[Senate Hearing 109-500]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 109-500
 
WARTIME EXECUTIVE POWER AND THE NATIONAL SECURITY AGENCY'S SURVEILLANCE 
                               AUTHORITY

=======================================================================

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

              FEBRUARY 6, FEBRUARY 28, AND MARCH 28, 2006

                               __________

                          Serial No. J-109-59

                               __________

         Printed for the use of the Committee on the Judiciary








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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director





















                            C O N T E N T S

                              ----------                              

                            FEBRUARY 6, 2006
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................   233
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     7
    prepared statement...........................................   338
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                                WITNESS

Gonzales, Alberto R., Attorney General of the United States, 
  Department of Justice, Washington, D.C.........................    10

                         QUESTIONS AND ANSWERS

Responses of Alberto R. Gonzales to questions submitted by 
  Senator Specter................................................   130
Responses of Alberto R. Gonzales to additional information 
  requested by Senators (February 28, 2006)......................   141
Responses of Alberto R. Gonzales to questions from all Democratic 
  Senators (March 24, 2006)......................................   147
Responses of Alberto R. Gonzales to questions submitted by 
  Senators Feingold, Schumer, Biden, Feinstein, Durbin, and Leahy 
  (July 17, 2006)................................................   162

                       SUBMISSIONS FOR THE RECORD

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas, 
  February 6, 2006, vote-by-proxy form...........................   226
Buchen, Philip W., former Counsel to the President, March 15, 
  1976, memorandum and attachment................................   227
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma, 
  February 6, 2006, vote-by-proxy form...........................   232
Cunningham, H. Bryan, Attorney at Law, Morgan and Cunningham LLC, 
  Denver, Colorado, letter.......................................   235
Fein, Bruce, former Associate Deputy Attorney General, Bruce Fein 
  & Associates, Washington, D.C., letter.........................   259
Former government officials with experience in national security 
  matters, joint statement.......................................   262
Gonzales, Alberto R., Attorney General of the United States, 
  Department of Justice, Washington, D.C., prepared statement and 
  attachments....................................................   264
Gorelick, Jamie S., former Deputy Attorney General, Department of 
  Justice, Washington, D.C., letter..............................   320
Halperin, Morton H., Director, U.S. Advocacy, Open Society 
  Institute and Senior Fellow, Center for American Progress and 
  Jerry Berman, President, Center for Democrary & Technology, 
  joint statement................................................   321
Harmon, John M., former Assistant Attorney General, Office of 
  Legal Counsel, Department of Justice and Larry L. Simms, former 
  Deputy Assistant Attorney General, Office of Legal Counsel, 
  Department of Justice, joint statement.........................   333
Newsweek, February 6, 2006, article..............................   342
New York Times:
    December 16, 2005, article...................................   349
    December 24, 2005, article...................................   357
    January 17, 2006, article....................................   360
    January 29, 2006, article....................................   365
Roll Call, January 19, 2006, article.............................   368
Scholars of constitutional law and former government officials:
    January 9, 2006, joint letter................................   371
    February 2, 2006, joint letter...............................   382
September 11th Advocates, joint statement........................   394
Smith, Jeffrey H., former General Counsel of the Central 
  Intelligence Agency and a former General Counsel of the Senate 
  Armed Services Committee, January 3, 2006, memorandum..........   396
Washington Post:
    December 20, 2005, article...................................   404
    December 23, 2005, article...................................   406
    February 5, 2006, article....................................   408
Washington Times:
    January 4, 2006, article.....................................   415
    January 24, 2006, article....................................   417
                              ----------                              

                           FEBRUARY 28, 2006
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   421
    prepared statement...........................................   640
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................   419

                               WITNESSES

Fein, Bruce, Fein and Fein, Washington, D.C......................   431
Gormley, Ken, Professor of Constitutional Law, Duquesne 
  University School of Law, Pittsburgh, Pennsylvania.............   435
Kmiec, Douglas W., Professor of Constitutional Law, Pepperdine 
  University School of Law, Malibu, California...................   429
Koh, Harold Hongju, Dean, Yale Law School, New Haven, Connecticut   425
Levy, Robert A., Senior Fellow in Constitutional Studies, Cato 
  Institute, Washington, D.C.....................................   427
Turner, Robert F., Associate Director and Co-Founder, Center for 
  National Security Law, University of Virginia School of Law, 
  Charlottesville, Virginia......................................   433
Woolsey, R. James, Vice President, Global Strategic Security 
  Division, Booz Allen Hamilton, McLean, Virginia................   424

                         QUESTIONS AND ANSWERS

Responses of Bruce Fein to questions submitted by Senators Leahy 
  and Kennedy....................................................   467
Responses of Ken Gormley to questions submitted by Senators 
  Kennedy and Schumer............................................   470
Responses of Douglas Kmiec to questions submitted by Senator 
  Schumer........................................................   478
Responses of Harold Koh to questions submitted by Senator Schumer   480
Responses of Robert Levy to questions submitted by Senators 
  Schumer and Kennedy............................................   484
Responses of Robert Turner to questions submitted by Senators 
  Kennedy and Schumer............................................   490
Responses of R. James Woolsey to questions submitted by Senators 
  Kennedy and Schumer............................................   513

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Denise A. Cardman, Senior Legislative 
  Counsel, Washington, D.C., letter, resolution, and report......   517
Constitution Project, Washington, D.C., joint statement and 
  attachment.....................................................   539
Fein, Bruce, Fein and Fein, Washington, D.C., prepared statement 
  and attachment.................................................   544
Franklin, Jonathan S., Partner, Hogan & Hartson, LLP, Washington, 
  D.C., letter and memorandum....................................   564
Gormley, Ken, Professor of Constitutional Law, Duquesne 
  University School of Law, Pittsburgh, Pennsylvania, prepared 
  statement......................................................   566
Kmiec, Douglas W., Professor of Constitutional Law, Pepperdine 
  University School of Law, Malibu, California, prepared 
  statement......................................................   594
Koh, Harold Hongju, Dean, Yale Law School, New Haven, 
  Connecticut, prepared statement................................   621
Levy, Robert A., Senior Fellow in Constitutional Studies, Cato 
  Institute, Washington, D.C., prepared statement................   643
New York Times, February 12, 2006, editorial.....................   657
Turner, Robert F., Associate Director and Co-Founder, Center for 
  National Security Law, University of Virginia School of Law, 
  Charlottesville, Virginia, prepared statement..................   659
Washington, Post, February 16, 2006, Washington, D.C., editorial.   705
Washington Times, Washington, D.C.:
    December 20, 2005, article...................................   707
    December 28, 2005, article...................................   711
    January 4, 2006, article.....................................   715
    January 24, 2006, article....................................   719
    January 31, 2006, article....................................   723
    February 6, 2006, article....................................   727
    February 14, 2006, article...................................   731
Woolsey, R. James, Vice President, Global Strategic Security 
  Division, Booz Allen Hamilton, McLean, Virginia, prepared 
  statement......................................................   735
                              ----------                              

                        TUESDAY, MARCH 28, 2006

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   829
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   748
    prepared statement...........................................   870
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................   747

                               WITNESSES

Baker, Hon. Harold A., Judge, U.S. District Court for the Central 
  District of Illinois, Urbana, Illinois.........................   759
Brotman, Hon. Stanley S., Judge, U.S. District Court for the 
  District of New Jersey, Camden, New Jersey.....................   760
Halperin, Morton J., Executive Director, Open Society Policy 
  Center, Washington, D.C........................................   785
Keenan, Hon. John F., Judge, U.S. District Court for the Southern 
  District of New York, New York, New York.......................   762
Kornblum, Hon. Allan, Magistrate Judge, U.S. District Court for 
  the Northern Dirstrict of Florida, Gainesville, Florida........   752
Kris, David S., Senior Vice President, Time Warner, Inc., New 
  York, New York.................................................   789
Stafford, Hon. William, Jr., Judge, U.S. District Court for the 
  Northern District of Florida, Pensacola, Florida...............   764

                         QUESTIONS AND ANSWERS

Responses of Judge Baker to questions submitted by Senator 
  Feingold.......................................................   797
Responses of Judge Brotman to questions submitted by Senator 
  Feingold.......................................................   799
Responses of Mort Halperin to a question submitted by Senator 
  Leahy..........................................................   801
Responses of Judge Keenan to questions submitted by Senator 
  Feingold.......................................................   802
Responses of David Kris to questions submitted by Senator Leahy..   804
Responses of Judge Stafford to questions submitted by Senator 
  Feingold.......................................................   811

                       SUBMISSIONS FOR THE RECORD

Halperin, Morton J., Executive Director, Open Society Policy 
  Center, Washington, D.C., prepared statement...................   812
Keenan, Hon. John F., Judge, U.S. District Court for the Southern 
  District of New York, New York, New York, prepared statement...   820
Kris, David S., Senior Vice President, Time Warner, Inc., New 
  York, New York, prepared statement.............................   830
National Journal, March 18, 2006, article........................   873
New York Times, March 25, 2006, article..........................   880
Robertson, James, Judge, U.S. District Court for the District of 
  Columbia, Washington, D.C., letter.............................   882
Stafford, Hon. William, Jr., Judge, U.S. District Court for the 
  Northern District of Florida, Pensacola, Florida, prepared 
  statement......................................................   884
U.S. News & World Report, March 27, 2006, article................   891
Washington Post:
    February 9, 2006, article....................................   895
    March 9, 2006, editorial.....................................   899

















WARTIME EXECUTIVE POWER AND THE NATIONAL SECURITY AGENCY'S SURVEILLANCE 
                               AUTHORITY

                              ----------                              


                        MONDAY, FEBRUARY 6, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, 
Sessions, Graham, Cornyn, Brownback, Leahy, Kennedy, Biden, 
Kohl, Feinstein, Feingold, Schumer, and Durbin.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. It is 9:30. The Judiciary Committee will 
now proceed with our hearing on the administration's program 
administered by the National Security Agency on surveillance.
    We welcome the Attorney General of the United States here 
today, who will be testifying. We face as a Nation, as we all 
know, an enormous threat from international terrorism. The 
terrorists attacked this country on 9/11, and we remain in 
danger of renewed terrorist attacks.
    The President of the United States has the fundamental 
responsibility to protect the country, but even as the Supreme 
Court has said, the President does not have a blank check. And 
this hearing is designed to examine the legal underpinnings of 
the administration's program from the point of view of the 
statutory interpretation and also from the point of view of 
constitutional law.
    The Foreign Intelligence Surveillance Act was passed in 
1978 and has a forceful and blanket prohibition against any 
electronic surveillance without a court order. That law was 
signed by President Carter with a signing statement that said 
it was the exclusive way for electronic surveillance. There is 
also a constitutional issue as to whether the President has 
inherent powers under Article II of the Constitution to 
undertake a program of this sort. If the President has 
constitutional authority, that trumps and supersedes the 
statute. The Constitution is the fundamental law of the 
country, and a statute cannot be inconsistent with a 
constitutional provision.
    We will be examining the administration's contention that, 
notwithstanding the Foreign Intelligence Surveillance Act, 
there is statutory authority for what the President has done by 
virtue of the resolution of Congress authorizing the use of 
force against the terrorists. I have already expressed myself 
as being skeptical of that interpretation, but I believe the 
administration is entitled to a full and fair opportunity to 
advance their legal case on that important issue.
    We will be examining with the Attorney General the 
generalized rules of statutory interpretation. One of them is 
that a repeal by implication is disfavored. Also, the specific 
governs the generalizations. And in the Foreign Intelligence 
Surveillance Act you have the specific prohibition contrasted 
with the generalized authority under the resolution for the 
authorization for the use of force.
    I sent a letter to the Attorney General propounding some 15 
questions, and I thank the Attorney General for his responses. 
They will provide to a substantial extent the framework for our 
discussion here today. One of the key points on my mind is the 
role of the Foreign Intelligence Surveillance Court. One of the 
questions which I asked of the Attorney General was the role of 
the court in granting permission in advance, the role of the 
court in granting permission within 72 hours after the 
President exercises surveillance authority. I also asked 
whether the administration might now consider having the 
Foreign Intelligence Surveillance Court review this entire 
issue.
    The whole question of probable cause is one with very 
substantial flexibility under our laws, depending upon the 
circumstances of the case. The Foreign Intelligence 
Surveillance Court has a great reputation for integrity, with 
no leaks--candidly, unlike the Congress; candidly, unlike the 
administration; candidly, unlike all of Washington, perhaps all 
of the world. But when that court has secrets, they keep the 
secrets, and they also are well respected in terms of their 
technical competence.
    One of the questions, the lead question, which I will be 
asking the Attorney General is whether the administration would 
consider sending this entire program to the court for their 
evaluation. The scope of this hearing is to examine the law on 
the subject, and the ground rules are that we will not inquire 
into the factual underpinnings of what is being undertaken 
here. That is for another Committee and for another day. That 
is for the Intelligence Committee and that is for a closed 
session.
    It may be that some of the questions which we will ask the 
Attorney General on legal issues may, in his mind, require a 
closed session, and if they do, we will accommodate his request 
in that regard.
    One of the other questions which I will be directing to the 
Attorney General to follow up on the letter is the practice of 
making disclosures only to the so-called Gang of 8--the Speaker 
and the Democrat Leader in the House, the Majority Leader and 
the Democrat Leader in the Senate, and the Chairmen and Vice 
Chairmen of the two Intelligence Committees--and the adequacy 
of that in terms of the statute which calls for disclosure to 
the committees. The committees are much broader. And if the 
administration thinks that the current law is too broad, they 
have the standing to ask us to change the law, and we would 
certainly consider that on a showing of necessity to do so.
    We have told the Attorney General we would require his 
presence all day. We will have 10-minute rounds, which is 
double what is the practice of this Committee, and as I have 
announced in advance, we will have multiple rounds.
    There has been some question about swearing in the Attorney 
General, and I discussed that with the Attorney General, who 
said he would be willing to be sworn. After reflecting on the 
matter, I think it is unwarranted because the law provides 
ample punishment for a false official statement or a false 
statement to Congress. Under the provisions of 18 United States 
Code 1001 and 18 United States Code Section 1505, the penalties 
are equivalent to those under the perjury laws.
    There has been a question raised as to legal memoranda 
within the Department, and at this time and on this showing, it 
is my judgment that that issue ought to be reserved to another 
day. I am sure it will come up in the course of questioning. 
The Attorney General will have an opportunity to amplify on the 
administration's position. But there is a fairly well-settled 
doctrine that internal memoranda within the Department of 
Justice are not subject to disclosure because of the concern 
that it would have a chilling effect. If lawyers are concerned 
that what they write may later be subjected to review by 
others, they will be less than candid in their positions.
    This Committee has faced those issues in recent times with 
requests for internal memoranda of Chief Justice Roberts. They 
were not produced, and they were more relevant there than here 
because of the issue of finding some ideas as to how Chief 
Justice Roberts would function on the Court if confirmed. Here 
we have legal issues, and lawyers on this Committee and other 
lawyers are as capable as the Department of Justice in 
interpreting the law.
    One other issue has arisen, and that is the issue of 
showing video. I think that would not be in order. The 
transcripts of what the President said and the transcripts of 
what you, Mr. Attorney General, said earlier in a discussion 
with Senator Feingold are of record. This is not a Sunday 
morning talk show, and the transcripts contain the full 
statement as to legal import and legal effect, and I am sure 
that those statements by the President and those statements by 
you will receive considerable attention by this Committee.
    That is longer than I usually talk, but this is a very big 
subject.
    Senator Feingold. Mr. Chairman?
    Chairman Specter. This is the first of a series of 
hearings, at least two more, because of the very profound and 
very deep questions which we have here involving statutory 
interpretation and the constitutional implications of the 
President's Article II powers. And this is all in the context 
of the United States being under a continuing threat from 
terrorism. But the beauty of our system is the separation of 
powers, the ability of the Congress to call upon the 
administration for responses, the willingness of the Attorney 
General to come here today, and the capability of the Supreme 
Court to resolve any conflicts.
    Senator Feingold. Mr. Chairman?
    Chairman Specter. I would like to yield now--
    Senator Feingold. Mr. Chairman?
    Chairman Specter [continuing]. To the distinguished 
Ranking--
    Senator Feingold. Can I just ask a quick clarification?
    Chairman Specter. Senator Feingold?
    Senator Feingold. I heard your judgment about whether the 
witness should be sworn. What would be the distinction between 
this occasion and the confirmation hearing where he was sworn?
    Chairman Specter. The distinction is that it is the 
practice to swear nominees for Attorney General or nominees for 
the Supreme Court or nominees for other Cabinet positions. But 
the Attorneys General have appeared here on many occasions in 
the 25 years that I have been here, and there should be a 
showing, Senator Feingold, to warrant swearing.
    Senator Feingold. Mr. Chairman, I would just say that the 
reason that anyone would want him sworn has to do with the fact 
that certain statements were made under oath at the 
confirmation hearing, so it seems to me logical that since we 
are going to be asking about similar things that he should be 
sworn on this occasion as well.
    Senator Leahy. And, Mr. Chairman, if I might on that 
point--if I might on that point, of course, the Attorney 
General was sworn in on another occasion other than his 
confirmation when he and Director Mueller appeared before this 
Committee for oversight. And I had asked the Chairman, as he 
knows, earlier that he should be sworn on this. And I made that 
request right after the press had pointed out where an answer 
to Senator Feingold appeared not to have been truthful. And I 
felt that that is an issue that is going to be brought up 
during this hearing, and we should go into it.
    I also recall the Chairman and other Republicans insisting 
that former Attorney General Reno be sworn when she came up 
here on occasions other than her confirmation.
    I think because, especially because of the article about 
the questions of the Senator from Wisconsin, Senator Feingold. 
I believe he should be sworn. That is obviously the prerogative 
of the Chairman, but I would state again, and state strongly 
for the record what I have told the Chairman privately. I think 
in this instance, similar to what you did in April with 
Attorney General Gonzales and Director Mueller, both of whom 
were sworn, and as the Chairman insisted with then-Attorney 
General Reno, I believe he should be sworn.
    Chairman Specter. Senator Leahy and I have not disagreed on 
very much in the more than a year since we first worked 
together as ranking member and Chairman, and I think it has 
strengthened the Committee. I did receive the request. I went 
back and dug out the transcript, and reviewed Senator 
Feingold's vigorous cross-examination of the Attorney General 
at the confirmation hearings. I know the issues as to torture, 
which Senator Feingold raised, and the issues which Senator 
Feingold raised as to searches without warrants. I have 
reviewed the provisions of 18 USC 1001 and the case involving 
Admiral Poindexter, who was convicted under that provision. I 
have reviewed the provisions of 18 United States Code 1505, 
where Oliver North was convicted, and there are penalties 
provided there commensurate with perjury. It is my judgment 
that it is unnecessary to swear the witness.
    Senator Leahy. Mr. Chairman, may I ask, if the witness has 
no objection to being sworn, why not just do it and not have 
this question raised here? I realize only the Chairman can do 
the swearing in. Otherwise, I would offer to give him the oath 
myself, insofar as he said he would this morning be sworn in, 
but if he is willing to be, why not just do it?
    Senator Sessions. Mr. Chairman?
    Chairman Specter. The answer to why I am not going to do it 
is that I have examined all the facts, and I have examined the 
law, and I have asked the Attorney General whether he would 
object or mind, and he said he would not, and I have put that 
on the record. But the reason I am not going to swear him in, 
it is not up to him. Attorney General Gonzales is not the 
Chairman. I am. And I am going to make the ruling.
    Senator Sessions. Mr. Chairman?
    Senator Feingold. Mr. Chairman?
    Senator Leahy. Mr. Chairman, I would point out that he has 
been here before this Committee three times. The other two 
times he was sworn. It seems unusual not to swear him this 
time.
    Senator Durbin. Mr. Chairman, I move the witness be sworn.
    Chairman Specter. The Chairman has ruled. If there is an 
appeal from the ruling of the Chair, I have a pretty good idea 
how it is going to come out.
    Senator Durbin. Mr. Chairman, I appeal the ruling of the 
Chair.
    Chairman Specter. All in favor of the ruling of the Chair 
say ``aye.''
    [Chorus of ayes.]
    Senator Schumer. Roll call.
    Chairman Specter. Opposed?
    Senator Leahy. Roll call has been requested.
    Senator Feingold. Mr. Chairman, ask for a roll call vote.
    Chairman Specter. The clerk will call the roll. I will call 
the roll.
    [Laughter.]
    Chairman Specter. Senator Hatch?
    Senator Hatch. No.
    Chairman Specter. Senator Grassley?
    Senator Grassley. No.
    Chairman Specter. Senator Kyl?
    Senator Kyl. Mr. Chairman, is the question to uphold or to 
reject the ruling?
    Chairman Specter. The question is to uphold the ruling of 
the Chair, so we are looking for ayes here, Senator.
    [Laughter.]
    Senator Leahy. But we are very happy with the noes that 
have started on the Republican side, being the better position.
    Senator Hatch. I am glad somebody clarified that.
    Chairman Specter. The question is, should the ruling of the 
Chair be upheld that Attorney General Gonzales not be sworn?
    Senator Hatch. Aye.
    Senator Grassley. Aye.
    Senator Kyl. Aye.
    Senator DeWine. Aye.
    Senator Sessions. Aye.
    Senator Graham. Aye.
    Senator Cornyn. Aye.
    Chairman Specter. By proxy, for Senator Brownback, aye.
    Senator Coburn?
    [No response.]
    Chairman Specter. We have enough votes already.
    Senator Leahy?
    Senator Leahy. Emphatically, no.
    Senator Kennedy. No.
    Senator Biden. No.
    Senator Kohl. No.
    Senator Feinstein. No.
    Senator Feingold. No.
    Senator Schumer. No.
    Senator Durbin. No.
    Chairman Specter. Aye. The ayes have it.
    Senator Feingold. Mr. Chairman, I request to see the 
proxies given by the Republican Senators.
    Chairman Specter. Would you repeat that, Senator Feingold?
    Senator Feingold. I request to see the proxies given by the 
Republican Senators.
    Chairman Specter. The practice is to rely upon the 
staffers. But without counting that vote--well, we can rephrase 
the question if there is any serious challenge to the proxies. 
This is really not a very good way to begin this hearing, but I 
found that patience is a good practice here.
    Senator Sessions. Mr. Chairman?
    Chairman Specter. Senator Sessions?
    Senator Sessions. I am very disappointed that we went 
through this process. This Attorney General, in my view, is a 
man of integrity, and having read the questions, as you have, 
that Senator Feingold put forward, and his answers, I believe 
he will have a perfect answer to those questions when they come 
up at this hearing, and I do not believe they are going to show 
he perjured himself in any way or was inaccurate in what he 
said. I remember having a conversation with General Meyers and 
Secretary of Defense Rumsfeld, and one of the saddest days in 
their career was having to come in here and stand before a 
Senate Committee and raise their hand as if they were not 
trustworthy in matters relating to the defense of this country. 
And I think that is it not necessary that a duly confirmed 
cabinet member have to routinely stand up and just give an oath 
when they are, in effect, under oath and subject to prosecution 
if they do not tell the truth.
    I think it is just a question of propriety and good taste, 
and due respect from one branch to the other, and that is why I 
would support the Chair.
    Senator Leahy. Mr. Chairman, I do not--
    Chairman Specter. Let us not engage in protracted debate on 
this subject. We are not going to swear this witness and we 
have the votes to stop it.
    Senator Leahy?

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Mr. Chairman, I stated my position why I 
believe he should be sworn in, but I understand that you have 
the majority of votes.
    Now the question for this hearing goes into the illegality 
of the Government's domestic spying on ordinary Americans 
without a warrant.
    The question facing us is not whether the Government should 
have all the tools it needs to protect the American people. Of 
course it should. Every single Member of Congress agrees they 
should have all the tools necessary to protect the American 
people. The terrorist threat to America's security remains very 
real. We should have the tools to protect America's security. 
That is why I co-authored the PATRIOT Act 5 years ago, and why 
it passed with such broad bipartisan support, and I would also 
remind everybody that is why we amended FISA, the Foreign 
Intelligence Surveillance Act, five times since 9/11 to give it 
more flexibility, twice during the time when I was Chairman.
    We all agree that if you have al Qaeda terrorists calling 
we should be wiretapping them. We do not even need authority to 
do that overseas, and certainly going into, so far, the 
unsuccessful effort to catch Osama bin Laden in Afghanistan. 
Congress has given the President authority to monitor al Qaeda 
messages legally with checks to guard against abuses when 
Americans' conversations and e-mails are being monitored. But 
instead of doing what the President has the authority to do 
legally, he decided to do it illegally without safeguards.
    A judge from the special court Congress created to monitor 
domestic spying would grant any request to monitor an al Qaeda 
terrorist. Of the approximately 20,000 foreign intelligence 
warrant applications to these judges over the past 28 years, 
about a half dozen have been turned down.
    I am glad the Chairman is having today's hearing. We have 
precious little oversight in this Congress, but the Chairman 
and I have a long history of conducting vigorous bipartisan 
oversight investigations, and if Congress is going to serve the 
role it should, instead of being a rubber stamp for whoever is 
the Executive, we have to have this kind of oversight.
    The domestic spying programs into e-mails and telephone 
calls, apparently conducted by the National Security Agency, 
was first reported by the New York Times on December 16, 2005. 
The next day President Bush publicly admitted that secret 
domestic wiretapping has been conducted without warrants since 
late 2001, and he has issued secret orders to do this more than 
30 times.
    We have asked for those Presidential orders allowing secret 
eavesdropping on Americans. They have not been provided. We 
have asked for official legal opinions of the Government that 
the administration say justify this program. They too have been 
withheld from us.
    The hearing is expressly about the legality of this 
program. It is not about the operational details. It is about 
whether we can legally spy on Americans. In order for us to 
conduct effective oversight, we need the official documents to 
get those answers. We are an oversight Committee of the U.S. 
Senate, the oversight Committee with jurisdiction over the 
Department of Justice and over its enforcement of the laws of 
the United States. We are the duly elected representatives of 
the United States. It is our duty to determine whether the laws 
of the United States have been violated. The President and the 
Justice Department have a constitutional duty to faithfully 
execute the laws. They do not write the laws. They do not pass 
the laws. They do not have unchecked powers to decide what laws 
to follow, and they certainly do not have the power to decide 
what laws to ignore. They cannot violate the law or the rights 
of ordinary Americans.
    Mr. Attorney General, in America, our America, nobody is 
above the law, not even the President of the United States.
    There is much that we do not know about the President's 
secret spying program. I hope we are going to get some answers, 
some real answers, not self-serving characterizations.
    Let's start with what we do know. Point one, the 
President's secret wiretapping program is not authorized by the 
Foreign Intelligence Surveillance Act.
    The law expressly states it provides the exclusive source 
of authority for wiretapping for intelligence purposes. 
Wiretapping that is not authorized under this statute is a 
Federal crime. That is what the law says. It is also what the 
law means. This law was enacted to define how domestic 
surveillance for intelligence purposes can be conducted while 
protecting the fundamental rights of Americans.
    A couple of generations of Americans are too young to know 
why we passed this law. It was enacted after decades of abuses 
by the Executive, including the wiretapping of Dr. Martin 
Luther King, and other political opponents of earlier 
Government officials. After some of the so-called White House 
enemies on the Nixon White House enemies list, during that time 
another President asserted that whatever he did what was legal 
because he was President, and being President, he could do 
whatever he wanted to do.
    The law has been updated five times since September 11, 
2001. It provides broad and flexible authority. In fact, on 
July 31, 2002, your Justice Department testified this law is a 
highly flexible statute that has been proven effective. And you 
noted, ``When you are trying to prevent terrorist acts, that is 
really what FISA was intended to do and it was written with 
that in mind.''
    But now the Bush administration concedes the President 
knowingly created a program involving thousands of wiretaps of 
Americans in the United States over the periods of the last 
four or 5 years without complying with FISA.
    And legal scholars and former Government officials, 
including many Republicans, have been almost unanimous in 
stating the obvious, this is against the law.
    Point two, the authorization for the use of military force 
that Democratic and Republican lawmakers joined together to 
pass in the days immediately after the September 11 attacks did 
not give the President the authority to go around the FISA law 
to wiretap Americans illegally.
    That authorization said to capture or kill Osama bin Laden, 
and to use the American military to do that. It did not 
authorize domestic surveillance of American citizens.
    Let me be clear. Some Republican Senators say that we are 
talking about special rights for terrorists. I have no interest 
in that. Just like every member of this Committee and thousands 
of our staffs, and every Member of the House of 
Representatives, I go to work every single day in a building 
that was targeted for destruction by al Qaeda. Of course, I 
want them captured. I wish the Bush administration had done a 
better job. I wish that when they almost had Osama bin Laden, 
they had kept on after him and caught him, and destroyed him, 
rather than taking our Special Forces out of Afghanistan and 
sending them precipitously into Iraq.
    My concern is the laws of America, and my concern is when 
we see peaceful Quakers being spied upon, where we see babies 
and nuns who cannot fly in airplanes because they are on a 
terrorist watch list put together by your Government.
    And point three, the President never came to Congress and 
never sought additional legal authority to engage in the type 
of domestic surveillance in which NSA has been secretly engaged 
for the last several years.
    After September 11, 2001, I led a bipartisan effort to 
provide legal tools. We passed amendments to FISA. We passed 
the U.S. PATRIOT Act, and we upgraded FISA four times since 
then. In fact, when a Republican Senator on this Committee 
proposed a legal change to the standards needed for a FISA 
warrant, the Bush administration did not support that effort, 
but raised questions about it and said it was not needed. The 
administration told the Senate that FISA was working just fine.
    You, Mr. Attorney General, said the administration did not 
ask for legislation authorizing warrantless wiretapping of 
Americans, and did not think such legislation would pass. Who 
did you ask? You did not ask me. You did not ask Senator 
Specter.
    Not only did the Bush administration not seek broader legal 
authority, it kept the very existence of this illegal 
wiretapping program completely secret from 527 of the 535 
Members of Congress, including members of this Committee and 
members on the Intelligence Committee.
    The administration had not suggested to Congress and the 
American people that FISA was inadequate, outmoded or 
irrelevant. You never did that until the press caught you 
violating the statute with the secret wiretapping of Americans 
without warrants. In fact, in 2004, 2 years after you 
authorized the secret warrantless wiretapping program--and this 
is a tape we are told we cannot show--the President said, 
``Anytime you hear the U.S. Government talking about wiretap, a 
wiretap requires a court order. Nothing has changed...When 
we're talking about chasing down terrorists, we're talking 
about getting a court order before we do so.'' That was when he 
was running for reelection. Today we know at the very least, 
that statement was misleading.
    Let me conclude with this. I have many questions for you. 
But first, let me give you a message, Mr. Attorney General, to 
you, to the President and to the administration. This is a 
message that should be unanimous from every single Member of 
Congress, no matter what their party or their ideology. Under 
our Constitution, Congress is a co-equal branch of Government, 
and we make the laws. If you believe you need new laws, then 
come and tell us. If Congress agrees, we will amend the law. If 
you do not even attempt to persuade Congress to amend the law, 
then you are required to follow the law as it is written. That 
is true of the President, just as it is true of me and you and 
every American. That is the rule of law. That is the rule on 
which our Nation was founded. That is the rule on which it 
endures and prospers.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Thank you, Senator Leahy.
    We turn now to the Attorney General of the United States, 
Alberto R. Gonzales. The Attorney General has held the office 
for a little over a year. Before that he was Counsel to the 
President, right after the President's inauguration in 2001. He 
had served in State Government with Governor Bush. He attended 
the U.S. Air Force Academy from 1975 to 1977, graduated from 
Rice University with a bachelor's degree, and from Harvard Law 
School. He was a partner in the distinguished law firm of 
Vinson and Elkins in Houston before going into State 
Government.
    We have allotted 20 minutes for your opening statement, Mr. 
Attorney General, because of the depth and complexity and 
importance of the issues which you and we will be addressing. 
You may proceed.

   STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE 
     UNITED STATES, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Attorney General Gonzales. Good morning, Chairman Specter, 
Senator Leahy and members of the Committee. I am pleased to 
have this opportunity to speak with you.
    And let me just add for the record, when Chairman Specter 
asked me whether I would be willing to go under oath, I did say 
I would have no objections. I also said that my answers would 
be the same, whether or not I was under oath.
    Al Qaeda and it affiliates remain deadly dangerous. Osama 
bin Laden recently warned America, ``Operations are under 
preparation and you will see them in your homes.'' Bin Laden's 
deputy, Ayman Al-Zawahiri added just days ago that the American 
people are, and again I quote, ``destined for a future colored 
by blood, the smoke of explosions and the shadows of terror.''
    None of us can afford to shrug off warnings like this or 
forget that we remain a Nation at war. Nor can we forget that 
this is a war against a radical and unconventional enemy. Al 
Qaeda has no boundaries, no government, no standing army. Yet 
they are capable of wreaking death and destruction on our 
shores. And they have sought to fight us not just with bombs 
and guns. Our enemies are trained in the most sophisticated 
communications, counterintelligence, and counter-surveillance 
techniques, and their tactics, they are constantly changing.
    They use video feed and worldwide television networks to 
communicate with their forces, e-mail, the Internet and cell 
phones to direct their operations, and even our own training 
academies to learn how to fly aircraft as suicide-driven 
missiles.
    To fight this unconventional war, while remaining open and 
vibrantly engaged with the world, we must search out the 
terrorists abroad and pinpoint their cells here at home. To 
succeed we must deploy not just soldiers and sailors and airmen 
and marines, we must also depend on intelligence analysts, 
surveillance experts, and the nimble use of our technological 
strength.
    Before 9/11 terrorists were clustered throughout the United 
States preparing their assault. We know from the 9/11 
Commission report that they communicated with their superiors 
abroad using e-mail, the Internet and telephone. General 
Hayden, the Principal Deputy Director of National Intelligence, 
testified last week before the Senate that the terrorist 
surveillance program instituted after 9/11 has helped us detect 
and prevent terror plots in the United States and abroad. Its 
continuation is vital to the national defense.
    Before going any further, I should make clear what I can 
discuss today. I am here to explain the Department's assessment 
that the President's terrorist surveillance program is 
consistent with our laws and the Constitution. I am not here to 
discuss the operational details of that program or any other 
classified activity. The President has described the terrorist 
surveillance program in response to certain leaks. And my 
discussion in this open forum must be limited to those facts 
the President has publicly confirmed, nothing more.
    Many operational details of our intelligence activities 
remain classified and unknown to our enemy, and it is vital 
that they remain so.
    The President is duty bound to do everything he can to 
protect the American people. He took an oath to preserve, 
protect and defend the Constitution. In the wake of 9/11 he 
told the American people that to carry out this solemn 
responsibility, he would use every lawful means at his disposal 
to prevent another attack.
    One of those means is the terrorist surveillance program. 
It is an early warning system designed for the 21st century. It 
is the modern equivalent to a scout team sent ahead to do 
reconnaissance or a series of radar outposts designed to detect 
enemy movements. And as with all wartime operations, speed, 
agility and secrecy are essential to its success.
    While the President approved this program to respond to the 
new threats against us, he also imposed several important 
safeguards to protect the privacy and the civil liberties of 
all Americans.
    First. Only international communications are authorized for 
interception under this program, that is, communications 
between a foreign country and this country.
    Second. The program is triggered only when a career 
professional at the NSA has reasonable grounds to believe that 
one of the parties to a communication is a member or agent of 
al Qaeda or an affiliated terrorist organization. As the 
President has said, if you are talking with al Qaeda, we want 
to know what you are saying.
    Third. To protect the privacy of Americans still further, 
the NSA employs safeguards to minimize the unnecessary 
collection and dissemination of information about U.S. persons.
    Fourth. This program is administered by career 
professionals at NSA. Expert intelligence analysts and their 
senior supervisors with access to the best available 
information, they make the decisions to initiate surveillance. 
The operation of the program is reviewed by NSA lawyers, and 
rigorous oversight is provided by the NSA Inspector General. I 
have been personally assured that no other foreign intelligence 
program in the history of NSA has received a more thorough 
review.
    Fifth. The program expires by its own terms approximately 
every 45 days. The program may be reauthorized, but only on the 
recommendation of intelligence professionals, and there must be 
a determination that al Qaeda continues to pose a continuing 
threat to America based on the latest intelligence.
    Finally, the bipartisan leadership of the House and Senate 
Intelligence Committees has known about this program for years. 
The bipartisan leadership of both the House and Senate has also 
been informed. During the course of these briefings, no Members 
of Congress asked that the program be discontinued.
    Mr. Chairman, the terrorist surveillance program is lawful 
in all respects. As we have thoroughly explained in our written 
analysis, the President is acting with authority provided both 
by the Constitution and by statute. First and foremost, the 
President is acting consistent with our Constitution. Under 
Article II, the President has the duty and the authority to 
protect America from attack. Article II also makes the 
President, in the words of the Supreme Court, ``the sole organ 
of Government in a field of international relations.''
    These inherent authorities vested in the President by the 
Constitution include the power to spy on enemies like al Qaeda 
without prior approval from other branches of Government. The 
courts have uniformly upheld this principle in case after case. 
Fifty-five years ago the Supreme Court explained that the 
President's inherent constitutional authorities expressly 
include, ``the authority to use secretive means to collect 
intelligence necessary for the conduct of foreign affairs and 
military campaigns.''
    More recently, in 2002, the FISA Court of Review explained 
that, ``All the other courts to have decided the issue have 
held that the President did have inherent authority to conduct 
warrantless searches to obtain intelligence information.'' The 
court went on to add, ``We take for granted that the President 
does have that authority, and assuming that that is so, FISA 
could not encroach on the President's constitutional powers.''
    Now, it is significant, that this statement, stressing the 
constitutional limits of the Foreign Intelligence Surveillance 
Act, or FISA, came from the very appellate court that Congress 
established to review the decisions of the FISA Court.
    Nor is this just the view of the courts. Presidents, 
throughout our history, have authorized the warrantless 
surveillance of the enemy during wartime, and they have done so 
in ways far more sweeping than the narrowly targeted terrorist 
surveillance program authorized by President Bush.
    General Washington, for example, instructed his army to 
intercept letters between British operatives, copy them, and 
then allow those communications to go on their way.
    President Lincoln used the warrantless wiretapping of 
telegraph messages during the Civil War to discern the 
movements and intentions of opposing troops.
    President Wilson, in World War I, authorized the military 
to intercept each and every cable, telephone and telegraph 
communication going into or out of the United States.
    During World War II, President Roosevelt instructed the 
Government to use listening devices to learn the plans of spies 
in the United States. He also gave the military the authority 
to review, without warrant, all telecommunications, ``passing 
between the United States and any foreign country.''
    The far more focused terrorist surveillance program fully 
satisfies the ``reasonableness'' requirement of the Fourth 
Amendment.
    Now, some argue that the passage of FISA diminished the 
President's inherent authority to intercept enemy 
communications even in a time of conflict. Others disagree, 
contesting whether and to what degree the legislative branch 
may extinguish core constitutional authorities granted to the 
executive branch.
    Mr. Chairman, I think that we can all agree that both of 
the elected branches have important roles to play during a time 
of war. Even if we assume that the terrorist surveillance 
program qualifies as electronic surveillance under FISA, it 
complies fully with the law. This is especially so in light of 
the principle that statutes should be read to avoid serious 
constitutional questions, a principle that has no more 
important application than during wartime. By its plain terms, 
FISA prohibits the Government from engaging in electronic 
surveillance ``except as authorized by statute.'' Those words, 
``except as authorized by statute,'' are no mere incident of 
drafting. Instead, they constitute a far-sighted safety valve.
    The Congress that passed FISA in 1978 included those words 
so that future Congresses could address unforeseen challenges. 
The 1978 Congress afforded future lawmakers the ability to 
modify or eliminate the need for a FISA application without 
having to amend or repeal FISA. Congress provided this safety 
valve because it knew that the only thing certain about foreign 
threats is that they change in unpredictable ways.
    Mr. Chairman, the resolution authorizing the use of 
military force is exactly the sort of later statutory 
authorization contemplated by the FISA safety valve. Just as 
the 1978 Congress anticipated, a new Congress in 2001 found 
itself facing a radically new reality. In that new environment, 
Congress did two critical things when it passed the force 
resolution.
    First, Congress recognized the President's inherent 
constitutional authority to combat al Qaeda. These inherent 
authorities, as I have explained, include the right to conduct 
surveillance of foreign enemies operating inside this country.
    Second, Congress confirmed and supplemented the President's 
inherent authority by authorizing him ``to use all necessary 
and appropriate force against al Qaeda.''
    This is a very broadly worded authorization. It is also one 
that must permit electronic surveillance of those associated 
with al Qaeda. Our enemies operate secretly, and they seek to 
attack us from within. In this new kind of war, it is both 
necessary and appropriate for us to take all possible steps to 
locate our enemy and know what they are plotting before they 
strike.
    Now, we all agree that it is a necessary and appropriate 
use of force to fire bullets and missiles at al Qaeda 
strongholds. Given this common ground, how can anyone conclude 
that it is not necessary and appropriate to intercept al Qaeda 
phone calls? The term ``necessary and appropriate force'' must 
allow the President to spy on our enemies, not just shoot at 
them blindly, hoping we might hit the right target. In fact, 
other Presidents have used statutes like the force resolution 
as a basis for authorizing far broader intelligence 
surveillance programs. President Wilson in World War I cited 
not just his inherent authority as Commander in Chief to 
intercept all telecommunications coming into and out of this 
country; he also relied on a congressional resolution 
authorizing the use of force against Germany that parallels the 
force resolution against al Qaeda.
    A few Members of Congress have suggested that they 
personally did not intend the force resolution to authorize the 
electronic surveillance of the enemy, al Qaeda. But we are a 
Nation governed by written laws, not the unwritten intentions 
of individuals. What matters is the plain meaning of the 
statute passed by Congress and signed by the President, and in 
this case, those plain words could not be clearer. The words 
contained in the force resolution do not limit the President to 
employing certain tactics against al Qaeda. Instead, they 
authorize the use of all necessary and appropriate force. Nor 
does the force resolution require the President to fight al 
Qaeda only in foreign countries. The preamble to the force 
resolution acknowledges the continuing threat ``at home and 
abroad.''
    Congress passed the force resolution in response to a 
threat that emerged from within our own borders. Plainly, 
Congress expected the President to address that threat and to 
do so with all necessary and appropriate force.
    Importantly, the Supreme Court has already interpreted the 
force resolution in the Hamdi case. There the question was 
whether the President had the authority to detain an American 
citizen as an enemy combatant, and to do so despite a specific 
statute that said that no American citizen could be detained 
except as provided by Congress. A majority of the Justices in 
Hamdi concluded that the broad language of the force resolution 
gave the President the authority to employ the traditional 
incidents of waging war. Justice O'Connor explained that these 
traditional powers include the right to detain enemy 
combatants, and to do so even if they happen to be American 
citizens.
    If the detention of an American citizen who fought with al 
Qaeda is authorized by the force resolution as an incident of 
waging war, how can it be that merely listening to al Qaeda 
phone calls into and out of the country in order to disrupt 
their plots is not?
    Now, some have asked if the President could have obtained 
the same intelligence using traditional FISA processes. Let me 
respond by assuring you that we make robust use of FISA in our 
war efforts. We constantly search for ways to use FISA more 
effectively. In this debate, however, I have been concerned 
that some who have asked ``Why not FISA?'' do not understand 
how that statute really works.
    To be sure, FISA allows the Government to begin electronic 
surveillance without a court order for up to 72 hours in 
emergency situations or circumstances. But before that 
emergency provision can be used, the Attorney General must make 
a determination that all of the requirements of the FISA 
statute are met in advance. This requirement can be cumbersome 
and burdensome. Intelligence officials at NSA first have to 
assess that they have identified a legitimate target. After 
that, lawyers at NSA have to review the request to make sure it 
meets all of the requirements of the statute. And then lawyers 
at the Justice Department must also review the requests and 
reach the same judgment or insist on additional information 
before processing the emergency application. Finally, I as 
Attorney General must review the request and make the 
determination that all of the requirements of FISA are met.
    But even this is not the end of the story. Each emergency 
authorization must be followed by a detailed formal application 
to the FISA Court within 3 days. The Government must prepare 
legal documents laying out all of the relevant facts and law 
and obtain the approval of a Cabinet-level officer as well as a 
certification from a senior official with security 
responsibility, such as the Director of the FBI. Finally, a 
judge must review, consider, and approve the application. All 
of these steps take time. Al Qaeda, however, does not wait.
    While FISA is appropriate for general foreign intelligence 
collection, the President made the determination that FISA is 
not always sufficient for providing the sort of nimble early 
warning system we need against al Qaeda. Just as we cannot 
demand that our soldiers bring lawyers onto the battlefield, 
let alone get the permission of the Attorney General or a court 
before taking action, we cannot afford to impose layers of 
lawyers on top of career intelligence officers who are striving 
valiantly to provide a first line of defense by tracking 
secretive al Qaeda operatives in real time.
    Mr. Chairman, the terrorist surveillance program is 
necessary, it is lawful, and it respects the civil liberties we 
all cherish. It is well within the mainstream of what courts 
and prior Presidents have authorized. It is subject to careful 
constraints, and congressional leaders have been briefed on the 
details of its operation. To end the program now would be to 
afford our enemy dangerous and potentially deadly new room for 
operation within our own borders.
    I have highlighted the legal authority for the terrorist 
surveillance program, and I look forward to our discussion and 
know that you appreciate there remain serious constraints on 
what I can say about operational details. Our enemy is 
listening, and I cannot help but wonder if they are not shaking 
their heads in amazement at the thought that anyone would 
imperil such a sensitive program by leaking its existence in 
the first place, and smiling at the prospect that we might now 
disclose even more or perhaps even unilaterally disarm 
ourselves of a key tool in the war on terror.
    Thank you, Mr. Chairman.
    [The prepared statement of Attorney General Gonzales 
appears as a submission for the record.]
    Chairman Specter. Thank you very much, Attorney General 
Gonzales.
    Before proceeding to the 10-minute rounds for each of the 
Senators, let me request that you make your answers as brief as 
possible. You are an experienced witness, and we will try to 
make our questions as pointed and as brief as each Senator 
finds it appropriate.
    Senator Leahy. Mr. Chairman, could I also ask that we have 
for the record the statement that the Attorney General--well, 
obviously the statement that he just gave now, but the 
statement that he submitted to the Committee under our rules a 
couple days ago as part of the record.
    Chairman Specter. Is there a difference between the two 
statements, Mr. Attorney General?
    Attorney General Gonzales. Sir, there is a difference 
between the written statement and the oral statement, yes, sir.
    Chairman Specter. Are they the same?
    Attorney General Gonzales. There is a difference, sir. They 
are not the same.
    Chairman Specter. Well, both will be made a part of the 
record.
    All right. Now for the 10-minute rounds. Mr. Attorney 
General, let's start with the FISA Court, which is well-
respected, maintains its secrets and is experienced in the 
field. I posed this question to you in my letter: Why not take 
your entire program to the FISA Court, within the broad 
parameters of what is reasonable and constitutional, and ask 
the FISA Court to approve it or disapprove it?
    Attorney General Gonzales. Senator, I totally agree with 
you that the FISA Court should be commended for its great 
service. They are working on weekends, they are working at 
nights--
    Chairman Specter. Now on to my question.
    Attorney General Gonzales. They are assisting us in the war 
on terror. In terms of when I go to the FISA Court, once the 
determination was made that neither the Constitution nor FISA 
prohibited the use of this tool, then the question becomes for 
the Commander in Chief which of the tools is appropriate given 
a particular circumstance. And we studied very carefully the 
requirements of the Constitution under the Fourth Amendment. We 
studied very carefully what FISA provides for.
    As I said in my statement, we believe that FISA does 
anticipate that another statute could permit electronic 
surveillance and--
    Chairman Specter. OK. You think you are right, but there 
are a lot of people who think you are wrong. As a matter of 
public confidence, why not take it to the FISA Court? What do 
you have to lose if you are right?
    Attorney General Gonzales. What I can say, Senator, is that 
we are continually looking at ways that we can work with the 
FISA Court in being more efficient and more effective in 
fighting the war on terror. Obviously, we would consider and 
are always considering methods of fighting the war effectively 
against al Qaeda.
    Chairman Specter. Well, speaking for myself, I would urge 
the President to take this matter to the FISA Court. They are 
experts. They will maintain the secrecy. And let's see what 
they have to say.
    Mr. Attorney General, did Judge Robertson of the FISA Court 
resign in protest because of this program?
    Attorney General Gonzales. I do not know why Judge 
Robertson resigned, sir.
    Chairman Specter. Has the FISA Court declined to consider 
any information obtained from this program when considering 
warrants?
    Attorney General Gonzales. Sir, what I can say is that the 
sources of information provided or included in our application 
are advised or disclosed to the FISA Court because obviously 
one of the things they have to do is judge the reliability.
    Chairman Specter. So if you have information that you are 
submitting to the FISA Court for a warrant than you tell them 
that it was obtained from this program?
    Attorney General Gonzales. Senator, I am uncomfortable 
talking about how this--in great detail about how this 
information is generally shared. What I can say is just repeat 
what I just said, and that is, we as a matter of routine 
provide to the FISA Court information about the sources of the 
information that form the basis of an application--
    Chairman Specter. I am not asking you how you get the 
information from the program. I am asking you, do you tell the 
FISA Court that you got it from the program? I want to know if 
they are declining to issue warrants because they are 
dissatisfied with the program.
    Attorney General Gonzales. Senator, I am not--I believe 
that getting into those kind of details is getting into the 
detail about how the program is operated. Obviously, the 
members of the court understand the existence of this program. 
What I can say is we have a very open and very candid 
discussion and relationship with the FISA Court. To the extent 
that we are involved in intelligence activities that relate in 
any way to the FISA Court and they have questions about that, 
we have discussions with the FISA Court.
    Our relationship with the court is extremely important, and 
we do everything that we can do to assure them with respect to 
our intelligence activities that affect decisions that they 
make.
    Chairman Specter. I am not going to press you further, but 
I would ask you to reconsider your answer.
    Attorney General Gonzales. Yes, sir.
    Chairman Specter. In your response to my letter, you said 
this: ``No communications are intercepted unless it is 
determined that''--and then I am leaving some material out--``a 
party to the communication is a member or agent of al Qaeda or 
an affiliated terrorist organization.'' You are representing to 
this Committee that before there is an interception, there is a 
determination that one of the parties is a member of al Qaeda, 
an agent of al Qaeda, or an affiliated terrorist organization. 
Is that true?
    Attorney General Gonzales. Sir, I believe General Hayden, 
the Deputy Director of Intelligence, yesterday confirmed that 
before there is any interception, there is a determination made 
by an intelligence officer at NSA that, in fact, we have 
reasonable grounds to believe that one party in the 
communication is a member or agent of al Qaeda or an affiliate 
terrorist organization.
    Chairman Specter. Is there any way you can give us 
assurance that it is true without disclosing the methods and 
sources of your program? It seems to me that that is a very 
important statement. If we were really sure that you are 
dealing only with a communication where you have a member of al 
Qaeda, an agent of al Qaeda, or an affiliated with al Qaeda 
terrorist organization, it would be a good thing, because the 
concern is that there is a broad sweep which includes people 
who have no connection with al Qaeda. What assurances can you 
give to this Committee and beyond this Committee to millions of 
Americans who are vitally interested in this issue and 
following these proceedings?
    Attorney General Gonzales. Well, I would say, Senator, and 
to the American people and to this Committee, that the program 
as operated is a very narrowly tailored program, and we do have 
a great number of checks in place to ensure, I am told by the 
operations folks, a great degree of certainty, a high degree of 
confidence that these calls are solely international calls. We 
have these career professionals out at NSA who are experts in 
al Qaeda tactics, al Qaeda communications, al Qaeda aims. They 
are the best at what they do, and they are the ones that make 
the judgment as to whether or not someone is on a call that is 
a member of al Qaeda or a member of an affiliated organization.
    The Inspector General, as I have indicated, has been 
involved in this program from its early stages. There are 
monthly--
    Chairman Specter. Mr. Attorney General, let me interrupt 
you because I want to cover a couple more questions and time is 
fleeting. I think you have given the substance of the response.
    We have contacted former Attorney General Ashcroft about 
his availability to testify before this Committee, and he has 
not said yes and he has not said no. He is considering it. I 
believe that the testimony of former Attorney General Ashcroft 
would fall under a different category than that of line 
attorneys within the Department who are giving information. 
With them there is the concern about having a chilling effect 
on their advice if they know their views are later to be 
examined.
    I think the Attorney General is different, and my question 
to you is: Would you have any objection to former Attorney 
General Ashcroft's appearance before this Committee on this 
issue?
    Attorney General Gonzales. I would not, Senator, although, 
of course, if it relates to questions regarding the law and the 
position of the executive branch, that is what I am doing 
today, is conveying to this Committee what is the executive 
branch position on the legal authorities of the President in 
authorizing the terrorist surveillance program.
    Chairman Specter. That is all we would ask him about. We 
wouldn't ask him about the operations. I take it, if I heard 
you correctly, you would not have an objection.
    Attorney General Gonzales. Senator, this Committee, of 
course, can ask who they want to ask to come before the 
Committee.
    Chairman Specter. I know we can ask. It is a totally 
different question as to what we hear in response. He has not 
told us that he is going to look to the Department of Justice. 
But I think he would feel more comfortable knowing that you had 
no objection. I thought I heard you say earlier that you didn't 
have an objection.
    Attorney General Gonzales. Senator, I don't think I would 
have an objection.
    Chairman Specter. OK. Two more questions, which I want to 
ask before my red light goes on.
    On looking at congressional intent as to whether the 
resolution authorizing the use of force was intended to carry 
an authorization for this electronic surveillance with respect 
to the Foreign Intelligence Surveillance Act, you were quoted 
as saying, ``That was not something that we could likely get.'' 
Now, that is different from the other response you had that it 
might involve disclosures.
    If this is something you could not likely get, then how can 
you say Congress intended to give you this authority? Let the 
record show my red light went on with the conclusion of the 
question.
    Attorney General Gonzales. Senator, in that same press 
conference, I clarified that statement, and I think, the next 
press conference I was at with Mike Chertoff, I clarified that 
statement. That is, the consensus was in a meeting that 
legislation could not be obtained without compromising the 
program, i.e., disclosing the existence of the program, how it 
operated, and thereby effectively killing the program.
    Chairman Specter. Thank you very much.
    Senator Leahy?
    Senator Leahy. Mr. Chairman, you have raised some 
interesting points. In listening to the Attorney General, who 
is now arguing that the President's wiretapping of Americans 
without a warrant is legal, that it does not violate the 
controlling law, the Foreign Intelligence Surveillance Act, 
they have given a fancy name to the President's program. But I 
would remind him that the terrorist surveillance program is the 
FISA law which we passed. I think you are violating express 
provisions of that Act.
    Let me just ask you a few questions that can be easily 
answered yes or no. I am not asking about operational details. 
I am trying to understand when the administration came to the 
conclusion that the Congressional resolution authorizing the 
military force against al Qaeda, where we had hoped that we 
would actually catch Osama bin Laden, the man who hit us, but 
when you came to the conclusion that it authorized warrantless 
wiretapping of Americans inside the United States. Did you 
reach that conclusion before the Senate passed the resolution 
on September 14, 2001?
    Attorney General Gonzales. Senator, what I can say is that 
the program was initiated subsequent to the authorization to 
use military force--
    Senator Leahy. Well, then let me--
    Attorney General Gonzales. [continuing]. And our legal 
analysis was completed prior to the authorization of that 
program.
    Senator Leahy. So your answer is you did not come to that 
conclusion before the Senate passed the resolution on September 
14, 2001.
    Attorney General Gonzales. Senator, I certainly had not 
come to that conclusion. There may be others in the 
administration who did.
    Senator Leahy. Were you aware of anybody in the 
administration that came to that conclusion before September 
14, 2001?
    Attorney General Gonzales. Senator, sitting here right now, 
I don't have any knowledge of that.
    Senator Leahy. Were you aware of anybody coming to that 
conclusion before the President signed the resolution on 
September 18, 2001?
    Attorney General Gonzales. No, Senator. The only thing that 
I can recall is that we had just been attacked and that we had 
been attacked by an enemy from within our own borders and 
that--
    Senator Leahy. Attorney General, I understand. I was here 
when that attack happened, and I joined with Republicans and 
Democrats and virtually every Member of this Congress to try to 
give you the tools that you said you needed for us to go after 
al Qaeda, and especially to go after Osama bin Laden, the man 
that we all understood masterminded the attack and the man who 
is still at large.
    Now, back to my question. Did you come to the conclusion 
that you had to have this warrantless wiretapping of Americans 
inside the United States to protect us before the President 
signed the resolution on September 18, 2001. You were the White 
House Counsel at the time.
    Attorney General Gonzales. What I can say is that we came 
to a conclusion that the President had the authority to 
authorize this kind of activity before he actually authorized 
the activity.
    Senator Leahy. When was that?
    Attorney General Gonzales. It was subsequent to the 
authorization to use military force.
    Senator Leahy. When?
    Attorney General Gonzales. Sir, it was just a short period 
of time after the authorization to use military force.
    Senator Leahy. Was it before or after NSA began its 
surveillance program?
    Attorney General Gonzales. Again, the NSA did not commence 
the activities under the terrorist surveillance program before 
the President gave his authorization, and before the President 
gave the authorization, he was advised by lawyers within the 
administration that he had the legal authority to authorize 
this kind of surveillance of the enemy.
    Senator Leahy. So NSA didn't do this until the President 
gave them the green light that they could engage in warrantless 
wiretapping of Americans inside the United States under the 
circumstances you described in your earlier testimony?
    Attorney General Gonzales. Of course, Senator, the NSA has 
other authorities to engage in electronic surveillance--
    Senator Leahy. I understand that.
    Attorney General Gonzales [continuing]. And I am told that 
they--
    Senator Leahy. I am talking about this specific program.
    Attorney General Gonzales. And I am told they took 
advantage of those authorities, but it is my understanding--and 
I believe this to be true--that the NSA did not commence the 
kind of electronic surveillance which I am discussing here 
today prior to the President's authorization.
    Senator Leahy. The President has said publicly that he gave 
about 30 of these authorizations, having held off for a period 
of time, I think, when the administration heard the New York 
Times was looking into it. But you were White House Counsel. 
Did the President give his first authorization before or after 
Attorney General Ashcroft met with us and gave us the proposals 
from the administration which ultimately went into the USA 
PATRIOT Act?
    Attorney General Gonzales. Sir, I don't know. I don't know 
when he gave you those proposals.
    Senator Leahy. Well, we enacted the USA PATRIOT Act in 
October 2001, and you were there at the signing ceremony. We 
used the--we tried to encompass those things that the 
administration said they needed. Was the first one of the 
President's authorizations done before he signed the USA 
PATRIOT Act?
    Attorney General Gonzales. Sir, I would have to go back and 
check. I don't know.
    Senator Leahy. OK. You are going to be back here this 
afternoon. Please check because I will ask you this question 
again, and you will have a chance to ask--I am looking around 
the room. You have an awful lot of staff here. Let's have that 
answer. You were there when he signed the Act. Let us know when 
his first authorization was, whether it was before or after he 
signed that Act.
    Now--
    Attorney General Gonzales. Sir, may I make a statement? We 
believe the authorization to use military force constituted a 
statutory grant of authority to engage in this kind of 
surveillance, and, therefore, it wouldn't be necessary to seek 
an amendment to FISA through the PATRIOT Act.
    Senator Leahy. OK. My question still remains, and like 
Senator Specter, I am trying to ask basically things you could 
answer yes or no. You talk about the authorization for use of 
military force. We have a chart up over there that says that, 
``The President is authorized to use all necessary and 
appropriate force against those nations, organizations, or 
persons he determines planned, authorized, committed, or aided 
the terrorist attacks that occurred September 11, 2001, or 
harbored such organizations or persons in order to prevent any 
future acts of international terrorism against the United 
States by such nations, organizations, or persons.''
    Now, basically what you are saying is that Congress must be 
understood to have authorized the President to do it, not that 
we actually did but that we must have understood it.
    Now, this authorization is not a wiretap statute. I was a 
prosecutor. Senator Specter was a prosecutor. A lot of other 
prosecutors are here. We know what a wiretap statute looks 
like. This is not it.
    So let me ask this: Under that logic, is there anything to 
stop you from wiretapping without a warrant somebody inside the 
United States that you suspect of having al Qaeda connections?
    Attorney General Gonzales. Clearly, Senator, that is not 
what is going on here, first of all. The President has 
authorized a much more narrow program. We are always, of 
course, subject to the Fourth Amendment, so the activities of 
any kind of surveillance within the United States would, of 
course, be subject to the Fourth Amendment.
    Senator Leahy. Well, Mr. Attorney General, we are getting 
the impression that this administration is kind of picking and 
choosing what they are subject to, can you show us in the 
authorization for use of military force, what is the specific 
language you say is authorized in wiretapping of Americans 
without a warrant?
    Attorney General Gonzales. Sir, there is no specific 
language, but neither is there specific language to detain 
American citizens, and the Supreme Court said that the words 
``all necessary and appropriate force'' means all activities 
fundamentally incident to waging war.
    Senator Leahy. But there was not a law--they did not have a 
law specifically on this.
    Attorney General Gonzales. Sure they did, sir.
    Senator Leahy. If you use the Jackson test, they have a law 
on wiretapping. It is called FISA. It is called FISA. And if 
you do not like that law, if that law does not work, why not 
just ask us to amend it?
    Attorney General Gonzales. Sir, there was a law in question 
in Hamdi. It was 18 USC 4001(a), and that is, you cannot detain 
an American citizen except as authorized by Congress. And Hamdi 
came into the Court saying the authorization to use military 
force is not such a permission by Congress to detain an 
American citizen, and the Supreme Court, Justice O'Connor said, 
even though the words were not included in the authorization, 
Justice O'Connor said Congress clearly and unmistakably 
authorized the President to detain an American citizen, and 
detention is far more intrusive than electronic surveillance.
    Senator Leahy. Let me ask you this: under your 
interpretation of this, can you go in and do mail searches? Can 
you open first-class mail? Can you do black-bag jobs? And under 
the idea that you do not have much time to go through what you 
describe as a cumbersome procedure, but most people think it is 
a pretty easy procedure, to get a FISA warrant, can you go and 
do that, of Americans?
    Attorney General Gonzales. Sir, I have tried to outline for 
you and the Committee what the President has authorized, and 
that is all that he has authorized.
    Senator Leahy. Did it authorize the opening of first-class 
mail of U.S. citizens? That you can answer yes or no.
    Attorney General Gonzales. There is all kinds of wild 
speculation about what the--
    Senator Leahy. Did it authorize it?
    Chairman Specter. Let him finish.
    Attorney General Gonzales. There is all kinds of wild 
speculation out there about what the President has authorized, 
and what we are actually doing. And I am not going to get into 
a discussion, Senator, about--
    Senator Leahy. Mr. Attorney General, you are not answering 
my question. I am not asking you what the President authorized. 
Does this law--you are the chief law enforcement officer of the 
country--does this law authorize the opening of first-class 
mail of U.S. citizens? Yes or no, under your interpretation?
    Attorney General Gonzales. Senator, I think that, again, 
that is not what is going on here. We are only focused on 
communications, international communications, where one party 
to the communication is al Qaeda. That is what this program is 
all about.
    Senator Leahy. You have not answered my question.
    Well, Mr. Chairman, I will come back to this, and the 
Attorney General understands there are some dates he is going 
to check during the break, and I will go back to him.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Hatch.
    Senator Hatch. This is a very interesting set of issues, 
and a lot of constitutional issues, for people who are watching 
this. We have got, in addition to all kinds of constitutional 
issues about interpreting statutes, you have got the canon of 
constitutional avoidance here, that is a very important rule in 
constitutional law. You have got the Vesting Clause, vesting 
power in the President. You have got inherent Executive 
authority that people seem to just brush aside here. They will 
talk in terms of, well, Congress is co-equal with the 
President, but they do not ever really talk in terms of the 
President being co-equal with the Congress, or to pass laws, 
you have got the various canons of statutory interpretation. 
All of these are here, and it makes this a very interesting 
thing.
    But let me just ask you some specific questions here. It is 
my understanding, as I have reviewed this, and as I have looked 
at a lot of the cases, that virtually all of the Federal Courts 
of Appeal that have addressed the issue, have affirmed the 
President's inherent constitutional authority to collect 
foreign intelligence without a warrant. Is that a fair 
statement?
    Attorney General Gonzales. It is a fair statement, Senator, 
that all of the Court of Appeals that have reviewed this issue 
have concluded that the President of the United States has the 
authority, under the Constitution, to engage in warrantless 
searches consistent with the Fourth Amendment for purposes of 
gathering foreign intelligence.
    Senator Hatch. That is what the Katz v. U.S. case seemed to 
say, is it not, that wiretapping to protect the security of the 
Nation has been authorized by successive Presidents; is that 
correct?
    Attorney General Gonzales. It is certainly the case that 
successive Presidents, particularly during a time of war, have 
authorized warrantless searches.
    Senator Hatch. And you are relying on the Hamdi case as 
well, where a majority of the Court basically authorized the 
President exceptional powers under the Authorized Use of 
Military Force Statute?
    Attorney General Gonzales. I would not say they are 
exceptional powers. I think that they are traditional powers of 
the President in a time of war.
    Senator Hatch. Then U.S. v. Truong. That was a 1983 case.
    Attorney General Gonzales. Yes. Once again, the Court 
finding that the President of the United States does have the 
inherent authority to engage in warrantless searches, 
consistent with the Fourth Amendment, for purposes of gathering 
foreign intelligence.
    Senator Hatch. That was the case after the enactment of the 
FISA law, right?
    Attorney General Gonzales. It was a case after the 
enactment of FISA, but I think to be fair, I do not think the 
Court did a rigorous analysis about how FISA affects the 
analysis, but there was a decision by the Court that the 
President had the inherent authority.
    Senator Hatch. That is the important part of the case, as 
far as I am concerned. U.S. v. Butenko. It is a 1974 case, 
before FISA. U.S. v. Brown, U.S. v. U.S. District Court, and 
the so-called Keith case.
    Attorney General Gonzales. The Keith case was where the 
Court, for the first time, said that electronic surveillance, 
it would be subject--electronic surveillance for domestic 
security purposes is subject to the Fourth Amendment.
    Senator Hatch. Haig v. Agee, that is a 1981 case, again, 
after FISA, that matters intimately related to foreign policy 
and national security are rarely proper subjects for judicial 
intervention. That is a recognition that the President has to 
make some decisions, right?
    Attorney General Gonzales. Right. If I could just followup, 
Senator. My statement on the Keith case where the Court did say 
that electronic surveillance for purposes of domestic security 
would be subject to warrant requirements under the Fourth 
Amendment. The Court expressly made clear that they were not 
talking about electronic surveillance for foreign intelligence 
purposes. They were only talking about electronic surveillance 
for domestic security purposes.
    Senator Hatch. What about The Prize Cases, they are very 
well-known cases, and culminating in the case that quotes The 
Prize Cases in Campbell v. Clinton.
    Attorney General Gonzales. Again, there are a number of 
cases that recognize the President's inherent constitutional 
authority, particularly in a time of war--
    Senator Hatch. And the President's independent authority; 
is that correct? That is what Campbell v. Clinton says.
    Attorney General Gonzales. To engage in surveillance in 
order to protect our country.
    Senator Hatch. In fact, there is a 2002 case, In re: Sealed 
Cases, right?
    Attorney General Gonzales. In re: Sealed Cases, I said in 
my statement is--
    Senator Hatch. I mean that is a case decided by the FISA 
Court of Review, the actual FISA Court, right?
    Attorney General Gonzales. The FISA Court of Review was 
created by Congress to review the decisions by the FISA Court. 
In that decision, in that case, the FISA Court of Review 
acknowledged that these cases by other Circuit Courts, that the 
President does have the inherent authority, and the FISA Court 
of Review said, assuming that to be true, that FISA could not 
encroach upon the powers of the President.
    Senator Hatch. They could not encroach on the President's 
constitutional powers.
    Attorney General Gonzales. That is correct.
    Senator Hatch. So people who are wildly saying that the 
President is violating the law are ignoring all of these cases 
that say that--at least imply--that he has the inherent power 
to be able to do what he should to protect our Nation during a 
time of war?
    Attorney General Gonzales. And I want to emphasize, 
Senator, this is not a case where we are saying FISA--we are 
overriding FISA or ignoring FISA. Quite the contrary. We are 
interpreting the authorization to use military force as a 
statutory grant--
    Senator Hatch. You use FISA all the time, don't you?
    Attorney General Gonzales. FISA is an extremely important 
tool in fighting the war on terror. I know today there is going 
to be some discussion about whether or not we should amend 
FISA. I do not know that FISA needs to be amended, per se, 
because when you think about it, FISA covers much more than 
international surveillance. It exists even in peacetime. And so 
when you are talking about domestic surveillance during 
peacetime, I think the procedures of FISA, quite frankly, are 
quite reasonable, and so that is one of the dangers of trying 
to seek an amendment to FISA, is that there are certain parts 
of FISA that I think provide good protections. And to make an 
amendment to FISA in order to allow the activities that the 
President has authorized, I am concerned will jeopardize this 
program.
    Senator Hatch. It may even encroach on the inherent powers 
of the President, right?
    Attorney General Gonzales. Yes, sir.
    Senator Hatch. Let me just say this to you: as I view your 
arguments, we are faced with a war unlike any other war we have 
ever been in. We are faced with a war of international 
terrorists. That is one reason we did the PATRIOT Act was to 
bring our domestic criminal laws up--excuse me--our 
international antiterrorism laws up to the equivalent of 
domestic criminal laws. And you are saying that--and I have to 
say I find some solace in this--you are saying that when 
Congress, through a joint resolution, authorized the use of 
military force, gave the President these wide powers that are 
much wider than the ordinary single sentence declaration of war 
up through World War II, which was the last one if I recall it 
correctly, that that statute allowed you, coupled with inherent 
powers of the President, to be able to go after these 
terrorists before they hit us again?
    Attorney General Gonzales. This is an example of Congress 
exercising its Article I powers to pass legislation, so the 
President, in exercising his inherent authorities under Article 
II, has all the authority that he needs to fight al Qaeda.
    Senator Hatch. The Authorized Use of Military Force 
Resolution, which was a joint resolution of both Houses of 
Congress, declared that the Nation faces, ``an unusual and 
extraordinary threat,'' and acknowledges that the President has 
authority under the Constitution to take action to deter and 
prevent acts of international terrorism against the United 
States and provides that the President is authorized ``to use 
all necessary and appropriate force'' against those he 
determines are linked to the September 11th attacks.
    That sweeping language goes a lot further than the usual 
single sentence declaration of war, right?
    Attorney General Gonzales. It is a very broad authorization 
which makes sense. I do not think anyone in those days and 
weeks, certainly not in the Congress, were thinking about 
cataloguing all of those authorities that they wanted to give 
to the President. I think everyone expected the President of 
the United States to do everything he could to protect our 
country, and the Supreme Court has said that those words, ``all 
necessary and appropriate force'' mean that the Congress has 
given to the President of the United States the authority to 
engage in all the activities that are fundamental and incident 
to waging war.
    Senator Hatch. So you are relying on an Act of Congress, a 
joint resolution. You are relying on the inherent powers of the 
President to protect our borders and to protect us, and you are 
relying on the Fourth Amendment which allows reasonable 
searches and seizures in the best interest of the American 
public; is that a fair analysis?
    Attorney General Gonzales. That is a fair analysis, yes, 
sir.
    Senator Hatch. My time is up, Mr. Chairman.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman. I think the final 
comments about all of us desiring to protect our country is 
something which is common. We certainly respect your strong 
dedication and commitment to that, Attorney General.
    Attorney General Gonzales. Thank you, Senator.
    Senator Kennedy. I think all of us remember the time of 9/
11. I certainly do, I was with Mrs. Bush just before her 
testimony at an education hearing. It is a moment that is 
emblazoned in all our minds.
    I want to approach this in a somewhat different way. I am 
very concerned about the whole issue in question if you are not 
right legally. Now, you make a very strong case in your 
presentation here about the authority which you are acting on. 
You talk about the authorization by the Congress. You talk 
about inherent power. You talk about the President having the 
authority and the power to do this. But there is, of course, a 
very significant legal opinion to the contrary. There was 
within your Department, thoughtful lawyers who questioned it, 
constitutional authorities that have questioned it.
    So we are taking really a risk with national security, 
which I think is unwise. We are sending the wrong message to 
those that are in the front lines of the NSA, that maybe 
someday they may actually be prosecuted, criminally or civilly. 
We are sending a message to the courts, that perhaps the 
materials that we are going to take from eavesdropping or 
signal intelligence, may not be used in the courts, in 
prosecutions against al Qaeda, people we really want to go 
after, because it was not done legally. We are sending a 
message to the telephone companies that they may be under 
assault and attack as well. There are already cases now brought 
by individuals against the telephone companies. We have to get 
it right, because if we do not get it right, we are going to 
find that we have paid a very harsh price. Some of the 
toughest, meanest and cruelest members of al Qaeda may be able 
to use illegality in the court system to escape justice, maybe 
or maybe not. But why take a chance?
    We were facing the issue of electronic surveillance at 
another time, in 1976, with Attorney General Ed Levi and 
President Ford. They followed a much different course than you 
have followed. Ed Levi came and consulted with us. Members of 
this Committee went down and visited the Justice Department on 
four different occasions. The memoranda that we have from that 
period of time, the Buchen memoranda which are part of the 
record, the concerns that the Attorney General had about 
getting it right in terms of electronic surveillance, 
uncertainty in courts, validity of evidence, cooperation of the 
phone companies. And in a series of memoranda that go to the 
President of the United States and discussions that were 
actually held with Henry Kissinger, Don Rumsfeld, Ed Levi, 
Brent Scowcroft, George Bush, lengthy discussions with others, 
finally, the Attorney General said the main concern was whether 
this legislative initiative would succeed or whether, as some 
feared, the legislation which is actually passed would depart 
in objectionable ways, so that they were not sure about what 
Congress would do. But they dealt with the Congress and they 
got FISA.
    He later goes on to say, that already the Attorney General 
has found key members of the Senate Judiciary receptive to the 
legislation. And then finally, ``the Attorney General is 
strongly of the opinion that you,'' the President, ``should 
support the legislation as drafted. If you feel any hesitancy, 
I'll come by and brief you.''
    This is what we had 27 years ago: an Attorney General that 
came up to the Judiciary Committee, had them come down and work 
out FISA, and it passed with one dissenting vote in the U.S. 
Senate. We might not have gotten it right, but certainly for 
that period of time, that it got it right.
    The question that I have for you is, why did you not follow 
that kind of pathway which was so successful at a different 
time? We had a Republican President and a Republican Attorney 
General. We are talking about electronic surveillance. And as 
you know from the FISA, there are very sensitive provisions 
that were included in there that were directed against foreign 
nationals that this Committee was able to deal with, and did so 
in a responsible way. Why didn't you follow that pattern?
    Attorney General Gonzales. Sir, the short answer is, is 
that we did not think we needed to, quite frankly. I have tried 
to make clear today that we looked at this issue carefully, 
decided that neither the Constitution nor FISA, which 
contemplated a new statute, would prohibit this kind of 
activity from going forward.
    I might also say this is a little different time from what 
existed in 1976. Of course, we are at war, and we have briefed 
certain Members of Congress. So it is not entirely true that we 
did not reach out to the Congress and talk--certain Members of 
the Congress and talk to them about this program and about what 
we were doing.
    Senator Kennedy. The point, I would say, is that we were 
facing a nuclear threat. We have got terrorism now, but it was 
a nuclear threat then. The cold war was in full flow at that 
time. It was a nuclear threat at that time.
    And you know what Attorney General Levi did? He took a day 
and a half to have outside constitutional authorities advise 
him on the questions of the constitutionality of the 
legislation, a day and a half. Now, did you talk to any outside 
authorities--not inside authorities that are going to give you, 
quite frankly, probably what you want to hear--but did you 
check any--the reason I question this, General, is because we 
have been through the Bybee memorandum, we have been through 
torture memoranda, where you and the OLC and the White House 
Counsel thought that the Bybee memorandum was just fine. Then 
we find out, during the course of your hearings, that it was 
not fine, and it was effectively repealed, a year and a half 
after it was in effect.
    So it is against that kind of background of certainty, of 
your view about its legality, and in-house review of the 
legality. Some of us would have wondered whether you took the 
steps that an Ed Levi, Republican Attorney General, on the same 
subject, was willing to take, to listen to outside 
constitutional authority, because as we have seen subsequently, 
you have had difficulty in your own Department and you have had 
substantial difficulty with constitutional authorities and 
others who might not believe that you are correct. If you are 
correct, we do not have a problem. If you are not correct, then 
it is a step back in terms of national security.
    My question to you is, looking at the national security 
issue, would we not be in a stronger position if you had come 
to the Congress and said, ``Let's get the kind of legislative 
authority that we need, rather than take a chance.'' Wouldn't 
our national security have been better defended if we did not 
have any question as to the legality of this issue? Wouldn't 
the people in the front lines of our national security be 
better protected, and our court system better defended? And 
when we are able to get those al Qaeda individuals, and they 
know they do not have any loopholes by appealing illegal 
eavesdropping, maybe then they would begin to talk and try to 
make a deal. Maybe that would enhance our national security as 
well.
    Attorney General Gonzales. Well, sir, you have said a lot, 
so I do not know--
    Senator Kennedy. Yes, it is short time.
    Attorney General Gonzales. Let me just say you are 
absolutely right, we have got to have a very clear message, and 
we cannot be wrong on this. I do not think that we are wrong on 
this. Are we worried about the front line people down at NSA? 
Of course we are. That is why the President, the day after the 
story ran in the New York Times, went out to the American 
people to reassure them this was not a situation where you had 
an agency running amok, that he had authorized this activity, 
and it was very narrowly tailored.
    In terms of whether or not, are we concerned about 
activities that may jeopardize investigations or prosecutions? 
Absolutely, we are. That is the last thing we want to do. We do 
not believe this program is--we believe this program is lawful. 
We do not believe that prosecutions are going to be jeopardized 
as a result of this program. Obviously, we are in litigation 
now, so I do not want to say much more than that, but, of 
course, we ought to be operating in a way where we are doing 
what we need to do to protect our investigations and to protect 
our prosecutions, and I think that we are doing that.
    Senator Kennedy. My time is just about up. Thank you very 
much, General.
    Chairman Specter. Thank you very much, Senator Kennedy.
    I want to acknowledge the presence in the audience of Ms. 
Deborah Burlingame, who is the sister of Captain Charles F. 
Burlingame, the pilot on American Airlines Flight 77, which 
crashed into the Pentagon.
    Would you like a break?
    Attorney General Gonzales. If you are offering a break, Mr. 
Chairman, yes.
    Chairman Specter. Well, I am not going to offer you one 
unless you want one.
    [Laughter.]
    Attorney General Gonzales. I am fine, sir. I will defer to 
you, Mr. Chairman.
    Senator Leahy. Take the break.
    Attorney General Gonzales. I will take a break.
    Chairman Specter. Let's take a vote here.
    [Laughter.]
    Chairman Specter. Ten-minute break.
    [Recess from 11:06 a.m. to 11:14 a.m.]
    Chairman Specter. Before proceeding, I would like to 
acknowledge the presence of Ms. Monica Gabrielle and Ms. Mindy 
Kleinberg whose husbands were in the World Trade Center at the 
time of the 9/11 attack.
    Mr. Attorney General, thank you for rejoining us, and we 
turn now to Senator Grassley.
    Senator Grassley. Thank you very much.
    I am going to start with something that is just peripheral 
to the issues we are on, but it does deal with our national 
security, and it is the leak of this information to New York 
Times. I am greatly concerned about this, and these leaks could 
be putting our Nation's safety into serious jeopardy. Could you 
tell us what is being done to investigate who leaked this 
national security information, and whether the Department of 
Justice will initiate a prosecution of an individual leaking 
the information?
    Attorney General Gonzales. Senator, we have confirmed--the 
Department has initiated an investigation into possible crimes 
here, and consistent with Department practice, I am not going 
to talk much further about an ongoing investigation. Obviously, 
we have to look at the evidence and if the evidence shows that 
a crime has been committed, then, obviously, we will have to 
make a decision about moving forward with a prosecution.
    Senator Grassley. I do not blame you for this, but I do not 
hear as much about public outcry about this leak as I did about 
Valerie Plame and the White House disclosures of her--presumed 
disclosures of her identity as a CIA agent, and to me, that is 
a two-bit nothing compared to this sort of issue that we have 
before us or this information being leaked to the press.
    In the followup commentaries, reading the newspapers and 
TV, you get the impression that this is some sort of an LBJ-J. 
Edgar Hoover operation that is designed to skirt the law to spy 
on domestic enemies. And I think you are making very clear the 
opposite, that this is only concerned about the national 
security of the United States, and that is where the focus 
should be.
    The constant repetition on the news media of the term 
``domestic spying,'' as opposed to spying and electronic 
surveillance of somebody outside the United States connected 
with an organization that has as their goal the killing of 
Americans, or the threatening of America, or the destruction 
that happened on September the 11th is entirely two different 
things, but when domestic spying is often used, you can 
understand, General, the people having outrage maybe at what is 
going on.
    Also, for my colleagues on this Committee, it seems to me 
that if we are doing our job right, we have got some problems. 
Because let's just say the Attorney General is wrong in the 
statutory and constitutional authority by which they proceeded 
to do what they are doing. And yet, Members of Congress were 
told about this program over a period of 4 years, a few Members 
of Congress were, the appropriate ones were. Then all of a 
sudden it hits the New York Times, and all of a sudden, then 
that story breaks, Congressmen change their tune from the one 
sung in private for 4 years, to outrage that this is going on.
    So if Senator Grassley, who is not a member of that elite 
group that has to be concerned about oversight of foreign 
intelligence knows about it, and does not tell--if I were a 
member and did not tell my colleagues about it, and then 
express that outrage, where have I been as a member of that 
group for the last 4 years? If something is wrong after the New 
York Times reported it, there had to be something wrong before 
the New York Times reported it. All of a sudden I see Members 
of Congress who had that responsibility, if they really, 
sincerely think it is wrong today, that were caught not doing 
their job of congressional oversight as they should have, 
informing the other Members of Congress that there is really 
something wrong that the President is doing here.
    So I think we in Congress have to do some looking, internal 
looking of whether or not we are doing our job as well of 
oversight.
    I always to want to remind people in the United States that 
what we are talking about here today is to make sure that 
September the 11th does not happen again, and somehow we tend 
to have short memories. We ought to remember that it happened 
in Madrid, it happened in London, it happened in Amman, it 
happened in a resort in Egypt, it happened in Bali twice, and 
it has happened here. It can happen again. It seems to me that 
what you are trying to tell us is the President is determined 
to make sure that it does not happen in the United States 
again, and that is what this surveillance is all about. Yes?
    Attorney General Gonzales. Senator, he is absolutely 
determined to do everything that he can, under the Constitution 
and the laws of this country, to prevent another September 11th 
from happening again.
    Senator Grassley. And I think you are telling us that in 
the case of people giving some information, that it is very 
necessary to act with dispatch, that acting with dispatch or 
not can be a matter of life or death for Americans.
    Attorney General Gonzales. Absolutely. If we get 
information that may lead us to other information about a 
terrorist operating in this country, we may not have a matter 
of days or weeks or months, which is sometimes the case with 
respect to a FISA application, but we may not have that much 
time to begin surveillance. And if we wait--and again, FISA has 
been a wonderful tool and has been very effective in the war on 
terror. But there are certain circumstances where the 
requirements of FISA present challenges, and if we wait, we may 
lose valuable information that may help us, it may help us get 
information that might prevent another attack.
    Senator Grassley. I had an opportunity to speak to you on 
the phone recently, and I asked you to come ready to give us 
some specific instances of when past Presidents have ordered 
warrantless intelligence surveillance in the prosecution of a 
war or to otherwise fulfill the Commander in Chief's duties. I 
think that as the American public hears examples of how 
Democrat Presidents and Republican Presidents alike have done 
similar things, they may begin to see that this program, in a 
different light, particularly in regard to the Presidents' over 
225 years use of the exercise of the power of Commander in 
Chief.
    Attorney General Gonzales. I gave in my opening statement, 
Senator, examples where President Washington, President 
Lincoln, President Wilson, President Roosevelt, have all 
authorized electronic surveillance of the enemy on a far 
broader scale, without any kind of probable cause standard, all 
communications in and out of the country. So, for example, 
President Wilson, World War I, he relied upon his 
constitutional authority, inherent constitutional authority, 
and a use of force resolution, declaration of war, very 
consistent with what we are dealing with today.
    Senator Grassley. And December the 8th, '41, the day after 
Pearl Harbor, FDR ordered the FBI to intercept any 
communications between our country and any other country, 
whether it be by mail or any other source.
    Attorney General Gonzales. President Roosevelt did 
authorize very broad surveillance of the enemy.
    Senator Grassley. It is well established that the President 
has a number of inherent constitutional powers. Today's hearing 
and the two that will follow will give the Senate an 
opportunity to analyze the President's case on 
constitutionality. When Moussaoui was arrested, the FBI could 
not look at his computer files and telephone contacts. That has 
been changed so you can have that sort of communication now. 
Could you tell us in the Department of Justice white paper 
entitled Legal Authority Supporting the Activities of a 
President doing this, the administration argued that ``The 
President's power to authorize the NSA activities is at its 
zenith,'' citing Justice Jackson's concurrence in the Sawyer 
case. I guess you would call it the Youngstown case.
    Would you, please, discuss the framework set by Justice 
Jackson for determining how much deference a President should 
be given, including why the administration believes that its 
power in this regard is at its zenith?
    Attorney General Gonzales. Yes, sir. I will try to in the 
time remaining. Justice Jackson--
    Senator Grassley. All I have to do is finish my question 
before the time is up.
    Attorney General Gonzales. Pardon me, Senator. Justice 
Jackson laid out a three-part test in terms of determining 
Presidential power. The first part is where the President is 
exercising his authority with the concurrence in essence of 
Congress. We believe that is what is occurring here. We believe 
the authorization to use military force is such a concurrence 
by Congress for the President to engage in this kind of 
activity, and therefore, we believe the President's power is at 
its zenith in this first category.
    The second category is where the President is exercising 
his constitutional authority in the absence of any 
congressional action. And there Justice Jackson talked about 
being sort in the zone of twilight and trying to ascertain 
where the limits are between Presidential authority and 
congressional authority. That is not the case here.
    The third part was where the President is acting in 
contravention--not in contravention, but in a way that is 
incompatible with congressional action. In that particular 
case, you looked at the President's constitutional authority 
minus whatever constitutional authority Congress has.
    So the question is in which category we are in. We believe 
we are in the first category, that the Congress has, through 
the authorization to use military force, provided its support 
for Presidential action.
    If in fact that is not the case, then we are in the third 
category, and I submit, Senator, that this case is very 
different from Youngstown, where we talked about the President 
of the United States taking over domestic industry. We are 
talking here about a core constitutional action by the 
President, and a long history of Presidents engaging in 
electronic surveillance of the enemy. So this is a much 
different situation.
    My judgment is, while these are always very hard cases, and 
there is very little precedent in this matter, I believe that 
even under the third part, that the President does have the 
constitutional authority. I will just remind the Committee that 
Chairman Roberts just recently submitted a letter to the 
Committee, and he, himself, opined that he also believes that 
if we were in the third category, that he believes that the 
President does, would have the constitutional authority to 
engage in these kinds of activities.
    Chairman Specter. Thank you, Senator Grassley.
    Without objection we will admit into the record the letter 
from Senator Pat Roberts, Chairman of the Intelligence 
Committee, to Senator Leahy and to myself, dated February 3rd 
of this year.
    Senator Biden.
    Senator Biden. Thank you, Mr. Chairman. I hope Chairman 
Roberts will see it is his responsibility to also hold 
extensive hearings in a forum that is more appropriate, totally 
secret. Thus far, I am told, he intends on not holding any, 
which I find bordering on lacking any responsibility in terms 
of congressional oversight, but I hope he will do as you have 
done here.
    General, there are two real issues here in my view, and I 
am going to focus on one. That is the President's reassurance 
as to what is exactly happening, where if in fact the only 
people being wiretapped or e-mails read are al Qaeda operatives 
contacting American citizens, I do not think you are going to 
find anybody in America saying, ``Oh, my God, don't do that.''
    What is really at stake here is the administration has made 
assertions in the past, where their credibility has somewhat 
been questioned. So it is not merely the constitutional reach 
you have, it is what is actually happening, what is actually 
going on. I am going to focus on that first, if I may.
    How will we know, General, when this war is over?
    Attorney General Gonzales. I presume the straightforward 
answer, Senator, is that when al Qaeda is destroyed and no 
longer poses a threat to the United States. Whenever that may 
be--we know it is not today. We know we are still at war today. 
We know we will probably be at war still tomorrow, and so we 
know it still continues today.
    Senator Biden. The truth is there is no definition of when 
we are going to know whether we have won, because al Qaeda, as 
the President points out, has mutated into many other 
organizations that are not directly dealing with bin Laden and 
are free agents themselves; is that correct?
    Attorney General Gonzales. It is certainly true that there 
are a number of terrorist groups who share many of the same 
objectives of al Qaeda in terms of destroying America.
    Senator Biden. So as long as any of them are there, I 
assume you would assert you have this plenary authority?
    Attorney General Gonzales. Well, Senator, obviously, if 
Congress were to take some kind of action to say the President 
no longer has the authority to engage in electronic 
surveillance of the enemy, then I think that would put us into 
the third part of Justice Jackson's three-part test, and that 
would present a much harder question as to whether or not the 
President has the authority. As I have already indicated in 
response to Senator Grassley, I believe that under those 
circumstances--and again, it is a hard question, and it may 
have been irresponsible for me to offer up an opinion because I 
would like to have to study it. I would like the opportunity to 
study it. But I think the fact would present a much different 
case than what we had in Youngstown v. Sawyer.
    Senator Biden. Why if you--and I have read everything you 
have submitted, and I was here when FISA was written. I was a 
cosponsor. I was on the Intelligence Committee and on the 
Foreign Relations Committee, and as the Ranking Member of the 
Foreign Relations Committee, I was charged by the Democratic 
leadership to be part of the small group to write the 
authorization for the use of force, so I have been involved in 
this. Does not mean I am right, but I have been deeply 
involved.
    As I understand your reasoning, I do not understand why you 
would limit your eavesdropping only to foreign conversations. 
In other words, al Qaeda communicating from Algeria--I am 
making it up--or from France or Germany or wherever, to the 
United States. That is the assertion, it is only emanating from 
a foreign country, correct?
    Attorney General Gonzales. Yes, sir.
    Senator Biden. Why limit it to that?
    Attorney General Gonzales. The authorization of the program 
I am talking about--well, of course, that is a Presidential 
decision, and I believe, Senator--now I am purporting to speak 
for the President, but I believe it is because of trying to 
balance concerns that might arise that in fact the NSA was 
engaged in electronic surveillance with respect to domestic 
calls. So there was a decision made that this is the 
appropriate balance. There may be some in America, I suspect 
there are some in America who are saying, ``Well, you know, if 
you've got reason to believe that you've got two members of al 
Qaeda talking to each other in America, my God, why aren't you 
listening to their conversations?''
    Again, this was a judgment made that this was the right 
balance between the security of our country and protecting the 
privacy interests of Americans.
    Senator Biden. Well, the President said he would do 
everything under the law to prevent another 9/11. The 
communications that occurred within this country, not outside 
this country, which, in fact, brought about 9/11 would not be 
captured by the President's efforts here. Is he refusing to do 
it for public relations reasons, for appearance reasons, or 
because he thinks he does not have the constitutional authority 
to do it?
    Attorney General Gonzales. I don't believe that it is a 
question of constitutional authority. That analysis, quite 
frankly, had not been conducted. It is not a question of public 
relations. In his judgment, it was the appropriate thing to do 
given the circumstances that we find ourselves in.
    Senator Biden. Who determines what calls or e-mails are to 
be monitored?
    Attorney General Gonzales. The decisions as to which 
communications are to be surveilled are made by intelligence 
experts out at NSA. As I indicated, I believe, in response to 
an earlier question, these are individuals who are expert in al 
Qaeda's aims, objectives, communications. I have heard General 
Hayden say that they are the best at what they do. They know 
about al Qaeda, and they would probably be in the best 
position, better than certainly any lawyer, in evaluating 
whether or not there are reasonable grounds to believe that 
this person is an agent or member of al Qaeda or an affiliated 
terrorist organization.
    Senator Biden. How many of them are there?
    Attorney General Gonzales. Senator, I do not know.
    Senator Biden. There are thousands of people who work for 
NSA. It would be useful for us to know. Are there two people? 
Five people? Twenty-five people? Two hundred and fifty people? 
A thousand people?
    Attorney General Gonzales. Senator, I don't know the exact 
number of people out at NSA who are working on this program. As 
I indicated to you, the people that are making the decision 
about where the surveillance should occur are people that are 
experts with respect to al Qaeda.
    Senator Biden. Well, what are the guidelines? Are there any 
written guidelines they are bound by?
    Attorney General Gonzales. Senator, there are guidelines. 
There are minimization procedures. As you know, there are 
minimization procedures for the work of NSA with respect to its 
collection activities under FISA, with respect to its 
collection activities under 12333, Executive Order 12333. There 
are minimization requirements that are generally comparable 
with respect to this program.
    I understand there is also a monthly sort of senior 
directors' meeting, due diligence meeting out at NSA, where 
they talk about how the program is going. They evaluate how the 
program is going, try to identify if there are any problems. 
And so they spend a great deal of time making sure the program 
is being authorized in a way that is consistent with the 
President's authorization.
    Senator Biden. By definition, you have acknowledged, 
though, the very minimization programs that exist under FISA 
you are not bound by. You have acknowledged that you are not 
bound by FISA under this program; therefore, are you telling me 
the minimization programs that exist under FISA as the way FISA 
is applied are adhered to?
    Attorney General Gonzales. OK. I am sorry if I was 
confusing in my response. What I was meaning to say is that 
there are minimization requirements. Those minimization 
requirements are basically consistent with the minimization 
requirements that exist with respect to FISA if FISA were to 
apply.
    Senator Biden. Would it be in any way compromise the 
program if you made available to the Intelligence Committee 
what those minimization procedures that are being followed are?
    Attorney General Gonzales. Well, of course, the 
minimization procedures themselves under 12333, and I believe 
perhaps under the FISA Court, are classified. I also believe 
they probably have been shared with the Intel Committee.
    Senator Biden. They have not, to the best of my knowledge. 
They have not been shared with the Intelligence Committee, to 
the best of my knowledge, unless you are talking about this 
very small group, the Chairman and the Ranking Member.
    Attorney General Gonzales. Senator, I am talking about the 
minimization procedures for 12333 and for FISA.
    Senator Biden. Let me be very precise. I have not heard of 
NSA saying to the Intelligence Committee, ``We are binding 
ourselves as we engage in this activity under the minimization 
procedures of 12333 as well as statutes.'' I am unaware that 
that is written down or stated anywhere or been presented to 
the Intelligence Committee. Can you assure us that has been 
done?
    Attorney General Gonzales. No, Senator, I can't assure you 
that.
    Senator Biden. Can you assure us, General, that you are 
fully, totally informed and confident that you know the 
absolute detail with which this program is being conducted? Can 
you assure us, you personally, that no one is being 
eavesdropped upon in the United States other than someone who 
has a communication that is emanating from foreign soil by a 
suspected terrorist, al Qaeda, or otherwise?
    Attorney General Gonzales. Senator, I can't give you 
absolute assurance--
    Senator Biden. Who can?
    Attorney General Gonzales [continuing]. The kind that you 
have asked for. Certainly General Hayden knows more about the 
operational details of this program. What I can give the 
American people assurance of is that we have a number of 
safeguards in place so that we can say with a high degree of 
confidence or certainty that what the President has authorized 
in connection with this program, that those procedures are 
being followed.
    Senator Biden. Mr. Chairman, my time is up. This is why the 
Intelligence Committee has a responsibility to be able to look 
at someone and have an absolute, guaranteed assurance that 
under no circumstance is any American being eavesdropped upon 
unless it is coming from foreign soil and a suspected 
terrorist, and do it under oath and do it under penalty of law 
if they have misrepresented. I am not suggesting the Attorney 
General can do that. We have got to find out who can do that.
    Chairman Specter. Thank you, Senator Biden.
    Senator Leahy?
    Senator Leahy. Mr. Chairman, just for Senator Biden's 
round, you put into the record the letter from Senator Roberts 
that was sent to the two of us concerning the authority. I want 
to place in the record a letter from Bruce Fein, formerly a 
senior Justice Department official in the Reagan 
administration, basically responding to Senator Roberts's 
letter. I mentioned earlier that Mr. Fein was very critical of 
this program. In fact, at that point, why don't I just put in--
I have a number of things here, if I could.
    Chairman Specter. Without objection, the letter from Mr. 
Bruce Fein will be made part of the record. And do you have 
other unanimous consent requests?
    Senator Leahy. For other material regarding this hearing, 
if I might put them all in the record.
    Chairman Specter. Without objection, those materials will 
be made a part of the record.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman. Thank you, Mr. 
Attorney General.
    I think it is very interesting how the argument over this 
program has evolved in the last several weeks from initial 
concerns about the program itself now to some very different 
questions. And I think it is a good evolution because I doubt, 
if we polled the members of this Committee today, that there 
would be anybody who would vote against the conduct of this 
particular kind of surveillance.
    There was then the suggestion that while the program is 
good, it is being conducted illegally. That was the charge, and 
I would submit a very serious charge, that the Ranking Member 
made earlier in his remarks.
    It seems to me that a little humility is called for by the 
members of this Committee, especially before we accuse the 
President of committing a crime, which is what illegal activity 
is. If our hearings with now-Justices Alito and Roberts 
demonstrated anything, I think it is that there are a lot of 
smart lawyers in Washington, D.C., other than those who are 
sitting here on this Committee.
    And in that regard, I appreciate the last couple of rounds 
of questions that were asked by Senators Kennedy, Biden, and 
Grassley because they got more into specifics about how we 
might have better oversight.
    Before I get into that, let me just ask four specific 
questions that I think you can answer very, very briefly. I am 
reminded, by the way--I told one of my staff the very first 
time I saw a murder trial before I went to law school, I was 
absolutely persuaded after the prosecution's summation that 
this guy was guilty as could be. Then after his lawyers argued, 
I was absolutely certain that he was innocent. And by the time 
the prosecutor finished, I was once again convinced that maybe 
he was guilty--the bottom line being that with tough legal 
questions, good lawyers take both sides and there are two sides 
to every question and you should not prejudge. And that is what 
I think happened with regard to this program. Before you and 
others in the administration explained the legal rationale for 
it, there were people jumping to conclusions about its 
illegality.
    Now, I think you made four key points, and I just want to 
make sure that we have got them right.
    Your first key point was that Article II of the U.S. 
Constitution has always been interpreted as allowing the 
President to do what is necessary to conduct war, and that 
includes surveillance of the enemy. Is that right?
    Attorney General Gonzales. Yes, Senator.
    Senator Kyl. Second, that when Congress passed the 
authorization of military force on September 18, 2001, we 
actually did two things in that resolution. First of all, we 
affirmed the President's constitutional authority that I just 
spoke of.
    Attorney General Gonzales. Yes.
    Senator Kyl. And, second, we granted authority that 
included the words ``all necessary and appropriate force.''
    Attorney General Gonzales. Yes.
    Senator Kyl. And your point has been that that activity has 
always included surveillance of the enemy and, in fact, that 
the FISA Court itself has said that--has commented on that 
inherent authority in a situation in which it involved the 
detention of an American citizen who was involved in terrorist 
activity.
    Attorney General Gonzales. That would be the Supreme Court, 
Senator, not the FISA Court.
    Senator Kyl. The Supreme Court. I am sorry.
    Attorney General Gonzales. Yes, Senator.
    Senator Kyl. And that also, your second point is, the 
statutory authorization is contemplated in the FISA language 
except as authorized by statute.
    Attorney General Gonzales. That is correct. We are acting 
in a way that the President has authorized activities that are 
consistent with what FISA anticipated.
    Senator Kyl. Right. The third point is you talked a little 
bit about FISA and noted that in your view--and it is difficult 
to further discuss the point because you cannot discuss the 
detail of the program itself, but that the 1978 FISA law is 
really not well suited to the particular kind of program that 
is being conducted here, including the 72-hour provision of 
FISA. Is that correct?
    Attorney General Gonzales. That is correct, Senator, but I 
don't want these hearings to conclude today with the notion 
that FISA has not been effective. And, again, I think a lot of 
the safeguards, some of the procedures in FISA make a lot of 
sense. When you are talking about a peacetime situation, 
particularly domestic surveillance--FISA also covers that kind 
of activity. And so when you are talking about amending FISA 
because FISA is broke, well, the procedures in FISA under 
certain circumstances I think seem quite reasonable.
    Senator Kyl. And you continue to use FISA not only--well, 
you continue to use FISA including in regard to the war on 
terrorism.
    Attorney General Gonzales. Absolutely.
    Senator Kyl. The fourth key point that you argued about the 
checks and balances in the program, the fact that it has to be 
reauthorized every 45 days by the President himself, that there 
has been extensive congressional briefing of the Democrat and 
Republican leaders and Chairmen and Ranking Members, 
respectively, of the Intelligence Committees, and that there is 
extensive IG review. Is that correct?
    Attorney General Gonzales. That is correct.
    Senator Kyl. And the Inspector General is what Inspector 
General?
    Attorney General Gonzales. This is the Inspector General 
for the NSA.
    Senator Kyl. OK. In addition, you noted the two 
qualifications of the program: international communications 
involving al Qaeda or affiliated individuals.
    Attorney General Gonzales. That is correct, Senator.
    Senator Kyl. And, finally, you noted that this was as 
interpreted by the NSA professionals.
    Now, I thought there were two particularly interesting 
lines of inquiry, and one was Senator Biden's question about 
whether or not, if this program is really necessary, we 
shouldn't try to evaluate whether it should also be applied to 
calls from al Qaeda terrorist A to al Qaeda B, though they 
happen to be in the United States. And it was my understanding 
you said that the analysis of that had not been conducted. Is 
that correct?
    Attorney General Gonzales. The legal analysis as to whether 
or not that kind of surveillance--we haven't done that kind of 
analysis because, of course, the President--that is not what 
the President has authorized.
    Senator Kyl. I understand that, but I would suggest that 
that analysis should be undertaken because I think most 
Americans now appreciate that this is a very important program. 
It might warn us of an impending attack. It could be that the 
attackers are already in United States, and, therefore, it 
could involve communication within the United States. 
Understanding the need to balance the potential intrusion on 
privacy of American citizens within the United States, you 
would want to have a very careful constitutional analysis, and 
certainly the President would not want to authorize such an 
activity unless he felt that he was on very sound legal ground.
    On the other hand, there is no less reason to do it than 
there is to intercept international communications with respect 
to a potential terrorist warning or attack. So I would submit 
that Senator Biden is correct and that this--at least the 
inference was in his question that this study should be 
accomplished, and I would think that it should.
    I also think that both he and Senator Grassley and Senator 
Kennedy to some extent talked about, well, what happens if we 
are wrong here? How can we be assured that there is no improper 
surveillance? And in this regard, I would ask you to think 
about it, and if you care to comment right now, fine. But this 
might hit you cold.
    It seems to me that you might consider either in the 
Presidential directive and the execution of that or even 
potentially in congressional legislative authorization some 
kind of after-action report, some kind of quarterly review or 
some other appropriate timeframe, maybe every 45 days, whatever 
is appropriate, to the eight people who are currently briefed 
in the Congress on questions such as whether the program acted 
as it was intended, whether it appeared that somebody might 
have been surveilled who under the guidelines should not have 
been, and if there ever were such a case, how it happened and 
what is done to ensure that it does not happen again, and 
whether there was any damage as a result of that; and also just 
generally whether the program is having the intended result of 
being able to demonstrate important information to the people 
that we charge with that responsibility.
    It seems to me that reporting on that kind of activity, 
including information about the guidelines to provide some 
additional assurance that it is being conducted properly, would 
be appropriately briefed to the Members of Congress. We do have 
an oversight responsibility, but we are not the only 
governmental entity with responsibility here. The President has 
critical responsibility, and I agree with those who say that 
should there be an attack and a review of all of this activity 
is conducted, the President would be roundly criticized if he 
had a tool like this at his disposal and did not utilize it to 
protect the people of the United States of America.
    Attorney General Gonzales. Senator, I have not been present 
at all the briefings with Members of Congress, but in 
connection with those briefings where I was present, there was 
discussion about requiring some of the types of issues that you 
have just outlined. I would be happy to take back your 
comments.
    Senator Kyl. Thank you, Mr. Attorney General.
    Chairman Specter. Thank you, Senator Kyl.
    Senator Kohl?
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Attorney General, the administration and the Congress 
and the courts share a common goal: to protect the American 
people. We all believe that as we face the long-term threat 
from terrorism, we must work together to ensure that the 
American people are safe. We in Congress have our role to play 
by writing the laws that protect Americans, and you have your 
role executing those laws, and, of course, the courts have 
their role.
    As part of this effort against terrorism, we have drafted 
many laws to give the administration the powers that it needs, 
and I am hopeful that we can work together again to ensure that 
our laws are working to protect the American people.
    Mr. Attorney General, if terrorists are operating in this 
country or people in this country are communicating with 
terrorists, then, of course, we must collect whatever 
information we can. To accomplish this, the administration had 
three options, as you know. First, you could have followed the 
current law, which most experts believe gives you all the 
authority you need to listen to these calls. Second, if you 
thought the law inadequate, you could have asked Congress to 
grant you additional authority. Or, third, the course you 
followed, conduct warrantless spying outside current law and 
without new authorization.
    If you had the two options that would have given you 
unquestionable authority to monitor these calls and one whose 
legality was at best questionable, then why did you go for the 
most questionable one? Why not either follow the law or seek 
new laws?
    Attorney General Gonzales. Senator, I agree with you, we 
are a Nation of laws, and we do believe we are following the 
law. And we do believe that the Constitution allows the 
President of the United States to engage in this kind of 
surveillance. We also believe that the authorization to use 
military force represents a supplemental grant of authority by 
the Congress to engage in this kind of surveillance totally 
consistent with FISA.
    If you study carefully the white paper that we have 
submitted, we are not arguing that somehow FISA was amended or 
that we are somehow overriding FISA. That is not what we are 
talking about here. We are acting in a manner consistent with 
FISA. FISA contemplates another statute. The Congress passed 
another--provided an additional supplemental statutory grant of 
authority through the authorization to use military force. And 
so I totally agree with what you are saying. We should be 
acting--particularly in a time of war, I think it is good to 
have the branches of Government working together. It is good 
for the country. I believe that is what happened here. Congress 
exercised its Article I authorities to pass the authorization 
to use military force. That supplemented the President's 
constitutional authorities as Commander in Chief, and we are 
working together--
    Senator Kohl. Are you saying that there was never any 
debate within the administration at any level or Justice 
Department at any level about whether or not you were pursuing 
the right course?
    Attorney General Gonzales. Senator--
    Senator Kohl. It is my understanding that there was debate.
    Attorney General Gonzales. Of course, there was a great 
deal of debate. Think about the issues that are implicated--
    Senator Kohl. Well, but if there were debate--
    Attorney General Gonzales. Of course, there was debate, 
Senator. Think about--if I may just finish this thought. Think 
about the issues that are implicated here. The very complicated 
Foreign Intelligence Surveillance Act, it is extremely 
complicated; the President's inherent authority under the 
Constitution as Commander in Chief; the Fourth Amendment; the 
interpretation of the authorization to use military force. You 
have got a program that has existed over 4 years. You have 
multiple lawyers looking at the legal analysis. Of course, 
there is--I mean, this is what lawyers do. We disagree, we 
debate, we argue.
    At the end of the day, this position represents the 
position of the executive branch on behalf of the President of 
the United States.
    Senator Kohl. Well, with all of the debate we are going 
through today and leading up to today, it seems to me clear 
that there is a real question about the course you pursued. 
That is why we are here today, which it would seem to me 
justify asking the question, Why did you take the third option? 
And, of course, you have given your answer. But there are some 
of us that would question that answer. Let's just move on.
    Attorney General Gonzales. Yes, Senator.
    Senator Kohl. Mr. Attorney General, if applying to the 
secret FISA Court is too burdensome, then would you agree to 
after-the-fact review by the FISA Court and by Congress of the 
wiretaps used specifically in this program? At least in this 
way we can ensure going forward that the authority will never 
be abused by this or any other President?
    Attorney General Gonzales. Senator, obviously, we want to 
ensure that there are no abuses. The President has said we are 
happy to listen to your ideas about legislation. There is 
concern, however, that, of course, the legislative process may 
result--first of all, of course, we believe the President 
already has the authority and legislation is not necessary 
here. But the legislative process may result in restrictions 
upon the President's--attempted restrictions upon the 
President's inherent constitutional authority. He may not be 
able to protect the country in the way that he believes he has 
the authority to do under the Constitution. And then, finally, 
of course, the legislative process is one where it is pretty 
difficult to keep certain information confidential, again, 
because if you are talking about amending FISA, there are many 
aspects of FISA that make sense to me, they work well. Again, 
you are talking about--if you are talking about domestic 
surveillance during peacetime, I think having the kind of 
restrictions that are in FISA makes all the sense in the world. 
And so you are probably talking about a very narrowly tailored, 
focused amendment in FISA. And, again, I am not the expert on 
legislation, but we are talking potentially a very narrow-
focused amendment of FISA. And I think I am concerned that that 
process will inform our enemies about what we are doing and how 
we are doing it.
    Subject to those concerns, of course, as the President 
said, we are happy to listen to your ideas.
    Senator Kohl. After-the-fact review by the FISA Court, you 
don't have any problem with that?
    Attorney General Gonzales. Again, Senator, we are happy to 
listen to what you--happy to consider it.
    Senator Kohl. All right. Mr. Attorney General, is there 
anything the President cannot do in a time of war in the name 
of protecting our country? We saw that the Justice Department 
changed its position on torture, but are there other limits to 
the President's power? Or can, in your opinion, the President 
assign to himself without an Act of Congress any powers that he 
believes are necessary?
    Attorney General Gonzales. Well, of course, we are not 
talking about acting outside of an Act of Congress here. We 
think in this case the President has acted consistent with an 
Act of Congress. And, of course, there are limits upon the 
President of the United States. The Constitution serves as a 
limit of the President. The President's authorities under 
Article II as Commander in Chief are not limitless. Obviously, 
Congress has a role to play in a time of war. The Constitution 
says Congress can declare war. The Constitution says it is 
Congress's job to raise and support armies. The Constitution 
says it is Congress's job to provide and maintain navies. It is 
the role of Congress to provide rules regarding capture.
    And so in the arena of war, it is not true that the 
President inhibits--or works in that arena to the exclusion of 
Congress. Quite the contrary, the Framers intended that in a 
time of war, both branches of Government have a role to play.
    Senator Kohl. If the administration investigates an 
American for ties to terrorism using this program and finds 
nothing--and, of course, news reports have indicated that this 
happens the vast majority of the time--then what is done with 
the information collected? Does the administration keep this 
information on file somewhere? Is it disposed of? What happens 
with this information?
    Attorney General Gonzales. Well, let me tell you that every 
morning I receive an intelligence briefing out at the FBI, and 
there are numbers of possible threats against the United 
States. Many of them wash out, thank God. The fact that they 
wash out does not mean that we should stop our intelligence 
collection. Intelligence is not perfect.
    In terms of what is actually done with that information, 
what I can say is, again, I cannot talk about specifics about 
it, but information is collected, information is retained, and 
information is disseminated in a way to protect the privacy 
interests of all Americans.
    Senator Kohl. So you are saying the information, even if it 
turns out to be without any correctness, the information is 
retained?
    Attorney General Gonzales. Senator, I cannot provide any 
more of an answer than the one I just gave. In terms of there 
are minimization requirements that exist, and we understand 
that we have an obligation to try to minimize intrusion into 
the privacy interests of Americans, and we endeavor to do that.
    Senator Kohl. Just to go back to what Senator Biden and 
then Senator Kyl referred to about al Qaeda-to-al Qaeda within 
the country, you are saying we do not get involved in those 
cases. Now, it would--
    Attorney General Gonzales. Not under the program on which I 
am testifying, that is right.
    Senator Kohl. It seems to me that you need to tell us a 
little bit more because to those of us who are listening, that 
is incomprehensible that you would go al Qaeda-to-al Qaeda 
outside the country, domestic-outside the country, but you 
would not intrude into al Qaeda-to-al Qaeda within the country. 
You are very smart. So are we. And to those of us who are 
interacting here today, there is something that unfathomable 
about that remark.
    Attorney General Gonzales. Well, Senator, we certainly 
endeavor to try to get that information in other ways if we 
can. But that is not what the President--
    Senator Kohl. No, but isn't it--you know, we need to have 
some logic, some sense, some clarity to this discussion this 
morning.
    Attorney General Gonzales. Senator, think about the 
reaction, the public reaction that has arisen in some quarters 
about this program. If the President had authorized domestic 
surveillance as well, even though we were talking about al 
Qaeda-to-al Qaeda, I think the reaction would have been twice 
as great. And so there was a judgment made that this was the 
appropriate line to draw in ensuring the security of our 
country and the protection of the privacy interests of 
Americans.
    Senator Kohl. I appreciate that. And before I turn it back, 
yet the President has said, you know, with great justification, 
he is going to protect the American people regardless, and if 
there is some criticism, he will take the criticism. And yet 
you are saying al Qaeda-to-al Qaeda within the country is 
beyond the bounds?
    Attorney General Gonzales. Senator, it is beyond the bounds 
of the program which I am testifying about today.
    Senator Kohl. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kohl--
    [Audience disruption.]
    Chairman Specter. If you do not sit down immediately, you 
will be removed from the chamber. Senator DeWine? Senator 
DeWine, that is your introduction.
    Senator DeWine. Thank you, Mr. Chairman.
    Senator Sessions. Mr. Chairman, I would like to state for 
the record that you are not a fascist.
    Chairman Specter. Thank you for that reassurance, Senator 
Sessions.
    [Laughter.]
    Chairman Specter. Senator DeWine?
    Senator DeWine. Mr. Chairman, this issue has been raised 
several times by several members. My understanding is Senator 
Roberts, Chairman of the Intelligence Committee, has announced 
that there will be a closed hearing on February 9th with 
Attorney General Gonzales as well as General Hayden to cover 
this issue.
    Mr. Attorney General, thank you very much for being with us 
today. We have had a lot of discussion and I know we are going 
to continue to have discussion about this very serious 
constitutional issue, constitutional law issue. Let me tell 
you, though, what I know and what I truly believe. I truly 
believe that the American people expect the President of the 
United States in a time of national emergency and peril to take 
actions to protect them, even if those actions are not 
specifically authorized by statute. I think they expect no 
less. They would want the President to do no less than that.
    Second, though, it is clear that there are serious legal 
and constitutional questions concerning whether the Fourth 
Amendment ``reasonableness'' requirement for searches requires 
the President, after a period of time, after a program has been 
in place for a period of time, to come to the Congress for 
statutory authorization to continue such actions. Legal 
scholars, Mr. Attorney General, can and certainly are debating 
this issue. But what is not debatable is that both from a 
constitutional as well as from a policy point of view, the 
President and the American people would be stronger, this 
country would be stronger and the President would be stronger 
if he did so, if he did come to the Congress for such specific 
statutory authorization.
    There was a reason that President George H.W. Bush and 
President George W. Bush both came to Congress prior to the 
respective wars in Iraq, even though some people argued and 
would still argue today that such resolutions were legally and 
constitutionally unnecessary. Presidents are always stronger in 
the conduct of foreign affairs when Congress is on board.
    Statutory authorization and congressional oversight for 
this program would avoid what may be a very divisive, hurtful 
debate here in Congress. I truly believe it is in our national 
interest to resolve this matter as quickly as possible.
    Mr. Attorney General, we need meaningful oversight by the 
Intelligence Committee, followed then by whatever statutory 
changes in the law might be appropriate.
    Let me ask you, to follow on that statement, a question. 
What if Congress passed a law which just excluded FISA from any 
electronic surveillance of international communications where 
one party to the communications is a member of or affiliated 
with al Qaeda or a related terrorist group? And, further, if we 
went on and provided that there would be the normal oversight 
by both the House and the Senate Intelligence Committee, 
periodically that the administration would report to the 
Intelligence Committees on the progress of that program? We 
obviously have the ability within the Committee to keep such 
things classified. We do it all the time. What would be your 
reaction to that? Is that something that would be possible from 
your point of view?
    Attorney General Gonzales. Well, I will repeat what the 
President has said, and that is, to the extent that Congress 
wants to suggest legislation, obviously we will listen to your 
ideas. I have already in response to an earlier question talked 
about some of the concerns that we have. Obviously, generally 
most concerns can be addressed in one way or the other, and if 
they could legitimately be addressed, then obviously we would 
listen to your questions--I mean, we would listen and consider 
your ideas.
    Senator DeWine. I appreciate that. You know, I understand 
your legal position. You have made it very clear today, I think 
articulated it very well. The administration has articulated 
it. Obviously, there are others who don't agree with your 
position. This is going to be a debate we are going to continue 
to have. It just seems to me that some 4 years into this 
program, this debate could be put aside if--we ought to be able 
to find some way to be able to protect the American people, but 
take care of what legal issues that some might find to be 
there. And I would look forward, frankly, to working with you 
on that.
    Let me move, if I could, to what to me has been a troubling 
question about FISA, really unrelated to this program. And you 
and I have talked about this before. You have talked today 
about how FISA is being used. Frankly, it is being used more 
than it has been used in the past.
    Attorney General Gonzales. The use of FISA is up 18 percent 
from 2004 to 2005.
    Senator DeWine. Let me talk about something, though, that 
troubles me, and I have been talking and asking about this 
problem since 2004. Let me give you a quote from 2004. Director 
Mueller of the FBI said, and I quote, ``We still have some 
concerns, and we are addressing it with the Department of 
Justice. But there is still frustration out there in the field 
in certain areas where, because we have had to prioritize, we 
cannot get to certain requests for FISA as fast as perhaps we 
might have in the past.''
    My understanding, Mr. Attorney General, from recent 
information that I have, current information, is that there is 
still a backlog, that there are still what I would call 
mechanical problems, both in the FISA Court and at Justice. 
Could you just briefly address that? Because every time I see 
you, I am going to go back at this because--I am not saying it 
is your fault, but I just think it is something that working 
together we need to resolve. And this is something, I think, 
that Congress has to play a part in. If you don't have the 
money, if you don't have the resources, we cannot tolerate a 
backlog in FISA applications if it can be fixed mechanically.
    Attorney General Gonzales. I appreciate the opportunity to 
respond to that question, Senator.
    I will say that the staff, our staff at the Department of 
Justice--these are the experts in the FISA process--has in 
essence tripled since 2002. I think we all realized following 
the attacks on 9/11 that we needed to get more folks on board 
to help us with the FISA applications.
    It still takes too long, in my judgment, to get FISAs 
approved. I described in my opening statement the process that 
is involved here. FISA applications are often an inch thick, 
and it requires a sign-off by analysts out at NSA, lawyers at 
NSA, lawyers at the Department, and finally me. And then it has 
got to be approved by the FISA Court.
    I have got to tell you--I was going to try to make this 
point in response to a question from the Chairman--the members 
of the FISA Court are heroes, as far as I am concerned. They 
are available day or night. They are working on weekends and 
holidays because they want to make themselves available. They 
are killing themselves, quite frankly, making themselves 
available to be there, to sign off on a FISA application if it 
meets the requirements of the statute. But we still have some 
problems.
    It is true that because of the procedures that are in FISA, 
it inherently is going to result in some kind of delay. And for 
that reason, the President made the determination that for 
certain very narrow circumstances, he is going to authorize the 
terrorist surveillance program.
    But we continue to work at it, and I know you are very 
interested in this, and I continue to--and I look forward to 
continuing to have discussions with you about it.
    Senator DeWine. Well, I appreciate that, Mr. Attorney 
General. It is something that continues to trouble me. Putting 
aside the issue that we are here about today, FISA is a matter 
of national security, and I am still hearing things that, 
frankly, disturb me. And it is just a question of whether this 
can be sped up. Some things are inherent, as you say, but I get 
the impression that part of the problem is not inherent and I 
think could be fixed.
    Attorney General Gonzales. Well, one of the things that 
hopefully will happen soon is the creation of a new national 
security division. As you know, the PATRIOT Act has a provision 
in it which creates a new Assistant Attorney General for the 
national security division. We believe that division will 
assist in the streamlining of the FISA process.
    Senator DeWine. Thank you, Mr. Attorney General.
    Attorney General Gonzales. Senator? Mr. Chairman?
    Chairman Specter. Thank you, Senator DeWine.
    Senator Feinstein?
    Attorney General Gonzales. Mr. Chairman?
    Senator Sessions. Mr. Chairman, I think the Attorney 
General had a question.
    Attorney General Gonzales. I am sorry. Could I make one 
point in response to Senator Kohl? I made this point, but I 
want to make sure that the Committee understands this in terms 
of domestic-to-domestic al Qaeda communications. I said that we 
are using other authorities. To the extent we can engage in 
intercepting al Qaeda domestic-to-domestic calls, even under 
FISA, if we can do it, we are doing it. So I don't want the 
American people to believe that we are doing absolutely nothing 
about al Qaeda domestic-to-domestic calls. The President has 
made a determination this is where the line is going to be, and 
so we operate within those boundaries. And so we take advantage 
of the tools that are out there. And FISA isn't always the most 
efficient way to deal with that, but if that is all we have, 
that is what we use.
    So I guess I want to make sure the American people 
understand that we are not simply ignoring domestic-to-domestic 
communications of al Qaeda. We are going after it.
    Chairman Specter. Thank you, Attorney General Gonzales, for 
that clarification.
    Senator Feinstein?
    Senator Feinstein. Thanks very much, Mr. Chairman.
    I would like to make clear that, for me at least, this 
hearing is not about whether our Nation should aggressively 
combat terrorism. I think we all agree on that. And it is not 
about whether we should use sophisticated electronic 
surveillance to learn about terrorists' plans, intentions and 
capabilities. We all agree on that. And it is not about whether 
we should use those techniques inside the United States to 
guard against attacks. We all agree on that.
    But this administration is effectively saying--and the 
Attorney General has said it today--it does not have to follow 
the law. And this, Mr. Attorney General, I believe is a very 
slippery slope. It is fraught with consequences. The 
Intelligence Committees have not been briefed on the scope and 
nature of the program. They have not been able to explore what 
is a link or an affiliate to al Qaeda or what minimization 
procedures are in place. We know nothing about the program 
other than what we have read in the newspapers.
    And so it comes with huge shock, as Senator Leahy said, 
that the President of the United States in Buffalo, New York, 
in 2004, would say, and I quote, ``Any time you hear the U.S. 
Government talking about wiretap, it requires--a wiretap 
requires a court order. Nothing is changed, by the way. When we 
are talking about chasing down terrorists, we are talking about 
getting a court order before we do so.''
    Mr. Attorney General, in light of what you and the 
President have said in the past month, this statement appears 
to be false. Do you agree?
    Attorney General Gonzales. No, I don't, Senator. In fact, I 
take great issue with your suggestion that somehow the 
President of the United States was not being totally 
forthcoming with the American people. I have his statement, and 
in the sentence immediately before what you are talking about, 
he said he was referring to roving wiretaps. And so I think 
anyone who--I think--
    Senator Feinstein. So you are saying that statement only 
relates to roving wiretaps. Is that correct?
    Attorney General Gonzales. Senator, that speech was about--
that discussion was about the PATRIOT Act, and right before he 
uttered those words that you are referring to, he said, 
``Secondly, there are such things as roving wiretaps. Now, by 
the way, any time you hear the U.S. Government talking about 
wiretaps, it requires--a wiretap requires a court order.''
    So, as you know, the President is not a lawyer, but this 
was a discussion about the PATRIOT Act. This was a discussion 
about roving wiretaps, and I think people are--some people are 
trying to take part of his statement out of context, and I 
think that is unfair.
    Senator Feinstein. OK, fair enough. Let me move along.
    In October 2002, at a public hearing of the Senate-House 
joint inquiry into NSA activities, the then-NSA Director 
General Michael Hayden told me, ``If at times I seem indirect 
or incomplete, I hope that you and the public understand that I 
have discussed our operations fully and unreservedly in earlier 
closed sessions.''
    As I mentioned, the Intelligence Committee has not been 
notified.
    Let me ask you this: If the President determined that a 
truthful answer to questions posed by the Congress to you, 
including the questions I ask here today, would hinder his 
ability to function as Commander in Chief, does the 
authorization for use of military force or his asserted plenary 
powers authorize you to provide false or misleading answers to 
such questions?
    Attorney General Gonzales. Absolutely no, Senator. Of 
course not. Nothing--
    Senator Feinstein. Thank you. I just asked the question. A 
yes or no--
    Attorney General Gonzales [continuing]. Would excuse false 
statements before the Congress.
    Senator Feinstein. All right. You have advanced what I 
think is a radical legal theory here today. The theory compels 
the conclusion that the President's power to defend the Nation 
is unchecked by law, that he acts alone and according to his 
own discretion, and that the Congress's role at best is 
advisory. You say that the Authorization for Use of Military 
Force allows the President to circumvent the Foreign 
Intelligence Surveillance Act, and that if the AUMF doesn't, 
then the Constitution does.
    Senator Daschle has testified that when he was Majority 
Leader, the administration came to him shortly before the AUMF 
came to the floor and asked that the words ``inside the United 
States'' be added to the authorization, and that he said, 
``Absolutely not,'' and it was withdrawn.
    The question I have is: How do you interpret congressional 
intent from the passage of the AUMF that it gave the 
administration the authority to order electronic surveillance 
of Americans in contravention to the FISA law?
    Attorney General Gonzales. Senator, it is not in 
contravention of the FISA law. We believe the authorization to 
use military force is the kind of congressional action that the 
FISA law anticipated. It has never been our position that 
somehow the AUMF amended FISA. It has never been our position 
that somehow FISA has been overridden. Quite the contrary, we 
believe that the President's authorizations are fully 
consistent with the provisions of FISA. In terms of--
    Senator Feinstein. Now, let me stop you just for a second. 
I have read the FISA law. There are only two escape hatches: 
one is 15 days after a declaration of war, and the second is 
the 72-hour provision, which was actually amended by us in the 
PATRIOT Act from a lower number to 72 hours. Those are the only 
two escape hatches in FISA.
    What in FISA specifically then allows you to conduct 
electronic intelligence--excuse me, electronic surveillance 
within America on Americans?
    Attorney General Gonzales. I believe that in Section 109 it 
talks about persons not engaging in electronic surveillance 
under color of law except as authorized by statute. I may not 
have it exactly right. We believe that that is the provision in 
the statute which allows us to rely upon the authorization of 
the use of military force.
    Now, you may say, well, I disagree with that construction 
That may be so. There may be other constructions that may be 
fairly possible. We believe this is a fairly possible reading 
of FISA, and as the Supreme Court has said, under the Canon of 
Constitutional Avoidance, if you have two possible 
constructions of a statute and one would result in raising a 
constitutional issue, if the other interpretation is one that 
is fairly possible, that is the interpretation that must be 
applied. And if you reject our interpretation of FISA, Senator, 
then you have a situation where you have got an Act of Congress 
in tension with the President's constitutional authority as 
Commander in Chief. And the Supreme Court has said when that 
happens, you go with another interpretation if it is a fair 
application, and that is what we have done here.
    Senator Feinstein. Could you check your citation? I just 
read 109, and I do not believe it says that. We will talk about 
that after lunch.
    Attorney General Gonzales. Yes, ma'am.
    Senator Feinstein. Let me go on and tell you why it is a 
slippery slope. Senator Kennedy asked you about first-class 
mail, has it been opened, and you declined answering. Let me 
ask this way: Has any other secret order or directive been 
issued by the President or any other senior administration 
official which authorizes conduct which would otherwise be 
prohibited by law? Yes or no will do.
    Attorney General Gonzales. Senator, the President has not 
authorized any conduct that I am aware of that is in 
contravention of law.
    Senator Feinstein. Has the President ever invoked this 
authority with respect to any activity other than NSA 
surveillance?
    Attorney General Gonzales. Again, Senator, I am not sure 
how to answer that question. The President has exercised his 
authority to authorize this very targeted surveillance of 
international communications of the enemy. I am sorry. Your 
question is?
    Senator Feinstein. Has the President ever invoked this 
authority with respect to any activity other than the program 
we are discussing, the NSA surveillance--
    Attorney General Gonzales. Senator, I am not comfortable 
going down the road of saying yes or no as to what the 
President has or has not authorized. I am here--
    Senator Feinstein. OK. That is fine. I just want to ask 
some others. If you don't want to answer them, don't answer 
them.
    Attorney General Gonzales. Yes, ma'am.
    Senator Feinstein. Can the President suspend the 
application of the Posse Comitatus Act?
    Attorney General Gonzales. Of course, Senator, that is not 
what is at issue here.
    Senator Feinstein. I understand that.
    Attorney General Gonzales. This is not about law 
enforcement. This is about foreign intelligence.
    Senator Feinstein. I am asking questions. You choose not to 
answer it?
    Attorney General Gonzales. Yes, ma'am.
    Senator Feinstein. OK. Can the President suspend, in secret 
or otherwise, the application of Section 503 of the National 
Security Act, which states that no covert action may be 
conducted which is intended to influence United States 
political processes, public opinion, policies, or media? In 
other words, can he engage in otherwise illegal propaganda?
    Attorney General Gonzales. Senator, let me respond to--this 
will probably be my response to all your questions of these 
kinds of hypotheticals. The question as to whether or not 
Congress can pass a statute that is in tension with a 
President's constitutional authority, those are very, very 
difficult questions. And for me to answer those questions sort 
of off the cuff I think would not be responsible. I think that, 
again, we have got--
    Senator Feinstein. OK. That is fine. I don't want to argue 
with you. All I am trying to say is this is a slippery slope. 
Once you do one, there are a whole series of actions that can 
be taken, and I suspect the temptations to take them are very 
great. We are either a Nation that practices our rule of law or 
we are not.
    Has any Supreme Court case since FISA held that the 
President can wiretap Americans once Congress has passed a law 
forbidding this without warrant?
    Attorney General Gonzales. I think the only case that comes 
to mind that is really pertinent would be the 2002 case, In re 
Sealed Case, by the FISA Court of Review where, while the court 
did not decide this issue, the court acknowledged that every 
case that has considered this has found that the President has 
the inherent authority. And assuming that to be true, that 
court said that FISA could not encroach upon those authorities, 
those constitutional inherent authorities.
    Senator Feinstein. My time is up. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Sessions?
    Senator Sessions. Thank you.
    Attorney General Gonzales, I believe you have faithfully 
fulfilled your responsibility to give your best honest answers 
to the questions so far. I think they have been very effective. 
If people have listened, I think they will feel much better 
about the program that the President has authorized and that 
you are explaining, because some of the news articles in 
particular gave the impression that there is widespread 
wiretapping of American citizens in domestic situations, and in 
every instance there is an international call. Most of us by 
plain language would understand ``international'' to be 
different from ``domestic,'' and the President has limited this 
to international calls in which one or more parties are 
connected to al Qaeda. Is that correct?
    Attorney General Gonzales. Sir, the program that I am 
talking about today, yes, is limited to international calls.
    Senator Sessions. And I am sorry that there are those who 
would suggest that in previous testimony you may have not been 
truthful with the Committee. I don't believe that is your 
reputation. I don't believe that is fair. I think you have a 
good answer to any of those charges. And I also think it is 
unfortunate that we are in a position where, when the President 
is talking about the PATRIOT Act, just like we talked about the 
PATRIOT Act throughout the debate on the PATRIOT Act, we 
insisted that it did not authorize non-warrant wiretaps or 
searches. That is what we said about the PATRIOT Act, because 
it did not. So don't you think it is unfair to mix classified 
international surveillance issues with the PATRIOT Act debate?
    Attorney General Gonzales. Well, Senator, I don't know if 
it is my place to characterize whether it is fair or unfair. I 
do believe that there is a difference, certainly in practice, 
and a difference recognizing the course between domestic 
surveillance and international surveillance.
    Senator Sessions. Well, I think it is important for us to 
remember the world is hearing this, and so we have people 
suggesting that the Attorney General of the United States and 
the President of the United States are deliberately lying. And 
it is not fair. It is not accurate. It is not true. So I think 
that is important.
    With regard to the briefing of Congress, the eight members 
that have been designated to receive highly secret information 
were briefed on this program, were they not, Attorney General 
Gonzales?
    Attorney General Gonzales. Sir, from the outset, the 
bipartisan leadership of the Intel Committees have been briefed 
in great detail about this, and there have also, in addition, 
been fewer briefings with respect to the bipartisan 
congressional leadership.
    Senator Sessions. I would just note that, of course, there 
are eight that hold those positions, but since the beginning of 
the program, at least 15 individuals have been in and out of 
those positions, including Tom Daschle, Bob Graham, and Dick 
Gephardt, who are no longer in Congress, but were presumably 
part of that process and were aware of it and participated in 
passing the FISA Act and believed that it was correct to go 
forward. I don't think they were hot-boxed or forced into this. 
I believe they weighed these issues based on what they thought 
the national interest was and what the law was, and they made 
their decision not to object to this program. And there has 
been no formal objection by any of those members to this 
program, and I think it is unfair to suggest that the President 
has acted in secret without informing key Members of Congress 
about this highly classified program.
    Attorney General Gonzales. Senator, of course, I cannot 
speak for the Members of Congress, but to my knowledge, no one 
has asserted the program should be stopped.
    Senator Sessions. I thought about the Super Bowl. There was 
some reference to the intense security around that event, that 
police and Secret Service and every available Federal and, I 
guess, State agency that could be brought into that were 
intensely aware that there could be an attack on the Super Bowl 
or any other major public event like that. But the Super Bowl 
would be a prime target, would you not agree, of the al Qaeda 
types?
    Attorney General Gonzales. Clearly, we would have concerns 
that events like the Super Bowl would be ones that would be 
attractive to al Qaeda.
    Senator Sessions. And intelligence is valuable to that. I 
mean, that is the key to it, and that is what we are trying to 
gather, and everybody understood after 9/11 that our failure 
was not in the capability to stop people; it was our capability 
to identify them. This program seems to me to be a step forward 
in our ability to identify them, and I believe, as you have 
explained it, it is consistent with our laws.
    With regard to statutory construction and how we should 
construe it, people have made the point that it is a general 
principle that a specific statute might control over a general 
statute. But isn't it true that if a general statute clearly 
contemplates certain actions, and it cannot be effective 
without those actions, then it will overrule the more specific 
earlier statute?
    Attorney General Gonzales. Depending on the circumstances, 
that would certainly be true, Senator. I might just also remind 
people when you are talking about general statutes versus 
specific statutes, this same argument was raised in connection 
with the Hamdi case. We had a specific statute that said no 
American citizen could be detained except as otherwise 
authorized by statute. And the Supreme Court said the 
authorization to use military force, even though it may have 
been characterized by some as a broad grant of authority, 
nonetheless, that was sufficient to override the prohibition in 
4001(a).
    Senator Sessions. I think that is absolutely critical. I 
believe the Hamdi case is a pivotal authority here. After FISA, 
after the authorization of force against al Qaeda, an American 
citizen was detained without trial, and the Supreme Court of 
the United States held that since it was part of a military 
action in wartime, that person could be held without trial as 
an incident to the authorization of force. Would you not agree 
that listening in on a conversation is less intrusive than 
putting an American citizen in jail?
    Attorney General Gonzales. It would certainly seem to me 
that it would be less intrusive. Just for the record, the 
language that I keep referring to, ``fundamental incident of 
waging war,'' was from Justice O'Connor. It is part of a 
plurality. And, of course, Justice Thomas in essence would have 
felt the President had the inherent authority under the 
Constitution to detain an American citizen.
    So I just want to make sure that we are accurate in the way 
we describe the decisions by the court.
    Senator Sessions. Well, you have been very careful about 
those things, and we appreciate that.
    With regard to history, you made reference to history. 
Isn't it true--of course--that President Washington instructed 
his army to find ways to intercept letters from British 
operatives? President Lincoln ordered warrantless tapping of 
telegraph lines, telegraph communications during the Civil War 
to try to identify troop movements of the enemy?
    Is it true that President Wilson authorized the military to 
intercept all telephone and telegraph traffic going into and 
out of the United States?
    Attorney General Gonzales. That is correct.
    Senator Sessions. And that President Roosevelt instructed 
the government to use listening devices to learn the plans of 
spies in the United States and that he gave the military the 
authority to access, without review, without warrant, all 
telecommunications ``passing between the United States and any 
foreign country.''
    Attorney General Gonzales. That is correct, sir.
    Senator Sessions. What I would say to my colleagues and to 
the American people is, under FISA and other standards that we 
are using today, we have far more restraints on our military 
and the executive branch than history has demonstrated. We have 
absolutely not--we are not going hog wild restraining American 
liberties. In fact, the trend has been to provide more and more 
protections, and there can be a danger that we go too far in 
that and allow sleeper cells in this country to operate in a 
way that they are successful in killing American citizens that 
could have been intercepted and stopped.
    Attorney General Gonzales. Of course, Senator, we are doing 
everything we can to ensure that that does not happen.
    Senator Sessions. But when you do domestic--well, I will 
not go into that.
    I want to ask you this question about President Clinton's 
administration ordering several warrantless searches on the 
home and property of an alleged spy, Aldrich Ames. Actually, he 
was convicted. Isn't that true? It also authorized a 
warrantless search of the Mississippi home of a suspected 
terrorist financier. And the Deputy Attorney General, Jamie 
Gorelick, the second in command of the Clinton Department of 
Justice, said this: ``[T]he President has inherent authority to 
conduct warrantless physical searches for foreign intelligence 
purposes,'' and ``the rules and methodology for criminal 
searches are inconsistent with the collection of foreign 
intelligence and would unduly frustrate the President in 
carrying out his foreign intelligence responsibilities.''
    Are those comments relevant to the discussion we are having 
today?
    Attorney General Gonzales. As I understand it, that was her 
testimony, and I think there was an acknowledgment of the 
President's inherent constitutional authority.
    Now, of course, some would rightly say that in response to 
that, FISA was changed to include physical searches, and so the 
question is--again, that tees up, I think, a difficult 
constitutional issue, whether or not--can the Congress 
constitutionally restrict the ability of the President of the 
United States to engage in surveillance of the enemy during a 
time of war? And, fortunately, I don't think we need to answer 
that question. I think in this case the Congress has authorized 
the President to use all necessary and appropriate force, which 
would include electronic surveillance of the enemy.
    Senator Sessions. But Deputy Attorney General Gorelick in 
the Clinton administration defended these searches. She 
asserted it was a constitutional power of the President, and 
this was in a period of peace, not even in war. Isn't that 
correct?
    Attorney General Gonzales. That is correct.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Sessions.
    We will now take a luncheon break, and we will resume at 
1:45.
    [Whereupon, at 12:35 p.m., the Committee recessed, to 
reconvene at 1:45 p.m., this same day.]

    AFTERNOON SESSION [1:45 P.M.]
    Chairman Specter. It is 1:45. The Committee prides itself 
on being prompt, and we thank you, Mr. Attorney General, for 
being prompt in coming back.
    I think the hearings have been very productive. We've had 
full attendance, or almost full attendance, and I think the 
other Senators who could not be here early have an excuse--it 
is unusual to have Monday morning session for the U.S. Senate. 
And we have done that because this Committee has been so busy. 
We have asbestos reform legislation, which Senator Leahy and I 
are cosponsoring, which is coming to the floor later today and 
we have had a full platter with the confirmation of Justice 
Alito. We wanted to have this hearing at an early date and this 
was the earliest we could do, given the intervening holidays 
after the program was announced back on December 16th.
    We anticipated a full day of hearings and at least two 
rounds, and it is apparent to me at this point that we are not 
going to be able to finish today within a reasonable time. 
Senator Feingold is nodding in the affirmative. That is the 
first time I have got him to nod in the affirmative today, so 
you see we are making some progress. But I do believe there 
will be a full second round. We don't function too well into 
the evening. If we have to, we do, but it is difficult for the 
witness. I have conferred with the Attorney General, who has 
graciously consented to come back on a second day. So we will 
proceed through until about 5 o'clock this afternoon and then 
we will reschedule for another day. By that time, everybody 
will have had a first round, and it will give us the time to 
digest what we have heard. Then we will continue on a second 
day.
    Senator Feingold, you are recognized.
    Senator Feingold. Good afternoon, Mr. Attorney General and 
Mr. Chairman.
    Let me say, of course, we have a disagreement, Mr. 
Chairman, about whether this witness should have been sworn, 
and that is a serious disagreement. But let me nod in an 
affirmative way about your Pittsburgh Steelers, first of all.
    [Laughter.]
    Chairman Specter. Green Bay--
    Senator Feingold. Green Bay will be back.
    Senator Specter. With Green Bay out of it, why not root for 
the Steelers, Senator Feingold?
    Senator Leahy. That is why we didn't have the hearing last 
night.
    Senator Feingold. Well, I understood that. I was curious 
about that.
    Chairman Specter. Reset the clock at 10 minutes.
    [Laughter.]
    Chairman Specter. I was only kidding.
    Senator Feingold. Let me also say, Mr. Chairman, despite 
our disagreement about the swearing-in issue, that I praise you 
for your candor and your leadership on this issue and for 
holding this hearing and the other hearings you may be holding.
    I also want to compliment some of my colleagues on the 
other side of the aisle for their candor on this issue already, 
publicly. People like Senator DeWine, Senator Graham, Senator 
Brownback. Maybe they don't want me to mention their names, but 
the fact is they have publicly disputed this fantasy version of 
the justification of this based on the Afghanistan Resolution. 
It is a fantasy version that no Senator, I think, can actually 
believe that we authorized this wiretapping.
    So the fact is, this can and should be a bipartisan issue. 
I see real promise for this being a bipartisan issue, and it 
should be. But the problem here is that what the administration 
has said is that when it comes to national security, the 
problem is that the Democrats have a pre-9/11 view of the 
world.
    Well, let me tell you what I think the problem is. The real 
problem is that the President seems to have a pre-1776 view of 
the world. That is the problem here. All of us are committed to 
defeating the terrorists who threaten our country, Mr. Attorney 
General. It is, without a doubt, our top priority. In fact I 
just want to read again what you said: ``As the President has 
said, if you are talking with al Qaeda, we want to know what 
you're saying.'' Absolutely right. No one on this Committee, I 
think no one in this body believes anything other than that. I 
want to state it as firmly as I can.
    But I believe that we can and must do that without 
violating the Constitution or jeopardizing the freedoms on 
which this country was founded. Our forefathers fought a 
revolution, a revolution to be free from rulers who put 
themselves above the law. And I have to say, Mr. Chairman, I 
think this administration has been violating the law and is 
misleading the American people to try to justify it.
    This hearing is not just a hearing about future possible 
solutions. That is fine to be part of the answer and part of 
the hearing. This hearing, Mr. Chairman, is also an inquiry 
into possible wrongdoing.
    Mr. Attorney General, there have already been a few 
mentions today of your testimony in January of 2005, your 
confirmation hearing. I am going to ask you a few quick, simple 
and factual questions, but I want to make it clear that I don't 
think this hearing is about our exchange or about me or what 
you said to me in particular. I am concerned about your 
testimony at that time because I do believe it was materially 
misleading. But I am even more concerned about the credibility 
of your administration, and I am even more concerned than that 
about the respect for the rule of law in this country. So that 
is the spirit of my questions.
    Mr. Attorney General, you served as White House Counsel 
from January 2001 until you became Attorney General in 2005. On 
January 6, 2005, you had a confirmation hearing for the 
Attorney General position before this Committee. Mr. Attorney 
General, you testified under oath at that hearing, didn't you?
    Attorney General Gonzales. Yes, sir.
    Senator Feingold. And, sir, I don't mean to belabor the 
point, but just so the record is clear, did you or anyone in 
the administration ask Chairman Specter or his staff that you 
not be put under oath today?
    Attorney General Gonzales. Senator, I have already 
indicated for the record, the Chairman asked my views about 
being sworn in and I said I had no objection.
    Senator Feingold. But did anyone, you or anyone in the 
administration, ask the Chairman to not have you sworn?
    Attorney General Gonzales. Sir, not to my knowledge.
    Chairman Specter. The answer is no.
    Senator Feingold. That's fine.
    At the time you testified in January of 2005, you were 
fully aware of the NSA program, were you not?
    Attorney General Gonzales. Yes, sir.
    Senator Feingold. You were also fully aware at the time you 
testified that the Justice Department had issued a legal 
justification for the program. Isn't that right?
    Attorney General Gonzales. Yes, there had been legal 
analysis performed by the Department of Justice.
    Senator Feingold. And you as White House Counsel agreed 
with that legal analysis, didn't you?
    Attorney General Gonzales. I agreed with the legal 
analysis, yes.
    Senator Feingold. And you had signed off on the program, 
right?
    Attorney General Gonzales. Yes. I do believe the 
President--I did believe at the time that the President has the 
authority to authorize this kind of--
    Senator Feingold. And you had signed off on that legal 
opinion. And yet, when I specifically asked you at the January 
2005 hearing whether in your opinion the President can 
authorize warrantless surveillance notwithstanding the foreign 
intelligence statutes of this country, you didn't tell us yes. 
Why not?
    Attorney General Gonzales. Sir, I believe your question, 
the hypothetical you posed--and I do consider it a 
hypothetical--which is whether or not had the President 
authorized activity, and specifically electronic surveillance, 
in violation of the laws--and I have tried to make clear today 
that in the legal analysis in the white paper, the position of 
the administration is, is that we--the President has authorized 
electronic surveillance in a manner that is totally consistent, 
not in violation, not--not overriding provisions of FISA, but 
totally consistent with FISA.
    Senator Feingold. Mr. Attorney General, certainly it was 
not a hypothetical, as we now know.
    Attorney General Gonzales. Your--Senator, your question was 
whether or not the President had authorized certain conduct in 
violation of law. That was a hypothetical.
    Senator Feingold. My question was whether the President 
could have authorized this kind of wiretapping.
    Attorney General Gonzales. In violation of the criminal 
statutes. And our position is and has been, is that no, this is 
not in violation of the criminal statutes. FISA cannot be--
    Senator Feingold. You said the question was merely 
hypothetical and that--Look, this is what you said: It's not 
the policy or the agenda of this President to authorize actions 
that would be in contravention of our criminal statutes. And 
when you said that, you knew about this program. In fact, you 
just told me that you had approved it and you were aware of the 
legal analysis to justify it. You wanted this Committee and the 
American people to think that this kind of program was not 
going on. But it was. And you knew that. And I think that is 
unacceptable.
    Attorney General Gonzales. Senator, your question was 
whether or not the President had authorized conduct in 
violation of law, and I--
    Senator Feingold. The question was whether the President--
    Attorney General Gonzales [continuing]. And I have laid 
out--I have--
    Senator Feingold. Mr. Attorney General, my question was 
whether the President would have the power to do that.
    Attorney General Gonzales. And Senator, the President has 
not authorized conduct in violation of our criminal statutes. 
We have laid out a 42-page analysis of our legal position here. 
The authorities the President has exercised are totally 
consistent with the criminal provision. The primary criminal 
provision in FISA is Section 109.
    Senator Feingold. I have heard all your arguments. But I 
want to get back to your testimony, which frankly, Mr. Attorney 
General, anybody that reads it basically realizes you were 
misleading this Committee. You could have answered the question 
truthfully. You could have told the Committee that, yes, in 
your opinion, the President has that authority. By simply 
saying the truth, that you believe the President has the power 
to wiretap Americans without a warrant, would not have exposed 
any classified information.
    My question wasn't whether such illegal wiretapping was 
going on. Like almost everyone in Congress, I didn't know, of 
course, about the program then. It wasn't even about whether 
the administration believed that the President has this 
authority. It was a question about your view of the law--about 
your view of the law--during a confirmation on your nomination 
to be attorney general.
    So of course if you had told the truth, maybe that would 
have jeopardized your nomination. You wanted to be confirmed. 
And so you let a misleading statement about one of the central 
issues of your confirmation, your view of Executive power, stay 
on the record until the New York Times revealed the program.
    Attorney General Gonzales. Senator, I told the truth then, 
I am telling the truth now. You asked about a hypothetical 
situation of the President of the United States authorizing 
electronic surveillance in violation of our criminal statutes. 
That has not occurred.
    Senator Feingold. Mr. Chairman, I think the witness has 
taken mincing words to a new high. No question in my mind that 
when you answered the question was a hypothetical, you knew it 
was not a hypothetical and you were under oath at the time.
    Let me switch to some other misrepresentations.
    Chairman Specter. Wait a minute. Do you care to answer that 
Attorney General Gonzales?
    Attorney General Gonzales. Senator, as I have stated 
before, what I said was the truth then, it is the truth today. 
The President of the United States has not authorized 
electronic surveillance in violation of our criminal statutes. 
We have laid out in great detail our position that the 
activities are totally consistent with the criminal statute.
    Senator Feingold. All you had to do, Mr. Attorney General, 
was indicate that it was your view that it was legal. That was 
what my question was. I would have disagreed with your 
conclusion. But that is not what you said, and you referred to 
this as merely a hypothetical.
    Mr. Attorney General, the administration officials have 
been very misleading in their claims in justifying the spying 
program. To make matters worse, last week in the State of the 
Union the President repeated some of these claims. For one 
thing, the President said that his predecessors have used the 
same constitutional authority that he has.
    Isn't it true that the Supreme Court first found that phone 
conversations are protected by the Fourth Amendment in the 1967 
Katz case?
    Attorney General Gonzales. Yes, in the 1967 Katz case, the 
Supreme Court did find that telephone conversations are covered 
by the Fourth Amendment.
    Senator Feingold. So when the Justice Department points to 
Presidents Wilson and Roosevelt's actions, those are really 
irrelevant, aren't they?
    Attorney General Gonzales. Absolutely not, Senator. I think 
that they are important in showing that Presidents have relied 
upon their constitutional authority to engage in warrantless 
surveillance of the enemy during a time of war. The fact that 
the Fourth Amendment may apply doesn't mean that a warrant is 
necessarily required in every case. As you know, there is 
jurisprudence of the Supreme Court regarding special needs--
normally in the national security context, outside of the 
ordinary criminal law context, where, because of the 
circumstances, searches without warrants would be justified.
    Senator Feingold. Mr. Chairman, my time is up. I will 
continue this line of questioning later.
    Chairman Specter. Thank you very much, Senator Feingold.
    Senator Graham.
    Senator Graham. Thank you, Mr. Chairman.
    I would like to congratulate you also for having these 
hearings. I think what we are talking about is incredibly 
important for the country in terms of the future conduct of 
wars and how we relate constitutionally to each other, and 
personally how we relate. I find your testimony honest, 
straightforward. Your legal reasoning is well articulated. I 
don't agree with it all.
    About hiding something about this program, is it not true 
that the Congress has been briefed extensively, at least a 
small group of Congressmen and Senators about this program?
    Attorney General Gonzales. Senator, I have not been 
present, as I have testified before, at all of the briefings. 
But in the briefings that I have been present, the briefings 
were extensive, the briefings were detailed. Members--certain--
members who were present at the briefing were given an 
opportunity to ask questions, to voice concerns.
    Senator Graham. And if any member of this body believes 
that you have done something illegal, they could put in 
legislation to terminate this program, couldn't they? Isn't 
that our power?
    Attorney General Gonzales. Certainly, Senator, it--
    Senator Graham. Well, I would think if you believed our 
President was breaking the law, you would have the courage of 
your convictions and you would bring--you would stop funding 
for it.
    Now, it seems to me there are two ways we can do this. We 
can argue what the law is, we can argue if it was broken, we 
can play a political dance of shirts v. skins, or we can find 
consensus as to what the law should be--and I associate myself 
with Senator DeWine as to what I think it should be. In a 
dangerous and difficult time for our country, I choose inquiry 
versus inquisition, collaboration versus conflict.
    To me, there are two big things that this Congress faces 
and this President faces. In all honesty, Mr. Attorney General, 
the statutory force resolution argument that you are making is 
very dangerous in terms of its application for the future. 
Because if you overly interpret the force resolution--and I 
will be the first to say when I voted for it, I never 
envisioned that I was giving to this President or any other 
President the ability to go around FISA carte blanche.
    And you are right, it is not my intent; it is the letter of 
the resolution. What I am saying is that if you came back next 
time, or the next President came back to this body, there would 
be a memory bank established here and I would suggest to you, 
Mr. Attorney General, it would be harder for the next President 
to get a force resolution if we take this too far and the 
exceptions may be a mile long. Do you share my concern?
    Attorney General Gonzales. I understand your concern, 
Senator.
    Senator Graham. Thank you. I appreciate that.
    So that is just a comment about the practical application 
of where we could go one day if we over-interpret. Because the 
offer is on the table. Let's make sure we have understanding, 
because if we have the same understanding between the 
executive, the legislative, and the judicial branch, our enemy 
is weaker and we are stronger.
    Now to the inherent authority argument. Taken to its 
logical conclusion, it concerns me that it could basically 
neuter the Congress and weaken the courts. I would like to 
focus a minute on the inherent-authority-of-the-President-
during-a-time-of-war concept. I will give you a hypothetical 
and you can answer it if you choose to, and I understand if you 
won't.
    There is a detainee in our charge, an enemy prisoner, a 
high-value target. We believe, reasonably believe that this 
person possesses information that could save millions or 
thousands of American lives. The President as Commander in 
Chief tells the military authorities in charge you have my 
permission, my authority, I am ordering you to do all things 
necessary, and these five things I am authorizing. Do it 
because I am Commander in Chief and we have to protect the 
country.
    There is a preexisting statute on the book, passed by the 
Congress, called the Uniform Code of Military Justice. And it 
tells our troops that if you have a prisoner in your charge, 
you are not to do these things. And they are the same five 
things.
    What do we do?
    Attorney General Gonzales. Well, of course, Senator, the 
President has already said that we are not going to engage in 
torture. He has made that--that is a categorical statement by 
the President. As to whether or not the statute that you 
referred to would be constitutional, these kinds of questions 
are very, very difficult.
    One could make the argument, for example, that the 
provision in the Constitution that talks about Congress under 
section 8 of Article I, giving Congress the specific authority 
to make rules regarding captures, that that would give Congress 
the authority to legislate in this area.
    Now, there is some disagreement among scholars about what 
``captures'' means--
    Senator Graham. And I will tell you, it is talking about 
ships. It is not talking about people. But it is clear to me 
that the Congress has the authority to regulate the military, 
to fund the military. And the Uniform Code of Military Justice 
is a statutory scheme providing guidance, regulation, and 
punishment to the military that the Congress passes.
    Attorney General Gonzales. That would probably--I think 
most scholars would say that would fall under that--the clause 
in section 8 of Article I giving the Congress the authority to 
pass rules regarding Government and regulation of the Armed 
Forces.
    Senator Graham. And I would agree with those scholars. And 
the point I am trying to say is that we can tell our military 
don't you do this to a detainee, and you as Commander in Chief 
can tell the military we have to win the war, we have to 
protect ourselves. Now, what I am trying to say is that I am 
worried about the person in the middle here. Because if we had 
adopted the reasoning of the Bybee memo--that has been 
repudiated, appropriately--the point I was trying to make at 
your confirmation hearing is that the legal reasoning used in 
determining what torture would be under the Convention of 
Torture or the torture statute not only was strained and made 
me feel uncomfortable, it violated an existing body of law that 
was already on the books called the Uniform Code of Military 
Justice. If a military member had engaged in the conduct 
outlined by the Bybee memo, they could have been prosecuted for 
abusing a detainee because it is a crime in the military, Mr. 
Attorney General, for a guard to slap a prisoner, much less 
have something short of major organ failure.
    This is really a big deal for the people fighting the war. 
And if you take your inherent-authority argument too far, then 
I am really concerned that there is no check and balance. And 
when the Nation is at war, I would argue, Mr. Attorney General, 
you need checks and balances more than ever, because within the 
law we put a whole group of people in jail who just looked like 
the enemy.
    Attorney General Gonzales. Senator, if I could just 
respond. I am not--maybe I haven't been as precise with my 
words as I might have been. I don't think I have talked about 
inherent exclusive authority. I have talked about inherent 
authority under the Constitution in the Commander in Chief. 
Congress, of course, and I have said in response to other 
questions, they have a constitutional role to play also during 
a time of war.
    Senator Graham. We coexist.
    Now, can I get to the FISA statute in 2 minutes here? And I 
hope we do have another round, because this is very important. 
I am not here to accuse anyone of breaking the law; I want to 
create law that will help people fighting the war know what 
they can and can't do.
    The FISA statute, if you look at the legislative language, 
they made a conscious decision back in 1978 to resolve this 
two-lane debate. There are two lanes you can go down as 
Commander in Chief. You can act with the Congress and you can 
have inherent authority as Commander in Chief. The FISA statute 
said, basically, this is the exclusive means to conduct foreign 
surveillance where American citizens are involved. And the 
Congress, it seems to me, gave you a one-lane highway, not a 
two-lane highway. They took the inherent-authority argument, 
they thought about it, they debated it, and they passed a 
statute--if you look at the legislative language--saying this 
shall be the exclusive means. And it is different than 1401.
    So I guess what I am saying, Mr. Attorney General, if I buy 
your argument about FISA, I can't think of a reason you 
wouldn't have the authority ability, if you chose to, to set 
aside the statute on torture if you believed it impeded the war 
effort.
    Attorney General Gonzales. Well, Senator, whether or not we 
set aside a statute, of course, is not--
    Senator Graham. But inherent authority sets aside the 
statute.
    Attorney General Gonzales. That is not what we are talking 
about here. We don't need to get to that tough question.
    Senator Graham. If you don't buy the force resolution 
argument, if we somehow magically took that off the table, that 
is all you are left with is inherent authority. And Congress 
could tomorrow change that resolution. And that is dangerous 
for the country if we get in a political fight over that.
    All I am saying is the inherent-authority argument in its 
application, to me, seems to have no boundaries when it comes 
to executive decisions in a time of war. It deals the Congress 
out, it deals the courts out and, Mr. Attorney General, there 
is a better way. And in our next round of questioning we will 
talk about that better way.
    Attorney General Gonzales. Sir, can I simply make one quick 
response, Mr. Chairman?
    Chairman Specter. You may respond, Attorney General.
    Attorney General Gonzales. Well, the fact that the 
President, again, may have inherent authority doesn't mean that 
Congress has no authority in a particular area. And we look at 
the words of the Constitution and there are clear grants of 
authority to the Congress in a time of war. And so if you are 
talking about competing constitutional interests, that is when 
you get into sort of the third part of the Jackson analysis.
    Senator Graham. That is where we are at right now.
    Attorney General Gonzales. I don't believe that is where we 
are at right now, sir.
    Senator Graham. That is where you are at with me.
    Attorney General Gonzales. Sir, even under the third part 
of the Jackson analysis--and I haven't done the detailed work 
that obviously these kinds of questions require. These are 
tough questions, but I believe that the President does have the 
authority under the Constitution.
    Chairman Specter. Thank you, Senator Graham.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman.
    And General Gonzales, I just want to make a couple of 
points that are important to keep in mind as we ask you 
questions. First, we all support a strong, robust, and vigorous 
national security program. Like everyone else in this room, I 
want the President to have all the legal tools he needs as we 
work together to keep our Nation safe and free, including 
wiretapping. And I appreciate the difficult job you and the 
President have balancing security and liberty. That is not an 
easy one.
    But I firmly believe that we can have both security and 
rule of law. And I am sure you agree with that, General 
Gonzales, don't you?
    Attorney General Gonzales. Yes, Senator.
    Senator Schumer. And that is what distinguishes us from so 
many other nations, including our enemies. Is that correct?
    Attorney General Gonzales. That is correct.
    Senator Schumer. Now, the first job of Government is to 
protect our security, and everyone on this Committee supports 
that. But another important job of Government is to enforce the 
rule of law, because the temptation to abuse the enormous power 
of the Government is very real. That is why we have checks and 
balances. They are at the fulcrum of our democracy. You agree 
with that?
    Attorney General Gonzales. I agree with that, Senator.
    Senator Schumer. I have to say, by the way, that is why I 
am disappointed that Chairman Specter wouldn't let us show the 
clip of the President's speech. Senator Specter said that the 
transcript speaks for itself. But seeing the speech with its 
nuances is actually very different from reading the record. And 
when you watch the speech, it seems clear that the President 
isn't simply talking about roving wiretaps, he is talking about 
all wiretaps. Because the fact that you don't wiretap citizens 
without a warrant has been a bedrock of American principles for 
decades.
    Nonetheless, having said that, I am gratified that these 
hearings have been a lot less partisan than the previous ones 
we held in this room. And many Republican colleagues have 
voiced concerns about the administration policy. I want to 
salute my Republican colleagues for questioning some of these 
policies--Chairman Specter and Senator DeWine, Senator 
Brownback, Senator Graham, and others. But it is not just 
Republican Senators who seriously question the NSA program, but 
very high-ranking officials within the administration itself.
    Now, you have already acknowledged that there were lawyers 
in the administration who expressed reservations about the NSA 
program. There was dissent. Is that right?
    Attorney General Gonzales. Of course, Senator. This, as I 
indicated, these--this program implicates some very difficult 
issues. The war on terror has generated several issues that are 
very, very complicated.
    Senator Schumer. Understood.
    Attorney General Gonzales. Lawyers disagree.
    Senator Schumer. I concede all those points.
    Let me ask you about some specific reports. It has been 
reported by multiple news outlets that the former number two 
man in the Justice Department, the premier terrorism 
prosecutor, Jim Comey, expressed grave reservations about the 
NSA program and at least once refused to give it his blessing. 
Is that true?
    Attorney General Gonzales. Senator, here is a response that 
I feel that I can give with respect to recent speculation or 
stories about disagreements. There has not been any serious 
disagreement, including--and I think this is accurate--there 
has not been any serious disagreement about the program that 
the President has confirmed. There have been disagreements 
about other matters regarding operations, which I cannot get 
into. I will also say--
    Senator Schumer. But there was some--I am sorry to cut you 
off, but there was some dissent within the administration, and 
Jim Comey did express at some point--that is all I asked you--
some reservations.
    Attorney General Gonzales. The point I want to make is 
that, to my knowledge, none of the reservations dealt with the 
program that we are talking about today. They dealt with 
operational capabilities that we are not talking about today.
    Senator Schumer. I want to ask you again about them, just 
we have limited time.
    Attorney General Gonzales. Yes, sir.
    Senator Schumer. It has also been reported that the head of 
the Office of Legal Counsel, Jack Goldsmith, respected lawyer 
and professor at Harvard Law School, expressed reservations 
about the program. Is that true?
    Attorney General Gonzales. Senator, rather than going 
individual by individual--
    Senator Schumer. No, I think we are--this is--
    Attorney General Gonzales [continuing]. By individual, let 
me just say that I think the differing views that have been the 
subject of some of these stories does not--did not deal with 
the program that I am here testifying about today.
    Senator Schumer. But you are telling us that none of these 
people expressed any reservations about the ultimate program. 
Is that right?
    Attorney General Gonzales. Senator, I want to be very 
careful here. Because of course I am here only testifying about 
what the President has confirmed. And with respect to what the 
President has confirmed, I believe--I do not believe that these 
DOJ officials that you are identifying had concerns about this 
program.
    Senator Schumer. There are other reports--I am sorry to--I 
want to--you are not giving the yes-or-no answer here. I 
understand that. Newsweek reported that several Department of 
Justice lawyers were so concerned about the legal basis for the 
NSA program that they went so far as to line up private 
lawyers. Do you know if that is true?
    Attorney General Gonzales. I do not know if that is true.
    Senator Schumer. Now let me just ask you a question here. 
You mentioned earlier that you had no problem with Attorney 
General Ashcroft, someone else--I didn't want to ask you about 
him; he is your predecessor--people have said had doubts. But 
you said that you had no problem with him coming before this 
Committee and testifying when Senator Specter asked. Is that 
right?
    Attorney General Gonzales. Senator, who the Chairman 
chooses to call as a witness is up to the Chairman.
    Senator Schumer. The administration doesn't object to that, 
do they?
    Attorney General Gonzales. Obviously, the administration, 
by saying that we would have no objection, doesn't mean that we 
would waive any privileges that might exist.
    Senator Schumer. I understand. I got that.
    Attorney General Gonzales. That is up to the Chairman.
    Senator Schumer. But I assume the same would go for Mr. 
Comey, Mr. Goldsmith, and any other individuals: Assuming you 
didn't waive executive privilege, you wouldn't have an 
objection to them coming before this Committee.
    Attorney General Gonzales. Attorney-client privilege, 
deliberative privilege--to the extent that there are 
privileges, it is up to the Chairman to decide who he wants to 
call as a witness. But let me just say, if we are engaged in a 
debate about what the law is and the position of the 
administration, that is my job and that is what I am doing here 
today.
    Senator Schumer. I understand. And you are doing your job. 
And that is why I am requesting, as I have in the past but 
renewing it here today, reaffirmed even more strongly by your 
testimony and everything else, that we invite these people, 
that we invite former Attorney General Ashcroft, Deputy 
Attorney General Comey, OLC Chair Goldsmith to this hearing and 
actually compel them to come if they won't on their own. And as 
for privilege, I certainly--
    Chairman Specter. If I might interrupt you for just one 
moment--
    Senator Schumer. Please.
    Chairman Specter [continuing]. And you will have extra 
time.
    Senator Schumer. Yes. Thank you.
    Chairman Specter. I think the record was in great shape 
where I left it. If you bring in Attorney General Ashcroft, 
that is a critical step.
    Senator Schumer. Right.
    Chairman Specter. It wasn't that I hadn't thought of Mr. 
Comey and Mr. Goldsmith and other people. But I sought to leave 
the record with the agreement of the Attorney General to bring 
in former Attorney General Ashcroft.
    Senator Schumer. OK, well, Mr. Chairman, I respect that. I 
think others are important as well. But I want to get to the 
issue of privilege here.
    Chairman Specter. I am not saying they aren't important. I 
am just saying what is the best way to get them here.
    Senator Schumer. OK. Well, whatever way we can I would be 
all for.
    On privilege. Because that is going to be the issue even if 
they come here, as I am sure you will acknowledge, Mr. 
Chairman.
    I take it you would have no problem with them talking about 
their general views on the legality of this program, just as 
you are talking about those.
    Attorney General Gonzales. Well--
    Senator Schumer. Not to go into the specific details of 
what happened back then, but their general views on the 
legality of these programs. Do you have any problem with that?
    Attorney General Gonzales. The general views of the program 
that the President has confirmed, Senator, that is--again, if 
we are talking about the general views of the--
    Senator Schumer. I just want them to be able to testify as 
freely as you have testified here. Because it wouldn't be fair, 
if you're an advocate of administration policies, you have one 
set of rules, and if you are an opponent or a possible opponent 
of administration policies, you have another set of rules. That 
is not unfair, is it?
    Attorney General Gonzales. Sir, it is up to the Chairman 
to--
    Senator Schumer. No, but would you or the administration--
you as the chief legal officer--have any problem with them 
testifying in the same way you did about general legal views of 
the program.
    Attorney General Gonzales. I would defer to the Chairman.
    Senator Schumer. I am not asking you, sir, in all due 
respect, I am not asking you what the Chairman thinks. He is 
doing a good job here, and I don't begrudge that one bit.
    Attorney General Gonzales. So my answer is I defer--
    Senator Schumer. I am asking you what the administration 
would think in terms of exercising any claim of privilege.
    Attorney General Gonzales. And again--
    Senator Schumer. You are not going to have--I am sorry 
here--you are not going to have different rules for yourself, 
an administration advocate, than for these people who might be 
administration dissenters in one way or another, are you?
    Attorney General Gonzales. Sir, I don't know if you are 
asking me what are they going to say--
    Senator Schumer. I am not asking you that. Would the rules 
be the same? I think you can answer that yes or no.
    Attorney General Gonzales. If they came to testify?
    Senator Schumer. Correct.
    Attorney General Gonzales. Well, sir, the client here is 
the President of the United States. I am not sure it is in my 
place to offer--
    Senator Schumer. Or his chief--
    Attorney General Gonzales [continuing]. Offer a position or 
my recommendation to you about what I might recommend to the 
President of the United States.
    Senator Schumer. But what would be--
    Attorney General Gonzales. It would not be appropriate 
here.
    Senator Schumer. I just am asking you as a very fine, well-
educated lawyer: Should or could the rules be any different for 
what you are allowed to say with privilege hovering over your 
head, and what they are allowed to say with those same 
privileges hovering over their heads? Should the rules be any 
different? If you can't say yes to that, then we--you know, 
then that is fundamentally unfair. It is saying that these 
hearings--or it is saying, really, that the administration 
doesn't have the confidence to get out the whole truth.
    Attorney General Gonzales. Sir, my hesitation is, is quite 
frankly I haven't thought recently about the issue about former 
employees coming to testify about their legal analysis or their 
legal recommendations to their client. And that is the source 
of my hesitation.
    Senator Schumer. I was just--my time--
    Chairman Specter. Senator Schumer, take 2 more minutes, for 
my interruption.
    Senator Schumer. Well, thank you, Mr. Chairman.
    Chairman Specter. Providing you move to another subject.
    Senator Schumer. Well, OK.
    [Laughter.]
    Senator Schumer. I just--again, I think this is very 
important, Mr. Chairman.
    Chairman Specter. Oh, I do, too.
    Senator Schumer. And I think you would agree.
    Chairman Specter. If this were a court room, I would move 
to strike all your questions and his answers because the record 
was so much better off before.
    Senator Schumer. Well, I don't buy that, Mr. Chairman.
    Chairman Specter. But take 2 more minutes on the conditions 
stated.
    Senator Schumer. I don't buy that. I think we have to try 
to tie down as much as we can here. OK?
    Let me go to another bit of questions here.
    You said, Mr. Attorney General, that the AUMF allowed the 
President--that is one of the legal justifications, the 
Constitution--to go ahead with this program. Now, under your 
legal theory, could the Government, without ever going to a 
judge or getting a warrant, search an American's home or 
office?
    Attorney General Gonzales. Of course, Senator, any 
authorization or activity by the President would be subject to 
the Fourth Amendment. What you are talking about--I mean I 
presume you are talking about a law enforcement effort--
    Senator Schumer. Let me interrupt for a minute. Aren't 
wiretaps subject to the Fourth Amendment as well?
    Attorney General Gonzales. Of course they are.
    Senator Schumer. So they are both subject. What would 
prevent the President's theory, your theory, given the danger, 
given maybe some of the difficulties, from going this far?
    Attorney General Gonzales. Well, sir, it is hard to answer 
a hypothetical question the way that you have posed it in terms 
of how far do the President's authorities extend. However far 
they may extend, Senator, they clearly extend so far as to 
allow the President of the United States to engage in 
electronic surveillance of the enemy during a time of war.
    Senator Schumer. Could he engage in electronic surveillance 
when the phones calls both originated and ended in the United 
States if there were al Qaeda suspects?
    Attorney General Gonzales. I think that question was asked 
earlier. I have said that I do not believe that we have done 
the analysis on that.
    Senator Schumer. I did not ask that. I asked what do you 
think the theory is?
    Attorney General Gonzales. That is a different situation, 
Senator, and again, these kind of constitutional questions, I 
would--I could offer up a guess, but these are hard questions.
    Senator Schumer. Has this come up? Has it happened?
    Attorney General Gonzales. Sir, what the President has 
authorized is only international phone calls.
    Senator Schumer. I understand. Has there been a situation 
brought to your attention where there were al Qaeda call--
someone suspected of being part of al Qaeda or another 
terrorist group calling someone from the United States to the 
United States?
    Attorney General Gonzales. Sir, now you are getting into 
sort of operations, and I am not going to respond to that.
    Senator Schumer. I am not asking any specifics. I am asking 
ever.
    Attorney General Gonzales. You are asking about how this 
program has operated, and I am not going to answer that 
question, sir.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Schumer.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. I think your 
comments, Mr. Chairman, about this not being a court of law are 
apt, because I do not think we are going to get resolution 
about the disagreement among lawyers as to what the legal 
answer is. But I do believe it is important to have the hearing 
and to air the various points of view.
    But I would hope, and I trust, on the lines of what Senator 
Schumer stated, that there would be a consensus on the 
Committee and throughout the Congress that we should use all 
legal means available to us to gather actionable intelligence 
that has to potential of saving American lives. You certainly 
would agree with that, wouldn't you, General Gonzales?
    Attorney General Gonzales. Yes, Senator.
    Senator Cornyn. Some have stated the question like this. 
They say, ``Has the Foreign Intelligence Surveillance Act, 
which was passed in 1978, authorized the President to conduct 
this particular program?'' I have a couple of problems with the 
question stated in that way.
    Number one, the technology has surpassed what it was in 
1978, so our capacity to gain actionable intelligence has 
certainly changed. And the very premise of the question 
suggests that the President can only exercise the authority 
that Congress confers. When people talk about the law, the law 
that pertains to this particular question is not just the 
Foreign Intelligence Surveillance Act, but it includes the 
Constitution and the Authorization for Use of Military Force; 
would you agree with that, General Gonzales?
    Attorney General Gonzales. Senator, you raise a very 
important point. People focus on the Foreign Intelligence 
Surveillance Act and say, this is what the words say, and that 
is the end of it. If you are not following it in total, you are 
obviously in violation of the law. That is only the beginning 
of the analysis. You have to look to see what Congress has done 
subsequent to that, and then, of course, you have to look at 
the Constitution. There have been many statements today about 
no one is above the law, and I would simply remind--and I know 
this does not need to be stated--but no one is above the 
Constitution either, not even the Congress.
    Senator Cornyn. Clearly, the Supreme Court in the Hamdi 
case said what we all know to be the fact, that no President is 
above the law. No person in this country, regardless of how 
exalted their position may be, or how relatively modest their 
position may be, we are all governed by the Constitution and 
laws of the United States.
    Attorney General Gonzales. During my confirmation hearings, 
I talked about Justice O'Connor's statement from Hamdi, that a 
state of war is not a blank check for the President of the 
United States. I said in my hearings that I agree with that.
    Senator Cornyn. General Gonzales, I regret to say that just 
a few minutes ago I was watching the ``crawler'' on a cable 
news network. It referred to the NSA program as ``domestic 
surveillance,'' which strikes me as a fundamental error in the 
accuracy of the reporting of what is going on here. You made 
clear that what has been authorized here is not ``domestic 
surveillance,'' that is, starting from and ending in the United 
States. This is an international surveillance of known al Qaeda 
operatives, correct?
    Attorney General Gonzales. I think people who call this a 
domestic surveillance program are doing a disservice to the 
American people. It would be like flying from Texas to Poland 
and saying that is a domestic flight. We know that is not true. 
That would be an international flight. And what we are talking 
about are international communications, and so I agree with 
your point, Senator.
    Senator Cornyn. With regard to the Authorization for Use of 
Military Force, some have questioned whether it was actually 
discussed in Congress whether surveillance of international 
phone calls--between al Qaeda overseas and here--was actually 
in the minds of individual Members of Congress when they voted 
to support the force resolution. It strikes me as odd to say 
that Congress authorized the Commander in Chief to capture, to 
detail, to kill, if necessary, al Qaeda, but we can't listen to 
their phone calls and we can't gather intelligence to find out 
what they are doing in order to prevent future attacks against 
the American people.
    You have explained the Department of Justice's legal 
analysis with regard to the Hamdi decision--that intelligence 
is a fundamental incident of war. I think that analysis makes 
good sense. Here again, I realize we have some very fine 
lawyers on the Committee, and there are a lot of lawyers around 
the country who have opined on this, some of whom have been 
negative, some whom have been positive. I was struck by the 
fact that John Schmidt, who was Associate Attorney General 
during the Clinton Justice Department, wrote what I thought was 
an eloquent op-ed piece for the Chicago Tribune, dated December 
21, 2005, agreeing with the administration's point of view. But 
that is only to point out that lawyers, regardless of their 
party affiliation, have differing views on this issue. But 
again, I would hope that what we are engaged in is neither a 
partisan debate nor even an ideological debate, but a legal 
debate on what the Constitution and laws of the United States 
provide for.
    Let me turn to another subject that has caused me a lot of 
concern, and that is our espionage laws, and the laws that 
criminalize the intentional leaking of classified information. 
It is my understanding from the news reports that the 
Department of Justice has undertaken an investigation to see 
whether those who actually leaked this program to the New York 
Times or any other media outlet might have violated our 
espionage laws. Is that correct?
    Attorney General Gonzales. I can confirm, Senator, that 
investigation has been initiated.
    Senator Cornyn. Does that investigation also include any 
potential violation for publishing that information?
    Attorney General Gonzales. Senator, I am not going to get 
into specific laws that are being looked at, but, obviously, 
our prosecutors are going to look to see all of the laws that 
have been violated, and if the evidence is there, they are 
going to prosecute those violations.
    Senator Cornyn. Well, you may give me the same answer to 
this next question, but I am wondering, is there any exclusion 
or immunity for the New York Times or any other person to 
receive information from a lawbreaker seeking to divulge 
classified information? Is there any explicit protection in the 
law that says if you receive it and you publish it, you are 
somehow immune from a criminal investigation?
    Attorney General Gonzales. Senator, I am sure the New York 
Times has their own great set of lawyers, and I would hate in 
this public forum to provide them my views as to what would be 
a legitimate defense.
    Senator Cornyn. There are a lot of very strange 
circumstances surrounding this initial report in the New York 
Times, including the fact that the New York Times apparently 
sat on this story for a year, and then, of course, the 
coincidence, some might say, that the story was broken on the 
date that the Senate was going to vote on reauthorization of 
the PATRIOT Act. But we will leave that perhaps for another 
day.
    I will yield the rest of my time back. Thank you, Mr. 
Chairman.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Thank you, Attorney General, for being here. During the 
course of this hearing you have referred to FISA several times 
as a useful tool, a useful tool in wiretapping and 
surveillance. I have thought about that phrase because it is a 
phrase that has been used by the White House too.
    Referring to FISA as a useful tool in wiretapping is like 
referring to speed limits and troopers with radar guns as 
useful tools on a motoring trip. I think FISA is not there as a 
useful tool to the administration. It is there as a limitation 
on the power of a President when it comes to wiretapping. I 
think your use of that phrase, useful tool, captures the 
attitude of this administration toward this law. We will use it 
when it does not cause a problem; we will ignore it when we 
have to. I think that is why we are here today.
    I am curious, Mr. Attorney General, as we get into this, 
and I look back on some of your previous testimony and what you 
said to this Committee in confirmation hearings and the like, 
how far will this administration go under the theories which 
you stated today to ignore or circumvent laws like FISA. I 
asked you during the course of the last--your confirmation 
hearing, a question about this whole power of the Commander in 
Chief. I wish I could play it to you here, but there is a 
decision made by the Committee that we are not going to allow 
that sort of thing to take place, but I do believe that if I 
could play it, you would be asked to explain your answer to a 
question which I posed to you.
    The question was this: ``Mr. Attorney General, has this 
President ever invoked that authority as Commander in Chief or 
otherwise, to conclude that a law was unconstitutional and 
refuse to comply with it?''
    Mr. Gonzales: ``I believe that I stated in my June briefing 
about these memos that the President has not exercised that 
authority.''
    You have said to us today several times that the President 
is claiming his power for this domestic spying, whatever you 
want to call it, terrorist surveillance program, because of the 
President's inherent powers, his core constitutional authority 
of the executive branch. And so I have to ask you point blank, 
as Senator Feingold asked you earlier, you knew when you 
answered my question that this administration had decided that 
it was going to basically find a way around the FISA law based 
on the President's, as you called it, inherent constitutional 
powers. So how can your response be valid today in light of 
what we now know?
    Attorney General Gonzales. It is absolutely valid, Senator. 
The--and this is going to sound repetitious--but it has never 
been our position that we are circumventing or ignoring FISA. 
Quite the contrary. The President has authorized activities 
that are totally consistent with FISA, with what FISA 
contemplates. I have indicated that I believe that putting 
aside the question of the authorization to use military force, 
that while it is a tough legal question as to whether or not 
Congress has the authority under the Constitution to cabin or 
to limit the President's constitutional authority to engage in 
electronic surveillance of the enemy, that is not a question 
that we even need to get to.
    It has always been our position that FISA can be and must 
be read in a way that it doesn't infringe upon the President's 
constitutional authority.
    Senator Durbin. Let me read to you what your own Justice 
Department just issued with in the last few weeks in relation 
to the President's authority, the NSA program and FISA. I 
quote, ``Because the President also has determined that NSA 
activities are necessary to the defense of the United States 
from a subsequent terrorist attack or armed conflict with al 
Qaeda,'', I quote, ``FISA would impermissibly interfere with 
the President's most solemn constitutional obligation to defend 
the United States against foreign attack.''
    You cannot have it both ways.
    Attorney General Gonzales. And that is why--
    Senator Durbin. You cannot tell me that you are not 
circumventing it and then publish this and say that FISA 
interferes with the President's constitutional authority.
    Attorney General Gonzales. And that is why you have to 
interpret FISA in a way where you do not tee up a very 
difficult constitutional question under the canons of 
constitutional avoidance.
    Senator Durbin. What you have to do is take out the express 
language in FISA which says it is the exclusive means, it is 
exclusive. The way you take it out is by referring to--and I 
think you have said it over and over here again--you just have 
to look to the phrase you say, ``except as otherwise authorized 
by statute.''
    Senator Feinstein and I were struggling. We were looking 
through FISA. Where is that phrase, ``except as otherwise 
authorized by statute?'' It is not in FISA. It is not in the 
FISA law. You may find it in the criminal statute and may want 
to adopt it by reference, but this FISA law, signed by a 
President and the law of the land, is the exclusive way that a 
President can wiretap.
    I want to ask you, if this is exclusive, why didn't you 
take advantage of the fact that you had and the President had 
such a strong bipartisan support for fighting terrorism that we 
gave the President the PATRIOT Act with only one dissenting 
vote? We have supported this President with every dollar he has 
asked for to fight terrorism. Why didn't you come to this 
Congress and say, ``There are certain things we need to 
change,'' which you characterized as cumbersome and burdensome 
in FISA. Why didn't you work with us to make the law better and 
stronger and more effective when you knew that you had a 
bipartisan consensus behind you?
    Attorney General Gonzales. Senator, the primary criminal 
code, criminal provision in FISA, section 109, 50 U.S.C. 1809, 
it is page 179 if you have one of these books, provides that 
``a person is guilty of an offense if he intentionally engages 
in electronic surveillance under cover of law except as 
authorized by statute.'' This provision means that you have to 
engage in electronic surveillance as provided here, except as 
otherwise provided by statute. And this is a provision that we 
were relying upon. It is in the Foreign Intelligence 
Surveillance Act.
    Senator Durbin. It is Title 18. But let me just tell you, 
what you do not want to read to us--
    Attorney General Gonzales. Sir, it is not Title 18.
    Senator Durbin. The Foreign Intelligence Surveillance Act 
of 1978 ``shall be the exclusive means by which electronic 
surveillance, as defined in section 101 of such Act, 
interception of domestic wire or electronic communication may 
be conducted.''
    And so what you said is, well, when you authorized the war, 
you must have known that we were going to really expand beyond 
FISA. I have the book here. You can look through it if you 
like. There is not a single reference in our passing this AUMF 
that we talk about, Authorized Use of Military Force, not a 
single reference to surveillance and intelligence in the manner 
that you have described it.
    Attorney General Gonzales. Sir, there is probably not a 
single reference to detention of American citizens either, but 
the Supreme Court has said that that is exactly what you have 
authorized because it is a fundamental incident of waging war.
    Senator Durbin. Since you have quoted that repeatedly, let 
me read what that Court has said. Hamdi decision: ``We conclude 
that detention of individuals falling into the limited category 
we are considering for the duration of the particular conflict 
in which they are captured is so fundamental and accepted an 
incident to war to be an exercise of necessary and appropriate 
force.''
    Attorney General Gonzales. No question. That case was not 
about electronic surveillance. I will concede that.
    Senator Durbin. I will tell you something else, Mr. 
Attorney General, if you then read, I think, the fine reasoning 
of Justice O'Connor, she comes to a point which brings us here 
today--and I thank the Chairman for allowing us to be here 
today--and this is what she says in the course of this 
decision. ``It is during our most challenging and uncertain 
moments that our Nation's commitment to due process is most 
severely tested, and it is in those times that we must preserve 
our commitment at home to the principles for which we fight 
abroad.''
    We have said repeatedly, as nominees for the Supreme Court 
have come here, do you accept the basis of Hamdi, that a war is 
not a blank check for a President? They have said, yes, that is 
consistent with Jackson and Youngstown. Now what we hear from 
you is that you were going to take this decision in Hamdi and 
build it into a way to avoid the most basic statute when it 
comes to electronic surveillance in America, a statute which 
describes itself as the exclusive means by which this 
Government can legally do this.
    Attorney General Gonzales. Senator, I think that in reading 
that provision you just cited, you have to consider section 
109. Section 109 contemplates an additional authorization by 
the Congress. Congress provided that additional authorization 
when it authorized the use of military force following the 
attacks of 9/11.
    Senator Durbin. The last thing I would like to say--and I 
only have a minute to go--is the greatest fear that we have is 
that what this President is now claiming is going to go far 
beyond what you have described today. What you have described 
today is something we would all join in on a bipartisan basis 
to support, use every wiretap capacity you have to stop 
dangerous terrorists from hurting Americans. If you came to 
Capitol Hill and asked us to change a law in a reasonable way 
to reach that goal, you would have the same bipartisan support. 
Our concern is what this President is asking for will allow 
this administration to comb through thousands of ordinary 
Americans' e-mails and phone calls.
    In the audience today is Richard Fleischer of Willow Brook, 
Illinois. I do not know if Mr. Fleischer is still here. Mr. 
Fleischer wrote to the NSA and asked if he had been wiretapped 
because he had had conversations with people overseas. And 
after several letters that he sent back and forth, the best he 
could get from the National Security Administration is that 
they would neither confirm nor deny the existence of records 
responsive to his request. Ordinary Americans wondering if 
their telephone calls, if their e-mails overseas have been 
wiretapped, and there is no safeguard for their liberty and 
freedom.
    What we have today is your announcement that career 
professionals and experts will watch out for the freedoms of 
America. Career professionals and experts, sadly, in our 
Nation's history, have done things in the past that we are not 
proud of. Career professionals have made bad decisions, 
Japanese internment camps, enemies list. What we really rely on 
is the rule of law and the Constitution, safeguards we can 
trust by people we can see. When it comes to some person 
working at NSA, I don't think it gives us much comfort.
    Chairman Specter. Thank you, Senator Durbin.
    Before yielding to Senator Brownback, I want to announce 
that I am going to have to excuse myself for just a few 
minutes. We are starting on floor debate this afternoon at 3 
o'clock on the Asbestos Reform Bill, which Senator Leahy and I 
are cosponsors of, and I am scheduled to start the debate at 3 
o'clock. I will return as soon as I have made a floor 
statement. In the interim, Senator Hatch has agreed to chair 
the hearing.
    Senator Brownback, you are recognized.
    Senator Brownback. Thank you, Mr. Chairman. I appreciate 
the hearing.
    Attorney General, thank you for being here. I want to look 
at the reason we are in this war on terrorism. I want to talk 
about the length of time we may be in this war on terrorism, 
and then I went to look at FISA's use forward from this point 
in the war on terrorism.
    I do not need to remind the Attorney General, but I 
certainly would my colleagues, that we are very actively 
engaged in a war on terrorism today. January 19th of this year, 
Osama bin Laden in a tape says this, quote, ``The reason why we 
didn't have such an operation will take place and you will see 
such operations by the grace of God.'' And by that he is 
talking about more 9/11s, and that was January 19th, 2006.
    Al-Zawahiri, number two person, January 30th of this year 
says this, ``Bush, do you know where I am? Among the Muslim 
masses enjoying their care with God's blessings and sharing 
with them their holy war against you until we defeat you, God 
willing. The Lion of Islam, Sheik Osama bin Laden, may God 
protect him, offered you a decent exit from your dilemma, but 
your leaders who are keen to accumulate wealth insist on 
throwing you in battles and killing your souls in Iraq and 
Afghanistan, and God willing, on your own land.''
    I just want to remind people that as we get away from 9/11 
and 2001, we not forget that we are still very much in a war on 
terrorism and people are very much at war against us.
    We are talking about probably one of the lead techniques we 
can use in this war, which I would note, in recent testimony, 
General Hayden said this about the technique of the information 
you are using right now. He said, ``Had this program been in 
effect prior to 9/11, it's my professional judgment that we 
would have detected some of the 9/11 al Qaeda operatives in the 
United States, and we would have identified them as such.''
    Mr. Attorney General, I don't know if you have a different 
opinion from General Hayden on that, but--
    Attorney General Gonzales. I never have a different opinion 
from General Hayden on the intel capabilities that we are 
talking about here. Both he and Director Mueller have recently 
testified about the importance of the terrorist surveillance 
program. General Hayden did say it has been very successful, 
and we have gotten information we would not have otherwise 
gotten, that it has helped us, I think he said deter and detect 
attacks here and abroad.
    FBI Director Mueller said that it was a valuable tool, had 
helped identify would-be terrorists in the United States and 
helped identify individuals providing material support to 
terrorists. So those are experts saying how valuable this tool 
has been.
    Senator Brownback. Having said that, I have read through 
most of your white paper material, and I have looked at a great 
deal of it. I am struck and I think we have an issue we need to 
deal with. Part of what we are working off of is a war 
declaration dated September 18th, 2001, a war declaration on 
Afghanistan, and a war declaration, October 16th, 2002 on use 
of military force in Iraq, and all necessary force, and all 
necessary--the President is authorized to use all necessary and 
appropriate force against those nations, organizations or 
persons he determines planned, authorized, committed or aided 
the terrorist attacks.
    It strikes me that we are going to be in this war on 
terrorism possibly for decades. Maybe not, but this could be 
the cold war of our generation. Maybe it does not go that 
period of time, but it has the possibilities of going for some 
extended period of time. I share Senator DeWine's concern that 
we should look then at the FISA law and make sure that as we 
move forward on this, that we are not just depending upon these 
authorizations of war to say that that puts us in a superior 
position under the Article II powers, but that to maintain the 
support of the American public, to have another set of eyes 
also looking at this surveillance technique is an important 
thing in maintaining the public support for this.
    I want to look and direct you to looking at the FISA law in 
particular. You have made some comments here this morning, 
today, that have been very well stated and thought through. You 
have to one point, the FISA law was not well structured to the 
needs of today's terrorist war effort. That law was passed, 
what, 27 years ago, or something of that nature, and certainly 
didn't contemplate a war on terrorism like we are in today.
    I want to look specifically at how we could amend that FISA 
law, looking at a possible decades long war on terrorism.
    One of the areas you have talked about that is cumbersome 
is the 72-hour provision within the law, if I am gathering what 
you are saying correctly. Congress extended this period from 24 
to 72 hours in 2001. Just looking narrowly at what would need 
to be done to use the FISA authority more broadly and still be 
able to stop terrorists, if that is extended further, would it 
make it more likely that you would use the FISA process, if 
that is extended beyond 72 hours?
    Attorney General Gonzales. It is hard to say, Senator, 
because, you know, whether it is 24, 72, whatever, I have got 
to make a determination under the law that at the time I grant 
emergency authorization, that all the requirements of FISA are 
met. I think General Hayden said it best yesterday, this is not 
a 72-hour sort of hall pass. I have got to know, when I grant 
that authorization, whether I then have 24 or 72 hours to 
submit a written application to the court, I have to know at 
the time I say, ``Yes, go forward,'' that all the requirements 
of FISA are met. That is the problem.
    If I could just also make one final point.
    Senator Brownback. Fair enough.
    Attorney General Gonzales. There was not a war declaration 
either in connection with al Qaeda or in Iraq. It was an 
authorization to use military force. I only want to clarify 
that because there are implications--Obviously, when you talk 
about a war declaration, you are possibly talking about 
affecting treaties, diplomatic relations, and so there is a 
distinction in law and in practice, and we are not talking 
about a war declaration. This is an authorization only to use 
military force.
    Senator Brownback. Looking forward in the war on terrorism 
and the use of FISA and this Committee's desire, I believe, to 
have the administration wherever possible and more frequently 
use FISA--and you noted you have used it more this past year 
than the year before--what specific areas would make this 
decision on your part easier, more likely to use the FISA 
process?
    Attorney General Gonzales. Well, Senator, if you are 
talking about domestic surveillance in a peacetime situation, 
for other kinds of terrorists beyond al Qaeda, I am not sure--
    Senator Brownback. No. I am talking about the war on 
terrorism.
    Attorney General Gonzales. Senator, I would like the 
opportunity to think about that and maybe talk to the experts 
in the Department, I think would have a better sense about what 
kinds of specific things. I can say that the PATRIOT Act 
includes a provision which allows these orders to stay in place 
a longer period of time before they are renewed. It is quite 
burdensome, the fact that these things expire. We then have to 
go back and get a renewal. That just places an additional 
burden on our staff, but I would like to have the opportunity 
to get back to you about what other kinds of specific changes 
might be helpful.
    Senator Brownback. If you could, because I think we are 
going to be in this for a period of time, and we are going to 
be in it for succeeding administrations in this war on 
terrorism, and probably our most valuable tool that we have is 
information, early information, to be able to cut this off. So 
the American public, I think, clearly wants us to be able to 
get as much information as we can. And yet, I think we need to 
provide a process that has as much security to the American 
public that there is no abuse in this system. This is about us 
trying to protect people and protect people in the United 
States. I want to know too, Presidential authority that you are 
protecting. This has been talked about by the Clinton 
administration Attorney General before, many others. It is not 
just this administration at all, as others have specifically 
quoted. But I do think as this wears on, we really need to have 
those thoughts at how we can make the FISA system work better.
    Attorney General Gonzales. Senator, we are likewise as 
concerned about ensuring that we protect the rights of all 
Americans.
    Senator Brownback. I am sure you are, and I appreciate 
that. I want you to protect us from security attacks, too, and 
bin Laden, to my knowledge, when he normally makes a threat, he 
has followed through on these. This is a very active and live 
area. I just want to see if we can make that law change where 
it can work for a long-term war on terrorism.
    Thank you, Mr. Chairman.
    Senator Hatch. [Presiding.] Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman.
    Incidentally, Senator Brownback rightly pointed out the 
date when FISA was enacted, but, of course, we have updated it 
five times since 9/11, two of those when I was Chairman. In the 
year 2000, the last year of the Clinton administration, they 
used the FISA Court 1,005 times. And in the year of September 
11th, your administration there, they actually used it less 
times even than the Clinton administration used it before.
    I am just curious. When I started this morning, I asked you 
a very straightforward question. I told you I would come back 
to it. I am sure you have had time to check for the answer 
during the lunch hour. So I come to you again with it. When did 
the Bush administration come to the conclusion that the 
congressional resolution authorizing the use of military force 
against al Qaeda also authorized warrantless wiretapping of 
Americans inside the United States?
    Attorney General Gonzales. Sir, the authorization of this 
program began--
    Senator Leahy. I cannot hear you. Could you pull your mike 
a little bit closer?
    Attorney General Gonzales. Pardon me. The authorization 
regarding the terrorist surveillance program occurred 
subsequent to the authorization to use military force and prior 
to the PATRIOT Act.
    Senator Leahy. OK. So what you call terrorist surveillance, 
some would call the breaking of the Foreign Intelligence 
Surveillance Act. I am asking when did you decide that the 
authorization for use of military force gave you the power to 
do this? I mean, you were White House Counsel then. What date 
did it give you the power?
    Attorney General Gonzales. Well, sir, I can't give you 
specific dates about when--
    Senator Leahy. That is what I asked you this morning, and 
you had the time to go and look. You had to sign that or sign 
off on that before the President--when did you reach the 
conclusion that you didn't have to follow FISA?
    Attorney General Gonzales. Sir, I am not going to give an 
exact date as to when the program actually commenced--
    Senator Leahy. Why not?
    Attorney General Gonzales [continuing]. But it has always 
been the case--because that is an operational detail, sir. I 
have already indicated--the Chairman has invited me--the 
Committee has invited me here today to talk about the legal 
analysis of what the President authorized.
    Senator Leahy. We are asking for the legal analysis. I 
mean, obviously you had to make a determination that you had 
the right to do this. When did you make the determination that 
the AUMF gave you the right to do this?
    Attorney General Gonzales. From the very outset, before the 
program actually commenced. It has always been the position 
that FISA cannot be interpreted in a way that infringes upon 
the President's constitutional authority, that FISA must be 
interpreted, can be interpreted in a way--
    Senator Leahy. Did you tell anybody that when you were up 
here seeking the PATRIOT Act and seeking the changes in FISA? 
Did you tell anybody you had already determined--I mean, it is 
your testimony here today that you made the determination 
virtually immediately that you had this power without using 
FISA.
    Attorney General Gonzales. Well, sir, the fact that we were 
having discussions about the PATRIOT Act and there wasn't a 
specific mention about electronic surveillance with respect to 
this program, I would remind the Committee that there was also 
discussion about detention in connection with the PATRIOT Act 
discussions. Justice Souter in the Hamdi decision made that as 
an argument, that clearly Congress did not authorize--
    Senator Leahy. Judge Gonzales, I am not asking about what 
happens when you catch somebody on a battlefield and detain 
him. I am not asking about what you do on the battlefield in 
our failed attempt to catch Osama bin Laden, what we were 
actually asking the administration to do. I am not asking about 
what happens on that battlefield. I am asking why did you feel 
that this--now, your testimony is that virtually immediately 
you determined you had the power to do this warrantless 
wiretapping because of the AUMF. You did not ask anybody up 
here. Did you tell anybody that you needed something more than 
FISA?
    Attorney General Gonzales. Sir, I don't recall--did I tell 
anyone in Congress or tell--
    Senator Leahy. Congress. Let's take Congress first.
    Attorney General Gonzales. Sir, I don't recall having 
conversations with anyone in Congress about this.
    Senator Leahy. All right. Do you recall that anybody on 
this Committee, which actually is the one that would be 
amending FISA, was told?
    Attorney General Gonzales. Sir, I have no personal 
knowledge that anyone on this Committee was told.
    Senator Leahy. Now, apparently, then, according to your 
interpretation, Congress--a lot of Republicans and a lot of 
Democrats--disagree with you on this--we were authorizing 
warrantless wiretapping. Were we authorizing you to go into 
people's medical records here in the United States by your 
interpretation?
    Attorney General Gonzales. Senator, whatever the limits of 
the President's authority given under the authorization to use 
military force and his inherent authority as Commander in Chief 
in time of war, it clearly includes the electronic surveillance 
of the enemy.
    Senator Leahy. Well, I would just note that you did not 
answer my question, but here you also said, ``We have had 
discussions with the Congress in the past, certain Members of 
Congress, as to whether or not FISA could be amended to allow 
us to adequately deal with this kind of threat. We were advised 
that that would be difficult, if not impossible.''
    That is your statement. Who told you that?
    Attorney General Gonzales. Senator, there was discussion 
with a bipartisan group of Congress, leaders in Congress, 
leaders of the Intel Committees, to talk about legislation, and 
the consensus was that obtaining such legislation--the 
legislative process is such that it could not be successfully 
accomplished without compromising the program.
    Senator Leahy. When did they give you that advice?
    Attorney General Gonzales. Sir, that was some time in 2004.
    Senator Leahy. Three years later. I mean, you have been 
doing this wiretapping for 3 years, and then suddenly you come 
up here and say, ``Oh, by the way, guys, could we have a little 
bit of authorization for this?'' Is that what you are saying?
    Attorney General Gonzales. Sir, it has always been our 
position that the President has the authority under the 
authorization to use military force and under the Constitution.
    Senator Leahy. It has always been your position, but, 
frankly, it flies in the face of the statute, Mr. Attorney 
General, and I doubt very much if one single person in Congress 
would have known that was your position, had you not known the 
newspapers were going to print what you were doing. Not that 
anybody up here knew it. When you found out the newspapers were 
going to print it, you came up here. Did you talk to any member 
of the Judiciary Committee that would actually write it? And 
let me ask you this: Did any member of this Committee, this 
Judiciary Committee that has to write the law, did anybody here 
tell you we could not write a law that would allow you to go 
after al Qaeda in the way you are talking about?
    Attorney General Gonzales. Sir, I don't believe there were 
any discussions with any members of the Judiciary Committee 
about--
    Senator Leahy. Even though we are the ones that have to 
write the law, and you are saying that you were told by Members 
of Congress we couldn't write a law that would fit it. And now 
you tell us that the Committee that has to write the law never 
was asked. Does this sound like a CYA on your part? It does to 
me.
    Attorney General Gonzales. We had discussions with the 
bipartisan leadership of the Congress about this program.
    Senator Leahy. But not from this Committee. We have both 
Republicans and Democrats on this Committee, you know.
    Attorney General Gonzales. Yes, sir, I do know that.
    Senator Leahy. And this Committee has given you--twice 
under my chairmanship--we have given you five amendments to 
FISA because you requested it. But this you never came to us.
    Mr. Attorney General, can you see why I have every reason 
to believe we never would have found out about this if the 
press hadn't? Now, there has been talk about, well let's go 
prosecute the press. Heavens. Thank God we have a press that at 
least tells us what the heck you guys are doing, because you 
are obviously not telling us.
    Attorney General Gonzales. Sir, we have advised bipartisan 
leadership of the Congress and the Intel Committees about this 
program.
    Senator Leahy. Well, did you tell them that before the 
passage of the USA PATRIOT Act?
    Attorney General Gonzales. Sir, I don't recall when the 
first briefing occurred, but it was shortly--my recollection is 
it was shortly after the program was initiated.
    Senator Leahy. OK. Well, let me ask you this then. You said 
several years after it started you came up here and talked to 
some group of Members of Congress. The press reports that the 
President's program of spying on Americans without warrants was 
shut down for some time in 2004. That sounds like the time you 
were up here. If the President believed the program was 
necessary and legally justified, why did he shut it down?
    Attorney General Gonzales. Sir, you are asking me about the 
operations of the program, and I am not going to--
    Senator Leahy. Of course. I am sorry, Mr. Attorney General. 
I forgot you can't answer any questions that might be relevant 
to this.
    Well, if the President has that authority, does he also 
have the authority to wiretap Americans' domestic calls and e-
mails under this--let me finish--under this authority if he 
feels it involved al Qaeda activity? I am talking about within 
this country, under this authority you have talked about, does 
he have the power to wiretap Americans within the United States 
if they are involved in al Qaeda activity?
    Attorney General Gonzales. Sir, I have been asked this 
question several times--
    Senator Leahy. I know, and you have had somewhat of a vague 
answer, so I am asking it again.
    Attorney General Gonzales. And I have said that that 
presents a different legal question, a possibly tough 
constitutional question, and I am not comfortable just off the 
cuff talking about whether or not such activity would, in fact, 
be constitutional.
    I will say that that is not what we are talking about here. 
That is not what--
    Senator Leahy. Are you doing that?
    Attorney General Gonzales [continuing]. The President has 
authorized.
    Senator Leahy. Are you doing that?
    Attorney General Gonzales. I cannot give you assurances. 
That is not what the President has authorized--
    Senator Leahy. Are you doing that?
    Attorney General Gonzales [continuing]. Through this 
program.
    Senator Leahy. Are you doing that?
    Attorney General Gonzales. Senator, you are asking me again 
about operations, what are we doing.
    Senator Leahy. Thank you.
    Senator Hatch. Throughout this process, you don't know when 
it began, but at least eight Members of Congress have been 
informed about what has been disclosed by people who have 
violated the law in disclosing it and by the media that has 
printed the disclosures. Is that correct?
    Attorney General Gonzales. That is generally correct, sir. 
Yes, sir.
    Senator Hatch. Did you have one complaint about the program 
from any of the eight--and that was bipartisan, by the way, 
those eight people. Four Democrats--
    Attorney General Gonzales. They were not partisan 
briefings.
    Senator Hatch. Four Democrat leaders in the Congress, four 
Republican leaders in the Congress. Is that right?
    Attorney General Gonzales. It was a bipartisan briefing, 
yes, sir.
    Senator Hatch. Did you have any gripes or complaints about 
what was disclosed to them, to the best of your recollection?
    Attorney General Gonzales. Well, again, I want to be 
careful about speaking for Members, but--
    Senator Hatch. I am not asking you to speak for Members. I 
am asking you if you had any gripes or complaints.
    Attorney General Gonzales. Again, I wasn't present--
    Senator Hatch. Or suggestions.
    Attorney General Gonzales. I wasn't present at all the 
briefings. But for those briefings that I was present at, they 
received very detailed briefings about these operations. They 
were given ample opportunity to ask questions. They were given 
ample opportunity to express concerns.
    Senator Hatch. Now, you were somewhat criticized here in 
some of the questions that your argument that the authorized 
use of military force is a faulty argument because the FISA Act 
does not really talk about except as authorized by statute. But 
you have pointed out that Section 109, or if you want to be 
more specific, Section 1809 of Title 50, Chapter 36, subchapter 
1, 1809, does say that a person is guilty of an offense if he 
intentionally engages in electronic surveillance under color of 
law except as authorized by statute.
    Attorney General Gonzales. That is the main criminal 
prohibition against engaging in electronic surveillance, except 
as otherwise provided for by statute or except--I mean, except 
as otherwise provided by FISA or except as otherwise provided 
by statute.
    Senator Hatch. Now, this authorized use of military force 
enabled you ``to use all necessary and appropriate force 
against the nations, organizations, or persons the President 
determines planned, authorized, committed, or aided the 
terrorist attacks.'' Is that correct?
    Attorney General Gonzales. This is a very important point, 
Senator. Think about it. The authorization does not identify 
specifically--it never mentions the word ``al Qaeda.'' It 
authorizes the President to engage in all necessary and 
appropriate force to identify those he determines, who the 
President determines, and the President is not able to do that 
without information, without intelligence, without the kind of 
electronic surveillance we are talking about today.
    Senator Hatch. That is right. As someone who helped to 
write the PATRIOT Act, the original PATRIOT Act, I cannot help 
but express the awareness of those of us around here that here 
we are well over a month after the expiration of the PATRIOT 
Act, and we keep renewing it from month to month because we 
cannot get Congress to really agree on what the changes should 
be. Is that a fair assessment?
    Attorney General Gonzales. Well, what I will say is I think 
the tools of the PATRIOT Act are important, and I hope that 
they are reauthorized quickly.
    Senator Hatch. But the reason I am bringing that up is 
because at one time at least one report was that one of these 
eight Members was asked--who had the program disclosed to them, 
at least remarked that he didn't think that a statute could be 
passed to resolve these issues.
    Attorney General Gonzales. I do not want to attribute to 
any particular Member that statement. What I will say is that--
    Senator Hatch. You don't have to do that, but is that true?
    Attorney General Gonzales. There was a consensus that 
pursuing the legislative process would likely result in 
compromising the program.
    Senator Hatch. In other words, it is not easy to get things 
through 535 Members of Congress, 435 in the House and 100 in 
the Senate. Now, I know that you love the Congress and will not 
find any fault with any of us.
    Attorney General Gonzales. Sir, you have been at this a 
little bit longer than I have, but it has certainly been my 
experience that it is sometimes difficult.
    Senator Hatch. Yes, it is. Is it not true that one check on 
the President's power to operate the NSA surveillance program 
is the Congress's power over the purse, as listed in Article I, 
section 8 of the Constitution?
    Attorney General Gonzales. Absolutely. I think even those 
who are sort of in the pro-executive camp in terms of the 
allocations of constitutional powers in a time of war would 
have to concede that the power of the purse is an extremely 
strong check on the President, on the Commander in Chief.
    Senator Hatch. Well, I have noticed that while many in 
Congress have sharply criticized the President and the NSA 
program that we have been discussing here, I am not aware of 
any Member of Congress introducing legislation to end the 
program through either an authorization or an appropriations 
mechanism. But from what we know about the intent of the 
program today, I expect a few Members of either the House or 
the Senate would vote to eliminate this program or cutoff its 
funding. And the reason I state that is because all of us are 
concerned about this battle that we are waging, that this is 
not an easy battle. This is a war unlike any war we have ever 
had before. And it is a very secret war on their side. And I 
think the administration has taken the position that we have 
got to be very careful about disclosures on our side as well.
    Is it not true that the disclosures that have occurred have 
very definitely hurt our ability to gather intelligence?
    Attorney General Gonzales. The Director of the CIA, I 
believe, has publicly commented that it has hurt us.
    Senator Hatch. It is important, General, to bring out that 
President Clinton's administration ordered several warrantless 
searches on the home and property of a domestic spy, Aldrich 
Ames. That is true, isn't it?
    Attorney General Gonzales. That is correct, sir.
    Senator Hatch. That was a warrantless set of searches.
    Attorney General Gonzales. That is correct, sir.
    Senator Hatch. And the Clinton administration also 
authorized a warrantless search of the Mississippi home of a 
suspected terrorist financier. Is that correct?
    Attorney General Gonzales. I think that is correct, sir.
    Senator Hatch. The Clinton Justice Department authorized 
these searches because it was the judgment of Deputy Attorney 
General Jamie Gorelick, somebody I have great admiration for--
and let me quote her. It has been quoted before, but I think it 
is worth quoting it again. This is the Deputy Attorney General 
of the United States in the Clinton administration. She said, 
``The President has inherent authority to conduct warrantless 
physical searches for foreign intelligence purposes''--now, 
this is against domestic people--``and the rules and 
methodologies for criminal searches are inconsistent with the 
collection of foreign intelligence and would unduly frustrate 
the President in carrying out his foreign intelligence 
responsibilities.'' You are aware of that quote.
    Attorney General Gonzales. I am aware of it, yes, sir.
    Senator Hatch. If the President has inherent ability to 
surveil American citizens in national security cases during 
peacetime, I guess what is bothering me, how can it be that 
President Bush is precluded, as some have argued, from 
surveilling al Qaeda sources by intercepting foreign calls into 
this country to people who may be al Qaeda, affiliated with al 
Qaeda, or affiliated with somebody who is affiliated with al 
Qaeda? How can that be?
    Attorney General Gonzales. Senator I think that the 
President's authority as Commander in Chief obviously is 
stronger during a time of war. If the authorization to use 
military force did not exist or was repealed or was not 
interpreted in the way that we are advocating, then it seems to 
me you are teeing up a fairly difficult constitutional question 
as to whether or not Congress can constitutionally limit the 
President's ability to engage in electronic surveillance of the 
enemy during a time of war.
    Senator Hatch. We were aware of the Clinton's 
administration approaches. I don't know of any Republicans who 
raised Cain about that.
    Walter Dellinger, the former head of the Office of Legal 
Counsel under President Clinton, in a final opinion published 
on July 14, 1994, wrote, ``Specifically, we believe that the 
prohibition on destruction of aircraft would not apply to the 
actions of United States military forces acting on behalf of 
the United States during its state of hostilities. We know 
specifically that the application of the provision to acts of 
the United States military personnel in a state of hostilities 
could lead to absurdities. For example, it could mean in some 
circumstances that military personnel would not be able to 
engage in reasonable self-defense without subjecting themselves 
to the risk of criminal prosecution.''
    General, do you believe that Walter Dellinger, who is now a 
critic of the President's authorization of wartime surveillance 
of al Qaeda, was correct in 1994?
    Attorney General Gonzales. Sir, I have not studied that 
opinion in a while, but it sounds like it would be correct in 
my judgment.
    Senator Hatch. All right. Now, let me just bring up again, 
as I understand it, just so we can repeat it one more time, the 
administration takes the position that a further statute on top 
of Section 109 of the FISA Act would also complement the Act, 
and the authorized use of military force granted by Congress is 
an acceptable, legitimate statute that goes to the point that I 
made earlier, to use all necessary and appropriate force 
against nations, organizations, or persons the President 
determines planned, authorized, committed, or aided the 
terrorist attacks, and that that justifies doing what you can 
to interdict these foreign terrorists who are calling in to our 
country to people who may also be affiliated. Now, as I 
understand it, that is part of it.
    The second part of it is the fact that you are citing that 
the President does have inherent powers under Article II of the 
Constitution to engage in these activities; and, third, that 
you have not violated the Fourth Amendment of the Constitution 
because the position you are taking under these circumstances 
with the obligation to protect this country are reasonable 
searches and seizures.
    Attorney General Gonzales. I think clearly these searches 
are reasonable given the circumstances, the fact that we have 
been attacked by an enemy here within this country. I think it 
would fall within the special needs jurisprudence as something 
that would allow warrantless searches.
    Let me just say that an important component of our argument 
relies upon the Canon of Constitutional Avoidance, because 
there are--I have heard some members of the Committee say they 
are not sure they buy the authorization to use military force 
analysis. If our interpretation is simply fairly possible, if 
it is only fairly possible, then the Court has held that that 
interpretation must be adopted if it means that we can avoid a 
tough constitutional issue.
    Senator Hatch. Well, thank you, sir. My time is done.
    Senator Feinstein?
    Senator Feinstein. Thank you, Mr. Chairman.
    Mr. Chairman, I want to respond to you on the Jamie 
Gorelick-Aldrich Ames situation.
    Senator Hatch. Sure.
    Senator Feinstein. Because, in fact, the law was changed 
directly after the Aldrich Ames case. I called because I heard 
you say this before, so I called Jamie Gorelick, and I asked 
her to put this in writing. She has done so, and I have it 
before me now. And she points out in this letter that her 1994 
testimony arose in the context of congressional consideration 
of an extension of FISA to cover physical searches. And at the 
time FISA covered only electronic surveillance, such as 
wiretaps.
    In 1993, the Attorney General had authorized foreign 
intelligence physical searches in the investigation of Aldrich 
Ames, whose counsel thereafter raised legal challenges to those 
searches. Point: There was no law at that time. And then she 
goes on to say that the Clinton administration believed ``it 
would be better if there were congressional authorization and 
judicial oversight of such searches. My testimony did not 
address inherent Presidential authority to conduct electronic 
surveillance, which was already covered by FISA.''
    I would ask that this letter and her testimony be entered 
into the record.
    Senator Hatch. Without objection, it will be entered into 
the record.
    Senator Feinstein. Thank you. You know, I respect you 
greatly, but I think that is a bit of a red herring.
    Senator Hatch. Well, but you need to also quote in the same 
letter where she said, ``My testimony did not address whether 
there would be inherent authority to conduct physical searches 
if FISA were extended to cover physical searches.'' And she 
goes on. We will put it into the record.
    Senator Feinstein. All right. Thank you.
    Senator Sessions. Mr. Chairman, could I just--
    Senator Feinstein. If I--
    Senator Sessions [continuing]. Say one point. Just one 
point.
    Senator Feinstein. If I have extra time, you can speak as 
long as you--
    Senator Hatch. You will have extra time.
    Senator Sessions. The Attorney General explained that when 
I asked him. He narrowed my question when I raised it and made 
that qualification. Perhaps you were not here when he did that.
    Senator Feinstein. All right. Mr. Attorney General, it is 
my view that the briefings of the Big 8 essentially violate the 
law as well. I believe that is a second violation of law, 
because I believe that Section 502, 5 U.S.C. 413(a)(1) and (2) 
and (b)(1) and (2) specifically say how the Intelligence 
Committee should be notified. I was present in the Intelligence 
Committee in December of 2001 when this was considered. And 
Senator Graham was Chairman of the Committee, and the Committee 
really wanted all sensitive intelligence reported in writing. 
And what this did was set up a mechanism for that.
    So, in my view, it was very clear that what the 
Intelligence Committee wanted at that time was all sensitive 
intelligence outside of covert to be reported to the Committee, 
and this set up the format.
    Now, let me just move on, if I can.
    Attorney General Gonzales. Senator, could I respond to 
that?
    Senator Feinstein. Sure. Of course.
    Attorney General Gonzales. Because I disagree. First of 
all, both Chairman Roberts and Chairman Hoekstra disagree. They 
believe that we have provided notice as required by the law to 
the Intel Committees, and they both take the position that 
nowhere in the law does it requires that each individual member 
of the Intel Committee be briefed.
    The section that I think you quoted to--and I must tell you 
sometimes it gets kind of confusing to read these (bb)'s and 
(ii)'s. It gets kind of confusing. I think you are referring to 
a section which imposes an obligation on the President to 
ensure that agencies within the administration meet the notice 
requirements. If you go to the actual notice requirements under 
413a.(a) and 413b.(b), those impose the obligations to make 
sure that the Intel Committees are currently and fully 
informed. However, a.(a), which deals with non-covert action, 
and b.(b), which deals with covert action, both have a proviso 
that, to the extent it doesn't mean compromising--and I am 
paraphrasing here--sources and methods and especially sensitive 
matters. And so I think we have been acting consistent with the 
law based upon these provisions that I just cited. There has 
been a long practice of giving briefings only to the Chair and 
Ranking or a certain limited subset of the Intel Committees. 
And, again, I would just simply remind the Senator, I know 
Chairmen guard their prerogatives jealously, and both the 
Chairmen of the Intel Committees, Senate and House, both 
Chairmen have said we have met our obligations to provide 
briefings to the Intel Committee.
    Senator Feinstein. Well, my reading of the law, I disagree. 
I still disagree. I recognize we have a difference of opinion. 
I will propose an amendment to strengthen it in the next 
authorization bill. To me--and I remember being there. I 
remember the discussion. And, anyway, I would like to move on.
    I am puzzled, and I want to go back to why you did not come 
for a change in FISA. Let me just read off a few of the changes 
that we have made to FISA. We extended the emergency exemption 
from 24 to 72 hours. We lowered the legal standard for 
surveillance to the significant purpose test. We allowed for 
John Doe roving wiretaps. We lowered the standard for FISA pen 
traps. We expanded their scope to include Internet routing 
information. We extended the scope of business records that can 
be sought under FISA. We extended the duration of FISA 
warrants. We broadened FISA to enable the surveillance of lone 
wolf terrorists. And we made the Director of National 
Intelligence the lead authority.
    Now, in view of the changes that we have made, I cannot 
understand why you did not come to the Committee unless the 
program was much broader and you believed it would not be 
authorized. That is the only reason I can figure you did not 
come to the Committee, because if the program is as the 
President has said and you have said, to this date you haven't 
briefed the Intelligence Committee. You haven't let us ask the 
question, What is a link? What is an affiliate? How many people 
are covered? What are the precise--and I don't believe in the 
briefings those questions were asked. What are the precise 
numbers? What happens to the data? How long is it retained in 
the data base? When are innocent people taken out of the data 
base?
    Attorney General Gonzales. Senator, I--
    Senator Feinstein. I can only believe--and this is my 
honest view--that this program is much bigger and much broader 
than you want anyone to know.
    Attorney General Gonzales. Well, Senator, of course, I 
cannot talk about aspects here that are beyond what the 
President has already confirmed. What I can say is that those 
Members of Congress who have received briefings know--I think 
they know, and, of course, I don't know what they actually 
know. But they have been briefed on all the details about all 
the activities. So they know what is going on.
    Senator Feinstein. I understand your point of view. This 
morning, I asked you whether there was any Supreme Court 
cases--this goes to precedent--that has held that the President 
can wiretap Americans since the Congress passed the FISA law, 
and you responded In re Sealed Case.
    Attorney General Gonzales. Which, of course, is not a 
Supreme Court case.
    Senator Feinstein. That is right. I was going to bring that 
up, which is not a Supreme Court case.
    Attorney General Gonzales. And I apologize if I was not 
clear.
    Senator Feinstein. I just wanted to come back at you. So it 
is pure dicta, and--
    Attorney General Gonzales. It was not. Absolutely right, 
Senator.
    Senator Feinstein. I wanted to ask a question that you 
might not like, but I am going to ask it anyway. At the time of 
the In re Sealed Case, did the Department of Justice or other 
administration officials tell the FISA Court that warrantless 
domestic electronic wiretapping was going on?
    Attorney General Gonzales. In connection with that 
litigation, not to my knowledge, Senator.
    Senator Feinstein. OK. And since the passage of FISA, has 
any court spoken specifically to the President's authority to 
conduct warrantless domestic electronic surveillance? Since the 
passage of FISA, any Supreme Court--
    Attorney General Gonzales. The Supreme Court? I do not 
believe so. I think the last word on this by the Supreme Court 
is the Keith case, the 1972 case. And I think that year is 
right, and there the Court dealt with domestic security 
surveillance. And the Court was very clear, went out of its 
way, I believe, to make it clear that they were not talking 
about electronic surveillance for foreign intelligence 
purposes.
    Senator Feinstein. Was the program mentioned to the Court 
in the Hamdi case?
    Attorney General Gonzales. I do not know the answer to that 
question, Senator.
    Senator Feinstein. I would appreciate it if you could find 
the answer and let us know.
    Senator Hatch. Senator, take another 2 minutes because of 
our interruptions.
    Senator Feinstein. Oh, thank you very much.
    This morning, you said, and I quote, ``Presidents 
throughout our history have authorized the warrantless 
surveillance of the enemy during wartime.'' Has any President 
ever authorized warrantless surveillance in the face of a 
statute passed by the Congress which prohibits that 
surveillance?
    Attorney General Gonzales. Actually, I think there was a 
statute on the books in connection with the order by President 
Roosevelt. I want to confirm that, but it is my recollection 
that that is, in fact, the case, that even though there was a 
statute on the books, and maybe even a Supreme Court case--I 
cannot remember now--President Roosevelt ordered electronic 
surveillance.
    Senator Feinstein. I would be very interested to know that.
    As I understand your argument, it is that if one does not 
agree that the resolution to authorize military force provides 
a statutory exception to FISA, then FISA is unconstitutional--
    Attorney General Gonzales. No--well, if that is the 
impression I gave, I don't want to leave you with that 
impression. That tees up, I think, a difficult constitutional 
issue. I think it is an easier issue for the executive branch 
side than the facts that were dealt with under Youngstown v. 
Sawyer, because there you were talking about the President of 
the United States exercising dominion over part of our domestic 
industry, the steel industry. Here you are talking about what I 
think is a much more core constitutional right of the Commander 
in Chief.
    I believe that the President--that a statute that would 
infringe upon that I think would have some--there would be some 
serious constitutional questions there. But I am not prepared 
at this juncture to say absolutely that if the AUMF argument 
does not work here, that FISA is unconstitutional as applied. I 
am not saying that.
    Senator Feinstein. All right. But you sidestep FISA using 
the plenary authority as Commander in Chief. The problem there, 
as I see it, is that Article I, section 8 gives the Congress 
the authority to make the regulations for the military. NSA is 
part of DOD. Therefore, the Congress has the right to make 
those regulations.
    Attorney General Gonzales. I think that the clause you are 
referring to is the clause in section 8 of Article I, which 
clearly gives to the Congress the authority and power to make 
rules regarding the Government and regulation of our Armed 
forces. And then the question is, well, electronic 
surveillance, is that part of the Government and regulation of 
our Armed Forces? There are many scholars who believe that 
there we are only talking about sort of the internal 
administration of our military, like court martials, like 
selective service.
    And so I think there would be a question, a good debate and 
discussion about whether or not--what does that clause mean and 
does it give to the Congress under the Constitution the 
authority to impose regulations regarding electronic 
surveillance? I am not saying that it doesn't. I am just saying 
I think that is obviously a question that would have to be 
resolved.
    Senator Hatch. Senator, your time is up.
    Senator Grassley?
    Senator Feinstein. Thank you very much. Thanks, Mr. 
Attorney General.
    Senator Grassley. Thank you.
    It appears to me that FISA generally requires that if 
surveillance is initiated under the emergency authorization 
provisions and an order is not obtained from the FISA Court, 
the judge must ``cause to be served on any U.S. person named in 
the application and on such other U.S. persons subject to 
electronic surveillance as the judge'' believes warranted: the 
fact of the application; two, the period of the surveillance; 
and, three, the fact that during the period information was or 
was not obtained.
    So that brings these questions if that is a factual reading 
of the statute. Does this explain the caution and the care and 
the time that is used when deciding whether to authorize 72-
hour emergency surveillance? And let me followup. And then the 
possibility that if you got it wrong, could you wind up tipping 
off an enemy? In this case, we are worried about al Qaeda 
terrorists. Would this interfere with the President's ability 
to establish this vital early warning system under FISA? And is 
this one of the reasons then--and this is the last question. Is 
this one of the reasons why FISA is not as nimble and quick a 
tool as you need to combat terrorist threats and that members 
of this Committee think ought to be used to a greater extent?
    Attorney General Gonzales. Senator, those are all very good 
questions. The reason we are careful about our work in seeking 
a FISA is because we want to get it right. We absolutely want 
to get it right in every case, and we have career professionals 
working hard on these kinds of issues. And we want to get it 
right.
    It is true that if I authorize an emergency--if I give an 
emergency authorization and an order is not obtained, my 
reading of the statute or my understanding of the statute is 
that the presumption is that the judge will then notify the 
target of that surveillance during that 72-hour period. We 
would have the opportunity and make arguments as to why the 
judge should not do that. But in making those arguments, we may 
have to disclose information certainly to the judge, and if we 
fail, the judge may very well notify the target that they were 
under surveillance. And that would be damaging. That could 
possibly tip off a member of al Qaeda or someone working with 
al Qaeda that we have reasons to be concerned about their 
activities. And so it is one of the many reasons why we take 
such great care to ensure that when I grant an emergency 
authorization, that all the requirements of FISA are met.
    The reason we have such a high approval rate at the FISA 
Court is not because the FISA Court is a rubber stamp. It is 
because we do our work in ensuring that those applications are 
going to meet the requirements of the statute.
    Senator Grassley. What we know about al Qaeda and their 
method of operation, which I think at the very least we think 
that it involves the placement of sleeper cells in our country 
for months or--they look way ahead--it could even be for years 
for a planned attack, and the need to rely upon an electronic 
communication network to convey instructions to those cells 
from command structures that would be located for al Qaeda 
outside the country. The surveillance program authorized by the 
President was tailored precisely to meet the natures of the 
threat that we face as a nation, particularly with sleeper 
cells; would that be right?
    Attorney General Gonzales. It is a narrowly tailored 
program, and of course, that helps us in the Fourth Amendment 
analysis as to whether or not these are reasonable searches, 
and we believe that under the special needs jurisprudence, 
given the fact that we have been attacked from al Qaeda within 
our country, we believe that these would satisfy the 
requirements of the Fourth Amendment.
    Senator Grassley. I think in your opening statement, didn't 
you make a reference to bin Laden about his recent speech 2 
weeks ago, and that is, obviously, a reiteration of the threat, 
and he said that these attacks, future attacks could dwarf the 
9/11 magnitude? If that is true, is it in some sense incredible 
to you that we are sitting here having this discussion today 
about whether the President acted lawfully and appropriately in 
authorizing a program narrowly targeted an communication that 
could well lead to a disruption or prevention of such an 
attack?
    Attorney General Gonzales. Senator, I think that we should 
all be concerned to ensure that all branches of Government are 
operating within the limits of the Constitution. And so I can't 
disagree with this hearing, the discussions, the questions in 
these hearings. I think we have a good story to tell from the 
administration viewpoint. I wish there were more that we could 
tell, because it is not simply a coincidence that the United 
States of America has not been hit again since 9/11. It is 
because of the brilliant and wonderful work of our men and 
women in the military overseas. It is because of tools like the 
PATRIOT Act. It is because of tools like the terrorist 
surveillance program.
    Senator Grassley. Howard Dean, the Chairman of the 
Democratic Party was quoted recently as equating the terrorist 
surveillance program authorized by President Bush to, quote, 
``abuses of power during the dark days of the Nixon 
administration.'' You are awful young, but does that have a 
fair comparison to you? And if it is not a fair comparison, why 
or why not?
    Attorney General Gonzales. Well, it is not a fair 
comparison. I would direct you and the other members of the 
Committee to Chairman Roberts's response to Mr. Dean in terms 
of making it clear that what is going on here is much more akin 
to the directive by President Roosevelt to his Attorney General 
Jackson in terms of authorizing the Department to--authorizing 
his administration to initiate warrantless surveillance of the 
enemy, and so this is--again, this is not domestic 
surveillance. This is not going after our political enemies. 
This is about international communications. This is about going 
after al Qaeda.
    Senator Grassley. I wonder if you would discuss the nature 
of the threat posed by al Qaeda to our country, because al 
Qaeda operates not under the rules of law, but with disregard 
and contempt for conventional warfare. In combatting al Qaeda, 
can we afford to rely purely upon conventional law enforcement 
techniques such as those traditionally used to combat organized 
crime groups and al Qaeda traffickers, and if we were to do 
that, what would be the result?
    Attorney General Gonzales. The President expects us to use 
all the tools available under the Constitution. Obviously, we 
have strong law enforcement tools that we have been using and 
will continue to use. But this is also a very serious military 
campaign, and we are going to exercise and use all the tools, 
again, that are available to us in fighting this new kind of 
threat and this new kind of war.
    Senator Grassley. I think we had some discussion from you 
about the review that goes on every 45 days or approximately 
every 45 days, but the President himself said, quote, 
``carefully reviewed approximately every 45 days to ensure its 
ongoing propriety.'' The surveillance is then reauthorized only 
after the President signs off on it.
    So I want to ask you a few questions about this review 
process. I want to ask these questions because it is important 
that the American people know whether the President has 
instituted appropriate procedures to guard against abuses. In 
the 42-page legal memorandum from your Department, it is noted 
about the program, quote, ``Reviewed for legality by the 
Department of Justice and are monitored by the General Counsel 
and the Inspector General of the NSA to ensure that civil 
liberties are being protected.''
    I would like to give the opportunity to explain to the 
fullest extent possible, without compromising the programs, 
what, who, when, why, where and how of the periodic review. 
What can you tell us about the periodic review and 
reauthorization of the surveillance program? What assurances 
can you give the American people about their constitutional 
rights being zealously guarded against abuses?
    Attorney General Gonzales. There is a lot there in that 
question, Senator. I will do my best to respond. Obviously, 
this is a periodic review, approximately every 45 days or so. 
We have people from the intelligence community evaluate whether 
or not al Qaeda--what is the level of threat that continues to 
be posed by al Qaeda.
    During that period of time, we have monthly meetings out at 
NSA, where people who are involved in the program, senior 
officials, get together, sit down, talk about how the program 
is operating, ensuring that the program is being operated in a 
way that's consistent with the President's authorization.
    In connection with each authorization, the Department does 
make an analysis with respect to the legal authority of the 
President of the United States to move forward. And so there 
are administration lawyers that are involved, looking to see 
whether or not the President does still have the authority to 
authorize the terrorist surveillance program that I have 
described here today.
    Senator Grassley. I think my time is up. I was going to 
have some followup questions on that point, but if it is 
necessary, I will submit it for answer in writing.
    Senator Hatch. Thank you, Senator.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    General Gonzales, when my time ended last time, we were 
beginning to talk about the President's statements in the State 
of the Union that his predecessors used the same legal 
authority that he is asserting. Let me first ask, do you know 
of any other President who has authorized warrantless wiretaps 
outside of FISA since 1978 when FISA was passed?
    Attorney General Gonzales. None come to mind, Senator, but 
maybe--I would be happy to look to see whether or not that is 
the case.
    Senator Feingold. I take it as a no unless you submit 
something.
    Attorney General Gonzales. I can't answer that--I can't 
give you an answer.
    Senator Feingold. OK. Isn't it true that the only Federal 
courts to decide the President's authority to authorize 
warrantless national security wiretaps were considering 
wiretaps carried out before the enactment of FISA?
    Attorney General Gonzales. I am sorry, Senator. I was 
thinking about your question and I--
    Senator Feingold. Would you like to answer the previous 
question?
    Attorney General Gonzales. No, but I was trying to think of 
an answer, and I did not catch the first part of your second 
question.
    Senator Feingold. Isn't it true that the only Federal 
courts that decide the President's authority to authorize 
warrantless national security wiretaps were considering 
wiretaps that were carried out before the enactment of FISA?
    Attorney General Gonzales. In which there were actual 
decisions? Actually, there was a Fourth Circuit decision, the 
Truong decision, which was decided after FISA. To be fair, I 
don't think they really got into an analysis.
    Senator Feingold. That case was about a Vietnam era wiretap 
before FISA was enacted, right?
    Attorney General Gonzales. The collection occurred before 
FISA was enacted. The decision was made after FISA, and 
consequently, my recollection is, is that case doesn't really 
get into a discussion about how the passage of FISA impacts--
    Senator Feingold. It was based in facts prior to FISA, then 
the law that controls is the law prior to FISA, right?
    Attorney General Gonzales. That is right. And then, of 
course, In re: Sealed Cases, that did not--
    Senator Feingold. You covered that with Senator Feinstein. 
That was dicta, correct?
    Attorney General Gonzales. Yes.
    Senator Feingold. Thank you. So when the President said 
that Federal courts have, quote, ``approved the use of that 
authority,'' unquote, if he was trying to make people think 
that the courts had approved the authority he is invoking and 
the legal theory that you put forward here, that isn't really 
accurate, is it?
    Attorney General Gonzales. The President was totally 
accurate in saying that in considering the question as to 
whether or not the President has inherent constitutional 
authority to authorize warrantless searches consistent with the 
Fourth Amendment to obtain foreign intelligence, the statement, 
I think, is perfectly accurate.
    Senator Feingold. But he said the Federal courts had said 
it was all right.
    Attorney General Gonzales. That is right.
    Senator Feingold. And you were not able to give me anything 
here since FISA that indicates that.
    Attorney General Gonzales. But, Senator, I don't believe 
that he was making a statement since or before--he was making 
the statement the courts who have considered the President's 
inherent constitutional authority, have--the Court of Appeals 
have said, and I think--there are five Court of Appeals 
decisions cited in the In re: Sealed Case. All of them have 
said, I believe, that the President does have the 
constitutional authority to engage in this kind of 
surveillance.
    Senator Feingold. That is why we just went over all this 
because all of that is based on pre-FISA law. Here is my 
concern. The President has somehow suggested that he could not 
wiretap terrorists before he authorized this program. He said, 
quote, ``If there are people inside our country who are talking 
with al Qaeda, we want to know about it.'' Of course, I agree 
with that 100 percent, and we have a law that permits it. Isn't 
it true that FISA permits the NSA to wiretap people overseas 
without a court order even if they call into the United States?
    Attorney General Gonzales. Well, of course, it depends, 
Senator.
    Senator Feingold. It does do that in some circumstances, 
does it not?
    Attorney General Gonzales. It could do it in some 
circumstances depending on whether or not it is electronic 
surveillance as defined under FISA. As you know, they are 
very--I don't want to say convoluted--it is a very complicated 
definition of what kind of radio or wire communications would 
in fact be covered by FISA.
    Senator Feingold. General, I understand that, but clearly, 
FISA in part does permit that kind of activity in certain 
cases?
    Attorney General Gonzales. Depending on the circumstances.
    Senator Feingold. To leave the impression that there is no 
law permitting that would be incorrect.
    Attorney General Gonzales. Well, of course not. We use FISA 
whenever we can.
    Senator Feingold. That is what I am trying to get at, is 
the impression that the President left, I think in the State of 
the Union, was not completely accurate. Isn't it true that FISA 
permits the FBI to wiretap individuals inside the United States 
who are suspected of being terrorists or spies so long as the 
FBI gets secret approval from a judge?
    Attorney General Gonzales. Senator, I think I have already 
said that with respect to even domestic communications 
involving members of al Qaeda, we use all the tools available 
to us including FISA. If we can get a FISA--
    Senator Feingold. So the fact is that when the President 
suggests that he doesn't have that, that power doesn't exist, 
that power does exist, at least in part, under FISA, under 
current law?
    Attorney General Gonzales. Senator, I don't know whether or 
not that is what the President suggested, but clearly, the 
authority does exist for the FBI, assuming we can meet the 
requirements of FISA, assuming it is electronic surveillance 
covered by FISA, to engage in electronic surveillance of al 
Qaeda here in this country.
    Senator Feingold. Here is what the President said. He said, 
``If there are people inside our country who are talking with 
al Qaeda, we want to know about it,'' unquote. I was sitting in 
the room. He sure left me the impression that he was suggesting 
that without this NSA program, somehow he didn't have the power 
to do that. That is misleading. So when the President said that 
he authorized a program to, quote, ``aggressively pursue the 
international communications of suspected al Qaeda operatives 
and affiliates to and from America,'' trying to suggest that 
without this program he could not do that under the law, that 
is not really right, is it?
    Attorney General Gonzales. Senator, I believe what the 
President has said is accurate. It is not misleading. The day 
following the New York Times story, he came out to the American 
people and explained what he had authorized. We have given 
numerous briefings to Congress since that day. I am here today 
to talk about legal authorities for this program.
    Senator Feingold. I think the President's comments in the 
State of the Union were highly misleading. The American people 
need to know that you already have legal authority to wiretap 
anyone you suspect of helping al Qaeda, and every person on 
this Committee and the Senate supports your use of FISA to do 
just that.
    Let me switch to another subject. Senator Feinstein sort of 
got at this, but I want to try a different angle. If you can 
answer this with a yes or no, I would, obviously, appreciate 
it. Has the President taken or authorized any other actions, 
any other actions that would be illegal if not permitted by his 
constitutional powers or the authorization to use military 
force?
    Attorney General Gonzales. Repeat your question, please, 
Senator.
    Senator Feingold. Has the President taken or authorized any 
other actions that would be illegal if not permitted by his 
constitutional powers or the authorization to use military 
force?
    Attorney General Gonzales. You mean in direct contradiction 
of a statute, and relying upon his commander in chief 
authority?
    Senator Feingold. Has he taken any other--yes, it would be 
a legal--
    Attorney General Gonzales. Not to my knowledge, Senator.
    Senator Feingold. In other words, are there other actions 
under the use of military force for Afghanistan resolution that 
without the inherent power would not be permitted because of 
the FISA statute? Are there any other programs like that?
    Attorney General Gonzales. Well, I guess what I would like 
to do, Senator, is I want to be careful about answering your 
question. I, obviously, cannot talk about operational matters 
that are not before this Committee today, and I don't want to 
leave you with the wrong impression. So I would like to get 
back to you with an answer to that question.
    Senator Feingold. I definitely prefer that to then being 
told that something is a hypothetical.
    On September 10, 2002, Associate Attorney General David 
Kris testified before the Senate Judiciary Committee. His 
prepared testimony includes the following statement. ``Thus, 
both before and after the PATRIOT Act, FISA can be used only 
against foreign powers and their agents, and only where there 
is at least a significant foreign intelligence purpose for the 
surveillance. Let me repeat for emphasis, we cannot monitor 
anyone today whom we could not have monitored at this time last 
year,'' unquote.
    And this last sentence was actually underlined for emphasis 
in the testimony, so let me repeat it too. ``We cannot monitor 
anyone today whom we could not have monitored at this time last 
year.''
    Now, I understand that Mr. Kris did not know about the NSA 
program and has been highly critical of the legal 
justifications offered by the Department. I also realize that 
you were not the Attorney General in 2002, so I know you won't 
know the direct answer to my question. But can you find out--
and I would like if you can give me a response in writing--who 
in the White House had the Department of Justice reviewed and 
approved Mr. Kris's testimony, and of those people, which of 
them were aware of the NSA program and thus let, obviously, a 
highly misleading statement be made to the Congress of the 
United States. Will you provide me with that information?
    Attorney General Gonzales. We will see what we can provide 
to you, Senator. My understanding is, is that Mr. Kris--I don't 
think it is fair to characterize his position as highly 
critical. I think he may disagree, but saying it's highly 
critical I think is unfair.
    Senator Feingold. We could debate that, but the point here 
is to get to the underlying information. I appreciate your 
willingness to get that for me if you can.
    General Gonzales, I would like to explore a bit further the 
role of the telecommunications companies and Internet service 
providers in this program. As I understand it, surveillance 
often requires the assistance of these service providers, and 
the providers are protected from criminal and civil liability 
if they have been provided a court order from the FISA Court or 
criminal court, or if a high-ranking Justice Department 
official has certified in writing that, quote, ``No warrant or 
court order is required by law that all statutory requirements 
have been met and that the specified assistance is required.''
    Am I accurately stating the law?
    Attorney General Gonzales. I believe that is right, 
Senator, but--
    Senator Feingold. Have you or anyone at the Justice 
Department provided any telephone companies or ISPs with these 
certifications in the course of implementing the NSA's program?
    Attorney General Gonzales. Senator, that is an operational 
detail that I just can't go into in this hearing.
    Senator Feingold. I look forward to an opportunity to 
pursue it in other venues. And thank you very much.
    Attorney General Gonzales. Thank you, Senator.
    Senator Hatch. Thank you, Senator.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman. I hadn't intended to 
ask any questions, but I think there are two areas that need to 
be cleared up, first with regard to two points that Senator 
Feingold said the President--in which the President made highly 
misleading statements, one in the State of the Union, allegedly 
leaving the impressions that the President had authority he did 
not have.
    When he discussed the authority that he had that other 
Presidents had, or had exercised, what was he referring to 
there? Was he referring to FISA, or was he referring to 
something else?
    Attorney General Gonzales. Senator, he was referring to the 
President's inherent constitutional authority to engage in 
electronic surveillance of the enemy.
    Senator Kyl. Exactly. And second, Senator Feingold asked 
you if there was authority under FISA to conduct wiretaps, 
including of suspected al Qaeda terrorists, and that it was 
misleading for the President to infer otherwise. Is it possible 
to acknowledge that FISA authority exists while also making the 
point that it is not the optimal or maybe even workable method 
of collection of the kind that is done under the surveillance 
program at issue here?
    Attorney General Gonzales. No question about it. It is one 
of the reasons for the terrorist surveillance program that 
while FISA ultimately may be used, it would be used in a way 
that has been less effective because of the procedures that are 
in FISA.
    Senator Kyl. Thank you. Now, let me clear up a concern 
expressed by Senator Feinstein that the reason that Congress 
had not been asked to statutorily authorize this surveillance 
program may be because it is much bigger than we have been led 
to believe. Is that the reason?
    Attorney General Gonzales. Senator, the reason is because, 
quite frankly, we didn't think we needed it under the 
Constitution, and also because we thought we had it with 
respect to the action by the Congress. We have believed from 
the outset that FISA has to be read in a way where it is not 
inconsistent with the President's constitutional authority as 
Commander in Chief.
    Senator Kyl. Right. Now, there was also discussion about 
briefings by the intelligence community, General Hayden and 
perhaps others, to what has been called the Big 8, which are 
the 4 elected leaders, bipartisan, of the House and Senate, and 
4 chairmen and ranking members of the two Intelligence 
Committees of the Congress. Was that the group that you 
referred to when you said that there had been discussion about 
whether to seek an amendment of FISA in the Congress?
    Attorney General Gonzales. Senator, it did include the 
leadership of the Congress and the leadership of the Intel 
Committees.
    Senator Kyl. In terms of evaluating--also Senator Leahy 
asked the question about why you did not come to the members of 
this Committee. Who would be in a better position to judge or 
to assess the impact on our intelligence with respect to 
compromise of the program? Would it be leadership and chairmen 
and ranking members of the Intelligence Committees or members 
of this Committee that had not been read into the program?
    Attorney General Gonzales. Senator, the judgment was made 
that the conversation should occur with members of the Intel 
Committee and the leadership of the Congress, bipartisan.
    Senator Kyl. And in fact, if you came to this Committee to 
see amendments to cover the program at issue, the members of 
this Committee would have to be read into the program, would 
they not?
    Attorney General Gonzales. Yes, sir.
    Senator Kyl. Senator Leahy also said thank goodness--I am 
paraphrasing now--thank goodness that we have the press to tell 
us what the administration is doing with this program because 
we would not know otherwise. And of course, the press did 
disclose the existence of this highly classified program, which 
you have indicated has compromised the program to some extent 
or has done damage to it. I forgot your exact phrase.
    Attorney General Gonzales. Those, I believe, were the 
comments from the CIA Director.
    Senator Kyl. And it seems to me, Mr. Chairman, that the 
attitude that it is a good thing that this program was 
compromised validates the view of the bipartisan leadership 
that briefing Members of Congress further, or at least briefing 
members of this Committee would further jeopardize the program. 
It seems to me that those entrusted with knowledge of this 
program must be committed to its protection.
    Thank you, Mr. Chairman.
    Senator Hatch. Thank you, Senator.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman.
    I just want to go back to where we left off and then I will 
move forward, and thank you, General Gonzales. I know it has 
been a long day for you, especially with all that bobbing and 
weaving. It is not so easy.
    We talked before about the legal theory that you have under 
AUMF, and I had asked you that under your legal theory can the 
Government, without ever going to a judge or getting a warrant, 
search an American's home or office? I am not saying--well, can 
you give me an answer to that? Why wouldn't the same exact 
legal theory apply, that the Congress, in the resolution gave 
the President power he needed to protect America? Why is one 
different than the other, both at Fourth Amendment?
    Attorney General Gonzales. Senator, I am not suggesting 
that it is different. Quite frankly, I would like the 
opportunity simply to--
    Senator Schumer. I am sorry, if you could pull the mic 
forward.
    Attorney General Gonzales. I'm sorry. I am not saying that 
it would be different. I would simply like the opportunity to 
contemplate over it and give you an answer.
    Senator Schumer. And you will be back here so we can ask 
that, right?
    Attorney General Gonzales. According to the Chairman.
    Senator Schumer. OK, good. If not, I would ask unanimous 
consent that Mr. Gonzales--General Gonzales be given time to 
answer that one in writing.
    Senator Hatch. He said he would.
    Senator Schumer. Good. Now, here is the next question I 
have. Has the Government done this? Has the Government searched 
someone's home, an American citizen, or office, without a 
warrant since 9/11, let's say?
    Attorney General Gonzales. Sir, to my knowledge, that has 
not happened under the terrorist surveillance program, and I am 
not going to go beyond that.
    Senator Schumer. I do not know what--what you said, under 
the terrorist surveillance program. The terrorist surveillance 
program is about wiretaps. This is about searching someone's 
home. It is different. So it would not be done under this 
surveillance program. I am asking you has it be done?
    Attorney General Gonzales. But now you are asking me 
questions about operations or possible operations, and I am not 
going to get into that, Senator.
    Senator Schumer. I am not asking you about any operation. I 
am not asking you how many times. I am not asking you where.
    Attorney General Gonzales. If you ask me has that been 
done.
    Senator Schumer. Yes.
    Attorney General Gonzales. Have we done something.
    Senator Schumer. Yes.
    Attorney General Gonzales. That is an operational question 
in terms of how we are using our capabilities.
    Senator Schumer. So you will not answer whether it is 
allowed and you will not answer whether it has been done. I 
mean is not part of your--in all due respect, as somebody who 
genuinely likes you--but isn't this part of your job to answer 
a question like this?
    Attorney General Gonzales. Of course it is, Senator, and--
    Senator Schumer. But you are not answering it.
    Attorney General Gonzales. Well, I am not saying that I 
will not answer the question. I am just not prepared to give 
you an answer at this time.
    Senator Schumer. All right. I have another one, and we can 
go through the same thing. How about wiretap under the illegal 
theory, can the Government, without ever going to a judge, 
wiretap purely domestic phone calls?
    Attorney General Gonzales. Again, Senator, give me an 
opportunity to think about that, but of course, that is not 
what this program is.
    Senator Schumer. It is not. I understand. I am asking 
because under the AUMF theory, you were allowed to do it for 
these wiretaps. I just want to know what is going on now. Let 
me just--has the Government done this? You can get back to me 
in writing.
    Attorney General Gonzales. Thank you, Senator.
    Senator Schumer. And one other, same issue. Placed a 
listening device, has the Government, without ever going to a 
judge, placed a listening device inside an American home to 
listen to the conversations that go on there? Same answer?
    Attorney General Gonzales. Same answer, Senator.
    Senator Schumer. But now I have another one, and let's see 
if you give the same answer here. And that is, under your legal 
theory, can the Government, without going to a judge--this is 
legal theory, I am not asking you whether they do this--monitor 
private calls of its political enemies, people not associated 
with terrorism, but people who they don't like politically?
    Attorney General Gonzales. We are not going to do that. 
That's not going to happen.
    Senator Schumer. All right. Next, different issue. Last 
week in the hearing before the Intelligence Committee, General 
Hayden refused to state publicly how many wiretaps have been 
authorized under this NSA program since 2001. Are you willing 
to answer that question, how many have been authorized?
    Attorney General Gonzales. I cannot--no, sir, I'm not at 
liberty to do that. I believe--and of course, I have not been 
at all the briefings for the congressional leaders, and the 
leaders of the Intel Committee. I believe that that number has 
been shared, however, with Members of Congress.
    Senator Schumer. You mean the Chair of the Intelligence 
Committee or something? It is not a classified number, is it?
    Attorney General Gonzales. It is a--I believe it is a 
classified number, yes, sir.
    Senator Schumer. Here is the issue. FISA is also important 
to our national security, and you have praised the program, 
right?
    Attorney General Gonzales. I couldn't agree more with you, 
Senator. It's very important.
    Senator Schumer. Now, FISA makes public every year the 
number of applications. In 2004 there were 1,758 applications. 
Why can't we know how many under this program? Why should one 
be any more classified than the other?
    Attorney General Gonzales. I don't know whether or not I 
have a good answer for you, Senator.
    Senator Schumer. I do not think you do.
    Attorney General Gonzales. The information is classified, 
and I certainly would not be at liberty to talk about it here 
in this public forum.
    Senator Schumer. And I understand this isn't exactly your 
domain, but can you--I cannot even think of a rationale why one 
should be classified and one should be made routinely public. 
Both involve wiretaps. Both involve terrorism. Both involve 
protecting American security. And we have been doing the FISA 
one all along. I am sure if the--well, let me ask you this. If 
the administration thought that revealing the FISA number would 
damage security, wouldn't they move to classify it?
    Attorney General Gonzales. I think maybe--of course, now I 
am just--I am going to give you an answer. Perhaps it has to do 
with the fact that with--FISA, of course, is much, much 
broader. We're talking about enemies beyond al Qaeda. We're 
talking about domestic surveillance. We are talking about 
surveillance that may exist in peacetime, not just in wartime. 
And so perhaps the equities are different in making that 
information available to Congress.
    Senator Schumer. Would you support declassifying that 
number?
    Attorney General Gonzales. Senator, I would have to think 
about that.
    Senator Schumer. OK, we will wait for the next round. That 
is another. We have a lot of questions to followup on here.
    Attorney General Gonzales. I look forward to our 
conversation.
    Senator Schumer. Me too. Me too.
    Abuses. This is when Frank Church was speaking at the 
hearing that Senator Kennedy, I think, talked about much 
earlier this morning, he said the NSA's, quote, capability at 
any time could be turned around on the American people and no 
American would have any privacy left. Such is the capability to 
monitor everything--telephone conversations, telegrams, it 
doesn't matter. There will be no place to hide.
    Now it is 31 years later and we have even more technology. 
So there is the potential that Senator Church mentioned for 
abuse is greater.
    So let me ask you these questions. I am going to ask a few 
of them so you can answer them together.
    Have there been any abuses of the NSA surveillance program? 
Have there been any investigations arising from concerns about 
abuse of the NSA program? Has there been any disciplinary 
action taken against any official for abuses of the program?
    Attorney General Gonzales. Senator, I think that--
    Senator Schumer. Because--this gets to the nub of things--
this is what we are worried about.
    Attorney General Gonzales. Of course.
    Senator Schumer. Most of us, I think all of us, want to 
give the President the power he needs to protect us. I 
certainly do. But we also want to make sure there are no 
abuses. So if there have been some abuses, we ought to know 
about it. And it might make your case to say, yeah, we found an 
abuse, or a potential abuse, and we snuffed it out.
    Tell me what the story is.
    Attorney General Gonzales. Well, I do not have answers to 
all of these questions. I would like to remind people that, of 
course, even in the area of criminal law enforcement, when you 
talk about probable cause, sometimes there are mistakes made, 
as you know.
    Senator Schumer. No question. No one is perfect.
    Attorney General Gonzales. The mistake has to be one that 
would be made by a reasonable man. And so when you ask have 
there been abuses, I can't--you know, these are all 
investigations, disciplinary action--
    Senator Schumer. Yes, this is something you ought to know, 
if there has been any disciplinary action. Because I take it 
that would be taken--
    Attorney General Gonzales. Not necessarily. I think the NSA 
has a regimen in place where they ensure that people are 
abiding by agency policies and regulations.
    Senator Schumer. If I asked those two questions about the 
Justice Department, any investigations arising out of concerns 
about abuse of NSA surveillance or any disciplinary action 
taken against officials, in either case by the Justice 
Department, you would know the answer to that.
    Attorney General Gonzales. I would probably know the answer 
to that, to my knowledge, no.
    Senator Schumer. Could you commit, when we come back, to 
tell us if there have been--you know, you can then go broader 
than what you know--more broadly than what you know now--
    Attorney General Gonzales. In terms of what is going on at 
NSA or Justice?
    Senator Schumer. NSA.
    Attorney General Gonzales. Well--
    Senator Schumer. I mean, as the chief law enforcement 
officer, it is still your job to sort of know what is going on 
in other agencies.
    Attorney General Gonzales. Well, sir, but if we are not 
talking about--Each agency has its own policies and procedures 
in place.
    Senator Schumer. I am just asking you when you come back 
next time to try and find the answers.
    Attorney General Gonzales. I will see what I can do about 
providing you additional information to your questions.
    Senator Schumer. A little soft, but I will have to take it, 
I guess.
    Thank you, Mr. Chairman.
    Senator Hatch. Thank you.
    Senator DeWine.
    Senator DeWine. Thank you, Mr. Chairman.
    Long day, Mr. Attorney General. Let me just ask you a few 
questions. We have had a lot of discussion today and you have 
referenced a lot to this group of 8, report to this group of 8. 
I just want to make a point. It is a small point, I guess, but 
the statutory authorization for this group of 8 is 50 USC 413b. 
When you look at that section, the only thing that it 
references as far as what this group of 8 does is receive 
reports in regard to covert action. So that is really what all 
it is. There is no--it does not cover a situation like we are 
talking about here at all.
    So I just want to make that point. We all have a great deal 
of respect for these eight people. It is a different group of 8 
at different periods of time. We have elected them, we have 
selected them, they are leaders of the Congress. But there is 
no statutory authority for this group other than this section 
has to do with covert operations. And this is not a covert 
operation as defined in the specific section.
    Attorney General Gonzales. Senator, can I respond to you?
    Senator DeWine. Sure.
    Attorney General Gonzales. Because I had a similar question 
from Senator Feinstein and I don't know whether or not you were 
here.
    First of all, again repeating for the record that of course 
the Chairman of the Senate Intel Committee and the Chairman of 
the House Intel Committee are both--
    Senator DeWine. And I was here when she--
    Attorney General Gonzales. OK. Well, they both have 
communicated that we are meeting our statutory obligations. 
There is a provision that requires the President of the United 
States to ensure that agencies are complying with their notice 
requirements. The actual notice requirements, as I read it, are 
413a(a) and 413b(b). And 413a(a) deals with non-covert action; 
413b(b) deals with covert action. And both of them--
    Senator DeWine. Mr. Attorney General, I don't have much 
time. I don't mean to be impolite.
    Attorney General Gonzales. That is all right.
    Senator DeWine. I listen to that and I respect your 
position on it. My only point was a small point.
    Attorney General Gonzales. Yes, sir.
    Senator DeWine. And that point simply is that when we 
referenced a group of 8, there is no statutory authorization 
for the group of 8 other than for a covert operation. I guess I 
am just kind of a strict constructionist, a kind of 
conservative guy, and that is how I read the statute. That is 
my only point. And I understand your legal interpretation. I 
respect that. But, you know, that is it. I don't see it any 
other way on that.
    Let me ask you a couple of other questions that I wonder if 
you could clarify for me. One is the legal standard that you 
are using, that is being used by the NSA under this program for 
deciding when to conduct surveillance of a suspected terrorist. 
In your December 19th press conference you said that you must 
have a, and I quote, ``reasonable basis to conclude'' that one 
party to the communication is affiliated with al Qaeda. 
Speaking on Fox TV yesterday, General Hayden referred to the 
standard as ``in the probable cause range.''
    Could you just define it for me? I know you have talked 
about it today, but we are hearing a lot of different 
definitions.
    Attorney General Gonzales. To the extent there is--
    Senator DeWine. You are the Attorney General. Just clarify 
it for me, pinpoint it, give me the definition that the people 
who are administering this every single day in the field are 
following.
    Attorney General Gonzales. To the extent there is 
confusion, I must--we must take some of the credit for some of 
the confusion, because we have used different words. The 
standard is a probable cause standard. It is reasonable grounds 
to believe--
    Senator DeWine. A probable cause standard. That doesn't 
mean it is--is that different than probable cause as we would 
normally learn that in law school?
    Attorney General Gonzales. Not in my judgment.
    Senator DeWine. OK. So that means--
    Attorney General Gonzales. I think it is probable cause. 
But it is not probable cause as to guilt--
    Senator DeWine. I understand.
    Attorney General Gonzales [continuing].--or probable cause 
as to a crime being committed. It is probable cause that a 
party to the communication is a member or agent of al Qaeda. 
The precise language that I would like you to refer to is a 
reasonable grounds to believe. Reasonable grounds to believe 
that a party to the communication is a member or agent of al 
Qaeda or of an affiliated terrorist organization.
    Senator DeWine. So--
    Attorney General Gonzales. It is a probable cause standard, 
in my judgment.
    Senator DeWine. So probable cause.
    Attorney General Gonzales. It is probable cause.
    Senator DeWine. And so all the case law or anything else 
that we would learn throughout the years about probable cause, 
about that specific question, would be what we would look at 
and what the people are being instructed to follow.
    Attorney General Gonzales. But again, it has nothing to do 
with probable cause of guilt or probable cause that a crime had 
been committed. It is about--
    Senator DeWine. I understand. We are extrapolating that 
traditional standard over to another question.
    Attorney General Gonzales. And the reason that we use these 
words instead of ``probable cause'' is because people relying 
upon the standard are not lawyers.
    Senator DeWine. Let me followup. I don't have much time. 
General Hayden described the standard as a softer trigger than 
the one that is used under FISA.
    What does that mean?
    Attorney General Gonzales. I think what General Hayden 
meant was that the standard is the same but the procedures are 
different, and that you have more procedures that have to be 
complied with under FISA. But the standards are the same in 
terms of probable cause. But there clearly are more procedures 
that have to be met under FISA, and that is what I believe 
General Hayden meant by ``it's a softer trigger.''
    Senator DeWine. So it is more--it is a procedure issue, 
then. In other words, I have to go through more hoops on one, 
loops on the other. I mean, it is a difference what I have to 
go through, but my legal standard is the same. Is that what you 
are saying?
    Attorney General Gonzales. It is a probable cause standard 
for both and, yes, sir, the--what has to--
    Senator DeWine. It is the same standard.
    Attorney General Gonzales. It is the same standard.
    Senator DeWine. Different question, but--
    Attorney General Gonzales. Different procedures.
    Senator DeWine [continuing]. The same standard.
    Final followup question on this. I believe you have said 
that the individual NSA analysts are the ones who are making 
these decisions. The people who are actually doing are making 
the decisions, obviously. What kind of training are these 
individuals given in regard to applying the standard?
    Attorney General Gonzales. Well--
    Senator DeWine. Are you involved in that or are you not 
involved in that?
    Attorney General Gonzales. This is primarily handled by the 
General Counsel's Office at NSA. And as you know, they are 
very, very aware of the history of abuses. They care very much 
about ensuring that all the activities that are ongoing out at 
NSA are consistent with the Constitution and certainly 
consistent with the authorization by the President for this 
terrorist surveillance program.
    Senator DeWine. So this is not something your Department is 
directly involved in?
    Attorney General Gonzales. No, sir, I think it would be 
unfair to say that we are directly involved. We have provided 
some guidance, but I think it would be unfair to say that the 
Department of Justice has been intimately involved in providing 
training and guidance. This has been primarily--that, I think, 
aspect--I think it is fair to say that that responsibility has 
fallen primarily to the General Counsel's Office out at NSA.
    Senator DeWine. Well, Mr. Attorney General, I am going to 
conclude at this point. I just go back to what I said this 
morning, and that is, you know, we have heard a lot of debate, 
even more debate than we had this morning, about these legal 
issues. People on different sides of these legal issues. I just 
really believe it is in the country's best interest, the 
President's best interest to want--terrorism's best interest, 
which is what we are all concerned about--some 4 years or so 
after this program has been initiated for the President to come 
to Congress and to get--for us, the Intelligence Committee, 
which is the Committee that has jurisdiction, to take a look at 
this program, to get debriefing on the program, and then to see 
whatever changes in the law have to be made and to deal with 
it. I think you will be in a--the President will be in a much 
stronger position at this point to go forward, and it will be 
in the best interest of the country.
    So I thank you.
    Attorney General Gonzales. Thank you, Senator.
    Senator Hatch. Thank you, Senator.
    Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman. And thank you, 
General Gonzales. I join all of those that paid tribute to you 
for your patience on this, and thank you for responding to 
these questions.
    Just to pick up on what my friend and colleague, Senator 
DeWine, has mentioned. I am in strong agreement with that 
recommendation. It is bipartisan. I didn't have a chance to 
talk to Senator DeWine. I mentioned earlier in the course of 
our visit this morning that we had, I thought, extraordinary 
precedent with Attorney General Levi, and President Ford, where 
the members of this Committee, a number of us, went down to the 
Justice Department and worked with them. And they wanted to get 
it right on eavesdropping. And then General Levi had a day and 
a half where he listened to outside constitutional experts, 
because he wanted to get it right.
    My very great concern is that we are not getting it right. 
Maybe the NSA thinks that they are getting the information, but 
what we are seeing now with the leaks and others is that there 
are many people out there that wonder whether they are going to 
face future prosecution, whether the court system is going to 
be tied up because of information that is gained as a result of 
the NSA taps that is not going to be permitted, and that we are 
going to have these known al Qaeda personnel that are going to 
be either freed or given a lesser sentence or whatever, and 
that they are less inclined to sort of spill the beans because, 
if they know that they are going to get away or worse, they 
will be better prepared to make a deal with the law enforcement 
authorities than if they think they can tie up the courts.
    So in the FISA Act, as you well know, the 15 days that were 
included in there were included, as the legislative history 
shows, so that if they needed to have a broader context--it was 
spelled out in the legislative history--the administration 
would have 7 days allegedly to make emergency recommendations 
and we would have 7 days to act. Maybe that was too 
precipitous, but it was certainly the intent at the time to 
recognize the time. And I believe very strongly that as Senator 
DeWine has said, we have uncertainty now. When you have those 
within your own department who wonder about the legality, the 
list of constitutional authorities that question the legality. 
When you have Professor Curtis Bradley, someone who had been 
part of the administration, the State Department, question the 
legality, I think this is a matter of concern.
    I asked you, and I don't think I gave you a chance to 
answer, but you really didn't have a chance to test this out 
with outside constitutional authority, as I understand it.
    Attorney General Gonzales. Sir, of course I wasn't at the 
Department when the program commenced. So certainly, from 
within the White House, I am not aware of any discussions 
generally or specifically. I don't think there would have been 
any specific discussions with outside experts. And I suspect, 
in fact I am fairly sure, there were not discussions with 
outside experts at the Department, although I don't know for 
sure.
    Senator Kennedy. Well, we will have our chance and 
opportunity, hopefully, to find that out in further hearings. 
But what was done previously and the coming together when the 
legislation was passed with virtual unanimity in the House and 
the Senate is impressive. And I think, as others have 
expressed, we want to give the President the power to do what 
is right in terms of protecting us, but we need, as we do on 
other issues, to have the kinds of checks and balance to make 
sure that it is done right.
    I have just a couple of questions in other areas. I am not 
sure--you might have been asked about this, and if you can't 
answer it, you can't answer it, but since September 11th, has 
the President authorized any other surveillance program within 
the United States under his authority as Commander in Chief or 
under the authorization for use of military force in 
Afghanistan?
    Attorney General Gonzales. Senator, I can't answer that 
question in terms of other operations.
    Senator Kennedy. All right. On another issue, and I have 
heard from staff--I apologize for not being here through the 
whole session; we are dealing with the asbestos legislation on 
the floor at the time--
    Attorney General Gonzales. Yes. Of course.
    Senator Kennedy [continuing]. And I needed to go over to 
the floor. I understand that the telephone companies that 
assist the Government in engaging in electronic surveillance 
face potential criminal and civil penalties if they disclose 
consumer information unlawfully. But they are protected from 
such liability if they receive a written certification from the 
Attorney General or his designee saying that, and I quote, no 
warrant or court order is required by law, that all statutory 
requirements have been met, and that the specific assistance is 
required.
    So you understand that telephone companies can face 
criminal and civil liability if they provide wiretapping 
assistance in a way that is not authorized by statute?
    Attorney General Gonzales. I do understand that, yes, sir.
    Senator Kennedy. Have you provided a certification to the 
telephone companies that all statutory requirements have been 
met?
    Attorney General Gonzales. Senator, I can't provide that 
kind of information.
    Senator Kennedy. You can't answer that. And you couldn't 
even provide us with redacted copies.
    So I guess we would assume that, since that is a 
requirement or otherwise that they would be held under the 
criminal code, and that is a requirement, one would have to 
assume that you have given them that kind of authority. But 
that--
    Attorney General Gonzales. Sir, two points. There is a lot 
in the media about potentially what the President has 
authorized. Much of it is incomplete. Much of it is, quite 
frankly, wrong. And so you have this muddled picture that the 
President has authorized something that is much greater than 
what in fact he has authorized.
    And I can't remember my second point.
    Senator Kennedy. But your response to the earlier question 
about the range of different--
    Attorney General Gonzales. Oh, I remember my second--if I 
could just--My second point is, is that this--your question--
again, I haven't--I think this is true; I don't want to give 
you the--Well, maybe I shouldn't make this statement. I am 
sorry. Go ahead, sir.
    Senator Kennedy. Well, we were looking at sort of the range 
of different programs.
    I want to just mention, General, as someone that was here 
when we had the testimony, just quickly on the wiretaps, that 
prior to the time that J. Edgar Hoover used to appear, they 
used to lift all the wiretaps. They had 450 or 500 wiretaps, 
and they had 20 the day he testified, and then 500 the next 
day. No one is suggesting that that is what is happening, but 
many of us who have been on this Committee for some time have 
seen those abuses. No one is suggesting that, and we understand 
your reluctance in mentioning this, but this is an issue that 
has been around over some period of time.
    I would just say in conclusion, Mr. Chairman, I am very 
hopeful. We want to have as much certainty on the program as 
possible. I think what we have seen out in the public now the 
information that has been out there, certainly weekly, is a 
result of concerned individuals in these agencies, hard-working 
Americans that are trying to do a job and are concerned about 
the legality of this job. And I think they are entitled to the 
protections that we ought to be able to provide for them. As 
someone who has been a member of this Committee, I think that 
this Committee has in the past and certainly would still 
recognize the extraordinary sensitivity and the importance of 
it, do the job, do it right, and do it well. And then done so, 
I think we would have a different atmosphere and a different 
climate. And I think we would be able to get the kind of 
information that is going to be so important to our national 
security.
    I hope that will be a judgment that you will consider, as 
Senator DeWine has mentioned and others have mentioned. I 
appreciate your testimony.
    Thank you, Mr. Chairman.
    Chairman Specter. Before proceeding to Senator Sessions, 
who is next on the Republican side--I will defer my turn until 
after Senator Sessions has had his turn--I think this is a good 
time to make an announcement. Senator Kennedy made a suggestion 
earlier today about the Committee's intentions with respect to 
renewing the Voting Rights Act. This would be an especially 
appropriate action with the death of Coretta Scott King. We 
have been talking about hearings. We are going to move to renew 
the Voting Rights Act this year, if we possibly can, in advance 
of the 2007 date. We have been laboring under a very, very 
heavy workload, which everybody knows about, and we will be 
scheduling those hearings early on. They have to be very 
comprehensive and provide an evidentiary base. That is a matter 
of great concern, really, to everybody on the Committee.
    Senator Kennedy?
    Senator Kennedy. I want to thank the Chair. We have had a 
chance to talk about this at other times. And I particularly 
appreciate his sensitivity, as many of us are going down to the 
funeral for Coretta Scott King. I think it is an important 
statement and comment that her legacy will continue. So I thank 
the Chair. I know we have broad support. My friend Senator 
Leahy has been a strong supporter. Others here, Senator Biden--
I look around this Committee. It is a very, very important 
legislation. In the time that we inquired of General Gonzales, 
he had indicated the full support of the administration on 
this. We will look forward to working with you.
    I thank the Chair for making that announcement.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    I would like to offer for the record a letter from Mr. H. 
Brian Cunningham, who served for 6 years with the CIA and the 
Department of Justice in President Clinton's administration and 
for a time President Bush's administration, in which he defends 
the actions of the terrorist surveillance program.
    I would also join with the Chairman in welcoming Ms. 
Deborah Burlingame here. She has been here all day. Her brother 
was a pilot who lost his life in the plane that crashed into 
the Pentagon. I think her presence today is a vivid reminder of 
the human cost that can occur as a result of negligence, or 
failure of will, or failure to utilize the capabilities that 
are constitutionally legal in this country. We have a 
responsibility to make sure that we do those things that are 
appropriate and legal to defend this country. It is not merely 
an academic matter. We have had some good discussions here 
today. But it is beyond academics. It is a matter of life and 
death. And we have lost a lot of people; nearly 3,000 people 
have no civil rights today. They are no longer with us as a 
result of a terrorist attack. Thank you, Ms. Burlingame, for 
coming and being with us today.
    We talked about the inherent power of the President. I 
think there has been a remarkable unanimity of support for the 
inherent power of the President to do these kind of things in 
the interest of national security. And I know, post-Aldrich 
Ames, as you pointed out when I asked you about it, Mr. 
Gonzales, Attorney General Gonzales, that laws were changed 
with regard to that. But in fact, Jamie Gorelick, the Deputy 
Attorney General in the Clinton administration, testified in 
defense of a warrantless search of Aldrich Ames's home and a 
warrantless search of the Mississippi home of a terrorist 
financier in the Aldrich Ames case. She testified that the 
President has inherent authority to conduct warrantless 
physical searches for foreign intelligence purposes.
    Now, that sounds to me like she was saying that that is an 
inherent constitutional power. I don't understand it any other 
way. Would you?
    Senator Biden. Would the Senator yield for a question? What 
year is that? I am sorry.
    Senator Sessions. This would have been after the Aldrich 
Ames case, 1994-1995.
    Senator Biden. Thank you.
    Senator Sessions. It was before the statute was changed by 
the Congress. But she did not discuss it in that context. Her 
context was that it is the inherent power of the President. And 
she went on to say, ``that the rules and methodology for 
criminal searches are inconsistent with the collection of 
foreign intelligence and would unduly frustrate the President 
in carrying out his foreign intelligence responsibilities.''
    And in addition to that, Judge Griffin Bell, who served as 
a Federal judge for a number of years and was Attorney General 
under a Democratic President, Jimmy Carter, when the FISA Act 
was passed, acknowledged that while the bill did not recognize 
the President's inherent power to conduct electronic 
surveillance, he said this: ``[T]his does not take away the 
power of the President under the Constitution. It simply, in my 
view, is not necessary to state that power, so there is no 
reason to reiterate or iterate it as the case may be. It is in 
the Constitution, whatever it is.''
    And he went on to say a little earlier, when asked about 
the inherent power of the President to order electronic 
surveillance without first obtaining a warrant, former Attorney 
General Griffin Bell testified, ``We can't change the 
Constitution by agreement.'' Or by statute, I would add.
    A little later, he said when asked if he thought the 
President has, quote--he was asked this question--Does the 
President have ``the inherent right to engage in electronic 
surveillance of an American citizen in this country?'', Judge 
Bell responded, ``I do. I think he has a constitutional right 
to do that, and he has a concomitant constitutional duty to do 
it under certain circumstances.''
    So I don't know all the answers to what the powers are 
here. There are a lot of different opinions. I would say this. 
You have almost been criticized some today for not going 
further, not surveilling phone calls within our country. Some 
on the other side have criticized you--are apparently surprised 
you didn't assert that authority. But the President, I think, 
acted narrowly and within what he thought would be appropriate, 
given the constitutional and statutory structure and after 
having informed eight of the top leaders in the U.S. Congress.
    Would you comment on that?
    Attorney General Gonzales. Well, it is a very narrow 
authorization. And again, I want to repeat what I said earlier 
in the hearings in terms of--I want to assure you that while 
domestic-to-domestic is not covered under the terrorist 
surveillance program, we are using all the tools available, 
including FISA, to get information regarding those kinds of 
communications. I mean, if there are other ways to do it that 
are permitted under the Constitution, we are going to try to 
get that information, so very, very important.
    Senator Sessions. Well, thank you. I would just observe 
that I think this system was working. It was a narrow program 
that the President explained to congressional leaders. He had 
his top lawyers in the Department of Justice and the White 
House review its constitutionality and he was convinced that it 
was legal. He narrowly constrained it to international calls, 
not domestic calls, and al Qaeda-connected individuals. And he 
also did it with the one group that he has concluded was 
responsible for 9/11, al Qaeda, the group that this Congress 
has authorized him to engage in hostilities against, to go to 
war against. And they declared war on us even before 9/11. That 
is the one group, not other groups that might have hostile 
interests to the United States like Hizbollah, or a Colombian 
group, or terrorist group around the world. That is what he 
authorized to occur. So I think he showed respect for the 
Congress, not disrespect.
    And General Gonzales, other groups that may have violent 
elements within them are not authorized to be surveilled 
through this terrorist surveillance program. Isn't that 
correct?
    Attorney General Gonzales. Senator, under the President's 
terrorist surveillance program, again as I have indicated, what 
we are talking about today is people, members or agents of al 
Qaeda or related--of al Qaeda or related terrorist 
organizations. That is what we are talking about. And I think 
General Hayden, I believe, testified before the Intel Committee 
that there are professionals out at NSA and, I presume, from 
other branches of the intel community that provide input as to 
what does that mean to be sort of related or working with al 
Qaeda.
    Senator Sessions. Well, let me just conclude with this 
point. I think the system was working in that way. We were 
conducting a highly classified, important operation that had 
the ability to prevent other people from being killed, as Ms. 
Burlingame's brother was killed and several thousand others on 
9/11.
    I believe that CIA Director Porter Goss recently--his 
statement that the revealing of this program resulted in severe 
damage to our intelligence capabilities, is important to note. 
And I would just like to followup on Senator Cornyn's 
questions, General Gonzales, and ask you to assure us that you 
will investigate this matter, and if people are found to have 
violated the law, that the Department of Justice will prosecute 
those cases when they reveal this highly secret, highly 
important program.
    Attorney General Gonzales. Senator, of course we are going 
to investigate it. And we will make the appropriate decision 
regarding subsequent prosecution.
    Senator Sessions. Will you prosecute if it is appropriate?
    Attorney General Gonzales. We will prosecute when it is--if 
it is appropriate, yes, sir.
    Senator Sessions. Thank you.
    Chairman Specter. Thank you, Senator Sessions.
    Senator Biden.
    Senator Biden. Thank you very much.
    General, how has this revelation damaged the program? I am 
almost confused by it. I mean, it seems to presuppose that 
these very sophisticated al Qaeda folks didn't think we were 
intercepting their phone calls. I mean, I am a little confused. 
How did this revelation damage the program?
    Attorney General Gonzales. Well, Senator, I would first 
defer to the experts in the Intel community who are making that 
statement, first of all. I am just a lawyer, and so when the 
Director of the CIA says this will really damage our intel 
capabilities, I would defer to that statement.
    I think, based on my experience, it is true. You would 
assume that the enemy is presuming that we are engaged in some 
kind of surveillance. But if they are not reminded about it all 
the time in the newspapers and in stories, they sometimes 
forget, and you are amazed at some of the communications that 
exist. And so, but when you keep sticking it--putting it in 
their face that we are involved in some kind of surveillance, 
even if it is unclear in these stories, it can't help but make 
a difference, I think.
    Senator Biden. Well, I hope you and my distinguished friend 
from Alabama are right that they are that stupid and naive, 
because we are much better off if that is the case. I got the 
impression from the work I have done in this area that they are 
pretty darned sophisticated. They pretty well know. It is a 
little like when we talk about--when I say you all haven't--not 
you personally--the administration has done very little for 
rail security. They have done virtually nothing. And people 
say, Oh, my lord, don't tell them, don't tell them there are 
vulnerabilities in the rail system. They'll know to use terror. 
Don't tell them that tunnel was built in 1860 and has no 
lighting, no ventilation.
    I mean, I hope they are that stupid.
    Attorney General Gonzales. Sir, I think you can be very, 
very smart and be careless.
    Senator Biden. Well, OK, but if that is the extent of the 
damage, then I hope we focus on some other things, too.
    Look, I would like to submit for the record a letter 
numerous people have already submitted this letter--it has 
probably already been done--to Senators Specter and Leahy from 
former Deputy Attorney General Jamie Gorelick. She makes a very 
basic point. I don't want to debate it at this time. She said 
the Aldrich Ames case is about physical search. FISA didn't 
cover physical searches, as my distinguished friend from 
Alabama knows. At the time they conducted the search, FISA did 
not cover physical searches.
    And then she went on to say, My testimony did not address 
whether there would be inherent authority to conduct physical 
searches if FISA were extended to cover physical searches. 
After FISA was extended to cover physical searches, to my 
knowledge FISA warrants were sought.
    So, I mean, let's compare apples and apples, and oranges 
and oranges.
    Let me ask a few other basic questions. Because for me, you 
know, I have real doubts about the constitutionality, as others 
have raised here. I used to have a friend who used to say, you 
have to know how to know. You have to know how to know. And we 
don't know.
    Now, you are telling me and the rest of us that the 
Director of CIA says we have been damaged. Well, the former 
Director told us that we were going to be greeted with open 
arms. You know, that they had weapons of mass destruction. 
Those were honest mistakes. I mean, for me to accept the 
assertion made by a single person is something I would consider 
but is not dispositive.
    Let me ask you this question. Do you know--and you may 
not--do you know how many of these wiretaps and/or e-mail 
intercepts have resulted in anything?
    Attorney General Gonzales. Well--
    Senator Biden. Any criminal referral, any--
    Attorney General Gonzales. Without getting into specifics, 
Senator, I can say that the Director of the FBI said this has 
been a very valuable program. And it has helped identify would-
be terrorists here in the United States, and it has helped 
identify individuals providing material support for terrorists. 
General Hayden has said this has been a very successful 
program, that but for this program we would not have discovered 
certain kinds of information. General Hayden also said that 
this program has helped detect and prevent--I think those were 
his words--attacks both here and abroad. These folks are the 
ones that are paid to make these kinds of assessments. I am 
not.
    Senator Biden. Have we arrested those people? Have we 
arrested the people we have identified as terrorists in the 
United States?
    Attorney General Gonzales. Sir, when we can use our law 
enforcement tools to go after the bad guys, we do that.
    Senator Biden. No, that is not my question, General. You 
said that, you cited the assertions made by Defense Department, 
by General Hayden, by the FBI that this has identified al Qaeda 
terrorists. Have we arrested them?
    Attorney General Gonzales. Senator, I am not going to go--I 
am not going to go into specific discussions about--
    Senator Biden. I am not asking for specifics, with all due 
respect.
    Attorney General Gonzales. Well, in terms of how that 
information has been used and the results of that information.
    Senator Biden. Well, I hope we arrested them if you 
identified them. I mean, it kind of worries me because you all 
talk about how you identify these people and I have not heard 
anything about anybody being arrested. I hope they are not just 
hanging out there like we had these other guys hanging out 
prior to 9/11. I don't think you would make that mistake again.
    Can I ask you, again. A suspected al Qaeda terrorist calls 
from Abu Dhabi to an American citizen in Selma, Alabama. Turns 
out that when you do the intercept, the person on the other 
end, from Abu Dhabi, wasn't a terrorist. Understandable 
mistake. And it turns out the person in Selma wasn't talking to 
a terrorist. What do you do with that conversation that has now 
been recorded?
    Attorney General Gonzales. What I can say, Senator, is that 
we do have--there are minimization procedures in place. You and 
I had this conversation before about the minimization 
procedures that may exist with respect to this program.
    Senator Biden. That may exist?
    Attorney General Gonzales. Meaning--
    Senator Biden. Either they do or they don't. Do they exist?
    Attorney General Gonzales. There are minimization 
procedures that do exist with this program, and they would 
govern what happens to that information.
    Senator Biden. Does anybody know what they are?
    Attorney General Gonzales. Yes, sir, the folks out at NSA 
who are actually administering this program.
    Senator Biden. Have they told anybody in the Congress? Have 
they told any court?
    Attorney General Gonzales. Sir, I do not know that, the 
answer to that question.
    Senator Biden. I guess maybe you all don't have the same 
problem I have. If, in fact, there are minimization procedures 
and they are being adhered to, no problem. If, in fact, the 
people being intercepted are al Qaeda folks and they are 
talking to American citizens, no problem. But how do we know? I 
mean, doesn't anybody get to look at this ever? Doesn't a court 
retrospectively get to look at it? Doesn't, you know, the 
royalty within the Senate get to look at it, you know, these 
two, four, or eight people? I mean, doesn't somebody look at 
it? Or, you know, the cold war lasted 40 years. This war is 
likely to last 40 years. Is this for 40 years we have got to 
sit here and assume that every President is just, well, we know 
old Charlie, he is a good man, we are sure he wouldn't do 
anything wrong? And we know no one in the intelligence 
community would every do anything wrong. We have a history of 
proving that never occurred. And we know no one in the FBI will 
ever do anything wrong. That is clear. That never occurred.
    I mean, is there some place along the line that somebody 
other than an analyst, who we don't know but we know he is 
asserted to be an expert on al Qaeda, is there somebody other 
than that person who is ever going to know what happened? And 
whether or not there is, the next President may be less 
scrupulous. Maybe he or she will be engaged in data-mining.
    Attorney General Gonzales. Senator, as I indicated in my 
opening remarks, of course, the Inspector General at NSA, he 
has the responsibility to ensure that the activities out of 
this program are done in a way that is consistent with the 
President's authorization, including the minimization 
requirements.
    Senator Biden. OK. This reminds me of a Supreme Court 
hearing. What goes into the President making the decision on 
reauthorization every 45 days? Does anybody come and say, Mr. 
President, look, we have done 2,117 wiretaps or 219, 60 percent 
of them had some impact or only 1 percent has an impact, and we 
think--or is it automatic? I mean, what kind of things does a 
President look at other than we still have al Qaeda out there?
    Attorney General Gonzales. Sir, it is not automatic. As I 
also indicated in my opening statement, the President receives 
information from the intelligence community about the threat. 
The threat is carefully evaluated as to whether or not we 
believe al Qaeda continues to be a continuing threat to the 
United States of America.
    Senator Biden. So as long as it is, the program, so that is 
the criteria, is al Qaeda a threat? Not is the program working, 
but is al Qaeda a threat? Is that the criteria?
    Attorney General Gonzales. Well, of course not. If we do 
not have a tool, a lawful tool that is effective, why would we 
use it? We only use a tool if it is effective.
    Senator Biden. Thank you, General.
    Attorney General Gonzales. Mr. Chairman, could I ask for a 
short break?
    Chairman Specter. Granted.
    Attorney General Gonzales. Thank you, Mr. Chairman.
    [Recess 4:44 p.m. to 4:52 p.m.]
    Chairman Specter. The Judiciary Committee hearing will 
resume. We have four more Senators who have not completed their 
next round who are on the premises, so it may be that we can 
finish today. Other Senators have looked toward another round, 
so let me negotiate that between today and some date in the 
future to see if it is necessary to ask you to come back, Mr. 
Attorney General. And I had thought about limiting the time to 
5-minute rounds, but we are going to be here at least until 
about 5:30. So let's go ahead with the full 10 minutes, and I 
will yield at this time to Senator Graham?
    Senator Biden. Mr. Chairman, parliamentary inquiry. I do 
have other questions. I am not asking they be asked today or 
even tomorrow, but if we end today, which I think makes a lot 
of sense--the General has been very generous, and his physical 
constitution has been required to be pretty strong here today, 
too. Is it likely if after you survey us, after we close down 
today, that you may very well ask the General back for more 
questions from us in open session?
    Chairman Specter. Senator Biden, I would like to leave that 
open. Senator Leahy said that he was looking forward to another 
round, which is where we were when he left.
    Senator Biden. OK.
    Chairman Specter. I thought we would have a number of 
Senators who wouldn't have finished a second round, so Attorney 
General Gonzales would have had to come back for a second 
round. But it may be that others will have further questions, 
or it may be that on some of our other hearings we will have 
matters that we want to take up with the Attorney General. And 
the Attorney General has stated to me his flexibility in coming 
back, so let's--is that correct, Mr. Attorney General?
    Attorney General Gonzales. I try to be as helpful as I can 
to you, Mr. Chairman.
    Chairman Specter. I take that to be a yes.
    Senator Biden. Ten more seconds. The only reason I ask, I, 
like you, want to go to the floor and speak on the asbestos 
bill that is up, and I didn't know whether I should stay here 
for a third round or--
    Chairman Specter. I can answer that. You should stay here.
    [Laughter.]
    Senator Biden. I oppose the Chairman's position on 
asbestos. I shouldn't have asked that question. I withdraw the 
question, Mr. Chairman.
    Chairman Specter. I expect to go to 9 o'clock, Senator 
Biden. You are going to miss very important materials if you 
leave.
    Senator Graham?
    Senator Graham. Thank you, Mr. Chairman.
    Mr. Attorney General, we will see if we can talk a little 
more about this constitutional tension that is sort of my pet 
peeve, for lack of a better word.
    I would just echo again what Senator DeWine said. Instead 
of another round at another time, I would love to engage in a 
collaborative process with the administration to see if we can 
resolve this tension. I want to talk to you exclusively about 
inherent power and your view of it and the administration's 
view of it, and share some thoughts about my view of it.
    The signing statement issued by the administration on the 
McCain language prohibiting cruel, inhumane, and degrading 
treatment, are you familiar with the administration's signing 
statement?
    Attorney General Gonzales. I am familiar with it, Senator.
    Senator Graham. What does that mean?
    Attorney General Gonzales. The entirety of the statement, 
Senator?
    Senator Graham. Well, I guess to me I was taken back a bit 
by saying, notwithstanding, it was sort of an assertion that 
the President's inherent authority may allow him to ignore the 
dictates of the statute. Does it mean that, or did I 
misunderstand it?
    Attorney General Gonzales. It may mean that this 
President--first of all, no President can waive constitutional 
authority of the executive branch.
    Senator Graham. My question is very simple but very 
important. Is it the position of the administration that an 
enactment by Congress prohibiting the cruel, inhumane, and 
degrading treatment of a detainee intrudes on the inherent 
power of the President to conduct the war?
    Attorney General Gonzales. Senator, I think--I don't know 
whether or not we have done that specific analysis.
    Senator Graham. Can I ask you this question then?
    Attorney General Gonzales. Yes.
    Senator Graham. Is it the opinion of--your opinion and the 
administration's position without the force resolution that 
FISA is unconstitutional in the sense it intrudes on the power 
of the President to conduct surveillance at a time of war?
    Attorney General Gonzales. I think that question has been 
raised a couple times today. I have indicated that that then 
puts us into the third part of the Jackson analysis. I have 
also indicated that these are difficult questions.
    Senator Graham. And I will accept that as an honest, 
sincere answer, because they are difficult.
    Let's get back to my scenario about the military member who 
has a detainee under their charge. They get an order from the 
commander in chief or some higher authority to do certain 
techniques. The justification is that we need to know about 
what is going to happen in terms of battlefield developments. 
We believe this person possesses information. And those 
techniques are expressly prohibited by prior statute under the 
authority of the Congress to regulate the military. That is 
another classic moment of tension. What do we tell that troop? 
If they called you as a lawyer and they said, ``I got the order 
from my commander,'' maybe even from the President, ``to engage 
in five things, but I have been told there is a statute that 
says I cannot do that passed by Congress, what should I do?'' 
what would your answer be to that person?
    Attorney General Gonzales. I don't know if I can give that 
person an immediate answer. I think that is the point that you 
are making. To put our military in that kind of position, that 
is a very difficult place to be.
    Senator Graham. Thank you for that. That is absolutely the 
point I have been trying to make for a year and a half. I want 
to give that troop an answer that we all can live with, and let 
me take this just a little bit further.
    The FISA statute in a time of war is a check and balance, 
but here is where I think I am your biggest fan. During the 
time of war, the administration has the inherent power, in my 
opinion, to surveil the enemy and to map the battlefield 
electronically, not just physical but to electronically map 
what the enemy is up to by seizing information and putting that 
puzzle together. And the administration has not only the right 
but the duty, in my opinion, to pursue fifth column movements. 
And let me tell folks who are watching what a fifth column 
movement is. It is a movement known to every war where 
Americans, citizens, will sympathize with the enemy and 
collaborate with the enemy. It has happened in every war. And 
President Roosevelt talked about we need to know about fifth 
column movements.
    So to my friends on the other side, I stand by this 
President's ability inherent to being Commander in Chief to 
find out about fifth column movements. And I don't think you 
need a warrant to do that.
    But here is my challenge to you, Mr. Attorney General. 
There will come a point in time where the information leads us 
to believe that citizen A may be involved in a fifth column 
movement. At that point in time, where we will need to know 
more about citizen A's activity on an ongoing basis, here is 
where I part. I think that is where the courts really come in. 
I would like you and the next Attorney General and the next 
President, if you have that serious information that you need 
to monitor this American citizen's conduct in the future, that 
they may be part of a fifth column movement to collaborate with 
the enemy. I want a check and a balance and here is why: 
Emotions run high in war, and we put a lot of people in prison 
who just look like the enemy and never did anything wrong, just 
as loyal an American as you or I. But it would be very easy in 
this war for an American citizens to be called up by the enemy 
and labeled as something they are not. It would be very easy, 
in my opinion, if you are a business person dealing in the 
Mideast who happened to be an American citizen, the business 
deal goes bad, that bad things could happen to you.
    I would just like the administration to entertain the idea 
of sitting down with Senator DeWine and others to see if we can 
find a way at some point in the process of monitoring fifth 
column movements to have a check and balance system that not 
only would strengthen the Commander in Chief's role, it will 
give guidance to the people fighting the war. You will have 
Congress on board. You will be stronger in courts, and the 
enemy will be weaker.
    How does that proposition sit with you?
    Attorney General Gonzales. Senator, the President has 
already said that we would be happy to listen to your ideas.
    Senator Graham. OK. But you do understand my inherent 
authority argument, my concern with that argument, because 
taken--the next President may not be as sensitive to this 
limited role of the Government. Really, Mr. Attorney General, 
you could use the inherent authority argument of a Commander in 
Chief at a time of war to almost wipe out anything Congress 
wanted to do.
    Attorney General Gonzales. See, I disagree with that, 
Senator. I really meant it when I said earlier that in time--
    Senator Graham. Give me a situation where the Congress 
could regulate or trump the inherent power argument in time of 
war.
    Attorney General Gonzales. I think Congress has a powerful 
check on the Commander in Chief. It is through the purse.
    Senator Graham. If the Congress decided to limit treatment 
or interrogation techniques of a detainee, would the President 
have to honor that? Is that part of our authority under the 
Constitution to regulate the military? Do we have the authority 
to tell the military you will not do the following things? 
Would that intrude on the inherent power of the President to 
run the military?
    Attorney General Gonzales. The question is whether or not 
this is an interference with the day-to-day command functions 
of the Commander in Chief or does it fall within that clause of 
section 8 of Article I, which says that Congress--
    Senator Graham. Do you believe it is lawful for the 
Congress to tell the military that you cannot physically abuse 
a prisoner of war?
    Attorney General Gonzales. I am not prepared to say that, 
Senator. I think that that is--I think you can make an argument 
that that is part of the rule the Government--
    Senator Graham. Mr. Attorney General, if we cannot do that, 
if we cannot during a time of war regulate the behavior of our 
troops, then really we have no power in a time of war. And that 
is the point here. I think we share power.
    Attorney General Gonzales. I agree. I agree that power is 
shared in time of war.
    Senator Graham. I think we share a purpose of winning the 
war.
    Attorney General Gonzales. No question about that.
    Senator Graham. But we need to get together so the people 
on the front lines who are pulled and torn--if the Bybee memo, 
Mr. Attorney General had become the policy, there would have 
been people subject to court martial. And in your good 
judgment, you repealed that. But I can assure you, Mr. Attorney 
General, if the Bybee memo's view of how you handle a detainee 
and what is torture and what is not, if it had been 
implemented, it would have violated the Uniform Code of 
Military Justice, and our guys could have gone to jail. And in 
your good judgment, you repealed that.
    I am asking for you to use that good judgment again and 
advise our President to come to this Congress and let us sit 
down and work through these constitutional tensions, because we 
do not need tension among ourselves. We need unanimity.
    Thank you for your service to our country.
    Attorney General Gonzales. Thank you, Senator.
    Chairman Specter. Thank you very much, Senator Graham.
    Senator Durbin?
    Senator Durbin. Thank you.
    Attorney General, you have said that the safeguards for 
this program, this terrorist surveillance or domestic spying 
program, include the fact that they are reviewed by career 
professionals--I believe you referred to the National Security 
Agency, perhaps other agencies--and that there is a 45-day 
review as to whether you will continue the program.
    Where did the 45-day review requirement come from?
    Attorney General Gonzales. Senator, that really sort of 
arose by, quite frankly, schedules in terms of having folks be 
in a position to provide recommendations and advice as to 
whether the program can continue. There is nothing magical 
about the 45 days.
    Senator Durbin. I am not worried about the magic so much as 
is there a statute that drives this? Is there a legal 
requirement of a 45-day review?
    Attorney General Gonzales. We felt that it was--I think it 
helps us in the Fourth Amendment analysis in terms of is this a 
reasonable search, the fact that it is reviewed periodically, 
and I think it is more sort of by happenstance that it really 
has come out to be approximately every 45 days.
    Let me just also mention that when I talked about the 
review out at NSA, there are monthly meetings, as I understand 
it, unconnected with this 45-day review, in which senior 
officials involved in this program sit down and evaluate how 
the program is being operated. That is a process that is 
totally independent of this 45-day review process.
    Senator Durbin. But who chooses the professionals that 
evaluate this program?
    Attorney General Gonzales. Senator, I am led to believe--I 
don't know for sure, but I am led to believe that they are 
people--I am assuming senior officials at NSA identify people 
at NSA who have al Qaeda experience, al Qaeda expertise, 
knowledge about al Qaeda tactics and aims, and, therefore, are 
in the best position to evaluate whether or not a person who is 
on the call is, in fact, a member or agent of al Qaeda or an 
affiliated terrorist organization.
    Senator Durbin. Which gets to my point. This so-called 
safeguard--and it has been referred to as a check and balance--
is literally the administration talking to itself. People 
within the administration meet within their offices and decide 
about the civil liberties and freedoms of those who are going 
to be subjected to this surveillance. That is a significant 
departure from the ordinary checks and balances of our 
Government, is it not, that all of this is being decided within 
the same executive branch?
    Attorney General Gonzales. I don't know if I would 
characterize it that way. I think that there is a lot of--there 
is intelligence that is collected by the National Security 
Agency where they have control over this information, they have 
internal rules and regulations, they are subject to 
minimization requirements. Those are classified. Those have 
been shared, as I understand it, with the Intel Committee, if 
you are talking about Executive Order 12333. And so I don't 
know that it is so unique to this program.
    Senator Durbin. Well, let me just say, if you want a 
wiretap, as Attorney General you know what you have to do.
    Attorney General Gonzales. Yes, sir.
    Senator Durbin. You have to go to another branch of our 
Government. You have to get a warrant. That is in criminal 
cases--
    Attorney General Gonzales. In criminal cases, Title III, 
that is right.
    Senator Durbin. Terrorist cases, you know that FISA 
applies. And now when it comes to these wiretaps, or whatever 
they may be, this surveillance, whatever it may be, you don't 
go to another branch of Government. You meet within your own 
branch of Government, and that I think is a significant 
difference.
    Here is what it comes down to. You know, there is a general 
concern here as to whether or not the scope of what we are 
talking about, what it might be. And I know you are limited in 
what you can tell us. But I also know that Michael Chertoff, 
the Secretary of Homeland Security, recently said the NSA was 
``culling through literally thousands of phone numbers and 
trying to sift through an enormous amount of data very 
quickly.'' You have assured us that this is not a dragnet.
    But I think the thing that it continues to come back to is 
whether innocent Americans, ordinary Americans are going to 
have their e-mails and their phone calls combed through. And 
you may shake your head and say, oh, we would never do that. 
But, Attorney General, no one is looking over your shoulder. 
You are not going to anyone, as you would with another wiretap 
request, to determine whether or not it is a reasonable request 
or it goes too far or, in fact, is targeted rather than random.
    I talked to you about Mr. Fleischer, who is sitting out 
here, who asked the very basic question: Have I been victimized 
by this program? Have I been the subject of this program? He 
couldn't get an answer. He has had communications overseas. The 
fact that he is sitting here today is a suggestion that he is 
not worried about what the outcome might be, but he is worried 
about his freedoms and his liberties. There is no one for him 
to speak to. When he contacts your administration, they say, 
Neither confirm nor deny. So there is no check and balance 
here. There is nothing to protect his freedom or liberty or the 
freedom or liberty of a lot of innocent people who wonder if 
you are going too far. That I think is why many of us are 
absolutely stunned that this administration won't come to 
Capitol Hill and ask us on a bipartisan basis for help with 
this FISA Act, if, in fact, it does create a problem.
    I voted for the PATRIOT Act. All but one of the Senators in 
the Senate voted for the PATRIOT Act. It isn't as if we are not 
ready to cooperate with you. We would feel better about your 
conduct and the conduct of this administration if there was a 
law that you followed. We are not asking you to spell out the 
operational details, but we are asking you to have at least a 
FISA Court judge, someone from another branch of Government, 
taking a look at what you are doing. There is some assurance 
under that situation for 28 years that there is a check and 
balance.
    Do you understand why the blank check that you have asked 
for causes so much heartburn?
    Attorney General Gonzales. Senator, I do understand concern 
about a blank check. I don't believe that is what we have here. 
In your comments, you have talked about going around the law, 
going around FISA. That is not the case here. We believe we are 
acting consistent with the requirements of FISA.
    I don't know about the comments that Secretary Chertoff 
made. General Hayden has been out very publicly talking about 
what this program is about, and it is not about--it doesn't 
sound like it is a kind of program that Secretary Chertoff is 
talking about. But I would be very interested in studying his 
remarks.
    This is a very narrowly tailored program.
    Senator Durbin. But how do I know that? There is no one--
other than your good word today, there is no one that can tell 
me: I have looked at this program, trust me, Senator, you can 
tell Mr. Fleischer and your constituents in Illinois not to 
worry; we are not going to comb through the records of innocent 
Americans. There is no one for me to turn to.
    Attorney General Gonzales. I don't know if it is proper to 
ask you a question, Senator, but I am going to ask you a 
question.
    Senator Durbin. Go ahead.
    Attorney General Gonzales. If we were to brief you into the 
program, how would anyone be assured that you would protect the 
rights of ordinary citizens? Because we have briefed 
congressional leaders, and so they know what we are doing and--
    Senator Durbin. They are sworn to secrecy, are they not?
    Attorney General Gonzales. This is a very classified, 
highly classified program.
    Senator Durbin. They are sworn to secrecy.
    Attorney General Gonzales. But they also--
    Senator Durbin. If they found the most egregious violation 
of civil rights taking place in this program, they are sworn 
not to say one word about it.
    Attorney General Gonzales. Senator, I have got to believe 
that all of us--we take an oath of office, and if we honestly 
believe that a crime is being committed, then we would do 
something about it.
    Senator Durbin. How would they? I have been on the 
Intelligence Committee, and I can tell you that when you are 
briefed with classified material--I sat in briefings not far 
from here, just a few feet away, and listened to what I thought 
was very meager evidence about weapons of mass destruction 
before the invasion of Iraq. Based on that, I voted against it. 
But I couldn't walk outside that room, until it became public 
much later, and say this administration was at war within when 
it came to this issue.
    Attorney General Gonzales. Senator, I think we are letting 
Members of Congress off the hook easily by saying that if they 
get briefed into a secret program and they believe it is 
against the law, that they can't do anything about it. I think 
you have an obligation, quite frankly, when you take that oath 
of office, if you believe that conduct is, in fact, unlawful, I 
think you can do something about it.
    Senator Durbin. Well, let's talk about one Congressman--
Congresswoman in this case, who has spoken out, Congresswoman 
Jane Harman. She has been briefed on the program, and she has 
said publicly you can use FISA, you don't need to do what you 
are doing, you don't need to go through this warrantless 
process.
    So from her point of view, I think she has gone as far as 
she can go. That is it.
    Attorney General Gonzales. Senator, I don't think we have 
ever said that we could not use FISA in particular cases. But 
the time it would take to get a FISA application approved would 
mean that we may lose access to valuable information.
    Senator Durbin. You will not come before us and tell us how 
to change the law to overcome that problem. That is what I find 
absolutely inexplicable.
    The last thing I would like to do, Mr. Chairman, or whoever 
is now presiding, we have had several references to Mrs. 
Burlingame, who is here, and I thank her for joining us today 
and for her statements to the press. I would also like to 
acknowledge the presence of Monica Gabrielle and Mindy 
Kleinberg, who were also in the Families of Victims of 9/11. 
They are here today, and they have made a statement for the 
record. I will read the last sentence and ask that this be part 
of the record. ``Retaining our civil liberties and our 
cherished democracy in the face of a looming terrorist threat 
is the only way we will win this war on terror.'' And I ask 
that this statement be made a part of the record.
    Senator Graham [Presiding.] Without objection.
    [Laughter.]
    Senator Durbin. Thank you very much, Chairman Graham. Thank 
you, General.
    Attorney General Gonzales. Thank you, Senator.
    Senator Cornyn. Attorney General Gonzales, Chairman Specter 
had to step out, but he asked me to proceed after Senator 
Durbin, and I am happy to do that so we can move on.
    If an employee of the National Security Agency has a 
concern about the legality of what they are being asked to do, 
are they authorized to have a press conference or to otherwise 
leak that information to outside sources?
    Attorney General Gonzales. Senator, I think there are laws 
that prohibit the disclosure of classified information. I think 
there might be other ways that would certainly be more 
appropriate.
    Senator Cornyn. Let me suggest one to you. In 1998, 
Congress passed the Intelligence Community Whistleblower 
Protection Act which provides, in part, that an employee of the 
DIA, the National Imagery and Mapping Agency, the National 
Reconnaissance Office, or the National Security Agency or a 
contractor of any of those agencies who intends to report to 
Congress a complaint about the legality of the program, that 
they can report that to the Inspector General of the Department 
of Defense or to the leadership of the Intelligence Committees 
in the U.S. Congress.
    Would you consider that to be a more appropriate place for 
a so-called whistleblower to report their concerns?
    Attorney General Gonzales. Yes, sir, I would.
    Senator Cornyn. Well, at the very least, there would be an 
opportunity for those officials to evaluate the complaint of 
this individual, and we wouldn't risk the disclosure of highly 
classified information or programs that are collecting 
intelligence.
    Attorney General Gonzales. No question about it. The danger 
or problem of going to the media as an initial matter is that 
you have some people, I think, whose motivation I think can be 
questioned in terms of why are they doing that. And when they 
go out and talk to the public about a highly classified 
program, they harm the national security of this country. I 
think Congress realized that when they passed the statute that 
you just described to try to provide an avenue for those people 
who legitimately are concerned about perhaps wrongdoing, that 
they have an avenue to pursue, to express their grievances, and 
to do so in a way that we don't jeopardize the Nation's 
secrets.
    Senator Cornyn. Let me ask you--the last area I want to ask 
you about--you have endured through a long day, and I know we 
are trying to wrap up. I have read a lot about the debate on 
this program and trying to understand why it is the 
administration believed that it needed to exercise the 
authority that it was granted by Congress under the 
Authorization for Use of Military Force and perhaps the 
President's power under the Constitution, over and above what 
FISA would ordinarily provide.
    First of all, if NSA wants to listen to communications 
between terrorists abroad that are wholly located in some other 
country, they can do that without a warrant, can they not?
    Attorney General Gonzales. Whether or not FISA applies 
depends on the answer to basically four key questions: Who is 
the target? Primarily we are concerned about whether or not the 
communication involves a U.S. person. Where is the target? 
Primarily we are concerned about whether or not the person is 
in the United States. Where is the acquisition taking place? 
And then, finally, what are you trying to acquire? Is it wire 
communication? Is it radio communication?
    And so the answer as to whether or not FISA would apply 
with respect to a particular communication primarily depends 
upon answering those kinds of questions.
    Senator Cornyn. Thank you for the precise answer. But as a 
general matter, if the persons are located in a foreign country 
and they are not American citizens and the communications are 
taking place within that foreign country, then FISA does not 
require the issuance of a warrant.
    Attorney General Gonzales. As a general matter, if you are 
talking about non-U.S. persons outside the United States, and 
certainly if the acquisition is outside the United States, we 
don't have to worry about FISA.
    Senator Cornyn. Isn't it true that the problem that this 
program has tried to address, the gap in FISA that it tries to 
address, is that in order to get a warrant under FISA, the 
Government must have grounds to believe the U.S. person it 
wishes to monitor is a foreign spy or terrorist? And even if a 
person is here on a student or tourist visa or no visa, the 
Government cannot get a warrant to find out whether they are a 
terrorist. It must already have reason to believe that they are 
one.
    Attorney General Gonzales. Well, certainly to obtain an 
order from the FISA Court, the court has to be satisfied that 
there is probable cause to believe that the target is either a 
foreign power or an agent of a foreign power and probable cause 
to believe that the facility being targeted is actually being 
used or about to be used by a foreign power or an agent of a 
foreign power.
    Senator Cornyn. Stated another way, the problem with FISA 
as written is that the surveillance it authorizes is unusable 
to discover who is a terrorist as distinct from eavesdropping 
on known terrorists. Would you agree with that?
    Attorney General Gonzales. That would be a different way of 
putting it, yes, sir.
    Senator Cornyn. You would agree with that statement?
    Attorney General Gonzales. Yes, sir.
    Senator Cornyn. So the particular program that has been 
debated here--and the authority that the National Security 
Agency has to conduct it--is filling a gap that exists in our 
intelligence-gathering capabilities. Is that an accurate 
description?
    Attorney General Gonzales. I think we quickly realized 
after the attacks of 9/11 that the tools that we had 
traditionally been using were insufficient, and this was the 
opinion of the intelligence community, and that is why the 
President authorized this program, was because we did have 
vulnerabilities in our access to information about the enemy.
    Senator Cornyn. Finally, with regard to exclusivity, there 
have been some on the Committee who have asked whether the 
statement that Congress has made in the FISA statute--that it 
is the exclusive means to gather foreign intelligence--is 
necessarily a binding obligation if it comes into conflict with 
the Constitution.
    You have cited the doctrine of constitutional avoidance, is 
that correct?
    Attorney General Gonzales. The canon of constitutional 
avoidance, yes, sir.
    Senator Cornyn. Thank you.
    This has more than just hypothetical applications. For 
example, are law enforcement authorities in this country 
authorized to shoot down a plane that they believe is carrying 
illegal drugs or committing some other crime?
    Attorney General Gonzales. Well, Senator, I guess I would 
have to think about that. If you were asking whether the 
military had the authorization to shoot down an airplane--
    Senator Cornyn. I am asking about law enforcement 
authorities other than the military.
    Attorney General Gonzales. Well, let me just say that we do 
not expect our law enforcement officers to be perfect in their 
judgment when you are talking about the Fourth Amendment and 
searches. The standard is probable cause; it is the totality of 
the circumstances.
    But it is very, very important to remember we are talking 
about the judgment from the eye of a professional officer, and 
this is what the courts have said. That is why in the terrorist 
surveillance program we have the determination made by someone 
who is experienced regarding al Qaeda tactics and 
communications. He is making that decision from the view of--
like the police officer on the beat in terms of what is 
reasonable, what satisfies a probable cause standard.
    Senator Cornyn. Making this very personal and real, if a 
plane is heading toward the Capitol, don't you believe that the 
use of force resolution and Article II of the Constitution 
authorize the President to have United States military forces 
shoot that plane down, if necessary?
    Attorney General Gonzales. I believe so, sir, and I quite 
frankly believe that the President had the authority prior to 
the authorization to use military force. I think even those 
proponents, pro-Congress scholars who believe very strongly in 
the power of Congress during a time of war--even they 
acknowledge that with respect to initiation of hostilities that 
only Congress can declare war, but, of course, military force 
can be initiated by the President if the United States has 
already been attacked or if there is an imminent threat to the 
United States.
    And so I think there are strong arguments that would 
support the notion that the President of the United States, 
even before the authorization to use military force was passed 
by Congress, after we had been attacked already, of course, 
could then use military force to repel an additional attack.
    And we have to remember, of course, that in the days and 
weeks following 9/11, there were combat air patrols. So the 
President was exercising his authority even before the 
authorization to use military force to have the military in 
place to protect us from another attack.
    Senator Cornyn. Thank you.
    Chairman Specter. Thank you, Senator Cornyn.
    Senator Kohl.
    Senator Kohl. Thank you very much.
    Just a couple of questions, Mr. Attorney General. Can you 
tell us how many U.S. citizens have had communications 
intercepted, listened to or recorded by this program since it 
started?
    Attorney General Gonzales. Senator, I wish I could share 
more information with you, but that information is classified 
and I can't disclose that.
    Senator Kohl. How many Americans have had their phone 
conversations recorded or their e-mails intercepted without a 
court order? Any idea?
    Attorney General Gonzales. Again, Senator, you are asking 
me about the operations of this program and I really can't get 
into it. I have outlined today that this is a very narrowly 
tailored program that has been authorized by the President of 
the United States, and we have taken great pains to try to 
protect the privacy interests of every American. But as the 
President has said, even if you are an American citizen, if you 
are talking to a member of al Qaeda, we would like to know why.
    Senator Kohl. You have talked at length today and over the 
course of the past month about how the program has to be 
reauthorized every 45 days, and you have lauded that as a 
strong check and a balance on the potential for abuse. News 
reports suggest that one of the authorizations has led to 
changes in the program.
    Could you tell us what those changes were?
    Attorney General Gonzales. Well, again, Senator, you are 
asking me about operational details of the program and I really 
can't get into operational details.
    Senator Kohl. All right. The New York Times reported that 
in interviews with current and former law enforcement 
officials, the flood of NSA tips that came from this program 
led them to expend considerable resources in following leads 
and diverted some agents from work that they had viewed as more 
productive.
    Law enforcement officials interviewed said that the program 
had uncovered no active plots in the United States. One said 
that, quote, ``The information was so thin and connections were 
so remote that they never led to anything,'' unquote. Another 
said, quote, ``It affected the FBI in the sense that they had 
to devote so many resources to tracking every single one of 
these leads, and in my experience they were all dry leads,'' 
unquote.
    So is there a concern that this program is not collecting 
enough worthwhile information, and does this suggest that the 
net was perhaps too large and that you ensnared too many 
Americans who were not, in fact, involved in any terrorist 
activities?
    Attorney General Gonzales. Thank you for that question, 
Senator. I am aware of these stories. First of all, it is true 
that Director Mueller feels very strongly that we cannot afford 
to not investigate one way or the other or to check out every 
particular tip. We have an obligation to do that.
    I think General Hayden has already indicated publicly that 
immediately following the attacks of 9/11, he exercised his own 
independent authorities, which do exist for the NSA, to gather 
up information, gather up more information than he would 
normally do--again, these are under existing authorities, 
lawful authorities--and to share all that information with the 
FBI.
    And so you had a situation where the NSA was gathering up 
more information than it normally does and then sharing more of 
that information with the FBI. We quickly discovered that that 
was not very efficient because of the fact that it required the 
FBI to utilize their resources. And so that process or that 
procedure stopped, and so I think the stories that you are 
referring to do not relate to the terrorist surveillance 
program about which I am testifying today.
    Senator Kohl. I thank you very much, and I thank you, Mr. 
Chairman.
    Chairman Specter. Thank you, Senator Kohl.
    Senator Brownback.
    Senator Brownback. Mr. Chairman, thank you.
    General, an interesting line of questioning, and I want to 
pursue going after a FISA warrant with some specificity with 
you because I want to understand this process better. I think 
you have covered it in bits and pieces and today, and I have 
been in and out at times, but I want to go into it in some 
depth.
    Before I do that, I want to note in the New York Post 
online edition of February 6th, just really in response to the 
last question here, ``A 2004 NBC report graphically 
illustrated''--and I am reading from this--``what not having 
the program cost us four-and-a-half years ago. In 1999, the NSA 
began monitoring a known al Qaeda switchboard in Yemen that 
relayed calls from Osama bin Laden to operatives all over the 
world. Surveillance picked up the phone number of a Khalid in 
the United States, but the NSA didn't intercept those calls, 
fearing it would be accused of `domestic spying.' After 9/11, 
investigators learned that Khalid was Khalid Al-Midhar, then 
living in San Diego under his own name, one of the hijackers 
who flew American Airlines Flight 77 into the Pentagon. He made 
more than a dozen calls to the Yemen house where his brother-
in-law lived. NBC News called this, quote, `one of the missed 
clues that could have saved 3,000 lives.''' It was a very real 
thing and a very real thing for us today, and one that had we 
been operating it effectively prior to 9/11 could have possibly 
saved thousands of lives.
    Mr. Attorney General, I certainly appreciate the need for 
expediency in carrying out electronic surveillance, and you 
mentioned that getting a FISA warrant is often a time-consuming 
procedure. Could you go into some specificity for me so I can 
hear this on how long that process generally takes? To the 
degree you can, without revealing information that is 
classified, how long does this process taken?
    Attorney General Gonzales. Well, it varies. What I can say, 
Senator, is that we have, for a variety of reasons, some 
applications that have been pending for months, quite frankly. 
Sometimes, that results because we can't get sufficient 
information from the FBI or NSA in order to satisfy the lawyers 
at the Department that, in fact, we can meet the requirements 
of the FISA Act.
    Sometimes, it is a situation where priorities--with each 
passing day, renewals expire on very important programs, so we 
then have to prepare a renewal package to submit to the FISA 
court, and that means that other FISA applications that our 
lawyers have been working on kind of get pushed to the side as 
they work on the more important cases. So there are a variety 
of reasons why it takes some time to get a FISA application 
approved. If you want me to get into a more down-in-the-weeds 
discussion--
    Senator Brownback. I would.
    Attorney General Gonzales. OK.
    Senator Brownback. I would like to get, you know, what is 
it that takes so much time in these FISA applications.
    Attorney General Gonzales. Well, of course, we can't begin 
surveillance just based on a whim by someone, say, at the FBI. 
There has to be a reason to believe that all of the standards 
of the FISA statute can be satisfied. We have to know that a 
FISA court judge is going to be absolutely convinced that this 
is an agent of a foreign power, that this facility is going to 
be a facility that is going to be used or is being used by an 
agent of a foreign power.
    The things that I have to approve I have to--when I sign an 
application, we have to identify the target. We have to set 
forth the circumstances and the reasons that I believe that the 
target is a foreign power or an agent of a foreign power. I 
have to set forth the circumstances for why I believe that this 
facility is being used or is about to be used by a foreign 
power or agent of a foreign power.
    We have to set forth in the application the minimization 
requirements that we intend to use. We have to set forth in the 
application with specificity the type of information we are 
hoping to get and the type of facilities or communications that 
we are targeting. So those are just some of the things that I 
have to include in the application.
    The application has to be accompanied by a certification 
that is signed by a senior official of the administration who 
has national security responsibility. Normally, it is the FBI 
Director. It could be the Director of the CIA. So that person 
has to certify that, in fact, this is foreign intelligence 
information. That person has to certify that a significant 
purpose of the surveillance is for foreign intelligence 
purposes. That person has to certify that normal investigative 
techniques or means are not otherwise available, and there are 
some other provisions that have to be certified.
    So all those conditions, requirements have to be met even 
before I authorize verbally an emergency authorization, and it 
takes time. Even in a perfect world, even in an ideal case, it 
is going to take a period of time. And I am not talking about 
hours. We are normally talking about days, weeks, on the more 
complicated cases sometimes months.
    Senator Brownback. And this would include even these sorts 
of operations we have read about--about data-mining operations? 
Would that include those sorts of operations, or are those 
totally a separate type of field?
    Attorney General Gonzales. I am not here to talk about 
that. Again, let me just caution everyone that you need to read 
these stories with caution. There is a lot of mixing and 
mangling of activities that are totally unrelated to what the 
President has authorized under the terrorist surveillance 
program. So I am uncomfortable talking about other kinds of 
operations that are unrelated to the terrorist surveillance 
program.
    Senator Brownback. These would be strictly ones where you 
are going after a targeted set of individuals that have gone 
through--
    Attorney General Gonzales. Under FISA?
    Senator Brownback. Yes, under the FISA applications.
    Attorney General Gonzales. We have to remember, of course, 
this is--
    Senator Brownback. Along the lines of what you have just 
described in some detail, this is the sort of information you 
are seeking before you are going after anything under FISA.
    Attorney General Gonzales. In every case--and, of course, 
we always have to remember that we are not just talking about 
al Qaeda when you are talking about FISA. You are talking about 
agents of other countries, and it is not limited only to 
international communications under FISA; it is domestic 
communications. So we want to get it right, of course.
    As I said earlier in response to another question, the fact 
that we have such a high approval rate by the FISA court isn't 
an indication that the FISA court is a rubber stamp. It is 
more, I think--
    Senator Brownback. Your process internally.
    Attorney General Gonzales [continuing]. Proof that we have 
got a legitimate process. We take this very seriously.
    Senator Brownback. Well, I don't want to drag on the 
questions. You have been here a long period of time. I do want 
to encourage us that as the war on terrorism wears on, because 
it is going to wear on for a period of time, that we do have a 
check and balance system in place that is workable so that you 
can get the type of information that you need and that we need 
to protect the country, but at the same time can protect the 
civil liberties of the Nation, and you are doing everything you 
can in that regard.
    I just think as we look on forward, this is going to be a 
key policy factor of how we move forward and sustain support 
for the war on terrorism over the period of various 
administrations and possible length of time that this could 
well take.
    Thank you for being here. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Brownback.
    Mr. Attorney General, you have held up remarkably well for 
a long day. I have deferred my second round until everyone else 
has concluded a second round because, as Chairman, I have stay. 
So I thought I would go last in any event. So it is just you 
and me. When we came in today, there was a long line in the 
hallway waiting to get in, and now only a few people are here 
and the Senators' bench is pretty well cleared.
    I want to come back to the issue as to whether the 
resolution authorizing the use of force of September 14 gives 
the President congressional authority to undertake electronic 
surveillance. I said candidly at the outset that I did not 
think that it did, and let me explore with you a number of 
questions I have that I am interested in the administration's 
response.
    Let me start first with the signing statement of President 
Carter when he signed the Foreign Intelligence Surveillance Act 
of 1978 on October 25th. He said, in part, quote, ``The bill 
requires for the first time a prior judicial warrant for all 
electronic surveillance for foreign intelligence or counter-
intelligence purposes in the United States, in which 
communications of U.S. persons might be intercepted. It 
clarifies the executive's authority to gather foreign 
intelligence by electronic surveillance in the United States. 
It will remove any doubt about the legality of those 
surveillances which are conducted to protect our country 
against espionage and international terrorism.''
    So when you talk about what happened in Washington's time 
on intercepting messages or unsealing envelopes, or what 
happened in Lincoln's time or what happened in Franklin Delano 
Roosevelt's time, or when you talk about a number of the 
circuit court opinions giving broad Presidential authority 
saying that the gathering of intelligence was his prerogative 
without respect to the Fourth Amendment, that is before 
Congress acted.
    Now, a signing statement is subject to a number of 
limitations. If the President in a signing statement seeks to 
distinguish his view from what the Congress has passed, I think 
it is entitled to very little, if any, weight. Where the 
President, as President Carter did, squarely backs what the 
Congress has done, then you have a concurrence of the Congress 
and the President. You really have very forceful, very plain, 
very strict language in the Foreign Intelligence Surveillance 
Act.
    How do you counter what President Carter has said that it 
applies to all U.S. persons and covers all foreign intelligence 
by electronic surveillance in the United States?
    Attorney General Gonzales. Well, of course, I don't believe 
that it is possible for any President to waive for future 
Presidents any constitutional authority, any authority given to 
a President under the Constitution. I haven't read that 
statement in a while. I don't think in the statement President 
Carter says I have no inherent authority remaining in this 
area.
    Finally, I would just simply remind the Chair--I think this 
was mentioned earlier by one of the Senators--his Attorney 
General in hearings in connection with the legislation--I think 
it was before a Committee of the House--talked about the fact 
that this is--and I am paraphrasing here--this in no way takes 
away from the President's inherent constitutional authority, 
this legislation. So that is how I would respond to your 
question.
    Chairman Specter. Well, Mr. Attorney General, that is not 
the Jackson test which you have subscribed to, but I am going 
to come back to that in just a minute.
    In your responses to my question about statutory 
interpretation--we have covered the doctrine that it is 
disfavored to have a repeal by implication. You have the 
statute of FISA that specifically says no interception of 
electronic communication without a warrant. And then you have 
the generalized statement of the September 14th resolution 
which, at best, would be a repeal by implication, which is 
disfavored.
    But then we come upon another very important provision of 
statutory construction, and that is specific language takes 
precedence over more generalized pronouncements. And in your 
answer you said, quote, ``It is not clear which provision is 
more specific,'' close quote. Well, that is false on its face.
    If you have the statute saying no electronic surveillance 
without a warrant, there is no doubt that that is more specific 
than the September 14th resolution, is there? How can you 
disagree with those plain words?
    Attorney General Gonzales. By that answer, I only meant to 
convey, Senator, that the resolution is more specific with 
respect to al Qaeda, certainly. And, of course, the FISA 
statute is not limited only to al Qaeda. As the answer also 
indicates, we had sort of this same--or this same discussion 
occurred in the Hamdi decision. We had the same situation. We 
had a specific statute, 18 U.S.C. 4001(a), and it said no 
American citizen could be detained, except as otherwise 
provided by Congress, or maybe otherwise provided by a statute 
by Congress.
    And the Supreme Court said that, nonetheless, you had a 
broader authorization than the authorization to use military 
force and that would satisfy the statute, even though you had a 
specific statute with respect to detention and you had a broad 
authorization.
    Chairman Specter. Did the Supreme Court deal with that 
statute?
    Attorney General Gonzales. 4001(a)? That was the statute at 
issue, yes, sir, in the Hamdi decision, of course.
    Chairman Specter. Did the Supreme Court deal with it 
specifically?
    Attorney General Gonzales. Sir, in Hamdi, Mr. Hamdi was 
contesting that that statute prohibited the President of the 
United States from detaining him because he was an American 
citizen. And the Supreme Court said, well, OK, you are right, 
you have the specific statute. But you have also got this broad 
grant of authority by the Congress and that is sufficient to 
allow the President of the United States to detain you even as 
an American citizen.
    Chairman Specter. Well, I think you are dealing with very 
different circumstances when you talk about a soldier on the 
field as opposed to a United States person whose conversations 
are being electronically surveilled, but let me move on here. 
It may very well be that you and I won't agree on this point.
    The resolution of September 14th did not add the words ``in 
the United States'' after the words, quote, ``appropriate 
force.'' That was rejected since it would give the President 
broad authority not just overseas, but also in the United 
States. Isn't that a clear indication of congressional intent 
not to give the President authority for interceptions in the 
United States?
    Attorney General Gonzales. Sir, I don't know where that 
record is to reflect that that actually happened. I think the 
CRS, Congressional Research Service, said that in the 
legislative history--and I may be wrong; it is late, but I 
believe that they said that there is no record to indicate that 
that ever occurred, quite frankly.
    As I indicated in my opening statement, I think the 
American public, I think our soldiers, I think our courts ought 
to be able to rely upon the plain language passed by the 
Congress. And there is no question that the resolution talked 
about the President of the United States protecting Americans 
both here and abroad.
    And we have to put it in context. We were just attacked 
here in this country from folks within our country 
communicating within our country. It is hard to imagine, as 
smart as you are, that you wouldn't have provided the President 
of the United States the grant of authority to at least deal 
with a similar kind of threat to the one we just experienced.
    Chairman Specter. The law involving wiretapping prior to 
the enactment of the Foreign Intelligence Surveillance Act had 
the preceding sentence, quote, ``Nothing contained''--referring 
to the law--``shall limit the constitutional power of the 
President to obtain foreign intelligence information deemed 
essential to the security of the United States.''
    When the Foreign Intelligence Surveillance Act was passed, 
that language was stricken. So by all customary standards of 
statutory interpretation, FISA, the Foreign Intelligence 
Surveillance Act, changed that 180 degrees, didn't it?
    Attorney General Gonzales. There is no question, if you 
look at the legislative history and the record, that Congress 
intended to try to limit whatever the President's inherent 
authority existed. But there is also from my review of the 
record a clear indication that some Members of Congress were 
concerned about the constitutionality of this effort.
    I think the House conference report talked about the fact 
this is what we are trying to do. It may be the Supreme Court 
may have a different view of this. And I am paraphrasing here, 
but that is a remarkable acknowledgement by a Member of 
Congress that, gee, is what we are doing here really 
constitutional?
    No question about it that certainly Congress intended to 
cabin the President's authority, but also Congress when they 
passed FISA included Section 109, which is the main criminal 
provision in FISA that talks about you can't engage in 
electronic surveillance under color of law, except as otherwise 
provided by statute. And so I think we have to apply a fairly 
plausible reading of the statute in that way in order to avoid, 
in my judgment, a tough constitutional question as to whether 
or not the Congress does have the constitutional authority to 
pass a statute that infringes upon the President's inherent 
authority as Commander in Chief to engage in electronic 
surveillance of the enemy during a time of war.
    Chairman Specter. I don't think you can use the principle 
of avoiding a tough constitutional conflict to disagree with 
the plain words of the statute.
    Attorney General Gonzales, when Members of Congress heard 
about your contention that the resolution authorizing the use 
of force amended the Foreign Intelligence Surveillance Act, 
there was general shock.
    Attorney General Gonzales. Sir, we have never asserted that 
FISA has been amended. We have always asserted that our 
interpretation of FISA which contemplates another statute--and 
we have that here in the authorization to use force--that those 
complement each other. This is not a situation where FISA has 
been overridden or FISA has been amended. That has never been 
our position.
    Chairman Specter. Well, that just defies logic and plain 
English. FISA says squarely that you can't have electronic 
surveillance of any person without a warrant. And you are 
saying, when you tag on another statute which is in the penal 
provision, that those words in FISA are no longer applicable, 
that there has been a later statutory resolution by Congress 
which changes that.
    Attorney General Gonzales, I think we come back to the 
Jackson formula, and my judgment, with some experience in the 
field. I was starting to tell you how shocked Congress was when 
we found out that you thought that we had used the resolution 
of September 14th to authorize electronic surveillance. Nobody 
else believed that.
    Senator Graham has articulated in very forceful terms the 
consequence of the administration making this interpretation. 
Before you ever get the authority from Congress again, we are 
going to go through every conceivable exception we can think 
of. And we just may not give the authority, because you may 
come back to relying on inherent authority. And you may have 
the inherent authority, you may have the Article II authority. 
But I do not think that any fair, realistic reading of the 
September 14th resolution gives you the power to conduct 
electronic surveillance.
    That brings me to what Jackson really said, and it is so 
wise it is worth reading again, quote, ``When the President 
takes measures incompatible with the express or implied will of 
Congress, his power is at its lowest ebb, for then he can rely 
only upon his own constitutional powers, minus any 
constitutional powers of Congress over the matter.''
    Now, my reading of this situation legally is that there has 
been an express statement of Congress to the contrary and if 
the President seeks to rely on his own inherent power, then he 
is disregarding congressional constitutional power.
    Then Jackson goes on, quote, ``Courts can sustain exclusive 
Presidential control in such a case only by disabling the 
Congress from acting upon the subject.'' And I think that is 
what you are doing. You are disabling Congress from acting on 
the subject. Congress did act, and this legislation was signed 
by the President.
    And then Justice Jackson goes on for really the critical 
language, ``Presidential claim to power at once so conclusive 
and preclusive must be scrutinized with caution.'' That is what 
we are doing here today. We are going to do it a lot more. And 
then these are the critical words more so than any of the 
others, quote, ``For what is at stake is the equilibrium 
established by our constitutional system.'' And there is a very 
high value placed on the equilibrium of our constitutional 
system. That means everything.
    Attorney General Gonzales. I agree, Senator.
    Chairman Specter. OK. Well, finally, we found something to 
agree upon.
    Now, on the issue of the inherent power of the President, I 
believe the President has very substantial Article II power; I 
believe he does. And we have to be concerned as a life-or-death 
matter about al Qaeda, we really do, and I subscribe to the 
good faith of the President as to what he has done here. I have 
said that publicly. And I subscribe to your good faith in what 
you have done here.
    I just hope that there will be oversight somewhere along 
the line, perhaps in the Intelligence Committee. To get into 
the details, the interstices, the semicolons, as to what you 
are doing, because I know you can't do that here. But I don't 
think you can measure the President's inherent authority under 
Article II without knowing what you are doing. You just cannot 
do it, because that authority is not unlimited which you have 
admitted.
    Attorney General Gonzales. I agree with that.
    Chairman Specter. It is not a blank check.
    Attorney General Gonzales. That is correct, sir.
    Chairman Specter. So it has to be within the parameters of 
being reasonable. The cases and the circuit opinions all 
emphasize the reasonable parameters. And the Supreme Court 
hasn't ruled on this issue yet. It is an open question, and the 
circuit opinions are mostly, if not all, pre-dating the Foreign 
Intelligence Surveillance Act.
    So I just hope the Intelligence Committee is going to come 
down to brass tacks here, and I hope it is the Committee and 
not just the Ranking Member and Chairman. Both Senator Roberts 
and Senator Rockefeller have expressed forcefully their concern 
about not being lawyers and not having an opportunity to 
present these issues to lawyers to get a legal interpretation 
to square the facts up to what the law is. They just have been 
very explicit in their own limitations.
    So in conclusion--the two most popular words of any 
presentation--I hope you will give weighty thought to taking 
this issue to the Foreign Intelligence Surveillance Court, 
lock, stock and barrel. Let them see the whole thing and let 
them pass judgment, because if they disagree with you, it is 
the equilibrium of our constitutional system which is 
disturbed.
    The al Qaeda threat is very weighty, but so is the 
equilibrium of our constitutional system.
    Attorney General Gonzales. I agree, Senator.
    Chairman Specter. Security is very weighty, but so are 
civil rights.
    Thank you very much, Attorney General Gonzales. You have 
established very forcefully your fortitude and stamina here 
today, even if we disagree with portions of your case.
    Attorney General Gonzales. Thank you, Mr. Chairman.
    Chairman Specter. That concludes the hearing.
    [Whereupon, at 5:56 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]






      WARTIME EXECUTIVE POWER AND THE NSA'S SURVEILLANCE AUTHORITY

                              ----------                              


                       TUESDAY, FEBRUARY 28, 2006

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, 
Leahy, Kennedy, Biden, Kohl, Feingold, and Schumer.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. The 
Senate Judiciary Committee will now proceed with our second 
hearing on the administration's electronic surveillance 
program.
    It is our practice to start right on time. We have a very 
distinguished panel of witnesses, and we have a great deal of 
ground to cover. This morning the PATRIOT Act is on the floor 
of the U.S. Senate on a vote to cutoff debate. And that will 
require the attendance of members of this Committee on the 
floor, so we are targeting a conclusion of this hearing at 
11:30. We can run a little over but not too much, so we need to 
start on time, and we need to progress with the 5-minute 
statements by each witness and the 5-minute rounds of 
questioning by all the Senators.
    I have delayed making any substantive comment until the 
arrival of our distinguished Ranking Member, Senator Leahy.
    We will be inquiring today about the President's authority 
to institute the electronic surveillance program, will be 
focusing significantly on the President's inherent power under 
Article II of the United States Constitution. We will also take 
up the issue of the Foreign Intelligence Surveillance Act, and 
whether the resolution to authorize the use of force on 
September 14th modifies that statute. I have already expressed 
my opinion that it does not for a variety of reasons, but that 
still leaves open the issue of constitutional authority. If the 
President has constitutional authority, as we all know, that 
would trump the statutory limitation which allows electronic 
surveillance only with a court order.
    Legislation has been circulated--we have asked the 
witnesses to be prepared to comment on it--which would make the 
Foreign Intelligence Surveillance Court the unit to make a 
determination of constitutionality. Notwithstanding the 
statutory requirements that the Intelligence Committees in full 
would have access to programs of this sort, this administration 
and previous administrations have chosen not to utilize the 
committees because Congress has a well-established record for 
leaking. Of course, so does the White House. This town leaks 
like a sieve, in the vernacular. So the President has been 
reluctant to take these matters to the Congress, limiting it 
only to the so-called Gang of 8.
    The thinking has been that the Foreign Intelligence 
Surveillance Court has the expertise, the record for 
maintaining secrecy and can appropriately be entrusted with the 
job of making a determination of constitutionality. The 
legislation which I have circulated sets forth criteria for the 
FISA court to make a determination on the scope of the 
intrusions, and the steps taken to minimize results.
    There has been some concern as to whether there is a 
general warrant involved here. We think the authorities are 
strong, that it is not. There has been concern as to whether 
there is an advisory opinion here, and we think the 
authorities, again, are strong that it is not an advisory 
opinion in derogation of the Case in Controversy Clause of the 
United States Constitution.
    When judges of the Foreign Intelligence Surveillance Court 
are asked to issue a search warrant, they do so on in ex parte 
proceeding. That has direct analogy to the kind of 
determination we are asking the court to make here on a broader 
basis for the entire program. There are other statutory ideas 
being circulated. One would involve congressional approval of 
the program, which seems difficult, really impossible to meet, 
unless we know what the program is, and we do not have that 
information. But the Foreign Intelligence Surveillance Court 
has the standing, the expertise, and the record for secrecy to 
make a determination of constitutionality for this program.
    The existence of the President's program was disclosed 
rather dramatically on Friday morning, December 16th, the day 
we were in final arguments on the PATRIOT Act. It had quite an 
impact on our discussion that day, and cloture was not invoked. 
A number of Senators raised the point that there was special 
concern about privacy as a result of the disclosure of the 
administration's program in the context of what the PATRIOT Act 
should provide.
    We have since worked through the issues. I think the 
chances are good that there will be cloture imposed today, 
although you never know what the Senate is going to do until 
the final vote is tallied.
    I said yesterday on the Senate floor that I would introduce 
supplementary legislation which would bring back the standards 
that the Senate bill had, which passed this Committee 
unanimously and which passed the Senate by unanimous consent. 
But we have structured a compromise with the House of 
Representatives. We have a bicameral legislative branch, as we 
all know, and we have reached very significant compromises. One 
very important one by the House was a sunsetting in 4 years, 
which was a concession from 10-7. But my view is we ought to 
strive for the best bill we can. We have an acceptable bill, in 
my judgment, on the current state of the record, but we can 
improve it.
    On this Committee, Senator Leahy and I are committed to 
have vigorous oversight. The FBI Director will be before this 
Committee on March 29th, and we will be asking him all of the 
tough questions about the provisions of the PATRIOT Act which 
were excluded in the conference report.
    I am down to 4 seconds. I now yield to Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. In fact, I will be 
cosponsoring that legislation you just spoke about to emphasize 
that it is a bipartisan effort, as the legislation that 
originally passed this Committee was.
    Our hearing today is the second to explore the legality of 
President Bush's warrantless domestic spying program. On 
December 17th, one day after the program was revealed in the 
New York Times, the President admitted that the administration 
engaged in secret wiretapping of ordinary Americans without 
warrants for more than 4 years. Then 7 weeks later, Attorney 
General Gonzales came before this Committee to talk about this.
    Now, that testimony of the Attorney General was far from 
complete. It left many important questions unanswered. As the 
chief legal officer of the United States, the Attorney General 
is not the President's legal adviser; he is the American 
people's lawyer. His sworn duty is to uphold the Constitution 
and the laws enacted by Congress. So it seemed reasonable to 
ask him how his Department of Justice will interpret these 
laws, how are they interpreting them. And by starting with 
legal questions, we were not asking any operational issues that 
could implicate national security or would require a closed 
hearing.
    So I asked him a very simple question: When did the 
administration come up with its current theory that the 
congressional resolution authorizing the use of force against 
al Qaeda--a resolution, incidentally, that says absolutely 
nothing about wiretapping--also authorized secret, warrantless 
wiretapping of Americans inside the United States? He was asked 
that question repeatedly, and at every opportunity the Attorney 
General failed, he refused to answer what is a basic factual 
question.
    He was asked several times to clarify the scope of the 
Bush-Cheney administration's legal theory of Executive power. 
If, as they claim, they can ignore the Foreign Intelligence 
Surveillance Act's express prohibition of warrantless 
wiretapping, could they also eavesdrop on purely domestic phone 
calls? Could they search or electronically bug an American's 
home or office? Can they comb through Americans' medical 
records and open first-class mail? Can they suspend the Posse 
Comitatus Act?
    Now, these are questions to which I believe Congress, but 
especially the American people, deserve some answers. And based 
on his testimony and his persistent refusal to answer 
responsively, it appears the Attorney General has a radically 
different understanding of the laws than those of us who are 
the people's representatives here in Congress. He limited his 
appearance to confirming ``those facts the President has 
publicly confirmed, nothing more.'' Again, we were not asking 
about operation. We were asking what is the law. What is the 
law? You are the Attorney General. What is the law? In a last-
minute change to his prepared testimony, he also followed the 
path of his predecessor by playing politics on security 
matters, hoping to intimidate Senators who sought to get the 
facts.
    I think we can confirm that every single Member of the U.S. 
Senate, Republican and Democrat, are patriots and believe in 
the security of this country, and asking questions does not 
mean that we do not believe in the security of our Nation. In 
fact, sometimes in asking questions, you might improve the 
security of Americans.
    Senators from both parties took great care to ask 
straightforward questions that could be answered without danger 
to national security. When did the program begin? How many 
Americans have had their calls and e-mails intercepted? Has the 
program led to any arrests? Of these thousands of intercepts, 
has there been even one arrest? What involvement, if any, has 
the FISA court had with the program? Why was the program shut 
down in 2004 and its scope changed? Once again, we got no 
answers. Whatever we asked was either too relevant or not 
relevant enough, and either way, we were getting no answers 
from the Attorney General.
    Now, there was one crack in the stone wall he erected. It 
has been reported that senior Department of Justice officials 
concluded in 2004 that the President's program was illegal and, 
backed by former Attorney General Ashcroft, they insisted its 
scope be narrowed. So Chairman Specter asked the Attorney 
General whether he objected to his predecessor testifying 
before the Committee on this issue. Attorney General Gonzales 
said, ``I would not.'' But then, one week later, in a carefully 
worded about-face, he had an assistant write to the Chairman 
that the administration would not permit any former officials 
to provide any information to the Committee, and the stone wall 
went right back up.
    Now, his conduct has made the administration's position 
crystal clear: It claims there is no place for congressional or 
judicial oversight of any of its activities related to national 
security in the post-9/11 world. Through stonewalling, 
steamrolling, and intimidation, I believe they are running 
roughshod over the Constitution and hiding behind inflammatory 
rhetoric demanding Americans blindly trust their decisions, 
whether it is this, reports, or anything else.
    Last week, we were reminded again they hold to that 
position even when bipartisan Members of Congress raise 
national security concerns about the approval of a deal 
allowing a government-owned Dubai company to take over major 
port operations in the United States. Now, in both cases, this 
obsessively secretive administration proceeded with action that 
it must have known would face strong bipartisan opposition, and 
did so without informing Congress or the American people. They 
made no attempt to follow specifically expressed Federal 
statutes. In both cases, the Bush-Cheney administration has 
responded to congressional oversight efforts with bellicose 
political threats.
    So it is up to the Congress, even though it is controlled 
by the same party as the White House, to fulfill its 
constitutional duty of providing the checks and balances by 
engaging in real oversight, or it can abdicate that role in 
deference to the other end of Pennsylvania Avenue.
    Now, Chairman Specter has a history of engaging in 
meaningful, bipartisan oversight, and I appreciate his efforts. 
I am glad we are having this hearing. But we should know what 
this hearing is. This hearing will go into some questions, but 
it is not oversight in the sense that we are asking the 
administration. There are no former officials who are allowed 
by the administration to come forward and answer questions. I 
think to get them we may have to go to subpoenas.
    I have gone over my time, Mr. Chairman. I appreciate your 
courtesy, and I will put my full statement in the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Kyl, would you care to make an opening statement?
    Senator Kyl. Mr. Chairman, in view of what I just heard, I 
am tempted to, but I think it is more important for us to hear 
the witnesses, so I will defer.
    Chairman Specter. Succinct and well said. Thank you, 
Senator Kyl.
    I want to especially acknowledge the work on this Committee 
of Ms. Carolyn Short, our General Counsel, who is serving her 
last day on a 14-month stint. Ms. Short came here from a very 
prestigious law firm at a substantial cut in salary, and she 
has contributed very extensively to this Committee. In fact her 
contributions include the lion's share of the preparation for 
this hearing today.
    We have been joined by the distinguished former Chairman of 
the Committee, Senator Hatch. Would you care to make an opening 
statement?
    Senator Hatch. No, Mr. Chairman. I am just happy to be 
here, and we want to welcome all of you here. I am looking 
forward to hearing what you have to say.
    Chairman Specter. Thank you very much, Senator Hatch.
    We have had an issue raised before the Committee on 
swearing witnesses, and after some consideration, the judgment 
has been made that we are going to make it a regular practice 
to swear all witnesses. And in so doing we won't have any issue 
as to whether there is any special concern about witnesses or 
whether any witnesses are being targeted. We are just going to 
swear all the witnesses. That may not be totally necessary in 
circumstances where expert opinions are given, but if we have a 
uniform rule, I think it will facilitate the work of the 
Committee.
    So if you will all rise, I will administer the oath to you 
in a group. Raise your right hands. Do you each of you solemnly 
swear that the evidence and testimony that you give before this 
Committee will be the truth, the whole truth, so help you God?
    Mr. Woolsey. I do.
    Mr. Koh. I do.
    Mr. Gormley. I do.
    Mr. Kmiec. I do.
    Mr. Fein. I do.
    Mr. Turner. I do.
    Mr. Levy. I do.
    Chairman Specter. Thank you all very much.
    Our first witness is the distinguished former Director of 
Central Intelligence, Hon. James Woolsey, a graduate of 
Stanford University with great distinction, Phi Beta Kappa, 
Oxford University, Yale Law School, managing editor of the Yale 
Law Journal. We may be a little heavy with Yale Law 
representation here today, but we have other distinguished 
schools represented. We are going to make Senator Leahy an 
honorary Yale Law grad, except he would probably reject the 
offer.
    Director Woolsey, thank you very much for joining us today, 
and we look forward to your testimony.
    Let me repeat that the clock is set at 5 minutes, and we 
ask you to adhere to the rules so we can have the maximum 
amount of time for dialog, questions and answers.
    The floor is yours, Director Woolsey.

STATEMENT OF R. JAMES WOOLSEY, VICE PRESIDENT, GLOBAL STRATEGIC 
    SECURITY DIVISION, BOOZ ALLEN HAMILTON, MCLEAN, VIRGINIA

    Mr. Woolsey. Thank you, Mr. Chairman. It is an honor to be 
asked to be with you.
    Since we are in a war, I would start with the enemy, and I 
will summarize briefly the first several pages of my testimony 
to say that two fanatic theocratic totalitarian movements in 
the Middle East have chosen in the last few years to be at war 
with us--one from the Shi'ite side of Islam, one from the Sunni 
side of Islam. They are manifested in tactically shifting 
alliances, doctrinal differences that can sometimes be 
submerged in alliances of convenience. They have two somewhat 
different objectives: one wishes to kill as many people as 
possible in order to bring the Mahdi back and hopefully have an 
end of the world as soon as possible. The other would only like 
to fold us into a caliphate someday that would rule the world 
under Shariya. We may shake our heads in puzzlement at these 
types of objectives, but we have learned with the Thousand Year 
Reich and with world communism that we need to take 
totalitarianism and its views seriously.
    Unlike the cold war, we have a number of assumptions that 
we have to operate under today that are fundamentally 
different. Far from fighting a single rigid empire, our enemies 
have a host of different relationships with government. 
Containment and deterrence have very little to do with them. 
Unlike the Soviets in the cold war, they are fantastically 
wealthy from oil. Unlike the Soviets in the cold war, their 
ideology is not dead. It is religiously rooted. It is central 
to their behavior.
    Unlike the Cold War, we are not safe behind our shores. The 
chief of strategy for Mr. Ahmadinejad, who is close to 
Hezbollah, says that he knows of the 29 sensitive sites in the 
U.S. and the West which he has spied out and is ready to attack 
in order to ``end Anglo-Saxon civilization.''
    Unlike the Cold War, our intelligence requirements are not 
just overseas. We live on the battlefield, and we need to be 
able to map electronically that battlefield.
    Unlike the cold war, domestic terrorism in this country 
cannot solely be dealt with by criminal law. It is difficult to 
understand how one deters through the criminal law individuals 
who want to die themselves while killing thousands of us.
    Unlike the cold war, security can come more into conflict 
with liberty than we wish would be the case.
    And unlike the cold war, and perhaps most importantly, the 
operation of Moore's law over the course of the last two to 
three decades has fundamentally changed our world. Throw-away 
cell phones and Internet websites and chat rooms are now 
available to terrorists. This is no longer 1978 when phones 
plugged into the wall and the Internet was just a gleam in the 
eye of a few people at the Defense Advanced Research Projects 
Agency.
    I believe that the inherent authority of the President 
under Article II, under these circumstances, permits the types 
of intercepts that are being undertaken. I believe that is true 
because the country has been invaded, albeit, of course, not 
occupied, and defending against invasion was at the heart of 
the President's Article II authority from the Founders.
    We run a serious risk of being attacked again. Both bin 
Laden and Ahmadinejad and Abbassi and, indirectly, Hezbollah 
have so threatened. The threat from bin Laden is augmented by a 
fatwah from a Saudi religious leader that threatens the use of 
nuclear weapons.
    Since the battlefield is in part, sadly, here at home, I 
believe that what we have to do is think very hard about how to 
have a system that can provide a check and balance against the 
type of electronic mapping of the battlefield that I believe is 
necessary. The one-spy-at-a-time surveillance systems of the 
Cold War, including FISA, through courts, are not designed to 
deal with fast-moving battlefield electronic mapping, in which 
an al Qaeda or a Hezbollah computer might be captured which 
contains a large number of e-mail addresses and phone numbers, 
which would have to be checked out very promptly.
    An Attorney General on a 72-hour basis, or a FISA court, 
simply cannot go through the steps that are set out on pages 9 
and 10 of my testimony in time to deal with this type of a 
problem. In my judgment, oversight is needed. I generally 
endorse the support that Judge Posner submitted to the Wall 
Street Journal in an op-ed a couple of weeks ago, with one 
modification, which is in the testimony and which I do not have 
time to describe.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Woolsey appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Director Woolsey.
    We now turn to the Dean of the Yale Law School, Smith 
Professor of International Law, Dean Harold Koh. Summa cum 
laude graduate of Harvard, cum laude of the Law School, Oxford, 
and a clerk to Justice Harry Blackmun.
    Thank you very much for coming from New Haven today, Dean 
Koh, and we look forward to your testimony.

  STATEMENT OF HAROLD HONGJU KOH, DEAN, YALE LAW SCHOOL, NEW 
                       HAVEN, CONNECTICUT

    Mr. Koh. Thank you, Mr. Chairman and members of the 
Committee. In my career, I have had the privilege of serving 
our Government in both Republican and Democratic 
administrations, and I have also sued both Republican and 
Democratic administrations when I thought their conduct was 
unlawful.
    In my professional opinion, the NSA domestic surveillance 
program is as blatantly illegal a program as I have seen, and 
my reasons are given not just in my written testimony, but also 
in two letters that were sent to you by myself and a number of 
constitutional law scholars and former Government officials, as 
well as in the ABA Task Force Report, for which I served as an 
adviser.
    Now, I say this fully aware of the ongoing threat from al 
Qaeda and the need for law enforcement officials to gather 
vital information. And, of course, in time of war, our 
Constitution recognizes the President as Commander in Chief. 
But the same Constitution requires that the Commander in Chief 
obey the Fourth Amendment, which requires that any Government 
surveillance be reasonable, statutorily authorized, supported, 
except in emergencies, by court-ordered warrants, and based on 
probable cause.
    The current NSA program is blatantly illegal because it 
lacks all of these standards, and the Supreme Court has never 
upheld such a sweeping, unchecked power of Government to invade 
the privacy of Americans without individualized suspicion, 
congressional authorization, or judicial oversight.
    For nearly 30 years, the FISA, the Foreign Intelligence 
Surveillance Act, has provided a comprehensive, constitutional, 
and, using its words, exclusive framework for electronic State 
and local. Under FISA, executive officials can conduct 
electronic surveillance of Americans, but they can do so 
without a warrant for only 3 days, or in case of wartime, for 
15 days after a declaration of war. After that, they must 
either go to the special court for an order or come to Congress 
for an amendment or stand in violation of the criminal law.
    This was based on a simple logic. Before the President 
launches an extended domestic spying program, his lawyers must 
get approval from someone who does not work for him. Yet that 
is precisely what has happened here--what has not happened 
here.
    Now, of course, I agree with Director Woolsey that we can 
and should aggressively fight terrorism, but fighting terrorism 
outside the law is deeply counterproductive. Under the ongoing 
program, NSA analysts are increasingly caught between following 
orders and carrying out electronic surveillance that is 
facially illegal; and, moreover, evidence collected under the 
program will almost surely be challenged, and it may prove 
inadmissible, making it far more difficult to prosecute 
terrorists.
    With respect, none of the program's defenders has 
identified any convincing defense for conducting such a 
sweeping program without congressional authorization and 
oversight and judicial review. And in my testimony, I review 
and reject those defenses, including the extraordinary claim 
that you here in Congress enacted the use of force resolution 
to repeal the FISA, which had, in fact, criminalized 
unauthorized, indefinite, warrantless domestic wiretapping 23 
years earlier.
    Most fundamentally, my testimony rejects the radical view 
of unchecked executive authority that is offered by some of my 
fellow witnesses. That unilateral vision offends the vision of 
shared national security power that is central to what Justice 
Jackson called ``the equilibrium established by our 
constitutional system.'' Read literally, the President's 
reading of the Constitution would turn this body into a 
pointless rubber stamp whose limited role in the war on terror 
would be enacting laws that the President could ignore at will 
and issuing black checks that the President can redefine at 
will.
    Finally, Mr. Chairman, I have had a chance to look at the 
proposed bill to refine and amend the FISA. I don't think it 
will improve the situation. First, as you say, it is radically 
premature. Congress simply does not have enough information to 
conduct such a broad revision at this time. Second, remember 
that the President has refused for 4 years to operate within 
the FISA framework. Unless the President acknowledges that he 
must obey the FISA amendments and agrees to operate within it, 
any new congressional action will be equally meaningless. And, 
third, the proposal pre-authorizes programs, not particular 
searches, and as a result it gives a general warrant to a 
significant number of unreasonable searches and seizures. This 
resembles the statutory version of the British general warrant 
that was used in the 1700s by the King. But it was precisely 
because English law did not protect our privacy that our 
colonial ancestors said that, even when the President in 
wartime is our Commander in Chief, we have a right of the 
people to be secure in their persons, houses, papers, and 
effects against unreasonable searches and seizures, and no 
warrant shall issue, except on probable cause, and the persons 
or things to be seen being stated with particularity.
    In sum, Mr. Chairman, for 4 years our Government has been 
conducting an illegal program and now wants to rewrite the 
Constitution to say that that program is lawful. This Committee 
should reject those claims.
    Thank you.
    [The prepared statement of Mr. Koh appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Dean Koh.
    Our next witness is Mr. Robert Levy, who is a Senior Fellow 
in Constitutional Studies at the Cato Institute. He has a 
bachelor's degree from American University, a Ph.D. from 
American University, and a law degree from George Mason 
University. He is an adjunct professor at Georgetown University 
Law School and is a member of the Board of Visitors of the 
Federalist Society.
    Thank you for joining us today, Mr. Levy, and the floor is 
yours.

 STATEMENT OF ROBERT A. LEVY, SENIOR FELLOW IN CONSTITUTIONAL 
           STUDIES, CATO INSTITUTE, WASHINGTON, D.C.

    Mr. Levy. Thank you, Mr. Chairman, and members. Thank you 
very much for inviting me to testify.
    I would like to discuss four legal questions related to the 
surveillance program. First, do NSA warrantless domestic 
wiretaps necessarily violate Fourth Amendment protections 
against unreasonable searches? My answer to that is no, they do 
not, not necessarily. There are numerous exceptions to the 
warrant requirement, including hot pursuit, search incident to 
arrest, stop-and-frisk and others. And as for national 
security, that is an open issue as to whether there is an 
exception.
    Under the Keith case in 1972, the Court indicated that the 
administration could conduct some types of warrantless wiretaps 
without violating the Fourth Amendment if a foreign power were 
involved.
    The second question though, what about the FISA statute; 
does not the NSA program violate its express terms? My answer 
to that question is yes. The text is unambiguous. A person is 
guilty of an offense if he intentionally engages in electronic 
surveillance except as authorized by statute. Now, to be sure, 
FISA was drafted to deal with peacetime intelligence, but that 
does not mean that it is inapplicable in the post-9/11 war on 
terror. In fact, Congress expressly contemplated warrantless 
wiretaps during wartime, and limited them to the first 15 days 
after war is declared, and furthermore, FISA was amended by the 
PATRIOT Act, passed in response to 
9/11 and signed by President Bush. So if 9/11 triggered wartime 
as the administration has repeatedly argued, then the amended 
FISA statute is clearly a wartime statute.
    Third question. Does the authorization for use of military 
force provide the statutory approval that FISA requires? 
Answer: No, it does not. A settled canon of statutory 
interpretation is that specific provisions supersede general 
provisions. When FISA forbids electronic surveillance without a 
court order, except for 15 days, while the AUMF permits 
necessary and appropriate force, it seems to me, quite simply, 
bizarre to argue that electronic surveillance is thereby 
authorized without a warrant.
    Congress, in passing the AUMF, did not intend to make 
compliance with FISA optional. In fact, Congress was 
simultaneously relaxing selected surveillance provisions via 
the PATRIOT Act. To my knowledge, not a single Member of 
Congress, among the 518 members who voted for the AUMF, now 
claims that his vote changed domestic wiretapping rules.
    Fourth question and the most difficult: do the President's 
inherent wartime powers allow him to ignore FISA? My answer is 
no. That is not to say the President is powerless to order 
warrantless wartime surveillance. For example, intercepting 
enemy communications on the battlefield is clearly an incident 
of his war power, but warrantless wiretapping of Americans 
inside the United States, who may have nothing to do with al 
Qaeda, does not qualify as incidental wartime authority. The 
President's war powers are broad, but they are not boundless, 
and indeed, they are not exclusive. The power to grant pardons, 
for example, is exclusive. Congress could not make an exception 
for persons convicted of, let us say, child abuse.
    But war powers are not exclusive. They are shared between 
the President and Congress. It is Congress, not the President, 
that is constitutionally authorized to declare war, suspend 
habeas, define and punish offenses against the law of nations, 
make rules concerning captures on land and water. The real 
question is not whether the President has some inherent 
authority to conduct warrantless surveillance. He does. The 
tougher question is to determine the scope of his authority in 
the face of Congress's concurrent powers. And the key Supreme 
Court case, as you know, is Justice Jackson's concurrence in 
Youngstown Sheet and Tube v. Sawyer. Clearly, the NSA 
surveillance program belongs in Youngstown's third category, in 
which the President has acted in the face of an express 
statutory prohibition. In my view he has overreached. The 
executive branch may be justified in taking measures that in 
pre-9/11 times could be seen as infringements of civil 
liberties, but the President cannot, in the fact of an express 
prohibition by Congress, unilaterally set the rules, execute 
the rules and eliminate oversight by the other branches. In 
short, the NSA surveillance program, under current law, is 
illegal.
    Now in the 20 seconds remaining, I would like to comment on 
Director Woolsey's statement that the battlefield is here at 
home. Calls from the actual battlefield, Afghanistan, or 
anywhere else outside the United States, can be monitored under 
current FISA rules, as long as the target is not a U.S. person 
in the U.S. So to suggest that calls cannot be monitored is a 
mistake. A call from France or the U.K. cannot be construed as 
battlefield-related, unless the term ``battlefield'' has no 
geographic limits, and indeed, if France is part of the 
battlefield, why not Nebraska? The same logic that argues for 
warrantless surveillance of foreign communications would permit 
warrantless surveillance of domestic communications as well.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Levy appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Mr. Levy.
    Our next witness is Professor Doug Kmiec, Professor of 
Constitutional Law at Pepperdine; one time Dean and Professor 
at Catholic University, and on the faculties of Notre Dame Law 
School and Valparaiso; undergraduate degree from Northwestern 
with honors, and a law degree from the University of Southern 
California; Assistant Attorney General in the U.S. Department 
of Justice for 4 years from 1985 to 1989. Thank you for being 
with us today, Professor, and we look forward to your 
testimony.

STATEMENT OF DOUGLAS W. KMIEC, PROFESSOR OF CONSTITUTIONAL LAW, 
    PEPPERDINE UNIVERSITY SCHOOL OF LAW, MALIBU, CALIFORNIA

    Mr. Kmiec. Thank you, Mr. Chairman, and members of the 
Committee. I ask that my full statement be made part of the 
record.
    Chairman Specter. Without objection, it will be made part 
of the record, as will all the statements.
    Mr. Kmiec. I believe there is a common objective between 
the President and the Congress, and of course, that common 
objective is to prevent further attack.
    One of the things that was immediately recognized after 9/
11, recognized by both the President and by the Congress, was 
that there were missed opportunities to unravel that plot 
through enhanced surveillance. The joint independent inquiry of 
the Select Intelligence Committees recognized that. It also 
recognized that there was a perception that FISA was not 
working because of its lengthy process. So there was a legal 
issue. Did the President have the authority to address that 
question--the shortcomings with surveillance?
    The President's lawyers in the White House concluded that 
he did. The Chair of the Senate Intelligence Committee 
concluded that he did. The Attorney General, in a eloquent 
statement to you on February 6, illustrated why he concluded 
that he did. And I affirm these conclusions as both 
constitutionally reasonable, practically justified and 
necessary.
    In my written testimony I give detailed support for that 
conclusion, but in a nutshell it is this: that Congress, 
through FISA, was seeking to address a political abuse of the 
use of surveillance. It was important for them to address that 
abuse. They did, and it has been stopped. That Congress, 
through FISA, was taking up Justice Powell's suggestion in the 
Keith case, that domestic security, while needing to comply 
with the Fourth Amendment did not need to comply precisely in 
the same way as criminal investigations. It could be done 
through a specialized court and specialized determinations of 
particularity and probable cause.
    But Congress also chose to launch into an area that is very 
difficult because there is authority in both Congress and the 
President with regard to issues of foreign intelligence. 
Griffin Bell cautioned the Congress on this score, and it 
responded to that caution with a number of provisions in FISA 
that basically anticipated the need for specialized legislation 
in the event of wartime. I believe that specialized legislation 
has been passed in the form of the Authorization for the Use of 
Military Force, and that fully authorizes, as the Supreme Court 
has held in Hamdi, that the President can use all incidents of 
war to wage war successfully.
    I recognize that reasonable minds can differ on this 
question. Reasonable minds have been differing on this question 
since Madison and Hamilton had a debate about the neutrality 
policies of the United States. Justice Jackson himself 
disagreed with FDR on some questions with regard to foreign 
affairs authority. Of course, this body disagreed to some 
degree with President Reagan in matters of Iran-Contra.
    But the fact that these questions have been debated 
perennially since the time of our founding, certainly does not 
mean that these disagreements are illegal or that they call for 
the appointment of a special counsel. Such rhetoric, it seems 
to me, to be partisan, unnecessary, unfortunate and unwise.
    The American poet, T.S. Eliot, observed that war is not 
life, it is a situation. It is a situation which can neither be 
ignored nor accepted. The war on terror cannot be ignored, and 
the prospects of further attack cannot be accepted.
    I think the real constructive purpose of this hearing, Mr. 
Chairman, is not to have recriminations about legality or 
illegality, because there is a genuine argument on both sides 
of that question, but rather to pursue the issue of what is the 
appropriate course as we go forward. I know that legislation 
has been drafted for our consideration, and my sense with 
regard to that legislation is to give it a qualified 
affirmation. It is qualified, as it must be, because, of 
course, any legislation in this area must always maintain focus 
on the primary objective to prevent attack, and to the extent 
that it fails to accomplish that objective, it must be 
rejected. But if it does in fact authorize a program warrant 
requirement that meets constitutional specifications--and I 
believe in many respect it does--then it is striking a more 
appropriate balance between the legislature and the executive. 
I hope to answer your specific questions about the legislation 
in the questions that are to come.
    Thank you, sir.
    [The prepared statement of Mr. Kmiec appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor.
    Our next witness is Mr. Bruce Fein, Partner of Fein and 
Fein; undergraduate degree from the University of California, 
phi beta kappa, Harvard Law, cum laude; was a special assistant 
in the antitrust division of the Department of Justice, 1973 to 
1980; General Counsel to the FCC under President Reagan, 1983 
to 1985; constitutional lawyer, international consultant.
    Thank you very much for agreeing to be a witness, Mr. Fein, 
and we look forward to your testimony.

    STATEMENT OF BRUCE FEIN, FEIN AND FEIN, WASHINGTON, D.C.

    Mr. Fein. Thank you, Mr. Chairman, and members of the 
committee. This is a defining moment in the constitutional 
history of the United States. And on this issue I think we are 
all Republicans and we are all Democrats, to borrow from Thomas 
Jefferson's Inaugural, because the issues that we confront with 
regard to checks and balances, are indispensable to the liberty 
of those living and those yet to be born.
    The theory invoked by the President to justify 
eavesdropping by the NSA, in contradiction to FISA, would 
equally justify mail openings, burglaries, torture, or 
internment camps, all in the name of gathering foreign 
intelligence. Unless rebuked, it will lie around like a loaded 
weapon, ready to be used by any incumbent who claims an urgent 
need. On this score, as Justice Holmes said, a page history 
speaks volumes of logic.
    FISA was the child of the Church Committee hearings. It 
disclosed, among other things, that in 1938, when a secret 
program of domestic surveillance not authorized by Congress was 
undertaken to identify fascists or communists, the Director of 
the FBI, the Attorney General and the President concurred as 
follows: ``In considering the steps to be taken for the 
expansion which then occurred of the present structure of 
intelligent work, it is believed imperative that it be preceded 
with the utmost degree of secrecy in order to avoid criticism 
or objections, which might be raised by such an expansion by 
either ill-informed persons or individuals having some ulterior 
motive. Consequently, it would seem undesirable to seek special 
legislation which would draw attention to the fact of what is 
being done.''
    President Bush has advanced the identical justification for 
refusing to seek congressional authority for the NSA's 
warrantless eavesdropping targeting American citizens at home. 
What happened after the 1938 secret intelligence program 
commenced? The abuses, mail openings, burglaries, Internal 
Revenue Service harassments, a security index in violation of 
the Internal Security Act of 1950 and COINTELPRO. The 
bureaucratic mentality of the spy was captured in the following 
FBI Headquarters response to its New York office's conclusion 
that surveillance of a civil rights leader should cease because 
an investigation had unearthed no evidence of communist 
sympathies.
    And this is what the Bureau headquarters wrote in response: 
The Bureau does not agree with the express belief of the New 
York office that Mr. X is not sympathetic to the party cause. 
While there may not be any direct evidence that Mr. X is a 
communist, neither is there any direct substantial evidence 
that he is anti-communist.
    In other words, it is the mental inclination of spies and 
the intelligence community to overreach, because their job is 
to gather intelligence, their job is not to weigh and balance 
privacy interests. Privacy interests that Justice Louis D. 
Brandeis characterized in Olmstead v. United States, as the 
right to be left alone, the most comprehensive of rights and 
the right most valued by civilized men.
    This Committee was told by the Attorney General on February 
6 that we can all be assured because NSA professionals are 
deciding who is and who is not sympathetic to al Qaeda, that 
only the culprits are targeted. But the whole purpose of the 
Fourth Amendment, the whole purpose of FISA was to have an 
outside check on the executive branch spying because of the 
inherent tension with the desire of the professional to get the 
maximum intelligence and the desire of the American people to 
be secure in their persons, houses, papers and effects.
    That is the reason why FISA was enacted and why it has 
demanded such scrupulous conformity over the years. The 
argument is made that the authorization to use military force 
somehow overrode the FISA statute. On its face it is 
preposterous because the theory that the AUMF authorized the 
President to undertaken anything pertinent to collecting 
foreign intelligence, also meant that this Committee and this 
Congress silently overrode the prohibitions on mail openings, 
on breaking and entering homes, on torture, cruel, inhumane 
degrading treatment of prisoners, and to do all of those things 
in silence on its face is laughable.
    I would like to briefly address what I think the 
responsibility of this Committee is. You do not know, we do not 
know exactly what the nature of the spying program of the NSA 
is, as the Attorney General conceded on February 6th. So we do 
not know the nature of the problem that is created by FISA. The 
Attorney General said, to domestic al Qaeda calls, ``FISA works 
reasonably well, and the President hasn't authorized those 
kinds of interceptions without warrants.'' Well, on its face, 
why would the practical difficulty of complying with FISA when 
an international call is at issue, should be different from the 
domestic calls? Maybe there is, but this Committee and the 
American people have not been told why. The burden of 
persuasion ought to be on the President to explain why FISA is 
unworkable, not on us to explain why a secret program we know 
nothing about is unnecessary.
    The power of the purse is perhaps the greatest power the 
Founding Fathers entrusted to the legislative branch. It has 
been used in the past, and in my judgment, should be used now 
to stipulate that the President can undertake no electronic 
surveillance for foreign intelligence purposes outside of FISA 
unless--
    Chairman Specter. Mr. Fein, could you summarize?
    Mr. Fein. Yes. Unless within 30 days the President comes 
forward with a plan that this Congress agrees will be treated 
on a fast track basis like trade negotiations, and let the 
burden be on the administration to explain to this Committee 
why changes are necessary.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Fein appears as a submission 
for the record.]
    Chairman Specter. Thank you, Mr. Fein.
    We now turn to Professor Robert Turner of the Woodrow 
Wilson Department at the University of Virginia; bachelor's 
degree from Indiana University, and an advanced law degree from 
University of Virginia Law School; has served in key positions 
such as the Associate Director of the Center for National 
Security Law, the President's Intelligence Oversight Board, and 
the President of the Institute for Peace, and worked back in 
the 1970s for Senator Robert Griffin.
    Thank you very much for agreeing to join us today, 
Professor Turner, and we look forward to your testimony.

   STATEMENT OF ROBERT F. TURNER, ASSOCIATE DIRECTOR AND CO-
   FOUNDER, CENTER FOR NATIONAL SECURITY LAW, UNIVERSITY OF 
       VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VIRGINIA

    Mr. Turner. Thank you, Mr. Chairman. It is an honor to be 
here. I hope that our question period will provide an 
opportunity to talk both about the power of the purse and also 
about the statutory authorization issue. I think a case can be 
made that the AUMF did authorize these intercepts, but I have 5 
minutes, so let me focus on the more important issues.
    I share the view that no one, including the President, is 
above the law, but I would emphasize when we are talking about 
law, that the Constitution comes first, as the Chairman did in 
his opening remarks. Chief Justice John Marshall told us in 
Marbury, an Act of the legislature repugnant to the 
Constitution is void. I think there is a place for FISA, but 
the bill needs to include a recognition of the President's 
independent constitutional power to act in this area, as 
Attorney General Griffin Bell noted during the Carter 
administration when he testified before the Senate in 1978.
    During these hearings it has been suggested that unchecked 
Presidential power is incompatible with democratic governance. 
Once again I would call your attention to Marbury v. Madison, 
where Chief Justice Marshall noted, ``By the Constitution of 
the United States the President is invested with certain 
important political powers, in the exercise of which he is to 
use his own discretion, and is accountable only to his country 
and his political character, and to his conscience. Whatever 
opinion may be entertained of the manner in which Executive 
discretion may be used, still there exists and can exist no 
power to control that discretion.''
    At the core of Executive discretion, I submit, is the 
control of foreign intelligence during wartime. As John Jay 
noted in Federalist No. 64, ``The Convention have done well, 
``and so dividing the treaty powers, that the President ``will 
be able to manage the business of intelligence as prudence 
might suggest.'' When the Founding Fathers vested the Executive 
power in the President in Article II, section 1, they gave the 
general control of foreign intercourse to the President subject 
only to narrowly construed negatives or checks vested in the 
Senate or Congress.
    As I document in my written statement, George Washington, 
James Madison, Thomas Jefferson, John Jay, Alexander Hamilton 
and John Marshall, all specifically referred to the ``Executive 
power'' grant as the reason for the President's control in this 
area. As Jefferson put it in 1790, ``The transaction of 
business with foreign nations is Executive altogether.''
    The need for secrecy was central to the decision to vest 
not only foreign intelligence, but also the negotiation of 
treaties exclusively in the President. As the Supreme Court 
noted in the landmark 1936 Curtiss-Wright decision, ``into the 
field of negotiation the Senate cannot intrude, and Congress 
itself is powerless to invade it.'' Sadly, since Vietnam, 
Senators have too often breached this barrier.
    In my prepared statement I explain why Curtiss-Wright 
remains the primary Supreme Court precedent concerning foreign 
affairs. I also explain that Youngstown is not really a foreign 
affairs case. Both Justice Black for the majority, and Justice 
Jackson, in his concurring opinion, time and again, emphasized 
that this was a question of internal powers, of a taking of 
private property without due process of law, a clear violation 
of the Fifth Amendment.
    Similarly, the Keith case has been greatly misunderstood. 
Like Justice Black and Justice Jackson, Justice Powell, for the 
unanimous Court in Keith, repeatedly emphasized the case 
involved internal threats from domestic organizations, in this 
case, the Black Panthers. And he noted that the Court took no 
position on the President's power with respect to foreign 
powers within or without this country.
    I would add that the argument that FISA was enacted in 
response to an invitation from the Supreme Court is simply not 
accurate. What Justice Powell said, was, ``given those 
potential distinctions between Title III''--that is, Title III 
of the '68 Crime Control and Safe Streets Act--``criminal 
surveillance and those involving the domestic security,'' that 
is, groups like the Black Panthers, ``Congress may wish to 
consider protective standards for the latter,'' that is, 
domestic security, ``which differ from those.  .  .in Title 
II.'' The Court made no suggestion that Congress should put any 
constraints on foreign intelligence gathering. And since Keith 
the courts have clearly sided with the President, as have all 
the Presidents.
    In 2002, the Foreign Intelligence Surveillance Court of 
Review noted that every court that has considered the issue has 
held the President did have inherent authority under the 
Constitution to conduct warrantless searches to obtain foreign 
intelligence. And the Court went on to say, ``we take it for 
granted the President does have that authority, and assuming 
that is so, FISA could not take away that Presidential power.''
    Finally, Mr. Chairman, I would note that FISA has done 
serious harm to this Nation. Colleen Rowley was one of Time's 
Persons of the Year because she complained that the FBI would 
not even request a FISA warrant. In fact, as I am sure, you 
know, the reason the FBI would not request a FISA warrant was 
because Congress had failed to consider the possibility of a 
``lone wolf'' terrorist like Zacarias Moussaoui, and the 
statute made it clearly illegal to get a warrant to look at his 
laptop. FISA was amended in 2004 to fix that omission.
    General Michael Hayden, former head of NSA, has said that 
if this program had been legal back before 9/11, it might have 
prevented those attacks, but FISA prohibited this kind of 
program.
    We have heard a lot of talk about a ``risk-avoidance 
culture'' in the intelligence community. I followed the Church 
hearings. I was here at the time. Look at the fact you have 
made felony penalties for--
    Chairman Specter. Professor Turner, could you summarize at 
this point?
    Mr. Turner. Yes, sir. You have made felony penalties for 
intelligence agents who step over the line, even if they do so 
with Presidential authority, and that contributes to such a 
culture.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Turner appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Turner.
    Our concluding witness is Professor of Law from Duquesne 
University, Professor Ken Gormley; undergraduate degree from 
University of Pittsburgh, law degree from Harvard; clerked for 
Federal Judge Ziegler and State Supreme Court Justice Ralph 
Cappy. In 2002 he organized a symposium to celebrate the 50th 
anniversary of the Youngstown steel seizure case, and without 
object, we will make a part of the record, the videotape and 
the statement of the Coalition to Defend Checks and Balances, 
an initiative of the Constitution Project.
    I reviewed your tape, Professor Gormley, and it brought 
back a lot of memories. The steel seizure case in black and 
white does not have the drama that the videos did with the 
newsreels of President Truman, the Korean War and the pressure 
the need for steel put on the President's wartime powers. We 
were at war at that time, although we have not found any 
nominee for the Supreme Court who will say it was a war yet. I 
have been trying for more than a decade.
    If you will permit just a 30-second personal aside, I was 
one of 2,000 ROTC cadets at Lowry Air Force Base, arriving 
there on June 25th, 1950, the day the Korean War started, and 
we were sure in TACU we were heading right for the trenches. 
And after we were there for six weeks, they sent us all back to 
college. I guess they wanted to win the war.
    [Laughter.]
    Chairman Specter. But when your video was shown, it was 
enormously impressive, and you were able to get Chief Justice 
Rehnquist to say that public opinion influences the Supreme 
Court. I thought that was quite a concession.
    By the way, none of this is out of your time, Professor 
Gormley. You may proceed, please.

  STATEMENT OF KEN GORMLEY, PROFESSOR OF CONSTITUTIONAL LAW, 
  DUQUESNE UNIVERSITY SCHOOL OF LAW, PITTSBURGH, PENNSYLVANIA

    Mr. Gormley. Thank you very much, Chairman Specter and 
members of the Committee. It is a great privilege to testify 
today, and as Senator Specter said, I have had the good fortune 
of studying the issue of Presidential power and specifically 
the steel seizure case often described as the granddaddy of the 
cases dealing with Presidential power, especially on American 
soil. And my written testimony contains a lengthy summary of 
that.
    Let me just summarize the problems I do see with the 
current Bush administration secret surveillance program, 
acknowledging that I believe it flows from good faith efforts 
to wage a crucial war on terror. Then I would like to talk 
about solutions.
    Justice Jackson, as you know, declared in his famous 
concurrence in that case that Presidential power is at the high 
point, at the theater of war abroad; it is at its low ebb on 
American turf, especially when the President has acted without 
constitutional or congressional support. Applying that 
precedent, I see four problems with the current surveillance 
program.
    Nothing, first, in the text of the Constitution 
specifically gives the President power to conduct such secret 
warrantless surveillance on the domestic front, even in times 
of emergency.
    Second, the administration specifically bypasses an Act of 
Congress in creating the FISA Court that directly deals with 
precisely these sorts of surveillance efforts with respect to 
citizens of the United States and residents.
    Third, the President's power--and this is important--the 
President's power is further diminished because the program 
directly collides with rights of American persons under the 
Bill of Rights, specifically, the Fourth Amendment. And this 
collision, I should point out, potentially puts President 
Bush's power even at a lower point than President Truman's in 
the steel seizure case.
    And fourth, this is interesting, if you adapt the steel 
seizure test and apply it to Congress, you discover that unlike 
the President, Congress is at its zenith of power here. 
Congress has the power to establish inferior courts under 
Article I, which it has done in establishing the FISA Court. It 
has the power to enact laws to ensure that Fourth Amendment 
rights and Bill of Rights protections are safeguarded, as it 
has done since the 1960s with wiretap laws. So Congress is at 
its high point here. The President is at low ebb.
    So how does this Committee give the President the tools he 
needs to fight the war on terror while still making sure that 
no constitutional shortcuts are taken? Here is a very quick 
summary.
    First, the existing FISA statute, I believe, should be used 
as a starting point. It works. It has been in place for 28 
years. It is the best framework for any new legislation.
    Second, a mechanism has to be created for judicial review. 
Congressional oversight is important, yes, and I have proposed 
a form of that in my written comments, but any secret 
surveillance legislation that makes it impossible to test the 
constitutionality of the program in the courts will end up 
violating the separation of powers doctrine as well as the 
Fourth Amendment. Probable cause, by definition, includes the 
participation of neutral and detached judges. So it is key that 
the FISA Court be included in the process, albeit making sure 
it operates in a highly secure fashion.
    Third, a mechanism must be created to allow standing for 
aggrieved parties so that a valid case or controversy can be 
created in the courts. As you know, this is very complicated 
stuff. I have attempted to spell out some suggestions in my 
written testimony. I think there are ways to accomplish 
standing legitimately. My proposal would put the Intelligence 
Committees of Congress in the role of intermediator in order to 
permit valid cases and controversies to be presented to the 
courts without jeopardizing national security.
    And fourth, the U.S. Supreme Court must possess the final 
power of review. All roads have to lead to the Supreme Court 
here. Even Congress cannot write the Supreme Court out of 
Article III.
    And fifth, the intake valve in what is funneled into the 
FISA Court has to remain extremely narrow. Any new legislation 
has to be fine tuned carefully when it comes to surveillance of 
American citizens in secret. This should be a rare thing, to be 
limited to cases where there is an awfully good reason to 
believe there is someone linked to terrorism on the other end 
of the communication. I think that still needs some tweaking.
    Let me just end by saying, Mr. Chairman, that there is no 
question in my mind that President Bush and his advisers and 
the Attorney General are doing everything humanly possible to 
do the right thing for our country here, just as Harry Truman 
did in 1952 in the steel seizure case. He thought it was 
essential to seize those steel mills in order to protect 
American troops in the field of battle. President Bush 
confronts a world quite different than any other previous 
President. This is serious business, there should be no finger-
pointing here.
    At the same time, this Congress has clearly defined powers 
under the Constitution. It has a duty to our system of 
Government to ensure that these are not disemboweled or 
diminished in any way by any other branch of Government, 
however well intentioned. Some of the draft legislation I 
believe is a positive step in that direction. This is not about 
right or wrong, Mr. Chairman. It is about attempting to find 
some common constitutional ground among equally well-
intentioned public officials and branches of Government, and I 
pray that we as a Nation are still capable of doing that.
    Thank you for the privilege of testifying.
    [The prepared statement of Mr. Gormley appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Gormley.
    As I said at the outset of the hearing before some of the 
Senators had arrived, we have the PATRIOT Act on the floor, and 
a number of us have to be there this morning. Scheduling of the 
PATRIOT Act and a motion to cutoff debate coincides with this 
hearing, so we are going to have to stay on the schedule and 
conclude in the next hour, hour and a quarter. And we have, as 
is our practice, 5-minutes rounds for Senators, and on the 
early bird, in order of arrival.
    Beginning with you, Professor Kmiec, I note your statement 
on page 18 of your 27-page statement--and we thank you for 
being so detailed--you have come to the conclusion that if 
legislation were enacted giving the Foreign Intelligence 
Surveillance Court the responsibility to determine 
constitutionality under the standards set forth in the proposed 
bill, that it would not be an advisory opinion. You articulated 
that the program warrant is a fair equivalent of the FISA 
warrant, which has been upheld, as you put it, as a 
quintessential judicial determination at common law. Would you 
amplify your reasoning on that point, please?
    Mr. Kmiec. Certainly, Mr. Chairman. The concerns I had when 
I first saw the draft of legislation was whether this was an 
advisory opinion, whether this was assigning to the Court 
something that was inconsistent with the Court's function in 
the sense that it was an administrative or non-judicial 
posture.
    But one of the things that is very clear from our history 
and from the cases, is that the determination of probable cause 
and particularity is, and has been described since Matthew 
Hale, since Blackstone and commentators thereafter, as 
quintessentially a judicial function.
    Chairman Specter. And a determination about the 
constitutionality of the overall program would follow those 
general principles?
    Mr. Kmiec. It would as well, because, of course, the very 
determination of the appropriateness or inappropriateness of a 
warrant always has as a background principle the issue of 
constitutionality, and the way you describe it in your proposed 
legislation is that the judges would be ascertaining that 
constitutionality in the performance of this function. I think 
that is what they do generally.
    Chairman Specter. We only have a limited amount of time so 
you will have to forgive our moving rather rapidly to another 
question.
    Dean Koh, you said that unless the President agrees to 
comply with the operation of the Foreign Intelligence 
Surveillance Act it would be meaningless to pass more 
legislation, where we would give to the Foreign Intelligence 
Surveillance Court the responsibility to determine 
constitutionality of the overall program. Why do you say it 
would be meaningless? You are not suggesting that it would be 
meaningless if the FISA Court made a determination that the 
program was unconstitutional? It has to be noted we do not know 
the details of the NSA program, and I do not think we are about 
to find out anytime soon. There may be some very limited 
oversight, but even then the administration has shown a real 
reluctance to tell the Congress.
    I served as Chairman of the Intelligence Committee in the 
104th Congress--and Director Woolsey has real insights here--I 
could not find out very much even though I was Chairman of the 
Committee. I thought at times the Director did not know very 
much about what the Central Intelligence Agency was doing. It's 
a very compartmentalized and secret agency.
    Let the record show Director Woolsey is smiling.
    [Laughter.]
    Chairman Specter. I will not say that is an affirmation of 
what I said, but it has some probative value. Perhaps not much.
    But, Dean Koh, if the FISA Court said it was 
unconstitutional, that would not be meaningless, would it? It 
would be respected by the President?
    Mr. Koh. Well, Senator, 28 years ago Congress and the 
President enacted a law which they said was exclusive, and now 
the President is saying in fact it is not exclusive. He can 
operate outside the scope of that law.
    Chairman Specter. But the President is saying the Attorney 
General came in and said he has constitutional authority. If 
the President does have inherent authority under Article II, 
would that not trump the statute?
    Mr. Koh. Well, what I am saying is that if you pass a new 
statute, and the Attorney General and the President have 
inherent authority to operate outside the scope of it, you can 
keep passing statutes as long as you want, and they can keep 
doing it under their inherent power or under the AUMF.
    I should just point out that the act of passing the PATRIOT 
Act, again, is irrelevant if their theory is true, because the 
AUMF has already reauthorized the key provisions, and you do 
not need to pass anything. In other words, the role of Congress 
here is to either give a blank check, which is revised later 
on, or to just play this role in which you pass legislation 
that can be ignored at will.
    Chairman Specter. In the 15 seconds I have left, I can 
propound the question, Professor Gormley, and you will have 
more time to answer it after my red light goes on. You have 
come to the conclusion that the creation of this legislation 
would not be an advisory opinion. Would you amplify that, 
please?
    Mr. Gormley. Yes, Chairman Specter. I think that it, again, 
requires some fine tuning. Here we are talking about the 
proposed draft Specter bill, and I think it is a good start, it 
is a good framework, because it allows for program-based 
warrants, but it requires probable cause. It includes the FISA 
Court. It includes Congress in an oversight capacity, so we 
have all three branches of Government working. I think that is 
a good start.
    I do think that it is essential to make sure that there is 
some way that there can be a case or controversy presented to 
the courts. That is a problem, because when you stop and think 
about it, when matters are done in secret, there is no 
plaintiff by definition. You have to allow some plaintiff to be 
created legitimately.
    So what I have proposed is to give the power--require the 
Director of National Intelligence to give an inventory of 
American citizens who have been subject to surveillance who are 
not terrorists, as is done under Title III, and allow the 
congressional oversight committee, the Intel Committees, with 
consultation with the executive branch, to determine if it is 
OK to release some of those names, and then you would have live 
cases or controversies and they could go to the FISA Court.
    But I do think that in general the system works. I do think 
it has to be tweaked, and let me just give you one example, Mr. 
Chairman. The way this thing is written right now--and I think 
it is why Dean Koh and John Podesta at the Center for American 
Studies, and others have some problem as written--it talks only 
about foreign agents, which makes sense currently under FISA. 
But, for instance, if one of your staff members contacted today 
a Government official in Canada, that is a foreign agent, and 
then that person, your staff member could be wiretapped for 45 
days. I do not think that that is what is intended. I think 
there has to be a more direct link to terrorists and I think 
that can be done fairly easily.
    Chairman Specter. Thank you, Professor Gormley.
    Senator Leahy will be returning shortly, and in his 
absence, I will turn to Senator Biden.
    Senator Biden. Thank you very much.
    I would like to ask Messrs. Woolsey and Turner, is FISA 
constitutional?
    Mr. Woolsey. I believe insofar as it intrudes on mapping 
the electronic battlefield in war time when the United States 
is under direct threat of attack, Number one believe that there 
are many provisions of FISA that are constitutional with 
respect to looking into individuals, and as Judge Posner's 
proposal, that I in general endorsed, suggests, in traditional 
cases of FISA, spies and the like, where you have the identity 
of an individual and the question of probable cause of whether 
or not that individual is an agent of a foreign power or 
terrorist organization arises, under those circumstances I 
think FISA can operate, and should operate today, and should 
operate in the future, but that is not what we have here.
    What we have here--we often do not even know individual who 
is at issue with the electronic surveillance plan.
    Senator Biden. In the interest of my time, you have 
answered my question. Thank you.
    Mr. Turner?
    Mr. Turner. Thank you, Senator Biden. I was here when FISA 
was passed--
    Senator Biden. So was I.
    Mr. Turner. And spent 3 years overseeing it as Counsel to 
the President's Intelligence Oversight Board. I am a fan of 
FISA, but ultimately, as Griffin Bell noted as Attorney General 
in the Carter administration in '78, and as the FISA Court of 
Review that you established has said, the President has 
independent power in this area that cannot be taken away by 
Congress. So I--
    Senator Biden. To the extent that FISA attempts to limit 
the President, it is unconstitutional?
    Mr. Turner. In cases involving foreign intelligence, and 
certainly during time of war, I would say yes. This is the 
administration--
    Senator Biden. I got it. My time is--with all due respect. 
I apologize.
    Mr. Turner. Yes, sir.
    Senator Biden. Now, based on the legal--one of the 
advantages of commuting, you get to read all this. I read all 
your statements, and I must say for the record I agree most 
with Mr Fein, which should worry him.
    [Laughter.]
    Senator Biden. But the fact is that under the legal 
reasoning that some of you have put forward, in addition to the 
legal reasoning put forward by the administration in the 
memorandum prepared by Mr. Yoo in 2002, on August 1, 2002, I do 
not see any rational distinction in the argumentation being 
made by the administration or by you, Mr. Woolsey, or by you, 
Professor, or by you, Mr. Turner, that would suggest that the 
President does not have authority to exercise the same 
authority absent any prohibition and including any prohibition 
on the part of Congress for domestic-to-domestic wiretapping. 
What is the distinction?
    Mr. Kmiec. I think the distinction is the Supreme Court's 
decision in Keith has made it plain that with regard to 
domestic security, the Fourth Amendment does have an 
application different than it has with regard to foreign 
intelligence. The motivation for FISA was largely to pursue 
that domestic security side of the question, and I think that 
is fundamentally different.
    Senator Biden. I was here, and was a cosponsor of that, and 
I disagree with both your characterizations of what we intended 
to do at the time, but I do not have time.
    Mr. Woolsey?
    Mr. Woolsey. I might just quickly say I think internal 
communications, even between terrorists, are a different and a 
more troubling case. Mr. Levy says that the battlefield was 
Afghanistan, but not France. I do not think the United States 
is the only side that gets to decide where the battlefield is. 
If you were here on 9/11 and saw that crash into the Pentagon, 
it is hard to tell the families of the people who died that 
they were not on a battlefield. I think the battlefield is in 
part here, and connections between here and terrorists 
overseas, whether they are in France or anyplace else--
    Senator Biden. And whether or not they are overseas or not, 
I do not get it.
    Mr. Fein, what would you say? My time is running out.
    Mr. Fein. I agree exactly, Senator Biden, and Attorney 
General Gonzales himself, on February 6, said there is not any 
difference, it is just the President, for political purposes, 
decided that domestic-to-domestic would subject him to too 
great recriminations, and therefore, this is not because of 
absence of legal authority.
    If I could just mention a couple points that former 
Director Woolsey made. Number one, General Hayden has said the 
United States is targeting specific individuals. This is not a 
dragnet. It is not data mining that we are discussing. Specific 
individuals precisely of the type that FISA is addressed to.
    And second, with regard to battlefield intelligence, the 
Supreme Court has made clear for more than a decade, when we 
are intercepting calls on a battlefield abroad, or even al 
Qaeda into the United States, where we are intercepting the 
conversation before it gets into domestic transiting, there is 
not any Fourth Amendment protection at all for al Qaeda. So 
this is not application of FISA to curtail or handicap in any 
substantial way the President's ability to gather foreign 
intelligence. It is not an effort to micromanage what the 
President can gather in fighting al Qaeda and otherwise.
    And I think there has been gross misrepresentations of 
suggesting that under FISA, if al Qaeda makes a call into the 
United States, an American picks up the phone, then the United 
States has to stop listening. No. That has not been the case. 
It has never been the case and it should not be the case.
    Mr. Woolsey. Mr. Fein has misrepresented what General 
Hayden said.
    Senator Biden. Pardon me?
    Mr. Woolsey. I think Mr. Fein has misrepresented what 
General Hayden said. He has not said that each of these cases 
is going after an individual, a known individual. I believe 
they are going after phone numbers, cell phone numbers, 
addresses, e-mail addresses and the like. If they were going 
after individuals, then individual tests of probable cause 
could be supplied. It is precisely the problem that in many 
cases one does not know who has the cell phone or when it has 
been thrown away and the rest. I think Mr. Fein fundamentally 
misstated what the General said.
    Chairman Specter. Thank you, Senator Biden.
    Senator Hatch?
    Senator Biden. Could Mr. Fein respond to that?
    Mr. Fein. I would disagree with that characterization of 
Mr. Woolsey because--
    Chairman Specter. Yes, you may respond, Mr. Fein.
    Mr. Fein. Because when you are targeting a specific 
location, even if you do not have the name of an individual, it 
is focused on an ability to establish some probable cause or a 
suspicion that that particular phone or location is being 
utilized to further terrorism or the al Qaeda war against the 
United States, and it is that focus that is addressed by FISA 
and distinguishes this from simply a data mining gathering of 
information that is not targeting any particular location.
    Chairman Specter. Under the early bird rule, Senator Kyl 
was here earlier.
    Senator Kyl. Thank you, Mr. Chairman.
    Let me pursue just a little bit the question that Senator 
Biden asked, because we pursued this with the Attorney General 
when he was here too. No one was suggesting at that time that 
we should engage in a domestic surveillance program such as is 
being done with respect to the surveillance where there is an 
international point of contact, but I think we were troubled by 
his answer which was actually that he had not done the 
analysis. The Attorney General said the analysis on domestic 
has not been done. I said, ``Well, you ought to at least do 
it.''
    I am just wondering, apart from your other views with 
respect to this question of the distinction between 
international and domestic, I gather some of you think there is 
a distinction there that would authorize some kind of program 
like this, and others believe there is not.
    If the Attorney General said to you, ``I would like to do 
this analysis and understand whether there is a distinction 
between domestic and international,'' what would your advice 
be? If I could just a quick response from each of you on the 
panel, because I do have one other question to ask.
    Director Woolsey, maybe we can begin with you.
    Mr. Woolsey. I think the distinction comes when one zeroes 
in on an individual and then you can have a court 
understandably consider whether there is probable cause that 
that individual is an agent of a foreign power or a terrorist 
organization. When there is not an individual, when a call is 
from a switch in Yemen to a cell phone in the United States, 
then I think under those types of circumstances, the 
administration's assertion of its authority is well taken. It 
is a tougher case if one has a call from a cell phone in 
Lackawanna from someone you suspect to be a terrorist to a cell 
phone in Toledo, and we have apparently terrorist cells, one in 
Lackawanna and one potentially in Toledo. That is a tougher 
case.
    Once individuals get involved, and one knows names and 
locations, it seems to me the FISA procedures begin to be 
appropriate. This is a tough crosswalk between those, but for 
what the administration is talking about--calls from that 
switch in Yemen to a cell phone of unknown possession in the 
United States, which in fact occurred with Al-Midhar and Al-
Hasmi--NSA did not follow it up, because as NBC News says, it 
was worried about being charged with domestic intelligence 
collection. I think in cases like that, the administration 
program ought to be able to go forward.
    Senator Kyl. Thank you.
    Mr. Fein. Mr. Senator, I do not see any distinction in the 
sense that the critical point is whether the gathering of the 
information is for foreign intelligence purposes. That is the 
touchstone of FISA application. And if it is for foreign 
intelligence purposes, namely, to fight or identify terrorism 
or help in the conduct of foreign relations, I do not see why 
it makes any difference whether you are gathering that 
information when it happens to transit in the United States as 
opposed to transiting between the United States and elsewhere. 
It is the use that is critical.
    Senator Kyl. Thank you.
    Maybe just quickly get, again, because of the time, just a 
real quick response from the others of you too.
    Mr. Koh. I agree that it is about foreign intelligence 
gathering. If all the world is a battlefield, the question is 
whether the FISA is still relevant and still controls the way 
in which Congress, the President and the courts operate, or 
whether the President is suddenly entitled to step completely 
outside that and rely on inherent unwritten power.
    Senator Kyl. Thank you.
    Mr. Levy. The restrictions in FISA apply to U.S. persons 
who are in the United States and who are specifically and 
intentionally targeted. It does not matter whether the person 
on the other end of that line is somebody who is in Toledo, 
Ohio or somebody who is in Beirut. The distinction here between 
domestic and foreign is not a distinction that you can find 
anywhere in the FISA statute. Domestic surveillance consists of 
targeting somebody in the United States who is a U.S. person. 
And I see nothing in the NSA program, other than the 
President's assertion, that it only applies when one end of the 
conversation happens to be outside the United States. Nothing 
conceptually would distinguish those two cases.
    Senator Kyl. OK, thank you.
    Professor Kmiec?
    Mr. Kmiec. Well, I agree with much of your statement, and I 
think they indicate that this distinction between domestic and 
foreign is not the right distinction. The right distinction is 
whether or not there are individuals, whether they are domestic 
or foreign, who are associated with al Qaeda and are seeking to 
materially advance al Qaeda's interests.
    I think the fundamental difficulty for the President is 
that the NSA, in their description of the operational details, 
which we do not have, has indicated that the program, as it 
operates, inevitably picks up some U.S. persons, and to the 
extent that it does, it then starts to rub against the 
provisions of the FISA statute.
    So the President tried to solve that problem by drawing 
this distinction between domestic and international, but it 
does not solve it because the right distinctions, as others on 
this panel have said, is the connection to al Qaeda and their 
purpose to harm us.
    Senator Kyl. Professor Turner?
    Mr. Turner. Sir, I think the confrontation here is between 
the President's powers under the Executive Power Clause and 
Commander in Chief Clause and the Fourth Amendment. I do not 
think Congress can narrow the Fourth Amendment. I do not think 
Congress could take away the President's independent powers. I 
think that the Fourth Amendment does allow at least some 
domestic surveillance when you are talking about people the 
President believes are foreign terrorists. I do not doubt that 
will mean some injustice or some innocent people will be 
listened to, but the President makes all sorts of targeting 
decisions during war that kill innocent people around the 
world, because that is the nature of war. It is unfortunate, 
but I do not think FISA can really play in this game when you 
are talking about a confrontation between major constitutional 
powers.
    Mr. Gormley. Senator Kyl, it is a great question, and I 
think the greatest danger that faces Congress in dealing with 
this issue is allowing the distinction between domestic and 
international surveillance to be collapsed into one in the wake 
of September 11th. In one case Congress has more power under 
the Constitution, in another, the President. And the solution, 
in my view, is to include the courts because the courts can 
make sure that boundary line is not crossed, even though it is 
a fuzzy one.
    Senator Kyl. Appreciate it. Thank you very much to all of 
you.
    Chairman Specter. Thank you, Senator Kyl.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. Senator Leahy 
had to leave and asked if we could put a few items in the 
record for him: February 12th New York Times editorial; 
February 16th George Will column; and a statement from the 
Coalition to Defend Checks and Balances.
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Feingold. Thank you, Mr. Chairman. I appreciate 
this hearing, appreciate all the witnesses, and regret that I 
have to go to the floor shortly on the PATRIOT Act issue the 
Chairman mentioned.
    But I would like to ask one question. Let me first say I am 
just amazed at the constantly shifting justifications for this 
NSA program. After going through two Supreme Court nominations 
and hearing these two now-Justices talk about how central 
Youngstown is to the analysis of this sort of thing, we hear 
the argument now that Youngstown does not even apply. I mean, 
literally, it is a spectacular range of shifting justifications 
for what is, frankly, in my view unjustifiable from a legal 
point of view.
    But I am very concerned that the administration's theory in 
support of the NSA program has no limits, and that it could be 
used to justify virtually any action, and override virtually 
any statute based just on a tangential relation to combatting 
terrorism. None of us actually know what else the 
administration might have already authorized. As the Chairman 
has indicated, we do not even know for sure what this program 
is, but based solely on its legal theory, I do not know what 
would prevent the administration from authorizing all kinds of 
activities that would otherwise violate a statutory 
prohibition.
    It seems to me that its legal theory could be used to 
justify, as we were just discussing, of course, purely domestic 
communications of Americans, but also conducting warrantless 
searches of people's homes or even assassinating citizens 
inside the United States.
    I would like each of you to tell me whether you see any 
limit to the administration's legal theory, and if so, where 
would you draw the line? Let me start first with those who 
generally support the administration position, and then elicit 
a response from those who oppose it.
    Mr. Woolsey?
    Mr. Woolsey. Senator Feingold, I think that even at its 
lowest ebb under the Youngstown language, Justice Jackson's, 
there is still an ocean, and the ocean is the President's 
Article II authority as Commander in Chief. Personally, I see 
mapping the electronic battlefield in a situation in which the 
United States has been attacked, as far more inherently related 
to the President's Commander in Chief powers than operating 
steel mills under one set of labor regulations or another. So I 
do not think Youngstown reaches this commander in chief power.
    Senator Feingold. My question is, what limits are there 
under the doctrine?
    Mr. Woolsey. As one gets further away from what a Commander 
in Chief does in wartime, I think congressional counteraction, 
such as FISA or something else, begins to have more and more 
effect. I agree with Justice Jackson's underlying rationale in 
the concurring opinion in Youngstown. So if the President, for 
example, decided he needed to operate computer companies in 
order to have better computer chips, I think he loses under 
Youngstown, even if he tries to do it under his inherent 
commander in chief rationale.
    Senator Feingold. I will try to get an answer from 
everybody, so Professor Kmiec?
    Mr. Kmiec. Senator, I think Youngstown has been portrayed 
aptly as a limitation on Presidential power, clearly it was in 
that case, as applied. But there is also instruction from 
Justice Jackson in that case that the real purpose is to see 
that Congress and the President work together. Because he 
indicates that he can find apt quotations, as he says, to 
support the President's power independently and Congress's 
power independently, from materials that he described as 
enigmatic as the dreams of a pharaoh.
    The fact of the matter is, is that there are limits. Mr. 
Woolsey properly described them. The limits start to apply more 
soundly and more directly as you move away from military 
intelligence, battlefield intelligence, and what the Attorney 
General described to you when he was here, and that is, 
reasonable suspicion that a person is connected to al Qaeda or 
a related organization. That is--
    Senator Feingold. What about assassinating American 
citizens; is that prohibited?
    Mr. Kmiec. I think it clearly is by existing--
    Senator Feingold. By what?
    Mr. Kmiec. By existing Executive order as well--
    Senator Feingold. If that order was rescinded, what would 
prohibit it under your doctrine?
    Mr. Kmiec. I think you are asking what are the tactical 
judgments of the President in the time of war.
    Senator Feingold. Could the President make the tactical 
judgment to assassinate American citizens under the power you 
described?
    Mr. Kmiec. I do not believe he can.
    Senator Feingold. I do not think that is the logical 
extension of your argument.
    Professor Turner?
    Mr. Turner. Yes, sir. The reason the Founding Fathers 
largely cut Congress out of the detailed business of war is 
because they felt it could not keep secrets. I discuss that in 
my testimony. D-Day was not prebriefed to Congress. That did 
not mean that FDR thought he was doing something evil or 
illegal. It was because he understood that operational security 
and the lives of our troops depended upon keeping that 
operation a secret.
    Sure, the President could abuse these powers. Imagine if we 
focused instead on his power to order the use of lethal force. 
Could the President decide that a Senator he did not like was 
flying on an airplane out of France, and tell the military, 
``That is an al Qaeda plane; shoot it down?'' Possibly that 
could happen. If it did happen, there are tremendous checks 
within the executive branch that would undoubtedly bring it to 
light. There are over 200 employees in the NSA I.G. office 
alone.
    Senator Feingold. Sir, I have to move to the other people. 
Now, I am really getting worried.
    [Laughter.]
    Senator Feingold. Dean Koh?
    Mr. Koh. Youngstown is critical, Senator, because it states 
a vision of shared power and national security between 
Congress, the President and the courts. The vision that they 
are painting is one in which the President only has a role, and 
Congress and the courts can be ousted.
    Your example of assassination is apt in the sense that if 
would ordinarily be forbidden by a criminal statute, the 
President could override the criminal statute, as he has 
overridden FISA here.
    The only other limitation that would come in is the Fourth 
Amendment, which, of course, would limit him to reasonable 
searches and seizures. But the battlefield argument being uses 
makes everything ``reasonable.'' And also, you have the problem 
that the program perspective on this--and program 
preauthorization means you could sweep up in a dragnet a huge 
number of unreasonable searches looking for one reasonable 
search.
    So I think the answer to your question is, taken to its 
logical limit, there are no limits posed by the theories 
presented here.
    Senator Feingold. Thank you, Dean.
    Mr. Levy.
    Mr. Levy. If the President's inherent wartime powers were 
not limited by Congress, surely they would extend to roving 
wiretaps, to sneak-and-peek searches, to library record 
searches, to national security letters, all of which are now 
being vigorously debated in terms of reauthorizing the PATRIOT 
Act. What is the purpose of that debate if the President has 
inherent authority? And indeed, we have evidence that the 
President believes his inherent authority extends to such 
lengths. The President has used the same justification, namely 
the authorization to use military force, his Executive power, 
and commander in chief power, to authorize military tribunals 
without congressional authorization, secret CIA prisons, 
indefinite detention of Hamdi and Padilla, and enemy combatant 
declarations in Guantanamo without the hearings that are 
required by the Geneva Convention.
    Senator Feingold. Thank you, Mr. Levy, very much.
    Mr. Fein.
    Mr. Fein. I think the President's actions are more illegal 
than in Youngstown for two reasons. One, Youngstown related to 
seizure of private property, as opposed to invading privacy of 
conversation, which Justice Brandeis characterized as the most 
cherished right among civilized people.
    Second, in Youngstown, it was implied that Congress had 
turned down or had impliedly not authorized the seizure of the 
business. In this case, FISA has affirmatively said you cannot 
surveil outside of FISA, that it is the exclusive means for 
conducting electronic surveillance. So it is a much more 
affirmative assertion of congressional power than was at issue 
in Youngstown. In my judgment, therefore, if Youngstown is good 
law, this case is very easy.
    With regard to limits, it is clear that the President, in 
my judgment, has propounded a theory that would surely justify 
torture, claiming that we maybe can get better intelligence if 
we torture individuals irrespective of the Federal statute. The 
early decisions of the United States Supreme Court, Chief 
Justice Marshall, Little v. Barreme, U.S. v. Brown, they 
concern Presidential assertions of power far less weighty than 
the President's here, and were turned down. Namely, in U.S. v. 
Brown, the President asserted a power to confiscate enemy alien 
property in the United States during the War of 1812. And 
Supreme Court said, no, Congress is the only authority to 
condemn that property. In Little v. Barreme, the Congress said 
that the President could not intercept ships going from France 
to the United States, as opposed to going from the United 
States to France. Both upheld.
    And last, with regard to Mr. Turner's statement about 
secrecy, we built the Manhattan Project in secrecy, and 
Congress was consulted, in World War II. The Nazis, the 
Japanese did not get any fair warning.
    Thank you.
    Chairman Specter. Senator Feingold, you are almost 5 
minutes over.
    Senator Feingold. Just one question.
    Chairman Specter. We are going to have a--yeah, I know, but 
you keep re-asking it.
    [Laughter.]
    Chairman Specter. And it is true that the witnesses have 
done most of the talking. You have been very artful with your 5 
minutes.
    Mr. Gormley. Mr. Chairman, can I invoke the rule that the 
person from Pennsylvania gets at least 30 seconds?
    Chairman Specter. You could if there were any such rule.
    [Laughter.]
    Chairman Specter. Go ahead, Senator Feingold. Finish up.
    Senator Feingold. I just wanted to ask--
    Mr. Gormley. In the present posture, Senator, I don't think 
that there are any boundaries. Even Congress can't authorize 
the President to eviscerate the Fourth Amendment. And as I said 
in my testimony, homeland security includes protecting the Bill 
of Rights. So unless we are prepared to say a President can 
unilaterally suspend the Constitution indefinitely, I think the 
answer has to be that, after a period of time, you simply would 
have to amend the Constitution.
    Senator Feingold. Thank you, Mr. Chairman, for all the 
time.
    Chairman Specter. Thank you, Senator Feingold.
    Senator Hatch.
    Senator Hatch. Well, the Fourth Amendment does talk about 
reasonable search and seizures, and there is some real question 
whether there is reasonable cause to do this. I believe that I 
would come down on the side of reasonable cause.
    Mr. Woolsey, you started this off and you have been 
attacked ever since, to a degree. I would like to just spend a 
few minutes with you on this because I kind of think that the 
Curtis Wright case is a central case as well. In fact, maybe in 
this instance much more important than the Youngstown Sheet & 
Tube case.
    But I think you didn't have a chance to use some of your 
remarks--and I would just like to get your ideas on this. You 
say that ``the captured al Qaeda or Hezbollah computer 
contains, like Moussaoui's, a substantial number of e-mail 
addresses and phone numbers and we have only hours before the 
capture is known, during which time we must check out those 
numbers and addresses and others with whom they may have been 
in contact before the owners throw away their phones and change 
their e-mail addresses. How can an Attorney or a FISA court, 
even with amended procedures, make these decisions sufficiently 
quickly? The FISA court considered and deliberated about only 
1759 requests for warrants in all of 2004 and asked that 94 be 
modified before they were granted.'' And then you go on to list 
each of the FISA warrant application approaches in order to get 
a FISA warrant in individual cases.
    Now, with all due respect, other than with the possible 
exception of Mr. Woolsey, I don't think anybody on this panel--
and I may be wrong on this, but I don't think anybody on this 
panel has a full understanding of what really is being done 
here. But you say here that just to get a warrant for an 
individual before FISA, you make a warrant request form filled 
out by the FBI, the target and individuals identified, facts 
are set out establishing there is probable cause to believe 
that the individual is involved in terror or spying, details of 
the facilities and communications to be monitored are supplied, 
procedures are set forth to minimize the collection of 
information about people in the U.S., a field office supervisor 
then verifies and approves the request.
    And you go further. I mean, to me--well, let's just give 
the last few: FBI special agents and attorneys at headquarters 
ensure that the form contains all required information and 
finish the form, the Director at the Agency certifies that the 
information being sought is necessary to protect the U.S. 
against actual potential attacks, spying, or international 
terrorism. It cannot be obtained by normal investigative 
techniques. At the Justice Department, lawyers at the Office of 
Intelligence Policy and Review draft a formal application based 
on the request. The Attorney General reviews and approves the 
application. Then you have to go to the FISA court and get the 
warrant. In each case.
    Is that right?
    Mr. Woolsey. That is--this summary is taken from the New 
York Times summary of the statute, Senator. I think this is the 
main problem. And it is not ill will on anyone's part. It is 
that the operation of Moore's law has given us the Internet and 
throw-away cellular phones and everything else, which 
terrorists have access to. That was not remotely envisioned in 
1978.
    Senator Hatch. And Moussaoui may have sent thousands of 
references.
    Mr. Woolsey. I don't know how many were on, but apparently 
there was a large number.
    Senator Hatch. Well, I am just saying, any number of these 
people may have had thousands of e-mail addresses, names, other 
references.
    Mr. Woolsey. Exactly. We captured Khalid Sheik Mohammed and 
got his computer. We have captured other hard disk drives from 
people. And when it is known that they are out of communication 
and they are not going to be back up for awhile, people suspect 
that they may be captured and, I would surmise, do things like 
throw away their cell phones and change to different chat rooms 
and the rest. This is a fast-operating world, this business of 
electronic battlefield surveillance. And it is not the 
President's fault that we are on the battlefield here. We 
didn't want to be on the battlefield. The battlefield is not, 
as Mr. Levy seems to suggest, just where we choose, like 
Afghanistan.
    Senator Hatch. Now, do you believe it is just Afghanistan 
and Iraq?
    Mr. Woolsey. Say again?
    Senator Hatch. Is the battlefield just Afghanistan and 
Iraq?
    Mr. Woolsey. Of course not. I mean, not this war that we 
are in--the Administration is starting to call it ``the long 
war,'' which I think is better than ``war against terrorism.'' 
The first part of my testimony suggests we really have two 
totalitarian movements, broadly speaking, fragmented into 
different parts, that have chosen to be at war with us. And 
they include elements, I think, within the Iranian government, 
they include Hezbollah in some circumstances, include different 
Sunni Islamist groups, include for some purposes the Wahhabis 
in Saudi Arabia. This is a complicated matter. We are in the 
gunsights of more than one international terrorist Islamist 
organizations that have ties, some of them, to states. And 
these are shifting alliances. This is a hard kind of thing to 
keep up with.
    And trying to do it spy-by-spy, case-by-case, pleading-by-
pleading, as one does in the FISA court, is not only difficult, 
it is absolutely impossible. The FISA court doesn't fit with 
this need poorly; it doesn't fit at all, as far as I am 
concerned.
    Senator Hatch. So the President has exercised his inherent 
power to do the best he can to protect the homeland?
    Mr. Woolsey. I believe in this regard, that is correct. I 
don't believe the President could order assassinations of 
Americans. I am something of a student of American military 
history and I can't think of a single case in all the wars we 
have been in where the President has ordered the assassination 
of an American citizen. But the President has collected a lot 
of battlefield intelligence in wartime.
    Senator Hatch. My time is up. Thank you.
    Chairman Specter. Thank you, Senator Hatch.
    Mr. Levy, you testified that the electronic surveillance of 
citizens other than al Qaeda is beyond the pale, in effect. 
Attorney General Gonzales testified that the program is 
triggered only when a career professional at the NSA has 
reasonable grounds to believe that one of the parties to a 
communication is a member or agent of al Qaeda or an affiliated 
terrorist organization. We have never had any specification as 
to how they can make that kind of a determination. It is 
difficult to see how they would do it, and I would be 
interested in how they do it. And then you have the career 
professional who makes the reasonable grounds determination, 
which obviously is not an impartial magistrate. But if there 
were a way--and I use the subjunctive there--that you knew that 
at one end of a conversation there was an agent of al Qaeda or 
an affiliated terrorist organization, would you think that 
permissible?
    Mr. Levy. It depends on who is the target of the 
surveillance, Senator. If the target of the surveillance is the 
agent, then surely it is permissible. And in fact, procedures 
are available under FISA to authorize that. If the target of 
the surveillance is a mere contact, somebody who may not even 
be aware that his conversation has intelligence value, the 
notion that the U.S. Government can put a wiretap or some other 
form of surveillance on that person's communications, his 
telephone calls and e-mails, is outside the scope of FISA.
    Chairman Specter. Do you think that necessity could be 
shown or a program could be justified where you have a career 
professional at NSA making that determination?
    Mr. Levy. I would be leery of having career professionals 
make these kinds of determinations. I mean, the very essence of 
our constitutional structures is sharing of power between 
branches. So if we're going to have a career professional 
providing input, that is all good and well, but I would like to 
see input provided to someone outside of the executive branch, 
preferably the FISA court, and that information can then be 
used and agreed upon by more than one branch of Government 
before this kind of surveillance is authorized.
    Again, the key point for me is who the target of the 
surveillance is. There is no restriction right now on 
intercepting communications that go to a U.S. person in the 
United States if the U.S. person in the United States has not 
been made the intentional target of the surveillance. So the 
suggestion that battlefield communications can't be 
intercepted, that is nonsense.
    Chairman Specter. Let me move now to Director Woolsey. The 
National Security Act of 1947, under the title of General 
Congressional Oversight Provisions, specifies that the 
President shall ensure that the congressional intelligence 
committees are kept fully and currently informed of the 
intelligence activities of the United States. And the statute, 
as you know, refers to the committees repeatedly. What do you 
make of this practice to limit it to the so-called Gang of 8 in 
derogation of what the statute requires when it refers to a 
Committee which has 15 members in the Senate.
    Mr. Woolsey. It does, Senator, but I think when you add the 
House Committee and the appropriations subcommittees and the 
staffs of all four of those, you get up in the ballpark of 200 
individuals.
    Chairman Specter. Well, you don't have the appropriations 
committees specified in the statutes. You have the intelligence 
committees. And you could read that to exclude the staff, but 
it is pretty hard to read it to exclude the Senators or the 
Members of the House.
    Mr. Woolsey. You could try to do that and--
    Chairman Specter. What is the justification? When you were 
Director of CIA under President Clinton's administration, did 
you limit the information to the so-called Gang of 8?
    Mr. Woolsey. No, but I frequently would go to the Chairman 
and Ranking Member of each of the two oversight committees and 
each of the two appropriations committees and leave it to their 
discretion as to how widely to hold a hearing, for example. But 
I never went precisely to the so-called Gang of 8 because that 
really is related, as I recall, to a later amendment dealing--
or Executive order dealing--with certain CIA covert actions, 
and we didn't have any that I thought needed to be limited to 
Gang-of-8 notification. So I always dealt with the Chairman and 
Ranking Member and left it, essentially, up to their judgment 
how widely to disseminate things. You and I, unfortunately, 
only overlapped for a very brief period of time. I wish you had 
been Chairman in 1993 and 1994 and not just come in in 1995, 
frankly.
    Chairman Specter. So do I.
    Before turning to Senator Schumer, who has just arrived, 
let me turn to Senator Kyl for a second round.
    Senator Kyl. Thank you, Mr. Chairman.
    Other than Professor Kmiec, do any of you believe that the 
FISA court could judge the constitutionality of the NSA 
program, as suggested by Senator Specter's proposed 
legislation, without an actual plaintiff who presents an actual 
case or controversy? Do any of you agree with him on that?
    Mr. Fein. I do, Senator Kyl. I think the way in which this 
could be done is if the Attorney General approached the FISA 
court with an application for a warrant and said we are using, 
as part of this application, information obtained from the 
NSA's warrantless surveillance program. Then it would be up to 
the court to decide whether that program was tainted and 
therefore the information could be utilized or not, and--
    Senator Kyl. Excuse me, so if the Attorney General 
approached the court with a warrant for an actual--
    Mr. Fein. Seeking a FISA warrant and saying to the FISA 
court, In support of this warrant I am utilizing the following 
information that we received from the NSA's warrantless 
surveillance program.
    Senator Kyl. Well, let me back up. There is a big 
difference between collecting intelligence, on the one hand, 
which is what this program is intending to do, and collecting 
evidence for prosecution in a case. And I think we need to keep 
that distinction in mind here. It may be that evidence 
collected under this program could not later be used to make a 
criminal case--
    Mr. Fein. I am not addressing that issue, Mr. Senator. What 
I am addressing is application of a warrant to collect foreign 
intelligence under FISA, not for a criminal prosecution. I am 
saying you go in seeking that warrant--
    Senator Kyl. And you think that could--all right. But are 
you suggesting it would have to be for a particular situation?
    Mr. Fein. For a particular search-warrant-under-FISA case.
    Senator Kyl. OK, that would presumably, then, offer up an 
actual case or controversy.
    Mr. Fein. Yes.
    Senator Kyl. All right. Well, my question was no case or 
controversy. So, all right.
    It seems to me--and if any of you--well, let me ask this. 
Several of you have noted the fact that there is a genuine 
legal argument to be made for power residing both in Congress 
and the Executive, and perhaps even a court review of that in a 
particular situation, and have noted that this is to some 
extent dependent upon the facts--is it domestic, is it not 
domestic? There were other distinctions made earlier.
    It seems to me that this is almost a classic case, like the 
war powers debate, where it is not arguable that both Congress 
and the Executive have authority. It is to some extent 
competing, to some extent overlapping. And it is very difficult 
to sort out in the abstract. It is the classic case where the 
court on political questions has avoided sometimes getting 
involved in the debate and where both parties, both the 
Congress and the President, have marched right up to the brink 
and have backed away and resolved the issue. I mean, we don't--
I mean, the President still says I don't have to follow the War 
Powers Act; Congress says yes, you do. And yet we both go on 
about our business warily working with each other in a way that 
doesn't set that conflict up, because we understand there are 
larger, more important things than necessarily having a fight 
that is going to try to force a court to resolve an issue where 
in fact the Founding Fathers and the Constitution does not 
provide a crystal-clear answer for every situation. And so I 
guess what I am arguing for here is a resolution of this that 
is sort of in the spirit that some of you have suggested.
    Let me just pose one hypothetical case. And this may be so 
hypothetical that it is not helpful or real. But 
hypothetically, if the Intelligence Committee or parts of the 
Intelligence Committee were regularly briefed--say, 45 days--on 
this program, and that that briefing included a certified IG 
report on whether there were ever any situations of purely 
domestic surveillance, inadvertent, in the program which would 
then enable Congress to suggest that the court ought to have a 
role in this, is it necessarily the case that the court would 
have to have a role in it prior to that situation?
    We are going to get into the admonition of the Chairman, so 
at least a couple of you. Professor Kmiec and then the two of 
you down at this end that had your hands up.
    Mr. Kmiec. I think both of your questions are is it more 
appropriate for a court or for an Inspector General, an 
Executive agent, to have this oversight responsibility.
    I think the reason Justice Powell suggested the court in 
the Keith case was because some of this evidence potentially 
can end up in a criminal prosecution. Not all does. Much of it 
is for purposes of prevention. And that is why there is a 
constitutional justification for the court, because--
    Senator Kyl. If I could just interrupt you. I am really 
sorry to do it, but the Chairman would get all over me if I 
don't here. I was not talking about the ultimate oversight. My 
hypothetical was you have the existing program, it is briefed 
to members of the Intelligence Committee, and if there is ever 
a situation where there is an inadvertent surveillance that is 
purely domestic, that involves no international context, that 
that would have to be told to the committee. And my 
hypothetical, really, is, in that intelligence-gathering 
context, given the fact that Congress would then have the 
ability to inject the judiciary, and if it decided to do so, 
would that be an appropriate way to begin to provide oversight?
    Mr. Kmiec. No question about it. It would be a more 
deferential form of oversight insofar as it would allow the 
Executive to more fully operate, and until a problem arose 
there would not be a referral to a court or to others for 
further proceeding. So it is tweaking the process of 
oversight--
    Senator Kyl. Admittedly.
    Mr. Kmiec [continuing]. And it is just simply more 
deferential to the Executive side.
    Senator Kyl. Thank you.
    Just the first two, would that be all right, Mr. Chairman, 
and then--
    Chairman Specter. Go ahead, Jon.
    Senator Kyl. Mr. Woolsey and Dean Koh.
    Mr. Woolsey. Senator Kyl, what you suggest is a rather 
close cousin to the amended version of Judge Posner's 
recommended oversight procedure that I include at the end of my 
testimony. I would far rather have the intelligence committees 
or some subset thereof, or perhaps the Group of 8--it would be 
up to Congress--be the oversight mechanism here than the FISA 
court. I don't believe courts are, as I said earlier, the right 
institution to provide oversight over intelligence collection 
as distinct from these individual cases we talked about.
    I think that a mechanism somewhat of that sort would be a 
compromise, somewhat analogous to the compromise or standoff 
that had developed with respect to war powers, and I think it 
is a good insight. I agree with it.
    Senator Kyl. Dean?
    Mr. Koh. Senator, I agreed with your main point, which is 
this is one of those areas in which Congress and the President 
make a bargain as to how they are going to do things, and then 
both sides are supposed to agree to stick within the bargain. 
If the FISA is not working, as Senator Hatch is suggesting, 
then the job of the President is to come to Congress, give 
those examples, and ask for an amendment to remove the court 
and insert various bodies of Congress into it. They have done 
that in the PATRIOT Act. They have come for various kinds of 
FISA amendments.
    Senator Kyl. Or--excuse me--we could do it on our own 
initiative.
    Mr. Koh. You could have hearings to do that based on 
knowing more--
    Senator Kyl. We could pass a law to do it.
    Mr. Koh. Well, it might help first to know exactly what it 
is that they are doing and what warrants they can't get. That 
is what I don't know. In what ways has the FISA court actually 
stood in the way of them getting warrants that they need to 
get?
    Now, they are suggesting that there are so many warrants 
they want to get that the FISA court, which has given 19,000 
warrants and rejected only five, won't give them. And they have 
never given us an example of a warrant that they can't get.
    So the real question is why is it that the FISA court is 
failing them? And why is it they need to involve the committees 
of Congress? But the point that the Chairman made is they have 
not even involved the intelligence committees, only the Gang of 
8 and on limited briefings.
    Senator Kyl. Thanks very much. And of course the answer 
that the administration gives to the question you posed is that 
that gets into the operational details of the program, which 
would make it very, very difficult to discuss publicly.
    Thank you, Mr. Chairman.
    Chairman Specter. Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman. And again, I want 
to thank you for your work in arranging these hearings. I think 
you have tried very hard to be fair. This panel shows it. It 
probably has one more witness against what the administration 
wants than for it overall. So despite your best efforts, which 
I have no problem with, you have been fair, as you usually are, 
or always are--almost always, I guess.
    I am worried about these hearings. The structure of the 
hearings I don't think is going to allow us to get to the heart 
of the matter. We had General Gonzales, who is a spokesperson 
for the administration. I don't begrudge him that; that is his 
job. Here today we have an extraordinarily distinguished panel 
of experts and thinkers, all smart on the law, smart on policy, 
but, unfortunately, ignorant of the details of the NSA 
surveillance program at issue here today. And while I and 
others on the Committee welcome your expert testimony, what we 
really must have before this process is over is the frank 
testimony of former administration officials who are familiar 
with the NSA program. What about the people who dissented? What 
about people who expressed reservations--Jim Comey, John 
Ashcroft, Jack Goldsmith? Hardly flaming liberals, all of whom 
had real problems with this. Will we ever hear from them?
    We have the 42-page white paper that is an after-the-fact 
defense of the NSA program, but what about the other papers? 
What about the contemporaneous legal memos that supposedly 
justified the NSA program? Will we ever see those?
    Now, after Attorney General Gonzales testified, the 
administration made clear they are going to assert every 
conceivable privilege, maybe with the exception of priest-
penitent, to prevent former officials from shedding light on 
their view of the legality of the program. More than 3 weeks 
have passed and we haven't even gotten answers to any of our 
followup questions to the Attorney General.
    So, Mr. Chairman, I fear that without hearing from the 
other witnesses and without receiving other materials, these 
hearings will be like a baseball game where only one team gets 
to bat. You guys are sort of referees and umpires there. But we 
haven't heard from the other team.
    So let me ask each of you, do you agree that it would be 
helpful to hear from those who are actually familiar with the 
NSA program, who had concerns within the administration? And do 
you believe it would be good for the administration to be 
flexible about the issue of privilege so the American people 
can get to the bottom of what went on here?
    I will take anybody who wants to say something.
    Mr. Fein. I agree, Mr. Senator, and I think that it is 
almost irresponsible for the Congress to enact legislation not 
knowing what the nature of the problem is. And the reason isn't 
your fault, it is that the administration has concealed 
everything, not just operational details. They haven't provided 
a glimpse as to the nature of this surveillance program. The 
way in which the Congress was clearly intended by the Founding 
Fathers to extract that kind of information is through the 
power of the purse. You simply enact a law that says the 
President has no authority to conduct electronic surveillance 
outside of FISA unless within 30 days, 60 days, he comes 
forward and explains the program to Congress and the need for 
any changes. That is the only way I think you are going to get 
this information. This bargaining is just going to last for 
years and have no end point.
    Senator Schumer. Thanks.
    Professor Koh, and then Mr. Levy.
    Mr. Koh. I would differ with Mr. Fein only in saying it is 
not almost irresponsible, it is irresponsible to pass new 
legislation without knowing exactly what went on. And without 
getting a commitment from the administration that, if you 
revise FISA, they will obey the new FISA, when they didn't obey 
the old FISA.
    Senator Schumer. Mr. Levy?
    Mr. Levy. One purpose of these hearings was to determine 
whether or not what the administration is engaged in is legal. 
And I don't believe that this Committee needs much more in the 
way of inputs to make that legal assessment. I do believe that 
the remedial question is quite separate; that is, what should 
we be doing about that? And that question, of course, depends 
heavily on operational details. It is impossible to craft a 
remedy if the administration believes that the existing 
procedures are too cumbersome or take too long unless we know 
whether the NSA program is essential, number one and number two 
whether it is effective. We don't know the answer to either of 
those questions.
    Senator Schumer. Does anyone dissent from the general view 
here?
    Mr. Kmiec. I dissent. I think the administration has been 
very forthcoming. I think the Attorney General has tried his 
best to outline the legal rationale, which I think is a 
plausible one. But I think, with all due respect, Senator, the 
purpose of this Committee is not recrimination. It is for the 
very purpose that Justice Jackson outlined in Youngstown, and 
that is to have this Congress and the President work together 
to solve the basic problem. And the basic problem is we are 
fighting a novel war where we have specific needs of 
surveillance and intelligence that both require us to preserve 
the civil liberties of individual citizens in ways that are 
differently challenged because of the nature of that war.
    So what we need is a programmatic way to have a detached 
set of eyes check the responsibility of the Executive.
    Senator Schumer. But don't you think, sir, that having 
people--
    Chairman Specter. Senator Schumer, your time has expired. 
As I said when we began the hearings at 9:30 and before we 
started on the first round, the PATRIOT Act is on the floor. 
Some of us are going to have to be there before noon and we had 
targeted a conclusion at about 11:30. Finish your last 
question, but we are going to have to move on.
    Senator Schumer. OK, I was just saying to Professor Kmiec, 
doesn't it make eminent sense to do exactly what you are 
saying, that it would help to find some people who not only 
have a great deal of legal knowledge but who were on the ground 
and the time and realized the subtleties and difficulties that 
I am very well aware of. I mean, I hardly have an absolutist 
position on this. And to not have someone like Jim Comey, the 
premier terrorist prosecutor, around, who knows both the 
Constitution and the difficulty in prosecuting people in these 
difficult times, as you say, deprives us of the kind of key 
input that we need. You don't agree with that view?
    Mr. Kmiec. Well, I think it will unnecessarily provoke a 
dispute over executive privilege and deliberative process, and 
all of that ends up being kind of a principled dog fight 
between this body and the Executive. That is not helpful, in my 
judgment, to actually solving the immediate problem, and that 
is how to get a proper authorization, a specific authorization 
for the authority that the President believes he has as a 
constitutional matter.
    Chairman Specter. We are going to have to go now to Senator 
Hatch and then Senator Kennedy.
    Senator Hatch.
    Senator Hatch. I just want to say this is a particularly 
profound panel of experts. I really have enjoyed every one of 
you. I have listened very carefully to every one of your 
testimonies here today.
    I do think, Senator Schumer, you would have a little bit 
of--I thought Bob Levy's testimony was particularly important, 
as I did all of them, but I think you would find a little 
difficulty not considering New York as a battleground in this 
unusual war on terror and that only Afghanistan or Iraq 
constitute that. I am not sure that is what you said, but that 
is the way I--
    Senator Schumer. No, it is not.
    Senator Hatch. I didn't think so. I hope not. I wanted to 
make that clear.
    But let me just clarify your position, some of you who care 
to respond, your position on a few points based on your 
understanding of the law. If the Government obtains information 
through the NSA program, do you believe, as a matter of law, 
that this information can be used in support of applications 
for a court order under the FISA statute?
    Mr. Fein. I would say no.
    Mr. Levy. I would agree. To the extent that the NSA program 
is illegal, as I believe it is, then any information--
    Senator Hatch. Well, do you believe that any fruit of the 
poisonous tree arguments are valid in this matter?
    Mr. Kmiec. I don't think there is an easy answer to that 
question, Senator. I think the answer turns--to the extent that 
there is derivative information that is used for purposes of 
bringing criminal charges against individuals--on the nature of 
those criminal charges. Are we talking about sabotage? Are we 
talking about materially advancing terrorism? Or are we talking 
about some independent drug crime or something else? I think 
the constitutional question is different in each case and I 
think the court would practically examine those issues--
    Senator Hatch. Let me go a little bit further here. 
Professor Koh, I didn't mean to cut you--
    Mr. Koh. Senator, the very question you ask shows the way 
in which the program has cast doubt on the credibility of 
evidence and the usability of evidence. That is exactly what 
FISA was supposed to do, to create a process where evidence 
obtained through FISA warrants could be used. And now this 
extra-legal program is not only putting into jeopardy that 
evidence, but also the warrants that is based on that evidence, 
and bringing the entire FISA scheme under a cloud.
    Senator Hatch. Well, I don't agree with that. Let me ask 
this--did you have a comment?
    Mr. Woolsey. Just a quick point, Senator Hatch. I think the 
proposal that I mentioned by Judge Posner has some real merit 
here, because one thing it does--by having a statutory 
declaration of a national emergency and a Presidential 
declaration that this particular type of surveillance is 
necessary--is narrowly define the purpose. It narrowly defines 
national security; for example, with respect to terrorism it 
does not involve ecoterrorism and the like. And so one has the 
surveillance focused on precisely what the administration says 
it is concerned about, which is violent terrorists abroad 
communicating with people in the United States.
    I think under those circumstances one still should not be 
able to use the fruits of this surveillance in a criminal 
prosecution. But there would be less conflict under Judge 
Posner's approach than under some of the others.
    Senator Hatch. I don't think that--I don't believe that any 
of you believe that information obtained under the NSA program 
may be legally used in support of an application for a Title 18 
warrant, where you believe that one of the parties has been 
determined to be an al Qaeda affiliate but is--or has not been 
determined to be an al Qaeda affiliate but is just a common 
criminal, such as a drug dealer.
    Let me ask this question. Can information obtained from the 
NSA program, but found not to be connected to al Qaeda 
activities or associates, be used by agencies like the IRS or 
DHS for non-terrorist proceedings such as tax evasion 
proceedings or immigration proceedings? Just yes or no.
    Mr. Levy. Not under Judge Posner's proposal and not under 
mine.
    Senator Hatch. I agree. The administration says in its 42-
page legal opinion that earlier presidents have used 
surveillance programs like the NAS program in other war-time 
situations. Do any of you believe that the facts support this 
assertion, and do you believe that the presence of the current 
FISA statutes affects this argument?
    Mr. Fein. Well, I think that the earlier claims were 
without FISA, so you didn't have Congress speaking itself 
directly to the matter. The Supreme Court in U.S. v. Calandra 
said that wiretapping taken in violation of Title III can't be 
used in grand jury investigations. I don't see how there would 
be any deterrent, how there would be any teeth to the Fourth 
Amendment if you said the electronic surveillance, even if it 
is illegal, can be utilized and that there is no remedy for 
individual whose conversations have been illegally seized. 
There must be some remedy or else the right becomes totally 
hollow. That is the reason why the Supreme Court decided it 
would no longer tolerate Wolf v. Colorado and provided a remedy 
in Mapp v. Ohio and then the Bivens case.
    Senator Hatch. Senator Leahy is going to allow me to ask 
one more question, and I really appreciate it because it goes 
directly to his statute. And that is this: In preparation for 
this hearing, Senator Specter asked you all to review his draft 
bill. Now, the Specter bill contains a probable cause standard. 
Senator DeWine has suggested that a reasonable suspicion 
standard might be more appropriate for this type of program 
because, at this stage of an investigation, there may be 
relatively little known about the persons involved. And I would 
like to know what you think the appropriate standard should be.
    And let me tell you my problem. My problem is that I 
believe that you must have a probable cause standard to appear 
before FISA. But this type of surveillance is reasonable, but I 
don't know that it rises to the dignity of a probable cause 
standard. And unlike Dean Koh, I really believe that this is a 
very, very big problem here if we are going to really protect 
the country. I would just like to know which standard do you 
think should be applicable, because I don't think you could do 
most of this work on a strictly probable cause basis. And I 
suggest that an awful lot of reasonable cause problems are 
never brought to FISA because that is all they can raise is a 
reasonable cause. And in spite of the almost 2000 FISA requests 
last year, we are talking about maybe many multiples of that.
    So I would like to just have your view on this.
    Mr. Woolsey. Senator Hatch, I think that is precisely the 
problem. If you try to fit this electronic battlefield mapping 
operation into the FISA warrant process and you lower the 
warrant requirement to one of only, say, ``reasonable 
suspicion'', or maybe even lower--``might yield useful 
information''--then you rapidly approach the point where the 
warrant process ceases to be a filter and judges have no basis 
for refusing to grant applications.
    Also, much of this is not about individuals who may be 
agents. Suppose al Qaeda calls someone in the United States and 
it is a false flag operation and they pretend to be Hezbollah, 
to get him to do something. Is that probable cause to believe 
he is an agent of al Qaeda? I don't think so. I don't know. And 
you might not even know who is at the other end on the cell 
phone. None of this concern and need really fits into warrants 
and individual case-by-case determination about single 
individuals. I think that is the essence of the problem.
    Mr. Kmiec. I also think that, in fairness to Senator 
Specter's draft, his definition of probable cause is different 
than probable cause of a specific individual or a particular 
crime or a crime that is being committed. The definition is 
probable cause to believe that the program will intercept 
communications of a foreign power or a foreign agent. And so he 
is really creating a programmatic form of approval before a 
neutral magistrate.
    Now, the benefit of the program warrant is the neutral 
magistrate and the demonstration of those facts that lead to 
that belief. I think it is important for us not to confuse old 
FISA with this reform of the FISA program that is being 
proposed.
    Mr. Koh. Senator, I think the question is probable cause of 
what. It is not saying in this bill probable cause that 
somebody on the conversation is from al Qaeda, it is saying 
probable cause to believe that the program will accept 
communications from persons who had communications with agents 
of foreign powers. I would say everybody in this room has had 
communications with a foreign government official when you get 
a visa. And if the program will accept the communications of 
everyone in this room, then it is not a program in which the 
probable cause standard is limiting the surveillance.
    Chairman Specter. Let us come back to Senator Hatch's 
question after Senator Kennedy is given a chance to answer. 
Playing referee on time is always hard here. Senator Feingold 
was almost 5 minutes over. Senator Hatch has an important 
question. Senator Kennedy has been waiting. Senator Hatch has 
been here all morning. You know, Senator Kennedy--
    Senator Kennedy. If he wants to--if Orrin wants to finish 
up--
    Senator Hatch. No, I am happy.
    Chairman Specter. The Chair recognizes Senator Kennedy.
    Senator Kennedy. Thank you.
    Thank you very much, Mr. Chairman. Thank all of you for 
being here.
    I remember a different time, 1976, President Ford, Attorney 
General Levi, understanding in the wake of all the Watergate 
and all the challenges that we had at that time we had to do 
something that was going to be in our national security 
interest. That is what we are talking about today, what is in 
our national security interest. And I remember myself and other 
members of our Judiciary Committee on four different occasions 
going down to the Justice Department with Attorney General Levi 
to work out that language, which was the FISA language. And 
finally, at the final roll call that was called in 1978, there 
was one vote in the U.S. Senate against it.
    And we took into consideration the dangers, the national 
security issues of secrecy at that time in the language which 
was included. And the members of this Committee understood it, 
the administration understood it. And with the intervention of 
President Ford, this was passed, bipartisan, in our national 
security interest.
    Now we have a wild-haired scheme which is going to open up, 
I think, the NSA individuals to suit, open up the telephone 
companies to suit, and is going to taint evidence as we are 
even seeing at the Fourth Circuit at the present time, where 
evidence has been introduced and there has been a delay in 
terms of sentencing and remanding of cases because whether that 
evidence is going to be tainted. And we will have al Qaeda out 
there, individuals that ought to be treated harshly and 
possibly creating the loopholes where they will escape.
    I think what is happening now is not in the national 
security interest. What we are looking for here in this 
Committee is something that would be in the national security 
interest and worked out in a bipartisan way. We asked the 
administration, if we have seen the example that has been done 
in a previous time, why not do that at this particular time. 
The administration doesn't care any more about national 
security than any individual members of this Committee or any 
of the members on this panel. And that, I think, is really the 
dilemma that we are facing at this time.
    I would ask Professor Koh--and I realize we are all short 
on time--and there is an additional question I want to ask 
about the Fourth Circuit and if members are familiar with what 
is happening there, the two cases there. Maybe there are 
members of the panel that understand it.
    But in your understanding of the history of the FISA--other 
members do as well--do you really question that this Committee 
and an administration couldn't get together and try and pass 
legislation that would be in the national security interest and 
meet the particular sort of constitutional issues and 
challenges, and also respect the Executive for their interests?
    Mr. Koh. I agree that this is the moment to have that kind 
of discussion, with the factual background of knowing exactly 
what warrantless surveillance programs have been going on for 
the last 4 years. I think the public has a right to know and 
the Committee has a right to know.
    I recall this discussion about trained NSA professionals. 
You will remember, Senator, that it was because of the work of 
trained NSA professionals who did all kinds of domestic 
wiretapping that we had a FISA in the first place. We weren't 
going to trust these professionals, we were going to trust an 
independent FISA court.
    Senator Kennedy. Professor Fein?
    Mr. Fein. I think that there is a misunderstanding that 
``checks and balances'' means ``weak government.'' And I want 
to call the Committee's attention to something that Justice 
Robert Jackson wrote. He was Attorney General under Roosevelt 
who was a strong proponent of Executive power. He was also the 
Nuremberg prosecutor. And he wrote, in West Virginia State 
Board of Education v. Barnett, assurance that rights are secure 
tends to diminish fear and jealousy of strong government and by 
making us feel safe to live under it makes for its better 
support. So that limits on power does not mean anemic 
government, it means stronger government.
    Mr. Gormley. Senator Kennedy, I do think that it is 
possible for Congress and the executive branch to get together 
to do this. This can't be a partisan issue. It really can't. 
And I think Senator Specter's bill is a good step toward that. 
I think it does have to be worked out. But you have to include 
the courts, as I said earlier. You cannot box them out. That is 
not our system of government. No one is saying that the 
President can't get the materials, the tools he needs to fight 
the war on terror. But certain procedures must be followed 
consistent with our Constitution. I think that is all that 
everyone is saying.
    Senator Kennedy. Just finally, and I will wind up with 
this, Mr. Chairman, on the Fourth Circuit, is Professor Koh or 
Professor Fein familiar with the two cases there that are at 
this time being reviewed?
    Mr. Fein. I am familiar with one case relating to 
sentencing of someone who pled guilty to an offense, and the 
court has now issued an order demanding that the administration 
respond to the demand to disclose whether the NSA surveillance 
was utilized in the investigation of the individual. And the 
administration has not yet responded.
    Senator Kennedy. Professor Koh, just on the--
    Mr. Koh. Yes, the other is the Padilla case, which was up 
at the Supreme Court, went back down. But it was before the 
District of South Carolina and then back up in the Fourth 
Circuit.
    I think the main point that you are making, Senator, which 
I could not agree with more is that every defendant's lawyer 
for a terrorist defendant has a new argument until this matter 
is clarified: exactly what evidence was legally obtained and 
what evidence was illegally obtained.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Hatch, do you want to complete the round robin on 
the question you had posed?
    Senator Hatch. I think Senator Leahy is--
    Senator Leahy. If you want to go ahead--
    Senator Hatch. No, no, that is fine. Unless somebody would 
care to--
    Mr. Gormley. Yes, Senator Hatch, I just wanted to say that 
I do think that this can be done within the court system. But I 
do think you must have particularity and you must have some of 
the procedures that are already set out in FISA and this draft 
legislation.
    But it is a question, as Dean Koh said, of ``probable cause 
of what? '' If you have probable cause that a person on one end 
of a communication is a terrorist, for instance, I don't think 
there is anything wrong with allowing what amounts to, based on 
reasonable suspicion, a stop-and-frisk of American citizens who 
may be in communication with them for a short period of time to 
see if you have anything there. And I think that courts can 
monitor that.
    So I think there is a way to do this, to deal with new 
technology but still to include the courts.
    Mr. Fein. Mr. Senator, that particular proposal of yours 
was raised by Senator DeWine in 2002. The Department of Justice 
testified and said no, it wasn't needed, the probable cause 
standard was good enough, and indeed lowering to that level 
would create constitutional qualms in the Department of 
Justice. That is the same Department that addressed this 
Committee on February 6th.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Leahy.
    Senator Leahy. Thank you.
    Let me just ask this question. You can answer it basically 
yes or no, so I will ask it of everybody. It has been reported 
that the President's domestic spying program was suspended in 
March 2004, then reauthorized with somewhat stricter standards 
after some in the administration raised doubts as to its 
legality. Attorney General Gonzales would not address that.
    So let me ask you this: Do any of you know what the scope 
and internal rules of the President's program were between 
October 2001, when it was first authorized, and March 2004, 
when it was reportedly suspended and overhauled?
    Mr. Woolsey. No.
    Mr. Koh. No.
    Mr. Levy. No.
    Mr. Kmiec. No.
    Mr. Fein. No.
    Mr. Turner. No.
    Mr. Gormley. No.
    Senator Leahy. So you can't really give an answer as to 
what the legality of the program was during those two and a 
half years, not knowing the full details of the program.
    Mr. Koh. Well, we know that the law in 1978 and now says 
that the way to do it is exclusively through FISA, and it 
wasn't done through FISA.
    Mr. Kmiec. Of course, FISA also provides that it can be 
authorized by other statutes and it also had a specific 
reservation for time of war.
    Senator Leahy. But if we don't know what is going on, we 
don't know whether it was authorized by any other statute.
    Mr. Kmiec. Without a doubt, the facts are important.
    Senator Leahy. And of course, the war on terrorists, we can 
assume throughout our lifetime we will be facing war on 
terrorists, and to what extent do we have extraordinary means 
throughout our lifetime. Now, we are not told how many 
Americans are affected by the program. In fact, we are not told 
whether it has produced any useful information at all. So it is 
hard to see how it satisfies the Fourth Amendment.
    If the program has provided valuable information--and so 
far, nobody in the administration says it has--but if it has, 
then the analysis may be different. Mr. Fein, what do you 
think?
    Mr. Fein. What you have raised is the dilemma that this 
Committee confronts. Unless you know what is going on, who is 
being targeted, and what the results are, you can't possibly 
make a Fourth Amendment evaluation because the Supreme Court 
has stated that the effectiveness certainly is an element of 
Fourth Amendment.
    Take, for example, 287,000 homes in Vermont, the latest 
census. If you decided to break and enter every single one of 
them on the understanding that, as a probability, you would 
uncover at least a handful of cases where you discover evidence 
of crime, then you would destroy the Fourth Amendment. Because 
you have to have something more than just a probable 
statistical likelihood of getting evidence to satisfy the 
Fourth Amendment. It has to rise above that minimal threshold.
    And the whole difficulty of addressing, for example, 
Senator Hatch's idea of a reasonable suspicion test is we don't 
even know what problem we are addressing, because the 
administration has concealed it from this Committee, from the 
American people.
    That is why I continue to suggest that the way responsibly 
to go forward is to insist that the administration come forward 
with the intelligence information that we have just asked 
about, or they will have their program shut down by the power 
of the purse within 30 days. The burden of persuasion should be 
on the President to explain why the Fourth Amendment needs to 
be compromised, not on this Committee.
    Senator Leahy. You know, it is funny, we got into, 
somewhat, these areas of where can we go in our laws, what 
could be set aside for facing terrorists. And it worries me, 
coming from a State, for example, where we strongly respect our 
privacy. And I remember my days as a prosecutor, when I had to 
make sure I got warrants.
    And I asked Professor Koh, when he came here testifying 
about Attorney General Gonzales, and I asked--Dean Koh, you 
probably remember this--I asked you whether the President could 
override our laws on torture and immunize those who commit 
torture under his order. Your answer was pretty succinct. You 
said no.
    So let me ask you a similar question. Can the President 
override our laws on domestic wiretapping and immunize those 
who engage in warrantless wiretapping under his order?
    Mr. Koh. I believe he cannot. And in page 2 of my 
testimony, I cite U.S. v. Smith, a case decided 200 years ago, 
by Justice Paterson. It says the President of the United States 
cannot control the statute nor dispense with its execution, and 
still less can he authorize a person to do what the law 
forbids.
    Senator Leahy. We sometimes get interesting things when 
this happens. We find that the administration has not complied 
with the mandatory 45-day review provision of the Exon-Florio 
law with regard to the Dubai Ports Commission. Now we see what 
happens. I come from a State where they follow rules, and I 
think--well, it is up to the Chairman. I saw Professor Turner's 
hand go up.
    Chairman Specter. You may proceed to answer the question, 
Professor Turner, then we are going to have to wrap up.
    Mr. Turner. I think it is very important. I started off 
with Marbury v. Madison, the idea that a statute that violates 
the Constitution is not law, and the President has discretion 
that is not intended to be checked. We don't have time to draw 
all those lines, but remember, Griffin Bell said that FISA 
could not take away the President's power in this area. The 
appeals court you set up under FISA has said the President has 
independent power to do this, and FISA could not take that 
away.
    The issue here is a struggle between the Fourth Amendment 
and the President's constitutional powers, in which FISA is a 
relatively minor player. It is very hard in 5 minutes or 30 
seconds to draw the line on those powers, but to me that is the 
issue you have to look at. Since the Jay Treaty debates, John 
Marshall was in the Congress and said the President is the 
final determinator of what documents in his branch he will 
share with Congress. The Supreme Court in Curtis Wright said 
the same thing. We have gotten away from that. And I think it 
is very important that we remember that the Constitution is the 
supreme law, and if Congress passes laws that violate the 
Constitution, it is Congress that is the law-breaker.
    Chairman Specter. Senator, what he says--Professor Koh 
wants to make a comment, and Mr. Levy, and that is going to be 
it. Will you please be brief, Dean Koh?
    Mr. Koh. If the President thinks that a law is 
unconstitutional, he can veto it, and Congress can override, 
and then they can test it in court, as was done with McCain-
Feingold, Gramm-Rudman, and a host of others. As we have 
recently seen with the McCain Amendment to the authorization 
act, the President can do a signing statement saying I think 
parts of it have to be administered in a certain way. One thing 
he can't do is pretend like he is complying with it and for 4 
years be operating an entirely different system that is not 
under statutory examination or involving judicial review.
    Chairman Specter. Mr. Levy, briefly.
    Mr. Levy. Just to be clear about what FISA did: FISA 
expanded, it amplified the President's authority. So the 
holding in the case that was just cited, the Sealed Case 
holding, was not that FISA encroached upon his authority, but 
rather that FISA, permissibly, expanded the President's 
authority without violating the Fourth Amendment. The 
restrictions in FISA simply explain the President's new and 
expanded authority, as authorized under the FISA statute.
    Chairman Specter. Thank you, all.
    Director Woolsey, you have a brief comment?
    Mr. Woolsey. Mr. Chairman, just one point. The intelligence 
provided about terrorists overseas in the course of this could 
be as important to us as the Enigma code-breaking was in World 
War II, and our breaking of the Japanese codes. Those were 
instrumental with respect to D-Day, Midway, and the rest. One 
cannot in public inform, as Mr. Fein says, who did what from 
the administration. What was the method? What the target was? 
Or, as Mr. Koh said, what kind of surveillance has been going 
on for the last 4 years? The public has the right to know. One 
cannot do that without informing al Qaeda. It is absolutely 
impossible.
    So I have no objection, as my testimony said, to a 
targeted, specific, in-house congressional examination of how 
to set up a check and balance here. But we cannot just sit here 
and talk about how everything needs to be public. I am sorry, 
but my background rather influences me on this particular 
matter.
    Thank you, Mr. Chairman.
    Chairman Specter. Well, thank you all very much. This has 
been a very lively hearing, especially at the end.
    We, as I said earlier, have floor business which a number 
of us have to attend to. And Senators are very busy and 
Senators come and go. You witnesses don't have to sit still, 
you are not under subpoena, you can leave if you choose. I 
think it has been a very informative hearing. And we will 
continue to work on the program and on the issues in the 
legislation.
    It is certainly true that we cannot approve a program that 
we don't understand and don't know about. There is no doubt 
about that. I agree that it would be irresponsible for us to do 
that, and we are not about to approve a program we don't 
understand. But we do have to have respect for the President 
and for the emergency situation, for the war we are in. And 
when he makes an argument on constitutional grounds, we have to 
give him some slack. If he has inherent Article II powers, that 
tops a statute.
    I do not believe we have to get agreement from him. Dean 
Koh suggests that he is not going to observe a new statute 
since, as Dean Koh argues, he hasn't observed FISA. I do not 
believe that the resolution for the authorization for the use 
of force changes FISA. I do not think that is so. And I think 
FISA requires a warrant. But it is a different issue as to 
constitutional powers which may trump FISA. And we will 
struggle to try to find out what the program is.
    When Senator Schumer says he would like to have Former 
Attorney General Ashcroft and Former Deputy Attorney General 
Comey in, so would I. And I called both of them and I talked to 
them. We had an agreement from the Attorney General in his 
testimony on February 6th that, taking one step at a time, he 
would not object to Attorney General Ashcroft's testimony and 
that others muddied the waters in terms of what we accomplished 
there. I wrote to the Attorney General telling him what Mr. 
Ashcroft and Mr. Comey had said and asking for administration 
authorization for them to testify.
    When it comes to the issue of legal interpretation, neither 
Comey nor Ashcroft can tell us a whole lot more than Attorney 
General Gonzales did; all are interpreting the law. It has been 
reported that there was some activity at a hospital. We would 
like to know--I would like to know--what happened at the 
hospital with Attorney General Ashcroft and Deputy Attorney 
General Comey. But does that intrude on executive privilege, on 
what the lawyers are talking about if they had disagreements?
    Well, the issue is not closed. We are going to continue to 
work on it.
    But meanwhile, the Majority Leader has called a meeting 
this afternoon--it is at 5:30, so I think I will be able to 
make it; I think this hearing will be over by then--where we 
are going to try to structure the legislation. We face very, 
very important issues. And I am sympathetic to the difficulty 
of telling Congress very much. I am not sympathetic to the 
administration leaks. We have a knotty problem here with very 
serious consequences on protecting America and very serious 
consequences on protecting civil rights, and you seven men have 
added substantially to our progress. You may not think so, but 
you have.
    Senator Leahy. Mr. Chairman, may I just say one word in 
there?
    Chairman Specter. One word? Yes, Patrick, one word.
    [Laughter.]
    Senator Leahy. You are absolutely right if we go into 
questions of executive privilege. But some assistant in the 
Attorney General's office is not the one who can claim 
executive privilege. The President is the only one that could. 
Mr. Fein raises a very good point--other than the fact that he 
completely snowed me; I could not name the number of households 
in Vermont.
    Chairman Specter. Well, Senator Leahy--
    Senator Leahy. But Mr. Chairman, I think you are to be 
applauded. And that will be my final word. You are to be 
applauded to have these hearings, but--
    Chairman Specter. If you are going to say that, you can go 
on.
    [Laughter.]
    Senator Leahy. But we have a way to go. We have a way to 
go. And if they want to claim executive privilege, make them 
actually do it.
    Chairman Specter. Well, Senator Leahy and I have disagreed 
on very little as we have worked through the Committee for the 
better part of 15 months, and we will continue to work on this 
issue. It is a big one and we are going to devote our full 
energies to it.
    That does conclude the hearing.
    [Whereupon, at 12 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]












          NSA III: WARTIME EXECUTIVE POWERS AND THE FISA COURT

                              ----------                              


                        TUESDAY, MARCH 28, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, DeWine, Graham, Leahy, 
Kennedy, Biden, Feinstein, Feingold and Durbin.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Ladies and gentlemen, it is 9:30 and the 
Judiciary Committee will now proceed with this hearing, 
captioned, Wartime Executive Powers of the President of the 
United States and the Foreign Intelligence Surveillance Court.
    We will be hearing today from two distinguished panels, the 
first consisting of judges who have had extensive experience 
with the Foreign Intelligence Surveillance Act, or who have 
been on the Foreign Intelligence Surveillance Court, and the 
fifth a key participant in the initial interpretation of the 
Foreign Intelligence Surveillance Act.
    This is the third hearing by the Judiciary Committee on 
this subject. Earlier this month we heard from the Attorney 
General, and a second hearing, a panel of experts, and the 
central thrust of this hearing is to determine what judicial 
review, if any, should be accorded the electronic surveillance 
program, which the President of the United States has 
disclosed.
    There is a contention by the administration that the 
Foreign Intelligence Surveillance Act was amended by the 
resolution authorizing the use of force on September 14th, 
2001. After extensive hearings, it is widely viewed that the 
Foreign Intelligence Surveillance Act has been violated. That 
is my view, because the Act provides that the exclusive remedy 
for electronic surveillance in the United States must be 
preceded by a warrant of authorization by the FISA Court or 
with an exception, 72 hours afterward, on an emergency 
situation.
    There is a second issue as to whether the President has 
inherent authority as Commander in Chief, to conduct the 
electronic surveillance. That, as I see it, would require 
knowing what the program is. It may well be that the program is 
within the President's inherent authority, but it seems to me 
that that determination has to be made in accordance with the 
tradition in America, by a court, by a judicial review.
    Our hearing today will take up the legislation which I have 
introduced, which essentially provides that the administration 
will have to submit the program to the Foreign Intelligence 
Surveillance Court, and the Court will make a determination as 
to constitutionality. The President says he is unwilling to 
share the information with the Intelligence Committees, as 
mandated by the National Security Act of 1947 because Congress 
leaks. That certainly is true, but so does the White House. But 
the FISA Court has an unblemished record of integrity and 
ability to maintain a secret, and they have the expertise to do 
the job.
    There has been recently created a Subcommittee on the 
Intelligence Committee of the U.S. Senate, none yet in the 
House. There is a controversy with some saying that they will 
not have a Subcommittee because the statute says that the 
review should be by the full committee, so we will wait to see 
what happens.
    There has been legislation introduced by Senator DeWine, 
which provides that the administration may conduct electronic 
surveillance without restraint for 45 days, and then at the end 
of 45 days, if there is sufficient evidence to go the FISA 
Court, they go there, but if there is not, then they go to the 
subcommittee of the Intelligence Committee. In my view, the 
subcommittee of the Intelligence Committee is no substitute for 
judicial review.
    These are, obviously, very, very weighty considerations. 
There is no doubt about the tremendous threat posed by al Qaeda 
to the security of the United States. That is a given, and 
recognized everywhere in the wake of the calamity on September 
11, 2001, and we do need to be secure, and we want the 
President to have the authority he needs. But this is a shared 
responsibility, as the Supreme Court has made clear. The 
President has extensive executive authority under Article II, 
but the Congress has extensive authority in the premises under 
Article I. And the arbiter under our system of laws are the 
courts, ultimately the Supreme Court of the United States.
    We have a very unusual panel here today, judges who have 
experience on the FISA Court, who recognize the importance of 
security and the importance of law enforcement, but also 
recognize the importance of civil liberties, and the work which 
they have done on that court.
    Let me yield at this point to the distinguished ranking 
member, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. I thank you for 
holding the hearing. We desperately need some answers to the 
basic questions about the President's decision to wiretap 
Americans on American soil without court approval, without 
attempting to comply with the Foreign Intelligence Surveillance 
Act.
    More than 3 months and two Committee hearings after the 
President was forced to acknowledge the program's existence, 
this Committee remains in the dark with regards to nearly every 
aspect of the program. As Senator Specter succinctly put it 
recently, we are still flying blind on a great deal of this.
    We had our first hearing on February 6th with Attorney 
General Gonzales, and his testimony was more obstructionist 
than enlightening. He flatly refused to discuss anything beyond 
those facts the President has publicly confirmed, nothing more. 
In other words, he would not tell us anything more than what we 
just read in the papers, and the stonewalling has gotten worse 
since then.
    Three weeks later, the Attorney General wrote an 
extraordinary letter to Chairman Specter, seeking to alter his 
live, televised testimony; meaning to make it even less 
responsive. That letter raised serious additional concerns 
about the scope of the administration's domestic spying 
activities, his shifting legal rationalizations, and of course, 
the Attorney General's own credibility. His letter admits that 
the Department's legal analysis has evolved over time. In other 
words, they had one reason when they started, changed the 
reason when it became public, and again, refused to answer the 
basic factual question of when the administration came out with 
its theory that the congressional resolution authorizing 
military force against al Qaeda and the attempt to reach Osama 
bin Laden, a failed attempt to reach him in Afghanistan, 
authorized warrantless domestic wiretapping of Americans.
    I can only infer that their theory was concocted long after 
they decided to ignore the law, and in my 32 years in the 
Senate, I have never seen anything like this ever.
    To fulfill our legislative function, we need to know what 
other invasions into American rights and privacy the 
administration believes were authorized and why, but they 
continue to stonewall.
    We received a response late last Friday to the priority 
questions we sent the Attorney General following his appearance 
on February 6. We got a response. We did not get any answers, 
but to virtually every question we got a response that was some 
version of, ``We cannot answer,'' ``We are not able to 
answer,'' ``We are not in a position to answer,'' ``It would be 
inappropriate for us to answer.'' In other words, take a long 
walk off a short pier.
    We had a second hearing on this program on February 28th. 
That was an academic panel with scholars. All of this is good 
discussion, but it is not oversight because they have no 
knowledge what is in the program.
    And our hearing today is somewhat the same. Our witnesses 
are experts in the Foreign Intelligence Surveillance Act, 
probably the best experts in the country, but they have no 
special knowledge of the President's program to wiretap 
Americans outside the Act. They cannot tell us any more than 
the very little we already know about what this administration 
has been doing under its theory of limitless Executive power.
    So we have an impasse. We have an administration that says 
we have the power to do whatever we want to do, and actually 
the Congress and the courts are irrelevant. That, of course, is 
nothing new from an obsessively secretive administration. It 
has classified historical documents, documents that have been 
out in the public for years, are suddenly being yanked out of 
the Archives and marked ``classified.'' They have conducted 
energy policy and attempted to outsource port security behind 
closed doors. It routinely blocked investigations and audits. 
They repeatedly harass whistleblowers. They have dismissively 
refused to cooperate with congressional oversight for more than 
5 years. They have a paranoid aversion to openness and 
accountability. They tell us, we will not tell you enough to do 
meaningful oversight of what we are doing, just trust us.
    How do we trust an administration when every day there is 
more evidence of its incompetence, including yesterday's 
revelation that our borders, even though they spent billions of 
dollars extra, our borders are not even secure from the 
simplest scheme to smuggle in a dirty bomb? How do we move 
forward to protect the security and rights and freedoms of the 
American people?
    I think first, if the rule of law means anything, we have 
to insist on real oversight and real accountability. The 
Chairman said it was a struggle to try to find out what the 
program is. We do not need to struggle. We have the 
constitutional right to compel information from this 
administration by subpoena.
    During the last 2 years of the Clinton administration, this 
Committee approved the issuance of more than a dozen subpoenas 
to the Department of Justice and former DOJ officials, both for 
documents, including legal memoranda, and for live testimony. 
So the question is whether we can do the same thing when it is 
a Republican administration.
    Second, if there is a real need for legislation to ease 
existing restrictions under FISA, we should, of course, pass 
it, as we have done before, on a bipartisan basis, and we have 
done this with numerous powers requested by the administration 
over the past 5 years, but we should not rush into that until 
we know it is happening.
    And finally, in discussing legislation, we should 
collectively draw a line. No new powers should be given to this 
administration until we secure a firm assurance they will 
faithfully execute and abide by the laws as written. We have 
seen them say they will not do that in the PATRIOT Act, even 
though we passed it. They will not do it under FISA even though 
we passed it. And as George Will pointed out, all those debates 
have been a meaningless charade if the administration's 
monarchical assertions of essentially unfettered Presidential 
power are taken seriously.
    So we are not here to play charades. We are here to 
legislate the law of the land, and I think at the very least, 
before we legislate, we ought to know what is going on. Nobody 
in this room really does.
    Thank you.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Senator Leahy.
    Before proceeding to the first witness, I want to read the 
first paragraph of a letter from Judge James Robertson of the 
United States District Court for the District of Columbia, who 
had been a member of the FISA Court, and shortly after the 
surveillance program was announced, Judge Robertson resigned 
from the FISA Court, so to say that he resigned because of the 
surveillance program. That has not been confirmed by Judge 
Robertson, but he had been a member of the Court and he did 
resign, and that time sequence is a matter of record.
    Without objection, I will put his entire letter to me, 
dated March 23rd, 2006 in the record, but I want to read the 
first paragraph where he endorses the legislation which I have 
proposed to give the FISA Court authority to review the 
electronic surveillance program. Judge Robertson writes as 
follows: ``Thank you for soliciting my views on your proposal, 
which I support, to give approval authority over the 
administration's electronic surveillance program to the Foreign 
Intelligence Surveillance Court. Seeking judicial approval for 
Government activities that implicate constitutional guarantees 
is, of course, the American way, but prudence in the handling 
of sensitive classified material suggests that only a limited 
number of judges should have the job. The Foreign Intelligence 
Surveillance Court is best situated to review the surveillance 
program. The judges are independent, appropriately cleared, 
experienced in intelligence matters, and have a perfect 
security record.''
    We turn now to our first witness, who is Magistrate Judge 
Allan Kornblum. The five judges met with me briefly this 
morning, and nominated and elected unanimously, Judge Kornblum 
to be the lead witness, and that has been done because of his 
very, very extensive experience with the FISA Court. The other 
judges will appear in alphabetical order.
    Judge Kornblum has an extraordinary academic record, a 
bachelor's degree from Michigan State University, a master's in 
public affairs from the Princeton University Woodrow Wilson 
School, a Ph.D. from Princeton in 1973. Then he served in the 
Department of Justice, and from 1979 to 1998, served as Deputy 
Counsel for Intelligence Operations at the Office of 
Intelligence Policy and Review, and for the 2 years from 1998 
to 2000, as Senior Counsel. And during that time he supervised 
the preparation of more than 10,000 FISA warrant applications, 
and is, I think, easily the most experienced person ever on the 
issues of the FISA Court.
    It is our custom, Judge Kornblum, to set the clock at 5 
o'clock--5 minutes--we had a long session yesterday. Before you 
give your testimony, it is our practice to swear witnesses. I 
would ask you all to rise.
    Do all of you solemnly swear that the testimony you will 
give to the Judiciary Committee will be the truth, the whole 
truth and nothing but the truth, so help you, God?
    Judge Kornblum. I do.
    Judge Baker. I do.
    Judge Brotman. I do.
    Judge Keenan. I do.
    Judge Stafford. I do.
    Chairman Specter. May the record show that each of the 
judges has answered in the affirmative.
    Judge Kornblum, you have an extensive background on the 
FISA Court, and you are going to be giving an extensive 
overview, and as I say, it is our custom to set the clock at 5 
minutes, but we would expect you to take more time as you need 
it, to give a full statement of the background and operation of 
the FISA Court and the analysis of the pending legislation by 
Senator DeWine and myself.
    The floor is yours.

   STATEMENT OF HON. ALLAN KORNBLUM, MAGISTRATE JUDGE, U.S. 
     DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, 
                      GAINESVILLE, FLORIDA

    Judge Kornblum. Thank you, Senator. I want to first express 
to you the humility that we feel, the five of us, at having the 
privilege to comment on this extraordinary proposed 
legislation, and I will be forthcoming and direct, but first I 
need to make two disclaimers. You should appreciate that we are 
not here to testify on behalf of the Federal Judiciary or the 
Judicial Conference, and we are not here to testify in any way 
representing the Foreign Intelligence Surveillance Court.
     I will take up three points in my introductory remarks, 
the importance of the FISA statute, the value of the proposal 
that you have made in the National Security Surveillance Act of 
2006, and I will also take up the question of Presidential 
authority to authorize warrantless surveillance of Americans. I 
would point out that I have carefully chosen the word 
``Presidential authority'' because I exercise that authority 
through a number of Attorneys General for almost 20 years, and 
further disclaim that we will not be testifying today with 
regard to the present program implemented by President Bush. 
The main reason we are not going to discuss that program is 
because we have never been briefed on it, we do not know what 
it involves, and we are not in a position to comment 
intelligently about it.
    I would also like to begin with our bottom line. Many 
judicial decisions begin with the court's holding, and so I 
would like to tell you right up front where we come out on 
these issues.
    We believe that the Fourth Amendment permits the Congress 
to empower the President to seek judicial warrants targeting 
networks of communications of terrorists abroad used by persons 
who are engaged in international terrorism or activities in 
preparation therefore, which is the FISA standard, without 
having specific probable cause for all of those in the 
terrorist network, including incidental collection of U.S. 
person communications, balanced by stringent minimization 
procedures enforced by the FISA Court. That is the sort of 
holding that we have come to, and the position which I will 
argue in the next 10 or 12 minutes.
    I would like to point out that I was very privileged in 
1978 to be appointed by Attorney General Griffin Bell to handle 
all of the FBI and NSA warrantless surveillance applications, 
and subsequently, the Foreign Intelligence Surveillance Act. 
The purpose of our testimony today will be to assist the 
Committee in legislating I this field.
    Because of my extensive experience in implementing the FISA 
statute from its inception in 1978, and my close lurking 
relationships with the FBI and NSA for more than 20 years, I am 
at a unique position to fully inform the Committee. ``Fully 
inform'' is the statutory provision in FISA, which I carried 
out for a number of years as the Deputy Counsel for 
Intelligence Operations. My presentation today is not going to 
be an academic discussion, but actually a discussion of my 
personal experiences, that is, I am going to be testifying from 
the things that I know happened of my own personal knowledge.
    I would like to begin by emphasizing one critical point. 
The FISA statute has been the most successful foreign 
intelligence program the United States has had since the code-
breaking operations of World War II, the deciphering of the 
Japanese codes and the German codes. It has allowed the 
intelligence agencies to conduct intelligence activities beyond 
what they ever expected, and to succeed in many ways which have 
never been revealed, because in the intelligence business, your 
success is measured by the fact that these things are never 
disclosed.
    I have also been involved in litigating more than 80 cases 
involving the FISA statute, and that also came to the Office of 
Intelligence Policy and Review, OIPR for short, and our office 
worked with the criminal division in preparing the briefs, both 
for the district courts and the appellate courts, on issues 
relating to FISA. I was very proud of the fact the there were 
more than 80 district and circuit court decisions upholding the 
constitutionality of the FISA statute and its use by the FBI 
and NSA. In my experience, the success of the FISA statute has 
been due to the professional efforts of hundreds of FBI agents 
and NSA officials, of numerous Department of Justice lawyers, 
of six Councils for Intelligence Policy, who I served under, 
and eight Attorneys General, who I served under, and not to 
mention the 30 or 35 Federal District Judges, such as those 
before you today, who have served on the FISA Court.
    I also want to emphasize that the real success of the FISA 
statute is that it has proven indisputably that intelligence 
and counterintelligence activities are fully enhanced by the 
rule of law, and in fact, are fully compatible with the rule of 
law.
    The final introductory point I would make is that the legal 
protections afforded to FBI agents and NSA personnel, and all 
of the others involved in clandestine collection and 
counterintelligence activities is under-appreciated by many 
people, but it is not under-appreciated by the men and women 
working for the FBI and NSA and the other intelligence agencies 
in the field.
    Having said that, I would now like to turn to Senator 
Specter's bill and discuss specifically some of the provisions 
and the constitutional framework why we believe that the 
statement I made a few moments ago about surveillance of 
communications networks, terrorist communications networks, is 
constitutional.
    As you know, the Fourth Amendment bars unreasonable 
searches and seizures, and the term ``unreasonable'' is the 
overarching concept. The substantive requirements of the Fourth 
Amendment are for probable cause and particularity. That 
standard of reasonableness applies to both substantive 
provisions, that is, what is probable cause and what is 
sufficient particularity are subject to the standard of 
reasonableness which the Supreme Court has indicated is subject 
to different standards, that is, the standards under the Fourth 
Amendment for criminal warrants, for arrest warrants, may be 
different from those necessary for foreign intelligence 
collection and counterintelligence investigations.
    Just to clarify that, NSA, the National Security Agency, is 
in the foreign intelligence business. They are concerned with 
the plans, capabilities, intentions of foreign governments. The 
FBI is concerned with counterintelligence work, with countering 
the efforts of hostile intelligence services and terrorists in 
the United States and abroad.
    The definitions in FISA include a definition of 
international terrorism, as well as definitions of clandestine 
intelligence activities and terrorist organizations. The 
critical thing about terrorist organizations is that they bear 
a remarkable similarity to foreign governments. They have large 
numbers of people. They operate clandestinely. They have 
training facilities. They have weapons and munitions. And 
today, they use the worldwide network of sophisticated 
communications to further their terrorist plans.
    The intelligence activities at issue in the proposed bill 
from Senator Specter, that is, Surveillance of Terrorist 
Communications Networks, are directed at foreign powers and 
their agents. They include primarily collection abroad. But 
since the networks are undetermined when these surveillances 
begin, it is not unreasonable to expect that some of those 
communications may come to persons in the United States. Based 
on my personal experience, I would think that they are 
relatively small in number. However, they are extremely 
important because communications to the United States from 
terrorist networks abroad would signal a presence in the United 
States of terrorist cells, as well as a forthcoming attack on 
the United States.
    In the 1972 landmark decision of U.S. v. U.S. District 
Court, after striking down the executive branch's warrantless 
surveillance program--by the way, in that case, it was a 
bombing case in Ann Arbor, Michigan of a CIA recruiting 
station. Nevertheless, the Supreme Court struck it down, but in 
doing so, the Supreme Court sent a signal to the Congress. The 
Supreme Court said that the Fourth Amendment was highly 
flexible, and that the standard for criminal, what they call 
ordinary crimes, what I would call traditional law enforcement, 
need not be the same as that for foreign intelligence 
collection, and that different standards for different 
Government purposes are compatible with the Fourth Amendment. 
That decision served as the basis for the FISA statute.
    There was actually a FISA statute from 1976, supported by 
Attorney General Levi and President Ford, that never passed. It 
was the Act of 1978, championed by Attorney General Griffin 
Bell and President Carter that actually passed, when I became 
to be involved in these intelligence activities. The reason I 
got involved is I was originally hired in 1975 to write the 
FBI's guidelines for domestic security an counterintelligence 
work. When that was done, some staff unit was necessary to 
apply the guidelines and then to handle the warrantless 
surveillances, and then the FISA surveillances. So I turned out 
to be the natural repository for that authority.
    Because of the differences between traditional enforcement 
and the intelligence gathering requirements of the Fourth 
Amendment, the standard for intelligence gathering may be 
substantially different from those of traditional law 
enforcement. Notice I have used the word ``different,'' not 
``lower.'' In other words, under Rule 41 of the Federal Rules 
of Criminal Procedure, if you want an arrest warrant, you must 
convince a judge there is probable cause to believe that 
somebody has committed a crime, and then you must particularly 
describe that person. If you want a search warrant, you need 
probable cause to believe that the place to be searched 
contains the contraband of illegal substances, and you must 
describe that place with particularity.
    Under the FISA statute, you need probable cause to believe 
that someone is a foreign power or an agent of a foreign power. 
You must also describe with some particularity what you want to 
seize, and in the case of FISA, what you want to seize is 
foreign intelligence information.
    One of the critical factors of this is that the 
information, which is often foreign intelligence, can often be 
considered criminal evidence. That has always been a 
complicating factor in the operation of the FISA statute. I 
think that for the purpose of Senator Specter's bill, the 
critical factor here is that, in targeting terrorist 
communications networks abroad and applying the standard of 
reasonableness, you have to look at the fact that the 
terrorists are located outside the United States. They are 
overseas in foreign lands, using foreign languages and modern 
modes of communications to carry out their terrorism. Thus, it 
would be unreasonable to expect U.S. intelligence agencies to 
know in advance the identity or identities of all of the people 
in these intelligence networks, where they are located, what 
their telephone numbers are, what their e-mail addresses are. 
Indeed, this is the very purpose of the surveillances, to 
identify these people and neutralize their terrorist 
activities.
    As I mentioned, U.S. persons may be in the network or chain 
of communications of known terrorists, but there will 
undoubtedly be many other people in the communications network 
who are known to the intelligence agencies. Some of them may 
include U.S. persons; thus, it is perfectly logical and 
reasonable to expect that, although the program is targeted 
against terrorist networks abroad, communications may come to 
the United States and are of great intelligence interest.
    The situation is not unlike things I have seen as a 
magistrate judge in drug trafficking, where the DEA and State 
officers are able to secure a cell phone used by a drug dealer. 
They look at the records of the cell phone. They see he has 
talked to other cell phones. And the people on those cell 
phones have talked to other people on cell phones. And so the 
DEA begins to track all of the people to identify the people in 
the network of drug trafficking. But until you get the records 
from the communications companies that keep these phone 
records, until you determine what the pattern of operation is, 
until you determine the identities of these people, it can take 
more than a year. And that was a case I recently saw in 
Gainesville.
    However, we do not have that time in dealing with 
international terrorism. Thus, as phone communications or e-
mail communications are moving rapidly in international 
commerce, the intelligence agencies need to follow those 
communications without coming back to the FISA Court to 
specifically identify each individual in the network the way 
the law enforcement officers do in the drug-trafficking 
networks. And that is where I ended up a few minutes ago; that 
is, the Fourth Amendment permits Congress to empower the 
President to seek judicial warrants targeting networks of 
communications of terrorists abroad without having specific 
probable cause for all of those in the network, including the 
incidental collection of U.S. person communications. And the 
critical factor here is the reasonableness standard in the 
Fourth Amendment.
    The Fourth Amendment is not a suicide pact. It is intended 
to be a check on Government authority, and what is required is 
a reasonable application of that authority. And so when you are 
dealing with these communications networks worldwide--Saudi 
Arabia, Pakistan, Dubai, and all the countries in Southeast 
Asia--we cannot--that is, U.S. intelligence cannot know who all 
these people are and come to court, and each time someone is 
identified in the network, to rush back in the next morning and 
come to court. So the Government and the intelligence community 
needs a reasonable amount of time to gather this information 
and analyze and determine who are the real terrorists and who 
are the people who are being contacted but not necessarily 
involved in terrorism.
    These collection programs would be primarily focused on 
networks outside the U.S., supported by probable cause. I 
believe your bill calls for identifying at least one person in 
the network, but not requiring the identification of all of the 
persons in the network. And we support that basic concept 
because it would be unreasonable to expect the Government to 
have that information and present it to the judges. But 
balanced against that broad collection is restrictive 
minimization procedures, and I don't think many people 
understand what minimization procedures are, and so I am going 
to explain them. It is not a difficult concept.
    Most foreign intelligence information is collected in 
foreign languages. Much of it is encoded or encrypted or uses 
vague concepts. For example, terrorists might say, ``Is 
everything ready for the wedding? Have all the presents for the 
wedding been gathered?'' when referring to terrorist 
activities. So the first step in minimization is that the 
information collected, whether in an electronic surveillance or 
a search, needs to be translated or decoded and put into an 
intelligible form. Once it is in an intelligible form, then the 
intelligence agencies can make an analysis. Is it foreign 
intelligence information? And if so, how does it fit into the 
big picture? And if it is not, then we should not be keeping 
it.
    Thus, in discussing this with your staff, I suggested some 
changes to the bill, simple ones. For example, in Section 701, 
where it talks about program, it is often misleading, and some 
people, I think, have misunderstood the purpose of the bill to 
think that the bill would allow targeting of just generic 
programs as opposed to specific terrorist networks. So when the 
definition of your program in Section 701(5), where it says, 
``The term `electronic surveillance program' means a program to 
engage in electronic surveillance,'' I would add ``targeting 
terrorist communications networks.'' That is what the program 
is about--``targeting terrorist communications networks.''
    Chairman Specter. Judge Kornblum, how much more time do you 
think you will require?
    Judge Kornblum. Five minutes?
    Chairman Specter. Thank you.
    Judge Kornblum. I can stop now if you--
    Chairman Specter. No. Proceed. Five minutes would be fine.
    Judge Kornblum. I wrote the original sets of minimization 
procedures, which have been in use by the FBI and NSA since 
1978. They have been amended from time to time to deal with new 
problems. But what I would see is, under your statute, broad 
collection, including incidental collection of Americans, if 
that should come about, but with stringent minimization at the 
end of the surveillance period. That is, if the information is 
determined not to be foreign intelligence, it should be 
discarded. If it is foreign intelligence, it should be used to 
produce additional applications in a FISA Court. But there is 
going to be a large body of information about which the 
intelligence community would not have had an opportunity to do 
a complete analysis and determine if it is foreign 
intelligence. In those cases, I would allow the Government to 
come to the FISA Court and seek a motion to allow the 
Government to continue to retain the information for continued 
analysis until such time with continuing Court approval.
    And I will now just spend a few minutes talking about 
Presidential authority. Again, I am not talking about the 
President's program.
    Presidential authority to conduct wireless surveillance in 
the United States I believe exists, but it is not the 
President's job to determine what that authority is. It is the 
job of the judiciary. Just as the judiciary determines the 
extent of Congress's authority to legislate, so it determines 
the Executive's authority to carry out his executive 
responsibilities. The President's intelligence authorities come 
from three brief elements in Article II: the Executive power is 
vested exclusively in the President; so is much of the 
responsibility as commander in chief; as well as his 
responsibility to conduct foreign affairs. All three are the 
underpinnings for the President's intelligence authorities. 
Most of the authority I see referred to in the press calls it 
``inherent authority.'' I am very wary of inherent authority. 
It sounds like King George. It sounds like the kind of 
authority that comes to the head of a nation through 
international law.
    As you know, in Article I, section 8, Congress has 
enumerated powers as well as the power to legislate all 
enactments necessary and proper to their specific authorities, 
and I believe that is what the President has, similar authority 
to take executive action necessary and proper to carry out his 
enumerated responsibilities of which today we are only talking 
about surveillance of Americans.
    Again, I emphasize that it is the judicial decisions that 
define the President's authority. These decisions pre-date the 
FISA statute, and I was reviewing the FBI and NSA applications 
for wireless surveillance. Those surveillances by law were 
transferred to the FISA Court in 1978, and actually when it 
began in May 1979. However, the FISA statute has very specific 
definitions, and there are intelligence activities that fall 
outside the FISA statute. Those activities went forward and 
have continued to this day and are still being done under the 
President's authorities set forth in the Executive orders 
describing U.S. intelligence activities.
    There were three orders: President Ford's Order, 11905; 
President Carter's Order, 12036; and the current Order, 12333, 
which was issued by President Reagan in December of 1981. That 
Order has been used by all of the Presidents following 
President Reagan without change, and I was responsible for 
processing those applications. They go to the Attorney General 
based on the delegation of authority. I have asked the staff to 
give you a copy of the current Executive order, and that is the 
authority that is being used today to some extent.
    The Presidential authority that is being used today is 
being used unilaterally. I think all of the judges agree with 
me that when the President operates unilaterally, his power is 
at its lowest ebb, as has been mentioned in judicial decisions. 
But when Congress passes a law, such as one authorizing the 
surveillance program targeting communications networks, when 
the Congress does that and the judiciary has a role in 
overseeing it, then the executive branch's authority is as its 
maximum. What that means is they can do things, I believe, 
under an amended FISA statute that they cannot do now.
    For example, the President's program says that the 
President reviews it every 45 days, but I would think, if 
Congress authorized the program and the Court oversaw it, that 
the surveillance programs could run for 90 days.
    Chairman Specter. Judge Kornblum, would you summarize at 
this point?
    Judge Kornblum. I will go back to what I started with, that 
I think and the judges all think that Congress can empower the 
President to conduct broad foreign intelligence surveillance 
programs targeting the communications networks of terrorists 
abroad, that the program can be monitored effectively by the 
FISA Court, that security can be maintained, and the bottom 
line would be an enhanced foreign intelligence collection 
program.
    Chairman Specter. Thank you very much, Judge Kornblum.
    Senator Feingold. Mr. Chairman, could I just have 30 
seconds? I just need to explain why I have to leave at this 
point, if I could. I would appreciate it, Mr. Chairman. I just 
want 30 seconds.
    Chairman Specter. Go ahead.
    Senator Feingold. I was on the bipartisan delegation that 
went to Iraq this week, and the President has asked that we 
come to the White House now to brief him on that. Obviously, I 
regard this hearing as extremely important, and I am keeping an 
open mind on the Chairman's legislative idea. I just want to 
comment, after having listened to Judge Kornblum, and I will 
have to read the transcript with regard to the others.
    I don't think anyone could reasonably take what the judge 
has said to suggest that there is legal authority for what--
    Chairman Specter. Senator Feingold--
    Senator Feingold [continuing]. The President is doing now.
    Chairman Specter. Senator Feingold, if you--
    Senator Feingold. That is all I--
    Chairman Specter [continuing]. Want to explain your 
departure, we understand that.
    Senator Feingold. I just wanted to put that on the record.
    Chairman Specter. But we do want to proceed in an orderly 
way here, and everybody is waiting to have a turn to comment.
    Let us turn now to Judge Baker, who received his bachelor's 
degree from the University of Illinois, his law degree from the 
University of Illinois College of Law, appointed to the United 
States District Court for the Eastern District of Illinois in 
1978, served as Chief Judge from 1984 to 1991, was given senior 
status in 1994, and was appointed a judge on the U.S. Foreign 
Intelligence Surveillance Court in 1998 by Chief Justice 
Rehnquist.
    Judge Baker, thank you very much for the very thoughtful 
analysis which you have provided to the Committee, and we look 
forward to your testimony.

 STATEMENT OF HON. HAROLD A. BAKER, JUDGE, U.S. DISTRICT COURT 
     FOR THE CENTRAL DISTRICT OF ILLINOIS, URBANA, ILLINOIS

    Judge Baker. Thank you, Mr. Chairman, and I want to express 
my--this is not on? I will start again. Thank you, Mr. 
Chairman, and I want to express my appreciation for the 
privilege of being asked to come here and speak to the 
Committee.
    Like the other judges, I am only speaking individually. I 
am not expressing opinions on behalf of the FISA Court or its 
members, as they are presently constituted. And what I hope to 
comment on is in a constructive manner to strengthen Senator 
Specter's bill and the functions of the FISA Court, to 
strengthen the FISA Court. What Judge Kornblum said about the 
FISA Court being an invaluable tool to the intelligence 
community bears emphasis.
    The FISA statute--I suppose I only tell you what you know--
is the compromise that was worked out between the congressional 
right of oversight and the powers of the Executive in gathering 
foreign intelligence. And it ends up being a balance between 
the constitutional construction and pragmatic necessities. It 
ended up that the intelligence community needed court orders in 
order to gain access to the carriers, the communications 
carriers.
    One of the problems that seems to arise--and I mentioned 
this to Senator Specter--is the lack of understanding, it is 
amazing to me, on the part of the Justice Department and the 
intelligence community as to what probable cause has to be. 
They have some idea that probable cause is a high bar that they 
have to cross, and in foreign intelligence matters, it is not. 
And if they go read Illinois v. Gates and Maryland v. Pringle, 
where first Justice Rehnquist and, finally, in the Pringle case 
Chief Justice Rehnquist elaborates further, it comes down to a 
very practical, common-sense decision which in the case of 
foreign intelligence boils down to just a reasonable suspicion.
    The other aspect in the statute that bears discussing is 
minimization, and also, like determination of probable cause, 
minimization should be a judicial decision, an oversight by the 
judiciary of what the Executive is doing.
    I should call the attention of the Committee to the In Re 
Sealed decision that was decided by the FISA Court of Review, 
which put two limitations on the FISA Court that exist now: 
first, in determining probable cause, saying that except for 
clear error, the Court should not look past the determination 
by the Executive of the existence of probable cause to think 
the communications would contain foreign intelligence; and the 
other was that minimization is not or should not be solely a 
function for the Executive, and that it is subject to review, 
that the minimization standards established by the Attorney 
General are reasonable and intended to protect Fourth Amendment 
rights of United States persons.
    The point I wanted to stress--and I did with Senator 
Specter in my letter to him--was that the Congress should tell 
what its intention is, specifically what its intention is with 
regard to who has the right to decide probable cause, who has 
the right of oversight of minimization. And I see the clock 
ticking away. I think I am in an appellate court again. I would 
be delighted to answer questions that may be put to me by 
members of the Committee.
    Thank you, Senator.
    Chairman Specter. Thank you very much, Judge Baker.
    Our next witness is Judge Stanley Brotman from the United 
States District Court of New Jersey, appointed there in 1975, 
bachelor's from Yale, law degree from Harvard, served in the 
Counterintelligence Corps in Office of Strategic Services in 
World War II and in the Korean War in Armed Forces Security, a 
member of the FISA Court from 1997 until 2004.
    Thank you for coming to Washington today, Judge Brotman, 
and we look forward to your testimony.

  STATEMENT OF HON. STANLEY S. BROTMAN, JUDGE, U.S. DISTRICT 
    COURT FOR THE DISTRICT OF NEW JERSEY, CAMDEN, NEW JERSEY

    Judge Brotman. Thank you, Senator. Good morning, everyone.
    Like the other judges, I also am honored to have been asked 
to appear before your Committee this morning to discuss the 
draft legislation entitled ``The National Security Surveillance 
Act of 2006.''
    As you mentioned, I served as a member of the United States 
Foreign Intelligence Surveillance Court from May 1997 to May 
2004. And I might add that, coincidentally, when I was recalled 
to active duty for the Korea campaign, I was assigned to an 
organization known as the Armed Forces Security Agency, which 
is the predecessor of the National Security Agency, only in 
those days it was operating solely from a military standpoint.
    I feel that since the other judges will be talking a little 
more of the legal intricacies, I would try and give you a 
picture of the FISA Court as it really works, who makes it 
work, its composition, the type of judge who serves on the 
Court, who appoints that person, and such other aspects of the 
operative procedure that I feel can be disclosed. And it is 
really to give you added confidence to those who do not know or 
have heard very little about this Court, what this Court really 
is and how it approaches the issues that come before it.
    Again, I also will say I am talking only for myself and not 
speaking for the FISA Court or any member of the FISA Court. My 
remarks are intended, as I said, to give you a feel for this 
Court.
    Starting with its inception in 1978, the process of 
appointment to the Court was handled through the appointment of 
each judge by the Chief Justice of the Supreme Court of the 
United States. The term is a 7-year term. A judge cannot be 
reappointed. When his term is over, it is over.
    Prior to 9/11, the Court was comprised of 7 members. 
Subsequent to 9/11, it was increased to its present membership 
of 11 members. There is a geographic mix, an ethnic mix. Each 
of these judges are United States District Court Article III 
judges who have had extensive trial experience and have had a 
very, very interesting dossier.
    How are the matters presented to the Court? What is the 
process? The process is by an application submitted by the 
requesting party's authority, passed through various stages of 
review within that particular authority, by the Attorney 
General and others, and then it is filed with the Court. In 
other words, there are extensive reviews even before it reaches 
the Court in terms of making sure it complied with the 
provisions of the statute and the facts of the situation.
    It is then thoroughly reviewed by the assigned judge, and 
the agent or representative of the applicant appear before the 
judge at a hearing that is held, and if there are no problems, 
an order is issued allowing the collection. If there are 
problems, the judge will raise them and send the application 
back for further review and presentation. The culture or the 
theory of the Court is we are not there to stop the collection 
of information. It is vital to the security of the United 
States. What we are there for is to help those who make the 
application by making sure they comply with the law, with the 
statute, and as I say, if they are not complying or something 
is lacking, we will send it back, and you resubmit it. And that 
discipline has grown up over the last 28 years. As I say to 
them, the application must meet the request of the statute and 
of the Congress in the legislation creating the Court. And 
there must be, as we review these applications, there must be a 
balance between the needs of the surveillance and the 
protection of the provisions of Article IV. This balance has 
already been discussed by both Allan and Harold, and I will not 
repeat it. But it is crucial, and that balance is not always 
the same. It depends on the application of what is being 
sought.
    The judges assigned to this Court--and I think I can say 
this about all of them--they really have dedicated themselves 
to doing the job that they are there for. They recognize the 
security of our country is at stake. They recognize the 
protections due our citizens. They are hard-working. At times I 
was visited in my home in South Jersey 2 or 3 o'clock in the 
morning to sign orders. I was even found out in California 
where I was attending a meeting at one time.
    FISA has worked, and worked well. It is a necessary Court, 
and its orders reflect the balance to which I have made 
reference. It has no axe to grind, this Court. Judicial review 
provides confidence to the citizens of our country to know that 
a court has looked on what is being sought. Times change, 
methodology changes, equipment changes, processes change. All 
these things can be and should be accommodated with the FISA 
Court. And, again, I say I support, as do the other judges, the 
proposed amendment by Senator Specter in his draft.
    I thank you very much.
    Chairman Specter. Thank you very much, Judge Brotman.
    Judge Brotman. Sorry I went over a minute and 46 seconds.
    Chairman Specter. You are welcome to the extra time, and 
beyond it, Judge Brotman. We appreciate your coming in. We are 
not running stopwatches on the Court. On some other witnesses, 
maybe yes, but not on the Court.
    We will turn now to Judge John F. Keenan from the United 
States District Court for the Southern District of New York, 
appointed in 1983. Judge Keenan is a graduate of Manhattan 
College, Fordham Law School, was in the Army from 1954 to 1956, 
an assistant district attorney in New York County to the famed 
prosecutor, D.A. Hogan, whom I worked with in the so-called 
good old days; Deputy State Attorney General and special 
prosecutor for corruption in the city of New York from 1976 to 
1979; appointed to the Foreign Intelligence Surveillance Court 
in 1994 and served there until the year 2001, and he is on 
senior status now.
    Thank you very much for joining us, Judge Keenan, and we 
look forward to your testimony.

 STATEMENT OF HON. JOHN F. KEENAN, JUDGE, U.S. DISTRICT COURT 
   FOR THE SOUTHERN DISTRICT OF NEW YORK, NEW YORK, NEW YORK

    Judge Keenan. As the other judges have said, it is an honor 
for me to have been asked by Senator Specter to appear before 
your Committee and testify concerning Senator Specter's 
proposed draft bill entitled ``The National Security 
Surveillance Act of 2006.'' As you heard, I served as a member 
of the United States Foreign Intelligence Surveillance Court 
from May 1994 until May of 2001. While I was in the Army, I 
served in the Far East in military intelligence in the Army 
Security Agency, which, as Judge Brotman said, was the 
precursor to the National Security Agency.
    During my tenure on the FISA Court, the Court consisted of 
seven district judges, no two of whom could be from the same 
circuit. We each served for 7-year terms that were staggered 
terms in the sense that one new judge would come on each year 
and one judge would go off. And those 7-year terms could not be 
extended.
    I know that Title 50, Sections 1801 and those sections that 
follow, the Foreign Intelligence Surveillance Act, or FISA, was 
amended after September 11th and that the Court now consists of 
11 district judges.
    FISA was originally enacted in 1978, and it is what I will 
call a Fourth Amendment statute. This is because in order to 
secure a FISA warrant, the Attorney General must establish 
probable cause. However, FISA probable cause is different than 
probable cause in the criminal context. In a FISA application, 
all the Government must show is that there is probable cause to 
believe that the target is a foreign power or the agent of a 
foreign power. In the case of a FISA warrant, the seizure is of 
foreign intelligence information.
    At present, as we have all heard here this morning, this 
whole area is one where there is considerable controversy and 
disagreement. It is not my purpose, nor do I think it 
appropriate, for me to allude to the politics of the subject. I 
respectfully suggest to you that FISA has been a valuable tool 
for the Nation in the collection of foreign intelligence.
    FISA can be improved and it should be improved to 
accommodate more modern technology, which was not contemplated 
in 1978 when the original law was enacted. I believe your 
legislation, Senator Specter, with certain modifications, would 
improve FISA very much.
    Contrary, I should say, to an editorial that appeared in 
the February 9, 2006, Wall Street Journal, FISA and the Foreign 
Intelligence Surveillance Court should not be abolished. Under 
Article II, section 2 of the Constitution, the Executive has 
great power and authority in this area, as you have already 
heard and as you know. So, too, does the legislature under 
Article I, section 8, as is recognized in your bill and as is 
set forth in your bill.
    Whatever legislation is enacted should accord these two 
principles sufficient and significant recognition. It is my 
understanding that the legislation before you proposes to 
supplement the present law, not to overrule, repeal, or 
supplant it. I am aware that Section 1805(f) of FISA was 
amended to authorize the Attorney General to employ electronic 
surveillance to obtain foreign intelligence without a court 
order for 72 hours in emergency situations. It is my 
understanding, based on an article in the March 9th New York 
Times, that there is a bill in the Senate Foreign Intelligence 
Committee seeking to allow warrants without court orders for up 
to 45 days.
    The National Security Surveillance Act of 2006 which is 
before you makes no reference to the 72-hour period and, thus, 
presumably leaves it in place. I would respectfully suggest 
that the period be increased to 7 days, or 168 hours, in 
emergency cases. This should be more than ample time to address 
any unforeseen emergencies if FISA was amended and extended to 
168 hours.
    The legislation before you presumably leaves in place 
Section 1803(b), which establishes a three-judge court of 
review over the FISA Court. In 2002, the review court sat for 
the first time and ruled at 310 Federal Reporter Third page 717 
that, ``FISA does not contemplate'' an en banc proceeding 
wherein all the judges sit contemporaneously. The legislation 
here makes no reference to en banc proceedings, and if there is 
a desire on the part of your Committee--and it seems to me in 
certain cases it might well be valuable to be able to have en 
banc proceedings, and since they are now outlawed, that might 
be a helpful addition to the legislation.
    The legislation before you in proposed Section 701 defines 
several terms. Among them is the term ``electronic 
surveillance.'' I respectfully point out that this term is 
already defined in present Section 1801(f) and that there are 
differences in the definitions which probably should be 
harmonized in the new legislation.
    Because of modern technology, the United States presence 
may well be in the network or the chain of communication of 
known terrorists. Concerning those terrorists, there may well 
be ample probable cause, but little or nothing may be known 
other than that he is receiving communications from the 
terrorists. I believe in the context of intelligence gathering 
that the Fourth Amendment allows Congress to empower the 
President to seek warrants targeting networks of communication 
used by people, including United States persons, where the 
network is engaged in terrorism, or activities related thereto, 
without having specific probable cause for all people in the 
network. I believe that your legislation, sir, accomplishes 
this important purpose and takes into account the sophisticated 
modern technology employed in present-day electronic 
communications while recognizing the need for minimization 
procedures.
    Thank you very much.
    [The prepared statement of Judge Keenan appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Judge Keenan.
    Our final witness on this panel is Judge William Stafford 
from the United States District Court for the Northern District 
of Florida. Judge Stafford is a transplanted Pennsylvanian, 
Mercer County, and his wife is from Franklin County, I was 
pleased to learn this morning; graduated from Temple University 
in 1953, bachelor's degree, and a law degree from Temple in 
1956; served as a Navy lieutenant for 4 years, was State 
Attorney for the First Judicial Circuit of Florida, the 
equivalent of a district attorney, and served as United States 
Attorney from 1969 to 1975 for the Northern District of 
Florida, when he was appointed to the district court. In 1996, 
he took senior status, was appointed to the Foreign 
Intelligence Surveillance Court, where he served until the year 
2003.
    We welcome you here, Judge Stafford, and the floor is 
yours.

 STATEMENT OF HON. WILLIAM STAFFORD, JR., JUDGE, U.S. DISTRICT 
 COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA, FLORIDA

    Judge Stafford. Mr. Chairman and members of the Committee, 
you have done me the honor of soliciting my comments on the 
draft legislation entitled ``The National Security Surveillance 
Act of 2006.'' It is my judgment that these proposed amendments 
to the FISA statute strike a reasonable balance between the 
President's power to conduct foreign affairs, including 
electronic surveillance, and the Congress's power of oversight 
over the same.
    By positing the power to review and/or authorize this 
surveillance in the FISA Court of the third branch, this 
legislation accommodates the power of the President to fulfill 
his duty to protect the Nation against terrorism from without, 
while the civil liberties of Americans are being watched over 
by judges whose lifetime appointments put them above the 
current political clamor.
    For those of us who came of age during the cold war, the 
world political scene and the communications universe have 
changed dramatically. It is well, then, that the FISA statute, 
created nearly 30 years ago, be looked at and revised in the 
light of the world as it really is in the year 2006. When FISA 
was first enacted in 1978, the Congress codified the 
President's power to conduct foreign intelligence surveillance 
and the method by which that could be done. In 1984, Congress 
amended the FISA statute to permit physical searches under the 
same foreign intelligence surveillance umbrella.
    The Berlin Wall has since come down, and other artificial 
borders have disappeared, while wireless computers, cellular 
telephones, and other electronic creations have reduced the 
communications distances to nanoseconds.
    The events of September 11, 2001, and their aftermath 
demonstrate that while it is indeed a different world in which 
we now live, constitutional principles still apply, and your 
proposed legislation accommodates both of these verities.
    Your amendments create an electronic surveillance program 
in which the Congress recognizes that it is ``not feasible to 
name every person or address every location'' and requires, 
again quoting, ``an extended period of electronic 
surveillance.''
    This is another recognition not only of the change in the 
world scene and in communications abilities, but also of the 
difference between traditional criminal prosecution and foreign 
intelligence gathering. By requiring a justification for 
continuing the surveillance and by establishing enhanced 
minimization procedures, these amendments offer a reasonable 
approach to meeting both the need for national security and for 
protecting Americans' civil liberties.
    Foreign intelligence surveillance, as has been mentioned, 
is a different form of executive function than is law 
enforcement, and your proposed legislation recognizes that. In 
my considered opinion, it is well that a different threshold is 
set for the initiation and/or the continuation of foreign 
intelligence surveillance as contrasted to the traditional 
Fourth Amendment probable cause that is required in criminal 
search and seizure warrant applications. This is because the 
purposes of the intrusion and collection of information in each 
case is different.
    In the typical Fourth Amendment search and seizure context, 
the individual and/or the place and/or the type of evidence are 
generally spelled out in the warrant application, and criminal 
prosecution is the end game. Under FISA, the governmental 
function is the gathering of foreign intelligence information. 
And while the intelligence gatherers are not required to turn a 
blind eye to violations of the criminal laws, prosecution is 
not the purpose for the initiation or continuation of the 
foreign intelligence surveillance.
    Spelling out in your legislation a different level for the 
initiation and/or continuation of foreign intelligence 
surveillance has the additional benefit, Mr. Chairman, of 
providing guidance for those courts that may be called upon to 
review the product of any such foreign intelligence 
surveillance. Should evidence, incidentally gathered as a 
result of a FISA warrant, be offered in a criminal case and 
there be challenged as a product of an unreasonable search and 
seizure, it would be comforting for the trial judge and for the 
court of appeals judges who may have the same issue on appeal 
to know that Congress made the deliberate choice to set a 
different threshold for foreign intelligence purposes.
    Illinois v. Gates has been mentioned. It is my recollection 
that arose in a criminal case context. And while the language 
of that opinion may well allow for different levels of 
consideration, depending upon the purpose for the warrant 
application, having the legislative intent clearly stated here 
removes any doubt as to what the Congress would authorize or 
sanction in the FISA context.
    Choice of language to accomplish this is for you as 
drafters, but I respectfully suggest that if it is the will of 
Congress to set a different standard for foreign intelligence 
surveillance gathering that you do so for the benefit of the 
other two branches of Government and for the American people.
    As I approach my 75th birthday, it remains my belief that 
our Nation is really held together by a couple pieces of 
paper--the Declaration of Independence and the Constitution--
and the belief of the American people that our system of 
Government works. FISA was created by Congress to clarify that 
the President had the authority to conduct foreign intelligence 
surveillance, but that the President would do so through a 
court composed of judges who had been nominated for lifetime 
appointments by a President and confirmed by the Senate, as 
provided in Article III of the Constitution. This arrangement 
seems to have worked well for everyone, and these amendments 
will, in my judgment, continue that arrangement into the real 
world of the 21st century.
    Thank you, sir.
    [The prepared statement of Judge Stafford appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Judge Stafford. Very 
profound. The two pieces of paper, so long as we follow them, 
have a great tradition for balance of power and for separation 
of power, which we are going to the heart of today.
    We will now begin the 5-minute rounds of questioning by 
members of the Senate, and I will begin, Judge Baker, by asking 
you about your testimony on minimization and establishing 
probable cause. And you are testifying that you think that the 
Foreign Intelligence Surveillance Court would be in a position 
to analyze the administration's program, whatever it turns out 
to be, to see to it that those two constitutional requirements 
are followed if my bill was enacted, correct?
    Judge Baker. Yes. I would urge you not to abandon the 
language of the Fourth Amendment of probable cause. Probable 
cause is the test, but there is a different probable cause that 
applies in a foreign intelligence case. And going back to how I 
feel the effectiveness of the FISA Court was limited by the In 
re Sealed Case decision saying that we should not look behind 
the minimization procedures, we had no right of review, I think 
that that is an oversight function that the Congress intended, 
and also that we should not look behind the determination of 
probable cause. Probable cause has always been a judicial 
determination when it comes to a warrant.
    Chairman Specter. And that can be accomplished with the 
legislation which I have proposed?
    Judge Baker. Absolutely. Yes, sir.
    Chairman Specter. Judge Stafford, you testified about the 
necessity for balance and cited the advances in electronic and 
wireless communication. And you are looking for a balance for 
national security and protecting civil liberties. And do you 
think that the legislation which I have proposed will take into 
account the modern technological advances and will the FISA 
Court review provide that kind of balance?
    Judge Stafford. Yes, sir, I do. I think you recognize that, 
as I indicated, it is not possible to name everyone, and, 
therefore--and as previously noted, the electronics just flies 
around this world so quickly, and the prospect of running to 
the Court every time, it seems to me, is not possible.
    So I think your legislation is broad enough to permit the 
gathering of the foreign intelligence information and the 
minimization procedures to strike from that anyone, 
particularly U.S. persons, who may not have any foreign 
intelligence purpose whatsoever, so their names could be 
eliminated.
    So I think the legislation will accomplish that, Senator.
    Chairman Specter. Judge Keenan, you have sounded a similar 
note, talking about technology, and the Foreign Intelligence 
Surveillance Act, as you testified, should accommodate those 
changes which we find today contrasted with 1978 when FISA was 
enacted. Do you think that the legislation which I have 
proposed will appropriately take into account those changes in 
technology and provide the kind of judicial review which would 
establish constitutionality and at the same time give 
appropriate balance to law enforcement?
    Judge Brotman. Yes, I do. Was that you? I am sorry.
    Chairman Specter. That is fine. We will get a double 
answer.
    Judge Keenan. I agree with Judge Brotman. I certainly--
    Chairman Specter. Before you answer, I want to be sure we 
have Judge Brotman on the record. I thought I heard you say, 
``Yes, I do''?
    Judge Brotman. Yes.
    Chairman Specter. OK.
    Judge Brotman. I was going to say something else, but I 
will let him answer first.
    Chairman Specter. OK.
    Judge Keenan. I certainly do agree that the legislation 
serves the purpose that you suggest, and if I may, most 
respectfully, I would like to repeat my suggestion that the 72-
hour provision be extended to 168 hours, in other words, 72 
days--from 72 hours to 7 days, I am sorry, the point being that 
emergencies sometimes arise.
    You heard from Judge Kornblum, I think, the number of steps 
and hurdles in a sense that the FISA application has to go 
through before it ever gets to the Court, and you heard it from 
Judge Brotman, to a judge of the Court. Emergencies do arise in 
life, and particularly with the type of communications we are 
talking about, which were never envisioned in 1978.
    When you were district attorney of Philadelphia and there 
was a wiretap, or when Senator Kennedy was an assistant up in 
Massachusetts and there was a wiretap, there were two people on 
the wire. That is not the way it is now, and that is what has 
to be covered, and you are covering it.
    Chairman Specter. Thank you, Judge Keenan.
    Judge Brotman, the red light went on, and I like to observe 
the red light so that everybody else does. The Chairman has to 
be the leader on that, and we will come back to you on my next 
round. I yield now--
    Senator Leahy. Go ahead if you want.
    Chairman Specter. No, no.
    Senator Leahy. Or take it from my time.
    Chairman Specter. I want to observe the time. Senator 
Leahy?
    Senator Leahy. Judge Keenan, you bring back some memories 
for a number of us on this panel who were prosecutors. I will 
not go on to telling war stories. I do have a question.
    It has been reported that the current presiding judge of 
the FISA Court, Judge Kollar-Kotelly, and her predecessor, 
Judge Lambreth, expressed doubts about the legality of the 
President's warrantless wiretapping program. Both insisted that 
information obtained through NSA surveillance not be used to 
gain warrants in the FISA Court. Do you agree with the decision 
of the presiding judges to bar the Justice Department from 
using information obtained from this program in their FISA 
applications, Judge Baker?
    Judge Baker. I am not familiar with her decision on that, 
and I would like you to excuse me from interfering in the 
proceedings of the existing Court. I don't know what has been 
presented to them. I am really in the dark with that, and for 
me to give an answer on it would be wild--would be speculation.
    Senator Leahy. Judge Brotman, do you have any different 
answer?
    Judge Brotman. No, I would give the same answer.
    Senator Leahy. Judge Keenan?
    Judge Keenan. I am afraid, Senator, I would give the same 
answer. I don't know what the program is, and I have never been 
briefed.
    Judge Stafford. I agree with my colleagues, Senator Leahy.
    Senator Leahy. OK. Well, let me ask you this then: Suppose 
the Justice Department wanted to test the legality of the NSA 
program, and let's assume for the moment that the facts are as 
I have described them by the chief judges. If they wanted to 
test the legality, couldn't they do that anytime by applying 
for a FISA warrant based expressly on evidence obtained through 
the program, that is, evidence obtained through a warrantless 
wiretap of an American inside the United States? If you have a 
case where evidence is obtained through a warrantless wiretap 
of an American inside the United States, the Justice Department 
now comes forward and asks for a FISA warrant based on that, on 
those facts would that not put the judge in a position to 
consider whether the evidence was obtained lawfully?
    Judge Baker. The judge would--
    Senator Leahy. Take it as a hypothetical.
    Judge Baker. Well, the judge would have to consider whether 
there was probable cause to believe that a foreign power was 
involved and that the communication was between a foreign power 
and there is probable cause to believe that the recipient is an 
agent. That would fall within the statute, if, if, if that was 
present.
    Senator Leahy. And that would be--
    Judge Baker. But I don't know that that would be present.
    Senator Leahy. And that would be--and doing that would 
really make the determination whether it was lawfully obtained, 
as well as asking the questions you have just referred to?
    Judge Baker. No, because it goes beyond the question of a 
foreign power and the agent of the foreign power, and it is 
raising the question of whether the President has the authority 
to do such a thing. And, again, I end up saying I cannot answer 
it because it would amount to speculation.
    Senator Leahy. You cannot answer a question whether if the 
Justice Department came in applying for a FISA warrant based 
expressly on evidence obtained through a warrantless wiretap of 
an American inside the United States, you couldn't make--you 
couldn't ask a question whether the evidence was obtained 
lawfully under FISA? That doesn't seem to make a lot of sense.
    I mean, I will put it another way. Suppose they came in for 
a warrant to search a safe deposit box, and it said we are 
developing our probable cause based on an earlier warrantless 
search of the suspect's home. Before you issued that search 
warrant for the safe deposit box, wouldn't you have to at least 
reach a question of the legality of the search of the home?
    Judge Baker. I might come to the conclusion that there was 
insufficient information because the information was not 
reliable to find probable cause. But I don't know that I have 
to go back and decide what the Executive is doing is legal or 
illegal. And--
    Senator Leahy. Well, then, let me wind up with this. Mr. 
Halperin is going to testify in the next panel. He said, 
``Should Congress seek to legislate based on the record 
currently before it, such legislation should respond to the 
specific needs that have been asserted by the Government rather 
than to conjecture as to what additional needs may exist.'' Do 
you disagree with that? You are saying you want to have the 
facts. Isn't Mr. Halperin saying the same thing?
    Judge Baker. I guess, you know, I came to talk about the 
proposed legislation and how it would assist and reinforce the 
FISA Court and whether--what the existing situation is now, 
whether something is legal or illegal goes beyond that, and 
that is why I am shying away from answering that.
    Senator Leahy. All right. With the heads shaking, I have a 
feeling I would get the same answer from Judge Brotman, Judge 
Keenan, and Judge Stafford.
    Judge Brotman. I would say this, Senator: that any 
application made to the FISA Court would have to be considered 
by the judge who receives that application. In the course of 
reviewing that application, if it doesn't meet with the 
statute, then the application is not granted. We have to use 
the information in the application and the information we have 
learned, and all of us become briefed on new programs, become 
briefed on new equipment. We see how things operate. We have to 
in order to do our job. But if an application comes in and does 
not meet what it should meet, it goes back.
    Judge Baker. Judge Kornblum reminds me, Senator Leahy, that 
in the Ames case, warrantless searches were disclosed to the 
Court, and the Court did proceed on the basis of those 
warrantless searches and further FISA surveillance.
    Senator Leahy. And didn't we amend FISA after that, at the 
request of the administration, to take care of cases like Ames?
    Judge Baker. Yes, it was amended.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Hatch?
    Senator Hatch. Well, I want to personally thank all of you 
for your service to our country, and we appreciate what you 
folks in the Federal judiciary are doing for all of us. We 
thank you for being here today, and we appreciate all the 
testimony we have had.
    I am going to direct my questions to you, Judge Kornblum, 
if I can, and anybody else who would care to respond, it would 
be fine with me.
    When the accusations against the President's authorization 
of the NSA terrorist surveillance program were put together, 
the picture looked something like this: The President is given 
a mandate from the Constitution as Commander in Chief. The 
Congress, in response to domestic spying by certain 
administrations in the 1960s, devised a legal avenue by which 
the administration can conduct surveillance on Americans, and 
thus the FISA Court was born. Therefore, goes the argument, if 
the administration is to engage in any kind of surveillance, it 
must go through the FISA court.
    One Senator described FISA like a trap, with two escape 
hatches. Another Senator says the FISA Court is not a tool, but 
the prescribed avenue which Congress has given for conducting 
surveillance.
    Now, if this line of reasoning is true, then the authority 
of the President has truly been diminished through the creation 
of FISA--the very thing FISA was not supposed to do.
    On top of that, the leak of this classified program has 
been hailed as ``a good thing'' by some Senators. Other 
Senators have said publicly that they would be willing to give 
the President the explicit authority to conduct this program if 
the President had just asked.
    Now, I submit that when we sought to give law enforcement 
officers authority to use time-tested tools from years of 
investigating health care fraud or mail fraud, just to mention 
a couple of matters, under the PATRIOT Act and, under the 
PATRIOT Act, use those same tools in terrorism investigations, 
the same Senators supported a filibuster of the PATRIOT Act.
    Now, this is not an administration spying on political 
enemies. This is a well-regulated, carefully targeted effort to 
stop terrorists. The administration discussed this program with 
several congressional Members, and apparently none of them 
raised issues that so many are now trying to make political hay 
of today. And to my knowledge, no member has publicly requested 
the administration to stop the program or they have not even 
suggested that funding for NSA should be curtailed.
    Now, Senator Specter has this bill, which is a good effort, 
in my view, that addresses the issue of the FISA Court and the 
power of the President to conduct surveillance on suspected 
terrorists.
    One of the criticisms circulating regarding this bill is 
the constitutionality of the proposed bill, and we are all 
concerned about that.
    So my question to you, Judge, and any of the other judges 
who care to comment, is this: If the administration files a 
request with the FISA Court for permission to conduct something 
like the current terrorist surveillance program, and the 
request is denied, and subsequent revised requests are denied, 
does the administration still have the options to pursue in the 
effort to foil the terrorists, or should the FISA Court's 
decision between a constitutionality infirm advisory opinion?
    Judge Kornblum. Well, you have overlooked the easy answer. 
There is a court of review, and just as back in 2001, when the 
administration objected to the Court's decision in In re: All 
Intelligence Matters, they appealed to the court of review, and 
that is the specific purpose for the court of review, so they 
would have a legitimate legal outlet to pursue.
    Senator Hatch. Except this may be a crucial time-
constraining situation where lives of Americans, maybe millions 
of lives of Americans may be at stake. So, again, would it be 
an advisory opinion, in your opinion, or would it not be?
    Judge Kornblum. No.
    Senator Hatch. Assuming that that situation is the 
situation, and I can tell you personally, that very well may be 
the situation.
    Judge Kornblum. If the facts were presented in the form 
prescribed in the FISA statute, and contained specific 
information regarding the foreign power, the agent of a foreign 
power, and explained how the surveillance was going to be 
conducted, and met all the requirements of the FISA statute, I 
would not think it is an advisory opinion. It would be a case 
of controversy for them to decide.
    Senator Hatch. Even if it involved very, very serious 
potential harm to millions of Americans?
    Judge Kornblum. I am not sure I understand your question, 
because it seemed to me almost all the FISAs.
    Senator Hatch. Let us say that we have some evidence that 
there is a widespread conspiracy to bring a nuclear device into 
America, and that the FISA Court decided that they have not met 
the requisites a couple of times. Is the President bound not to 
do anything, or is his only limitation to appeal the FISA 
Court's to a court of review, that might take a tremendous 
amount of time and might result in the loss of millions of 
lives?
    Judge Kornblum. Well, of course, the President would be 
relying on the Attorney General and now the new National 
Director of Foreign Intelligence for their recommendations, and 
I certainly do not consider myself an expert on Presidential 
authority, but I could see the President deciding that using 
what I called his necessary and proper authority, he would 
assume the risk, and order the executive action necessary, such 
as electronic surveillance despite the Court's approval--or 
disapproval. And I gather that's the premise you wanted me to 
address.
    The Court would disapprove the application, and there would 
be insufficient time to call in the court of review. What 
should the President do? Well, just as the President is now 
acting unilaterally, he might choose to do that. If he--
    Senator Hatch. And he might be right.
    Judge Kornblum. He might be right, yes.
    Chairman Specter. Thank you, Senator Hatch. We will pursue 
that question of whether he might be right when my turn comes.
    [Laughter.]
    Chairman Specter. Senator Feinstein was here under the 
early bird rule.
    Senator Feinstein. Thank you very much, Mr. Chairman. I 
think four of us on this Committee are also members of 
Intelligence, and two of us are part of the Subcommittee that 
has been briefed on the program, and has been out to the NSA 
and seen it. It was very interesting.
    What you said this morning was of great help to me. Two of 
you have said that the probable cause standard is not a bar, 
but it is really lower than a Title III probable cause. It is 
really reasonable suspicion. Do all of you agree with that? 
Does anybody not agree with that, that for the collection of 
intelligence, the probable cause standard is really reasonable 
suspicion?
    Judge Keenan. I am just not comfortable with those words. 
The reason that I say that is the cases all talk about 
``probable cause.'' As I think we all tried to articulate, in 
my view, FISA probable cause is different than criminal 
probable cause. All you need with FISA is to prove--not prove--
to establish probable cause--
    Senator Feinstein. I am sorry. I cannot hear you.
    Judge Keenan. I am sorry, excuse me. All you have to do 
with FISA, Senator, is establish that the target is an agent of 
a foreign power or a foreign power, and the purpose of it is to 
gain foreign intelligence. Once you have done that, you have 
cleared the probable cause hurdle for the FISA Act. If you want 
to--
    Senator Feinstein. There are a couple of other things here 
that were very useful. I think the extension of the 72 hours to 
7 days is very helpful. I think reviewing a program en banc is 
very helpful. There are a lot of contrasts that we have to deal 
with, and not the least of which is if you take something off a 
satellite, it is legal, if you take it off a wire, it is not 
without a warrant. And as you have adequately pointed out, the 
technology has changed so much that a law passed in 1978 really 
needs to be changed for a program as opposed to an individual 
warrant.
    I think there is justification for a program. The question 
now comes on: should the probable cause or reasonable suspicion 
standard be exercised? It certainly seems to me that a FISA 
Court, sitting en banc, is one appropriate standard.
    The other one comes down to probable cause or reasonable 
suspicion of what? Now, you have said agent of a foreign power 
or a foreign power, but it is also threat. It is also 
affiliation. I do not know that you would have sufficient 
probable cause in a program if it is just limited to an agent 
of a foreign power or a foreign power, because you are trying 
to develop connections, and you are trying to evaluate threat 
as well. Could you comment on that?
    Judge Baker. I think that all you have to do is look at 
Pringle, the most recent Supreme Court case, where they hark 
all the way back to Chief Justice Marshall, and say, ``a 
seizure under circumstances which warrant suspicion,'' and 
being the agent of the foreign power would be involved in these 
activities that you describe. So it seems perfectly clear to me 
that probable cause in such a situation is a very low bar, a 
very low hurdle to get over, to make a warranted surveillance.
    Senator Feinstein. In other words, the foreign power is 
outside the country. The target is in the country. You would 
also want to know, it seems to me, who that target called.
    Judge Baker. Precisely. No, you would go after that target 
too.
    Senator Feinstein. Right. And so there you are still agent 
of a foreign power, or foreign power, rather than a threat or a 
conspiracy?
    Judge Baker. The agent of the foreign power engaged in 
clandestine activities which are a threat to the United States. 
I mean, it is what that agent is doing that you will be looking 
at, or we suspect that he is doing, or she.
    Senator Feinstein. Thank you very much. Now, I want to 
clear something up. Judge Kornblum spoke about Congress's power 
to pass laws to allow the President to carry out domestic 
electronic surveillance, and we know that FISA is the exclusive 
means of so doing. Is such a law, that provides both the 
authority and the rules for carrying out that authority, are 
those rules then binding on the President?
    Judge Kornblum. No President has ever agreed to that. When 
the FISA statute was passed in 1978, it was not perfect 
harmony. The intelligence agencies were very reluctant to get 
involved in going to court. That reluctance changed over a 
short period of time, two or 3 years, when they realized they 
could do so much more than they had ever done before without 
court--
    Senator Feinstein. What do you think as a judge?
    Judge Kornblum. I think--as a Magistrate Judge, not a 
District Judge--that a President would be remiss in exercising 
his constitutional authority to say that ``I surrender all of 
my power to a statute,'' and, frankly, I doubt that Congress, 
in a statute, can take away the President's authority, not his 
inherent authority, but his necessary and proper authority.
    Senator Feinstein. I would like to go down the line if I 
could, Judge, please. Judge Baker?
    Judge Baker. I am going to pass to my colleagues since I 
answered before. I do not believe a President would surrender 
his power either.
    Senator Feinstein. So you do not believe a President would 
be bound by the rules and regulations of a statute; is that 
what you are saying?
    Judge Baker. No, I do not believe that, a President would 
say that.
    Senator Feinstein. That is my question.
    Judge Baker. No. I thought you were talking about the 
decision that the--
    Senator Feinstein. No. I am talking about FISA, and is a 
President bound by the rules and regulations of FISA?
    Judge Baker. If it is held constitutional and it is passed, 
I suppose, just everyone else, he is under the law too.
    Senator Feinstein. Judge?
    Judge Brotman. I would feel the same thing. I would feel 
the same way.
    Senator Feinstein. Judge Keenan?
    Judge Keenan. Certainly, the President is subject to the 
law, but by the same token, in emergency situations, as 
happened in the spring of 1861, if you remember--and we all 
do--President Lincoln suspended the writ of habeas corpus and 
got into a big argument with Chief Justice Taney, but the writ 
was suspended. Some of you probably have read the book late-
Chief Justice Rehnquist wrote, ``All the Laws But One,'' 
because in his inaugural speech--not his inaugural speech, but 
his speech on July 4th, 1861, President Lincoln said, 
essentially, ``Should we follow all the laws and have them all 
broken because of one?''
    Senator Feinstein. Judge?
    Judge Stafford. Everyone is bound by the law, but I do not 
believe, with all due respect, that even an Act of Congress can 
limit the President's power under the Necessary and Proper 
Clause under the Constitution. And it is hard for me to go 
further on the question that you pose, but I would think that 
the President's power is defined in the Constitution, and while 
he is bound to obey the law, I do not believe that the law can 
change that.
    Senator Feinstein. So then you all believe that FISA is 
essentially advisory when it comes to the President.
    Judge Stafford. No.
    Senator Feinstein. But that is what--my time is up, but 
this is an important point.
    Chairman Specter. Excuse me. It was four and a half minutes 
ago, but pursue the line to finish this question, Senator 
Feinstein.
    Senator Feinstein. I do not understand how a President 
cannot be bound by a law--
    Judge Baker. I could amend my answer saying that--
    Senator Feinstein [continuing]. But if he isn't, then the 
law is advisory it seems to me.
    Judge Baker. No. If there is enactment, statutory 
enactment, and it is constitutional enactment, the President 
ignores it at the President's peril.
    Senator Feinstein. Thank you, Mr. Chairman.
    Chairman Specter. Let me interpose for just a moment here. 
I think the thrust of what you are saying is the President is 
bound by statute like everyone else unless it impinges on his 
constitutional authority, and a statute cannot take away the 
President's constitutional authority. Anybody disagree with 
that?
    [No response.]
    Chairman Specter. Everybody agrees with that. And the 
question, whether he has constitutional authority, depends upon 
what he is doing, and that is why you have judicial review, and 
have to know what the program is to make an evaluation, as the 
courts have done consistently with the President's authority 
once you know what a program is. And that is the thrust of what 
you have testified to in chief when you have given your 5-
minute opening, and in response to my questions, that the FISA 
Court would have the authority to evaluate the specifics of the 
program and determine whether it is within the President's 
constitutional authority.
    Anybody disagree with that?
    Judge Kornblum. Senator, I would also reiterate that the 
President does not have a carte blanche, that the courts are 
the arm of Government that determines what the President's 
constitutional authority is, and over these past 25 years, in 
addition to the FISA statute, the President has continued to 
exercise his constitutional authority to authorize intelligence 
activities--
    Chairman Specter. I will come back to this when my turn 
comes, but in light of Senator Feinstein's questions, I just 
thought that little bit of clarification might be in order.
    Senator Kennedy.
    Senator Kennedy. Thank you very much, Mr. Chairman.
    Thank all of you. This has been enormously helpful, and I 
think all Americans ought to have a sense of confidence in 
those that are serving on the FISA Court. I certainly have been 
impressed by all of your presentations here, and reassured.
    Just to back very briefly, at the time that we passed that 
Act, we worked with President Ford and Attorney General Levi. 
They brought the members of this Committee down to the Justice 
Department. We worked it out in a calm and bipartisan way. The 
Foreign Intelligence Surveillance Act was passed 95 to 1 in 
1978. Many of us believe that it was enormously important, and 
I think history will show it.
    Now many of us wonder why we are not having a similar kind 
of a situation, why we cannot, with the new kinds of challenges 
that we are facing here in the country with 9/11, why we cannot 
work in a calm and bipartisan way. We did at that time. We had 
the threats from the Soviet Union. There were provisions that 
were put in there as a result of secret information, all of 
which worked out, and worked out very well.
    Now we have situations where we are having warrantless 
electronic surveillance on a number of individuals. Judge 
Baker, first of all, have the comments on the Chairman's 
proposal, have we all got the copies from your proposal? Has 
that been made available to all of us, Mr. Chairman, do you 
know, their comments on your proposal, do we all have those 
comments?
    Chairman Specter. I will make a part of the record Judge 
Baker's comments, which are in writing, but those are the only 
comments. I will put in the record whatever comments have been 
made.
    Senator Kennedy. Thank you.
    Second, this was originally going to be a hearing that was 
going to be a secret hearing. My question is, are we missing 
anything here that you would have told us. I mean, obviously, 
you can say, yes, a lot, and then everybody is going to want to 
know what. And then my next question, what is it, and we cannot 
hear it.
    But I am just wondering--I do not want to use up a lot of 
time on this, but are we getting the central thrust, or are we 
missing out on something here that we ought to sort of know 
about? Just very quickly, because I have a short time. Please, 
Judge Keenan?
    Judge Keenan. I don't know anything more than what I had to 
say. I have been off the Court since May of 2001, so I don't 
know anything about the present situation other than what I 
have read.
    Senator Kennedy. I just note that heads are going up and 
down that we are really not missing out on a great deal.
    Let me ask you if you have concerns about the potential 
impact on criminal prosecutions from evidence that is obtained 
from surveillance programs not approved by the FISA Court? 
Judge Baker?
    Judge Baker. Certainly. When you get to the District Court, 
I think that the prosecutor would have a real problem in trying 
to put forward evidence that had not been obtained with 
judicial imprimatur first. I would be very worried about that. 
Now, in the In re: Sealed Case, it really went up originally 
because the Attorney General took the position you could use 
FISA for law enforcement purposes, and I am the guy who has the 
singular notoriety of being the only FISA Judge in history who 
has ever been reversed, because I signed that order. And it 
went up, and you know, we never said that you couldn't down the 
line use it, or you couldn't initiate and control it by the 
criminal division.
    I would be very concerned when I got to the District Court, 
if I was a prosecutor, with that kind of evidence.
    Senator Kennedy. The rest, Judge Keenan, Judge Stafford, 
have similar concerns?
    Judge Keenan. I agree with Judge Baker.
    Senator Kennedy. So here we have a situation under the 
current Justice Department--I think most of us have at least 
drawn the conclusion that some of these leaks on NSA are 
because people are wondering about its constitutionality. We 
are going to find out in these courts whether the individuals, 
if they eventually get the al Qaeda and they are holding them, 
are generally thinking if you have a case that is just 
absolutely a closed case, that you might be able to get more 
information out of it. It enhances the Government's ability to 
get more information out of those individuals whether they 
think they might get off and beat the rap on this. And what I 
think I am hearing from you is that there is at least some 
concern about the question about the evidence that is obtained.
    Let me ask you this. What about the information, is the 
Government required to get a court order or some other written 
certification before the Government can listen to telephone 
calls or read through e-mails? What is your understanding of 
the current law, the requirements that you think that must be 
met before the Federal Government can obtain information from 
telephone companies?
    Judge Baker. For instance, we issues orders for--
    Senator Kennedy. Do they have to get some written kind of 
authority to turn these matters over under your understanding 
under the FISA?
    Judge Baker. That is the way it has been happening, 
absolutely.
    Senator Kennedy. Would you think that they would have to do 
it if they are doing some other kind of process or some other 
procedure, which has not been described in detail to us, but 
would you assume that they have to have the same kind of an--
    Judge Baker. I can only look back in history when the 
carriers refused to cooperate until they had a court order.
    Senator Kennedy. Others would believe that to be so as 
well.
    Just a final point. A point has been made about FISA being 
a rubber stamp. I think to the contrary. If you could outline 
just quickly, because my time is up, about the kinds of 
negotiations that are taking place. I understand there have 
been reviews of some of the request, I think 93 or 94 different 
instances where you have perfected these kinds of requests.
    Just a last point. In response to the earlier kinds of 
questions with Senator Feinstein, we provide, if the President 
had a real issue on an emergency, we have in the FISA have the 
72 hours in any event, so if they did not get the Court, the 
President could move ahead in the 72 hours I imagine. And as we 
remember when President Carter signed that, he effectively said 
he was going to be bound by the law. President Jimmy Carter 
said we are going to be bound. That was in his statement at the 
time. But would you just--I am exceeding my time--come back, 
any of the panel, talk just about these modifications. Can you 
describe about that process, or how you have altered or 
changed? Is it something that is done sometimes, infrequently, 
frequently? What can you tell us about it?
    Judge Kornblum. Senator, in supervising the submission of 
the applications to the Court, from time to time, members of 
the Court would express concern regarding certain aspects of an 
application, such as conflicting information on the probable 
cause or greater specificity on the means for the surveillance. 
We simply asked the Court for an opportunity to conduct further 
investigation or gather additional information, and file an 
amended application. And virtually every time that request was 
granted by the Court, and amended applications were filed and 
approved.
    Senator Kennedy. So it is more than a rubber stamp. This is 
the point I am trying to get to.
    Judge Baker. Oh, yes.
    Senator Kennedy. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Thanks to all the panel, and especially my friend, Judge 
Harold Baker. I am glad you are with us today.
    Judge Baker. Thank you.
    Senator Durbin. I am trying to follow the statement made by 
my colleague, Senator Hatch, in describing the FISA law, and he 
said at one point that it was not the intention to diminish the 
power of the President, FISA was not supposed to do that. But I 
cannot read that law without concluding that is exactly what 
Congress set out to do. By a vote of 95-1, they said that this 
was the exclusive means by which electronic surveillance and 
the interception of domestic wire, oral and electronic 
communications may be conducted.
    Now, there has been a larger question raised by the 
Chairman and by the members of the panel, as to whether the 
President has constitutional authority which supersedes any 
statute. It seems to me at this moment in time that the 
President, with his new wiretap program, had three options. He 
could follow the FISA law. He could ignore or violate the FISA 
law, or he could seek to change the law. We know for certain he 
did not take option No. 1, or No. 3. He did not follow the FISA 
law, nor did he seek to change it.
    Members of the Senate Judiciary Committee have been given 
proposals by the administration for the PATRIOT Act and its 
revisions after 9/11 to give new authority to the 
administration. Those provisions passed on a strong bipartisan 
vote.
    So my question is very straightforward. Is there anyone on 
the panel here who believes that the President did not violate 
the FISA law with the new wiretap program as he has described 
it?
    Judge Keenan. I don't know what the new program is, 
Senator, and that is the reason--
    Senator Durbin. If you could lean over a little closer to 
the mike.
    Judge Keenan. Sure, I'm sorry. I don't know what the new 
program is, Senator, and that's why I, in my prepared remarks 
and in my answers to other questions, I'm not in a position to 
offer any opinion about that. My understanding--and this is 
from what I have read in the lay press now--I understand, 
having read this, I believe, in the Wall Street Journal, that 
some judges of the Foreign Intelligence Court, present judges--
not any of us because we are not on it anymore, and certainly 
not me because I have been off it since 2001--some of the 
judges have been briefed on the program. I also understand, 
from what I have read in the lay press and what I heard from 
Senator Feinstein a few moments ago, that some Senators have 
been briefed. But I do now know what the program is, so I am 
not in a position to offer any comment at all about what the 
President's doing.
    Senator Durbin. Well, as we have heard it described--and I 
have not been briefed either, there are only a few Senators who 
have--it is the interception of domestic communications between 
people in the United States and those in foreign lands, and 
that strikes me as falling within the four corners of the FISA 
law as written.
    Judge Keenan. But you use the word in your introductory 
question and in that question, ``domestic,'' and as I 
understand from the lay press, again, this is international, it 
is not domestic. So that's why I'm not in a position to answer, 
sir.
    Judge Baker. Senator, did the statute limit the President? 
You created a balance between them, and I don't think it took 
away the inherent authority that Judge Kornblum talked about. 
He didn't call it ``inherent,'' he doesn't like that. But the 
whole thing is that if in the course of collecting the foreign 
stuff, you are also picking up domestic stuff, which apparently 
is happening, I don't know that that's--it becomes a real 
question, you know, is he under his inherent power? Is he 
running around the statute?
    I had a great thought later when you asked the hypothetical 
about some FISA judge turning down the application on one of 
these warrantless programs, that that could happen, but not if 
the Court is allowed to sit en banc. My experience and 
knowledge of those judges, that's just not going to happen, if 
they sit in en banc, where there is real problem or peril.
    Senator Durbin. May I ask one last question? In the 
proposal by Senator Specter under Section 702(a), it states, 
``The FISA Court shall have jurisdiction to issue an order 
under this title, lasting not longer than 45 days, that 
authorizes an electronic surveillance program.''
    By passing this, would we be ceding authority to this Court 
to authorize programs, electronic surveillance programs, 
currently not authorized under law?
    Judge Baker. It would be a different approach, certainly, 
wouldn't it, Allan?
    Judge Kornblum. The programs that are being used, of which 
I don't have any specific knowledge, are key to today's 
technology and to the terrorist organizations, wherever they 
may be. It's obvious, just as the years unfolded after 1978, 
that the intelligence threat changed. When we first started 
using FISA in 1978, the overwhelming number of targets were 
foreign governments, hypothetically, say the ``evil empire'' 
and Eastern European Bloc. However, as the world changed and 
the threat changed, so did the use of FISA. And by the time I 
left the FISA program, the balance between international 
terrorism and clandestine intelligence gathering, as the basis 
for the surveillances, had shifted dramatically to 
international terrorism.
    For example, the FBI has made international terrorism its 
No. 1 priority, its No. 1 objective. So if you authorize 
programs, as opposed to surveillances of specific individuals 
or specific countries, it's undoubtedly true that over time the 
programs will have to change to meet whatever the intelligence 
needs of the country are.
    Senator Durbin. I would just add that I think it goes 
without saying that every Member of the Senate on both sides of 
the table would agree that we want to give this administration 
the authority it needs to keep America safe and intercept all 
communications necessary for that to happen. But we thought 
that we had established a legal process by which any President 
could use that authority with at least some court approval, 
carrying on a grand tradition in our country that no Executive 
could act unilaterally.
    But I am concerned even in passing the Specter law as to 
whether this President or future Presidents would just ignore 
it and go back to a point made earlier, that a President, as 
you said earlier, would be remiss in surrendering his 
constitutional authority to a statute. If that is the case, 
then I wonder if, all of our efforts notwithstanding, the 
President can claim necessary and proper authority or whatever 
it might be and simply ignore what we have done.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Durbin.
    Pardon the interruptions from time to time. We are 
negotiating the immigration bill while this is in process and 
we are concerned about a substitute being offered and vitiating 
the order for a vote on cloture. We have a lot of transactions 
we have to handle, so sometimes we are distracted a little bit, 
but I want to come back. Senator Hatch has another commitment, 
so I am going to yield to him at this point.
    Senator Hatch. Thank you, Mr. Chairman. I appreciate that 
courtesy, and I want to personally thank you all for being 
here. I think you have done a very good job of trying to 
explain to us these principles that you all deal with or have 
dealt with in the past.
    I am familiar with the program and I have to say that I 
certainly agree with your proposition that the Congress cannot 
take away the President's power under Section 2 of the 
Constitution. I would even make the argument that the 
President's program meets the Fourth Amendment requirements of 
reasonable cause.
    But to make a long story short, I think you have been very 
helpful to the Committee here today and it has meant a lot to 
me. As you know, I have a tremendous regard for the Federal 
courts and for each of you. I appreciate all the work you are 
doing, and I do think it is a good thing if we can comply with 
the FISA statute. But this current statute is not adequate to 
take care of the problems that currently exist. I appreciate 
the distinguished Chairman and his efforts to try and come up 
with a statute that Presidents will comply with, or can comply 
with without taking away inherent powers, to use that term, 
that the President has under Article II or otherwise.
    Let me just ask one more question, and I appreciate the 
distinguished Chairman giving me this opportunity. Again, I 
will direct it to you, Judge Kornblum. I would appreciate 
anything any of the rest of you tremendous judges would care to 
add. I would just like some clarification on a few points.
    Based on your understanding of the law, if the government 
obtains information through the NSA program, do you believe, as 
a matter of law, that this information can be used in support 
of applications for a court under the FISA statute? And do you 
believe that any fruit of the poisonous tree arguments are 
valid? In other words, if they actually obtain information that 
would support applications for a court order under the FISA 
statute, would the fruit of the poisonous tree arguments be 
valid against that information?
    Judge Kornblum. I think the answer to both questions is 
yes. As we did in the Ames case, we explained to the FISA court 
that Attorney General Reno had approved six warrantless 
searches of Ames's home and office at the CIA. We did that in 
conjunction with the applications for continued electronic 
surveillance of Ames because the FISA statute at that time 
didn't permit surreptitious searches. The court considered it 
and approved the electronic surveillances.
    Ames never went to trial. He decided to plead guilty rather 
than have his wife face imprisonment. If he had gone to trial, 
his attorney, Plato Cacheris, would undoubtedly have challenged 
all of the evidence obtained in the warrantless searches. My 
personal belief is that when I persuaded Attorney General Reno 
to authorize the warrantless searches, she was doing so 
lawfully under the Truong-Humphrey line of cases in the Fourth 
Circuit, and, of course, Ames lived in Northern Virginia, which 
was in the Fourth Circuit.
    So you had a situation where, in the Ames case, you had 
warrantless electronic surveillance--I am sorry, warrantless 
physical searches approved by the Attorney General in full 
conformity with the law in the Eastern District of Virginia, 
and at the same time, you had FISA surveillances authorized by 
the FISA court. I think both would have been sustained, but 
there is an important difference between them.
    During the course of the trial, the FISA information, FISA 
applications would have been protected from discovery because 
FISA has that protective mechanism in it. Defense lawyers never 
get to see FISA applications. On the other hand, the 
warrantless searches authorized by Attorney General Reno would 
have been subject to full discovery, and whatever paperwork 
Attorney General Reno saw, what I had submitted to her would 
have been subject to disclosure and used by the District Court 
of the Eastern District of Virginia to determine whether the 
surveillances were lawfully authorized and conducted pursuant 
to the pre-FISA standard, even though it was conducted after 
FISA came into law, because the warrantless search was not 
available to the Government in the FISA statute.
    In the context of the present situation, the warrantless 
collections now being done by the President will be subject to 
the same discovery, that is, whatever legal mechanism was being 
authorized or was being followed to authorize the collection, 
if the President wanted to go forward with prosecution and use 
that evidence at trial, it would be subject to the Federal 
Rules of Criminal Procedure through the normal discovery. If 
the President--
    Senator Hatch. So there would definitely be protections for 
individuals?
    Judge Kornblum. Well, you have the Classified Information 
Procedures Act to deal with that, and if the situation became 
unbearable, the President could always withdraw prosecution or 
exert the State Secrets privilege to protect military--
    Senator Hatch. In either event, that would be a protection 
of the person accused?
    Judge Kornblum. Yes. Well, the State Secrets Act would, in 
effect, end the prosecution.
    Senator Hatch. Sure.
    Judge Kornblum. But the Federal Rules of Criminal Procedure 
would protect any defendant charged with evidence collected in 
the program.
    Senator Hatch. Do you mind, Mr. Chairman, if I ask just two 
more questions? I would be happy--
    Chairman Specter. Do I mind if you ask two more questions?
    Senator Hatch. If you do, I won't.
    Chairman Specter. I have already opened the door. Ask all 
the questions you want, Senator Hatch.
    Senator Hatch. Oh, I am just beginning, then. No, I am just 
kidding. I have two more, and please, any of the other judges 
who care to comment, I am not meaning to just make this a 
dialog between the two of us--
    Chairman Specter. You want two more questions and how many 
more answers?
    [Laughter.]
    Senator Hatch. Well, anybody who feels like they should, I 
would be happy to listen to them. I am sure you would, too.
    Judge, do you believe that information obtained under the 
NSA program may be legally used in support of an application 
for a Title 18 warrant where you believe one of the parties has 
been determined to be an al Qaeda affiliate but is a suspected 
common--or has not been determined to be an al Qaeda affiliate 
but is a suspected common criminal, say such as a drug dealer?
    Judge Kornblum. Any determination like that that is faced 
by a district judge in trial is going to be decided under the 
Federal Rules of Criminal Procedure and the protective 
mechanisms of the Classified Information Procedures Act. There 
is no way to predict what the facts are and the district judge 
would be faced with making that decision.
    Chairman Specter. Well, under Senator Hatch's hypothetical, 
if one of the parties to the conversation is not al Qaeda, that 
is outside of the President's purview. The Attorney General 
hasn't told us much, but he has told us that one party to the 
conversation is in the United States and one is overseas, but 
at least one is al Qaeda. So when Senator Hatch poses the 
hypothetical that neither is al Qaeda, how could that be 
justified under the President's program?
    Senator Hatch. Or even if one is al Qaeda, the foreigner 
calling into the country but talks to a common criminal, 
couldn't that be used against the common criminal?
    Chairman Specter. Well, you have changed the hypothetical 
now to making one al Qaeda.
    Senator Hatch. OK. I kind of thought that was implied.
    Judge Kornblum. Whatever the facts are, the standard 
followed by the district judge is going to be that enunciated 
in the pre-FISA decisions.
    Senator Hatch. Right.
    Judge Kornblum. That is--
    Senator Hatch. In other words, the criminal will have some 
element of protection from a civil liberties standpoint.
    Judge Kornblum. I would think the answer was, yes, that a 
district judge would protect his liberties and he is going to 
be bound by the judicial decisions which define the President's 
power.
    Chairman Specter. How did the criminal have protection when 
the wall was down? The law was established that if you have a 
foreign intelligence warrant and incidental to that there is 
evidence of a crime, that it is usable. That is the current 
status of the law.
    Senator Hatch. I am talking about using the current 
warrantless surveillance.
    Chairman Specter. You are talking about what, Senator 
Hatch?
    Senator Hatch. Warrantless surveillance, the warrantless 
surveillance.
    Judge Kornblum. Well, to be admissible--
    Chairman Specter. Let us see if we can bring this to a 
close, Judge Kornblum, if you will answer this question.
    Judge Kornblum. To be admissible, the evidence would have 
had to have been lawfully seized or lawfully obtained and the 
standard that the district judge would use is that, depending 
upon where this is, is the law in his circuit. In most of the 
circuits, the law is clear that the President has the authority 
to do warrantless surveillance if it is to collect foreign 
intelligence and it is targeting foreign powers or agents. If 
the facts support that, then the district judge could make that 
finding and admit the evidence, just as they did in Truong-
Humphrey.
    Chairman Specter. Senator Hatch, I am delighted to have a 
few comments, but we are now over 10 minutes and we have 
another panel.
    Senator Hatch. I am happy to discontinue any further 
questions.
    Chairman Specter. Before you leave, Senator Hatch, I want 
to cover one point in your presence, and that is you have been 
privileged to have been briefed, because you are on the 
Subcommittee, and when you say that you believe that it is 
constitutional under the Fourth Amendment, I have a lot of 
respect for your legal judgment. I was once an advocate for you 
for the Supreme Court. But under the doctrine of separation of 
powers, you are not a judge--
    Senator Hatch. That is true, and I may very well be wrong.
    Chairman Specter. Well, you may be right or you may be 
wrong. Judges are sometimes right and sometimes they are wrong.
    Senator Hatch. Right.
    Chairman Specter. But our system is that the judges make 
determination of constitutionality. Senators don't. Even super-
lawyer Senators like you, Senator Hatch, you don't make 
decisions on constitutionality.
    Senator Hatch. Well, we make them every day. The problem is 
that they may not be worth the decisionmaking paper that we 
write them on.
    Chairman Specter. I think they are very valuable, but it 
violates the principle of separation of powers. Senators are 
not judges, and to submit the program to the Intelligence 
Subcommittee and in a context of the statute proposed, to have 
45 days of free reign for the administration, and then at the 
end of 45 days, if there is sufficient probable cause going to 
the FISA court, but if there is not, to go to the Subcommittee, 
I don't know exactly what the Subcommittee does at that point.
    Senator Hatch. Let me just say this much. The 
administration, rightly or wrongly, and that might have to be 
determined by the courts in the final analysis, decided, the 
President decided that this program had to be reauthorized 
every 45 days, that the Chief Judge of the FISA court was 
informed. Eight Members of Congress were informed on the 
program. The question is, is that enough information to be able 
to resolve the conflict in favor of the President's argument?
    It may take the courts to decide that, but I see plenty of 
concern here on the panel that you may not know yourselves how 
that should be decided at this particular point. The fact of 
the matter is that we have had people who have been hotly 
criticizing the President for doing what the President feels he 
had to do to protect our Nation and to protect our people from 
terrorism that could amount to very serious consequences, even 
worse than 9/11. These are very important issues.
    The distinguished Chairman, of course, is trying to come up 
with a statute that the Presidents will be happy to comply with 
that will solve the problems and the deficiencies of the 
current 1978 FISA statute. I commend the Chairman for that and 
I am certainly going to try and help him on that. And I commend 
all of you for being as cautious as you are on just how all of 
this is going to come down in the end.
    So, Mr. Chairman, I just want to thank you for allowing me 
to have this little extra time. I know I have taken more than I 
should have, but I just want to, again, express my respect for 
all of you and what you have had to say here.
    Chairman Specter. Let me make one more comment, Senator 
Hatch, before you go.
    Senator Hatch. Sure.
    Chairman Specter. That is that if there is an order by the 
FISA court that the President feels is wrong and needs to act 
against, he can get a supersedeas. I am going to ask that 
question, but we all know that he can get a supersedeas until 
there is an appeal. It is discretionary with the FISA court, 
but you would expect in an emergency situation there would be a 
supersedeas. Many have an appellate court for FISA. Then if you 
don't like what the appellate court does, you can get another 
supersedeas and go to the Supreme Court.
    But when the court has ruled, if I understood Judge 
Kornblum correctly, the President can't disregard it. When the 
court makes a determination on constitutionality and you get to 
the Supreme Court, that is that, don't you agree, Judge 
Kornblum?
    Judge Kornblum. Yes, I do.
    Chairman Specter. That is Marbury v. Madison, 1803, which 
has been followed once or twice.
    I am going to go on to some other lines of questioning, 
Senator Hatch.
    Senator Hatch. Well, just one last point on that.
    Chairman Specter. I doubt it, but go ahead.
    [Laughter.]
    Senator Hatch. Judge Kornblum also indicated that the 
President may be faced with a situation, because of the time 
constraints and so forth--it isn't just a yes here--where he 
may have to just act in the best interests of the country. That 
may be upheld by the courts and may not be, I don't know, and 
neither does anybody else here today. But I will tell you one 
thing. I want my President acting, as long as it is clear that 
they have done everything they can to comply with the law and 
where they feel that they have this obligation under Article II 
of the Constitution. I would want my President to protect us.
    Chairman Specter. Well, let us--
    Senator Hatch. I think that is the position they have taken 
down there, rightly or wrongly, I personally believe rightly.
    Chairman Specter. Well, when you say act, you customarily 
mean some response if the country is in jeopardy, and of 
course, the President should act.
    Senator Hatch. That is right.
    Chairman Specter. If you are talking about gathering 
additional intelligence, the President can do that, too, and he 
has 72 hours to go to the court. If he has acted in a way that 
the court later says is illegal, he has gotten the information. 
He has acted and he has that authority under an emergency 
situation.
    Senator Hatch. All I can say is it is a little bit 
different in this situation from what I know about it.
    Chairman Specter. Well, Senator Hatch, would you be willing 
to be a witness so we can really--
    [Laughter.]
    Chairman Specter [continuing]. Really find out what is 
going on here?
    Senator Hatch. I think that is what I have been maybe 
doing, I don't know. I apologize to the Chairman.
    Chairman Specter. Judge Brotman, we ended up on my first 
round with your being interrupted on responding to the question 
as to Judge Keenan, and to reconstruct the question, it is in a 
context of the modern technology and the changes since 1978 
when the Foreign Intelligence Surveillance Act was passed. Do 
you think that the legislation which I have proposed will be a 
good balance to protect civil liberties and give the Executive 
sufficient authority to protect the country?
    Judge Brotman. Well, I do because if you look back over the 
years, the court has reacted to these changes. We have met. We 
have discussed new methods. We have seen them. They talked to 
us about them. We have been able to have a colloquy going back 
and forth, and in instances, we have agreed on a methodology of 
presenting the application within the language that was 
currently in the FISA statute.
    Chairman Specter. When--
    Judge Brotman. I mean, everything--you can't keep coming 
back and forth all the time, but in the course of drafting 
something, and this is the Congress's function--
    Chairman Specter. When--
    Judge Brotman [continuing]. In the course of drafting 
something, the language has to be sufficient to cover.
    Chairman Specter. When Senator Hatch was asking questions, 
hypothetical questions about obtaining information from the 
administration's program and then using it in the context of an 
application for a warrant from the FISA court, there was an 
issue as to whether the judge to whom the application goes 
knows what the program is. We know that President Judge 
Lambreth, or we hear that President Judge Lambreth was briefed 
on the program. We hear that President Judge Kollar-Kotelly has 
been briefed on the program. But we don't know about the other 
judges. We know that Judge Robertson resigned and the inference 
is because he didn't know about the program and wasn't going to 
be a party to being on the court when there was a program in 
effect that he didn't know about. It is really very regrettable 
that we have to speculate about anything.
    That is why it seems to me that when you have a court where 
you have expertise and you have the ability to keep a secret, 
that the program ought to be submitted to the court. If Senator 
Hatch is right that it is constitutional, then there oughtn't 
to be any hesitancy. When the court makes a ruling and the 
appellate court makes a ruling and then the Supreme Court makes 
a ruling, that is that under our society. That is how we decide 
that we are a nation of laws.
    We do need to protect the country, and the President has 
very vast authority under Article II. There is no doubt about 
that. But as you have all testified to, that is ultimately a 
judicial determination. It is rockbed Americana. It is Marbury 
v. Madison.
    We are going to take a very short break before the next 
panel, which will be heard more quickly since there won't be 
too many rounds of questioning, but I want to thank the judges 
for being here. We will take just a recess for a minute or two.
    [Recess.]
    Chairman Specter. The Committee will resume.
    Our next witness is Mr. Morton Halperin, who is Senior 
Fellow for the Center for American Progress and Executive 
Director of the Open Society Policy Center. He has a Bachelor's 
from Columbia, a Ph.D. in international relations from Yale. He 
served in both the Johnson and Nixon administrations in key 
positions. He served as the Director of the Washington Office 
of the American Civil Liberties Union, a consultant to the 
Secretary of Defense in 1993. That would be the Clinton 
administration.
    Thank you very much for joining us, Mr. Halperin, and thank 
you for your patience, if you have been patient. We welcome you 
here and look forward to your testimony.

   STATEMENT OF MORTON H. HALPERIN, EXECUTIVE DIRECTOR, OPEN 
            SOCIETY POLICY CENTER, WASHINGTON, D.C.

    Mr. Halperin. Thank you very much, Senator. I appreciate 
the opportunity and I appreciate very much the efforts that you 
have made to try to bring this program under FISA and to 
reestablish the system that I think has worked very well, and 
as we heard from the judges, has permitted the intelligence 
agencies to gather the information that we need.
    I agree with you that it is critical that we find a way to 
bring what needs to be done under congressional authorization 
and judicial review, but I also think, as you have suggested, 
that Congress can't legislate in the dark. We don't know what 
the program is, and therefore, it is not possible to tell 
whether your legislation, even if it were enacted, would 
actually authorize what the administration is now doing. I just 
think it is a fundamental mistake for Congress to legislate in 
this area before it has had a full investigation and knows what 
is being done and before the administration states what it 
needs in order to carry on the surveillance that he thinks is 
necessary.
    Chairman Specter. Since I am the only Senator present, Mr. 
Halperin, I am going to vary our procedure and ask you a 
question on the point you have just made. In terms of knowing 
the program, my legislation provides for knowledge of the 
program to the FISA court. Why isn't that sufficient?
    Mr. Halperin. Because the problem, Senator, is that you 
don't just try to find the mechanism, which I think would be 
difficult to do, to say the administration's current program 
with the current congressional authorization should be reviewed 
by the court. Your bill actually authorizes a program with a 
standard requiring the Attorney General to make a certification 
to the court that certain factual predicates have been met--
    Chairman Specter. Well, I disagree with you that we are 
authorizing the program. We are authorizing the FISA court to 
review the program.
    Mr. Halperin. But with respect, Senator, as I read your 
bill, you are authorizing the FISA court to issue a warrant for 
the program if it meets the standard--if the Attorney General 
certifies to the court that it has met the standard laid out in 
your legislation.
    Chairman Specter. Well, re-read my bill and so will I. That 
is not what is intended. What is intended here, and I think the 
statute provides what I have intended, and that is for the--we 
are not taking the Attorney General's certification. We are not 
going to do that. We are going to require that the 
administration inform the FISA court fully what the program is 
and then the FISA court is going to make a determination 
whether it is constitutional.
    Mr. Halperin. Well, Senator--
    Chairman Specter. How about that, if the language satisfies 
you?
    Mr. Halperin. I think the problem with that is whether the 
FISA court could actually make a ruling, that is, whether there 
is a case in controversy since the administration is not asking 
for a warrant. But if you want to enact a bill that said, the 
President cannot conduct any surveillance except if he gets a 
warrant from the FISA court and it needs to go to the FISA 
court to see whether the court will give it a warrant for this 
program, I am not sure that that is constitutional because you 
don't have a specific case in controversy--
    Chairman Specter. Well--
    Mr. Halperin [continuing]. But that is not what the bill, 
as drafted, as I read it, does. It--
    Chairman Specter. We have gone into the issue of advisory 
opinion and we did it here again today and we did it with a 
panel of experts. It is the same analogy. There is no case in 
controversy when the FBI goes to the FISA court and wants a 
warrant. It is an ex parte proceeding and there is no case in 
controversy. This is the analogy, which there is good legal 
authority is not advisory and is not in violation of the case 
in controversy rule.
    Mr. Halperin. Well, that may be, and the court would 
obviously decide that, and I think that is the appropriate case 
to decide that, but I think it is essential, if that is what 
your intention is, that you not draft language which the court 
may well interpret as authorizing the program. For example, we 
know the argument that is now going on about the military 
tribunals is that the Congress, by providing for judicial 
review of the military tribunals in the court of appeals, the 
Government is arguing is therefore authorizing military 
tribunals. The Government would certainly argue, based on your 
legislation, that you had authorized a program and authorized 
the court to grant a warrant for the program if it meets the 
standards set out in your legislation.
    Chairman Specter. Well, the Government could argue most 
anything under any circumstance, but--
    Mr. Halperin. No, but--
    Chairman Specter [continuing]. But we will take a look at 
it and if you are correct, we will redraft.
    Mr. Halperin. OK. Well, I appreciate that, Senator.
    The critical section of your bill that deals specifically 
with that issue is Section 703(a)(7), which as I read it says 
that the Attorney General needs to certify that the program 
involves listening to agents of a foreign power or a foreign 
power or persons in communication with a foreign power where 
those persons have attempted to engage in terrorist activity, 
and that I read as an authorization of a program.
    Let me suggest an alternative way that it seems to me that 
Congress might proceed here, which is to say the Attorney 
General in his testimony before this Committee was pressed very 
hard by Senator--
    Chairman Specter. Mr. Halperin, let me set the clock back 
for you for 4 minutes so we will hear you. Senator Biden has 
arrived, so if other members are present, I will proceed 
informally. Instead of the 4-minutes, the floor is yours and 
then we will move on to Mr. Kris and then we will go to rounds 
of questioning.
    Mr. Halperin. My view is that the Congress first, as I 
said, needs to have a full investigation so that it knows what 
is going on.
    Second, I think it needs to insist that if it grants new 
authority to the President, that the President will agree to 
abide by that authority and again operate within FISA. There is 
no point in establishing a new procedure if the President takes 
the position that he is not bound by that new authority, as you 
gave him new authority in the PATRIOT Act, but is simply going 
to engage in whatever additional programs he wants, and I 
suggest in my bill some statutory changes in the language 
dealing with criminal penalties and civil penalties and the 
cooperation of the telephone companies which would make it 
absolutely clear, although I think it is unambiguous as 
Congress drafted it, that Congress intended that there be 
protection from civil and criminal penalties and a requirement 
by the phone companies to cooperate only if the surveillance is 
pursuant to FISA or Title III if it is a criminal case.
    I also think that you should focus on what the Attorney 
General has identified as the problem, and in his testimony 
before this Committee, when pressed very hard by Senators on 
both sides as to why FISA was not sufficient, the Attorney 
General gave only one example. He said, in an emergency 
situation, NSA officials do not have the time to get to the 
Attorney General to get him to authorize an emergency 
surveillance, and that is, I think, a correct reading of the 
statute.
    So what I would urge you to consider is to, in effect, 
grant him an additional 72 hours so that the Attorney General 
can establish a procedure under which the NSA officials can 
authorize a surveillance in an emergency. They have 3 days to 
get to the Attorney General. If he agrees, that as he puts it, 
there is reasonable belief that the target is an al Qaeda 
person, that he can then authorize an additional 3 days of 
emergency surveillance and then he can go to the FISA court and 
get a warrant.
    That seems to me to satisfy the problem that the Attorney 
General has identified, and if the administration wants to come 
up and identify another problem, then I think the Congress 
needs to consider that other problem, as well, and assuming 
that it is constitutional, find a way to fix that problem. But 
I think to try to legislate a solution where the administration 
has not identified a problem that needs to be fixed simply will 
not solve the problem, which is that the administration is 
moving ahead without getting FISA warrants.
    As you recall, Senator, one of the reasons that we got 
FISA, and I think it has been alluded to before, is that the 
telephone companies were saying that they wanted clear 
guidance, and I think administration officials and the FBI and 
NSA were saying they wanted clear guidance. I think that clear 
guidance is essential, because otherwise, you put FBI agents, 
NSA agents, and private individuals in jeopardy of civil or 
criminal penalties if the President is acting not pursuant to 
the statutory scheme, and you also get leaks.
    I think it is not an accident that we got leaks before FISA 
was enacted because people thought the Presidents were ordering 
wire taps when they should not have done so in both Democratic 
and Republican administrations, and we got leaks of this 
program because people thought that the President was acting 
outside the law. As far as I am aware, there has not been a 
single leak of a program authorized under FISA, and I think 
that is because if people in the Government are confident that 
what is being done is constitutional and following the law as 
Congress has laid it out, then they don't leak it.
    Therefore, I think it is essential to bring this program 
under those procedures. Thank you.
    Chairman Specter. Thank you very much, Mr. Halperin.
    [The prepared statement of Mr. Halperin appears as a 
submission for the record.]
    Chairman Specter. We turn now to Mr. David Kris, who is 
Senior Vice President, Deputy General Counsel, and Chief Ethics 
and Compliance Officer at Time Warner. He is a graduate of 
Haverford College and has a law degree from Harvard. He served 
as a law clerk to Judge Trott of the Ninth Circuit and was a 
special assistant for the U.S. Attorney in the District of 
Columbia. He has had a variety of positions in the Department 
of Justice.
    Thank you for joining us, Mr. Kris, and we look forward to 
your testimony.

STATEMENT OF DAVID S. KRIS, SENIOR VICE PRESIDENT, TIME WARNER, 
                    INC., NEW YORK, NEW YORK

    Mr. Kris. Thank you, Senator Specter. Thank you for 
inviting me to testify. I am appearing here only in my 
individual capacity and not as a representative of any current 
or former employer.
    On the legal issues raised here, I think I am exactly where 
you are. I believe that the NSA surveillance program violates 
the Foreign Intelligence Surveillance Act. I don't believe it 
is permitted under the Authorization to Use Military Force. And 
I don't know whether it is within the scope of the President's 
Commander in Chief powers because I don't possess the relevant 
facts. I was not read into this program at DOJ, and I have no 
classified information about its function or its operation.
    Because of the way I analyze the legal issues, I see this 
as a constitutional moment. I see it as a clash between the 
expressed will of Congress and the actions of the President. 
And even if those actions are, indeed, constitutionally 
authorized--as they may be--it is not a very appealing state of 
affairs, at least for the long run. So for that reason, I think 
it is very wise to consider legislation that would authorize 
and regulate the NSA surveillance program or something like it.
    Having said that, I don't know whether legislation actually 
should be enacted, and if it is to be enacted, I don't know 
exactly what it should say. I think factual ignorance is an 
impediment not only to legal analysis, but also to legislative 
drafting.
    I have to admit that I spent the weekend on legislative 
drafting, and the result is in my written testimony that I 
submitted yesterday. I tried in my draft to follow your lead, 
to use your bill as a model and also to stick to three basic 
principles.
    First, wherever possible, use existing language and 
structures from FISA. I think that will promote a more seamless 
integration of any new law into the old; and it will import 
into the new law the settled understandings of the terms that 
are used.
    Second, like Mr. Halperin, I believe it is appropriate to 
accommodate the Government's needs to the extent that they 
should be, but I would not go beyond those articulated needs, 
at least without knowing what the facts are.
    And third and finally, most important for somebody like me 
on the outside, try to provide something that will be a useful 
vehicle for discussion and debate. My draft is really designed 
to be modular, almost like Lego. You can snap individual policy 
pieces in and out according to your preferences without 
disturbing the underlying structure. So the goal was really not 
so much to stake out a strong policy position on any of these 
issues but just to tee them up cleanly for your resolution.
    One of the key issues that we heard discussed this morning 
concerns the role of judges. Senator Specter, as I understand 
your bill, it would require the FISA court to review not only 
individual instances of electronic surveillance involving 
particular targets and facilities, as is the case now, but 
these electronic surveillance ``programs'' writ large.
    I think that judicial review of that type has a number of 
advantages to recommend it, among them that I think it would 
increase the public's confidence in and acceptance of the 
surveillance. Now, it raises a couple of constitutional 
questions, but as laid out in my written testimony, I don't 
know the answer to those questions and I don't say that they 
will be ultimately a problem. And it may or may not be 
acceptable in the end to a lawmaking majority. That is 
obviously something that is beyond my ken.
    I do think, however, that your bill is an excellent, 
concrete, and specific vehicle for extended debate, which I 
assume will ensue. I have tried in my written submission and I 
will try today to contribute to that debate and I hope you find 
it helpful. Thank you.
    Chairman Specter. Thank you very much, Mr. Kris.
    [The prepared statement of Mr. Kris appears as a submission 
for the record.]
    Chairman Specter. We appreciate your suggestions on 
drafting. We are open, so we appreciate what Mr. Halperin said 
earlier. We will read and re-read and look for the bill as I 
have described it.
    Both of you have talked about an investigation so we know 
what the facts are before we legislate. That is a pretty good 
idea, generally. The President says that Congress leaks, and 
regrettably, that is true. The White House also leaks, and I 
wouldn't want to get involved in which institution leaks the 
most. But we do know that the court has maintained 
confidentiality and that is why not knowing what the program 
is, I come to the conclusion that you can structure a statute 
where the administration cannot claim refusal to turn over the 
program, disclose the facts, because of concern that there will 
be a leak or inappropriate disclosure.
    Mr. Kris, you say that you have identified constitutional 
questions and you don't know what the answers are. You have a 
firm resume as a lawyer. Are you concerned about the advisory 
opinion issue or would you accept the analogy on the ex parte 
application for a warrant would be the same as, in effect, an 
ex parte application for approval of a program?
    Mr. Kris. It is interesting. In thinking about this, I 
actually found, with the assistance of a former colleague, an 
opinion of the Office of Legal Counsel from about 1978 that 
discussed whether the original version of FISA satisfied the 
case or controversy requirement. It made an argument that it 
did, and I assume that is why the legislation was enacted.
    I think much of the reasoning in that opinion would apply 
to programmatic judicial review as well as individual judicial 
review. I am just not sure that all of it would or exactly what 
the differences would be. I don't mean to sort of be overly 
tentative, but I have only been thinking about this issue for 
about 72 hours and I am just not quite sure. I assume somebody, 
OLC or somebody else, can take a really hard look at it. Maybe 
you already have. Maybe this panel of experts that you had 
before have already thought through it, in which case that is 
fine. I really just thought I should flag the issue. I see that 
it was already flagged, and so I didn't need to.
    Chairman Specter. We have taken a hard look at it and we 
have questioned experts. We have some testimony about it this 
morning again that it does not violate the advisory opinion 
doctrine so that we think we are on solid ground.
    Mr. Halperin, let me come back to pursue the discussion 
which you and I had a few moments ago, and that is if you 
accept a statute which I described, and that is that Congress 
would authorize the FISA court to review the administration's 
program and make a determination of constitutionality, not 
authorizing the program as you are concerned about--and I can 
understand that. I don't intend to offer it as a program. I 
don't know what the program is. I am not about to authorize a 
program. But I would like to have somebody find out what the 
program is and make a determination, and that is a judicial 
function, in my opinion. It is not the function of the 
Subcommittee on the Intelligence Committee.
    Mr. Halperin. I certainly agree with that, Senator.
    Chairman Specter. You agree? Well, I am glad we found 
something to agree on.
    Mr. Halperin. No, I agree--I mean, I agree with all your 
comments on the other bill. I think they have those very 
serious--that they are relying on the Congress to do a judicial 
function and that is inappropriate.
    I would say if you are going to go down that route, you 
need to find a way to require the President to submit the 
program to the FISA court, and I think the only way to do that 
is to amend FISA and the authorization to use military force to 
reinforce what I think is already in the bills, but the 
administration doesn't, that these are the sole and exclusive 
means that Congress intends to go forward and that nobody is 
safe from civil or criminal penalties, and the phone companies 
are not directed to cooperate unless the program is consistent 
with FISA.
    Chairman Specter. Well, we can legislate. We can pass the 
bill. The President has the authority, obviously, to veto it. 
If we can pass it over his veto, if it comes to that, then we 
would have authorized the FISA court to examine the program. 
That is as far as we can go.
    Mr. Halperin. But the President--the FISA court, I think, 
even under your theory, can't examine it unless the President 
brings it there, and there is nothing in what the 
administration has said--
    Chairman Specter. If the legislation says the President 
must bring it there--
    Mr. Halperin. Not if the President says that beyond 
whatever--as I understand the administration's position, it is 
beyond whatever Congress says, it has the authority that 
Congress cannot limit in any way to conduct warrantless 
surveillance whenever it believes it needs to do so. So the 
first step, I think, has to be either to get the administration 
to concede that if it gets the appropriate authority, it will 
follow the legislative rules, or to find a way to compel it to 
do so. I think, as I understand its position, even if you 
passed this bill over its veto, it would still say, that is 
fine, but we are not bringing any program to the FISA court, 
and--
    Chairman Specter. My time is up and I believe in observing 
time--
    Senator Biden. Keep going.
    Chairman Specter. No, no--
    Senator Biden. There are only two of us.
    Chairman Specter. I am going to reserve time.
    Senator Biden. I believe in getting ideas out. Keep going. 
Take some of my time.
    Chairman Specter. You want to take less than 5 minutes, 
Senator Biden?
    Senator Biden. I will take less than 5 minutes, and I will 
take five in my second round.
    [Laughter.]
    Chairman Specter. It may be easier to deal with the 
administration than Senator Biden.
    [Laughter.]
    Senator Biden. We would be a lot better off if you were 
dealing with me instead of the administration.
    Chairman Specter. I am just going to make a concluding 
comment. I think there would be a political solution if 
Congress passed this bill over the President's veto. It would 
be like the torture issue, where when we had it 89 to nine, the 
President accommodated to it. Of course, there is always a 
loose end, whatever we do around here. As Secretary of State 
Shultz said, nothing is ever settled in Washington. We have the 
signing statement, which takes away perhaps, or arguably, takes 
away our authority--we are going to have a hearing on that, as 
to the role of the signing authority, not that what we decide 
on signing authority will bind the President, either, but I 
think there would be a political answer.
    But if we pass a bill and we pass it over the President's 
veto, I think there would be a political solution, but as they 
said in the song ``Kansas City,'' we have gone as far as we can 
go, and that is as far as this Judiciary Committee can go in 
pushing legislation for the Congress.
    Senator Biden?
    Senator Biden. Thank you, Mr. Chairman.
    I am not sure of this, but I think it was Professor Corwin 
who said the Constitution is little more than an invitation for 
the Congress and the President to do battle--I am 
paraphrasing--over the conduct of foreign affairs. We have 
retreated from the battlefield. This is a constitutional 
moment. This administration has virtually no credibility. And 
here we are--the Chairman's bill is a solid bill. But here we 
are as a Congress as a whole just refusing to engage in that 
contest.
    I think if anybody gets censured, it should be the 
Intelligence Committee for failing to do its responsibility. I 
am serious about that. I think this idea of censuring the 
President, at this point, we don't know what he did. I mean, 
Mr. Kris, your phrase, if I can find it here, is that ``it is 
difficult to analyze a surveillance program, and almost 
impossible to comment on legislation to regulate such a 
program, without knowing the facts.''
    You have Stuart Taylor, which I think is kind of 
interesting, a well respected commentator and a newsperson 
saying the following. He is saying that the administration 
argument about tipping our hand to terrorists by telling the 
Intelligence Committee, because no oversight is appropriate, 
and he quotes and he says, it is ``utterly unpersuasive and 
rather alarming. Carried to its logical conclusion, it would 
argue for ending all congressional oversight and censoring of 
media coverage of all sensitive intelligence and defense 
activities.'' That is it in a nutshell, flat out. What are we 
doing here? What are we doing here?
    We are talking about the courts. You know, there is a third 
branch of government called the Congress, and the idea that I 
am going to delegate to the courts, as well as the 
administration, something as fundamental to the security of my 
country to make a substantive judgment of whether what they are 
doing makes sense--not merely whether it is legal, does it make 
sense--does it make sense--what have we become? What has 
happened to the notion that this is something that the people 
have a right to have input on? It is bizarre. It is absolutely 
bizarre.
    Now, I agree with the Senator. He is being practical. He is 
being practical about this. We have a Judiciary--look, I was 
there when we wrote FISA. I was on the Intelligence Committee 
and on the Foreign Relations Committee. Somebody tell me that 
the risk of leakage at the time we were talking about the 
location of SS-18 Soviet mobile missiles that the Soviets were 
in the process of pursuing and all the intelligence that we 
were engaged in around the world, that it was less dangerous 
then than it is today? Nothing got leaked. We held a year of 
oversight hearings, roughly, and then the Judiciary Committee, 
which I was also a member of, interfaced with the intelligence 
community when we came up with a thing called FISA.
    So what I find absolutely amazing here is that we are 
essentially in this constitutional moment being required to 
say, it is really not practical. There is not practically much 
we can do. We don't have--here is my question. Does anybody 
think, are either of you convinced that the Attorney General 
knows the extent of the program? What do you think? I am not 
being facetious.
    I asked him the question under oath. He was here and I 
asked him the question, Mr. Chairman, can you assure us the 
program you described is the only program that exists? And if 
my recollection is correct, he said no. I don't even believe 
the Attorney General of the United States of America knows the 
extent of this surveillance program and I find it breathtaking, 
breathtaking, the arrogance of this administration concluding 
that.
    A group of people we do not even know--they do not name 
them, they will not tell us who they are--they are supposedly, 
quote, ``experts on terror,'' making judgments on the spot, as 
explained to us, as to upon whom to eavesdrop, and then no 
assurance or any program demonstrating how they mitigate 
information that they have gathered. This is like Alice in 
Wonderland. This is like Alice in Wonderland. And then this 
malarkey about, well, you know, if you raise questions about 
this, you want to support the terrorists.
    So do you think the Attorney General of the United States, 
do either of you think he knows the full extent of this 
program?
    Mr. Halperin. He certainly--I mean, he certainly doesn't 
because he was asked questions like, who is it in NSA that can 
authorize this, and that question he actually answered and said 
he didn't know. So I think it is clear that he doesn't know.
    It is also, I think, clear if you look at the cases that 
authorized warrantless electronic surveillance prior to the 
enactment of FISA and the Ames case that the administration 
likes to talk about so much, they all turned and pawed on the 
fact that these were personal judgments by the Attorney General 
of the United States. There is no case that suggests that a 
nameless NSA official who is not confirmed by the Congress has 
the authority to make a determination of a warrantless 
surveillance of a United States person. So at the very least, I 
think there is a statutory infirmity there.
    But I think that the Congress has to act, in my view, on 
what the Attorney General said. He said, here is a specific 
problem. I think the Congress could react to that specific 
problem. But I think it would be a mistake to try to guess.
    And Senator, if I may, Section 704(3) of your bill says 
that the FISA court shall issue an ex parte order if it finds 
that there is probable cause, and then it lays out a standard 
of probable cause of what. That is a new standard that doesn't 
appear in FISA, and as I read it, as I say, that is an 
authorization to the FISA court to conduct surveillance under 
that standard, and none of us have any idea whether that 
standard is what the administration is using on this program. 
That is the concern I have that the bill is an authorization.
    Senator Biden. One more question. In full disclosure, I am 
one of those unnamed congressional offices you referred to in 
talking to you about this legislation. Is there a way that 
would make sense, not for the purpose of compromise but for the 
purpose of being more comprehensive, is there a way of marrying 
and/or dealing with both the approach of giving the Attorney 
General what he says is the only impediment that he named, was 
that he is just effectively inundated and you don't have time 
to make these judgments by extending the time available to the 
Attorney General's office and the approach that the Chairman is 
pursuing?
    Mr. Halperin. Yes, I think there is. I mean, as I now 
understand the Chairman's approach, it is to try to find a 
constitutional way to bring before the FISA court the 
President's program as a program not authorized by Congress and 
to let the court make a judgment about whether that is 
constitutional or not.
    I think the press reports suggest the court has already 
done that, that is that the court, according to the press, told 
the administration not to bring warrants for FISA surveillance 
based on this program, and that is another way, of course, that 
the FISA does make this judgment. If they have, in fact, told 
the administration--and I don't know whether that is true, it 
has certainly been reported in the press--but I think you also 
have to find a way to compel the President to do it, and I 
suggest in my testimony by rewriting those provisions so that 
you send a clear message to the telephone companies that 
whatever authorization or certification the Attorney General 
has given them isn't worth anything unless it is pursuant to a 
FISA warrant or the exceptions that are actually in FISA for 
emergencies.
    I think if you did those two things coupled with a sunset 
provision and a requirement for a full investigation, that this 
would be a way to move it forward. So I would think it should 
be possible to merge these two approaches and I would hope that 
you would look at them.
    Senator Biden. I would conclude by saying, Mr. Chairman, I 
truly appreciate your willingness not to let this issue just go 
away. No one else, nobody else in the Congress with any 
authority, is doing anything constructive, nobody but you. You 
are the sole source of any constructive attempt to deal with 
this problem. So please do not read my frustration as anything 
having to do with my frustration with you. It is not. I 
understand that the truth of the assertion that the only thing 
that is going to change this administration's mind is a 
political judgment reached by the U.S. Congress and confronting 
the President where he politically concludes it is not in his 
interest to continue to pursue the avenue he is on without any 
consultation with anybody.
    So you are right on the practical and probably right on the 
substance, as well. What frustrates me, I never thought I would 
sit here after 33 years, from Richard Nixon to this guy, to 
President Bush, and find ourselves in the posture where we are 
literally paralyzed from having any notion about having any 
idea, and I am supposed to accept and others accept the word of 
Dick Cheney, accept the word of the President, trust me? Trust 
me?
    Thank you for the time, Mr. Chairman.
    Chairman Specter. Thank you, Senator Biden, and thank you, 
Mr. Halperin and Mr. Kris. Senator Biden and I intend to pursue 
this matter.
    Senator Biden. Indeed, we do, and I would like to work with 
you in pursuing it.
    Chairman Specter. I intend to bring this bill up on the 
Executive Calendar on Thursday, and Senator DeWine's bill at 
the same time. I want to vote these bills out of Committee and 
I am going to press the Majority Leader to list them for 
argument in the Senate and move ahead.
    The testimony we had today was powerful. We had five judges 
testify, four former judges of the Foreign Intelligence 
Surveillance Court testified that this bill is an appropriate 
way to determine constitutionality of the program. They talk 
about probable cause and they talk about minimization and they 
are experienced. Judge James Robertson, the judge who resigned 
from the FISA court, submitted a letter, which I read the key 
part into the record. In addition, Magistrate Judge Kornblum, 
who has been involved in 10,000 applications under the FISA 
statute--very extensive experience going back to your work, 
Senator Biden, back in 1978, and their testimony is powerful, 
powerful, powerful, in my opinion.
    We have given the administration a chance to be heard, and 
the Attorney General came. We invited them to come into this 
hearing today. We have had three hearings in 22 days, which is 
pretty good for this Committee. We heard the Attorney General 
on March 6 and we had a panel of experts in in the interim and 
then this hearing today and we are going to mark it up and we 
are going to bring it to the floor of the U.S. Senate.
    There is no question about the fact that the tradition in 
this country is to have judicial review before there is an 
electronic surveillance. There is no question about that. And 
the Foreign Intelligence Surveillance Act gave exclusive 
authority to the FISA court, and I understand constitutional 
law, that if the President has power under Article II, it 
trumps the statute. Now, I want a determination made as to 
whether, looking at the program from the judiciary, it is 
constitutional. Congress can't do more than pass a law or exert 
political pressure and this is the avenue.
    We are spawning a censure motion. There is no showing that 
the President acted in bad faith, and he may well have the 
constitutional authority. We can't determine that.
    I wanted to add a panel here today, Senator Biden, because 
this issue bears on the censure motion and I asked Senator 
Feingold to be prepared to have a panel today and he demurred. 
He was in Iraq. We had a long hearing yesterday on immigration 
and he was in town to vote, but he wasn't in town for the 
Judiciary Committee meeting. I scheduled a hearing for Friday 
and he wants it postponed. I have got a letter, as soon as I 
get back to my office.--I have been engaged in this since 8:30 
this morning--I am going to say no, and I am going to put that 
on the calendar for Thursday. Next week, we are going to be on 
the immigration bill. When we come back after the Easter 
recess, we have many hearings on the reauthorization of the 
Voting Rights Act, and the orderly processing of the Judiciary 
Committee is something the Chairman has to determine.
    I know you would agree with that, Senator Biden, because 
you were the Chairman and you ran a good Committee. You were 
the Chairman from 1987 to 1995. The 1994 election changed 
that--
    Senator Biden. I am so happy you are the Chairman now and 
not me.
    [Laughter.]
    Chairman Specter. Well, I am happy, too.
    [Laughter.]
    Chairman Specter. But I want to deal with the censure 
motion. Senator Feingold went to the Senate floor and got 
unanimous consent for 25 minutes to speak on it, and I knew he 
was going to be there so I got 25 minutes, and after he berated 
the President for 25 minutes, I wanted to have a discussion 
with him about it and he left the chamber after I asked him to 
stay. I sent Mike O'Neill, my General Counsel, after him. I 
thought that after 25 minutes of berating the President, there 
ought to be some discussion about it. I know that is not 
reasonable, but that is what I thought, so I took my 25 minutes 
ex parte. But there will be a day when we will be in the same 
room discussing the matter.
    But I think today's hearing advances the ball. How much it 
advances the ball, nobody can tell, but the ball is being 
advanced. The ball is moving forward and I appreciate your 
testimony today, the endorsement by Mr. Kris and the qualified 
endorsement by Mr. Halperin, and thank you for coming, Senator 
Biden.
    That concludes our hearing.
    [Whereupon, at 2:33 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow].
    [Additional material is being retained in the Committee 
files.]


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