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U.S. Senate Judiciary Committee Holds a Hearing on Wartime Executive Power and the National Security Agency's Surveillance Authority
Part II of IV

CQ Transcriptions
Monday, February 6, 2006; 3:48 PM

The transcript picks up with the testimony of Senator Herb Kohl. Return to Part I.

Senator Kohl?

KOHL: Thank you, Mr. Chairman.

Mr. Attorney General, the administration, the Congress and the courts share a common goal: to protect the American people. We all believe that as we face the long-term threat from terrorism, we must work together to ensure that the American people are safe. We in Congress have our role to play by writing the laws that protect Americans, and you have your role executing those laws and, of course, the courts have their role.

As part of this effort against terrorism, we have drafted many laws to give the administration the powers that it needs. And I'm hopeful that we can work together again to ensure that our laws are working to protect the American people.

Mr. Attorney General, if terrorists are operating in this country or people in this country are communicating with terrorists, of course, we must collect whatever information that we can.

To accomplish this, the administration had three options, as you know: first, you could have followed the current law, which most experts believes gives you all the authority you need to listen to these calls; second, if you thought the law inadequate, you could have asked Congress to grant you additional authority; or third, the course you followed, conduct warrantless spying outside current law and without new authorization.

If you had the two options that would have given you unquestionable authority to monitor these calls and one whose legality was at best questionable, then why did you go for the most questionable one? Why not either follow the law or seek new laws?

GONZALES: Well, Senator, I agree with you: We are a nation of laws. And we do believe we are following the law. And we do believe that the Constitution allows the president of the United States to engage in this kind of surveillance.

We also believe the authorization to use military force represents a supplemental grant of authority by the Congress to engage in this kind of surveillance totally consistent with FISA.

If you study carefully the white paper that we've submitted, we're not arguing that somehow FISA was amended or that we're somehow overriding FISA. That's not what we're talking about here.

We are acting in a manner consistent with FISA. FISA contemplates another statute. The Congress provided additional supplemental statutory grant of authority through the authorization to use military force.

GONZALES: And so I totally agree with what you're saying. We should be acting -- particularly, in a time of war, I think it is good to have the branches of government working together. It's good for the country.

I believe that's what happened here. Congress exercised its Article 1 authorities to pass the authorization to use military force. You supplement that with the president's constitutional authority as commander in chief and we're working together...

KOHL: Are you saying that there was never any debate within the administration at any level or Justice Department at any level about whether or not you were pursuing the right course? It's my understanding that there was debate.

GONZALES: Senator, of course, there was a great deal of debate. Think about the issues that were implicated...

KOHL: But if there were debate, if there...

GONZALES: Of course, there were debates, Senator.

If I may just finish this thought, think about the issues that are implicated here: a very complicated Foreign Intelligence Surveillance Act -- it's extremely complicated -- the president's inherent authority under the Constitution as commander in chief, the Fourth Amendment, the interpretation of the authorization to use military force.

You've got a program that's existed over four years. You have multiple lawyers looking at the legal analysis. Of course, there's -- I mean, this is what lawyers do. We disagree, we debate, we argue.

At the end of the day, this position represents a position of the executive branch, (inaudible) the president of the United States.

KOHL: With all the debate we're going through today and leading up to today, it seems to me clear that there is a real question about the course you pursued. That's why we're here today.

Which would, it seem to me, justify asking the question: Why did you take the third option? And, of course, you've given your answer. But there are some of us that would question that answer.

Let's just move on.

GONZALES: Yes, sir.

KOHL: Mr. Attorney General, if applying to the secret FISA Court is too burdensome, then would you agree to after-the-fact review by the FISA Court and by Congress of the wiretaps used specifically in this program?

At least in this way, we can ensure, going forward, that the authority will never be abused by this or any other president.

GONZALES: Sir, obviously, we want to ensure that there are no abuses. The president has said we're happy to listen to your ideas about legislation.

There is concern, however, that, of course, the legislative process may result -- first of all, of course, we believe the president already has the authority and legislation is not necessary here.

But the legislative process may result in attempted restrictions upon the president's inherent constitutional authority and he may not be able to protect the country in the way that he believes he has the authority to do under the Constitution.

And then finally, of course, the legislative process is one where it is pretty difficult to keep certain information confidential. Again, because if you're talking about amending FISA, there are many aspects of FISA that make sense to me; they work well.

Again, if you're talking about domestic surveillance during peacetime, I think having the kind of restrictions that are in FISA make all the sense in the world. And so you're probably talking about a very narrowly tailored, focused amendment of FISA.

And, again, I'm not the expert on legislation, but we're talking potentially a very narrow focused amendment of FISA. And I think I'm concerned that that process will inform our enemies about what we're doing here and how we're doing it.

But subject to those concerns, of course, as the president said, we're happy to listen to your ideas.

KOHL: After-the-fact review by the FISA Court; you don't have any problem with that?

GONZALES: Again, Senator, we're happy to consider it.

KOHL: Attorney General, is there anything that a president cannot do in a time of war in the name of protecting our country? We saw that the Justice Department changed its position on torture, but are there other limits to the president's power or can, in your opinion, the president assign to himself, without an act of Congress, any powers that he believes are necessary?

GONZALES: Well, of course, we're not talking about acting outside of an act of Congress. We think in this case the president has acted with an act of Congress.

And, of course, there are limits upon the president of the United States. The Constitution serves as a limit of the president.

The president's authorities under Article 2 as commander in chief are not limitless. Obviously Congress has a role to play in a time of war. The Constitution says Congress can declare war. The Constitution says it is Congress to raise and support armies. The Constitution says it is Congress's job to provide and maintain navies. It is the role of Congress to provide rules regarding capture.

And so, in the arena of war, it is not true that the president works in that arena to the exclusion of Congress. Quite the contrary: Our framers intended that in a time of war both branches of government have a role to play.

KOHL: If the administration investigates an American for terrorism using this program and finds nothing -- and, of course, news reports have indicated that this happens in the vast majority of the time -- then what is done with the information collected? Does the administration keep this information on file somewhere? Is it disposed of? What happens with this information?

GONZALES: Well, let me tell you that every morning I receive an intelligence briefing out at the FBI. And there are numbers of possible threats against the United States. Many of them wash out, thank God.

The fact that they washed out doesn't mean that we should stop our intelligence collection. Intelligence is not perfect.

In terms of what is actually done with that information, what I can say is, again, I can't talk about specifics about it, but information is collected, information is retained and information is disseminated in a way to protect the privacy interests of all Americans.

KOHL: So you're saying the information -- even if it turns out to be without any correctness, the information is retained.

GONZALES: Senator, I can't provide any more of an answer than the one I just gave, in terms of there are minimization requirements that exist and we understand that we have an obligation to try to minimize intrusion into the privacy interests of Americans, and we endeavor to do that.

KOHL: Just to go back to what Senator Biden and then Senator Kyl referred to about Al Qaida-to-Al Qaida within the country, you're saying we do not get involved in those calls...

GONZALES: Not under the program in which I'm testifying, that's right.


KOHL: It seems to me that you need to tell us a little bit more because to those of us who are listening, that's incomprehensible. If you would go Al Qaida-to-Al Qaida outside the country -- domestic- outside the country but you would not intrude into Al Qaida-to-Al Qaida within the country -- you are very smart, so are we, and to those of us who are interacting here today, there's something that unfathomable about that remark.

GONZALES: Well, Senator, we certainly endeavor to try to get that information in other ways if we can. But that is not what the president...

KOHL: No, but isn't -- we need to have some logic, some sense, some clarity to this discussion this morning.

GONZALES: Senator, think about the reaction, the public reaction that has arisen in some quarters about this program. If the president had authorized domestic surveillance, as well, even though we're talking about Al Qaida-to-Al Qaida, I think the reaction would have been twice as great.

And so there was a judgment made that this was the appropriate line to draw in ensuring the security of our country and the protection of the privacy interests of Americans.

KOHL: I appreciate that.

And before I turn it back to the -- but yet the president has said with great justification, he's going to protect the American people regardless.

KOHL: And if there's some criticism, he'll take the criticism.

And yet you're saying Al Qaida-to-Al Qaida within the country is beyond the bounds?

GONZALES: Sir, it is beyond the bound of the program which I'm testifying about today.

KOHL: Thank you.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Kohl.

PROTESTER: (OFF-MIKE) probable cause, then go get a warrant. That's why (OFF-MIKE) the United States.

SPECTER: If you do not sit down immediately, you will be removed from the chamber.

(UNKNOWN): Without a warrant.


SPECTER: Senator DeWine? Senator DeWine, that's your introduction.

DEWINE: Thank you...


SESSIONS: Mr. Chairman, I'd like to state for the record that you're not a fascist.


DEWINE: Thank you, Mr. Chairman.

SPECTER: Thank you for that reassurance, Senator Sessions.

Senator DeWine?

DEWINE: Mr. Chairman, this issue has been raised several times by several members. My understanding is Senator Roberts, chairman of the Intelligence Committee, has announced that there will be a closed hearing on February 9th with Attorney General Gonzales, as well as General Hayden, to cover this issue.

Mr. Attorney General, thank you very much for being with us today. We've had a lot of discussion, and I know we're going to continue to have discussion, about this very serious constitutional issue, constitutional law issue.

Let me tell you, though, what I know and what I truly believe.

I truly believe that the American people expect the president of the United States, in a time of national emergency and peril, to take actions to protect them, even if those actions are not specifically authorized by statute. I think they expect no less. They would want the president to do no less than that.

DEWINE: Second, though, it is clear that there are serious legal and constitutional questions concerning whether the Fourth Amendment's reasonable requirement for searches requires the president, after a period of time, after a program has been in place for a period of time, to come to the Congress for statutory authorization to continue such actions.

Legal scholars, Mr. Attorney General, can and certainly are debating this issue.

But what is not debatable is that both from a constitutional as well as from a policy point of view, the president and the American people would be stronger -- this country would be stronger and the president would be stronger -- if he did so, if he did come to the Congress for such specific statutory authorization.

There was a reason that President George H.W. Bush and President George W. Bush both came to Congress prior to the respective wars in Iraq, even though some people argued -- and would still argue today -- that such resolutions were legally, constitutionally, unnecessary.

Presidents are always stronger in the conduct of foreign affairs when Congress is on board.

Statutory authorization and congressional oversight for this program would avoid what may be a very divisive, hurtful debate here in Congress. I truly believe it's in our national interest to resolve this matter as quickly as possible.

Mr. Attorney General, we need meaningful oversight by the Intelligence Committee, followed then by whatever statutory changes in the law might be appropriate.

Let me ask you, to follow on that statement, a question.

What if Congress passed a law which just excluded FISA from any electronic surveillance of international communications where one party to the communications is a member of or affiliated with Al Qaida or a related terrorist group; and further, if we went on and provided that there would be normal oversight by both the House and the Senate Intelligence Committee, periodically that the administration would report to the Intelligence Committees on the progress of that program?

DEWINE: We, obviously, have the ability within the committee to keep such things classified. We do it all the time.

What would be your reaction to that? Is that something that would be possible from your point of view?

GONZALES: Well, Senator, I'll repeat what the president has said, and that is to the extent that Congress wants to suggest legislation, obviously, we'll listen to your ideas.

I've already, in response to an earlier question, talked about some of the concerns that we have. Obviously, generally, most concerns can be addressed in one way or the other, and if they can legitimately be concerned, then, obviously, we'd listen and consider your ideas.

DEWINE: I appreciate that.

You know, I understand your legal position. You've made it very clear today, I think, articulated it very well. The administration has articulated it. Obviously, there are others who don't agree with your position. This is going to be a debate we're going to continue to have.

It just seems to me that some four years into this program this debate could be put aside if we could -- we ought to be able to find some way to be able to protect the American people but take care of what legal issues that some might find to be there. And I would look forward, frankly, to working with you on that.

Let me move to, if I could, to me, what has been a troubling question about FISA, really unrelated to this program. And you and I've talked about this before.

You've talked today about how FISA is being used -- frankly, is being used more than it's been used in the past.

GONZALES: The use of FISA is up 18 percent from 2004 to 2005.

DEWINE: Let me talk about something, though, that troubles me. And I've been talking and asking about this problem since 2004. Let me give you a quote from 2004.

Director Mueller of the FBI said, and I quote, "We still have some concerns and we're addressing it with the Department of Justice. But there's still frustration out there in the field in certain areas where, because we've had to prioritize, we cannot get to certain requests for FISA as fast as perhaps we might have in the past."

DEWINE: My understanding, Mr. Attorney General, is, from recent information that I have, current information, that there still is a backlog, that there are still mechanical -- what I would call mechanical problems, both in the FISA Court and at Justice.

Could you just briefly address that? Because every time I see you I'm going to go back at this, because I'm not saying it's your fault, but I just think it's something that, working together, we need to resolve.

And this is something, I think, that Congress has to play a part in, if you don't have the money, if you don't have the resources. We cannot tolerate a backlog in FISA applications if it can be fixed mechanically.

GONZALES: I appreciate the opportunity to respond to that question, Senator.

I will say that our staff at the Department of Justice -- these are the experts in the FISA process -- has in essence tripled since 2002. I think we all realized following the attacks of 9/11 that we needed to get more folks on board to help us with the FISA application.

It still takes too long, in my judgment, to get FISAs approved. I've described in my opening statement the process that's involved here.

FISA applications are often an inch thick. And it requires the sign-off by analysts out at NSA, lawyers at NSA, lawyers at the department, and finally me. And then it's got to be approved by the FISA Court.

I've got to tell you -- I was going to try to make this point in response to a question from the chairman -- the members of the FISA Court are heroes, as far as I'm concerned. I mean, they're available day or night, they're working on weekends and holidays, because they want to make themselves available. They're killing themselves, quite frankly, making themselves available to be there to sign off on a FISA application if it meets the requirements of the statute.

GONZALES: But we still have some problems.

It is true that, because of the procedures that are in FISA, it inherently is going to result in some kind of delay. And for that reason, the president made the determination that for certain very narrow circumstances, he's going to authorize the terrorist surveillance program.

But we continue to work at it. And I know you're very interested in this. And I look forward to continuing to have discussions with you about it.

DEWINE: Well, I appreciate that, Mr. Attorney General. It is something that continues to trouble me. Putting aside the issue that we are here about today, FISA is a matter of national security.

And I'm still hearing things that, frankly, disturb me. And it's just a question of whether this can be sped up. And some things are inherent, as you say, but I get the impression that part of the problem is not inherent and could be fixed.

GONZALES: Well, one of the things that, hopefully, will happen soon is the creation of a new national security division.

As you know, the Patriot Act has a provision in it that creates a new assistant attorney general for the national security division. We believe that division will assist in the streamlining of the FISA process.

DEWINE: Thank you, Mr. Attorney General.

GONZALES: Mr. Chairman...

SPECTER: Thank you, Senator DeWine.

Senator Feinstein?

SESSIONS: Mr. Chairman, I think the attorney general had a question.

GONZALES: I'm sorry. Can I make one point about in response to Senator Kohl? I made this point, but I want to make sure the committee understands this in terms of domestic-to-domestic Al Qaida communications.

I said that we're using other authorities. I mean, to the extent we can engage in intercepting Al Qaida domestic-to-domestic calls, even under FISA, if we can do it, we're doing it.

GONZALES: So I don't want the American people to believe that we're doing absolutely nothing about Al Qaida domestic-to-domestic calls.

The president made a determination, "This is where the line's going to be," and so we operate within those boundaries. And so we take advantage of the tools that are out there.

And if FISA isn't always the most efficient way to deal with that, if that's all we have, that's what we use.

So I guess I want to make sure the American people understand that we're not simply ignoring domestic-to-domestic communications of Al Qaida. We're going after it.

SPECTER: Thank you, Attorney General Gonzales for that clarification.

Senator Feinstein?

FEINSTEIN: Thanks very much, Mr. Chairman.

I'd like to make clear that, for me, at least, this hearing isn't about whether our nation should aggressively combat terrorism; I think we all agree on that. And it's not about whether we should use sophisticated electronic surveillance to learn about terrorist plans and intentions and capabilities; we all agree on that. And it's not about whether we should use those techniques inside the United States to guard against attacks; we all agree on that.

But this administration is effectively saying, and the attorney general has said it today, it doesn't have to follow the law.

And this, Mr. Attorney General, I believe, is a very slippery slope. It's fraught with consequences.

The Intelligence Committees have not been briefed on the scope and nature of the program. They have not been able to explore what is a link or an affiliate to Al Qaida or what minimization procedures are in place. We know nothing about the program other than what we read in the newspapers.

And so it comes with huge shock, as Senator Leahy said, that the president of the United States in Buffalo, New York, in 2004, would say, and I quote, "Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

Mr. Attorney General, in light of what you and the president have said in the past month, this statement appears to be false. Do you agree?

GONZALES: No, I don't, Senator. In fact, I take great issue with your suggestion that somehow that president of the United States was not being totally forthcoming with the American people.

I have his statement, and in the sentence immediately before what you're talking about, he said -- he was referring to roving wiretaps.

And so I think anyone...

FEINSTEIN: So you're saying that statement only relates to roving wiretaps, is that correct?

GONZALES: Senator, that discussion was about the Patriot Act. And right before he uttered those words that you're referring to, he said, "Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talk about wiretaps, it requires -- a wiretap requires a court order."

GONZALES: So, as you know, the president is not a lawyer, but this was a discussion about the Patriot Act, this was a discussion about roving wiretaps. And I think some people are trying to take part of his statement out of context, and I think that's unfair.

FEINSTEIN: OK, fair enough. Let me move along.

In October 2002, at a public hearing of the Senate-House joint inquiry into NSA activities, the then-NSA Director General Michael Hayden told me, quote, "If at times I seem indirect or incomplete, I hope that you and the public understand that I have discussed our operations fully and unreservedly in earlier closed sessions." As I mentioned, the Intelligence Committee has not been notified.

Let me ask you this: If the president determined that a truthful answer to questions posed by the Congress to you, including the questions I ask here today, would hinder his ability to function as commander in chief, does the authorization for use of military force or his asserted plenary powers authorize you to provide false or misleading answers to such questions?

GONZALES: Absolutely not, Senator. Of course not.

FEINSTEIN: Thank you. I just asked the question. A yes or no...

GONZALES: Nothing would excuse false statements before the Congress.

FEINSTEIN: All right.

You have advanced what I think is a radical legal theory here today. The theory compels the conclusion that the president's power to defend the nation is unchecked by law, that he acts alone and according to his own discretion, and that the Congress's role, at best, is advisory.

FEINSTEIN: You say that the authorization for use of military force allows the president to circumvent the Foreign Intelligence Surveillance Act and that if the AUMF doesn't, then the Constitution does.

Senator Daschle has testified that when he was majority leader, the administration came to him shortly before the AUMF came to the floor and asked that the words "inside the United States" be added to the authorization, and that he said, "Absolutely not," and it was withdrawn.

The question I have is how do you interpret congressional intent from the passage of the AUMF that it gave the administration the authority to order electronic surveillance of Americans in contravention to the FISA law?

GONZALES: Senator, it is not in contravention of the FISA law. We believe the authorization to use military force is the kind of congressional action that the FISA law anticipated.

It has never been our position that somehow the AUMF amended FISA. It's never been our position that somehow FISA has been overridden. Quite the contrary: We believe that the president's authorizations are fully consistent with the provisions of FISA.

FEINSTEIN: Now, let me stop you just for a second.

I read the FISA law. There are only two escape hatches. One is 15 days after a declaration of war and the second is the 72-hour provision, which was actually amended by us in the Patriot Act from a lower number to 72 hours.

FEINSTEIN: Those are the only two escape hatches in FISA.

What in FISA specifically, then, allows you to conduct electronic surveillance within America, on Americans?

GONZALES: I believe that it's Section 109, which talks about persons not engaged in electronic surveillance under cover of law except as authorized by statute. And I may not have it exactly right.

We believe that that is the provision in the statute which allows us to rely upon the authorization to use military force.

Now, you may say, "Well, that -- I disagree with that construction." That may be so. There may be other constructions that may be fairly possible. We believe this is a fairly possible reading of FISA. And as the Supreme Court has said under the canon of constitutional avoidance, if you have two possible constructions of a statute and one would result in raising a constitutional issue, if the other interpretation is one that is fairly possible, that is the interpretation that must be applied.

And if you reject our interpretation of FISA, Senator, then you have a situation where you've got an act of Congress intention with the president's constitutional authority as commander in chief. And the Supreme Court has said when that happens you go with another interpretation if it's a fair application. And that's what we've done here.

FEINSTEIN: Could you check your citation? I just read 109 and I don't believe it says that, and we'll talk about that after lunch.

GONZALES: Yes, ma'am.

FEINSTEIN: Let me go on and tell you why it's a slippery slope.

FEINSTEIN: Senator Kennedy asked you about first-class mail, has it been opened, and you declined answering.

Let me ask this way: Has any other secret order or directive been issued by the president or any other senior administration official which authorizes conduct which would otherwise be prohibited by law? Yes or no will do.

GONZALES: Senator, the president has not authorized any conduct that I'm aware of that is in contravention of law.

FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than NSA surveillance?

GONZALES: Again, Senator, I'm not sure how to answer that question.

The president has exercised his authority to authorize this very targeted surveillance of international communication of the enemy. So I'm sorry, your question is?

FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than the program we're discussing, the NSA surveillance program?

GONZALES: Senator, I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized. I'm here to...

FEINSTEIN: OK. That's fine.


FEINSTEIN: That's fine. I just want to ask some others. If you don't want to answer them, don't answer them.

GONZALES: Yes, ma'am.

FEINSTEIN: Can the president suspend the application of the Posse Comitatus Act legally?

GONZALES: Well, of course, Senator, that is not what is at issue here.

FEINSTEIN: I understand that.

GONZALES: This is not about law enforcement, it's about foreign intelligence.

FEINSTEIN: I'm asking a question. You choose not to answer it?

GONZALES: Yes, ma'am.


Can the president suspend, in secret or otherwise, the application of Section 503 of the National Security Act, which states that "no covert action may be conducted which is intended to influence United States political processes, public opinion, policies or media"?

FEINSTEIN: In other words, can he engage in otherwise illegal propaganda?

GONZALES: Senator, let me respond to -- this will probably be my response to all your questions with these kind of hypotheticals.

And the question as to whether or not -- can Congress pass a statute that is in tension with a president's constitutional authority. Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible. I think that, again...

FEINSTEIN: OK, that's fine. I don't want to argue with you.

All I'm trying to say is, this is a slippery slope. Once you do one, there are a whole series of actions that can be taken. And I suspect the temptations to take them are very great. And we are either a nation that practices our rule of law or we're not.

Has any Supreme Court case since FISA held that the president can wiretap Americans, once Congress has passed a law forbidding this, without warrant?

GONZALES: I think the only case it come to mind that's really pertinent would be the 2002 case, In Re. Sealed case by the FISA Court of Review. While the court did not decide this issue, the court acknowledged that every case that's considered this has found that the president has the authority.

And assuming that to be true, that court said that FISA could not encroach upon those constitutional inherent authorities.

FEINSTEIN: My time is up.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Feinstein.

Senator Sessions?

SESSIONS: Thank you, Attorney General Gonzales.

I believe you've faithfully fulfilled your responsibility to give your best, honest answers to the questions so far. I think they've been very effective.

If people have listened, I think they will feel much better about the program that that the president has authorized and that you are explaining. Because some of the news articles, in particular, gave the impression that there's widespread of wiretapping of American citizens in domestic situations and in every instance there's an international call.

Most of us by plain language would understand "international" to be different from domestic. And the president has limited this to international calls in which one or more parties are connected to Al Qaida.

Is that correct?

GONZALES: Sir, the program that I'm talking about today, yes, is limited to international calls.

SESSIONS: And I'm sorry that there are those who would suggest that in previous testimony you may have not been truthful with the committee. I don't believe that's your reputation. I don't believe that's fair. I think you have a good answer to any of those charges.

And I also think it's unfortunate that we're in a position where, when the president is talking about the Patriot Act, just like we talk about the Patriot Act throughout the debate on the Patriot Act, we insisted that it did not authorize non-warrant wiretaps or searches. I mean, that's what we said about the Patriot Act, because it didn't.

So don't you think it's unfair to mix classified international surveillance issues with the Patriot Act debate?

GONZALES: Well, Senator, I don't know if it's my place to characterize whether it's fair or unfair.

I do believe that there is a difference, certainly in practice and a difference recognizing the courts, between domestic surveillance and international surveillance.

SESSIONS: Well, I think it's important for us to remember the world is hearing this. And so we have people suggesting the attorney general of the United States and the president of the United States are deliberately lying? And it's not fair, it's not accurate, it's not true. So I think that's important.

With regard to the briefing of Congress, the eight members that have been designated to receive highly secret information were briefed on this program, were they not, Attorney General Gonzales?

GONZALES: Sir, from the outset, the bipartisan leadership of the Intel Committees have been briefed in great detail about this. And there have also, in addition, been fewer briefings with respect to the bipartisan congressional leadership.

SESSIONS: I would just note, then -- of course, there are eight that hold those position -- but since the beginning of the program, at least 15 individuals have been in and out of those position, including Tom Daschle, Bob Graham, Dick Gephardt, who are no longer in Congress but were presumably part of that process and were aware of it and participated in passing the FISA Act and believed that it was correct to go forward.

I don't think they were hot-boxed or forced into this. I believe they weighed these issues based on what they thought the national interest was and what the law was and they made their decision not to object to this program.

SESSIONS: And there's been no formal objection by any of those members to this program. And I think it's unfair to suggest the president has acted in secret without informing key members of Congress about this highly classified program.

GONZALES: Senator, of course, I can't speak for the members of Congress. But to my knowledge no one has asserted that the program should be stopped.

SESSIONS: Well, I thought about the Super Bowl. There was some reference to the security intensity around that event; that police and Secret Service and every available federal and I guess state agency that could be brought into that were intensely aware that there could be an attack on the Super Bowl or any other major public event like that.

But Super Bowl would be a prime target, would you not agree, of the Al Qaida types?

GONZALES: Clearly, we would have concerns events like the Super Bowl would be ones that would be attractive to Al Qaida.

SESSIONS: And intelligence is valuable to that. I mean, that's the key to it, and that's what we're trying to gather. And everybody understood after 9/11 that our failure was not in the capability to stop people, it was our capability to identify them.

This program seems to me to be a step forward in our ability to identify them. And I believe, as you've explained it, it's consistent with our laws.

With regard to statutory construction and how we should construe it, people have made the point that it's a general principle that a specific statute might control over a general statute.

But isn't it true that if a general statute clearly contemplates certain actions, and it can't be effective without those actions, then it would overrule the more specific earlier statute?

GONZALES: Depending on the circumstances, that would certainly be true, Senator.

I might just also remind people, when you talk about general statutes versus specific statutes, this same argument was raised in connection with the Hamdi case.

GONZALES: We had a specific statute that said no American citizen could be detained except as otherwise authorized by a statute. And the Supreme Court said, the authorization to use military force, even though it may have been characterized by some as a broad grant of authority, nonetheless, that was sufficient to override the prohibition in 4001(a).

SESSIONS: I think that's absolutely critical. I believe the Hamdi case is a pivotal authority here, after FISA, after the authorization of force on Al Qaida. An American citizen was detained without trial and the Supreme Court of the United States held that since it was part of a military action in wartime that that person could be held without trial as an incident to the authorization of force.

Would you not agree that listening on a conversation is less intrusive than putting an American citizen in jail?

GONZALES: It would certainly seem to me that it would be less intrusive.

Just for the record, the language that I keep referring to -- "fundamental incident of waging war" -- was from Justice O'Connor. It is part of a plurality. And, of course, Justice Thomas, in essence, would have felt the president had the inherent authority under the Constitution to detain an American citizen.

So I just want to make sure that we're accurate in the way we describe decisions by the court.

SESSIONS: Well, you've been very careful about those things, and we appreciate that.

With regard to history -- you made reference to history -- isn't it true, of course, President Washington instructed his army to find ways to intercept letters from British operatives, that President Lincoln issued warrantless tapping of telegraph communications during the Civil War to try to identify troop movements of the enemy?

SESSIONS: Is it true that President Wilson authorized the military to intercept all telephone and telegraph traffic going into and out of the United States?

GONZALES: That is correct.

SESSIONS: And that President Roosevelt instructed the government to use listening devices to learn the plans of spies in the United States, and that he gave the military the authority to access, without review, without warrant, all telecommunications, quote, "passing between the United States and any foreign country"?

GONZALES: That is correct, sir.

SESSIONS: What I would say to my colleagues and to the American people is, under FISA and other standards that we are using today, we have far more restraints on our military and the executive branch than history has demonstrated.

We have absolutely not -- we are not going hog-wild restraining American liberties. In fact, the trend has been to provide more and more protections.

And there can be a danger that we go too far in that and allow sleeper cells in this country to operate in a way that they are successful in killing American citizens that could have been intercepted and stopped.

GONZALES: Of course, Senator, we're doing everything we can to ensure that that doesn't happen.

SESSIONS: But when you do domestic -- well, I won't go into that.

I want to ask you this question about that President Clinton's administration ordered several warrantless searches on the home and property of an alleged spy, Aldrich Ames. Actually, he was convicted. Isn't that true?

And it also authorized a warrantless search of the Mississippi home of a suspected terrorist financier.

And the deputy attorney general, Jamie Gorelick, the second in command of the Clinton Department of Justice, said this: "The president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and the rules and methodologies for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities." Are those comments relevant to the discussion that we are having today?

GONZALES: As I understand it, that was her testimony. I think there was an acknowledgment of the president's inherent constitutional authority.

Now, of course, some would rightly say that, in response to that, FISA was changed to include physical searches.

And so the question is -- again, that queues up, I think, a difficult constitutional issue, whether or not -- can the Congress constitutionally restrict the ability of the president of the United States to engage in surveillance of the enemy during a time of war?

GONZALES: And, fortunately, I don't think we need to answer that question. I think in this case the Congress has authorized the president to use all necessary and appropriate force, which would include the electronic surveillance of the enemy.

SESSIONS: But Deputy Attorney General Gorelick in the Clinton administration, defending these searches, she asserted it was a constitutional power of the president, and this was in a period of peace, not even in war. Isn't that correct?

GONZALES: That's correct.

SESSIONS: Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Sessions.

We'll now take a luncheon break, and we'll resume at 1:45.

GONZALES: Yes, sir.


SPECTER: It's 1:45. The committee prides itself on being prompt, and we thank you, Mr. Attorney General, for being prompt and coming back.

I think the hearings have been very productive. And we have had full attendance, almost full attendance, and I think the other senators who could not be here earlier -- it is unusual to have a Monday morning session for the United States Senate. And we have done that because this committee has been so busy.

And we have asbestos reform legislation, which Senator Leahy and I are cosponsoring, which is coming to the floor later today. And we've had a full platter with the confirmation of Justice Alito. And we wanted to have this hearing at an early day, and this was the earliest we could do, which given the intervening holidays after the program was announced back on December 16th, we have proceeded.

We anticipated a full day of hearings, and at least two rounds. And it's apparent to me at this point that we're not going to be able to finish today within a reasonable time.

Senator Feingold's nodding in the affirmative. That's the first time I've got him to nod in the affirmative today. So you see we're making some progress.

But I do believe there will be a full second round. And we don't function too well into the evening. If we have to, we do, but it's difficult for the witness.

And I've conferred with the attorney general, who has graciously considered to come back on a second day. So we will proceed through until about 5 o'clock this afternoon, and then we will reschedule another day.

By that time, everybody would have had a first round, and it'll give us the time to digest what we have heard, and we will proceed on a second day.

Senator Feingold, you're recognized.

FEINGOLD: Good afternoon, Mr. Attorney General.

And, Mr. Chairman, let me say, of course, we have a disagreement, Mr. Chairman, about whether this witness should have been sworn. And that is a serious disagreement.

But let me nod in an affirmative way about your Pittsburgh Steelers, first of all.


Secondly, let me say...

SPECTER: Green Bay...

FEINGOLD: Green Bay will be back.

SPECTER: With Green Bay out of it, why not root for the Steelers, Senator Feingold?

LEAHY: That's why we didn't have the hearing last night.

FEINGOLD: Well, I understood that. I was curious about that.

SPECTER: Reset the clock at 10 minutes.


I was only kidding.

FEINGOLD: Let me also say, Mr. Chairman, despite our disagreement about the swearing-in issue, that I praise you for your candor and your leadership on this issue and for holding this hearing and the other hearings you may be holding.

I also want to compliment some of my colleagues on the other side of the aisle for their candor on this issue already, publicly. People like Senator DeWine, Senator Graham, Senator Brownback, maybe they don't want me to mention their names, but the fact is they have publicly disputed this fantasy version of the justification of this based on the Afghanistan resolution. It is a fantasy version that no senator, I think, can actually believe, that we authorized this wiretapping.

So the fact is, this can and should be a bipartisan issue. I see real promise for this being a bipartisan issue, and it should be.

But the problem here is that what the administration has said is that when it comes to national security, the problem is that the Democrats have a pre-9/11 view of the world.

Well, let me tell you what I think the problem is. The real problem is that the president seems to have a pre-1776 view of the world. That's the problem here.

All of us are committed to defeating the terrorists who threaten our country, Mr. Attorney General. It is, without a doubt, our top priority. In fact, I just want to read again what you said.

"As the president has said, if you are talking with Al Qaida, we want to know what you're saying."

Absolutely right. No one on this committee, I think no one in this body, believes anything other than that, and I want to state it as firmly as I can.

But I believe that we can and must do that without violating the Constitution or jeopardizing the freedoms on which this country was founded.

Our forefathers fought a revolution -- a revolution -- to be free from rulers who put themselves above the law. And I got to say, Mr. Chairman, I think this administration has been violating the law and is misleading the American people to try to justify it.

FEINGOLD: This hearing is not just a hearing about future possible solutions. That is fine to be part of the answer and part of the hearing. This hearing, Mr. Chairman, is also an inquiry into possible wrongdoing.

Mr. Attorney General, there already have been a few mentions today of your testimony in January of '05, your confirmation hearing. I'm going to ask you a few quick, simple and factual questions, but I want to make it clear that I don't think this hearing is about our exchange or about me, or what you said to me, in particular.

I am concerned about your testimony at that time, because I do believe it was materially misleading. But I am even more concerned about the credibility of your administration. And I'm even more concerned than that about the respect for the rule of law in this country. So that is the spirit of my questions.

Mr. Attorney General, you served as White House counsel from January 2001 until you became attorney general in 2005. On January 6, 2005, you had a confirmation hearing for the attorney general position before this committee.

Mr. Attorney General, you testified under oath at that hearing, didn't you?

GONZALES: Yes, sir.

FEINGOLD: And, sir, I don't mean to belabor the point, but just so the record is clear, did you or anyone in the administration ask Chairman Specter or his staff that you not be put under oath today?

GONZALES: Senator, I've already indicated for the record that the chairman asked my views about being sworn in and I said I had no objection.

FEINGOLD: But did you or anyone in the administration ask the chairman to not have you sworn?

GONZALES: Sir, not to my knowledge.

SPECTER: The answer is no.

FEINGOLD: That's fine.

At the time you testified in January of '05, you were fully aware of the NSA program, were you not?

GONZALES: Yes, sir.

FEINGOLD: You were also fully aware at the time you testified that the Justice Department had issued a legal justification for the program, isn't that right?

GONZALES: Yes, there had been legal analysis performed by the Department of Justice.

FEINGOLD: And you, as White House counsel, agreed with that legal analysis, didn't you?

GONZALES: I agreed with the legal analysis, yes.

FEINGOLD: And you had signed off on the program, right?

GONZALES: Yes, I did believe at the time the president had the authority to authorize these kinds of...

FEINGOLD: And you had signed off on that legal opinion.

And yet when I specifically asked you at the January 2005 hearing whether, in your opinion, the president can authorize warrantless surveillance notwithstanding the foreign intelligence statutes of this country, you didn't tell us yes. Why not?

GONZALES: Sir, I believe your question, the hypothetical you pose -- and I do consider it a hypothetical -- which is whether or not, had the president authorized specific electronic surveillance in violation of the laws -- and I've tried to make clear today that, in the legal analysis in the white paper, the position of the administration is that the president has authorized electronic surveillance in a manner that is totally consistent -- not in violation, not overwriting provisions of FISA but totally consistent with FISA.

FEINGOLD: Mr. General, it certainly was not a hypothetical, as we now know.

GONZALES: Senator, your question was whether or not the president had authorized certain conduct in violation of law.

GONZALES: That was a hypothetical.

FEINGOLD: My question was whether the president could have authorized this kind of wiretapping...

GONZALES: In violation of the criminal statutes. And our position is, and has been, is that, no, this is not in violation of the criminal statutes. FISA cannot be...

FEINGOLD: You said the question was merely hypothetical.

Now, look, this is what you said: "It's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes." And when you said that, you knew about this program; in fact, you just told me that you had approved it and you were aware of the legal analysis to justify it.

You wanted this committee and the American people to think that this kind of program was not going on. But it was and you knew that. And I think that's unacceptable.

GONZALES: Senator, your question was whether or not the president had authorized conduct in violation of law. And I've laid out...

FEINGOLD: Mr. Attorney General, my question was whether the president would have the power to do that.

GONZALES: And, Senator, has not authorized conduct in violation of our criminal statutes.

We've laid out a 42-page analysis of our legal position here. The authorities the president has exercised are totally consistent with the primary criminal provision in FISA, Section 109.

FEINGOLD: I've heard all your arguments, but I want to get back to your testimony, which, frankly, Mr. Attorney General, anybody that reads it basically realizes you were misleading this committee.

You could have answered the question truthfully; you could have told the committee that, yes, in your opinion, the president has that authority. By simply saying the truth that you believe the president has the power to wiretap Americans without a warrant would not have exposed any classified information.

And my question wasn't whether such illegal wiretapping was going on. Like almost everyone in Congress, I didn't know, of course, about the program then.

It wasn't even about whether the administration believed that the president has this authority.

FEINGOLD: It was a question about your view of the law -- about your view of the law -- during a confirmation on your nomination to be attorney general.

So, of course, if you had told the truth maybe that would have jeopardized your nomination. You wanted to be confirmed, and so you let a misleading statement about one of the central issues of your confirmation, your view of executive power, stay on the record until the New York Times revealed the program.

GONZALES: Senator, I told the truth then, I'm telling the truth now.

You asked about a hypothetical situation of the president of the United States authorizing electronic surveillance in violation of our criminal statutes. That has not occurred.

FEINGOLD: Mr. Chairman, I think the witness has taken mincing words to a new high.

There's no question in my mind that when you answered the question that was a hypothetical you knew it was not a hypothetical and you were under oath at the time.

Let me switch to some other misrepresentations.

SPECTER: Wait a minute.

Do you care to answer that, Attorney General Gonzales?

GONZALES: Senator, as I've stated before, what I said was the truth then, it is the truth today.

The president of the United States has not authorized electronic surveillance in violation of our criminal statutes. We have laid out in great detail our position that the activities are totally consistent with the criminal statute.

FEINGOLD: All you have to, Mr. Attorney General, was indicate it was your view that it was legal. That was what my question was. I would have disagreed with your conclusions. But that's not what you said, and you referred to this as merely a hypothetical.

Mr. Attorney General, administration officials have been very misleading in their claims in justifying the spying program. To make matters worse, last week in the State of the Union the president repeated some of these claims. For one thing, the president said that his predecessors have used the same constitutional authority that he has.

Isn't it true that the Supreme Court first found that phone conversations are protected by the Fourth Amendment in the 1967 Katz case?

GONZALES: Yes. In the 1967 Katz case, the Supreme Court did find that telephone conversations are covered by the Fourth Amendment.

FEINGOLD: So when the Justice Department points to Presidents Wilson and Roosevelt's actions, those are really irrelevant, aren't they?

GONZALES: Absolutely not, Senator. I think that they're important in showing that presidents have relied upon their constitutional authority to engage in warrantless surveillance of the enemy during a time of war.

The fact that the Fourth Amendment may apply doesn't mean that a warrant is instantly required in every case, as you know. There is a jurisprudence of the Supreme Court regarding special needs, normally in the national security context, outside of the ordinary criminal law context, where, because of the circumstances, searches without warrants would be justified.

FEINGOLD: Mr. Chairman, my time's up. I'll continue this line of questioning later.

SPECTER: Thank you very much, Senator Feingold.

Senator Graham?

GRAHAM: Thank you, Mr. Chairman. I would like to congratulate you, also, for having these hearings.

I think what we're talking about is incredibly important to the country in terms of the future conduct of wars and how we relate constitutionally to each other and personally how we relate.

I find your testimony honest, straightforward. You legal reasoning is well articulated. I don't agree with it all.

About hiding something about this program, is it not true that the Congress has been briefed extensively -- at least a small group of congressmen and senators -- about this program?

GONZALES: Senator, I have not been present, as I've testified before, at all of the briefings. But in the briefings that I have been present, the briefings were extensive, the briefings were detailed. Certain members who were present at the briefing were given an opportunity to ask questions, to voice concerns.

GRAHAM: And if any member of this body believes that you've done something illegal, they could put in legislation to terminate this program, couldn't they? Isn't that our power?

GONZALES: Certainly, Senator, it is...

GRAHAM: Well, I would think, if you believe that our president was breaking the law, you'd have the courage of your convictions and you'd stop funding for it.

Now, it seems to me there's two ways we can do this. We can argue what the law is, we can argue if it was broken, we can play a political dance of shirts versus skins, or we can find consensus as to what the law should be. And I associate myself with Senator DeWine as to what I think it should be.

In a dangerous and difficult time for our country, I chose inquiry versus inquisition, collaboration versus conflict.

To me there's two big things that this Congress faces and this president faces.

In all honesty, Mr. Attorney General, this statutory force resolution argument that you're making is very dangerous in terms of its application for the future. Because, if you overly interpret the force resolution -- and I'll be the first to say, when I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.

And you're right: It is not my intent it's the letter of the resolution.

What I'm saying is that, if you came back next time or the next president came back to this body, there would be a memory bank established here and I would suggest to you, Mr. Attorney General, it would be harder for the next president to get a force resolution if we take this too far. And the exceptions may be a mile long.

Do you share my concern?

GONZALES: I understand your concern, Senator.

GRAHAM: Thank you. And I appreciate that.

So that's just a comment about the practical application of where we could go one day if we overinterpret. Because the offer is on the table; let's make sure we have the same understanding. Because if we have the same understanding between the executive, the legislative and the judicial branch, our enemy is weaker and we're stronger.

Now, to the inherent authority argument, taken to its logical conclusion, it concerns me that it could basically neuter the Congress and weaken the courts. And I'd like to focus a minute on the inherent authority of the president during a time of war concept.

I'll give you a hypothetical and you can answer it if you choose to. And I understand if you won't.

There's a detainee in our charge, an enemy prisoner, a high-value target. We reasonably believe that this person possesses information that could save millions or thousands of American lives.

The president, as commander in chief, tells the military authorities in charge, "You have my permission, my authority, I'm ordering you to do all things necessary and these five things, I'm authorizing. Do it because I'm commander in chief and we've got to protect the country."

There's a preexisting statute on the book, passed by the Congress, called the Uniform Code of Military Justice and it tells our troops that, "If you have a prisoner in your charge, you're not to do these things," and they are the same five things. What do we do?

GONZALES: Well, of course, Senator, the president has already said that we're not going to engage in torture.

GONZALES: That is a categorical statement by the president.

As to whether or not the statute that you referred to would be constitutional, these kinds of questions are very, very difficult.

One could make the argument, for example, that the provision in the Constitution that talks about Congress under Section 8 of Article I, giving Congress the specific authority to make rules regarding captures, that that would give Congress the authority to legislate in this area.

Now, there is some disagreement amongst scholars about what "captures" means.

GRAHAM: And I take this, it's talking about ships, it's not talking about people.

But it's clear to me that the Congress has the authority to regulate the military, to fund the military. And the Uniform Code of Military Justice is a statutory scheme providing guidance, regulation and punishment to the military that the Congress passes.

GONZALES: I think most scholars would say that would fall under the clause in Section 8 of Article I giving the Congress the authority to pass rules regarding government and regulation of the armed forces.

GRAHAM: And I would agree with those scholars.

And the point I'm trying to say is that we can tell our military, "Don't you do this to a detainee." And you, as commander in chief, can tell the military, "We've got to win the war, we've got to protect ourselves."

Now, what I'm trying to say is that I'm worried about the person in the middle here. Because if we had adopted the reasoning of the Bybee memo -- that's repudiated, appropriately -- the point I was trying to make at your confirmation hearing is that the legal reasoning used in determining what torture would be under the Convention of Torture or the torture statute not only was strained that made me feel uncomfortable, it violated an existing body of law that was already on the books called the Uniform Code of Military Justice.

If a military member had engaged in the conduct outlined by the Bybee memo, they could have been prosecuted for abusing a detainee because it's a crime in the military, Mr. Attorney General, for a guard to slap a prisoner, much less have something short of major organ failure.

This is really a big deal for the people fighting the war. And if you take your inherent authority argument too far, then I am really concerned that there is no check and balance.

GRAHAM: And when the nation's at war, I would argue, Mr. Attorney General, you need checks and balances more than ever, because within the law we put a whole group of people in jail who just looked like the enemy.

GONZALES: Senator, if I could just respond. I'm not -- maybe I haven't been as precise with my words as I might have been.

I don't think I've talked about inherent exclusive authority. I talked inherent authority under the Constitution and the commander in chief.

Congress, of course, and I've said in response to other questions, they have a constitutional role to play also during a time of war.

GRAHAM: We coexist.

Now, can I get to the FISA statute in two minutes here? And I hope we do have another round, because this is very important. And I'm not here to accuse anyone of breaking the law. I want to create law that will help people fight the war know what they can and can't do.

The FISA statute -- if you look at the legislative language, they made a conscious decision back in 1978 to resolve this two-lane debate. There's two lanes you can go down as commander in chief. You can act with the Congress and you can have inherent authority as commander in chief.

The FISA statute said, basically, "This is the exclusive means to conduct foreign surveillance where American citizens are involved." And the Congress, seems to me, gave you a one-lane highway, not a two- lane highway. They took the inherent authority argument, they thought about it, they debated it, and they passed a statute -- if you look at the legislative language -- saying, "This shall be the exclusive means." And it's different than 1401.

So I guess what I'm saying, Mr. Attorney General, if I buy your argument about FISA, I can't think of a reason you wouldn't have the ability if you chose to to set aside the statute on torture if you believed it impeded the war effort.

GONZALES: Well, Senator, whether or not we set aside a statute, of course...

GRAHAM: But inherent authority sets aside the statute.

GONZALES: That's what we're talking about here. We don't need to get to that tough question.

GRAHAM: If you don't buy the force resolution argument, if we somehow magically took that off the table, that's all your left with is the inherent authority. And Congress could tomorrow change that resolution, and that's dangerous for the country if we get in a political fight over that.

All I'm saying is that the inherent authority argument, in its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out, it deals the courts out.

And, Mr. Attorney General, there is a better way. And on our next round of questioning we will talk about that better way.

GONZALES: Can I simply make one quick response?

SPECTER: You may respond, Attorney General.

GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.

GRAHAM: That's where we're at right now.

GONZALES: I don't believe that's where we're at right now.

GRAHAM: That's where you're at with me.


GONZALES: Sir, even under the third part of the Jackson analysis -- again, I haven't done the detailed work that, obviously, these kinds of questions requires. These are tough questions -- but I believe that the president does have the authority under the Constitution.

SPECTER: Thank you, Senator Graham.

Senator Schumer?

SCHUMER: Thank you, Mr. Chairman.

And, General Gonzales, I just want to make a couple of points that are important to keep in mind as we ask you questions.

First, we all support a strong, robust and vigorous national security program. Like everyone else in this room, I want the president to have all the legal tools he needs as we work together to keep our nation safe and free, including wiretapping.

SCHUMER: And I appreciate the difficulty job you and the president have balancing security and liberty. That is not an easy one.

But I firmly believe that we can have both security and rule of law. And I'm sure you agree with that, General Gonzales, don't you?

GONZALES: Yes, Senator.

SCHUMER: And that's what distinguishes us from so many other nations, including our enemies. Is that correct?

GONZALES: That is correct.


Now, the first job of government is to protect our security, and everyone on this committee supports that.

But another important job of government is to enforce the rule of law, because the temptation to abuse the enormous power of the government's very real. And that's why we have checks and balances. They're at the fulcrum of our democracy. You agree with that?

GONZALES: I agree with that, Senator.

SCHUMER: I have to say, by the way, that's why I'm disappointed that Chairman Specter wouldn't let us show the clip of the president's speech.

Senator Specter said that the transcript speaks for itself. But seeing the speech, with its nuances, is actually very different from reading the record. And when you watch the speech, it seems clear that the president isn't simply talking about roving wiretaps, he's talking about all wiretaps, because the fact that you don't wiretap citizens without a warrant has been a bedrock of American principles for decades.

Nonetheless, having said that, I am gratified that these hearings have been a lot less partisan than the previous ones we held in this room. And many Republican colleagues have voiced concerns about the administration policy. I want to salute my Republican colleagues for questioning some of these policies: Chairman Specter and Senator DeWine, Senator Brownback, Senator Graham and others.

But it's not just Republican senators who seriously question the NSA program, but very high-ranking officials within the administration itself.

Now, you've already acknowledged that there were lawyers in the administration who expressed reservations about the NSA program.

SCHUMER: There was dissent; is that right?

GONZALES: Of course, Senator. As I indicated, this program implicates some very difficult issues. The war on terror has generated several issues that are very, very complicated.

SCHUMER: Understood.

GONZALES: Lawyers disagree.

SCHUMER: I concede all those points. Let me ask you about some specific reports.

It's been reported by multiple news outlets that the former number two man in the Justice Department, the premier terrorism prosecutor, Jim Comey, expressed grave reservations about the NSA program and at least once refused to give it his blessing. Is that true?

GONZALES: Senator, here's the response that I feel that I can give with respect to recent speculation or stories about disagreements.

There has not been any serious disagreement -- and I think this is accurate -- there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations which I cannot get into.

I will also say...

SCHUMER: But there was some -- I'm sorry to cut you off -- but there was some dissent within the administration. And Jim Comey did express, at some point -- that's all I asked you -- some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today.

SCHUMER: I want to ask you, again, about -- we have limited time.

GONZALES: Yes, sir.

SCHUMER: It's also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true?

GONZALES: Senator, rather than going individual by individual, let me just say that I think the differing views that have been the subject of some of these stories did not deal with the program that I'm here testifying about today.

SCHUMER: But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?

GONZALES: Senator, I want to be very careful here, because, of course, I'm here only testifying about what the president has confirmed.

And with respect to what the president has confirmed, I do not believe that these DOJ officials that you're identifying had concerns about this program.

SCHUMER: There are other reports, I'm sorry to -- you're not giving me a yes-or-no answer here. I understand that.

Newsweek reported that several Department of Justice lawyers were so concerned about the legal basis for the NSA program that they went so far as to line up private lawyers. Do you know if that's true?

GONZALES: I do not know if that's true.

SCHUMER: Now, let me just ask you a question here.

You mentioned earlier that you had no problem with Attorney General Ashcroft, someone else -- I didn't want to ask you about him; he's your predecessor -- people have said have doubts. But you said that you had no problem with him coming before this committee and testifying when Senator Specter asked, is that right?

GONZALES: Senator, who the chairman chooses to call as a witness is up to the chairman.

SCHUMER: The administration doesn't object to that, do they?

GONZALES: Obviously, the administration -- by saying that we would have no objection doesn't mean that we would waive any privileges that might exist.

SCHUMER: I understand. I got that.

But I assume the same would go for Mr. Comey, Mr. Goldsmith and any other individuals. Assuming you didn't waive executive privilege, you wouldn't have an objection to them coming before this committee.

GONZALES: Attorney-client privilege, deliberative privilege. To the extent that there are privileges, it is up to the chairman to decide who he wants to call as a witness.

But let me just say that if we're engaged in a debate about what the law is and the position of the administration, that is my job and that's what I'm doing here today.

SCHUMER: I understand. And you are doing your job.

And that's why I am requesting, as I have in the past, but renewing it here today, reaffirmed even more strongly by your testimony and everything else, that we invite these people, that we invite former Attorney General Ashcroft, Deputy Attorney General Comey, OLC Chair Goldsmith to this hearing and actually compel them to come if they won't on their own.

And as for privilege, I certainly...

SPECTER: If I may interrupt you for just one moment...

SCHUMER: Please.

SPECTER: ... you'll have extra time...

SCHUMER: Yes, thank you.

SPECTER: ... I think the record was in great shape where I left it at. If you bring in Attorney General Ashcroft, that's a critical step.


SPECTER: It wasn't that I hadn't thought of Mr. Comey and Mr. Goldsmith and other people, but I sought to leave the record with the agreement of the attorney general to bring in former Attorney General Ashcroft.

SCHUMER: Mr. Chairman, I respect that. I think others are important as well.

But I want to get to the issue of privilege here.

SPECTER: I'm not saying they aren't important. I'm just saying, what's the best way to get them here?

SCHUMER: OK. Well, whatever way we can, I'd be all for.

On privilege -- because that's going to be the issue, even if they come here, as I'm sure you will acknowledge, Mr. Chairman -- I take it you'd have no problem with them talking about their general views on the legality of this program, just as you are talking about those; not to go into the specific details of what happened back then, but their general views on the legality of these programs.

SCHUMER: Do you have any problem with that?

GONZALES: General views of the program that the president has confirmed, Senator, that's -- again, if we're talking about the general views of the...

SCHUMER: I just want them to be able to testify as freely as you've testified here, because it wouldn't be fair if you're an advocate of administration policies, you have one set of rules and if you're an opponent or a possible opponent of administration policies, you have another set of rules. That's not unfair, is it?

GONZALES: Sir, it's up to the chairman to...

SCHUMER: No, but would you or the administration -- you, as the chief legal officer -- have any problem with them testifying in the same way you did about general legal views of the program?

GONZALES: I would defer to the chairman.

SCHUMER: I'm not asking you -- sir, in all due respect, I'm not asking you what the chairman thinks. He's doing a good job here, and I don't begrudge that one bit.

GONZALES: Sir, my answer is...

SCHUMER: I'm asking you what the administration would think in terms of exercising any claim of privilege.

You're not going to have -- I'm sorry, here -- you're not going to have different rules for yourself, an administration advocate, then for these people who might be administration dissenters in one way or another, are you?

GONZALES: Sir, I don't know if you're asking what are they going to say...

SCHUMER: I'm not asking you that.

Would the rules be same? I think you answer that yes or no.

GONZALES: If they came to testify?

SCHUMER: Correct.

GONZALES: Well, sir, the client here is the president of the United States. I'm not sure it's in my place to offer...

SCHUMER: Or his chief...

GONZALES: ... up a position or my recommendation to you about what I might recommend to the president of the United States would not be appropriate here.

SCHUMER: What would be -- I just am asking you, as a very fine, well-educated lawyer, should or could the rules be any different for what you are allowed to say with privilege hovering over your head and what they are allowed to say with those same privileges hovering over their heads? Should the rules be any different?

If you can't say "yes" to that, then that's fundamentally unfair. It's saying that these hearings, or that -- it's saying really that the administration doesn't have the confidence to get out the whole truth.

GONZALES: Sir, my hesitation is, quite frankly, I haven't thought recently about the issue about former employees coming to testify about their legal analysis or their legal recommendations to their client, and that is the source of my hesitation.

SCHUMER: I was just -- my time...

SPECTER: Senator Schumer, take two more minutes for my interruption...

SCHUMER: Oh, thank you, Mr. Chairman.

SPECTER: ... providing you move to another subject.




Again, I think this is very important, Mr. Chairman...

SPECTER: Oh, I do too.

SCHUMER: ... and I think you would agree.


SPECTER: If this were a courtroom, I'd move to strike all your questions and his answers, because the record was so much better off before.


SCHUMER: Well, I don't buy that, Mr. Chairman.

SPECTER: But take two more minutes on the conditions stated.

SCHUMER: I don't buy that. I think we have to tie down as much as we can here, OK.

Let me go to another bit of questions here.

You said, Mr. Attorney General, that the AUMF allowed the president -- that's one of the legal justifications, the Constitution, to go ahead with this program.

Now, under your legal theory, could the government, without ever going to a judge or getting a warrant, search an American's home or office?

GONZALES: Well, of course, Senator, any authorization or activity by the president would be subject to the Fourth Amendment. And what you're talking about -- I presume we're talking about a law enforcement effort. This is not a law enforcement effort.

SCHUMER: Let me interrupt for a minute. Aren't wiretaps subject to the Fourth Amendment, as well?

GONZALES: Of course. Of course, they are.

SCHUMER: So they're both subject.

What would prevent the president's theory, your theory, from -- given the danger, given, maybe, some of the difficulties -- from going this far?

GONZALES: Well, sir, it's hard to answer a hypothetical question in the way that you pose it in terms of how do the president's authorities extend.

However far they may extend, Senator, they clearly extend so far as to allow the president of the United States to engage in electronic surveillance of the enemy during a time of war.

SCHUMER: Would he engage in electronic surveillance when the phone calls both originated and ended in the United States if there were Al Qaida suspects?

GONZALES: I think that question was asked earlier. I've said that I don't believe that we've done the analysis on that.

SCHUMER: I asked what do you think the theory is?

GONZALES: That's a different situation, Senator. And, again, these kind of constitutional questions -- I could offer up a guess, but these are hard questions.

SCHUMER: Has this come up? Has it happened?

GONZALES: Sir, what the president has authorized is only international phone calls.

SCHUMER: I understand.

Has there been a situation brought to your attention where there were Al Qaida calls -- someone suspected of being part of Al Qaida or another terrorist group calling someone from the United States to the United States?

GONZALES: Sir, now, you're getting into, sort of, operations. And I'm not going to respond to that.

SCHUMER: Well, I'm not asking any specific; I'm asking "ever."

GONZALES: You're asking about how this program has operated. And I'm not going to answer that question, sir.

SCHUMER: Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Schumer.

Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

And I think your comments, Mr. Chairman, about this not being a court of law, are apt. Because I don't think we're going to get resolution about the disagreement among lawyers as to what the legal answer is.

But I do believe it's important to have the hearing and to air the various points of view.

But I would hope -- and I trust, along the lines of what Senator Schumer stated -- is that there would be a consensus on the committee and throughout the Congress that we should use all legal means available to us to gather actionable intelligence that has the potential of saving American lives.

CORNYN: You certainly would agree with that, wouldn't you, General Gonzales?

GONZALES: Yes, Senator.

CORNYN: And some at (inaudible) "Well, has the Foreign Intelligence Surveillance Act, which was passed in 1978, authorized the president to conduct this particular program?"

I have a couple of problems with that question stated that way.

Number one, the technology has surpassed what it was in 1978, so our capacity to gain actionable intelligence has certainly changed.

And the very premise of the question suggests that the president can only exercise the authority that Congress confers. And when people talk about the law, the law that pertains to this particular question is not just the Foreign Intelligence Surveillance Act, but it includes the Constitution and the authorization for use of military force.

Would you agree with that, General Gonzales?

GONZALES: Senator, you raised a very important point. People focus on the Foreign Intelligence Surveillance Act and say, "This is what the words say and that's the end of it; if you're not following it in total, you're obviously in violation of the law."

That is only the beginning of the analysis. You have to look to see what Congress has done subsequent to that. And then, of course, you have to look at the Constitution.

There have been many statements today about "No one is above the law." And I would simply remind -- and I know this doesn't need to be stated -- but no one is above the Constitution either, not even the Congress.

CORNYN: And clearly the Supreme Court, in the Hamdi case, said what we all know to be the fact, and that is no president is above the law, no person in this country, regardless of how exalted their position may be or how relatively modest their position may be -- we're all governed by the Constitution and laws of the United States.

GONZALES: During my confirmation hearings, I talked about Justice O'Connor's statement from Hamdi that a state of war is not a blank check for the president of the United States.

GONZALES: And I said in my hearings that I agreed with that.

CORNYN: General Gonzales, I regret to say that when I was just a few minutes ago watching the crawler or the caption in a cable news network, it referred to domestic surveillance, which strikes me as a fundamental error in the accuracy of the reporting of what's going on here.

You made clear that what's been authorized here is not domestic surveillance; that is, starting from and ending in the United States. This is an international surveillance with known Al Qaida operatives, correct?

GONZALES: I think people who call this a domestic surveillance program are doing a disservice to the American people. It would be like flying from Texas to Poland and saying that's a domestic flight. We know that's not true. That would be an international flight. And what we're talking about are international communications.

And so I agree with your point, Senator.

CORNYN: With regard to the authorization of the use of military force, some have questioned whether it was actually discussed in Congress whether surveillance of international phone calls between Al Qaida overseas and here, whether that was actually in the minds of individual members of Congress when they voted to support the authorization of the use of military force.

It strikes me as odd to say that Congress authorized the commander in chief to capture, to detain, to kill, if necessary, Al Qaida, but we can't listen to their phone calls and we can't gather intelligence to find out what they're doing so we can prevent future attacks against the American people.

CORNYN: Now, you've explained your legal analysis with regard to the Hamdi decision and explaining that intelligence is a fundamental incident of war. And I think that makes good sense.

And, here again, I realize we have some very fine lawyers on the committee. And there are a lot of lawyers around the country who've opined on this: some who have been negative, some who have been positive.

I was struck by the fact that John Schmidt, who was associate attorney general during the Clinton Justice Department, wrote what I thought was an eloquent op-ed piece for the Chicago Tribune, dated December the 21st, 2005, agreeing with the administration's point of view. But that's only to point out that lawyers, regardless of their party affiliation, will have, perhaps, differing views.

But, again, I would hope that what we're not engaged in is either a partisan debate or even an ideological debate, but a legal debate on what the constitutional laws of the United States provide for.

Let me turn to another subject that's caused me a lot of concern, and that is our espionage laws and the laws that criminalize the intentional leaking of classified information.

It's my understanding from the news reports that the Department of Justice has undertaken an investigation to see whether those who actually leaked this program to the New York Times or any other media outlet might have violated our espionage laws.

CORNYN: Is that correct?

GONZALES: I can confirm, Senator, that an investigation has been initiated.

CORNYN: Does that investigation also include any potential violation for publishing that information?

GONZALES: Senator, I'm not going to get into specific laws that are being looked at. But, obviously, our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they're going to prosecute those violations.

CORNYN: Well, you may give me the same answer to this next question.

But I'm wondering, is there any exclusion or immunity for the New York Times or any other person to receive information from a lawbreaker seeking to divulge classified information? Is there any explicit protection in the law says that if you receive that and you publish it, you are somehow immune from a criminal investigation?

GONZALES: Senator, I'm sure the New York Times has their own great set of lawyers, and I would hate in this public forum to provide them my views as to what would be a legitimate defense.

CORNYN: Well, there's a lot of very strange circumstances surrounding this initial report in the New York Times, including the fact that the New York Times apparently sat on the story for a year. And then, of course, the coincidence, some might say, that the story was broken on the date that Congress was going to vote -- the Senate was going to vote on reauthorization of the Patriot Act. But we'll leave that perhaps for another day.

I believe I will yield the rest of my time back. Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Cornyn.

DURBIN: Thank you very much, Mr. Chairman.

Thank you, Attorney General, for being here.

During the course of this hearing, you have referred to FISA several times as "a useful tool, a useful tool in wiretapping and surveillance."

Continued on Part III.

Return to Part I.

Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved

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