UNITED STATES DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
APRIL 6, 2006
__________
Serial No. 109-137
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
26-915 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800
Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
C O N T E N T S
----------
APRIL 6, 2006
OPENING STATEMENT
Page
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman, Committee
on the Judiciary............................................... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 19
WITNESSES
The Honorable Alberto R. Gonzales, Attorney General, U.S.
Department of Justice, Washington, DC
Oral Testimony................................................. 2
Prepared Statement............................................. 6
APPENDIX
Material Submitted for the Hearing Record
Responses to Post-Hearing Questions for the Record posed to
Attorney General Gonzales...................................... 107
The Washington Post News Article ``Civil Rights Focus Shifts
Roils Staff at Justice,'' dated November 13, 2005.............. 219
Letter from the Honorable John Conyers, Jr., a Representative in
Congress from the State of Michigan, and Ranking Member,
Committee on the Judiciary..................................... 221
UNITED STATES DEPARTMENT OF JUSTICE
----------
THURSDAY, APRIL 6, 2006
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:03 a.m., in
Room 2141, Rayburn House Office Building, the Honorable F.
James Sensenbrenner, Jr., (Chairman of the Committee)
presiding.
Chairman Sensenbrenner. The Committee will be in order. A
quorum for the taking of testimony is present.
Before swearing in the Attorney General and allowing him to
make his opening statement, I would like to talk a little bit
about the ground rules for today's hearing.
The Attorney General's schedule allows him to be here until
3 p.m. It is the Chair's intention to have his opening
statement first, and then the Chair will recognize Members
alternately by side in the order in which they appear. The
Chair intends to enforce the 5-minute rule strictly, meaning
that the Member who has the time will be able to complete the
question and the Attorney General will be able to answer the
question when the red light goes on. But the Chair will, at the
conclusion of the Attorney General's answer, recognize the next
person in line.
The Chair also intends that when we have the votes sometime
around 11:30 to recess the Committee until 15 minutes after the
last of the rolled votes. So I would strongly encourage Members
and staff, if they wish to have lunch, to utilize that time for
that purpose.
If everybody has asked questions, we will go on a second
round of questions, again, strictly enforcing the 5-minute
rule, and I will use the list of Members in the order in which
they showed up at the beginning of the hearing to recognize
Members in the order in which they've received. So--or
appeared. So if you wish to have a second round of questions,
it would behoove you to return promptly when the hearing
resumes, because if you are not there, you will fall to the
bottom of the list.
Are there any questions about this procedure? If there are
not any questions, today we welcome again Attorney General
Alberto Gonzales to appear before the Committee. This is a
general hearing on the operations of the Justice Department,
and, Mr. Attorney General, would you please stand, raise your
right hand, and take the oath?
[Witness sworn.]
Chairman Sensenbrenner. Let the record show the witness
answered in the affirmative.
Mr. Attorney General, the floor is yours.
TESTIMONY OF THE HONORABLE ALBERTO R. GONZALES, ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Attorney General Gonzales. Good morning, Chairman
Sensenbrenner, Ranking Member Conyers, and Members of the
Committee. I appreciate this opportunity to discuss a number of
issues that are of vital importance to Congress, the Justice
Department, and the American people.
When I reflect on the 14 months that I have served as
Attorney General and the countless ways the Department impacts
lives across this great Nation, I am reminded that we have a
unique responsibility as stewards of the American dream, the
dream of living and prospering in a safe, secure, and hopeful
society.
Our record in securing this dream I believe is strong. We
have not suffered another terrorist attack here at home, and
our Nation's violent crime rate is at its lowest level in more
than three decades.
But now we have to do more. To guide the work of the
Department, I have established priorities rooted in the pursuit
of the American dream: fight terrorism; combat violent crime,
cyber crime, and drug trafficking; protect civil rights; and
preserve Government and corporate integrity.
In each of these six areas of special emphasis, we have a
plan to secure the hopes and the opportunities and the
cherished values that make our country great.
First, on terrorism, our top priority. The terrorists seek
to destroy the American promise of liberty and prosperity, and
they are determined to attack us again here at home. Thank you
for your multi-year effort to reauthorize the PATRIOT Act. It
was a tough process, but an important one.
We continue to work to prevent another terrorist attack by
prosecuting those who might harm Americans. This fight is not
easy. Terrorism cases are some of the most difficult to
investigate and prosecute, so we have had to adapt our efforts
to a new world of changing techniques and technologies. This
cutting-edge work has led to many successes.
Last week, Ahmed Omar Abu Ali was sentenced to 30 years in
prison for providing support to al-Qaeda, conspiring to
assassinate President Bush, and conspiring to hijack and
destroy commercial airplanes in an attack similar to the
attacks of September 11, 2001. This terrorist will now be
behind bars in a Federal prison where he can't harm American
citizens.
He joins others that the Department has removed from
society, such as Richard Reid, the so-called shoe bomber; John
Walker Lindh, the American Taliban; and members of the Virginia
Jihad Network.
We've broken up terrorist cells in Portland, Oregon,
Brooklyn, and Buffalo, New York, and recently charged three men
in Toledo, Ohio, with conspiring to provide material support to
terrorists and conspiring to commit acts of terrorism against
individuals overseas, including U.S. military personnel serving
in Iraq.
In addition, as you know, the Justice Department has been
authorized to stand up a National Security Division. This will
bring under one umbrella the Department's primary national
security elements, and this fulfills a key recommendation of
the WMD Commission. It's another step in eliminating the
infamous wall between our intelligence and law enforcement
teams.
In addition to our ongoing fight against terrorism, the
Justice Department continues to focus on five strategic
priorities with a targeted agenda focused on producing results.
I thought I would give you a sense of those results just over
the past few weeks. Every American deserves to live free from
the fear of violent crime. We remain focused on reducing gun
crime and liberating communities from the stranglehold of gang
violence.
We are reducing gun crime across the country through the
President's Project Safe Neighborhoods program. The numbers
show that this initiative has been very successful. That is
probably why most U.S. Attorneys across the country have
started to use their PSN programs to target violent gangs
operating in their districts.
We have responded with a comprehensive anti-gang strategy
that uses the successful PSN model to shut down violent gangs
that terrorize our streets, our neighborhoods. Nationwide, the
strategy focuses on prevention, prosecution, and preparing
prisoners for a return to society.
As part of that effort, I was in Los Angeles last week to
announce that L.A. is one of six areas that will participate in
a pilot project to target anti-gang resources in new and
imaginative ways.
In addition to L.A., this program will provide $2.5 million
to implement innovative anti-gang solutions in Cleveland,
Dallas-Fort Worth, Milwaukee, Tampa, and a gang corridor that
stretches from Easton to Lancaster, Pennsylvania, near
Philadelphia.
When we talk about violence, especially keeping our
children safe, we often fear what can happen as they walk to
school or play on a ball field. But recent headlines have
reminded us that our children also can log onto the Internet
and open themselves to new and hidden threats. The Internet
must be safe for all Americans, especially children.
I recently announced a major new initiative: Project Safe
Childhood. The goal of this project is to prevent the
exploitation of our kids over the Internet, to clean up this
new neighborhood just as we've worked to reduce gun crime on
our city streets.
U.S. Attorneys in every district will partner with local
Internet Crimes Against Children Task Forces and community
leaders to develop a strategic plan based on the particular
needs of their communities. They will then share resources and
information to investigate and prosecute more sexual predators
and child pornographers than ever before. And they will
coordinate in seeking the stiffest penalties possible.
Two weeks ago, I announced the indictments of 27 people for
allegedly participating in a pornographic chat room called
``Kiddypics and Kiddyvids.'' Some participants of the chat room
have been charged with using minors to produce images of child
pornography and then making those images, including a live show
of an adult sexually molesting an infant, available to other
members through the Internet.
The Project Safe Childhood initiative will help us target
this kind of horrific behavior and prosecute individuals who
harm our children.
Even as advanced technologies help cultivate new dreams,
too often those dreams are wiped out by the pitfalls of illegal
drug abuse.
No community will fully prosper if drug abuse is rampant.
And that's why we will continue to dedicate ourselves to
dismantling drug-trafficking organizations and stopping the
spread of illegal drugs.
Just last week, I announced the largest narcotics-
trafficking indictment in our history. Fifty members of the
Colombian narco-terrorist group FARC have been indicted for
allegedly importing more than $25 billion worth of cocaine into
the United States and other countries. The FARC is responsible
for overseeing the prosecution of more than 60 percent of the
cocaine imported into the United States.
Several FARC members appear on the Justice Department's
Consolidated Priority Organization Target, or CPOT, List, which
identifies the most dangerous international drug-trafficking
organizations. The list was created at the beginning of the
Administration to ensure that drug enforcement resources were
directed in the most productive fashion possible, and last
year, we dismantled six of these CPOT organizations and
disrupted the operations of six more.
We're also continuing and expanding our work to combat the
spread of methamphetamine across the Nation. Thank you for
passing the Combat Methamphetamine Epidemic Act which provides
law enforcement with additional tools to disrupt the production
and trafficking of meth.
Law enforcement has done a good job of shutting down small
meth labs here in the United States. We need to do more. Also,
production continues in ``super labs'' outside of our borders,
especially in Mexico, and the finished product comes back to
the United States through illegal drug-trafficking routes. We
are working with our counterparts in Mexico to address the
production and trafficking of methamphetamine, including
providing training and equipment to law enforcement teams
across the border.
Forty years ago, the color of your skin was as much of an
obstacle to the American dream as violent gangs, sexual
predators, and drug dealers are today. We've come a long way
from that brand of State-sponsored racism, but we must continue
to safeguard the civil rights that are fundamental to the
opportunities that we cherish in this country.
All Americans should have the same chance to pursue their
dreams. We will continue to aggressively combat discrimination
wherever it is found, and I am pleased that the Department
prosecuted a record number of criminal civil rights cases in
the last 2 years.
This year, we have begun Operation Home Sweet Home. Under
this initiative, we will bring the number of targeted
investigations under the Fair Housing testing program to an
all-time high, ensuring the rights of all Americans to obtain
housing fairly.
We are, of course, also anxious to renew our commitment to
the fundamental right to vote by working with Congress to
reauthorize the Voting Rights Act.
Lastly, human trafficking has emerged as one of the
foremost civil rights issues of our day. Three weeks ago, I was
in Chicago to announce the release of a report detailing the
Justice Department's efforts to halt this pernicious evil.
There is no place in our compassionate society for these
peddlers of broken dreams. President Bush has pledged his
support for this effort, and I have made it a high priority at
the Justice Department.
Millions of people come to America every year to pursue the
American dream because of the rights and liberties we've
guaranteed for generations. And our Government and our economy
are the envy of billions more because we have systems that are
open, honest, fair, and dependable.
Integrity in Government and business is essential for a
strong America. Taxpayers and investors deserve nothing less.
And that's why we will investigate and prosecute corruption
wherever we find it, and we will preserve the integrity of our
public institutions and corporations.
This list of priorities, of course, is not exclusive. We
have other responsibilities that are no less important to the
American dream.
For instance, enforcing our immigration laws will help us
remain an open and welcoming society, by cracking down on
illegal activity and closing our borders to criminals and
terrorists. The President has called for comprehensive
immigration reform policy that is based upon law and reflects
our deep desire to be a compassionate and decent Nation. I join
him in urging Congress to take action that makes sense for
everyone in America.
And a tough and fair sentencing system will give teeth to
our enforcement objectives, improve our deterrence efforts, and
ensure that every American is treated fairly before the bar of
justice.
Before the Supreme Court's decision in United States v.
Booker, the Sentencing Reform Act and the mandatory Sentencing
Guidelines were designed to generate similar sentences for
defendants who commit similar crimes and have similar criminal
records. There is a clear danger that the gains that we have
made in reducing crime and achieving fair and consistent
sentencing will be significantly compromised if mandatory
sentencing laws are not reinstituted in the Federal criminal
justice system.
In these strategic areas, and many more, we are working
hard to protect and preserve the American dream. Crime is down.
Drug use is declining. Our Nation is more secure today than
ever before. We can, of course, all be proud but not
complacent.
I appreciate your partnership as we strive to build upon
the vital role of the Justice Department in securing this dream
for future generations. Thank you, Mr. Chairman.
[The prepared statement of Attorney General Gonzales
follows:]
Prepared Statement of the Honorable Alberto R. Gonzales
Chairman Sensenbrenner. Thank you very much, Mr. Attorney
General.
The Chair recognizes himself for 5 minutes for questions.
Mr. Attorney General, in early February I sent to you an
oversight letter requesting detailed information on the NSA
terrorist surveillance program. The Department's response has
provided much substantive information on the legal basis for
the program; however, there was one question at the center of
this Committee's jurisdiction over the program that was not
answered adequately. This question related to the legal debate
preceding the implementation of this program and was prompted
by reports that some high-level officials involved in the
discussion over the legality of the program who did not agree
with its legal basis.
Your response in the letter was, ``The President sought and
received the advice of lawyers in the Department of Justice an
elsewhere before the program was authorized and implemented.
The program was first authorized and implemented in October
2001.''
I would like to ask you the question again today, Mr.
Attorney General, so hopefully you can provide a more complete
answer, and there are five parts to the question.
First, please explain how the proposal for the program was
reviewed before it was authorized and initiated.
Second, who was included in this review prior to the
program going into effect?
Third, what was the timeline of discussions that took
place?
Fourth, when was the program authorized?
And, fifth, was the program implemented in any capacity
before receiving legal approval?
Thank you.
Attorney General Gonzales. Mr. Chairman, I don't know that
I have all parts of your question. What I can say is----
Chairman Sensenbrenner. I can help you if you have
forgotten.
Attorney General Gonzales. The program was not implemented
before the President received legal advice regarding the scope
of his authority to authorize this kind of program. The program
was authorized by the President in October of 2001. Mr.
Chairman, the program implicates some very tough legal issues.
It implicates the requirements of the fourth amendment. It
implicates FISA, which is a very complicated statute, the
Foreign Intelligence Surveillance Act. It implicates the
Authorization to Use Military Force. And it implicates the
President's inherent authority as Commander-in-Chief.
And when you have these kinds of issues to be discussed and
analyzed by lawyers, you are going to have good, healthy
debate. We encourage good, healthy debate about tough issues.
That is how you get to the right answers.
What I can say is that there was a great deal of debate and
discussion about the program. The disagreement--and there were
some disagreements. Some of the disagreements have been the
subject of some newspaper publications. What I have testified
before the Senate Judiciary Committee was that the
disagreements that have been the subject of newspaper stories
did not relate to the program that the President disclosed to
the public in his radio address in December of 2005. It related
to something else. And I can't get into that, Mr. Chairman.
Chairman Sensenbrenner. One of the questions that was asked
was who was included in the review prior to the program being
authorized.
Attorney General Gonzales. Mr. Chairman, who is read into
the program is a classified matter so I can't get into specific
discussions about specifically who was involved in reviewing
the legal authorities for the President of the United States in
authorizing this program. What I can say is that lawyers
throughout the Administration were involved in providing legal
advice to the President.
Chairman Sensenbrenner. Mr. Attorney General, how can we
discharge our oversight responsibilities if every time we ask a
pointed question we are told that the answer is classified?
Congress has an inherent constitutional responsibility to do
oversight. We are attempting to discharge those
responsibilities, and I think that saying how the review was
done and who did the review is classified is stonewalling. And
if we are properly to determine whether or not the program was
legal and funded--because that's Congress' responsibility--we
need to have answers. And we're not getting them.
Attorney General Gonzales. Respectfully, Mr. Chairman, our
basis, our analysis of the legality of the program is reflected
in the 42-page White Paper that was provided to the Congress.
Irrespective of who was involved in preparing that analysis,
that analysis represents----
Chairman Sensenbrenner. Respectfully, Mr. Attorney General,
that's your White Paper. We read the White Paper. We have
legitimate oversight questions, and we're told it's classified,
so we can't get to the bottom of this. Maybe there ought to be
some declassification involved.
The gentleman from Michigan, Mr. Conyers, has an opening
statement first, and then I'll recognize him for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman, and welcome, Mr.
Attorney General.
As we meet today, I believe our Nation is on the verge of a
full-blown constitutional crisis. Time and time again, when
confronted with matters involving balancing the rights and
liberties, the Bush administration has opted not only to
intrude on those liberties, but to do so in secret and outside
the purview of the courts and the Congress.
Those of us who raise these issues and voice these concerns
don't do so because we want to coddle terrorists or criminals.
The opposite. We do so because we have a historic and
legitimate concern regarding the misuse and abuse of Government
powers; not only under the PATRIOT Act but an entire array of
unilateral authorities have been assumed, in my view, by the
Administration since September 11.
When the Justice Department detains and verbally and
physically abuses thousands of immigrants without time limit,
for unknown and unspecified reasons targets tens of thousands
of Arab Americans for intensive interrogations, we see a
Department that has, in effect, institutionally racial and
ethnic profiling, without the benefit of even yielding a single
terrorism conviction.
When the President of the United States can take upon
himself to label United States citizens as enemy combatants
without trial, a lawyer, charges, or access to the outside
world, some of us see an Executive branch that has placed
itself in the constitutionally untenable position of
prosecutor, judge, and jury. When our own Government not only
condones the torture of prisoners at home and abroad and when
we permit the monitoring of religious sites and mosques without
any indication of criminal activity, we undermine our role as a
beacon of democracy and make it much easier for other nations
themselves to flaunt international law and human rights.
When Congress can pass laws that the President can sign on
one hand and then argue does not apply to him on the other
hand, we see an Executive that has cast aside the principle of
separation of powers, the very bedrock on which our Nation was
built.
There is no better illustration of the constitutional
crisis we are in today than the fact that the President is
openly violating our Nation's laws by authorizing the National
Security Agency to engage in warrantless surveillance of United
States citizens, and with all due respect, sir, the Department
has made the situation worse by virtue of a series of far-
fetched and constitutionally dangerous, after-the-fact legal
justifications that you have proffered.
Who can seriously expect Members of Congress to believe
that the use of force resolution that was authorized included
domestic surveillance? When you yourself admitted, and I quote,
``It would have been difficult, if not impossible''--in
quotations--``to amend FISA to provide the wiretap authority.''
In terms of inherent constitutional authority, if the
Supreme Court didn't let President Truman use his authority to
take over the steel mills during the Korean War in 1952 and
wouldn't let President Bush in 2005 use the authority to
indefinitely hold enemy combatants, it is hard to credibly
argue that the Court would permit unauthorized domestic spying
today.
Every Member of this panel wants the Justice Department to
listen in on communications by terrorists. That's why we
created a special FISA Court and created, in addition, a 72-
hour emergency exception to it and made literally dozens of
changes to FISA at your request over the last 5 years. But
don't tell us that you don't have resources to protect our
citizens privacy by completing the FISA paperwork, not when you
have a budget of more than $22 billion and 112,000 employees at
your disposal.
And, finally, Mr. Attorney General, if we are truly
interested in combatting terror in the 21st century, we must
move beyond symbolic gestures and color-coded threat levels and
begin to make the hard choices needed to protect our great
Nation. Let me suggest that if we really want to prevent
terrorists from targeting our cities and our citizens, we need
to stand up to the gun lobby and keep guns out of the hands of
suspected terrorists. If we really want to prevent bombings
like those which have devastated London and Madrid, we need to
challenge the explosives industry to help us regulate sales of
black and smokeless powder. If we want to protect our ports,
our trains and railroads, and other easy terrorist targets, we
need to stop passing new tax cuts for the wealthy and start
fully funding our homeland security needs and effectuate all of
the 9/11 Commission's recommendations.
The reasons the terrorists hate us is because we respect
the rights and liberties of all our citizens and cherish the
rule of law. If we really want to defeat the terrorists, we
should support and honor these strengths, not cast them aside.
When we disobey our own laws, when our Executive branch ignores
Congress and thumbs its nose at the courts, which we've seen in
this domestic spying program, and time and time again over the
last 5 years, we not only make our Nation less free, we make it
less safe.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. Does the gentleman want 5 more
minutes now?
Mr. Conyers. I would like to invite the distinguished
Attorney General----
Chairman Sensenbrenner. The gentleman is recognized for 5--
--
Mr. Conyers [continuing]. To make any responses that he
would like.
Chairman Sensenbrenner. The Attorney General is recognized.
Mr. Conyers. Thank you very much.
Did you hear what I was saying over the Chairman, sir? I'd
like you to feel free to respond to anything that I've said
which you may have agreement or disagreement
Attorney General Gonzales. Thank you, Congressman. I,
unfortunately, have much disagreement with what you said, but I
hope today that we have the opportunity to have an open
dialogue and discussion, not just with you but other Members of
the Committee.
I do not think that we are thumbing our nose at the
Congress, at the courts. With respect to the terrorist
surveillance program, we do believe that the Authorization to
Use Military Force is an example of Congress providing
authority, providing input into what the President should do in
responding to this threat.
Now, we have to remember--I've heard some Members say, ``I
never envisioned that I was authorizing electronic surveillance
when I authorized the President to use all necessary and
appropriate force.'' The Supreme Court in Hamdi, the plurality,
written by Justice O'Connor and then, of course, the fifth vote
to be provided by Justice Thomas, interpreted those words to
mean that what the Congress authorized was all those activities
that are fundamentally incident to waging war. That's what the
Congress authorized when it used those words, ``fundamentally
incident to waging war,'' all activities that are fundamentally
incident. This is what you've authorized. And in the Hamdi
decision, the Court said, therefore, you've also authorized the
detention of an American citizen. Even though the authorization
never used those words, ``detention,'' Justice O'Connor said,
``It is of no moment''--those were her words. ``It is of no
moment that we use those words.'' Congress has authorized the
detention of an American citizen captured on the battlefield
fighting against America because detaining the enemy captured
on the battlefield is a fundamental incident to waging war.
We submit, sir, that the electronic surveillance of the
enemy during a time of war is also fundamentally incident to
waging war. It is an activity that was conducted by Washington
during the Revolutionary War, by President Lincoln during the
Civil War, by President Wilson during World War I, by President
Roosevelt during World War II. It is fundamentally incident to
waging war, and, therefore, we believe that when Congress used
those words, ``all necessary and appropriate force,'' that it
authorized the President to engage in electronic surveillance.
Mr. Conyers. All right. Let me ask you one other question.
Please indicate on the record since the beginning of the Bush
administration our Government has engaged--whether our
Government has engaged in any domestic warrantless surveillance
outside of the emergency surveillance provisions of FISA and
outside of the so-called terrorist surveillance program.
Attorney General Gonzales. Well, of course, Congressman,
the United States Government is engaged in surveillance under
three baskets: one under Executive Order 12333, which is
classified. It has been fully briefed to the Intel Committee.
There are procedures governing the collection of electronic
surveillance, and that also has been fully briefed to the Intel
Committee. Collection is also under FISA. And collection under
the terrorist surveillance program. Those are the ways that
colleague of electronic surveillance is ongoing today, as I
understand it, to my knowledge.
Mr. Conyers. And that is the extent of the surveillance
that is going on.
Attorney General Gonzales. Again, I can only comment as to
what the President has confirmed and as to 12333 and as to
collection under FISA.
Mr. Conyers. Well, let me try for one other question here
within our time. Numerous members of the Bush administration,
including the Vice President and General Hayden, have asserted
that had warrantless surveillance been in place before
September 11, the attack could have been avoided. Given what
the 9/11 Commission has reported about this event and the FBI
Agent Sametz's recent testimony regarding the disarray at the
FBI, do you support their assertions, those of the Vice
President and General Hayden?
Attorney General Gonzales. I've got, of course, a great
deal of respect for General Hayden and for the Vice President.
I'm not going to dispute their assertion.
Mr. Conyers. I return my time, Mr. Chairman. Thank you.
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Keller.
Mr. Keller. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for coming before us today. You've just
testified that you think we must enforce our immigration laws,
and on March 25, President Bush in his radio address mirrored
your comments. He said, ``To keep the promise of America, we
must enforce the laws of America.''
I want to talk to you about one of the most important laws
we have on the books in terms of illegal immigration, and that
is the law dealing with smuggling illegal aliens into the U.S.
for financial gain. As you know, that's a felony and it's
punishable by a minimum of 3 years in prison under Title VIII
U.S. Code Section 1324, which I am holding up.
I want to tell you something which you may not be aware of.
I recently spent a full week on the Mexican-California border
riding around with Border Patrol agents. I was with them 2:00,
3 in the morning as they arrested various illegal aliens and
smugglers, which are also known as ``coyotes.'' I learned some
things from these Border Patrol agents directly that I want to
relay to you.
These coyotes get approximately $1,500 per person that they
illegally smuggle into the U.S. The Border Patrol agents told
me that they have arrested some of these alien smugglers
between 20 and 30 times. They tell me that the U.S. Attorney in
San Diego for the Southern District of California, Carol Lam,
has repeatedly refused to prosecute them, that the prosecutions
have been slashed dramatically, that under the guidelines and
practice of this U.S. Attorney, the only way you're really
going to see a prosecution is if someone dies in the transport
of the illegal aliens or if one of these alien smugglers
attempts to run over someone going through a port.
One example is Antonio Amparo Lopez, who has been arrested
for alien smuggling for financial gain. He has been arrested
more than 20 times. He has a long criminal history. The U.S.
Attorney has refused to prosecute this attorney--this alien
smuggler.
It's a concern not only to me. Congressman Darrell Issa has
been leading the charge on this issue. It's a concern to him.
Chairman Jim Sensenbrenner has raised concerns about it.
Chairman Duncan Hunter has raised concerns. Nineteen members of
the Republican California delegation wrote to you and President
Bush on October 20 of 2005.
The morale is so bad among these Border Patrol agents that
I show you a photograph that they call the ``Wall of Shame.''
It has pictures of over 200 coyotes that have been arrested by
the Border Patrol agents in the Southern District of California
who this U.S. Attorney has repeatedly failed to prosecute.
Here's some straight talk. The pathetic failure of your
U.S. Attorney in San Diego to prosecute alien smugglers who've
been arrested 20 times is a demoralizing slap in the face to
Border Patrol agents who risk their lives every day. It also
undermines the credibility that you and President Bush have
when you talk tough about enforcing the laws, and it renders
meaningless the laws this Congress passes to crack down on
alien smugglers.
Now, as you might imagine, there is a defense that this
U.S. Attorney raises. She and her assistant say, ``Well, we
just don't have the resources to prosecute these coyotes. We
have to focus on other priorities.''
Well, this U.S. Attorney has 120 U.S. Attorneys working for
her, and so I wondered what they are spending their time
prosecuting since this isn't a priority. And I have in my hand
a press release that U.S. Attorney Lam sent out recently on
March 22, 2006, bragging that they have successfully prosecuted
someone who sold a baseball card with Mark McGwire's picture on
it, even though there was a forged signature of the famous
slugger. And if I were Attorney General for a day, I would
probably call up the U.S. Attorney in San Diego and say,
``Here's a tip. Stop worrying about baseball cards and start
worrying about our national security and enforcing our laws.''
Now, my criticism isn't personal to you or President Bush.
I have very high regard for both of you. Very high regard. But
my questions are two, and then I'm going to shut up and give
you the chance to respond.
Question number one: What, if anything, will you do to see
that the U.S. Attorney in San Diego prosecutes those alien
smugglers, at least those who have been repeatedly arrested by
Border Patrol agents?
And, second, what resources, if any, do you need from this
Congress to give to you to make sure these coyotes are
prosecuted and that our laws are actually enforced?
Chairman Sensenbrenner. Mr. Attorney General?
Attorney General Gonzales. Yes, thank you, Congressman. The
enforcement of our immigration laws is important to the
President. It is important to me. I am aware of what you're
talking about with respect to the San Diego situation, and we
are looking into it. We're asking all U.S. Attorneys,
particularly those on our Southern borders, to do more, quite
frankly. We need to be doing more.
There is quite a challenge to some of our officers on the
border. There are five U.S. Attorney districts that handle a
great number of the immigration-related prosecutions, and so it
is a tremendous strain and burden. But I think we have an
obligation to determine the scope of the problem and to see
what we need to address the problem. There are two things that
would be helpful.
One is we hope that the Congress fully funds what the
President has asked for in terms of monies for our U.S.
Attorneys. That'll be very, very important so that we can have
the resources available to prosecute these kinds of cases.
Two, the U.S. Attorneys along the Southern border tell me
that the existing law regarding alien smugglers could be
tighter. There is a discussion and debate now about what that
language should be. No one wants to prosecute those who are
engaged in Good Samaritan activities. Obviously, that's not--
that should not be criminalized. But we believe that the
language could be tighter; that would make it easier to achieve
prosecutions. And we look forward to working with the Congress
to arrive at language that would help us achieve that.
I directed my staff to schedule a meeting with the members
of the California delegation and the DAG. I intend to call
Congressman Issa as well to talk to him about this issue
because I was made aware of this as a big priority for the
Congressman. And we are looking at the situation in San Diego,
and we are directing that our U.S. Attorneys do more, because,
you're right, if people are coming across the border
repeatedly, particularly those who are coyotes and they're
smugglers or they're criminals or felons, they ought to be
prosecuted. And so we need to try to figure out to make our
resources work so that that can happen.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from California, Mr. Schiff.
Mr. Schiff. Mr. General, welcome to the hearing today. I
appreciate all the time you're going to be spending with the
Committee.
My question is really the same question that the Chairman
posed at the outset, and that is, how can we discharge our
oversight responsibilities given some of the positions that the
Justice Department has taken in terms of the information
provided to us? But let me give a little more content to the
specific questions I have.
A year ago, you testified before the Committee urging
Congress to reauthorize the PATRIOT bill. You discussed at
length how important, crucial, various activities and
authorities were to our national security. These included
provisions relating to wiretapping and other electronic
surveillance.
You went at great length to describe the safeguards that
were in place. For example, in discussing multi-point wiretaps,
you stated that the provision ``contains ample safeguards to
protect the privacy of innocent Americans.'' In addition, you
stressed the fact that an independent court had to find
probable cause to believe that the target was either a foreign
power or a foreign agent. And, finally, you argued that the
Federaly courts have found these authorities consistent with
the fourth amendment.
You also discussed how other sections might implicate
personal records of Americans and also had specific language
designed to protect first amendment rights of Americans.
You concluded your testimony with the admonition, pointing
out the existence of thorough congressional oversight, saying,
quote, that you must fully inform the appropriate congressional
Committees with regard to authorities under the PATRIOT Act.
However, we've now learned that the Administration was
engaging in activities that touched on the PATRIOT Act and FISA
but were wholly outside any statute that--statutes that occupy
this field, without informing the very individuals that you
cited in your discussion of congressional oversight. And so
we've now come to realize that the debate that we had over FISA
in the PATRIOT bill, complete with the pledge that you and
others at the Department were, quote, open to any ideas that
might be offered for improving these provisions, and, quote,
would be happy to consult with us and review our ideas, was
somewhat meaningless or duplicitous, or worse.
In the Senate, for example, an Administration witness, when
a Senator asked whether we needed to amend FISA--said, Do we
need to change the standard? Are you having problems with FISA?
The response was, no, FISA was just fine the way it was.
In fact, the answer to our Committee and the answer to the
Senate Committee might as well have been you don't need to
change FISA because, in fact, we don't feel bound by FISA or we
interpret the Authorization to Use Military Force such that
whatever you do here we don't feel bound by. Moreover, even if
it's not in the Authorization to Use Military Force, it's
within our inherent authority as Commander-in-Chief to
disregard what you do on the PATRIOT bill or FISA.
And so it comes back to how do we do our job and why should
we, when you come back to this Committee and ask for further
authority, why should we give the benefit of the doubt to the
DOJ when it may very well be that even without our authority,
you're conducting surveillance that we know nothing about.
And I really--I guess I have a couple specific questions.
I've introduced legislation with Representative Flake, the NSA
Oversight Act, that says basically when we passed FISA in title
III and we said these were the exclusive means of domestic
surveillance, we meant what we said; that the Authorization to
Use Military Force didn't create an exception to that; and that
if you need to change it--and there might be reasons why you
need to change FISA--you should come to us and make the case
for an amendment. I still think that's the right policy.
I have two questions, one of which I asked the Chief of the
Office of Legal Counsel when he briefed our Committee and
really couldn't get an answer from, and that is, do you believe
under Hamdi, under the authority incident to waging war, or
under your inherent authority as Commander-in-Chief, that you
can surveil a purely domestic call between two Americans? The
concern I have is that there's no limiting principle to the one
you've established for doing what you need to do in the war on
terrorism.
And the second question I have is: When you testified
before this Committee last year, were you aware of the NSA
program?
Attorney General Gonzales. When I testified before the
Committee last year, I was aware of the NSA program. Yes, sir,
I was aware. I don't believe that I said anything in that
hearing that was not completely truthful.
Your question was----
Mr. Schiff. Whether a purely domestic call--what are the
circumstances under which you could conclude you don't have to
go to court to tap a purely domestic call, even though it's not
within the program you have now, could you later decide on the
basis of the Authorization to Use Military Force or your
inherent legal authority as Commander-in-Chief, that you have
the authority to take--to tap a purely domestic call between
two Americans.
Mr. Coble. [Presiding.] The gentleman's time has expired,
but you may respond, Mr. Attorney General.
Attorney General Gonzales. What I will say, Congressman, is
that, of course, is a different question than what the
President has confirmed to the American people that this
program includes. The question is whether or not, given what
the Supreme Court has said, the Authorization to Use Military
Force allows the Supreme Court in Hamdi, again, Justice
O'Connor writing for a plurality said that the authorization to
use force was Congress saying to the President of the United
States, you can use or engage in all those activities that are
fundamentally incidental to waging war. That's what the Supreme
Court says that Congress meant when it used those words
``necessary and appropriate force.'' And then the question
becomes whether or not the activity that you're asking about,
is that something that is fundamentally incidental to waging
war against this enemy. You know, that's something that I'd
want to look at, but that's the question that we would have to
answer. Is domestic surveillance of Americans who have some
relationship to al-Qaeda--let's just make it a little bit
easier question, because I think it's a tougher question if it
has no relationship to al-Qaeda, because then you can't tie it
to the Authorization to Use Military Force.
However, if the conversation is one that's domestic and
involving conversations relating to al-Qaeda or affiliates of
al-Qaeda, then you have to answer the--ask the question: Is
that--is the electronic surveillance of that kind of
communication, is that something that's fundamentally incident
to waging war? And you would look at precedent. What have
previous Commander-in-Chiefs done? We know that previous
Commander-in-Chiefs have certainly engaged in electronic
surveillance during--of the enemy during a time of war and have
gone beyond that. President Wilson authorized the interception
of all cables to and from America and Europe without any
limitation based upon the Constitution, his inherent authority
as Commander-in-Chief, and based upon an authorization very
similar to the one passed by this Congress.
Mr. Schiff. So you can't rule out purely domestic
warrantless surveillance between two Americans?
Attorney General Gonzales. I'm not going to rule it out,
but what I've outlined for you is the framework in which we
would analyze that question.
Mr. Coble. The gentleman's time has expired.
The distinguished gentleman from Utah, Mr. Cannon, is
recognized for 5 minutes.
Mr. Cannon. Thank you, Mr. Chairman, and, Mr. Attorney
General, we appreciate your being here. I want you to know that
I share the concerns that have been expressed thus far, but
would like to ask you a couple of programmatic questions.
Since the 1970's, there have been significant questions
about the accuracy of the National Firearms Act maintained by
the ATF. The Gun Control Act of 1968 provided an amnesty
whereby individuals could come forward and register weapons
which were often war trophies that they got from their parents
who fought overseas.
In 1998, an IG report found that the ATF contract employees
had improperly destroyed NFA records and ATF employees had not
followed proper procedures during the registration. This
bureaucratic mess has left many of my constituents with
potentially illegal guns solely because of ATF mistakes.
Would you support legislation allowing collectors to re-
register so they are in compliance with the law, especially if
they have the appropriate paperwork? And would you agree that
an individual should not be faced with prosecution or the loss
of a valuable weapon because of ATF's negligence?
Attorney General Gonzales. Well, I don't want to prejudge
whether or not there should or should not be a prosecution,
Congressman, without knowing the facts. I'm not familiar of the
incident that you're describing, but I'd be happy to look
into----
Mr. Cannon. It's not an incident. There's a report that
deals with many incidences.
Attorney General Gonzales. I'm not familiar with the
report, but I'm happy to discuss with you and look at
legislation. I want to have the opportunity to look at that
report.
Mr. Conyers. Thank you. We'll follow up on this. It happens
to be--I have just in my district many, many people who have
this problem, and they have paperwork that came from the ATF,
but it's ignored by----
Attorney General Gonzales. That shouldn't be the case.
Mr. Cannon. Thank you. I appreciate your stating on the
record that it should not be the case, and we'll follow up with
that.
Another issue that is not monumental but pretty important
is the Federal Government's stubborn insistence in litigating
to preserve the Federal excise tax on long-distance telephone
service. Last August--this is 7 months ago--Congressman Feeney
and I wrote to you asking that the Government not seek
certiorari in the American bankers case, and notwithstanding
the United States did not seek cert. in the case, the IRS is
continuing to insist that telecommunications carriers collect
the tax, which is, of course, a relic of the Spanish-American
War.
Just this past week, the Sixth Circuit denied the
Government motion to rehear an earlier decision that favored
the taxpayer. The United States is now zero for ten in these
cases with additional appellate losses in both the D.C. and the
Eleventh Circuits.
Given that complaints are being settled at 100 cents on the
dollar, something that strongly indicates the weakness of the
Government's position, why does the Department continue to
litigate these cases?
Attorney General Gonzales. Congressman, all I will say is
that we have a very earnest client and---- [Laughter.]
But, obviously, we need to see whether or not the courts
are giving us a message, and so that position of the United
States, as always, is being evaluated.
Mr. Cannon. Zero and ten makes one understand ``earnest''
to mean that they are intent on continuing to collect revenue,
but perhaps not earnest in fulfilling the law which establishes
their purpose.
Attorney General Gonzales. Well, Congressman, we believe
there are arguments that can be made, but again, this is
something that is under consideration.
Mr. Cannon. Does the Department have a policy to conform to
a judicial opinion and stop litigating if it's faced with a
certain number of adverse decisions? And if so, what is that
number?
Attorney General Gonzales. I don't know--I don't think--
there is not a specific policy. We obviously have very
experienced litigators. This involves folks within the Civil
Division, obviously, and the Solicitor General's office. And so
as I've indicated, this is an issue that we are reviewing at
the highest levels.
Mr. Cannon. Thank you. It's one that is just--it's hard to
invest when you have uncertainty. We have to jerk the
uncertainty out of the system because we're requiring the
telecoms and other communications companies, the cable
companies now, to do extraordinary things with extraordinary
opportunities that will make America a much better place, and
this little uncertainty makes a big difference in the whole
process. I appreciate your willingness to focus on that.
Attorney General Gonzales. I certainly appreciate your
concerns, Congressman.
Mr. Cannon. And recognizing that the yellow light is on,
I'm not going to burden you with another question, but just to
suggest that we ought to take a look at ATF's approach to
absolute requirements of compliance on every particular--for
licensees and I think that's--they've shown extraordinary
recalcitrance to deal with Congress' insertion of the term
``willful'' into the requirement to revoke a license, and I
would appreciate it if you would look at that. Perhaps you can
follow up with a written question on that point.
Thank you, Mr. Chairman. I yield back.
Mr. Coble. I commend the gentleman from Utah. You prevail
over the illumination of the red light.
The distinguished gentlelady from Texas, Ms. Jackson Lee,
is recognized.
Ms. Jackson Lee. Thank you very much, and good morning, Mr.
Attorney General.
Attorney General Gonzales. Good morning.
Ms. Jackson Lee. It's a pleasure to have you here this
morning. We do go back a long way, and we respect the Texas
roots that you have.
Attorney General Gonzales. Thank you.
Ms. Jackson Lee. So I beg your indulgence as I raise a
number of concerns that cause me a great deal of, if you will,
consternation. I agree with you that we are unique and
responsible as stewards of the American dream, and I am
uncomfortable with the fact that we have ignored that dream.
Might I cite for you a historical precedent, and that is,
of course, during the Nixon years in the dark moments of the
Watergate debacle, and when President Nixon asked Attorney
General Elliot Richardson to fire Archibald Cox, he refused and
resigned. Frankly, I think we have come over a number of years,
and some of these issues have preceded you, where it would
warrant the Attorney General of the United States to resign,
whether it was Ashcroft or in this current instance yourself,
out of principle that things were being done wrongly. Let me
quickly go to a series of questions.
We now have seen the end of a tainted period in our
congressional history with the resignation of a particular
Member, but many lives have been impacted negatively by this
influence. I sat in the Justice Department in the fall of 2003
with my colleagues from Texas discussing an untoward map that
retrogressively impacted Hispanics and African Americans. There
were the professional staff and there was a political staff by
the name of Hans Barnes McCoffley, closely to his name. The
eight career staff said that this map should be turned back
because it was retrogressive. I believe that occurred in the
Georgia case as well. They gave us a memo or a memo was written
in December of 2003 that said that this map for Texas was
retrogressive and it would injure African Americans and
Hispanics.
Ultimately, of course, that memo was never seen by those of
us who had to ultimately go to court, and the political
operatives changed and overruled that detailed, thoughtful,
compliance with the Voter Rights Act memo. In addition, they
never wrote a memo to explain why they overturned it.
Of course, you might say that the courts did not allow us
to prevail, but as you well know, Mr. Attorney General, in the
courts the finding is on delusion, not on retrogression, and
it's a much harder test in that instance than preclearance. The
career professionals of the Department of Justice, of which
many, many professionals over the decades have said that
they've never been overturned on these cases, was overturned by
political influence and grandstanding. And the lives of
hundreds of thousands of Hispanics and African Americans in the
State of Texas have been denied their right to be represented
by the person of their choice.
I ask you to respond to that, and let me quickly give you
some other questions.
Under FISA, many different questions have been asked--or
many different statements have been asked about whether or not
this abusive power has been used on Americans. That is our
fear. I lived through, as a Member of the Select Committee on
Assassinations, the investigation into the assassination of Dr.
Martin Luther King. I read FBI files on the COINTELPRO program
that suggested that Mr. King, Dr. King, was a communist, of
which we have found that it was, of course, with no basis
whatsoever.
And so can you say with absolute certainty under oath that
no purely domestic communications are intercepted in connection
with the warrantless surveillance program? And can you give us
details that that is the case?
I also note that in your testimony you were very limited in
your commentary on the voting of New Orleans on April 22nd and
the preclearance that I believe was falsely given, because it
was represented that the Black legislators agreed with the
State of Louisiana. They did not. Can you tell me whether we
can get a review of that since the premise of the preclearance
was inaccurate and allow satellite voting outside of the State
of Louisiana so that hundreds of thousands of Black voters and
others would be able to vote?
And I ask that the General would ask those--answer those
questions, please.
Mr. Coble. Well, the gentlelady's time is about to expire,
but you may respond, Mr. Attorney General.
Attorney General Gonzales. Great. Congresswoman, I must
take issue with you, respectfully, regarding the comparison
between what is ongoing today and what happened during the
Nixon era. President Nixon engaged in conduct I think to hide
conduct related to political enemies. This President came out
immediately after the story ran in the New York Times. He went
before the American people and said, ``I authorized this.''
There was no coverup. He came out and said, ``I authorized
this.''
He did so--he did so upon the advice and recommendations of
folks in the intelligence community who recommended to him that
we needed to have this information to protect America. He did
so upon the recommendation of folks in operations who told him
we have the capability and technology to give you this
information. He did so upon the recommendations of lawyers in
the Administration who said, ``Mr. President, you have the
legal authority under the Constitution to do so.''
And so this is--respectfully, Congresswoman, this is not
even in the same universe as what happened----
Ms. Jackson Lee. And, respectfully, General, my time is
short. Could you answer the question of whether there is
domestic surveillance and what happened with the redistricting
case? I appreciate it.
Attorney General Gonzales. I thought I heard your question
to be whether or not can you assure us that there has not been
domestic surveillance. What I can confirm is what the President
disclosed to the American people. This is what he authorized.
Can I tell you that mistakes have not happened? I can't give
you assurances that the operation has been operated perfectly.
What I can tell you is that we have had the Inspector General
of the NSA involved in this program. We've had the Office of
Oversight and Compliance out at NSA reviewing this program
from--this is from the inception. There are monthly due
diligence meetings involved where the senior officials out at
NSA get together and talk about how the program is operating in
order to ensure that the program is operated in a way that's
consistent with what the President has authorized. That's their
objective. And I've been told by the lawyers at NSA and others
at NSA there has never been a program at NSA that has had as
much oversight and review than this program has.
With respect to New Orleans, New Orleans passed a statute--
the New Orleans legislature passed a statute to allow for an
election. That was precleared. Based upon additional
discussions with the New Orleans Legislature, there was
additional legislation passed. That is currently under review
within the Department of Justice. I take issue with anyone who
says that there's been any politicalization of the office. We
make decisions based on what the law requires, and only that.
We are not going to consider any other factors beyond what the
law requires.
And the protection of civil rights to me is personal. It's
very important to me personally. And I've had numerous
conversations with the head of the Civil Rights Division. He
understands how important this is for me that we get it right
in each and every case. And so I have no reason to believe that
there has been anything but strict adherence to what the law
requires with respect to the New Orleans election.
Ms. Jackson Lee. And the Texas redistricting?
Attorney General Gonzales. Well, the Texas redistricting,
Congresswoman, of course, the decision to preclear was made
before I became Attorney General.
Mr. Coble. Mr. Attorney General, I hate to rein you in, but
we have got a lot of folks waiting to be heard, and we are
going to have a second round. So the gentlelady's time has
expired.
Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Coble. I am next in line. Good to have you on the Hill
today, Mr. Attorney General. After the 9/11 attacks, sir, I,
along with others, indicated that one of my great concerns
about subsequent attacks would likely be maritime based or by
water, i.e., port or harbor.
Now, last Monday, sir, I am told that the Attorney General
issued a report indicating that the FBI's efforts may not be as
effective as they could be at various seaports and harbors.
Now, I realize, sir, that there are multifaceted functions
being performed by the Coast Guard, by Customs, by border, and
FBI. How has your Department, Mr. Attorney General, reallocated
its sources to investigate and prosecute offenders under the
Reducing Crime and Terrorism at America's Seaports Act and to
address some of the shortcomings that were raised by the
Inspector General's report?
Attorney General Gonzales. It was a report from the
Inspector General. We are now studying the report. We are
looking carefully at the recommendations, and we look forward
to moving forward and implementing those recommendations, which
will make, in fact, America safer and our ports safer.
With respect to the new authorities provided to us under
the reauthorization of the PATRIOT Act, my understanding is
that we are in the process now of revising the U.S. Attorneys
manual so that we can move forward and prosecute these new
offenses, one relating to seaports. So, Congressman, what I can
say is that we're looking at the recommendations made by the
IG, and we'll be responding appropriately.
Mr. Coble. Well, I am confident that we are now safer than
we were prior to 9/11, but I am equally confident that our
seaports continue not to be invincible. I think there's
vulnerability there, and I'm not blaming you for that. It's
just the nature of the beast, perhaps. But if you could keep us
up to speed on your responses to the IG's report, I would be--I
think the Committee would be appreciative to you for that.
Attorney General Gonzales. I'd be happy to do that,
Congressman.
Mr. Coble. As you pointed out, Mr. Attorney General, and as
others on the Committee have indicated, FISA is indeed
generously laced with complex issues. Let me try to simplify it
and give you a very general question.
What rights does a United States citizen have regarding
information that may be used against him or her under the NSA
surveillance activities? That's a very general question, I'll
admit, but can you give me a general answer?
Attorney General Gonzales. Congressman, can you repeat your
question? I want to make sure that I understand it.
Mr. Coble. Maybe it's too general. What rights does a
United States citizen have regarding information that may be
used against him or her regarding an interception or
surveillance by NSA? And if that's too general, you can be more
specific in your answer.
Attorney General Gonzales. Congressman, I'm afraid that in
this open hearing I'm not comfortable talking about what
happens to the information that's gathered from the program.
What we do with the program has been briefed to the
Subcommittees of the Intel Committee, so they understand what
we do with the information.
I can tell you that, from the outset, we have always been
sensitive to the fact that, with respect to collection under
this authority, as we would be sensitive to collection under
FISA or 12333, that it's done in a way that we don't compromise
prosecutions or compromise investigations. So we are very
sensitive about that.
I don't know if that's responsive to your question. I
apologize if it's not.
Mr. Coble. Well, I think that's maybe as well as you can do
because it is--it's very generously laced with complex matters.
My time is about to expire, and I see the Chairman is back.
Let me put this question--let me throw this to you, Attorney
General, and we can talk about this subsequently. I'm concerned
about intellectual property and the piracy related thereto. But
the red light is about to illuminate. That will be for another
day or maybe later today.
Attorney General Gonzales. Yes, sir.
Mr. Coble. Do you want to say anything quickly about that?
Attorney General Gonzales. Well, intellectual property
protection is, of course, extremely important and something
that's referred to in our Constitution. It's very important for
our economy. We need to encourage ingenuity. Part of
encouraging that is to protect it, and one of the ways we
protect it is through enforcement. And so we are focused on
that. Also, education, quite frankly. I've done two events out
on the West Coast with children, informing them, trying to
educate them that intellectual property is protected and there
are consequences, bad consequences if you steal it.
Mr. Coble. Thank you, Mr. Attorney General.
The distinguished gentleman from California, Mr. Berman, is
recognized.
Mr. Berman. Thank you very much, Mr. Chairman. Thank you,
Mr. Attorney General, for being here. I'm distressed by the
Administration's position and your answer on this issue of the
electronic surveillance program that has come out. I noticed in
response to Mr. Conyers' question you talked about the healthy
debate within the Justice Department. Mr. Delahunt found an
article which--in Newsweek magazine which describes that
healthy debate. A group of Justice Department lawyers involved
in a rebellion that basically--against lawyers centered in the
office of the Vice President, and with the acknowledgment of
the Deputy Attorney General at the time, led resistance against
a President who wanted virtually unlimited powers in the war on
terror, demanding that the White House stop using what they saw
as far-fetched rationales for riding roughshod over the law and
the Constitution. These lawyers found to bring Government
spying and interrogation methods within the law.
The result of this was ostracized, denied promotions, and
otherwise retaliated against for taking their positions.
Attorney General Gonzales. So the story says, sir.
Mr. Berman. That's what the story says.
In response to Mr. Schiff's question, explain to me why my
thinking is wrong here. You're doing these things incidental to
war. Mr. Schiff poses a question: If the President at his
discretion concludes that electronic surveillance of two
persons in the United States is incidental to the war on terror
that we are fighting and that Congress would like to be your
partner on and not simply a potted plant in this fight, if the
President decides in his discretion that this is incidental to
war, and without simply--perhaps by informing some--a few
Members of Congress, does he have the power under your
argument, does he have the authority under your argument to
engage in that kind of surveillance----
Attorney General Gonzales. Congressman----
Mr. Berman [continuing]. Without a warrant?
Attorney General Gonzales [continuing]. Respectfully, we
could spend all day talking about hypotheticals. What I've
outlined is----
Mr. Berman. Well, your argument----
Attorney General Gonzales [continuing]. The framework--the
framework that we would use in analyzing that question.
Mr. Berman. But the question isn't whether you're doing it.
The question is whether you have the authority to do it.
Attorney General Gonzales. Well, again, you're asking me to
provide a legal answer to a question, and what I've given for
you is the framework in which we would analyze----
Mr. Berman. Well, the framework you've given--the framework
you've given, there is a law about detention of people----
Attorney General Gonzales. 4001(a)----
Mr. Berman. Yes, there's a law about detention. The
authorization of the use of force trumps that law because the
President feels that he has the powers incidental to engaging
that war to trump that law.
Attorney General Gonzales. You are mis----
Mr. Berman. To cite President Wilson--to cite President
Wilson and what he did before the Supreme Court ever said that
surveilling conversations between private parties constituted
an unreasonable search and seizures and before there was a FISA
law is not an argument that--you should have at least the
intellectual honesty, it seems to me, to explain why the
intervention of both the Supreme Court decisions on electronic
surveillance and the passage of a FISA law don't affect what
President Wilson might or might not have done or how he did it.
No one wants you--as Mr. Conyers said, no one in this Congress
wants you not to be able to surveil even domestic parties who
are suspected or for whom there's any reasonable belief that
they may be engaged or planning or participating in some way in
terrorist activities. We want you to have that power.
We do think that part of this is having some third party
check whether there's some reasonable relationship between what
the facts are and what you want to do. That's all we're asking
about. And I just--I find your notion that this is somehow
solely within the Executive's prerogatives based on being
incident to a war, it makes the whole debate about the PATRIOT
Act ridiculous.
What are the standards? You come in and you admit last year
that relevance should be a standard for seizing business
records. Why? If it's incidental to war in the minds of the
President, why are we spending time here playing around in
something like a Young Democratic or Young Republican
Convention with resolutions that have no meaning when you have
this inherent power that's incidental to the power of the
Commander-in-Chief during war?
Attorney General Gonzales. But, of course, sir, in that
discussion about business records, we were talking about
business records of everyone for different circumstances. We
weren't limited focused on records relating to al-Qaeda, our
enemy in a time of war. So it's a much different debate, much,
much different debate.
I don't know what you're--I'm sorry if I--your question?
Chairman Sensenbrenner. [Presiding.] The gentleman's time
has expired. The other gentleman from California, Mr. Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman.
I don't know, Mr. Attorney General, whether you enjoy these
functions as well as some of us appear to. I'm going to
disappoint you. I'm not going to ask you whether you think you
should resign. I'm not going to suggest that if we just raise
taxes we'd get rid of our problems in the war on terror. I'm
not going to suggest that you ought to be limited to only
talking about Republican Presidents and not talking about
Democratic Presidents.
But I'd like to talk about something that is current that
goes through a number of Administrations, and that's the
disappointment that some of us have with certain aspects of the
FBI's activities. The case where a Brooklyn grand jury just
returned indictments against a former FBI supervisory agent,
DeVecchio, for his, I'll say, participation in four murders
carried out by organized crime is disturbing, to say the least,
because it echoes some experiences that were brought to light
by Mr. Delahunt in a valiant effort to try and suggest that in
some cases the relationship between or among law enforcement,
local, State, and Federal, is oftentimes skewed in the Federal
direction with a lack of oversight of the FBI.
This Congress has in the past attempted to deal with this
problem by requiring the Department to come up with processes
and procedures that require supervision of agents. It is so
disturbing to me as the former chief law enforcement officer of
the State of California that I've joined with Mr. Delahunt in
introducing legislation that would require the FBI to notify
local or State law enforcement officials, that is, prosecutors,
when there is evidence of a felony being committed with the
acquiescence and knowledge of FBI agents.
And so, Mr. Attorney General, with all due respect, I ask
you what the position of the Administration is on this. This is
not something that's being visited upon your Administration.
This is something that has existed for some period of time.
And, frankly, there is a real frustration from my side--and I
know Mr. Delahunt joins me in this--in a failure of the Federal
Government to understand that, first, in most cases law
enforcement works together, that is, local, State, and Federal;
secondly, that the primary responsibility for prosecution of
most violent crime, particularly homicides, lies with local and
State jurisdictions; and that rogue operations allowed under
the FBI in the guise of pursuing organized crime which allows
organized crime to commit murder is absolutely corrosive to the
process. And I have every intention with Mr. Delahunt to pursue
this legislation. I guess my question would be whether the
Administration would support us in this or oppose us in this.
And if you would oppose us in this, could you give us some idea
as to why you think that the policies in place are sufficient
when we have evidence, at least to the sufficiency of a grand
jury in Brooklyn, to bring an indictment against a former FBI
supervisory agent?
Attorney General Gonzales. Thank you, Congressman. You're
absolutely right. The Federal Government must work close
together and does work close together with State and local
officials. You're right, most violent crime is prosecuted at
the local level, although we're finding more and more times the
local officials, because we have stiffer sentences, are looking
to us to try to handle some of the more difficult prosecutions.
With respect to rogue operations to allow organized crime
to commit murder, which is what I think you said, I would be--
well, I'm not aware that we have such a policy in place. If our
policies allow this kind of conduct to occur, that would be
something I would be very interested in and would look into.
In terms of your legislation, I can't comment as to whether
I would oppose it or support it. I want to make sure that I
understand. If we have a problem with our policy that can't be
solved through our policies, then it may be something that I
would support. But I'd like to get a little bit more
information about where we stand and obviously look at the
details of your legislation before commenting on it. But if we
have a problem here, I'd be happy to work with you on it.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Just to follow through on that, Mr. Attorney
General, the Inspector General did a review of the Attorney
General's guidelines and found in terms of the FBI's dealings
with confidential informants. There's a set of guidelines that
have been promulgated by one of your predecessors, Attorney
General Reno. The findings were that there were guideline
violations in 80 percent--87 percent, rather, of the
confidential informant files. And in terms of the notification,
the requirement to notify local, State, and other law
enforcement agencies, there was in excess of 40 percent failure
in that regard. Let me suggest that is a real problem, Mr.
Attorney General, and it's got to be addressed. And I look--you
will be receiving a letter--we will give it to Will Moschella
before he leaves--that is authored by myself and Congressman
Lungren, and we'd like to have some answers in a timely
fashion.
Attorney General Gonzales. Yes, sir. You'll have it.
Mr. Delahunt. Thank you.
You know, you've referenced the fact that the Intelligence
Committee has been briefed on the terrorist surveillance
program, however it might be described. You know, I would
respectfully suggest that it's this Committee that has
jurisdiction over the Department of Justice, that has
jurisdiction and oversight responsibility of the Department of
Justice. What about a regular briefing opportunity for you or
your representatives to come before the Judiciary Committee and
brief us? Is this an idea that you would entertain?
Attorney General Gonzales. Well, Congressman, obviously the
Department does not operate the program. Our role is to provide
legal advice as to the authorities for the program. NSA, as you
know, operates the program. And there is--has been--there were
14 briefings to----
Mr. Delahunt. I'm not interested in how many briefings
there were. I'm interested in knowing the legal basis, and if
you want to do it behind closed doors, that clearly is an
option. But we are here posing questions to you today, and we
keep hearing, I think, the response to critical questions:
``It's classified.''
I have no doubt--and I'm not speaking for the Chairman, but
that most Members of this Committee would be more than welcome
to hear your views in a classified setting to explain the
authorities and the processes that we have expressed concern
about.
Attorney General Gonzales. Congressman, we have laid out
our analysis of the legal authorities. The questions that I'm
demurring on are questions relating to the operations of the
program which are classified and which have been briefed to the
Intel Committee.
But with respect to the legal authorities and our legal
position, I've testified for 8 hours before the Senate
Judiciary Committee. I've testified to Senate Intel, House
Intel. We've laid out the 42-page paper. So our legal
analysis----
Mr. Delahunt. I thank you, Mr. Attorney General. You've
answered the question for me.
Let me go to the Presidential signing statements issue for
a moment.
Attorney General Gonzales. Yes, sir.
Mr. Delahunt. You know, when the President signed the
PATRIOT Act, the recent version, in the signing statement he
said that he would, for all intents and purposes, ignore the
rules if he believed that the national security and foreign
relations and executive operations might be harmed.
Those are rather large loopholes, I'm sure. And, likewise,
when Congress last fall outlawed torture by Government agents,
he signed the statute and then expressed in a signing statement
that he would interpret it as he saw fit if he thought that
national security was at stake.
You know, we're operating in the dark, again. Is there any
mechanism that exists that would inform Congress as to those
provisions that the President would interpret implicated
national security, or are we ever going to know about it? Or is
he, you know--or are we--I guess are we just--we don't want to
be a constitutional nuisance, but at the same time, it's my
belief that as the first branch of Government, we have a right
to know what the President is going to ignore and when he's
going to inform so we can fill--can fulfill our responsibility
for oversight.
Attorney General Gonzales. I want to thank you for the
question. I think there has been a lot of misunderstanding
about signing statements.
First of all, Presidents of both parties have entered into
signing statements, and Presidents of both parties, whether or
not there's a signing statement or not, believe that when they
sign a bill into legislation--legislation into law, that they
are not waiving or giving away any authority they have under
the Constitution. And so that's all those statements mean, is
that to the extent the situation arises where the President, a
President has the duty and has the authority under the
Constitution to take action, he's going to do that, even though
he may have signed legislation.
This President intends to fully comply with the McCain
amendment, the McCain law. He does not believe in torture. We
don't condone torture. The same with respect to the authorities
under the PATRIOT Act. We intend to abide by the requirements
of the PATRIOT Act, the reauthorization requirements. But, on
the other hand, a President of the United States--no President
can give away, certainly for himself or for future Presidents,
his authority under the Constitution. And that's what those
statements in the signing statement relate to.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for being here with us this morning.
I'd like to raise an issue that we've discussed in previous
hearings with former Attorney General Ashcroft and also in my
Subcommittee with Mr. Boyd and others from the Civil Rights
Division. I refer to the Memorandum of Understanding between
the Department of Justice and the city of Cincinnati.
As I've stated before, there have always been concerns
about this agreement's impact on the ability of the police to
effectively combat crime in Cincinnati. For example, we had
specific problems with the Department of Justice's effort to
add overly restrictive mandates on the police related to the
so-called hard hands policy and also the K-9 procedures, and we
worked closely with the Cincinnati police leadership and the
Department of Justice to address these issues.
As you know, Cincinnati has always had an extremely
effective and professional police department. Right now, even
with fewer officers than they truly need, the Cincinnati police
force is doing an incredible job, but they face an increasingly
difficult task.
We've seen increasing violence related in large part to
drug trafficking and a murder rate that is completely
unacceptable--79 murders in 2005, and just last night, a man
was shot in his car in the Over-the-Rhine neighborhood of
Cincinnati. That happens to be the neighborhood that the
Opening Day parade goes through that we just had in Cincinnati
of the first professional baseball team. The President threw
out the pitch there, but this goes right through that
neighborhood. And it was the third fatal shooting in that
neighborhood this week, and we've already had 23 murders in
Cincinnati this year.
Now, it's my understanding that after 3 years, if there's
substantial compliance by the city, the parties can agree to
terminate the agreement, and it's also been brought to my
attention through the city's quarterly reports that the city is
meeting the requirements of the agreement.
Many people in our community would like to put this in the
past and allow the police department to focus on the business
of protecting our citizens. How do you characterize their
substantial compliance and the city's ability to meet the early
termination criteria?
Attorney General Gonzales. How do I characterize it?
Mr. Chabot. Yes.
Attorney General Gonzales. Congressman, I must confess I'm
not intimately familiar with the details of this agreement, and
so I don't know what our position is related to the question
that you have asked. But I will find out and get a response
back to you.
Mr. Chabot. Okay. I would very much like to follow up with
you and the Department, and we've had efforts in the past and
your Department has in many instances worked cooperatively. So
we want to continue that. But I think many want to basically
make sure that the police department are not burdened with
unnecessary paperwork and requirements that really keeps them
from doing proactive police work to make sure that everybody in
the city is protected. So I appreciate your willingness to work
on that.
My second question deals with the Voting Rights Act. Over
the last 6 months, I've chaired ten hearings on the Voting
Rights Act in the Constitution Subcommittee, and during those
hearings, among other things that we've discussed, we discussed
the language provisions of the act. We're reviewing for
reauthorization those temporary provisions, not the permanent
sections of the act, which is section 203.
We have seen increased enforcement and litigation in that
area relative to the language requirements. Could you discuss
the reasons for the increase and if you're working with those
covered jurisdictions so they're able to comply with the act
and the criteria for when litigation is commenced against these
jurisdictions?
Mr. Williams. Well, the reason we're seeing increased
enforcement litigation is because it is the law and we have an
obligation to enforce the law. I think that the right to vote
is perhaps the greatest right that we have. It should be
available to people of all color, all ethnicities. It often
represents freedom, quite frankly. It is a chance to exercise
some degree of control over one's life, no matter how poor, no
matter what community, no matter what background. And so it
needs to be protected.
It is not a--it is not an important or a valuable right if,
in fact, you can't exercise it because you can't understand
English. And for that reason, that's why it's--I believe it's
important that we enforce and protect the rights under section
203.
Mr. Chabot. Thank you, Mr. Attorney General, and I assume
that you'd be willing to go with us back and forth in writing
to make sure that we get all the necessary information relative
to the language requirements.
Attorney General Gonzales. Yes. And, by the way, I do
understand that in certain jurisdictions--I met with the mayor
of New York City recently, and he explained to me there are so
many languages in that city and it creates a tremendous burden.
And I appreciate that, and so that would be something that I
think perhaps that this Committee should look at. Obviously, we
want to protect the ability of people to vote. We want to
ensure that people can vote, irrespective of the fact that they
can't understand or speak English well. But I understand that
there can be and apparently are significant burdens in some
communities.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentlewoman from Florida, Ms. Wasserman Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
Mr. Attorney General, welcome to the Judiciary Committee.
My question also deals with the terrorist surveillance program,
and the Bush administration has stated that the congressional
war authorization after September 11th provided a legal
justification for the Administration to begin the NSA
wiretapping. And in your essentially non-answers to both the
majority and the minority's questions that we provided to you
in writing, you have further indicated that you think that
that's where your authorization is derived from.
Yet in a December 19, 2005, press briefing, you were asked
why the Administration decided not to amend--come to the
Congress and amend the FISA law so that you could have express
authorization for this program, and I'll read you what your
answer was to that question. You said, ``We've had discussions
with Members of Congress, certain Members of Congress, about
whether or not we could get an amendment to FISA, and we were
advised that that was not likely to be, that that was not
something we could likely get, certainly not without
jeopardizing the existence of the program, and, therefore,
killing the program; and that--and so a decision was made that
because we felt that the authorities--the authorities were
there, that we should continue moving forward with this
program.''
Now, Mr. Attorney General, when my kids, as a Mom, tell me
that the reason that they did something without asking me is
because they thought I would say no, that's really not an
acceptable answer to me when my kids try to do it. So it's not
an acceptable answer when the Administration tells Congress or
indicates that they have not asked for our express authority in
changing the law, that the answer is that you didn't think we
would say yes.
This is a really disturbing program, Mr. Attorney General,
and I'm really confused because you also on the one hand say
that you have the authority expressly granted to you in the war
authorization, yet you say the reason that you didn't ask us to
amend the FISA law to give you that express authority is
because you thought we'd say no.
So which is it?
Attorney General Gonzales. Well, you say it's a disturbing
program. I have heard very few people say this is not a program
that's important for the national security of this country. In
fact, most of the people on both sides of the aisle, virtually
all--everyone who is aware of the parameters of this program
say this is an essential program for the protection of national
security of this country.
There was----
Ms. Wasserman Schultz. Mr. Attorney General, it's a
disturbing program when you don't have express--when there's a
question that has not been answered about whether you have the
express authority to engage in it. That's what's disturbing,
not the program itself. If you've been given that express
authority, that's one thing. So if you could answer my
question, I'd appreciate it.
Attorney General Gonzales. We believe that the authority
does lie within the Authorization to Use Military Force, and
that supplements the President's constitutional authority as
Commander-in-Chief to engage in electronic surveillance of the
enemy during a time of war. We believe that that authority is
there under the Constitution. We also believe that the
authority--that authority is supplemented by the Authorization
to Use Military Force. And whether or not the words are not--
whether or not the words ``electronic surveillance'' are
included in that authorization is of no moment, to quote
Justice O'Connor. The Congress authorized all those activities
that are fundamental incident to waging war----
Ms. Wasserman Schultz. Mr. Attorney General, with all due
respect, I've heard you say and read all those specific
comments about yours and the Justice Department's opinion. But
on December 19, 2005, you specifically said that the reason
that you did not come to Congress to amend the FISA law to
specifically give you that authority is because you didn't
think we would say yes and you didn't think--and you thought
that that would jeopardize your ability to continue and move
forward with this program.
Attorney General Gonzales. That was related to a
conversation that we had with the leadership of the Congress,
and it wasn't just my judgment that legislation was impossible
without compromising the program. It was the collective
judgment of everyone there.
Ms. Wasserman Schultz. Well, I understand that that might
be who you spoke to, but it's irrelevant who you told that to.
There are many Members of Congress that believe that you should
have come to the Congress. There are many people in the general
public that think you should come to Congress and expressly ask
for that authorization.
So if you were given the opinion by some Members of
Congress that we would say no if you asked for that authority,
then why didn't you explore that possibility with other Members
of Congress? I generally believe that if you think you don't
have the authority and you don't ask for it because you think
you'll be told no that that means you don't--you think you
don't have the authority.
Attorney General Gonzales. Well, clearly, Congresswoman,
you know, in a time of war, it's always best in my judgment to
have both the Executive branch and the legislative branch
working together and to be in agreement.
On the other hand, the President is Commander-in-Chief, and
even Congress in the Authorization to Use Military Force
recognized in that authorization that the President does have
the constitutional authority to deter and prevent attacks
against America. And we believe that--again, that we do have
the authority. Obviously, we were aware that there may be
questions about the President's authority and that's why there
were discussions about seeking legislation, and there was a
collective agreement that that process of pursuing legislation
would compromise the effectiveness of this program.
Ms. Wasserman Schultz. Thank you.
Chairman Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman, and it's good to see
you again, General.
Just to assist in one of the earlier questions from my
colleague from Texas on the other side of the aisle regarding
the redistricting map and the litigation regarding that Federal
approval, I thought it was interesting. Chief Justice Roberts
during oral arguments on that pointed out that under the
disastrously unfair gerrymandering done in 1991, that the
Democrats had way over 20 percent more representation in
Congress than they had Statewide votes; whereas, after the
Republican plan----
Mr. Nadler. Chairman, we can't hear.
Mr. Gohmert. Okay. I'd suggest some people stop talking
over there.
But, anyway, that after the Republican plan last year or
so, there was only a 5-percent disparity, that fortunately
Republicans were taking that in the right way.
But, anyway, I did want to go back to 50 U.S.C. 1861, the
provision of section (a)(1), and I'm going to ask you if you
have a problem with the revision of this nature. You've
indicated that they're nothing but domestic--only domestic
surveillance that is connected to a foreign agent or a known
terrorist have been surveiled. But under the provision of 501,
there is something that nobody has seemed to have pointed out
that I picked up on, especially in view of the discussion about
domestic. But under (a)(1) it says, ``for an investigation to
protect against international terrorism or clandestine
intelligence activities.''
Now, it's not under your Administration or President Bush's
administration that that has ever been used, that clandestine
intelligence activity has ever been used without a foreign
nexus. And that's my understanding. You only pursue that if
there is a foreign nexus. Is that correct?
Attorney General Gonzales. Congressman, you know, I'm not
sure that I understand the question, and I apologize. It's
not----
Mr. Gohmert. Okay. My terminology is exactly from section
501. It says you can pursue an investigation to protect
against, A, international--the ``A'' is mine--international
terrorism or, B, clandestine intelligence activities. Now,
there's no requirement in that provision that there be a
foreign connection. And my understanding is that your office
interprets that to mean, or at least you don't pursue it unless
there is a foreign connection.
Attorney General Gonzales. Congressman, I apologize. I
don't know the--I can't confirm that. I think that's probably
right, but I----
Mr. Gohmert. And I'm not trying to trap you.
Attorney General Gonzales. No, and I understand.
Mr. Gohmert. But from your prior testimony, that was my
understanding, that there had to be a foreign terrorist
connection or you didn't pursue it.
Attorney General Gonzales. What the President has
authorized is the collection of communications where one in the
communication is outside the United States and where we have
reasonable grounds to believe, determined by a career
professional out at NSA who knows about al-Qaeda tactics, about
al-Qaeda communications, about al-Qaeda aims, that that person
believes there's reasonable grounds to believe that one party
to the communication is a member of--a member or agent of al-
Qaeda or of an affiliated terrorist----
Mr. Gohmert. No, I've seen your answers and I understood
that from your answers, and that's why this is not a trap and
it's not something to bully you at all. But I would like to
make sure section 501 is better clarified so that in a
subsequent Administration that somebody doesn't come in and
say, You know what? We're worried this church over here may be
involved in intelligence activities in the community that could
be clandestine. Never mind there's no foreign link. Therefore,
under 501, we think we can go in and start surveilling them.
And so I was interested in protecting against future
Administrations' abusing 501 in an interpretation that has not
ever been done before in adding something like ``foreign'' to
that provision. Would you have a problem with clarifying that
for future use, for future Administrations?
Attorney General Gonzales. I would be happy to work with
you on that.
Mr. Gohmert. All right, thank you.
One other area, back beginning last June, when I'd seen
some newspaper reports that our district attorney in Austin had
indicted corporations and then turns around and said, but you
know what, if you will give $100,000 here to who I tell you to,
I'll dismiss the charge. Not I don't have a case, I'll dismiss
it; not I've got a case I'm moving forward. I'm going to extort
$100,000 from you to pay over here, and if you'll do that, I'll
go ahead and dismiss the charge. Paraphrasing, of course.
And I had pointed that out in a letter to the U.S.
attorney, who kicked it back to Justice here. And then I got a
letter in September indicating that. I subsequently followed up
and pointed out under 18 U.S.C. section 666--interesting
number--that anybody who receives more than 10 grand in Federal
money and solicits money or anything of value on behalf of
anybody, then they could commit a crime and go to prison for 10
years. And if we can't get the Department of Justice to follow
up on what may well be a horrible case of extortion that sends
a terrible message to small-time JPs or prosecutors saying,
hey, you can extort money however you want to because they
won't even pursue $100,000 amount.
And I'm just wondering, are you open to having your Justice
Department look into those type of violations?
Attorney General Gonzales. What I can say, Congressman, is
that the matter is under review.
Mr. Gohmert. It is under review? Thank you.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Attorney General, I have several questions, but just
one quick question on the wiretap, because the debate has
gotten into the question of whether or not the wiretap is a
good idea. The real question is whether or not a wiretap ought
to be done with a warrant or without a warrant. And that's what
we'd like to debate. The basis of your rationale suggests, as
the gentleman from California mentioned, would cover just about
anything without limitation. And the problem we have is that we
really don't know, because of the answers you've given, exactly
what the program is all about.
Attorney General Gonzales. Can I interrupt you just to say
that the limitations that I would offer up would be the fourth
amendment, search must be reasonable. And of course limitations
that the Supreme Court outlined in Hamdi, and that is that the
activity must be fundamentally incidental to waging war. So
there are limitations.
Mr. Scott. And that decision is made without any checks and
balances of a warrant, and that's what the question is. Let
me----
Attorney General Gonzales. Well, the fourth amendment, sir,
doesn't require necessarily a warrant. It requires that the
search be reasonable.
Mr. Scott. Okay. And that question--and once the President
determines that it's reasonable, then that's the beginning and
the end.
Attorney General Gonzales. And the courts have long
recognized that there are special needs outside the----
Mr. Scott. Let me just ask the question. When you do a
wiretap, is the target selected on an individualized basis with
individualized consideration?
Attorney General Gonzales. You mean in connection with this
program?
Mr. Scott. Right.
Attorney General Gonzales. As I indicated, I don't want to
get--I cannot get into the operations of this. But I can
confirm that there is a determination case-by-case, by a career
professional at NSA that a party to the communication is a
member or agent of al-Qaeda or an affiliated terrorist
organization.
Mr. Scott. All that consideration is made on an
individualized basis for an individual wiretap?
Attorney General Gonzales. In connection with an individual
communication, yes, sir.
Mr. Scott. And are there any wiretaps that you're doing
that would not--that you would not be entitled to get a wiretap
warrant for?
If you'd gone to get a warrant, could you have gotten a
warrant?
Attorney General Gonzales. Well, of course, without, you
know, without--I can't--I can't promise you that we--that a
warrant would be approved in every case because obviously it's
going to depend on the circumstances, whether or not you can
satisfy the probable cause standard. So I can't answer that
question.
Mr. Scott. On March 31, 2006, in Los Angeles, California,
you made an announcement of an anti-gang initiative. In that
initiative, you announced $2.5 million grants and insisted that
$1 million of it go to prevention, $1 million go to law
enforcement, and $500,000 to re-entry programs to slow down the
revolving door when people come right back. Can you please
explain to this Committee why a comprehensive approach is
necessary to actually reduce gang membership, because we
apparently haven't gotten that message.
Attorney General Gonzales. I believe, Congressman, that
when you're talking about kids and young adults, if you're in
the area of enforcement, for many of our kids in the Hispanic
community and the Black community, the battle is lost. Their
future is probably lost. And that's why I think it's important
to focus not just on enforcement, which of course is--I think
is an important deterrent, but we need to get to these kids
before they join the gangs. And that's why education and
prevention, I think, is equally important. And of course if we
fail in discouraging kids from getting into gangs and they get
into gangs and we can prosecute them and they go to jail, then
we need to help them become productive members of society. If
they need transitional housing, we need to provide that. If
they need job readiness training, we need to provide that. If
they have a problem with substance abuse, we need to provide--
help them with that. So I think it does require a comprehensive
approach.
Mr. Scott. Is it your testimony that a 60 percent for
prevention and re-entry is a reasonable allocation of our
resources?
Attorney General Gonzales. I couldn't comment on that,
Congressman. What----
Mr. Scott. Well, that's a good--that's not a bad
allocation.
Attorney General Gonzales. What I would say, you know, I'm
the chief law enforcement officer of the country. That's my
primary focus. But I don't think I can be effective in dealing
with this issue if we're not also looking at education and re-
entry.
Mr. Scott. And you can do your job a lot better if you'll
allocate more resources toward prevention. Isn't that right?
Attorney General Gonzales. Well, again, it's Congress's job
to----
Mr. Scott. Just as you have.
Attorney General Gonzales. Congress decides where the
appropriations should go. I do believe that education and
prevention is an important component of addressing the gang
violence.
Mr. Scott. Let me pose two questions to you, since my time
is just about up, and get information back if you don't have
time to respond. One is deaths in custody. Several years ago,
as you know, we passed a bill to report deaths in custody to
the Attorney General. Much of that has come in. We'd like for
you to comment on that after the--later. And we passed
legislation about a year ago on ID theft, which included $10
million to help you investigate consumer ID theft to the extent
that people can do this kind of thing and not get caught
because of the labor-intensive nature of the investigations. Do
you need more money to investigate consumer ID theft?
And if you could respond to those either quickly now or in
writing.
Attorney General Gonzales. On the death in custody, I will
have to. On the ID theft, I'll just say that I'm not here to
ask for more money, but I am here to tell you this is a
serious, serious problem and I'm worried about it.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman.
And Mr. Attorney General, I do appreciate your testimony
here and I know it can't be an easy day. But we all are
interested in a number of different areas, and you cover such a
broad territory with your responsibilities. I want you to know
I respect and appreciate that and I'll seek to focus on the
things that are of significant interest.
There was testimony before the Crime Subcommittee about
activities with regard to ATF and focusing on participants or
customers in the firearms shows and some discouraging
activities on the part of the ATF that might have--and I want
to lay about three questions out here with regard to some of
these things that have to do with the second amendment,
intimidation, I would call it, of attendees at firearms shows
and in fact encouraging local police officers to conduct
homes--residency checks and inquiries.
Another one would be the accuracy of the reports by the
firearms dealers. And I know we have at least some testimony on
one particular one that had a 4/100ths of a percent margin of
error, a .0004 margin or error, yet was facing and received
revocation of his license. And the position of the AG's office
that no errors are permissible even though the Senate Judiciary
Committee report, and the language that was passed in 1986,
emphasizes that the definition for the word ``wilfully'' with
regard to errors in firearms reports is--and I'll quote--``is
to ensure that licenses are not revoked for inadvertent errors
or technical mistakes.''
Your position on those issues. And I hit that quickly
because I have another subject I hope I can get. Thank you.
Attorney General Gonzales. Well, I'm aware of the situation
that you referred to in Virginia. Obviously there should not be
intimidation. I think what happened there is not going to
happen again, let me just say that.
With respect to the revocation of licenses, there are
limits about what we can do. And I know there's some discussion
about whether or not there should be more discretion given or
alternatives should be pursued in terms of what happens if a
license is inaccurate. And all I can say is I'm happy to look
at that and work with you on that, that issue.
Mr. King. Is it your position that the word ``wilfully''
has a practical significance with regard to interpretation of
the law?
Attorney General Gonzales. Well, I'd like to get back to
you on that.
Mr. King. And I hope we can have a conversation on that and
look forward to that?
Attorney General Gonzales. I would look forward to that.
Mr. King. Okay, and then--let me shift to another subject.
That's section 203 of the Voting Rights Act. You have testified
on that to some degree with Mr. Chabot. And I'm reflecting on
your statement, if you can't exercise your right to vote, then
you can't--if you can't understand English. Well, unless we
have the Voting Rights Act, section 203.
First I'd ask you, with the exception of Puerto Rico, if
you could point out circumstances by which a person would
arrive at voting age and be able to--and not have a significant
command of the English language, at least to the level that
they should be able to vote on a ballot in a voting booth. And
in those circumstances, how does that happen in America?
Attorney General Gonzales. Well, I think you can come of
voting age and become a citizen with a basic level of
understanding of English. But as you know, sometimes when you
get into the voting booth, you can have a long ballot, you can
have some very complicated referendums, and some people are
simply more comfortable if they can read it in a different
language.
My own personal view, Congressman, is, is that English
represents freedom in this country. You need and should be able
to speak English well and read and write in English well. And
so let me emphasize that. And when I talk to Hispanic groups
about this issue, I tell them that's got to be a focus. If we
want our kids to progress, that's important. However, I do
worry about people not feeling totally comfortable when they go
into the voting booth on election day.
Mr. King. Okay, thank you.
And then, with regard to surname analysis, requiring that
they use a surname analysis to determine the concentrations of
certain ethnicities to direct whether the ballots need to be
provided in those languages. And I would point out that,
especially Hispanic surnames, are among the oldest surnames in
the United States of America. People have been here the longest
and may be the most proficient, among the most proficient in
English. And I would submit that that's not a legitimate
evaluation of the proficiency in language and that we do have
census analysis where people self-identify their language
skills. Wouldn't it be more appropriate to use the census
analysis for that purpose rather than just a simple analysis of
surnames?
Attorney General Gonzales. It may be, Congressman. We have
to look at that.
Mr. King. And could we have that conversation as well?
Attorney General Gonzales. Yes, sir.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Maryland, Mr. Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. And welcome, Mr.
Attorney General.
Our colleague Mr. Berman in his remarks characterized part
of the Administration's legal argument with respect to the
wiretapping debate as a ``lack of intellectual honesty,'' and I
got to tell you, reading the 43-page report and legal analysis,
I think that's an apt characterization. Let me just----
Attorney General Gonzales. Can I interrupt you?
Mr. Van Hollen. Yes, you may.
Attorney General Gonzales. Okay. Can I----
Mr. Van Hollen. But, Mr. Chairman, you may--if it comes out
of my 5 minutes, I really--you can----
Attorney General Gonzales. Well, go ahead.
Mr. Van Hollen. All right. Because I only get 5 minutes,
and your response--but let me ask you this. Ms. Wasserman
Schultz asked you a question regarding this is what you
characterized as a collective agreement between yourself, the
Administration, and certain leaders in Congress, that it would
be difficult to get this authority, this express authority
through Congress.
Now, let me ask you, you would agree----
Attorney General Gonzales. Without compromising the
effectiveness of the program.
Mr. Van Hollen. You would agree with me that if you don't
have that authority, an agreement between yourself and leaders
of Congress doesn't make it okay to go ahead, right?
Attorney General Gonzales. Absolutely. And whether or not
FISA works or not, it wouldn't matter. I mean, that's not the
question. The question is: Does the President have the
authority?
Mr. Van Hollen. Let me ask you this: Who--which--if you
could tell us this collective agreement, what Members of
Congress made this agreement with you?
Attorney General Gonzales. What I can say is that the
leadership----
Mr. Van Hollen. I don't think it's a question of Executive
privilege. This is a discussion with Members of Congress. Can
you tell us which--there is this collective agreement. Who was
it?
Attorney General Gonzales. Certain Members in the House and
certain Members in the Senate----
Mr. Van Hollen. And you're not--you're not willing to tell
us who made the collective agreement?
Attorney General Gonzales. I can say that the leadership of
the Congress and the leadership of the Intel Committees.
Mr. Van Hollen. Democrat and Republican both?
Attorney General Gonzales. Both sides of the aisle.
Mr. Van Hollen. All right. Let me ask you--I'm trying to
understand the extent to which the authorization to use force
in Afghanistan is essential to your argument, so let me give
you a hypothetical. If you had an organization out there that
was not related to al-Qaeda in any way, under your analysis
would the President still have the legal authority to intercept
electronic transmissions if they believed they were someone
wanting to do harm to the United States or involved in some
activity or plot to do harm to the United States, under your
analysis could the President use the NSA program to intercept
those communications?
Attorney General Gonzales. Well, I need to go back and look
at the language, the specific language with respect to
Afghanistan. You're talking about the authorization to use
force----
Mr. Van Hollen. Yeah.
Attorney General Gonzales [continuing]. That passed? Okay.
Okay. And, again, your question, Congressman? I'm sorry.
Mr. Van Hollen. Well, my question goes to what extent does
your argument hinge on the authorization to use force. So if
you had--under the authorization the President has to make a
finding that the organization is somehow related to al-Qaeda,
okay? Let's say you had an organization out there we considered
a terrorist organization, but it had no relationship to al-
Qaeda. We suspect they're involved in a plot against the United
States. Can you use the NSA wiretap?
Attorney General Gonzales. Well, then we're--look, in
evaluating that question, I referred to Justice Jackson in the
Youngstown analysis in terms of whether or not--what is the
scope of the President's power versus congressional power. And
so we believe that--it's a three-part test, as you know, and we
believe that with the authorization to use force, you are in
the first part. Congress--the President is taking action
consistent with the express or implicit approval of Congress.
And there his authority is the greatest.
If you don't have the authorization to use force, that
doesn't mean that the President taking action is unlawful. It
simply means you move into the third part of the Jackson
analysis, where you have the President taking action,
exercising his constitutional authority, minus whatever
constitutional authority Congress might have in the area, and
so we would have to make that evaluation as to whether or not--
could Congress constitutionally limit the President's authority
under the Constitution as Commander-in-Chief to engage in
electronic surveillance of the enemy. That's the analysis that
we----
Mr. Van Hollen. Well, let me just ask you with respect to
that issue. Do you think FISA--I mean, part of your argument
under the authorization to use force is----
Attorney General Gonzales. I think it would--it would raise
serious constitutional concerns, and, you know, I go back to
Judge Silberman's statement in In Re Sealed, the 2002 case of
the FISA Court of Review, where he looked at the--he canvassed
the Court's decisions about the President have authority and
said all the courts that have looked at this issue have found
that the President of the United States has the inherent
authority under the Constitution to engage in electronic
surveillance of the enemy for foreign intelligence purposes.
And assuming that to be true, FISA cannot encroach upon that
authority.
Mr. Van Hollen. Let me ask the last question here, which is
that what is it under the FISA statute, if anything--what kind
of standards or criteria in that statute that would make you
unable to get the authorization from the FISA Court to do the
kind of intercepts that are being done now?
Attorney General Gonzales. I'm not suggesting that we
wouldn't get the authorization. It's a----
Mr. Van Hollen. Let me--could I give you a hypothetical?
Attorney General Gonzales. It's a question of timing.
Mr. Van Hollen. If I--let me just give you a hypothetical.
If we were to take the FISA justices and put them over at the
NSA, in your opinion is there any intercept that you're
receiving now that they would not authorize under the current
FISA statute?
Attorney General Gonzales. Well, that's an impossible
question for me to answer. What I will say is that the question
is not whether or not a FISA Court would approve the
application. The question is the time it would take. We're not
talking--with respect to FISA, in a straightforward case you
may be able to get approval from the Court within a matter of
hours or days, or maybe weeks. But under FISA it could be days,
weeks, months. And so when you're talking about fighting an
enemy that we're fighting today where information is critical,
in certain circumstances that's the problem that we have under
FISA.
But let me just emphasize, FISA in my judgment has been a
wonderful tool. It really has been, and we utilize it all the
time. What people need to understand, though, is FISA--we use
FISA not just for foreign--we use FISA for collections here
within the United States. We use FISA against foreign powers
beyond al-Qaeda. And we use FISA even during peacetime.
And so because of those circumstances, I think the
restrictions that we have in FISA probably make sense when
you're talking about domestic collection in peacetime. And so
when we--when people start talking about amending FISA, I think
people need to understand that FISA covers much more than
simply international communications involving al-Qaeda.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia, Mr. Forbes.
Mr. Forbes. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for being here today.
When I hear some alarming statements like we're headed for
this looming crisis of confidence or this great constitutional
crisis or the sky is falling, they concern me, or at least they
did 35 years ago when I first read about them and I heard them
being made as a political science student in undergraduate
school. And then I quickly realized that every time somebody
didn't like the Administration or they didn't like a particular
law, they reached up and grabbed those off the shelf and used
them, instead of sometimes looking at the facts.
Today, I'd like for you to examine some of the facts. In
section 202 of H.R. 4437, that was where we reformed the anti-
smuggling provisions in the Immigration and Nationality Act,
and specifically two questions.
One is, What problems, if any, are there with the current
anti-smuggling provisions? And would section 202 address those
problems?
And, secondly, we've heard a lot of critics of the House
bill who have alleged that these provisions would be used to
prosecute priests and doctors who provide aid to illegal
aliens. How valid are those allegations?
Attorney General Gonzales. Well, I would be worried about
it if I were a priest or doctor, quite frankly. I know that's
not the intent. As I indicated before in response to an earlier
question, the U.S. Attorneys on the Southern border are
concerned about the current language, the current law, and they
appreciate a tightening up of the language. No one, however,
wants to engage--no one wants to criminalize Good Samaritan
behavior.
The other thing I worry about is creating whole carve-outs,
quite frankly, because we then tell alien smugglers what
conduct they should engage in and they would fall within the
safe harbors provided in the statute.
And so it's a delicate balance and I understand it, but I
think the law can be written in a way that we make it easier
for prosecutors to go after alien smugglers, but we don't
criminalize priests and doctors who simply want to help their
fellow man.
Mr. Forbes. It's been reported that China has over 3,000
front companies in the United States that exist mainly to
obtain sensitive U.S. technology. In February 2006, a Federal
grand jury indicted two men on charges of conspiring to
illegally send military equipment, including an F-16 jet
aircraft engine to China, in violation of the Arms Export
Control Act. Where would you rank China on the list of the top
ten suspicious foreign collection efforts against the U.S.? And
would you consider China to be one of the top
counterintelligence priorities? And how is DOJ responding to
this threat?
Attorney General Gonzales. I would consider China to be one
of the top counterintelligence priorities for the Department. I
would prefer to defer to perhaps the DNI or the CIA Director in
terms of where I specifically would rank China. We have a very
active--regrettably, we have a very active and robust
counterespionage section within the Department because there
are a lot of countries, of course, that are engaged in
espionage against the United States from abroad and here within
the United States. That counterespionage section is going to,
as you know, be merged into the National Security Division.
When that is stood up, I think that that will make us much more
effective. We're asking for additional agents to help us with
this effort. But the bottom line for us is it's a serious
threat to the national security of this country.
Mr. Forbes. The last question I have for you is I am deeply
concerned about the criminal prosecution of obscenity cases,
and we're well aware of the proliferation of trafficking in and
display of obscene material, much of which exploits children,
women, and other innocent victims, and only whets the appetite
of pedophiles and sexual abusers.
Can you outline for the Committee what steps the Justice
Department has taken and will take to increase the
investigation and prosecution of these kind of crimes?
Attorney General Gonzales. Well, it is a serious issue. I
outlined in my opening statement that we've created this new
initiative, Project Safe Childhood, where we want to work with
the Internet Crimes Against Children Task Forces that currently
exist. We want to supplement their efforts. U.S. Attorneys now
understand that this has to be a priority for the Department,
and through that effort we intend to provide planning in terms
of the strategy district by district. We intend to provide
training to State and local prosecutors. We intend to provide
education, which means that we need to alert parents how
serious this threat is to our children.
And so it's something that we are very focused on. We've
created an obscenity prosecution task force within the Criminal
Division of the Department of Justice, and I believe that there
have been 46 prosecutions over the past few years. Sometimes
these can be different cases to make, but we're focused on it.
I think it's important. I've had a lot of parents come up to me
and say they need help in protecting their children, even
within their own homes.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentlewoman from California, Ms. Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for being here.
As you may know, your Department entered into an agreement
with California's Secretary of State to implement HAVA's voter
database requirements, and that's resulting in L.A. County a
rejection rate of 43 percent of all new voter registration
forms. And the registrar recorder of Los Angeles County, the
League of Women Voters, many others, including myself, are very
concerned about the potential disenfranchisement of these
voters that this could cause.
So I'm wondering if you would commit to respond to some
written questions specifically regarding that database and why
the rejection rates are so high.
Attorney General Gonzales. I'd be happy to do that. I was
in Los Angeles just last week. I spent some time with the
mayor, and he didn't raise it with me, but if this is--
obviously it sounds like a serious issue. I'd be happy to look
at it.
Ms. Sanchez. Very serious. Forty-three percent is a pretty
high rejection rate, and I appreciate your willingness to
answer some specific questions on that.
I want to move to some questions regarding immigration.
Last year, the House passed Chairman Sensenbrenner's
immigration enforcement bill, and one of the most controversial
provisions of that legislation would make unlawful status a
criminal offense. If that provision becomes law, there will be
an estimated 11 million new criminals in the United States.
I know that the Justice Department has ceded authority over
immigration to Homeland Security, but your Department retains
the jurisdiction over enforcement of our criminal law.
So my question to you is: Does the Justice Department have
the resources to arrest and process 11 million potentially new
criminals in the United States?
Attorney General Gonzales. Obviously, it would present a
challenge to the Department.
Ms. Sanchez. Would it require significant plus-up in
funding for the Department to enforce that?
Attorney General Gonzales. Well, again, I'm not here to
talk about or ask for increased funding for the Department, but
it would present some significant challenges for us.
Ms. Sanchez. Okay. A 2003 Inspector General's office report
found a sharp rise in civil rights and civil liberties
complaints filed by immigrant detainees immediately the PATRIOT
Act became law. How many civil rights complaints have immigrant
detainees filed against the Department of Justice since you
were sworn in in February?
Attorney General Gonzales. I do not know, but we obviously
can----
Ms. Sanchez. Can you provide that information for us?
Attorney General Gonzales [continuing]. Provide that
answer.
Ms. Sanchez. As well as providing us with the number of
complaints that were filed, could you also break out the number
of those complaints that involve acts of violence?
Attorney General Gonzales. If we can do that, yes.
Ms. Sanchez. Okay, great. As you know, immigration is a
pretty timely topic, and the Senate is currently involved in
the issue of how to fix our broken immigration system. And one
issue that they are trying to address is employer sanctions. In
2005, the Department of Justice only instituted sanctions
against three companies in the entire country for their use of
undocumented labor.
So my question is: Why aren't we enforcing the laws against
hiring illegal labor by applying employer sanctions on the
books against those who violate those laws?
Attorney General Gonzales. I think that's an excellent
question, quite frankly. Someone mentioned that to me on my
West Coast trip, and I found it somewhat--I found it surprising
and somewhat alarming, quite frankly. And I don't know whether
it's a situation of these kinds of cases being difficult to
prosecute. I don't know the circumstances, but I intend to find
out. And I agree that we need to have comprehensive immigration
reform, and part of that has to be enforcement of employer
sanctions. They have a role to play. I think we need to--we
need to have a structure in place where it's not so burdensome
upon employers to make a determination whether someone is in
status or out of status. But once we've got that infrastructure
in place, we need to ensure that employers are following the
law. And I think in order to have an effective immigration
policy, that's got to be an important component of it.
Ms. Sanchez. So this is just an issue that you've recently
become aware of?
Attorney General Gonzales. I recently became aware of it
last week, actually, on my trip to Los Angeles.
Ms. Sanchez. So it never occurred to you that perhaps the
pull for many of these immigrants is work opportunities and
that one way to try to reduce that pull would be to try to
enforce laws that are on the books right now----
Attorney General Gonzales. Quite the contrary. Quite the
contrary. There's a reason--I know the reason why people come
to this country. It's because they want a better life, a better
job to provide for their families. No, I understand why people
come into this country.
Ms. Sanchez. But yet when we talk about enforcement of
immigration, it seems like the enforcement aspect of it is
simply upon the people that are coming and not upon the
economic pull that brings them here----
Attorney General Gonzales. Well, I agree that we shouldn't
just focus on the folks who are coming. We should focus on the
people that are helping them come, like the alien smugglers,
and we ought to be focusing on employers who are hiring them
when they shouldn't be. I agree with that.
Ms. Sanchez. So you would use your leadership then to try
to help enforce the laws that are on the books against those
who are violating----
Attorney General Gonzales. I think that's important.
Chairman Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Attorney General, welcome. We are delighted to have you
with us today, and we appreciate your being willing to take so
many questions on such a wide variety of issues.
I'd like to talk to you about intellectual property, but
before I do so, I do want to acknowledge the interests of the
last Member who questioned you about immigration issues and her
concern about the fact that legislation is now pending which
makes people who are illegally in the country felons. As she
knows, an amendment was offered on the floor of the House to
revert that back to a misdemeanor status, and she and all but
eight other Members on her side of the aisle voted against that
amendment. So while I appreciate her concern, I'm a little
perplexed by the way that she and other Members of her party
have handled that, because the opportunity existed to eliminate
that----
Ms. Sanchez. Would the gentleman yield?
Mr. Goodlatte [continuing]. Provision, which I voted for.
I'm afraid I don't have enough time because I've got to ask
some other questions, but we'll talk, I'm sure, later.
Attorney General Ashcroft in 2004 released a report of the
Department's task force on intellectual property. It was
completed after a very thorough investigation and analysis and
contains a number of very thoughtful suggestions, and I'd like
to ask you to ask the Department to take a look back at that
report to see what recommendations have been implemented, which
have not, and whether or not there is anything that we can do
to help you follow through on some of the recommendations that
would help us to combat the unauthorized reproduction and
distribution of copyrighted materials. This is a very, very
serious problem around the world, but that includes a serious
problem here in the United States, and----
Attorney General Gonzales. Congressman, I believe--I will
confirm this, but I believe all the recommendations have been
implemented or we're certainly close to it. Shortly after I
became Attorney General, I decided to continue the work of the
intellectual property task force so that we could move forward
and make sure that the recommendations were implemented. I
agree this is a serious issue. It is an issue that I can't deal
with solely within our borders, and that's why when I travel
overseas, particularly to China, for example, we talk about the
importance of the enforcement of intellectual property laws and
the protection of intellectual property rights. And so I agree
with you this is an important issue, and I can assure you that
we're focused on it.
Mr. Goodlatte. I thank you, and that is encouraging. If you
would, if you could have somebody respond to the Committee with
information about how the report is being implemented, that
would be very helpful for us to conduct our oversight in that
area.
One thing I'm particularly interested in is how many FBI
agents are dedicated to intellectual property crimes, and I
understand the competing priorities that face the Justice
Department and the FBI, but intellectual property is our
economic future and it demands a lot of attention.
Do you think the Department needs more agents in this area?
Attorney General Gonzales. Congressman, let me see what we
are already doing and maybe have a conversation with the
Director before answering that question. We obviously can give
you an answer.
Mr. Goodlatte. And, also, if you feel that in your efforts
to implement that report and other efforts you think that we
should be providing you with additional resources, including
human resources, to fight piracy, please let us know that as
well.
Attorney General Gonzales. I'd be happy to do that. Of
course, we have recently suggested some changes in the laws,
and so there are some additional tools that would be helpful.
I'd be happy to visit with you about that as well.
Mr. Goodlatte. The other area that I'd like to address with
you is something that--there was a brief discussion regarding
child predators earlier on, and we certainly appreciate your
concern and your efforts to deal with that. I wonder if you
could explain the extent to which the Department is enforcing
our Nation's obscenity laws in general, including any recent
prosecutions of online obscenity?
Attorney General Gonzales. Well, there's been a lot in the
news lately about that. I indicated earlier that we have--in
2005, I did establish an obscenity prosecution task force
within the Criminal Division at the Department of Justice. It
is led by a career prosecutor. We have five attorneys dedicated
to it. We have ten FBI agents. We have one agent from the
Internal Revenue Service and one postal inspector. And so we've
had something like, I think, 46 prosecutions in the past few
years, and I believe that there are still something like 12
persons or entities under indictment. And so those represent
sort of the scope of our efforts.
I must tell you, this is an area that I have concerns
about. With the changing technology, it is so easy to access
obscene materials. And it's so easy for our children through
their cell phones, through the iPods, through computers, and
it's something that I worry about, quite frankly, as a parent
and as the chief law enforcement officer of the country. And I
would urge Congress to likewise focus on this issue.
Chairman Sensenbrenner. The gentleman's time has expired.
We are about ready to have a vote, and let me outline what
the process will be after the bell rings.
The next Member who is up for questions is the gentlewoman
from California, Ms. Waters. There will be one vote only. There
is no previous question vote or no rolled votes that are
scheduled. And the vote will take place at 11:30. After whoever
is questioning the Attorney General at 11:30's time has
expired, the Committee will then recess for 45 minutes, and 45
minutes after the recess time, we will come back.
I will call on Members who have not asked questions in the
order that they have appeared, so those of you who haven't
asked questions have a great incentive to come back, to be here
when we start up again. And then we'll go through a second
round of questions until the time we have the AG for runs out.
And that will be in the order in which everybody appeared this
morning rather than when they appeared this afternoon.
The gentlewoman from California, Ms. Waters, is now
recognized.
Ms. Waters. Thank you very much, Mr. Chairman.
Mr. Gonzales, you were in my district at Jordan Downs
Housing Project. You came with some kind of program. I don't
know what it is. I'm reading about some of it in the paper.
Don't you think that it would make good sense that you would
have the--give me the common courtesy of indicating that you're
going to come to Jordan Downs Housing Project and you're going
to pay for cameras to be installed and you're going to put
together a task force or a team working with someone supposedly
to deal with gang problems and crime. I was just there 2 weeks
prior to your coming in, with the Black History Month
celebration, with the employment project where I had UPS and a
contractor with Verizon, and others coming out to help get
people jobs. I have to give some hope. I wasn't able to talk
with them about your visit because I didn't know about it, and
now some people think that simply I came to pave the way for
you to come in and bring cameras to place them under
surveillance.
There probably is no good answer----
Attorney General Gonzales. The answer is it would have been
courteous.
Ms. Waters. I beg your pardon?
Attorney General Gonzales. Yes, it would have been
courteous to do so. Yes, ma'am.
Ms. Waters. Do you plan on doing that in the future?
Attorney General Gonzales. Yes, ma'am, I think that would
be a good idea.
Ms. Waters. Yes, please, don't come back without doing it,
okay?
Secondly, we are in the middle of an immigration reform
debate in the Congress of the United States. Many of us voted
against Mr. Sensenbrenner's bill because it's too tough, it's
too punitive. It makes felons out of folks who, as you said,
are coming to work to try and have a better life.
We support a path to legalization, but in the middle of
this debate, while we're fighting for a path to legalization,
we find when we look down in New Orleans Federal contractors
are hiring illegal immigrants. You're doing nothing to enforce
the law. You keep talking about you enforce the law. An article
that appeared in the Los Angeles Times documents 10,000 to
20,000 immigrants and all of the description of how they're
sleeping, basically on the ground, eating one meal a day, being
exploited by Federal contractors. You appear to be just as
blind as Brownie, who didn't see all of the folks in New
Orleans who were outside the Convention Center.
Why aren't you enforcing the law?
Attorney General Gonzales. Congresswoman, we are enforcing
the law. I don't----
Ms. Waters. You're not enforcing the law. Why aren't you
enforcing the law in New Orleans?
Attorney General Gonzales. Well, we are enforcing the law
in New Orleans, and we do have a good story to tell with
respect to, say, for example, enforcing fraud through our
Hurricane Katrina Task Force.
Ms. Waters. How many contractors have you cited for
breaking the law?
Attorney General Gonzales. I don't know but we can
certainly find out.
Ms. Waters. No, don't find out and tell me. Do your job.
Get a special task force. Go into the golf course. You cite
those contractors who are breaking the law and exploiting these
workers. You are not doing your job, Mr. Attorney General.
Attorney General Gonzales. Yes, ma'am.
Ms. Waters. And we want it done. You add to the fire that's
going on here. It's hard for us to continue to fight for a
pathway to legalization while people see what is going on and
the Attorney General is not enforcing the law. We cannot make
excuses for you, so don't sit here and try to patronize me and
talk about, yes, I understand, and, yes, I will get back to
you. Don't get back to me. You just do your job.
In addition to that, let me talk to you about Georgia. Why
did you override your team, your staff, Mr. Robert Berman, Amy
Zebrinski, Heather Moss, and Toby Moore, who were part of a
five-person task force inside your office that advised you
about the ID requirements of the legislation that was presented
for clearance to you from Georgia? You rejected their advice.
You literally took a State with a history of denying voting
rights. You literally took that State, who has a requirement to
have any changes in the law cleared by you, and you overrode
your staff, allowing them to require six forms of ID rather
than 17 forms of ID, and still with the requirement that the ID
be purchased. And this business of signing some form to say you
are too poor to pay for it you seem to think is all right, and
you were advised that the information was----
Chairman Sensenbrenner. The gentlewoman's time has expired.
Would the Attorney General care to answer that?
Attorney General Gonzales. We did our job with respect to
looking at what the law requires and preclearing the law in
Georgia. And the fact that there may be disagreement, not just
within the Civil Rights Division but within every other
component within the Department of Justice doesn't mean the
decision was wrong or unlawful. It simply means that there may
have been disagreement.
At the end of the day, the bottom line from my perspective
is: Have we made the decision that is supported by the law in
this case? We did.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.
Franks----
Ms. Waters. Mr. Chairman, unanimous consent for 30 seconds,
please.
Chairman Sensenbrenner. The Chair will object to that
because the ground rules were established, and we're 5 minutes
away from----
Ms. Waters. Well, I'll say it anyway. Mr. Gonzales, you
ought to be ashamed of yourself.
Chairman Sensenbrenner. The gentlewoman will comply with
the rules.
The gentleman from Arizona, Mr. Franks, is recognized.
Mr. Franks. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General. I have to applaud your patience and attitude
here in the face of some impertinent comments from some of the
Committee Members here. I think you've done a great job, and
just for the record, you don't need my permission to come to my
district. You're welcome anytime. And we would be glad to have
the Attorney General of the United States promoting justice in
Arizona.
Having said that, I know you've faced a lot of questions
today related to the terrorist surveillance program by the
Administration, and I would be numbered among those, sir, that
believe that the President's designation as the Commander-in-
Chief of the United States of America not only empowers him in
this particular program, but certainly I think he would have a
duty to do some of the things that I think the program is
doing. I think it's very important, what you're doing.
It occurs to me that if the President has the
constitutional power and even the authority from this Congress
to hunt down terrorists, to ferret them out and kill them, that
he probably should also--that should encompass his power to
listen to them on the phone before he proceeds.
And having said that, I know that the questions have been
focused on the FISA Court and the FISA issue here. And,
incidentally, I think you would have been also derelict to try
to bring the law--to try to change the law in the FISA Court in
the face of some of the demagoguery that's in this body right
now. I think you would have probably, as you say, worked
against the national security in bringing that issue before the
Congress.
Having said that, the FISA Court has on two occasions made
clear indication that the President was--that Presidents were
within their constitutional authority to surveil foreign
terrorist communications in our country. Do you know of any
case where the FISA Court has ever ruled to the contrary in any
way?
Attorney General Gonzales. Not only the FISA Court, but I'm
not aware of any court ever saying that the President does not
have the inherent authority under the Constitution to engage in
electronic surveillance for foreign intelligence purposes, and
all of those cases were in the peacetime context. And so I
think it's even more true than in a wartime context. One could
make certainly a stronger argument that the President has the
authority under the Constitution.
Mr. Franks. Thank you, Mr. Attorney General.
I am going to have to, in the interest of time here, shift
gears on you here a little bit, come closer to home, in a
situation that's occurred in my district that I'm really not
sure how quite to handle.
With a lot of the discussion of immigration, all of us
believe that the immigration laws need to be enforced and that
there should be a fair and balanced approach regardless of
where those immigrants come from.
Recently, some of the Serbian immigrants that have come to
my district, who came here documented and in a legal fashion, I
believe were subjected to what amounts to a vendetta on the
part of a person within the U.S. Attorney's Office. And just to
briefly explain it, this person in the U.S. Attorney's Office
is a former prosecutor from the Hague and called upon some of
the Serbian immigrants who were already in this country with
good jobs, doing things that we would all consider productive
to the United States, were called upon to testify in what would
be a political trial--or a trial that--they were called upon to
testify, and they felt like that this might put them in some
sort of danger or otherwise, and they were in no way required
to testify. But on being told that they would not testify, the
U.S. Attorney suggested to them that they would be hearing from
her, and they certainly were. They were arrested and their
lives were disrupted in the most profound way, and the basis
was a retroactive examination of their application for
citizenship. And some of the reasons given were very arbitrary
and not applied across the board.
I'm just wondering who would--we have contracted--we asked
the U.S. Attorney to meet with us, and they refused to do that.
Who would in your Department be someone that we could look to
to take a look at that? Because the situation is pretty
blatant.
Attorney General Gonzales. Well, why don't you communicate,
if you don't mind, Congressman, with Will Moschella, who is our
legislative person, and we'll see what's going on here.
Mr. Franks. We'll do that. Then in the 30 seconds that I
have remaining, could you address the guidelines by the
military on chaplains who are--in some cases the guidelines
that say to certain chaplains in our military that they cannot
pray according to the dictates of their own faith in a public
situation. It seems to me, you know, that one of the
cornerstones of all freedom is the freedom of religion. If you
can tell people what to think or who to worship or how to
worship, then it seems like you've taken every vestige of
freedom from them.
Attorney General Gonzales. Congressman, I'd have to defer
to the Department of Defense. I'm not as familiar as perhaps I
should be with respect to the DOD guidelines.
Mr. Franks. I'm hoping you'll take a look at that, Mr.
Attorney General. Thank you for being here, sir.
Chairman Sensenbrenner. The gentleman's time has expired.
We are about ready to get to a vote, so there is now going
to be a previous question vote on the rule as well as on the
rule itself. I think that what we should do then is simply
recess for an hour and come back at 12:30. And the order of
questioning will be Weiner, Inglis, Lofgren, Flake, Nadler,
Feeney, Wexler, and Issa. And then we'll go to the top of the
list.
So those of you who are at the top of the list that I just
read off have an incentive to be back here at 12:30.
Without objection, the Committee is recessed until 12:30.
[Whereupon, at 11:31 a.m., the Committee was recessed, to
reconvene at 12:30 p.m., this same day.]
AFTERNOON SESSION
Chairman Sensenbrenner. The Committee will be in order. A
quorum for the taking of testimony is present. When the
Committee recessed for the lunch break, the Attorney General
was responding to questions of Members who are recognized under
the 5-minute rule. We will continue that procedure this
afternoon until 3 o'clock. The next in the order of appearance
this morning to be recognized is Mr. Weiner of New York.
The gentleman from New York is recognized for 5 minutes.
Mr. Weiner. Attorney General, welcome.
Mr. Attorney General, do you have the highest security
clearance that is available in the United States Government?
Attorney General Gonzales. As far as I know, yes.
Mr. Weiner. Is it--and this is probably an obvious
question, it is illegal for you to share information you got
that was classified with another citizen who doesn't have that
type of clearance. is that correct?
Attorney General Gonzales. Yes.
Mr. Weiner. Is it also illegal for you to tell someone who
works for you, say your deputy, to go share information? Is
that still a crime for you to do, or is it just a crime for
that person?
Attorney General Gonzales. Well, if I don't have the
authority, I guess potentially that's a crime for me. If that's
your question. I mean----
Mr. Weiner. It is. So----
Attorney General Gonzales. Would I have the authority to
grant that clearance?
Mr. Weiner. No. No, what I'm saying is if this was
information that was not supposed to be going to Person X, and
you told the first deputy attorney general give this
information to Person X. Would both he and you, both your
deputy and you, be committing a crime under the existing
statute?
Attorney General Gonzales. Possibly, Congressman. I guess
I--I'd want to think about that, but I--yes, possibly.
Mr. Weiner. Can you tell me a situation where it wouldn't
be just so I can understand the law?
Attorney General Gonzales. No. I can't tell you a
situation. But again, if in fact this is a line of question
that you're serious about, I'm happy to look into it.
Mr. Weiner. If I gave you any impression that I wasn't
serious about my line of question, I apologize for that,
because I'm asking you a serious question.
Attorney General Gonzales. Right.
Mr. Weiner. If the President, hypothetically, were to share
classified information with a citizen who were not entitled to
that information, not covered by the highest security
clearance--this was classified information, he shared it with
another person--is the President covered under the same law
that you and I are?
Attorney General Gonzales. No. He's not.
Mr. Weiner. He's not. Tell me a little bit about the
differences, just in the context of sharing classified
information with someone who is not entitled to have it.
Attorney General Gonzales. I think the President has the
inherent authority to decide who in fact should have classified
information. And if the President decided that a person needed
the information, that he could have that information shared.
Mr. Weiner. Under any circumstances? Just if he wanted to,
say, give it for a purpose that it would help with the national
security, he could share that information?
Attorney General Gonzales. He could decide--I believe the
President would have the authority to simply say this
information is no longer classified for purposes of sharing it
with this person. I think that there's a national security
interest in having this information shared with this
individual.
Mr. Weiner. Gotcha. Now, if--does that authority that the
President have extend all the way down the chain? For example,
if he said to the Vice President, who then said it to the Vice
President's chief of staff, who then said it to someone else,
how far in your scene, does the President's authority only go
for his direct actions or anyone working beneath him?
Attorney General Gonzales. I don't know, Congressman.
That's not a question that I've ever--that I've thought about,
so I don't know the answer to that.
Mr. Weiner. It's not a question you've----
Attorney General Gonzales. I don't know the answer to your
question.
Mr. Weiner. Gotcha. And in the context of the present news,
I'm puzzled that you hadn't thought of it. I mean, frankly,
since the----
Attorney General Gonzales. Well, Congressman, I'm----
Mr. Weiner [continuing]. Testimony--let me just finish my
question. Since there has now been public testimony in front--
or testimony that has become public that alleges exactly that
thing, that the President said to the Vice President you go
reveal the--tell your deputy or you take whatever means are
appropriate or you think to do this, to leak classified
information, that's exactly the allegation that is being
considered now by prosecutors, is it not?
Attorney General Gonzales. Well, I don't know what's being
considered by prosecutors because I'm recused from that case.
And that's why I haven't thought about this issue. And I don't
know exactly the details of what's been reported. There's
oftentimes information on television that is totally
inconsistent with the truth. But----
Mr. Weiner. What is the--where were you, what job did you
have at about July of 2003?
Attorney General Gonzales. I was the Counsel to the
President.
Mr. Weiner. And tell me a little bit, did you--as part of
your job description, not as part of your specific acts, part
of your job description, offer the President advice on
compliance with Federal law?
Attorney General Gonzales. Of course. Part of my job was to
give the President advice regarding authorities, yes, legal
authorities.
Mr. Weiner. And you'd never once considered the idea
whether the President would be acting lawfully if he asked his
Vice President or someone working for the Vice President to
reveal top secret information? That never--that's not something
you even thought about?
Attorney General Gonzales. Congressman, I can't recall
whether or not that was something that I ever thought about.
And if it was something that we ever discussed, it's not--it
would not be something that I would disclose to this Committee.
Mr. Weiner. Understood. And just so I understand, in
conclusion, what is the penalty if you, the Attorney----
Attorney General Gonzales. I don't know.
Mr. Weiner. I haven't finished the question. What is the
penalty or the range of penalties if you, the Attorney General,
or the President of the United States, or a Member of Congress,
willingly, knowingly--leave out those other words--passed along
tip secret information to someone who did not have the right to
have it, didn't have the clearance? Do you have any idea what
the penalties are?
Attorney General Gonzales. I do not know.
Mr. Weiner. If you could, would you----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Weiner. If you would be so kind before my second round,
perhaps a member of your staff can get that information? Thank
you.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Forbes.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Attorney General, once again thank you for being here.
I've got two questions I'd like to ask. First of all, I want to
clarify an earlier response that you had to a question that I
asked you about the application of the anti-smuggling
provisions in section 202 of H.R. 4437. If that provision were
passed in the form as passed by the House of Representatives,
would the Department of Justice prosecute priests and doctors
who provided humanitarian aid to illegal immigrants?
Attorney General Gonzales. No, we would not.
Mr. Forbes. Has the Department of Justice ever prosecuted
individuals who have provided purely humanitarian relief to
illegal immigrants?
Attorney General Gonzales. No, I don't believe so.
Mr. Forbes. And in fact the language that's in the bill,
your Department has looked over previously before the passage.
Is that correct?
Attorney General Gonzales. That is correct.
Mr. Forbes. Okay. And the other question I had was in
relationship to your response to Congressman Scott's question
about gangs, when he asked it earlier, and the prevention
aspects of it. The information that I have here is testimony
and information that we received when we were doing the gang
legislation. All the experts that we had testified in law
enforcement across the country agreed on certain things about
gang activity in the United States. One of the things that they
agreed upon was that if we want to successfully go after the
gangs, that we've got to do what we did with organized crime,
and that is to bring down the gang networks. Would you agree
with that?
Attorney General Gonzales. I would.
Mr. Forbes. The other thing that they seemed to be
unanimous about is, if you looked at some of the most violent
gangs we have in the country, particularly MS-13 among others,
that anywhere between 65 and 75 percent of the members of that
gang were here illegally. Do you agree with those numbers?
Attorney General Gonzales. I don't know with certainty, but
that wouldn't surprise me.
Mr. Forbes. A huge percent, a large percentage. Now,
specifically, could you tell us what prevention programs that
we could utilize that would help us in going after the networks
and bringing those down or help reach those individuals who are
here illegally in those gangs, what would you recommend that we
use in prevention programs that would stop those two aspects?
Attorney General Gonzales. Well, I don't know that I can
identify specific programs that would be effective vis-a-vis
the network or vis-a-vis certain kinds of gangs or certain
kinds of gang members. The truth of the matter is, is that
perhaps the only thing we can do is enforce the laws and
prosecute these folks.
When I was talking about the importance of education
earlier, what I meant--what I said, certainly intended to say,
was that there is certainly a group of--a segment of our
community, young kids in particular, that there is hope that we
can discourage them from joining a gang. But I didn't mean to
suggest that prevention or education would be effective in all
cases. And as I indicated in my earlier response, as the chief
law enforcement officer of the country, I am focused on law
enforcement. We have about, for the 2007 budget, about $400
million that we're spending on gangs, dealing with the gang
issue. And a vast majority of that is for law enforcement,
because that is the primary responsibility of the Department of
Justice.
Mr. Forbes. And the only reason for my question, and to
follow up, is that all the testimony that we've had from
families and people across the country is not that prevention
programs don't have a place but, as far as our priorities, that
the top priority we have is to bring down those networks, that
we've got to go after the networks.
And the second thing is that many of our prevention
programs, although they make us feel good and we like to do
them because they're the right things to do, that sometimes, if
you're talking about people coming here illegally in the first
place, they bypass those prevention programs, so they're not
going to be valid in pulling down the networks.
And the third thing is a lot of the kids that we want to
reach are scared to death to go out in their neighborhoods to
get to the prevention programs because of these networks.
And so our focus has been go after the networks, pull them
down, go after the people here illegally, and then use the
prevention programs. Would you agree with that approach?
Attorney General Gonzales. I agree with that approach, yes.
Mr. Forbes. Thank you, Mr. Attorney General. Thank you, Mr.
Chairman.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman. And I welcome the
opportunity, Mr. Attorney General, to ask you several questions
about the NSA program that has been the subject of our--so much
of the questioning in the morning session.
Before I do, I think that it's important to clarify the
concern here. I would guess that we would have a unanimous
conclusion among the Members of this Committee and, I would
say, probably among the Congress that if someone in the United
States is talking to an al-Qaeda member, that we want to know
about that. That's not the problem. The problem, or the
concern, is whether it's really more an article I concern than
a fourth amendment concern, and whether the rule of law,
whether laws duly enacted are going to control the Executive
branch. This isn't about President Bush, it's about the
Executive branch and about the legislative branch.
So I'm seeking to understand exactly what the Department--
or what the Administration has done, why they have done it. And
I think a good outcome would be to regularize this in a way
that preserves the rule of law, frankly.
You testified in the Senate that the Department of Justice
was establishing probable cause that a party to the
communication is a suspected foreign agent. Is there probable
cause as to both parties to the communication being suspected
foreign agents? And if not, is that the primary reason why the
FISA warrants would be unavailable?
Attorney General Gonzales. I don't believe I testified that
DOJ was determining probable cause in the Senate Judiciary
Committee meeting--hearing. If I said that, then I misspoke. I
hope that what I said was that it is career folks at NSA.
Ms. Lofgren. All right. If--let me amend the question,
then. Would that be the primary reason why a FISA warrant would
not be available?
Attorney General Gonzales. Well, I--we never suggested that
it wouldn't be ultimately available. I've never suggested that
if an application were completed and submitted to the FISA
court that it wouldn't be approved.
Ms. Lofgren. So you're saying, if I can--I don't want to be
rude, but we only have 5 minutes.
Attorney General Gonzales. Yes, ma'am.
Ms. Lofgren. You're saying that you could get them but
you've declined to do so.
Attorney General Gonzales. Well, I believe--you know, I
haven't done an itemized inventory of the actions taken under
the program and whether or not they would satisfy all the
applications under FISA. That's something that is hard to do
after the fact. But again, the problem is not that we couldn't
get approval under FISA. The problem has been is that because
of the procedures in place under FISA, it takes an
extraordinarily long period of time in certain cases to get
approval under FISA.
Ms. Lofgren. So, if I may----
Attorney General Gonzales. Yes, ma'am.
Ms. Lofgren. If I'm hearing you correctly, the
Administration has decided not to comply with FISA because
there's--as an alternative to streamlining the FISA processes.
Attorney General Gonzales. Congressman, I would
characterize it differently. I would say that the
Administration has decided that it is going to use all the
tools that is lawfully available to it to deal with this
threat.
Ms. Lofgren. Well, we're--let me just ask, does every
individual intercepted communication have a suspected foreign
terrorist overseas as at least one party to the communication?
And if your answer--does your answer apply only to the so-
called Terrorist Surveillance Program, or would it apply to all
of the Administration's intelligence programs?
Attorney General Gonzales. Well, if we're talking about the
Terrorist Surveillance Program, there is a determination--and I
answered this in response to an earlier question. With respect
to the Terrorist Surveillance Program, there is a determination
by a career official out at NSA that one party to the
communication----
Ms. Lofgren. Is overseas.
Attorney General Gonzales. That one party is overseas and
that one party, that there's reasonable grounds to believe that
one party is a member or agent of al-Qaeda or an affiliate
terrorist organization.
Ms. Lofgren. If that is true about the Terrorist
Surveillance Program, can you make that reassurance to us
relative to the other programs that are ongoing in the
Administration?
Attorney General Gonzales. No, ma'am, I can't, because, for
example, under FISA we're allowed to collect certain
communications that may not be overseas. So long as we meet the
requirements of FISA, however, you know, we're obviously
committed to do so under the FISA Act.
Ms. Lofgren. Let me ask, once a non-probable-cause party
has been identified in a communication with a party who is a
suspected foreign agent, are the first party's communications
subsequently intercepted even where the suspected foreign agent
is not a party to those communications?
Attorney General Gonzales. Congressman, you're asking me
now to get into details about the operations, how we work--how
this program operates. And I can't answer that question.
Ms. Lofgren. I would hope that the Chairman----
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
The gentleman from New York, Mr. Nadler.
Ms. Lofgren. Mr. Chairman? Could I just ask that we explore
a classified briefing for the parts of the answers that the
Attorney General cannot give us?
Chairman Sensenbrenner. We can explore that, but there are
up sides and down sides to that, and this is not the place to
discuss them.
The gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you.
Mr. Attorney General, you said a few minutes ago that the
President can declassify anything; that is, if the President,
through the Vice President, outed Valerie Plame as a CIA agent,
that would have been legal because it's the President's
decision to declassify anything he wants?
Attorney General Gonzales. Mr. Nadler, you're asking me
questions----
Mr. Nadler. No, I'm asking a case. Assuming those were the
facts, that would have been legal?
Attorney General Gonzales. I'm not going to answer
questions related to the investigation.
Mr. Nadler. Well, but you said that----
Attorney General Gonzales. I'm recused from this case. I'm
recused from the Plame investigation.
Mr. Nadler. Forget the Plame investigation. Can the
President, on his own, declassify anything he wants?
Attorney General Gonzales. I believe the President would
have the authority as commander in chief to determine which
information----
Mr. Nadler. Yes, is your answer. Please don't waste my
time. Yes.
Attorney General Gonzales. I'm not wasting your time.
Mr. Nadler. You are, because you're--I only have 5 minutes
and--The answer's yes. You didn't have to say what you said.
Are there standards? Does the President have to make a
finding that declassifying something is--does not injure the
national security, or can he do it for political reasons?
Attorney General Gonzales. The President has the
constitutional authority to make the decision as to what is in
the national interest of the country.
Mr. Nadler. For whatever reason he feels like?
Attorney General Gonzales. He has the authority under the
constitution to make that determination.
Mr. Nadler. Okay.
Attorney General Gonzales. My judgment.
Mr. Nadler. Okay, so he could do it for political reasons
and that would be--and no one can second-guess that, if he
wanted to.
Attorney General Gonzales. This President could make the
decision to declassify information based upon national security
reasons.
Mr. Nadler. He could do it for political reasons if he
wanted to, and no one could second-guess that because he's the
commander in chief. Right?
Attorney General Gonzales. The President's going to make
the determination as to what is in the best interests of the
country.
Mr. Nadler. Yeah, he might. But he could. I'm asking you a
theoretical question about the authority of the President--not
necessarily this President. A President could declassify
something for political reasons and no one has the authority to
second-guess him because he's the commander in chief. That's
what you're saying?
Attorney General Gonzales. The President does have the
inherent authority----
Mr. Nadler. Okay. Thank you.
Attorney General Gonzales [continuing]. To make the
determination regarding----
Mr. Nadler. Let me ask you a different question.
Attorney General Gonzales [continuing]. Of classified----
Mr. Nadler. The Bush administration continues to claim that
Guantanamo is filled with only dangerous terrorists. On March
8th, the New York Times revealed that a lawsuit by the
Associated Press has now demonstrated the truth in shameful
detail. The suit compelled the release of records from hearings
for some of the 760 or so men who have been in prison at
Guantanamo Bay. Far too many show no signs of being a threat to
American national security. Some, it appears, did nothing at
all. And they have no way to get a fair hearing because Gitmo
is created outside the law. Close quote.
The transcripts describe the case, for example, of Abdur
Sayed Rahman, a poor chicken farmer detained in Guantanamo for
almost 5 years because he was mistaken for Abdur Zahid Rahman,
the former deputy foreign minister of the Taliban, who had a
similar name. This is one of many cases of mistaken identity,
apparently, turning an innocent person into a prisoner without
any judicial review or due process, which President Bush
assured us could not occur under his vigilant watch and just
due process measures.
Do you think--``I'm only a chicken farmer in Pakistan,''
this fellow said, when he was finally given the opportunity to
appear in front of a tribunal, which the Supreme Court forced
the Administration to create. Do you think in light of this
information that we should perhaps give more due process not to
terrorists--the Secretary of Defense said that the terrorists
have no rights--but to people who haven't been determined to be
terrorists? Somebody thought they might be, we paid a bounty to
some Pakistani warlord and they turned over people they said
were terrorists, but we don't really know that. We have to
determine whether they are.
Do you at least agree that a new judicial review procedure
that provides for swift processing and prosecution of detainees
in a manner that ensures the country's national security but
also ensures a full and fair judicial hearing for the detainee
to determine whether he is in fact an enemy combatant should be
instituted?
Attorney General Gonzales. No.
Mr. Nadler. Because?
Attorney General Gonzales. Because I believe that we have a
process in place that goes well beyond what even the Geneva
Convention requires. There was a determination made when
someone was captured on the battlefield as to whether or not
there were an enemy combatant. They were then sent to----
Mr. Nadler. Excuse me. Who made that determination?
Attorney General Gonzales. The battlefield commanders on
the ground.
Mr. Nadler. Except that many--except that I gather that
most of the people at Guantanamo were not captured by American
troops on the battlefield but were given to us by various
Pakistani or Afghani warlords who said that they had--who told
us that they were enemy combatants.
Attorney General Gonzales. And then when we take custody of
someone in that circumstance, there is another determination
made as to whether or not is this person an enemy combatant.
Mr. Nadler. And on what basis is that determination made?
And by whom?
Attorney General Gonzales. Well, looking at the facts,
like--the same way that it was done during World War II when
battlefield determinations were made on the ground----
Mr. Nadler. In World War II, people were fighting in
uniforms. When we captured people, we didn't take them from
someone else.
Attorney General Gonzales. Sometimes it's hard to tell who
the real enemy is, particularly when they're trained to lie
about their status and to lie about their conditions. And once
they get to Guantanamo, once they get to Guantanamo, we do have
a combatant status review tribunal process which has been in--
which was put in place after the Supreme Court decision in
Hamdi. There is an annual----
Mr. Nadler. I know, but----
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from Florida, Mr. Wexler.
Mr. Wexler. Thank you, Mr. Chairman.
Thank you, sir. I was hoping you can clear up some
confusion I'm having. What I'm trying to do is square what--the
descriptions both you and the President provide as to the
surveillance programs and a specific instance that happened in
my district in Palm Beach County in Florida.
Putting aside the legalities and the constitutional issues,
if I understand your policy position, it's essentially this:
You are the country's leading law enforcement officer. We are
at war with a terrorist enemy. It's your obligation to leave no
stone unturned to protect the American people. I agree. I can't
imagine anyone here who would disagree.
You describe those incidents where, regardless of what type
of communication it is, there is a terrorist connection and
therefore you need to implement intrusive techniques or
whatever techniques are available to you to protect the
American people. Again, I'm with you 110 percent.
My issue comes up when the other part of the story is not
told. The other part of the story, as I understand it, is
warrantless surveillance programs are being conducted by
agencies of the United States Government on American citizens
who have nothing at all whatsoever to do with terror in any
respect.
The Truth Project in Lake Worth, Florida, which has been
reported by the New York Times, many papers, TV stations--I
think the Pentagon itself has a report--essentially is a group
of Americans, if I understand the group correctly--
grandmothers, some Korean War veterans. They met in a church.
As far as I know, church meetings are not suspect--yet. And
they decided that they may disagree with the policy we have in
Iraq, and they also decided that they may disagree with the way
in which the United States goes about recruiting soldiers and
the information that our soldiers are given. And they engaged
in a program to provide different information.
They then found themselves on a ``credible threat'' list
and found themselves subject to warrantless surveillance. Every
one of them an American. Every one of them, if I understand it,
has never had any training in Pakistan or Afghanistan. Their
alleged violation was freedom of speech and they may have had a
political ideology that was different than yours, maybe
different than mine.
Would you acknowledge for us today that agencies of the
United States Government have conducted warrantless
surveillance on Americans in respect to communications that
have nothing whatsoever to do with terrorists or terrorism?
Attorney General Gonzales. Not to my knowledge, no.
Mr. Wexler. Not to your knowledge. Okay. I would
respectfully suggest, sir, that you review the Pentagon report
and the Pentagon documents regarding the Talon Project, in
which the Pentagon is going around this country identifying
people as credible threats, and they're Americans that have
nothing to do with terror. This is under your watch, sir, with
all due respect. Please look into it.
If I could follow on a totally different issue. Twenty-five
thousand American women every year are raped in America and
then become pregnant as a result of the rape. If I understand,
the Department of Justice national protocol for sexual assault
medical forensic examinations rules that have been provided
under your watch, sir, you do not allow for the provision of
emergency contraception information. Emergency contraception
that would prevent, after a rape, 25,000 American women from
becoming pregnant. What's the justification? What's the
justification for putting 25,000 American women through a
double hell after having been sexually assaulted, of then going
to an American hospital and knowing that our own Department of
Justice provides rules that exempts out information that might
prevent that poor victim of a sexual assault from having to go
through the double trauma of getting pregnant as a result of
it? What's the justification?
Attorney General Gonzales. I'll have to get back to you
with an answer on that, Congressman.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Thank you, Mr. Chairman.
General Gonzales, I very much appreciate your being here
and being here particularly for such an extended period of
time. I apologize that I wasn't here for the first round
earlier--I'm sorry, for my normal place in the first round, Mr.
Chairman, you're right.
But I have looked over your dialogue with Mr. Keller and I
want to, first of all, thank you for recognizing the challenges
we face in the border in San Diego, also your willingness to
meet with the California delegation, to take this a little
further on a personal basis.
I would like to just delve into this just a little bit more
in one sense. Over a year ago, we got the appropriators to
agree to create opportunities for earmarking of additional
dollars, over a million dollars, to allow for coyote, or
illegal--people who smuggle illegals, but it doesn't seem to
have gone in the right direction. And I know that you said full
funding would make a difference. Can you quantify for me, when
you say ``full funding,'' now, and if not completely now then
in writing, what are we talking about to have a zero tolerance
for people who traffic in human beings?
Attorney General Gonzales. I can't give you specific
numbers, Congressman, but would be happy to try to get that
information for you.
Mr. Issa. Can you give me an idea of--the best way to put
this is, do you believe that the courts could handle this if--
and we're not talking about the illegals, we're just talking
about the people who are the smugglers. Do you believe the
courts can handle that within their capacity, separate from the
question of U.S. attorneys?
Attorney General Gonzales. I would have concerns about it,
quite frankly. I know a lot of the courts, particularly along
the border, are straining with dealing with these kinds of
cases. And so this would clearly present additional challenges
for those courts. For that reason, I think one thing to
consider is whether or not we need additional judges. That
would be one thing to consider.
Mr. Issa. Well, you know, we added five additional judges
in San Diego, so that was one of the reasons for my question,
is that we did reduce the case load down to at or around the
national average. But I would appreciate it in your response,
in addition to the dollars, if you could give us an estimate of
the human power that would be necessary to be added either in
the prosecution or, of course, in the Federal courts, because
this Committee has jurisdiction over both.
Lastly I'd like to talk to you about is there a way, in
your opinion, if we don't dramatically reduce the capability,
the capacity of human smugglers, is there a way to prevent the
smuggling of Hezbollah or al-Qaeda or other operatives through
our southern border?
Attorney General Gonzales. It would be hard.
Mr. Issa. Okay. That covers me today. My thanks. And thank
you, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. Thank you for being
here, Mr. Attorney General. I apologize for missing my place in
the first round also.
I'm interested in all of the issues that have been raised
on a more global level and terrorism, but the thing that I'd
really like to focus on in my questioning is what's going on in
our communities. There was an extremely troubling report about
Black males and their condition and plight, employment, prison,
confinement being even more dramatically worse than even the
official statistics would have you believe. And we've known
that it's been a really serious issue and problem for a long
time.
In your opening statement, which I was here for because I
wanted to hear the general parameters that you were going to
cover, you mentioned one of your initiatives being preparing
prisoners for return to society. And that's an issue that's
disproportionately important to African Americans because
African Americans, especially males, are disproportionately in
the prison population. And what they're finding is that once
they have any kind of prison record, there's really no re-entry
programs, there's not treatment, there's no jobs. They can't
get a job, they can't vote in a lot of States when they come
out of prison. So it's just a vicious cycle. They almost don't
have another alternative but to return to the same kind of
life.
So I guess my specific question is can you talk to us a
little bit more about what that prisoner re-entry initiative is
that you made reference to in your opening statement. And on a
more general level, are there other things that you perceive
that your office can do in conjunction with Members of
Congress, other people who are interested in attacking this
serious problem that, in our estimation, is exacerbated by our
drug policy and our sentencing policy. Are there things that
you can propose that we ought to be working on together to try
to address this on a very serious level?
Attorney General Gonzales. Thank you, Congressman. You're
right, this is a problem. The President believes that we have
an obligation to try to work with those in prison to ensure
that when they're done their time, that they can become
productive members of our society. Now, for that reason, he
does support, as do I, programs like Prison Industries, where
people in prison can learn job skills. We also support programs
like Life Connections, which we have in five prisons and we
hope to expand to eight next year to provide basic services to
people in prison.
What I spoke to specifically in my opening was related to
part of the focus of gangs. We have a new gang initiative and
it is focused on three components. One is education, one is
enforcement, and the other is prisoner re-entry. We have
focused--these are kind of like pilot projects, but we're
trying to see whether or not this kind of approach works in
these specific neighborhoods. They were based upon the
applications submitted by the U.S. attorneys in these
neighborhoods looking at the specific needs in those districts
and submitting an application that we believe would be
effective in those areas.
So it would be a program, with respect to the prisoner re-
entry part of it would look at whether or not prisoners, did
they have--did they need transitional housing when they got
out; if so, is that something that could be provided. If they
had problems with drugs, could we provide substance abuse
treatment in connection with their departure from prison. If
there was a question regarding getting them ready for jobs or
some kind of job-readiness programs that we could put in place.
And so, again, these are targeted on six projects around
the country to see whether or not we can focus on the specific
needs of these particular areas from the education,
enforcement, and prisoner re-entry side.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Arizona, Mr. Flake.
Mr. Flake. Thank you, Mr. Chairman.
Thank you, Mr. Attorney General. I want to follow along
with the questioning that Adam Schiff started with regard to
the warrantless wiretaps, the NSA program.
I just want to understand your answer. I wasn't here when
he questioned, but was briefed by him. You mentioned that you
would not rule out wiretapping solely domestic calls, domestic-
to-domestic calls, under the inherent authority that the
President received under the War Resolution that we passed
here. Is that correct?
Attorney General Gonzales. I can't rule it out, but let's
remember the framework in which I've outlined, and that is, is
that we are at war with al-Qaeda, there is a long history of
presidents engaging in electronic surveillance of the enemy
during a time of war. I don't think anyone can argue that the
electronic surveillance of the enemy during a time of war is a
fundamental incident of waging war, which the Supreme Court
says the authorization of the use of military force is what
Congress provided to the President of the United States.
And so the question is, if you're talking about domestic
surveillance involving al-Qaeda during a time of war, when
we're at war with al-Qaeda, it's not something that I would
rule out.
Mr. Flake. But the context for which----
Attorney General Gonzales. But that's not what the
President has authorized. I want to emphasize that.
Mr. Flake. Can we be confident that there are no ongoing
programs, or no programs that have been started and stopped,
that have solely domestic-to-domestic, that have conducted
surveillance on domestic-to-domestic communications?
Attorney General Gonzales. Congressman, I can't comment on
anything beyond what the President has said, although I will
say that in terms of what the activities of the program have
been and are, have been briefed to certain Members of Congress.
Mr. Flake. Let me just say that we--all of the discussions
we've had with regard to the PATRIOT Act have been during the
time at which we are at war. And what I seem to be hearing is
that these are, you know, maybe interesting or fun, but they're
irrelevant.
Attorney General Gonzales. Not at all. A lot of the changes
in the PATRIOT Act, even those changes related to FISA, are
changes that were necessary, quite frankly, and would have been
necessary irrespective of our conflict with al-Qaeda. And you
have to understand that the tools of the PATRIOT Act go well
beyond our conflict with al-Qaeda. They apply in the domestic
context, for threats to our communities that go beyond al-
Qaeda----
Mr. Flake. I understand, but----
Attorney General Gonzales [continuing]. And they apply in
the peacetime context.
Mr. Flake. I understand. But with regard to domestic
surveillance of communications solely domestic, domestic-to-
domestic, you're saying that you don't rule out or you see it
as still in the President's inherent authority to go ahead and
do that without regard to the strictures of either FISA or, in
this case, the PATRIOT Act.
Attorney General Gonzales. Well, again, every court that
has looked at this issue has determined that the President does
have the inherent authority under the Constitution to engage in
electronic surveillance for the purpose of gathering foreign
intelligence.
Mr. Flake. Let me shift gears here for a minute. In 1984,
Congress enacted the Material Witness Law under which
individuals can be detained as witnesses in an ongoing
investigation. It seems that this has been taken beyond its
original purpose. We have many, many cases now of individuals
being detained for months at a time as material witnesses when
there is no grand jury convened or no ongoing investigation
with which they are going to be called as a witness.
Do you feel that the Material Witness statute has been used
appropriately? Would you entertain or would you suggest that we
need--do you need additional authorities so that you can
actually hold people who are suspected terrorists, rather than
holding them under a statute that is ill-suited for that
purpose?
Attorney General Gonzales. Congressman, I would
respectfully disagree with your characterization. We can only
hold people under a material witness warrant with the approval
of a judge and under the supervision of a judge. And even if
under those circumstances, I mean, the person is entitled to a
lawyer, the person can disclose the fact that the person's
being held as a material witness under a material witness
warrant. I think people have----
Mr. Flake. Excuse me, I don't believe that's accurate that
they are entitled to lawyer. Some have been held for weeks
without access to a lawyer.
Attorney General Gonzales. Well, I can't--I can't----
Mr. Flake. The case of Brandon Mayfield.
Attorney General Gonzales. I can't comment on the
specifics. Well, there the IG did not make a determination and
a material witness warrant was inappropriate in that case. I
think the finding there was that certain conditions--certain
representations made in connection with acquiring the warrant
didn't appear to be accurate. And I think that's what the IG
held.
But in response to your question, I support the use of
material witness warrants. People have this misperception that
we're using these in all kinds of cases. In probably about 96
percent of the cases, we're talking about immigration cases,
where we need material witness warrants in order to secure
someone who is an undocumented alien and who would otherwise
flee. Someone who is an undocumented alien, who has testimony
that would help us prosecute an alien smuggler.
Chairman Sensenbrenner. The gentleman's time has expired.
We will now being the second round of questioning. According to
the order that I have announced earlier, the gentleman from
Michigan, Mr. Conyers, is recognized.
Mr. Conyers. Attorney General Gonzales, could there be a
possibility, and would you be willing to initiate the action
that would compel the State of Louisiana to implement out-of-
State satellite voting procedures similar to those made
available for Iraqi citizens in their national elections?
Attorney General Gonzales. As an initial matter,
Congressman, I think the procedures decided upon the State
elected officials should be--I mean, I think they have the
primary responsibility to decide what those procedures are.
Now, having said that, those procedures must meet the
requirements of the Constitution. This is a matter that has
been reviewed by the Department of Justice, but more
importantly has been reviewed in the courts. And while we can
always argue about whether or not we could do more to ensure
that people have the right and the ability to vote, the
determination has been made, is that the legal requirements
have been----
Mr. Conyers. But would you advocate such a procedure, or
would you feel compelled to not support such a procedure if it
came forward?
Attorney General Gonzales. As a general matter,
Congressman, I'm always in favor of doing what we can to
encourage more people to vote.
Mr. Conyers. It would expedite voting a great deal because,
as we know, the candidates don't know where the voters are and
the voters don't know who the candidates are. It's a big
dilemma. I just wanted to get the maximum amount of support
that I could from you on this very, very important and timely
question.
Now, let me ask you about the whole area of special
counsel. We've never had--this is the first Department of
Justice where over 5 years we've never had one special counsel
appointed pursuant to 28 C.F.R. Part 600. And I was wondering
if there is some problem about special counsel. We have this
epidemic of torture in Abu Ghraib, Guantanamo Bay, Iraq. We
have problems with military contractors over there. We have the
Thomas Noe fund-raising scandal in Ohio, the demotion of U.S.
Attorney Frederick Black for daring to investigate Jack
Abramoff. Potentially unconstitutional wiretapping.
I don't want to make these up or give you a laundry list.
The fact of the matter is that it seems extraordinary to some
of us on the Committee on Judiciary that, in all of this time,
there's been no recourse to special counsel.
Attorney General Gonzales. Well, of course, Mr.
Fitzgerald----
Mr. Conyers. No, he--I don't think he's a special counsel
in the terms that I'm using.
Attorney General Gonzales. Well, are you talking about--are
you thinking in terms of more like an independent counsel?
Mr. Conyers. Under the regulations in 28 C.F.R. Part 600.
Because the special counsel has to make a report when all this
is through.
Attorney General Gonzales. Let me just say this. You did
indicate certain events or activities that you felt might
warrant a special look. In each and every one of these cases
there has been an examina--for example, what happened at Abu
Ghraib. There have been multiple hearings. There have been
multiple investigations.
Mr. Conyers. But in the end, you don't feel that it's
unusual that there have been no special counsels?
Attorney General Gonzales. Well, we have, obviously,
procedures in place. We have career folks that give me advice
as to when it may or may not be appropriate to appoint a
special counsel. And if the circumstances dictate it, that'll
happen.
Mr. Conyers. All right, let me raise this with you,
finally. Why have there been 40 percent decline in the Civil
Rights Division prosecution of cases for racial discrimination
and gender discrimination? Has that been brought to your
attention?
Attorney General Gonzales. Well, I don't--my understanding
is, is that overall there's been an increase in the Civil
Rights Division with respect to prosecutions. And so I don't
know about that specific, that specific number, but----
Mr. Conyers. We're not talking about immigration cases.
We're talking about----
Attorney General Gonzales. I understand that.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from California, Mr. Schiff.
Mr. Schiff. Mr. Attorney General, I wanted to follow up a
bit on our earlier dialogue on the NSA issue. You mentioned
both in reference to my question and Representative Flake's on
the issue of whether you have the authority to do purely
domestic eavesdropping between two Americans, that where there
was an al-Qaeda link you can't rule out the inherent authority
to do that without going to court.
The question I have is, we're talking about between two
Americans. Now, I realize that it's certainly possible that one
of those Americans could be affiliated with al-Qaeda, much as I
hate to think of the prospect. The question I have, though, is,
where you have a call between two Americans on American soil,
who outside the Executive branch would ever oversee the
Executive branch's decision to use its inherent authority to
eavesdrop on that call? Who would be able to provide any
oversight of that?
Attorney General Gonzales. Well, of course, Congressman, we
do--we do communicate with certain Members of Congress about
what we're doing here. People at the NSA take very seriously
their obligations and the limitations that have been imposed
with respect to the collection of electronic surveillance.
Mr. Schiff. Mr. Attorney General, I don't doubt that. The
problem is that they're not incapable of error any more than we
are.
Attorney General Gonzales. Well, of course, even the fourth
amendment doesn't expect perfection. So long as a mistake is
made----
Mr. Schiff. No, but it does--but the Fourth----
Attorney General Gonzales [continuing]. That's reasonable,
then that's permissible.
Mr. Schiff. The fourth amendment does expect that there is
a system of checks and balances, where the courts have a role
in overseeing the legitimate expectation of privacy of
Americans. And in a situation where the Executive arrogates to
itself the power to eavesdrop on a purely domestic call between
two Americans without any court review before, without any
court review after, or can't rule it out, there is no outside
oversight of that. We can't do it.
You mentioned today the problem with FISA is, and you
mentioned some problems with FISA--you said it could take days,
it could take hours, take weeks or months to get approval. It
may be the first time anyone has come before our Committee,
other than minor changes to FISA, and said there was a problem
with FISA. Indeed, as I mentioned earlier, in the Senate the
testimony was there isn't a problem with FISA.
The question I have, you have to acknowledge that even in
the best of circumstances, with the best white paper you've
drafted, the legal questions are still very problematic. And if
that's the case, why not come to the Congress? Why didn't the
Justice Department come to the Congress and ask us to change
FISA? If you couldn't do what needed to be done to protect the
country, why not come to Congress, why not come to this
Committee? We can have classified hearings just as the Intel
Committee can have. We are no less bound by the oath to
maintain the confidentiality of classified information than the
Intel Committee is.
But we have a slightly different mission than the Intel
Committee in that we have a primary responsibility to make sure
that what the Executive does meets the requirements of the
Constitution. That's a slightly different focus than the Intel
Committee, which also has an obligation, but not in the same
way we do.
Why didn't the Justice Department come to the Congress and
ask us to amend FISA?
Attorney General Gonzales. Congressman, I think that I've
already answered that question. There was some consideration
about doing that and ultimately there was a collective
agreement that that would not be possible without compromising
the effectiveness of the program.
Now, the circumstances are different now. People now know--
--
Mr. Schiff. Does that mean because you couldn't trust
Committee Members to keep the information classified? I mean,
why--al-Qaeda shouldn't care whether you have to go to court or
not. But we care whether there's some oversight. We all agree
that the eavesdropping should take place if it's necessary to
do so. The only question is whether there is some outside
review of your decision-making to make sure that it's being
done properly.
I still don't understand. Yes, you have answered the
question, but I still don't really understand the answer. I
don't understand why you couldn't have come to Congress and
asked us to change the law, as you have--Why didn't it
compromise our national security to ask for the changes you did
as for in the PATRIOT bill?
Attorney General Gonzales. Well, but again, because what we
asked for in terms of changes for the PATRIOT Act were changes
that would apply not just to al-Qaeda, not just during a
wartime situation. This was generally to respond to threats to
our communities, to our neighborhoods around the country. And
so to come into the Congress and say, okay, we need this change
in the PATRIOT Act because we're doing this against an enemy
we're at war with, I think it's a much different story.
Chairman Sensenbrenner. The time of the gentleman has
expired.
At this point, I'd like to ask unanimous consent that an
article submitted by Mr. Conyers from the Washington Post of
Sunday, November 13, 2005, entitled ``Civil Rights Focus Shift
Roils Staff at Justice,'' be inserted in the record. And
without objection, so ordered.
[The information referred to follows in the Appendix]
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman.
Mr. Attorney General, in the PATRIOT Act reauthorization
that we had, there was a section in there dealing with habeas
corpus reform under which States that qualify under the Powell
Committee recommendations would receive what I would refer to
as expedited review in Federal courts of their cases. In 1996,
when Congress acted, the authority was within the courts, the
Federal courts, to make that determination as to whether the
State qualified under the Powell Commission recommendations.
In the absence of any Federal court finding any State
system as consistent with the Powell Commission recommendation,
Powell Committee recommendations, the change in the PATRIOT Act
grants that responsibility to you. And my question is--in other
words, for a State to receive that treatment, they must apply
to the U.S. Justice Department for your determination as to
whether they can opt in to that program and receive expedited
review. Your decision, then, would be subject to an appeal to
the appellate court for the District of Columbia--or the
circuit court.
Have you made any decisions with respect to the
organization within your Department as to how that would be
handled?
Attorney General Gonzales. I don't--I--quite frankly, I
don't know, Congressman. But let me try to find out what we've
done on that.
Mr. Lungren. Okay. That's extremely important, because when
we drafted this--and I was not here, but my office in
California helped in the drafting--and the idea was to try and
create a balance. That is, we would encourage States to do a
far better job of having competent counsel at the appellate
level, including the habeas level. And in return for them doing
that, there would be expedited proceedings. That is, there
would be expedited timelines for consideration in habeas cases
as considered by the Federal court.
We were doing that because of difficulty we were having
with Federal courts making decisions within a reasonable time.
We thought establishing those rules would have the Federal
courts actually seriously look at it, but to this date, some
decade later, not a single State has been able to opt in. And
so the idea was to get someone who didn't have a dog in the
fight. These are State cases, not Federal cases. And so the
thought was that your office would be able to review those to
see if in fact we'd met the standards established by the
Congress pursuant to the Powell Committee recommendations.
And I would just hope that I can get an answer on that so
that, when my home State does apply, there's not going to be a
delay in the Department of Justice in reviewing that because
you haven't geared up for that.
Attorney General Gonzales. Yes, sir.
Mr. Lungren. The second area of inquiry I'd like to pursue
is in the area of sentencing. With the Supreme Court decisions
on sentencing guidelines, we have waited for some period of
time to see what would occur. And some of the things that we
have found are truly bothersome.
We find lower prison sentences for criminals for whom
Congress had sought higher sentences when it passed the PROTECT
Act. The rate of imposition of below-range sentences for
abusive sexual contact cases decreased following the PROTECT
Act but increased after the Booker decision. And what that
means in real terms is that the post-Booker defendants accused
of abusive sexual contact are getting sentences below the
recommended guidelines at an increasing rate, negating the very
improvements that this Congress wished to occur. Although the
post-Booker average length of prison sentences has increased
incrementally from 57 months to 58 months, the average sentence
imposed upon career offenders, that is the defendants who have
the most serious criminal records, has decreased.
I think we've waited patiently to see what the courts would
do, but these kinds of facts are somewhat concerning. There's
also some analysis that we're having increased sentencing
disparities based on race and geography. Now, that ought to
concern all of us no matter where we stand on the ideological
spectrum. What is the position of your Department on that, and
recommendation, if any, as to what we should do following up on
those results that we've seen after substantial period of time?
Attorney General Gonzales. Thank you, Congressman. I think
that this is a very good question. I think there are many--
first of all, let me begin by saying many judges are doing a
good job trying to stay within the guidelines that once
existed. You're right. We have waited for a period of time to
see how the judges do. And the report from the Sentencing
Commission is not very encouraging. There are some very
troubling trends with respect to certain crimes, particularly
against children. Also I'm concerned about trends that appear
to show the disparity based upon race and geography, as you
indicated. And we're seeing disparities within districts and
between circuits. And that is very troubling.
For that reason, we have proposed, at least as a--this is
our proposal, is that we look at making the minimum guidelines
mandatory, we keep--we have the maximum guidelines, we keep
those as advisor. We believe that would be consistent with the
sixth amendment and the Supreme Court jurisprudence. And we
think that that would be a way to meet our obligations under
the Constitution and would result in a sentencing regime that
is fair and tough and determinate, which is what we were all
looking for under the Sentencing Reform Act.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you, Mr. Chairman.
I want to thank the Attorney General for the time that
you've shared with us. I think that you can detect from the
questioning that Members are serious, that this is not a
personal affront, if you will, but it is our responsibility in
oversight.
Let me again state the fact from your opening statement
that we're stewards of American democracy. We will present to
you, before you leave, a letter from myself and Mr. Conyers
that asks for a reconsideration de novo of the pre-clearance of
the Katrina voting structure that will come about on April 22.
And the reason is because your lawyer--and the letter is here--
misrepresented the position of the State legislators, the Black
State legislators who will be in your offices tomorrow to
correct the fact that they did not consent or approve to the
structure that was proposed by the State of Louisiana. And the
unfortunate part of this is that the judge, that again, denied
satellite voting, cited and included as part of his findings,
unfortunately, the mischaracterization by the Justice
Department of the statement and beliefs of the State Black
legislators. So I will submit this letter, both to the record
as unanimous consent----
Chairman Sensenbrenner. Without objection.
[The letter follows:]\1\
---------------------------------------------------------------------------
\1\ At the time this transcript was printed, the Committee had not
received Mr. Conyer's and Ms. Jackson Lee's letter that they had wished
be entered into the record.
---------------------------------------------------------------------------
Ms. Jackson Lee. And I will present you with a copy. But
let me also--and I'm going to just ask a series of questions--
so if you would respond to that mischaracterization.
But the other is that Members of Congress also wrote you
and told you of the abuse that Katrina survivors suffered by
local authorities, one, being refused to cross a certain bridge
into a certain parish. I think the parish is run by Sheriff
Lee, who tried to refuse marchers on April 1st from going over
that same bridge. And I would ask again whether there is an
investigation of the treatment of those survivors trying to
evacuate. I never thought that any jurisdiction had the power
of keeping evacuees running for their lives out of a
jurisdiction really on the basis of race.
Then I want to follow up on the question that we asked, so
many have asked, about the potential for domestic-domestic
surveillance under FISA. I know you've asked--answered it maybe
to the best of your knowledge, but the problem is, and the
question is this: if mistakes have been made, are you prepared
to tell us today that from this day you will be able to surveil
this process--of course, I agree that we are not using FISA--
and ensure the America people that there are no domestic to
domestic--I know you mentioned al-Qaeda--but no domestic to
domestic mistakes that could be made because we don't use FISA?
And I'd appreciate your answer on that.
Let me finish these other questions. The Chairman led, and
I joined him, in the passage of the No Fear Act in this
Judiciary Committee. That is, I consider, the first civil
rights act of the 21st century. We are hearing horrible
stories. That is a bill that would prevent--not prevent, but
try to stop the tide of discrimination in the Federal system.
We understand that it has not been prosecuted enthusiastically
and that many are suffering because the No Fear Act has not
been properly implemented. I would appreciate any assessment
you have on that.
I refer you to the case regarding the young Justin, who
indicated in testimony that he gave documentation on 1,500
pornographers or child abusers, sex abusers. Unfortunately, one
has been arrested, and we can't for the life of us understand
why this horrific case has not had more attention and that more
prosecutions have not been rendered. So, please, tell us what's
happening to your sex prosecution area.
And then I would like to as the question regarding the
immigration situation. I think you're aware of a report that
came through that suggested that immigration judges are
intemperate or even abusive. You received these memos from--in
memos sent to you from immigration judges and the Board of
Immigration Appeals. You said you were concerned about these
reports, and we understand also that many of these judges
didn't even have immigration experience. Can you tell us what
you have done or what the Justice Department is prospectively
doing to ensure a better response to the dignity of those
immigrants who are in those courts seeking to do the right
thing, and are subjected to inhuman, indecent and inappropriate
behavior by judges?
Attorney General Gonzales. I don't know whether I got all
your points, Congresswoman, but let me try to respond to what I
have, going backwards on immigration judges.
I am aware that there has been criticism and concerns
raised by Federal judges around the country about the
treatment. And for that reason I have ordered a Department
review. I have ordered the Deputy Attorney General and the
Associate Attorney General to do review about what exactly is
going on. Is there inadequate training? I mean we need to find
out if there's a problem here, and to make recommendations to
me about what we can do to address this issue. I am hopeful
that we are about at the end of that review, and then the
recommendations will be made to me as to what changes we can
make to address that issue.
With respect to Justin Berry, let me just say this. We are
committed to focusing on crimes against children. Mr. Berry is
involved in a criminal prosecution. It is an ongoing
investigation, and for that reason I'm not going to get into
any more about that situation other than to assure you that I
understand it's a serious problem for our parents. We need to
do more to protect our children, and our prosecution rates are
up. We do have special task forces looking at this problem, and
so I am committing to you that we're going to stay focused on
that.
Domestic to domestic, there is no technology that is
perfect. I can't tell you that mistakes will never be made.
What I can tell you is that we have trained professionals who
understand what the President has authorized. We have
minimization procedures in place, much like the minimization
procedures that exist with respect to FISA, with respect to
collection under Executive Order 12333, and those procedures
are in place to ensure that to the extent that information is
collected, it shouldn't be either collected or maintained or
disseminated, that it's done so in a way that we protect the
privacy rights of Americans.
I'll have to get back to you specifically about this
situation involving--I think you said Sheriff Lee. I just don't
have any information. I'll have to get back to you.
Chairman Sensenbrenner. The time of the gentlewoman has
expired. The gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
I know you love seeing me back over here, General.
But anyway, you know the President, I know the President.
We know the President's heart. We know that nobody has done
more than this President in fighting a war on terror abroad. We
know it's hard. We know he wants to protect America. Some of us
realize that he wasn't the first one to use this surveillance
program, you know, nobody's screaming about Clinton, and
nobody's screaming about people of the past. But we know that
this President is doing enough to fight the war on terror that
30 years from now he's not going to be some embittered
President that regrets subconsciously all he didn't do 30 years
before, and therefore, feels the need to lash out at some nice
President 30 years later at somebody's funeral instead of
paying credit to the deceased. We know this President won't
have to do that. He's got this battle ongoing.
But I would like to ask a few questions about the program
itself, as a former judge and chief justice from Texas, and
you've been there, you understand what goes on. I'm curious
about the probable cause that's utilized in the surveillance
program. Do you use a probable cause standard in that program
in deciding which ones to go after? If you could address that,
please?
Attorney General Gonzales. Congressman, it is a probable
cause standard. We refer to it as reasonable ground to believe.
But it is the same kind of standard. The difference is there is
no--it's not a probable cause to believe that someone is guilty
or that someone has committed a crime. It is probable cause to
believe that a party to the communication is a member of al-
Qaeda or an agent of al-Qaeda or of an affiliated terrorist
organization.
We use the words ``reasonable grounds to believe'' because
that is a more layman's like term. Because the decision's made
not by lawyer, it is made by career professionals out at NSA in
connection with a military operation, and that's what we
consider this. This is not a criminal law operation. This is a
military operation against our enemy in a time of war, made by
military professionals at NSA who experience dealing with al-
Qaeda.
Mr. Gohmert. Thank you. There appears to be, under the
1806(j), the FISA Court can have an ex parte process for
disallowing the notice. I'm curious how effective that process
is, if you could comment on that?
Attorney General Gonzales. I'm afraid I don't understand
the question. I'm sorry.
Mr. Gohmert. You know, when you're pursuing records,
surveillance, and you're going before the FISA Court, there is
a provision that--I mean the process allows you to do it ex
parte rather than having the other party there. Well, in most
of our jurisprudence history, you know, it's an adversary
system where both are there. In this system you're going, just
one side going there.
Attorney General Gonzales. The FISA process, that is
correct. I mean, it is a process where it is the Federal
Government that is appearing before the FISA Court. And we
understand very much what our obligations ar under the FISA Act
in terms of the standards that have to be met. And we have a
good record before the Court. The reason that we have a good
record before the Court in terms of getting our applications
approved is not because the Court isn't doing its job, it's
because we looked very carefully at the requirements of the
FISA law, and that's why it takes us a little bit longer, quite
frankly, in getting these applications ready to go, and for me
to approve them and submit it to the FISA Court, is because we
work very hard to know that when we submit that application, it
is going to be approved.
There is discussion sometimes with the Court, a judge on
the Court, about an application, and we can get an idea whether
or not there may be problems in the application, so there may
be modifications in the application, but it is an ongoing
process of relationship----
Mr. Gohmert. And these are district judges that are
reviewing; is that correct?
Attorney General Gonzales. These are article III judges
that are appointed by the Chief Justice of the United States to
serve on the FISA Court.
Mr. Gohmert. I think a lot of people do not understand
that, and they hear that it's a one-side process and think, oh,
this is wrong because it should be adversary, not realizing
that whether it's in State court, Federal court, FISA court, if
you go for a warrant, you're looking for documents, you're
looking for a warrant. It's always, nearly always an ex parte
one-sided proceeding----
Chairman Sensenbrenner. The----
Mr. Gohmert [continuing]. As a judge--and I understand my
time has expired, Mr. Chairman, and I appreciate it.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from California, Mr. Berman.
Mr. Berman. Thank you, Mr. Chairman.
I've had 5 minutes to vent, and now I would like 5 minutes
to ask you a few questions. There's a fellow named Marko
Boskic, who allegedly helped murder--and I don't expect you to
have the answer to this, but I would like you to look into this
if you would be willing to--who allegedly helped murder
thousands of people in Bosnia, war crimes and torture in
Bosnia. We have a Federal statute which we passed as part of
ratifying the Convention Against Torture, that says it is--you
are criminally liable for coming and living in the United
States, having committed torture or war crimes abroad.
I am told that the U.S. Attorneys in Boston wanted to
charge this person under this act, but that somewhere in
Washington they said no, deport him. Deporting him back to
Serbia and expecting there to be--I mean in a way it's the flip
side of the charges about rendition--going to deport him to a
country where he probably will not be held responsible for his
conduct seems like a poor alternative. One person said it would
be like picking up a Salvadorean general in Miami, who had
committed human rights violations, and telling him he has to
retire in Costa Rica. It's not punishment.
If you could just check out this decision of whether this
is really the wise and just course, the deportation rather than
prosecution.
Attorney General Gonzales. I presume he's not an American
citizen?
Mr. Berman. That's right.
Attorney General Gonzales. I'd be happy to do that. I
believe that we also, I think, have an office in the Department
that focuses on this issue, but I'd be happy to look at----
Mr. Berman. I don't mean so much even you personally, but
if the Justice Department could sort of get back to us about
why we're pursuing it that way.
Now, turning to the most important issue America faces
today, which is the protection of intellectual property. The
October 2004 report of the Department of Justice's Task Force
on Intellectual Property recommended that the FBI increase the
number of special agents assigned to intellectual property
investigations. Have the Department of Justice and the FBI
implemented this recommendation from 2004? If not, why not? If
so, how many special agents are now assigned exclusively to
intellectual property investigation, and where are these
special agents deployed?
Attorney General Gonzales. I believe all the
recommendations have been adopted. Congressman, I don't know
the specific numbers in terms of the increase in the FBI
agents. Let me get that information for you.
Mr. Berman. Fine, I would appreciate that. Next in that
area, the Department has stated there is concern over the
growing emergence of organized crime and intellectual property,
especially domestic and overseas hard disc piracy involving
counterfeit CDs, DVDs, computer software and video games. Does
the Department have a comprehensive long-term plan for
combatting the emergency of organized crime and intellectual
property theft?
Attorney General Gonzales. Well, we're focused on,
generally, on the issue of enforcement of intellectual property
rights, the protection of those rights. And you are correct,
there is a concern that it is a source of revenue for organized
crime, and we have created, as you probably know, we have these
CHIP units in various U.S. Attorney's Offices around the
Country. I can't remember the exact number that we have today,
but we are going to expand that number, and these are specially
dedicated Assistant U.S. Attorneys focused on prosecution of
those engaged in the violation of intellectual property laws.
We are also, of course, in constant communication with our
counterparts overseas. As I indicated in response to an earlier
question, this is the kind of issue, quite frankly, I cannot be
successful dealing with without the assistance of my
counterparts overseas, particularly in areas like China, and so
we--this is a topic that is always on my agenda when I go
overseas, is talking about what we're doing to protect
intellectual property rights, asking what they're doing, seeing
if there are ways that we can work together to deal with this
issue. We've had success, we've had takedowns worldwide
involving intellectual property theft, and so we've made
progress, but clearly a lot more needs to be done.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman.
President Bush instructed you to conduct an investigation
into the disclosure of classified information that appeared in
the New York Times story back in December regarding the NSA spy
program. Is that accurate?
Attorney General Gonzales. There is an ongoing
investigation.
Mr. Delahunt. How many investigations into the disclosure
of classified information is the Department of Justice
conducting now? If you don't know a specific number, do you
have a range?
Attorney General Gonzales. I don't know the specific
number, Congressman, and as you know, as a matter of policy, we
normally would not confirm the existence of investigations.
Mr. Delahunt. Is it fair to say there's more than one
ongoing?
Attorney General Gonzales. Unfortunately, there is leaking,
unauthorized leaking of classified information that has
occurred.
Mr. Delahunt. I'm in the process now of compiling a list of
media reports that clearly include the disclosure of classified
information, and I would like to forward them to you and
receive some kind of response regarding what Justice is doing,
because I don't think we want to leave an impression that the
Administration is only interested in this specific case because
of possible political concerns about embarrassment, if you
will.
Attorney General Gonzales. Let me assure that if we can
prosecute leaking classified information, we will do so. Those
are typically hard to do, but they're important.
Mr. Delahunt. Great. And you indicated, I understand,
earlier, to Mr. Weiner, that the President has the authority to
disclose inherent in his presidential powers?
Attorney General Gonzales. That was my statement.
Mr. Delahunt. There's a story out today--and I'm not going
to ask you to comment in terms of the specifics, but let me
read into the record. This is from the New York Sun: ``A former
White House aide under indictment for obstructing a leak probe,
I. Lewis Libby, testified to a grand jury that he gave
information from a closely-guarded 'National Intelligence
Estimate' on Iraq to a New York Times reporter [in 2003] with
the specific permission of President Bush, according to a new
court filing from the special prosecutor in the case.''
``Mr. Libby is said to have testified that 'at first' he
rebuffed Mr. Cheney's suggestion to release the information.''
Presumably there was a conversation between them. I'm not
commenting on the veracity with the reporters. ``Mr. Cheney
subsequently said he got permission for the release directly
from Mr. Bush. Defendant testified that the vice president
later advised him that the president had authorized defendant
to disclose the relevant portions. . .''
``Mr. Libby told the grand jury that he also sought the
advice of the legal counsel to the vice president,'' Mr.
Addington, ``who indicated that Mr. Bush's permission to
disclose the estimate ''amounted to a declassification of the
document,``'' according to the new court filings.
This is, obviously, a piece of news that I find
interesting, to say the least. Do you have authority to
declassify, you in your role as Attorney General?
Attorney General Gonzales. It would depend on the
information that we're talking about.
Mr. Delahunt. Does the Vice President have the authority,
independently of the President, to declassify?
Attorney General Gonzales. He might have--again, depending
on the circumstances, yes.
Mr. Delahunt. Is there any mechanism that's available that
would inform the American people that classified information
has been declassified by the President or by the Vice
President?
Attorney General Gonzales. I don't know that there is or I
don't know if there isn't, Congressman.
Mr. Delahunt. Because I would suggest that the American
people ought to be informed that information can be disclosed
to the media outlets by the President, and it does not violate
any laws, but it certainly would improve their understanding of
the news and the information, that if it was attributed to the
President. So I would ask you to reflect on that, and I'd be
interested in a list of those cabinet-level officials, who on
their own authority, have the authority to declassify. I think
it's an area that really needs some review.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentlewoman from Florida, Ms. Wasserman Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
Mr. Attorney General, my colleague from Florida,
Congressman Wexler, engaged you in a line of questioning
related to emergency contraception, and I know you indicated
that you didn't know the answer to his question and you'd have
to get back to him. Do you just not have the information
available to you, or do you have absolutely no knowledge of the
omission of emergency contraception?
Attorney General Gonzales. I don't have the information
available to me.
Ms. Wasserman Schultz. Do you not even have any knowledge?
Attorney General Gonzales. I do have knowledge, yes.
Ms. Wasserman Schultz. Not knowledge that you can share
with the Committee here?
Attorney General Gonzales. Before responding to that
question, I want to make sure I have the most current and
accurate information. I think it's only fair to the Committee
that I provide to you the most complete answer that I can.
Ms. Wasserman Schultz. Okay. Well, if you could get that
information to us, that would be extremely helpful.
My question is related to terrorist access to guns. The GAO
report entitled Gun Control and Terrorism, FBI could better
manager firearm-related background checks involving terrorist
watch list records. That report indicated that a total of 47
firearms were purchased over a 9-month period in 2004 by
individuals that were designated as suspected or known
terrorists by the Federal Government, and the GAO went on to
determine that with regard to such purchases, DOJ's information
sharing procedures failed to ``address the specific types of
information from NICS's transaction that can or should be
provided to Federal counterterrorism officials or the source
from which such information can be obtained.'' In response to
the GAO report you announced the formulation of a working group
which began meeting in March of 2005.
My questions include: In your personal opinion, should
individuals listed on the terrorist watch list be permitted to
purchase firearms? And could you give us an update on the
number of firearms that have been purchased by individuals that
are included on the terrorist watch list since the conclusion
of the GAO report?
Attorney General Gonzales. I don't know the answer to your
last question. With respect to your first question, what I will
say is I don't think terrorists should have access to weapons,
and I think we can all agree on that.
Mr. Lungren. It's a breakthrough in this Committee.
Ms. Wasserman Schultz. Well, it appears that you differ
with the opinion of the other Members of the Committee on the
other side of the aisle.
Chairman Sensenbrenner. The Committee will be in order.
Mr. Lungren. Will the gentlelady yield on that?
Ms. Wasserman Schultz. No. I only have 5 minutes.
Mr. Lungren. Well, you ascribe certain things to this side
of the aisle. It would be nice to----
Ms. Wasserman Schultz. Mr. Chairman, I think the floor is--
--
Chairman Sensenbrenner. The floor belongs to the
gentlewoman from Florida.
Mr. Nadler. Mr. Chairman, could she be credited with the
time that was just taken from her?
Chairman Sensenbrenner. She gets a bonus of 15 seconds.
Ms. Wasserman Schultz. Thank you very much, Mr. Chairman.
Attorney General Gonzales. The issue, of course, is that
Congress decides the disabilities as to what would prevent
someone from having access to a firearm. We have been working
on this issue to see what kind of legislation may be
appropriate and helpful, and I'm told that that work has not
yet been completed, I regret to say. But it's not yet been
completed. In the interim----
Ms. Wasserman Schultz. General Gonzales, the working
group's been meeting since March 2005. It's now April 2006.
Attorney General Gonzales. Believe me, I understand that. I
can say, however, we do have a procedure in place implemented
by the Deputy Attorney General, whereby that if in fact there
is an attempt to purchase a weapon, and someone appears on the
violent gang or terrorist group list, that there is a slight
delay of approval, so that gives Federal officials an
opportunity to talk with State officials to see whether or not
there's additional information that would satisfy one of the
disabilities that Congress has placed into the law.
So we've tried to establish sort of a stopgap measure, but
it's an issue we're still working on.
Ms. Wasserman Schultz. General Gonzales, since you
indicated that you don't think that terrorists or suspected
terrorists should have access to firearms, would you support
legislation that would specifically prohibit terrorists or
suspected terrorists from having access to firearms? Because I
know you previously said that you needed to get back to my
colleague from Maryland on that, and we have not heard back
from you on that.
Attorney General Gonzales. I would like to look at that.
Let me----
Ms. Wasserman Schultz. Are you still looking at it, General
Gonzales, because you've already told that several months ago
to my colleague.
Attorney General Gonzales. I'm waiting for the work of the
working group within the Department of Justice. Now let me
just----
Ms. Wasserman Schultz. How long is too long, 13 months?
Attorney General Gonzales. Let me give you an--I agree, I'm
frustrated as well. But let me give you an example of why that
may be problematic. We may have information about someone that
we honestly believe is a terrorist. We may think that they may
be involved in some kind of terrorist plot. As part of that
plot, they may be wanting to purchase a weapon. We may want
them--we may have them under complete surveillance, and we may
be okay with him purchasing that weapon because it may lead us
to other----
Ms. Wasserman Schultz. General Gonzales, can I just stop
you for 1 second before you go on? Because under current law we
prohibit firearm sales to anyone suffering from a drug
addiction. They don't even have to have been convicted of
anything, and we prohibit firearm sales to them. Also, limited
on mere suspicion, we limit an individual's ability to even get
on an airplane if they're on the no-fly list, so why wouldn't
we pass along--why can't you unequivocally say that you support
a law that prohibits suspected terrorists from possessing
firearms? That seems like a no-brainer.
Attorney General Gonzales. Well, I'll stand by my earlier
statement about terrorists shouldn't have access to weapons.
Chairman Sensenbrenner. The time of the gentlewoman as
extended has expired.
Gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Gonzales, did you not answer the question that you
support or oppose legislation prohibiting those on the
terrorist watch list from purchasing firearms?
Attorney General Gonzales. Again, Congressman, I would
focus on not people on the list, per se, but terrorists. I mean
I think we can all agree that if you're a terrorist, we ought
to certainly make it as difficult as possible to have weapons.
Mr. Scott. Well, would you do that by legislation? Do you
support legislation to actually do that?
Attorney General Gonzales. Be happy to consider the
legislation.
Mr. Scott. Consider it, okay. Did I understand you to say
that ``reasonable cause to believe'' and ``probable cause''
were essentially the same thing?
Attorney General Gonzales. From the way that this program
has been operated, yes, that it is a probable cause standard
that's being applied with respect to the terrorist surveillance
program, consistent with the jurisprudence relating to probable
cause in the normal criminal law context.
Mr. Scott. My question was ``reasonable cause to believe''
and ``probable cause'' are essentially the same standard; is
that what you----
Attorney General Gonzales. Well, what I said was it that
standard we use is ``reasonable grounds to believe.'' That's
the standard that is applied by the career professionals.
Mr. Scott. Is there a difference between ``reasonable cause
to believe'' and ``probable cause?''
Attorney General Gonzales. From my perspective, it is the
same standard.
Mr. Scott. I asked you before, you know, we don't know what
this NSA wiretap thing is, so we're kind of playing 20
questions here. We know there are no checks and balances. I
asked you if the wiretap target was individually considered and
individually selected. Would that rule out mass recording of
calls where they may be law-abiding citizens who are tapped as
part of the operation?
Attorney General Gonzales. Congressman, what I can say is
there's a lot of misinformation and disinformation in the media
about the scope of this program, and I'm only going to comment
on what the President's confirmed is what this program
includes, and I----
Mr. Scott. Well, we know it includes some things. We're
trying to play 20 questions back and forth to figure out what
it also might include. My question was, would it rule out mass
recording of calls where there may be law-abiding citizens who
are tapped as far as the operation, and you are not denying
that that may be part of the possibility?
Attorney General Gonzales. There is not mass--there is not
mass recording of phone calls.
Mr. Scott. Is it possible that whatever you've got going,
that innocent law-abiding citizens, who if you individually
considered the situation, you would not tap their phones?
Attorney General Gonzales. Well, each communication that is
surveilled is considered on an individual basis, based upon
information judged by a career professional out at NSA, that,
again, who is an expert in al-Qaeda communications, aims and
tactics, and believes that someone on this call is a member of
an agent of al-Qaeda or an affiliate terrorist organization.
Mr. Scott. And why couldn't you get a wiretap warrant? Why
couldn't you get a warrant through FISA if that was the
situation?
Attorney General Gonzales. I didn't indicate that we
couldn't get a warrant from FISA. What I indicated was, is that
we may be interested in the communication that may be about to
happen in a matter of hours, and it may not be possible,
because of the strictures of FISA----
Mr. Scott. No, we've been through that, because you can get
an after-the-fact warrant.
Attorney General Gonzales. But that's not--sir, that is a
misconception that people have about FISA and the emergency
authorization under FISA. It is true that I can authorize
electronic surveillance for a period of 72 hours before we
submit an application to the FISA Court. But I have to be
satisfied, when I give that authorization, that every
requirement under FISA is going to be satisfied, and is
satisfied at the time I give my oral authorization.
Mr. Scott. Let met ask you another question. I got diverted
to another Committee, and when I left you had said that in Los
Angeles, that programs will be led by the U.S. Attorney, will
work with each State, loan and community partners to implement
all three pieces of this comprehensive anti-gang strategy. The
first is prevention. Did I understand that you agreed with the
statement that you should first bring down gang networks, deal
with those who are here illegally, then implement prevention
programs?
Attorney General Gonzales. No, that's not what I said. I
think that's an important component of dealing with gangs. And
it is my primary responsibility as the chief law enforcement
officer of the country to focus on enforcement. I think one of
the things----
Mr. Scott. I just have a couple of questions. I'm just----
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from Maryland, Mr. Van Hollen.
Mr. Scott. Can he continue answering the question he was
answering?
Chairman Sensenbrenner. If you would like to continue
answering the question.
Attorney General Gonzales. What was the question?
[Laughter.]
Mr. Scott. I yield back.
Chairman Sensenbrenner. Mr. Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman.
Let me just pick up very briefly on where my colleague from
Florida, Ms. Debbie Wasserman Schultz, left off. We did have
you, Mr. Attorney General, here I believe last summer, and I
asked you a question about whether you'd support legislation
that would prevent people who were on the watch list, terrorist
watch list, from obtaining a weapon. At that time you said
you'd get back to us. I think you can understand why people up
here get frustrated at times----
Attorney General Gonzales. I sure can.
Mr. Van Hollen [continuing]. With the lack of cooperation
with the Executive branch to hear that we--no, in this
particular instance, in any event, we would welcome a response
as soon as possible on that issue. After all, if you're on the
terrorist watch list you can't get on an airplane right now,
and it seems to me it doesn't make sense for you to be able to
drive to your local gun store and buy a couple--a lot of
weapons.
Let me just move on because I want to pursue Mr. Scott's
line of questioning and what I asked you a little bit earlier,
with respect to the standard that apply under the NSA
electronic surveillance and the FISA Court, because as I
understand what you're saying, is that the legal standard you
apply, in your opinion, is the same.
Attorney General Gonzales. But we have to remember
something. This is not probable cause that a crime has been
committed or probable cause that someone is guilty. And, of
course, even under FISA, that's not the standard. I mean the
standard in FISA is that there's probable cause that the target
is a foreign power or an agent of a foreign power, and probable
cause to believe that the facility which is being used or about
to be used, is being used or about to be used by a foreign
power or an agent of a foreign power.
Mr. Van Hollen. Right. I understand that. So FISA doesn't
require showing probable cause about a crime to be committed. I
understand that. That's why I'm saying you don't require that
in electronic surveillance. You want to have probable cause or
reasonable basis to believe that there's--that one party to the
phone conversation is a member of al-Qaeda or affiliated with
al-Qaeda, right?
Attorney General Gonzales. Yes.
Mr. Van Hollen. And as I understood your statement, you
know, the court is somewhat time consuming, you got to sign off
and be 100 percent sure that you meet that standard in advance,
and sometimes you need rapid response time. And my question is
this: we know that before 9/11 there were communications
between al-Qaeda agents here in this country. If the time is
the question, if the rapid response is the question, then for
the security of the American people, why wouldn't we want to
capture those conversations? Why when it comes to conversations
between two al-Qaeda folks in the United States are you willing
to take the extra time required and the extra risk to the
security of the country required, going to the court? If it's
just a matter of time, why aren't you taking this action?
Attorney General Gonzales. Well, we do use FISA with
respect to those kind of communications.
Mr. Van Hollen. But that takes you--according to your
testimony, that takes longer.
Attorney General Gonzales. Yes.
Mr. Van Hollen. And the added time, as I understand it, the
reason you've got to have this quick turnaround is for security
reasons, to be able to act quickly. And so if security is the
issue, why, for God's sakes, would we want to take greater
risks for communications within the United States than outside
the United States?
Attorney General Gonzales. That's simply the decision that
was made to limit this program to foreign communications, where
we believe one party is a member of al-Qaeda, and that we would
rely upon other authorities like FISA to surveil communications
such as domestic communications here in the United States. I
can't give you a better answer than that, sir.
Mr. Van Hollen. Well, let me just say, because this gets
back to the question of whether this program's been authorized,
and I'm trying to figure out how, as you said earlier, it was
this collective decision, how people came to the decision that
Congress wouldn't authorize exactly what we're talking about? I
mean what was the debate back and forth? I think on a
bipartisan basis, you have a vote if people had reason to
believe, probable cause to believe that one party of the phone
conversation was al-Qaeda or a member of al-Qaeda, that we
would allow an expedited process?
Attorney General Gonzales. What I said was, is that it
wouldn't be approved--we wouldn't be successful in that effort
without compromising the effectiveness of the program. The very
fact that we're talking about this, and have been talking about
this for months, the intelligence experts say that al-Qaeda,
they can already see the way--changes in the way they
communicate with each other, because they now know we have this
capability. And so we can all agree this is a great program and
we need to be doing it, but because we're now talking about it,
and because the legislative process is such that people are
going to be talking about what the legislation should or should
not be, it informs our enemy about the tactics that we use to
engage in surveillance.
Mr. Van Hollen. If I might, Mr. Attorney General, as I
understood your testimony here, there's not additional
communications that we're now able to intercept, because that
was just a question of a timing on the FISA Court. But now, in
other words, they're not different in nature, and so it seems
to me that anyone operating as an al-Qaeda member had to
presume, prior to the disclosure of this information, that
their phone conversations were being recorded.
Attorney General Gonzales. You can assume. This is a----
Mr. Gohmert [Presiding]. The gentleman's time has expired.
You can answer the question.
Attorney General Gonzales. This is a very patient and very
smart enemy. However, we know that from their conversations
that they sometimes get lazy and they sometimes get careless.
They're less likely to be careless and less likely to be lazy
if every day they are hammered by the fact in the press that
we're doing this.
Mr. Gohmert. The Chair recognizes the gentleman from North
Carolina, Mr. Coble, for 5 minutes.
Mr. Coble. I thank the Chairman.
Good to see you again, Mr. Attorney General. The gentleman
from California, I yield to you.
Mr. Lungren. Thank you very much. Just to set the record
straight, so that people understand what we're talking about,
the Attorney General, in response to the question, mentioned
that we could all agree that terrorists ought not to have
weapons, and then people took a leap of faith to suggest that
if you don't suppoPrt prohibiting that from people who are on
the terrorist watch list, you therefore are supportive of
people who can't have--people who are terrorists having
weapons. And the statement was made if you're on the terrorist
watch list you can't get on an airplane. Those are factually
inaccurate. There is a no-fly list, and there is a terrorist
watch list. One is much more exclusive than the other. One does
not allow you to fly. The other one allows for secondary
searches and also informs people, presumably within the
Government, of an identification if an individual may be on
that list.
So let's not play fast and loose----
Mr. Van Hollen. Would the gentleman yield on that point?
Mr. Lungren. No. I was refused an opportunity to yield.
Mr. Van Hollen. Well, you're suggesting--now you're
suggesting people are playing fast and loose, but you're not
willing to yield. That's fine.
Mr. Coble. I still control the time.
Mr. Lungren. One of the things that really surprises me is
the lack of comity in this place in the absence of 16 years. If
one is going to make statements with respect to other Members
about what they say or how they voted, it ought to be presumed
the Committee would allow a person to respond to that. I'm now
setting a record straight based on what was misstated on the
other side about positions held here. The fact of the matter
is, if you want to act in the absence of information or act out
of ignorance, you are certainly welcome to do that. But to
mischaracterize what facts are on a record, it seems to me to
be inappropriate, and we ought not to allow the American people
to believe that certain things are being done that subject them
to more threat from terrorists because of unreasonable
positions, when that in fact is not the case.
So a little attention to detail, and a little attention to
the facts, presumably might help us to reach on occasion more
bipartisan responses to very difficult issues that we're all, I
hope, dedicated to dealing with. With that, I yield back to the
gentleman from North Carolina, and I thank him for the time.
Mr. Coble. And I yield back my time.
Mr. Gohmert. The gentlewoman from California, Ms. Sanchez.
Ms. Sanchez. Thank you.
Mr. Attorney General, I have a deep concern about several
issues with the DOJ, but one is regarding a series of articles
last fall in the Washington Post, detailing the politicization
of decisionmaking in the Civil Rights Division, in the voting
section in particular, and this series of articles detailed how
the Republican political appointees overruled decisions that
were made by career attorneys when it came to authorizing the
pre-clearance of election procedures, specifically two cases,
the voter ID law in Georgia, and the redistricting map drawn by
Representative Tom DeLay in Texas, even though those changes
discriminated against minority voters in violation of the
Voting Rights Act.
In the Georgia ID case, for example, four of five lawyers
and analysts working on that case made a recommendation to deny
pre-clearance of a law, and in the Texas redistricting case,
six career attorneys, two career analysts, and Joseph Rich, the
Voting Section Chief at the time, made a recommendation to deny
pre-clearance of the law.
My question to you is, are there guidelines for making an
ultimate decision on a particular case of pre-clearance at the
DOJ, because I'd like to know what guidelines exist at the DOJ
that would allow a political appointee to overrule a unanimous
or near-unanimous recommendation made by Civil Rights Division
experts in those two cases?
Attorney General Gonzales. Congresswoman, first of all, let
me respectfully disagree with your characterization that we
have authorized conduct that would discriminate against
minority voters in violation of the law. Quite the contrary, in
Texas, this matter has been litigated, and certainly, at least
to the Circuit Court level----
Ms. Sanchez. I was going to say, is it not pending before
the Supreme Court?
Attorney General Gonzales. But the latest word on this
matter is, is that the decisions by the Texas officials is in
fact lawful, so, obviously, the Supreme Court is going to have
the final say on that.
With respect to Georgia, respectfully, the top career
person in the Civil Rights Division pre-cleared that case. And
I visited with Congresswoman Waters about this. There may have
been disagreement amongst other members of the career staff,
but the top career lawyer in the Civil Rights Division pre-
cleared that. And at the end of day, of course, political
appointees are nominated by the President and confirmed by the
U.S. Senate to exercise their own independent judgment.
There have been stories which have troubled me about the
politicization of the Civil Rights Division. This is something
that troubles me as a Hispanic in particular. I've had numerous
conversations with Wan Kim, the Assistant Attorney General for
Civil Rights. I believe he's dedicated to ensuring that the
guidelines that we follow is the law. Those are the guidelines
that we follow.
Ms. Sanchez. I want to take issue with you about one thing.
Number one, the redistricting case is currently pending
decision in the Supreme Court. But if I'm not mistaken, the
Georgia District Court likened the ID case requirement to a
poll tax, and if that's--a poll tax is not a violation of civil
rights, then educate me, because I was under the impression
that it was.
Attorney General Gonzales. Well, except what was considered
in that litigation is different than what we have to consider
as a Department in terms of pre-clearance under section 5. So
it's like comparing apples and oranges.
Ms. Sanchez. But your statement was that it wasn't in
violation. In terms of pre-clearance--what I'm really trying to
get at is what are the guidelines? Who makes the ultimate
decision? I mean are the career attorneys and the analysts with
the most number of years of experience allowed to make those
decisions, or can they be overridden by political appointees?
Attorney General Gonzales. We--you know, I am ultimately
responsible for all the decisions within the Department of
Justice, and----
Ms. Sanchez. So you agree with the two decisions in the
pre-clearance.
Attorney General Gonzales. I stand behind the decisions
coming out of the Civil Rights Division, because I'm the
Attorney General and I stand behind those decisions.
Obviously, we take very seriously, and value--we take
seriously the advice of career officials. We value their input.
We value their experience and their role in making
recommendations, but we are charged, we're the ones, with
making the ultimate decision. Now, and the fact that there may
be disagreement, as I indicated before, doesn't mean that the
decision was the wrong decision. Sometimes these can be
complicated issues. They're highly politically charged. They
can be emotional issues. People may disagree as lawyers. That's
what lawyers do, as you know, we disagree. But ultimately
someone has to be responsible for that ultimate decision.
Ms. Sanchez. And so you're assuming the responsibility and
you're standing by those two decision to go----
Attorney General Gonzales. Stand by those two decisions,
yes, ma'am.
Chairman Sensenbrenner [Presiding]. The time of the
gentlewoman has expired.
The gentlewoman from California, Ms. Waters.
Ms. Waters. Thank you very much.
There have been several attempts to talk with you about the
Civil Rights Division, and I'd like to continue with that, just
read you something that was prepared for me.
The past year, 20 percent of the Civil Rights Division's
career lawyers have resigned, many in protest over what they
allege to be the Administration's neglect of civil and voting
rights enforcement. Their claims are supported by the Justice
Department's own statistics. In the past 5 years, the
Division's racial and gender discrimination caseload had
dropped 40 percent. During that same period the Division has
filed only 3 cases under section 2 of the Voting Rights Act,
the provision that prohibits States and municipalities from
enacting voting practices or procedures that discriminate on
the basis of race, color or membership in a covered language
minority group, all of them in 2005.
This drop in section 2 enforcement comes at a time when
there are conservative voter integrity initiatives aimed at
purging African Americans from the voter rolls and intimidating
Blacks at the polls are on the rise.
I took a look at the three cases that were filed, and found
some information. The Bush administration has filed only three
lawsuits, all of them this year, on this section of the Voting
Rights Act that prohibits discrimination against minority
votes, and none of them involves discrimination against Blacks.
The initial case was the Justice Department's first reverse
discrimination lawsuit, accusing a majority Black county in
Mississippi of discriminating against White voters.
Now, Mr. Attorney General, the stories are rampant about
the Division that's going on between the Civil Rights Division
and the appointees. November 13th, an article in the Washington
Post; November 17, December 2nd, and February 2005. It's
something going on. What do you have to say for what I just
read?
Attorney General Gonzales. I don't know whether or not all
these stories were written by the same reporter for the same
paper. Were they, if I may ask the question?
Ms. Waters. I don't know.
Attorney General Gonzales. Well, let me give you a few
numbers of my own. The Department's Civil Rights Division
prosecuted a record number of criminal civil rights cases in
the last 2-year period. We have doubled the number of
trafficking defendants charged, increasing the number of
trafficking lawsuits filed by over 30 percent, and we've
secured more convictions against human trafficking defendants
from '04 to '05. We've created 12,000 new housing opportunities
for people with disabilities in----
Ms. Waters. Excuse me. May I interrupt you? Is it true that
you have filed only three lawsuits, all of them this year, on
the section of the Voting Rights Act that prohibits
discrimination against minority voters, and that none of them
were against Blacks, discrimination against Blacks, and did you
have one case that was a reverse discrimination case in a Black
county against White voters? Is that statement true?
Attorney General Gonzales. I think the last statement is
true. I don't know the answer to the first----
Ms. Waters. You don't know how many lawsuits you have filed
under this section of the Voting Rights Act?
Attorney General Gonzales. No, ma'am, I don't, but we can
certainly----
Ms. Waters. You have some people here with you. Turn around
and ask them.
Attorney General Gonzales. We'll find out.
Ms. Waters. Nobody knows. That's a lot of personnel years
over there for none of you to know----
Attorney General Gonzales. We can provide you the
information, Congresswoman.
Ms. Waters. Well, you know, that's why we want you here. I
mean I don't want it in secret. I want it in public. You know,
I want everybody to know that you----
Attorney General Gonzales. Well, can I finish my numbers?
Ms. Waters. Yes.
Attorney General Gonzales. We filed more cases under the
minority language provisions of the Voting Rights----
Ms. Waters. Well, I know you did, but I didn't ask you
about that.
Attorney General Gonzales. No, ma'am, but I think----
Ms. Waters. No, no, no, this is my dime.
Attorney General Gonzales. Yes, ma'am.
Ms. Waters. All right. So, having asked you that, what
about these lawyers that have quit in the Civil Rights
Division, and some of them wanting to go public because they
think what you are doing is not right? Have you heard about
that?
Attorney General Gonzales. I'm aware of these stories,
which I think were written by one reporter for one paper. I do
know that there was a--I was asked a similar question in
another hearing, whether or not there was a concerted effort
within the Department to remove people from the Division. And I
advised that Member of Congress that there was an effort, as a
personnel move, to offer sort of buy-outs for everyone within
the Department meeting certain qualifications, certain
criteria----
Ms. Waters. Okay, I got that. Let me tell you what the Post
said. The Post has also reported that conflict between career
attorneys and political appointees extend to issues of
enforcement. Recent revelations about a series of voting rights
cases demonstrate that the appointees have redirected VRA
enforcement away from protecting Black voters and toward
advancing the interests of White Republicans.
What do you have to say about that?
Attorney General Gonzales. Disagree with that.
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
The gentleman from New York, Mr. Weiner.
Mr. Weiner. Thank you.
Mr. Attorney General, earlier today you said the President
has--and there's a quote--``inherent authority'' to decide who
in fact should have classified information. In your view of the
law, does he need to go through a declassification procedure or
simply giving out the information is an act sufficient under
his authority? Does he have to go through the formal process of
a declassification----
Attorney General Gonzales. As a general matter, I think the
President could decide to declassify information.
Mr. Weiner. Does he have to go through a process of
declassification? He can, by giving it to someone, in your
view, de facto, declassify it?
Attorney General Gonzales. I think the President could
decide what would be the appropriate method of declassifying
information.
Mr. Weiner. Is it your view that, as you describe, the
President has the inherent authority, does that extend to the
Vice President, in your view?
Attorney General Gonzales. I think I was asked that
question, and I'm not sure, and given my position of recusal in
this case, which I know these questions are related solely to
this matter that came out today, I'm not going to answer the
question.
Mr. Weiner. What troubles me though, Mr. Attorney General,
is this sounds vaguely evocative to someone who said when the
President does it, that means it is not illegal. That was
President Richard Nixon in explaining his behavior. And his
argument was that Executive authority essentially said anything
the President does de facto makes it legal.
And I'm concerned that by your explanation, the President
could theoretically see no limits on his ability to declassify
a document if he saw it was in the national interest. Is that
your view, even if it was not related to national security, he
just thought it would be a good thing for people to know? Is it
your view that he has the authority to take classified
information that he has access to, and theoretically you have
access to--you earlier said you have the highest authority, the
highest classification--is it your view that he has unfettered
authority under Executive privilege to release any document he
sees fit?
Attorney General Gonzales. Congressman, I've already
answered that question. I've got nothing to add on this.
Mr. Weiner. If you would humor me, I forget the answer to
it. Is your view that he has the authority to--you said earlier
that he could do it if he decided there was a national security
interest. Is that the only circumstance under which he can do
it?
Attorney General Gonzales. I've answered this question as
far as I can go, Congressman.
Mr. Weiner. Would you try it again for me? Would you humor
me by repeating the answer?
Attorney General Gonzales. I've answered the question.
Mr. Weiner. I don't recall the answer to the question. I'm
asking you again. Would you be so kind as to repeat your
answer?
Attorney General Gonzales. I've answered the question,
Congressman.
Mr. Weiner. Mr. Attorney General, I'm asking you a fairly
straightforward question. If you've already answered it, then
it's already on the record.
Attorney General Gonzales. Congressman, I stand by my
earlier answer.
Mr. Weiner. Okay. Your earlier answer seems to be, when the
President does it, that means it is not illegal. That is
exactly what President Richard Nixon said.
Attorney General Gonzales. I stand by my earlier answer.
Mr. Weiner. You have taken a position that essentially says
the President has the right to leak information whenever he
sees fit. He has the right, under your explanation, to give it
to the Vice President, and to have the Vice President hand it
off to his chief of staff to then leak it to a newspaper.
And I would say to you, you know, earlier today you also
said, in a question that I do have the answer records, is the
President covered under the same law that you and I are?
Attorney General Gonzales said, ``No, he's not.'' That was from
earlier today. That was an answer I did take note of. And I
think it's most troubling, and I think, frankly, that the crux
of the issue about so many of the cases that we deal today, is
the sense that you, on behalf of the Administration, and the
Administration itself, has a sense just like Richard Nixon did,
that if the President does it, it must make it legal. You're
not disputing that today. You've even gone on to repeat it a
couple of times. You said the President has inherent authority
to decide who in fact should have classified information.
You've said that he's not covered under the same law that you
and I are.
Indeed, Mr. Attorney General, he is covered under those
laws. He does not have the right to simply say, ``This is
information I think should be in the public domain for any
reason I see fit.''
Mr. Issa. Would the gentleman yield?
Mr. Weiner. It's my authority.
Mr. Issa. Would the gentleman yield?
Mr. Weiner. I will yield under only the circumstance that
the Attorney General repeats his answer to the question that I
missed.
[No response.]
Mr. Weiner. In that case, I will not yield.
This is the problem with the Administration today. And if
you think it's not cause for concern, I would just urge you,
Mr. Attorney General, to realize that I understand your
allegiance to the President, understand your allegiance to the
Administration, I understand your role here. But there's a
higher question that is at play here, and it is whether or not
the President is accountable to the same laws. The answer to
the earlier question, is the President covered under the same
law that you and I are, is, ``Yes, Congressman,'' not ``No.''
The answer is not the President has inherent authority to leak
classified information, it's ``Of course, he does not.'' The
answer is not, as Richard Nixon said, ``When the President does
it, that means it is not illegal.'' That is not correct. That
is an incorrect view not only of your job, not only of the
Constitution, but it's an incorrect understanding of the
fundamental underpinnings of our Constitution. That is why
you've heard so many concerns here today.
And, frankly, you know, to say as you have, that is the
President covered under the same law that you and I are? No,
he's not. The President has inherent authority to decide who in
fact should have classified information. And Richard Nixon, who
said, on May 20th of 1977, ``When the President does it, that
means it is not illegal.'' Mr. Attorney General, you are
incorrect.
Chairman Sensenbrenner. Time of the gentleman has expired.
Mr. Issa would like 5 minutes.
Mr. Issa. General Gonzales, I appreciate your staying with
us throughout the afternoon. I would have answered for the
gentleman from New York, the question, happily, except I'm not
any different than the gentleman from New York. I'm a Member of
Congress, a separate body, one that makes its rules
irregardless-if that's a word--of what the rules for the
judiciary may be, and regardless of what the rules for the
Executive branch is, and I certainly appreciate your
longstanding understanding of the separation of branches and
why we can make something classified or declassified, the
President can issue Executive Orders and he can change
Executive Orders, and I appreciate that.
Would you please enlighten me, since I wasn't able to hear
the rest of your statement of prosecutions and how this year
has gone in the enforcement of civil rights and other matters?
Attorney General Gonzales. I need to find it.
Mr. Issa. While you're finding that, I'd also like to thank
you for quickly recusing yourself and taking the lead on making
sure that there is a fair and impartial answer to the
gentleman's questions, because I think that sort of leadership,
and quickly, is very non-Nixonian. In the Nixon period in which
I enjoyed my youth, there was just the opposite. There was a
statement that nobody would answer, and everyone was above the
law, and I think this Administration, you in particular, have
never implied that in any way, shape or form.
Please continue.
Attorney General Gonzales. Thank you. Just three final
points and that is--and I may have made this first one--the
Civil Rights Division has filed more cases under the minority
language provisions of the Voting Rights Act in 2005, than in
any previous year. We've undertaken the most vigorous
enforcement of the language minority provisions of the Voting
Rights Act, its history, and the Civil Rights Division has
significantly increased the number of criminal lawsuits filed
against defendants charged with damage to religious property in
2005.
Thank you.
Mr. Issa. I'm not going to ask you to excessively comment
on this, but I have a copy of a piece from today related to
what Mr. Weiner was talking about, and I note that it says
``Vice President Dick Cheney's former top aide told
prosecutors''--and there's no parentheses, no quote--
``President Bush authorized the leak of sensitive intelligence
information about Iraq.''
Without accepting those words since they're not in
quotations, isn't it the obligation of the President, as the
Chief Executive and as the Commander-in-Chief, to make
determinations about what should or should not be made
available in order to create fear by our enemies,
misinformation, et cetera, and doesn't the President hold the
sole responsibility of deciding when to take those risks for
whatever purpose, and when to, for example, withhold
information for the same reason, that lives are at stake? Isn't
that inherently within the President's power?
Attorney General Gonzales. Well, of course, the President
does--he is the Chief Executive Officer of the United States.
He does have--he is the Commander-in-Chief. As part of that
responsibility also, as the inherent authority, he is the sole
organ for the United States with respect to foreign relations.
There are many responsibilities and obligations that stem from
those responsibilities, and, obviously, one of those is to
protect this country against our enemies.
This Congress, when it passed the authorization to use
military force, recognized that the President does have the
inherent authority under the Constitution--it is in the
preamble--and the authorization to use military force. The
President does have the authority--let me just quote from it--
``The President has the authority under the Constitution to
take action to deter and prevent acts of international
terrorism against the United States.'' Now, those words must
mean something.
We take the position that the President does have the
inherent authority, has been recognized by every court that's
looked at this issue to authorize electronic surveillance of
the enemy during a time of war.
Mr. Issa. Thank you. And I notice that my colleague from
California, Mrs. Waters, used the term ``reverse
discrimination.'' Isn't it fairer to say that the civil rights
statutes don't recognize reverse discrimination, only
discrimination regardless of the source?
Attorney General Gonzales. I would hope that Americans
would expect the Department of Justice to apply the laws
equally. If someone is being discriminated on the basis of
their color, that we should enforce the civil rights laws.
And let me just make one final point. Talking about the
rate of attrition, the rate of attorney attrition during this
Administration is almost identical. Less than 1 percent
different than during a comparable period of the prior
Administration. And so attrition does occur. It is part of the
normal life of an Administration.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentlewoman from California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman, and Mr. Attorney
General.
I'd like to return to the NSA discussion. Well, before I
do, let me just make an observation, something you said earlier
in response to a question, that the PATRIOT Act wasn't just
about our fight against terrorism and the war, it was even in
times not a war. And I couldn't help but remember being in this
very room in the days after the 9/11 attack, sitting at the
table where you're sitting now, with the Viet Dinh, and working
through this. And I'll tell you, everything we were told at
that time and everything we've been told since was that the
motivation and the reason for the PATRIOT Act was to fight
against terrorism, not a general crime statute. So I just think
that statement struck me as extremely odd.
But I want to talk also about the rule of construction. We
passed the authorization for the invasion of Afghanistan. I
voted for it. But the FISA statute has a specific provision
that discusses how to proceed after the Congress has declared
war. And it seems to me, as an ordinary rule of statutory
interpretation, that the specific takes precedence over the
general. I don't want to get sidetracked on that because I have
some specific questions.
First, under CALEA, communications providers are required
to provide standard interfaces to law enforcement agencies for
wiretapping. Are these the same interfaces NSA is using to
conduct surveillance under this program? What other interfaces
or accesses has the NSA been provided by communications
providers? Or if that is a classified matter, could you just
say so and we'll pursue it in proper format.
Attorney General Gonzales. Respectfully, Congresswoman,
that is an operational detail that I cannot discuss.
Ms. Lofgren. All right. Let me talk about--it's my
understanding, and all the Committee really knows is what we
read in the newspapers, which I think is actually a pretty sad
commentary on the lack of the partnership that we should have
on this fight, the legislative and the Executive branch
together on this. But in any case, it's my understanding from
press reports that in 2004 the FISA Court insisted on a process
where information from warrantless NSA intercepts would be
tagged, so as to not leak into the FISA warrant process. The
press reports further indicate that because of problems with
this tagging process, some intelligence, nonetheless, did lead
through to the FISA Courts warrant process.
What processes do you have in place to sequester
information gathered under this program and to keep it from
being used to develop warrant requests?
Attorney General Gonzales. Again, Congresswoman, that is
information that I'm not at liberty to discuss, certainly not
in this setting. But I can say----
Ms. Lofgren. That strikes me as very odd.
Attorney General Gonzales. Let me just say this. We have a
very good relationship with the FISA Court, and it is important
for us that the FISA Court have confidence in what we're doing,
that they have confidence in the applications that we submit,
that they have confidence in the representations that we make
to the Court, and so, despite all the revelations that have
occurred--and of course, now I'm speaking on behalf of the
Court and maybe I shouldn't be doing that--but to my knowledge,
I think the Court is comfortable with what the Department is
doing.
Ms. Lofgren. Well, I don't know, and apparently we can't
discuss that. But I'd like to know, if you're able to tell us
this, how many prosecutions have involved intelligence gathered
under this program, either directly or indirectly?
Attorney General Gonzales. I'm sorry. I can't----
Ms. Lofgren. You won't tell us that either?
Attorney General Gonzales. But let me just--but let say
this, and I think this is important, and hopefully, it will be
helpful to you. Let me just quote for you----
Ms. Lofgren. My time is almost up, so you can give me what
you would quote, and I promise I'll read it. I just would like
to mention that under--you said that whatever is incident to
conducting war, the President can do under his war powers
authority without regard to statutes, is essentially what
you've said.
Attorney General Gonzales. That's what the Supreme Court
said.
Ms. Lofgren. And in your 43. So which of the following
things would be incident to conducting war? Shooting people,
taxing them in their homes or on the street, putting them in
POW camps; are all of those things incident to war?
Attorney General Gonzales. I think we'd have to look at
what has occurred in the past in connection with conflicts. Let
me just says--well----
Ms. Lofgren. Just a final thing. I do appreciate you being
here. This is a long day for you as well as for us, but I have
a great deal of frustration. You have a job to do, but the
Congress has a job to do, and we have been denied the
opportunity to do it, and I thank you.
Chairman Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman.
And, again, General Gonzales, I thank you for your due
diligence and patience before this Committee and the time that
you've committed to this cause that we have. I wonder if we
could return for a moment to section 203 of the Voting Rights
Act, and maybe explore another aspect of the Voting Rights Act
that we didn't get to earlier today. And that would be--and I'm
speaking off the top of my head without notes with regard to
the language that's in there--but as I recall, that when a
language-deficient population is identified within a voting
district, and I believe in one of those definitions it's a
universe of 10,000 language deficient---then that would be the
trigger that would set up the requirement for bilingual or
multilingual ballots----
Attorney General Gonzales. I think it's 10,000 or 5 percent
or something like--I too don't have the exact language in front
of me.
Mr. King. Conceptually we're on the same page, I'm
confident. So I would submit then that if there were 9,999 in
that universe, or 5,000 or 1,000 or 500 or 1, are those
people--are they afforded equal protection under the law, under
the 14th amendment, or how do we ever provide for equal
protection under the law if we set numerical standards for
preferences in that regard?
Attorney General Gonzales. That's an interesting question,
Congressman. It's not one that I have thought about, and it's
the kind of question that before providing you an answer as to
whether or not we've got an equal protection problem on a
statute that's been passed by Congress, it would be one that I
would like to talk to others in the Department about.
Mr. King. Well, thank you, and I will submit that question
in writing. And as I listen to this discussion----
Chairman Sensenbrenner. Without objection, the question and
the written response will appear in the record, and all Members
may, without objection, submit questions of the Attorney
General for a written response. In order to get this record to
the printer, I would ask that this all get wrapped up by the
1st of May, however, which means the questions should come
within the next 4 or 5 days.
Continue.
Mr. King. Thank you, Mr. Chairman.
And as I listened to this discussion here, and particularly
the remarks made by the gentlelady from California, Ms.
Sanchez--and I believe the number that she gave was almost half
of the people that applied to register to vote were denied, and
I believe the number she gave was 43 percent. And as I listen
to that, I speculate as to what percentage of those people
might be illegal that are applying to vote and being denied in
that fashion. I won't ask you to speculate on that, but I just,
if I could read from the, actually read from the 14th
amendment. And there is a provision in here that we don't
discuss very much in this Congress: Representatives shall be
apportioned among the several States according to their
respective numbers, counting the whole numbers of persons in
each State. And I'll paraphrase a little bit. And for the
elections--and it lists mostly Federal election but also
included the State legislature--if that right to vote is denied
to any of the male inhabitants of such State--and I suspect
that has been corrected by a subsequent amendment so that it is
male and female, and those of age--the basis of representation
therein shall be reduced in the proportion of which the number
of such citizens shall bear to the whole number of citizens in
the respective district. That's a paraphrase of section 2 of
the 14th amendment.
So I would submit this question. As I look at the polls
that come back across the 435 congressional districts in
America, and I see that I need to be able to garner one more
than about 240,000 votes in order to win an election, there are
a couple of seats in California that don't garner perhaps even
25,000 votes in order to win an election. I speculate partly on
that testimony, or partly on the question oft gentlelady from
California, that there are quite a lot of illegals in those
districts. They are counted for redistricting purposes, and the
representation of the illegals within those districts are
voiced here in Congress by people who only need 25,000 votes to
win a seat. And I'd ask you, is that section 2 of the 14th
amendment then, would that apply so we could correct that by an
interpretation of the Constitution, or do you believe we need a
constitutional amendment to correct that huge inequity that we
have?
Attorney General Gonzales. Honestly, Congressman, I don't
know. But I mean you've raised, obviously, some thoughtful
questions, and I'd be happy to look at it and give you my
views.
Mr. King. Thank you, General Gonzales, and I will reserve
the balance of my questions and put those in print as well, as
directed by the Chairman. And I thank you, and I yield back the
balance of my time.
Chairman Sensenbrenner. Gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you.
Mr. Attorney General, the President has stated repeatedly,
and you have too, that we are using warrantless wiretaps only
to wiretap the conversation where one party is a terrorist or
suspected to be a terrorist abroad. Given that, can you assure
us that no warrantless surveillance is being done in cases
where if you had all the time in the world, you could not get
a--in your opinion, you could not get a warrant from a FISA
Court?
Attorney General Gonzales. I don't have that information.
Mr. Nadler. Thank you. Number 2. Can you assure us that
there is no warrantless surveillance of calls between two
Americans within the United States?
Attorney General Gonzales. That is not what the President
has authorized.
Mr. Nadler. Can you assure that it is not being done?
Attorney General Gonzales. As I indicated in response to an
earlier question, no technology is perfect.
Mr. Nadler. Okay.
Attorney General Gonzales. We do have minimization
procedures in place----
Mr. Nadler. But you're not doing that deliberately.
Attorney General Gonzales. That is correct.
Mr. Nadler. Thank you. Now, despite the efforts of many
Members of Congress, as you know, there is no public reporting
requirement on the number of national security letters issued
every year, and there has not been a official accounting from
your Department on their use. In November of last year we
learned from the Washington Post, they said that about 30,000
national security letters are issued every year. Are they
within the ballpark; is this approximately true?
Attorney General Gonzales. Quite frankly, sir, I don't
know. We do send classified reports to Congress regarding our
use of----
Mr. Nadler. Can you get back to us in unclassified as to
roughly how many are issued?
Attorney General Gonzales. I'd be happy to consider your
request, sir.
Mr. Nadler. Is there any reason why you couldn't make
public the number of NSLs that have been issued every year or
two?
Attorney General Gonzales. I can't think of a reason off
the top of my head, but, there's a reason they're classified
and----
Mr. Nadler. Well, if you can't back to us with those
numbers, could you get back to us with a reason why you can't?
Attorney General Gonzales. That's fair enough.
Mr. Nadler. Thank you. Secondly, I have a question about
the practice of extraordinary rendition, particularly rendition
to repressive countries we know practice torture. There's one
widely publicized case that illustrates the issue. A Canadian
citizen, Mr. Arar, was detained in 2002 at JFK Airport in New
York as a suspected terrorist. He was on his way home to
Canada, changing planes at Kennedy. He was grabbed by CIA
agents, I gather, secretly deported to Syria where he endured
10 months of torture in a Syrian prison.
After the Syrians determined that he didn't know anything
about terror, they released him. Upon his release, he declared
at a news conference that he had pleaded with U.S. authorities
to let him continue on to Canada, where he has lived for over
15 years, and his family, but instead, he was flown under U.S.
guard to Jordan, and handed over to Syria, where he had been
born, and where he was then tortured.
Does the United States Government claim the authority to
kidnap anybody at a U.S. airport, and without any
administrative or judicial process of any sort, put that person
on a plane to a torture-practicing nation? We do not claim that
authority or we do?
Attorney General Gonzales. We have international
agreements, which we are a party to, where the United States
has agreed, has committed, that it will not render someone to
another country, where we believe it's more likely than not----
Mr. Nadler. Well, do we claim the authority to render
someone to another country--let's assume we believe they're not
going to use torture--by what right do we--legal right, do we
pick someone up at an airport and deny him the right to
continue to Canada which is where he's a citizen of, and send
them to Syria without any kind of administrative or judicial
process?
Attorney General Gonzales. Well, I'm not comment as to what
actually may have happened or may not have----
Mr. Nadler. Do we claim the right to do that? Whatever
happened in that case, is that something we claim the right to
do?
Attorney General Gonzales. I don't know, but I would be
happy to get back to you on that.
Mr. Nadler. You don't know if we claim the right to do that
because the Government defended that in court, your Department
defended that in court.
Attorney General Gonzales. Before I comment any further on
that, Congressman, I'd like the opportunity to get back to you.
Mr. Nadler. Okay. And let me further ask, since we have
done this, and since your Department has defended this in
court, specifically in the Eastern District, is this practice
limited only to airports, or do we claim the right to take
people going about their business, walking on the street,
grocery shopping, window shopping, at the mall, suddenly and
unexpectedly to grab them and to deport them to places like
Syria without any evidence, without any due process? Do we
claim that right? And if we don't claim that right, why do we
claim it at airports?
Attorney General Gonzales. Mr. Congressman, I'm not going
to get into specific, what we do, what we don't do. What I can
say is that we understand what our legal obligations are, we
follow the law.
Mr. Nadler. Let me ask you the last question then. Can you
assure this Committee that the United States Government will
not grab anybody at an airport or anyplace in U.S. territory,
and send them to another country without some sort of due
process?
Attorney General Gonzales. Well, what I can tell you is
that we're going to follow the law in terms of what----
Mr. Nadler. Well, does the law permit us to send someone to
another country without any due process, without a hearing
before an administrative, an immigration judge or somebody?
Just grab them off the street and put them on a plane, goodbye
without--we've done that. Does the law permit us to do that? Do
we claim that right?
Attorney General Gonzales. I'm not going to confirm that
we've done that----
Mr. Nadler. Well, wait a minute. That was confirmed in
court. There's no question it was done.
Chairman Sensenbrenner. The gentleman's time----
Mr. Nadler. Do we claim the right to do it?
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. Could he answer the question, please?
Chairman Sensenbrenner. The gentleman's time has expired. I
yield myself the last 5 minutes.
General Gonzales, I'd like to ask some follow-up questions
relative to the timeline on the NSA terrorist surveillance
program that I talked about at the beginning of the Q&A period
when I yielded myself some time. The response that you gave to
the oversight letter, which I sent, indicated that the program
was first authorized and implemented in October of 2001. My
recollection indicates to me that the first time that the
leadership and the Chair and Ranking Members of both
Intelligence Committees were briefed, was sometime in 2003. And
Senator Rockefeller sent a handwritten letter expressing his
concern to the Vice President. Were there briefings before
2003?
Attorney General Gonzales. I believe--I'm fairly certain,
Mr. Chairman, that there were briefings that began in early or
the spring of 2002, but I'm not 100 percent certain, but I'm
fairly certain, certainly well before 2003.
Chairman Sensenbrenner. Well, you know, according to your
recollection, the program was authorized and implemented well
before the first briefing took place with the leadership and
the leadership of the two Intelligence Committees.
Attorney General Gonzales. I don't want to quibble with you
over the word ``well,'' but certainly the program was initiated
before there was a briefing with congressional leadership.
Chairman Sensenbrenner. The problem is, is that this
Committee has been completely in the dark, even though this
Committee has got jurisdiction over the FISA law, and maybe the
problems that exist today would not have occurred had we been
brought into the loop, and an amendment to the FISA law would
have been advisable.
I would like to ask another question. Also from press
reports that indicated that somebody from the Administration
went to former Attorney General Ashcroft while he was in the
hospital to obtain his sign-off on something, after then-Deputy
Attorney General James Comey refused to do so. My question is,
is this a program that is significantly different than that
which was previously authorized and implemented on October
2001?
Attorney General Gonzales. That is a difficult question for
me to answer, Mr. Chairman, and I can't answer that question.
What I can say is that the members of the Intell. Committee
know the answer to that question.
Chairman Sensenbrenner. Why was a new sign-off required?
Attorney General Gonzales. Well, there's a new sign-off
required every 45 days or so, Mr. Chairman, because--and the
reason for that is because we are limited by the fourth
amendment, and that this search has to be reasonable, which
requires an examination of the totality of the circumstances,
and so within 45 days there is an analysis of the intelligence
community about the threat to America, and so there is a
periodic sign-off.
Chairman Sensenbrenner. I'm fully aware of the 45-day
requirement, and that is a reasonable requirement. But it seems
to me if the circumstances had not significantly changed, then
the position of the Justice Department in the sign-off should
not have required someone who had previously signed off to
change their mind.
Attorney General Gonzales. Mr. Chairman, what I can say--
and I'm sure this will not be acceptable, but let me say it
anyway--is that I have testified before that the disagreement
that existed does not relate to the program the President
confirmed in December to the American people.
Chairman Sensenbrenner. Unfortunately, General Gonzales,
I'm afraid that you have caused more questions to be put out
for debate within the Congress and in the American public as a
result of your answers that you've just given, as well as the
answers to my questions this morning.
Now, that concerns me, and I think I can speak in a
bipartisan manner that we're your partners in this area. We
have not been treated as partners for whatever reason. I think
that that's been a mistake, and a lot of future problems in
this area could be eliminated if you bring us into your trust
and confidence. We all strongly support the war against
terrorism. It was this Committee that worked twice to enact the
PATRIOT Act and then to extend the PATRIOT Act. Both of those
were on a bipartisan vote.
I am really concerned that the Judiciary Committee has been
kind of put in the trash heap after we had been able to pass
some really significant legislation. And if this continues, the
debate is going to continue on the NSA program.
You had a chance today to put some of these questions to
rest, and I am afraid that there are more questions that will
be posed out there because of the answers that you have not
given.
Having said that, let me thank you for coming----
Ms. Jackson Lee. Mr. Chairman. Mr. Chairman, could I make
an inquiry?
Chairman Sensenbrenner. No. I would like to close the
hearing down.
Having said that, let me thank you for appearing. I have
noted from my score card here that you answered 48 5-minute
questions from both sides of the aisle, 28 from the Democratic
side and 20 from the Republican side. You put in an honest
day's work for an honest day's pay. We appreciate you coming
here. This has been a very wide-ranging hearing, and let me say
that you're always welcome to come back.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Nadler. I seek recognition to point out that if a
Member of the Committee seeks recognition, you can only close
the hearing by a majority vote; otherwise, she must be
recognized.
Chairman Sensenbrenner. I was planning on recognizing her.
Mr. Nadler. Okay.
Chairman Sensenbrenner. I haven't been interrupting people
except when their time is expired. I would kind of like to have
the same courtesy.
For what purpose does the gentlewoman from Texas seek
recognition?
Ms. Jackson Lee. I thank you, Mr. Chairman. My
understanding was that you were closing the hearing and that
your 5 minutes had ended, but I thank you very much.
I wanted to inquire whether or not----
Chairman Sensenbrenner. For what purposes does the
gentlewoman seek recognition?
Ms. Jackson Lee. To make a point of inquiry, Mr. Chairman.
Chairman Sensenbrenner. State your point of inquiry.
Ms. Jackson Lee. The point of inquiry is, can this
Committee go into classified--go into a classified session for
the Attorney General to provide us with the answers to some of
the questions that were not answered today, prospectively?
Chairman Sensenbrenner. The answer to your inquiry is yes,
but both Mr. Conyers and I have concerns about the effect of
doing so, and this matter will be discussed with the minority,
and a decision will be reached sometime----
Ms. Jackson Lee. Thank you, Mr. Chairman.
Chairman Sensenbrenner. The purpose for which this hearing,
having been called without objection, the Committee stands
adjourned.
[Whereupon, at 3:03 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Responses to Post-Hearing Questions for the Record posed to Attorney
General Gonzales
__________
The Washington Post News Article ``Civil Rights Focus Shifts Roils
Staff at Justice,'' dated November 13, 2005
Correction to This Article
A Nov. 13 article incorrectly said that the Justice Department's
Civil Rights Division filed three friend-of-the-court briefs in fiscal
2005, down from 22 in 1999. The division filed 14 such briefs in 2005.
The article also said that lawyer Richard Ugelow left the division in
2004. He left in 2002.
civil rights focus shift roils staff at justice
veterans exit division as traditional cases decline
By Dan Eggen
Washington Post Staff Writer
Sunday, November 13, 2005; A01
The Justice Department's Civil Rights Division, which has enforced
the nation's anti-discrimination laws for nearly half a century, is in
the midst of an upheaval that has driven away dozens of veteran lawyers
and has damaged morale for many of those who remain, according to
former and current career employees.
Nearly 20 percent of the division's lawyers left in fiscal 2005, in
part because of a buyout program that some lawyers believe was aimed at
pushing out those who did not share the administration's conservative
views on civil rights laws. Longtime litigators complain that political
appointees have cut them out of hiring and major policy decisions,
including approvals of controversial GOP redistricting plans in
Mississippi and Texas.
At the same time, prosecutions for the kinds of racial and gender
discrimination crimes traditionally handled by the division have
declined 40 percent over the past five years, according to department
statistics. Dozens of lawyers find themselves handling appeals of
deportation orders and other immigration matters instead of civil
rights cases.
The division has also come under criticism from the courts and some
Democratsfor its decision in August to approve a Georgia program
requiring voters to present government-issued identification cards at
the polls. The program was halted by an appellate court panel and a
district court judge, who likened it to a poll tax from the Jim Crow
era.
``Most everyone in the Civil Rights Division realized that with the
change of administration, there would be some cutting back of some
cases,'' said Richard Ugelow, who left the division in 2004 and now
teaches law at American University. ``But I don't think people
anticipated that it would go this far, that enforcement would be cut
back to the point that people felt like they were spinning their
wheels.''
The Justice Department and its supporters strongly dispute the
complaints. Justice spokesman Eric Holland noted that the overall
attrition rate during the Bush administration, about 13 percent, is not
significantly higher than the 11 percent average during the last five
years under President Bill Clinton.
Holland also said that the division filed a record number of
criminal prosecutions in 2004. A quarter of those cases were related
tohuman-trafficking crimes, which were made easier to prosecute under
legislation passed at the end of the Clinton administration and which
account for a growing proportion of the division's caseload.
In addition, Holland defended the department's decision to approve
the Georgia voter law, saying that ``career and political attorneys
together concluded'' that the measure would have no negative effect on
minorities.
``This administration has continued the robust and vigorous
enforcement of civil rights laws,'' Holland wrote in an e-mail
statement, adding later: ``These accomplishments could not have been
achieved without teamwork between career attorneys and political
appointees.''
Attorney General Alberto R. Gonzales, the first Hispanic to hold
the job, named civil rights enforcement as one of his priorities after
taking office earlier this year and supports reauthorization of the
Voting Rights Act.
Although relations between the career and political ranks have been
strained throughout the Justice Department over the past five years,
the level of conflict has been particularly high in civil rights,
according to current and former staffers. The debate over civil rights
flared in the Senate in recent weeks after the nomination of Wan J.
Kim, who was confirmed on Nov. 4 as the assistant attorney general for
the division and is the third person to hold that job during the Bush
administration. Kim has been the civil rights deputy for the past two
years.
There were no serious objections to Kim's nomination, but Democrats
including Sens. Richard J. Durbin (Ill.) and Edward M. Kennedy (Mass.)
said they were concerned about serious problems with morale and
enforcement within the division.
``Its enforcement of civil rights over the past five years has been
negligent,'' Kennedy said in a statement. ``Mr. Kim has promised to
look closely at these issues and to increase the division's
enforcement, and I believed he should be given a chance to turn the
division around.''
Critics point to several key statistics in arguing that Gonzales
and the previous attorney general, John D. Ashcroft, have charted a
dramatically different course for civil rights enforcement than
previous administrations of both parties.
The Lawyers' Committee for Civil Rights Under Law, which includes a
number of former Justice lawyers, noted in a letter to the Senate
Judiciary Committee that the division has filed only a handful of cases
in recent years dealing with employment discrimination or
discrimination based on the statistical impact on women or minority
groups.
The total number of criminal prosecutions is within the range of
the Clinton administration, but a growing percentage of those cases
involve prosecuting human smugglers, which have become a priority for
the division only in recent years. Other types of civil rights
prosecutions are down, from 83 in fiscal 2001 to 49 in 2005.
The Bush administration has filed only three lawsuits--all of them
this year--under the section of the Voting Rights Act that prohibits
discrimination against minority voters, and none of them involves
discrimination against blacks. The initial case was the Justice
Department's first reverse-discrimination lawsuit, accusing a majority-
black county in Mississippi of discriminating against white voters.
The change in emphasis is perhaps most stark in the division's
appellate section, which has historically played a prominent role
intervening in key discrimination cases. The section filed only three
friend-of-the-court briefs last year--compared with 22 in 1999--and now
spends nearly half its time defendingdeportation orders rather than
pursuing civil rights litigation. Last year, six of 10 briefs filed by
the section were related to immigration cases.
William R. Yeomans, a 24-year division veteran who took a buyout
offer earlier this year, wrote in an essay in Legal Affairs magazine
that ``morale among career attorneys has plummeted, the division's
productivity has suffered and the pace of civil rights enforcement has
slowed.''
In an interview, Yeomans said some of the problems stem from the
way the ``front office'' at Justice has treated career employees, many
of whom have been forced to move to other divisions or to handle cases
unconnected to civil rights. As an example of the strained relations,
Yeomans points to the recent retirement party held for a widely admired
37-year veteran: Not one political appointee showed up.
At the same time, Ashcroft implemented procedures throughout
Justice that limited the input of career lawyers in employment
decisions, resulting in the hiring of many young conservatives in civil
rights and elsewhere in the department, former and current lawyers have
said.
``The more slots you open, the more you can populate them with
people you like,'' said Stephen B. Pershing, who left the division in
May and is now senior counsel at the Center for Constitutional
Litigation, a Washington law firm that handles civil rights cases.
``It's pretty simple really.''
To Roger Clegg, the situation is also perfectly understandable. A
former civil rights deputy in the Reagan administration who is now
general counsel at the Center for Equal Opportunity, Clegg said the
civil rights area tends to attract activist liberal lawyers who are
philosophically opposed to a more conservative approach.
``If the career people are not reflecting the policy priorities of
the political appointees, then there's a problem,'' Clegg said.
``Elections have consequences in a democracy.''
Holland, the Justice spokesman, said critics are selectively citing
statistics. For example, he said, the department is on the winning side
of court rulings 90 percent of the time compared with 60 percent during
the Clinton years. Federal courts are ``less likely to reject our legal
arguments than the ones filed in the previous administration,'' he
said.
Ralph F. Boyd Jr., the civil rights chief from 2001 to 2003,
agreed: ``It's not a prosecutor's job to bring lots of cases; it's a
prosecutor's job to bring the right cases. If it means fewer cases
overall, then that's what you do.''
Letter from the Honorable John Conyers, Jr., a Representative in
Congress from the State of Michigan, and Ranking Member, Committee on
the Judiciary
See footnote on Page 77
