House Judiciary Committee - April 6, 2006 - NSA

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WITNESSES:

ALBERTO GONZALES,

U.S. ATTORNEY GENERAL

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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 five-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 vote 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 five-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 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're 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 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 you right hand, take the oath?

Do you solemnly swear that the testimony you are giving before this committee today will be the truth, the whole truth and nothing but the truth, so help you God?

Let the record show the witness answered it in the affirmative.

Mr. Attorney General, the floor is yours.

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.

GONZALES: When I reflect on the 14 months that I've 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've established priorities rooted in the pursuit of the American dream: fight terrorism, combat violent crime, cybercrime 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, 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've 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 Qaida, conspiring to assassinate President Bush, and conspiring to hijack and destroy commercial airplanes in an attack similar to the attacks of September 11th, 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'd 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.

GONZALES: We remain focused on reducing gun crime and liberating communities from the stranglehold of gang violence.

We're 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's 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've 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 the 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 ballfield. But recent headlines have reminded us that our children can also 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 announce the indictments of 27 people for allegedly participating in a pornographic chatroom called Kiddypics and Kiddyvids. Some participants of the chatroom 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.

And just last week, I announced the largest narcotics trafficking indictment in our history. Fifty members of the Colombian narcoterrorist 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 production of more than 60 percent of the cocaine imported into the United States.

GONZALES: 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 superlabs outside of our borders, especially in Mexico, and a 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 have 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 two years.

This year we've begun Operation Home Sweet Home. Under this initiative, we will bring the number of targeted investigations under the Fair Housing Act testing program to an all-time high, ensuring the rights of all Americans to obtain housing fairly.

We're, 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've 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.

GONZALES: 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 on 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 and improve our deterrence effect 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.

SENSENBRENNER: Thank you very much, Mr. Attorney General.

The chair recognizes himself for five 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 responses 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, quote, "The president sought and received the advice of lawyers in the Department of Justice and elsewhere before the program was authorized and implemented. The program was first authorized and implemented in October 2001."

I'd 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.

GONZALES: Mr. Chairman, I don't know that I have all parts of your question. What I can say is that...

SENSENBRENNER: I can help you if you have forgotten.

GONZALES: All right. The program was not -- was not -- implemented before the president received legal advice regarding the scope of his authority to authorize this kind of program.

GONZALES: 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're going to have good, healthy debate. We encourage good, healthy debate about tough issues. That's 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've 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.

SENSENBRENNER: One of the questions that was asked was: Who was included in the review prior to the program being authorized?

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.

SENSENBRENNER: Mr. Attorney General, how can we discharge our oversight responsibilities if every time we ask a pointed question we're 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 were to properly 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.

GONZALES: Respectfully, Mr. Chairman, our analysis as to 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...

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 five minutes.

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.

CONYERS: 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 11th.

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, institutionalized 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's 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.

CONYERS: 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," end 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 five 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're truly interested in combating 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.

CONYERS: 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 (inaudible), 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 five years -- we not only make our nation less free, we make it less safe.

And thank you, Mr. Chairman.

SENSENBRENNER: Does the gentleman want five more minutes now?

CONYERS: I would like to invite the distinguished attorney general...

SENSENBRENNER: The gentleman is recognized for five minutes.

CONYERS: ... to make any responses that he would like.

SENSENBRENNER: The attorney general's recognized.

CONYERS: Well, thank you very much.

Did you hear what I was saying over to the chairman, sir? I'd like you to feel free to respond to anything that I've said on which you may have agreement or disagreement.

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 or 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 in 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.

CONYERS: All right. Let me ask you one other question.

CONYERS: Please indicate on the record, since the beginning of the Bush administration, 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.

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's 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 collection of electronic surveillance is ongoing today, as I understand it, to my knowledge.

CONYERS: And that is the extent of the surveillance that is going on?

GONZALES: Again, I can only comment as to what the president has confirmed, and that's the 12333 and that's the collection under FISA.

CONYERS: 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 11th, the attack could have been avoided.

Give what the 9/11 Commission has reported about this event, and the FBI Agent Samit's recent testimony regarding the disarray at the FBI, do you support their assertions -- those of the vice president and General Hayden?

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.

CONYERS: I return my time, Mr. Chairman. Thank you.