[Senate Hearing 110-47]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-47
 
                    DEPARTMENT OF JUSTICE OVERSIGHT
=======================================================================



                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            JANUARY 18, 2007

                               __________

                           Serial No. J-110-3

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican 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.............................................   233
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement and letters...............................   247
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                                WITNESS

Gonzales, Alberto R., Attorney General of the United States, 
  Department of Justice, Washington, D.C.........................     6

                         QUESTIONS AND ANSWERS

Responses of Alberto R. Gonzales to questions submitted by 
  Senators Leahy, Specter, Kennedy, Biden, Feinstein, Feingold, 
  Schumer, Durbin, Grassley, and Cornyn..........................    67

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, New York, New York, reports......   177
Ehrlich-Steele Democrats, Official Voter Guide, November 7, 2006.   210
Gonzales, Alberto R., Attorney General of the United States, 
  Department of Justice, Washington, D.C., prepared statement....   212
Law deans and professors, joint statement........................   246
Wall Street Journal, Jan. 12, 2007, article......................   255
Washington Post, Jan. 13, 2007, article..........................   257


                    DEPARTMENT OF JUSTICE OVERSIGHT

                              ----------                              


                       THURSDAY, JANUARY 18, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 9:32 a.m., in 
room 106, Dirksen Senate Office Building, Hon. Patrick J. Leahy 
(chairman of the committee) presiding.
    Also present: Senators Kennedy, Kohl, Feinstein, Feingold, 
Schumer, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, and 
Cornyn.

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

    Chairman Leahy. Good morning. Thank you, all of you, for 
coming.
    We are in a different hearing room than usual, but Attorney 
General, there was some interest in your testimony so we 
expanded the room somewhat.
    We are going to hold what I believe is an important hearing 
to examine the operations of the Department of Justice. This 
is, after all, the Federal agency entrusted with ensuring the 
fair and impartial administration of justice for all Americans.
    As I have always done, I take our oversight responsibility 
very seriously. In the 32 years since I first came to the 
Senate, and that was during the era of Watergate and Vietnam, I 
have never seen a time when our constitution and fundamental 
rights as Americans were more threatened, unfortunately, by our 
own government.
    This last weekend, the President and Vice President 
indicated that they intended to override the will of the 
American people as expressed in the most recent national 
elections and ignore actions of Congress in order to escalate 
the war in Iraq.
    For years, the administration has engaged in warrantless 
wire tapping of Americans, I believe, contrary to the law. I 
welcomed the President's decision yesterday to not reauthorize 
this program and to instead seek approval for all wire taps 
from the Foreign Intelligence Surveillance Court, as the law 
requires, as many of us have been saying should have been done 
years ago.
    Now, we must engage in all surveillance necessary to 
prevent acts of terrorism, but we can, and should, do so in 
ways that protect the basic rights of all Americans, including 
the right to privacy.
    To ensure the balance necessary to achieve both security 
and liberty for our Nation, the President must also fully 
inform Congress and the American people about the contours of 
the Foreign Intelligence Surveillance Court order authorizing 
the surveillance program, but also the program itself.
    Regrettably, the administration has all too often refused 
to answer the legitimate oversight questions of the duly 
elected representatives of the American people. Unfortunately, 
the Justice Department has been complicit in advancing these 
government policies which threaten our basic liberties and 
overstep the bounds of our constitution. Some of the criticisms 
have been made by members of both parties.
    The Department has played a pivotal role, in my view, in 
eroding basic human rights and undercutting America's leading 
role as an advocate for human rights throughout the world.
    Last week, the world marked the fifth anniversary of the 
arrival of the first prisoners at Guantanamo Bay, and they 
marked that anniversary with protests. That facility has 
replaced Abu Ghraib in the eyes of many, including some of our 
closest allies, our best allies, as a symbol of repression.
    For more than 2 years we sought answers from the Department 
of Justice about reported--and in some instances documented--
cases of the abuse of detainess at Guantanamo.
    I wrote to the Attorney General regarding press reports 
that the Central Intelligence Agency has finally acknowledged 
the existence of additional classified documents detailing the 
Bush administration's interrogation and detention policy for 
terrorism suspects.
    I am glad that after initially refusing to provide any new 
information in response to my inquiries, the Attorney General 
wrote to me last week to say that he would work to develop an 
accommodation that would provide the Judiciary Committee with a 
sufficient understanding of the Department's position on legal 
questions related to that CIA program.
    But I remain disappointed that the Department of Justice 
and the White House have continued to refuse to provide the 
requests documents to the committee. The administration's 
secret policies have not only reduced America's standing around 
the world to one of the lowest points in our history, but these 
policies also jeopardize the Department's own efforts, 
ironically, to prosecute terrorism.
    Last week, USA Today reported that the Department's 
terrorism case against Jose Padilla is imperiled by concerns of 
Mr. Padilla's treatment during his lengthy detention. The back-
and-forth designation as a defendant and as an enemy combatant 
has eroded his mental capacity to such a great extent, he may 
not be fairly tried.
    After the administration and, I must say, the Republican-
led Congress, eviscerated the great Writ of Habeus Corpus in 
just a matter of hours, eviscerated the great Writ of Habeus 
Corpus not just for detainees but for millions of permanent 
residents living in the United States, this Department of 
Justice filed a legal brief expressly reporting that result, 
raising the specter that millions living in the United States 
today can now be subjected to definite government detention. 
The shudder that sent was felt not only throughout our country, 
but around the world.
    This week, we commemorated the life and contributions of 
Dr. Martin Luther King, Jr. Sadly, while the Department has 
defended the constitutionality of the Voting Rights Act, I am 
concerned it is backing away from the vigorous enforcement of 
the Voting Rights Act that the President promised only a few 
months ago. I know some of the Senators on this panel will have 
questions about that.
    In nearly 6 years in office, the Bush-Cheney administration 
has filed only one suit on behalf of African-American voters 
under Section 2 of the Voting Rights Act, the key section that 
provides a Cause of Action for discrimination against minority 
voters.
    I am deeply concerned the Department of Justice is 
retreating from its core mission to hold those who would 
violate our criminal laws accountable. Now, last week the 
President told us he plans to spend $1.2 billion more, on top 
of the billions of dollars sent to Iraq for reconstruction.
    But despite mounting evidence of widespread corruption, 
contracting fraud, billions unaccounted for, the Department of 
Justice has not brought a single criminal case against a 
corporate contractor in Iraq, even though we know, just reading 
the press, about the huge amounts of money in taxpayers' 
dollars that have been stolen in Iraq.
    The Department also has to do better at addressing the 
dangers that Americans face at home. According to the FBI's 
preliminary crime statistics for the first half of 2006, 
violent crimes in the United States rose again.
    It troubles me that, while this administration is more than 
willing to spend more and more American taxpayer funds for 
police in Iraq, it is cutting back funding for our State and 
4local police at home.
    I do not want to get into a debate on the Iraq war, but if 
we can spend money to buildup police forces in Iraq and we have 
to pay for it by cutting money for police forces in the United 
States of America, there are a lot of us across the political 
spectrum who think that is a Hobson's choice.
    This committee has a special stewardship role to protect 
our most cherished rights and liberties as Americans and to 
make sure that our fundamental freedoms are preserved for 
future generations.
    So, there is much more to be done. I believe civil 
liberties and the Constitution of this great country have been 
damaged during the past 6 years. We will try to repair some of 
that damage.
    Attorney General Gonzales, I do thank you for being here. I 
want to say that I hope that disagreements we may have do not 
obscure my desire to work with you to make the Department of 
Justice a better defender of Americans and their constitutional 
rights.
    We will talk about this later on. I know there are areas 
that you will be speaking about this morning, about the 
competence of immigration reform, other areas. Let us find 
those areas we can work together. Let us repair some of the 
concerns--justifiable concerns--Americans have.
    I will yield the rest of my time.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]

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

    Senator Specter. Thank you very much, Mr. Chairman.
    We welcome you here, Attorney General Gonzales. The 
Congress has worked coordinately with the President on the 
major issues facing the country, the war against terrorism, 
with the resolution authorizing the use of force, and this 
committee structured the renewal of the Patriot Act, giving the 
Department of Justice substantial additional authority to fight 
terrorism.
    As we have authorized executive authority, we have 
simultaneously expressed our concern about the balance with 
civil liberties. I was pleased to note yesterday that the 
Department of Justice has revised the Terrorist Surveillance 
Program and has brought it within the review of the Foreign 
Intelligence Surveillance Court.
    Your letter to Senator Leahy, the Chairman, and me noted 
that you had been working on it since the summer of 2005. It is 
a little hard to see why it took so long. We will want to 
inquire further into the details as to the process that you 
used.
    I thank you for the extensive briefing which I received 
yesterday from Steve Bradbury and Ken Wainstein, two very, very 
able attorneys in your Department. There are questions which 
remain unanswered.
    I talked to them and they said they would get back to me 
about a review of the affidavits submitted establishing what 
you have concluded is probable cause, and the orders which have 
been entered, and the review, which they represented to me, 
that the Foreign Intelligence Surveillance Court is making.
    Without discussing many of the details in an open session, 
there is a question which was already raised publicly about 
whether review is programmatic or individual. Your 
representatives have said that it is individualized on the 
warrants. In their description to me, I think we need to know 
more on the oversight process.
    With respect to the time delay, the disclosure was made by 
the New York Times on December 16. It was a Friday. We were 
wrapping up the Patriot Act. The disclosure of that secret 
surveillance program was a major complicating factor. I think 
had that not been noted, that we would have gotten that Act 
finished before December 31 and I think it would have been 
stronger in some material respects.
    I believe that the United States and the administration 
have paid a heavy price for not acting sooner to bring the 
Terrorist Surveillance Program under judicial review. That is 
the traditional way; before there is a wire tap or a search and 
seizure, to have probable cause established and to have court 
approval.
    We lost a close election. I would not want to get involved 
in what was cause and effect, but the heavy criticism which the 
President took on the program, I think, was very harmful in the 
political process and for the reputation of the country. So I 
will be inquiring further as to why it took so long and what 
could have been done further.
    As you know, this committee was hard at work with 
legislation which I had proposed and others had co-sponsored. 
We had four hearings, and I think we could have been of 
assistance to you if we had been consulted.
    Turning to the issue of habeus corpus, I note in your 
statement that the bills which have been introduced ``defy 
common sense''. I do not think Chairman Leahy and I would 
object to the characterization of the legislation which we 
introduced jointly to reinstate habeus corpus.
    I do not think we would object to your characterization 
that our actions have defied common sense. But when you take a 
look at what the Supreme Court has said on this subject, 
Justice Stevens wrote in Rasul v. Bush, habeus corpus has been 
applied to persons detained within the United States. It has 
embraced claims of aliens detained within the sovereign 
territory of this country.
    It is a little hard for me to understand how the Writ of 
Habeus Corpus, which goes back to the Magna Carta, can be 
modified by any legislation when there is an explicit 
constitutional provision that the Writ of Habeus Corpus would 
not be suspended except in time of invasion or rebellion. No 
one contends that either of those situations is present.
    When you come to the issue of common sense, it goes beyond 
Pat Leahy and Arlen Specter to Justice Stevens and the four 
justices who joined him. It goes to Justice O'Connor in Hamdi 
v. Rumsfeld, when she outlined that the Writ of Habeus Corpus 
applies to every individual detained within the United States.
    When your prepared statement cites the 1950 Supreme Court 
decision under totally different circumstances in World War II, 
any vitality of that decision is long gone with the recent 
pronouncements by the Supreme Court of the United States.
    The issue of the signing statements, Mr. Attorney General, 
continues to be a matter of major concern. They came up in the 
Patriot Act, which was very carefully negotiated with the 
Judiciary Committee and the Department of Justice. Then the 
President issues a signing statement saying that he is at 
liberty to disregard provisions on oversight. It came up with 
the McCain legislation on torture.
    Now it has come up with the legislation on the postal 
authority, where the President signed the legislation which 
prohibited opening mail, and then issues a signing statement 
that he retains the authority to do that.
    If the President is asserting that the Act of Congress is 
unconstitutional, then he ought to say so and not sign the Act. 
But if he signs the Act, as provided in the Constitution that 
the Congress presents him an Act, he has the choice of either 
approving the Act or of vetoing it. Matters of that sort put a 
very, very considerable strain on the relations between the 
legislative and executive branches.
    I wrote to you on November 20 requesting two memoranda 
which relate to the subject of rendition. You were quoted in 
the Chicago Tribune, saying that the decision on whether there 
will be rendition depends on the likelihood as to whether there 
will be torture or no torture, leaving open the possibility of 
torture.
    I discussed this with you personally, and then got, really, 
a pro forma letter back from one of your assistants. My 
suggestion to you, Mr. Attorney General, would be that when the 
Chairman or the Ranking press a matter, write to you, talk to 
you about it personally, that you ought to give it your 
personal attention on a response.
    I would suggest to you, further, that when you cite in your 
letter to me that these are highly classified matters, that you 
consider informing at least the Chairman and the Ranking 
Member, as is the practice on the Intelligence Committee, which 
I know in some detail, having chaired that committee in the 
104th Congress.
    I have a number of other points to make, but my red light 
is now going on so I shall thank the Chairman and conclude.
    Chairman Leahy. Thank you. Thank you, Senator Specter.
    What we will do, after the Attorney General's opening 
statement, we will have 7-minute rounds. The Attorney General 
is going to stay here throughout most of the day. I understand 
from the floor that the flurry of votes we had late last night 
will not be repeated, certainly during the morning, so I would 
urge Senators to stay within that time.
    Mr. Attorney General, please stand and raise your right 
hand.
    [Whereupon, the witness was duly sworn.]
    Chairman Leahy. I would also note that this is, of course, 
an open hearing. We have television. We have 18 Senators, both 
Republicans and Democrats, who have a constitutional duty to 
their constituents, to their office to ask questions, and they 
want to be heard. They want to have the answers heard.
    Also, though, it is a public hearing and the public has a 
right to watch what is going on. I understand that there are 
people in the audience who wish to demonstrate their feelings 
about things.
    I would point out, however, that in standing, you are 
blocking the views of people who want to hear this. I think, as 
matter of politeness, you do want to give those people behind 
you a chance to watch these hearings. One of the great things 
about this country, is we have such hearings and people can be 
heard.
    Mr. Attorney General, please proceed.

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

    Attorney General Gonzales. Thank you, Mr. Chairman. I look 
forward to our conversation this morning about the important 
work of the Department of Justice.
    The Department of Justice's responsibilities are vast, as 
we all know, but our top priority continues to be the 
prevention of terrorist attacks. At the Department of Justice, 
every day is September 12th.
    I expect that much of our discussion today will focus on 
matters related to the war on terror. In particular, I expect 
that you will want to discuss the letter I sent to Chairman 
Leahy and Senator Specter yesterday regarding the President's 
decision not to reauthorize the Terrorist Surveillance Program.
    Court orders issued last week by a judge of the Foreign 
Intelligence Surveillance Court will enable the government to 
conduct electronic surveillance, very specifically, 
surveillance into or out of the United States, where there is 
probable cause to believe that one of the communicants is a 
member or agent of Al Qaeda or an associated terrorist 
organization, subject to the approval of the FISA court.
    We believe that the court's orders will allow the necessary 
speed and agility the government needs to protect our Nation 
from a terrorist threat. I look forward to discussing these 
matters further.
    I hope that we also can discuss other non-terrorism 
matters. I am keenly aware of the responsibilities that I have, 
and that all of you have, that are not related to terrorism, 
but nonetheless are of great importance to the American people.
    First, I hope we can discuss a few things we can do 
together to keep American neighborhoods safe from the threat of 
violent crime, gangs, and drugs. The vast majority of this work 
is done by State and local law enforcement agencies, but the 
Department of Justice plays an important and unique role.
    The Department's indictment last week of 13 members of the 
MS-13 street gang is an excellent example of the good work that 
is being done by the law enforcement community that works 
together at all levels, State, local, and Federal.
    Despite our increased focus on combatting terrorism, 
investigating and prosecuting violent criminals remains a core 
function of DOJ. Although the overall violent crime rate is 
down, near a 30-year low, we have an increase in certain types 
of crime in some areas of the country and this concerns me.
    To better understand these increases, Department officials 
have, over the last 2 months, visited 18 cities. In some of 
these cities the violent crime rate had increased, while in 
others it had decreased.
    In each State, we met with State, local, and Federal law 
enforcement, as well as with community groups, to discuss the 
unique causes of, and responses to, crime in their city. 
Although our analysis is not complete, it is clear that there 
is no one-size-fits-all response. Every city is different. The 
appropriate response to crime in each city depends on its 
particular circumstances.
    In the coming months, we will make policy recommendations 
based on our research, the crime trends we identify, and the 
best practices that have been developed.
    Second, I hope we can discuss an emerging problem, the 
abuse of prescription drugs purchased over the Internet, and 
the things that we can do together to address this issue. 
Prescription drug abuse is now the second-largest form of drug 
abuse in the United States, and the only rising category of 
abuse among youth.
    Now, feeding this abuse is a proliferation of illicit web 
sites that offer controlled substances for sale, requiring 
little more than a cursory online questionnaire and charging 
double normal price.
    Make no mistake, these illicit web sites are not about 
getting necessary medicine to this in need. We must preserve 
legitimate access to medications over the Internet, while 
preventing online drug dealers from using cyberspace as a haven 
for drug trafficking.
    I look forward to working with the Congress to ensure that 
controlled substances are dispensed over the Internet only for 
legitimate medical purposes.
    Similarly, I look forward to working with the Congress to 
protect our children from pedophiles and sexual predators. 
Protecting our kids is a top priority for me as Attorney 
General and as a father.
    It is a shame that the Internet, the greatest invention of 
our time, has provided pedophiles and child pornographers with 
new opportunities to harm our children. This is a new and 
evolving criminal law enforcement challenge that we are 
addressing aggressively.
    Last year's enactment of the Adam Walsh Act was historic, 
and I want to thank the committee for its work on that 
important bill. It is clear to me every day, however, that more 
tools are needed.
    I continue to hear from Federal, State, and local law 
enforcement that they need access to the information that will 
help us find online predators and child pornographers. There 
are children to be rescued through the prosecution of these 
dangerous criminals. I ask you to work with me this year on 
this critical issue of protecting those who cannot protect 
themselves.
    I also hope that your desire to protect our Nation's 
children from unthinkable sexual abuse will influence you to 
reform the mandatory nature of Federal sentencing guidelines.
    The advisory guideline system we currently have as a result 
of the Supreme Court's Booker decision can, and must be, 
improved. The Sentencing Commission has determined that, post-
Booker, in almost 10 percent of all cases involving criminal 
sexual abuse of a minor, judges have given below guideline 
sentences. Similarly, in over 20 percent of cases involving 
possession of child pornography, defendants are being sentenced 
below the guidelines' ranges.
    Now, sentences should be fair, determinant, and tough. I 
call upon this body to enact legislation to restore the 
mandatory nature of the guidelines to ensure that our criminal 
justice system is both fair and tough.
    One of the last issues I want to present to the committee 
today is the urgent need to reform our immigration laws. As the 
grandson of Mexican immigrants and as a law enforcement 
official, border security and immigration reform are close to 
my heart and always on my mind.
    The President and I believe that we can take pride in being 
an open country and a Nation of immigrants, while also 
protecting our country from those who seek to harm us.
    I will conclude with one final, and I believe urgent, 
request: please give the President's judicial nominees an up-
or-down vote. Currently, there are 56 judicial vacancies, half 
of which have been designed as ``judicial emergencies''.
    During the 107th Congress when Senator Hatch chaired this 
committee, 73 Federal judges nominated by President Clinton 
were confirmed, 15 of those were for the Circuit Court. I urge 
this committee to treat President Bush's nominees at least as 
fairly as President Clinton's were treated.
    Thank you for the opportunity to appear before you. I am 
happy to answer your questions.
    [The prepared statement of Attorney General Gonzales 
appears as a submission for the record.]
    Chairman Leahy. Thank you, Attorney General.
    You know, there has been discussion of signing statements 
here. I would like to go into that area, first. I was deeply 
disturbed by the President's recent signing statement for the 
Postal Accountability and Enhancement Act. It suggests that the 
Bush administration is opening Americans' mail without first 
obtaining a warrant.
    Now, when you appeared before this committee in February of 
2006, I asked you whether the President believed that he had 
the legal authority to open mail under the Authorization for 
the Use of Military Force, AUMF, the authorization we gave to 
go into Afghanistan and get Osama bin Laden, something I wish 
had happened. You went to great lengths to avoid directly 
answering my questions.
    Last week, our exchange appeared in the Washington Post 
editorial critical of the President's signing statements, and I 
put a copy of the editorial up there. I will, at this point, 
place it in the record.
    I just believe from that I had asked you whether AUMF had 
permitted the warrantless opening of mail.
    You answered, ``There was all kinds of wild speculation out 
there about what the President has authorized. What we're 
actually doing, I'm not going to get into a discussion, 
Senator, about hypotheticals.''
    I responded, ``Mr. Attorney General, you are not answering 
my question. Does this law--you are the chief law enforcement 
officer of the country. Does this law authorize the opening of 
First Class mail of U.S. citizens, yes or no, under your 
interpretation? ''
    You responded, ``Senator, I think--I think that, again, 
that is not what is going on here. We are only focused on 
communications, international communications where one part of 
the communication is Al Qaeda. That is what this program is all 
about.'' I said, ``You have not answered my question.''
    Now, my concerns about this issue are not, as suggested in 
our exchange, hypothetical. Thirty years ago, Congress placed 
limits on the government's authority to open private mail after 
the Church Committee found that the CIA and the FBI had been 
illegally opening citizens' mail for years.
    It turned out they were doing that because they found some 
of these citizens were protesting the war in Vietnam, as many 
did, or that some opposed discrimination against blacks in 
America. The FBI and CIA were going to investigate why they 
would take such ``terrible'' positions.
    Now, surely there are circumstances when the government 
should not have to wait for court approval to open mail, so it 
can save lives or protect public safety, but we have a 
provision in the law that allows you to do that.
    But given the willingness of this President to ignore the 
law, to claim extraordinary information-gathering powers in the 
name of the war on terror, I think would deserve a straight 
answer on this question.
    You are the chief law enforcement officer of this country 
so I ask you, is the Bush administration opening Americans' 
private mail without a warrant, yes or no?
    Attorney General Gonzales. Senator, the answer is no, but 
let me flesh out the answer. I mean, obviously there may be 
instances where either the sender or recipient may consent to a 
physical search, so that possibility may exist.
    But to my knowledge, there is no physical search of mail 
ongoing under either the authority to use military force or the 
President's inherent authority under the Constitution, except 
as otherwise authorized by statutes passed by the Congress. For 
example, there are provisions in FISA which would allow 
physical searches under certain circumstances.
    Chairman Leahy. I understand. You understand some of our 
concern because of the willingness--and we may disagree on 
this--of the administration to ignore FISA in wire taps. Are 
you saying that they are following FISA in mail openings?
    Attorney General Gonzales. What I am saying, Senator, is 
that to my knowledge there is no ongoing physical searches of 
mail under the authority we have claimed, under the 
authorization to use military force, or under the President's 
inherent authority under the Constitution as far as I know.
    Chairman Leahy. Not ongoing. Has there been some?
    Attorney General Gonzales. Not that I am aware of. No, sir.
    Chairman Leahy. Does the President believe he has the 
inherent constitutional authority to open Americans' mail 
without a warrant?
    Attorney General Gonzales. Now you are asking me to get 
into an analysis that, quite frankly, the Department has not 
done. What I would point you to is Justice Jackson's analysis 
under Youngstown in terms of looking at the inherent authority 
of the President, looking at the inherent authority of the 
Congress in weighing those.
    Chairman Leahy. But if you take Youngstown, we have laid 
out pretty clearly what the authority is following the Church 
Committee with FISA and everything else. Do you think the 
President has authority under AUMF, notwithstanding the 
requirements of the FISA statute?
    Attorney General Gonzales. Senator, I am not prepared to 
answer that question. I think for purposes of today's hearing, 
I think it is important for everyone to note that, as far as I 
know, there is no ongoing physical searches of mail under the 
authorization to use military force--
    Chairman Leahy. And there has not been? Attorney General 
Gonzales. And, to my knowledge, there has not been any kind of 
authorization of that nature.
    Would you know if there was?
    Attorney General Gonzales. I think that I would know, sir. 
Yes, sir.
    Chairman Leahy. Well, then why in heaven's name did the 
President feel he needed to issue a signing statement?
    Attorney General Gonzales. Sir, he issued that signing 
statement to preserve the authority we believe exists under 
FISA, under other statutes. So when you have got the President 
signing a statute saying, this is the only way you can engage 
in physical searches, the President wanted to preserve the 
authority you gave to him under the other statute. That is the 
purpose of issuing the signing statement.
    Chairman Leahy. Mr. Attorney General, can you understand a 
certain skepticism up here? It was done late in the week on 
something that actually is a compulsory organization, has 
nothing to do with FISA, in no way--in no way--goes into FISA, 
no way adds to or undercuts FISA.
    And then we see one of these signing statements that, late 
in the day, kind of slipped out--in fact, most people did not 
find out about it until about a week later--saying, oh, by the 
way, I have the authority to just open your mail.
    Do you understand why we might be just a tad concerned?
    Attorney General Gonzales. Senator, from our perspective 
there was a possibility of misconstruing the statute in a way 
that would take away from the President existing authorities 
that the Congress had given under other statutes, and the 
President simply wanted to preserve the authorities that 
Congress had already granted to him.
    Chairman Leahy. Well, let me go into another area of this. 
The FBI has always had the ability to issue national security 
letters, and it has done that. But now we find, not from 
anything that has been told to us in our oversight, but we find 
from the New York Times--sometimes I wish it would just mark 
the New York Times ``top secret''. We would get the information 
quicker, in more detail, with the wonderful crossword puzzle at 
the same time.
    But they reported that the Department of Defense and CIA 
have greatly expanded the use of non-compulsory national 
security letters to acquire Americans' sensitive financial 
records. There were 500 requests for financial records since 9/
11.
    Why in heaven's name do we have the Department of Defense 
and CIA spying on Americans? I mean, if we are going to be 
doing that, if we are going to be doing it legally, it should 
be done through your Department?
    We have always tried to keep the Department of Defense and 
the CIA outside our borders and not delving into the 
Americans'--especially since Corantelpo and things like that--
lives. Why are they doing it? Why has the Department of Justice 
not said, if there is a need for this, we will do it?
    Attorney General Gonzales. Senator, I do not know if the 
DoD activity, which appears to be permitted--there are at least 
five NSL statutes, so whether or not this is a grand expansion, 
I think perhaps it is an incorrect characterization.
    There has been authority provided by the Congress for 
certain law enforcement agents and certain agencies to engage 
in the collection of these kinds of business records. That is 
what we are talking about here, business records in the hands 
of third parties. So there is no constitutional issue here, per 
se.
    Chairman Leahy. But it has always been the law enforcement 
in the FBI. Law enforcement officials have done that, or those 
normally involved in law enforcement. All of a sudden, we have 
the CIA and the Department of Defense going into internal 
American matters.
    Does this not trouble you?
    Attorney General Gonzales. If the stories are true, of 
course it would be very troubling.
    Chairman Leahy. Well, are they true?
    Attorney General Gonzales. Sir, I do not know if they are 
true or not.
    Chairman Leahy. Did you ask?
    Attorney General Gonzales. I do not believe that they are 
true.
    Chairman Leahy. Have you asked?
    Attorney General Gonzales. I have not asked, personally, in 
terms of whether or not the Department of Defense--
    Chairman Leahy. But this is going into your normal 
bailiwick. Why have you not asked?
    Attorney General Gonzales. Again, Senator, I think by 
statute the Congress has decided that certain agencies do have 
the authority to engage in this kind of collection of 
information.
    Let me just remind you, you cannot use it for criminal 
investigation. You cannot use it for domestic terrorism. You 
can only use it in connection with espionage investigations, 
and only with international terrorism.
    So when you have DoD, who has bases all around the country, 
they could be involved in an espionage investigation. Congress 
has decided that they do have the authority to use national 
security letters.
    Chairman Leahy. Attorney General, in fairness to my 
colleagues, I will come back to this, because I have used my 
time. I also know that DoD has even gone and found Quakers who 
protest, that somehow they are going to protect their bases. 
Quakers tend to protest wars. It has happened a lot in this 
country.
    But before I turn it over to Senator Specter, let mention 
that Senator Specter and I joined together in asking the Chief 
Judge of the FISA court for copies of the decisions of that 
court that you announced publicly on Wednesday. The court is 
apparently willing to provide these decisions to the committee. 
You have no objection to that, do you?
    Attorney General Gonzales. Senator, I think that is a 
decision that I would like to take back to my principal, quite 
frankly.
    Listen, let me just be real clear about this, however. I am 
extremely proud of the work of the lawyers involved in trying 
to get this application completed and this application 
approved.
    I somewhat take issue--it is hard for me to do--with 
Senator Specter's innuendo that this was something that we 
could have pulled off the shelf and done in a matter of days or 
weeks. There is a reason why we did not do this as an initial 
matter shortly after the attacks of September 11th.
    The truth of the matter is, we looked at FISA and we all 
concluded, there is no way we can do what we believe we have to 
do to protect this country under the strict reading of FISA.
    Nonetheless, because of the concerns that have been raised, 
we began working in earnest to try to be creative, to push the 
envelope. Where is there a way that we could craft an 
application that might be approved by the FISA court?
    So shortly after I became Attorney General I asked that we 
redouble our efforts to see if we could make that happen, so we 
have been working on it for a long time. It took a great deal 
of effort, and I am very, very proud of the work of the 
attorneys at the Department.
    Chairman Leahy. I do not think I fully understand. Are you 
saying that you might object to the court giving us decisions 
that you publicly announced? Are we a little Alice in 
Wonderland here?
    Attorney General Gonzales. I am not saying that I have 
objections to it being released. What I am saying is, it is not 
my decision to make.
    Chairman Leahy. No, but it is the court's decision, is it 
not?
    Attorney General Gonzales. Let me just make one final 
point.
    Chairman Leahy. Well, we are going to ask the court for 
them anyway.
    Attorney General Gonzales. I cannot remember what is in the 
orders now, but certainly in the application there is going to 
be information about operational details about how we are doing 
this that we want to keep confidential.
    That has been shared with Senator Specter. We have offered 
to make that information available to you, Mr. Chairman. We 
will continue to have a dialog to provide as much information 
as we can about the operational details, but I am sure you can 
appreciate the need to keep that information confidential.
    Chairman Leahy. We are going to continue our request that 
the court give us those decisions. They appear to be willing 
to. If parts of it have to be in closed session, we will do 
that.
    Senator Specter, I am sorry.
    Senator Specter. Thank you, Mr. Chairman.
    Attorney General Gonzales, I have already noted my request 
to your subordinates to see the applications, the Statement of 
Probable Cause, and the orders. That is really indispensable 
for our appropriate oversight responsibilities.
    Your letter to Senator Leahy and me yesterday recites that 
you have been on this since the summer of 2005. Now, I am not 
entirely unfamiliar with the issues involved here, but I cannot 
help but conclude that there has not been a sufficient sense of 
urgency on the part of the Department of Justice to get this 
job done faster.
    I just do not see it as a 19-month undertaking. I say that 
in the context which, as you know, I introduced legislation a 
year ago on this subject to send this matter to the Foreign 
Intelligence Surveillance Court.
    I cannot understand why, in that context where I discussed 
it with you personally, with your subordinates, and with the 
President personally, that this committee and I were not made 
privy to what was going on so that we could help you.
    But we are going to pursue this to see if there is any 
conceivable justification for more than a year and a half 
elapsing. I have dealt with complicated matters and I do not 
see a justification with a sufficient sense of urgency.
    Let me move on to the disclosures 10 days ago about the CIA 
and the Department of Defense conducting surveillance on 
American citizens.
    There is a very basic distinction between the role of the 
FBI and the CIA. That is, that the CIA is overseas and the FBI 
has exclusive jurisdiction over domestic investigations. On 
that fundamental point Attorney General Gonzales, is that 
distinction not correct?
    Attorney General Gonzales. Senator, I do not recall what 
the story said about the CIA's involvement.
    Senator Specter. Answer my question as to whether--
    Attorney General Gonzales. Yes, it is correct.
    Senator Specter. It is correct. Well, then I, again, am at 
a loss to see what the CIA is doing on domestic investigations.
    Now, with respect to the Department of Defense, the 
Department of Defense has no authority to investigate American 
citizens. We have a Posse Comitiatus Act. We have very severe 
limitations for the Department of Defense.
    Is there any justification for the Department of Defense 
moving into an area where the exclusive authority rests with 
the Federal Bureau of Investigation?
    Attorney General Gonzales. I think, Senator, again, my 
reading of the statute is that they would have the authority to 
engage in the investigation related to espionage.
    Senator Specter. What statute?
    Attorney General Gonzales. Either the Right to Financial 
Privacy Act, two provisions of the Fair Credit Reporting Act, 
Section 2709 of Title 18, and Section 802 of the National 
Security Act.
    Senator Specter. What do those Acts say about the 
Department of Defense? Supply that answer in writing so we can 
see exactly what you have in mind.
    When I walked in this morning--no, no. It was not when I 
walked in, it was after I walked in and was seated here. I got 
a letter from Richard A. Hertling, Acting Assistant Attorney 
General, Office of Legislative Affairs. Now, Mr. Hertling is a 
good man. He used to work for me; I thought I had trained him.
    This contains your responses to the hearing 6 months ago, 
July 18 of last year. We have 186 pages. I am a speed reader, 
Attorney General Gonzales, but not this speedy. There are lots 
of issues I would like to ask you about. Can you come back 
tomorrow so I have a chance to read this tonight?
    Attorney General Gonzales. I will come back as soon as I 
can, Senator.
    Senator Specter. How about tomorrow?
    Attorney General Gonzales. I will come back as soon as I 
can.
    Senator Specter. How about tomorrow?
    Attorney General Gonzales. Well, Senator, let me--
    Senator Specter. Is there any justification for dropping 
this on us this morning?
    Attorney General Gonzales. No, there is not.
    Senator Specter. All right. I thank you for that direct 
answer.
    Attorney General Gonzales. I am disappointed at placing the 
committee in that position. It should not have happened.
    Senator Specter. On a couple of investigative matters, 
Attorney General Gonzales, we had the Director of the FBI 
before us in December. And I raised with him the issue of a 
leak on an FBI investigation about Congressman Weldon shortly 
before the last election. Director Mueller said that he was 
``exceptionally disappointed'', and that it was ``unfair in 
advance of an election.'' He is looking at an investigation 
which might be a ``criminal'' investigation.
    Will you advise this committee, or at least the Chairman 
and Ranking Member, what the progress of that investigation is?
    Attorney General Gonzales. I will certainly go back and see 
what information we can provide. Let me also say, Senator, that 
I was, likewise, very, very disappointed--angry--about that 
leak. I do not care if it was before an election or whatever, 
leaks relating to ongoing investigations should not happen.
    I know that all the U.S. Attorneys were advised by the 
Office of U.S. Attorneys that things like this should not 
happen. I know that Alice Fisher, head of the Criminal 
Division, notified everybody within the Criminal Division that 
this kind of stuff is intolerable and should not happen.
    Senator Specter. Attorney General Gonzales, will you inform 
this committee, or at least the Chairman and Ranking Member, 
about what is happening on the anthrax investigation which hit, 
not close to home, but at home?
    Attorney General Gonzales. Senator, Director Mueller, I 
believe, has offered to give the Chairman a briefing. We are 
waiting to try to accommodate the Chairman's schedule to make 
that happen. We understand the frustration and the concern that 
exists with respect to the length of time. This is a very 
complicated investigation.
    I know that the Director is very committed to seeing some 
kind of conclusion in the relatively near future, and so we are 
prepared to sit down and brief the Chairman with respect to the 
progress.
    Chairman Leahy. If the Senator would just yield a moment. 
If there is going to be a briefing of me as Chairman, I would 
want the Ranking Member included in that briefing. Obviously I 
have beyond a professional interest. I have a personal 
interest, insofar as somebody tried to kill me with those 
anthrax letters, and the attempt killed at least two people.
    One, I would like to know why I was singled out, but 
mostly, for the now, I guess, five people who were killed and 
several others who were crippled by that anthrax attack, I 
would like the perpetrator brought to justice. This was on my 
time, not on Senator Specter's.
    Senator Specter. Well, let me reclaim just a little time, 
Mr. Chairman, to finish up on this subject. The FBI has 
resisted telling us what is happening in that matter.
    We have had tremendous resistance from the Department every 
time we move into what you claim is an ongoing investigation or 
pending prosecution. Let me remind you of the commitment which 
your Department has made.
    I wrote to you and I wrote to Deputy Attorney General 
McNulty referencing the standards set forth in extensive 
memorandum by the Congressional Research Service, which 
concluded that ``the Department of Justice has been 
consistently obliged to submit to congressional oversight, 
regardless of whether litigation is pending, and that the 
oversight authority of the Congress extends to documents 
respecting open or closed cases that include prosecutorial 
memoranda, FBI investigative reports, summaries of FBI 
interviews, memoranda, and correspondence prepared during the 
pendency of cases.''
    Then I asked Mr. McNulty, ``I would like your specific 
agreement that the Department of Justice recognizes the 
oversight authority of this committee.'' Mr. McNulty said, 
``You have my agreement.''
    Now, let me remind you, Mr. Attorney General, that we have 
not had that agreement carried out. I cite the anthrax 
investigation and the Weldon matter as two matters which have 
attracted the attention of this committee, and would ask for 
your responses specifically.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Next, we will call on actually the most senior of this 
committee and nearest the Chairman of the committee, Senator 
Kennedy.
    Senator Kennedy. Thank you very much.
    Welcome, General Gonzales. Many of us believe that the war 
that we are fighting in Iraq today bears no resemblance to the 
war Congress authorized in 2002. Our troops are being asked to 
take sides in a civil war in a country where militias operate 
with impunity, where sectarian violence is the norm, and where 
ethnic cleansing is taking place neighborhood by neighborhood. 
I do not believe any Member of Congress would have authorized 
our involvement in a civil war.
    I have introduced legislation to require congressional 
authorization to escalate our involvement in Iraq. The bill 
would prevent the President from increasing the number of 
troops unless Congress authorized him to do so.
    Article 1, Section 8 of the Constitution clearly gives 
Congress the extensive power over a war. It gives it the power, 
under Article 1, to lay and collect taxes, to provide for the 
common defense, to declare war, grant letters of mark and 
reprisal, make rules concerning captures on land and water, 
raise and support armies, to provide and maintain a navy, to 
make rules for the government, regulation of the land and naval 
forces, to provide for calling forth the militia to execute the 
laws of the Nation, suppress insurrections and repel invasions, 
to provide for organizing, arming, and disciplining the 
militia.
    James Madison wrote, ``The Constitution supposes, but the 
history of all governments demonstrate, that the executive is 
the branch of power most interested in war and most prone to 
it. It has, accordingly, with studied care, bested the question 
of war in the legislative branch.''
    So I have a letter here which I will share with you, and I 
will ask that it be included in the record, from leading 
constitutional scholars confirming that Congress has this 
authority.
    They say, ``Congress may limit the scope of the present 
Iraq war by either of two mechanisms. First, it may directly 
define limits on the scope of that war, such as by imposing 
geographic restrictions or a ceiling on the number of troops 
assigned to that conflict. Second, it may achieve the same 
objective by enacting appropriations restrictions that limit 
the use of appropriated funds.''
    The letter concludes, ``Far from an invasion of 
Presidential power, it would be an abdication of its own 
constitutional role if Congress were to fail to inquire, 
debate, and legislate as it sees fit regarding the best way 
forward in Iraq.''
    Now, my question, General, do you accept that Congress does 
have the authority to prevent the President from increasing 
troop levels in Iraq in the manner I have described?
    Attorney General Gonzales. Senator, I do not know if I am 
prepared to answer that question. I am prepared to say that I 
have had many conversations about this, and I may have said 
that during my confirmation hearings, I think if you look at 
the framework of the Constitution, the framers clearly intended 
that, during a time of war, that both branches of government 
would have a legitimate role to play.
    At the far end, you have got the power of the Congress to 
declare war. I think at the other end you have the core sort of 
commander-in-chief authority to say, take that hill. Then 
things get kind of murky.
    But, clearly, you recited certain provisions in the 
Constitution which clearly provide Congress the authority to 
raise and support armies, to provide and maintain a navy, the 
power of the purse.
    So, clearly, Congress does have a role to play in the 
execution of the war. As to whether or not the legislation that 
you were referring to would be constitutional, would be one 
that I would have to evaluate under the Youngstown framework.
    Senator Kennedy. All right.
    But you recognize that when the Constitution says it may 
limit, we are not talking about assigning battalions into 
different field positions or we are superimposing a judgment on 
the use of troops in any form, we are talking about the general 
direction or the scope of the war.
    As this memo points out, ``imposing the geographic 
restrictions or ceiling on the number of troops assigned to 
it,'' or it may achieve the same by enacting appropriations. 
You do not deny that those two powers rest in the Congress.
    As I understand your question, it is whether the 
legislation conforms with that. Are you questioning whether the 
Constitution gives us the authority and the power?
    Attorney General Gonzales. Rather than giving you an answer 
here without looking at the words as to the constitutional of 
the Congress vis-a-vis the President during a time of war, I 
would like the opportunity to look at it and respond back to 
you.
    Senator Kennedy. All right. I will make it available to 
you.
    I believe that the President needs to have congressional 
authorization if he is going to invade Iran. What is your 
position on that? Do you agree with me?
    Attorney General Gonzales. I am not aware of any plans to 
invade Iran.
    Senator Kennedy. I am not asking whether he is planning to. 
If he were to invade Iran, I believe that he would have to come 
to the Congress for authorization.
    Attorney General Gonzales. Senator, for example, if there 
were an attack by Iran, I think the President would have 
constitutional authority to defend this country. So there may 
be circumstances where I am not sure that that would 
necessarily be true. It would depend on a lot of circumstances 
and factors that we would have to look at.
    Senator Kennedy. I am not talking if it is an attack of 
retaliation. It is clearly described in the Constitution, and 
also in the War Powers Act. That is all clearly outlined, after 
a great deal of debate and passage by Republicans and 
Democrats, with a great time of deliberation.
    I am asking, now, just as we are looking at the current 
situation in Iran, whether it is your understanding, as the 
principal advisor of the President on legal matters, that he 
has a requirement to come to the Congress for an authorization 
prior to the time of invasion?
    Attorney General Gonzales. Well, again, I am not aware of 
any plans to invade Iran, and I can assure you, in providing 
advice to the President, I would make sure that he understood 
that the Constitution does give to the Congress a role with 
respect to the country going into war. Again, you are asking me 
a difficult constitutional question absent of any facts that I 
think would be important in providing an answer.
    Senator Kennedy. Well, I think this is distressing and 
disturbing to leave out there that somehow there are the 
circumstances where you think that an invasion of Iran would 
not require an authorization by the Congress of the United 
States.
    Attorney General Gonzales. Senator, I think we all 
understand that. Certainly I understand that. My reading of the 
interpretation of the Constitution, is with respect to the 
country going into war, the country is better off when the 
branches are working together. Clearly, the framers intended 
that, with respect to the country being at war, being in 
combat, that the Congress would have some role as spelled out 
in the Constitution.
    Senator Kennedy. My time is up. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Hatch.
    Senator Kennedy. Oh, Mr. Chairman? I get 7 minutes. I 
thought it was five. I have another 2 minutes. Excuse me.
    General, I am disturbed by the pattern of the 
administration of pushing policies and practice that trample on 
the constitutional legal rights--we referred to those, or the 
Chairman did, earlier--and then backing off or purporting to 
back off when a court of law is about to rule against you or 
Congress is about to act. This was done yesterday in announcing 
that the warrantless wire tapping program be brought under 
FISA.
    We still have to learn more facts about that. After years 
of insisting that it could not be, I am told you rushed to 
court to argue that the most advanced challenge to that program 
is now moot.
    In the case of Jose Padilla, when he was detained 
unlawfully for years, about to go to the Supreme Court, at the 
last minute you charged him with crimes unrelated to the 
allegations pursuant to which he had been held, and you have 
done it in defending the use of torture.
    You were nominated for Attorney General and then went back 
and had the repeal of the old torture statute, the Bybee 
memorandum, and then came up with a new torture statute and 
went on for your confirmation.
    All of the while, the administration was criticizing 
raising the issue of the patriotism of individuals that were 
critical of those actions, whether it was torture or whether it 
was in these other areas, FISA and other areas.
    This, I think, raises, as has been pointed out, time, 
resources, and really squandered the support of the other 
branches of government and the American people.
    Your reaction?
    Attorney General Gonzales. Senator, we have taken actions 
that we believed were absolutely necessary. The President has 
ordered actions that he believed was absolutely necessary to 
protect the security of our country.
    You mentioned our actions with respect to obtaining orders 
from the FISA court. This was not motivated by the litigation. 
We began this process well in advance of the disclosure of the 
program, and thus well in advance of the litigation.
    We began this action simply because the President believed 
that there was no other alternative, there was no other way to 
do it, no other way to protect this country, and because there 
was a firm belief--and that belief continues today--that he 
does have the authority under the Constitution to engage in 
electronic surveillance of the enemy, on a limited basis, 
during a time of war. That is consistent with tradition and 
practice, and that is certainly not inconsistent with the 
various Circuit Courts that have looked at this issue.
    So I would simply say that the President at all times has 
been motivated in terms of what he believes is the right thing 
to do to protect this country in a manner that is consistent 
with the Constitution and his obligation as the Chief Executive 
and the Commander in Chief.
    Chairman Leahy. Thank you.
    Senator Hatch?
    Senator Hatch. Thank you. Thank you very much, Mr. 
Chairman.
    General, welcome. I personally appreciate the service you 
have given. I know you have inherited this job at one of the 
toughest times in the history of the world, let alone our own 
country. These issues are very difficult issues and there are 
differing points of view with regard to many of these issues.
    As we all know, that is why the Supreme Court is constantly 
hearing constitutional cases, so they can determine whether one 
side or the other is right, or just exactly what constitutional 
principles to go with.
    With regard to Iran, there are so many variable-fact 
situations that you could conjure up where a president would 
have an obligation to defend the country, so to just come out 
and say, well, you cannot go to war with Iran without approval 
of the Congress, I mean, that is such an over-simplification 
that you cannot even discuss it constitutionally, other than, 
it is an over-simplification. There are all kinds of problems.
    In this world of terrorism where these people do not wear 
uniforms, they do not represent a country, they basically 
represent a minority ideology that is not embraced by the vast 
majority of Muslim people in the world, and they do not care 
about human life, including their own.
    It is easy to sit back and criticize, but we live in a 
world of real controversy and real difficulty. I think you are 
in a very, very tough position here. From what I have seen, you 
have done your very dead-level best to make sure constitutional 
principles are followed and that the Justice Department handles 
matters in a respectable, decent, honorable way, and I want to 
commend you for it.
    But let me just change the subject. You correctly 
emphasized that the Internet has radically changed the world of 
obscenity and child exploitation. We hear every day about child 
exploitation in this country.
    It has changed the way the material is produced, marketed, 
distributed, and even used. It has been 21 years since the 
Attorney General established a commission to study obscenity 
and pornography to make recommendations for us. The Internet 
did not even exist when the commission did its work.
    Last September when you testified before the Senate Banking 
Committee, my colleague from Utah, Senator Bennett, raised this 
issue with you and you were open to considering it. I want to 
repeat the suggestion here.
    Will you consider establishing a new commission to study 
this crisis and make recommendations, with a particular focus 
on the Internet? I believe that the Internet is part of the 
problem when we come to child molestation and some of these 
issues that have been in the news every day for a long time.
    Attorney General Gonzales. Senator, I have considered it. I 
am willing to sit down with you and get your views about it. I 
think we are doing a lot already in terms of, I established an 
obscenity task force. We have got 52 obscenity convictions.
    We had a training session down in South Carolina a few 
months ago where a representative from every U.S. Attorneys' 
Offices came. I went and spoke, Paul McNulty went and spoke. 
The purpose of this was to emphasize the obscenity prosecutions 
around the country.
    Many of the recommendations of the Meese Commission, of 
course, are reflected in laws passed under the PROTECT Act, the 
Adam Walsh Child Protection Act, so I think we have done a lot. 
I am, however, still very concerned about this issue and the 
threat to our children. I characterize it as a battle. It is a 
war and we need more resources. So, if we need the commission, 
that is something I am happy to sit down and talk with you 
about.
    Senator Hatch. Well, I think you ought to consider it.
    You mentioned the Adam Walsh Act just a minute ago, and 
also in your testimony. That is one of the most important goals 
we have enacted around here in a long time, and I commend you 
for your support of it and for the help that you gave the 
committee in the process.
    Now, Title 5 of the Act includes language I introduced 
strengthening the requirement that the producers of sexually 
explicit material keep records regarding the age and identity 
of performers. Now, the existing law, which covered one 
category of child porn, had not been enforced and the Adam 
Walsh Act extended it to cover a second category.
    Has the Department issued new regulations for implementing 
these recordkeeping requirements, and can you assure that you 
will vigorously enforce this bill, and also any regulations 
that are issued?
    Attorney General Gonzales. Well, we already are enforcing 
the provisions of 2257. We had a recent conviction with respect 
to ``Girls Gone Wild''. So we already are making some progress. 
You are right, the Adam Walsh Child Protection Act required 
certain amendments to the law.
    We are in the process now of getting those regulations 
approved. I am pushing as hard as we can to get it done. But, 
yes, sir, you have my commitment that we will vigorously 
enforce the law.
    Senator Hatch. Well, thank you. You have, in the past, 
expressed concern that investigators in child exploitation 
cases sometimes hit dead ends because Internet service 
providers have not kept data that would help determine the 
source of images posted on the Internet. How big a problem is 
this for law enforcement, and is there something Congress can 
do to help solve it?
    Attorney General Gonzales. Well, it is a problem. You are 
right. We have encountered investigations where the evidence is 
no longer available because there is no requirement to retain 
the data. Many ISPs do retain data for commercial purposes.
    Let me just say, most ISP companies are great partners with 
the law enforcement community, so I want to commend them for 
their efforts.
    However, those few cases where we need that information, 
the question is, how do we maintain that evidence? So for that 
reason I have had discussions with the ISP community, with 
victims' groups, with privacy groups about whether or not it 
makes sense to have some kind of legislation dealing with data 
retention, not data retained by the government, but data 
retained by ISPs that could be accessed through a court order 
by the Department of Justice from a court judge.
    I think that I would like to have a discussion with the 
Congress about that. I know we are all committed to doing 
everything we can to ensure the safety of our kids.
    Senator Hatch. Well, let us work on it.
    Now, General Gonzales, we debated this issue of 
Presidential signing statements before. I wonder sometimes if 
these debates have not provided more heat than light. Am I 
right that this is not something invested by President George 
W. Bush, but that many presidents have issued such statements?
    Attorney General Gonzales. They began with Thomas 
Jefferson, so there have been a series of presidents, including 
President Clinton, who made great use of signing statements, 
which represent only a dialog between the President of the 
United States, the American people, the Congress, but primarily 
the executive branch about the interpretations of certain 
provisions and a piece of legislation that may be 
constitutionally suspect.
    Senator Hatch. Well, am I also right that top legal 
officials in past administrations have repeatedly opined that 
these signing statements can be used for various perfectly 
legitimate reasons, and do these reasons include an explanation 
of how the administration, the executive branch, which is 
charged with enforcing or implementing the laws Congress 
passes, will interpret and enforce a particular statute? Is 
that not an accepted, legitimate use of Presidential signing 
statements?
    Attorney General Gonzales. That has been the uniform 
analysis of the executive branch throughout various 
administrations of both parties. I might also add that the 
Congressional Research Service did a review of signing 
statements and, likewise, concluded that they could not see any 
inherently unconstitutional or inappropriate use of signing 
statements by presidents.
    Senator Hatch. Well, I think it is very important. My time 
is up, but let me just make this one comment. I think it is 
very important to be crystal clear about issues like the 
signing statement we discussed earlier.
    As I understand it, the President was preserving other 
legal authority he already has. He was not asserting any new 
authority. Is that a fair statement?
    Attorney General Gonzales. That is correct. In fact, I 
would think that the Congress and the American people would 
want to know his thinking about legislation and his thinking 
about the implementation of legislation. I mean, again, this is 
a dialog between the President of the United States, the 
American people, the Congress, and, of course, the executive 
branch.
    Senator Hatch. Well, thank you, General. My time is up.
    Chairman Leahy. Under our rules of appearance, Senator Kohl 
of Wisconsin would go next. But Senator Feinstein of California 
is managing a bill on the floor. Senator Kohl, in his usual 
gracious manner, has yielded first to her.
    Senator Feinstein, you are recognized.
    Senator Feinstein. Thank you very much. I want to thank my 
friend and colleague, Senator Kohl. The bill goes up at 11, so 
I very much appreciate this.
    Good morning.
    Attorney General Gonzales. Good morning, Senator. Good to 
talk to you again.
    Senator Feinstein. Thank you. Mr. Gonzales, let me speak as 
a member of the Intelligence Committee for a minute. I want to 
commend you for the action--the corrective action--you have 
taken on the Terrorist Surveillance Program.
    I believe bringing it into conformance with the law is the 
right thing to do. In my briefings on the program, I believe 
you are doing that. I think there are a couple of things 
outstanding which we can discuss, but not in this forum. I just 
want to say, I think it is overdue, but thank you for taking 
that action.
    Attorney General Gonzales. Senator, I just say that we 
continue to believe that what has happened in the past, the 
President's actions were, of course, lawful. But I think this 
is a good step. I think involving all branches of government on 
such an important program is best for the country.
    Senator Feinstein. Thank you.
    Now, let me ask you one question. One part of the letter 
you sent to the Chair and Ranking Member said that the 
President will not be reauthorizing the Terrorist Surveillance 
Program following, I guess, the end of this 45-day period. What 
will happen to it?
    Attorney General Gonzales. Well, there will be no 
``Terrorist Surveillance Program''. All electronic 
surveillance, as defined under FISA, of the kind described in 
the letter, international communications outside the United 
States where we have reasonable grounds to believe that a party 
to the communication is a member or agent of Al Qaeda or an 
affiliate organization, that that will all be done under an 
order issued by a judge in the FISA court.
    Senator Feinstein. Thank you.
    You and I talked on Tuesday about what is happening with 
U.S. Attorneys. It spurred me to do a little research, and let 
me begin. Title 28, Section 541 states, ``Each U.S. Attorney 
shall be appointed for a term of 4 years. On the expiration of 
his term, a U.S. Attorney shall continue to perform the duties 
of his office until his successor is appointed and qualified.''
    Now, I understand that there is a pleasure aspect to it, 
but I also understand what practice has been in the past. We 
have 13 vacancies. Yesterday you sent up two nominees for the 
13 existing vacancies.
    Attorney General Gonzales. There have been 11 vacancies 
created since the law was changed, 11 vacancies in the U.S. 
Attorney's offices. The President has now nominated as to six 
of those. As to the remaining five, we are in discussion with 
home-State Senators. So let me publicly sort of preempt, 
perhaps, a question you are going to ask me.
    That is, I am fully committed, as the administration is 
fully committed, to ensure that with respect to every U.S. 
Attorney position in this country, we will have a 
Presidentially appointed, Senate-confirmed U.S. Attorney.
    I think a U.S. Attorney, who I view as the leader, law 
enforcement leader, my representative in the community, has 
greater imprimatur of authority if in fact that person has been 
confirmed by the Senate.
    Senator Feinstein. All right.
    Now, let me get at where I am going. How many U.S. 
Attorneys have been asked to resign in the past year?
    Attorney General Gonzales. Senator, you are asking me to 
get into a public discussion about personnel.
    Senator Feinstein. No. I am just asking you to give me a 
number, that is all.
    Attorney General Gonzales. I do not know the answer.
    Senator Feinstein. I am just asking you to give me a 
number.
    Attorney General Gonzales. I do not know the answer to that 
question. But we have been very forthcoming--
    Senator Feinstein. You did not know it on Tuesday when I 
spoke with you. You said you would find out and tell me.
    Attorney General Gonzales. I am not sure I said that.
    Senator Feinstein. Yes, you did, Mr. Attorney General.
    Attorney General Gonzales. Well, if that is what I said, 
that is what I will do. But we did provide to you a letter 
where we gave you a lot of information about--
    Senator Feinstein. I read the letter.
    Attorney General Gonzales. All right.
    Senator Feinstein. It does not answer the questions that I 
have. I know of at least six that have been asked to resign. I 
know that we amended the law in the Patriot Act and we amended 
it because if there were a national security problem the 
Attorney General would have the ability to move into the gap. 
We did not amend it to prevent the confirmation process from 
taking place.
    I am very concerned. I have had two of them ask to resign 
in my State from major jurisdictions with major cases ongoing, 
with substantially good records as prosecutors. I am very 
concerned because, technically, under the Patriot Act, you can 
appoint someone without confirmation for the remainder of the 
President's term. I do not believe you should do that. We are 
going to try to change the law back.
    Attorney General Gonzales. Senator, may I just say that I 
do not think there is any evidence that that is what I am 
trying to do? In fact, to the contrary. The evidence is quite 
clear that what we are trying to do is ensure that, for the 
people in each of these respective districts, we have the very 
best possible representative for the Department of Justice and 
that we are working to nominate people, and that we are working 
with home-State Senators to get U.S. Attorneys nominated. So 
the evidence is just quite contrary to what you are possibly 
suggesting. Let me just say--
    Senator Feinstein. Do you deny that you have asked, your 
office has asked, U.S. Attorneys to resign in the past year, 
yes or no?
    Attorney General Gonzales. Yes. No, I do not deny that. 
What I am saying is, that happens during every administration, 
during different periods for different reasons. So the fact 
that that has happened, quite frankly, some people should view 
that as a sign of good management.
    What we do, is we make an evaluation about the performance 
of individuals. I have a responsibility to the people in your 
district that we have the best possible people in these 
positions. That is the reason why changes sometimes have to be 
made, although there are a number of reasons why changes get 
made and why people leave on their own.
    I think I would never, every make a change in a U.S. 
Attorney position for political reasons or if it would in any 
way jeopardize an ongoing serious investigation. I just would 
not do it.
    Senator Feinstein. Well, let me just say one thing. I 
believe very strongly that these positions should come to this 
committee for confirmation.
    Attorney General Gonzales. They are, Senator.
    Senator Feinstein. I believe very strongly we should have 
the opportunity to answer questions about it.
    Attorney General Gonzales. I agree with you.
    Senator Feinstein. I have been asked by another Senator to 
ask this question, and I will. Was there any other reason for 
asking Bud Cummings of Arkansas to resign, other than the 
desire to put in Tim Griffin?
    Attorney General Gonzales. Senator, again, I am not going 
to get into a public discussion about the merits or not with 
respect to personnel decisions. I will say that I have had two 
conversations, one as recently as, I think, yesterday with the 
Senator from Arkansas about this issue. He and I are in a 
dialog.
    I am consulting with the home-State Senator so he 
understands what is going on and the reasons why, and working 
with him to try to get this thing resolved, to make sure for 
his benefit, for the benefit of the Department of Justice, that 
we have the best possible person manning that position.
    Senator Feinstein. All right. If I could move on quickly.
    In 2000, the last year that the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives issued a report with an analysis, it 
was revealed that 57 percent of all guns used in crimes in the 
United States had come from 1.2 percent of licensed gun 
dealers. In other words, the majority of crimes were not coming 
from guns from the black market, but from a few licensed 
dealers.
    Now, this information was really quite useful. But starting 
in 2004, the Congress added amendments on the CJS 
appropriations bill restricting BATFE's ability to share gun 
trade data with local jurisdictions.
    In the 109th Congress there was no CJS bill, so therefore 
the gun trace data effort died in the Senate. So, it is now 
possible to provide this gun trace data to bona fide law 
enforcement organizations on a local level.
    As you know, murder has gone up. As you know, there are 
real substantial problems. I think the murder rate in one city 
in my State is 33 percent. It is a real problem out there, what 
is happening.
    My question is this: do you support allowing State and 
local law enforcement to have access to BATFE gun trace data?
    Attorney General Gonzales. Senator, I need to go back and 
look at this because your question has confused me. It was my 
understanding that we already are sharing gun trace data, State 
and local, for law enforcement purposes.
    My understanding is that certain State and local officials 
wanted the information for non-law enforcement purposes. That 
has been the issue. I am told by professionals at ATF that that 
would jeopardize their law enforcement efforts. I am not sure 
why that is the case. I am happy to look into it and get back 
to you on that.
    Senator Feinstein. But you do support gun trace data going 
to governmental entities on the local level?
    Attorney General Gonzales. For law enforcement purposes.
    Senator Feinstein. For law enforcement purposes.
    Attorney General Gonzales. Yes. And I believe that that is 
ongoing, so that is why I am a little bit confused by your 
question.
    Senator Feinstein. All right. I think that is fair. I think 
we need to check it out. But I know places where it has not 
gone for law enforcement purposes, so I would be happy to talk 
with you about that further. My time is up. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. I am just wondering, when we take our break 
for lunch, would it be possible to get the numbers that Senator 
Feinstein has asked for?
    Attorney General Gonzales. The number? I think it is 
possible. I will certainly--
    Senator Feinstein. U.S. Attorneys asked to resign.
    Attorney General Gonzales. Senator, that is information 
that I would like to share with you. I do not want to have a 
public discussion about personnel decisions. It is not fair, 
quite frankly, to the people.
    Chairman Leahy. We are just curious as to the numbers. I do 
not care who they are.
    Attorney General Gonzales. Yes.
    Chairman Leahy. I want to know numbers. Thank you.
    Senator Feinstein. That is fine.
    Chairman Leahy. Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    Mr. Attorney General, first, let me say there have been 
several stories--there was one in the Wall Street Journal 
yesterday as a matter of fact--about U.S. Attorneys' Offices 
prosecuting people in connection with Internet gambling.
    I want to compliment you and the various offices that have 
engaged in those prosecutions because they have begun to deal 
seriously with a very difficult problem. Congress passed a law 
at the end of last year that requires Treasury to issue some 
regulations so that banks can more easily comply, and I hope 
that your office will work with Treasury so that those can be 
done quickly and effectively and that your office can continue 
to engage in these prosecutions.
    Attorney General Gonzales. It is my understanding, Senator, 
that we have already initiated discussions, or have been in 
discussions with Treasury, so that process is moving and 
hopefully it can be completed in an expeditious manner.
    Senator Kyl. Excellent.
    You have taken quite a bit of abuse, I guess I would say, 
at this hearing and in the media generally over a variety of 
efforts that your office has been engaged in relating to the 
war against terrorists, the TSP program, detainee, habeus 
corpus issues, various prosecutions.
    I suppose that is somewhat inevitable, and I suspect you do 
not need any reminder that if there were another terrorist 
attack on this Nation, probably that criticism would quickly 
evaporate and instead you would be up here trying to answer why 
you did not connect all the dots and why you were not more 
vigorous in your effort to protect the American people, and so 
on.
    I suppose it is the nature of a body like the Senate always 
to engage in that kind of second guessing, but I do want to 
encourage you, notwithstanding this criticism which I know is 
heartfelt and genuine in terms of the people who are making the 
criticism, but I do strongly encourage you to continue to 
perform your functions under the law as best you understand 
them for the benefit of the American people, because this war 
against these international terrorists is deadly serious. Much 
of our protection will come from the efforts of the people that 
work in the Department of Justice and the other agencies of the 
U.S. Government.
    Attorney General Gonzales. You have my commitment to that, 
Senator. Let me say one thing in response to some stories that 
I read. The President of the United States would not have 
authorized the action that was disclosed yesterday if there was 
any doubt in his mind that it would make the United States any 
less safe.
    He has been advised by the Director of National 
Intelligence, by the Director of NSA, that this is something 
that we can do and still maintain the same level of safety and 
security for the United States of America. I mean, that is his 
number-one priority and that is what we kept in mind as we 
tried to find a way to bring this program under FISA.
    Senator Kyl. Thank you, Mr. Attorney General. At any time 
that you believe that you do not have the proper authority to 
engage in what you believe are necessary activities to protect 
the American people, I would expect you to come to this 
committee and let us know.
    I know there are some outstanding things you would like to 
have us do that we have not done that would assist in those 
efforts, and hopefully we will be able to advance some of those 
in the future.
    You stated in your testimony that various proposals to 
repeal the enemy combat litigation provisions of the MCA and 
the DTA are ill-advised and defy common sense. Again, with 
respect to those who have made these comments, I have to agree 
that this would be a very, very bad idea.
    The effect would be to not only allow prisoners held at 
Guantanamo to literally sue the soldiers that are guarding 
them, their captors, but also to contest all manner of 
conditions of their detention there, contrary to all precedent 
not only in this country, but in other countries as well.
    Then such as Khalid Shiek Mohammad and Ramsey ben Al- 
Shied, both of whom were involved in the September 11th 
attacks. These proposals would also, as I understand it, allow 
any enemy detainees held inside the United States to sue to 
challenge detention and conditions of confinement. If I am 
incorrect in this in terms of your understanding, please let me 
know, but I think this is accurate.
    I think back on World War II about the roughly 425,000 
German prisoners of war that were held in the United States. 
What would the Justice Department have done, or the Defense 
Department at that time, if these POWs had had the habeus 
corpus rights that are being sought by the proponents of this 
legislative change?
    By the way, did we allow these prisoners to bring habeus 
actions, to sue?
    Attorney General Gonzales. Sir, I am not aware of any 
specific cases. Someone may have thought about it, but 
obviously we did not have a situation. We had 400,000 claims, 
people claiming illegal detention or people claiming 
mistreatment. That just did not happen. People would have 
thought it rather odd, quite frankly.
    These were lawful combatants. These were people that fought 
according to the rules. So the notion that we would do that for 
people that were unlawful combatants, who do not follow the 
rules, I think people would say that is somewhat odd, also.
    I think people lose sight of the fact that we, as a 
government, provide more process to unlawful combatants than 
prisoners of war get under Geneva, so you are actually 
penalized by finding according to the rules.
    Under Geneva, you are captured on the battlefield, you have 
a battlefield determination: you are a prisoner of war. That is 
it. There is no more determination. Here, if you are an 
unlawful combatant, you get multiple evaluations. If you are 
sent to Guantanamo you get a CSRT you get--
    Senator Kyl. What is that?
    Attorney General Gonzales. That is a Combatant Status 
Review Tribunal, where there is a proceeding that provides a 
meaningful opportunity for the detainee to present his case 
that he is not lawfully detained.
    Senator Kyl. Represented by American lawyers?
    Attorney General Gonzales. He is not represented by a 
lawyer, per se. There is a lawyer involved that is sort of his 
legal representative or helper. I would not call him his 
counsel, but he is represented by counsel on appeal.
    He has a direct right of repeal to the DC Circuit, and 
there he is provided counsel. He also has a right, if the 
Supreme Court wants to hear his challenge, to take it up to the 
Supreme Court.
    Senator Kyl. Now, that right of direct appeal to the Court 
of Appeals, we wrote that in the statute. That was 
unprecedented. Is that correct?
    Attorney General Gonzales. Yes. The amount of process we 
provide is unprecedented not only for unlawful combatants, it 
is, quite frankly, unprecedented for prisoners of war, lawful 
combatants. So we have gone well, well past what is 
precedented.
    I think the United States should, quite frankly, be proud 
of the amount of process that it provides to unlawful 
combatants who kill innocents indiscriminately, who do not 
follow the rules, and yet nonetheless the people of the United 
States have decided we are going to provide these individuals 
CSRTs, we are going to provide them access to a court, when 
that has never, ever in the history of this country been done 
before.
    Senator Kyl. Mr. Chairman, do I understand my time has 
expired?
    Chairman Leahy. The Senator's time has expired.
    Senator Kyl. Thank you.
    Chairman Leahy. But we will be having another round.
    Senator Kyl. No, no. That is fine. I appreciate that. Thank 
you.
    Chairman Leahy. Senator Kohl, you were very patient and 
yielded your time earlier. Please, go ahead.
    Senator Kohl. Mr. Attorney General, I would like to discuss 
the rise in violent crime in our country with you. As you may 
know, I discussed this topic with the FBI Director in December, 
and since then violent crime statistics for 2006 have been made 
available, which unfortunately show that 2005 was not an 
aberration, but rather part of a very unfortunate trend.
    Our entire country has been hit hard by a crime wave, and 
my own city of Milwaukee is no exception. There are no doubt a 
variety of factors that have contributed to this rise.
    The FBI, for example, used 2,190 fewer agents in 2004 on 
traditional crime matters than it did in 2000 due to the 
essential focus on terrorism. This decreased Federal 
involvement, as you know, places a greater burden on our State 
and local law enforcement communities.
    For exmaple, the Milwaukee police received $1 million from 
the COPS program in 2002, but last year it received no funding 
at all.
    Mr. Attorney General, we are not giving our States and our 
localities the help that they so desperately need. Now, we are 
all on the same team, I know, and we all have the very same 
goal in mind.
    I would like to make a particular request to you on behalf 
of Milwaukee. Can I ask you to pledge yourself to taking some 
time to study the situation in Milwaukee and report back to me 
on what can be done by way of some increased level of Federal 
funding on behalf of law enforcement to help to reverse this 
trend?
    Attorney General Gonzales. Senator, you do have my 
commitment. I think we should all be proud of the historically 
low crime rates that we have enjoyed recently. There have been 
some disturbing trends with respect to certain kinds of violent 
crime, with respect to certain places in the country.
    You talked about it in terms of a ``crime wave''. What we 
are seeing are increases, disturbing trends, with respect to 
certain areas of the country and certain-size communities.
    Nonetheless, I am concerned about it and for that reason we 
initiated this Initiative for Safer Communities, where I sent 
out teams to 18 cities. Milwaukee was one of them.
    We wanted to study Milwaukee carefully and see what was 
working, what was not working, and we are going to take that 
information and hopefully come up with some good ideas that we 
can share with you and the American people about how we address 
this issue.
    As you also know, Milwaukee was one of the cities that I 
identified last year to receive $2.5 million for a special gang 
initiative, where we would focus on prevention and education 
efforts, law enforcement efforts, and prisoner reentry efforts 
in your community. We want to see how these initiatives around 
the country--Milwaukee being one of them--work.
    If people come up with some good ideas, then perhaps we 
will come to the Congress and try to get some more money and 
provide similar grants to other communities around the country. 
We, of course, have programs like Project Safe Neighborhood, 
where we make funds available to State and local communities. I 
think we are doing a lot, but I am worried about it, too.
    Obviously, State and local officials are our best partners. 
We want to feel like they are appreciated. I look forward to 
working with you, and you have my commitment, in particular, 
with respect to Milwaukee. We will look at it and see what else 
we can do there.
    Senator Kohl. That is very kind of you and I very much 
appreciate that. Thank you.
    Chairman Leahy. Thank you very much. Yes. Did you want to 
say something?
    Attorney General Gonzales. Yes. I received some bad 
information, and I apologize for this. Milwaukee was not a city 
that received one of these. I confused it with Minneapolis, and 
my apologies. But you still have my commitment that we are 
going to study it.
    Senator Kohl. If you will look at Milwaukee, that would be 
very good of you. Thank you.
    Chairman Leahy. Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    Welcome Attorney General Gonzales. I wanted to talk a 
minute about the questions that Senator Feinstein raised about 
the process by which interim U.S. Attorneys are appointed so 
that we can understand this better and perhaps put it in 
context.
    My understanding is that prior to the reauthorization of 
the Patriot Act, the Attorney General had the authority to 
appoint an interim U.S. Attorney for a period up to 120 days. 
After 120 days the courts, before which the U.S. Attorney would 
appear, would make a longer term interim appointment until such 
time as the President nominated, and the Senate confirmed, a 
permanent U.S. Attorney. Is that correct?
    Attorney General Gonzales. That is correct. As you might 
imagine, Senator, that creates a problem, a court where he has 
been appointed by the judge, and so that created a problem.
    We had, also, a problem of judges, recognizing the oddity 
of the situation, who kind of refused to act, so we have to 
take action, or give them a name or something, but it created 
some discomfort among some judges. Other judges were quite 
willing to make an appointment.
    Regrettably, though, you have the potential for a situation 
where someone is appointed who has never worked at the 
Department of Justice, does not have the necessary background 
check, cannot get the necessary clearances, and so that is a 
serious problem, particularly during a time of war.
    So for these reasons, quite frankly, I think the change 
that was made in the reauthorization of the Patriot Act makes 
sense. I have said to the committee today under oath that we 
are fully committed to try to find Presidentially appointed, 
Senate confirmed U.S. Attorneys for every position, but they 
are too important to let go unfilled for any period of time, 
quite frankly.
    It is very, very important for me, even on an interim 
basis, the qualifications, the judgment of the individuals 
serving in that position.
    Senator Cornyn. Mr. Attorney General, this was not just 
sort of an odd arrangement before the reauthorization of the 
Patriot Act, it raised very serious concerns with regard to the 
separation of powers doctrine under our Constitution, did it 
not?
    Attorney General Gonzales. It does in my mind. Again, it 
would be like a Federal judge telling you, I am putting this 
person on your staff.
    Senator Cornyn. That is because the U.S. Attorney is the 
chief law enforcement officer for the district concerned. So it 
would seem problematic for the top judicial branch official to 
name his executive branch counterpart. The process that Senator 
Feinstein asked questions about that is now the norm after the 
reauthorization of the Patriot Act, that is something Congress 
itself embraced and passed by way of legislation, and the 
President has signed into law. Is that correct?
    Attorney General Gonzales. I believe it reflects the policy 
decision, the will of the Congress, yes.
    Senator Cornyn. And I find it a little unusual that some of 
our colleagues are critical of the Justice Department replacing 
Bush appointees with interim appointments until such time as we 
can get a permanent U.S. Attorney nominated by the President 
and confirmed by the committee.
    I just want to raise three quick examples of delays, 
unfortunately not caused by the administration, but by this 
committee itself in terms of confirming high-level nominees at 
the Justice Department. For example, Alice Fisher, whose 
nomination waited a period of 17 months before this committee 
actually confirmed her nomination.
    Then there is Kenneth Wainstein, who was appointed to a 
brand-new position, as you know, the head of the 
Counterterrorism Division at the Department of Justice. This 
was a recommendation by the WMD Commission and others. This 
nomination was obstructed for 6 months, until September 6, 
2006, which allowed this new, important position to remain 
vacant for a half a year.
    Then there is the inexplicable--to me, anyway--case of 
Steve Bradbury, who serves in a very important position as head 
of the Office of Legal Counsel, Acting, who is yet to be 
confirmed even though he was nominated June 23, 2005.
    As you know, Mr. Bradbury was integral to our efforts to 
deal with this issue of, how do we try terrorists like Khalid 
Sheik Mohammad consistent with the Supreme Court's decisions 
and our Constitution?
    So I appreciate your willingness to make sure that the 
administration nominates U.S. Attorneys on a timely basis. 
Hopefully this committee and the Congress, the Senate, will 
meet the administration more than half way and schedule up-or-
down votes on the nominees that the President sends forward.
    Let me take off also on this issue of violent crime. You 
mention the Project Safe Neighborhoods, and I want to ask you 
just a couple of words about that. You cover this at some 
length in your prepared statement.
    Of course, I have a special interest, as you know, because 
of the origins of Project Exile out of Richmond, Virginia, 
originally a project of the U.S. Attorney there which we 
embraced in Texas when I was Attorney General, with then-
Governor Bush.
    We launched Texas Exile, which at the time was an 
innovative program to combine the resources of Federal, State, 
and local law enforcement agencies to focus on gun crime, of 
course, to make sure that our laws were strictly enforced.
    But I have to tell you that I am very pleased with what I 
see are the results of Project Safe Neighborhoods, under which 
this effort has now been taken nationally, where you report a 
66 percent increase in the number of cases filed and a 55 
percent increase in defendants prosecuted since fiscal year 
2000.
    Could you just touch on, for a moment, the importance of 
our prosecution of individuals who are violating our gun laws 
in this country in terms of stemming the tide of violent crime? 
Also, I have seen a lot of public service announcements 
pointing out the harm inflicted on the families of those 
individuals who violate our gun crime laws and what that does 
in terms of deterring those sorts of crimes.
    Attorney General Gonzales. I appreciate the question, 
Senator. I think we have made good progress in addressing 
violent gun crimes in this country because of the programs like 
Project Safe Neighborhoods where we are working in partnership 
with State and local communities in terms of providing 
training, sharing information, making joint decisions about, 
where is it appropriate and the best place to prosecute 
someone?
    In certain cases it makes more sense to prosecute them in 
Federal court because, quite frankly, we have tougher gun laws 
and we can get tougher sentences. So, I think it has made a big 
difference in our ability to reduce the level of violent gun 
crime.
    I am often asked, do we need additional gun laws? Obviously 
that is something we would always be willing to look at, but I 
think the evidence shows that if we continue our diligence in 
enforcing existing laws, we can make a big difference in 
reducing gun crime in this country.
    Chairman Leahy. Thank you,
    Senator Cornyn.
    Senator Feingold is next. I should note that Senator 
Feingold is going to chair the Constitution Subcommittee, one 
of the more important subcommittees of this committee.
    Senator Feingold?
    Senator Feingold. Thank you so much, Mr. Chairman. Thank 
you, Mr. Attorney General.
    First, let me associate myself with the remarks of my 
senior Senator, Senator Kohl, in raising the concerns about 
crime, in particular in the city of Milwaukee, and I want to 
thank him for his leadership on this issue. Thank you for your 
response and your willingness to take a real look at it.
    In light of what he said about the loss of $2 million for 
the COPS programs in Milwaukee, and in light of what you said 
about Minneapolis, I hope Milwaukee is next in line for that 
kind of money.
    Mr. Attorney General, it was a welcome change to learn that 
the President, with regard to the NSA program, has decided to 
return to the law. For more than 5 years, this administration 
conducted an illegal wire tapping program, including more than 
a year during which you and others publicly asserted that this 
violation of the law was absolutely essential to protecting the 
public from terrorists. As Senator Kennedy already mentioned, 
you actually questioned the patriotism of those who criticized 
you.
    But the President has been forced to return to the law. 
Based on your announcement yesterday, this illegal program has 
been terminated. Now, that is a stunning--and I would say long 
overdue--change of direction.
    In light of these developments, I also hope that the type 
of inflammatory and inaccurate rhetoric we heard from you and 
the President about this program is over. I was particularly 
concerned about a speech you gave in November which I raised 
with the FBI Director last month, so let me start by asking you 
the same question I asked the FBI Director.
    Do you know of anyone in this country, Democrat or 
Republican, in government or on the outside, who has argued 
that the U.S. Government should not wiretap suspected 
terrorists?
    Attorney General Gonzales. Sure. I mean, if you look on the 
blogs today there are all kinds of people who have very strong 
views about the ability of the government to surveille anyone, 
for any reason.
    Senator Feingold. Do you know of anybody in government that 
has said that?
    Attorney General Gonzales. No. But that is not what I said. 
I have my remarks in front of me. I began by talking about how 
limited this program is, and what care we took in implementing 
this program. Then I did say, some people would argue nothing 
could justify the government being able to intercept 
conversations like the ones the program targets.
    I also said, instead of seeing the government protecting 
the country, they see it as on the verge of stifling freedom. I 
then said that this view is short-sighted if the definition of 
freedom, one utterly divorced from civic responsibility, is 
superficial and is itself a serious threat to the liberty and 
security of the American people.
    Senator Feingold. Well, that is interesting because we got 
a very different answer from the Director of the FBI, who had 
no trouble saying he did not know of anyone that took that 
position.
    Now, this actually was not an isolated remark. During the 
campaign last year the President repeatedly said that the 
Democrats opposed wiretapping terrorists. Let me read you a 
quote from a campaign rally in Indiana: ``When it comes to 
listening in on the terrorists, what is the Democrats' answer? 
Just say no.''
    In your speech on November 20, you said that critics of the 
program have a definition of freedom that is ``utterly divorced 
from civic responsibility,'' and ``is itself a grave threat to 
the liberty and security of the American people.''
    Mr. Attorney General, as I said when Director Mueller was 
here, to me these comments are blatantly false. I think they do 
a disservice to the Office of the Attorney General. Falsely 
accusing the majority of this committee of opposing the 
wiretapping of terrorists is not going to be helpful to you, to 
the Justice Department, to Congress, or to the American people.
    Attorney General Gonzales. Senator, I did not have you or 
this committee in mind when I made those comments. I went on to 
talk about Justice Jackson's remarks in the case of Terminello 
v. City of Chicago, where he said, ``The choice is not between 
order and liberty, it is between liberty with order and anarchy 
without either. There is danger that if the court is not 
temperate, is not chronologic with a little practical wisdom, 
it will convert the constitutional Bill of Rights into a 
suicide pact.'' But again, I did not have in mind either you or 
this committee.
    Senator Feingold. Well, that is nice that it was not in 
your mind, and maybe it was not in the President's mind. But no 
reasonable person could interpret, during a political campaign 
that has to do with whether Senators, Democrats or Republicans, 
are elected or not elected has anything other than to do with 
accusing those who are on this committee, and others, of having 
that mind-set.
    So I am pleased to hear you did not have that in mind. Let 
me just say that the notion that somehow any of us or any one 
in the Democratic party does not think we should wiretap 
terrorists, is simply wrong.
    Let me turn to the FISA statement itself. Why did you 
decide to seek FISA court authorization in the spring of 2005 
and not earlier? Did this relate in any way to the 
administration learning that the New York Times was looking 
into the program?
    Attorney General Gonzales. No, not at all.
    Senator Feingold. Why did you not seek the authorization 
earlier?
    Attorney General Gonzales. Senator, we certainly would not 
have been prepared or be in a position to make any kind of 
application. I must tell you, and I want to go back and think 
about this in terms of, I am fairly certain--but again, I am 
under oath so I want to be careful how I say this--that we have 
had from time to time, when I was in the White House, 
discussions and thoughts about, is there any way to get this 
under FISA, not because there was any concern that what the 
President was doing was unlawful. Quite the contrary. We 
believed, and believe today, that what the President is doing 
is lawful.
    But because of the discourse, the concerns raised, 
questions asked here in this committee, we felt an obligation 
to see, was there a way to get this under FISA without 
jeopardizing the national security of this country?
    Certainly when I came over to the Department of Justice I 
talked our folks, all right, let us go back and look at this 
again. Let us start over if we are going to have to. Is there a 
way we can do this? Again, I must take issue with Senator 
Specter. This is a very complicated application. In many ways 
it is innovative in terms of the orders granted by the judge. 
It is not the kind of thing you just pull off the shelf. We 
worked on it a long time.
    Senator Feingold. All right. Then once you submitted it, 
why did it take 2 years for the FISA court to come to its 
decision?
    Attorney General Gonzales. It did not take 2 years, 
Senator, for the FISA court to come to its decision. It took us 
a period of time to develop what we thought would be an 
acceptable legal argument that would be acceptable by the FISA 
court, and it took us a period of time to take that argument 
and fit it into the operational capabilities and possibilities 
of NSA.
    Senator Feingold. How long did it actually take the court 
once it had your proposal?
    Attorney General Gonzales. Senator, again, I do not want to 
get into a public discussion about the deliberations and work 
of the court. I will say that it took longer than a normal FISA 
because this was different than a normal FISA application.
    So obviously the judge, looking at this, he was very, very 
careful in his decision that the application satisfied all the 
requirements of FISA, so it took a longer period of time 
because it was a different type of application.
    Senator Feingold. Well, Mr. Chairman, I see my time is up, 
but let me just say in conclusion that, while there will be 
matters to pursue both here and on the Intelligence Committee 
about the decision, it is an important moment in the history of 
our Constitution that this program has now been terminated and 
is now within the FISA statute. I do hope that we recognize the 
importance of that in terms of our constitutional history. 
Thank you, Mr. Attorney General.
    Chairman Leahy. Thank you.
    Attorney General Gonzales. Can I make one final point?
    Chairman Leahy. Of course.
    Attorney General Gonzales. On your characterization that 
the program was terminated, the country is no less safe today. 
I mean, the fact that there will be electronic surveillance of 
the enemy during a time of war will continue. The country will 
not be any less safe. It will be conducted under the FISA 
court.
    I do not want the American people to think that somehow the 
President has backed off in any way from his commitment to 
doing what he can do under the law to protect America.
    Senator Feingold. Which is exactly why we did not need the 
TSP outside of FISA in the first place.
    Attorney General Gonzales. Senator, you would be a much 
better lawyer than any of the lawyers at the Department of 
Justice by simply looking at the statute, knowing what we do, 
that this is something that could easily be approved by the 
FISA court. It took us a period of time to work on it, to 
develop the legal strategy, the legal analysis, and it took 
some time for a judge to get comfortable. It was not easy.
    Senator Feingold. Mr. General, I recognize that. But the 
idea that you did it before you had the court's approval is the 
startling part.
    Thank you, Mr. Chairman.
    Chairman Leahy. We will take no more than a five- minute 
break and then we will come back. Senator Grassley is going to 
be next.
    [Whereupon, at 11:30 a.m. the hearing was recessed and 
resumed back on the record at 11:35 a.m.]
    Chairman Leahy. As we reconvene, I will go over the order, 
because Senator Grassley was one of the first ones here, but he 
has also had, I would note, a very busy time in Finance this 
morning.
    Senator Schumer will go next, and he has also been trying 
to cover about four other things today. And then Senator 
Sessions, each one of you have been doing the same thing. But 
let us go through those, and, Senator Grassley, the floor is 
yours.
    Senator Grassley. General Gonzales, I gave you a copy of my 
questions because I wanted to go through all the justification 
for the questions before you answered them, so I hope you have 
this sheet here.
    The first one deals with the anthrax investigation. I wrote 
you in October to ask a series of questions regarding the FBI's 
investigation of the anthrax attacks. It has been over 5 years 
without any sign of real progress. It has been over 3 years 
since the FBI briefed any Congressman.
    The FBI recently announced a policy of refusing to brief 
Congress about the case even though it provided briefings 
earlier in the investigation. And while I was at Finance, I 
know that you have offered to brief Chairman Leahy. And I say 
this only after I made a great objection to the FBI on the no-
briefing policy.
    In December, 33 Senators and Congressmen wrote to you to 
ask that you direct the FBI to provide a comprehensive 
briefing. That letter included signatures from several members 
of this Committee, the Intelligence Committee, Homeland 
Security, and not just the Chairs and Ranking Members. We have 
not received a response to that letter.
    The Department's policy is unacceptable. It is kind of like 
thumbing the nose at congressional oversight, especially a 
topic that is as important as this one, and especially since 
Congress was the target of these attacks. Steven Hatfill, who 
was publicly labeled a person of interest in the investigation, 
has alleged in his lawsuit that the FBI and the Department of 
Justice personnel leaked sensitive case information about him 
to make the public believe that he was about to be arrested 
when, in fact, he was not.
    It has been reported that two FBI agents were the sources 
of leaks about Hatfill in the New York Times, but when I asked 
Director Mueller last month whether anyone had been 
disciplined, he said no.
    I believe that independent oversight is necessary to get to 
the bottom of these issues. You have said that you respect 
congressional oversight, but I do not see that your actions fit 
the words. So that is my first question. Now I want to go on to 
DOJ oversight before you answer.
    Second, I understand that the Justice Department is 
conducting a series of training events for other agencies on 
how to respond to congressional oversight inquiries and 
hearings. I recently wrote to you asking for information about 
these training events, including a list of the agencies 
participating and copies of materials.
    I asked to receive that information before this hearing so 
we could discuss it in more detail, but I did not get a reply. 
In light of the unnecessary hurdles and roadblocks that the 
Department has put in my way on oversight issues, my concern is 
that these training events may become lessons to stiff-arm 
Congress. So two questions on that.
    And then my last issue is the False Claims Act. Third, as 
author of the 1986 amendments to the False Claims Act, I worked 
hard to ensure that we would have an effective tool against 
fraud and waste. Your Department reported that $18 billion has 
been recovered under my whistleblower amendments to the False 
Claims Act in the 20 years since they were passed.
    In fact, $3.1 billion was recovered in the last fiscal year 
2007, nearly $1 billion more than any other previous years' 
recovery. Can you tell us what the Department has been doing to 
increase recoveries?
    Also, Congress passed the Deficit Reduction Act. Section 
6032 of that provided financial incentives to the States to 
pass their own False Claims Act. It requires the Inspector 
General of the Department of Health and Human Services, in 
consultation with you, the Attorney General, to determine if a 
State law complies.
    Back in March and April, I wrote two letters to you and 
Inspector General Levinson outlining the requirements of 
Section 6032 and highlighting necessary requirements for a 
State False Claims Act. Inspector General Levinson replied back 
in May that his office was working on guidance to States in 
consultation with your Department.
    The formal guidance to States was issued this past August, 
and the OIG recently released its initial determination to 
various States that were submitted in accordance with Section 
6032.
    Of the 10 States that submitted the State False Claims Act, 
only three were deemed compliant. The fact that only three of 
ten passed muster tells me that there were some State 
legislatures looking to pass these laws in the next few months.
    My question is then, since you did not provide a written 
response, what is the Department doing, in consultation with 
the OIG of HHS to review and comment on legislation submitted 
to the States?
    So would you answer that series of questions on those three 
different points as I submitted them to you there in writing?
    Attorney General Gonzales. I will do my best, Senator.
    With respect to anthrax, you are correct, we have offered 
up a briefing to the Chairman. There is, of course--here is my 
view about oversight. I recognize that there is an 
institutional interest in the legislative branch receiving 
information.
    Quite frankly, when you do that, it helps us do our job 
better. I recognize that. There is also an international 
interest in protecting certain kinds of information within the 
executive branch. I think we each have an obligation to 
recognize those two competing institutional interests.
    As I read the case law, I think we each have an obligation 
to try to accommodate those competing interests, and so it is 
not enough for me to simply say no to a request from Congress. 
I do not think it is legitimate for Congress to simply say, 
``This is what I want and I am going to get it.'' I think we 
have an obligation to try to reach an accommodation in most 
kinds of cases.
    Now, open investigations presents a unique set of 
challenges for us. The truth of the matter is my experience has 
been that when Congress inquires into open investigations, 
people quit providing candid advice. Sometimes people make 
decisions that they would not normally make for fear that if 
Congress is investigating what they are currently doing, they 
do not want to be criticized for not being tough enough.
    I also, of course, worry about the privacy interests of the 
individual being investigated. Oftentimes we do investigations. 
That does not mean that someone has done anything criminal. We 
are in the process of gathering up information to see whether 
or not something has happened that is criminal.
    So we are very, very careful and concerned about 
inadvertent leaks. I am not suggesting that there are 
intentional leaks, but sometimes there are inadvertent 
disclosures that hurt the privacy interests of individuals that 
ultimately turn out to be innocent. It is for that reason, that 
as a long matter of practice, we do try to resist inquiries 
into open investigations.
    The situation with the anthrax case is different. It is 
different in terms of--I think it is--I would characterize it 
as a variance based upon extraordinary circumstances. In this 
case, it was letter targeted to Senator Leahy.
    He has received briefings in the past, and for that reason, 
the Director of the FBI has offered and we are prepared to 
provide additional information that we can to the Chairman. So 
that is my response to the anthrax investigation.
    With respect to DOJ oversight training, quite frankly, it 
is a responsibility and role by statute and by regulation for 
the Department to provide legal advice to the other executive 
branch agencies. We want to provide guidance to ensure actually 
greater cooperation and consultation with the legislative 
branch in this process.
    I am told we never got your letter with respect to DOJ 
oversight training. I do not know if that is a problem with 
your staff or a problem with my staff, but I want to get to the 
bottom of it.
    With respect to does the Department have plans to invite 
any congressional oversight experts to provide a legislative 
branch perspective at these training sessions, quite frankly, 
that is up to each agency. But we are their counsel as the 
Department, but they are obviously free to seek input from 
congressional experts.
    Again, this is not a coordinated effort to try to coach 
them about how to avoid answering questions. It is to make sure 
that we are providing the appropriate level of cooperation, 
because we do have an obligation, again, based upon the case 
law as I read it and based upon tradition and history, to try 
to accommodate competing legitimate interests.
    False Claims Act questions. Can you tell us what the 
Department has been doing to increase False Claims Act 
recoveries? I think our record in this area is very, very good 
if you look at the number of dollars that have been recovered.
    I know there have been some complaints, Senator, that 
perhaps we are taking too long in making the decisions to get 
involved in some of these kinds of cases. But we take them 
very, very seriously, and we want to be very, very careful in 
the decisions that we make to be involved. But we are fully 
committed to this, and I think that is evidenced by the record 
level of recoveries with respect to these kinds of claims.
    Then your question, Since you did not provide a written 
response either to my March 2006 letter or April 2006 letter--
which I am told, again, we never got, and that is something we 
need to correct--what is DOJ doing, in consultation with HHS 
OIG, to review and comment on FCA legislation? I am told the 
letter has gone up to you, and you should have that. Quite 
frankly, sir, I do not know what the letter says. I have not 
reviewed it. But I am told that there has been some kind of 
response to you.
    Senator Grassley. Mr. Chairman, I would like to be involved 
in that briefing that you have on anthrax, if I could be.
    Chairman Leahy. Senator, I found the last briefing to be so 
inadequate and so uninformative, I have not sought another one 
because I have learned more reading the papers, especially when 
I read in the paper that the Department of Justice brought a 
number of victims of the anthrax attacks or their families to 
Washington to brief them. I do not want to use the mantle of 
``victim,'' but insofar as I was a target, I guess targets were 
not invited, victims were.
    Be that as it may, if we have a briefing, as I said 
earlier, I would certainly want at the very least the Ranking 
Member involved. It should not be just a member of one party. 
But we can work that out.
    Attorney General Gonzales. Mr. Chairman, I have encouraged 
the Director to try to provide as much information as we can. I 
would also conclude that I want to thank Senator Grassley for 
his amendment to increase DOJ's HIPAA funding by providing an 
inflationary adjustment to help investigate health care fraud. 
Thank you, Senator.
    Chairman Leahy. Thank you.
    Senator Schumer is next. Go ahead.
    Senator Schumer. Thank you, Mr. Chairman, and thank you, 
Mr. Attorney General.
    Now, as has been mentioned, we learned yesterday that after 
more than 5 years of warrantless wiretapping, you finally 
obtained an order from the FISA Court. It is a secret Court, to 
be sure, but it is a Court nonetheless. And while many are 
rightly relieved that you finally decided to seek the 
involvement of a court, there are still far too many unanswered 
questions to say that this issue has been resolved. This is 
better than Cheney, but we still do not know what ``this'' is.
    So, first, let me ask you this: Do you now believe that 
FISA Court approval is legally required for such wiretapping? 
Or do you continue to believe that Court approval is merely 
voluntary? You indicated the latter before. If that is the 
case, is it not true that you could turn this on and off at 
will? If in a month the FISA Court did not do what you wanted, 
you could go right back to the old system?
    Attorney General Gonzales. Senator, we commenced down this 
road 5 years ago because of a belief that we could not do what 
we felt was necessary to protect this country under FISA. That 
is why the President relied upon his inherent authority under 
the Constitution.
    My own judgment is that the President has shown maturity 
and wisdom here in this particular decision. He recognizes that 
there is a reservoir of inherent power that belongs to every 
President. You use it only when you have to. In this case you 
do not have to.
    Senator Schumer. So you do not think you are legally 
required to go to the FISA Court? That is correct, correct?
    Attorney General Gonzales. Senator--
    Senator Schumer. Please answer yes or no.
    Attorney General Gonzales. We still--we believe--my belief 
is that the actions taken by the administration, by this 
President, were lawful in the past.
    Senator Schumer. OK.
    Attorney General Gonzales. But moving forward, our 
electronic surveillance collection is going to be conducted 
under FISA.
    Senator Schumer. All I would submit here, sir, is that at 
will, just as at will you instituted this program, since you do 
not believe you are legally bound, you could turn it off, 
particularly if you got a decision that you did not want. That 
is one question I have.
    Now, let me ask some questions about the nature of the 
Court approval. Yesterday, Assistant Attorney General Bradbury 
refused to answer whether this new program constitutes a 
program warrant. We need to get some information on this. Now, 
they did use the word plural, so I assume it is more than one 
warrant. But are we--
    Attorney General Gonzales. Senator--
    Senator Schumer. In other words, are the new FISA orders 
directed at individuals, at entire groups of individuals, or 
even broader brush than that?
    Attorney General Gonzales. Senator, I am not at liberty to 
talk about those kinds of specifics because it would require me 
to get into operational details that I think I should not do in 
open session.
    Senator Schumer. I will not ask you to get into operational 
details. I would like to know if there is an intention to do 
this on an individual basis or at least on a case-by-case basis 
where 5, 6, 10, 20, 100 individuals are involved, or is it 
broader brush than that?
    Because if it is a very broad brush approval--and, again, 
because it is secret, we have no way of knowing--it does not do 
much good. Your answering that question in no way compromises 
any security interest. None. All it is, is a general outline of 
what you have done. It is no more than what Bradbury talked 
about yesterday. So could you give us some idea of the breadth 
of these warrants?
    Attorney General Gonzales. What I can tell you, Senator, is 
that they meet the legal requirements under FISA.
    Senator Schumer. OK.
    Attorney General Gonzales. I will also tell you, Senator, 
that the entirety of the Intel Committees, both in the House 
and Senate, have received full briefings about these orders and 
our application. We have provided a full briefing to Senator 
Specter.
    We have offered a full briefing to the Chairman. And we are 
prepared to answer the questions that we need to ensure that 
they are comfortable about the application and the order.
    Senator Schumer. But at least according to the paper, 
Senator Rockefeller did not get answers to these types of 
questions at his briefing. He said there are still too many 
unanswered questions about the kind--he did not say 
specifically about the kind I am asking.
    And in your letter, here is what you say: ``I am writing to 
inform you that on January 10th,'' a judge of the FISA Court 
issued orders authorizing the Government to target ``for 
collection international communications into or out of the 
United States where there is probable cause to believe that one 
of the communicants is a member or an agent of al Qaeda or an 
associated terrorist organization.''
    That clearly sounds to me like a program warrant, not an 
individual warrant. Is that not a program warrant?
    Attorney General Gonzales. Senator, I do not know what you 
are reading from or what is said in the paper. And I must tell 
you, I am surprised if, in fact, Senator Rockefeller said--
    Senator Schumer. This is in your letter. You signed this 
letter.
    Attorney General Gonzales. If, in fact, Senator Rockefeller 
said that he does not understand the program. I view our 
briefings as the initial starting point of our discussions. If 
people do not understand, all they have to do is ask questions. 
It is important from our perspective for the Congress to 
understand what we are doing here with respect to these FISA 
applications. And so--
    Senator Schumer. Heather Wilson, a Republican on the 
Intelligence Committee, says they are program warrants. I think 
we have to assume these are broad program warrants barring some 
comment from you, which I think is perfectly acceptable and 
that, you know, the reason you might not want to state it is it 
would open you up to criticism. And if it is a broad program 
warrant, it really is not very satisfying in terms of 
protection that the Constitution requires.
    Again, can you tell us that these will be--can you give us 
some assurance that there will be some degree of specificity in 
these warrants?
    Attorney General Gonzales. Senator, what I can tell you is 
that, again, these meet all the requirements of the FISA 
statute. They also include minimization procedures above and 
beyond what we would normally find in a FISA order to ensure 
that any information that should not be collected is disposed 
of in the appropriate way.
    Senator Schumer. OK. Next question. Getting some of the 
details here, the previous program has been going on for 5 
years. That is longer than it took us to fight World War II. 
Your negotiations, by your own admission, have gone on 2 years. 
That is longer than this administration took to conceive a plan 
to invade Iraq--mobilize the troops, invade Iraq, and topple 
Saddam Hussein.
    Can you give us some documentation, whether it is in camera 
or publicly, about why the negotiations took so long, what the 
change in heart was in the administration?
    Attorney General Gonzales. I think as we have these 
additional briefings and there is a better understanding of how 
the application is structured and how the orders work, I think 
people have a better understanding of why it took so long to 
get this done.
    Senator Schumer. There is a fundamental question a lot of 
people are asking, sir, and, that is, if FISA was always 
sufficient to facilitate this program, why did you not use it 
in the first place?
    Attorney General Gonzales. Sir, we did not know that FISA 
was sufficient until the very moment that the judge approved 
the order. As I have said several times--
    Senator Schumer. It took 5 years for that to happen?
    Attorney General Gonzales. As I have said several times, we 
started down this road, the administration started down this 
road just months after the attacks of September 11th because we 
did not believe that FISA was available to allow the United 
States to engage in this kind of foreign collection in a manner 
that would protect the national security of our country.
    Senator Schumer. Let me ask you a question. Did you 
negotiate with the FISA judges or did you just propose 
something at once, they looked at it, and came back to you? Or 
was there a lot of give and take and back and forth?
    Attorney General Gonzales. Senator, I am not going to get 
into a discussion about our interaction with the Court on this 
order, as I would not on any other order.
    Senator Schumer. Well, let me just say this because, again, 
you have received some plaudits here, and I am glad--as I said, 
this is better than what we had. But I for one cannot feel very 
relieved knowing that the administration's view is they can go 
back and reinstitute the old program on a whim, that we do not 
know what type of warrants are being approved by the FISA 
Court--is it two? Is it 10? Is it 20?--and whether it is 
individual; and, third, we do not know what brought this all 
about, how long the negotiations took, the way it came about, 
et cetera.
    Remember, the FISA Court is a secret Court. The FISA Court 
has no Supreme Court review. Now, that is not your doing. That 
is established by statute. But that seems to me, if there were 
a new spirit of cooperation and understanding of the checks and 
balances, and balances of power, that, sir, you would be more 
forthcoming to try and show the American people that this is a 
real change.
    Attorney General Gonzales. Senator, we have provided a full 
briefing to both Intel Committees. We have already provided a 
briefing to Senator Specter, have offered a briefing to the 
Chairman. We are prepared to provide additional information to 
these two individuals so that they fully understand how these 
orders work.
    Senator Schumer. The number of people who have received the 
briefings are not very satisfied. That is what I was saying. 
Heather Wilson, a Republican, and Senator Rockefeller, by his 
quotes in the New York times, are not very satisfied.
    So for you to come tell us and tell us we cannot give you 
or the American people, more to the point, a briefing that does 
not involve secured information and we briefed these other 
people, and then when we hear from them they still have a whole 
lot of un answered questions, it is not very satisfying.
    Attorney General Gonzales. Sir, if a Member of Congress is 
not satisfied, they ought to tell us that, and we will provide 
additional information and try to educate them about this very 
difficult application and order so that they fully understand 
how it works.
    Senator Schumer. I am telling you--
    Attorney General Gonzales. We are committed to do that.
    Senator Schumer. I am telling you that I am not satisfied 
and would like to receive more information, either in camera or 
publicly.
    Chairman Leahy. And I would note that Senator Specter and I 
have written to the chief judge of the FISA Court asking for 
copies of the decisions of that Court, those that were 
announced publicly on Wednesday. They are apparently willing to 
provide those decisions for this Committee. There was some 
discussion with the Attorney General, who did seem overly 
approving of that idea or unwilling to commit to approve the 
idea. Be that as it may, this Committee will seek them.
    I want to clear up a couple misperceptions. Talking about 
taking several years to work out something with FISA as though 
this was a big roadblock. This Congress, and this Committee 
especially, has amended FISA a number of times since 9/11 at 
the request of the administration. There has never been a 
difficulty in getting that done.
    Also, there seems to be a misperception that, of course, if 
there is another terrorist attack, we would all be ready to 
pounce on you. The fact of the matter is that the first 
terrorist attack, 9/11, happened during the Bush 
administration, and Democrats and Republicans came together to 
try to protect this country.
    We could have just as well taken all that time to say, 
``How could you let this happen on your watch? '' Instead, we 
came together to say, ``How do we make sure it does not happen 
a second time on the Bush administration's watch or any other 
administration's watch? ''
    We have amended FISA a number of times, but I would leave 
you with one thought, and we will go back to this with the 
Court. The law is the law. No matter the motivation, nobody is 
above the law, not the President, not you, not me, not anybody 
else.
    And we will insist that the law be followed. If the law 
needs changes, come and tell us that. But we will follow this 
discussion with the FISA Court, and we will have the briefing 
on it.
    But I would also say the Senator from Alabama has been 
waiting patiently all morning long, and I would now yield to 
him. I know that we have several Senators who have not had a 
chance to ask their questions, and if they are here, we will go 
to them following Senator Sessions. Otherwise, we will start 
our second round.
    Senator Sessions. Thank you, Attorney General Gonzales, for 
your leadership and your hard work to defend this country and 
to promote the rule of law, and I mean that sincerely.
    I am not surprised that when you said yes, they still are 
not happy. We have just had a professional complaint here. I 
would just note that I am of the belief that at a time in which 
this Congress has authorized hostile action against certain 
groups like al Qaeda, it is perfectly appropriate for the 
United States President to authorize his agents to intercept 
their phone calls in foreign lands and intercept international 
phone calls that may come into our country if one of the 
parties to that conversation are connected to an entity with 
which we are at war. I think we have been through this around 
and around many times.
    You have said, OK, now we will go on and in light of the 
complaints go through this procedure, and maybe that was a good 
decision. Maybe it is just throwing a little more chum in the 
water for the sharks. I do not know. But at any rate, I thank 
you for trying to work with the Congress.
    There has been some complaints about replacement of the 
United States Attorneys. I served as United States Attorney for 
12 years. I am sure some people would have liked to have 
removed me before that. But I am well aware that the United 
States Attorneys serve as the pleasure of the President.
    The United States Attorneys that are being replaced here, 
as I understand it, all have served 4 years or more, had 4-year 
terms. And we are now in the second term of this President, and 
I think to make seven changes that I think are involved here is 
not that many, and that the office of the United States 
Attorney is a very important office, and it has tremendous 
management responsibilities and law enforcement 
responsibilities that cannot fail to meet standards. And if 
someone is not producing, I think the President has every right 
to seek a change for that or other reasons that may come up. I 
would just--
    Attorney General Gonzales. Senator, could I just interrupt 
you?
    Senator Sessions. Yes.
    Attorney General Gonzales. There are constant changes in 
the ranks of our U.S. Attorneys.
    Senator Sessions. Absolutely.
    Attorney General Gonzales. They come and go, and they leave 
for a variety of reasons. And so the fact that someone is 
leaving--I do not want to--again, I do not want to get into 
personal details of individual U.S. Attorneys. I do want to 
say, however--and I have said this publicly a lot recently, it 
seems--the U.S. Attorney positions are very, very important to 
me personally.
    They are my representatives in the community. They are the 
face of the administration, quite frankly. They are often 
viewed as the leader of the law enforcement effort within a 
community, not just by State and locals, but by other Federal 
components, and so I care very much about who my U.S. Attorney 
is in a particular district. That is very, very important to 
me. And so decisions with respect to U.S. Attorneys are made on 
what is best for the Department, but also what is best for the 
people in the respective district.
    Senator Sessions. I fully understand that, and I know in my 
district where I used to be United States Attorney, a vacancy 
occurred and someone left and an interim was appointed.
    She was a professional prosecutor in San Diego, Deborah 
Rhodes. She won great respect in the office and brought the 
office together when there had been problems. And I am pleased 
to say Senator Shelby and I recommended her to you and you 
appointed her permanently, somebody who had never lived in the 
district before.
    But I know you want the best type persons for those 
offices. I would just note, though, that there have been 
complaints about United States Attorneys where some of them are 
not very aggressive and they do not need to stay if they are 
not doing their job.
    Here we had 14 House Members expressing concerns about U.S. 
Attorney Carol Lam in San Diego on the border there, saying in 
effect that she had a firm policy not to prosecute criminal 
aliens unless they have previously been convicted of two 
felonies in the district.
    Well, I do not think that is justifiable.
    Attorney General Gonzales. Senator, I--
    Senator Sessions. I do not know if that had anything to do 
with her removal, but I know there were a series of 19 House 
Members wrote letters complaining about their performance, and 
if that is so, I think change is necessary. Go ahead.
    Attorney General Gonzales. Well, I was going to say I am 
not going to comment on those kind of reports, quite frankly.
    Senator Sessions. I am sure you are not.
    Attorney General Gonzales. It is not fair to individuals. 
It is not fair to their privacy. And, quite frankly, it is not 
fair to others who may have left for different reasons.
    Senator Sessions. I understand. Now, the Bureau of Justice 
Assistance administers the Scout Program, which is with 
immigration, to help fund the cost of illegal criminal activity 
enforcement. This month, the DOJ Inspector General released an 
audit titled, ``Cooperation of Scout Recipients in the Removal 
of Criminal Aliens from the United States.''
    One of the questions that the Congress asked the Inspector 
General to examine was how many criminal offenses were 
committed by criminal aliens who were released from State or 
local custody without a referral for removal from the United 
States.
    A pretty good question. Are these people committing crimes 
or not? The report came in with a staggering result. It found, 
``The rate at which released criminal aliens are rearrested is 
extremely high.'' Within the sample of individuals examined, 
100 individuals examined, 73 had had at least one arrest after 
their release from State custody.
    They accounted for a total--these 73 accounted for a total 
of 429 arrests, 878 charges, and 241 convictions. To put it 
another way, those 73 individuals had been arrested on an 
average of 5.8 times apiece after their initial release.
    This is clear statistical evidence, I think, that if the 
Department wants to reduce recidivism, they need to take 
action, and one of those is to remove people who are arrested 
and prosecute criminal aliens.
    Would you agree that that is supportive of that enforcement 
concept?
    Attorney General Gonzales. I think people who commit crimes 
are much more deterred from doing so again if, in fact, they 
are prosecuted and locked away. Yes, sir.
    Senator Sessions. And with regard to the proposal that 
would change the United States Attorney appointment we 
discussed earlier, I think the Feinstein amendment is not just 
re-establishing previous law. It goes beyond the previous law. 
And I think at this point we do not have a basis to make that 
change. Would you agree it goes beyond the previous law?
    Attorney General Gonzales. Quite frankly, Senator, I am not 
in--I do not know what her amendment would do, but I would have 
concerns if her amendment would require or allow a judge to 
make a decision about who is going to serve on my staff.
    Senator Sessions. If a United States Attorney is appointed 
by the power--a U.S. Attorney is part of the executive branch. 
You would bring that nomination to the Senate for an up-or-down 
vote, would you not?
    Attorney General Gonzales. Again, I have said it before, 
but I will say it again. I am fully committed to work with the 
Senate to ensure that we have Presidentially appointed, Senate-
confirmed U.S. Attorneys in every district.
    Now, these are, of course, very, very important, and I do 
not have the luxury of letting vacancies sit vacant. And so I 
have an obligation to the people in those district to appoint 
interims. And, of course, even though there may be an interim 
appointment, their judgment, their experience or qualifications 
are still, nonetheless, very, very important to me.
    Senator Sessions. You are exactly right. And let me ask 
you, on the court system in Iraq, it is something I have been 
very concerned about. The Department of Justice has a role in 
that. We have got almost, what, 150,000 soldiers over there. I 
believe the Department of Justice has got to do more.
    I am well aware that one fine Assistant United States 
Attorney in my home district I hired, with a fine family, felt 
he ought to serve his country, and he participated in working 
on big trials, including Saddam Hussein's trial in Baghdad, 
away from his fine family.
    But my experience from asking about this for a number of 
years leads me to believe every agency of Government has got to 
step up to help our military policy be successful. Will you 
assure us that you will do all you can to make sure that you 
are fulfilling your role in helping to establish a court system 
and a prison system that works in Iraq?
    Attorney General Gonzales. We can not achieve success here 
without the rule of law. I think we have done a lot, and we 
obviously can give you a lot of facts and figures about what we 
are already doing. Obviously, we need to do more. And so we are 
looking to see what else we can do.
    Senator Sessions. It is not an academic matter. This is 
life and death. If we cannot be assured that people who are 
arrested are not going to be released, they are not going to be 
tried promptly, they are not going to be incarcerated securely, 
that undermines the rule of law and can undermine our entire 
mission over there.
    And, finally, Mr. Chairman, my time is up, but I want to 
thank you for providing technical support to a bill that 
Senator Biden and I and I think Senator Feinstein and Norm 
Coleman have worked on called the online pharmacy bill, which 
people are able to order controlled substances from and through 
the Internet without ever being physically examined by a 
physician. And I think that is a major loophole.
    People who are addicted to these prescription drugs, they 
are addicted as deeply as cocaine. And they get obsessed with 
getting them. They go around town buying them from multiple 
doctors. Frequently, they are apprehended when they do that. 
But if they can just buy large numbers without every seeing a 
physician through on-line pharmacies, then we have got a big 
loophole.
    Thank you.
    Attorney General Gonzales. Thank you. I appreciate your 
leadership on that, Senator. We look forward to working with 
you.
    Chairman Leahy. Thank you. Then-Congressman Ben Cardin 
served with great distinction in the House of Representatives 
for years as a Representative from Maryland. He is now here as 
a new Senator from Maryland, and I want to welcome him to this 
Committee. I usually have a better voice than this. It is the 
Attorney General who should be without a voice at this point, 
not me. But I now yield to Senator Cardin of Maryland.
    Senator Cardin. Senator Leahy, thank you very much for your 
kind comments, and thank you for your leadership on this 
Committee; and, Senator Specter, it is a pleasure to be on the 
Judiciary Committee.
    Mr. Gonzales, I want to use my time to talk about the 
Voting Rights Act and the concerns about voter intimidation and 
the deceptive practices particularly against minority 
communities. And I would like to explore the energy of your 
Department in pursuing these issues.
    There have been many reports nationally of problems. 
Problems concerning voting machines, we know about that. We 
have heard and seen instructions given by major political 
parties to the poll watchers to discriminately challenge 
certain voters in order to try to intimidate a vote.
    We have seen material that has been given out that has been 
misleading as to the day of an election or as to responsibility 
for being arrested if you have outstanding parking violations, 
clearly targeted to particular communities.
    But I am going to mention two specific things that happened 
in Maryland in this past campaign that have been brought to 
your attention--at least one has been brought to your attention 
through Senator Schumer. But I want to get your comments on it 
and try to explore a little bit further what is being done by 
your agency.
    In Prince George's County and Baltimore City, the two 
jurisdictions in Maryland that have predominantly African-
American voters and citizens, there were long lines on election 
day to vote. The reasons for these long lines were inadequate 
equipment, improper training for the supervisors, and a whole 
host of reasons.
    I personally visited polling places in Prince George's 
County and in Baltimore City where, during the low peak, low 
times in voting, voters had to wait 2 hours in order to vote. 
And it was not unusual for someone to wait 3 hours in order to 
vote in these two counties.
    We did not have similar problems in other counties in 
Maryland, raising a serious question as to whether those that 
are responsible for managing our voting system were really 
sincere in trying to get the maximum amount of participation on 
November the 7th.
    The second specific issue that I want to bring to your 
attention that I am personally aware of is literature that was 
given out on the eve of the election, and we will make sure you 
get a copy of it. And, Mr. Chairman, I would like a copy placed 
in our record, if that would be agreeable.
    Chairman Leahy. Without objection, it will be so ordered.
    Senator Cardin. The literature is under the authority of a 
major candidate running for Governor and a major candidate 
running for U.S. Senate in our State. It is labeled ``Ehrlich-
Steele Democrats.'' And as I am certain you are aware, Mr. 
Ehrlich and Mr. Steele are Republicans, and the ``Official 
Voter's Guide,'' has the photographs of three prominent 
African-Americans in our State.
    ``These are our choices,'' the Guide says, giving the clear 
impression that these three individuals have endorsed the 
candidacy of those that are on this literature. Two of the 
people in this literature, Kweisi Mfume, the former head of the 
NAACP, endorsed my candidacy and not Mr. Steele's candidacy for 
the United States Senate; Jack Johnson, the county executive 
for Prince George's County, endorsed my candidacy, certainly 
not Mr. Steele's candidacy.
    The literature goes on and gives a Democratic sample ballot 
with all the Democrats listed, except for Mr. Ehrlich and Mr. 
Steele, under the authority of Mr. Ehrlich and Mr. Steele, 
clearly misleading voters.
    To compound this, there were hundreds of individuals from 
Pennsylvania who were in homeless shelters who were bused into 
Maryland by Mr. Ehrlich and Mr. Steele to give out this 
literature. I talked to these individuals. They had no idea 
what they were doing. They just thought they were picking up a 
job and were surprised to find out what they were actually 
being bused to Baltimore and to Prince George's County to do.
    This troubles me. I think there is a limit as to what you 
can do, and it seems to me that there has been a pattern, at 
least in my State, to try to diminish the voting of minorities. 
And I know that Senator Schumer sent you a letter, and I have 
been informed that you have responded to that letter although I 
have not seen that response. But I want to get your views here 
today as to what you have done to look into these matters.
    I must tell you, in another role that I had in the other 
body, I was the Democratic leader on the Helsinki Commission, 
the Commission for Security and Cooperation in Europe, and we 
monitored elections around Europe and Central Asia.
    And I must tell you, Mr. Chairman, there are practices that 
occur here in America that we would not tolerate in other 
countries. And I look to you, as the principal leader to make 
sure that our justice system is available to all through 
empowerment and voting, through the Voting Rights Act.
    And I would just like to know what resources you are 
devoting to make sure that this Nation encourages all of its 
citizens to vote and that we act against any effort to deny 
participation, particularly among minorities in America.
    Attorney General Gonzales. First of all, Senator, let me 
also extend my welcome. This is the first time you and I have 
spoken, I think, and I look forward to working with you.
    Voting is very, very important to me. The protection of the 
franchise is very, very important to me, because I come from a 
background where I did not have much, perhaps like you. And on 
voting, however, you are equal to everyone else, and that is a 
right that is so precious in our country.
    And so I agree with you that it is something that we should 
guard zealously and ensure that we are doing what we can to 
ensure that everyone has a right to exercise their franchise on 
election day.
    Having said that, I will say that, as we all know, 
elections are primarily a State and local function. They are 
not primarily a Federal function. They are run, conducted by 
State and local officials.
    Senator Cardin. The Voting Rights Act is a Federal law.
    Attorney General Gonzales. Pardon me?
    Senator Cardin. The Voting Rights Act.
    Attorney General Gonzales. No question about it. Obviously, 
we have the Civil Rights Division and we have the Criminal 
Division. The Civil Rights Division is there to ensure that no 
one is intimidated or discriminated against in the exercise of 
voting based upon their race or color. The Criminal Division is 
there to ensure ballot integrity, to ensure that there is no 
voter fraud.
    I have spoken with Wan Kim certainly about the flyer. They 
have looked at it very, very carefully--Wan Kim being head of 
the Civil Rights Division--and I think the general notion is 
that, unfortunately, as a general matter, our Federal laws are 
not--I do not want to say they are really intended to, but they 
do not provide much in terms of tools in terms of going after 
campaign tactics or rhetoric by candidates. And you have to ask 
yourself, I mean, is that really what you want prosecutors to 
do in connection with campaigns.
    Senator Cardin. What I want prosecutors to do is look for a 
pattern of conduct.
    Attorney General Gonzales. Exactly.
    Senator Cardin. And if this was the only thing that 
happened in Maryland--I think it is wrong. I think you should 
look at it. I think it is reprehensible. But if there is an 
effort made to deny minorities full participation in the State 
of Maryland, you have a responsibility to do something about 
that.
    Attorney General Gonzales. I do have a responsibility, and 
I believe I am discharging that responsibility. Wan Kim and I 
have talked about this several times. He understands my 
commitment to this issue and how important it is for the 
Department of Justice to ensure that people are not 
discriminated against based upon their race or color in terms 
of exercising their right to vote.
    And I think we have a strong record in terms of civil 
rights enforcement, and when these kinds of allegations are 
made, we, of course, investigate. If we can prosecute a case, 
we will do so.
    In some cases, States have laws where this kind of conduct 
could be prosecuted. I do not know what exists in Maryland, but 
that would be something we would always do as well, is consult 
with our State counterparts to see whether or not, if we cannot 
prosecute, is there some law, some State law that it can be 
prosecuted.
    So, I mean, you have my commitment--and I am happy to sit 
down and talk with you further about these cases and others in 
your State. I can tell this is something that is very, very 
important to you. It is important to me. And it seems to me 
this is something we could be allies on.
    Senator Cardin. Well, I appreciate that. This is important 
to the people of Maryland and important to the people of our 
country. I am not as concerned about getting people prosecuted 
as I am to make sure people have the right to vote and it is 
not infringed.
    And I think the activism of your Department could go a long 
way to show that we have a concern at the national level with 
the Voting Rights Act that all people have the right to 
participate and any form of intimidation will not be tolerated, 
particularly when there has been a pattern to try as part of a 
campaign strategy to reduce the participation of minority 
voters. That is what happened in our State, and I look forward 
to your invitation, and I plan to take you up on that.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Cardin.
    What I will do is begin the second round, and my intention 
would be, after Senator Specter and I have finished, and for 
the notice of other Senators, we will then recess until quarter 
of 2. That will allow the Attorney General time to actually get 
a bite to eat, but also, I am sure, if he is like all the rest 
of us, he probably has a hundred phone calls backed up in his 
office.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    The subject of local law enforcement is one which you have 
addressed, Mr. Attorney General, and I would like to pursue the 
issue with reference to my State. The city of Philadelphia has 
had more than 400 homicides last year, and the city of Reading 
was ranked as the 21st most dangerous cities in the country. 
And you have an excellent United States Attorney's Office 
covering that jurisdiction, U.S. Attorney Patrick Meehan is 
there.
    Attorney General Gonzales. Yes, sir.
    Senator Specter. He had been my chief of staff in 
Philadelphia and was district attorney of Delaware County and 
has done an outstanding job for you. His office received three 
awards for their work in prosecuting a major drug organization 
last year, and he needs help. I know your budgetary limitations 
have caused some reductions in staff there.
    In taking a look at the situation--and I have seen it for 
many years since my days as district attorney of Philadelphia--
it has been my thought that mentoring might provide the best 
short-term assistance to eliminate the killings and the gang 
warfare. It is not going to be eliminated, but it can be 
ameliorated.
    Attorney General Gonzales. I could not agree with you more, 
Senator. I think you are right, absolutely right.
    Senator Specter. And toward that end, I have contacted 
Superintendent Paul Vallas, a very distinguished superintendent 
of schools, and members of the School Board, and also talked to 
Governor Rendell, talked to Mayor Street, District Attorney 
Lynne Abraham.
    Both Governor Rendell and D.A. Lynne Abraham were 
assistants in my office. I have worked with them over the 
years. And I discussed with the Mayor convening a meeting, 
which we are having in Philadelphia tomorrow, to pool together 
the mentoring resources to see how much we have and to make a 
plea to the citizens of Philadelphia to come forward and 
volunteer to be mentors.
    I think if the Governor, the Mayor, and the D.A., public 
officials and I join together, we can get a response. And what 
I would like to do with you, Mr. Attorney General, is have our 
staffs meet and go over the resources which you see available 
on mentoring and then pick it up in the Department of Justice 
budget and in the budget of education and health care, which 
would have overlapping interests. And I know that you share the 
deep concern, and let us work together on it.
    Attorney General Gonzales. Senator, I am sure you know, of 
course, that we have $2.5 million committed to the 222 
Corridor, which really is a part within, to focus on gangs. 
They have submitted a plan that has three pillars--one being 
prevention, one being law enforcement, and the third being 
prison re-entry.
    And so obviously the prevention piece would include 
education and would include mentoring. And so there is already, 
I think, some good work being done within the 222 Corridor. But 
I would look forward to working with you because I think, quite 
frankly, by the time they get into gangs, it is tough to get it 
reversed. We need to get to these kids before they join gangs.
    Senator Specter. Mr. Attorney General, let me return to a 
couple of subjects we talked about this morning and see if we 
can not come to a meeting of the minds.
    On the signing statements, let me illustrate the issue with 
the PATRIOT Act. You and I personally worked on the PATRIOT 
Act, as did our staffs, and we gave law enforcement additional 
powers.
    Now, in return, we took additional safeguards on oversight. 
But when the President signed the PATRIOT Act, he reserved what 
he calls his right to disregard those oversight provisions.
    Now, in the context where the Chairman of the Committee and 
the Attorney General negotiate an arrangement, is it 
appropriate for the President to put in a signing statement 
which negates the oversight which had been bargained for, which 
has been bargained for?
    Attorney General Gonzales. Senator, I would just say that, 
you know, a signing statement cannot give to the President any 
authority that he does not already have under the Constitution.
    And so to the extent that the President makes that kind of 
statement and informs the Congress and the American people 
about his interpretation, I would view that as a good thing. 
But there is no additional--he has that authority already. He 
does not need to say--
    Senator Specter. But if he thinks those provisions 
derogate, inappropriately take away his constitutional 
authority and the act is unconstitutional, then he ought to 
veto it.
    Attorney General Gonzales. But, Senator, I think--
    Senator Specter. Or at least he ought not to bargain it 
away.
    Attorney General Gonzales. There may be a feeling that, of 
course, the act may be totally constitutional depending on its 
application, and the President wants to ensure that--he wants 
to give direction to the executive branch as to what he thinks 
would be a constitutional application.
    And, of course, quite frankly, the President, knowing how 
much work is involved in getting legislation passed, 
particularly pieces of legislation like the reauthorization of 
the PATRIOT Act, I mean, the last thing he wants to do is veto 
all that hard work if he does not need to. And, you know, 
Presidents of both parties have taken this approach.
    Senator Specter. And then let him tell us in the 
negotiations that he is not going to agree to the oversight, 
and then we can decide whether to give him more power. He 
cannot get the power unless Congress gives it to him.
    Attorney General Gonzales. Senator, I do not know--
    Senator Specter. He does not have inherent constitutional 
authority to take power that is not granted by Congress.
    Attorney General Gonzales. Unless it is granted by the 
Constitution.
    Senator Specter. Well, if he wants specific law enforcement 
authority, there has to be an express grant by Congress.
    Let me pick up one other subject, if I may, Mr. Chairman. I 
may go a little over time, which I do not like to do, but let 
me take up this habeas corpus issue very briefly.
    Where you have the Constitution having an explicit 
provision that the writ of habeas corpus cannot be suspended 
except in cases of rebellion or invasion, and you have the 
Supreme Court saying that habeas corpus rights apply to 
Guantanamo detainees, aliens in Guantanamo, after an elaborate 
discussion as to why, how can there be a statutory taking of 
habeas corpus when there is an express constitutional provision 
that it cannot be suspended and an explicit Supreme Court 
holding that it applies to Guantanamo alien detainees?
    Attorney General Gonzales. A couple of things, Senator. I 
believe that the Supreme Court case you are referring to dealt 
only with the statutory right to habeas, not the constitutional 
right to habeas.
    Senator Specter. Well, you are not right about that. It is 
plain on its face they are talking about the constitutional 
right to habeas corpus. They talk about habeas corpus being 
guaranteed by the Constitution except in cases of an invasion 
or rebellion. And they talk about John at Runnymede and the 
Magna Carta and the doctrine being embedded in the 
Constitution.
    Attorney General Gonzales. Sir, the fact that they may have 
talked about the constitutional right to habeas does not mean 
that the decision dealt with the constitutional right to 
habeas.
    Senator Specter. When did you last read the case?
    Attorney General Gonzales. It has been a while, but I would 
be happy to go back--I will go back and look at it.
    Senator Specter. I looked at it yesterday and this morning 
again.
    Attorney General Gonzales. I will go back and look at it. 
The fact that the Constitution--again, there is no express 
grant of habeas in the Constitution. There is a prohibition 
against taking it away. But it has never been the case--I am 
not aware of a Supreme--
    Senator Specter. Now, wait a minute, wait a minute. The 
Constitution says you cannot take it away except in case of 
rebellion or invasion. Does that not mean you have the right of 
habeas corpus unless there is an invasion or rebellion?
    Attorney General Gonzales. I meant by that comment the 
Constitution does not say every individual in the United States 
or every citizen is hereby granted or assured the right to 
habeas. It does not say that. It simply says the right of 
habeas corpus shall not be suspended except by--
    Senator Specter. You may be treading on your interdiction 
and violating common sense, Mr. Attorney General.
    Chairman Leahy. Mr. Attorney General, just so that--I want 
to make one thing very clear on this habeas corpus.
    Attorney General Gonzales. Sir, your mike. I cannot hear 
you.
    Chairman Leahy. I want to make one thing very clear on the 
habeas corpus, and we can go back and forth on what the case 
held or anything else. I feel that the Congress of the United 
States and the administration made a horrible mistake last year 
in a very short period of time and debate, basically undercut 
the writ of habeas corpus, the Great Writ. There are those who 
talked about 9/11 and why they were doing it. I talked about 
the year 1215, I believe it was, when it first came into our 
concept. But the great writ of habeas corpus was done horrible 
damage by the Congress in a law the President signed last year.
    I just want to put everybody on notice that as Chairman of 
this Committee, I will do everything possible to restore all 
the rights under the writ of habeas corpus that were there 
before we passed the legislation we did, legislation I voted 
against. I will make every effort to restore it. I just want 
everybody to know that.
    Now, I would like to have allies in that, but I will try to 
do it no matter what.
    On the question of signing statements, you said that a 
signing statement cannot give a President more authority. Well, 
it also--and this President has used signing statements far 
more than any other President.
    Attorney General Gonzales. Sir, I would disagree with that. 
Probably more but not far more.
    Chairman Leahy. We have actually done numbers on it. We 
have actually run the numbers on it, and I will put the numbers 
in the record. Certainly on the issues of constitutional 
issues, far more than anybody in the history of the ABA Task 
Force, so the 800 provisions of law challenged by Presidential 
signing statements in this administration, 86 percent of the 
President's signing statements have related to constitutional 
challenges. You talked about President Clinton; 26 percent of 
his did.
    But the fact of the matter is while you say they cannot 
give him more power, he also has the duty under the 
Constitution to faithfully execute our laws. Now, it is one 
thing to make a big political thing of negotiating a piece of 
legislation. I will give one example.
    The President, the Vice President did that with a member of 
this body on the question of torture. Everybody went out, 
declared victory on that. Congress passes the bill outlawing 
torture. And then quietly, on a Friday, the White House issues 
a signing statement saying, however--and this was after a full 
negotiation of the law--these parts will not apply to this 
President or those people acting under his direction.
    The chief sponsor of the legislation made a modest one-
paragraph--again, on Friday afternoon, saying, gosh, that is 
not what I intended, and that was the end of it. And there have 
been hundreds of others. So we will look at that.
    Let me ask you, though, in a specific area. When the 
Congress reconvened this month--or convened, I should say, I 
reintroduced my war profiteering prevention bill. That is going 
to make it a crime for military contractors to overvalue goods 
and services with the specific intent to defraud the United 
States in connection with war or the reconstruction efforts in 
Iraq.
    Now, we spent more than half a trillion dollars in Iraq so 
far. Last week, the President said he is going to spend at 
least another $1.2 billion more on reconstruction. The Special 
Inspector General for Iraq Reconstruction says millions of U.S. 
taxpayer funds remain unaccounted for because of fraud by 
contractors. So let me ask you about the Department's 
investigation on contracting fraud in Iraq.
    According to Taxpayers Against Fraud, a nonprofit watchdog 
group, there are more than 50 Iraq fraud investigations 
currently ongoing in the Government. At least five False Claims 
Act cases involving Iraq contracting fraud have been filed 
under seal. But, to date, the Justice Department has not 
brought a single criminal case against a corporate contractor 
in Iraq. Why? It appears you may be avoiding investigating and 
prosecuting fraud. Is that the case? Why not a single one?
    Attorney General Gonzales. Well, no, it is not the case.
    Chairman Leahy. It is not the case that you have not 
brought a single criminal case against a corporate contractor 
in Iraq.
    Attorney General Gonzales. No. It is not the case that we 
are trying to avoid bringing these kinds of cases. These are 
difficult cases to make. In the normal case, fraud cases are 
difficult to make, and depending on the complexity and the 
size, it may take years to get them ready for trial.
    Chairman Leahy. Would they be easier with the war 
profiteering legislation that I have submitted, something that 
passed the Senate overwhelmingly the last time it came up, but 
I understand that at the request of the administration was 
taken out by the Republicans in the House.
    Attorney General Gonzales. I do not know, Senator. I would 
be happy to look at it and let you know. But when you are 
talking about also investigations overseas, particularly in a 
war zone, it complicates our efforts. But I can tell you that 
we are committed--we have established a--
    Chairman Leahy. We find Halliburton gives water with E. 
coli in it to our troops. The press was able to find that out. 
We find that an enormous number of weapons we sent over there 
have been sold on the black market. There should be some 
ability to trace some of this.
    Attorney General Gonzales. Well, sure there is. But, I 
mean, can you make a case? I mean, that is the thing. We do 
operate under a system of laws and procedures.
    Chairman Leahy. Well, how many prosecutors or investigators 
are currently assigned to investigate contracting fraud in 
Iraq?
    Attorney General Gonzales. We can give you that number, but 
let me just mention we do have a procurement fraud task force 
where we are working with IGs and investigators, including in 
Iraq, to ensure that we have the best practices in place, that 
we are coordinated, that we are communicating with each other. 
And so there is a coordinated effort to go after procurement 
fraud generally, but also within Iraq.
    Chairman Leahy. Do you know offhand how many prosecutors--
    Attorney General Gonzales. I do not, sir, but I will get 
you that information.
    Chairman Leahy. Can we have it before we come--
    Attorney General Gonzales. I will try to do that.
    Chairman Leahy. Let me ask you another question, and then 
we can take a break. You know, I live about an hour's drive 
from Canada and go up there often, and in Vermont we tend to 
get a lot of Canadian news on the radio and so on.
    But something that made the news here in the United States 
was the question of Maher Arar. That is M-a-h-e-r, A-r-a-r, in 
case I mispronounced it. He is a Canadian citizen. He was 
returning home from a vacation. The plane stops at JFK in New 
York and continues on to Canada. He was detained by Federal 
agents at JFK Airport in 2002 on suspicion of ties to 
terrorism. He was deported to Syria.
    He was not sent on the couple hundred miles to Canada and 
turned over to the Canadian authorities, but he was sent 
thousands of miles away to Syria. He was held for 10 months.
    The Canadian Commission later found that there was no 
evidence to support he had any terrorist connection or posed 
any threat, but that he was tortured in Syria. He was held in 
abhorrent conditions there, and those sending him back must 
have known he was going to be tortured.
    The Canadian Government has apologized for its part in this 
debacle. In fact, the head of the Royal Canadian Mounted Police 
actually resigned over it. The country is prepared to 
compensate him for it.
    This country has not said anything at all that we made any 
mistake or had any apology. Press accounts indicate the Justice 
Department approved his deportation to Syria. I have not heard 
anything clear from the Justice Department about their role in 
this affair.
    And I understand he remains on the United States terrorist 
watchlist so he could not come 50 miles or 75 miles, or 
whatever it is, south into the United States without fear of 
being picked up again and sent back to Syria.
    Why is he on a Government watchlist if he has been found 
completely innocent by this Canadian Commission, which actually 
had information from us?
    Attorney General Gonzales. Senator, I have got some very 
definite views about this particular case. As you--
    Chairman Leahy. Well, go ahead.
    Attorney General Gonzales. As you know, we are in 
litigation. What I want to do is hopefully in the next few 
days, I am happy to sit down with you and Senator Specter and 
give you more information. In fact, we may be able to publicly 
say more about this shortly. I am just not at liberty at this 
time to say--
    Chairman Leahy. Let me ask you this: Why are not you at 
liberty? I do not understand that. This is not a matter of 
Executive privilege.
    Attorney General Gonzales. No, sir. Again, I am not--
    Chairman Leahy. Because only the President could claim it. 
You cannot.
    Attorney General Gonzales. I am not suggesting that I will 
not be able to answer your questions. I am just suggesting I 
cannot do it today.
    Chairman Leahy. Why?
    Attorney General Gonzales. Sir, I am not--there is not a 
position--I cannot represent the position of the executive 
branch on this particular issue, but I think in a relatively 
short period of time, there is more information that I should 
be able to share with you, and hopefully that we can share 
publicly.
    Chairman Leahy. Well, why was he sent to Syria instead of 
Canada?
    Attorney General Gonzales. Well, again, Senator, I would be 
happy to answer these questions. I am aware of the list of 
questions you--I think you and Chairman Biden have submitted 
with respect to this particular case. I think we can say a lot 
more about it if you will just simply give me some additional 
time.
    Chairman Leahy. Can you tell me whether you took steps to 
ensure that he would not be tortured? Of course, he was.
    Attorney General Gonzales. I believe that piece of 
information is public. There were steps--I think General 
Ashcroft confirmed this publicly that there were assurances 
sought that he would not be tortured from Syria. But--
    Chairman Leahy. Attorney General, I am sorry. I do not mean 
to treat this lightly. We knew damn well if he went to Canada 
he would not be tortured. He would be held and he would be 
investigated. We also knew damn well if he went to Syria he 
would be tortured.
    It is beneath the dignity of this country, a country that 
has always been a beacon of human rights, to send somebody to 
another country to be tortured. You know and I know that has 
happened a number of times in the past 5 years by this country. 
It is a black mark on us.
    It has brought about the condemnation of some of our 
closest and best allies. They have made those comments both 
publicly and privately to the President of the United States 
and others.
    It is easy for us to sit here comfortably in this room 
knowing that we are not going to be sent off to another country 
to be tortured, to treat it as though, well, Attorney General 
Ashcroft said we got assurances. Assurances from a country that 
we also say now, oh, we cannot talk to them because we cannot 
take their word for anything.
    Attorney General Gonzales. Well, Senator, I--
    Chairman Leahy. I am somewhat upset.
    Attorney General Gonzales. Yes, sir, I can tell. But before 
you get more upset, perhaps you should wait to receive the 
briefing--
    Chairman Leahy. How long?
    Attorney General Gonzales. I am hoping that we can get you 
the information next week.
    Chairman Leahy. Well, Attorney General, I will tell you 
what I will do. I will meet you halfway on this. I will wait 
next week for that briefing. If we do not get it, I guarantee 
you there will be another hearing on this issue.
    The Canadians have been our closest allies, the longest 
unguarded frontier in the world. They are justifiably upset. 
They are wondering what has happened to us. They are wondering 
what has happened to us.
    Now, you know and I know we are a country with a great, 
great tradition of protecting people's individual liberties and 
rights. You take an oath of office to do that. I take an oath 
of office to do that. I believe in my basic core nature in 
that.
    My grandparents when they immigrated to this country 
believed that. Let us not create more terrorism around the 
world by telling the world that we cannot keep up to our basic 
standards and beliefs.
    So I will wait a week. I will wait a week. But I will not 
wait more than a week for that briefing.
    We will stand in recess unless you want to say something 
further.
    Attorney General Gonzales. Only, Mr. Chairman, that we 
understand what our legal obligations are with respect to when 
someone is either removed, extradited, or rendered to another 
country. We understand what our obligations are under the 
Convention Against Torture, and we do take the steps to ensure 
that those obligations are being met.
    I look forward to be able to provide the briefing that you 
are requesting.
    Chairman Leahy. Thank you.
    We will stand in recess until 2.
    [Whereupon, at 12:40 p.m., the Committee recessed, to 
reconvene at 2 p.m., this same day.]
    Chairman Leahy. Before we start, first I will yield a 
minute to the Senator from Iowa, because he had something he 
wanted to correct.
    Senator Grassley. Only a minute, for my colleagues over 
there that have not had their first round yet.
    I took what you said about not receiving letters from me, 
and we have checked with the Department of Justice Legislative 
Affairs. You received my January 9th letter by fax at 6:16 p.m. 
that day; my March 17th letter by e-mail at 5:41 p.m. on that 
day; and my April 26th letter by e-mail at 1:49 on that day. So 
I hope you will do that.
    And then because I have to go, I am going to submit a 
question on agricultural concentration, and I would appreciate 
an answer in writing because I have a great deal of interest to 
make sure that we keep a competitive environment within 
agriculture.
    Attorney General Gonzales. Thank you for the information, 
Senator.
    Chairman Leahy. Thank you.
    Senator Grassley. Thank you, Mr. Chairman.
    Chairman Leahy. Of course.
    Mr. Attorney General, let me just make a short observation, 
and I realize Senator Specter is back here, but you made a 
comment with him, speaking about habeas corpus, that troubles 
me.
    You argued that the Constitution does not guarantee a right 
to habeas corpus because in a negative construction, what it 
literally does is prohibits the Congress from suspending the 
privilege or the writ of habeas corpus except in cases of 
rebellion or invasion.
    Well, many of our most cherished rights are guaranteed by 
the Constitution in much the same way. For example, the First 
Amendment is also a negative construction. It prohibits 
Congress from making laws infringing on religious freedom and 
our freedom of speech. But you would not say that it does not 
guarantee free speech and religion.
    The Fifth Amendment is negative. It prohibits the 
Government very overreaching in the deprivation of life, 
liberty, and property without due process of law. I mean, I 
could go into the Second Amendment and the Fourth Amendment.
    But you see what I am doing here. They do not lay out a 
right. They prohibit you from taking away a right. So why would 
not that apply the same thing to the writ of habeas corpus?
    Attorney General Gonzales. I do not disagree at all, Mr. 
Chairman. I was just simply making an observation that there is 
not an express grant. My understanding is that in the debate 
during the framing of the Constitution, there was discussion as 
to whether or not there should be an express grant, and the 
decision was made not to do so.
    But what you see in the language is a compromise. I think 
the fact that in 1789 the Judiciary Act--they passed statutory 
habeas for the first time. They reflect maybe--I do not want to 
say a concern, but why pass a statutory right associated to the 
Constitution? Perhaps because there was not an express grant of 
habeas.
    I believe that the right of habeas is something that is 
very, very important, one of our most cherished rights, and so 
I was simply making an observation as to the literal language 
that the--
    Chairman Leahy. I think one wants to be very careful in 
making the argument the way it is. I will continue to make the 
argument that the Congress made a disastrous mistake in 
restricting the writ of habeas corpus by legislation.
    And I and I understand a number of Republicans, Senator 
Specter among others, will join together to try to rectify that 
mistake. But I am on the time of the senior Senator from 
Illinois, who is also the Deputy Majority Leader, Senator 
Durbin.
    Senator Durbin. Thank you, Mr. Chairman, and thank you, Mr. 
Attorney General, for your service to our country and for 
joining us today. Thanks to all of your staff for your hard 
work.
    I would like to ask you, Mr. Attorney General, to allow me 
to say a few words and then react to them if you would.
    Attorney General Gonzales. Yes, sir.
    Senator Durbin. I am trying to understand in my mind what 
the image of America is when it comes to the treatment of 
prisoners who are being detained. I am afraid that in many 
parts of the world they believe that we have abandoned some of 
our time-honored principles of due process since 9/11, and they 
question whether the United States is now following a course of 
conduct that for years we have said does not define us as a 
Nation. Let me give you three specific examples.
    First, on military commissions, Senator Specter and I 
prepared a bill back in 2002 trying to find a congressional 
answer to the construction of these military commissions which 
would meet the security needs of our country.
    The administration decided, the executive branch, not to 
deal with Congress but to try to create these military 
commissions on their own and, unfortunately, the outcome was 
not good. So here we are 5 years and zero convictions at 
Guantanamo because the administration would not work with 
Congress to create military commissions.
    No. 2, you gave a speech very recently--in fact, it was 
yesterday--before the American Enterprise Institute which 
raised some troubling observations. In this speech, as it was 
reported, you said, and I quote, ``A judge will never be in a 
position to know what is in the national security interests of 
the country.''
    ``I tried to imagine myself being a judge. What do I know 
about what is going on in Afghanistan or Guantanamo? ''
    Now, the person who wrote the article opened it by saying, 
``Alberto Gonzales on Wednesday warned Federal judges not to 
meddle in cases involving national security following a string 
of judicial rebukes of the administration's antiterrorism 
initiatives.''
    An observer of your statement in that article would 
conclude that you have not only at the executive level forsaken 
cooperation with the legislative branch of our Government, you 
are now suggesting the judicial branch cannot be trusted when 
it comes to issues of national security.
    But it does not end there. Cully Stimson, the Assistant 
Secretary in the Department of Defense, took it a step further 
and questioned whether or not there was a right to counsel and 
raised the specter that if we allowed detainees to have an 
opportunity to be represented, it would mean that the cases 
would take longer and the desired result might not be attained.
    Now, Mr. Stimson, in fairness, apologized for his remarks 
yesterday. But step back for a moment, if you will, as an 
average American or someone observing America under these 
circumstances and say, well, this is just an effort to 
consolidate power in the executive branch of Government, to 
deny right to counsel, to deny judicial oversight because they 
cannot be up to the job, and not to involve Congress in 
creating commissions that might result in more due process.
    Can you understand how some could draw that conclusion from 
those three examples?
    Attorney General Gonzales. Thank you, Senator. Can I speak 
about my reaction?
    Senator Durbin. Of course.
    Attorney General Gonzales. Obviously, military commissions, 
you are right. We began the process several years ago 
believing, based upon previous precedent and tradition, that 
the President of the United States, relying upon the model in 
Quirin during World War II, could establish military 
commissions.
    The Supreme Court of the United States said no, that given 
the fact that Congress has spoken in this area, if the 
President wanted to use military commissions that differed from 
the procedures outlined by Congress, there would have to be a 
necessity for that and the President had not articulated such a 
necessity.
    And so because of that we went to the Congress and worked 
with the Congress to get a set of procedures for military 
commissions. I think that they reflect an agreement between the 
executive branch and the legislative branch to ensure that 
unlawful combatants who do not play by the rules, who are 
indiscriminately killing innocents, nonetheless are going to 
receive a fair trial as we bring them to justice.
    My speech to the American Enterprise Institute, I want to 
make sure you get a copy of it, because the focus of the speech 
was to put into context in my mind the appropriate role of the 
judiciary in our system of Government and that there really 
ought to be strong deference by the judicial branch not just to 
the executive branch but primarily to the Congress in terms of 
making policy decisions, particularly with respect to national 
security.
    You have the ability to have hearings and gather up 
information in deciding what is in the best interests of the 
country. We have embassies around the world. We have national 
intelligence agencies which gather up information. The Congress 
and the executive branch are in a much better place to 
determine what is in the national security interests of our 
country as opposed to the courts.
    Clearly, I am not saying that courts do not have a role in 
deciding legal issues relating to terrorism cases. That is 
their job. I just want to make sure that they are deciding the 
legal issues and not making policy decisions. That was the 
purpose of the speech that I gave yesterday.
    Finally, with respect to lawyers, I am already on record 
saying that we are supporting a process where lawyers will be 
made available in the trials at Guantanamo. My own sense is 
that they will be represented by the best counsel that is 
available. We will have good lawyers on our side. And that is 
the best way to ensure justice with respect to these trials.
    I do share your concern about our image around the world, 
and I think that there are some things we probably could have 
done better, could have done differently. And I think we have 
an obligation in the executive branch to try to do a better job 
and try to--I do not want to say rehabilitate ourselves, but 
give a better explanation of what we are doing.
    Senator Durbin. Well, Mr. Attorney General, in fairness to 
the President when asked about mistakes said Abu Ghraib was a 
mistake. He concedes, and I think we all do, that the treatment 
of detainees was a mistake.
    Now, let me ask you a specific question on that, though. 
When it comes to the mistreatment of detainees, we know the 
Defense Department has responsibility to judge the actions of 
military personnel. When it comes, however, to civilian 
personnel, whether we are talking about people who work for the 
CIA or other agencies, that is being handled by your 
Department.
    Attorney General Gonzales. That is correct.
    Senator Durbin. Attorney General Ashcroft several years ago 
transferred pending cases to the Eastern District of Virginia. 
Two and a half years since the transfer, there has not been a 
single indictment in any cases. While soldiers have been sent 
to prison for abuses of detainees, our Department of Justice 
has not prosecuted a single individual.
    Attorney General Gonzales. I think there was an individual 
name Basara who was, in fact, convicted. I am obviously aware 
of your very strong interest in this. We have responded with a 
letter sort of outlining--giving as much information as we can 
about the status of the investigations.
    Quite candidly, as the letter indicates, there are very 
difficult hurdles that we have to deal with, with respect to 
these kinds of prosecutions when you are talking about trying 
to prosecute a case that occurred--for activities that occurred 
in a war zone, for example. There are unique challenges. 
Nonetheless, we are committed to try to bring people to justice 
and--
    Senator Durbin. May I ask you about a specific instance?
    Attorney General Gonzales. Yes, sir.
    Senator Durbin. I know my time is up here, but the use of 
dogs in interrogation was part of specifically authorized 
activity by then-Defense Secretary Rumsfeld as well as Mr. 
Haynes, whose name has now been withdrawn for appointment to 
the circuit court.
    Can you assure us that none of the civilian cases under 
investigation by the Justice Department involve the use of 
techniques that were authorized by the administration and later 
abandoned as inconsistent with our opposition to torture and 
our adherence to Geneva Convention rules?
    Attorney General Gonzales. Well, Senator, I would be happy 
to go back and look at that before giving you that kind of 
assurances. But I know that our prosecutors understand that if, 
in fact, someone is engaged in conduct which violates the law, 
they are going to be prosecuted if we can make the case.
    Senator Durbin. But it has not happened. And you understand 
soldiers have gone to jail.
    Attorney General Gonzales. Yes, sir, I do understand.
    Senator Durbin. Men and women in uniform have gone to jail, 
and the average American has to step back and say, Wait a 
minute, why would you hold the soldiers to a high standard, 
imprison them and convict them, and then not find a civilian 
involved in similar conduct responsible as well?
    Attorney General Gonzales. Again, Senator, I think, you 
know, one is better than zero. I think there has been at least 
one. But these are difficult cases. We are committed to get to 
the bottom of it because you are correct.
    You know, it is one thing for us to say--you know, when 
people raise the possibility that the United States is involved 
in torture, what I say is, listen, the difference between the 
United States and a lot of other countries is that when there 
are allegations about mistreatment, there are investigations; 
and if people are not adhering to the legal standards, then 
they are held accountable.
    I know that is what the President expects of us. That is 
what I have asked of our prosecutors. I am not saying this is 
an excuse because there is no excuse for not prosecuting cases 
that should be prosecuted. These do present unique challenges 
for us, and I can commit to you that we will continue looking 
to see what cases can be brought, if, in fact, there are 
legitimate cases to bring.
    Senator Durbin. One last short question about letters that 
Senator Grassley raised. Last August, Senators Kennedy, 
Feingold, and myself sent a letter to the President and to your 
attention asking him to reconsider his decision to block the 
Office of Professional Responsibility from investigating 
Justice Department attorneys who approved the NSA program 
engaged in misconduct. Do you believe the OPR investigation 
should be permitted to go forward?
    Attorney General Gonzales. Senator, well, I mean, the 
President has made the decision as to whether or not they 
should be read into the program, which, of course, as announced 
yesterday by the President, will not be reauthorized.
    I can tell you that the IG, the Inspector General of the 
Department, is doing an investigation with respect to the FBI's 
role in this program.
    Senator Durbin. I just hope that you agree with me that Mr. 
Bradbury's confirmation should not go forward if he is still 
under investigation by the Office of Professional 
Responsibility.
    Attorney General Gonzales. Sir, I am not aware that he is 
under investigation by the Office of Professional 
Responsibility.
    Senator Durbin. I hope we can get an answer to our letter 
of last August.
    Attorney General Gonzales. Yes, sir.
    Senator Durbin. Thank you, Mr. Chairman.
    Chairman Leahy. I agree with the Senator from Illinois--
    Attorney General Gonzales. Senator, your microphone?
    Chairman Leahy. I am new at this. I agree with the Senator 
from Illinois. If there is such an investigation going on, we 
should know that, and I would want to know that definitively 
one way or the other before any confirmation hearing would be 
scheduled.
    I think that the Senator from Illinois asks a legitimate 
question. I think it is one that could be cleared up quickly 
one way or the other. I think that perhaps the best way would 
be to respond to me and to Senator Specter on that issue.
    We have also been joined by a new member of this Committee, 
Senator Sheldon Whitehouse from Rhode Island. Senator 
Whitehouse is a distinguished former Attorney General, and I 
appreciate very much his willingness to come on this Committee. 
He has already been extraordinarily helpful to the Committee in 
planning purposes. Senator Whitehouse, the floor is yours.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Attorney General, it is nice to see you. Thank you for 
being here. I would like to start with an observation in 
response to the colloquy between you and Senator Feinstein. As 
a former United States Attorney and somebody who as U.S. 
Attorney had very active investigations into public corruption 
in Rhode Island, I share a bit the concern of the removal of 
U.S. Attorneys under these circumstances.
    And in your response, you indicated that you would never do 
anything for, I think you said, political reasons, and you 
would certainly never do anything that would impede the ongoing 
investigation.
    I would suggest to you that in your analysis of what the 
Department's posture should be in these situations, you should 
also consider the potential chilling effect on other United 
States Attorneys when a United States Attorney who is involved 
in an ongoing public corruption case is removed from office.
    They are not easy cases to do technically, as you know. 
They are fraught with a lot of risk. And I think that U.S. 
Attorneys show a lot of courage when they proceed with those 
cases. And any signal that might be interpreted or 
misinterpreted as discouraging those kinds of activities I 
think is one you would want to be very, very careful about.
    So I would propose to you that that is a consideration you 
should have in mind as you make those removal and reappointment 
decisions.
    Attorney General Gonzales. It already is, but thank you, 
Senator. I appreciate that.
    Senator Whitehouse. The other question I have is--the 
Chairman has been good enough to suggest that he is new at 
this. I am really new at this, and I would like to start really 
right at the very, very beginning, and that is, with the nature 
of executive testimony before a congressional inquiry.
    You and I have both been in courtrooms and tried cases. We 
have both dealt with witnesses. And I have a pretty established 
set of expectations about what a witness is obliged to do.
    First, let me ask you, Has the Department ever provided 
formal advice to the executive branch as to the 
responsibilities and obligations that a member of the executive 
branch accept by testifying before Congress in a hearing?
    Attorney General Gonzales. If I understand your question, 
the Department is charged by regulation and by statute to 
provide legal advice to the executive branch. We have had one 
meeting at the Department in the last few months, I guess, with 
various individuals from other agencies to provide advice with 
respect to ensure better coordination and consultation with 
sharing information with the Congress. And I believe there has 
also been a series of sort of a smaller set of meetings with 
the same objective.
    Our advice is--I mean our role as a Department is to- -we 
are the counsel for the executive branch, and our role is to 
give advice, and that advice is for the purpose of ensuring 
that we are meeting our appropriate level of accommodation and 
consultation and coordination and cooperation with the 
Congress. Yes, sir.
    Senator Whitehouse. Have you published anything?
    Attorney General Gonzales. I have not published anything--
    Senator Whitehouse. Say a handout that you give to a 
witness that says, look, you are going up to testify before 
Congress, here are your responsibilities?
    Attorney General Gonzales. I do not know if there was a--I 
certainly read something. It is very much consistent with what 
I sent the Chairman. I sent the Chairman a letter last week in 
response to a request for information that he had made. We had 
sent back a response. It was one that disappointed him.
    Therefore, I sent back a response saying, well, let us get 
our staffs together and see if we can reach some kind of 
accommodation here. And, by the way, this is a set of 
principles that I intend to follow. They are a set of 
principles outlined in the letter from the Assistant Attorney 
General under Janet Reno to a gentleman named Linder. It goes 
through various categories in explaining--
    Senator Whitehouse. Rather than explaining it to me now, 
would you mind just sending me a copy and I can go on from 
there.
    Attorney General Gonzales. Yes, sir.
    Senator Whitehouse. Because there are other questions I 
want to followup on a little bit. First of all, do you think 
whether a witness is sworn or not makes a difference in what 
their obligations are when they are the witness before a 
congressional hearing?
    Attorney General Gonzales. Well, it certainly would not 
matter to me in terms of the answer that I would provide. I 
think there are statutes that would make it a crime in any 
event, even if you were not sworn in.
    And so I think that the repercussions--the legal 
ramifications of being sworn in or not being sworn in, I think 
they are the same. There are statutes that would kick in 
whether or not you are sworn in or not.
    Senator Whitehouse. And if obviously we are aware that if 
somebody comes and provides an affirmative untruth or falsehood 
to a congressional committee, there are consequences from that.
    Moving on to the next step, we have all been in courtrooms 
where witnesses engage in what you might call the old ``bob and 
weave'' and simply did not answer the question, and whether it 
is the exalted United States District Courts right down to the 
District Court in Rhode Island, administrative law judges all 
over Government, when a lawyer has a witness and is asking 
questions, if the witness is dodging the question, there comes 
a point where the lawyer is entitled to ask the judge to direct 
the witness to answer the question.
    Is there any such authority that you believe exists in 
Congress to penetrate the ``bob and weave'' if it is happening 
that is akin to what you and I as lawyers have experienced in 
the courtroom when finally a properly propounded question that 
is not being fairly answered, you can kind of cut to the chase 
and get an answer?
    Attorney General Gonzales. Sir, I do not know what that 
would be. Obviously, there are times where it is difficult to 
give the kind of response that a question may seek to solicit. 
It may be that for reasons of national security--
    Senator Whitehouse. Well, let us assume for a minute that 
it is not Executive privilege, it is not Fifth Amendment 
privilege, it is not national security. My hypothetical is that 
the question is simply being avoided, and we have all--
    Attorney General Gonzales. It may be embarrassing or 
something.
    Senator Whitehouse.--encountered witnesses who are capable 
of doing that in court proceedings all our lives. And I do not 
think it is going to stop just because I am a Member of 
Congress now that people are evasive about questions. Do you 
think the Chairman has the authority to direct a witness to 
answer?
    Attorney General Gonzales. I think the Chairman has a great 
deal of authority, and I think what would normally happen in 
that kind of situation is that there would be discussions, if 
not between the Chairman and the witness, perhaps between the 
individual Senator and the witness. It may not occur at during 
the hearing, but the fact that, for example, during our 
exchange you may not get an answer that you are satisfied with.
    My obligation, I think, to communicate and consult with the 
Congress does not end when this hearing ends, and so if you are 
unsatisfied with the answer to a question, I think you and I 
should have additional discussions, quite frankly. And we will 
figure out whether or not we can give you the answer that would 
satisfy you in terms of--I mean, a responsive answer.
    Senator Whitehouse. I appreciate your sharing with me your 
sense of those ground rules, and thank you, Mr. Chairman.
    Chairman Leahy. Thank you. Let me just wrap on this.
    In the wake of Hurricane Katrina, New Orleans has seen a 
particularly painful surge in crime. I base this just on what I 
see in the news. It is recovering from the devastation of the 
hurricane. The recovery effort was too little, too late.
    Without going into the catalogue of things that went wrong, 
the fact is you now have a wave of violent crime that makes 
it--it would make it difficult for any city to get back on its 
feet, but certainly for a city in the State of Louisiana, it is 
especially difficult.
    I know Senator Landrieu, the senior Senator from Louisiana, 
has proposed a plan, a 10-point plan, to crack down on crime in 
New Orleans. It is going to require a lot of new Federal 
manpower and resources.
    Will you work with Senator Landrieu to make sure that 
anything that could be available from the Federal Government is 
available in that devastated area?
    Attorney General Gonzales. I am reminded that I am speaking 
to Senator Landrieu tomorrow. Senator, there are some serious 
issues, particularly in law enforcement, in New Orleans. I 
think we have done a lot as a Department. I am happy to sit 
down with Senator Landrieu and see what else we can do. I am 
aware of the challenges that currently exist and still exist in 
Louisiana.
    Chairman Leahy. And I am not sitting here suggesting I have 
got an automatic road map of how to make it better. It is going 
to be very, very difficult. You have got criminal matters, 
social matters, reconstruction matters.
    But that city--none of us have experienced in our homes 
anything that devastating, and I think as a country, just as we 
banded together as a country for earthquake victims and flood 
victims and fire victims in other parts of the Nation, that is 
the benefit of a nation like ours. And I would urge you to do 
whatever you can do to help down there, and if there is 
anything I can do, I will add to that.
    Attorney General Gonzales. Senator, the President has been 
very clear in terms of our obligation to try to do what we can 
do to be helpful to the locals.
    Chairman Leahy. And Senator Durbin has already raised this 
issue about Cully Stimson. I cannot tell you how angry I was 
that here he is the Assistant Secretary in charge of detainee 
affairs at the Department of Defense, condemning lawyers for 
donating their legal services. I was a defense attorney before 
I was a prosecutor.
    One of the things I knew very well: your best chance of 
getting justice done is you have a very good lawyer for the 
prosecution and a very good lawyer for the defense, and then 
things work well.
    I think it was outrageous. I was glad to hear what you said 
here today. I am going to put into the record a letter from the 
deans from several prominent law schools who tried to teach 
young lawyers the value of pro bono. And I went to--I was at a 
law firm initially with a very--the senior partner was a very 
conservative Republican. I think I was about the second 
Democrat in 30 years ever to be put in there. And he pounded 
home to everybody that you did pro bono work or you did not 
serve in his law firm. I will put that in the record.
    But, you know, even Mr. Stimson's apology, if I might say, 
I thought was very much too little, too late. His comments were 
so carefully timed to coincide with a broadside and the right 
to counsel and an op-ed piece published in the Wall Street 
Journal.
    Am I correct in assuming that you feel very strongly that 
there should be adequate counsel on both sides in any of these 
issues?
    Attorney General Gonzales. Certainly, Senator, with respect 
to the trials going on at Guantanamo, our whole structure is 
focused on adversary proceeding where we will be--the United 
States will be well represented and I am sure the detainees 
will be well represented as well.
    Chairman Leahy. Let us not condemn those lawyers. They are 
very, very good lawyers, many of whom are doing it at great 
person cost to themselves, who want to stand in and make sure 
rights are handled. They deserve our praise for doing it.
    Now, I hope the disagreements today do not totally obscure 
my desire to work with you and make the Department of Justice a 
better defender of our rights, our constitutional rights.
    Even when I was a law school student, I remember being 
invited with a dozen other students to go and meet with the 
then-Attorney General of the United States, Robert Kennedy. We 
thought it was going to be a grip-and-grin. It turned out to be 
at least a couple hours.
    I have never forgotten that meeting. Never forgotten that 
meeting. Some of us went on to be prosecutors, some defense 
attorneys, some judges out of that dozen. All of us were 
inspired by his commitment that the Department of Justice 
defends everybody's rights.
    Now, working with Senator Specter and Senator Kennedy and 
others in a bipartisan way, I hope we can enact fair and 
comprehensive immigration reform. I have had, along with 
others, long talks with the President who says he wants a 
comprehensive immigration reform.
    I realize the talking points got way down the line during 
last fall's elections. We do not have elections this year. If 
we are going to have comprehensive immigration reform, it is 
going to require every one of us to leave our political labels 
at the door and work together.
    The same with rising violent crime. Many will say we have 
got to put money into police forces in Iraq, and that may well 
be. I am not here to debate that. But I do think we have to do 
more Federal assistance, State and local law enforcement 
partners. I have seen how well it works.
    Attorney General Gonzales. Mr. Chairman, as you--
    Chairman Leahy. And, you know, those are just some of the 
areas that I think that we have to provide more to our U.S. 
Attorneys around the country. They are on the front lines.
    We have some of the most--and this has been true with most 
administrations--some of the best men and women you can imagine 
working there. And I admire what they are doing. I believe 
Senator Whitehouse is a former U.S. Attorney, and we know how 
difficult that is.
    So let us find those areas where we can work together. We 
will still lock horns in a number of areas, as we have in the 
past. But there are so many areas for the good of this country 
that this Committee and your office have got to work together.
    Attorney General Gonzales. I agree. Thank you, Mr. 
Chairman.
    Chairman Leahy. Thank you.
    We stand adjourned.
    [Whereupon, at 2:31 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
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