U.S. Senate Judiciary Committee Hearing on
"Wartime Executive Power and the NSA's Surveillance Authority"
February 6, 2006
(This is a partial Transcript)
U.S. SENATE COMMITTEE ON THE JUDICIARY
WARTIME EXECUTIVE POWER AND THE NSA'S SURVEILLANCE AUTHORITY
FEBRUARY 6, 2006
WITNESSES:
ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES
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SEN. SPECTER: (Sounds gavel.) It's 1:45. The committee prides itself
on being prompt. And we thank you, Mr. Attorney General, for being prompt
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 co-sponsoring, 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 date,
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 gotten 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 consented to come back on a second day.
So we will proceed through until about 5:00 this afternoon, and then
we will schedule another day. By that time, everybody will have had
a full -- a first round, and it will give us time to digest what we
have heard, and we will proceed on a second day.
Senator Feingold, you're recognized.
SEN. RUSSELL FEINGOLD (D-WI): Good afternoon, Mr. Attorney General.
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. (Laughter.)
SEN. SPECTER: (Chuckles.)
SEN. FEINGOLD: Secondly, let me say --
SEN. SPECTER: Green Bay --
SEN. FEINGOLD: Green Bay will be back, Mr. Chairman.
SEN. SPECTER: With Green Bay out of it, why not root for the Steelers,
Senator Feingold?
SEN. LEAHY: That's why we didn't have the hearing last night.
SEN. FEINGOLD: Well, I understood that. I was curious about that.
Mr. Chairman --
SEN. SPECTER: Re-set the clock at 10 minutes. (Laughter.)
SEN. FEINGOLD: (Laughs.)
SEN. SPECTER: I was only kidding. (Laughter.)
SEN. 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 the -- 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. But 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 talking with al Qaeda, we want to know what you're saying."
Absolutely right. No one in 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.
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 have already 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 6th, 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?
ATTY GEN. GONZALES: Yes, sir.
SEN. FEINGOLD: And sir, I don't mean to belabor the point, but just
so the record is clear, do you or anyone in the administration ask Chairman
Specter or his staff that you not be put under oath today?
ATTY GEN. GONZALES: Senator, I've already indicated for the record
the chairman asked my views about being sworn in, and I said I had no
objection.
SEN. FEINGOLD: But did anyone -- you or anyone in the administration
ask the chairman to not have you sworn?
ATTY GEN. GONZALES: Sir, not to my knowledge.
SEN. FEINGOLD: Okay.
SEN. SPECTER: The answer's no.
SEN. FEINGOLD: At the time -- that's fine.
At the time you testified in January of '05, you were fully aware of
the NSA program, were you not?
ATTY GEN. GONZALES: Yes, sir.
SEN. 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?
ATTY GEN. GONZALES: Yes, I had the legal analysis performed by the
Department of Justice.
SEN. FEINGOLD: And you, as White House counsel, agreed with that legal
analysis, didn't you?
ATTY GEN. GONZALES: I agree with the legal analysis, yes.
SEN. FEINGOLD: And you had signed off on the program, right?
ATTY GEN. GONZALES: Yes, I do believe the president -- I did believe
at the time the president has the authority to authorize these kind
of --
SEN. 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? Why not?
ATTY GEN. GONZALES: Sir, I believe your question -- the hypothetical
you pose -- and I do consider a hypothetical -- which is whether or
not -- had the president authorized activity in -- specific electronic
surveillance in violation of the laws. And I have tried to make clear
today that in the legal analysis in the white paper, the position of
the administration is that we -- the president has authorized electronic
surveillance in a manner that's totally consistent -- not in violation,
not in -- not overriding provisions of FISA, but totally consistent
with FISA.
SEN. FEINGOLD: Well, Mr. -- General, certainly it was not a hypothetical,
as we now know.
ATTY GEN. GONZALES: Your -- Senator, your question was whether or not
the president had authorized certain conduct in violation of law. That
was a hypothetical.
SEN. FEINGOLD: My question was whether the president could have authorized
this kind of wiretapping.
ATTY GEN. 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 --
SEN. FEINGOLD: You said that was your -- you said the question was
merely hypothetical, and that -- 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.
ATTY GEN. GONZALES: Senator -- Senator, your question was whether or
not the president had authorized conduct in violation of law, and I've
laid out --
SEN. FEINGOLD: The question was whether the --
ATTY GEN. GONZALES: I have --
SEN. FEINGOLD: -- Mr. Attorney General, my question was whether the
president would have the power to do that.
ATTY GEN. GONZALES: And, Senator, the president has not authorized
conduct in violation of our criminal statutes. We've laid out a 42-page
analysis of our legal position here. The authority the president has
exercised are totally consistent with the criminal provision -- the
primary criminal provision in FISA, Section 109.
SEN. 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. It was a question about your
view of the law -- about your view of the law --
ATTY GEN. GONZALES: Senator --
SEN. FEINGOLD: -- during the 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.
ATTY GEN. GONZALES: Senator, I've 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.
SEN. FEINGOLD: Mr. Chairman, I think the witness has taken mincing
words to a new high, and there it is 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.
SEN. SPECTER: Wait a minute. Did you care to answer that, Attorney
General Gonzales?
ATTY GEN. 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.
SEN. FEINGOLD: All you had to do, Mr. Attorney General, was indicate
that it was view that it was legal. That was what my question was. I
would have disagreed with your conclusion. But that's not what you said,
and you referred to this as merely a hypothetical.
Mr. Attorney General, the 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?
ATTY GEN. GONZALES: Yes. In the 1967 Katz case, the Supreme Court did
find that telephone conversations would be -- are covered by the Fourth
Amendment.
SEN. FEINGOLD: So when the Justice Department points to Presidents
Wilson and Roosevelt's actions, those are really irrelevant, aren't
they?
ATTY GEN. 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. Feb 06, 2006 16:43 ET .EOF
The fact that the Fourth Amendment may apply doesn't mean that a warrant
is necessarily 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.
SEN. FEINGOLD: Mr. Chairman, my time's up. I'll continue this line
of questioning later.
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SEN. HATCH: Thank you, Senator.
Senator Feingold?
SEN. RUSSELL FEINGOLD (D-WI): Thank you, Mr. Chairman.
General Gonzales, when my time ended last time we were beginning to
talk about the president's statements in the state of the union that
his predecessors used the same legal authority that he is asserting.
Let me first ask do you know of any other president who has authorized
warrant-less wiretaps outside of FISA since 1978 when FISA was passed?
ATTY GEN. GONZALES: None come to mind, Senator, but maybe I'd be happy
to look to see whether or not that's the case.
SEN. FEINGOLD: Think it is a no unless you submit something.
ATTY GEN. GONZALES: I can't answer that I -- I can't give you an answer.
SEN. FEINGOLD: Okay. Isn't it true that the only federal courts to
decide the president's authority to authorize warrant-less national
security wiretaps were considering wiretaps carried out before the enactment
of FISA?
ATTY GEN. GONZALES: I'm sorry, Senator. I was thinking about your question
and I --
SEN. FEINGOLD: Would you like to answer the previous question?
ATTY GEN. GONZALES: No, but I was thinking about -- I was trying to
think of an answer and I didn't catch the first part of your second
question.
SEN. FEINGOLD: Isn't it true that the only federal courts to decide
the president's authority to authorize warrant-less national security
wiretaps were considering wiretaps that were carried out before the
enactment of FISA?
ATTY GEN. GONZALES: In which there were actual decisions? Actually,
there was a Fourth Circuit decision, the Truong decision, which was
decided after FISA.
To be fair, I don't think they really got into an analysis.
SEN. FEINGOLD: That case was about a Vietnam era wiretap before FISA
was enacted, right?
ATTY GEN. GONZALES: I believe -- the collection occurred before FISA
was enacted. The decision was made after FISA and consequently, my recollection
is is that case doesn't really get into a discussion about how the passage
of FISA impacts or affects the president's --
SEN. FEINGOLD: If it was based on facts prior to FISA, then the only
law that controls if the prior to FISA, right?
ATTY GEN. GONZALES: That's right. And then, of course, In re: Sealed
Case, that did not --
SEN. FEINGOLD: You covered that with Senator Feinstein. That was dicta,
correct?
ATTY GEN. GONZALES: Yes.
SEN. FEINGOLD: Thank you. So when the president said that federal courts
have, quote, "approved the use of that authority," unquote,
that he was trying to make people think that the courts had approved
the authority he is invoking and the legal theory that you've put forward
here.
That isn't really accurate, is it?
ATTY GEN. GONZALES: The president was totally accurate in saying that
in considering the question as to whether or not the president has inherent
constitutional authority to authorize warrant-less searches consistent
with the Fourth Amendment to obtain foreign intelligence, the statement
I think is perfectly accurate.
But he said that federal courts had said it was all right.
ATTY GEN. GONZALES: That's right.
SEN. FEINGOLD: And you aren't able to give me anything here since FISA
that indicates that.
ATTY GEN. GONZALES: But Senator, I don't believe that he was making
a statement since or before FISA. He was making the statement the courts
who have considered the president's inherent constitutional authority
had -- the court of appeals had said and I think there is -- in fact,
there are five court of appeals decisions cited in the In re: Sealed
Case.
All of them have said, I believe, that the president does have the
constitutional authority to engage in this kind of surveillance.
SEN. FEINGOLD: Attorney General, that's why we just went over all this,
because all of that is based on pre-FISA law. And here's my concern
-- the president has somehow suggested that he couldn't wiretap terrorists
before he authorized this program. He said, quote, "If there are
people inside our country who are talking with al Qaeda we want to know
about it." Unquote. And of course, I agree with that 100 percent
and we have a law that permits it.
Isn't it true that FISA permits the NSA to wiretap people overseas
without a court order, even if they call into the United States?
ATTY GEN. GONZALES: Well, of course, it depends.
SEN. FEINGOLD: Well, it does do that in some circumstances, does it
not?
ATTY GEN. GONZALES: It could do it in some circumstances, depending
on whether or not it is an electronic surveillance as defined under
FISA. As you know, it is a very -- I don't want to say convoluted --
it's a very complicated definition of what kind of radio or wire communications
would in fact be covered by FISA.
SEN. FEINGOLD: Attorney General, I understand that. But clearly, FISA,
in part, does permit that kind of activity in certain cases.
ATTY GEN. GONZALES: Depending on the circumstances.
SEN. FEINGOLD: To leave the impression that there is no law permitting
that would be incorrect.
ATTY GEN. GONZALES: Oh, of course not. We use FISA whenever we can.
SEN. FEINGOLD: -- trying to get at is the impression that the president
left, I think, in the State of the Union was not completely accurate.
Isn't it true that FISA permits the FBI to wiretap individuals inside
the United States who are suspected of being terrorists or spies so
long as the FBI gets secret approval from a judge?
ATTY GEN. GONZALES: Senator, I think I've already said that with respect
to even domestic communication involving members of al Qaeda we use
all the tools available to us including FISA. If we can get a FISA --
SEN. FEINGOLD: So the fact is, when the president suggests that he
doesn't have that -- that power doesn't exist -- that power does exist,
at least in part, under FISA -- under current law.
ATTY GEN. GONZALES: Well, Senator, I don't know whether or not that's
what the president suggested, but clearly, the authority does exist
for the FBI, assuming we can meet the requirements of FISA, assuming
it is electronic surveillance covered by FISA to engage in electronic
surveillance of al Qaeda here in this country.
SEN. FEINGOLD: Here's what the president said, he said, again quote,
"If there are people inside our country who are talking with al
Qaeda, we want to know about it." Unquote. I was sitting in the
room. He sure left me the impression that he was suggesting that without
this NSA program, somehow he didn't have the power to do that. That's
misleading. So when the president said that he authorized a program
to, quote, "Aggressively pursue the international communications
of suspected al Qaeda operatives and affiliates to and from America
-- trying to suggest that without this program he could not do that
under the law -- that's not really right, is it?
ATTY GEN. GONZALES: Senator, I believe that what the president has
said is accurate, is not misleading. We've -- the day following the
New York Times story, he came out to the American people and explained
what he had authorized. We had given numerous briefing to Congress since
that day. I'm here today to talk about the legal authority for this
program.
SEN. FEINGOLD: Well, I think the president's comments in the State
of the Union were highly misleading. The American people need to know
that you already have legal authority to wiretap anyone you suspect
of helping al Qaeda and every person on this committee in this Senate
supports your use of FISA to do just that.
Let me switch to another subject. Senator Feinstein sort of got at
this, but I want to try a different angle. If you could answer this
with a yes or no, I would obviously appreciate it. Has the president
taken or authorized any other actions -- and other actions that would
be illegal if not permitted by his constitutional powers or the authorization
to use military force?
ATTY GEN. GONZALES: Repeat your question, please, Senator.
SEN. FEINGOLD: Has the president taken or authorized any other actions
that would be illegal if not permitted by his constitutional powers
or the authorization to use military force?
ATTY GEN. GONZALES: You mean in direct contradiction of the statute
and relying upon his commander in chief authority?
SEN. FEINGOLD: Has he taken any other actions -- yes, that would be
illegal --
ATTY GEN. GONZALES: Not to my knowledge, Senator.
SEN. FEINGOLD: In other words, are there other actions under the use
of military force for Afghanistan resolution that, without the inherent
power, would not be permitted because of the FISA statute? Are there
any other programs like that?
ATTY GEN. GONZALES: Well, I guess what I'd like to do, Senator, is
I want to be careful about answering your question. I obviously cannot
talk about operational matters that are not before this committee today
and I don't want to leave you with the wrong impression. And so I would
like to get back to you with an answer to your question.
SEN. FEINGOLD: I definitely prefer that to then being told that something's
a hypothetical.
On September 10, 2002, Associate Attorney General David Criss (sp)
testified before the Senate Judiciary Committee. His prepared testimony
includes the following statement, quote, "Thus both before and
after the Patriot Act, FISA can be used only against foreign powers
and their agents and only where there is at least a significant foreign
intelligence purpose for the surveillance." Let me repeat for emphasis:
"We cannot monitor anyone today whom we could not have monitored
at this time last year." Unquote. And this last sentence was actually
underlined for emphasis in the testimony, so let me repeat it too --
"We cannot monitor anyone today whom we could not have monitored
at this time last year."
Now I understand that Mr. Criss (sp) did not know about the NSA program
and has been highly critical of the legal justifications offered by
the Department. I also realize that you were not the attorney general
in 2002. So I know you won't know the direct answer to my question,
but can you find out -- and I'd like if you can get me a response in
writing -- who in the White House and the Department of Justice reviewed
and approved Mr. Criss's (sp) testimony? And of those people, which
of them were aware of the NSA program and thus let what was obviously
a highly misleading statement be made to the Congress of the United
States? Will you provide me with that information?
ATTY GEN. GONZALES: We'll see what we can provide to you, Senator.
Sir, my understanding is that Mr. Criss (sp) -- I don't think it's fair
to characterize his position as highly critical. I think he may disagree,
but saying it's highly critical, I think, is unfair.
SEN. FEINGOLD: Well, we can debate that, but the point here is to get
to the underlying information. I appreciate your willingness to get
that for me if you can.
General Gonzales, I'd like to explore a bit further the role of the
telecommunications companies and Internet service providers in this
program. As I understand it, surveillance often requires the assistance
of these service providers and the providers are protected from criminal
and civil liability if they've been provided a court order from the
FISA court or criminal court or if a high ranking Justice Department
official has certified in writing that, quote, "No warrant or court
order is required by law, that all statutory requirements have been
met and that the specified assistance is required." Am I accurately
stating the law?
ATTY GEN. GONZALES: I believe that's right, Senator.
SEN. FEINGOLD: Have you or anyone at the Justice Department provided
any telephone companies or ISP's with these certifications in the course
of implementing the NSA's program?
ATTY GEN. GONZALES: Sir, that is an operational detail that I just
can't go into in this hearing.
SEN. FEINGOLD: I look forward to an opportunity to pursue it in other
venues and thank you very much.
ATTY GEN. GONZALES: Thank you, Senator.
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