Senator, I do not recall what
the story said about the CIA's involvement.
Senator Specter. Answer my question as to whether--
Attorney General Gonzales. Yes, it is correct.
Senator Specter. It is correct. Well, then I, again, am at
a loss to see what the CIA is doing on domestic investigations.
Now, with respect to the Department of Defense, the
Department of Defense has no authority to investigate American
citizens. We have a Posse Comitiatus Act. We have very severe
limitations for the Department of Defense.
Is there any justification for the Department of Defense
moving into an area where the exclusive authority rests with
the Federal Bureau of Investigation?
Attorney General Gonzales. I think, Senator, again, my
reading of the statute is that they would have the authority to
engage in the investigation related to espionage.
Senator Specter. What statute?
Attorney General Gonzales. Either the Right to Financial
Privacy Act, two provisions of the Fair Credit Reporting Act,
Section 2709 of Title 18, and Section 802 of the National
Security Act.
Senator Specter. What do those Acts say about the
Department of Defense? Supply that answer in writing so we can
see exactly what you have in mind.
When I walked in this morning--no, no. It was not when I
walked in, it was after I walked in and was seated here. I got
a letter from Richard A. Hertling, Acting Assistant Attorney
General, Office of Legislative Affairs. Now, Mr. Hertling is a
good man. He used to work for me; I thought I had trained him.
This contains your responses to the hearing 6 months ago,
July 18 of last year. We have 186 pages. I am a speed reader,
Attorney General Gonzales, but not this speedy. There are lots
of issues I would like to ask you about. Can you come back
tomorrow so I have a chance to read this tonight?
Attorney General Gonzales. I will come back as soon as I
can, Senator.
Senator Specter. How about tomorrow?
Attorney General Gonzales. I will come back as soon as I
can.
Senator Specter. How about tomorrow?
Attorney General Gonzales. Well, Senator, let me--
Senator Specter. Is there any justification for dropping
this on us this morning?
Attorney General Gonzales. No, there is not.
Senator Specter. All right. I thank you for that direct
answer.
Attorney General Gonzales. I am disappointed at placing the
committee in that position. It should not have happened.
Senator Specter. On a couple of investigative matters,
Attorney General Gonzales, we had the Director of the FBI
before us in December. And I raised with him the issue of a
leak on an FBI investigation about Congressman Weldon shortly
before the last election. Director Mueller said that he was
``exceptionally disappointed'', and that it was ``unfair in
advance of an election.'' He is looking at an investigation
which might be a ``criminal'' investigation.
Will you advise this committee, or at least the Chairman
and Ranking Member, what the progress of that investigation is?
Attorney General Gonzales. I will certainly go back and see
what information we can provide. Let me also say, Senator, that
I was, likewise, very, very disappointed--angry--about that
leak. I do not care if it was before an election or whatever,
leaks relating to ongoing investigations should not happen.
I know that all the U.S. Attorneys were advised by the
Office of U.S. Attorneys that things like this should not
happen. I know that Alice Fisher, head of the Criminal
Division, notified everybody within the Criminal Division that
this kind of stuff is intolerable and should not happen.
Senator Specter. Attorney General Gonzales, will you inform
this committee, or at least the Chairman and Ranking Member,
about what is happening on the anthrax investigation which hit,
not close to home, but at home?
Attorney General Gonzales. Senator, Director Mueller, I
believe, has offered to give the Chairman a briefing. We are
waiting to try to accommodate the Chairman's schedule to make
that happen. We understand the frustration and the concern that
exists with respect to the length of time. This is a very
complicated investigation.
I know that the Director is very committed to seeing some
kind of conclusion in the relatively near future, and so we are
prepared to sit down and brief the Chairman with respect to the
progress.
Chairman Leahy. If the Senator would just yield a moment.
If there is going to be a briefing of me as Chairman, I would
want the Ranking Member included in that briefing. Obviously I
have beyond a professional interest. I have a personal
interest, insofar as somebody tried to kill me with those
anthrax letters, and the attempt killed at least two people.
One, I would like to know why I was singled out, but
mostly, for the now, I guess, five people who were killed and
several others who were crippled by that anthrax attack, I
would like the perpetrator brought to justice. This was on my
time, not on Senator Specter's.
Senator Specter. Well, let me reclaim just a little time,
Mr. Chairman, to finish up on this subject. The FBI has
resisted telling us what is happening in that matter.
We have had tremendous resistance from the Department every
time we move into what you claim is an ongoing investigation or
pending prosecution. Let me remind you of the commitment which
your Department has made.
I wrote to you and I wrote to Deputy Attorney General
McNulty referencing the standards set forth in extensive
memorandum by the Congressional Research Service, which
concluded that ``the Department of Justice has been
consistently obliged to submit to congressional oversight,
regardless of whether litigation is pending, and that the
oversight authority of the Congress extends to documents
respecting open or closed cases that include prosecutorial
memoranda, FBI investigative reports, summaries of FBI
interviews, memoranda, and correspondence prepared during the
pendency of cases.''
Then I asked Mr. McNulty, ``I would like your specific
agreement that the Department of Justice recognizes the
oversight authority of this committee.'' Mr. McNulty said,
``You have my agreement.''
Now, let me remind you, Mr. Attorney General, that we have
not had that agreement carried out. I cite the anthrax
investigation and the Weldon matter as two matters which have
attracted the attention of this committee, and would ask for
your responses specifically.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Next, we will call on actually the most senior of this
committee and nearest the Chairman of the committee, Senator
Kennedy.
Senator Kennedy. Thank you very much.
Welcome, General Gonzales. Many of us believe that the war
that we are fighting in Iraq today bears no resemblance to the
war Congress authorized in 2002. Our troops are being asked to
take sides in a civil war in a country where militias operate
with impunity, where sectarian violence is the norm, and where
ethnic cleansing is taking place neighborhood by neighborhood.
I do not believe any Member of Congress would have authorized
our involvement in a civil war.
I have introduced legislation to require congressional
authorization to escalate our involvement in Iraq. The bill
would prevent the President from increasing the number of
troops unless Congress authorized him to do so.
Article 1, Section 8 of the Constitution clearly gives
Congress the extensive power over a war. It gives it the power,
under Article 1, to lay and collect taxes, to provide for the
common defense, to declare war, grant letters of mark and
reprisal, make rules concerning captures on land and water,
raise and support armies, to provide and maintain a navy, to
make rules for the government, regulation of the land and naval
forces, to provide for calling forth the militia to execute the
laws of the Nation, suppress insurrections and repel invasions,
to provide for organizing, arming, and disciplining the
militia.
James Madison wrote, ``The Constitution supposes, but the
history of all governments demonstrate, that the executive is
the branch of power most interested in war and most prone to
it. It has, accordingly, with studied care, bested the question
of war in the legislative branch.''
So I have a letter here which I will share with you, and I
will ask that it be included in the record, from leading
constitutional scholars confirming that Congress has this
authority.
They say, ``Congress may limit the scope of the present
Iraq war by either of two mechanisms. First, it may directly
define limits on the scope of that war, such as by imposing
geographic restrictions or a ceiling on the number of troops
assigned to that conflict. Second, it may achieve the same
objective by enacting appropriations restrictions that limit
the use of appropriated funds.''
The letter concludes, ``Far from an invasion of
Presidential power, it would be an abdication of its own
constitutional role if Congress were to fail to inquire,
debate, and legislate as it sees fit regarding the best way
forward in Iraq.''
Now, my question, General, do you accept that Congress does
have the authority to prevent the President from increasing
troop levels in Iraq in the manner I have described?
Attorney General Gonzales. Senator, I do not know if I am
prepared to answer that question. I am prepared to say that I
have had many conversations about this, and I may have said
that during my confirmation hearings, I think if you look at
the framework of the Constitution, the framers clearly intended
that, during a time of war, that both branches of government
would have a legitimate role to play.
At the far end, you have got the power of the Congress to
declare war. I think at the other end you have the core sort of
commander-in-chief authority to say, take that hill. Then
things get kind of murky.
But, clearly, you recited certain provisions in the
Constitution which clearly provide Congress the authority to
raise and support armies, to provide and maintain a navy, the
power of the purse.
So, clearly, Congress does have a role to play in the
execution of the war. As to whether or not the legislation that
you were referring to would be constitutional, would be one
that I would have to evaluate under the Youngstown framework.
Senator Kennedy. All right.
But you recognize that when the Constitution says it may
limit, we are not talking about assigning battalions into
different field positions or we are superimposing a judgment on
the use of troops in any form, we are talking about the general
direction or the scope of the war.
As this memo points out, ``imposing the geographic
restrictions or ceiling on the number of troops assigned to
it,'' or it may achieve the same by enacting appropriations.
You do not deny that those two powers rest in the Congress.
As I understand your question, it is whether the
legislation conforms with that. Are you questioning whether the
Constitution gives us the authority and the power?
Attorney General Gonzales. Rather than giving you an answer
here without looking at the words as to the constitutional of
the Congress vis-a-vis the President during a time of war, I
would like the opportunity to look at it and respond back to
you.
Senator Kennedy. All right. I will make it available to
you.
I believe that the President needs to have congressional
authorization if he is going to invade Iran. What is your
position on that? Do you agree with me?
Attorney General Gonzales. I am not aware of any plans to
invade Iran.
Senator Kennedy. I am not asking whether he is planning to.
If he were to invade Iran, I believe that he would have to come
to the Congress for authorization.
Attorney General Gonzales. Senator, for example, if there
were an attack by Iran, I think the President would have
constitutional authority to defend this country. So there may
be circumstances where I am not sure that that would
necessarily be true. It would depend on a lot of circumstances
and factors that we would have to look at.
Senator Kennedy. I am not talking if it is an attack of
retaliation. It is clearly described in the Constitution, and
also in the War Powers Act. That is all clearly outlined, after
a great deal of debate and passage by Republicans and
Democrats, with a great time of deliberation.
I am asking, now, just as we are looking at the current
situation in Iran, whether it is your understanding, as the
principal advisor of the President on legal matters, that he
has a requirement to come to the Congress for an authorization
prior to the time of invasion?
Attorney General Gonzales. Well, again, I am not aware of
any plans to invade Iran, and I can assure you, in providing
advice to the President, I would make sure that he understood
that the Constitution does give to the Congress a role with
respect to the country going into war. Again, you are asking me
a difficult constitutional question absent of any facts that I
think would be important in providing an answer.
Senator Kennedy. Well, I think this is distressing and
disturbing to leave out there that somehow there are the
circumstances where you think that an invasion of Iran would
not require an authorization by the Congress of the United
States.
Attorney General Gonzales. Senator, I think we all
understand that. Certainly I understand that. My reading of the
interpretation of the Constitution, is with respect to the
country going into war, the country is better off when the
branches are working together. Clearly, the framers intended
that, with respect to the country being at war, being in
combat, that the Congress would have some role as spelled out
in the Constitution.
Senator Kennedy. My time is up. Thank you, Mr. Chairman.
Chairman Leahy. Senator Hatch.
Senator Kennedy. Oh, Mr. Chairman? I get 7 minutes. I
thought it was five. I have another 2 minutes. Excuse me.
General, I am disturbed by the pattern of the
administration of pushing policies and practice that trample on
the constitutional legal rights--we referred to those, or the
Chairman did, earlier--and then backing off or purporting to
back off when a court of law is about to rule against you or
Congress is about to act. This was done yesterday in announcing
that the warrantless wire tapping program be brought under
FISA.
We still have to learn more facts about that. After years
of insisting that it could not be, I am told you rushed to
court to argue that the most advanced challenge to that program
is now moot.
In the case of Jose Padilla, when he was detained
unlawfully for years, about to go to the Supreme Court, at the
last minute you charged him with crimes unrelated to the
allegations pursuant to which he had been held, and you have
done it in defending the use of torture.
You were nominated for Attorney General and then went back
and had the repeal of the old torture statute, the Bybee
memorandum, and then came up with a new torture statute and
went on for your confirmation.
All of the while, the administration was criticizing
raising the issue of the patriotism of individuals that were
critical of those actions, whether it was torture or whether it
was in these other areas, FISA and other areas.
This, I think, raises, as has been pointed out, time,
resources, and really squandered the support of the other
branches of government and the American people.
Your reaction?
Attorney General Gonzales. Senator, we have taken actions
that we believed were absolutely necessary. The President has
ordered actions that he believed was absolutely necessary to
protect the security of our country.
You mentioned our actions with respect to obtaining orders
from the FISA court. This was not motivated by the litigation.
We began this process well in advance of the disclosure of the
program, and thus well in advance of the litigation.
We began this action simply because the President believed
that there was no other alternative, there was no other way to
do it, no other way to protect this country, and because there
was a firm belief--and that belief continues today--that he
does have the authority under the Constitution to engage in
electronic surveillance of the enemy, on a limited basis,
during a time of war. That is consistent with tradition and
practice, and that is certainly not inconsistent with the
various Circuit Courts that have looked at this issue.
So I would simply say that the President at all times has
been motivated in terms of what he believes is the right thing
to do to protect this country in a manner that is consistent
with the Constitution and his obligation as the Chief Executive
and the Commander in Chief.
Chairman Leahy. Thank you.
Senator Hatch?
Senator Hatch. Thank you. Thank you very much, Mr.
Chairman.
General, welcome. I personally appreciate the service you
have given. I know you have inherited this job at one of the
toughest times in the history of the world, let alone our own
country. These issues are very difficult issues and there are
differing points of view with regard to many of these issues.
As we all know, that is why the Supreme Court is constantly
hearing constitutional cases, so they can determine whether one
side or the other is right, or just exactly what constitutional
principles to go with.
With regard to Iran, there are so many variable-fact
situations that you could conjure up where a president would
have an obligation to defend the country, so to just come out
and say, well, you cannot go to war with Iran without approval
of the Congress, I mean, that is such an over-simplification
that you cannot even discuss it constitutionally, other than,
it is an over-simplification. There are all kinds of problems.
In this world of terrorism where these people do not wear
uniforms, they do not represent a country, they basically
represent a minority ideology that is not embraced by the vast
majority of Muslim people in the world, and they do not care
about human life, including their own.
It is easy to sit back and criticize, but we live in a
world of real controversy and real difficulty. I think you are
in a very, very tough position here. From what I have seen, you
have done your very dead-level best to make sure constitutional
principles are followed and that the Justice Department handles
matters in a respectable, decent, honorable way, and I want to
commend you for it.
But let me just change the subject. You correctly
emphasized that the Internet has radically changed the world of
obscenity and child exploitation. We hear every day about child
exploitation in this country.
It has changed the way the material is produced, marketed,
distributed, and even used. It has been 21 years since the
Attorney General established a commission to study obscenity
and pornography to make recommendations for us. The Internet
did not even exist when the commission did its work.
Last September when you testified before the Senate Banking
Committee, my colleague from Utah, Senator Bennett, raised this
issue with you and you were open to considering it. I want to
repeat the suggestion here.
Will you consider establishing a new commission to study
this crisis and make recommendations, with a particular focus
on the Internet? I believe that the Internet is part of the
problem when we come to child molestation and some of these
issues that have been in the news every day for a long time.
Attorney General Gonzales. Senator, I have considered it. I
am willing to sit down with you and get your views about it. I
think we are doing a lot already in terms of, I established an
obscenity task force. We have got 52 obscenity convictions.
We had a training session down in South Carolina a few
months ago where a representative from every U.S. Attorneys'
Offices came. I went and spoke, Paul McNulty went and spoke.
The purpose of this was to emphasize the obscenity prosecutions
around the country.
Many of the recommendations of the Meese Commission, of
course, are reflected in laws passed under the PROTECT Act, the
Adam Walsh Child Protection Act, so I think we have done a lot.
I am, however, still very concerned about this issue and the
threat to our children. I characterize it as a battle. It is a
war and we need more resources. So, if we need the commission,
that is something I am happy to sit down and talk with you
about.
Senator Hatch. Well, I think you ought to consider it.
You mentioned the Adam Walsh Act just a minute ago, and
also in your testimony. That is one of the most important goals
we have enacted around here in a long time, and I commend you
for your support of it and for the help that you gave the
committee in the process.
Now, Title 5 of the Act includes language I introduced
strengthening the requirement that the producers of sexually
explicit material keep records regarding the age and identity
of performers. Now, the existing law, which covered one
category of child porn, had not been enforced and the Adam
Walsh Act extended it to cover a second category.
Has the Department issued new regulations for implementing
these recordkeeping requirements, and can you assure that you
will vigorously enforce this bill, and also any regulations
that are issued?
Attorney General Gonzales. Well, we already are enforcing
the provisions of 2257. We had a recent conviction with respect
to ``Girls Gone Wild''. So we already are making some progress.
You are right, the Adam Walsh Child Protection Act required
certain amendments to the law.
We are in the process now of getting those regulations
approved. I am pushing as hard as we can to get it done. But,
yes, sir, you have my commitment that we will vigorously
enforce the law.
Senator Hatch. Well, thank you. You have, in the past,
expressed concern that investigators in child exploitation
cases sometimes hit dead ends because Internet service
providers have not kept data that would help determine the
source of images posted on the Internet. How big a problem is
this for law enforcement, and is there something Congress can
do to help solve it?
Attorney General Gonzales. Well, it is a problem. You are
right. We have encountered investigations where the evidence is
no longer available because there is no requirement to retain
the data. Many ISPs do retain data for commercial purposes.
Let me just say, most ISP companies are great partners with
the law enforcement community, so I want to commend them for
their efforts.
However, those few cases where we need that information,
the question is, how do we maintain that evidence? So for that
reason I have had discussions with the ISP community, with
victims' groups, with privacy groups about whether or not it
makes sense to have some kind of legislation dealing with data
retention, not data retained by the government, but data
retained by ISPs that could be accessed through a court order
by the Department of Justice from a court judge.
I think that I would like to have a discussion with the
Congress about that. I know we are all committed to doing
everything we can to ensure the safety of our kids.
Senator Hatch. Well, let us work on it.
Now, General Gonzales, we debated this issue of
Presidential signing statements before. I wonder sometimes if
these debates have not provided more heat than light. Am I
right that this is not something invested by President George
W. Bush, but that many presidents have issued such statements?
Attorney General Gonzales. They began with Thomas
Jefferson, so there have been a series of presidents, including
President Clinton, who made great use of signing statements,
which represent only a dialog between the President of the
United States, the American people, the Congress, but primarily
the executive branch about the interpretations of certain
provisions and a piece of legislation that may be
constitutionally suspect.
Senator Hatch. Well, am I also right that top legal
officials in past administrations have repeatedly opined that
these signing statements can be used for various perfectly
legitimate reasons, and do these reasons include an explanation
of how the administration, the executive branch, which is
charged with enforcing or implementing the laws Congress
passes, will interpret and enforce a particular statute? Is
that not an accepted, legitimate use of Presidential signing
statements?
Attorney General Gonzales. That has been the uniform
analysis of the executive branch throughout various
administrations of both parties. I might also add that the
Congressional Research Service did a review of signing
statements and, likewise, concluded that they could not see any
inherently unconstitutional or inappropriate use of signing
statements by presidents.
Senator Hatch. Well, I think it is very important. My time
is up, but let me just make this one comment. I think it is
very important to be crystal clear about issues like the
signing statement we discussed earlier.
As I understand it, the President was preserving other
legal authority he already has. He was not asserting any new
authority. Is that a fair statement?
Attorney General Gonzales. That is correct. In fact, I
would think that the Congress and the American people would
want to know his thinking about legislation and his thinking
about the implementation of legislation. I mean, again, this is
a dialog between the President of the United States, the
American people, the Congress, and, of course, the executive
branch.
Senator Hatch. Well, thank you, General. My time is up.
Chairman Leahy. Under our rules of appearance, Senator Kohl
of Wisconsin would go next. But Senator Feinstein of California
is managing a bill on the floor. Senator Kohl, in his usual
gracious manner, has yielded first to her.
Senator Feinstein, you are recognized.
Senator Feinstein. Thank you very much. I want to thank my
friend and colleague, Senator Kohl. The bill goes up at 11, so
I very much appreciate this.
Good morning.
Attorney General Gonzales. Good morning, Senator. Good to
talk to you again.
Senator Feinstein. Thank you. Mr. Gonzales, let me speak as
a member of the Intelligence Committee for a minute. I want to
commend you for the action--the corrective action--you have
taken on the Terrorist Surveillance Program.
I believe bringing it into conformance with the law is the
right thing to do. In my briefings on the program, I believe
you are doing that. I think there are a couple of things
outstanding which we can discuss, but not in this forum. I just
want to say, I think it is overdue, but thank you for taking
that action.
Attorney General Gonzales. Senator, I just say that we
continue to believe that what has happened in the past, the
President's actions were, of course, lawful. But I think this
is a good step. I think involving all branches of government on
such an important program is best for the country.
Senator Feinstein. Thank you.
Now, let me ask you one question. One part of the letter
you sent to the Chair and Ranking Member said that the
President will not be reauthorizing the Terrorist Surveillance
Program following, I guess, the end of this 45-day period. What
will happen to it?
Attorney General Gonzales. Well, there will be no
``Terrorist Surveillance Program''. All electronic
surveillance, as defined under FISA, of the kind described in
the letter, international communications outside the United
States where we have reasonable grounds to believe that a party
to the communication is a member or agent of Al Qaeda or an
affiliate organization, that that will all be done under an
order issued by a judge in the FISA court.
Senator Feinstein. Thank you.
You and I talked on Tuesday about what is happening with
U.S. Attorneys. It spurred me to do a little research, and let
me begin. Title 28, Section 541 states, ``Each U.S. Attorney
shall be appointed for a term of 4 years. On the expiration of
his term, a U.S. Attorney shall continue to perform the duties
of his office until his successor is appointed and qualified.''
Now, I understand that there is a pleasure aspect to it,
but I also understand what practice has been in the past. We
have 13 vacancies. Yesterday you sent up two nominees for the
13 existing vacancies.
Attorney General Gonzales. There have been 11 vacancies
created since the law was changed, 11 vacancies in the U.S.
Attorney's offices. The President has now nominated as to six
of those. As to the remaining five, we are in discussion with
home-State Senators. So let me publicly sort of preempt,
perhaps, a question you are going to ask me.
That is, I am fully committed, as the administration is
fully committed, to ensure that with respect to every U.S.
Attorney position in this country, we will have a
Presidentially appointed, Senate-confirmed U.S. Attorney.
I think a U.S. Attorney, who I view as the leader, law
enforcement leader, my representative in the community, has
greater imprimatur of authority if in fact that person has been
confirmed by the Senate.
Senator Feinstein. All right.
Now, let me get at where I am going. How many U.S.
Attorneys have been asked to resign in the past year?
Attorney General Gonzales. Senator, you are asking me to
get into a public discussion about personnel.
Senator Feinstein. No. I am just asking you to give me a
number, that is all.
Attorney General Gonzales. I do not know the answer.
Senator Feinstein. I am just asking you to give me a
number.
Attorney General Gonzales. I do not know the answer to that
question. But we have been very forthcoming--
Senator Feinstein. You did not know it on Tuesday when I
spoke with you. You said you would find out and tell me.
Attorney General Gonzales. I am not sure I said that.
Senator Feinstein. Yes, you did, Mr. Attorney General.
Attorney General Gonzales. Well, if that is what I said,
that is what I will do. But we did provide to you a letter
where we gave you a lot of information about--
Senator Feinstein. I read the letter.
Attorney General Gonzales. All right.
Senator Feinstein. It does not answer the questions that I
have. I know of at least six that have been asked to resign. I
know that we amended the law in the Patriot Act and we amended
it because if there were a national security problem the
Attorney General would have the ability to move into the gap.
We did not amend it to prevent the confirmation process from
taking place.
I am very concerned. I have had two of them ask to resign
in my State from major jurisdictions with major cases ongoing,
with substantially good records as prosecutors. I am very
concerned because, technically, under the Patriot Act, you can
appoint someone without confirmation for the remainder of the
President's term. I do not believe you should do that. We are
going to try to change the law back.
Attorney General Gonzales. Senator, may I just say that I
do not think there is any evidence that that is what I am
trying to do? In fact, to the contrary. The evidence is quite
clear that what we are trying to do is ensure that, for the
people in each of these respective districts, we have the very
best possible representative for the Department of Justice and
that we are working to nominate people, and that we are working
with home-State Senators to get U.S. Attorneys nominated. So
the evidence is just quite contrary to what you are possibly
suggesting. Let me just say--
Senator Feinstein. Do you deny that you have asked, your
office has asked, U.S. Attorneys to resign in the past year,
yes or no?
Attorney General Gonzales. Yes. No, I do not deny that.
What I am saying is, that happens during every administration,
during different periods for different reasons. So the fact
that that has happened, quite frankly, some people should view
that as a sign of good management.
What we do, is we make an evaluation about the performance
of individuals. I have a responsibility to the people in your
district that we have the best possible people in these
positions. That is the reason why changes sometimes have to be
made, although there are a number of reasons why changes get
made and why people leave on their own.
I think I would never, every make a change in a U.S.
Attorney position for political reasons or if it would in any
way jeopardize an ongoing serious investigation. I just would
not do it.
Senator Feinstein. Well, let me just say one thing. I
believe very strongly that these positions should come to this
committee for confirmation.
Attorney General Gonzales. They are, Senator.
Senator Feinstein. I believe very strongly we should have
the opportunity to answer questions about it.
Attorney General Gonzales. I agree with you.
Senator Feinstein. I have been asked by another Senator to
ask this question, and I will. Was there any other reason for
asking Bud Cummings of Arkansas to resign, other than the
desire to put in Tim Griffin?
Attorney General Gonzales. Senator, again, I am not going
to get into a public discussion about the merits or not with
respect to personnel decisions. I will say that I have had two
conversations, one as recently as, I think, yesterday with the
Senator from Arkansas about this issue. He and I are in a
dialog.
I am consulting with the home-State Senator so he
understands what is going on and the reasons why, and working
with him to try to get this thing resolved, to make sure for
his benefit, for the benefit of the Department of Justice, that
we have the best possible person manning that position.
Senator Feinstein. All right. If I could move on quickly.
In 2000, the last year that the Bureau of Alcohol, Tobacco,
Firearms, and Explosives issued a report with an analysis, it
was revealed that 57 percent of all guns used in crimes in the
United States had come from 1.2 percent of licensed gun
dealers. In other words, the majority of crimes were not coming
from guns from the black market, but from a few licensed
dealers.
Now, this information was really quite useful. But starting
in 2004, the Congress added amendments on the CJS
appropriations bill restricting BATFE's ability to share gun
trade data with local jurisdictions.
In the 109th Congress there was no CJS bill, so therefore
the gun trace data effort died in the Senate. So, it is now
possible to provide this gun trace data to bona fide law
enforcement organizations on a local level.
As you know, murder has gone up. As you know, there are
real substantial problems. I think the murder rate in one city
in my State is 33 percent. It is a real problem out there, what
is happening.
My question is this: do you support allowing State and
local law enforcement to have access to BATFE gun trace data?
Attorney General Gonzales. Senator, I need to go back and
look at this because your question has confused me. It was my
understanding that we already are sharing gun trace data, State
and local, for law enforcement purposes.
My understanding is that certain State and local officials
wanted the information for non-law enforcement purposes. That
has been the issue. I am told by professionals at ATF that that
would jeopardize their law enforcement efforts. I am not sure
why that is the case. I am happy to look into it and get back
to you on that.
Senator Feinstein. But you do support gun trace data going
to governmental entities on the local level?
Attorney General Gonzales. For law enforcement purposes.
Senator Feinstein. For law enforcement purposes.
Attorney General Gonzales. Yes. And I believe that that is
ongoing, so that is why I am a little bit confused by your
question.
Senator Feinstein. All right. I think that is fair. I think
we need to check it out. But I know places where it has not
gone for law enforcement purposes, so I would be happy to talk
with you about that further. My time is up. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. I am just wondering, when we take our break
for lunch, would it be possible to get the numbers that Senator
Feinstein has asked for?
Attorney General Gonzales. The number? I think it is
possible. I will certainly--
Senator Feinstein. U.S. Attorneys asked to resign.
Attorney General Gonzales. Senator, that is information
that I would like to share with you. I do not want to have a
public discussion about personnel decisions. It is not fair,
quite frankly, to the people.
Chairman Leahy. We are just curious as to the numbers. I do
not care who they are.
Attorney General Gonzales. Yes.
Chairman Leahy. I want to know numbers. Thank you.
Senator Feinstein. That is fine.
Chairman Leahy. Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman.
Mr. Attorney General, first, let me say there have been
several stories--there was one in the Wall Street Journal
yesterday as a matter of fact--about U.S. Attorneys' Offices
prosecuting people in connection with Internet gambling.
I want to compliment you and the various offices that have
engaged in those prosecutions because they have begun to deal
seriously with a very difficult problem. Congress passed a law
at the end of last year that requires Treasury to issue some
regulations so that banks can more easily comply, and I hope
that your office will work with Treasury so that those can be
done quickly and effectively and that your office can continue
to engage in these prosecutions.
Attorney General Gonzales. It is my understanding, Senator,
that we have already initiated discussions, or have been in
discussions with Treasury, so that process is moving and
hopefully it can be completed in an expeditious manner.
Senator Kyl. Excellent.
You have taken quite a bit of abuse, I guess I would say,
at this hearing and in the media generally over a variety of
efforts that your office has been engaged in relating to the
war against terrorists, the TSP program, detainee, habeus
corpus issues, various prosecutions.
I suppose that is somewhat inevitable, and I suspect you do
not need any reminder that if there were another terrorist
attack on this Nation, probably that criticism would quickly
evaporate and instead you would be up here trying to answer why
you did not connect all the dots and why you were not more
vigorous in your effort to protect the American people, and so
on.
I suppose it is the nature of a body like the Senate always
to engage in that kind of second guessing, but I do want to
encourage you, notwithstanding this criticism which I know is
heartfelt and genuine in terms of the people who are making the
criticism, but I do strongly encourage you to continue to
perform your functions under the law as best you understand
them for the benefit of the American people, because this war
against these international terrorists is deadly serious. Much
of our protection will come from the efforts of the people that
work in the Department of Justice and the other agencies of the
U.S. Government.
Attorney General Gonzales. You have my commitment to that,
Senator. Let me say one thing in response to some stories that
I read. The President of the United States would not have
authorized the action that was disclosed yesterday if there was
any doubt in his mind that it would make the United States any
less safe.
He has been advised by the Director of National
Intelligence, by the Director of NSA, that this is something
that we can do and still maintain the same level of safety and
security for the United States of America. I mean, that is his
number-one priority and that is what we kept in mind as we
tried to find a way to bring this program under FISA.
Senator Kyl. Thank you, Mr. Attorney General. At any time
that you believe that you do not have the proper authority to
engage in what you believe are necessary activities to protect
the American people, I would expect you to come to this
committee and let us know.
I know there are some outstanding things you would like to
have us do that we have not done that would assist in those
efforts, and hopefully we will be able to advance some of those
in the future.
You stated in your testimony that various proposals to
repeal the enemy combat litigation provisions of the MCA and
the DTA are ill-advised and defy common sense. Again, with
respect to those who have made these comments, I have to agree
that this would be a very, very bad idea.
The effect would be to not only allow prisoners held at
Guantanamo to literally sue the soldiers that are guarding
them, their captors, but also to contest all manner of
conditions of their detention there, contrary to all precedent
not only in this country, but in other countries as well.
Then such as Khalid Shiek Mohammad and Ramsey ben Al-
Shied, both of whom were involved in the September 11th
attacks. These proposals would also, as I understand it, allow
any enemy detainees held inside the United States to sue to
challenge detention and conditions of confinement. If I am
incorrect in this in terms of your understanding, please let me
know, but I think this is accurate.
I think back on World War II about the roughly 425,000
German prisoners of war that were held in the United States.
What would the Justice Department have done, or the Defense
Department at that time, if these POWs had had the habeus
corpus rights that are being sought by the proponents of this
legislative change?
By the way, did we allow these prisoners to bring habeus
actions, to sue?
Attorney General Gonzales. Sir, I am not aware of any
specific cases. Someone may have thought about it, but
obviously we did not have a situation. We had 400,000 claims,
people claiming illegal detention or people claiming
mistreatment. That just did not happen. People would have
thought it rather odd, quite frankly.
These were lawful combatants. These were people that fought
according to the rules. So the notion that we would do that for
people that were unlawful combatants, who do not follow the
rules, I think people would say that is somewhat odd, also.
I think people lose sight of the fact that we, as a
government, provide more process to unlawful combatants than
prisoners of war get under Geneva, so you are actually
penalized by finding according to the rules.
Under Geneva, you are captured on the battlefield, you have
a battlefield determination: you are a prisoner of war. That is
it. There is no more determination. Here, if you are an
unlawful combatant, you get multiple evaluations. If you are
sent to Guantanamo you get a CSRT you get--
Senator Kyl. What is that?
Attorney General Gonzales. That is a Combatant Status
Review Tribunal, where there is a proceeding that provides a
meaningful opportunity for the detainee to present his case
that he is not lawfully detained.
Senator Kyl. Represented by American lawyers?
Attorney General Gonzales. He is not represented by a
lawyer, per se. There is a lawyer involved that is sort of his
legal representative or helper. I would not call him his
counsel, but he is represented by counsel on appeal.
He has a direct right of repeal to the DC Circuit, and
there he is provided counsel. He also has a right, if the
Supreme Court wants to hear his challenge, to take it up to the
Supreme Court.
Senator Kyl. Now, that right of direct appeal to the Court
of Appeals, we wrote that in the statute. That was
unprecedented. Is that correct?
Attorney General Gonzales. Yes. The amount of process we
provide is unprecedented not only for unlawful combatants, it
is, quite frankly, unprecedented for prisoners of war, lawful
combatants. So we have gone well, well past what is
precedented.
I think the United States should, quite frankly, be proud
of the amount of process that it provides to unlawful
combatants who kill innocents indiscriminately, who do not
follow the rules, and yet nonetheless the people of the United
States have decided we are going to provide these individuals
CSRTs, we are going to provide them access to a court, when
that has never, ever in the history of this country been done
before.
Senator Kyl. Mr. Chairman, do I understand my time has
expired?
Chairman Leahy. The Senator's time has expired.
Senator Kyl. Thank you.
Chairman Leahy. But we will be having another round.
Senator Kyl. No, no. That is fine. I appreciate that. Thank
you.
Chairman Leahy. Senator Kohl, you were very patient and
yielded your time earlier. Please, go ahead.
Senator Kohl. Mr. Attorney General, I would like to discuss
the rise in violent crime in our country with you. As you may
know, I discussed this topic with the FBI Director in December,
and since then violent crime statistics for 2006 have been made
available, which unfortunately show that 2005 was not an
aberration, but rather part of a very unfortunate trend.
Our entire country has been hit hard by a crime wave, and
my own city of Milwaukee is no exception. There are no doubt a
variety of factors that have contributed to this rise.
The FBI, for example, used 2,190 fewer agents in 2004 on
traditional crime matters than it did in 2000 due to the
essential focus on terrorism. This decreased Federal
involvement, as you know, places a greater burden on our State
and local law enforcement communities.
For exmaple, the Milwaukee police received $1 million from
the COPS program in 2002, but last year it received no funding
at all.
Mr. Attorney General, we are not giving our States and our
localities the help that they so desperately need. Now, we are
all on the same team, I know, and we all have the very same
goal in mind.
I would like to make a particular request to you on behalf
of Milwaukee. Can I ask you to pledge yourself to taking some
time to study the situation in Milwaukee and report back to me
on what can be done by way of some increased level of Federal
funding on behalf of law enforcement to help to reverse this
trend?
Attorney General Gonzales. Senator, you do have my
commitment. I think we should all be proud of the historically
low crime rates that we have enjoyed recently. There have been
some disturbing trends with respect to certain kinds of violent
crime, with respect to certain places in the country.
You talked about it in terms of a ``crime wave''. What we
are seeing are increases, disturbing trends, with respect to
certain areas of the country and certain-size communities.
Nonetheless, I am concerned about it and for that reason we
initiated this Initiative for Safer Communities, where I sent
out teams to 18 cities. Milwaukee was one of them.
We wanted to study Milwaukee carefully and see what was
working, what was not working, and we are going to take that
information and hopefully come up with some good ideas that we
can share with you and the American people about how we address
this issue.
As you also know, Milwaukee was one of the cities that I
identified last year to receive $2.5 million for a special gang
initiative, where we would focus on prevention and education
efforts, law enforcement efforts, and prisoner reentry efforts
in your community. We want to see how these initiatives around
the country--Milwaukee being one of them--work.
If people come up with some good ideas, then perhaps we
will come to the Congress and try to get some more money and
provide similar grants to other communities around the country.
We, of course, have programs like Project Safe Neighborhood,
where we make funds available to State and local communities. I
think we are doing a lot, but I am worried about it, too.
Obviously, State and local officials are our best partners.
We want to feel like they are appreciated. I look forward to
working with you, and you have my commitment, in particular,
with respect to Milwaukee. We will look at it and see what else
we can do there.
Senator Kohl. That is very kind of you and I very much
appreciate that. Thank you.
Chairman Leahy. Thank you very much. Yes. Did you want to
say something?
Attorney General Gonzales. Yes. I received some bad
information, and I apologize for this. Milwaukee was not a city
that received one of these. I confused it with Minneapolis, and
my apologies. But you still have my commitment that we are
going to study it.
Senator Kohl. If you will look at Milwaukee, that would be
very good of you. Thank you.
Chairman Leahy. Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman.
Welcome Attorney General Gonzales. I wanted to talk a
minute about the questions that Senator Feinstein raised about
the process by which interim U.S. Attorneys are appointed so
that we can understand this better and perhaps put it in
context.
My understanding is that prior to the reauthorization of
the Patriot Act, the Attorney General had the authority to
appoint an interim U.S. Attorney for a period up to 120 days.
After 120 days the courts, before which the U.S. Attorney would
appear, would make a longer term interim appointment until such
time as the President nominated, and the Senate confirmed, a
permanent U.S. Attorney. Is that correct?
Attorney General Gonzales. That is correct. As you might
imagine, Senator, that creates a problem, a court where he has
been appointed by the judge, and so that created a problem.
We had, also, a problem of judges, recognizing the oddity
of the situation, who kind of refused to act, so we have to
take action, or give them a name or something, but it created
some discomfort among some judges. Other judges were quite
willing to make an appointment.
Regrettably, though, you have the potential for a situation
where someone is appointed who has never worked at the
Department of Justice, does not have the necessary background
check, cannot get the necessary clearances, and so that is a
serious problem, particularly during a time of war.
So for these reasons, quite frankly, I think the change
that was made in the reauthorization of the Patriot Act makes
sense. I have said to the committee today under oath that we
are fully committed to try to find Presidentially appointed,
Senate confirmed U.S. Attorneys for every position, but they
are too important to let go unfilled for any period of time,
quite frankly.
It is very, very important for me, even on an interim
basis, the qualifications, the judgment of the individuals
serving in that position.
Senator Cornyn. Mr. Attorney General, this was not just
sort of an odd arrangement before the reauthorization of the
Patriot Act, it raised very serious concerns with regard to the
separation of powers doctrine under our Constitution, did it
not?
Attorney General Gonzales. It does in my mind. Again, it
would be like a Federal judge telling you, I am putting this
person on your staff.
Senator Cornyn. That is because the U.S. Attorney is the
chief law enforcement officer for the district concerned. So it
would seem problematic for the top judicial branch official to
name his executive branch counterpart. The process that Senator
Feinstein asked questions about that is now the norm after the
reauthorization of the Patriot Act, that is something Congress
itself embraced and passed by way of legislation, and the
President has signed into law. Is that correct?
Attorney General Gonzales. I believe it reflects the policy
decision, the will of the Congress, yes.
Senator Cornyn. And I find it a little unusual that some of
our colleagues are critical of the Justice Department replacing
Bush appointees with interim appointments until such time as we
can get a permanent U.S. Attorney nominated by the President
and confirmed by the committee.
I just want to raise three quick examples of delays,
unfortunately not caused by the administration, but by this
committee itself in terms of confirming high-level nominees at
the Justice Department. For example, Alice Fisher, whose
nomination waited a period of 17 months before this committee
actually confirmed her nomination.
Then there is Kenneth Wainstein, who was appointed to a
brand-new position, as you know, the head of the
Counterterrorism Division at the Department of Justice. This
was a recommendation by the WMD Commission and others. This
nomination was obstructed for 6 months, until September 6,
2006, which allowed this new, important position to remain
vacant for a half a year.
Then there is the inexplicable--to me, anyway--case of
Steve Bradbury, who serves in a very important position as head
of the Office of Legal Counsel, Acting, who is yet to be
confirmed even though he was nominated June 23, 2005.
As you know, Mr. Bradbury was integral to our efforts to
deal with this issue of, how do we try terrorists like Khalid
Sheik Mohammad consistent with the Supreme Court's decisions
and our Constitution?
So I appreciate your willingness to make sure that the
administration nominates U.S. Attorneys on a timely basis.
Hopefully this committee and the Congress, the Senate, will
meet the administration more than half way and schedule up-or-
down votes on the nominees that the President sends forward.
Let me take off also on this issue of violent crime. You
mention the Project Safe Neighborhoods, and I want to ask you
just a couple of words about that. You cover this at some
length in your prepared statement.
Of course, I have a special interest, as you know, because
of the origins of Project Exile out of Richmond, Virginia,
originally a project of the U.S. Attorney there which we
embraced in Texas when I was Attorney General, with then-
Governor Bush.
We launched Texas Exile, which at the time was an
innovative program to combine the resources of Federal, State,
and local law enforcement agencies to focus on gun crime, of
course, to make sure that our laws were strictly enforced.
But I have to tell you that I am very pleased with what I
see are the results of Project Safe Neighborhoods, under which
this effort has now been taken nationally, where you report a
66 percent increase in the number of cases filed and a 55
percent increase in defendants prosecuted since fiscal year
2000.
Could you just touch on, for a moment, the importance of
our prosecution of individuals who are violating our gun laws
in this country in terms of stemming the tide of violent crime?
Also, I have seen a lot of public service announcements
pointing out the harm inflicted on the families of those
individuals who violate our gun crime laws and what that does
in terms of deterring those sorts of crimes.
Attorney General Gonzales. I appreciate the question,
Senator. I think we have made good progress in addressing
violent gun crimes in this country because of the programs like
Project Safe Neighborhoods where we are working in partnership
with State and local communities in terms of providing
training, sharing information, making joint decisions about,
where is it appropriate and the best place to prosecute
someone?
In certain cases it makes more sense to prosecute them in
Federal court because, quite frankly, we have tougher gun laws
and we can get tougher sentences. So, I think it has made a big
difference in our ability to reduce the level of violent gun
crime.
I am often asked, do we need additional gun laws? Obviously
that is something we would always be willing to look at, but I
think the evidence shows that if we continue our diligence in
enforcing existing laws, we can make a big difference in
reducing gun crime in this country.
Chairman Leahy. Thank you,
Senator Cornyn.
Senator Feingold is next. I should note that Senator
Feingold is going to chair the Constitution Subcommittee, one
of the more important subcommittees of this committee.
Senator Feingold?
Senator Feingold. Thank you so much, Mr. Chairman. Thank
you, Mr. Attorney General.
First, let me associate myself with the remarks of my
senior Senator, Senator Kohl, in raising the concerns about
crime, in particular in the city of Milwaukee, and I want to
thank him for his leadership on this issue. Thank you for your
response and your willingness to take a real look at it.
In light of what he said about the loss of $2 million for
the COPS programs in Milwaukee, and in light of what you said
about Minneapolis, I hope Milwaukee is next in line for that
kind of money.
Mr. Attorney General, it was a welcome change to learn that
the President, with regard to the NSA program, has decided to
return to the law. For more than 5 years, this administration
conducted an illegal wire tapping program, including more than
a year during which you and others publicly asserted that this
violation of the law was absolutely essential to protecting the
public from terrorists. As Senator Kennedy already mentioned,
you actually questioned the patriotism of those who criticized
you.
But the President has been forced to return to the law.
Based on your announcement yesterday, this illegal program has
been terminated. Now, that is a stunning--and I would say long
overdue--change of direction.
In light of these developments, I also hope that the type
of inflammatory and inaccurate rhetoric we heard from you and
the President about this program is over. I was particularly
concerned about a speech you gave in November which I raised
with the FBI Director last month, so let me start by asking you
the same question I asked the FBI Director.
Do you know of anyone in this country, Democrat or
Republican, in government or on the outside, who has argued
that the U.S. Government should not wiretap suspected
terrorists?
Attorney General Gonzales. Sure. I mean, if you look on the
blogs today there are all kinds of people who have very strong
views about the ability of the government to surveille anyone,
for any reason.
Senator Feingold. Do you know of anybody in government that
has said that?
Attorney General Gonzales. No. But that is not what I said.
I have my remarks in front of me. I began by talking about how
limited this program is, and what care we took in implementing
this program. Then I did say, some people would argue nothing
could justify the government being able to intercept
conversations like the ones the program targets.
I also said, instead of seeing the government protecting
the country, they see it as on the verge of stifling freedom. I
then said that this view is short-sighted if the definition of
freedom, one utterly divorced from civic responsibility, is
superficial and is itself a serious threat to the liberty and
security of the American people.
Senator Feingold. Well, that is interesting because we got
a very different answer from the Director of the FBI, who had
no trouble saying he did not know of anyone that took that
position.
Now, this actually was not an isolated remark. During the
campaign last year the President repeatedly said that the
Democrats opposed wiretapping terrorists. Let me read you a
quote from a campaign rally in Indiana: ``When it comes to
listening in on the terrorists, what is the Democrats' answer?
Just say no.''
In your speech on November 20, you said that critics of the
program have a definition of freedom that is ``utterly divorced
from civic responsibility,'' and ``is itself a grave threat to
the liberty and security of the American people.''
Mr. Attorney General, as I said when Director Mueller was
here, to me these comments are blatantly false. I think they do
a disservice to the Office of the Attorney General. Falsely
accusing the majority of this committee of opposing the
wiretapping of terrorists is not going to be helpful to you, to
the Justice Department, to Congress, or to the American people.
Attorney General Gonzales. Senator, I did not have you or
this committee in mind when I made those comments. I went on to
talk about Justice Jackson's remarks in the case of Terminello
v. City of Chicago, where he said, ``The choice is not between
order and liberty, it is between liberty with order and anarchy
without either. There is danger that if the court is not
temperate, is not chronologic with a little practical wisdom,
it will convert the constitutional Bill of Rights into a
suicide pact.'' But again, I did not have in mind either you or
this committee.
Senator Feingold. Well, that is nice that it was not in
your mind, and maybe it was not in the President's mind. But no
reasonable person could interpret, during a political campaign
that has to do with whether Senators, Democrats or Republicans,
are elected or not elected has anything other than to do with
accusing those who are on this committee, and others, of having
that mind-set.
So I am pleased to hear you did not have that in mind. Let
me just say that the notion that somehow any of us or any one
in the Democratic party does not think we should wiretap
terrorists, is simply wrong.
Let me turn to the FISA statement itself. Why did you
decide to seek FISA court authorization in the spring of 2005
and not earlier? Did this relate in any way to the
administration learning that the New York Times was looking
into the program?
Attorney General Gonzales. No, not at all.
Senator Feingold. Why did you not seek the authorization
earlier?
Attorney General Gonzales. Senator, we certainly would not
have been prepared or be in a position to make any kind of
application. I must tell you, and I want to go back and think
about this in terms of, I am fairly certain--but again, I am
under oath so I want to be careful how I say this--that we have
had from time to time, when I was in the White House,
discussions and thoughts about, is there any way to get this
under FISA, not because there was any concern that what the
President was doing was unlawful. Quite the contrary. We
believed, and believe today, that what the President is doing
is lawful.
But because of the discourse, the concerns raised,
questions asked here in this committee, we felt an obligation
to see, was there a way to get this under FISA without
jeopardizing the national security of this country?
Certainly when I came over to the Department of Justice I
talked our folks, all right, let us go back and look at this
again. Let us start over if we are going to have to. Is there a
way we can do this? Again, I must take issue with Senator
Specter. This is a very complicated application. In many ways
it is innovative in terms of the orders granted by the judge.
It is not the kind of thing you just pull off the shelf. We
worked on it a long time.
Senator Feingold. All right. Then once you submitted it,
why did it take 2 years for the FISA court to come to its
decision?
Attorney General Gonzales. It did not take 2 years,
Senator, for the FISA court to come to its decision. It took us
a period of time to develop what we thought would be an
acceptable legal argument that would be acceptable by the FISA
court, and it took us a period of time to take that argument
and fit it into the operational capabilities and possibilities
of NSA.
Senator Feingold. How long did it actually take the court
once it had your proposal?
Attorney General Gonzales. Senator, again, I do not want to
get into a public discussion about the deliberations and work
of the court. I will say that it took longer than a normal FISA
because this was different than a normal FISA application.
So obviously the judge, looking at this, he was very, very
careful in his decision that the application satisfied all the
requirements of FISA, so it took a longer period of time
because it was a different type of application.
Senator Feingold. Well, Mr. Chairman, I see my time is up,
but let me just say in conclusion that, while there will be
matters to pursue both here and on the Intelligence Committee
about the decision, it is an important moment in the history of
our Constitution that this program has now been terminated and
is now within the FISA statute. I do hope that we recognize the
importance of that in terms of our constitutional history.
Thank you, Mr. Attorney General.
Chairman Leahy. Thank you.
Attorney General Gonzales. Can I make one final point?
Chairman Leahy. Of course.
Attorney General Gonzales. On your characterization that
the program was terminated, the country is no less safe today.
I mean, the fact that there will be electronic surveillance of
the enemy during a time of war will continue. The country will
not be any less safe. It will be conducted under the FISA
court.
I do not want the American people to think that somehow the
President has backed off in any way from his commitment to
doing what he can do under the law to protect America.
Senator Feingold. Which is exactly why we did not need the
TSP outside of FISA in the first place.
Attorney General Gonzales. Senator, you would be a much
better lawyer than any of the lawyers at the Department of
Justice by simply looking at the statute, knowing what we do,
that this is something that could easily be approved by the
FISA court. It took us a period of time to work on it, to
develop the legal strategy, the legal analysis, and it took
some time for a judge to get comfortable. It was not easy.
Senator Feingold. Mr. General, I recognize that. But the
idea that you did it before you had the court's approval is the
startling part.
Thank you, Mr. Chairman.
Chairman Leahy. We will take no more than a five- minute
break and then we will come back. Senator Grassley is going to
be next.
[Whereupon, at 11:30 a.m. the hearing was recessed and
resumed back on the record at 11:35 a.m.]
Chairman Leahy. As we reconvene, I will go over the order,
because Senator Grassley was one of the first ones here, but he
has also had, I would note, a very busy time in Finance this
morning.
Senator Schumer will go next, and he has also been trying
to cover about four other things today. And then Senator
Sessions, each one of you have been doing the same thing. But
let us go through those, and, Senator Grassley, the floor is
yours.
Senator Grassley. General Gonzales, I gave you a copy of my
questions because I wanted to go through all the justification
for the questions before you answered them, so I hope you have
this sheet here.
The first one deals with the anthrax investigation. I wrote
you in October to ask a series of questions regarding the FBI's
investigation of the anthrax attacks. It has been over 5 years
without any sign of real progress. It has been over 3 years
since the FBI briefed any Congressman.
The FBI recently announced a policy of refusing to brief
Congress about the case even though it provided briefings
earlier in the investigation. And while I was at Finance, I
know that you have offered to brief Chairman Leahy. And I say
this only after I made a great objection to the FBI on the no-
briefing policy.
In December, 33 Senators and Congressmen wrote to you to
ask that you direct the FBI to provide a comprehensive
briefing. That letter included signatures from several members
of this Committee, the Intelligence Committee, Homeland
Security, and not just the Chairs and Ranking Members. We have
not received a response to that letter.
The Department's policy is unacceptable. It is kind of like
thumbing the nose at congressional oversight, especially a
topic that is as important as this one, and especially since
Congress was the target of these attacks. Steven Hatfill, who
was publicly labeled a person of interest in the investigation,
has alleged in his lawsuit that the FBI and the Department of
Justice personnel leaked sensitive case information about him
to make the public believe that he was about to be arrested
when, in fact, he was not.
It has been reported that two FBI agents were the sources
of leaks about Hatfill in the New York Times, but when I asked
Director Mueller last month whether anyone had been
disciplined, he said no.
I believe that independent oversight is necessary to get to
the bottom of these issues. You have said that you respect
congressional oversight, but I do not see that your actions fit
the words. So that is my first question. Now I want to go on to
DOJ oversight before you answer.
Second, I understand that the Justice Department is
conducting a series of training events for other agencies on
how to respond to congressional oversight inquiries and
hearings. I recently wrote to you asking for information about
these training events, including a list of the agencies
participating and copies of materials.
I asked to receive that information before this hearing so
we could discuss it in more detail, but I did not get a reply.
In light of the unnecessary hurdles and roadblocks that the
Department has put in my way on oversight issues, my concern is
that these training events may become lessons to stiff-arm
Congress. So two questions on that.
And then my last issue is the False Claims Act. Third, as
author of the 1986 amendments to the False Claims Act, I worked
hard to ensure that we would have an effective tool against
fraud and waste. Your Department reported that $18 billion has
been recovered under my whistleblower amendments to the False
Claims Act in the 20 years since they were passed.
In fact, $3.1 billion was recovered in the last fiscal year
2007, nearly $1 billion more than any other previous years'
recovery. Can you tell us what the Department has been doing to
increase recoveries?
Also, Congress passed the Deficit Reduction Act. Section
6032 of that provided financial incentives to the States to
pass their own False Claims Act. It requires the Inspector
General of the Department of Health and Human Services, in
consultation with you, the Attorney General, to determine if a
State law complies.
Back in March and April, I wrote two letters to you and
Inspector General Levinson outlining the requirements of
Section 6032 and highlighting necessary requirements for a
State False Claims Act. Inspector General Levinson replied back
in May that his office was working on guidance to States in
consultation with your Department.
The formal guidance to States was issued this past August,
and the OIG recently released its initial determination to
various States that were submitted in accordance with Section
6032.
Of the 10 States that submitted the State False Claims Act,
only three were deemed compliant. The fact that only three of
ten passed muster tells me that there were some State
legislatures looking to pass these laws in the next few months.
My question is then, since you did not provide a written
response, what is the Department doing, in consultation with
the OIG of HHS to review and comment on legislation submitted
to the States?
So would you answer that series of questions on those three
different points as I submitted them to you there in writing?
Attorney General Gonzales. I will do my best, Senator.
With respect to anthrax, you are correct, we have offered
up a briefing to the Chairman. There is, of course--here is my
view about oversight. I recognize that there is an
institutional interest in the legislative branch receiving
information.
Quite frankly, when you do that, it helps us do our job
better. I recognize that. There is also an international
interest in protecting certain kinds of information within the
executive branch. I think we each have an obligation to
recognize those two competing institutional interests.
As I read the case law, I think we each have an obligation
to try to accommodate those competing interests, and so it is
not enough for me to simply say no to a request from Congress.
I do not think it is legitimate for Congress to simply say,
``This is what I want and I am going to get it.'' I think we
have an obligation to try to reach an accommodation in most
kinds of cases.
Now, open investigations presents a unique set of
challenges for us. The truth of the matter is my experience has
been that when Congress inquires into open investigations,
people quit providing candid advice. Sometimes people make
decisions that they would not normally make for fear that if
Congress is investigating what they are currently doing, they
do not want to be criticized for not being tough enough.
I also, of course, worry about the privacy interests of the
individual being investigated. Oftentimes we do investigations.
That does not mean that someone has done anything criminal. We
are in the process of gathering up information to see whether
or not something has happened that is criminal.
So we are very, very careful and concerned about
inadvertent leaks. I am not suggesting that there are
intentional leaks, but sometimes there are inadvertent
disclosures that hurt the privacy interests of individuals that
ultimately turn out to be innocent. It is for that reason, that
as a long matter of practice, we do try to resist inquiries
into open investigations.
The situation with the anthrax case is different. It is
different in terms of--I think it is--I would characterize it
as a variance based upon extraordinary circumstances. In this
case, it was letter targeted to Senator Leahy.
He has received briefings in the past, and for that reason,
the Director of the FBI has offered and we are prepared to
provide additional information that we can to the Chairman. So
that is my response to the anthrax investigation.
With respect to DOJ oversight training, quite frankly, it
is a responsibility and role by statute and by regulation for
the Department to provide legal advice to the other executive
branch agencies. We want to provide guidance to ensure actually
greater cooperation and consultation with the legislative
branch in this process.
I am told we never got your letter with respect to DOJ
oversight training. I do not know if that is a problem with
your staff or a problem with my staff, but I want to get to the
bottom of it.
With respect to does the Department have plans to invite
any congressional oversight experts to provide a legislative
branch perspective at these training sessions, quite frankly,
that is up to each agency. But we are their counsel as the
Department, but they are obviously free to seek input from
congressional experts.
Again, this is not a coordinated effort to try to coach
them about how to avoid answering questions. It is to make sure
that we are providing the appropriate level of cooperation,
because we do have an obligation, again, based upon the case
law as I read it and based upon tradition and history, to try
to accommodate competing legitimate interests.
False Claims Act questions. Can you tell us what the
Department has been doing to increase False Claims Act
recoveries? I think our record in this area is very, very good
if you look at the number of dollars that have been recovered.
I know there have been some complaints, Senator, that
perhaps we are taking too long in making the decisions to get
involved in some of these kinds of cases. But we take them
very, very seriously, and we want to be very, very careful in
the decisions that we make to be involved. But we are fully
committed to this, and I think that is evidenced by the record
level of recoveries with respect to these kinds of claims.
Then your question, Since you did not provide a written
response either to my March 2006 letter or April 2006 letter--
which I am told, again, we never got, and that is something we
need to correct--what is DOJ doing, in consultation with HHS
OIG, to review and comment on FCA legislation? I am told the
letter has gone up to you, and you should have that. Quite
frankly, sir, I do not know what the letter says. I have not
reviewed it. But I am told that there has been some kind of
response to you.
Senator Grassley. Mr. Chairman, I would like to be involved
in that briefing that you have on anthrax, if I could be.
Chairman Leahy. Senator, I found the last briefing to be so
inadequate and so uninformative, I have not sought another one
because I have learned more reading the papers, especially when
I read in the paper that the Department of Justice brought a
number of victims of the anthrax attacks or their families to
Washington to brief them. I do not want to use the mantle of
``victim,'' but insofar as I was a target, I guess targets were
not invited, victims were.
Be that as it may, if we have a briefing, as I said
earlier, I would certainly want at the very least the Ranking
Member involved. It should not be just a member of one party.
But we can work that out.
Attorney General Gonzales. Mr. Chairman, I have encouraged
the Director to try to provide as much information as we can. I
would also conclude that I want to thank Senator Grassley for
his amendment to increase DOJ's HIPAA funding by providing an
inflationary adjustment to help investigate health care fraud.
Thank you, Senator.
Chairman Leahy. Thank you.
Senator Schumer is next. Go ahead.
Senator Schumer. Thank you, Mr. Chairman, and thank you,
Mr. Attorney General.
Now, as has been mentioned, we learned yesterday that after
more than 5 years of warrantless wiretapping, you finally
obtained an order from the FISA Court. It is a secret Court, to
be sure, but it is a Court nonetheless. And while many are
rightly relieved that you finally decided to seek the
involvement of a court, there are still far too many unanswered
questions to say that this issue has been resolved. This is
better than Cheney, but we still do not know what ``this'' is.
So, first, let me ask you this: Do you now believe that
FISA Court approval is legally required for such wiretapping?
Or do you continue to believe that Court approval is merely
voluntary? You indicated the latter before. If that is the
case, is it not true that you could turn this on and off at
will? If in a month the FISA Court did not do what you wanted,
you could go right back to the old system?
Attorney General Gonzales. Senator, we commenced down this
road 5 years ago because of a belief that we could not do what
we felt was necessary to protect this country under FISA. That
is why the President relied upon his inherent authority under
the Constitution.
My own judgment is that the President has shown maturity
and wisdom here in this particular decision. He recognizes that
there is a reservoir of inherent power that belongs to every
President. You use it only when you have to. In this case you
do not have to.
Senator Schumer. So you do not think you are legally
required to go to the FISA Court? That is correct, correct?
Attorney General Gonzales. Senator--
Senator Schumer. Please answer yes or no.
Attorney General Gonzales. We still--we believe--my belief
is that the actions taken by the administration, by this
President, were lawful in the past.
Senator Schumer. OK.
Attorney General Gonzales. But moving forward, our
electronic surveillance collection is going to be conducted
under FISA.
Senator Schumer. All I would submit here, sir, is that at
will, just as at will you instituted this program, since you do
not believe you are legally bound, you could turn it off,
particularly if you got a decision that you did not want. That
is one question I have.
Now, let me ask some questions about the nature of the
Court approval. Yesterday, Assistant Attorney General Bradbury
refused to answer whether this new program constitutes a
program warrant. We need to get some information on this. Now,
they did use the word plural, so I assume it is more than one
warrant. But are we--
Attorney General Gonzales. Senator--
Senator Schumer. In other words, are the new FISA orders
directed at individuals, at entire groups of individuals, or
even broader brush than that?
Attorney General Gonzales. Senator, I am not at liberty to
talk about those kinds of specifics because it would require me
to get into operational details that I think I should not do in
open session.
Senator Schumer. I will not ask you to get into operational
details. I would like to know if there is an intention to do
this on an individual basis or at least on a case-by-case basis
where 5, 6, 10, 20, 100 individuals are involved, or is it
broader brush than that?
Because if it is a very broad brush approval--and, again,
because it is secret, we have no way of knowing--it does not do
much good. Your answering that question in no way compromises
any security interest. None. All it is, is a general outline of
what you have done. It is no more than what Bradbury talked
about yesterday. So could you give us some idea of the breadth
of these warrants?
Attorney General Gonzales. What I can tell you, Senator, is
that they meet the legal requirements under FISA.
Senator Schumer. OK.
Attorney General Gonzales. I will also tell you, Senator,
that the entirety of the Intel Committees, both in the House
and Senate, have received full briefings about these orders and
our application. We have provided a full briefing to Senator
Specter.
We have offered a full briefing to the Chairman. And we are
prepared to answer the questions that we need to ensure that
they are comfortable about the application and the order.
Senator Schumer. But at least according to the paper,
Senator Rockefeller did not get answers to these types of
questions at his briefing. He said there are still too many
unanswered questions about the kind--he did not say
specifically about the kind I am asking.
And in your letter, here is what you say: ``I am writing to
inform you that on January 10th,'' a judge of the FISA Court
issued orders authorizing the Government to target ``for
collection international communications into or out of the
United States where there is probable cause to believe that one
of the communicants is a member or an agent of al Qaeda or an
associated terrorist organization.''
That clearly sounds to me like a program warrant, not an
individual warrant. Is that not a program warrant?
Attorney General Gonzales. Senator, I do not know what you
are reading from or what is said in the paper. And I must tell
you, I am surprised if, in fact, Senator Rockefeller said--
Senator Schumer. This is in your letter. You signed this
letter.
Attorney General Gonzales. If, in fact, Senator Rockefeller
said that he does not understand the program. I view our
briefings as the initial starting point of our discussions. If
people do not understand, all they have to do is ask questions.
It is important from our perspective for the Congress to
understand what we are doing here with respect to these FISA
applications. And so--
Senator Schumer. Heather Wilson, a Republican on the
Intelligence Committee, says they are program warrants. I think
we have to assume these are broad program warrants barring some
comment from you, which I think is perfectly acceptable and
that, you know, the reason you might not want to state it is it
would open you up to criticism. And if it is a broad program
warrant, it really is not very satisfying in terms of
protection that the Constitution requires.
Again, can you tell us that these will be--can you give us
some assurance that there will be some degree of specificity in
these warrants?
Attorney General Gonzales. Senator, what I can tell you is
that, again, these meet all the requirements of the FISA
statute. They also include minimization procedures above and
beyond what we would normally find in a FISA order to ensure
that any information that should not be collected is disposed
of in the appropriate way.
Senator Schumer. OK. Next question. Getting some of the
details here, the previous program has been going on for 5
years. That is longer than it took us to fight World War II.
Your negotiations, by your own admission, have gone on 2 years.
That is longer than this administration took to conceive a plan
to invade Iraq--mobilize the troops, invade Iraq, and topple
Saddam Hussein.
Can you give us some documentation, whether it is in camera
or publicly, about why the negotiations took so long, what the
change in heart was in the administration?
Attorney General Gonzales. I think as we have these
additional briefings and there is a better understanding of how
the application is structured and how the orders work, I think
people have a better understanding of why it took so long to
get this done.
Senator Schumer. There is a fundamental question a lot of
people are asking, sir, and, that is, if FISA was always
sufficient to facilitate this program, why did you not use it
in the first place?
Attorney General Gonzales. Sir, we did not know that FISA
was sufficient until the very moment that the judge approved
the order. As I have said several times--
Senator Schumer. It took 5 years for that to happen?
Attorney General Gonzales. As I have said several times, we
started down this road, the administration started down this
road just months after the attacks of September 11th because we
did not believe that FISA was available to allow the United
States to engage in this kind of foreign collection in a manner
that would protect the national security of our country.
Senator Schumer. Let me ask you a question. Did you
negotiate with the FISA judges or did you just propose
something at once, they looked at it, and came back to you? Or
was there a lot of give and take and back and forth?
Attorney General Gonzales. Senator, I am not going to get
into a discussion about our interaction with the Court on this
order, as I would not on any other order.
Senator Schumer. Well, let me just say this because, again,
you have received some plaudits here, and I am glad--as I said,
this is better than what we had. But I for one cannot feel very
relieved knowing that the administration's view is they can go
back and reinstitute the old program on a whim, that we do not
know what type of warrants are being approved by the FISA
Court--is it two? Is it 10? Is it 20?--and whether it is
individual; and, third, we do not know what brought this all
about, how long the negotiations took, the way it came about,
et cetera.
Remember, the FISA Court is a secret Court. The FISA Court
has no Supreme Court review. Now, that is not your doing. That
is established by statute. But that seems to me, if there were
a new spirit of cooperation and understanding of the checks and
balances, and balances of power, that, sir, you would be more
forthcoming to try and show the American people that this is a
real change.
Attorney General Gonzales. Senator, we have provided a full
briefing to both Intel Committees. We have already provided a
briefing to Senator Specter, have offered a briefing to the
Chairman. We are prepared to provide additional information to
these two individuals so that they fully understand how these
orders work.
Senator Schumer. The number of people who have received the
briefings are not very satisfied. That is what I was saying.
Heather Wilson, a Republican, and Senator Rockefeller, by his
quotes in the New York times, are not very satisfied.
So for you to come tell us and tell us we cannot give you
or the American people, more to the point, a briefing that does
not involve secured information and we briefed these other
people, and then when we hear from them they still have a whole
lot of un answered questions, it is not very satisfying.
Attorney General Gonzales. Sir, if a Member of Congress is
not satisfied, they ought to tell us that, and we will provide
additional information and try to educate them about this very
difficult application and order so that they fully understand
how it works.
Senator Schumer. I am telling you--
Attorney General Gonzales. We are committed to do that.
Senator Schumer. I am telling you that I am not satisfied
and would like to receive more information, either in camera or
publicly.
Chairman Leahy. And I would note that Senator Specter and I
have written to the chief judge of the FISA Court asking for
copies of the decisions of that Court, those that were
announced publicly on Wednesday. They are apparently willing to
provide those decisions for this Committee. There was some
discussion with the Attorney General, who did seem overly
approving of that idea or unwilling to commit to approve the
idea. Be that as it may, this Committee will seek them.
I want to clear up a couple misperceptions. Talking about
taking several years to work out something with FISA as though
this was a big roadblock. This Congress, and this Committee
especially, has amended FISA a number of times since 9/11 at
the request of the administration. There has never been a
difficulty in getting that done.
Also, there seems to be a misperception that, of course, if
there is another terrorist attack, we would all be ready to
pounce on you. The fact of the matter is that the first
terrorist attack, 9/11, happened during the Bush
administration, and Democrats and Republicans came together to
try to protect this country.
We could have just as well taken all that time to say,
``How could you let this happen on your watch? '' Instead, we
came together to say, ``How do we make sure it does not happen
a second time on the Bush administration's watch or any other
administration's watch? ''
We have amended FISA a number of times, but I would leave
you with one thought, and we will go back to this with the
Court. The law is the law. No matter the motivation, nobody is
above the law, not the President, not you, not me, not anybody
else.
And we will insist that the law be followed. If the law
needs changes, come and tell us that. But we will follow this
discussion with the FISA Court, and we will have the briefing
on it.
But I would also say the Senator from Alabama has been
waiting patiently all morning long, and I would now yield to
him. I know that we have several Senators who have not had a
chance to ask their questions, and if they are here, we will go
to them following Senator Sessions. Otherwise, we will start
our second round.
Senator Sessions. Thank you, Attorney General Gonzales, for
your leadership and your hard work to defend this country and
to promote the rule of law, and I mean that sincerely.
I am not surprised that when you said yes, they still are
not happy. We have just had a professional complaint here. I
would just note that I am of the belief that at a time in which
this Congress has authorized hostile action against certain
groups like al Qaeda, it is perfectly appropriate for the
United States President to authorize his agents to intercept
their phone calls in foreign lands and intercept international
phone calls that may come into our country if one of the
parties to that conversation are connected to an entity with
which we are at war. I think we have been through this around
and around many times.
You have said, OK, now we will go on and in light of the
complaints go through this procedure, and maybe that was a good
decision. Maybe it is just throwing a little more chum in the
water for the sharks. I do not know. But at any rate, I thank
you for trying to work with the Congress.
There has been some complaints about replacement of the
United States Attorneys. I served as United States Attorney for
12 years. I am sure some people would have liked to have
removed me before that. But I am well aware that the United
States Attorneys serve as the pleasure of the President.
The United States Attorneys that are being replaced here,
as I understand it, all have served 4 years or more, had 4-year
terms. And we are now in the second term of this President, and
I think to make seven changes that I think are involved here is
not that many, and that the office of the United States
Attorney is a very important office, and it has tremendous
management responsibilities and law enforcement
responsibilities that cannot fail to meet standards. And if
someone is not producing, I think the President has every right
to seek a change for that or other reasons that may come up. I
would just--
Attorney General Gonzales. Senator, could I just interrupt
you?
Senator Sessions. Yes.
Attorney General Gonzales. There are constant changes in
the ranks of our U.S. Attorneys.
Senator Sessions. Absolutely.
Attorney General Gonzales. They come and go, and they leave
for a variety of reasons. And so the fact that someone is
leaving--I do not want to--again, I do not want to get into
personal details of individual U.S. Attorneys. I do want to
say, however--and I have said this publicly a lot recently, it
seems--the U.S. Attorney positions are very, very important to
me personally.
They are my representatives in the community. They are the
face of the administration, quite frankly. They are often
viewed as the leader of the law enforcement effort within a
community, not just by State and locals, but by other Federal
components, and so I care very much about who my U.S. Attorney
is in a particular district. That is very, very important to
me. And so decisions with respect to U.S. Attorneys are made on
what is best for the Department, but also what is best for the
people in the respective district.
Senator Sessions. I fully understand that, and I know in my
district where I used to be United States Attorney, a vacancy
occurred and someone left and an interim was appointed.
She was a professional prosecutor in San Diego, Deborah
Rhodes. She won great respect in the office and brought the
office together when there had been problems. And I am pleased
to say Senator Shelby and I recommended her to you and you
appointed her permanently, somebody who had never lived in the
district before.
But I know you want the best type persons for those
offices. I would just note, though, that there have been
complaints about United States Attorneys where some of them are
not very aggressive and they do not need to stay if they are
not doing their job.
Here we had 14 House Members expressing concerns about U.S.
Attorney Carol Lam in San Diego on the border there, saying in
effect that she had a firm policy not to prosecute criminal
aliens unless they have previously been convicted of two
felonies in the district.
Well, I do not think that is justifiable.
Attorney General Gonzales. Senator, I--
Senator Sessions. I do not know if that had anything to do
with her removal, but I know there were a series of 19 House
Members wrote letters complaining about their performance, and
if that is so, I think change is necessary. Go ahead.
Attorney General Gonzales. Well, I was going to say I am
not going to comment on those kind of reports, quite frankly.
Senator Sessions. I am sure you are not.
Attorney General Gonzales. It is not fair to individuals.
It is not fair to their privacy. And, quite frankly, it is not
fair to others who may have left for different reasons.
Senator Sessions. I understand. Now, the Bureau of Justice
Assistance administers the Scout Program, which is with
immigration, to help fund the cost of illegal criminal activity
enforcement. This month, the DOJ Inspector General released an
audit titled, ``Cooperation of Scout Recipients in the Removal
of Criminal Aliens from the United States.''
One of the questions that the Congress asked the Inspector
General to examine was how many criminal offenses were
committed by criminal aliens who were released from State or
local custody without a referral for removal from the United
States.
A pretty good question. Are these people committing crimes
or not? The report came in with a staggering result. It found,
``The rate at which released criminal aliens are rearrested is
extremely high.'' Within the sample of individuals examined,
100 individuals examined, 73 had had at least one arrest after
their release from State custody.
They accounted for a total--these 73 accounted for a total
of 429 arrests, 878 charges, and 241 convictions. To put it
another way, those 73 individuals had been arrested on an
average of 5.8 times apiece after their initial release.
This is clear statistical evidence, I think, that if the
Department wants to reduce recidivism, they need to take
action, and one of those is to remove people who are arrested
and prosecute criminal aliens.
Would you agree that that is supportive of that enforcement
concept?
Attorney General Gonzales. I think people who commit crimes
are much more deterred from doing so again if, in fact, they
are prosecuted and locked away. Yes, sir.
Senator Sessions. And with regard to the proposal that
would change the United States Attorney appointment we
discussed earlier, I think the Feinstein amendment is not just
re-establishing previous law. It goes beyond the previous law.
And I think at this point we do not have a basis to make that
change. Would you agree it goes beyond the previous law?
Attorney General Gonzales. Quite frankly, Senator, I am not
in--I do not know what her amendment would do, but I would have
concerns if her amendment would require or allow a judge to
make a decision about who is going to serve on my staff.
Senator Sessions. If a United States Attorney is appointed
by the power--a U.S. Attorney is part of the executive branch.
You would bring that nomination to the Senate for an up-or-down
vote, would you not?
Attorney General Gonzales. Again, I have said it before,
but I will say it again. I am fully committed to work with the
Senate to ensure that we have Presidentially appointed, Senate-
confirmed U.S. Attorneys in every district.
Now, these are, of course, very, very important, and I do
not have the luxury of letting vacancies sit vacant. And so I
have an obligation to the people in those district to appoint
interims. And, of course, even though there may be an interim
appointment, their judgment, their experience or qualifications
are still, nonetheless, very, very important to me.
Senator Sessions. You are exactly right. And let me ask
you, on the court system in Iraq, it is something I have been
very concerned about. The Department of Justice has a role in
that. We have got almost, what, 150,000 soldiers over there. I
believe the Department of Justice has got to do more.
I am well aware that one fine Assistant United States
Attorney in my home district I hired, with a fine family, felt
he ought to serve his country, and he participated in working
on big trials, including Saddam Hussein's trial in Baghdad,
away from his fine family.
But my experience from asking about this for a number of
years leads me to believe every agency of Government has got to
step up to help our military policy be successful. Will you
assure us that you will do all you can to make sure that you
are fulfilling your role in helping to establish a court system
and a prison system that works in Iraq?
Attorney General Gonzales. We can not achieve success here
without the rule of law. I think we have done a lot, and we
obviously can give you a lot of facts and figures about what we
are already doing. Obviously, we need to do more. And so we are
looking to see what else we can do.
Senator Sessions. It is not an academic matter. This is
life and death. If we cannot be assured that people who are
arrested are not going to be released, they are not going to be
tried promptly, they are not going to be incarcerated securely,
that undermines the rule of law and can undermine our entire
mission over there.
And, finally, Mr. Chairman, my time is up, but I want to
thank you for providing technical support to a bill that
Senator Biden and I and I think Senator Feinstein and Norm
Coleman have worked on called the online pharmacy bill, which
people are able to order controlled substances from and through
the Internet without ever being physically examined by a
physician. And I think that is a major loophole.
People who are addicted to these prescription drugs, they
are addicted as deeply as cocaine. And they get obsessed with
getting them. They go around town buying them from multiple
doctors. Frequently, they are apprehended when they do that.
But if they can just buy large numbers without every seeing a
physician through on-line pharmacies, then we have got a big
loophole.
Thank you.
Attorney General Gonzales. Thank you. I appreciate your
leadership on that, Senator. We look forward to working with
you.
Chairman Leahy. Thank you. Then-Congressman Ben Cardin
served with great distinction in the House of Representatives
for years as a Representative from Maryland. He is now here as
a new Senator from Maryland, and I want to welcome him to this
Committee. I usually have a better voice than this. It is the
Attorney General who should be without a voice at this point,
not me. But I now yield to Senator Cardin of Maryland.
Senator Cardin. Senator Leahy, thank you very much for your
kind comments, and thank you for your leadership on this
Committee; and, Senator Specter, it is a pleasure to be on the
Judiciary Committee.
Mr. Gonzales, I want to use my time to talk about the
Voting Rights Act and the concerns about voter intimidation and
the deceptive practices particularly against minority
communities. And I would like to explore the energy of your
Department in pursuing these issues.
There have been many reports nationally of problems.
Problems concerning voting machines, we know about that. We
have heard and seen instructions given by major political
parties to the poll watchers to discriminately challenge
certain voters in order to try to intimidate a vote.
We have seen material that has been given out that has been
misleading as to the day of an election or as to responsibility
for being arrested if you have outstanding parking violations,
clearly targeted to particular communities.
But I am going to mention two specific things that happened
in Maryland in this past campaign that have been brought to
your attention--at least one has been brought to your attention
through Senator Schumer. But I want to get your comments on it
and try to explore a little bit further what is being done by
your agency.
In Prince George's County and Baltimore City, the two
jurisdictions in Maryland that have predominantly African-
American voters and citizens, there were long lines on election
day to vote. The reasons for these long lines were inadequate
equipment, improper training for the supervisors, and a whole
host of reasons.
I personally visited polling places in Prince George's
County and in Baltimore City where, during the low peak, low
times in voting, voters had to wait 2 hours in order to vote.
And it was not unusual for someone to wait 3 hours in order to
vote in these two counties.
We did not have similar problems in other counties in
Maryland, raising a serious question as to whether those that
are responsible for managing our voting system were really
sincere in trying to get the maximum amount of participation on
November the 7th.
The second specific issue that I want to bring to your
attention that I am personally aware of is literature that was
given out on the eve of the election, and we will make sure you
get a copy of it. And, Mr. Chairman, I would like a copy placed
in our record, if that would be agreeable.
Chairman Leahy. Without objection, it will be so ordered.
Senator Cardin. The literature is under the authority of a
major candidate running for Governor and a major candidate
running for U.S. Senate in our State. It is labeled ``Ehrlich-
Steele Democrats.'' And as I am certain you are aware, Mr.
Ehrlich and Mr. Steele are Republicans, and the ``Official
Voter's Guide,'' has the photographs of three prominent
African-Americans in our State.
``These are our choices,'' the Guide says, giving the clear
impression that these three individuals have endorsed the
candidacy of those that are on this literature. Two of the
people in this literature, Kweisi Mfume, the former head of the
NAACP, endorsed my candidacy and not Mr. Steele's candidacy for
the United States Senate; Jack Johnson, the county executive
for Prince George's County, endorsed my candidacy, certainly
not Mr. Steele's candidacy.
The literature goes on and gives a Democratic sample ballot
with all the Democrats listed, except for Mr. Ehrlich and Mr.
Steele, under the authority of Mr. Ehrlich and Mr. Steele,
clearly misleading voters.
To compound this, there were hundreds of individuals from
Pennsylvania who were in homeless shelters who were bused into
Maryland by Mr. Ehrlich and Mr. Steele to give out this
literature. I talked to these individuals. They had no idea
what they were doing. They just thought they were picking up a
job and were surprised to find out what they were actually
being bused to Baltimore and to Prince George's County to do.
This troubles me. I think there is a limit as to what you
can do, and it seems to me that there has been a pattern, at
least in my State, to try to diminish the voting of minorities.
And I know that Senator Schumer sent you a letter, and I have
been informed that you have responded to that letter although I
have not seen that response. But I want to get your views here
today as to what you have done to look into these matters.
I must tell you, in another role that I had in the other
body, I was the Democratic leader on the Helsinki Commission,
the Commission for Security and Cooperation in Europe, and we
monitored elections around Europe and Central Asia.
And I must tell you, Mr. Chairman, there are practices that
occur here in America that we would not tolerate in other
countries. And I look to you, as the principal leader to make
sure that our justice system is available to all through
empowerment and voting, through the Voting Rights Act.
And I would just like to know what resources you are
devoting to make sure that this Nation encourages all of its
citizens to vote and that we act against any effort to deny
participation, particularly among minorities in America.
Attorney General Gonzales. First of all, Senator, let me
also extend my welcome. This is the first time you and I have
spoken, I think, and I look forward to working with you.
Voting is very, very important to me. The protection of the
franchise is very, very important to me, because I come from a
background where I did not have much, perhaps like you. And on
voting, however, you are equal to everyone else, and that is a
right that is so precious in our country.
And so I agree with you that it is something that we should
guard zealously and ensure that we are doing what we can to
ensure that everyone has a right to exercise their franchise on
election day.
Having said that, I will say that, as we all know,
elections are primarily a State and local function. They are
not primarily a Federal function. They are run, conducted by
State and local officials.
Senator Cardin. The Voting Rights Act is a Federal law.
Attorney General Gonzales. Pardon me?
Senator Cardin. The Voting Rights Act.
Attorney General Gonzales. No question about it. Obviously,
we have the Civil Rights Division and we have the Criminal
Division. The Civil Rights Division is there to ensure that no
one is intimidated or discriminated against in the exercise of
voting based upon their race or color. The Criminal Division is
there to ensure ballot integrity, to ensure that there is no
voter fraud.
I have spoken with Wan Kim certainly about the flyer. They
have looked at it very, very carefully--Wan Kim being head of
the Civil Rights Division--and I think the general notion is
that, unfortunately, as a general matter, our Federal laws are
not--I do not want to say they are really intended to, but they
do not provide much in terms of tools in terms of going after
campaign tactics or rhetoric by candidates. And you have to ask
yourself, I mean, is that really what you want prosecutors to
do in connection with campaigns.
Senator Cardin. What I want prosecutors to do is look for a
pattern of conduct.
Attorney General Gonzales. Exactly.
Senator Cardin. And if this was the only thing that
happened in Maryland--I think it is wrong. I think you should
look at it. I think it is reprehensible. But if there is an
effort made to deny minorities full participation in the State
of Maryland, you have a responsibility to do something about
that.
Attorney General Gonzales. I do have a responsibility, and
I believe I am discharging that responsibility. Wan Kim and I
have talked about this several times. He understands my
commitment to this issue and how important it is for the
Department of Justice to ensure that people are not
discriminated against based upon their race or color in terms
of exercising their right to vote.
And I think we have a strong record in terms of civil
rights enforcement, and when these kinds of allegations are
made, we, of course, investigate. If we can prosecute a case,
we will do so.
In some cases, States have laws where this kind of conduct
could be prosecuted. I do not know what exists in Maryland, but
that would be something we would always do as well, is consult
with our State counterparts to see whether or not, if we cannot
prosecute, is there some law, some State law that it can be
prosecuted.
So, I mean, you have my commitment--and I am happy to sit
down and talk with you further about these cases and others in
your State. I can tell this is something that is very, very
important to you. It is important to me. And it seems to me
this is something we could be allies on.
Senator Cardin. Well, I appreciate that. This is important
to the people of Maryland and important to the people of our
country. I am not as concerned about getting people prosecuted
as I am to make sure people have the right to vote and it is
not infringed.
And I think the activism of your Department could go a long
way to show that we have a concern at the national level with
the Voting Rights Act that all people have the right to
participate and any form of intimidation will not be tolerated,
particularly when there has been a pattern to try as part of a
campaign strategy to reduce the participation of minority
voters. That is what happened in our State, and I look forward
to your invitation, and I plan to take you up on that.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Cardin.
What I will do is begin the second round, and my intention
would be, after Senator Specter and I have finished, and for
the notice of other Senators, we will then recess until quarter
of 2. That will allow the Attorney General time to actually get
a bite to eat, but also, I am sure, if he is like all the rest
of us, he probably has a hundred phone calls backed up in his
office.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
The subject of local law enforcement is one which you have
addressed, Mr. Attorney General, and I would like to pursue the
issue with reference to my State. The city of Philadelphia has
had more than 400 homicides last year, and the city of Reading
was ranked as the 21st most dangerous cities in the country.
And you have an excellent United States Attorney's Office
covering that jurisdiction, U.S. Attorney Patrick Meehan is
there.
Attorney General Gonzales. Yes, sir.
Senator Specter. He had been my chief of staff in
Philadelphia and was district attorney of Delaware County and
has done an outstanding job for you. His office received three
awards for their work in prosecuting a major drug organization
last year, and he needs help. I know your budgetary limitations
have caused some reductions in staff there.
In taking a look at the situation--and I have seen it for
many years since my days as district attorney of Philadelphia--
it has been my thought that mentoring might provide the best
short-term assistance to eliminate the killings and the gang
warfare. It is not going to be eliminated, but it can be
ameliorated.
Attorney General Gonzales. I could not agree with you more,
Senator. I think you are right, absolutely right.
Senator Specter. And toward that end, I have contacted
Superintendent Paul Vallas, a very distinguished superintendent
of schools, and members of the School Board, and also talked to
Governor Rendell, talked to Mayor Street, District Attorney
Lynne Abraham.
Both Governor Rendell and D.A. Lynne Abraham were
assistants in my office. I have worked with them over the
years. And I discussed with the Mayor convening a meeting,
which we are having in Philadelphia tomorrow, to pool together
the mentoring resources to see how much we have and to make a
plea to the citizens of Philadelphia to come forward and
volunteer to be mentors.
I think if the Governor, the Mayor, and the D.A., public
officials and I join together, we can get a response. And what
I would like to do with you, Mr. Attorney General, is have our
staffs meet and go over the resources which you see available
on mentoring and then pick it up in the Department of Justice
budget and in the budget of education and health care, which
would have overlapping interests. And I know that you share the
deep concern, and let us work together on it.
Attorney General Gonzales. Senator, I am sure you know, of
course, that we have $2.5 million committed to the 222
Corridor, which really is a part within, to focus on gangs.
They have submitted a plan that has three pillars--one being
prevention, one being law enforcement, and the third being
prison re-entry.
And so obviously the prevention piece would include
education and would include mentoring. And so there is already,
I think, some good work being done within the 222 Corridor. But
I would look forward to working with you because I think, quite
frankly, by the time they get into gangs, it is tough to get it
reversed. We need to get to these kids before they join gangs.
Senator Specter. Mr. Attorney General, let me return to a
couple of subjects we talked about this morning and see if we
can not come to a meeting of the minds.
On the signing statements, let me illustrate the issue with
the PATRIOT Act. You and I personally worked on the PATRIOT
Act, as did our staffs, and we gave law enforcement additional
powers.
Now, in return, we took additional safeguards on oversight.
But when the President signed the PATRIOT Act, he reserved what
he calls his right to disregard those oversight provisions.
Now, in the context where the Chairman of the Committee and
the Attorney General negotiate an arrangement, is it
appropriate for the President to put in a signing statement
which negates the oversight which had been bargained for, which
has been bargained for?
Attorney General Gonzales. Senator, I would just say that,
you know, a signing statement cannot give to the President any
authority that he does not already have under the Constitution.
And so to the extent that the President makes that kind of
statement and informs the Congress and the American people
about his interpretation, I would view that as a good thing.
But there is no additional--he has that authority already. He
does not need to say--
Senator Specter. But if he thinks those provisions
derogate, inappropriately take away his constitutional
authority and the act is unconstitutional, then he ought to
veto it.
Attorney General Gonzales. But, Senator, I think--
Senator Specter. Or at least he ought not to bargain it
away.
Attorney General Gonzales. There may be a feeling that, of
course, the act may be totally constitutional depending on its
application, and the President wants to ensure that--he wants
to give direction to the executive branch as to what he thinks
would be a constitutional application.
And, of course, quite frankly, the President, knowing how
much work is involved in getting legislation passed,
particularly pieces of legislation like the reauthorization of
the PATRIOT Act, I mean, the last thing he wants to do is veto
all that hard work if he does not need to. And, you know,
Presidents of both parties have taken this approach.
Senator Specter. And then let him tell us in the
negotiations that he is not going to agree to the oversight,
and then we can decide whether to give him more power. He
cannot get the power unless Congress gives it to him.
Attorney General Gonzales. Senator, I do not know--
Senator Specter. He does not have inherent constitutional
authority to take power that is not granted by Congress.
Attorney General Gonzales. Unless it is granted by the
Constitution.
Senator Specter. Well, if he wants specific law enforcement
authority, there has to be an express grant by Congress.
Let me pick up one other subject, if I may, Mr. Chairman. I
may go a little over time, which I do not like to do, but let
me take up this habeas corpus issue very briefly.
Where you have the Constitution having an explicit
provision that the writ of habeas corpus cannot be suspended
except in cases of rebellion or invasion, and you have the
Supreme Court saying that habeas corpus rights apply to
Guantanamo detainees, aliens in Guantanamo, after an elaborate
discussion as to why, how can there be a statutory taking of
habeas corpus when there is an express constitutional provision
that it cannot be suspended and an explicit Supreme Court
holding that it applies to Guantanamo alien detainees?
Attorney General Gonzales. A couple of things, Senator. I
believe that the Supreme Court case you are referring to dealt
only with the statutory right to habeas, not the constitutional
right to habeas.
Senator Specter. Well, you are not right about that. It is
plain on its face they are talking about the constitutional
right to habeas corpus. They talk about habeas corpus being
guaranteed by the Constitution except in cases of an invasion
or rebellion. And they talk about John at Runnymede and the
Magna Carta and the doctrine being embedded in the
Constitution.
Attorney General Gonzales. Sir, the fact that they may have
talked about the constitutional right to habeas does not mean
that the decision dealt with the constitutional right to
habeas.
Senator Specter. When did you last read the case?
Attorney General Gonzales. It has been a while, but I would
be happy to go back--I will go back and look at it.
Senator Specter. I looked at it yesterday and this morning
again.
Attorney General Gonzales. I will go back and look at it.
The fact that the Constitution--again, there is no express
grant of habeas in the Constitution. There is a prohibition
against taking it away. But it has never been the case--I am
not aware of a Supreme--
Senator Specter. Now, wait a minute, wait a minute. The
Constitution says you cannot take it away except in case of
rebellion or invasion. Does that not mean you have the right of
habeas corpus unless there is an invasion or rebellion?
Attorney General Gonzales. I meant by that comment the
Constitution does not say every individual in the United States
or every citizen is hereby granted or assured the right to
habeas. It does not say that. It simply says the right of
habeas corpus shall not be suspended except by--
Senator Specter. You may be treading on your interdiction
and violating common sense, Mr. Attorney General.
Chairman Leahy. Mr. Attorney General, just so that--I want
to make one thing very clear on this habeas corpus.
Attorney General Gonzales. Sir, your mike. I cannot hear
you.
Chairman Leahy. I want to make one thing very clear on the
habeas corpus, and we can go back and forth on what the case
held or anything else. I feel that the Congress of the United
States and the administration made a horrible mistake last year
in a very short period of time and debate, basically undercut
the writ of habeas corpus, the Great Writ. There are those who
talked about 9/11 and why they were doing it. I talked about
the year 1215, I believe it was, when it first came into our
concept. But the great writ of habeas corpus was done horrible
damage by the Congress in a law the President signed last year.
I just want to put everybody on notice that as Chairman of
this Committee, I will do everything possible to restore all
the rights under the writ of habeas corpus that were there
before we passed the legislation we did, legislation I voted
against. I will make every effort to restore it. I just want
everybody to know that.
Now, I would like to have allies in that, but I will try to
do it no matter what.
On the question of signing statements, you said that a
signing statement cannot give a President more authority. Well,
it also--and this President has used signing statements far
more than any other President.
Attorney General Gonzales. Sir, I would disagree with that.
Probably more but not far more.
Chairman Leahy. We have actually done numbers on it. We
have actually run the numbers on it, and I will put the numbers
in the record. Certainly on the issues of constitutional
issues, far more than anybody in the history of the ABA Task
Force, so the 800 provisions of law challenged by Presidential
signing statements in this administration, 86 percent of the
President's signing statements have related to constitutional
challenges. You talked about President Clinton; 26 percent of
his did.
But the fact of the matter is while you say they cannot
give him more power, he also has the duty under the
Constitution to faithfully execute our laws. Now, it is one
thing to make a big political thing of negotiating a piece of
legislation. I will give one example.
The President, the Vice President did that with a member of
this body on the question of torture. Everybody went out,
declared victory on that. Congress passes the bill outlawing
torture. And then quietly, on a Friday, the White House issues
a signing statement saying, however--and this was after a full
negotiation of the law--these parts will not apply to this
President or those people acting under his direction.
The chief sponsor of the legislation made a modest one-
paragraph--again, on Friday afternoon, saying, gosh, that is
not what I intended, and that was the end of it. And there have
been hundreds of others. So we will look at that.
Let me ask you, though, in a specific area. When the
Congress reconvened this month--or convened, I should say, I
reintroduced my war profiteering prevention bill. That is going
to make it a crime for military contractors to overvalue goods
and services with the specific intent to defraud the United
States in connection with war or the reconstruction efforts in
Iraq.
Now, we spent more than half a trillion dollars in Iraq so
far. Last week, the President said he is going to spend at
least another $1.2 billion more on reconstruction. The Special
Inspector General for Iraq Reconstruction says millions of U.S.
taxpayer funds remain unaccounted for because of fraud by
contractors. So let me ask you about the Department's
investigation on contracting fraud in Iraq.
According to Taxpayers Against Fraud, a nonprofit watchdog
group, there are more than 50 Iraq fraud investigations
currently ongoing in the Government. At least five False Claims
Act cases involving Iraq contracting fraud have been filed
under seal. But, to date, the Justice Department has not
brought a single criminal case against a corporate contractor
in Iraq. Why? It appears you may be avoiding investigating and
prosecuting fraud. Is that the case? Why not a single one?
Attorney General Gonzales. Well, no, it is not the case.
Chairman Leahy. It is not the case that you have not
brought a single criminal case against a corporate contractor
in Iraq.
Attorney General Gonzales. No. It is not the case that we
are trying to avoid bringing these kinds of cases. These are
difficult cases to make. In the normal case, fraud cases are
difficult to make, and depending on the complexity and the
size, it may take years to get them ready for trial.
Chairman Leahy. Would they be easier with the war
profiteering legislation that I have submitted, something that
passed the Senate overwhelmingly the last time it came up, but
I understand that at the request of the administration was
taken out by the Republicans in the House.
Attorney General Gonzales. I do not know, Senator. I would
be happy to look at it and let you know. But when you are
talking about also investigations overseas, particularly in a
war zone, it complicates our efforts. But I can tell you that
we are committed--we have established a--
Chairman Leahy. We find Halliburton gives water with E.
coli in it to our troops. The press was able to find that out.
We find that an enormous number of weapons we sent over there
have been sold on the black market. There should be some
ability to trace some of this.
Attorney General Gonzales. Well, sure there is. But, I
mean, can you make a case? I mean, that is the thing. We do
operate under a system of laws and procedures.
Chairman Leahy. Well, how many prosecutors or investigators
are currently assigned to investigate contracting fraud in
Iraq?
Attorney General Gonzales. We can give you that number, but
let me just mention we do have a procurement fraud task force
where we are working with IGs and investigators, including in
Iraq, to ensure that we have the best practices in place, that
we are coordinated, that we are communicating with each other.
And so there is a coordinated effort to go after procurement
fraud generally, but also within Iraq.
Chairman Leahy. Do you know offhand how many prosecutors--
Attorney General Gonzales. I do not, sir, but I will get
you that information.
Chairman Leahy. Can we have it before we come--
Attorney General Gonzales. I will try to do that.
Chairman Leahy. Let me ask you another question, and then
we can take a break. You know, I live about an hour's drive
from Canada and go up there often, and in Vermont we tend to
get a lot of Canadian news on the radio and so on.
But something that made the news here in the United States
was the question of Maher Arar. That is M-a-h-e-r, A-r-a-r, in
case I mispronounced it. He is a Canadian citizen. He was
returning home from a vacation. The plane stops at JFK in New
York and continues on to Canada. He was detained by Federal
agents at JFK Airport in 2002 on suspicion of ties to
terrorism. He was deported to Syria.
He was not sent on the couple hundred miles to Canada and
turned over to the Canadian authorities, but he was sent
thousands of miles away to Syria. He was held for 10 months.
The Canadian Commission later found that there was no
evidence to support he had any terrorist connection or posed
any threat, but that he was tortured in Syria. He was held in
abhorrent conditions there, and those sending him back must
have known he was going to be tortured.
The Canadian Government has apologized for its part in this
debacle. In fact, the head of the Royal Canadian Mounted Police
actually resigned over it. The country is prepared to
compensate him for it.
This country has not said anything at all that we made any
mistake or had any apology. Press accounts indicate the Justice
Department approved his deportation to Syria. I have not heard
anything clear from the Justice Department about their role in
this affair.
And I understand he remains on the United States terrorist
watchlist so he could not come 50 miles or 75 miles, or
whatever it is, south into the United States without fear of
being picked up again and sent back to Syria.
Why is he on a Government watchlist if he has been found
completely innocent by this Canadian Commission, which actually
had information from us?
Attorney General Gonzales. Senator, I have got some very
definite views about this particular case. As you--
Chairman Leahy. Well, go ahead.
Attorney General Gonzales. As you know, we are in
litigation. What I want to do is hopefully in the next few
days, I am happy to sit down with you and Senator Specter and
give you more information. In fact, we may be able to publicly
say more about this shortly. I am just not at liberty at this
time to say--
Chairman Leahy. Let me ask you this: Why are not you at
liberty? I do not understand that. This is not a matter of
Executive privilege.
Attorney General Gonzales. No, sir. Again, I am not--
Chairman Leahy. Because only the President could claim it.
You cannot.
Attorney General Gonzales. I am not suggesting that I will
not be able to answer your questions. I am just suggesting I
cannot do it today.
Chairman Leahy. Why?
Attorney General Gonzales. Sir, I am not--there is not a
position--I cannot represent the position of the executive
branch on this particular issue, but I think in a relatively
short period of time, there is more information that I should
be able to share with you, and hopefully that we can share
publicly.
Chairman Leahy. Well, why was he sent to Syria instead of
Canada?
Attorney General Gonzales. Well, again, Senator, I would be
happy to answer these questions. I am aware of the list of
questions you--I think you and Chairman Biden have submitted
with respect to this particular case. I think we can say a lot
more about it if you will just simply give me some additional
time.
Chairman Leahy. Can you tell me whether you took steps to
ensure that he would not be tortured? Of course, he was.
Attorney General Gonzales. I believe that piece of
information is public. There were steps--I think General
Ashcroft confirmed this publicly that there were assurances
sought that he would not be tortured from Syria. But--
Chairman Leahy. Attorney General, I am sorry. I do not mean
to treat this lightly. We knew damn well if he went to Canada
he would not be tortured. He would be held and he would be
investigated. We also knew damn well if he went to Syria he
would be tortured.
It is beneath the dignity of this country, a country that
has always been a beacon of human rights, to send somebody to
another country to be tortured. You know and I know that has
happened a number of times in the past 5 years by this country.
It is a black mark on us.
It has brought about the condemnation of some of our
closest and best allies. They have made those comments both
publicly and privately to the President of the United States
and others.
It is easy for us to sit here comfortably in this room
knowing that we are not going to be sent off to another country
to be tortured, to treat it as though, well, Attorney General
Ashcroft said we got assurances. Assurances from a country that
we also say now, oh, we cannot talk to them because we cannot
take their word for anything.
Attorney General Gonzales. Well, Senator, I--
Chairman Leahy. I am somewhat upset.
Attorney General Gonzales. Yes, sir, I can tell. But before
you get more upset, perhaps you should wait to receive the
briefing--
Chairman Leahy. How long?
Attorney General Gonzales. I am hoping that we can get you
the information next week.
Chairman Leahy. Well, Attorney General, I will tell you
what I will do. I will meet you halfway on this. I will wait
next week for that briefing. If we do not get it, I guarantee
you there will be another hearing on this issue.
The Canadians have been our closest allies, the longest
unguarded frontier in the world. They are justifiably upset.
They are wondering what has happened to us. They are wondering
what has happened to us.
Now, you know and I know we are a country with a great,
great tradition of protecting people's individual liberties and
rights. You take an oath of office to do that. I take an oath
of office to do that. I believe in my basic core nature in
that.
My grandparents when they immigrated to this country
believed that. Let us not create more terrorism around the
world by telling the world that we cannot keep up to our basic
standards and beliefs.
So I will wait a week. I will wait a week. But I will not
wait more than a week for that briefing.
We will stand in recess unless you want to say something
further.
Attorney General Gonzales. Only, Mr. Chairman, that we
understand what our legal obligations are with respect to when
someone is either removed, extradited, or rendered to another
country. We understand what our obligations are under the
Convention Against Torture, and we do take the steps to ensure
that those obligations are being met.
I look forward to be able to provide the briefing that you
are requesting.
Chairman Leahy. Thank you.
We will stand in recess until 2.
[Whereupon, at 12:40 p.m., the Committee recessed, to
reconvene at 2 p.m., this same day.]
Chairman Leahy. Before we start, first I will yield a
minute to the Senator from Iowa, because he had something he
wanted to correct.
Senator Grassley. Only a minute, for my colleagues over
there that have not had their first round yet.
I took what you said about not receiving letters from me,
and we have checked with the Department of Justice Legislative
Affairs. You received my January 9th letter by fax at 6:16 p.m.
that day; my March 17th letter by e-mail at 5:41 p.m. on that
day; and my April 26th letter by e-mail at 1:49 on that day. So
I hope you will do that.
And then because I have to go, I am going to submit a
question on agricultural concentration, and I would appreciate
an answer in writing because I have a great deal of interest to
make sure that we keep a competitive environment within
agriculture.
Attorney General Gonzales. Thank you for the information,
Senator.
Chairman Leahy. Thank you.
Senator Grassley. Thank you, Mr. Chairman.
Chairman Leahy. Of course.
Mr. Attorney General, let me just make a short observation,
and I realize Senator Specter is back here, but you made a
comment with him, speaking about habeas corpus, that troubles
me.
You argued that the Constitution does not guarantee a right
to habeas corpus because in a negative construction, what it
literally does is prohibits the Congress from suspending the
privilege or the writ of habeas corpus except in cases of
rebellion or invasion.
Well, many of our most cherished rights are guaranteed by
the Constitution in much the same way. For example, the First
Amendment is also a negative construction. It prohibits
Congress from making laws infringing on religious freedom and
our freedom of speech. But you would not say that it does not
guarantee free speech and religion.
The Fifth Amendment is negative. It prohibits the
Government very overreaching in the deprivation of life,
liberty, and property without due process of law. I mean, I
could go into the Second Amendment and the Fourth Amendment.
But you see what I am doing here. They do not lay out a
right. They prohibit you from taking away a right. So why would
not that apply the same thing to the writ of habeas corpus?
Attorney General Gonzales. I do not disagree at all, Mr.
Chairman. I was just simply making an observation that there is
not an express grant. My understanding is that in the debate
during the framing of the Constitution, there was discussion as
to whether or not there should be an express grant, and the
decision was made not to do so.
But what you see in the language is a compromise. I think
the fact that in 1789 the Judiciary Act--they passed statutory
habeas for the first time. They reflect maybe--I do not want to
say a concern, but why pass a statutory right associated to the
Constitution? Perhaps because there was not an express grant of
habeas.
I believe that the right of habeas is something that is
very, very important, one of our most cherished rights, and so
I was simply making an observation as to the literal language
that the--
Chairman Leahy. I think one wants to be very careful in
making the argument the way it is. I will continue to make the
argument that the Congress made a disastrous mistake in
restricting the writ of habeas corpus by legislation.
And I and I understand a number of Republicans, Senator
Specter among others, will join together to try to rectify that
mistake. But I am on the time of the senior Senator from
Illinois, who is also the Deputy Majority Leader, Senator
Durbin.
Senator Durbin. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for your service to our country and for
joining us today. Thanks to all of your staff for your hard
work.
I would like to ask you, Mr. Attorney General, to allow me
to say a few words and then react to them if you would.
Attorney General Gonzales. Yes, sir.
Senator Durbin. I am trying to understand in my mind what
the image of America is when it comes to the treatment of
prisoners who are being detained. I am afraid that in many
parts of the world they believe that we have abandoned some of
our time-honored principles of due process since 9/11, and they
question whether the United States is now following a course of
conduct that for years we have said does not define us as a
Nation. Let me give you three specific examples.
First, on military commissions, Senator Specter and I
prepared a bill back in 2002 trying to find a congressional
answer to the construction of these military commissions which
would meet the security needs of our country.
The administration decided, the executive branch, not to
deal with Congress but to try to create these military
commissions on their own and, unfortunately, the outcome was
not good. So here we are 5 years and zero convictions at
Guantanamo because the administration would not work with
Congress to create military commissions.
No. 2, you gave a speech very recently--in fact, it was
yesterday--before the American Enterprise Institute which
raised some troubling observations. In this speech, as it was
reported, you said, and I quote, ``A judge will never be in a
position to know what is in the national security interests of
the country.''
``I tried to imagine myself being a judge. What do I know
about what is going on in Afghanistan or Guantanamo? ''
Now, the person who wrote the article opened it by saying,
``Alberto Gonzales on Wednesday warned Federal judges not to
meddle in cases involving national security following a string
of judicial rebukes of the administration's antiterrorism
initiatives.''
An observer of your statement in that article would
conclude that you have not only at the executive level forsaken
cooperation with the legislative branch of our Government, you
are now suggesting the judicial branch cannot be trusted when
it comes to issues of national security.
But it does not end there. Cully Stimson, the Assistant
Secretary in the Department of Defense, took it a step further
and questioned whether or not there was a right to counsel and
raised the specter that if we allowed detainees to have an
opportunity to be represented, it would mean that the cases
would take longer and the desired result might not be attained.
Now, Mr. Stimson, in fairness, apologized for his remarks
yesterday. But step back for a moment, if you will, as an
average American or someone observing America under these
circumstances and say, well, this is just an effort to
consolidate power in the executive branch of Government, to
deny right to counsel, to deny judicial oversight because they
cannot be up to the job, and not to involve Congress in
creating commissions that might result in more due process.
Can you understand how some could draw that conclusion from
those three examples?
Attorney General Gonzales. Thank you, Senator. Can I speak
about my reaction?
Senator Durbin. Of course.
Attorney General Gonzales. Obviously, military commissions,
you are right. We began the process several years ago
believing, based upon previous precedent and tradition, that
the President of the United States, relying upon the model in
Quirin during World War II, could establish military
commissions.
The Supreme Court of the United States said no, that given
the fact that Congress has spoken in this area, if the
President wanted to use military commissions that differed from
the procedures outlined by Congress, there would have to be a
necessity for that and the President had not articulated such a
necessity.
And so because of that we went to the Congress and worked
with the Congress to get a set of procedures for military
commissions. I think that they reflect an agreement between the
executive branch and the legislative branch to ensure that
unlawful combatants who do not play by the rules, who are
indiscriminately killing innocents, nonetheless are going to
receive a fair trial as we bring them to justice.
My speech to the American Enterprise Institute, I want to
make sure you get a copy of it, because the focus of the speech
was to put into context in my mind the appropriate role of the
judiciary in our system of Government and that there really
ought to be strong deference by the judicial branch not just to
the executive branch but primarily to the Congress in terms of
making policy decisions, particularly with respect to national
security.
You have the ability to have hearings and gather up
information in deciding what is in the best interests of the
country. We have embassies around the world. We have national
intelligence agencies which gather up information. The Congress
and the executive branch are in a much better place to
determine what is in the national security interests of our
country as opposed to the courts.
Clearly, I am not saying that courts do not have a role in
deciding legal issues relating to terrorism cases. That is
their job. I just want to make sure that they are deciding the
legal issues and not making policy decisions. That was the
purpose of the speech that I gave yesterday.
Finally, with respect to lawyers, I am already on record
saying that we are supporting a process where lawyers will be
made available in the trials at Guantanamo. My own sense is
that they will be represented by the best counsel that is
available. We will have good lawyers on our side. And that is
the best way to ensure justice with respect to these trials.
I do share your concern about our image around the world,
and I think that there are some things we probably could have
done better, could have done differently. And I think we have
an obligation in the executive branch to try to do a better job
and try to--I do not want to say rehabilitate ourselves, but
give a better explanation of what we are doing.
Senator Durbin. Well, Mr. Attorney General, in fairness to
the President when asked about mistakes said Abu Ghraib was a
mistake. He concedes, and I think we all do, that the treatment
of detainees was a mistake.
Now, let me ask you a specific question on that, though.
When it comes to the mistreatment of detainees, we know the
Defense Department has responsibility to judge the actions of
military personnel. When it comes, however, to civilian
personnel, whether we are talking about people who work for the
CIA or other agencies, that is being handled by your
Department.
Attorney General Gonzales. That is correct.
Senator Durbin. Attorney General Ashcroft several years ago
transferred pending cases to the Eastern District of Virginia.
Two and a half years since the transfer, there has not been a
single indictment in any cases. While soldiers have been sent
to prison for abuses of detainees, our Department of Justice
has not prosecuted a single individual.
Attorney General Gonzales. I think there was an individual
name Basara who was, in fact, convicted. I am obviously aware
of your very strong interest in this. We have responded with a
letter sort of outlining--giving as much information as we can
about the status of the investigations.
Quite candidly, as the letter indicates, there are very
difficult hurdles that we have to deal with, with respect to
these kinds of prosecutions when you are talking about trying
to prosecute a case that occurred--for activities that occurred
in a war zone, for example. There are unique challenges.
Nonetheless, we are committed to try to bring people to justice
and--
Senator Durbin. May I ask you about a specific instance?
Attorney General Gonzales. Yes, sir.
Senator Durbin. I know my time is up here, but the use of
dogs in interrogation was part of specifically authorized
activity by then-Defense Secretary Rumsfeld as well as Mr.
Haynes, whose name has now been withdrawn for appointment to
the circuit court.
Can you assure us that none of the civilian cases under
investigation by the Justice Department involve the use of
techniques that were authorized by the administration and later
abandoned as inconsistent with our opposition to torture and
our adherence to Geneva Convention rules?
Attorney General Gonzales. Well, Senator, I would be happy
to go back and look at that before giving you that kind of
assurances. But I know that our prosecutors understand that if,
in fact, someone is engaged in conduct which violates the law,
they are going to be prosecuted if we can make the case.
Senator Durbin. But it has not happened. And you understand
soldiers have gone to jail.
Attorney General Gonzales. Yes, sir, I do understand.
Senator Durbin. Men and women in uniform have gone to jail,
and the average American has to step back and say, Wait a
minute, why would you hold the soldiers to a high standard,
imprison them and convict them, and then not find a civilian
involved in similar conduct responsible as well?
Attorney General Gonzales. Again, Senator, I think, you
know, one is better than zero. I think there has been at least
one. But these are difficult cases. We are committed to get to
the bottom of it because you are correct.
You know, it is one thing for us to say--you know, when
people raise the possibility that the United States is involved
in torture, what I say is, listen, the difference between the
United States and a lot of other countries is that when there
are allegations about mistreatment, there are investigations;
and if people are not adhering to the legal standards, then
they are held accountable.
I know that is what the President expects of us. That is
what I have asked of our prosecutors. I am not saying this is
an excuse because there is no excuse for not prosecuting cases
that should be prosecuted. These do present unique challenges
for us, and I can commit to you that we will continue looking
to see what cases can be brought, if, in fact, there are
legitimate cases to bring.
Senator Durbin. One last short question about letters that
Senator Grassley raised. Last August, Senators Kennedy,
Feingold, and myself sent a letter to the President and to your
attention asking him to reconsider his decision to block the
Office of Professional Responsibility from investigating
Justice Department attorneys who approved the NSA program
engaged in misconduct. Do you believe the OPR investigation
should be permitted to go forward?
Attorney General Gonzales. Senator, well, I mean, the
President has made the decision as to whether or not they
should be read into the program, which, of course, as announced
yesterday by the President, will not be reauthorized.
I can tell you that the IG, the Inspector General of the
Department, is doing an investigation with respect to the FBI's
role in this program.
Senator Durbin. I just hope that you agree with me that Mr.
Bradbury's confirmation should not go forward if he is still
under investigation by the Office of Professional
Responsibility.
Attorney General Gonzales. Sir, I am not aware that he is
under investigation by the Office of Professional
Responsibility.
Senator Durbin. I hope we can get an answer to our letter
of last August.
Attorney General Gonzales. Yes, sir.
Senator Durbin. Thank you, Mr. Chairman.
Chairman Leahy. I agree with the Senator from Illinois--
Attorney General Gonzales. Senator, your microphone?
Chairman Leahy. I am new at this. I agree with the Senator
from Illinois. If there is such an investigation going on, we
should know that, and I would want to know that definitively
one way or the other before any confirmation hearing would be
scheduled.
I think that the Senator from Illinois asks a legitimate
question. I think it is one that could be cleared up quickly
one way or the other. I think that perhaps the best way would
be to respond to me and to Senator Specter on that issue.
We have also been joined by a new member of this Committee,
Senator Sheldon Whitehouse from Rhode Island. Senator
Whitehouse is a distinguished former Attorney General, and I
appreciate very much his willingness to come on this Committee.
He has already been extraordinarily helpful to the Committee in
planning purposes. Senator Whitehouse, the floor is yours.
Senator Whitehouse. Thank you, Mr. Chairman.
Attorney General, it is nice to see you. Thank you for
being here. I would like to start with an observation in
response to the colloquy between you and Senator Feinstein. As
a former United States Attorney and somebody who as U.S.
Attorney had very active investigations into public corruption
in Rhode Island, I share a bit the concern of the removal of
U.S. Attorneys under these circumstances.
And in your response, you indicated that you would never do
anything for, I think you said, political reasons, and you
would certainly never do anything that would impede the ongoing
investigation.
I would suggest to you that in your analysis of what the
Department's posture should be in these situations, you should
also consider the potential chilling effect on other United
States Attorneys when a United States Attorney who is involved
in an ongoing public corruption case is removed from office.
They are not easy cases to do technically, as you know.
They are fraught with a lot of risk. And I think that U.S.
Attorneys show a lot of courage when they proceed with those
cases. And any signal that might be interpreted or
misinterpreted as discouraging those kinds of activities I
think is one you would want to be very, very careful about.
So I would propose to you that that is a consideration you
should have in mind as you make those removal and reappointment
decisions.
Attorney General Gonzales. It already is, but thank you,
Senator. I appreciate that.
Senator Whitehouse. The other question I have is--the
Chairman has been good enough to suggest that he is new at
this. I am really new at this, and I would like to start really
right at the very, very beginning, and that is, with the nature
of executive testimony before a congressional inquiry.
You and I have both been in courtrooms and tried cases. We
have both dealt with witnesses. And I have a pretty established
set of expectations about what a witness is obliged to do.
First, let me ask you, Has the Department ever provided
formal advice to the executive branch as to the
responsibilities and obligations that a member of the executive
branch accept by testifying before Congress in a hearing?
Attorney General Gonzales. If I understand your question,
the Department is charged by regulation and by statute to
provide legal advice to the executive branch. We have had one
meeting at the Department in the last few months, I guess, with
various individuals from other agencies to provide advice with
respect to ensure better coordination and consultation with
sharing information with the Congress. And I believe there has
also been a series of sort of a smaller set of meetings with
the same objective.
Our advice is--I mean our role as a Department is to- -we
are the counsel for the executive branch, and our role is to
give advice, and that advice is for the purpose of ensuring
that we are meeting our appropriate level of accommodation and
consultation and coordination and cooperation with the
Congress. Yes, sir.
Senator Whitehouse. Have you published anything?
Attorney General Gonzales. I have not published anything--
Senator Whitehouse. Say a handout that you give to a
witness that says, look, you are going up to testify before
Congress, here are your responsibilities?
Attorney General Gonzales. I do not know if there was a--I
certainly read something. It is very much consistent with what
I sent the Chairman. I sent the Chairman a letter last week in
response to a request for information that he had made. We had
sent back a response. It was one that disappointed him.
Therefore, I sent back a response saying, well, let us get
our staffs together and see if we can reach some kind of
accommodation here. And, by the way, this is a set of
principles that I intend to follow. They are a set of
principles outlined in the letter from the Assistant Attorney
General under Janet Reno to a gentleman named Linder. It goes
through various categories in explaining--
Senator Whitehouse. Rather than explaining it to me now,
would you mind just sending me a copy and I can go on from
there.
Attorney General Gonzales. Yes, sir.
Senator Whitehouse. Because there are other questions I
want to followup on a little bit. First of all, do you think
whether a witness is sworn or not makes a difference in what
their obligations are when they are the witness before a
congressional hearing?
Attorney General Gonzales. Well, it certainly would not
matter to me in terms of the answer that I would provide. I
think there are statutes that would make it a crime in any
event, even if you were not sworn in.
And so I think that the repercussions--the legal
ramifications of being sworn in or not being sworn in, I think
they are the same. There are statutes that would kick in
whether or not you are sworn in or not.
Senator Whitehouse. And if obviously we are aware that if
somebody comes and provides an affirmative untruth or falsehood
to a congressional committee, there are consequences from that.
Moving on to the next step, we have all been in courtrooms
where witnesses engage in what you might call the old ``bob and
weave'' and simply did not answer the question, and whether it
is the exalted United States District Courts right down to the
District Court in Rhode Island, administrative law judges all
over Government, when a lawyer has a witness and is asking
questions, if the witness is dodging the question, there comes
a point where the lawyer is entitled to ask the judge to direct
the witness to answer the question.
Is there any such authority that you believe exists in
Congress to penetrate the ``bob and weave'' if it is happening
that is akin to what you and I as lawyers have experienced in
the courtroom when finally a properly propounded question that
is not being fairly answered, you can kind of cut to the chase
and get an answer?
Attorney General Gonzales. Sir, I do not know what that
would be. Obviously, there are times where it is difficult to
give the kind of response that a question may seek to solicit.
It may be that for reasons of national security--
Senator Whitehouse. Well, let us assume for a minute that
it is not Executive privilege, it is not Fifth Amendment
privilege, it is not national security. My hypothetical is that
the question is simply being avoided, and we have all--
Attorney General Gonzales. It may be embarrassing or
something.
Senator Whitehouse.--encountered witnesses who are capable
of doing that in court proceedings all our lives. And I do not
think it is going to stop just because I am a Member of
Congress now that people are evasive about questions. Do you
think the Chairman has the authority to direct a witness to
answer?
Attorney General Gonzales. I think the Chairman has a great
deal of authority, and I think what would normally happen in
that kind of situation is that there would be discussions, if
not between the Chairman and the witness, perhaps between the
individual Senator and the witness. It may not occur at during
the hearing, but the fact that, for example, during our
exchange you may not get an answer that you are satisfied with.
My obligation, I think, to communicate and consult with the
Congress does not end when this hearing ends, and so if you are
unsatisfied with the answer to a question, I think you and I
should have additional discussions, quite frankly. And we will
figure out whether or not we can give you the answer that would
satisfy you in terms of--I mean, a responsive answer.
Senator Whitehouse. I appreciate your sharing with me your
sense of those ground rules, and thank you, Mr. Chairman.
Chairman Leahy. Thank you. Let me just wrap on this.
In the wake of Hurricane Katrina, New Orleans has seen a
particularly painful surge in crime. I base this just on what I
see in the news. It is recovering from the devastation of the
hurricane. The recovery effort was too little, too late.
Without going into the catalogue of things that went wrong,
the fact is you now have a wave of violent crime that makes
it--it would make it difficult for any city to get back on its
feet, but certainly for a city in the State of Louisiana, it is
especially difficult.
I know Senator Landrieu, the senior Senator from Louisiana,
has proposed a plan, a 10-point plan, to crack down on crime in
New Orleans. It is going to require a lot of new Federal
manpower and resources.
Will you work with Senator Landrieu to make sure that
anything that could be available from the Federal Government is
available in that devastated area?
Attorney General Gonzales. I am reminded that I am speaking
to Senator Landrieu tomorrow. Senator, there are some serious
issues, particularly in law enforcement, in New Orleans. I
think we have done a lot as a Department. I am happy to sit
down with Senator Landrieu and see what else we can do. I am
aware of the challenges that currently exist and still exist in
Louisiana.
Chairman Leahy. And I am not sitting here suggesting I have
got an automatic road map of how to make it better. It is going
to be very, very difficult. You have got criminal matters,
social matters, reconstruction matters.
But that city--none of us have experienced in our homes
anything that devastating, and I think as a country, just as we
banded together as a country for earthquake victims and flood
victims and fire victims in other parts of the Nation, that is
the benefit of a nation like ours. And I would urge you to do
whatever you can do to help down there, and if there is
anything I can do, I will add to that.
Attorney General Gonzales. Senator, the President has been
very clear in terms of our obligation to try to do what we can
do to be helpful to the locals.
Chairman Leahy. And Senator Durbin has already raised this
issue about Cully Stimson. I cannot tell you how angry I was
that here he is the Assistant Secretary in charge of detainee
affairs at the Department of Defense, condemning lawyers for
donating their legal services. I was a defense attorney before
I was a prosecutor.
One of the things I knew very well: your best chance of
getting justice done is you have a very good lawyer for the
prosecution and a very good lawyer for the defense, and then
things work well.
I think it was outrageous. I was glad to hear what you said
here today. I am going to put into the record a letter from the
deans from several prominent law schools who tried to teach
young lawyers the value of pro bono. And I went to--I was at a
law firm initially with a very--the senior partner was a very
conservative Republican. I think I was about the second
Democrat in 30 years ever to be put in there. And he pounded
home to everybody that you did pro bono work or you did not
serve in his law firm. I will put that in the record.
But, you know, even Mr. Stimson's apology, if I might say,
I thought was very much too little, too late. His comments were
so carefully timed to coincide with a broadside and the right
to counsel and an op-ed piece published in the Wall Street
Journal.
Am I correct in assuming that you feel very strongly that
there should be adequate counsel on both sides in any of these
issues?
Attorney General Gonzales. Certainly, Senator, with respect
to the trials going on at Guantanamo, our whole structure is
focused on adversary proceeding where we will be--the United
States will be well represented and I am sure the detainees
will be well represented as well.
Chairman Leahy. Let us not condemn those lawyers. They are
very, very good lawyers, many of whom are doing it at great
person cost to themselves, who want to stand in and make sure
rights are handled. They deserve our praise for doing it.
Now, I hope the disagreements today do not totally obscure
my desire to work with you and make the Department of Justice a
better defender of our rights, our constitutional rights.
Even when I was a law school student, I remember being
invited with a dozen other students to go and meet with the
then-Attorney General of the United States, Robert Kennedy. We
thought it was going to be a grip-and-grin. It turned out to be
at least a couple hours.
I have never forgotten that meeting. Never forgotten that
meeting. Some of us went on to be prosecutors, some defense
attorneys, some judges out of that dozen. All of us were
inspired by his commitment that the Department of Justice
defends everybody's rights.
Now, working with Senator Specter and Senator Kennedy and
others in a bipartisan way, I hope we can enact fair and
comprehensive immigration reform. I have had, along with
others, long talks with the President who says he wants a
comprehensive immigration reform.
I realize the talking points got way down the line during
last fall's elections. We do not have elections this year. If
we are going to have comprehensive immigration reform, it is
going to require every one of us to leave our political labels
at the door and work together.
The same with rising violent crime. Many will say we have
got to put money into police forces in Iraq, and that may well
be. I am not here to debate that. But I do think we have to do
more Federal assistance, State and local law enforcement
partners. I have seen how well it works.
Attorney General Gonzales. Mr. Chairman, as you--
Chairman Leahy. And, you know, those are just some of the
areas that I think that we have to provide more to our U.S.
Attorneys around the country. They are on the front lines.
We have some of the most--and this has been true with most
administrations--some of the best men and women you can imagine
working there. And I admire what they are doing. I believe
Senator Whitehouse is a former U.S. Attorney, and we know how
difficult that is.
So let us find those areas where we can work together. We
will still lock horns in a number of areas, as we have in the
past. But there are so many areas for the good of this country
that this Committee and your office have got to work together.
Attorney General Gonzales. I agree. Thank you, Mr.
Chairman.
Chairman Leahy. Thank you.
We stand adjourned.
[Whereupon, at 2:31 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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