[Senate Hearing 109-840]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 109-840
 
                    DEPARTMENT OF JUSTICE OVERSIGHT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               ----------                              

                             JULY 18, 2006

                               ----------                              

                          Serial No. J-109-99

                               ----------                              

         Printed for the use of the Committee on the Judiciary

                    DEPARTMENT OF JUSTICE OVERSIGHT
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                                                        S. Hrg. 109-840

                    DEPARTMENT OF JUSTICE OVERSIGHT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 18, 2006

                               __________

                          Serial No. J-109-99

                               __________

         Printed for the use of the Committee on the Judiciary

                       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

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   343
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   346
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
    prepared statement...........................................   349
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                                WITNESS

Gonzales, Alberto R., Attorney General, Department of Justice, 
  Washington, D.C................................................     7

                         QUESTIONS AND ANSWERS

Responses of Alberto R. Gonzales to questions submitted by 
  Senators Specter, Hatch, Grassley, DeWine, Sessions, Leahy, 
  Kennedy, Biden, Feingold, and Schumer..........................    72

                       SUBMISSION FOR THE RECORD

Boston Globe, Charles Savage, article............................   263
Congressional Research Service, Morton Rosenberg, Specialist in 
  American Public Law, American Law Division, Washington, D.C., 
  memorandum.....................................................   266
Gonzales, Alberto R., Attorney General, Department of Justice, 
  Washington, D.C., prepared statement and attachments...........   294


                    DEPARTMENT OF JUSTICE OVERSIGHT

                              ----------                              


                         TUESDAY, JULY 18, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 9:35 a.m., in 
room SH-219, Hart Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Hatch, Grassley, Kyl, DeWine, Sessions, 
Cornyn, Leahy, Kennedy, Kohl, Feinstein, Feingold, Schumer, and 
Durbin.

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

    Chairman Specter. The Senate Judiciary Committee will now 
proceed with this oversight hearing on the Department of 
Justice. We welcome the Attorney General of the United States 
to this hearing.
    After consultation with the distinguished Ranking Member, 
it has been decided to have 10-minute rounds because of the 
many issues which we are reviewing here today.
    We will be taking a close look at what the administration 
intends to do following the historic decision in Hamdan v. 
Rumsfeld; what kinds of proceedings will be in order for those 
accused of war crimes; what the proceedings will be for those 
who are detained as enemy combatants with respect to periodic 
review; and what is the situation with respect to rendition, 
which is the next cutting-edge question in our handling of the 
detainees in the war against terror.
    We will be asking the Attorney General this morning to 
elaborate on his comments on ABC Television on May 21st that 
the Department of Justice is considering the prosecution of 
newspapers and journalists for the disclosure of classified 
information.
    We will want to know his interpretation of what statute 
would authorize that. We will be asking the Attorney General 
for the specifics on what happened with respect to the 
Administration's efforts to persuade the newspapers not to 
publish the program relating to bank records. We will be asking 
the Attorney General about the situation with respect to 
telephone company records.
    So far, the Administration has been unwilling to confirm or 
deny the existence of that program, and I will be pursuing the 
conversations which I have already had with Attorney General 
Gonzales on the question of what court clearance there was on 
such a program, with the Attorney General having said that the 
only program which does not have judicial authorization is the 
electronic surveillance program.
    So it raises the inference that if there is an 
administration program to get telephone records, there has been 
judicial clearance. And that is a question, I think, of 
importance, and from a practical point of view, it has been so 
widely publicized there seems to be hardly any point in not 
discussing it if, in fact, it does exist.
    We will be discussing with the Attorney General the issue 
about the electronic surveillance program and what factors are 
operative to determine whether or not the President has Article 
II powers. There is a great deal of discussion about the 
Foreign Intelligence Surveillance Act, but the administration 
has, in effect, declared that Act inoperative.
    A lot of talk about the Act's exclusive authority to 
authorize wiretaps, but in the context where the administration 
claims that there are Article II powers which supersede the 
statute, those provisions for an exclusive remedy have, in 
effect, been discarded.
    There is no doubt that the President does not have a blank 
check. We know that from the Supreme Court. But the Supreme 
Court has never ruled on the question as to whether the 
President has inherent power to go after materials on foreign 
agents like terrorists without a warrant. Three Federal 
appellate courts have ruled that the President does have such 
inherent power, and that is the essential claim which the 
administration is now making.
    There have been strenuous efforts to find some way to 
submit the electronic surveillance program to judicial review, 
and there has been a compromise reached, subject to 
congressional approval, where the President has stated that he 
will submit his program to the Foreign Intelligence 
Surveillance Court if the negotiated legislation is enacted by 
Congress, with the President getting certain flexibility: the 3 
day period for emergency warrants will be extended to 7 days 
and the Attorney General would have the authority to delegate 
the application for emergency warrants.
    Where both ends of the call are overseas but have a 
terminal in the United States, the statute would not apply. If 
there is a better way to obtain judicial review, I for one 
would be anxious to hear about it.
    I can say that the negotiations were very, very difficult, 
really fierce, and it was a major breakthrough when the 
President did agree to send the matter to the Foreign 
Intelligence Surveillance Court, but it raises a lot of 
questions which will have to be addressed and have to be 
answered.
    We will also be reviewing with the Attorney General the 
legal foundation for the President's assertion of authority to 
issue signing statements in which he declares which parts of 
legislation he will enforce and which parts he will disregard.
    The Constitution is explicit in providing for a 
Presidential veto if the President disagrees with a piece of 
legislation. We have seen the practice evolve under this 
President with greater breadth and greater intensity than with 
any President in the past.
    We will also be inquiring of the Attorney General the 
administration's position on the Lugar shield law, whether it 
is the administration's position that it is appropriate to jail 
reporters, like Judith Miller, in cases which do not involve 
national security. That investigation started off as a national 
security matter.
    When the national security aspect was over and it was an 
investigation in to only obstruction of justice or perjury, 
they proceeded, nonetheless, with the jailing. We will want to 
inquire of the Attorney General the administration's position 
on that issue.
    We have another very important line of inquiry on why the 
Office of Professional Responsibility was not permitted to 
carry forward the investigation which it began as to the 
propriety of the legal advice given by the Department of 
Justice approving the electronic surveillance program.
    Forty Members of the House of Representatives asked for 
that investigation. It was underway, and then it was stymied 
when there were repeated requests by the Office of Professional 
Responsibility for clearance, and they were all denied.
    The Office of Professional Responsibility noted that the 
Criminal Division was given clearance when it was looking at 
potential prosecutions. The Civil Division had many lawyers 
given clearance when it was defending civil cases.
    But for some reason, OPR was not given clearance when they 
were charged with the responsibility of conducting on 
investigation, which they began to see if professional 
standards were met when the Department of Justice cleared the 
electronic surveillance program.
    With so many other lawyers in the Department of Justice 
being granted clearance, it raises the obvious question of 
whether there was some interest on the part of the 
administration in not having that opinion given.
    We will also be asking the Attorney General for the 
administration's position on House Resolution 890 and Senate 
Resolution 524, which, in effect, condemn the newspapers for 
disclosing classified information.
    This is a long litany, but there is a great deal to be 
covered on what the Department of Justice has done.
    Let me say in conclusion, Mr. Attorney General, that the 
Committee is very disturbed by your failure to comply with our 
rules in submitting your statement on time. It was not 
submitted until late yesterday afternoon, early evening.
    There has not been an opportunity to review it, and serious 
consideration has been given to not permitting you to make an 
opening statement because of your failure to comply with the 
rules. And let me say if there is a repetition, we will do just 
that.
    But out of respect for your office and for you, we will 
permit you to give an opening statement, but we think that we 
are entitled to some respect reciprocally.
    Senator Leahy?

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

    Senator Leahy. Thank you, Mr. Chairman. And I concur with 
the Chairman. It is extremely difficult. It is so rare that we 
have the Attorney General here, certainly less appearances than 
most of his predecessors of either party. When he does come--
and at times actually several weeks later than he had first 
offered to come--we should have the statement.
    I will put my full statement in the record, but a couple of 
points I would like to make so we can get on with the hearing.
    Three weeks ago, in Hamdan, the Supreme Court ruled that 
the President is bound to comply with the rule of law. In 
effect, they said he cannot continue to break the law. Three 
years ago, in Hamdi, the Supreme Court held that war is not a 
blank check for the President when it comes to the rights of 
the Nation's citizens and said even the President has follow 
the law. These are two remarkable statements coming from the 
Nation's highest Court.
    Now, they are not remarkable in one area--for the 
propositions they state. The rule of law was the basic premise 
on which this Republic was founded 230 years ago. They are 
remarkable instead for the fact that this administration's 
unprecedented record of complete disregard for the rule of law, 
coupled with its arrogance and secrecy, coupled with its 
continued breaking of the law by the President, made it 
necessary to say these things.
    In Hamdi, the Court rejected the administration's 
unprecedented claim--unprecedented claim--that an American 
citizen could be stripped of the constitutional right to due 
process simply on the say-so of the President, that the 
President can say, ``Well, I know that is the law, but you do 
not have to follow it in this case or that case.'' The Court 
held instead what I suspect every first-year constitutional law 
student would say they would hold, that Mr. Hamdi was entitled 
to a fair hearing on the legality of his detention.
    In Rasul, the Court rejected the legal premise upon which 
the Guantanamo Detention Center was built. The Bush-Cheney 
administration chose to hold prisoners captured in Afghanistan 
on the island of Cuba as a means of avoiding the jurisdiction 
of the United States court. And the Court held that the writ of 
habeas corpus cannot be suspended by housing prisoners 
offshore.
    And so we come up to last month's setback in Hamdan--a 
setback to the administration, a victory for the rights of 
Americans. The path to the latest setback to the administration 
begins with a memorandum written by today's witness.
    In January 2002, then-White House Counsel Gonzales advised 
President Bush that he need not and should not comply with the 
Geneva Conventions, even though they are the rule--they have 
become the rule of law because we accepted them.
    And that was contrary to the advice of Secretary of State 
Colin Powell, a man who had served in the military, had served 
in combat and knew what the Geneva Convention was about. But 
the President chose to take Mr. Gonzales' advice rather than 
listen to General Powell.
    In Hamdan, the Court held that the President is bound by 
the Geneva Conventions and that the President's military 
commissions are illegal. So basically the administration is 
batting 0 for 3 in the Supreme Court--and, interestingly 
enough, a Supreme Court where seven of the nine members were 
appointed by Republicans.
    But the result of this series of blunders is not merely a 
strikeout. With respect to Mr. Hamdi, after nearly 3 years of 
incarceration during which the administration insisted American 
security would be seriously prejudiced by even affording him a 
lawyer, they said, ``Oh, all right, we will just turn him free. 
We will turn him free in the Middle East.''
    If he is that much of a threat, we should have tried him. 
Four years after the administration began transporting 
prisoners to Guantanamo, that detention center has become an 
embarrassment, an international embarrassment, which everyone 
from Tony Blair to Colin Powell said it should be closed 
immediately.
    And more than 4 years after initiating a military 
commissions program, which Attorney General Gonzales told us 
was designed to ensure swift justice close to the battlefield, 
the administration, out of those hundreds and hundreds of 
people, has only charged ten, they have convicted zero, and 
they are now back to square one. Some swift justice.
    Perhaps the only lesson that this administration learns 
from its mistakes is not to get caught next time. The 
administration is allergic to accountability, whether in the 
form of judicial review or in the form of Congressional 
oversight. And the attempt to evade habeas review by holding 
detainees at Guantanamo is just one of a series of measures the 
administration has taken to shield its actions from the courts.
    The Hamdan case addresses another. In one of those hundreds 
upon hundreds of notorious signing statements issued after 
Congress passed the Detainee Treatment Act of 2005, the 
President asserted that the Act retroactively stripped the 
courts of jurisdiction over pending cases--when, of course, it 
did nothing of that nature at all.
    The Court rejected his claim and instead followed the plain 
language of the Act, informed by the legislative history that 
was actually available to members before they voted on the Act.
    The case of Jose Padilla presents another example. Three 
and a half years after detaining Padilla as an unlawful 
combatant, but on the eve of another Supreme Court review of 
whether what they were doing was legal or not, the 
administration moved to have his case dismissed by transferring 
him from military to civilian custody. In other words, if you 
are going to tell us to obey the law in one place, we will move 
him to a different place.
    In a unanimous decision, the very conservative Fourth 
Circuit rejected the administration's motion. Judge Luttig 
pointedly noted that the motion appeared to be an attempt to 
evade Supreme Court review and, thus, they have damaged the 
Government's credibility.
    Meanwhile, the Chairman has mentioned the secret domestic 
wiretapping program. The administration has for nearly 5 years 
evaded even the limited judicial review afforded by the Foreign 
Intelligence Surveillance Act. In fact, in just a few months 
since the Republican Congress first learned of NSA's 
warrantless wiretapping program, the Justice Department has 
asserted the state secrets privilege in at least 19 different 
court cases challenging that program.
    And last week, we learned in closed-door negotiations with 
Senator Specter that the administration made a conditional 
offer to submit one of its domestic spying programs to secret 
review by a single FISA judge.
    As I understand the administration's offer, Congress must 
first agree to completely gut FISA and deprive American 
citizens of the right to challenge domestic wiretapping in open 
court. It would change nothing more than the ratification of 
the administration's actions after the fact, even if they had 
acted illegally.
    So when the President tells this Committee that he is 
agreeable to judicial review of that program and his other 
actions, I hope you understand why some of us are a bit wary. I 
agree with President Reagan, who said, ``Trust, but verify.'' 
This administration asks an enormous amount of trust from us, 
but they do not give much in the way of verification.
    We in Congress have a responsibility not just to punt to 
the courts, but do our job of holding the administration 
accountable. Congressional oversight is the ultimate democratic 
antidote to executive overreaching. Oversight makes Government 
more accountable and more effective. So it is time for Congress 
to fulfill its constitutional duty by acting as a real check on 
the executive branch.
    A Congress that defers to the President and ratifies his 
continuing illegal actions is no better than a President who 
seeks to immunize or ignore illegal conduct of those under his 
command.
    Congress needs to act. Congress needs to be an independent 
branch of the Government. Congress has to stop acting as a 
rubber stamp for this President and start its real oversight.
    Mr. Chairman, I will put my full statement in the record.
    Chairman Specter. Without objection, the balance of your 
statement will be made a part of the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Senator Hatch has asked that his 
statement be made part of the record, which will be done.
    Just a word or two about scheduling and timing. We are 
going to have 10-minute rounds, as I announced earlier, so that 
Senators will have enough time to get into the subject matter 
in some detail. We are going to be voting on the stem cell 
bills in the range of 3:30 to 3:45.
    It would be my hope that we could limit our lunch hour to 
an hour. This is a day where we have caucuses, so it poses some 
difficulty. But that is what I would like to do so we can have 
plenty of time to ask the questions and give the Attorney 
General an opportunity to respond.
    Mr. Attorney General, would you rise to take the oath, 
please? Do you solemnly swear that the testimony you will give 
before the Judiciary Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Attorney General Gonzales. I do.
    Chairman Specter. Attorney General Gonzales has held the 
position since the beginning of President Bush's second term. 
We had the confirmation hearings on January 6th, and the 
Attorney General was confirmed not long thereafter. He comes to 
this important office with a very distinguished background. He 
is a Harvard Law School graduate. He received his bachelor's 
degree from Rice University.
    Before becoming Attorney General, he served President Bush 
for 4 years as White House Counsel and had extensive contacts 
with this Committee. He had been a Justice on the Texas Supreme 
Court. He was Texas Secretary of State, served as general 
counsel to Governor Bush, partner of a major, prestigious firm, 
Vincent and Elkins, and served in the United States Air Force.
    We welcome you here, Mr. Attorney General, and we are 
setting the clock at 10 minutes. If you can stay within that 
parameter, it would be appreciated. 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 
and Ranking Member Leahy, thank you for having me here today.
    The Department of Justice's first priority remains 
protecting America from terrorist attacks. Immediately after 9/
11, the President asked us to do everything we could within the 
law to protect the American people. Those were intense, 
purposeful times, as we all remember. We were anxious about the 
possibility of more attacks, and we were committed to 
preventing another deadly attack.
    In Congress, you acted quickly to pass the PATRIOT Act. In 
the executive branch, we increased our efforts to investigate 
and prosecute terrorists before they could kill again and bring 
to justice those who were responsible for 9/11.
    When the war in Afghanistan began, we asked, How can 
terrorists and unlawful combatants be tried for their war 
crimes? And that is how the military commission process was 
born in this current conflict.
    Since the Revolutionary War, the United States has employed 
military commissions in times of armed conflict to bring 
unlawful combatants to justice. The process of convening 
military commissions traditionally has been left to the 
President. Thus, following the precedent established by prior 
administrations, the President established fair and thoughtful 
commission procedures.
    Of course, the Supreme Court has now spoken. Under the 
Court's reasoning in the Hamdan case, the most obvious and 
feasible way to ensure that military commissions remain 
available as a tool to protect America and bring terrorists to 
justice is for Congress to establish the commissions' 
procedures. And so we now look forward to working with Congress 
on this issue.
    As we work together to establish a statutory basis and new 
procedures for military commissions, I would like to offer a 
few specific concepts for you to consider.
    First, the military commission procedures devised by the 
Department of Defense, as well as the Uniform Code of Military 
Justice, are useful resources to consider. DOD's current 
procedures currently address in a balanced fashion specific 
concerns.
    For example, no one can expect members of our military to 
read Miranda warnings to terrorists captured on the battlefield 
or provide terrorists on the battlefield immediate access to 
counsel or maintain a strict chain of custody for evidence. Nor 
should terrorists' trials compromise sources and methods for 
gathering intelligence or prohibit the admission of probative 
hearsay evidence.
    The current DOD military commissions take into account 
these situational difficulties and, thus, provide a useful 
basis for Congress's consideration of modified procedures.
    The procedures Congress adopts must be fair, but also must 
reflect that we are still at war and that our men and women on 
the front lines operate in a war zone, not in a controlled 
environment of an FBI forensics lab.
    Second, we must eliminate the hundreds of lawsuits from 
Guantanamo detainees that are clogging our court system. In 
many instances, military commissions, not our civilian courts, 
are the appropriate place to try terrorists.
    In the Detainee Treatment Act, Congress recognized the need 
for balance in this area. It afforded detainees the opportunity 
to appeal military commission decisions and Combatant Status 
Review Tribunal rulings to the D.C. Circuit, as well as to the 
Supreme Court of the United States--something never before 
provided to enemy combatants in a time of war.
    At the same time, the DTA precluded Guantanamo detainees 
from undertaking other litigation, including class actions, 
tort suits, and conditions of confinement challenges. The DTA 
struck an appropriate balance. I ask Congress to confirm that 
it intended these provisions for limited and appropriate 
judicial review to apply to all of the existing Guantanamo 
detainee lawsuits.
    Third, the application of Common Article 3 of the Geneva 
Conventions must be defined. In Hamdan, the Supreme Court held 
that because a war with al Qaeda is not of an international 
character, Common Article 3 applies to our conflict with al 
Qaeda, notwithstanding the fact that al Qaeda is not a 
signatory to Geneva and does not abide by its strictures.
    Because Common Article 3 applies to our conflict with al 
Qaeda, it is imperative that we as a Nation are clear about 
exactly what that requires of our men and women on the front 
lines. After all, a proven violation of Common Article 3 could 
serve as the basis for potential prosecution under the Federal 
War Crimes Act.
    Article 3 uses terms like ``outrages upon personal 
dignity'' that are susceptible to different interpretations. 
Making matters more unpredictable still, the Supreme Court has 
stated in other contexts that American courts, when 
interpreting a treaty, should give consideration to the way 
foreign courts have interpreted that treaty. And that degree of 
uncertainty is unfair to our men and women on the front lines, 
and I encourage you to clarify the law in this area.
    Now, let me say a few words on another subject related to 
the war on terror. Recently, the media has published details of 
classified intelligence programs that are vital to our National 
security. It is wrong that someone would reveal intelligence 
activities that are helping to prevent another terrorist attack 
on America. American lives are potentially endangered by such 
conduct.
    The programs that have been disclosed are vital. Imagine, 
for example, what a program like the President's terrorist 
surveillance program might have accomplished before 9/11. 
Terrorists were clustered throughout the United States, 
preparing their assault, communicating with their superiors 
abroad.
    What might our world look like today if we had intercepted 
a communication revealing their plans or tracked the flow of 
money among the plotters? General Hayden has testified that the 
terrorist surveillance program has helped us detect and prevent 
terror plots in the United States and abroad. And Treasury 
Under Secretary Stuart Levey has testified that the terrorist 
finance tracking program has helped to identify, track, and 
pursue suspected foreign terrorists, including members of al 
Qaeda, Hamas, and Hezbollah.
    Mr. Chairman, at my last appearance before the Committee, 
you indicated that you wanted the terrorist surveillance 
program briefed to every member of the Intelligence Committees, 
and you expressed your desire that the program be submitted to 
the Foreign Intelligence Surveillance Court.
    All members of the House and Senate Intelligence Committees 
have now been briefed, and your new draft legislation provides 
a way for the program to be submitted to the FISA Court.
    I thank you for your work on this matter, and I also thank 
Senator DeWine for offering legislation on the program. I urge 
this Committee to report favorably both the Specter and DeWine 
bills so that they can be considered by the Intelligence 
Committee.
    Finally, I urge the Congress to confirm Ken Wainstein to 
head the Department's new National Security Division, Alice 
Fisher to head the Criminal Division, and Steve Bradbury to 
head the Office of Legal Counsel. The National Security 
Division, something called for by the WMD Commission, cannot be 
established until Mr. Wainstein is confirmed.
    Congress created the National Security Division in the 
PATRIOT Act reauthorization bill, but the Senate's delay in 
confirming Mr. Wainstein is preventing the Department from 
doing everything that we can to protect the American people 
from another terrorist attack. Similarly, we need Ms. Fisher 
confirmed.
    To have the Criminal Division, which is devoted to 
disrupting terrorism, fighting corporate and public corruption, 
and fighting child exploitation, operate without a confirmed 
leader is unacceptable. She is doing an outstanding job, and 
she deserves swift confirmation.
    I thank the Committee for reporting favorably the Wainstein 
and Fisher nominations, and I ask for your help in obtaining 
the full Senate's confirmation of these stellar individuals. 
Finally, I respectfully request that the Committee move 
promptly to report favorably Steve Bradbury's nomination to be 
Assistant Attorney General for the Office of Legal Counsel. Mr. 
Bradbury's work is critical, and I know that the executive 
branch and the Congress have benefited from his extraordinary 
talents.
    Mr. Chairman, today is September 12th for the people of the 
Department of Justice, and tomorrow will be September 12th 
again. We are fighting every single day for the security and 
safety of Americans. We appreciate your support and the support 
of this Committee. Thank you.
    Chairman Specter. Thank you very much, Attorney General 
Gonzales.
    I begin with the issue on the Office of Professional 
Responsibility, OPR, being compelled to discontinue its 
investigation into the propriety of the legal advice given by 
the Department of Justice approving the electronic surveillance 
program. Note that I wrote to you about this subject on May the 
10th and did not get an answer until late yesterday.
    Without objection, your reply and all the attachments will 
be made a part of the record.
    It is very difficult to understand why OPR was not given 
clearance so that they could conduct their investigation as to 
the propriety of the Department of Justice action in approving 
the electronic surveillance program in a context in which many 
lawyers in the DOJ Criminal Division and Civil Division were 
given clearance.
    I think that in part this is a mark of the difficulty in 
getting the administration to submit the surveillance program 
to the FISA Court for judicial review. That legislation, which 
was agreed upon last week subject to approval by the Congress, 
is going to have quite a route to follow.
    And it has been pressed by me because of the absence of any 
other way to get judicial review. And the provisions of the 
Foreign Intelligence Surveillance Act as the exclusive remedy 
have been ignored because of the assertion of Article II power. 
We do not know whether that is correct until there is a balance 
made between the nature of the threat and the incursion into 
civil liberties.
    Now, when you had the first line of review, Mr. Attorney 
General, by OPR, why was OPR not given clearance as so many 
other lawyers in the Department of Justice were given 
clearance?
    Attorney General Gonzales. Mr. Chairman, you and I had 
lunch several weeks ago, and we had a discussion about this, 
and during the luncheon I did inform you that the terrorist 
survival program is a highly classified program. It is a very 
important program for the national security of this country 
and--
    Chairman Specter. Highly classified, very important. Many 
other lawyers in the Department of Justice had clearance. Why 
not OPR?
    Attorney General Gonzales. And the President of the United 
States makes decisions about who is ultimately given access--
    Chairman Specter. Did the President make the decision not 
to clear OPR?
    Attorney General Gonzales. As with all decisions that are 
non-operational in terms of who has access to the program, the 
President of the United States makes the decisions, because 
this is such an important program--
    Chairman Specter. I want to move on to another subject. The 
President makes the decision. That is that.
    I want to take up the question of rendition now that we 
have had the Supreme Court of the United States deal with the 
issues of trials for people charged with war crimes and we are 
pursuing the issue of detention of enemy combatants. I want to 
ask you about a specific case which I wrote to you about to be 
prepared to respond today.
    Where the Department of Justice was involved, ordinarily 
rendition might be said to be a matter for the CIA and under 
the Intelligence Committee, but the FBI participated in the 
interrogation of a man named Maher Arar, a Canadian engineer of 
Syrian descent who was arrested in JFK on September 26, 2002, 
questioned by the FBI and local police, then was flown to Rome, 
then to Amman, Jordan, driven across the border to Syria, where 
he alleges he was repeatedly tortured and forced to sign 
confessions stating that he attended a training camp in 
Afghanistan.
    Is the Department of Justice involved in the issue of 
rendition, Mr. Attorney General?
    Attorney General Gonzales. Mr. Chairman, with respect to 
this particular case, let me just say that this is a matter 
that is currently in litigation, so I am going to be limited 
about what I can say. This is not a case regarding rendition. 
This is a case regarding deportation. This particular 
individual--
    Chairman Specter. Deportation, but also rendition.
    Attorney General Gonzales. He was deported according to our 
immigration laws. This is what happened --
    Chairman Specter. Was he then not ultimately rendered to 
Syria?
    Attorney General Gonzales. He was returned. He was a dual 
citizen of Canada and Syria, and he did request to be returned 
to Canada. But exercising the discretion under the law, he was 
returned--
    Chairman Specter. He did not ask to go to Syria even though 
he had dual citizenship there.
    Attorney General Gonzales. He did not ask to go to Syria.
    Chairman Specter. Nobody would ask to go to Syria where 
they might be tortured.
    Attorney General Gonzales. But, Senator, as we do in every 
case where we deport or render, we receive assurances and get 
assurances that someone will not be tortured. We do have 
obligations to seek those kind of assurances.
    Chairman Specter. Attorney General, let me interrupt you 
because there is so much to cover. Perhaps we will go into 
closed session on this because you say it is a matter in 
litigation, and our oversight authority covers matters which 
are in litigation.
    But let me move on to the television interview you had on 
May 21st where you said the Department of Justice was 
considering the prosecution of journalists and newspapers, in 
the context of the New York Times disclosure on December 16th 
of the electronic surveillance program. Are you considering the 
prosecution of the author of that article and the newspaper?
    Attorney General Gonzales. Senator, I think we have an 
obligation at the Department to ensure that criminal laws are 
enforced. With respect to publications by the New York Times 
and other publications of highly classified programs, our long-
standing practice--and it remains so today--is that we pursue 
the leaker. That is our primary objective, to go after the 
leakers, quite frankly. We hope to work with responsible 
journalists and persuade them not to publish the story. With 
respect to the New York--
    Chairman Specter. But they did publish the story.
    Attorney General Gonzales. They did publish the story.
    Chairman Specter. And you said on May 21st you were 
considering a prosecution. Now, we have had June and July. We 
have had 2 months since then. Are you or are you not 
considering a prosecution?
    Attorney General Gonzales. Mr. Chairman, I will say that we 
are focused primarily on the leakers, and we continue to work 
with the media to try to persuade them not to publish stories.
    I do think, quite frankly, Mr. Chairman, it is appropriate 
to have a discussion and a dialog about what do we do when we 
are in a time of war and we are talking about highly classified 
programs that may save American lives--
    Chairman Specter. I am prepared for a discussion of the 
dialog, but on another day when we have more than 10 minutes. I 
am going to move on and accept your non- answer because I do 
not think I am going to get anything more on that subject, and 
perhaps nothing more on the next subject.
    You and I have discussed the issue of the administration's 
alleged program to get information from telephone records, and 
you have told me that you are not authorized to say whether 
there is such a program. But you also told me contemporaneously 
that there was no program that the administration has except 
for the terrorist surveillance program which operates without a 
court order.
    Question: Is it true that it is only the terrorist 
surveillance program, also known as the electronic surveillance 
program, is the only program that the administration has which 
is not functioning under a court order?
    Attorney General Gonzales. Mr. Chairman, you and I did have 
a conversation. What I can say is that what you are asking 
about, the program's activities, to the extent that they exist, 
they would be highly classified; to the extent they exist, they 
have been and would be fully briefed to the Intelligence 
Committees.
    I can also tell you that we are currently having 
discussions within the administration to see what additional 
information we can provide to this Committee about any 
additional activities.
    Chairman Specter. But you can confirm your statement to me 
that the only program which is not subject to judicial 
authorization is the electronic surveillance program? You told 
me that, did you not?
    Attorney General Gonzales. Mr. Chairman, I believe what I 
said--well, here is what I would like to be on record. To my 
knowledge--
    Chairman Specter. No, no. Answer if you told me that. Then 
you can go on the record.
    Attorney General Gonzales. I am not sure that those are the 
words that I used, Mr. Chairman.
    Chairman Specter. Well, the substance of the words you 
used?
    Attorney General Gonzales. Those are the substance of the 
words I used, but those are not the exact words that I used.
    Chairman Specter. All right. On to the next subject.
    We have asked the administration for a position on the 
Reporter's Shield bill. Senator Lugar has proposed legislation 
that has been modified, and we have come down to a point where 
we think it is appropriate to insist on not having the shield 
apply if there is a genuine, serious national security interest 
involved. We have the Judith Miller case, 85 days in jail; not 
very pleasant circumstances, because I visited her there, as 
many other people did.
    If you have an investigation on national security, 
Reporter's Shield may not apply. But should Reporter's Shield 
be available if it turns out to be a perjury or obstruction of 
justice issue?
    Attorney General Gonzales. What happened in that particular 
case is one that I would view as a last resort, quite frankly, 
Mr. Chairman. We explore every other way we possibly can to get 
information that we believe is absolutely essential in 
connection with a criminal investigation.
    This is information that we need to move forward to 
prosecute a crime. We understand the importance of confidential 
sources to the media, and for that reason we make 
accommodations, we have procedures in place that reflect that 
particular concern.
    But I think it is important. I do not think a media shield, 
quite frankly, is necessary. I do not think it is appropriate. 
I think if you look at our record, quite frankly we have gone 
after confidential sources, I think, 13 times in the last 15 
years.
    I do not see, as I read the papers today, any reluctance of 
the media to publicize stories, even of the most confidential 
and classified nature. I do not think the legislation is 
necessary. I think we have acted in a responsible way. We have 
got good procedures in place, and I think we should continue on 
that route.
    Chairman Specter. We will pick up your statement on last 
resort in round two. The red light went on just as I had 
finished the question.
    Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman. And I would ask 
that the statement that Attorney General Gonzales gave us late 
last night be also put in the record because it varies in some 
areas--many areas--from his opening statement.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    [The prepared statement of Attorney General Gonzales 
appears as a submission for the record.]
    Senator Leahy. At our hearing last week, Mr. Attorney 
General, one of your assistants testified, in effect, that we 
in Congress should simply ratify the military commission 
procedures that the President designed and that the Supreme 
Court criticized and struck down as illegal. Is that, in fact, 
the administration's position?
    Attorney General Gonzales. Senator Leahy, I think our 
position is we care less about where we began; we care more 
about where we end up, and we would like to--
    Senator Leahy. No, no. The question is very specific. Is it 
the administration's position, as one of your assistants 
suggested, that we should simply ratify the military commission 
procedures that the President designed and the Supreme Court 
struck down in Hamdan?
    Attorney General Gonzales. That would certainly be one 
alternative that Congress could consider, Senator Leahy.
    Senator Leahy. That was the alternative that the one person 
we had from the administration to testify suggested. Is that 
the administration's position? Yes or no.
    Attorney General Gonzales. I do not believe the 
administration has a position as to where Congress should begin 
its deliberations.
    Senator Leahy. Thank you. So we were misled by that 
testimony last week.
    Let us say an American soldier is captured by a foreign 
government, and they accuse him, say, of spying. They obtain 
evidence against him by preventing him from sleeping for days 
on end or requiring him to stand or squat for hours or 
interrogating this American for 18 hours a day. Then they 
convene a military commission with judges handpicked by their 
King or President or Prime Minister, whatever it might be.
    Then they exclude the accused from large portions of his 
trial, introduce a statement from the interrogator that they 
never gave the accused an opportunity to read, to say whether 
that was what he said or not, and then permit the death penalty 
to be imposed on that American soldier by a less than unanimous 
vote.
    Afterwards, you have an appeals panel whose members were, 
again, handpicked by whoever the head of this foreign country 
is, and who had also assisted the prosecution--the appeals 
court had assisted the prosecution in the preparation of the 
case.
    Would you have any objection to that?
    Attorney General Gonzales. I would have a lot of objections 
to that. I do not know if you intend by that characterization 
to describe the military procedures that the Department of 
Defense has worked on for many, many months. That certainly 
would not be accurate.
    Senator Leahy. Well, it is hard to see where the 
differences are with what has happened in practice. We are 
saying that in this case the soldier is accused of being a spy, 
and as you know, international law--in particular, The Hague 
Convention--provides no protection for spies. But I am glad to 
hear that you would object if another country tried this.
    In 2002, 17 American POWs and their immediate family 
members brought a claim against the Iraqi Government and Saddam 
Hussein for the brutal torture and horrendous abuse they 
suffered while they were detained during the 1991 Gulf War.
    Now, after these POWs got a judgment in Federal district 
court, your administration took legal steps that had the effect 
of protecting Iraq and Saddam Hussein from liability, denying 
these Americans any kind of compensation for the torture these 
Americans received at the hands of the Iraqis.
    Why do you oppose and continue to oppose justice for 
Americans who were tortured under the regime of Saddam Hussein? 
If he is as bad as everybody says, why do we stop Americans 
from getting any recompense for the torture he committed?
    Attorney General Gonzales. Well, of course, the treatment 
that was dispensed by the Hussein regime was atrocious. It is 
for that reason that he is now being tried--
    Senator Leahy. That is not the question.
    Attorney General Gonzales.--for that kind of conduct.
    Senator Leahy. Why are we opposing justice for the 
Americans? Why are we blocking it? Because that was a country 
that was recognized by us and the U.N.
    We sent high-ranking Republicans and others over to meet 
with Saddam Hussein. We are doing everything possible to help 
out Iraqis with their claims. Why are we blocking Americans who 
have a claim because they were tortured?
    Attorney General Gonzales. Well, again, Senator, this 
implicates serious and delicate issues relating to actions of a 
sovereignty, and the notion--
    Senator Leahy. It is a pretty serious issue that those 
Americans were tortured.
    Attorney General Gonzales. Absolutely, and those involved 
in that conduct are going to be held accountable and should be 
held accountable. But allowing people to go into the courts and 
to sue foreign leaders does implicate some serious issues 
relating to sovereignty that I think must be considered in 
making the decision--
    Senator Leahy. We do not stop people from going in and 
suing Fidel Castro, for example. Why should they not be allowed 
to do this? You know, the Senate, the Republican-controlled 
Senate, has twice passed resolutions asking the administration 
to sit down and work with these people to get a just 
settlement, and I supported those resolutions. So have you met 
with these victims and their families?
    Attorney General Gonzales. I have not personally met them.
    Senator Leahy. Has anybody met with them from the 
administration pursuant to the Senate resolutions?
    Attorney General Gonzales. I do not know if that is, in 
fact, the case, but I am happy to check and get back to you, 
Senator.
    Senator Leahy. At this point they are being blocked by 
their own Government from seeking it, and I will introduce 
whatever you want for the record, but the fact of the matter is 
these Americans were tortured by Iraqis and now they are being 
blocked by not the Iraqi Government from recovering, but by 
your administration. It just does not make sense.
    Now, in a number of States, when soldiers are killed in the 
line of duty, the Governors will order the lowering of the 
American flag, which is a mark of honor to those American 
soldiers who were killed in the line of duty. Do you think that 
is appropriate? Do you have any criticism of Governors doing 
that?
    Attorney General Gonzales. I do not.
    Senator Leahy. Do you know of anybody in your 
administration that does?
    Attorney General Gonzales. I do not.
    Senator Leahy. Interesting, because many have. They do not 
think that this should be done by Governors. In my State, I 
believe you will find it true that Vermont has lost more than 
any other State on a per capita basis. And I applaud our 
Governor, a Republican, for lowering the flags to half-staff 
when that happens.
    Attorney General Gonzales. Senator, I do not know who you 
are referring to when you say people have criticisms about 
that.
    Senator Leahy. You have no criticism.
    Attorney General Gonzales. Sir, I have no criticism. I 
think our men and women should be honored for their service.
    Senator Leahy. So do I. So let us ask another question that 
profoundly affects the lives of many Americans. We have seen a 
dramatic increase in violent crime in our Nation. The FBI 
report shows its preliminary statistics on crime for last year 
show the number of violent crimes is on the rise: murders up 
almost 5 percent, the largest percentage increase in 15 years; 
robberies rose by almost the same amount.
    Now, we had seen crime come down during the Clinton 
administration. We passed the Clinton administration's crime 
bill. We put more cops on the street. And your administration 
was glad to take credit for that.
    In fact, in his 2004 resignation letter to the President, 
your predecessor, John Ashcroft, boldly declared the objective 
of securing the safety of Americans from crime and terror has 
been achieved. ``Mission accomplished,'' some might say. Well, 
we have seen how often the ``Mission accomplished'' sign is 
accurate.
    The administration has proposed cutting $2 billion in 
Federal aid to State and local law enforcement. Do you think 
that is the right signal to send at a time when crime is going 
up?
    Attorney General Gonzales. Well, of course, you said the 
right word--``preliminary statistics.'' We need to understand 
the reasons for those numbers, and obviously I am concerned 
that, to the extent that crime is rising--
    Senator Leahy. Well, you have had 6 months to be looking at 
why crime is rising. These are last year's numbers.
    Attorney General Gonzales. I do not think we are in a 
position yet to definitively say the reasons for the rise in 
crime.
    Senator Leahy. Well, you are in a position to say whether 
you agree or not whether the $2 billion cut your administration 
has made to State and local law enforcement. Do you agree with 
that?
    Attorney General Gonzales. Well, my own sense, Senator, is 
that you cannot look at just one particular number and 
determine--
    Senator Leahy. Would you agree with the $2 billion cut? 
That should be easy enough. Do you agree with that $2 billion 
cut? This is money going to local and State police to cut down 
crime, and, of course, they have the preliminary 
responsibility. Do you agree with that cut?
    Attorney General Gonzales. Well, again, I might agree with 
portions of it, depending on what those funds are being used 
for. If they are used for programs that are ineffective, that 
are being duplicated--
    Senator Leahy. Do you disagree with any portion of it?
    Attorney General Gonzales. Pardon me, sir?
    Senator Leahy. Do you disagree with any portion of it?
    Attorney General Gonzales. Sir, I do not know what the $2 
billion covers. I would be happy to have--
    Senator Leahy. Let me give you one area.
    Attorney General Gonzales.--additional discussions with you 
about it.
    Senator Leahy. The Bush administration proposed to zero out 
the Crime Victims Trust Fund. That would rescind money 
collected from criminals intended to fund 4,400 direct service 
programs to 4 million victims of crime annually.
    Attorney General Gonzales. We support very much, of course, 
having moneys available for victims.
    Senator Leahy. Do you agree with zeroing out the Crime 
Victims Trust Fund? Yes or no.
    Attorney General Gonzales. Well, the reason that we support 
that is because under congressional rules we cannot spend an 
amount over the cap.
    Senator Leahy. Well, let me ask you this: The House and the 
Senate have passed bills asking you to abandon your efforts to 
emptying the Crime Victims Fund. Do you agree with that?
    Attorney General Gonzales. I am sorry, Senator? Can you 
repeat that?
    Senator Leahy. The House and the Senate both passed 
legislation asking you not to abandon--or not to empty the 
Crime Victims Fund. Do you agree with that or not?
    Attorney General Gonzales. Of course, if it is the will of 
the House and the Senate, we will abide by that.
    Senator Leahy. Mr. Chairman, my time is up. I will have 
more questions in the next round.
    Chairman Specter. Thank you, Senator Leahy.
    We will proceed under the early bird rule in the order of 
arrival, and on the Republican side, the order is Senator 
Hatch, Senator Cornyn, Senator Grassley, Senator DeWine, 
Senator Sessions, and Senator Kyl. So we turn now to Senator 
Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. Welcome, General 
Gonzales.
    I want to touch on a few of the issues that you have been 
asked about already, and let me start with the questions that 
Senator Leahy had about the treatment of Americans who might be 
captured on the battlefield in some hypothetical circumstance 
and whether they should be treated as unlawful combatants as 
the detainees at Guantanamo, the al Qaeda detainees, are.
    America is a signatory to the Geneva Conventions, and our 
troops wear a uniform. They respond to a chain of command. They 
obey the laws of war. And because they meet all four of those 
criteria, they are entitled to be treated as prisoners of war 
if they are captured on the battlefield, are they not?
    Attorney General Gonzales. That is correct, Senator.
    The reason that we would object to the kind of treatment 
described by Senator Leahy is because the United States is a 
signatory to the Geneva Conventions.
    Our soldiers do fight according to the laws of war. As you 
indicated, they do wear uniforms, they carry arms openly, they 
fight under a command structure, and they follow the laws of 
war. And as a result of all of that, they are entitled to the 
full protections of the Geneva Conventions that are afforded to 
prisoners of war.
    Senator Cornyn. American troops do not divert from these 
rules. Should there be an exception to that, they are 
investigated and prosecuted to the fullest extent of the law, 
are they not?
    Attorney General Gonzales. In all the actions for the 
Department of Defense, of course, one of the considerations is 
what is going to be the collateral damage, what will be the 
loss of innocent life. If the belief is that the risks for 
collateral damage are too high, there are occasions where 
certain maneuvers are not undertaken because of that very 
concern.
    Unfortunately, war is messy and there are instances when 
civilian life is lost. When that happens, there is an 
investigation by the Department of Defense to ensure that 
everything that should have been done to protect against that 
loss was, in fact, done.
    Senator Cornyn. But what we do in the event there is a 
criminal act and investigation and prosecution, the enemy that 
we are confronting in this global war on terror actually 
targets civilians, does it not?
    Attorney General Gonzales. They not only target civilians, 
they celebrate it. They emphasize that tactic, absolutely. The 
difference between the United States and our enemy, between the 
United States and our friends and allies around the world and 
our enemy, is that there are certain standards that must be 
met. We are held to account to those standards. Any infraction 
against those standards is investigated. If people do not meet 
those standards, they are held accountable.
    Senator Cornyn. And I believe we covered this at your 
confirmation hearing on January 6. It is pretty clear, from at 
least three Federal court decisions--and the 9/11 Commission 
made this observation as well, as well as the Schlesinger 
Commission that independently investigated some of the 
interrogation and detention policies of the U.S. Government--
that Al Qaeda, because it does target civilians, because it 
does not observe the law of war, because it will engage in 
whatever heinous or barbaric practice that it deems expedient 
in order to kill innocent people, Al Qaeda detainees are not 
entitled to the same privileges accorded to American prisoners 
of war, because Americans do not operate the same way that Al 
Qaeda does. Is that not right?
    Attorney General Gonzales. We believe that that is true as 
a matter of law, Senator. The President of the United States 
made a formal determination that the Geneva Conventions do not 
apply with respect to our conflict with Al Qaeda, as a general 
matter, because they are not a state signatory to the Geneva 
Conventions.
    The President made a determination as well in 2002 that the 
Geneva Convention does apply with respect to our conflict with 
the Taliban. But because the Taliban is not fighting according 
to the laws of war--for example, they do not wear a uniform and 
do not operate under a command structure--the President 
determined that they also were not entitled to the protections 
of prisoners of war.
    Nonetheless, the President also gave a directive that the 
military treat those who have been captured humanely, and 
subject to military necessity and as appropriate, consistent 
with the Geneva Conventions. That was a directive that the 
President gave to our soldiers in 2002.
    Senator Cornyn. But the reason why that is important, 
General Gonzales, would you not agree, that beyond just sort of 
an intellectual exercise or whether we are checking off all the 
right boxes, is because it is important for us to be able to 
interrogate the detainees and to obtain actionable intelligence 
that can, in fact, help us detect, disrupt and deter terrorist 
attacks? Is that not correct?
    Attorney General Gonzales. When you are fighting an enemy 
like this, where you do not know whether or not someone you are 
capturing is at a corporal level or a general level because 
they do not wear uniforms, absolutely, getting information from 
everyone that is captured is essential.
    We do not have the luxury of being able to look at someone 
and make a determination as an initial matter, well, this 
person has no information that will help save American lives 
either in America or on the battlefield.
    Getting information about this enemy, this new kind of 
enemy in this new kind of war, is absolutely essential if we 
are going to be successful.
    Senator Cornyn. Is that one of the reasons that you are 
concerned that the Congress not overreact to the Hamdan 
decision and perhaps create impediments to our ability to 
interrogate detainees and obtain actionable intelligence? While 
we treat them humanely, are you concerned about us erecting 
unnecessary impediments to our ability to gain that 
information?
    Attorney General Gonzales. We must, of course, treat 
detainees, enemy combatants, humanely. But we are still in a 
conflict, and that is the difference between these commissions 
and, other international commissions that have been established 
in the past, which many people refer to or cite to as precedent 
for the kind of procedures that we should use in our conflict 
with Al Qaeda.
    Because we are still at war, it is vitally important that 
we are able to get information as quickly as possible. And we 
are concerned that, for example, when someone kicks in a door, 
they are potentially stumbling onto a crime scene, potentially 
a war crime violation.
    In order to prosecute under the UCMJ, once you suspect that 
someone has committed a crime, you are obliged to give them 
those Miranda warnings and to provide a lawyer.
    Well, once you do all of that, you will not be able to get, 
perhaps, very important information that is necessary to 
protect the troops, perhaps necessary to protect Americans here 
at home.
    Senator Cornyn. And as I understood your testimony, that is 
why you are concerned about perhaps an over- expansive 
application of Common Article 3, insofar as it would outsource 
to the European Commission on Human Rights and others whether 
or not certain conduct constitutes an outrage on personal 
dignity and other ambiguous terms that might be construed in a 
way that would jeopardize our own troops.
    Attorney General Gonzales. I do not want this to be 
overstated. If you look at the words of the Common Article 3, 
it clearly contemplates serious conduct that we would all agree 
should be prohibited; things like maiming and torture.
    The concern that we have is that there are some phrases 
that have been interpreted by other courts and other treaties 
in a way that I think could put at risk our soldiers who are 
simply doing their job and getting information against this new 
kind of enemy.
    And I think when you have conduct that is now criminalized 
under the War Crimes Act, there has to be absolute certainty 
about what is or is not permitted. And that is why I think it 
is important for the Congress to speak clearly about what the 
limits are with respect to acceptable conduct to meet our 
obligations under Common Article 3.
    Senator Cornyn. On another subject, General Gonzales, in 
the last minute that I have, let me ask you, in the 106th 
Congress, a general statute criminalizing general unauthorized 
leaks of classified information was passed by Congress, but 
then vetoed by President Clinton.
    The 108th Congress asked General Ashcroft, your 
predecessor, to review the statutory framework and provide us 
with recommendations. General Ashcroft determined there was no 
single comprehensive statute that provided criminal penalties 
for unauthorized disclosure of classified information, but he 
said the main problem was the difficulty in identifying 
leakers.
    Would you give us your opinion as to whether it would be 
helpful to the Department of Justice for us to update and 
perhaps address this lack of a generalized statute 
criminalizing the leak of classified information?
    Attorney General Gonzales. I will say that we, as a general 
matter, have great difficulty in our investigations and 
prosecutions of those who divulge classified information.
    Oftentimes, the larger the universe of people who 
potentially could have access to that information, the more 
likely it is that we will not be able to mount a successful 
investigation or certainly a successful prosecution. By their 
very nature, these are very, very tough cases to make.
    Nonetheless, we are at a time of war, and there are some 
highly classified programs that are being disclosed which are 
harmful to the national security of this country. And under 
those circumstances, we have an obligation to do the very best 
we can to prosecute those who disclose this kind of 
information.
    You asked me if it is helpful. My response is that we are 
having a very difficult time under the current regime, under 
our current laws, in making these kinds of cases.
    Senator Cornyn. Thank you. My time has expired.
    Chairman Specter. Thank you, Senator Cornyn.
    The Democrats, in order of arrival under the early bird 
rule, are: Senator Kohl, Senator Kennedy, Senator Feingold, 
Senator Feinstein and Senator Durbin, and Senator Kohl has 
agreed to yield to the next round to Senator Kennedy.
    Senator Kennedy. I thank the Senator. Attorney General, 
have you had an opportunity to review the testimony that was 
given by the JAGs before the Senate Armed Services Committee 
recently? It might be worthwhile, if you have an opportunity to 
review that testimony.
    It was enormously constructive and very helpful. It dealt 
with a lot of complexities, dealt with the history, and I think 
made some very positive recommendations about how to deal with 
some of the concerns you have expressed and some of the 
concerns that have been expressed by the Supreme Court. I do 
not know whether you have had a chance to review it.
    Attorney General Gonzales. Senator, I have reviewed the 
testimony, and I was able to watch a small portion of it.
    Senator Kennedy. If you have a general response to it, or 
in particular, maybe you could submit it. I will submit a 
question on that.
    You mentioned Alice Fisher to be nominated to the head of 
the Criminal Division. As you know, she was reported out of the 
committee. A number of us did not vote one way or the other, 
but she has been voted out. She has been out, now, for several 
months. We are eager, as you are, to get her as the head of the 
Criminal Division. It is extremely important.
    There was the one outstanding issue that was brought up by 
the Ranking Member, Carl Levin, of the Armed Services 
Committee, about communications between an FBI agent and her, 
talking about torture in Guantanamo.
    It is rather explicit on that issue. I have read the e-mail 
myself. She was asked about it. She did not remember the e-mail 
at all. No reason to question her good faith. It was the desire 
of a member of the Senate to inquire of this FBI agent, without 
a political operative being present, where someone from the 
IG's office would be perfectly satisfactory.
    A very distinguished judge in my part of the country, Judge 
Wolf, who is a Republican, District Court, I asked him just 
about these circumstances, whether he thought that this was an 
unusual process or procedure. He agreed with Senator Levin.
    It seems to me we could clear this up. The whole issue of 
torture, obviously, is enormously important. I think we are 
entitled to get that kind of information. We are mindful we are 
getting close to an August period and the process of recess 
appointments are out there.
    But it does seem to me if you would review--that request 
was made of the Justice Department and rejected, as I 
understand, by the Justice Department, Senator Levin's request 
to be able to talk to the FBI agent with a member, any member, 
of the IG staff present, but not a political operative. If that 
is your understanding--I do not want to spend much time on it, 
but I would be glad to--
    Attorney General Gonzales. Well, Senator, thank you for 
raising it. This is very, very important.
    We have tried to accommodate Senator Levin's request, and I 
am happy to have him talk to the agent. If it is someone with 
the IG--at first, he wanted no one but the agent.
    But if that is acceptable and if the questions can be 
limited to Alice Fisher, I think he--my concern is he wants to 
use this as an opportunity to get into a lot of other areas. If 
it is limited to Alice Fisher, we are fine and we have offered 
this. And so, I hope we can move this forward.
    Senator Kennedy. All right. Well, let us try and review it.
    Attorney General Gonzales. Thank you.
    Senator Kennedy. It is Senator Levin's request, but I 
happen to be interested in the same issue. We would appreciate 
that very much.
    Now, the House of Representatives passed that Voting Rights 
Act. I would like to know whether your position--the 
administration's position--is for passing the House-passed bill 
without amendments.
    Attorney General Gonzales. I do not know if I am in a 
position to state, as the administration, that we are going to 
support that. I can say we have had some very productive 
discussions on the bill, and I have every expectation that the 
bill is going to be reauthorized. And the President is on 
record, as I am on record, saying we fully support the 
reauthorization of the Voting Rights Act, Senator.
    Senator Kennedy. We are moving along in a very timely way, 
and the House has moved along. The Chairman is having a markup 
tomorrow afternoon, and we want to know where the 
administration is. I had asked you previously about this issue. 
As I say, time is of enormous importance. A request has been 
made to the Majority Leader to get the time to deal with this 
in the last few weeks of the Senate session. I am very hopeful 
that that will be the case. The Chairman has pressed this. The 
Majority Leader knows it.
    It will be enormously important to the success of the 
legislation if we have the strong support of the administration 
to support the House-passed legislation. And that is my 
question, again.
    Attorney General Gonzales. Senator, I am not in a position 
to say formally what our position is. But as you say, it is 
moving along and it is going to move along.
    Senator Kennedy. Well, can I say, if you cannot say yes, 
can you tell us at least what the areas are that you want to 
alter or change in any way?
    Attorney General Gonzales. Senator, we want to ensure that 
the language is sufficient, that it will withstand challenge, 
because it will, undoubtedly, be challenged.
    Senator Kennedy. Yes.
    Attorney General Gonzales. We have every expectation that 
the Voting Rights Act is going to be reauthorized. We fully 
support the reauthorization. And I wish I could say more, but I 
cannot, Senator.
    Senator Kennedy. Well, I appreciate it. The time is moving 
along, I want to cover some other areas, but this is enormously 
important.
    Attorney General Gonzales. It is important. It is important 
to me, too.
    Senator Kennedy. And to you, I am sure.
    Attorney General Gonzales. Yes, sir.
    Senator Kennedy. We have a situation where not only is it 
important to get an Act passed, but also then get enforcement 
of it. This is important, because from 2000 and 2004 elections, 
the Department did not file a single lawsuit relating to either 
of those elections on behalf of African-American voters.
    The Bush administration Civil Rights Division has litigated 
only three lawsuits on behalf of African-American voters, two 
of which were initiated by Attorney General Reno. And just last 
week, the Department filed a complaint against Euclid, Ohio, 
the first voting rights lawsuit investigated and filed on 
behalf of African-Americans.
    It is even more astounding when one considers that the Bush 
administration is in the process of litigating the Department's 
first-ever case alleging discrimination against white voters.
    So this is the record. We need to get a good bill and we 
need the assurances of the enforcement.
    Attorney General Gonzales. Senator, might I just say that 
the Chairman expressed some concerns in response to a newspaper 
story about the record of the Civil Rights Division, and we 
provided to him a discussion about our record in this area, and 
we will share a copy with you, which I think supports, 
certainly, my view that the Civil Rights Division is doing a 
good job in the protection of civil rights.
    Senator Kennedy. Well, I just mentioned that. I am not 
going to have time to go through the Section 5, where the 
career attorneys were overruled in the Texas case and also 
overruled in the Georgia case, and even your Department did not 
find any problem with what has been labeled a $20 fee. Some 
have called it a poll tax. And not surprisingly, it has been 
struck down again.
    Let me, if I could, go quickly to the immigration bill.
    Attorney General Gonzales. One thing on VRA. I can say we 
support the bill passed by the House. I have stated the 
administration's SOP. So, I can say that.
    Senator Kennedy. Could you repeat it one more time so we 
all get it?
    Attorney General Gonzales. We support the bill passed by 
the House, as stated in the administration's SOP.
    Senator Kennedy. Stated in the what?
    Attorney General Gonzales. In the administration's position 
on the legislation.
    Senator Kennedy. Well, the problem with the 
administration's position is that the administration supports 
the legislative intent. That is what it says, ``legislative 
intent.''
    And that is what you are saying now: we support the bill 
and the administration's statement. But your statement is not 
saying that you support the bill. I do not want to be splitting 
hairs.
    Attorney General Gonzales. I know this is important to you. 
It is important to me. Let me see if, during the day, we can 
get additional information to give to you.
    Senator Kennedy. All right. If we could get very strong on 
it, I would tell you that it would be enormously significant 
and important.
    Just quickly on the immigration. We have had your support 
for a comprehensive immigration bill. Would you spend maybe 20 
seconds in saying that, as compared to enforcement only, 
please?
    Attorney General Gonzales. More importantly, the President 
believes very strongly in comprehensive immigration reforms. 
Obviously, border security is very, very important, but I do 
not think you can have effective border security unless you are 
also taking into account those that are here in this country 
illegally.
    We need to know who they are, where they are at and why 
they are here. And so, I think this is a problem that will only 
get worse over time. We need to deal with it, I think, at once. 
I think the American people expect the Congress and the 
President to deal with it at once. We know it is a tough issue, 
but that is what we are here to do, is try to deal with these 
tough issues.
    Senator Kennedy. Just finally, on the FISA. They are 
important questions and we cannot really deal with them in 15 
seconds. How do you determine whether an entire program 
complies with the Fourth Amendment's prohibition of 
unreasonable search without knowing who the specific 
individuals to be searched are and under what circumstances? 
Does the Fourth Amendment not require such?
    Attorney General Gonzales. Senator, obviously, that will be 
something that will have to be worked out in the details of the 
application that goes to the court, and that will be the 
challenge for the administration, to present an application 
where these judges, who, like every other Federal judge in the 
United States, have taken an oath to preserve, protect and 
defend the Constitution.
    Well, they will have to make a determination based upon 
that application that the search that will be undertaken is, in 
fact, reasonable under the Fourth Amendment, which is sort of a 
balancing test. And I think, in taking into account the purpose 
of the search, which, of course, is the protection of this 
country and the national security of our country during a time 
of war, and when you talk about a program that is limited in 
time and limited in scope to some degree, we have confidence 
that the court will find that, in fact, this is a program that 
is constitutional.
    That is one of the reasons why the President was 
comfortable in making the commitment to the Chairman, that if 
the legislation passes consistent with what has been outlined 
to the President, that it will be submitted to the FISA court 
for review of constitutionality.
    Senator Kennedy. My time is up.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Kennedy, you raised the issue of the Voting Rights 
Act. A few moments ago I received a note that the Majority 
Leader, Senator Frist, and the Democratic Leader, Senator Reid, 
who want to act on the bill this week, and we are considering 
taking our bill and putting it on Rule 14.
    And I consulted with Senator Leahy, and my preference, 
concurred with by Senator Leahy, is that we ought to go ahead 
with our markup tomorrow afternoon and report the bill out by 
the committee.
    The Supreme Court has had a very stringent test on 
constitutionality in a number of respects, holding some Acts 
unconstitutional because of our ``method of reasoning'' and 
using a principle of proportionate and very tough standards, 
and I think it would be a better practice to move through the 
committee.
    So let me say to all the Committee members, we will move 
ahead with our markup tomorrow afternoon to try to get it out 
so that the Senate can take it up on Thursday, and we can pass 
it this week in accordance with the schedule which Senator 
Frist and Senator Reid would like to accomplish.
    Next in line is Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman.
    Happy to welcome you, General, to the Committee. I know you 
always enjoy these experiences up in front of the Judiciary 
Committee.
    The House and Senate are poised to pass today or tomorrow 
the sex offender bill that Senator Biden and I sponsored back 
in May of 2005, and we expect the President to sign that bill 
next week, which would be July 27, which happens to be the 25th 
anniversary of the abduction and murder of 6-year-old Adam 
Walsh, son of John and Reve Walsh.
    As you, Mr. Attorney General, are well aware, sex offenders 
are a menace to our society, running unchecked through our 
schools and neighborhoods with little or no communication 
between the States regarding their whereabouts.
    And I would like to know today, will you fully support all 
aspects of this bill, and will the Department enforce these 
provisions to the fullest extent possible?
    Attorney General Gonzales. Yes, and yes.
    Senator Hatch. Good.
    One provision in this sex offender bill creates a new 
office within the Department of Justice called the SMART 
office, S-M-A-R-T, which is an acronym for Sentencing, 
Monitoring, Apprehending, Registering and Tracking sex 
offenders, and, of course, named after the Smart family, whose 
daughter Elizabeth was abducted and treated so terribly.
    The SMART office will have a Presidential appointee and 
Senate-confirmed director. This new director will likely be 
appointed during your tenure. Will you make this a priority 
within your Department?
    Attorney General Gonzales. I will make it a priority. It 
already is a priority, Senator Hatch.
    Can I just say a few words about this issue?
    Senator Hatch. Sure.
    Attorney General Gonzales. Because I want to commend the 
Congress for this. The threat to our kids through predators and 
sex offenders is tremendous, and I fear that because of 
changing technology, like the Internet, the threats are even 
greater.
    This is one area I really encourage the Congress to remain 
focused on. Because of changing technology, our battle against 
predators is a tough battle and we need all the tools 
necessary, and this as something, as a father of two young 
boys, that I really, really worry about.
    Senator Hatch. I appreciate that. It means a lot. In 
December of 2005, I sponsored another piece of child protection 
legislation called Protecting Children from Sexual Exploitation 
Act, S. 2140, which deals specifically with recordkeeping by 
producers of sexually explicit material. Members on both sides 
of the aisle, as well as other interested parties, have 
participated in a spirited and lengthy process of discussion 
and negotiation.
    Now, this bill is an example of the Congress working to 
give you the tools necessary to do your job, and I think the 
American people expect the Department to vigorously enforce 
anti-pornography statutes and, of course, to assist the States 
in keeping sex offenders away from our children.
    I want to assure you and the Department that these laws 
will be strictly enforced, and that you will use the U.S. 
Marshal Service to hunt down sexual predators as our bill 
authorizes.
    I missed an awful lot of the early questioning. But I 
presume that the Department is going to work very closely with 
us to try and come up with a way of solving the problems raised 
by the Hamdan decision. That cooperation began when we had 
Steve Bradbury up last week, and of course it will continue.
    Attorney General Gonzales. It is something that the 
Department is spending a great deal of time on, looking at ways 
that we can work with the Congress to find a way to make 
military commissions remain a valuable tool for the President 
of the United States in a time of war.
    Senator Hatch. Well, unlike some of the hysterical comments 
about that particular decision, as though it was a complete 
slap in the face to the administration, I did not think it was.
    There are a number of things the decision said, but 
basically it said that they expect us to come up with a set of 
procedures that will work during this process. They did not 
necessarily outlaw military commissions.
    Attorney General Gonzales. Absolutely. And we have to 
remember that, until June 29th, everything the President was 
doing and had authorized was, in fact, lawful. He had a 
decision from the D.C. Circuit affirming, in fact, that what we 
were doing was lawful.
    These are very, very tough issues. You have to remember, 
you had six out of eight justices write in that case, for a 
total of 177 pages of analysis. So to say that this was 
something that was so obviously wrong, I just disagree.
    I think these are tough issues. We dealt with it the best 
way that we could. We now have additional guidance from the 
Supreme Court and we look forward to working with the Congress 
to address this important tool.
    Senator Hatch. We appreciate it. I think we need to have a 
bipartisan effort to come up with the procedures that will 
allow military commissions to function, and function as they 
always have since the time of George Washington, right on down 
to today, the most prominent of which were when Abraham Lincoln 
was President, and also when, I guess it was, both FDR and 
Truman were President. I guess I should not just highlight two 
or three.
    But the fact of the matter is, you have had this authority 
until this Hamdan decision, and it did not take away the 
authority from you. It just said that we have got to come up 
with a way of doing it so it is more acceptable.
    Attorney General Gonzales. The Supreme Court did not say we 
could not use military commissions, but the court said that if 
we were going to use procedures that were not uniform with the 
Uniform Code of Military Justice, that there would have to be 
practical necessity to do so, or Congress had to give express 
authority for different kinds of procedures, and that is what 
we are exploring with the Congress.
    Senator Hatch. All I am asking is that the Department work 
very closely with us, and hopefully we up here can do it in a 
bipartisan way without all the politics that seem to permeate 
this body in its current partisan status.
    Attorney General Gonzales. I am confident we can work 
together with Senators on both sides of the aisle, Senator, to 
get this problem addressed.
    Senator Hatch. Well, it is in the best interests of our 
country and the best interests of our war against terrorism, 
and I know that you will help us to get this done.
    I personally have appreciated the work that your office has 
done, and those in the White House have done, with Senator 
Specter and his, I think, terrific effort to try and resolve 
the warrantless surveillance issues in a way that would 
require, or at least allow, the FISA court to play a 
significant role, because current law really, in my opinion, 
does not cover what was done there.
    I think there are all kinds of precedents that the 
President has inherent powers to do what was done, and we would 
be criticizing him today if he was not on top of it, doing what 
he should do.
    But I want to compliment you for the efforts that you have 
made to try and help resolve our problems, in the minds of many 
Members of the Congress, and I think many members of the 
administration, to try and get a system that everybody agrees 
on, or most everybody agrees on, so that we can keep up this 
war against terrorism in a way that works.
    Attorney General Gonzales. Well, this is a very important 
program, Senator, as you know. Being a member of the 
Intelligence Committee, you know about how this program works, 
the effectiveness of this program. We look forward to continue 
working with the Congress to try to find a way to make this 
tool remain available to the President of the United States.
    Senator Hatch. One of the things I have appreciated about 
your tenure and your service, is the way you are a ``Cool Hand 
Luke.'' You do not lose your temper, you do not get emotional 
about it. You just steadily plod ahead, trying to make sure 
that we resolve these problems in the best way we can.
    I do not know how we can ask any more of you than that, and 
the excellent people who are around you who have worked with us 
through the years, not just with my staff, but with the 
Committee as a whole. I personally just want to congratulate 
you for the work you have done as Attorney General. I have a 
great admiration for you and have a great feeling of friendship 
and respect. I think you have served well. In spite of all of 
the massive criticism that seems to hit every Attorney General, 
no matter which party.
    Attorney General Gonzales. That is part of the job, 
Senator.
    Senator Hatch. One thing I am very concerned about, though. 
I would like to just kind of make it here in open, public 
forum. That is, I do not think ONDCP is doing the job that it 
should be doing. I really believe that some there have ignored 
the virulent problems with meth.
    Meth is, in my opinion, one of the most important, 
virulent, criminal drugs in America today. It does not take 
much to have a young person, or anybody else, hooked on that 
drug. It takes maybe just one usage of it for most people. I do 
not believe it has been emphasized as much as it should over 
there at ONDCP, and I am pretty upset about it.
    Attorney General Gonzales. I have been at several events 
with Director Walters where we talked about meth, and his focus 
on meth. Obviously, it is a huge focus for the Department. But 
perhaps there is information we can give you on what they are 
doing in the area, and if there is more than can be done, not 
just with ONDCP, but with the Department of Justice, in this 
area, I would be very interested in talking to you further 
about it.
    Senator Hatch. Well, I would appreciate getting that 
information. I would love to know that they are doing a better 
job than I think they are doing.
    Attorney General Gonzales. Yes, sir.
    Senator Hatch. Thanks, Mr. Chairman.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Kohl?
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Attorney General, when you worked at the White House 
you advised the President that the Geneva Conventions, 
including Common Article 3, did not apply to Al Qaeda or the 
Taliban.
    At your confirmation hearing, you said this was 
``absolutely the right decision,'' and, of course, the Supreme 
Court disagreed. At the time the recommendation was made, 
Secretary Powell strongly disagreed with your position on 
Geneva Conventions.
    He warned that it would adversely affect our foreign 
policy, lead to investigations of our troops, undermine 
international cooperation among law enforcement and 
intelligence officials, and lead to abuse. At your confirmation 
hearing, you said finding any Geneva protections applicable to 
the conflict would ``make no sense.''
    Unfortunately, if we look at Secretary Powell's concerns 
now, everything he warned about came to pass. Do you still 
believe that, notwithstanding the Supreme Court's decision, 
that your judgment at that time, finding Geneva applications 
not applicable to the conflict made no sense?
    Attorney General Gonzales. Of course, the court only said 
that Common Article 3 of Geneva applies to the conflict with Al 
Qaeda, not the rest of the Geneva Conventions. Let us be very, 
very clear about that.
    And whether or not I agree with the court's conclusion as 
to whether or not Common Article 3 should apply with our 
conflict with Al Qaeda, the court said that it does and, as far 
as I am concerned, that is the end of the debate and the 
discussion and we ought to move on and see what we should be 
doing as a government to ensure that we have the tools 
necessary to win this war on terror, and also that we have 
procedures in place to ensure the safety of our men and women 
fighting on the front lines in this war on terror.
    Senator Kohl. You then do agree or do not agree with the 
Supreme Court's decision?
    Attorney General Gonzales. Let me just say again, of course 
the position of the Department, which I believe was reflected 
in our briefs, the Supreme Court disagreed with respect to 
Common Article 3. As I have said before, I look at words of a 
statute or words in a treaty and I think they should mean what 
they say. Common Article 3 talks about its application to 
conflicts not of an international nature.
    I question whether or not our conflict with Al Qaeda meets 
that definition. But again, no matter what I feel about it 
personally, it is the law, according to the Supreme Court, and 
we are going to abide by the law and we are going to conform 
our conduct to ensure that it is consistent with the law. That 
is the thing that is important. We talk about respect for the 
rule of law, and that is that you comply with the decisions of 
our courts.
    Senator Kohl. Very good.
    Mr. Attorney General, Federal funding for local law 
enforcement has been dramatically reduced since President Bush 
took office. Just a few years ago, the C.O.P.S. program 
received a little more than a billion dollars in the Department 
of Justice budget.
    Earlier this year, the administration requested $100 
million for the entire C.O.P.S. program and nothing for the 
C.O.P.S. hiring program, which has been eliminated by this 
administration.
    The Byrne-Grant program is another law enforcement funding 
program run by the Department of Justice. Byrne-Grants, as you 
know, fund State and local drug task forces, crime prevention 
programs, prosecution initiatives, and many other local law 
crime control programs. For the past 2 years, you have proposed 
wiping out this program.
    Perhaps these budget cuts could be justified if violent 
crime was not a problem any more, but as we know, that could 
not be further from the truth. How can the administration 
possibly justify cutting off programs that support local law 
enforcement in the face of a resurgent crime wave? These were 
the very programs that successfully reduced crime in the 
1990's.
    Attorney General Gonzales. Obviously we are very concerned 
about measures to fight against violent crime. We obviously 
want to make sure we are doing what we can do to help our State 
and local partners deal with violent crime. We are operating 
under tough budget times with a deficit, when we are fighting a 
war. So, there are priorities that have to be accounted for in 
making budgeting decisions.
    With respect to C.O.P.S. hiring, it is true that we zeroed 
out funding for that. That was first created in the Clinton 
administration to achieve a goal of hiring, I think it was like 
200 police officers, and that goal has been met.
    I do not think it was ever the intention that it would 
continue ad infinitum, that we would continue to provide money 
to hire C.O.P.S. on the streets. You have to, Senator, look at 
other ways in which we are getting moneys to State and local 
governments.
    For example, we now have the Department of Homeland 
Security. There is a lot of money that is being made available 
to first responders through grants through the Department of 
Homeland Security. So when you look to see how much Federal 
money is now being allocated to a specific city or State, you 
cannot just look at the dollars coming through the Department 
of Justice.
    I think it is also appropriate to look at the dollars 
coming through DHS, because there is a lot of money that is 
being made available to first responders through DHS. No 
question about it, these budget decisions can be tough.
    It obviously requires us to be more efficient, to develop 
better relationships with State and local governments 
otherwise. They are important partners, and we need to figure 
out a way to make sure that they have the resources absolutely 
necessary in order to work with us in making our community 
safer.
    Senator Kohl. I would just comment that, as you know, the 
Homeland Security does not fund any C.O.P.S. on the street. The 
Homeland Security program does not fund any crime prevention 
program, in specific. They would conclude, from your actions, 
that you do not believe that the Byrne-Grant program deserves 
to be promulgated into the future because what you want to do 
is to eliminate that program.
    Attorney General Gonzales. What I can say, when I talked 
about DHS, there are times when they make money available to go 
down to first responders that can be used to purchase assets 
and resources that can be used by law enforcement, not just 
emergency and EMT, and not just by firemen. So that would be 
one way where dollars through DHS can be helpful and is, in 
fact, used by C.O.P.S. on the streets.
    I take issue with your characterization. Absolutely not. 
The fact that we may eliminate a particular program does not 
indicate a lack of support or commitment to State and locals.
    In fact, what it reflects is a decision by the 
administration that this is a program that either is no longer 
efficient or effective, or that there is a better way to 
address the particular problem.
    In some cases, quite frankly, Senator, it may be a 
determination that these are State and local issues that should 
be, hopefully, dealt with by the State and locals, or that 
there are other priorities for the Federal Government. We have 
a responsibility to protect America, to fight on behalf of 
America. So again, these are very, very tough budgeting 
decisions.
    But I do not want you to come away from this hearing 
thinking that I am not fully committed to our State and local 
partners, because nothing could be further from the truth.
    Senator Kohl. Thank you.
    Trigger locks, Mr. Attorney General. Federal law passed 
last year with President Bush's signature requires gun 
manufacturers and dealers to provide child safety locks with 
all purchased handguns. Each year, children and teenagers are 
involved in more than 10,000 accidental shootings. As you know, 
many of these shootings could be prevented.
    Many of these deaths and injuries could be prevented by the 
use of a gun lock. In the face of such facts, as you know, 70 
Senators voted to add the child safety lock provision to last 
year's gun liability bill. Former Attorney General Ashcroft 
affirmed the administration's support of this trigger lock 
mandatory sale. But last month, the House added a provision to 
a CJS appropriations bill that would prohibit your Department 
from spending any money to enforce this law.
    So, I would like some assurance that this administration 
continues to stand by its previously stated positions in 
support of the trigger lock requirement, and that you will do 
everything in your power to see that it moves forward.
    Attorney General Gonzales. I am not aware of the House 
action that you are referring to.
    Senator Kohl. Last week, they voted not to appropriate any 
funds that would allow your Department to spend money to 
enforce this law.
    Attorney General Gonzales. Before commenting on that, I 
would like to look at that, Senator. I would be happy to get 
back to you on this issue.
    Senator Kohl. Your position remains as it was, that you 
support the law, support that the law should move forward?
    Attorney General Gonzales. Well, again, I certainly support 
where we were before, but there may be information that perhaps 
my staff is aware of that I am not aware of, and rather than 
making a firm commitment on this issue, I really would like to 
have the opportunity to go back, study it, and give you a 
response.
    Senator Kohl. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kohl.
    Senator Grassley?
    Senator Grassley. General Gonzales, as you know, many times 
when we have these oversight hearings, whether it is you or 
other members of the Cabinet, I take advantage of it to talk 
about oversight issues, because I do not think Congress does 
enough oversight.
    I raise these questions for two reasons. One, because I 
think Congress ought to do more oversight, and I want to 
encourage my colleagues to do that. Second, the extent to which 
we do not get the proper cooperation from the executive branch, 
I want you to know about it so that we can get that cooperation 
and make the checks and balance system of government so 
Congress can do its constitutional job of oversight.
    So I have got three issues I am going to bring up with you. 
In regard to the first one, I want to remind you that, in 
answer to Senator Kennedy's question, this is something for you 
to keep in mind as I am going through my background for a 
couple of questions I am going to ask you.
    You just agreed to provide a line FBI agent for Senator 
Levin if the Department of Justice IG staff is present. So as I 
am going through my first point, make sure that you understand 
that you just made that commitment to Senator Kennedy.
    By the way, I am leading up to two questions that I am 
going to ask for a yes or no answer, then a third one where I 
would like a written response from you by the end of the week.
    In recent months, the Department of Health and Human 
Services has worked hand-in-glove with the Department of 
Justice to obstruct the Finance Committee's investigation of 
the antibiotic called Ketek.
    In a letter to the Finance Committee, Assistant Secretary 
Vince Ventimiglia stated that HHS consulted with the Justice 
Department regarding the executive branch's assertion of 
confidentiality.
    The Assistant Secretary broadly referred to ``longstanding 
policy'' and ``governing principles'' as a basis for denying 
access to documents and employees. Because I know that these 
claims are not correct, I asked the Congressional Research 
Service--and I am not going to go through what they said, but I 
am going to refer to what they said in this document--to look 
into these so-called policies and governing principles.
    As I anticipated, CRS told me that there is ``no legal 
basis'' for these executive assertions of confidentiality. What 
HHS and Justice are doing, I think, flies in the face of 
numerous historical precedents and legal rulings.
    In fact, the CRS memo identifies case after case where 
Congressional committees have legitimately obtained access to 
information about ongoing investigations, including 
prosecutorial documents, and conducting interviews with law 
enforcement officials, including line FBI agents and Assistant 
U.S. Attorneys.
    It seems to me that the Justice Department, in consultation 
with the Department of Health and Human Services, is part of a 
concerted effort to obstruct legitimate Congressional oversight 
into the government misconduct.
    Now, I do not accuse you of that concerted effort because 
that would be at a higher level, maybe, than you. But what is 
bothering me, is a fundamental disregard for constitutional 
mandates, long-established historical precedents, and bedrock 
legal rulings. Frankly, these are obstructive policies and 
principles.
    So then, answer yes or no. Is it not true that 
Congressional committees and their staff members have, in the 
past, had access to deliberative prosecutorial documents at the 
Department of Justice?
    Attorney General Gonzales. Do you mean during an ongoing 
investigation at the Department? If that is your question, I do 
not know the answer to that. As a general matter, I would see 
the natural problems that would arise if that were to occur, 
because if you are talking about an ongoing investigation at 
the Department and you subject yourself to in any way 
influencing that investigation, I think that puts a Member of 
Congress in serious jeopardy of being accused of somehow 
guiding, affecting, or steering an investigation at the 
Department.
    I think, for that reason, Senator, we would typically urge 
strongly, let us do our job and complete our investigation, and 
then we enter into a normal course of dialog to try to reach an 
accommodation to share information with the Congress. Or maybe 
I have misunderstood your question.
    Senator Grassley. No. As I get to a written answer, you can 
include that in your answer if you really do not know, now.
    Attorney General Gonzales. All right.
    Senator Grassley. But then this next one, in light of what 
I said that you said to Senator Kennedy, is it not true that 
Congressional committees and their staff members have, in the 
past, had access to line attorneys, line FBI agents, Assistant 
U.S. Attorneys and investigators in the performance of its 
oversight responsibilities? An obvious ``yes'' in regard to 
what you just promised Senator Kennedy.
    Attorney General Gonzales. I believe that the answer has to 
be yes, but I think those instances have been rare, and 
depending on the circumstances.
    Senator Grassley. Well, I have had access to them.
    So when I want to investigate something on Ketek that is 
killing people, a death in my own State from the use of it, and 
I want to talk to the people that are investigating it, they 
get advice from your Department that they do not have to let us 
do it. So, I want a review of that.
    So here is what I would like to have your written response 
on by the end of the week. I understand that this would be, 
expect for executive privilege or national security.
    I want the legal justification, not policies or principles, 
for denying access to deliberative, prosecutorial documents and 
for obstructing interviews with line agents in the performance 
of oversight responsibilities to examine allegations of 
government misconduct.
    Attorney General Gonzales. And this is in the course of an 
ongoing investigation at the Department, or just generally, 
sir?
    Senator Grassley. Well, this would be within the Department 
of Health and Human Services, but based on your advice.
    Attorney General Gonzales. Now, let me go on. The 
Department of Office of Professional Responsibility recently 
found that there was a reasonable basis to believe that the FBI 
retaliated against its highest-ranking Arab-American agency for 
raising concerns about being frozen out of counterterrorism 
assignments after 9/11.
    After the agent, Bassam Youssef, expressed his concern to 
Director Mueller, the FBI halted its plan to transfer him to 
the FBI's primary counterterrorism section. While I am glad 
that the OPR of the Department of Justice has recommended that 
Youssef's transfer be implemented as it should have been 4 
years ago, I am concerned that the person--or maybe persons--
responsible for halting his transfer will not be held 
accountable.
    As I understand the Department's whistle-blower 
regulations, OPR's finding will be reviewed by another office, 
but there will not necessarily be any further investigation to 
determine who is responsible for retaliation.
    How will retaliation against whistle-blowers like this ever 
stop if DOJ's internal process does not identify who is 
responsible and discipline them? So would you determine for me 
who ordered his transfer be halted, and why?
    Also, would you commit to reviewing the Department's 
regulations to make sure that there is a process for 
identifying and punishing those who retaliate against whistle-
blowers?
    Attorney General Gonzales. I will do that. Senator, let me 
just say, of course, this is a matter that is in litigation. I 
am firmly committed, and I believe that the Director is firmly 
committed, to ensure that there is not retaliation against 
whistle-blowers.
    I know the Director issued such a directive when he first 
came on board. He issued another directive in 2004 about this 
issue. But let me look into it and see what I can find out, and 
provide it to you.
    Senator Grassley. Yes.
    I am going to quickly go through my next question without 
reading it in detail. You recently had a settlement with 
Boeing. That settlement was for $615 million. Now, that sounds 
like a lot of money and a big victory for you, and the 
government generally, against somebody who did things wrong, a 
major company that did something wrong.
    But what I cannot find out from your Department, do not get 
an answer on, is whether or not some of that is tax deductible. 
The law is very clear, that you can have a penalty that spells 
out that it is not tax deductible, because if this is tax 
deductible, it is not a $615 million settlement, it is a 
settlement probably 35 percent less than the $615 million.
    The law is clear that you can settle that way. You need to 
know that lawyers sitting across the table from you know what 
the law is. It is just ludicrous that I cannot get an answer 
from your Department that they never took that into 
consideration.
    Attorney General Gonzales. That is our policy. Our policy 
is, with respect to entering into settlements, that they are 
tax-neutral. We do not take into consideration the tax 
consequences of settlements. That has been our longstanding 
policy and our agreement with the IRS.
    What we do, is after such a settlement, we provide relevant 
facts and information to the IRS so they can make a calculation 
as to what the tax consequences are of the settlement.
    Oftentimes, these are very, very complicated settlements, 
as you know. We can rarely get agreement on a lot of issues, 
except perhaps sometimes the amount. So to also expect that we 
also get agreement as to the tax consequences, Senator, that is 
just not something that we do as a matter of routine or policy.
    Senator Grassley. Well, the law allows you to do it, and 
you ought to be doing it and save the taxpayers 35 percent of 
that settlement, so a settlement is a settlement.
    Chairman Specter. Thank you, Senator Grassley.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    Attorney General Gonzales, I would like to followup on a 
letter that I sent you yesterday about the Hamdan decision and 
the NSA wire tapping program. The last time you testified 
before this Committee you told us that the program expires 
approximately every 45 days, and that the President has to, 
himself, reauthorize it.
    When is the program next due to be reviewed?
    Attorney General Gonzales. I do not know the exact date, 
Senator.
    Senator Feingold. Does your staff know?
    Attorney General Gonzales. They would not know.
    Senator Feingold. Well, if there is some way we could get 
that information, because I want to ask you how this process is 
working.
    Will you or anyone else at the Justice Department 
participate in the review?
    Attorney General Gonzales. Yes.
    Senator Feingold. Last week, Acting Assistant Attorney 
General Bradbury argued that the Hamdan decision had no effect 
on the Justice Department's legal justification for the NSA 
program, and he pointed to a letter on this topic that the 
Department of Justice sent to Senator Schumer.
    Since then, a group of 14 distinguished law professors sent 
a letter to Congress, stating that Hamdan ``significantly 
weakens the administration's legal footing.'' At least two 
commentators who had previously defended the legality of the 
program have indicated that Hamdan makes it very difficult now 
to argue that the program is legal.
    So my question is this: do you agree with Mr. Bradbury's 
conclusion that the Hamdan decision does not change the 
Department's view of whether the NSA program is legal?
    Attorney General Gonzales. We continue to believe that the 
NSA program is legal. We continue to believe that the 
authorization to use military force is still a basis for that 
conclusion and that, of course, the President does have the 
inherent authority, under the Constitution, to engage in 
electronic surveillance of the enemy during a time of war 
without a warrant.
    I do not know how much time you want to spend talking about 
this.
    Senator Feingold. Well, let me pursue those two arguments.
    Attorney General Gonzales. All right.
    Senator Feingold. Because I think, in both cases, the 
Hamdan decision seriously weakens what were already weak 
arguments. First, on the AUMF, you have the decision in Hamdi 
saying that the AUMF authorized holding individuals detained on 
the battlefield, because that would be a fundamental incident 
of war. Let me just finish, then you can answer.
    But then the Hamdan court said that the AUMF did not 
authorize military force, that lacked basic procedural 
safeguards and fairness.
    So you can give your answer, but one thing I want you to 
address is, do you really believe that the tapping of the 
phones of Americans is more of a fundamental incident of war 
than trying detainees in military commissions?
    Attorney General Gonzales. It is tapping the phones of the 
enemy, not Americans.
    Senator Feingold. In some cases, it is Americans.
    Attorney General Gonzales. Who may be talking to Al Qaeda. 
I think the American people expect us to try to understand why.
    Senator Feingold. But do you really think that that is more 
an incident of war than the matter that the Supreme Court 
clearly identified as something that is not justified by the 
authorization of military force?
    Attorney General Gonzales. I think these are good 
questions, Senator. I think that the importance of Hamdi, is 
that the Supreme Court said that the authorization to use 
military force authorizes the President to take those actions 
that are fundamental and incidental in waging war.
    They then determined that detention of an enemy combatant 
is fundamental and incident to waging war, even though the 
Congress never used those words in the authorization to use 
military force. So we have got that decision that informs us as 
to what the authorization to use military commissions means.
    You also now have the Hamdan decision, and the court there 
said that the military commission procedures--I presume, 
because they never got into this analysis, which is one of 
several aspects of the opinion that I am still trying to 
understand.
    The court never got into an analysis as to whether or not 
the military commission procedures are a fundamental incident 
to waging war. Obviously, the court, I presume, concluded that 
it is not.
    I believe that electronic surveillance of the enemy during 
a time of war is much closer to the day-to-day military 
campaign operational control of a commander in chief than the 
procedures for a military commission of someone who has already 
been captured. So I still believe that, while the arguments are 
clearly more muddled--
    Senator Feingold. I hear your argument. But let us cut to 
what you really think is the case here in terms of the Supreme 
Court. Do you really believe that the majority of this Supreme 
Court would rule that your saying is correct with regard to the 
authorization of military commissions? Do you really believe 
that a majority of this court would say that it is authorized 
by the AUMF?
    Attorney General Gonzales. I continue to believe that a 
majority of this court would find that the electronic 
surveillance of the enemy during a time of war is fundamentally 
incident to waging war.
    Senator Feingold. That is not what I asked. I asked if you 
believe that this court, who just made this decision, would 
rule that under the authorization of military force for 
Afghanistan, that in fact that is permitted under that statute.
    Attorney General Gonzales. I stand by the arguments of the 
Department.
    Senator Feingold. I assure you, I have rarely been as sure 
as I am of this fact, that this court would not rule that way.
    With regard to the inherent authority argument, that 
argument was made and rejected in Hamdi. Both Justice Stevens 
and Justice Kennedy made it clear that, when Congress has 
passed a law, the President must follow it, even when, in the 
absence of the law, he might otherwise have had the inherent 
power to do what he wants to do. That is essentially 
Youngstown, which you and I have talked about before.
    I really find it amazing that the Attorney General of the 
United States could argue that this is not the case. The 
stubbornness of this administration in refusing to recognize 
its own mistakes and to take action to correct them, really 
surprises me.
    We have a clear-cut Supreme Court decision rejecting this 
unprecedented theory of executive power in which the legal 
justification for the NSA program is based. The AUMF argument, 
as I have already indicated, is very weak, but I think that the 
Article 2 argument has been rejected as well. So, feel free to 
respond.
    Attorney General Gonzales. Well, there is a lot to respond 
to there, Senator. I disagree with respect to the court 
rejection of our constitutional arguments. I think the court 
went to lengths to explain what they were doing was trying to 
decide this issue on a statutory basis and not on a 
constitutional basis, albeit, I think the court might have been 
clearer in its reasoning.
    I can understand why some may believe that, as you have 
indicated. But we continue to believe that the President has 
the inherent authority to engage in electronic surveillance.
    And it still remains true today, Senator, that of all the 
courts to consider this issue directly, including, most 
recently, the FISA Court of Review, that all the courts have 
held that the President of the United States does have inherent 
authority to engage in electronic surveillance for foreign 
intelligence purposes, and these decisions were during peace 
time. I think the arguments will be even stronger during a time 
of war.
    Senator Feingold. But did the court not say, just putting 
it simply, in Hamdan, that the President has to obey the 
statutes we write? Did the court say that?
    Attorney General Gonzales. I think what the court said was, 
if the President of the United States wants to use military 
commissions, that unless he could justify it with practical 
necessity--
    Senator Feingold. Mr. Attorney General, I am not asking 
that. I am asking you whether the President has to obey the 
statutes we write. Yes or no? Did the court say that the 
President has to obey the statutes we write?
    Attorney General Gonzales. I would not take the Hamdan 
decision as that clear a directive, quite frankly, Senator. I 
think what the court said, is if the President of the United 
States want to use military commissions, they have got to use 
procedures that are consistent with the UC&J and consistent 
with Common Article 3.
    Senator Feingold. I cannot believe you cannot 
straightforwardly answer the question.
    Chairman Specter. Let him finish his answer, Senator 
Feingold.
    Senator Feingold. Well, it is the same answer. I asked a 
different question, Mr. Chairman, which is whether the court 
said that the President has to obey the statutes we write. That 
is what Justice Kennedy said.
    Attorney General Gonzales. Of course, we have an obligation 
to enforce the laws passed by the Congress. But the President 
also takes an oath, Senator, to preserve, protect, and defend 
the Constitution. If, in fact, there are constitutional rights 
given to the President of the United States, he has an 
obligation to enforce those rights.
    Senator Feingold. Has the Justice Department issued any new 
legal guidance to anyone in the executive branch regarding any 
aspect of the treatment of detainees since Hamdan was issued?
    Attorney General Gonzales. Of course. Privately and 
publicly, we have said that the court now says that Common 
Article 3 applies to our conflict with Al Qaeda, and that our 
conduct should conform with that standard, whatever it may 
mean.
    One of the things I want to urge this Congress to do is to 
provide clarity and definition to what those standards are, 
because those violations of Common Article 3 now constitute a 
war crime, a felony, for people on the front lines, and they 
need to understand what the rules are.
    Senator Feingold. Has any specific Department or agency 
requested this advice?
    Attorney General Gonzales. I am not aware of any specific 
requests, Senator. I think that, again, we have been very 
public, both here in the Committee and elsewhere, in expressing 
our views about how we interpret the decision by the Supreme 
Court in Hamdan.
    Senator Feingold. Mr. Attorney General, I have been briefed 
on the NSA program as a member of the Intelligence Committee. I 
am prohibited from sharing what I know with the other members 
of the Judiciary Committee, so I sent you a letter last month, 
asking you and the Director of National Intelligence to brief 
the Judiciary Committee on the NSA program.
    The Judiciary Committee is considering a variety of 
legislative proposals relating to the program, and I firmly 
believe that the Committee cannot do its job without access to 
contemporaneous legal justifications for the program and a 
candid exchange with administration officials about the basis 
for bypassing FISA.
    The Judiciary Committee, I would agree, does not need to 
know all the operational details, but it does need some basic 
factual understanding, at a minimum. Will you commit to me 
today that you will provide this information to the Committee 
before the August recess?
    Attorney General Gonzales. I cannot commit to you, sir, 
that we will do it. We will, of course, continue to provide as 
much information as we can for the Committee to do its work. 
You have received full information in the Intelligence 
Committee. I cannot commit to your request.
    Senator Feingold. Well, it is generally helpful, when 
legislating, to know the factual basis for the legislation 
before drafting it. So, this is terribly important.
    Attorney General Gonzales. We, of course, have provided our 
contemporaneous legal justification for the program. That has 
been on the table since early January of this year. We will 
continue to work with the Committee as best we can, as well as 
the Intelligence Committee, to provide information that they 
need to engage in their oversight responsibilities.
    Senator Feingold. Well, would you commit to provide us--
when I say ``contemporaneous,'' I mean at the time that the NSA 
program was established. That is what I am talking about, not 
the white paper. Would you commit to provide us with that?
    Attorney General Gonzales. I have said to the Committee 
before, Senator, that our analysis has not remained static. It 
has evolved over time. But with respect to what the program 
currently looks like today, we have provided our legal 
analysis. That has been made available to the Committee.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feingold.
    Senator DeWine?
    Senator DeWine. Attorney General, good to be with you. 
Thanks for coming.
    I would like to discuss once again with you the backlog of 
FISA applications. Over the last few years, I have asked about 
this repeatedly. I have asked you, I have asked the Director of 
the FBI. I am really going to keep asking about it, because we 
need to understand why there is a backlog and exactly what we 
can do to solve the problem.
    FISA is one of the most important tools we have to fight 
terrorism, and we need to make the FISA process as efficient, 
as rapid, and as effective as we possibly can. So, I am going 
to keep talking about it until, frankly, we get it fixed.
    When I asked Director Mueller about FISA at a Judiciary 
Committee hearing in 2004, he said, ``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 had in the past.''
    Now, I discussed this topic with you also in February when 
you testified in front of the Judiciary Committee, and you also 
were concerned about it. You said, Mr. Attorney General, ``It 
still takes too long, in my judgment, to get FISAs approved. 
FISA applications are often an inch thick, and it require a 
sign-off by analysts out at NSA, lawyers at NSA, lawyers of the 
Department, and, finally, me. Then it has to get approved by 
the FISA court.''
    Now, Mr. Attorney General, when Director Mueller testified 
in May, I asked him what we could do to fix the problem. In 
summary, what he told me was that we needed more attorneys 
working on the application process, reduced application 
paperwork, and an expedited process.
    After Director Mueller testified in May, my staff contacted 
your staff to find out how we could followup to explore the 
suggestions that Director Mueller made. My staff was told, 
basically, that these problems will be addressed when Kenneth 
Wainstein takes over as Assistant Attorney for National 
Security.
    You, yourself, testified to that effect back in February. 
After Mr. Wainstein's confirmation hearing in the Intelligence 
Committee on May 16, I asked a series of specific questions to 
him regarding the backlog problem and some of the possible 
solutions suggested by Director Mueller. His answer, basically, 
was that he would examine the issue once he was confirmed.
    Now, of course, we know, unfortunately, that Assistant 
Attorney General Wainstein has not yet been confirmed. It is 
unclear exactly when we will vote on his nomination. However, 
this problem, I think, is, frankly, just too urgent to wait for 
that.
    My staff has recently discussed the backlog problem with an 
FBI special agent, and we have confirmed, unfortunately, that 
the same problems still exist today. So, I get to my question: 
what exactly are you, Mr. Attorney General, doing today to 
resolve this problem?
    Attorney General Gonzales. Well, that is a good question, 
Senator. You are right, it is a very important issue. I think 
we have made progress in addressing the issue in terms of, 
shortly after 9/11 we detailed additional lawyers to OPR to 
help with the FISA process. We established an FBI-OPR task 
force to look at additional ways that we could streamline the 
process.
    We do think it is going to make a difference to get Ken on 
board, because I have instructed him that this is something 
that has to be fixed. But, quite frankly, without changes in 
the law in terms of what is required under FISA, I am not sure 
that this can be solved, unless you are really just talking 
about throwing additional resources, additional manpower at the 
problem. There are clear requirements under FISA.
    Senator DeWine. You say, unless we are talking about 
putting additional resource?
    Attorney General Gonzales. Exactly.
    Senator DeWine. All right. It seems to me, Mr. Attorney 
General, we have a problem. Everyone agrees we have a problem. 
Nobody wants to talk about it, publicly, very much. When I prod 
you or prod the head of the FBI, you all will admit there is a 
problem. Everyone wants to sort of down-play it.
    You will admit it. You will say there is a problem. But 
when I talk to people in the field, they tell me there is a big 
problem. There is a big problem, when I talk to people behind 
the scenes.
    So there is either a resource problem or there is a law 
problem, or there is both. It seems to me that if there is a 
law problem, the administration has an obligation to come 
forward and say there is a law problem, and then we look at 
that, and we can either fix that, or maybe we cannot fix it. 
Maybe that is something that, for many reasons, we cannot 
muster the votes to change that, and maybe we should not change 
it; I do not know.
    But if it is a resource problem, what is more important 
than processing FISA cases? What in the world is more important 
than processing FISA cases, and how much money could it cost to 
get more lawyers? I keep getting the same answer. Let us go 
spend the money, Mr. Attorney General. Come forward and tell us 
what you need. You are not telling us what you need.
    Attorney General Gonzales. I do not know who you are 
talking to out in the field. You may be talking to an agent, 
for example, who is not working on terrorism cases.
    Senator DeWine. No, Mr. Attorney General. I am talking to 
some people pretty close to it, and I am talking to a lot of 
them. I quoted you as saying that there is a problem. I quoted 
the head of the FBI as saying there is a problem. No one is 
saying there is not a problem. So there is a problem. Would you 
not grant me there is a problem?
    Attorney General Gonzales. Of course there is a problem.
    Senator DeWine. All right. There is a problem. You just got 
through saying, short of throwing resources at it. My question 
to you is, why do we not throw resources at it and fix it?
    Attorney General Gonzales. We have thrown resources at it, 
Senator. What I hear you saying is perhaps we should think 
about throwing additional resources at it. Certainly that would 
be helpful, and that is certainly something we ought to be 
looking at. But there also needs to be changes in the law, 
quite frankly.
    Senator DeWine. I have got to move on. But will you come 
forward with those specific recommendations?
    Attorney General Gonzales. Yes, sir.
    Senator DeWine. That was a yes?
    Attorney General Gonzales. Yes, sir.
    Senator DeWine. All right.
    Let me turn to gas prices. Everyone is concerned about gas 
prices. As Chairman of the Antitrust Subcommittee, I have 
worked for years to address this concern. We have held 
oversight hearings on oil mergers, we have requested 
investigations of fuel price spikes by the enforcement 
agencies.
    I sponsored the NOPEC bill with Senator Kohl. We put it 
into a new bill with Chairman Specter. That bill makes it clear 
that the Justice Department can, in fact, prosecute the OPEC 
oil cartel for its illegal price fixing of oil prices. We have 
passed that bill once in the Senate.
    I have also co-sponsored legislation with Chairman Specter 
to prohibit oil companies from manipulating supply. I have 
sponsored legislation with Senator Kohl, and of course there 
have been a number of other legislative efforts by many other 
members of the Senate.
    One thing is clear, however. We need to make sure that oil 
companies are obeying the laws as they exist today, and playing 
by the rules in the marketplace.
    Recently, Senator Kohl and I asked the Justice Department 
to work with the Federal Trade Commission to make sure that oil 
companies are not gouging consumers or engaging in any other 
illegal or anti-competitive conduct. We recently received 
confirmation, Mr. Attorney General, from your Department that 
you are, in fact, working together with the FTC to examine the 
market.
    Can you tell us more specifically what you are doing to 
address this extremely important issue and help give consumers 
in Ohio, and across this country, some relief from these very 
high oil prices?
    Attorney General Gonzales. We are obviously aware of the 
high oil prices, Senator. First of all, the FTC did do an 
evaluation and examination of the market to look at the conduct 
of the oil companies.
    I have met with the FTC Chairman and States' Attorneys 
General to talk about these issues to see what they can be 
doing, what they are doing to see whether or not we have the 
appropriate mechanism or framework in place to be sharing 
information that would allow us to move forward with respect to 
prosecutions. That dialog continues today.
    There are, quite frankly, though, limits on what we can do 
in terms of Federal prosecutions. There is no Federal law 
against price gouging, unless you are talking about collusion, 
fraud, market allocation, or bid rigging. There are limits to 
what we can do at the Federal level in terms of prosecuting 
these kinds of cases.
    I know there has been some discussion that perhaps we ought 
to have a Federal law against price gouging. I would urge 
caution as we head down that road. If you put a cap on what can 
be charged in a distressed area--
    Senator DeWine. My time is almost up, and I have one more 
question. I assume that you will, though, continue to pursue 
this special inquiry that you referenced in your letter to me 
dated July 3, and you are going to continue to do that?
    Attorney General Gonzales. Yes, sir.
    Senator DeWine. Last question. Mr. Attorney General, on May 
2nd of this year, Director Mueller testified in front of the 
Judiciary Committee. On May 9, I submitted a number of written 
followup questions to the Director on a range of important 
topics.
    Specifically, I asked questions regarding the FBI's 
computer system, its allocation of resources to fight crime, 
the backlog in name checks being done by the FBI, and efforts 
to increase the facilities available to FBI agents so they can 
safely examine classified material in criminal intelligence 
cases.
    It has been about two and a half months, and I have not 
received the answers to any of these questions. Now, I am told 
that the FBI has drafted responses and sent the over to the 
Justice Department last week for approval.
    Now, I am not sure why it takes the FBI over two months to 
just draft responses to questions such as these, but I 
certainly hope, Mr. Attorney General, that the Justice 
Department can find a way to get these answers to me quickly 
now that the FBI has finally come up with a draft response. Can 
I expect this response fairly soon?
    Attorney General Gonzales. We will do our best. Yes, sir.
    Senator DeWine. I thank you, and I thank the Chairman.
    Chairman Specter. Thank you, Senator DeWine.
    Senator Durbin?
    Senator Durbin. Thank you, Mr. Chairman.
    Mr. Attorney General, thank you for being with us. Mr. 
Attorney General, Arthur Schlesinger, Jr. is a Pulitzer Prize-
winning historian. He was recently quoted in New Yorker 
magazine, commenting on this administration's legal defense of 
torture. This is what Mr. Schlesinger said: ``No position taken 
has done more damage to the American reputation in the world, 
ever.''
    You were there at the moment of creation, when this 
administration's torture policy was being debated shortly after 
9/11. You recommended to the President that the Geneva 
Conventions should not apply to the war on terrorism. In a 
January, 2002 memo to the President, you concluded: ``The war 
on terrorism renders obsolete the Geneva Conventions.''
    This was clearly not a unanimous view within the 
administration. Secretary of State Colin Powell objected to 
your recommendation. With decades of military experience 
informing his judgment, he argued that we could comply with 
Geneva Conventions and fight the war on terrorism.
    He wrote a memo to you pointing out that the Geneva 
Conventions do not limit the ability to hold and question a 
detainee. In his memo, Secretary Powell concluded that setting 
aside the Geneva Conventions will ``reverse over a century of 
U.S. policy and practice in supporting the Geneva Conventions 
and undermine the protections of the law of war for our 
troops.''
    Secretary Powell said, ``It will undermine public support 
among critical allies, making military cooperation more 
difficult to sustain.''
    Mr. Attorney General, as you look back on what has 
transpired over the last 4 years, from Washington, D.C. to 
Guantanamo, to Abu Ghraib and the damage that this decision to 
abandon the Geneva Conventions has done to the country's image, 
was Secretary of State Colin Powell not right?
    Attorney General Gonzales. Senator, you began by talking 
about a defense of torture. We do not, and will not, defend 
torture. Our policy, our legal obligations, are that the United 
States does not engage in torture. So, I will not defend our 
policies that promote torture, because no such policies exist.
    The Supreme Court of the United States has not held that 
the full protections of Geneva apply to our conflict with Al 
Qaeda. What the Supreme Court held, was that Common Article 3, 
which requires basic humane treatment to detainees, apply to 
our conflict with Al Qaeda.
    As you will remember, in February of 2002, the President 
issued a directive to our military that, even though Geneva 
does not apply to our conflict with Al Qaeda, they would 
nonetheless be treated humanely, and as appropriate and subject 
to military necessity, consistent with the Geneva Conventions.
    Senator Durbin. Mr. Attorney General, it is clear from the 
Hamdan decision that they did not agree with your conclusion 
that the Geneva Conventions were obsolete. I have been 
struggling with this, because last week I went to Guantanamo 
and I met with the leading interrogator. This gentleman, who 
works for the Defense Intelligence Agency, has been engaged in 
questioning prisoners for 30 years.
    I asked him point-blank, if I were to tell you tomorrow 
that you had to follow the Geneva Conventions in the way you 
are interrogating prisoners at Guantanamo, what would change 
here? He said, ``Nothing.'' What about the Uniform Code of 
Military Justice? He said, ``we follow it.'' What about the 
McCain torture amendment? He said, ``we follow it.''
    I have been struggling, Mr. Attorney General, to try to 
understand your statement, the statement of Mr. Bradbury, and 
some of the supportive questioning from Republican Senators 
here. Why, then, do you not acknowledge the obvious, that the 
Geneva Conventions that we have followed for more than half a 
century do apply?
    I can only come up with two rationales for why you still 
cling to the hair-splitting on the Geneva Conventions. One, 
generated by your own memo, a memo that was disclosed by 
Newsweek magazine, a memo related to the War Crimes Act.
    In that memo, you wrote, one key advantage of declaring 
that Taliban and Al Qaeda fighters did not have Geneva 
Convention protection is that it ``substantially reduces the 
threat of domestic criminal prosecution under the War Crimes 
Act.''
    Is that what this is about, reserving the possibility that 
the Geneva Conventions do not apply as a protection for those 
members of the administration who argued otherwise four or 5 
years ago?
    Attorney General Gonzales. Of course not, Senator. What 
this is about, is looking at the words of the statute and to 
see whether or not, by its words--which is, of course, what the 
Senate looked at when it ratified the treaty--are the words 
that we look at with respect to how the treaties are 
implemented as a domestic matter.
    And based on the words of the statute and the conduct of Al 
Qaeda and the Taliban, a determination was made that the full 
protection of the Geneva Conventions would not apply. That is 
what that is about. Now, if you are talking about--
    Senator Durbin. But if you do not deny this memo, the memo 
you sent to the President, which says, as long as you hold to 
the position that the Geneva Conventions do not apply to Al 
Qaeda and the Taliban, then we do not have to worry about 
prosecution under the War Crimes Act.
    Attorney General Gonzales. Well, I think it is certainly 
important for the President to understand all the ramifications 
of the decision that he is going to make.
    I might add, I think that the memo that you are referring 
to that has been disclosed or discussed in other publications 
relate to a draft memo, not the memo that actually went to the 
President of the United States.
    Senator Durbin. May I see the final memo? Will you send 
that to us?
    Attorney General Gonzales. That is something you will have 
to raise with the White House, Senator.
    Senator Durbin. I think the answer is, no, you will not 
send us the memo.
    Attorney General Gonzales. Well, the memo was written while 
I was at the White House. That is a decision to be raised with 
the White House.
    Senator Durbin. May I ask you, the second part that is 
interesting, is I am trying to figure out the rationale for the 
hair-splitting on the Geneva Conventions here, because the 
people on the ground at Guantanamo and others tell us they live 
by it, they can live with it, and they think it is a valid 
starting point in terms of basic human rights. The difficulty 
seems to be within the administration.
    I am wondering this. Was there a signal sent our way by 
Vice President Cheney when the McCain torture amendment passed 
90 to 9, when he said, ``We want to exempt intelligence 
personnel from the coverage of this amendment?'' Is that what 
this is about?
    Attorney General Gonzales. I do not know what the Vice 
President may have said or what signal he may have been 
sending, Senator.
    Senator Durbin. Well, then let me ask you point-blank. When 
it comes to intelligence agents of the American government who 
are working in the field of intelligence, are they bound by the 
McCain torture amendment?
    Attorney General Gonzales. Absolutely.
    Senator Durbin. They are?
    Attorney General Gonzales. Yes.
    Senator Durbin. All U.S. personnel, including intelligence 
personnel, are now required, do you believe, to abide by Common 
Article 3 in the treatment of detainees?
    Attorney General Gonzales. I read the opinion, it says it 
applies to our conflict with Al Qaeda.
    Senator Durbin. All U.S. personnel.
    Attorney General Gonzales. That is what it says, without 
qualification.
    Senator Durbin. So we have sent a directive, not only to 
the military, but also to intelligence personnel, that they are 
to apply the Geneva Conventions?
    Attorney General Gonzales. Well, I do not know about a 
directive. Again, DoD sent a directive, I presume, because they 
felt that it was appropriate to do so. I do not know what the 
agency has done, or other departments and agencies have done, 
with respect to a directive. We stand available to provide 
guidance, if asked by agencies and departments, in terms of 
what our legal obligations are.
    Senator Durbin. Despite questions raised by Vice President 
Cheney, you are saying to us, clearly, the Geneva Conventions 
apply to intelligence personnel, as well as military personnel?
    Attorney General Gonzales. I think the logical conclusion 
or result of that--I mean, the court says, we believe, in 
Hamdan, that in our conflict with Al Qaeda, Common Article 3 
applies.
    Senator Durbin. And one of the other questions I raised at 
Guantanamo related to a memo which we heard about earlier from 
an FBI agent who made a statement in e-mail, which was FOIAed, 
relative to the treatment of a prisoner at Guantanamo.
    The statement has become very controversial; it has been 
raised on the Senate floor, it has been raised in this 
Committee. I wrote to the Department of Justice and FBI and 
asked them if they would authenticate the e-mail, and they 
authenticated it.
    When I asked about this particular experience that was 
related in this e-mail, I was told it was under investigation 
by the Inspector General, Mr. Fine. Can you tell us, when that 
investigation is complete, that his findings will be made 
public?
    Attorney General Gonzales. I will certainly see what we can 
do to make the information from that investigation public, his 
conclusions. But that is a discussion that I will have with the 
Inspector General.
    Senator Durbin. I hope they will be made public.
    There was a time, many years ago, when you were notified 
that detainees being held at Guantanamo may have had no 
connection whatsoever to the war on terrorism and should be 
released.
    It goes back to a period in the summer of 2002, when an 
analyst was sent to Guantanamo and came back and reported, 
through a classified report, which reached General John Gordon. 
It was then sent to the White House, to you, and Mr. Addington, 
that potentially innocent people were being held in Guantanamo. 
Do you recall this?
    Attorney General Gonzales. I do not. I guess the important 
word is ``potentially.'' I mean, one of the things that we do 
is we make evaluations, both before people come to Guantanamo 
and after they come to Guantanamo.
    Senator Durbin. But Article 5 determinations were not being 
made as to these people.
    Attorney General Gonzales. I think we did far more than 
Section 5 determinations. There were assessments made on the 
ground, and before people were sent to Guantanamo of a person's 
particular status. So I think we went well beyond Section 5 
determinations.
    Again, once people arrived in Guantanamo, there was an 
assessment made. We now have Combatant Status Review tribunals 
where an assessment is made, and we have annual review boards 
which, annually review a person's status and make a 
determination as to whether or not they should remain in 
Guantanamo.
    We give far and away much more process than is required 
under the Geneva Conventions for prisoners of war, and that has 
been true for many years.
    Senator Durbin. Thank you.
    Chairman Specter. Thank you, Senator Durbin. Attorney 
General Gonzales, would you care for a short break?
    Attorney General Gonzales. Thank you, Mr. Chairman.
    Chairman Specter. You are welcome.
    Attorney General Gonzales. Actually, I am fine, if Senator 
Feinstein is ready to go.
    Chairman Specter. All right.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Good morning. I understand that you were already asked a 
question about Secretary Englund's memorandum to DoD to conform 
with Hamdan, and I believe the question you were asked was, 
would you send out a similar letter? I think, as was reported 
to me, the response was, well, it is up to the Department to 
inquire. Is that a correct assessment?
    Attorney General Gonzales. Well, Defense made a 
determination that they wanted to send out this guidance. As I 
understand it, the Department was consulted about what the 
guidance should say. But this was not a decision by the 
Department to send out the guidance, this was a decision by the 
Department of Defense.
    Senator Feinstein. I understand that. Let me put this 
question to you: will you be sending a letter, let us say, to 
the CIA, pointing out the same constraints?
    Attorney General Gonzales. I am not aware of any plans to 
send out a similar letter, Senator.
    Senator Feinstein. Why would that be?
    Attorney General Gonzales. Well, again, the Department of 
Defense made a decision that they needed to send out this 
guidance; perhaps the CIA believes it does not need to send out 
similar guidance.
    Senator Feinstein. Yes.
    Attorney General Gonzales. We have been very public about 
what we think this decision means, and I do not think anyone 
can misunderstand, even at the agency, what the requirements 
are. And believe me, if there is anyone that is concerned about 
complying with the rule of law, it would be the folks down at 
the CIA.
    Senator Feinstein. It would just seem to me that everybody 
should be on the same page. The decision made no exception for 
anybody. I, for one, very much appreciated what the Secretary 
of Defense did, with Secretary Englund did.
    Attorney General Gonzales. Again, without confirming 
anything that the CIA may be doing, of course, if you look at 
just the raw numbers of individuals within DoD who are 
involved, day-to-day, with members of Al Qaeda, certainly, 
apparently the Department of Defense believed it was 
appropriate, if not necessary, to simply remind everyone about 
this decision.
    Senator Feinstein. All right. I got the message.
    The message is, you do not feel it is appropriate to remind 
everybody about the decision.
    Attorney General Gonzales. No, ma'am. I did not say that. 
What I am saying, is I am not aware that the CIA believes that 
such guidance is necessary. There may be a number of reasons 
why they believe it may not be necessary.
    And, quite frankly, Senator, they may have sent out 
guidance that I am not aware of. It is possible that they have 
sent out guidance and I simply am not aware of it.
    Senator Feinstein. All right. Thank you.
    In his testimony before this Committee last week on Hamdan, 
Acting Assistant Attorney General in charge of the DOJ's Office 
of Legal Counsel, Mr. Bradbury, stated, ``The court did not 
address the President's constitutional authority and did not 
reach any constitutional question.'' He then repeated the same 
sworn testimony the next day in a hearing before the House 
Armed Services Committee.
    Is it really the position of the Department of Justice that 
Hamdan did not issue a constitutional ruling on the Separation 
of Powers Doctrine?
    Attorney General Gonzales. You know, Senator, that is a 
very good question. It is one that I have been wrestling with. 
I think the bottom line for me is, it did not. In fact, I think 
there is a statement, even by Justice Stevens, where he says we 
do not have to reach that constitutional question. But oddly 
enough--I believe I recall, and I may be wrong--he says 
Congress has already said something in this area.
    I have a hard time following the analysis. I think at the 
end of the day, my ultimate conclusion is that the court 
decided this on fairly narrow grounds, on statutory grounds, 
and did not take a position on the constitutional authority of 
the President here, and the Congress, vis-a-vis military 
commissions. So, that is my view.
    Senator Feinstein. All right.
    I know that Senator Schumer sent you a letter and received 
a response from Will Maciella, asking you to explain why the 
reasoning in Hamdan does not also apply to the NSA domestic 
surveillance program.
    In the letter to Senator Schumer, Mr. Maciella stated that 
DOJ's initial impression is that the court's opinion does not 
affect our analysis of the terrorist surveillance program 
because, in part, Congress ``left open the question of what 
rules should apply to electronic surveillance during war 
time.''
    Now, Congress did not leave the question open. FISA 
explicitly says that warrantless surveillance can continue for 
only 15 days after a declaration of war. Now that you have had 
an opportunity to examine Hamdan, is it still DOJ's opinion 
that it does not affect the legality of the TSP?
    Attorney General Gonzales. Of course, there has been no 
declaration of war here, so we cannot take advantage of that 
particular provision. Our judgment is, it does not affect the 
legality of the TSP program. But let me explain why.
    Senator Feinstein. Oh. But if I might just interrupt you. 
Then you are saying, clearly, that the AUMF does not carry the 
full constitutional weight of a declaration of war.
    Attorney General Gonzales. Yes, that is correct. When you 
declare war, that affects diplomatic relations.
    Senator Feinstein. I understand that.
    Attorney General Gonzales. That maybe nullifies treaties. 
So there is a reason why Congress has not declared war in 60 
years, but they have authorized the use of force several times. 
Clearly, there is a difference, yes.
    Senator Feinstein. But you are creating a caveat now and 
saying that the 15 days does not extend to the AUMF.
    Attorney General Gonzales. No. What I said was, we cannot 
take advantage of that provision under FISA because there has 
been no declaration of war. Maybe I misunderstood your 
question. I am sorry, Senator.
    Senator Feinstein. Well, see, I think Congress did prepare 
for that eventuality by providing the 15 days. You are saying, 
well, it really does not apply. In essence, you are restricting 
the AUMF, which I think should be restricted. So you are, in 
essence, agreeing with my point.
    Attorney General Gonzales. Well, I agree with your point 
that the authorization to use military force is not a 
declaration of war. That is certainly true.
    Senator Feinstein. All right. So the President's plenary 
powers are somewhat restricted then, anyway.
    Senator Specter's new FISA bill eliminates the 15-day 
window on surveillance outside of FISA after a declaration of 
war, leaving unanswered the question of what a President could 
do in that situation.
    In Hamdan, the court assumed that the AUMF had triggered 
the President's war powers. Would this combination, in your 
opinion, give the President the ability to claim that Senator 
Specter's bill gives him statutory power to conduct 
surveillance outside of FISA until the end of the war on 
terror, unless we repeal the AUMF?
    Attorney General Gonzales. Senator, I am sorry. I am not 
sure that I understand your question. I hesitate to ask you to 
repeat it. If you do not want to repeat it, I would be happy to 
try to respond in writing.
    Senator Feinstein. Well, Senator Specter's new bill 
eliminates the 15-day window on surveillance.
    Attorney General Gonzales. Yes. It requires us now, at the 
option of the President, to submit for constitutional analysis 
to the FISA court whether or not it is constitutional.
    Senator Feinstein. So essentially it gives the President 
the ability, under that bill, the statutory power to conduct 
surveillance outside of FISA for as long as the war on terror 
continues.
    Attorney General Gonzales. The President has already 
committed that, if in fact legislation passes in a form that is 
not otherwise unacceptable to the President, that he is going 
to submit the program to the court and the court is going to 
reach a conclusion as to whether or not the program is, in 
fact, constitutional. So, we will have, at the end of the day, 
a decision by a court saying what the President is doing is, in 
fact, constitutional.
    Senator Feinstein. All right. Let me continue on. Maybe 
this is too obtuse.
    Attorney General Gonzales. I apologize, Senator.
    Senator Feinstein. That is all right.
    The President is saying that if there is agreement without 
amendment to Senator Specter's bill, he, in essence, will sign 
the bill.
    Attorney General Gonzales. I was not present in the meeting 
with the Chairman and the President, but my understanding is 
that, of course, if there were amendments made that are 
acceptable to the President of the United States, that that 
would not vitiate the agreement.
    Senator Feinstein. Well, as I understand it, he will then 
voluntarily agree to submit the domestic surveillance program 
to the FISA court if the Congress passes the bill.
    Attorney General Gonzales. Yes.
    Senator Feinstein. My question is, why does he not submit 
it now?
    Attorney General Gonzales. I am not sure that the FISA 
court has the authority, quite frankly. I think the FISA court 
responsibility is to see whether or not an application comports 
with the statute, the FISA statute. I think that this 
legislation would be important in clarifying the responsibility 
and jurisdiction of the court.
    Senator Feinstein. Well, we are in open session, but I 
really do not accept that because of past actions with respect 
to the FISA court. I will not go into it. He could submit the 
program to the FISA court. I think we are all prepared to take 
care of any problems.
    When you testified before us once before, you said, well, 
it is too hard to prepare, it takes too long, we need to move 
on an emergency basis. All of those are remedial problems.
    Attorney General Gonzales. Senator, I beg your pardon. I am 
going to go back and look at the transcript of your question. I 
probably will want to modify. I want to make sure that I am 
being as accurate as I can about what we are doing, because 
there may be some things here that may affect my response.
    Senator Feinstein. I would appreciate that, because the way 
I view it, a very conscious effort has been made not to submit, 
certainly, content collection to the FISA court.
    Attorney General Gonzales. Senator, this is something that 
you and I should have a conversation about.
    Senator Feinstein. All right.
    Now, several of us here, and especially those of us serving 
on the Intelligence Committee--
    Chairman Specter. Senator Feinstein, how much more time do 
you want?
    Senator Feinstein. Is my time up? It is. I will yield.
    Chairman Specter. Thank you very much, Senator Feinstein.
    Senator Feinstein. Thank you, Mr. Chairman.
    Senator Schumer. Mr. Chairman? Just before you call on 
Senator Kyl.
    Chairman Specter. Senator Schumer?
    Senator Schumer. I am at the back of the line here because 
I came last, and that is fine. I have a 12:22 appointment on 
the floor of the Senate to speak on stem cells. That is the 
only time I get.
    I know Senator Sessions still may want to ask questions, at 
which point I could come back after that. But if we start a 
second round, would it be all right for me to have my 10 
minutes right when I got back at, say, 12:35?
    Chairman Specter. Well, if we are here at that time. We 
will arrange to be here then.
    Senator Schumer. Great. Thank you, Mr. Chairman. I 
appreciate that.
    Chairman Specter. Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    Mr. Attorney General, now you know what the Senate means by 
promising we will give you a warm welcome when you come up here 
to Capitol Hill.
    It is obviously a time when we can all share our 
grievances, but I also want to share some kudos. The line 
prosecutors that represent the Department of Justice, as well 
as your very capable staff here in Washington, do a great deal 
of work, especially relative to the war on terror that 
sometimes goes unnoticed.
    I just want to state for the record my appreciation for the 
work that they do, and especially your acknowledgement that 
some of the tools that we have helped to provide for the 
Department of Justice to fight this war against the terrorists 
have been put to good use, and I appreciate that.
    Attorney General Gonzales. Thank you, Senator.
    Senator Kyl. Mr. Attorney General, I have, I think, five 
questions. One relates to a question that Senator Leahy asked 
you.
    On this rare occasion Senator Leahy and I appear to be in 
agreement, therefore, I would ask you to be especially 
attentive to this point, and that has to do with the Crime 
Victims Rights Fund.
    The intention here was that the money end of that fund be 
spent for the benefit of victims. There is not nearly enough 
money to meet all of their needs, yet everything above the cap 
gets zeroed out and we have to start from scratch the next 
year. It would be my hope that the Department of Justice would 
support removing the cap so that the money that goes into that 
fund, which I believe is the cap is $650 million.
    I believe there is $1.255 billion in the fund, so there 
would be another $605 million available. I would just ask you 
to consider supporting a removal of the cap and not zeroing out 
the money above the cap so that that can be spent for crime 
victims. Would you be willing to consider that, please?
    Attorney General Gonzales. I am obviously willing to 
consider it. If you remove the cap, I am not sure if it is even 
possible to spend that much money. Maybe a better approach to 
consider would be raising the cap. But obviously we want to 
help victims as much as you do, Senator, and we want to work 
with you, and we will obviously consider it.
    Senator Kyl. And I appreciate, there were some recent 
proposals regarding staff changes, and so on, and you were very 
attentive to the concerns that I expressed. Just raising the 
cap would be of tremendous benefit here, if you would consider 
doing that. I appreciate it.
    Something else I would like to compliment your office on, 
is the work now that has been done recently with respect to 
Internet gambling, and especially the laws that prohibit sports 
gambling, the Wire Act. I think, just yesterday, there was 
another indictment announced relating to a bet on sports.com.
    I wrote to you May 18, complimenting the office for an 
indictment obtained against a William Scott and a Jessica Davis 
of Solberry Limited and Worldwide Telesports, Inc. for 
laundering about $250 million worth of Internet gambling wages.
    The point here is, we have legislation that has just passed 
the House of Representatives that would give further 
enforcement mechanisms to not just the Department of Justice 
and the States' Attorney General, but also enable the 
Department of the Treasury to issue regulations to banks with 
respect to how they honored these gambling debts of the 
prohibited businesses, thus to help put them out of business.
    The Department's statement of position in the House of 
Representatives was in support of that legislation, although it 
indicated that there were other changes that you would be 
willing to discuss with us.
    We are hoping to get that legislation up in the Senate. 
There is not a lot of time. But I appreciate the statement in 
support of the legislation and would hope that the Department 
would work with us in trying to get this important Internet 
gambling legislation passed in this session of Congress.
    Attorney General Gonzales. It is very important for us as 
well, and we look forward to working with you on it, Senator.
    Senator Kyl. Thank you very much.
    Now, a third subject has to do with a complaint that I 
often hear in my State of Arizona from the county prosecutors. 
We have 15 counties, and there is a county attorney in every 
county.
    Well, I guarantee you that the four busiest are the 
counties that border the international border with Mexico, as 
well as Maricopa County, the seat of government in the State, 
because much of the prosecution that has heretofore been done 
by the U.S. Attorneys has had to be neglected because there are 
simply too many cases being brought for the court time, the 
number of attorneys available, the public defenders, the 
judges. I mean, every aspect of the criminal justice system is 
stressed.
    We have just about doubled the number of Border Patrol 
agents in the last 6 years, and so the number of apprehensions 
is going way up. Over 10 percent of the people apprehended are 
criminals, either wanted or have serious criminal records.
    The amount of crime committed by and against illegal 
immigrants is mushrooming, which makes it very difficult for 
either the U.S. Attorney's office or the county prosecutors to 
do their job. They complain that, because of the squeeze on the 
U.S. Attorney's office, the U.S. Attorney is not able to 
prosecute drug-related cases, for example, that in the past 
they have prosecuted.
    The common practice, of course, is to have a threshold, a 
number of ounces, for example, of marijuana or cocaine that 
represents the threshold that will justify a U.S. Attorney 
prosecuting the case. That threshold has continued to go up as 
these cases have mushroomed.
    I checked, because of these complaints by the county 
attorneys, and in 2004, I worked with Attorney General 
Ashcroft, who obtained an additional 10 spots for the U.S. 
Attorney's office in the State of Arizona.
    But because of budget cuts over the last 3 years, it has 
now been reduced again by 10 percent and we are now worse off 
than we were in August of 2004 when I was able to get those 
additional 10 spots.
    What I would ask you to do, is this. Considering the 
extraordinary pressure as a result of the failure of the 
Federal Government to be able to adequately enforce our border 
with Mexico, would you and would the Department of Justice be 
willing to support, both in next year's budget, but also in a 
supplementary way, additional funding to add U.S. Attorneys, as 
well as other necessary components to our Federal criminal 
justice system, both to meet the Federal needs, as well as 
relieve some of the burden that has been placed on our State 
law enforcement officials as a result of this?
    Attorney General Gonzales. Senator, of course, the 
President, in the 2007 budget, has asked for additional 
resources for U.S. Attorneys' offices, which, quite frankly, we 
really need to have total funding with respect to U.S. 
Attorneys.
    There was additional moneys available in the supplemental, 
which we very much appreciate. But the truth of the matter is, 
we have had some issues because we have not had our request for 
U.S. Attorney funding honored in the past, and we hope that 
that is corrected.
    There is no question about it, that I fear that the demands 
on the Department, given the focus on apprehension, securing 
our borders, closing our borders, at the front end, that at the 
back end, we may have a serious problem, a serious problem for 
the Department. It is one that we are looking at internally.
    I am talking to the White House about this, expressing, 
``guys, let us pay attention, not to just what happens at the 
front end, but what happens at the back end.'' We cannot simply 
be detaining someone or arresting them, and if we do not have 
the resources to prosecute them, we do not have the resources 
to put them somewhere, what good are we doing?
    So it is something that I am worried about, and I know that 
you are, likewise, concerned about. You are from a border State 
and you understand the pressures there. So we are looking at 
it, and obviously we want to work with you to try to find the 
appropriate solution.
    Senator Kyl. Well, great. I will take that as an offer to 
perhaps meet with our appropriation legislators, as well as 
others, to find a way to get as much funding as possible for 
the Federal criminal justice system to meet this need.
    Attorney General Gonzales. I will just say that of course 
there are other priorities that have to be met, and other 
issues we are tackling, like terrorism and things like that, so 
we just have to find a way to accommodate all of those 
priorities. It may mean that we have to be simply smarter, more 
efficient, and more effective. But we are obviously happy to 
talk with you about the best way we can find to solve this 
problem.
    Senator Kyl. Well, somebody has likened this to the pig and 
the python: it has got to go through the system once. As you 
point out, you have hired more Border Patrol and they apprehend 
more people, and a bunch of them are criminals and they have 
got to be prosecuted.
    There is no alternative but to prosecute them. That has to 
be one of our highest priorities. In our oaths of office and in 
the establishment of our government, the security of the people 
is the first responsibility of the Federal Government. That is 
both from threats without and threats within.
    Given the Federal nature of some of these crimes, it seems 
to me that that is a top priority. I would certainly hope that 
you would work with us to increase the funding on that.
    Let me just close. I would like to ask you to just submit 
for the record for me a brief statement of your position with 
respect to limiting the kind of habeas rights that American 
citizens have to detainees in places like Guantanamo Bay, if 
you could just give us a short statement on your views with 
respect to that and the legislation that Congress passed.
    Then, finally, I would just ask if you are supportive of 
legislation that I hope we are about to get through the Senate 
dealing with child crime and some ways of fighting that, 
including an establishment of a national registry of the people 
who have been found as abusers throughout the various States as 
a means of helping to protect children when the abuser moves 
from State to State. If you are familiar with that, could you 
express an opinion on that, please?
    Attorney General Gonzales. Well, we support it. It is a 
serious issue. We ought to be doing, I think, more to protect 
our kids. We support this effort. I would be happy to submit, 
for the record, my views on habeas challenges for aliens held 
at Guantanamo.
    Senator Kyl. I thank you very much, Mr. Attorney General.
    Chairman Specter. Thank you, Senator Kyl.
    Mr. Attorney General, I have been advised by your staff, 
through my staff, that you would prefer to finish before the 
luncheon break, and we will try to accommodate that.
    Attorney General Gonzales. If it meets with your schedule, 
Mr. Chairman.
    Chairman Specter. Well, we are going to try to accommodate 
that. It is not possible to say how many Senators will appear. 
It looks as if we are about to finish, and then more Senators 
exercise their right to come back when their time is close.
    Senator Leahy and I each have a second round, and it may 
well be that there will be no other second rounds. Senator 
Schumer, as you know, will be returning here shortly after 
12:30 to have his round. So, I think there is a realistic 
expectation that we could finish before 1, that is, subject to 
other Senators not coming in to request a second round.
    Mr. Attorney General, coming back to the point of departure 
from my first round, you said it was a last resort to have a 
contempt citation and a jailing of New York Times reporter 
Judith Miller for 85 days. I questioned that in the context of 
the issues which were before the grand jury at the time she was 
held in contempt and incarcerated.
    You have a question as to whether there ought to be a 
privilege, generally. But if the Congress comes to the 
conclusion on the Lugar bill to establish a Reporter's Shield, 
we may well make an exception for serious national security 
cases. I am not sure, but if there is to be an exception, it is 
my judgment that that would be the only one.
    Now, if you start off with the grand jury investigation on 
the issue of the outing of an undercover CIA agent, Valerie 
Plame, and when that issue is no longer in the grand jury 
investigation, as it was not, then it seems to me that it is an 
entirely different situation when you are looking at perjury 
and obstruction of justice, not to say that those are not 
serious offenses, but they do not rise to the level of a 
serious national security issue.
    Now, if the Congress comes to the conclusion that the only 
exception to the Reporter's Shield would be a serious national 
security question, would you think it appropriate to proceed 
with a contempt citation and incarceration of a reporter in the 
context that the charge is perjury and obstruction of justice?
    Attorney General Gonzales. You mean, following the passage 
of legislation that would provide that sort of immunity to a 
reporter?
    Chairman Specter. A shield, yes.
    Attorney General Gonzales. It seems to me, at that point 
the courts would have to look at that. What the courts decided 
was that there was not otherwise a shield and that, therefore, 
she had to come forward with that information.
    But if the Congress says there should be such a shield, 
limited only for national security reasons, it seems to me that 
that would be something the court would have to consider, and 
would consider.
    Chairman Specter. Let me move, now, to signing statements, 
Mr. Attorney General. There are a couple of more subjects I 
want to take up with you.
    The Constitution, as we all know, provides that when the 
President disagrees with legislation sent by Congress, he 
vetoes it. What is the legal authority for the President to 
decide which provisions he will enforce and which provisions he 
will not enforce, to cherry-pick on legislation?
    Attorney General Gonzales. Sir, his authority is the oath 
of office that he takes to preserve, protect, and defend the 
Constitution. With or without a signing statement, all a 
President can do is to preserve, protect and defend the 
Constitution.
    So if there is a statute that is passed that is subject to 
different interpretations, he has an obligation under his oath 
of office to interpret that statute and to have that statute 
enforced in a way that he believes is constitutional. That is 
his duty under his oath of office.
    Signing statements have been around since Thomas Jefferson. 
There is nothing unusual or unique about signing statements. It 
is a way for the Executive to communicate to the Congress, to 
communicate to the executive branch, and to communicate to the 
public about his views about legislation.
    Chairman Specter. If the President finds portions of the 
legislation unconstitutional, would it not be preferable, in 
his oath to uphold the Constitution, that he follows the 
constitutional provision to veto the bill, and say to the 
Congress, send me a constitutional bill?
    Attorney General Gonzales. That is certainly an option for 
the President of the United States.
    Chairman Specter. How many options does he have?
    Attorney General Gonzales. Well, sir, I think what he wants 
to do, as much as he can, is respect the will of the Congress. 
To veto the bill means everything about the legislative will is 
gone.
    But there may be a particular provision in a massive piece 
of legislation that may be subject to a different 
interpretation, and I think it would be more disrespectful to 
the Congress to simply veto that legislation, to veto all of 
that work, when, in fact, we can maintain the will of the 
Congress subject to the President upholding his constitutional 
authority.
    Chairman Specter. I think you are wrong on your evaluation 
of what the Congress would conclude represented respect for the 
Congress. I think the Congress would prefer a veto and battling 
it out within the constitutional confines of a veto, as opposed 
to a cherry-picker.
    Let me move on to the issue--
    Attorney General Gonzales. Can I make one final point, Mr. 
Chairman?
    Chairman Specter. Sure.
    Attorney General Gonzales. With or without a signing 
statement, I do not think would alter this President's actions. 
With or without the signing statement, subsequent to the 
signing of the legislation, he is going to interpret the 
legislation in a way that he believes is consistent with his 
oath of office, and I believe every President would do that.
    Chairman Specter. Well, that comes back to the idea that, 
if he thinks a bill is unconstitutional, to veto it, unless 
Congress sends him a constitutional bill.
    Let me move back to the electronic surveillance program and 
the issues as to how we are going to get it submitted for 
judicial review.
    Does the provision in the Foreign Intelligence Surveillance 
Act, that it is the exclusive procedure for authorizing wire 
tapping, have any impact at all on the President's Article 2 
constitutional authority?
    Attorney General Gonzales. Well, I think it would be one 
factor. In applying the Youngstown analysis, you would see what 
Congress has said in a particular area, what is Congress's 
constitutional authority in a particular area, and what is the 
President's constitutional authority in a particular area.
    We believe, though, the statute contemplates Congress 
otherwise giving approval for the President engaging in 
electronic surveillance, and our position has always been that 
the AUMF constitutes such approval.
    Chairman Specter. Well, if you reject that, as almost 
everyone else has, is it not your base contention that the 
three Federal appellate positions--the Supreme Court has 
reserved on the question. You are nodding yes.
    Attorney General Gonzales. Yes, sir.
    Chairman Specter. As to whether the President has inherent 
authority to conduct warrantless wire taps. Three Federal 
appellate courts have said that the President does, providing 
he meets the balancing test.
    So if a President meets the balancing test, which is the 
test of Article 2 power, at least according to three Federal 
appellate courts, then the provision of the Foreign 
Intelligence Surveillance Act on exclusive procedure is 
superseded by inherent authority, is it not?
    Attorney General Gonzales. That is correct, sir. I think 
that was the finding of Judge Silberman in In re: Sealed Case, 
which says, assuming the President has this constitutional 
authority, based upon these other decisions by Circuit Courts, 
FISA cannot encroach upon that constitutional authority.
    Chairman Specter. Similarly, when there is language in a 
statute which says nothing in this statute shall encroach upon 
the President's Article 2 inherent power, that provision, 
similarly, is meaningless, is it not, because the President has 
whatever constitutional authority the Constitution says.
    Attorney General Gonzales. It does not change the status 
quo.
    Chairman Specter. It cannot change the status quo. But we 
have a lot of arguments. The President's negotiations insisted 
on putting in a provision, that ``nothing in this statute shall 
affect the President's inherent constitutional authority,'' 
where nothing can, just like those who want to modify the FISA 
Act, want to put in, FISA has exclusive authority, which does 
not affect whatever the constitutional power of the President 
is.
    May the record show that the witness is nodding in the 
affirmative. Now, you were nodding in the affirmative?
    Attorney General Gonzales. Yes, sir.
    Chairman Specter. All right.
    When Senator Feinstein asked you, why does the President 
not submit the program to the FISA court, you accurately 
answered, I think, that the court does not have jurisdiction, 
but there would be a grant of jurisdiction by the bill.
    Now, the question that I come to, Mr. Attorney General, is 
how to have the rule of law govern, and how to have a core 
review of the constitutionality of the program, while 
maintaining its secrecy. The FISA court has an unblemished 
record for not leaking, and it has expertise.
    We had a series of hearings--four to be exact--and at one 
of them, four former judges of the Foreign Intelligence 
Surveillance Court looked at the proposed legislation, made 
improvements in it, and said that the FISA court would be well 
qualified and well suited to make a determination on 
constitutionality.
    Now, for us to pass a statute conferring jurisdiction on 
the FISA court, we are going to have to have the concurrence of 
the President, unless we can override a veto, which is a total 
impossibility, given the complexion of the House and Senate.
    The President is getting something from the statute in 
terms of increased flexibility, 7 days instead of three; you 
can delegate the authority; if a call both originates and ends 
overseas, it could be construed as being subject to FISA if a 
terminal is in the United States. We clarify that point.
    There may be revisions, as you have noted, if they are 
acceptable to the President. I think Senator Feinstein makes a 
good point, retain the 15 days. There can be improvements, 
subject to agreement by the President.
    So in the search for a way to get the President to make the 
commitment to give the FISA court jurisdiction, it has been 
necessary to accommodate compromises, necessarily.
    But the bill does not expand on the President's 
constitutional authority because the statute cannot do that. It 
does give the President greater flexibility. And 
understandably, he did not want a legislative mandate, which 
the statute initially included that he had to submit it.
    He understandably said, no, that would encroach upon the 
institutional powers of the President and could bind a future 
President, although, again, it is doubtful if any statute can 
bind any President, because of whatever Article 2 power he has, 
or she has.
    I do believe that a significant precedent would be created 
if we worked this out and the President fulfills a commitment 
to refer to FISA, conditioned on the statute being possed as 
negotiated.
    The future President would look back and note what 
President Bush did, and he would not be bound by what President 
Bush did, but it would be a very solid precedent, which would 
weigh in public opinion as a political issue, do you not think?
    Attorney General Gonzales. Mr. Chairman, this is a very 
significant effort. I appreciate and applaud your efforts in 
this respect, because it is an important program.
    We need to find a way to continue the program, but do it in 
a way where everyone is comfortable regarding the legalities. 
This is an opportunity to present it to Federal judges and let 
them tell us whether or not, in fact, we are meeting our 
obligations under the Constitution.
    Chairman Specter. Well, in the final negotiating session, 
Mr. Attorney General, we missed you. It was worth attending.
    Attorney General Gonzales. I got a report on it, sir.
    Chairman Specter. Even if you had a non-speaking role, it 
was worth attending.
    In light of only Senator Leahy being present, I have 
exceeded the red light, as a rarity.
    Senator Sessions. I do not count, Mr. Chairman? I heard I 
was a member of the Committee.
    Senator Leahy. You do in my mind, Senator Sessions.
    Chairman Specter. I would not have exceeded the red light. 
If it is all right with you, Senator Sessions, I will yield to 
Senator Leahy, then to you.
    Senator Sessions. Thank you.
    Senator Leahy. Attorney General Gonzales, there is nothing 
stopping the President of the United States from submitting 
that program today, just voluntarily, to FISA, is there? You 
have talked about the enormous authority you feel he has. There 
is nothing to stop him. If he wanted to do that, there is 
nothing to stop him from doing that today, is there?
    Attorney General Gonzales. Obviously, as a physical matter, 
no. The President could submit an application, even knowing 
that the court may not have any jurisdiction or authority to 
rule on the application.
    Senator Leahy. But you do not know whether they do or not. 
There is nothing to stop the President. If legislation was 
passed exactly the way he wants it written, which gives him a 
whole lot of other benefits, he has agreed to submit it to the 
court. There is nothing to stop him from submitting it to the 
court today, is there?
    Attorney General Gonzales. Sir, if the President of the 
United States wanted to do that. But I think the approach that 
the Chairman has outlined is a correct approach.
    Senator Leahy. I understand that, because the President 
gets so much on the other side. But there is nothing to stop 
him from doing it today, if he wanted to.
    Attorney General Gonzales. Well, again, the test would be 
different. Under the current statute, the court would--
    Senator Leahy. A minute ago, you said there was nothing to 
stop him.
    Chairman Specter. Let him finish.
    Senator Leahy. Yes, I know.
    Chairman Specter. He is saying things favorable to my bill. 
Let him finish.
    Senator Leahy. I know. But he is saying two different 
things here.
    Attorney General Gonzales. Sir, of course, if the President 
wanted to submit an application, he could.
    Senator Leahy. Thank you.
    Attorney General Gonzales. It would be, perhaps, an effort 
in futility, in that he would submit an application--
    Senator Leahy. But you do not know that.
    Attorney General Gonzales. [Continuing]. And seek an 
opinion from the court.
    Senator Leahy. But you do not know that. Attorney General 
Gonzales. Well, if the court, clearly, does not have 
jurisdiction, that would be one reason why you would not 
submit.
    Senator Leahy. Mr. Attorney General, on to another matter. 
I will look at what I think are two different answers on that, 
and I will pick the one I like, you pick the one you like.
    I was in Vermont on July 15th, and I was reading a 
Washington Post front-page story online that talked about a 
series of bribery and smuggling cases and increased corruption 
among Federal officers along our southern border. Last year in 
Texas, 10 Federal officers were charged with taking bribes from 
drug dealers and human smugglers. It was reported that 17 
others were arrested for similar offenses in Arizona.
    Now, the part that troubles me the most. Most of our border 
agents are totally honest, dedicated, hard-working men and 
women. But here is what I heard: the president of the National 
Border Patrol Council says that agents that were trying to help 
stem the corruption, those agents are trying to turn in the bad 
apples in the barrel, were told to shut up and not make waves.
    What are you doing to protect whistle-blowers who report 
such unlawful conduct?
    Attorney General Gonzales. These are Border Patrol agents, 
sir?
    Senator Leahy. Yes.
    Attorney General Gonzales. Well, of course, they work for 
DHS.
    Senator Leahy. Yes. But you end up bringing prosecutions. 
The Justice Department brings prosecutions. If somebody comes 
to you with a charge, do you work to protect that whistle-
blower?
    Attorney General Gonzales. Of course.
    Senator Leahy. So you do not agree with whatever Federal 
agents that were telling these people to shut up and not make 
waves?
    Attorney General Gonzales. Sir, I do not believe it is 
appropriate to retaliate against whistle-blowers. I mean, we 
want people to come forward. If they have information about 
wrongdoing, I would like to know about it.
    Senator Leahy. Are you actively investigating such 
corruption?
    Attorney General Gonzales. Sir, I am not aware of the 
specific case you are referring to. We can get back to you and 
let you know.
    Senator Leahy. There were 17 in Arizona, 10 in Texas. Has 
the Department of Justice been actively investigating?
    Attorney General Gonzales. Sir, I do not know, but we can 
find out and get back to you.
    Senator Leahy. All right.
    Now, a study by the Southern Poverty Law Center has drawn 
attention recently to the infiltration of skinheads and white 
supremacists into our military.
    A Defense Department investigator was quoted recently as 
saying that they know that recruiters are allowing these white 
supremacists to join the Armed Forces, but the pressure is on 
them to get recruits. Due to the unpopularity of the war in 
Iraq, they are lowering, and lowering, and lowering the 
standards.
    What is most alarming, is this same Defense Department 
investigator said that when he provided evidence of the 
presence of extremists, 320 in the past year from one 
investigator, commanders will not remove them. I worry about 
this, because we saw what happened.
    We always worry about terrorists outside of our country, 
but we look at Timothy McVeigh, one of the worst terrorist 
attacks here. He was an American, served in our military.
    If Department of Defense is not going to remove these 
extremists, and we have seen what has happened when they have 
gotten out of hand, attacking, raping, killing Iraqis, at least 
as the charges have now been brought in Federal court.
    Are you involved at all in trying to stop these kinds of 
people from getting into the military, or investigating them if 
they are not removed?
    Attorney General Gonzales. Sir, first of all, I do not know 
about the story that you may be referring to or allegations 
that the military is lowering its standards. I would find that 
very hard to believe.
    Senator Leahy. Well, if they had 320 incidences of this 
found by one investigator in 1 year--
    Attorney General Gonzales. Well, sir, it is a big military. 
Again, I do not know whether or not those facts are even true. 
But to the extent that someone has engaged in criminal conduct 
and we are asked to participate, we do so.
    But as a general matter, if you are talking about someone 
who is in the military who engages in that kind of criminal 
conduct, it is something that is investigated by DoD and 
prosecuted by DoD, and not by the Department of Justice.
    Senator Leahy. Going back to what you were saying about the 
President introducing legislation, Senator Feinstein and 
Representative Harman were briefed on the President's program 
for warrantless wire taps of Americans. After the briefing, 
they said the FISA statute, as currently written, could 
accommodate everything NSA is doing.
    Are they wrong? You know what the law is. You know what 
FISA can do, and you know what is happening. Are they wrong 
when they say that FISA, as currently written, could 
accommodate everything NSA is doing?
    Attorney General Gonzales. I have doubts about it.
    Senator Leahy. You think they are wrong? Do you think 
Senator Feinstein and Representative Harman are wrong?
    Attorney General Gonzales. I think there is a serious 
question as to whether or not FISA could accommodate what it is 
that the President has authorized, quite frankly, Senator.
    Senator Leahy. Will you be coming back in to talk to us 
about changes in FISA?
    Attorney General Gonzales. Sir, we are always happy to talk 
about changes in the tools that we utilize to fight the war on 
terror.
    Senator Leahy. I know. But I love it, when we have a 
hearing up here, where we actually get it answered that way.
    Attorney General Gonzales. I would be happy to come by and 
speak with you directly, one-on-one, Senator.
    Senator Leahy. I think you ought to speak to the Committee 
about this. If we are going to make changes, I would expect I 
would certainly be reluctant to support any changes in the FISA 
statute, unless I have heard clear evidence from you and others 
of why it is needed, because I do find what Senator Feinstein 
and Congresswoman Harman stated to be compelling.
    Incidentally, there are press reports now that say that the 
FBI has tracked the telephone calls of journalists, of wire 
tapping journalists. The Christian Science Monitor recently 
reported that the FBI may be using national security letters to 
access the phone records of reporters at ABC News, New York 
Times, the Washington Post.
    Are you doing that? Are you monitoring the phone calls of 
journalists?
    Attorney General Gonzales. Well, I presume that it is 
conceivable that somewhere in America there is someone who 
happens to be a journalist that we believe has committed a 
crime where there may be some kind of wire tap. But as far as I 
know, and I do not believe it to be true that there is some 
kind of program to engage in surveillance--
    Senator Leahy. The Christian Science Monitor speaks of 
reporters at ABC News, the New York Times, and the Washington 
Post.
    Attorney General Gonzales. I do not believe the story is 
true.
    Senator Leahy. All right. And you would know if it was 
happening?
    Attorney General Gonzales. I would hope so.
    Senator Leahy. I would hope so. You are the Attorney 
General.
    Attorney General Gonzales. That is why I said I would hope 
so.
    Senator Leahy. All right.
    You talked about bill signing statements that have been 
discussed here. When the President signed the PATRIOT Act 
Reauthorization bill, the second part of the PATRIOT Act, he 
said in his signing statements that he did not feel obligated 
to obey requirements in the bill to inform Congress about how, 
and how often, the FBI was using expanded police powers.
    I was one of those that fought very hard for the oversight 
provisions to make sure that the FBI did not abuse the special 
terrorism-related powers to search homes and to seize papers 
that were given under the PATRIOT Act II.
    Now, our laws specifically required oversight reporting to 
the Congress. The President said in his signing statement that 
he does not have to follow that. Is that the case? Or will the 
Bush-Cheney administration fully comply with the reporting and 
oversight provisions of the reauthorized USA PATRIOT Act?
    Attorney General Gonzales. Senator, we are going to work 
with the Congress to make sure that you have the information 
that you need.
    Senator Leahy. I wanted the specific reporting and 
oversight provisions in the reauthorized PATRIOT Act. Will the 
Bush-Cheney administration follow what is written in there with 
those specific requirements?
    Attorney General Gonzales. Sir, we are going to follow our 
legal obligations. As you know, with respect to sensitive 
classified information, Senator, sometimes there are 
disagreements about whether or not you satisfy your reporting 
obligations if you simply give the information to the Chair and 
Ranking Member.
    Senator Leahy. No, no. That is not my point, Mr. Attorney 
General. That is not my point, and you know that is not my 
point. The point is, it was written out very specifically in 
the Act, after months of negotiation, including negotiation 
with the administration, to get a bill that the President would 
sign.
    He signed it with great fanfare, said this would protect 
us, and we are going to follow this law. But he then said he is 
not going to follow all the reporting and oversight provisions, 
which are very, very, very specific.
    My question is very simple: taking those very specific 
provisions, will the Bush-Cheney administration follow the law 
or will they follow the signing statement?
    Attorney General Gonzales. Sir, he will follow his oath of 
office. That is all I can respond. We understand how important 
it is to provide information to the Congress about what we are 
doing. It has always been the case, however, that the President 
of the United States has to make decisions with respect to 
access to certain classified information. We are going to do 
the best we can to work with the Congress.
    Senator Leahy. Mr. Attorney General, there has always been 
a provision, from the beginning of this country, that the 
President is supposed to follow the law, and the President is 
not above the law.
    Attorney General Gonzales. That is certainly true.
    Senator Leahy. Basically what the President is saying on a 
lot of these signing statements, is I am not going to follow 
the law. You and I have a strong disagreement on that, but the 
fact is, he signed 700 of these, more than all other Presidents 
put together. He is not following the law.
    Attorney General Gonzales. That is not true. That number by 
The Boston Globe is wrong.
    Senator Leahy. What is the number?
    Attorney General Gonzales. The Boston Globe retracted that 
number.
    Senator Leahy. What is the number then?
    Attorney General Gonzales. I think the number is closer to 
125 to 110. President Clinton signed 382 signing statements in 
his 8 years of office.
    Senator Leahy. President Clinton's signing statements were 
usually oratory things, like press releases saying, is this not 
great, we signed this bill. They did not say, we are not going 
to follow the law.
    Attorney General Gonzales. This administration will follow 
the law, Senator.
    Senator Leahy. At some point, this administration has to 
reach a point to stop trying to blame everything on the Clinton 
administration and to start taking responsibility for your own 
mistakes.
    Attorney General Gonzales. Yes, sir.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Sessions?
    Senator Sessions. Thank you, Attorney General Gonzales. As 
I have the numbers, this was not 700. The Boston Globe did 
retract those numbers. President Bush's signing statements, 
when they deal with actual constitutional issues on which the 
President has suggested that there may be a constitutional 
limit to how far the language of the bill should be 
interpreted, his numbers are less than what President Clinton 
did. Is that your understanding? President Bush had even more. 
Ronald Reagan had quite a number.
    This is not an unusual thing for a President to explain, as 
the chief law officer, how he will enforce problematic, 
constitutionally dubious, or gray area statutes. Is that right?
    Attorney General Gonzales. I believe that the actions of 
this President are quite consistent with his predecessors. And 
again, he has an obligation, whether or not he issues a signing 
statement, to preserve, protect and defend the Constitution.
    Senator Sessions. I agree. I just think this is much ado 
about little or nothing. First, let me congratulate your 
predecessor, Attorney General Ashcroft, the President of the 
United States, and you as his chief counsel, his personal White 
House counsel, for helping us go almost, what, 5 years now 
without another attack since 9/11. Everybody was concerned 
about more attacks coming any moment, from any number of 
sources.
    There still remain concerns that there might be sleeper 
cells operating in this country this very date. I do not see 
how anybody could deny that, do you? Is that not a possibility, 
some that you may have inkling of and some that you may have no 
inkling of?
    Attorney General Gonzales. We clearly are safer today, 
Senator, but we are not yet safe. I see it every morning in the 
intelligence briefings. We have a very dedicated, very 
dangerous, very smart enemy, a very patient enemy. Obviously, 
we are fortunate to not have had an attack in 5 years.
    Congress deserves credit for that, giving us tools like the 
PATRIOT Act, giving us additional tools. Obviously, a lot of 
the credit goes to our fine men and women in uniform, fighting 
overseas. So, we have much to be thankful for. But make no 
mistake about it: we have a very dangerous enemy.
    Senator Sessions. I could not agree more. The President 
told us early on that he intended to use all the powers, the 
legal authority he had, the legal powers he had, to protect the 
American people. I think the American people appreciate that. 
We do not want him to go beyond his powers, but we expect him 
to use what powers he does have to protect the people of this 
country.
    Attorney General Gonzales. That has been his directive. His 
standard is that we do everything that we can do legally to 
protect this country. Obviously, some of these issues are 
tough. They present tough legal questions. In some cases, the 
courts have said we have drawn the lines in the wrong place. 
That is fine; that is what courts exist for.
    But we make these decisions in good faith, based upon our 
interpretation of precedent. When the Supreme Court says 
otherwise, we conform our conduct because we are a country of 
the rule of law.
    Senator Sessions. Let us take the Hamdan case. You 
authorized, or the President did, and the Department of Defense 
also authorized, military commissions. Those military 
commissions have been used since the founding of the Republic.
    This Supreme Court, by a 5 to 3 ruling--really 5 to 4, 
since Chief Justice Roberts had ruled the other way in the 
lower court and had to recuse himself--concluded that military 
commissions are legitimate to try the kind of people that were 
being discussed as to be tried, but they suggested some 
additional enhancements to provide a certain number of 
additional protections. Is that basically the summation of 
where we were in that case?
    Attorney General Gonzales. Well, there was no question in 
this decision about the ability to have military commissions. 
What the court said was, in essence, if you are going to have 
military commissions, however, they need to be uniform with the 
Uniform Code of Military Justice, unless there is a practical 
necessity for the difference.
    The court rejected the President's determination that there 
was a practical necessity in this particular case, but invited 
the Congress and the President, if this was a tool that we 
continued to believe was a necessary tool in fighting the war 
on terror; to pursue legislation that would codify the 
procedures that we would want to use.
    Senator Sessions. The point is, the commissions, only by a 
5 to 4 opinion, really were asked to be enhanced a bit and 
provide some additional protections. I am just saying this to 
the American people who are listening to some of the rhetoric 
we have had here. They have suggested that the Supreme Court of 
the United States completely rejected the administration's 
position on military commissions. That is not a fair statement, 
is it?
    Attorney General Gonzales. That is not a fair statement. 
Even with respect to specific procedures, there were some 
concerns raised by four of the Justices about some of the 
Department of Defense procedures for military commissions.
    But there were not five votes indicating a concern or 
expressing disapproval for any of the procedures that have been 
promulgated by the Department of Defense. Nonetheless, I am not 
sure how productive it is to reargue the case.
    I think what we are all focused on, as I am sure you are, 
Senator, is what to do, moving forward, to make sure that 
military commissions remain available tools to the commander in 
chief in a way that allows us to protect America and bring 
terrorists to justice.
    Senator Sessions. I would just mention also, Mr. Chairman, 
we approved the National Security Division in the Department of 
Justice, Mr. Wainstein. We have funded it and we still have not 
confirmed him. We have Ms. Fisher in the Criminal Division, and 
Steve Bradbury, a nominee for legal counsel. All of those are 
critical positions in the Department of Justice. Do you not 
need those people on quickly, Mr. Gonzales?
    Attorney General Gonzales. Everybody wants to have their 
own team. If you do not have a full complement of your team, I 
do not think you can be quite as effective. So I think these 
people do deserve to be confirmed, and I appreciate the work of 
the Committee in getting Ken Wainstein and Alice Fisher out. We 
need to now get them confirmed.
    Obviously, I would respectfully ask that we get Steve 
Bradbury out of this Committee. This is all very important 
because they all play very critical roles, not just in the war 
on terrorism, but other big issues that we have to deal with at 
the Department of Justice.
    Senator Sessions. Mr. Attorney General, we continue to have 
this problem with local law enforcement and the funding through 
Byrne-Grant and C.O.P.S.. I think those joint task forces--I 
used to lead one to prosecute drugs locally, and the OCEDF 
program, the local ones and the others. I think we are going to 
have to get, next year in your budget, straight about how we 
are going to fund the local law enforcement.
    The C.O.P.S. program really should have already been 
completed several years ago, as you noted. But that does not 
mean that there might not be other, more effective ways to help 
local law enforcement be more effective. So, just briefly, will 
you talk with us about that and help us reach a happy 
conclusion to this so we can make sure we are not ending 
funding for local law enforcement? Sometimes Congress has 
overruled the President.
    Attorney General Gonzales. I am not sure how, in the time 
remaining, I can help us reach a happy conclusion on this 
particular issue, which is a tough issue, there is no question 
about it. But I would be happy to engage in a dialog with you 
long term, Senator, about how we meet the priorities of the 
Department.
    Obviously, the President is concerned about a deficit. 
Obviously there are other big priorities as well. At the same 
time, we understand that we are asking more and more of our 
State and local partners. They have limited resources as well, 
so we need to figure out a way to make all this work.
    Senator Sessions. Mr. Attorney General, I am concerned that 
in your written remarks there were no references to enforcing 
immigration law. You have got to know that those of us who talk 
to our constituents on a regular basis understand that the 
American people are just aghast that we blithely go about our 
business without enforcing the laws. And some of the comments 
you made to Senator Kyl were a bit concerning to me.
    So I guess my question to you is, are you committed to 
working creatively and imaginatively to utilize resources that 
you have, to ask for more resources if necessary, to make sure 
that we have workplace enforcement, border enforcement, that 
the organized groups that bring in people illegally, the 
Coyotes and the document fraud people are brought to justice?
    Frankly, as you know--I will not go through the list--we 
have had an actual decline in prosecution in so many key areas 
when it comes to work site enforcement, and even border 
enforcement over the last number of years.
    So let me just ask you, will you commit to us that you will 
give the leadership and directive to make sure that we make 
this system a lawful system instead of an unlawful system?
    Attorney General Gonzales. Absolutely, Senator. We already 
are doing that. The fact that it was not mentioned was an 
oversight, quite frankly. It is something that I am concerned 
about.
    Obviously, we know that there may be limits on the amount 
of resources available, and therefore we have already directed 
the DAG to look to see what else we ought to be doing, what can 
we do, to ensure that we are enforcing our immigration laws. 
You are absolutely right; it sends the wrong signal when we 
have laws on the books that are not being enforced. That is not 
the way that it should be, so we have an obligation to try to 
find ways to do a better job here.
    Senator Sessions. I think Senator Kyl is correct. We are 
going to need some additional resources in some areas, and in 
some areas it simply has got to come from the top that these 
are priorities.
    Some of the cases, by their very nature, are going to be 
misdemeanors or felonies with small penalties. Some Assistant 
U.S. Attorneys think that is beneath their dignity. But if you 
do not prosecute those cases, then you send a signal that you 
basically, de facto, wiped out the statute. So we have got to 
get better enforcement there.
    One more thing about the reporter's privilege and that 
concept. What we are dealing with is a circumstances in which a 
reporter receives information from a person who violated the 
law, violated the security standards of the United States. They 
have given information to a reporter and that reporter then 
publishes it to the whole world, including our enemies.
    Now, it is my understanding, under aiding and abetting, the 
statute is: aid, abet, counsel, or procure the commission of a 
crime, or conspiracy. Either one of those could very well make 
a reporter subject to prosecution.
    Second, of course, and primarily, as you noted, the person 
we should be focusing on is a government official who broke 
their oath and actually set forth a chain of events that could 
lead to publishing this information and giving it to someone 
who is not authorized to receive it.
    So I do not think you should dismiss the possibility that 
reporters, simply, in top-secret matters involving the national 
security of this country, they have to be subject to 
prosecution if they violate the law.
    Attorney General Gonzales. I did not mean to dismiss it. If 
that was the message I conveyed, I apologize.
    Senator Sessions. Well, it was not very strong.
    Attorney General Gonzales. But again, Senator, as you 
indicated, the focus has to be, as it traditionally has been, 
on those in government. In many cases, they sign non-disclosure 
agreements, so they breach these agreements when they disclose 
this information. We hope to continue to work with the press to 
persuade them not to publish.
    Senator Sessions. Let me just follow that. The problem is 
that it provides a perfect wall and a protection for the leaker 
if the reporter is never required to testify and to reveal who 
gave it.
    Chairman Specter. Senator Sessions, how much more time 
would you like?
    Senator Sessions. Mr. Chairman, I did go over, but I 
missed, by 1 minute, my second round. So I guess I will just 
finish up with one further comment.
    That is, if you are unwilling to challenge that reporter, 
you may never be able to identify the person who may have 
released information that led to the death or failure of the 
foreign policy of the United States of America.
    Attorney General Gonzales. I think that in certain cases, 
that may be the last stop for the prosecution. If we cannot get 
this information from the reporter, we cannot go forward with a 
criminal investigation. I cannot imagine that the American 
people would support that.
    Senator Sessions. The Department of Justice manual puts 
high standards on it. You do not do it lightly.
    Attorney General Gonzales. Absolutely.
    Senator Sessions. You do it very, very few times. But every 
now and then, it may be necessary and I hope you will not 
dismiss it.
    Chairman Specter. Thank you, Senator Sessions.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman.
    Thank you, General Gonzales.
    I would like to continue in the subject of leaks and damage 
to national security. Since September 11, there have been a 
series of leaks of sensitive classified information reported in 
the media.
    Sometimes the administration condemns those leaks; 
sometimes, however, the administration is completely silent. 
Sometime the administration alleges that great harm was done to 
national security; sometimes the administration says nothing. 
Sometimes the administration publicly announces an 
investigation into a leak; sometimes, however, the 
administration appears to sweep it under the rug.
    Now, I worry, frankly, that you and others in the 
administration have engaged in a pattern of selective outrage, 
and I worry that you and others in the administration speak out 
of both sides of your mouth on the subject of leaks and their 
harm to our National security.
    When it serves your purpose, you condemn leaks; when it 
does not serve your purpose, you do not. In fact, it is 
reported over and over again that White House officials engage 
in leaks, and that is part of Washington. But what is good for 
the goose is good for the gander.
    So with those concerns in mind, let me ask you a series of 
questions. First, during your last appearance before the 
Committee, Senator Biden asked you about what harm had been 
caused by public disclosure of the NSA's warrantless 
surveillance program.
    This was your response: ``You would assume that the enemy 
is presuming 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.''
    That statement was astounding to me. It is like saying 
banks should not advertise because it reminds bank robbers 
where the money is.
    Now, 6 months have passed. Do you have a more concrete 
answer on how the disclosure that wire tapping is going on 
harmed national security?
    Attorney General Gonzales. Let me just say, Senator, my 
comment that ``the more we talk about what we are doing to get 
information about the enemy, the more we inform the enemy about 
what we do'' should not be viewed as astounding.
    This is something that the intelligence experts tell me is, 
in fact, the case. It seems to make sense to me. Obviously they 
know that we are engaged in surveillance. But if we talk more 
and more about what we do and how we are doing it, we are just 
going to help the enemy.
    Senator Schumer. Well, how we are doing it is one issue. 
Talking about it, which is what this article did, as I 
understand it, simply said it was going on, and it had been 
sort of known that it was going on before.
    Sometimes I think the administration's high dudgeon, if you 
will, is aimed at where the source, where the leak, appeared. 
If it is the New York Times, it is terrible. If it is the 
Washington Times, it seems to be all right.
    So just be a little more concrete with me. How did that NSA 
article, now 6 months later, hurt our National security? As I 
recall, the article avoided specifics, avoided who, where, what 
or when. It did not talk about the details, just revealed that 
it was happening, something that had been known repeatedly.
    Attorney General Gonzales. Well, sir, certainly since then 
there have been 7 months of discussion about this program. Your 
question, quite frankly, is one that can be better addressed by 
the intelligence experts in terms of how it has been damaged.
    All I can say is, in testimony before the Intelligence 
Committee, both General Hayden and Director Mueller have 
indicated that this is a very important program. It has helped 
us identify terrorist plots. By talking about this program, we 
have made it more difficult to gather intelligence about our 
enemy.
    And for the record, sir, let me just say, whether or not I 
say anything publicly here on out, I condemn all leaks. So, 
just for the record.
    Senator Schumer. I know. But it is a lot different when 
you, and the President, and the Vice President on that last 
one, on banking, on following the money, the administration had 
bragged about that previously. But all of a sudden it becomes 
an issue. Many of us doubt the motivation here.
    I want to ask you about specific leak investigations. There 
appears to be little rhyme or reason to the administration's 
approach. It is not one area or one type, again. It seems, to 
the casual observer, that it is where the leak appeared: a 
friendly newspaper is all right, a non-friendly, not all right.
    Now, a review of the record leaves the impression the 
administration is unconcerned about leaks of classified 
information to certain media sources, and when the revelation 
may have provided certain political advantage to the 
administration.
    So I have sent this letter to you with Congressman 
Delahunt, who I have worked with on this, to you and to John 
Negroponte, asking you to explain the classification and 
declassification process and to correct any misimpression that 
you are only selectively investigating leaks, that when it is a 
leak you investigate all of them.
    I will wait for written answers to the detailed questions 
in that letter; I just hope it will not be many months.
    But here is what I want to know now. How many leak 
investigations are going on in the Justice Department right 
now?
    Attorney General Gonzales. I do not know the answer to 
that. Typically, Senator, as you know, we do not confirm or 
deny the existence of a leak. There is a process that we go 
through before making a decision to initiate a leak 
investigation.
    In some cases, there may be what appears to be a leak in 
the paper of a classified program, and we go through that 
process. It may take a period of time before we are ultimately 
in a position to make a decision that, yes, we should go 
forward with an investigation.
    Senator Schumer. Can you give me a ballpark figure? Are 
there 100? Are there 5?
    Attorney General Gonzales. Sir, I do not know. I really 
cannot give you that.
    Senator Schumer. Is every leak investigated?
    Attorney General Gonzales. Not every leak is investigated. 
Obviously the most egregious leaks are investigated.
    Senator Schumer. Let me ask you this. How do we determine 
which are the most egregious?
    Attorney General Gonzales. Well, oftentimes, in most cases 
it begins with a referral from the offended agency, in most 
cases from the FBI and from the NSA or the CIA.
    Senator Schumer. So do you make the decision?
    Attorney General Gonzales. No.
    Senator Schumer. Has the White House ever asked you to 
investigate a leak?
    Attorney General Gonzales. No. This is a decision made by 
career folks down in the Criminal Division. Once we get a 
referral, we normally submit an 11-question questionnaire to 
the agency, have them answer the questions, and the answers 
often dictate whether or not we move forward with an 
investigation. That is a decision made by the career folks in 
the Criminal Division.
    Senator Schumer. So Dick Cheney, Karl Rove, or John 
Negroponte has never called you up and said, please investigate 
this leak?
    Attorney General Gonzales. No.
    Senator Schumer. It all comes from the bottom up?
    Attorney General Gonzales. Yes.
    Senator Schumer. What happened with the banking one where 
the President and Dick Cheney publicly asked for an 
investigation 2 days or 3 days after it was published?
    Attorney General Gonzales. Well, listen. The fact that they 
have asked for an investigation, this is something they say 
publicly. But we have a process that we use internally. We will 
initiate an investigation when we believe the circumstances, 
based upon the recommendations of the career folks, are 
warranted.
    Senator Schumer. Let me ask you about some specific ones. 
Here is an article from the Washington Times, which regularly 
reports high sources. This one seems to me to have the kind of 
detail that does compromise security, far more than the 
articles that the White House has gone in high dudgeon about.
    This one was from February 24, 2004, ``U.S. Search for Bin 
Laden Intensifies.'' ``The Pentagon is moving elements of a 
super-secret commando unit from Iraq to the Afghanistan theater 
to step up the hunt for Bin Laden.'' It gives the name of the 
task force.
    It says, for instance, ``The Washington Times is 
withholding some person's name because of the secret nature of 
the operation.'' A lot of details here. Do you know if this one 
was ever investigated?
    Attorney General Gonzales. I know that that is a very 
troubling story. I cannot tell you there has been a final 
decision as to whether or not a formal investigation should 
commence.
    Senator Schumer. Wait a second. Sir, it occurs--
    Chairman Specter. Let him finish his answer.
    Senator Schumer. All right. I just wanted to--
    Chairman Specter. He was right in the middle of his answer. 
Go ahead.
    Attorney General Gonzales. Well, let me just say, Senator, 
you may have a very serious story like that, and then once we 
begin looking at it, we may determine that there are a million 
people that have access to that kind of information.
    That would tell us whether or not, all right, does it make 
sense to initiate an investigation when there are a million 
interviews that we have to do. So, there are factors that we 
have to weigh in deciding whether or not to initiate an 
investigation, no matter how egregious it may look.
    Senator Schumer. This one occurred. You said we have to 
determine it. This one occurred two and a half years ago.
    Attorney General Gonzales. And there may have already been 
a decision on that, Senator. I just do not know, quite frankly.
    Senator Schumer. Can you get back to us and let us know?
    Attorney General Gonzales. If I can share that information, 
I will try to do so.
    Senator Schumer. Well, if you do, I would be happy to do it 
in a top-secret setting, if you cannot share it publicly.
    But here is what I want to know. Is there a standard? Is 
there a pattern to any observer that this one does far more 
damage than a general article in the New York Times saying that 
we trace money in banks?
    Attorney General Gonzales. It depends on the disclosure.
    Senator Schumer. I did not hear the President talk--
    Chairman Specter. Let him finish his answer, Senator.
    Senator Schumer. No, no. I did not finish mine. I did not 
hear the President talk about it. I did not hear the Vice 
President talk about it. I never heard anybody get up on their 
high horse about it. So the question I have is, what is the 
standard? Is there a set standard? Does every referral get 
investigated?
    Attorney General Gonzales. No.
    Senator Schumer. How is it determined if you get a higher 
one? That is what I would like to know. Do you know the 
standard that determines whether a leak is investigated or not?
    Attorney General Gonzales. Again, Senator, we have this 
process that we follow in virtually every case, and the 
decisions are made by the career prosecutors in the Criminal 
Division as to whether or not an investigation should be 
initiated. A number of factors are weighed in deciding whether 
or not an investigation should go forward.
    One, I have already talked about, the number of people that 
have access, the damage to the national security of our 
country. So there are a number of factors that are weighed. 
Ultimately, the decisions are made down at the Criminal 
Division as to whether or not to move forward with an 
investigation.
    Senator Schumer. Right. How about this one? Congressman 
Hoekstra. He is an ally of the President. He is a defender of 
the President's efforts on the war on terror. He wrote a letter 
concerning another government program that the President has 
kept secret from Congress. He reportedly got that secret 
information from--and these are his words--''government 
tipsters.'' Is an investigation going on about those government 
tipsters?
    Attorney General Gonzales. I do not know.
    Senator Schumer. Would you get me an answer to that?
    Attorney General Gonzales. I will see what I can provide to 
you, sir.
    Senator Schumer. All right.
    Mr. Chairman, I think I would make a suggestion, with all 
due respect. We could use a hearing here on leak 
investigations, how they are conducted, how they are started, 
et cetera.
    There are too many people--myself included--who think that 
this is used as a tool to bludgeon certain papers in certain 
instances, but it is not a uniform process that you see 
proceeding apace in the government.
    Now, maybe it is and maybe we just hear about certain ones 
or others, but I think it certainly merits an investigation. So 
I will send you a letter asking that maybe we have a hearing on 
this particular issue.
    Chairman Specter. Senator Schumer, it is an important 
subject and we would be glad to consider where we go from here.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Specter. Senator Leahy has one more question.
    Senator Leahy. Mr. Attorney General, I do not want people 
to think we disagree all the time. We have a number of areas we 
do agree, and I think this is one we probably agree on.
    In August of 2000, President Clinton adopted Executive 
Order 13166. That order improves access to Federal programs and 
activities where people are limited in their English 
proficiency. I have written the President about this, and I 
recently asked the Commerce Secretary about this issue, when he 
was before us. So I ask you, will the Bush-Cheney 
administration continue to adhere--they presently are, but will 
they continue--to the Clinton Executive Order 13166?
    Attorney General Gonzales. I have no reason to believe that 
we will not, sir.
    Senator Leahy. Thank you. We have discussed this before. My 
wife was born of immigrant parents and English became her 
second language. My mother was born of immigrant parents, with 
English as her second language. Fortunately, they learned it as 
young people. But sometimes older people coming here could be 
helped greatly with this. I appreciate that. I thought you were 
sympathetic.
    Attorney General Gonzales. Yes, sir.
    Senator Leahy. I know Secretary Gutierrez was. I appreciate 
that.
    Attorney General Gonzales. Yes, sir.
    Chairman Specter. Thank you very much, Mr. Attorney 
General. You have been good, sitting through almost four hours. 
You are to be commended for your stamina and your good cheer in 
handling a lot of questions which have been direct and 
difficult.
    Attorney General Gonzales. Yes, sir.
    Chairman Specter. I noted that National Public Radio had a 
program on yesterday morning about your appearing here today, 
and about the relationship between the Judiciary Committee and 
the Department of Justice, and perhaps more pointedly, the 
relationship between the Attorney General and the Chairman.
    I do hope that NPR will replay the 4-hour hearing, because 
I think it shows that while there is a certain tension, which 
is entirely appropriate may the record show that the Attorney 
General is nodding yes--when you have the administration, 
Article 2, and the Congress, Article 1. I know the 
administration would like to renumber the Constitution. Maybe 
the administration already has.
    Attorney General Gonzales. We have a great Constitution, 
Mr. Chairman.
    Chairman Specter. We have had a lot of questions for you, 
but I think it is a fair assessment that it has been a very 
civil proceeding. There are times, because of limitations, 
where we do want to move on, and perhaps interrupt a little 
more than we should, or perhaps not. You are in a position to 
speak up and to defend yourself, and you are an experienced 
lawyer. You are an experienced counselor. You are an 
experienced judge.
    You have responded to the questions, and we have tried to 
frame them in a way which tries to get at positions, facts, and 
understanding what it is the President wants to accomplish, 
what it is the Department of Justice wants to accomplish, and 
to give you our concerns and our views, which naturally do 
differ from time to time, and especially in an era where there 
have been as many difficult issues as we have had in President 
Bush's tenure, really, since 9/11.
    There are just a tremendous number of issues. There are 
differing views. The separation of powers has never been more 
sorely tested than it has been recently. It has been tested 
sorely over the years on other occasions, but this ranks among 
the real tests of separation of powers and our respective 
responsibilities.
    So we thank you, and we renew our request that NPR play our 
session in its entirety.
    That concludes our hearing.
    [Whereupon, at 1:14 p.m. the hearing was concluded.]
    [Questions and answers and submissions for the record 
follow.]

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