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26–915 PDF







APRIL 6, 2006

Serial No. 109–137

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov

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F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California

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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel


APRIL 6, 2006

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    The Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Committee on the Judiciary

    The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary


The Honorable Alberto R. Gonzales, Attorney General, U.S. Department of Justice, Washington, DC
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Responses to Post-Hearing Questions for the Record posed to Attorney General Gonzales

    The Washington Post News Article ''Civil Rights Focus Shifts Roils Staff at Justice,'' dated November 13, 2005

    Letter from the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
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House of Representatives,
Committee on the Judiciary,
Washington, DC.

    The Committee met, pursuant to notice, at 9:03 a.m., in Room 2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr., (Chairman of the Committee) presiding.

    Chairman SENSENBRENNER. The Committee will be in order. A quorum for the taking of testimony is present.

    Before swearing in the Attorney General and allowing him to make his opening statement, I would like to talk a little bit about the ground rules for today's hearing.

    The Attorney General's schedule allows him to be here until 3 p.m. It is the Chair's intention to have his opening statement first, and then the Chair will recognize Members alternately by side in the order in which they appear. The Chair intends to enforce the 5-minute rule strictly, meaning that the Member who has the time will be able to complete the question and the Attorney General will be able to answer the question when the red light goes on. But the Chair will, at the conclusion of the Attorney General's answer, recognize the next person in line.
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    The Chair also intends that when we have the votes sometime around 11:30 to recess the Committee until 15 minutes after the last of the rolled votes. So I would strongly encourage Members and staff, if they wish to have lunch, to utilize that time for that purpose.

    If everybody has asked questions, we will go on a second round of questions, again, strictly enforcing the 5-minute rule, and I will use the list of Members in the order in which they showed up at the beginning of the hearing to recognize Members in the order in which they've received. So—or appeared. So if you wish to have a second round of questions, it would behoove you to return promptly when the hearing resumes, because if you are not there, you will fall to the bottom of the list.

    Are there any questions about this procedure? If there are not any questions, today we welcome again Attorney General Alberto Gonzales to appear before the Committee. This is a general hearing on the operations of the Justice Department, and, Mr. Attorney General, would you please stand, raise your right hand, and take the oath?

    [Witness sworn.]

    Chairman SENSENBRENNER. Let the record show the witness answered in the affirmative.

    Mr. Attorney General, the floor is yours.

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    Attorney General GONZALES. Good morning, Chairman Sensenbrenner, Ranking Member Conyers, and Members of the Committee. I appreciate this opportunity to discuss a number of issues that are of vital importance to Congress, the Justice Department, and the American people.

    When I reflect on the 14 months that I have served as Attorney General and the countless ways the Department impacts lives across this great Nation, I am reminded that we have a unique responsibility as stewards of the American dream, the dream of living and prospering in a safe, secure, and hopeful society.

    Our record in securing this dream I believe is strong. We have not suffered another terrorist attack here at home, and our Nation's violent crime rate is at its lowest level in more than three decades.

    But now we have to do more. To guide the work of the Department, I have established priorities rooted in the pursuit of the American dream: fight terrorism; combat violent crime, cyber crime, and drug trafficking; protect civil rights; and preserve Government and corporate integrity.

    In each of these six areas of special emphasis, we have a plan to secure the hopes and the opportunities and the cherished values that make our country great.

    First, on terrorism, our top priority. The terrorists seek to destroy the American promise of liberty and prosperity, and they are determined to attack us again here at home. Thank you for your multi-year effort to reauthorize the PATRIOT Act. It was a tough process, but an important one.
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    We continue to work to prevent another terrorist attack by prosecuting those who might harm Americans. This fight is not easy. Terrorism cases are some of the most difficult to investigate and prosecute, so we have had to adapt our efforts to a new world of changing techniques and technologies. This cutting-edge work has led to many successes.

    Last week, Ahmed Omar Abu Ali was sentenced to 30 years in prison for providing support to al-Qaeda, conspiring to assassinate President Bush, and conspiring to hijack and destroy commercial airplanes in an attack similar to the attacks of September 11, 2001. This terrorist will now be behind bars in a Federal prison where he can't harm American citizens.

    He joins others that the Department has removed from society, such as Richard Reid, the so-called shoe bomber; John Walker Lindh, the American Taliban; and members of the Virginia Jihad Network.

    We've broken up terrorist cells in Portland, Oregon, Brooklyn, and Buffalo, New York, and recently charged three men in Toledo, Ohio, with conspiring to provide material support to terrorists and conspiring to commit acts of terrorism against individuals overseas, including U.S. military personnel serving in Iraq.

    In addition, as you know, the Justice Department has been authorized to stand up a National Security Division. This will bring under one umbrella the Department's primary national security elements, and this fulfills a key recommendation of the WMD Commission. It's another step in eliminating the infamous wall between our intelligence and law enforcement teams.

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    In addition to our ongoing fight against terrorism, the Justice Department continues to focus on five strategic priorities with a targeted agenda focused on producing results. I thought I would give you a sense of those results just over the past few weeks. Every American deserves to live free from the fear of violent crime. We remain focused on reducing gun crime and liberating communities from the stranglehold of gang violence.

    We are reducing gun crime across the country through the President's Project Safe Neighborhoods program. The numbers show that this initiative has been very successful. That is probably why most U.S. Attorneys across the country have started to use their PSN programs to target violent gangs operating in their districts.

    We have responded with a comprehensive anti-gang strategy that uses the successful PSN model to shut down violent gangs that terrorize our streets, our neighborhoods. Nationwide, the strategy focuses on prevention, prosecution, and preparing prisoners for a return to society.

    As part of that effort, I was in Los Angeles last week to announce that L.A. is one of six areas that will participate in a pilot project to target anti-gang resources in new and imaginative ways.

    In addition to L.A., this program will provide $2.5 million to implement innovative anti-gang solutions in Cleveland, Dallas-Fort Worth, Milwaukee, Tampa, and a gang corridor that stretches from Easton to Lancaster, Pennsylvania, near Philadelphia.

    When we talk about violence, especially keeping our children safe, we often fear what can happen as they walk to school or play on a ball field. But recent headlines have reminded us that our children also can log onto the Internet and open themselves to new and hidden threats. The Internet must be safe for all Americans, especially children.
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    I recently announced a major new initiative: Project Safe Childhood. The goal of this project is to prevent the exploitation of our kids over the Internet, to clean up this new neighborhood just as we've worked to reduce gun crime on our city streets.

    U.S. Attorneys in every district will partner with local Internet Crimes Against Children Task Forces and community leaders to develop a strategic plan based on the particular needs of their communities. They will then share resources and information to investigate and prosecute more sexual predators and child pornographers than ever before. And they will coordinate in seeking the stiffest penalties possible.

    Two weeks ago, I announced the indictments of 27 people for allegedly participating in a pornographic chat room called ''Kiddypics and Kiddyvids.'' Some participants of the chat room have been charged with using minors to produce images of child pornography and then making those images, including a live show of an adult sexually molesting an infant, available to other members through the Internet.

    The Project Safe Childhood initiative will help us target this kind of horrific behavior and prosecute individuals who harm our children.

    Even as advanced technologies help cultivate new dreams, too often those dreams are wiped out by the pitfalls of illegal drug abuse.

    No community will fully prosper if drug abuse is rampant. And that's why we will continue to dedicate ourselves to dismantling drug-trafficking organizations and stopping the spread of illegal drugs.
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    Just last week, I announced the largest narcotics-trafficking indictment in our history. Fifty members of the Colombian narco-terrorist group FARC have been indicted for allegedly importing more than $25 billion worth of cocaine into the United States and other countries. The FARC is responsible for overseeing the prosecution of more than 60 percent of the cocaine imported into the United States.

    Several FARC members appear on the Justice Department's Consolidated Priority Organization Target, or CPOT, List, which identifies the most dangerous international drug-trafficking organizations. The list was created at the beginning of the Administration to ensure that drug enforcement resources were directed in the most productive fashion possible, and last year, we dismantled six of these CPOT organizations and disrupted the operations of six more.

    We're also continuing and expanding our work to combat the spread of methamphetamine across the Nation. Thank you for passing the Combat Methamphetamine Epidemic Act which provides law enforcement with additional tools to disrupt the production and trafficking of meth.

    Law enforcement has done a good job of shutting down small meth labs here in the United States. We need to do more. Also, production continues in ''super labs'' outside of our borders, especially in Mexico, and the finished product comes back to the United States through illegal drug-trafficking routes. We are working with our counterparts in Mexico to address the production and trafficking of methamphetamine, including providing training and equipment to law enforcement teams across the border.

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    Forty years ago, the color of your skin was as much of an obstacle to the American dream as violent gangs, sexual predators, and drug dealers are today. We've come a long way from that brand of State-sponsored racism, but we must continue to safeguard the civil rights that are fundamental to the opportunities that we cherish in this country.

    All Americans should have the same chance to pursue their dreams. We will continue to aggressively combat discrimination wherever it is found, and I am pleased that the Department prosecuted a record number of criminal civil rights cases in the last 2 years.

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

    We are, of course, also anxious to renew our commitment to the fundamental right to vote by working with Congress to reauthorize the Voting Rights Act.

    Lastly, human trafficking has emerged as one of the foremost civil rights issues of our day. Three weeks ago, I was in Chicago to announce the release of a report detailing the Justice Department's efforts to halt this pernicious evil. There is no place in our compassionate society for these peddlers of broken dreams. President Bush has pledged his support for this effort, and I have made it a high priority at the Justice Department.

    Millions of people come to America every year to pursue the American dream because of the rights and liberties we've guaranteed for generations. And our Government and our economy are the envy of billions more because we have systems that are open, honest, fair, and dependable.
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    Integrity in Government and business is essential for a strong America. Taxpayers and investors deserve nothing less. And that's why we will investigate and prosecute corruption wherever we find it, and we will preserve the integrity of our public institutions and corporations.

    This list of priorities, of course, is not exclusive. We have other responsibilities that are no less important to the American dream.

    For instance, enforcing our immigration laws will help us remain an open and welcoming society, by cracking down on illegal activity and closing our borders to criminals and terrorists. The President has called for comprehensive immigration reform policy that is based upon law and reflects our deep desire to be a compassionate and decent Nation. I join him in urging Congress to take action that makes sense for everyone in America.

    And a tough and fair sentencing system will give teeth to our enforcement objectives, improve our deterrence efforts, and ensure that every American is treated fairly before the bar of justice.

    Before the Supreme Court's decision in United States v. Booker, the Sentencing Reform Act and the mandatory Sentencing Guidelines were designed to generate similar sentences for defendants who commit similar crimes and have similar criminal records. There is a clear danger that the gains that we have made in reducing crime and achieving fair and consistent sentencing will be significantly compromised if mandatory sentencing laws are not reinstituted in the Federal criminal justice system.
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    In these strategic areas, and many more, we are working hard to protect and preserve the American dream. Crime is down. Drug use is declining. Our Nation is more secure today than ever before. We can, of course, all be proud but not complacent.

    I appreciate your partnership as we strive to build upon the vital role of the Justice Department in securing this dream for future generations. Thank you, Mr. Chairman.

    [The prepared statement of Attorney General Gonzales follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

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

    The Chair recognizes himself for 5 minutes for questions.

    Mr. Attorney General, in early February I sent to you an oversight letter requesting detailed information on the NSA terrorist surveillance program. The Department's response has provided much substantive information on the legal basis for the program; however, there was one question at the center of this Committee's jurisdiction over the program that was not answered adequately. This question related to the legal debate preceding the implementation of this program and was prompted by reports that some high-level officials involved in the discussion over the legality of the program who did not agree with its legal basis.
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    Your response in the letter was, ''The President sought and received the advice of lawyers in the Department of Justice an elsewhere before the program was authorized and implemented. The program was first authorized and implemented in October 2001.''

    I would like to ask you the question again today, Mr. Attorney General, so hopefully you can provide a more complete answer, and there are five parts to the question.

    First, please explain how the proposal for the program was reviewed before it was authorized and initiated.

    Second, who was included in this review prior to the program going into effect?

    Third, what was the timeline of discussions that took place?

    Fourth, when was the program authorized?

    And, fifth, was the program implemented in any capacity before receiving legal approval?

    Thank you.

    Attorney General GONZALES. Mr. Chairman, I don't know that I have all parts of your question. What I can say is——
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    Chairman SENSENBRENNER. I can help you if you have forgotten.

    Attorney General GONZALES. The program was not implemented before the President received legal advice regarding the scope of his authority to authorize this kind of program. The program was authorized by the President in October of 2001. Mr. Chairman, the program implicates some very tough legal issues. It implicates the requirements of the fourth amendment. It implicates FISA, which is a very complicated statute, the Foreign Intelligence Surveillance Act. It implicates the Authorization to Use Military Force. And it implicates the President's inherent authority as Commander-in-Chief.

    And when you have these kinds of issues to be discussed and analyzed by lawyers, you are going to have good, healthy debate. We encourage good, healthy debate about tough issues. That is how you get to the right answers.

    What I can say is that there was a great deal of debate and discussion about the program. The disagreement—and there were some disagreements. Some of the disagreements have been the subject of some newspaper publications. What I have testified before the Senate Judiciary Committee was that the disagreements that have been the subject of newspaper stories did not relate to the program that the President disclosed to the public in his radio address in December of 2005. It related to something else. And I can't get into that, Mr. Chairman.

    Chairman SENSENBRENNER. One of the questions that was asked was who was included in the review prior to the program being authorized.
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    Attorney General GONZALES. Mr. Chairman, who is read into the program is a classified matter so I can't get into specific discussions about specifically who was involved in reviewing the legal authorities for the President of the United States in authorizing this program. What I can say is that lawyers throughout the Administration were involved in providing legal advice to the President.

    Chairman SENSENBRENNER. Mr. Attorney General, how can we discharge our oversight responsibilities if every time we ask a pointed question we are told that the answer is classified? Congress has an inherent constitutional responsibility to do oversight. We are attempting to discharge those responsibilities, and I think that saying how the review was done and who did the review is classified is stonewalling. And if we are properly to determine whether or not the program was legal and funded—because that's Congress' responsibility—we need to have answers. And we're not getting them.

    Attorney General GONZALES. Respectfully, Mr. Chairman, our basis, our analysis of the legality of the program is reflected in the 42-page White Paper that was provided to the Congress. Irrespective of who was involved in preparing that analysis, that analysis represents——

    Chairman SENSENBRENNER. Respectfully, Mr. Attorney General, that's your White Paper. We read the White Paper. We have legitimate oversight questions, and we're told it's classified, so we can't get to the bottom of this. Maybe there ought to be some declassification involved.

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    The gentleman from Michigan, Mr. Conyers, has an opening statement first, and then I'll recognize him for 5 minutes.

    Mr. CONYERS. Thank you, Mr. Chairman, and welcome, Mr. Attorney General.

    As we meet today, I believe our Nation is on the verge of a full-blown constitutional crisis. Time and time again, when confronted with matters involving balancing the rights and liberties, the Bush administration has opted not only to intrude on those liberties, but to do so in secret and outside the purview of the courts and the Congress.

    Those of us who raise these issues and voice these concerns don't do so because we want to coddle terrorists or criminals. The opposite. We do so because we have a historic and legitimate concern regarding the misuse and abuse of Government powers; not only under the PATRIOT Act but an entire array of unilateral authorities have been assumed, in my view, by the Administration since September 11.

    When the Justice Department detains and verbally and physically abuses thousands of immigrants without time limit, for unknown and unspecified reasons targets tens of thousands of Arab Americans for intensive interrogations, we see a Department that has, in effect, institutionally racial and ethnic profiling, without the benefit of even yielding a single terrorism conviction.

    When the President of the United States can take upon himself to label United States citizens as enemy combatants without trial, a lawyer, charges, or access to the outside world, some of us see an Executive branch that has placed itself in the constitutionally untenable position of prosecutor, judge, and jury. When our own Government not only condones the torture of prisoners at home and abroad and when we permit the monitoring of religious sites and mosques without any indication of criminal activity, we undermine our role as a beacon of democracy and make it much easier for other nations themselves to flaunt international law and human rights.
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    When Congress can pass laws that the President can sign on one hand and then argue does not apply to him on the other hand, we see an Executive that has cast aside the principle of separation of powers, the very bedrock on which our Nation was built.

    There is no better illustration of the constitutional crisis we are in today than the fact that the President is openly violating our Nation's laws by authorizing the National Security Agency to engage in warrantless surveillance of United States citizens, and with all due respect, sir, the Department has made the situation worse by virtue of a series of far-fetched and constitutionally dangerous, after-the-fact legal justifications that you have proffered.

    Who can seriously expect Members of Congress to believe that the use of force resolution that was authorized included domestic surveillance? When you yourself admitted, and I quote, ''It would have been difficult, if not impossible''—in quotations—''to amend FISA to provide the wiretap authority.''

    In terms of inherent constitutional authority, if the Supreme Court didn't let President Truman use his authority to take over the steel mills during the Korean War in 1952 and wouldn't let President Bush in 2005 use the authority to indefinitely hold enemy combatants, it is hard to credibly argue that the Court would permit unauthorized domestic spying today.

    Every Member of this panel wants the Justice Department to listen in on communications by terrorists. That's why we created a special FISA Court and created, in addition, a 72-hour emergency exception to it and made literally dozens of changes to FISA at your request over the last 5 years. But don't tell us that you don't have resources to protect our citizens privacy by completing the FISA paperwork, not when you have a budget of more than $22 billion and 112,000 employees at your disposal.
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    And, finally, Mr. Attorney General, if we are truly interested in combatting terror in the 21st century, we must move beyond symbolic gestures and color-coded threat levels and begin to make the hard choices needed to protect our great Nation. Let me suggest that if we really want to prevent terrorists from targeting our cities and our citizens, we need to stand up to the gun lobby and keep guns out of the hands of suspected terrorists. If we really want to prevent bombings like those which have devastated London and Madrid, we need to challenge the explosives industry to help us regulate sales of black and smokeless powder. If we want to protect our ports, our trains and railroads, and other easy terrorist targets, we need to stop passing new tax cuts for the wealthy and start fully funding our homeland security needs and effectuate all of the 9/11 Commission's recommendations.

    The reasons the terrorists hate us is because we respect the rights and liberties of all our citizens and cherish the rule of law. If we really want to defeat the terrorists, we should support and honor these strengths, not cast them aside. When we disobey our own laws, when our Executive branch ignores Congress and thumbs its nose at the courts, which we've seen in this domestic spying program, and time and time again over the last 5 years, we not only make our Nation less free, we make it less safe.

    Thank you, Mr. Chairman.

    Chairman SENSENBRENNER. Does the gentleman want 5 more minutes now?

    Mr. CONYERS. I would like to invite the distinguished Attorney General——
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    Chairman SENSENBRENNER. The gentleman is recognized for 5——

    Mr. CONYERS [continuing]. To make any responses that he would like.

    Chairman SENSENBRENNER. The Attorney General is recognized.

    Mr. CONYERS. Thank you very much.

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

    Attorney General GONZALES. Thank you, Congressman. I, unfortunately, have much disagreement with what you said, but I hope today that we have the opportunity to have an open dialogue and discussion, not just with you but other Members of the Committee.

    I do not think that we are thumbing our nose at the Congress, at the courts. With respect to the terrorist surveillance program, we do believe that the Authorization to Use Military Force is an example of Congress providing authority, providing input into what the President should do in responding to this threat.

    Now, we have to remember—I've heard some Members say, ''I never envisioned that I was authorizing electronic surveillance when I authorized the President to use all necessary and appropriate force.'' The Supreme Court in Hamdi, the plurality, written by Justice O'Connor and then, of course, the fifth vote to be provided by Justice Thomas, interpreted those words to mean that what the Congress authorized was all those activities that are fundamentally incident to waging war. That's what the Congress authorized when it used those words, ''fundamentally incident to waging war,'' all activities that are fundamentally incident. This is what you've authorized. And in the Hamdi decision, the Court said, therefore, you've also authorized the detention of an American citizen. Even though the authorization never used those words, ''detention,'' Justice O'Connor said, ''It is of no moment''—those were her words. ''It is of no moment that we use those words.'' Congress has authorized the detention of an American citizen captured on the battlefield fighting against America because detaining the enemy captured on the battlefield is a fundamental incident to waging war.
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    We submit, sir, that the electronic surveillance of the enemy during a time of war is also fundamentally incident to waging war. It is an activity that was conducted by Washington during the Revolutionary War, by President Lincoln during the Civil War, by President Wilson during World War I, by President Roosevelt during World War II. It is fundamentally incident to waging war, and, therefore, we believe that when Congress used those words, ''all necessary and appropriate force,'' that it authorized the President to engage in electronic surveillance.

    Mr. CONYERS. All right. Let me ask you one other question. Please indicate on the record since the beginning of the Bush administration our Government has engaged—whether our Government has engaged in any domestic warrantless surveillance outside of the emergency surveillance provisions of FISA and outside of the so-called terrorist surveillance program.

    Attorney General GONZALES. Well, of course, Congressman, the United States Government is engaged in surveillance under three baskets: one under Executive Order 12333, which is classified. It has been fully briefed to the Intel Committee. There are procedures governing the collection of electronic surveillance, and that also has been fully briefed to the Intel Committee. Collection is also under FISA. And collection under the terrorist surveillance program. Those are the ways that colleague of electronic surveillance is ongoing today, as I understand it, to my knowledge.

    Mr. CONYERS. And that is the extent of the surveillance that is going on.
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    Attorney General GONZALES. Again, I can only comment as to what the President has confirmed and as to 12333 and as to collection under FISA.

    Mr. CONYERS. Well, let me try for one other question here within our time. Numerous members of the Bush administration, including the Vice President and General Hayden, have asserted that had warrantless surveillance been in place before September 11, the attack could have been avoided. Given what the 9/11 Commission has reported about this event and the FBI Agent Sametz's recent testimony regarding the disarray at the FBI, do you support their assertions, those of the Vice President and General Hayden?

    Attorney General GONZALES. I've got, of course, a great deal of respect for General Hayden and for the Vice President. I'm not going to dispute their assertion.

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

    Chairman SENSENBRENNER. The gentleman from Florida, Mr. Keller.

    Mr. KELLER. Thank you, Mr. Chairman, and thank you, Mr. Attorney General, for coming before us today. You've just testified that you think we must enforce our immigration laws, and on March 25, President Bush in his radio address mirrored your comments. He said, ''To keep the promise of America, we must enforce the laws of America.''

    I want to talk to you about one of the most important laws we have on the books in terms of illegal immigration, and that is the law dealing with smuggling illegal aliens into the U.S. for financial gain. As you know, that's a felony and it's punishable by a minimum of 3 years in prison under Title VIII U.S. Code Section 1324, which I am holding up.
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    I want to tell you something which you may not be aware of. I recently spent a full week on the Mexican-California border riding around with Border Patrol agents. I was with them 2:00, 3 in the morning as they arrested various illegal aliens and smugglers, which are also known as ''coyotes.'' I learned some things from these Border Patrol agents directly that I want to relay to you.

    These coyotes get approximately $1,500 per person that they illegally smuggle into the U.S. The Border Patrol agents told me that they have arrested some of these alien smugglers between 20 and 30 times. They tell me that the U.S. Attorney in San Diego for the Southern District of California, Carol Lam, has repeatedly refused to prosecute them, that the prosecutions have been slashed dramatically, that under the guidelines and practice of this U.S. Attorney, the only way you're really going to see a prosecution is if someone dies in the transport of the illegal aliens or if one of these alien smugglers attempts to run over someone going through a port.

    One example is Antonio Amparo Lopez, who has been arrested for alien smuggling for financial gain. He has been arrested more than 20 times. He has a long criminal history. The U.S. Attorney has refused to prosecute this attorney—this alien smuggler.

    It's a concern not only to me. Congressman Darrell Issa has been leading the charge on this issue. It's a concern to him. Chairman Jim Sensenbrenner has raised concerns about it. Chairman Duncan Hunter has raised concerns. Nineteen members of the Republican California delegation wrote to you and President Bush on October 20 of 2005.

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    The morale is so bad among these Border Patrol agents that I show you a photograph that they call the ''Wall of Shame.'' It has pictures of over 200 coyotes that have been arrested by the Border Patrol agents in the Southern District of California who this U.S. Attorney has repeatedly failed to prosecute.

    Here's some straight talk. The pathetic failure of your U.S. Attorney in San Diego to prosecute alien smugglers who've been arrested 20 times is a demoralizing slap in the face to Border Patrol agents who risk their lives every day. It also undermines the credibility that you and President Bush have when you talk tough about enforcing the laws, and it renders meaningless the laws this Congress passes to crack down on alien smugglers.

    Now, as you might imagine, there is a defense that this U.S. Attorney raises. She and her assistant say, ''Well, we just don't have the resources to prosecute these coyotes. We have to focus on other priorities.''

    Well, this U.S. Attorney has 120 U.S. Attorneys working for her, and so I wondered what they are spending their time prosecuting since this isn't a priority. And I have in my hand a press release that U.S. Attorney Lam sent out recently on March 22, 2006, bragging that they have successfully prosecuted someone who sold a baseball card with Mark McGwire's picture on it, even though there was a forged signature of the famous slugger. And if I were Attorney General for a day, I would probably call up the U.S. Attorney in San Diego and say, ''Here's a tip. Stop worrying about baseball cards and start worrying about our national security and enforcing our laws.''

    Now, my criticism isn't personal to you or President Bush. I have very high regard for both of you. Very high regard. But my questions are two, and then I'm going to shut up and give you the chance to respond.
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    Question number one: What, if anything, will you do to see that the U.S. Attorney in San Diego prosecutes those alien smugglers, at least those who have been repeatedly arrested by Border Patrol agents?

    And, second, what resources, if any, do you need from this Congress to give to you to make sure these coyotes are prosecuted and that our laws are actually enforced?

    Chairman SENSENBRENNER. Mr. Attorney General?

    Attorney General GONZALES. Yes, thank you, Congressman. The enforcement of our immigration laws is important to the President. It is important to me. I am aware of what you're talking about with respect to the San Diego situation, and we are looking into it. We're asking all U.S. Attorneys, particularly those on our Southern borders, to do more, quite frankly. We need to be doing more.

    There is quite a challenge to some of our officers on the border. There are five U.S. Attorney districts that handle a great number of the immigration-related prosecutions, and so it is a tremendous strain and burden. But I think we have an obligation to determine the scope of the problem and to see what we need to address the problem. There are two things that would be helpful.

    One is we hope that the Congress fully funds what the President has asked for in terms of monies for our U.S. Attorneys. That'll be very, very important so that we can have the resources available to prosecute these kinds of cases.
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    Two, the U.S. Attorneys along the Southern border tell me that the existing law regarding alien smugglers could be tighter. There is a discussion and debate now about what that language should be. No one wants to prosecute those who are engaged in Good Samaritan activities. Obviously, that's not—that should not be criminalized. But we believe that the language could be tighter; that would make it easier to achieve prosecutions. And we look forward to working with the Congress to arrive at language that would help us achieve that.

    I directed my staff to schedule a meeting with the members of the California delegation and the DAG. I intend to call Congressman Issa as well to talk to him about this issue because I was made aware of this as a big priority for the Congressman. And we are looking at the situation in San Diego, and we are directing that our U.S. Attorneys do more, because, you're right, if people are coming across the border repeatedly, particularly those who are coyotes and they're smugglers or they're criminals or felons, they ought to be prosecuted. And so we need to try to figure out to make our resources work so that that can happen.

    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentleman from California, Mr. Schiff.

    Mr. SCHIFF. Mr. General, welcome to the hearing today. I appreciate all the time you're going to be spending with the Committee.

    My question is really the same question that the Chairman posed at the outset, and that is, how can we discharge our oversight responsibilities given some of the positions that the Justice Department has taken in terms of the information provided to us? But let me give a little more content to the specific questions I have.
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    A year ago, you testified before the Committee urging Congress to reauthorize the PATRIOT bill. You discussed at length how important, crucial, various activities and authorities were to our national security. These included provisions relating to wiretapping and other electronic surveillance.

    You went at great length to describe the safeguards that were in place. For example, in discussing multi-point wiretaps, you stated that the provision ''contains ample safeguards to protect the privacy of innocent Americans.'' In addition, you stressed the fact that an independent court had to find probable cause to believe that the target was either a foreign power or a foreign agent. And, finally, you argued that the Federaly courts have found these authorities consistent with the fourth amendment.

    You also discussed how other sections might implicate personal records of Americans and also had specific language designed to protect first amendment rights of Americans.

    You concluded your testimony with the admonition, pointing out the existence of thorough congressional oversight, saying, quote, that you must fully inform the appropriate congressional Committees with regard to authorities under the PATRIOT Act.

    However, we've now learned that the Administration was engaging in activities that touched on the PATRIOT Act and FISA but were wholly outside any statute that—statutes that occupy this field, without informing the very individuals that you cited in your discussion of congressional oversight. And so we've now come to realize that the debate that we had over FISA in the PATRIOT bill, complete with the pledge that you and others at the Department were, quote, open to any ideas that might be offered for improving these provisions, and, quote, would be happy to consult with us and review our ideas, was somewhat meaningless or duplicitous, or worse.
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    In the Senate, for example, an Administration witness, when a Senator asked whether we needed to amend FISA—said, Do we need to change the standard? Are you having problems with FISA? The response was, no, FISA was just fine the way it was.

    In fact, the answer to our Committee and the answer to the Senate Committee might as well have been you don't need to change FISA because, in fact, we don't feel bound by FISA or we interpret the Authorization to Use Military Force such that whatever you do here we don't feel bound by. Moreover, even if it's not in the Authorization to Use Military Force, it's within our inherent authority as Commander-in-Chief to disregard what you do on the PATRIOT bill or FISA.

    And so it comes back to how do we do our job and why should we, when you come back to this Committee and ask for further authority, why should we give the benefit of the doubt to the DOJ when it may very well be that even without our authority, you're conducting surveillance that we know nothing about.

    And I really—I guess I have a couple specific questions. I've introduced legislation with Representative Flake, the NSA Oversight Act, that says basically when we passed FISA in title III and we said these were the exclusive means of domestic surveillance, we meant what we said; that the Authorization to Use Military Force didn't create an exception to that; and that if you need to change it—and there might be reasons why you need to change FISA—you should come to us and make the case for an amendment. I still think that's the right policy.

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    I have two questions, one of which I asked the Chief of the Office of Legal Counsel when he briefed our Committee and really couldn't get an answer from, and that is, do you believe under Hamdi, under the authority incident to waging war, or under your inherent authority as Commander-in-Chief, that you can surveil a purely domestic call between two Americans? The concern I have is that there's no limiting principle to the one you've established for doing what you need to do in the war on terrorism.

    And the second question I have is: When you testified before this Committee last year, were you aware of the NSA program?

    Attorney General GONZALES. When I testified before the Committee last year, I was aware of the NSA program. Yes, sir, I was aware. I don't believe that I said anything in that hearing that was not completely truthful.

    Your question was——

    Mr. SCHIFF. Whether a purely domestic call—what are the circumstances under which you could conclude you don't have to go to court to tap a purely domestic call, even though it's not within the program you have now, could you later decide on the basis of the Authorization to Use Military Force or your inherent legal authority as Commander-in-Chief, that you have the authority to take—to tap a purely domestic call between two Americans.

    Mr. COBLE. [Presiding.] The gentleman's time has expired, but you may respond, Mr. Attorney General.
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    Attorney General GONZALES. What I will say, Congressman, is that, of course, is a different question than what the President has confirmed to the American people that this program includes. The question is whether or not, given what the Supreme Court has said, the Authorization to Use Military Force allows the Supreme Court in Hamdi, again, Justice O'Connor writing for a plurality said that the authorization to use force was Congress saying to the President of the United States, you can use or engage in all those activities that are fundamentally incidental to waging war. That's what the Supreme Court says that Congress meant when it used those words ''necessary and appropriate force.'' And then the question becomes whether or not the activity that you're asking about, is that something that is fundamentally incidental to waging war against this enemy. You know, that's something that I'd want to look at, but that's the question that we would have to answer. Is domestic surveillance of Americans who have some relationship to al-Qaeda—let's just make it a little bit easier question, because I think it's a tougher question if it has no relationship to al-Qaeda, because then you can't tie it to the Authorization to Use Military Force.

    However, if the conversation is one that's domestic and involving conversations relating to al-Qaeda or affiliates of al-Qaeda, then you have to answer the—ask the question: Is that—is the electronic surveillance of that kind of communication, is that something that's fundamentally incident to waging war? And you would look at precedent. What have previous Commander-in-Chiefs done? We know that previous Commander-in-Chiefs have certainly engaged in electronic surveillance during—of the enemy during a time of war and have gone beyond that. President Wilson authorized the interception of all cables to and from America and Europe without any limitation based upon the Constitution, his inherent authority as Commander-in-Chief, and based upon an authorization very similar to the one passed by this Congress.
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    Mr. SCHIFF. So you can't rule out purely domestic warrantless surveillance between two Americans?

    Attorney General GONZALES. I'm not going to rule it out, but what I've outlined for you is the framework in which we would analyze that question.

    Mr. COBLE. The gentleman's time has expired.

    The distinguished gentleman from Utah, Mr. Cannon, is recognized for 5 minutes.

    Mr. CANNON. Thank you, Mr. Chairman, and, Mr. Attorney General, we appreciate your being here. I want you to know that I share the concerns that have been expressed thus far, but would like to ask you a couple of programmatic questions.

    Since the 1970's, there have been significant questions about the accuracy of the National Firearms Act maintained by the ATF. The Gun Control Act of 1968 provided an amnesty whereby individuals could come forward and register weapons which were often war trophies that they got from their parents who fought overseas.

    In 1998, an IG report found that the ATF contract employees had improperly destroyed NFA records and ATF employees had not followed proper procedures during the registration. This bureaucratic mess has left many of my constituents with potentially illegal guns solely because of ATF mistakes.
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    Would you support legislation allowing collectors to re-register so they are in compliance with the law, especially if they have the appropriate paperwork? And would you agree that an individual should not be faced with prosecution or the loss of a valuable weapon because of ATF's negligence?

    Attorney General GONZALES. Well, I don't want to prejudge whether or not there should or should not be a prosecution, Congressman, without knowing the facts. I'm not familiar of the incident that you're describing, but I'd be happy to look into——

    Mr. CANNON. It's not an incident. There's a report that deals with many incidences.

    Attorney General GONZALES. I'm not familiar with the report, but I'm happy to discuss with you and look at legislation. I want to have the opportunity to look at that report.

    Mr. CONYERS. Thank you. We'll follow up on this. It happens to be—I have just in my district many, many people who have this problem, and they have paperwork that came from the ATF, but it's ignored by——

    Attorney General GONZALES. That shouldn't be the case.

    Mr. CANNON. Thank you. I appreciate your stating on the record that it should not be the case, and we'll follow up with that.
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    Another issue that is not monumental but pretty important is the Federal Government's stubborn insistence in litigating to preserve the Federal excise tax on long-distance telephone service. Last August—this is 7 months ago—Congressman Feeney and I wrote to you asking that the Government not seek certiorari in the American bankers case, and notwithstanding the United States did not seek cert. in the case, the IRS is continuing to insist that telecommunications carriers collect the tax, which is, of course, a relic of the Spanish-American War.

    Just this past week, the Sixth Circuit denied the Government motion to rehear an earlier decision that favored the taxpayer. The United States is now zero for ten in these cases with additional appellate losses in both the D.C. and the Eleventh Circuits.

    Given that complaints are being settled at 100 cents on the dollar, something that strongly indicates the weakness of the Government's position, why does the Department continue to litigate these cases?

    Attorney General GONZALES. Congressman, all I will say is that we have a very earnest client and—— [Laughter.]

    But, obviously, we need to see whether or not the courts are giving us a message, and so that position of the United States, as always, is being evaluated.

    Mr. CANNON. Zero and ten makes one understand ''earnest'' to mean that they are intent on continuing to collect revenue, but perhaps not earnest in fulfilling the law which establishes their purpose.
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    Attorney General GONZALES. Well, Congressman, we believe there are arguments that can be made, but again, this is something that is under consideration.

    Mr. CANNON. Does the Department have a policy to conform to a judicial opinion and stop litigating if it's faced with a certain number of adverse decisions? And if so, what is that number?

    Attorney General GONZALES. I don't know—I don't think—there is not a specific policy. We obviously have very experienced litigators. This involves folks within the Civil Division, obviously, and the Solicitor General's office. And so as I've indicated, this is an issue that we are reviewing at the highest levels.

    Mr. CANNON. Thank you. It's one that is just—it's hard to invest when you have uncertainty. We have to jerk the uncertainty out of the system because we're requiring the telecoms and other communications companies, the cable companies now, to do extraordinary things with extraordinary opportunities that will make America a much better place, and this little uncertainty makes a big difference in the whole process. I appreciate your willingness to focus on that.

    Attorney General GONZALES. I certainly appreciate your concerns, Congressman.

    Mr. CANNON. And recognizing that the yellow light is on, I'm not going to burden you with another question, but just to suggest that we ought to take a look at ATF's approach to absolute requirements of compliance on every particular—for licensees and I think that's—they've shown extraordinary recalcitrance to deal with Congress' insertion of the term ''willful'' into the requirement to revoke a license, and I would appreciate it if you would look at that. Perhaps you can follow up with a written question on that point.
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    Thank you, Mr. Chairman. I yield back.

    Mr. COBLE. I commend the gentleman from Utah. You prevail over the illumination of the red light.

    The distinguished gentlelady from Texas, Ms. Jackson Lee, is recognized.

    Ms. JACKSON LEE. Thank you very much, and good morning, Mr. Attorney General.

    Attorney General GONZALES. Good morning.

    Ms. JACKSON LEE. It's a pleasure to have you here this morning. We do go back a long way, and we respect the Texas roots that you have.

    Attorney General GONZALES. Thank you.

    Ms. JACKSON LEE. So I beg your indulgence as I raise a number of concerns that cause me a great deal of, if you will, consternation. I agree with you that we are unique and responsible as stewards of the American dream, and I am uncomfortable with the fact that we have ignored that dream.

    Might I cite for you a historical precedent, and that is, of course, during the Nixon years in the dark moments of the Watergate debacle, and when President Nixon asked Attorney General Elliot Richardson to fire Archibald Cox, he refused and resigned. Frankly, I think we have come over a number of years, and some of these issues have preceded you, where it would warrant the Attorney General of the United States to resign, whether it was Ashcroft or in this current instance yourself, out of principle that things were being done wrongly. Let me quickly go to a series of questions.
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    We now have seen the end of a tainted period in our congressional history with the resignation of a particular Member, but many lives have been impacted negatively by this influence. I sat in the Justice Department in the fall of 2003 with my colleagues from Texas discussing an untoward map that retrogressively impacted Hispanics and African Americans. There were the professional staff and there was a political staff by the name of Hans Barnes McCoffley, closely to his name. The eight career staff said that this map should be turned back because it was retrogressive. I believe that occurred in the Georgia case as well. They gave us a memo or a memo was written in December of 2003 that said that this map for Texas was retrogressive and it would injure African Americans and Hispanics.

    Ultimately, of course, that memo was never seen by those of us who had to ultimately go to court, and the political operatives changed and overruled that detailed, thoughtful, compliance with the Voter Rights Act memo. In addition, they never wrote a memo to explain why they overturned it.

    Of course, you might say that the courts did not allow us to prevail, but as you well know, Mr. Attorney General, in the courts the finding is on delusion, not on retrogression, and it's a much harder test in that instance than preclearance. The career professionals of the Department of Justice, of which many, many professionals over the decades have said that they've never been overturned on these cases, was overturned by political influence and grandstanding. And the lives of hundreds of thousands of Hispanics and African Americans in the State of Texas have been denied their right to be represented by the person of their choice.

    I ask you to respond to that, and let me quickly give you some other questions.
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    Under FISA, many different questions have been asked—or many different statements have been asked about whether or not this abusive power has been used on Americans. That is our fear. I lived through, as a Member of the Select Committee on Assassinations, the investigation into the assassination of Dr. Martin Luther King. I read FBI files on the COINTELPRO program that suggested that Mr. King, Dr. King, was a communist, of which we have found that it was, of course, with no basis whatsoever.

    And so can you say with absolute certainty under oath that no purely domestic communications are intercepted in connection with the warrantless surveillance program? And can you give us details that that is the case?

    I also note that in your testimony you were very limited in your commentary on the voting of New Orleans on April 22nd and the preclearance that I believe was falsely given, because it was represented that the Black legislators agreed with the State of Louisiana. They did not. Can you tell me whether we can get a review of that since the premise of the preclearance was inaccurate and allow satellite voting outside of the State of Louisiana so that hundreds of thousands of Black voters and others would be able to vote?

    And I ask that the General would ask those—answer those questions, please.

    Mr. COBLE. Well, the gentlelady's time is about to expire, but you may respond, Mr. Attorney General.

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    Attorney General GONZALES. Great. Congresswoman, I must take issue with you, respectfully, regarding the comparison between what is ongoing today and what happened during the Nixon era. President Nixon engaged in conduct I think to hide conduct related to political enemies. This President came out immediately after the story ran in the New York Times. He went before the American people and said, ''I authorized this.'' There was no coverup. He came out and said, ''I authorized this.''

    He did so—he did so upon the advice and recommendations of folks in the intelligence community who recommended to him that we needed to have this information to protect America. He did so upon the recommendation of folks in operations who told him we have the capability and technology to give you this information. He did so upon the recommendations of lawyers in the Administration who said, ''Mr. President, you have the legal authority under the Constitution to do so.''

    And so this is—respectfully, Congresswoman, this is not even in the same universe as what happened——

    Ms. JACKSON LEE. And, respectfully, General, my time is short. Could you answer the question of whether there is domestic surveillance and what happened with the redistricting case? I appreciate it.

    Attorney General GONZALES. I thought I heard your question to be whether or not can you assure us that there has not been domestic surveillance. What I can confirm is what the President disclosed to the American people. This is what he authorized. Can I tell you that mistakes have not happened? I can't give you assurances that the operation has been operated perfectly. What I can tell you is that we have had the Inspector General of the NSA involved in this program. We've had the Office of Oversight and Compliance out at NSA reviewing this program from—this is from the inception. There are monthly due diligence meetings involved where the senior officials out at NSA get together and talk about how the program is operating in order to ensure that the program is operated in a way that's consistent with what the President has authorized. That's their objective. And I've been told by the lawyers at NSA and others at NSA there has never been a program at NSA that has had as much oversight and review than this program has.
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    With respect to New Orleans, New Orleans passed a statute—the New Orleans legislature passed a statute to allow for an election. That was precleared. Based upon additional discussions with the New Orleans Legislature, there was additional legislation passed. That is currently under review within the Department of Justice. I take issue with anyone who says that there's been any politicalization of the office. We make decisions based on what the law requires, and only that. We are not going to consider any other factors beyond what the law requires.

    And the protection of civil rights to me is personal. It's very important to me personally. And I've had numerous conversations with the head of the Civil Rights Division. He understands how important this is for me that we get it right in each and every case. And so I have no reason to believe that there has been anything but strict adherence to what the law requires with respect to the New Orleans election.

    Ms. JACKSON LEE. And the Texas redistricting?

    Attorney General GONZALES. Well, the Texas redistricting, Congresswoman, of course, the decision to preclear was made before I became Attorney General.

    Mr. COBLE. Mr. Attorney General, I hate to rein you in, but we have got a lot of folks waiting to be heard, and we are going to have a second round. So the gentlelady's time has expired.

    Ms. JACKSON LEE. Thank you, Mr. Chairman.
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    Mr. COBLE. I am next in line. Good to have you on the Hill today, Mr. Attorney General. After the 9/11 attacks, sir, I, along with others, indicated that one of my great concerns about subsequent attacks would likely be maritime based or by water, i.e., port or harbor.

    Now, last Monday, sir, I am told that the Attorney General issued a report indicating that the FBI's efforts may not be as effective as they could be at various seaports and harbors. Now, I realize, sir, that there are multifaceted functions being performed by the Coast Guard, by Customs, by border, and FBI. How has your Department, Mr. Attorney General, reallocated its sources to investigate and prosecute offenders under the Reducing Crime and Terrorism at America's Seaports Act and to address some of the shortcomings that were raised by the Inspector General's report?

    Attorney General GONZALES. It was a report from the Inspector General. We are now studying the report. We are looking carefully at the recommendations, and we look forward to moving forward and implementing those recommendations, which will make, in fact, America safer and our ports safer.

    With respect to the new authorities provided to us under the reauthorization of the PATRIOT Act, my understanding is that we are in the process now of revising the U.S. Attorneys manual so that we can move forward and prosecute these new offenses, one relating to seaports. So, Congressman, what I can say is that we're looking at the recommendations made by the IG, and we'll be responding appropriately.

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    Mr. COBLE. Well, I am confident that we are now safer than we were prior to 9/11, but I am equally confident that our seaports continue not to be invincible. I think there's vulnerability there, and I'm not blaming you for that. It's just the nature of the beast, perhaps. But if you could keep us up to speed on your responses to the IG's report, I would be—I think the Committee would be appreciative to you for that.

    Attorney General GONZALES. I'd be happy to do that, Congressman.

    Mr. COBLE. As you pointed out, Mr. Attorney General, and as others on the Committee have indicated, FISA is indeed generously laced with complex issues. Let me try to simplify it and give you a very general question.

    What rights does a United States citizen have regarding information that may be used against him or her under the NSA surveillance activities? That's a very general question, I'll admit, but can you give me a general answer?

    Attorney General GONZALES. Congressman, can you repeat your question? I want to make sure that I understand it.

    Mr. COBLE. Maybe it's too general. What rights does a United States citizen have regarding information that may be used against him or her regarding an interception or surveillance by NSA? And if that's too general, you can be more specific in your answer.

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    Attorney General GONZALES. Congressman, I'm afraid that in this open hearing I'm not comfortable talking about what happens to the information that's gathered from the program. What we do with the program has been briefed to the Subcommittees of the Intel Committee, so they understand what we do with the information.

    I can tell you that, from the outset, we have always been sensitive to the fact that, with respect to collection under this authority, as we would be sensitive to collection under FISA or 12333, that it's done in a way that we don't compromise prosecutions or compromise investigations. So we are very sensitive about that.

    I don't know if that's responsive to your question. I apologize if it's not.

    Mr. COBLE. Well, I think that's maybe as well as you can do because it is—it's very generously laced with complex matters.

    My time is about to expire, and I see the Chairman is back. Let me put this question—let me throw this to you, Attorney General, and we can talk about this subsequently. I'm concerned about intellectual property and the piracy related thereto. But the red light is about to illuminate. That will be for another day or maybe later today.

    Attorney General GONZALES. Yes, sir.

    Mr. COBLE. Do you want to say anything quickly about that?

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    Attorney General GONZALES. Well, intellectual property protection is, of course, extremely important and something that's referred to in our Constitution. It's very important for our economy. We need to encourage ingenuity. Part of encouraging that is to protect it, and one of the ways we protect it is through enforcement. And so we are focused on that. Also, education, quite frankly. I've done two events out on the West Coast with children, informing them, trying to educate them that intellectual property is protected and there are consequences, bad consequences if you steal it.

    Mr. COBLE. Thank you, Mr. Attorney General.

    The distinguished gentleman from California, Mr. Berman, is recognized.

    Mr. BERMAN. Thank you very much, Mr. Chairman. Thank you, Mr. Attorney General, for being here. I'm distressed by the Administration's position and your answer on this issue of the electronic surveillance program that has come out. I noticed in response to Mr. Conyers' question you talked about the healthy debate within the Justice Department. Mr. Delahunt found an article which—in Newsweek magazine which describes that healthy debate. A group of Justice Department lawyers involved in a rebellion that basically—against lawyers centered in the office of the Vice President, and with the acknowledgment of the Deputy Attorney General at the time, led resistance against a President who wanted virtually unlimited powers in the war on terror, demanding that the White House stop using what they saw as far-fetched rationales for riding roughshod over the law and the Constitution. These lawyers found to bring Government spying and interrogation methods within the law.

    The result of this was ostracized, denied promotions, and otherwise retaliated against for taking their positions.
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    Attorney General GONZALES. So the story says, sir.

    Mr. BERMAN. That's what the story says.

    In response to Mr. Schiff's question, explain to me why my thinking is wrong here. You're doing these things incidental to war. Mr. Schiff poses a question: If the President at his discretion concludes that electronic surveillance of two persons in the United States is incidental to the war on terror that we are fighting and that Congress would like to be your partner on and not simply a potted plant in this fight, if the President decides in his discretion that this is incidental to war, and without simply—perhaps by informing some—a few Members of Congress, does he have the power under your argument, does he have the authority under your argument to engage in that kind of surveillance——

    Attorney General GONZALES. Congressman——

    Mr. BERMAN [continuing]. Without a warrant?

    Attorney General GONZALES [continuing]. Respectfully, we could spend all day talking about hypotheticals. What I've outlined is——

    Mr. BERMAN. Well, your argument——

    Attorney General GONZALES [continuing]. The framework—the framework that we would use in analyzing that question.
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    Mr. BERMAN. But the question isn't whether you're doing it. The question is whether you have the authority to do it.

    Attorney General GONZALES. Well, again, you're asking me to provide a legal answer to a question, and what I've given for you is the framework in which we would analyze——

    Mr. BERMAN. Well, the framework you've given—the framework you've given, there is a law about detention of people——

    Attorney General GONZALES. 4001(a)——

    Mr. BERMAN. Yes, there's a law about detention. The authorization of the use of force trumps that law because the President feels that he has the powers incidental to engaging that war to trump that law.

    Attorney General GONZALES. You are mis——

    Mr. BERMAN. To cite President Wilson—to cite President Wilson and what he did before the Supreme Court ever said that surveilling conversations between private parties constituted an unreasonable search and seizures and before there was a FISA law is not an argument that—you should have at least the intellectual honesty, it seems to me, to explain why the intervention of both the Supreme Court decisions on electronic surveillance and the passage of a FISA law don't affect what President Wilson might or might not have done or how he did it. No one wants you—as Mr. Conyers said, no one in this Congress wants you not to be able to surveil even domestic parties who are suspected or for whom there's any reasonable belief that they may be engaged or planning or participating in some way in terrorist activities. We want you to have that power.
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    We do think that part of this is having some third party check whether there's some reasonable relationship between what the facts are and what you want to do. That's all we're asking about. And I just—I find your notion that this is somehow solely within the Executive's prerogatives based on being incident to a war, it makes the whole debate about the PATRIOT Act ridiculous.

    What are the standards? You come in and you admit last year that relevance should be a standard for seizing business records. Why? If it's incidental to war in the minds of the President, why are we spending time here playing around in something like a Young Democratic or Young Republican Convention with resolutions that have no meaning when you have this inherent power that's incidental to the power of the Commander-in-Chief during war?

    Attorney General GONZALES. But, of course, sir, in that discussion about business records, we were talking about business records of everyone for different circumstances. We weren't limited focused on records relating to al-Qaeda, our enemy in a time of war. So it's a much different debate, much, much different debate.

    I don't know what you're—I'm sorry if I—your question?

    Chairman SENSENBRENNER. [Presiding.] The gentleman's time has expired. The other gentleman from California, Mr. Lungren.

    Mr. LUNGREN. Thank you very much, Mr. Chairman.

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    I don't know, Mr. Attorney General, whether you enjoy these functions as well as some of us appear to. I'm going to disappoint you. I'm not going to ask you whether you think you should resign. I'm not going to suggest that if we just raise taxes we'd get rid of our problems in the war on terror. I'm not going to suggest that you ought to be limited to only talking about Republican Presidents and not talking about Democratic Presidents.

    But I'd like to talk about something that is current that goes through a number of Administrations, and that's the disappointment that some of us have with certain aspects of the FBI's activities. The case where a Brooklyn grand jury just returned indictments against a former FBI supervisory agent, DeVecchio, for his, I'll say, participation in four murders carried out by organized crime is disturbing, to say the least, because it echoes some experiences that were brought to light by Mr. Delahunt in a valiant effort to try and suggest that in some cases the relationship between or among law enforcement, local, State, and Federal, is oftentimes skewed in the Federal direction with a lack of oversight of the FBI.

    This Congress has in the past attempted to deal with this problem by requiring the Department to come up with processes and procedures that require supervision of agents. It is so disturbing to me as the former chief law enforcement officer of the State of California that I've joined with Mr. Delahunt in introducing legislation that would require the FBI to notify local or State law enforcement officials, that is, prosecutors, when there is evidence of a felony being committed with the acquiescence and knowledge of FBI agents.

    And so, Mr. Attorney General, with all due respect, I ask you what the position of the Administration is on this. This is not something that's being visited upon your Administration. This is something that has existed for some period of time. And, frankly, there is a real frustration from my side—and I know Mr. Delahunt joins me in this—in a failure of the Federal Government to understand that, first, in most cases law enforcement works together, that is, local, State, and Federal; secondly, that the primary responsibility for prosecution of most violent crime, particularly homicides, lies with local and State jurisdictions; and that rogue operations allowed under the FBI in the guise of pursuing organized crime which allows organized crime to commit murder is absolutely corrosive to the process. And I have every intention with Mr. Delahunt to pursue this legislation. I guess my question would be whether the Administration would support us in this or oppose us in this. And if you would oppose us in this, could you give us some idea as to why you think that the policies in place are sufficient when we have evidence, at least to the sufficiency of a grand jury in Brooklyn, to bring an indictment against a former FBI supervisory agent?
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    Attorney General GONZALES. Thank you, Congressman. You're absolutely right. The Federal Government must work close together and does work close together with State and local officials. You're right, most violent crime is prosecuted at the local level, although we're finding more and more times the local officials, because we have stiffer sentences, are looking to us to try to handle some of the more difficult prosecutions.

    With respect to rogue operations to allow organized crime to commit murder, which is what I think you said, I would be—well, I'm not aware that we have such a policy in place. If our policies allow this kind of conduct to occur, that would be something I would be very interested in and would look into.

    In terms of your legislation, I can't comment as to whether I would oppose it or support it. I want to make sure that I understand. If we have a problem with our policy that can't be solved through our policies, then it may be something that I would support. But I'd like to get a little bit more information about where we stand and obviously look at the details of your legislation before commenting on it. But if we have a problem here, I'd be happy to work with you on it.

    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentleman from Massachusetts, Mr. Delahunt.

    Mr. DELAHUNT. Just to follow through on that, Mr. Attorney General, the Inspector General did a review of the Attorney General's guidelines and found in terms of the FBI's dealings with confidential informants. There's a set of guidelines that have been promulgated by one of your predecessors, Attorney General Reno. The findings were that there were guideline violations in 80 percent—87 percent, rather, of the confidential informant files. And in terms of the notification, the requirement to notify local, State, and other law enforcement agencies, there was in excess of 40 percent failure in that regard. Let me suggest that is a real problem, Mr. Attorney General, and it's got to be addressed. And I look—you will be receiving a letter—we will give it to Will Moschella before he leaves—that is authored by myself and Congressman Lungren, and we'd like to have some answers in a timely fashion.
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    Attorney General GONZALES. Yes, sir. You'll have it.

    Mr. DELAHUNT. Thank you.

    You know, you've referenced the fact that the Intelligence Committee has been briefed on the terrorist surveillance program, however it might be described. You know, I would respectfully suggest that it's this Committee that has jurisdiction over the Department of Justice, that has jurisdiction and oversight responsibility of the Department of Justice. What about a regular briefing opportunity for you or your representatives to come before the Judiciary Committee and brief us? Is this an idea that you would entertain?

    Attorney General GONZALES. Well, Congressman, obviously the Department does not operate the program. Our role is to provide legal advice as to the authorities for the program. NSA, as you know, operates the program. And there is—has been—there were 14 briefings to——

    Mr. DELAHUNT. I'm not interested in how many briefings there were. I'm interested in knowing the legal basis, and if you want to do it behind closed doors, that clearly is an option. But we are here posing questions to you today, and we keep hearing, I think, the response to critical questions: ''It's classified.''

    I have no doubt—and I'm not speaking for the Chairman, but that most Members of this Committee would be more than welcome to hear your views in a classified setting to explain the authorities and the processes that we have expressed concern about.
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    Attorney General GONZALES. Congressman, we have laid out our analysis of the legal authorities. The questions that I'm demurring on are questions relating to the operations of the program which are classified and which have been briefed to the Intel Committee.

    But with respect to the legal authorities and our legal position, I've testified for 8 hours before the Senate Judiciary Committee. I've testified to Senate Intel, House Intel. We've laid out the 42-page paper. So our legal analysis——

    Mr. DELAHUNT. I thank you, Mr. Attorney General. You've answered the question for me.

    Let me go to the Presidential signing statements issue for a moment.

    Attorney General GONZALES. Yes, sir.

    Mr. DELAHUNT. You know, when the President signed the PATRIOT Act, the recent version, in the signing statement he said that he would, for all intents and purposes, ignore the rules if he believed that the national security and foreign relations and executive operations might be harmed.

    Those are rather large loopholes, I'm sure. And, likewise, when Congress last fall outlawed torture by Government agents, he signed the statute and then expressed in a signing statement that he would interpret it as he saw fit if he thought that national security was at stake.
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    You know, we're operating in the dark, again. Is there any mechanism that exists that would inform Congress as to those provisions that the President would interpret implicated national security, or are we ever going to know about it? Or is he, you know—or are we—I guess are we just—we don't want to be a constitutional nuisance, but at the same time, it's my belief that as the first branch of Government, we have a right to know what the President is going to ignore and when he's going to inform so we can fill—can fulfill our responsibility for oversight.

    Attorney General GONZALES. I want to thank you for the question. I think there has been a lot of misunderstanding about signing statements.

    First of all, Presidents of both parties have entered into signing statements, and Presidents of both parties, whether or not there's a signing statement or not, believe that when they sign a bill into legislation—legislation into law, that they are not waiving or giving away any authority they have under the Constitution. And so that's all those statements mean, is that to the extent the situation arises where the President, a President has the duty and has the authority under the Constitution to take action, he's going to do that, even though he may have signed legislation.

    This President intends to fully comply with the McCain amendment, the McCain law. He does not believe in torture. We don't condone torture. The same with respect to the authorities under the PATRIOT Act. We intend to abide by the requirements of the PATRIOT Act, the reauthorization requirements. But, on the other hand, a President of the United States—no President can give away, certainly for himself or for future Presidents, his authority under the Constitution. And that's what those statements in the signing statement relate to.
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    Chairman SENSENBRENNER. The time of the gentleman has expired.

    The gentleman from Ohio, Mr. Chabot.

    Mr. CHABOT. Thank you, Mr. Chairman, and thank you, Mr. Attorney General, for being here with us this morning.

    I'd like to raise an issue that we've discussed in previous hearings with former Attorney General Ashcroft and also in my Subcommittee with Mr. Boyd and others from the Civil Rights Division. I refer to the Memorandum of Understanding between the Department of Justice and the city of Cincinnati.

    As I've stated before, there have always been concerns about this agreement's impact on the ability of the police to effectively combat crime in Cincinnati. For example, we had specific problems with the Department of Justice's effort to add overly restrictive mandates on the police related to the so-called hard hands policy and also the K-9 procedures, and we worked closely with the Cincinnati police leadership and the Department of Justice to address these issues.

    As you know, Cincinnati has always had an extremely effective and professional police department. Right now, even with fewer officers than they truly need, the Cincinnati police force is doing an incredible job, but they face an increasingly difficult task.

    We've seen increasing violence related in large part to drug trafficking and a murder rate that is completely unacceptable—79 murders in 2005, and just last night, a man was shot in his car in the Over-the-Rhine neighborhood of Cincinnati. That happens to be the neighborhood that the Opening Day parade goes through that we just had in Cincinnati of the first professional baseball team. The President threw out the pitch there, but this goes right through that neighborhood. And it was the third fatal shooting in that neighborhood this week, and we've already had 23 murders in Cincinnati this year.
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    Now, it's my understanding that after 3 years, if there's substantial compliance by the city, the parties can agree to terminate the agreement, and it's also been brought to my attention through the city's quarterly reports that the city is meeting the requirements of the agreement.

    Many people in our community would like to put this in the past and allow the police department to focus on the business of protecting our citizens. How do you characterize their substantial compliance and the city's ability to meet the early termination criteria?

    Attorney General GONZALES. How do I characterize it?

    Mr. CHABOT. Yes.

    Attorney General GONZALES. Congressman, I must confess I'm not intimately familiar with the details of this agreement, and so I don't know what our position is related to the question that you have asked. But I will find out and get a response back to you.

    Mr. CHABOT. Okay. I would very much like to follow up with you and the Department, and we've had efforts in the past and your Department has in many instances worked cooperatively. So we want to continue that. But I think many want to basically make sure that the police department are not burdened with unnecessary paperwork and requirements that really keeps them from doing proactive police work to make sure that everybody in the city is protected. So I appreciate your willingness to work on that.

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    My second question deals with the Voting Rights Act. Over the last 6 months, I've chaired ten hearings on the Voting Rights Act in the Constitution Subcommittee, and during those hearings, among other things that we've discussed, we discussed the language provisions of the act. We're reviewing for reauthorization those temporary provisions, not the permanent sections of the act, which is section 203.

    We have seen increased enforcement and litigation in that area relative to the language requirements. Could you discuss the reasons for the increase and if you're working with those covered jurisdictions so they're able to comply with the act and the criteria for when litigation is commenced against these jurisdictions?

    Mr. WILLIAMS. Well, the reason we're seeing increased enforcement litigation is because it is the law and we have an obligation to enforce the law. I think that the right to vote is perhaps the greatest right that we have. It should be available to people of all color, all ethnicities. It often represents freedom, quite frankly. It is a chance to exercise some degree of control over one's life, no matter how poor, no matter what community, no matter what background. And so it needs to be protected.

    It is not a—it is not an important or a valuable right if, in fact, you can't exercise it because you can't understand English. And for that reason, that's why it's—I believe it's important that we enforce and protect the rights under section 203.

    Mr. CHABOT. Thank you, Mr. Attorney General, and I assume that you'd be willing to go with us back and forth in writing to make sure that we get all the necessary information relative to the language requirements.
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    Attorney General GONZALES. Yes. And, by the way, I do understand that in certain jurisdictions—I met with the mayor of New York City recently, and he explained to me there are so many languages in that city and it creates a tremendous burden. And I appreciate that, and so that would be something that I think perhaps that this Committee should look at. Obviously, we want to protect the ability of people to vote. We want to ensure that people can vote, irrespective of the fact that they can't understand or speak English well. But I understand that there can be and apparently are significant burdens in some communities.

    Chairman SENSENBRENNER. The time of the gentleman has expired.

    The gentlewoman from Florida, Ms. Wasserman Schultz.

    Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman.

    Mr. Attorney General, welcome to the Judiciary Committee. My question also deals with the terrorist surveillance program, and the Bush administration has stated that the congressional war authorization after September 11th provided a legal justification for the Administration to begin the NSA wiretapping. And in your essentially non-answers to both the majority and the minority's questions that we provided to you in writing, you have further indicated that you think that that's where your authorization is derived from.

    Yet in a December 19, 2005, press briefing, you were asked why the Administration decided not to amend—come to the Congress and amend the FISA law so that you could have express authorization for this program, and I'll read you what your answer was to that question. You said, ''We've had discussions with Members of Congress, certain Members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be, that that was not something we could likely get, certainly not without jeopardizing the existence of the program, and, therefore, killing the program; and that—and so a decision was made that because we felt that the authorities—the authorities were there, that we should continue moving forward with this program.''
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    Now, Mr. Attorney General, when my kids, as a Mom, tell me that the reason that they did something without asking me is because they thought I would say no, that's really not an acceptable answer to me when my kids try to do it. So it's not an acceptable answer when the Administration tells Congress or indicates that they have not asked for our express authority in changing the law, that the answer is that you didn't think we would say yes.

    This is a really disturbing program, Mr. Attorney General, and I'm really confused because you also on the one hand say that you have the authority expressly granted to you in the war authorization, yet you say the reason that you didn't ask us to amend the FISA law to give you that express authority is because you thought we'd say no.

    So which is it?

    Attorney General GONZALES. Well, you say it's a disturbing program. I have heard very few people say this is not a program that's important for the national security of this country. In fact, most of the people on both sides of the aisle, virtually all—everyone who is aware of the parameters of this program say this is an essential program for the protection of national security of this country.

    There was——

    Ms. WASSERMAN SCHULTZ. Mr. Attorney General, it's a disturbing program when you don't have express—when there's a question that has not been answered about whether you have the express authority to engage in it. That's what's disturbing, not the program itself. If you've been given that express authority, that's one thing. So if you could answer my question, I'd appreciate it.
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    Attorney General GONZALES. We believe that the authority does lie within the Authorization to Use Military Force, and that supplements the President's constitutional authority as Commander-in-Chief to engage in electronic surveillance of the enemy during a time of war. We believe that that authority is there under the Constitution. We also believe that the authority—that authority is supplemented by the Authorization to Use Military Force. And whether or not the words are not—whether or not the words ''electronic surveillance'' are included in that authorization is of no moment, to quote Justice O'Connor. The Congress authorized all those activities that are fundamental incident to waging war——

    Ms. WASSERMAN SCHULTZ. Mr. Attorney General, with all due respect, I've heard you say and read all those specific comments about yours and the Justice Department's opinion. But on December 19, 2005, you specifically said that the reason that you did not come to Congress to amend the FISA law to specifically give you that authority is because you didn't think we would say yes and you didn't think—and you thought that that would jeopardize your ability to continue and move forward with this program.

    Attorney General GONZALES. That was related to a conversation that we had with the leadership of the Congress, and it wasn't just my judgment that legislation was impossible without compromising the program. It was the collective judgment of everyone there.

    Ms. WASSERMAN SCHULTZ. Well, I understand that that might be who you spoke to, but it's irrelevant who you told that to. There are many Members of Congress that believe that you should have come to the Congress. There are many people in the general public that think you should come to Congress and expressly ask for that authorization.
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    So if you were given the opinion by some Members of Congress that we would say no if you asked for that authority, then why didn't you explore that possibility with other Members of Congress? I generally believe that if you think you don't have the authority and you don't ask for it because you think you'll be told no that that means you don't—you think you don't have the authority.

    Attorney General GONZALES. Well, clearly, Congresswoman, you know, in a time of war, it's always best in my judgment to have both the Executive branch and the legislative branch working together and to be in agreement.

    On the other hand, the President is Commander-in-Chief, and even Congress in the Authorization to Use Military Force recognized in that authorization that the President does have the constitutional authority to deter and prevent attacks against America. And we believe that—again, that we do have the authority. Obviously, we were aware that there may be questions about the President's authority and that's why there were discussions about seeking legislation, and there was a collective agreement that that process of pursuing legislation would compromise the effectiveness of this program.

    Ms. WASSERMAN SCHULTZ. Thank you.

    Chairman SENSENBRENNER. The gentlewoman's time has expired.

    The gentleman from Texas, Mr. Gohmert.

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    Mr. GOHMERT. Thank you, Mr. Chairman, and it's good to see you again, General.

    Just to assist in one of the earlier questions from my colleague from Texas on the other side of the aisle regarding the redistricting map and the litigation regarding that Federal approval, I thought it was interesting. Chief Justice Roberts during oral arguments on that pointed out that under the disastrously unfair gerrymandering done in 1991, that the Democrats had way over 20 percent more representation in Congress than they had Statewide votes; whereas, after the Republican plan——

    Mr. NADLER. Chairman, we can't hear.

    Mr. GOHMERT. Okay. I'd suggest some people stop talking over there.

    But, anyway, that after the Republican plan last year or so, there was only a 5-percent disparity, that fortunately Republicans were taking that in the right way.

    But, anyway, I did want to go back to 50 U.S.C. 1861, the provision of section (a)(1), and I'm going to ask you if you have a problem with the revision of this nature. You've indicated that they're nothing but domestic—only domestic surveillance that is connected to a foreign agent or a known terrorist have been surveiled. But under the provision of 501, there is something that nobody has seemed to have pointed out that I picked up on, especially in view of the discussion about domestic. But under (a)(1) it says, ''for an investigation to protect against international terrorism or clandestine intelligence activities.''
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    Now, it's not under your Administration or President Bush's administration that that has ever been used, that clandestine intelligence activity has ever been used without a foreign nexus. And that's my understanding. You only pursue that if there is a foreign nexus. Is that correct?

    Attorney General GONZALES. Congressman, you know, I'm not sure that I understand the question, and I apologize. It's not——

    Mr. GOHMERT. Okay. My terminology is exactly from section 501. It says you can pursue an investigation to protect against, A, international—the ''A'' is mine—international terrorism or, B, clandestine intelligence activities. Now, there's no requirement in that provision that there be a foreign connection. And my understanding is that your office interprets that to mean, or at least you don't pursue it unless there is a foreign connection.

    Attorney General GONZALES. Congressman, I apologize. I don't know the—I can't confirm that. I think that's probably right, but I——

    Mr. GOHMERT. And I'm not trying to trap you.

    Attorney General GONZALES. No, and I understand.

    Mr. GOHMERT. But from your prior testimony, that was my understanding, that there had to be a foreign terrorist connection or you didn't pursue it.
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    Attorney General GONZALES. What the President has authorized is the collection of communications where one in the communication is outside the United States and where we have reasonable grounds to believe, determined by a career professional out at NSA who knows about al-Qaeda tactics, about al-Qaeda communications, about al-Qaeda aims, that that person believes there's reasonable grounds to believe that one party to the communication is a member of—a member or agent of al-Qaeda or of an affiliated terrorist——

    Mr. GOHMERT. No, I've seen your answers and I understood that from your answers, and that's why this is not a trap and it's not something to bully you at all. But I would like to make sure section 501 is better clarified so that in a subsequent Administration that somebody doesn't come in and say, You know what? We're worried this church over here may be involved in intelligence activities in the community that could be clandestine. Never mind there's no foreign link. Therefore, under 501, we think we can go in and start surveilling them.

    And so I was interested in protecting against future Administrations' abusing 501 in an interpretation that has not ever been done before in adding something like ''foreign'' to that provision. Would you have a problem with clarifying that for future use, for future Administrations?

    Attorney General GONZALES. I would be happy to work with you on that.

    Mr. GOHMERT. All right, thank you.
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    One other area, back beginning last June, when I'd seen some newspaper reports that our district attorney in Austin had indicted corporations and then turns around and said, but you know what, if you will give $100,000 here to who I tell you to, I'll dismiss the charge. Not I don't have a case, I'll dismiss it; not I've got a case I'm moving forward. I'm going to extort $100,000 from you to pay over here, and if you'll do that, I'll go ahead and dismiss the charge. Paraphrasing, of course.

    And I had pointed that out in a letter to the U.S. attorney, who kicked it back to Justice here. And then I got a letter in September indicating that. I subsequently followed up and pointed out under 18 U.S.C. section 666—interesting number—that anybody who receives more than 10 grand in Federal money and solicits money or anything of value on behalf of anybody, then they could commit a crime and go to prison for 10 years. And if we can't get the Department of Justice to follow up on what may well be a horrible case of extortion that sends a terrible message to small-time JPs or prosecutors saying, hey, you can extort money however you want to because they won't even pursue $100,000 amount.

    And I'm just wondering, are you open to having your Justice Department look into those type of violations?

    Attorney General GONZALES. What I can say, Congressman, is that the matter is under review.

    Mr. GOHMERT. It is under review? Thank you.

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    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentleman from Virginia, Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. Attorney General, I have several questions, but just one quick question on the wiretap, because the debate has gotten into the question of whether or not the wiretap is a good idea. The real question is whether or not a wiretap ought to be done with a warrant or without a warrant. And that's what we'd like to debate. The basis of your rationale suggests, as the gentleman from California mentioned, would cover just about anything without limitation. And the problem we have is that we really don't know, because of the answers you've given, exactly what the program is all about.

    Attorney General GONZALES. Can I interrupt you just to say that the limitations that I would offer up would be the fourth amendment, search must be reasonable. And of course limitations that the Supreme Court outlined in Hamdi, and that is that the activity must be fundamentally incidental to waging war. So there are limitations.

    Mr. SCOTT. And that decision is made without any checks and balances of a warrant, and that's what the question is. Let me——

    Attorney General GONZALES. Well, the fourth amendment, sir, doesn't require necessarily a warrant. It requires that the search be reasonable.

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    Mr. SCOTT. Okay. And that question—and once the President determines that it's reasonable, then that's the beginning and the end.

    Attorney General GONZALES. And the courts have long recognized that there are special needs outside the——

    Mr. SCOTT. Let me just ask the question. When you do a wiretap, is the target selected on an individualized basis with individualized consideration?

    Attorney General GONZALES. You mean in connection with this program?

    Mr. SCOTT. Right.

    Attorney General GONZALES. As I indicated, I don't want to get—I cannot get into the operations of this. But I can confirm that there is a determination case-by-case, by a career professional at NSA that a party to the communication is a member or agent of al-Qaeda or an affiliated terrorist organization.

    Mr. SCOTT. All that consideration is made on an individualized basis for an individual wiretap?

    Attorney General GONZALES. In connection with an individual communication, yes, sir.

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    Mr. SCOTT. And are there any wiretaps that you're doing that would not—that you would not be entitled to get a wiretap warrant for?

    If you'd gone to get a warrant, could you have gotten a warrant?

    Attorney General GONZALES. Well, of course, without, you know, without—I can't—I can't promise you that we—that a warrant would be approved in every case because obviously it's going to depend on the circumstances, whether or not you can satisfy the probable cause standard. So I can't answer that question.

    Mr. SCOTT. On March 31, 2006, in Los Angeles, California, you made an announcement of an anti-gang initiative. In that initiative, you announced $2.5 million grants and insisted that $1 million of it go to prevention, $1 million go to law enforcement, and $500,000 to re-entry programs to slow down the revolving door when people come right back. Can you please explain to this Committee why a comprehensive approach is necessary to actually reduce gang membership, because we apparently haven't gotten that message.

    Attorney General GONZALES. I believe, Congressman, that when you're talking about kids and young adults, if you're in the area of enforcement, for many of our kids in the Hispanic community and the Black community, the battle is lost. Their future is probably lost. And that's why I think it's important to focus not just on enforcement, which of course is—I think is an important deterrent, but we need to get to these kids before they join the gangs. And that's why education and prevention, I think, is equally important. And of course if we fail in discouraging kids from getting into gangs and they get into gangs and we can prosecute them and they go to jail, then we need to help them become productive members of society. If they need transitional housing, we need to provide that. If they need job readiness training, we need to provide that. If they have a problem with substance abuse, we need to provide—help them with that. So I think it does require a comprehensive approach.
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    Mr. SCOTT. Is it your testimony that a 60 percent for prevention and re-entry is a reasonable allocation of our resources?

    Attorney General GONZALES. I couldn't comment on that, Congressman. What——

    Mr. SCOTT. Well, that's a good—that's not a bad allocation.

    Attorney General GONZALES. What I would say, you know, I'm the chief law enforcement officer of the country. That's my primary focus. But I don't think I can be effective in dealing with this issue if we're not also looking at education and re-entry.

    Mr. SCOTT. And you can do your job a lot better if you'll allocate more resources toward prevention. Isn't that right?

    Attorney General GONZALES. Well, again, it's Congress's job to——

    Mr. SCOTT. Just as you have.

    Attorney General GONZALES. Congress decides where the appropriations should go. I do believe that education and prevention is an important component of addressing the gang violence.
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    Mr. SCOTT. Let me pose two questions to you, since my time is just about up, and get information back if you don't have time to respond. One is deaths in custody. Several years ago, as you know, we passed a bill to report deaths in custody to the Attorney General. Much of that has come in. We'd like for you to comment on that after the—later. And we passed legislation about a year ago on ID theft, which included $10 million to help you investigate consumer ID theft to the extent that people can do this kind of thing and not get caught because of the labor-intensive nature of the investigations. Do you need more money to investigate consumer ID theft?

    And if you could respond to those either quickly now or in writing.

    Attorney General GONZALES. On the death in custody, I will have to. On the ID theft, I'll just say that I'm not here to ask for more money, but I am here to tell you this is a serious, serious problem and I'm worried about it.

    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentleman from Iowa, Mr. King.

    Mr. KING. Thank you, Mr. Chairman.

    And Mr. Attorney General, I do appreciate your testimony here and I know it can't be an easy day. But we all are interested in a number of different areas, and you cover such a broad territory with your responsibilities. I want you to know I respect and appreciate that and I'll seek to focus on the things that are of significant interest.
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    There was testimony before the Crime Subcommittee about activities with regard to ATF and focusing on participants or customers in the firearms shows and some discouraging activities on the part of the ATF that might have—and I want to lay about three questions out here with regard to some of these things that have to do with the second amendment, intimidation, I would call it, of attendees at firearms shows and in fact encouraging local police officers to conduct homes—residency checks and inquiries.

    Another one would be the accuracy of the reports by the firearms dealers. And I know we have at least some testimony on one particular one that had a 4/100ths of a percent margin of error, a .0004 margin or error, yet was facing and received revocation of his license. And the position of the AG's office that no errors are permissible even though the Senate Judiciary Committee report, and the language that was passed in 1986, emphasizes that the definition for the word ''wilfully'' with regard to errors in firearms reports is—and I'll quote—''is to ensure that licenses are not revoked for inadvertent errors or technical mistakes.''

    Your position on those issues. And I hit that quickly because I have another subject I hope I can get. Thank you.

    Attorney General GONZALES. Well, I'm aware of the situation that you referred to in Virginia. Obviously there should not be intimidation. I think what happened there is not going to happen again, let me just say that.

    With respect to the revocation of licenses, there are limits about what we can do. And I know there's some discussion about whether or not there should be more discretion given or alternatives should be pursued in terms of what happens if a license is inaccurate. And all I can say is I'm happy to look at that and work with you on that, that issue.
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    Mr. KING. Is it your position that the word ''wilfully'' has a practical significance with regard to interpretation of the law?

    Attorney General GONZALES. Well, I'd like to get back to you on that.

    Mr. KING. And I hope we can have a conversation on that and look forward to that?

    Attorney General GONZALES. I would look forward to that.

    Mr. KING. Okay, and then—let me shift to another subject. That's section 203 of the Voting Rights Act. You have testified on that to some degree with Mr. Chabot. And I'm reflecting on your statement, if you can't exercise your right to vote, then you can't—if you can't understand English. Well, unless we have the Voting Rights Act, section 203.

    First I'd ask you, with the exception of Puerto Rico, if you could point out circumstances by which a person would arrive at voting age and be able to—and not have a significant command of the English language, at least to the level that they should be able to vote on a ballot in a voting booth. And in those circumstances, how does that happen in America?

    Attorney General GONZALES. Well, I think you can come of voting age and become a citizen with a basic level of understanding of English. But as you know, sometimes when you get into the voting booth, you can have a long ballot, you can have some very complicated referendums, and some people are simply more comfortable if they can read it in a different language.
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    My own personal view, Congressman, is, is that English represents freedom in this country. You need and should be able to speak English well and read and write in English well. And so let me emphasize that. And when I talk to Hispanic groups about this issue, I tell them that's got to be a focus. If we want our kids to progress, that's important. However, I do worry about people not feeling totally comfortable when they go into the voting booth on election day.

    Mr. KING. Okay, thank you.

    And then, with regard to surname analysis, requiring that they use a surname analysis to determine the concentrations of certain ethnicities to direct whether the ballots need to be provided in those languages. And I would point out that, especially Hispanic surnames, are among the oldest surnames in the United States of America. People have been here the longest and may be the most proficient, among the most proficient in English. And I would submit that that's not a legitimate evaluation of the proficiency in language and that we do have census analysis where people self-identify their language skills. Wouldn't it be more appropriate to use the census analysis for that purpose rather than just a simple analysis of surnames?

    Attorney General GONZALES. It may be, Congressman. We have to look at that.

    Mr. KING. And could we have that conversation as well?

    Attorney General GONZALES. Yes, sir.
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    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentleman from Maryland, Mr. Van Hollen.

    Mr. VAN HOLLEN. Thank you, Mr. Chairman. And welcome, Mr. Attorney General.

    Our colleague Mr. Berman in his remarks characterized part of the Administration's legal argument with respect to the wiretapping debate as a ''lack of intellectual honesty,'' and I got to tell you, reading the 43-page report and legal analysis, I think that's an apt characterization. Let me just——

    Attorney General GONZALES. Can I interrupt you?

    Mr. VAN HOLLEN. Yes, you may.

    Attorney General GONZALES. Okay. Can I——

    Mr. VAN HOLLEN. But, Mr. Chairman, you may—if it comes out of my 5 minutes, I really—you can——

    Attorney General GONZALES. Well, go ahead.

    Mr. VAN HOLLEN. All right. Because I only get 5 minutes, and your response—but let me ask you this. Ms. Wasserman Schultz asked you a question regarding this is what you characterized as a collective agreement between yourself, the Administration, and certain leaders in Congress, that it would be difficult to get this authority, this express authority through Congress.
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    Now, let me ask you, you would agree——

    Attorney General GONZALES. Without compromising the effectiveness of the program.

    Mr. VAN HOLLEN. You would agree with me that if you don't have that authority, an agreement between yourself and leaders of Congress doesn't make it okay to go ahead, right?

    Attorney General GONZALES. Absolutely. And whether or not FISA works or not, it wouldn't matter. I mean, that's not the question. The question is: Does the President have the authority?

    Mr. VAN HOLLEN. Let me ask you this: Who—which—if you could tell us this collective agreement, what Members of Congress made this agreement with you?

    Attorney General GONZALES. What I can say is that the leadership——

    Mr. VAN HOLLEN. I don't think it's a question of Executive privilege. This is a discussion with Members of Congress. Can you tell us which—there is this collective agreement. Who was it?

    Attorney General GONZALES. Certain Members in the House and certain Members in the Senate——
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    Mr. VAN HOLLEN. And you're not—you're not willing to tell us who made the collective agreement?

    Attorney General GONZALES. I can say that the leadership of the Congress and the leadership of the Intel Committees.

    Mr. VAN HOLLEN. Democrat and Republican both?

    Attorney General GONZALES. Both sides of the aisle.

    Mr. VAN HOLLEN. All right. Let me ask you—I'm trying to understand the extent to which the authorization to use force in Afghanistan is essential to your argument, so let me give you a hypothetical. If you had an organization out there that was not related to al-Qaeda in any way, under your analysis would the President still have the legal authority to intercept electronic transmissions if they believed they were someone wanting to do harm to the United States or involved in some activity or plot to do harm to the United States, under your analysis could the President use the NSA program to intercept those communications?

    Attorney General GONZALES. Well, I need to go back and look at the language, the specific language with respect to Afghanistan. You're talking about the authorization to use force——

    Mr. VAN HOLLEN. Yeah.

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    Attorney General GONZALES [continuing]. That passed? Okay. Okay. And, again, your question, Congressman? I'm sorry.

    Mr. VAN HOLLEN. Well, my question goes to what extent does your argument hinge on the authorization to use force. So if you had—under the authorization the President has to make a finding that the organization is somehow related to al-Qaeda, okay? Let's say you had an organization out there we considered a terrorist organization, but it had no relationship to al-Qaeda. We suspect they're involved in a plot against the United States. Can you use the NSA wiretap?

    Attorney General GONZALES. Well, then we're—look, in evaluating that question, I referred to Justice Jackson in the Youngstown analysis in terms of whether or not—what is the scope of the President's power versus congressional power. And so we believe that—it's a three-part test, as you know, and we believe that with the authorization to use force, you are in the first part. Congress—the President is taking action consistent with the express or implicit approval of Congress. And there his authority is the greatest.

    If you don't have the authorization to use force, that doesn't mean that the President taking action is unlawful. It simply means you move into the third part of the Jackson analysis, where you have the President taking action, exercising his constitutional authority, minus whatever constitutional authority Congress might have in the area, and so we would have to make that evaluation as to whether or not—could Congress constitutionally limit the President's authority under the Constitution as Commander-in-Chief to engage in electronic surveillance of the enemy. That's the analysis that we——
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    Mr. VAN HOLLEN. Well, let me just ask you with respect to that issue. Do you think FISA—I mean, part of your argument under the authorization to use force is——

    Attorney General GONZALES. I think it would—it would raise serious constitutional concerns, and, you know, I go back to Judge Silberman's statement in In Re Sealed, the 2002 case of the FISA Court of Review, where he looked at the—he canvassed the Court's decisions about the President have authority and said all the courts that have looked at this issue have found that the President of the United States has the inherent authority under the Constitution to engage in electronic surveillance of the enemy for foreign intelligence purposes. And assuming that to be true, FISA cannot encroach upon that authority.

    Mr. VAN HOLLEN. Let me ask the last question here, which is that what is it under the FISA statute, if anything—what kind of standards or criteria in that statute that would make you unable to get the authorization from the FISA Court to do the kind of intercepts that are being done now?

    Attorney General GONZALES. I'm not suggesting that we wouldn't get the authorization. It's a——

    Mr. VAN HOLLEN. Let me—could I give you a hypothetical?

    Attorney General GONZALES. It's a question of timing.

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    Mr. VAN HOLLEN. If I—let me just give you a hypothetical. If we were to take the FISA justices and put them over at the NSA, in your opinion is there any intercept that you're receiving now that they would not authorize under the current FISA statute?

    Attorney General GONZALES. Well, that's an impossible question for me to answer. What I will say is that the question is not whether or not a FISA Court would approve the application. The question is the time it would take. We're not talking—with respect to FISA, in a straightforward case you may be able to get approval from the Court within a matter of hours or days, or maybe weeks. But under FISA it could be days, weeks, months. And so when you're talking about fighting an enemy that we're fighting today where information is critical, in certain circumstances that's the problem that we have under FISA.

    But let me just emphasize, FISA in my judgment has been a wonderful tool. It really has been, and we utilize it all the time. What people need to understand, though, is FISA—we use FISA not just for foreign—we use FISA for collections here within the United States. We use FISA against foreign powers beyond al-Qaeda. And we use FISA even during peacetime.

    And so because of those circumstances, I think the restrictions that we have in FISA probably make sense when you're talking about domestic collection in peacetime. And so when we—when people start talking about amending FISA, I think people need to understand that FISA covers much more than simply international communications involving al-Qaeda.

    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentleman from Virginia, Mr. Forbes.
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    Mr. FORBES. Thank you, Mr. Chairman, and thank you, Mr. Attorney General, for being here today.

    When I hear some alarming statements like we're headed for this looming crisis of confidence or this great constitutional crisis or the sky is falling, they concern me, or at least they did 35 years ago when I first read about them and I heard them being made as a political science student in undergraduate school. And then I quickly realized that every time somebody didn't like the Administration or they didn't like a particular law, they reached up and grabbed those off the shelf and used them, instead of sometimes looking at the facts.

    Today, I'd like for you to examine some of the facts. In section 202 of H.R. 4437, that was where we reformed the anti-smuggling provisions in the Immigration and Nationality Act, and specifically two questions.

    One is, What problems, if any, are there with the current anti-smuggling provisions? And would section 202 address those problems?

    And, secondly, we've heard a lot of critics of the House bill who have alleged that these provisions would be used to prosecute priests and doctors who provide aid to illegal aliens. How valid are those allegations?

    Attorney General GONZALES. Well, I would be worried about it if I were a priest or doctor, quite frankly. I know that's not the intent. As I indicated before in response to an earlier question, the U.S. Attorneys on the Southern border are concerned about the current language, the current law, and they appreciate a tightening up of the language. No one, however, wants to engage—no one wants to criminalize Good Samaritan behavior.
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    The other thing I worry about is creating whole carve-outs, quite frankly, because we then tell alien smugglers what conduct they should engage in and they would fall within the safe harbors provided in the statute.

    And so it's a delicate balance and I understand it, but I think the law can be written in a way that we make it easier for prosecutors to go after alien smugglers, but we don't criminalize priests and doctors who simply want to help their fellow man.

    Mr. FORBES. It's been reported that China has over 3,000 front companies in the United States that exist mainly to obtain sensitive U.S. technology. In February 2006, a Federal grand jury indicted two men on charges of conspiring to illegally send military equipment, including an F-16 jet aircraft engine to China, in violation of the Arms Export Control Act. Where would you rank China on the list of the top ten suspicious foreign collection efforts against the U.S.? And would you consider China to be one of the top counterintelligence priorities? And how is DOJ responding to this threat?

    Attorney General GONZALES. I would consider China to be one of the top counterintelligence priorities for the Department. I would prefer to defer to perhaps the DNI or the CIA Director in terms of where I specifically would rank China. We have a very active—regrettably, we have a very active and robust counterespionage section within the Department because there are a lot of countries, of course, that are engaged in espionage against the United States from abroad and here within the United States. That counterespionage section is going to, as you know, be merged into the National Security Division. When that is stood up, I think that that will make us much more effective. We're asking for additional agents to help us with this effort. But the bottom line for us is it's a serious threat to the national security of this country.
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    Mr. FORBES. The last question I have for you is I am deeply concerned about the criminal prosecution of obscenity cases, and we're well aware of the proliferation of trafficking in and display of obscene material, much of which exploits children, women, and other innocent victims, and only whets the appetite of pedophiles and sexual abusers.

    Can you outline for the Committee what steps the Justice Department has taken and will take to increase the investigation and prosecution of these kind of crimes?

    Attorney General GONZALES. Well, it is a serious issue. I outlined in my opening statement that we've created this new initiative, Project Safe Childhood, where we want to work with the Internet Crimes Against Children Task Forces that currently exist. We want to supplement their efforts. U.S. Attorneys now understand that this has to be a priority for the Department, and through that effort we intend to provide planning in terms of the strategy district by district. We intend to provide training to State and local prosecutors. We intend to provide education, which means that we need to alert parents how serious this threat is to our children.

    And so it's something that we are very focused on. We've created an obscenity prosecution task force within the Criminal Division of the Department of Justice, and I believe that there have been 46 prosecutions over the past few years. Sometimes these can be different cases to make, but we're focused on it. I think it's important. I've had a lot of parents come up to me and say they need help in protecting their children, even within their own homes.

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    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentlewoman from California, Ms. Sánchez.

    Ms. SÁNCHEZ. Thank you, Mr. Chairman, and thank you, Mr. Attorney General, for being here.

    As you may know, your Department entered into an agreement with California's Secretary of State to implement HAVA's voter database requirements, and that's resulting in L.A. County a rejection rate of 43 percent of all new voter registration forms. And the registrar recorder of Los Angeles County, the League of Women Voters, many others, including myself, are very concerned about the potential disenfranchisement of these voters that this could cause.

    So I'm wondering if you would commit to respond to some written questions specifically regarding that database and why the rejection rates are so high.

    Attorney General GONZALES. I'd be happy to do that. I was in Los Angeles just last week. I spent some time with the mayor, and he didn't raise it with me, but if this is—obviously it sounds like a serious issue. I'd be happy to look at it.

    Ms. SÁNCHEZ. Very serious. Forty-three percent is a pretty high rejection rate, and I appreciate your willingness to answer some specific questions on that.

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    I want to move to some questions regarding immigration. Last year, the House passed Chairman Sensenbrenner's immigration enforcement bill, and one of the most controversial provisions of that legislation would make unlawful status a criminal offense. If that provision becomes law, there will be an estimated 11 million new criminals in the United States.

    I know that the Justice Department has ceded authority over immigration to Homeland Security, but your Department retains the jurisdiction over enforcement of our criminal law.

    So my question to you is: Does the Justice Department have the resources to arrest and process 11 million potentially new criminals in the United States?

    Attorney General GONZALES. Obviously, it would present a challenge to the Department.

    Ms. SÁNCHEZ. Would it require significant plus-up in funding for the Department to enforce that?

    Attorney General GONZALES. Well, again, I'm not here to talk about or ask for increased funding for the Department, but it would present some significant challenges for us.

    Ms. SÁNCHEZ. Okay. A 2003 Inspector General's office report found a sharp rise in civil rights and civil liberties complaints filed by immigrant detainees immediately the PATRIOT Act became law. How many civil rights complaints have immigrant detainees filed against the Department of Justice since you were sworn in in February?
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    Attorney General GONZALES. I do not know, but we obviously can——

    Ms. SÁNCHEZ. Can you provide that information for us?

    Attorney General GONZALES [continuing]. Provide that answer.

    Ms. SÁNCHEZ. As well as providing us with the number of complaints that were filed, could you also break out the number of those complaints that involve acts of violence?

    Attorney General GONZALES. If we can do that, yes.

    Ms. SÁNCHEZ. Okay, great. As you know, immigration is a pretty timely topic, and the Senate is currently involved in the issue of how to fix our broken immigration system. And one issue that they are trying to address is employer sanctions. In 2005, the Department of Justice only instituted sanctions against three companies in the entire country for their use of undocumented labor.

    So my question is: Why aren't we enforcing the laws against hiring illegal labor by applying employer sanctions on the books against those who violate those laws?

    Attorney General GONZALES. I think that's an excellent question, quite frankly. Someone mentioned that to me on my West Coast trip, and I found it somewhat—I found it surprising and somewhat alarming, quite frankly. And I don't know whether it's a situation of these kinds of cases being difficult to prosecute. I don't know the circumstances, but I intend to find out. And I agree that we need to have comprehensive immigration reform, and part of that has to be enforcement of employer sanctions. They have a role to play. I think we need to—we need to have a structure in place where it's not so burdensome upon employers to make a determination whether someone is in status or out of status. But once we've got that infrastructure in place, we need to ensure that employers are following the law. And I think in order to have an effective immigration policy, that's got to be an important component of it.
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    Ms. SÁNCHEZ. So this is just an issue that you've recently become aware of?

    Attorney General GONZALES. I recently became aware of it last week, actually, on my trip to Los Angeles.

    Ms. SÁNCHEZ. So it never occurred to you that perhaps the pull for many of these immigrants is work opportunities and that one way to try to reduce that pull would be to try to enforce laws that are on the books right now——

    Attorney General GONZALES. Quite the contrary. Quite the contrary. There's a reason—I know the reason why people come to this country. It's because they want a better life, a better job to provide for their families. No, I understand why people come into this country.

    Ms. SÁNCHEZ. But yet when we talk about enforcement of immigration, it seems like the enforcement aspect of it is simply upon the people that are coming and not upon the economic pull that brings them here——

    Attorney General GONZALES. Well, I agree that we shouldn't just focus on the folks who are coming. We should focus on the people that are helping them come, like the alien smugglers, and we ought to be focusing on employers who are hiring them when they shouldn't be. I agree with that.

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    Ms. SÁNCHEZ. So you would use your leadership then to try to help enforce the laws that are on the books against those who are violating——

    Attorney General GONZALES. I think that's important.

    Chairman SENSENBRENNER. The gentlewoman's time has expired.

    The gentleman from Virginia, Mr. Goodlatte.

    Mr. GOODLATTE. Thank you, Mr. Chairman.

    Attorney General, welcome. We are delighted to have you with us today, and we appreciate your being willing to take so many questions on such a wide variety of issues.

    I'd like to talk to you about intellectual property, but before I do so, I do want to acknowledge the interests of the last Member who questioned you about immigration issues and her concern about the fact that legislation is now pending which makes people who are illegally in the country felons. As she knows, an amendment was offered on the floor of the House to revert that back to a misdemeanor status, and she and all but eight other Members on her side of the aisle voted against that amendment. So while I appreciate her concern, I'm a little perplexed by the way that she and other Members of her party have handled that, because the opportunity existed to eliminate that——

    Ms. SÁNCHEZ. Would the gentleman yield?

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    Mr. GOODLATTE [continuing]. Provision, which I voted for. I'm afraid I don't have enough time because I've got to ask some other questions, but we'll talk, I'm sure, later.

    Attorney General Ashcroft in 2004 released a report of the Department's task force on intellectual property. It was completed after a very thorough investigation and analysis and contains a number of very thoughtful suggestions, and I'd like to ask you to ask the Department to take a look back at that report to see what recommendations have been implemented, which have not, and whether or not there is anything that we can do to help you follow through on some of the recommendations that would help us to combat the unauthorized reproduction and distribution of copyrighted materials. This is a very, very serious problem around the world, but that includes a serious problem here in the United States, and——

    Attorney General GONZALES. Congressman, I believe—I will confirm this, but I believe all the recommendations have been implemented or we're certainly close to it. Shortly after I became Attorney General, I decided to continue the work of the intellectual property task force so that we could move forward and make sure that the recommendations were implemented. I agree this is a serious issue. It is an issue that I can't deal with solely within our borders, and that's why when I travel overseas, particularly to China, for example, we talk about the importance of the enforcement of intellectual property laws and the protection of intellectual property rights. And so I agree with you this is an important issue, and I can assure you that we're focused on it.

    Mr. GOODLATTE. I thank you, and that is encouraging. If you would, if you could have somebody respond to the Committee with information about how the report is being implemented, that would be very helpful for us to conduct our oversight in that area.
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    One thing I'm particularly interested in is how many FBI agents are dedicated to intellectual property crimes, and I understand the competing priorities that face the Justice Department and the FBI, but intellectual property is our economic future and it demands a lot of attention.

    Do you think the Department needs more agents in this area?

    Attorney General GONZALES. Congressman, let me see what we are already doing and maybe have a conversation with the Director before answering that question. We obviously can give you an answer.

    Mr. GOODLATTE. And, also, if you feel that in your efforts to implement that report and other efforts you think that we should be providing you with additional resources, including human resources, to fight piracy, please let us know that as well.

    Attorney General GONZALES. I'd be happy to do that. Of course, we have recently suggested some changes in the laws, and so there are some additional tools that would be helpful. I'd be happy to visit with you about that as well.

    Mr. GOODLATTE. The other area that I'd like to address with you is something that—there was a brief discussion regarding child predators earlier on, and we certainly appreciate your concern and your efforts to deal with that. I wonder if you could explain the extent to which the Department is enforcing our Nation's obscenity laws in general, including any recent prosecutions of online obscenity?
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    Attorney General GONZALES. Well, there's been a lot in the news lately about that. I indicated earlier that we have—in 2005, I did establish an obscenity prosecution task force within the Criminal Division at the Department of Justice. It is led by a career prosecutor. We have five attorneys dedicated to it. We have ten FBI agents. We have one agent from the Internal Revenue Service and one postal inspector. And so we've had something like, I think, 46 prosecutions in the past few years, and I believe that there are still something like 12 persons or entities under indictment. And so those represent sort of the scope of our efforts.

    I must tell you, this is an area that I have concerns about. With the changing technology, it is so easy to access obscene materials. And it's so easy for our children through their cell phones, through the iPods, through computers, and it's something that I worry about, quite frankly, as a parent and as the chief law enforcement officer of the country. And I would urge Congress to likewise focus on this issue.

    Chairman SENSENBRENNER. The gentleman's time has expired.

    We are about ready to have a vote, and let me outline what the process will be after the bell rings.

    The next Member who is up for questions is the gentlewoman from California, Ms. Waters. There will be one vote only. There is no previous question vote or no rolled votes that are scheduled. And the vote will take place at 11:30. After whoever is questioning the Attorney General at 11:30's time has expired, the Committee will then recess for 45 minutes, and 45 minutes after the recess time, we will come back.
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    I will call on Members who have not asked questions in the order that they have appeared, so those of you who haven't asked questions have a great incentive to come back, to be here when we start up again. And then we'll go through a second round of questions until the time we have the AG for runs out. And that will be in the order in which everybody appeared this morning rather than when they appeared this afternoon.

    The gentlewoman from California, Ms. Waters, is now recognized.

    Ms. WATERS. Thank you very much, Mr. Chairman.

    Mr. Gonzales, you were in my district at Jordan Downs Housing Project. You came with some kind of program. I don't know what it is. I'm reading about some of it in the paper. Don't you think that it would make good sense that you would have the—give me the common courtesy of indicating that you're going to come to Jordan Downs Housing Project and you're going to pay for cameras to be installed and you're going to put together a task force or a team working with someone supposedly to deal with gang problems and crime. I was just there 2 weeks prior to your coming in, with the Black History Month celebration, with the employment project where I had UPS and a contractor with Verizon, and others coming out to help get people jobs. I have to give some hope. I wasn't able to talk with them about your visit because I didn't know about it, and now some people think that simply I came to pave the way for you to come in and bring cameras to place them under surveillance.

    There probably is no good answer——

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    Attorney General GONZALES. The answer is it would have been courteous.

    Ms. WATERS. I beg your pardon?

    Attorney General GONZALES. Yes, it would have been courteous to do so. Yes, ma'am.

    Ms. WATERS. Do you plan on doing that in the future?

    Attorney General GONZALES. Yes, ma'am, I think that would be a good idea.

    Ms. WATERS. Yes, please, don't come back without doing it, okay?

    Secondly, we are in the middle of an immigration reform debate in the Congress of the United States. Many of us voted against Mr. Sensenbrenner's bill because it's too tough, it's too punitive. It makes felons out of folks who, as you said, are coming to work to try and have a better life.

    We support a path to legalization, but in the middle of this debate, while we're fighting for a path to legalization, we find when we look down in New Orleans Federal contractors are hiring illegal immigrants. You're doing nothing to enforce the law. You keep talking about you enforce the law. An article that appeared in the Los Angeles Times documents 10,000 to 20,000 immigrants and all of the description of how they're sleeping, basically on the ground, eating one meal a day, being exploited by Federal contractors. You appear to be just as blind as Brownie, who didn't see all of the folks in New Orleans who were outside the Convention Center.
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    Why aren't you enforcing the law?

    Attorney General GONZALES. Congresswoman, we are enforcing the law. I don't——

    Ms. WATERS. You're not enforcing the law. Why aren't you enforcing the law in New Orleans?

    Attorney General GONZALES. Well, we are enforcing the law in New Orleans, and we do have a good story to tell with respect to, say, for example, enforcing fraud through our Hurricane Katrina Task Force.

    Ms. WATERS. How many contractors have you cited for breaking the law?

    Attorney General GONZALES. I don't know but we can certainly find out.

    Ms. WATERS. No, don't find out and tell me. Do your job. Get a special task force. Go into the golf course. You cite those contractors who are breaking the law and exploiting these workers. You are not doing your job, Mr. Attorney General.

    Attorney General GONZALES. Yes, ma'am.

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    Ms. WATERS. And we want it done. You add to the fire that's going on here. It's hard for us to continue to fight for a pathway to legalization while people see what is going on and the Attorney General is not enforcing the law. We cannot make excuses for you, so don't sit here and try to patronize me and talk about, yes, I understand, and, yes, I will get back to you. Don't get back to me. You just do your job.

    In addition to that, let me talk to you about Georgia. Why did you override your team, your staff, Mr. Robert Berman, Amy Zebrinski, Heather Moss, and Toby Moore, who were part of a five-person task force inside your office that advised you about the ID requirements of the legislation that was presented for clearance to you from Georgia? You rejected their advice. You literally took a State with a history of denying voting rights. You literally took that State, who has a requirement to have any changes in the law cleared by you, and you overrode your staff, allowing them to require six forms of ID rather than 17 forms of ID, and still with the requirement that the ID be purchased. And this business of signing some form to say you are too poor to pay for it you seem to think is all right, and you were advised that the information was——

    Chairman SENSENBRENNER. The gentlewoman's time has expired. Would the Attorney General care to answer that?

    Attorney General GONZALES. We did our job with respect to looking at what the law requires and preclearing the law in Georgia. And the fact that there may be disagreement, not just within the Civil Rights Division but within every other component within the Department of Justice doesn't mean the decision was wrong or unlawful. It simply means that there may have been disagreement.
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    At the end of the day, the bottom line from my perspective is: Have we made the decision that is supported by the law in this case? We did.

    Chairman SENSENBRENNER. The gentleman from Arizona, Mr. Franks——

    Ms. WATERS. Mr. Chairman, unanimous consent for 30 seconds, please.

    Chairman SENSENBRENNER. The Chair will object to that because the ground rules were established, and we're 5 minutes away from——

    Ms. WATERS. Well, I'll say it anyway. Mr. Gonzales, you ought to be ashamed of yourself.

    Chairman SENSENBRENNER. The gentlewoman will comply with the rules.

    The gentleman from Arizona, Mr. Franks, is recognized.

    Mr. FRANKS. Thank you, Mr. Chairman, and thank you, Mr. Attorney General. I have to applaud your patience and attitude here in the face of some impertinent comments from some of the Committee Members here. I think you've done a great job, and just for the record, you don't need my permission to come to my district. You're welcome anytime. And we would be glad to have the Attorney General of the United States promoting justice in Arizona.
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    Having said that, I know you've faced a lot of questions today related to the terrorist surveillance program by the Administration, and I would be numbered among those, sir, that believe that the President's designation as the Commander-in-Chief of the United States of America not only empowers him in this particular program, but certainly I think he would have a duty to do some of the things that I think the program is doing. I think it's very important, what you're doing.

    It occurs to me that if the President has the constitutional power and even the authority from this Congress to hunt down terrorists, to ferret them out and kill them, that he probably should also—that should encompass his power to listen to them on the phone before he proceeds.

    And having said that, I know that the questions have been focused on the FISA Court and the FISA issue here. And, incidentally, I think you would have been also derelict to try to bring the law—to try to change the law in the FISA Court in the face of some of the demagoguery that's in this body right now. I think you would have probably, as you say, worked against the national security in bringing that issue before the Congress.

    Having said that, the FISA Court has on two occasions made clear indication that the President was—that Presidents were within their constitutional authority to surveil foreign terrorist communications in our country. Do you know of any case where the FISA Court has ever ruled to the contrary in any way?

    Attorney General GONZALES. Not only the FISA Court, but I'm not aware of any court ever saying that the President does not have the inherent authority under the Constitution to engage in electronic surveillance for foreign intelligence purposes, and all of those cases were in the peacetime context. And so I think it's even more true than in a wartime context. One could make certainly a stronger argument that the President has the authority under the Constitution.
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    Mr. FRANKS. Thank you, Mr. Attorney General.

    I am going to have to, in the interest of time here, shift gears on you here a little bit, come closer to home, in a situation that's occurred in my district that I'm really not sure how quite to handle.

    With a lot of the discussion of immigration, all of us believe that the immigration laws need to be enforced and that there should be a fair and balanced approach regardless of where those immigrants come from.

    Recently, some of the Serbian immigrants that have come to my district, who came here documented and in a legal fashion, I believe were subjected to what amounts to a vendetta on the part of a person within the U.S. Attorney's Office. And just to briefly explain it, this person in the U.S. Attorney's Office is a former prosecutor from the Hague and called upon some of the Serbian immigrants who were already in this country with good jobs, doing things that we would all consider productive to the United States, were called upon to testify in what would be a political trial—or a trial that—they were called upon to testify, and they felt like that this might put them in some sort of danger or otherwise, and they were in no way required to testify. But on being told that they would not testify, the U.S. Attorney suggested to them that they would be hearing from her, and they certainly were. They were arrested and their lives were disrupted in the most profound way, and the basis was a retroactive examination of their application for citizenship. And some of the reasons given were very arbitrary and not applied across the board.

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    I'm just wondering who would—we have contracted—we asked the U.S. Attorney to meet with us, and they refused to do that. Who would in your Department be someone that we could look to to take a look at that? Because the situation is pretty blatant.

    Attorney General GONZALES. Well, why don't you communicate, if you don't mind, Congressman, with Will Moschella, who is our legislative person, and we'll see what's going on here.

    Mr. FRANKS. We'll do that. Then in the 30 seconds that I have remaining, could you address the guidelines by the military on chaplains who are—in some cases the guidelines that say to certain chaplains in our military that they cannot pray according to the dictates of their own faith in a public situation. It seems to me, you know, that one of the cornerstones of all freedom is the freedom of religion. If you can tell people what to think or who to worship or how to worship, then it seems like you've taken every vestige of freedom from them.

    Attorney General GONZALES. Congressman, I'd have to defer to the Department of Defense. I'm not as familiar as perhaps I should be with respect to the DOD guidelines.

    Mr. FRANKS. I'm hoping you'll take a look at that, Mr. Attorney General. Thank you for being here, sir.

    Chairman SENSENBRENNER. The gentleman's time has expired.

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    We are about ready to get to a vote, so there is now going to be a previous question vote on the rule as well as on the rule itself. I think that what we should do then is simply recess for an hour and come back at 12:30. And the order of questioning will be Weiner, Inglis, Lofgren, Flake, Nadler, Feeney, Wexler, and Issa. And then we'll go to the top of the list.

    So those of you who are at the top of the list that I just read off have an incentive to be back here at 12:30.

    Without objection, the Committee is recessed until 12:30.

    [Whereupon, at 11:31 a.m., the Committee was recessed, to reconvene at 12:30 p.m., this same day.]


    Chairman SENSENBRENNER. The Committee will be in order. A quorum for the taking of testimony is present. When the Committee recessed for the lunch break, the Attorney General was responding to questions of Members who are recognized under the 5-minute rule. We will continue that procedure this afternoon until 3 o'clock. The next in the order of appearance this morning to be recognized is Mr. Weiner of New York.

    The gentleman from New York is recognized for 5 minutes.

    Mr. WEINER. Attorney General, welcome.
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    Mr. Attorney General, do you have the highest security clearance that is available in the United States Government?

    Attorney General GONZALES. As far as I know, yes.

    Mr. WEINER. Is it—and this is probably an obvious question, it is illegal for you to share information you got that was classified with another citizen who doesn't have that type of clearance. is that correct?

    Attorney General GONZALES. Yes.

    Mr. WEINER. Is it also illegal for you to tell someone who works for you, say your deputy, to go share information? Is that still a crime for you to do, or is it just a crime for that person?

    Attorney General GONZALES. Well, if I don't have the authority, I guess potentially that's a crime for me. If that's your question. I mean——

    Mr. WEINER. It is. So——

    Attorney General GONZALES. Would I have the authority to grant that clearance?

    Mr. WEINER. No. No, what I'm saying is if this was information that was not supposed to be going to Person X, and you told the first deputy attorney general give this information to Person X. Would both he and you, both your deputy and you, be committing a crime under the existing statute?
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    Attorney General GONZALES. Possibly, Congressman. I guess I—I'd want to think about that, but I—yes, possibly.

    Mr. WEINER. Can you tell me a situation where it wouldn't be just so I can understand the law?

    Attorney General GONZALES. No. I can't tell you a situation. But again, if in fact this is a line of question that you're serious about, I'm happy to look into it.

    Mr. WEINER. If I gave you any impression that I wasn't serious about my line of question, I apologize for that, because I'm asking you a serious question.

    Attorney General GONZALES. Right.

    Mr. WEINER. If the President, hypothetically, were to share classified information with a citizen who were not entitled to that information, not covered by the highest security clearance—this was classified information, he shared it with another person—is the President covered under the same law that you and I are?

    Attorney General GONZALES. No. He's not.

    Mr. WEINER. He's not. Tell me a little bit about the differences, just in the context of sharing classified information with someone who is not entitled to have it.
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    Attorney General GONZALES. I think the President has the inherent authority to decide who in fact should have classified information. And if the President decided that a person needed the information, that he could have that information shared.

    Mr. WEINER. Under any circumstances? Just if he wanted to, say, give it for a purpose that it would help with the national security, he could share that information?

    Attorney General GONZALES. He could decide—I believe the President would have the authority to simply say this information is no longer classified for purposes of sharing it with this person. I think that there's a national security interest in having this information shared with this individual.

    Mr. WEINER. Gotcha. Now, if—does that authority that the President have extend all the way down the chain? For example, if he said to the Vice President, who then said it to the Vice President's chief of staff, who then said it to someone else, how far in your scene, does the President's authority only go for his direct actions or anyone working beneath him?

    Attorney General GONZALES. I don't know, Congressman. That's not a question that I've ever—that I've thought about, so I don't know the answer to that.

    Mr. WEINER. It's not a question you've——

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    Attorney General GONZALES. I don't know the answer to your question.

    Mr. WEINER. Gotcha. And in the context of the present news, I'm puzzled that you hadn't thought of it. I mean, frankly, since the——

    Attorney General GONZALES. Well, Congressman, I'm——

    Mr. WEINER [continuing]. Testimony—let me just finish my question. Since there has now been public testimony in front—or testimony that has become public that alleges exactly that thing, that the President said to the Vice President you go reveal the—tell your deputy or you take whatever means are appropriate or you think to do this, to leak classified information, that's exactly the allegation that is being considered now by prosecutors, is it not?

    Attorney General GONZALES. Well, I don't know what's being considered by prosecutors because I'm recused from that case. And that's why I haven't thought about this issue. And I don't know exactly the details of what's been reported. There's oftentimes information on television that is totally inconsistent with the truth. But——

    Mr. WEINER. What is the—where were you, what job did you have at about July of 2003?

    Attorney General GONZALES. I was the Counsel to the President.

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    Mr. WEINER. And tell me a little bit, did you—as part of your job description, not as part of your specific acts, part of your job description, offer the President advice on compliance with Federal law?

    Attorney General GONZALES. Of course. Part of my job was to give the President advice regarding authorities, yes, legal authorities.

    Mr. WEINER. And you'd never once considered the idea whether the President would be acting lawfully if he asked his Vice President or someone working for the Vice President to reveal top secret information? That never—that's not something you even thought about?

    Attorney General GONZALES. Congressman, I can't recall whether or not that was something that I ever thought about. And if it was something that we ever discussed, it's not—it would not be something that I would disclose to this Committee.

    Mr. WEINER. Understood. And just so I understand, in conclusion, what is the penalty if you, the Attorney——

    Attorney General GONZALES. I don't know.

    Mr. WEINER. I haven't finished the question. What is the penalty or the range of penalties if you, the Attorney General, or the President of the United States, or a Member of Congress, willingly, knowingly—leave out those other words—passed along tip secret information to someone who did not have the right to have it, didn't have the clearance? Do you have any idea what the penalties are?
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    Attorney General GONZALES. I do not know.

    Mr. WEINER. If you could, would you——

    Chairman SENSENBRENNER. The time of the gentleman has expired.

    Mr. WEINER. If you would be so kind before my second round, perhaps a member of your staff can get that information? Thank you.

    Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Forbes.

    Mr. FORBES. Thank you, Mr. Chairman.

    Mr. Attorney General, once again thank you for being here. I've got two questions I'd like to ask. First of all, I want to clarify an earlier response that you had to a question that I asked you about the application of the anti-smuggling provisions in section 202 of H.R. 4437. If that provision were passed in the form as passed by the House of Representatives, would the Department of Justice prosecute priests and doctors who provided humanitarian aid to illegal immigrants?

    Attorney General GONZALES. No, we would not.

    Mr. FORBES. Has the Department of Justice ever prosecuted individuals who have provided purely humanitarian relief to illegal immigrants?
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    Attorney General GONZALES. No, I don't believe so.

    Mr. FORBES. And in fact the language that's in the bill, your Department has looked over previously before the passage. Is that correct?

    Attorney General GONZALES. That is correct.

    Mr. FORBES. Okay. And the other question I had was in relationship to your response to Congressman Scott's question about gangs, when he asked it earlier, and the prevention aspects of it. The information that I have here is testimony and information that we received when we were doing the gang legislation. All the experts that we had testified in law enforcement across the country agreed on certain things about gang activity in the United States. One of the things that they agreed upon was that if we want to successfully go after the gangs, that we've got to do what we did with organized crime, and that is to bring down the gang networks. Would you agree with that?

    Attorney General GONZALES. I would.

    Mr. FORBES. The other thing that they seemed to be unanimous about is, if you looked at some of the most violent gangs we have in the country, particularly MS-13 among others, that anywhere between 65 and 75 percent of the members of that gang were here illegally. Do you agree with those numbers?

    Attorney General GONZALES. I don't know with certainty, but that wouldn't surprise me.
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    Mr. FORBES. A huge percent, a large percentage. Now, specifically, could you tell us what prevention programs that we could utilize that would help us in going after the networks and bringing those down or help reach those individuals who are here illegally in those gangs, what would you recommend that we use in prevention programs that would stop those two aspects?

    Attorney General GONZALES. Well, I don't know that I can identify specific programs that would be effective vis-a-vis the network or vis-a-vis certain kinds of gangs or certain kinds of gang members. The truth of the matter is, is that perhaps the only thing we can do is enforce the laws and prosecute these folks.

    When I was talking about the importance of education earlier, what I meant—what I said, certainly intended to say, was that there is certainly a group of—a segment of our community, young kids in particular, that there is hope that we can discourage them from joining a gang. But I didn't mean to suggest that prevention or education would be effective in all cases. And as I indicated in my earlier response, as the chief law enforcement officer of the country, I am focused on law enforcement. We have about, for the 2007 budget, about $400 million that we're spending on gangs, dealing with the gang issue. And a vast majority of that is for law enforcement, because that is the primary responsibility of the Department of Justice.

    Mr. FORBES. And the only reason for my question, and to follow up, is that all the testimony that we've had from families and people across the country is not that prevention programs don't have a place but, as far as our priorities, that the top priority we have is to bring down those networks, that we've got to go after the networks.
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    And the second thing is that many of our prevention programs, although they make us feel good and we like to do them because they're the right things to do, that sometimes, if you're talking about people coming here illegally in the first place, they bypass those prevention programs, so they're not going to be valid in pulling down the networks.

    And the third thing is a lot of the kids that we want to reach are scared to death to go out in their neighborhoods to get to the prevention programs because of these networks.

    And so our focus has been go after the networks, pull them down, go after the people here illegally, and then use the prevention programs. Would you agree with that approach?

    Attorney General GONZALES. I agree with that approach, yes.

    Mr. FORBES. Thank you, Mr. Attorney General. Thank you, Mr. Chairman.

    Chairman SENSENBRENNER. The gentlewoman from California, Ms. Lofgren.

    Ms. LOFGREN. Thank you, Mr. Chairman. And I welcome the opportunity, Mr. Attorney General, to ask you several questions about the NSA program that has been the subject of our—so much of the questioning in the morning session.
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    Before I do, I think that it's important to clarify the concern here. I would guess that we would have a unanimous conclusion among the Members of this Committee and, I would say, probably among the Congress that if someone in the United States is talking to an al-Qaeda member, that we want to know about that. That's not the problem. The problem, or the concern, is whether it's really more an article I concern than a fourth amendment concern, and whether the rule of law, whether laws duly enacted are going to control the Executive branch. This isn't about President Bush, it's about the Executive branch and about the legislative branch.

    So I'm seeking to understand exactly what the Department—or what the Administration has done, why they have done it. And I think a good outcome would be to regularize this in a way that preserves the rule of law, frankly.

    You testified in the Senate that the Department of Justice was establishing probable cause that a party to the communication is a suspected foreign agent. Is there probable cause as to both parties to the communication being suspected foreign agents? And if not, is that the primary reason why the FISA warrants would be unavailable?

    Attorney General GONZALES. I don't believe I testified that DOJ was determining probable cause in the Senate Judiciary Committee meeting—hearing. If I said that, then I misspoke. I hope that what I said was that it is career folks at NSA.

    Ms. LOFGREN. All right. If—let me amend the question, then. Would that be the primary reason why a FISA warrant would not be available?

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    Attorney General GONZALES. Well, I—we never suggested that it wouldn't be ultimately available. I've never suggested that if an application were completed and submitted to the FISA court that it wouldn't be approved.

    Ms. LOFGREN. So you're saying, if I can—I don't want to be rude, but we only have 5 minutes.

    Attorney General GONZALES. Yes, ma'am.

    Ms. LOFGREN. You're saying that you could get them but you've declined to do so.

    Attorney General GONZALES. Well, I believe—you know, I haven't done an itemized inventory of the actions taken under the program and whether or not they would satisfy all the applications under FISA. That's something that is hard to do after the fact. But again, the problem is not that we couldn't get approval under FISA. The problem has been is that because of the procedures in place under FISA, it takes an extraordinarily long period of time in certain cases to get approval under FISA.

    Ms. LOFGREN. So, if I may——

    Attorney General GONZALES. Yes, ma'am.

    Ms. LOFGREN. If I'm hearing you correctly, the Administration has decided not to comply with FISA because there's—as an alternative to streamlining the FISA processes.
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    Attorney General GONZALES. Congressman, I would characterize it differently. I would say that the Administration has decided that it is going to use all the tools that is lawfully available to it to deal with this threat.

    Ms. LOFGREN. Well, we're—let me just ask, does every individual intercepted communication have a suspected foreign terrorist overseas as at least one party to the communication? And if your answer—does your answer apply only to the so-called Terrorist Surveillance Program, or would it apply to all of the Administration's intelligence programs?

    Attorney General GONZALES. Well, if we're talking about the Terrorist Surveillance Program, there is a determination—and I answered this in response to an earlier question. With respect to the Terrorist Surveillance Program, there is a determination by a career official out at NSA that one party to the communication——

    Ms. LOFGREN. Is overseas.

    Attorney General GONZALES. That one party is overseas and that one party, that there's reasonable grounds to believe that one party is a member or agent of al-Qaeda or an affiliate terrorist organization.

    Ms. LOFGREN. If that is true about the Terrorist Surveillance Program, can you make that reassurance to us relative to the other programs that are ongoing in the Administration?
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    Attorney General GONZALES. No, ma'am, I can't, because, for example, under FISA we're allowed to collect certain communications that may not be overseas. So long as we meet the requirements of FISA, however, you know, we're obviously committed to do so under the FISA Act.

    Ms. LOFGREN. Let me ask, once a non-probable-cause party has been identified in a communication with a party who is a suspected foreign agent, are the first party's communications subsequently intercepted even where the suspected foreign agent is not a party to those communications?

    Attorney General GONZALES. Congressman, you're asking me now to get into details about the operations, how we work—how this program operates. And I can't answer that question.

    Ms. LOFGREN. I would hope that the Chairman——

    Chairman SENSENBRENNER. The time of the gentlewoman has expired.

    The gentleman from New York, Mr. Nadler.

    Ms. LOFGREN. Mr. Chairman? Could I just ask that we explore a classified briefing for the parts of the answers that the Attorney General cannot give us?

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    Chairman SENSENBRENNER. We can explore that, but there are up sides and down sides to that, and this is not the place to discuss them.

    The gentleman from New York, Mr. Nadler.

    Mr. NADLER. Thank you.

    Mr. Attorney General, you said a few minutes ago that the President can declassify anything; that is, if the President, through the Vice President, outed Valerie Plame as a CIA agent, that would have been legal because it's the President's decision to declassify anything he wants?

    Attorney General GONZALES. Mr. Nadler, you're asking me questions——

    Mr. NADLER. No, I'm asking a case. Assuming those were the facts, that would have been legal?

    Attorney General GONZALES. I'm not going to answer questions related to the investigation.

    Mr. NADLER. Well, but you said that——

    Attorney General GONZALES. I'm recused from this case. I'm recused from the Plame investigation.
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    Mr. NADLER. Forget the Plame investigation. Can the President, on his own, declassify anything he wants?

    Attorney General GONZALES. I believe the President would have the authority as commander in chief to determine which information——

    Mr. NADLER. Yes, is your answer. Please don't waste my time. Yes.

    Attorney General GONZALES. I'm not wasting your time.

    Mr. NADLER. You are, because you're—I only have 5 minutes and—The answer's yes. You didn't have to say what you said.

    Are there standards? Does the President have to make a finding that declassifying something is—does not injure the national security, or can he do it for political reasons?

    Attorney General GONZALES. The President has the constitutional authority to make the decision as to what is in the national interest of the country.

    Mr. NADLER. For whatever reason he feels like?

    Attorney General GONZALES. He has the authority under the constitution to make that determination.
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    Mr. NADLER. Okay.

    Attorney General GONZALES. My judgment.

    Mr. NADLER. Okay, so he could do it for political reasons and that would be—and no one can second-guess that, if he wanted to.

    Attorney General GONZALES. This President could make the decision to declassify information based upon national security reasons.

    Mr. NADLER. He could do it for political reasons if he wanted to, and no one could second-guess that because he's the commander in chief. Right?

    Attorney General GONZALES. The President's going to make the determination as to what is in the best interests of the country.

    Mr. NADLER. Yeah, he might. But he could. I'm asking you a theoretical question about the authority of the President—not necessarily this President. A President could declassify something for political reasons and no one has the authority to second-guess him because he's the commander in chief. That's what you're saying?

    Attorney General GONZALES. The President does have the inherent authority——

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    Mr. NADLER. Okay. Thank you.

    Attorney General GONZALES [continuing]. To make the determination regarding——

    Mr. NADLER. Let me ask you a different question.

    Attorney General GONZALES [continuing]. Of classified——

    Mr. NADLER. The Bush administration continues to claim that Guantanamo is filled with only dangerous terrorists. On March 8th, the New York Times revealed that a lawsuit by the Associated Press has now demonstrated the truth in shameful detail. The suit compelled the release of records from hearings for some of the 760 or so men who have been in prison at Guantanamo Bay. Far too many show no signs of being a threat to American national security. Some, it appears, did nothing at all. And they have no way to get a fair hearing because Gitmo is created outside the law. Close quote.

    The transcripts describe the case, for example, of Abdur Sayed Rahman, a poor chicken farmer detained in Guantanamo for almost 5 years because he was mistaken for Abdur Zahid Rahman, the former deputy foreign minister of the Taliban, who had a similar name. This is one of many cases of mistaken identity, apparently, turning an innocent person into a prisoner without any judicial review or due process, which President Bush assured us could not occur under his vigilant watch and just due process measures.

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    Do you think—''I'm only a chicken farmer in Pakistan,'' this fellow said, when he was finally given the opportunity to appear in front of a tribunal, which the Supreme Court forced the Administration to create. Do you think in light of this information that we should perhaps give more due process not to terrorists—the Secretary of Defense said that the terrorists have no rights—but to people who haven't been determined to be terrorists? Somebody thought they might be, we paid a bounty to some Pakistani warlord and they turned over people they said were terrorists, but we don't really know that. We have to determine whether they are.

    Do you at least agree that a new judicial review procedure that provides for swift processing and prosecution of detainees in a manner that ensures the country's national security but also ensures a full and fair judicial hearing for the detainee to determine whether he is in fact an enemy combatant should be instituted?

    Attorney General GONZALES. No.

    Mr. NADLER. Because?

    Attorney General GONZALES. Because I believe that we have a process in place that goes well beyond what even the Geneva Convention requires. There was a determination made when someone was captured on the battlefield as to whether or not there were an enemy combatant. They were then sent to——

    Mr. NADLER. Excuse me. Who made that determination?

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    Attorney General GONZALES. The battlefield commanders on the ground.

    Mr. NADLER. Except that many—except that I gather that most of the people at Guantanamo were not captured by American troops on the battlefield but were given to us by various Pakistani or Afghani warlords who said that they had—who told us that they were enemy combatants.

    Attorney General GONZALES. And then when we take custody of someone in that circumstance, there is another determination made as to whether or not is this person an enemy combatant.

    Mr. NADLER. And on what basis is that determination made? And by whom?

    Attorney General GONZALES. Well, looking at the facts, like—the same way that it was done during World War II when battlefield determinations were made on the ground——

    Mr. NADLER. In World War II, people were fighting in uniforms. When we captured people, we didn't take them from someone else.

    Attorney General GONZALES. Sometimes it's hard to tell who the real enemy is, particularly when they're trained to lie about their status and to lie about their conditions. And once they get to Guantanamo, once they get to Guantanamo, we do have a combatant status review tribunal process which has been in—which was put in place after the Supreme Court decision in Hamdi. There is an annual——
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    Mr. NADLER. I know, but——

    Chairman SENSENBRENNER. The time of the gentleman has expired.

    The gentleman from Florida, Mr. Wexler.

    Mr. WEXLER. Thank you, Mr. Chairman.

    Thank you, sir. I was hoping you can clear up some confusion I'm having. What I'm trying to do is square what—the descriptions both you and the President provide as to the surveillance programs and a specific instance that happened in my district in Palm Beach County in Florida.

    Putting aside the legalities and the constitutional issues, if I understand your policy position, it's essentially this: You are the country's leading law enforcement officer. We are at war with a terrorist enemy. It's your obligation to leave no stone unturned to protect the American people. I agree. I can't imagine anyone here who would disagree.

    You describe those incidents where, regardless of what type of communication it is, there is a terrorist connection and therefore you need to implement intrusive techniques or whatever techniques are available to you to protect the American people. Again, I'm with you 110 percent.

    My issue comes up when the other part of the story is not told. The other part of the story, as I understand it, is warrantless surveillance programs are being conducted by agencies of the United States Government on American citizens who have nothing at all whatsoever to do with terror in any respect.
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    The Truth Project in Lake Worth, Florida, which has been reported by the New York Times, many papers, TV stations—I think the Pentagon itself has a report—essentially is a group of Americans, if I understand the group correctly—grandmothers, some Korean War veterans. They met in a church. As far as I know, church meetings are not suspect—yet. And they decided that they may disagree with the policy we have in Iraq, and they also decided that they may disagree with the way in which the United States goes about recruiting soldiers and the information that our soldiers are given. And they engaged in a program to provide different information.

    They then found themselves on a ''credible threat'' list and found themselves subject to warrantless surveillance. Every one of them an American. Every one of them, if I understand it, has never had any training in Pakistan or Afghanistan. Their alleged violation was freedom of speech and they may have had a political ideology that was different than yours, maybe different than mine.

    Would you acknowledge for us today that agencies of the United States Government have conducted warrantless surveillance on Americans in respect to communications that have nothing whatsoever to do with terrorists or terrorism?

    Attorney General GONZALES. Not to my knowledge, no.

    Mr. WEXLER. Not to your knowledge. Okay. I would respectfully suggest, sir, that you review the Pentagon report and the Pentagon documents regarding the Talon Project, in which the Pentagon is going around this country identifying people as credible threats, and they're Americans that have nothing to do with terror. This is under your watch, sir, with all due respect. Please look into it.
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    If I could follow on a totally different issue. Twenty-five thousand American women every year are raped in America and then become pregnant as a result of the rape. If I understand, the Department of Justice national protocol for sexual assault medical forensic examinations rules that have been provided under your watch, sir, you do not allow for the provision of emergency contraception information. Emergency contraception that would prevent, after a rape, 25,000 American women from becoming pregnant. What's the justification? What's the justification for putting 25,000 American women through a double hell after having been sexually assaulted, of then going to an American hospital and knowing that our own Department of Justice provides rules that exempts out information that might prevent that poor victim of a sexual assault from having to go through the double trauma of getting pregnant as a result of it? What's the justification?

    Attorney General GONZALES. I'll have to get back to you with an answer on that, Congressman.

    Chairman SENSENBRENNER. The gentleman from California, Mr. Issa.

    Mr. ISSA. Thank you, Mr. Chairman.

    General Gonzales, I very much appreciate your being here and being here particularly for such an extended period of time. I apologize that I wasn't here for the first round earlier—I'm sorry, for my normal place in the first round, Mr. Chairman, you're right.

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    But I have looked over your dialogue with Mr. Keller and I want to, first of all, thank you for recognizing the challenges we face in the border in San Diego, also your willingness to meet with the California delegation, to take this a little further on a personal basis.

    I would like to just delve into this just a little bit more in one sense. Over a year ago, we got the appropriators to agree to create opportunities for earmarking of additional dollars, over a million dollars, to allow for coyote, or illegal—people who smuggle illegals, but it doesn't seem to have gone in the right direction. And I know that you said full funding would make a difference. Can you quantify for me, when you say ''full funding,'' now, and if not completely now then in writing, what are we talking about to have a zero tolerance for people who traffic in human beings?

    Attorney General GONZALES. I can't give you specific numbers, Congressman, but would be happy to try to get that information for you.

    Mr. ISSA. Can you give me an idea of—the best way to put this is, do you believe that the courts could handle this if—and we're not talking about the illegals, we're just talking about the people who are the smugglers. Do you believe the courts can handle that within their capacity, separate from the question of U.S. attorneys?

    Attorney General GONZALES. I would have concerns about it, quite frankly. I know a lot of the courts, particularly along the border, are straining with dealing with these kinds of cases. And so this would clearly present additional challenges for those courts. For that reason, I think one thing to consider is whether or not we need additional judges. That would be one thing to consider.
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    Mr. ISSA. Well, you know, we added five additional judges in San Diego, so that was one of the reasons for my question, is that we did reduce the case load down to at or around the national average. But I would appreciate it in your response, in addition to the dollars, if you could give us an estimate of the human power that would be necessary to be added either in the prosecution or, of course, in the Federal courts, because this Committee has jurisdiction over both.

    Lastly I'd like to talk to you about is there a way, in your opinion, if we don't dramatically reduce the capability, the capacity of human smugglers, is there a way to prevent the smuggling of Hezbollah or al-Qaeda or other operatives through our southern border?

    Attorney General GONZALES. It would be hard.

    Mr. ISSA. Okay. That covers me today. My thanks. And thank you, Mr. Chairman.

    Chairman SENSENBRENNER. The gentleman from North Carolina, Mr. Watt.

    Mr. WATT. Thank you, Mr. Chairman. Thank you for being here, Mr. Attorney General. I apologize for missing my place in the first round also.

    I'm interested in all of the issues that have been raised on a more global level and terrorism, but the thing that I'd really like to focus on in my questioning is what's going on in our communities. There was an extremely troubling report about Black males and their condition and plight, employment, prison, confinement being even more dramatically worse than even the official statistics would have you believe. And we've known that it's been a really serious issue and problem for a long time.
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    In your opening statement, which I was here for because I wanted to hear the general parameters that you were going to cover, you mentioned one of your initiatives being preparing prisoners for return to society. And that's an issue that's disproportionately important to African Americans because African Americans, especially males, are disproportionately in the prison population. And what they're finding is that once they have any kind of prison record, there's really no re-entry programs, there's not treatment, there's no jobs. They can't get a job, they can't vote in a lot of States when they come out of prison. So it's just a vicious cycle. They almost don't have another alternative but to return to the same kind of life.

    So I guess my specific question is can you talk to us a little bit more about what that prisoner re-entry initiative is that you made reference to in your opening statement. And on a more general level, are there other things that you perceive that your office can do in conjunction with Members of Congress, other people who are interested in attacking this serious problem that, in our estimation, is exacerbated by our drug policy and our sentencing policy. Are there things that you can propose that we ought to be working on together to try to address this on a very serious level?

    Attorney General GONZALES. Thank you, Congressman. You're right, this is a problem. The President believes that we have an obligation to try to work with those in prison to ensure that when they're done their time, that they can become productive members of our society. Now, for that reason, he does support, as do I, programs like Prison Industries, where people in prison can learn job skills. We also support programs like Life Connections, which we have in five prisons and we hope to expand to eight next year to provide basic services to people in prison.
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    What I spoke to specifically in my opening was related to part of the focus of gangs. We have a new gang initiative and it is focused on three components. One is education, one is enforcement, and the other is prisoner re-entry. We have focused—these are kind of like pilot projects, but we're trying to see whether or not this kind of approach works in these specific neighborhoods. They were based upon the applications submitted by the U.S. attorneys in these neighborhoods looking at the specific needs in those districts and submitting an application that we believe would be effective in those areas.

    So it would be a program, with respect to the prisoner re-entry part of it would look at whether or not prisoners, did they have—did they need transitional housing when they got out; if so, is that something that could be provided. If they had problems with drugs, could we provide substance abuse treatment in connection with their departure from prison. If there was a question regarding getting them ready for jobs or some kind of job-readiness programs that we could put in place.

    And so, again, these are targeted on six projects around the country to see whether or not we can focus on the specific needs of these particular areas from the education, enforcement, and prisoner re-entry side.

    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentleman from Arizona, Mr. Flake.

    Mr. FLAKE. Thank you, Mr. Chairman.
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    Thank you, Mr. Attorney General. I want to follow along with the questioning that Adam Schiff started with regard to the warrantless wiretaps, the NSA program.

    I just want to understand your answer. I wasn't here when he questioned, but was briefed by him. You mentioned that you would not rule out wiretapping solely domestic calls, domestic-to-domestic calls, under the inherent authority that the President received under the War Resolution that we passed here. Is that correct?

    Attorney General GONZALES. I can't rule it out, but let's remember the framework in which I've outlined, and that is, is that we are at war with al-Qaeda, there is a long history of presidents engaging in electronic surveillance of the enemy during a time of war. I don't think anyone can argue that the electronic surveillance of the enemy during a time of war is a fundamental incident of waging war, which the Supreme Court says the authorization of the use of military force is what Congress provided to the President of the United States.

    And so the question is, if you're talking about domestic surveillance involving al-Qaeda during a time of war, when we're at war with al-Qaeda, it's not something that I would rule out.

    Mr. FLAKE. But the context for which——

    Attorney General GONZALES. But that's not what the President has authorized. I want to emphasize that.
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    Mr. FLAKE. Can we be confident that there are no ongoing programs, or no programs that have been started and stopped, that have solely domestic-to-domestic, that have conducted surveillance on domestic-to-domestic communications?

    Attorney General GONZALES. Congressman, I can't comment on anything beyond what the President has said, although I will say that in terms of what the activities of the program have been and are, have been briefed to certain Members of Congress.

    Mr. FLAKE. Let me just say that we—all of the discussions we've had with regard to the PATRIOT Act have been during the time at which we are at war. And what I seem to be hearing is that these are, you know, maybe interesting or fun, but they're irrelevant.

    Attorney General GONZALES. Not at all. A lot of the changes in the PATRIOT Act, even those changes related to FISA, are changes that were necessary, quite frankly, and would have been necessary irrespective of our conflict with al-Qaeda. And you have to understand that the tools of the PATRIOT Act go well beyond our conflict with al-Qaeda. They apply in the domestic context, for threats to our communities that go beyond al-Qaeda——

    Mr. FLAKE. I understand, but——

    Attorney General GONZALES [continuing]. And they apply in the peacetime context.

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    Mr. FLAKE. I understand. But with regard to domestic surveillance of communications solely domestic, domestic-to-domestic, you're saying that you don't rule out or you see it as still in the President's inherent authority to go ahead and do that without regard to the strictures of either FISA or, in this case, the PATRIOT Act.

    Attorney General GONZALES. Well, again, every court that has looked at this issue has determined that the President does have the inherent authority under the Constitution to engage in electronic surveillance for the purpose of gathering foreign intelligence.

    Mr. FLAKE. Let me shift gears here for a minute. In 1984, Congress enacted the Material Witness Law under which individuals can be detained as witnesses in an ongoing investigation. It seems that this has been taken beyond its original purpose. We have many, many cases now of individuals being detained for months at a time as material witnesses when there is no grand jury convened or no ongoing investigation with which they are going to be called as a witness.

    Do you feel that the Material Witness statute has been used appropriately? Would you entertain or would you suggest that we need—do you need additional authorities so that you can actually hold people who are suspected terrorists, rather than holding them under a statute that is ill-suited for that purpose?

    Attorney General GONZALES. Congressman, I would respectfully disagree with your characterization. We can only hold people under a material witness warrant with the approval of a judge and under the supervision of a judge. And even if under those circumstances, I mean, the person is entitled to a lawyer, the person can disclose the fact that the person's being held as a material witness under a material witness warrant. I think people have——
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    Mr. FLAKE. Excuse me, I don't believe that's accurate that they are entitled to lawyer. Some have been held for weeks without access to a lawyer.

    Attorney General GONZALES. Well, I can't—I can't——

    Mr. FLAKE. The case of Brandon Mayfield.

    Attorney General GONZALES. I can't comment on the specifics. Well, there the IG did not make a determination and a material witness warrant was inappropriate in that case. I think the finding there was that certain conditions—certain representations made in connection with acquiring the warrant didn't appear to be accurate. And I think that's what the IG held.

    But in response to your question, I support the use of material witness warrants. People have this misperception that we're using these in all kinds of cases. In probably about 96 percent of the cases, we're talking about immigration cases, where we need material witness warrants in order to secure someone who is an undocumented alien and who would otherwise flee. Someone who is an undocumented alien, who has testimony that would help us prosecute an alien smuggler.

    Chairman SENSENBRENNER. The gentleman's time has expired. We will now being the second round of questioning. According to the order that I have announced earlier, the gentleman from Michigan, Mr. Conyers, is recognized.
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    Mr. CONYERS. Attorney General Gonzales, could there be a possibility, and would you be willing to initiate the action that would compel the State of Louisiana to implement out-of-State satellite voting procedures similar to those made available for Iraqi citizens in their national elections?

    Attorney General GONZALES. As an initial matter, Congressman, I think the procedures decided upon the State elected officials should be—I mean, I think they have the primary responsibility to decide what those procedures are. Now, having said that, those procedures must meet the requirements of the Constitution. This is a matter that has been reviewed by the Department of Justice, but more importantly has been reviewed in the courts. And while we can always argue about whether or not we could do more to ensure that people have the right and the ability to vote, the determination has been made, is that the legal requirements have been——

    Mr. CONYERS. But would you advocate such a procedure, or would you feel compelled to not support such a procedure if it came forward?

    Attorney General GONZALES. As a general matter, Congressman, I'm always in favor of doing what we can to encourage more people to vote.

    Mr. CONYERS. It would expedite voting a great deal because, as we know, the candidates don't know where the voters are and the voters don't know who the candidates are. It's a big dilemma. I just wanted to get the maximum amount of support that I could from you on this very, very important and timely question.
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    Now, let me ask you about the whole area of special counsel. We've never had—this is the first Department of Justice where over 5 years we've never had one special counsel appointed pursuant to 28 C.F.R. Part 600. And I was wondering if there is some problem about special counsel. We have this epidemic of torture in Abu Ghraib, Guantanamo Bay, Iraq. We have problems with military contractors over there. We have the Thomas Noe fund-raising scandal in Ohio, the demotion of U.S. Attorney Frederick Black for daring to investigate Jack Abramoff. Potentially unconstitutional wiretapping.

    I don't want to make these up or give you a laundry list. The fact of the matter is that it seems extraordinary to some of us on the Committee on Judiciary that, in all of this time, there's been no recourse to special counsel.

    Attorney General GONZALES. Well, of course, Mr. Fitzgerald——

    Mr. CONYERS. No, he—I don't think he's a special counsel in the terms that I'm using.

    Attorney General GONZALES. Well, are you talking about—are you thinking in terms of more like an independent counsel?

    Mr. CONYERS. Under the regulations in 28 C.F.R. Part 600. Because the special counsel has to make a report when all this is through.

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    Attorney General GONZALES. Let me just say this. You did indicate certain events or activities that you felt might warrant a special look. In each and every one of these cases there has been an examina—for example, what happened at Abu Ghraib. There have been multiple hearings. There have been multiple investigations.

    Mr. CONYERS. But in the end, you don't feel that it's unusual that there have been no special counsels?

    Attorney General GONZALES. Well, we have, obviously, procedures in place. We have career folks that give me advice as to when it may or may not be appropriate to appoint a special counsel. And if the circumstances dictate it, that'll happen.

    Mr. CONYERS. All right, let me raise this with you, finally. Why have there been 40 percent decline in the Civil Rights Division prosecution of cases for racial discrimination and gender discrimination? Has that been brought to your attention?

    Attorney General GONZALES. Well, I don't—my understanding is, is that overall there's been an increase in the Civil Rights Division with respect to prosecutions. And so I don't know about that specific, that specific number, but——

    Mr. CONYERS. We're not talking about immigration cases. We're talking about——

    Attorney General GONZALES. I understand that.

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    Chairman SENSENBRENNER. The time of the gentleman has expired.

    The gentleman from California, Mr. Schiff.

    Mr. SCHIFF. Mr. Attorney General, I wanted to follow up a bit on our earlier dialogue on the NSA issue. You mentioned both in reference to my question and Representative Flake's on the issue of whether you have the authority to do purely domestic eavesdropping between two Americans, that where there was an al-Qaeda link you can't rule out the inherent authority to do that without going to court.

    The question I have is, we're talking about between two Americans. Now, I realize that it's certainly possible that one of those Americans could be affiliated with al-Qaeda, much as I hate to think of the prospect. The question I have, though, is, where you have a call between two Americans on American soil, who outside the Executive branch would ever oversee the Executive branch's decision to use its inherent authority to eavesdrop on that call? Who would be able to provide any oversight of that?

    Attorney General GONZALES. Well, of course, Congressman, we do—we do communicate with certain Members of Congress about what we're doing here. People at the NSA take very seriously their obligations and the limitations that have been imposed with respect to the collection of electronic surveillance.

    Mr. SCHIFF. Mr. Attorney General, I don't doubt that. The problem is that they're not incapable of error any more than we are.

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    Attorney General GONZALES. Well, of course, even the fourth amendment doesn't expect perfection. So long as a mistake is made——

    Mr. SCHIFF. No, but it does—but the Fourth——

    Attorney General GONZALES [continuing]. That's reasonable, then that's permissible.

    Mr. SCHIFF. The fourth amendment does expect that there is a system of checks and balances, where the courts have a role in overseeing the legitimate expectation of privacy of Americans. And in a situation where the Executive arrogates to itself the power to eavesdrop on a purely domestic call between two Americans without any court review before, without any court review after, or can't rule it out, there is no outside oversight of that. We can't do it.

    You mentioned today the problem with FISA is, and you mentioned some problems with FISA—you said it could take days, it could take hours, take weeks or months to get approval. It may be the first time anyone has come before our Committee, other than minor changes to FISA, and said there was a problem with FISA. Indeed, as I mentioned earlier, in the Senate the testimony was there isn't a problem with FISA.

    The question I have, you have to acknowledge that even in the best of circumstances, with the best white paper you've drafted, the legal questions are still very problematic. And if that's the case, why not come to the Congress? Why didn't the Justice Department come to the Congress and ask us to change FISA? If you couldn't do what needed to be done to protect the country, why not come to Congress, why not come to this Committee? We can have classified hearings just as the Intel Committee can have. We are no less bound by the oath to maintain the confidentiality of classified information than the Intel Committee is.
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    But we have a slightly different mission than the Intel Committee in that we have a primary responsibility to make sure that what the Executive does meets the requirements of the Constitution. That's a slightly different focus than the Intel Committee, which also has an obligation, but not in the same way we do.

    Why didn't the Justice Department come to the Congress and ask us to amend FISA?

    Attorney General GONZALES. Congressman, I think that I've already answered that question. There was some consideration about doing that and ultimately there was a collective agreement that that would not be possible without compromising the effectiveness of the program.

    Now, the circumstances are different now. People now know——

    Mr. SCHIFF. Does that mean because you couldn't trust Committee Members to keep the information classified? I mean, why—al-Qaeda shouldn't care whether you have to go to court or not. But we care whether there's some oversight. We all agree that the eavesdropping should take place if it's necessary to do so. The only question is whether there is some outside review of your decision-making to make sure that it's being done properly.

    I still don't understand. Yes, you have answered the question, but I still don't really understand the answer. I don't understand why you couldn't have come to Congress and asked us to change the law, as you have—Why didn't it compromise our national security to ask for the changes you did as for in the PATRIOT bill?
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    Attorney General GONZALES. Well, but again, because what we asked for in terms of changes for the PATRIOT Act were changes that would apply not just to al-Qaeda, not just during a wartime situation. This was generally to respond to threats to our communities, to our neighborhoods around the country. And so to come into the Congress and say, okay, we need this change in the PATRIOT Act because we're doing this against an enemy we're at war with, I think it's a much different story.

    Chairman SENSENBRENNER. The time of the gentleman has expired.

    At this point, I'd like to ask unanimous consent that an article submitted by Mr. Conyers from the Washington Post of Sunday, November 13, 2005, entitled ''Civil Rights Focus Shift Roils Staff at Justice,'' be inserted in the record. And without objection, so ordered.

    [The information referred to follows in the Appendix]

    Chairman SENSENBRENNER. The gentleman from California, Mr. Lungren.

    Mr. LUNGREN. Thank you very much, Mr. Chairman.

    Mr. Attorney General, in the PATRIOT Act reauthorization that we had, there was a section in there dealing with habeas corpus reform under which States that qualify under the Powell Committee recommendations would receive what I would refer to as expedited review in Federal courts of their cases. In 1996, when Congress acted, the authority was within the courts, the Federal courts, to make that determination as to whether the State qualified under the Powell Commission recommendations.
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    In the absence of any Federal court finding any State system as consistent with the Powell Commission recommendation, Powell Committee recommendations, the change in the PATRIOT Act grants that responsibility to you. And my question is—in other words, for a State to receive that treatment, they must apply to the U.S. Justice Department for your determination as to whether they can opt in to that program and receive expedited review. Your decision, then, would be subject to an appeal to the appellate court for the District of Columbia—or the circuit court.

    Have you made any decisions with respect to the organization within your Department as to how that would be handled?

    Attorney General GONZALES. I don't—I—quite frankly, I don't know, Congressman. But let me try to find out what we've done on that.

    Mr. LUNGREN. Okay. That's extremely important, because when we drafted this—and I was not here, but my office in California helped in the drafting—and the idea was to try and create a balance. That is, we would encourage States to do a far better job of having competent counsel at the appellate level, including the habeas level. And in return for them doing that, there would be expedited proceedings. That is, there would be expedited timelines for consideration in habeas cases as considered by the Federal court.

    We were doing that because of difficulty we were having with Federal courts making decisions within a reasonable time. We thought establishing those rules would have the Federal courts actually seriously look at it, but to this date, some decade later, not a single State has been able to opt in. And so the idea was to get someone who didn't have a dog in the fight. These are State cases, not Federal cases. And so the thought was that your office would be able to review those to see if in fact we'd met the standards established by the Congress pursuant to the Powell Committee recommendations.
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    And I would just hope that I can get an answer on that so that, when my home State does apply, there's not going to be a delay in the Department of Justice in reviewing that because you haven't geared up for that.

    Attorney General GONZALES. Yes, sir.

    Mr. LUNGREN. The second area of inquiry I'd like to pursue is in the area of sentencing. With the Supreme Court decisions on sentencing guidelines, we have waited for some period of time to see what would occur. And some of the things that we have found are truly bothersome.

    We find lower prison sentences for criminals for whom Congress had sought higher sentences when it passed the PROTECT Act. The rate of imposition of below-range sentences for abusive sexual contact cases decreased following the PROTECT Act but increased after the Booker decision. And what that means in real terms is that the post-Booker defendants accused of abusive sexual contact are getting sentences below the recommended guidelines at an increasing rate, negating the very improvements that this Congress wished to occur. Although the post-Booker average length of prison sentences has increased incrementally from 57 months to 58 months, the average sentence imposed upon career offenders, that is the defendants who have the most serious criminal records, has decreased.

    I think we've waited patiently to see what the courts would do, but these kinds of facts are somewhat concerning. There's also some analysis that we're having increased sentencing disparities based on race and geography. Now, that ought to concern all of us no matter where we stand on the ideological spectrum. What is the position of your Department on that, and recommendation, if any, as to what we should do following up on those results that we've seen after substantial period of time?
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    Attorney General GONZALES. Thank you, Congressman. I think that this is a very good question. I think there are many—first of all, let me begin by saying many judges are doing a good job trying to stay within the guidelines that once existed. You're right. We have waited for a period of time to see how the judges do. And the report from the Sentencing Commission is not very encouraging. There are some very troubling trends with respect to certain crimes, particularly against children. Also I'm concerned about trends that appear to show the disparity based upon race and geography, as you indicated. And we're seeing disparities within districts and between circuits. And that is very troubling.

    For that reason, we have proposed, at least as a—this is our proposal, is that we look at making the minimum guidelines mandatory, we keep—we have the maximum guidelines, we keep those as advisor. We believe that would be consistent with the sixth amendment and the Supreme Court jurisprudence. And we think that that would be a way to meet our obligations under the Constitution and would result in a sentencing regime that is fair and tough and determinate, which is what we were all looking for under the Sentencing Reform Act.

    Chairman SENSENBRENNER. The time of the gentleman has expired.

    The gentlewoman from Texas, Ms. Jackson Lee.

    Ms. JACKSON LEE. Thank you, Mr. Chairman.

    I want to thank the Attorney General for the time that you've shared with us. I think that you can detect from the questioning that Members are serious, that this is not a personal affront, if you will, but it is our responsibility in oversight.
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    Let me again state the fact from your opening statement that we're stewards of American democracy. We will present to you, before you leave, a letter from myself and Mr. Conyers that asks for a reconsideration de novo of the pre-clearance of the Katrina voting structure that will come about on April 22. And the reason is because your lawyer—and the letter is here—misrepresented the position of the State legislators, the Black State legislators who will be in your offices tomorrow to correct the fact that they did not consent or approve to the structure that was proposed by the State of Louisiana. And the unfortunate part of this is that the judge, that again, denied satellite voting, cited and included as part of his findings, unfortunately, the mischaracterization by the Justice Department of the statement and beliefs of the State Black legislators. So I will submit this letter, both to the record as unanimous consent——

    Chairman SENSENBRENNER. Without objection.

    [The letter follows:](see footnote 1)

    Ms. JACKSON LEE. And I will present you with a copy. But let me also—and I'm going to just ask a series of questions—so if you would respond to that mischaracterization.

    But the other is that Members of Congress also wrote you and told you of the abuse that Katrina survivors suffered by local authorities, one, being refused to cross a certain bridge into a certain parish. I think the parish is run by Sheriff Lee, who tried to refuse marchers on April 1st from going over that same bridge. And I would ask again whether there is an investigation of the treatment of those survivors trying to evacuate. I never thought that any jurisdiction had the power of keeping evacuees running for their lives out of a jurisdiction really on the basis of race.
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    Then I want to follow up on the question that we asked, so many have asked, about the potential for domestic-domestic surveillance under FISA. I know you've asked—answered it maybe to the best of your knowledge, but the problem is, and the question is this: if mistakes have been made, are you prepared to tell us today that from this day you will be able to surveil this process—of course, I agree that we are not using FISA—and ensure the America people that there are no domestic to domestic—I know you mentioned al-Qaeda—but no domestic to domestic mistakes that could be made because we don't use FISA? And I'd appreciate your answer on that.

    Let me finish these other questions. The Chairman led, and I joined him, in the passage of the No Fear Act in this Judiciary Committee. That is, I consider, the first civil rights act of the 21st century. We are hearing horrible stories. That is a bill that would prevent—not prevent, but try to stop the tide of discrimination in the Federal system. We understand that it has not been prosecuted enthusiastically and that many are suffering because the No Fear Act has not been properly implemented. I would appreciate any assessment you have on that.

    I refer you to the case regarding the young Justin, who indicated in testimony that he gave documentation on 1,500 pornographers or child abusers, sex abusers. Unfortunately, one has been arrested, and we can't for the life of us understand why this horrific case has not had more attention and that more prosecutions have not been rendered. So, please, tell us what's happening to your sex prosecution area.

    And then I would like to as the question regarding the immigration situation. I think you're aware of a report that came through that suggested that immigration judges are intemperate or even abusive. You received these memos from—in memos sent to you from immigration judges and the Board of Immigration Appeals. You said you were concerned about these reports, and we understand also that many of these judges didn't even have immigration experience. Can you tell us what you have done or what the Justice Department is prospectively doing to ensure a better response to the dignity of those immigrants who are in those courts seeking to do the right thing, and are subjected to inhuman, indecent and inappropriate behavior by judges?
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    Attorney General GONZALES. I don't know whether I got all your points, Congresswoman, but let me try to respond to what I have, going backwards on immigration judges.

    I am aware that there has been criticism and concerns raised by Federal judges around the country about the treatment. And for that reason I have ordered a Department review. I have ordered the Deputy Attorney General and the Associate Attorney General to do review about what exactly is going on. Is there inadequate training? I mean we need to find out if there's a problem here, and to make recommendations to me about what we can do to address this issue. I am hopeful that we are about at the end of that review, and then the recommendations will be made to me as to what changes we can make to address that issue.

    With respect to Justin Berry, let me just say this. We are committed to focusing on crimes against children. Mr. Berry is involved in a criminal prosecution. It is an ongoing investigation, and for that reason I'm not going to get into any more about that situation other than to assure you that I understand it's a serious problem for our parents. We need to do more to protect our children, and our prosecution rates are up. We do have special task forces looking at this problem, and so I am committing to you that we're going to stay focused on that.

    Domestic to domestic, there is no technology that is perfect. I can't tell you that mistakes will never be made. What I can tell you is that we have trained professionals who understand what the President has authorized. We have minimization procedures in place, much like the minimization procedures that exist with respect to FISA, with respect to collection under Executive Order 12333, and those procedures are in place to ensure that to the extent that information is collected, it shouldn't be either collected or maintained or disseminated, that it's done so in a way that we protect the privacy rights of Americans.
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    I'll have to get back to you specifically about this situation involving—I think you said Sheriff Lee. I just don't have any information. I'll have to get back to you.

    Chairman SENSENBRENNER. The time of the gentlewoman has expired. The gentleman from Texas, Mr. Gohmert.

    Mr. GOHMERT. Thank you, Mr. Chairman.

    I know you love seeing me back over here, General.

    But anyway, you know the President, I know the President. We know the President's heart. We know that nobody has done more than this President in fighting a war on terror abroad. We know it's hard. We know he wants to protect America. Some of us realize that he wasn't the first one to use this surveillance program, you know, nobody's screaming about Clinton, and nobody's screaming about people of the past. But we know that this President is doing enough to fight the war on terror that 30 years from now he's not going to be some embittered President that regrets subconsciously all he didn't do 30 years before, and therefore, feels the need to lash out at some nice President 30 years later at somebody's funeral instead of paying credit to the deceased. We know this President won't have to do that. He's got this battle ongoing.

    But I would like to ask a few questions about the program itself, as a former judge and chief justice from Texas, and you've been there, you understand what goes on. I'm curious about the probable cause that's utilized in the surveillance program. Do you use a probable cause standard in that program in deciding which ones to go after? If you could address that, please?
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    Attorney General GONZALES. Congressman, it is a probable cause standard. We refer to it as reasonable ground to believe. But it is the same kind of standard. The difference is there is no—it's not a probable cause to believe that someone is guilty or that someone has committed a crime. It is probable cause to believe that a party to the communication is a member of al-Qaeda or an agent of al-Qaeda or of an affiliated terrorist organization.

    We use the words ''reasonable grounds to believe'' because that is a more layman's like term. Because the decision's made not by lawyer, it is made by career professionals out at NSA in connection with a military operation, and that's what we consider this. This is not a criminal law operation. This is a military operation against our enemy in a time of war, made by military professionals at NSA who experience dealing with al-Qaeda.

    Mr. GOHMERT. Thank you. There appears to be, under the 1806(j), the FISA Court can have an ex parte process for disallowing the notice. I'm curious how effective that process is, if you could comment on that?

    Attorney General GONZALES. I'm afraid I don't understand the question. I'm sorry.

    Mr. GOHMERT. You know, when you're pursuing records, surveillance, and you're going before the FISA Court, there is a provision that—I mean the process allows you to do it ex parte rather than having the other party there. Well, in most of our jurisprudence history, you know, it's an adversary system where both are there. In this system you're going, just one side going there.
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    Attorney General GONZALES. The FISA process, that is correct. I mean, it is a process where it is the Federal Government that is appearing before the FISA Court. And we understand very much what our obligations ar under the FISA Act in terms of the standards that have to be met. And we have a good record before the Court. The reason that we have a good record before the Court in terms of getting our applications approved is not because the Court isn't doing its job, it's because we looked very carefully at the requirements of the FISA law, and that's why it takes us a little bit longer, quite frankly, in getting these applications ready to go, and for me to approve them and submit it to the FISA Court, is because we work very hard to know that when we submit that application, it is going to be approved.

    There is discussion sometimes with the Court, a judge on the Court, about an application, and we can get an idea whether or not there may be problems in the application, so there may be modifications in the application, but it is an ongoing process of relationship——

    Mr. GOHMERT. And these are district judges that are reviewing; is that correct?

    Attorney General GONZALES. These are article III judges that are appointed by the Chief Justice of the United States to serve on the FISA Court.

    Mr. GOHMERT. I think a lot of people do not understand that, and they hear that it's a one-side process and think, oh, this is wrong because it should be adversary, not realizing that whether it's in State court, Federal court, FISA court, if you go for a warrant, you're looking for documents, you're looking for a warrant. It's always, nearly always an ex parte one-sided proceeding——
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    Chairman SENSENBRENNER. The——

    Mr. GOHMERT [continuing]. As a judge—and I understand my time has expired, Mr. Chairman, and I appreciate it.

    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentleman from California, Mr. Berman.

    Mr. BERMAN. Thank you, Mr. Chairman.

    I've had 5 minutes to vent, and now I would like 5 minutes to ask you a few questions. There's a fellow named Marko Boskic, who allegedly helped murder—and I don't expect you to have the answer to this, but I would like you to look into this if you would be willing to—who allegedly helped murder thousands of people in Bosnia, war crimes and torture in Bosnia. We have a Federal statute which we passed as part of ratifying the Convention Against Torture, that says it is—you are criminally liable for coming and living in the United States, having committed torture or war crimes abroad.

    I am told that the U.S. Attorneys in Boston wanted to charge this person under this act, but that somewhere in Washington they said no, deport him. Deporting him back to Serbia and expecting there to be—I mean in a way it's the flip side of the charges about rendition—going to deport him to a country where he probably will not be held responsible for his conduct seems like a poor alternative. One person said it would be like picking up a Salvadorean general in Miami, who had committed human rights violations, and telling him he has to retire in Costa Rica. It's not punishment.
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    If you could just check out this decision of whether this is really the wise and just course, the deportation rather than prosecution.

    Attorney General GONZALES. I presume he's not an American citizen?

    Mr. BERMAN. That's right.

    Attorney General GONZALES. I'd be happy to do that. I believe that we also, I think, have an office in the Department that focuses on this issue, but I'd be happy to look at——

    Mr. BERMAN. I don't mean so much even you personally, but if the Justice Department could sort of get back to us about why we're pursuing it that way.

    Now, turning to the most important issue America faces today, which is the protection of intellectual property. The October 2004 report of the Department of Justice's Task Force on Intellectual Property recommended that the FBI increase the number of special agents assigned to intellectual property investigations. Have the Department of Justice and the FBI implemented this recommendation from 2004? If not, why not? If so, how many special agents are now assigned exclusively to intellectual property investigation, and where are these special agents deployed?

    Attorney General GONZALES. I believe all the recommendations have been adopted. Congressman, I don't know the specific numbers in terms of the increase in the FBI agents. Let me get that information for you.
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    Mr. BERMAN. Fine, I would appreciate that. Next in that area, the Department has stated there is concern over the growing emergence of organized crime and intellectual property, especially domestic and overseas hard disc piracy involving counterfeit CDs, DVDs, computer software and video games. Does the Department have a comprehensive long-term plan for combatting the emergency of organized crime and intellectual property theft?

    Attorney General GONZALES. Well, we're focused on, generally, on the issue of enforcement of intellectual property rights, the protection of those rights. And you are correct, there is a concern that it is a source of revenue for organized crime, and we have created, as you probably know, we have these CHIP units in various U.S. Attorney's Offices around the Country. I can't remember the exact number that we have today, but we are going to expand that number, and these are specially dedicated Assistant U.S. Attorneys focused on prosecution of those engaged in the violation of intellectual property laws.

    We are also, of course, in constant communication with our counterparts overseas. As I indicated in response to an earlier question, this is the kind of issue, quite frankly, I cannot be successful dealing with without the assistance of my counterparts overseas, particularly in areas like China, and so we—this is a topic that is always on my agenda when I go overseas, is talking about what we're doing to protect intellectual property rights, asking what they're doing, seeing if there are ways that we can work together to deal with this issue. We've had success, we've had takedowns worldwide involving intellectual property theft, and so we've made progress, but clearly a lot more needs to be done.

    Chairman SENSENBRENNER. The time of the gentleman has expired.
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    The gentleman from Massachusetts, Mr. Delahunt.

    Mr. DELAHUNT. Thank you, Mr. Chairman.

    President Bush instructed you to conduct an investigation into the disclosure of classified information that appeared in the New York Times story back in December regarding the NSA spy program. Is that accurate?

    Attorney General GONZALES. There is an ongoing investigation.

    Mr. DELAHUNT. How many investigations into the disclosure of classified information is the Department of Justice conducting now? If you don't know a specific number, do you have a range?

    Attorney General GONZALES. I don't know the specific number, Congressman, and as you know, as a matter of policy, we normally would not confirm the existence of investigations.

    Mr. DELAHUNT. Is it fair to say there's more than one ongoing?

    Attorney General GONZALES. Unfortunately, there is leaking, unauthorized leaking of classified information that has occurred.

    Mr. DELAHUNT. I'm in the process now of compiling a list of media reports that clearly include the disclosure of classified information, and I would like to forward them to you and receive some kind of response regarding what Justice is doing, because I don't think we want to leave an impression that the Administration is only interested in this specific case because of possible political concerns about embarrassment, if you will.
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    Attorney General GONZALES. Let me assure that if we can prosecute leaking classified information, we will do so. Those are typically hard to do, but they're important.

    Mr. DELAHUNT. Great. And you indicated, I understand, earlier, to Mr. Weiner, that the President has the authority to disclose inherent in his presidential powers?

    Attorney General GONZALES. That was my statement.

    Mr. DELAHUNT. There's a story out today—and I'm not going to ask you to comment in terms of the specifics, but let me read into the record. This is from the New York Sun: ''A former White House aide under indictment for obstructing a leak probe, I. Lewis Libby, testified to a grand jury that he gave information from a closely-guarded 'National Intelligence Estimate' on Iraq to a New York Times reporter [in 2003] with the specific permission of President Bush, according to a new court filing from the special prosecutor in the case.''

    ''Mr. Libby is said to have testified that 'at first' he rebuffed Mr. Cheney's suggestion to release the information.'' Presumably there was a conversation between them. I'm not commenting on the veracity with the reporters. ''Mr. Cheney subsequently said he got permission for the release directly from Mr. Bush. Defendant testified that the vice president later advised him that the president had authorized defendant to disclose the relevant portions. . .''
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    ''Mr. Libby told the grand jury that he also sought the advice of the legal counsel to the vice president,'' Mr. Addington, ''who indicated that Mr. Bush's permission to disclose the estimate ''amounted to a declassification of the document,'''' according to the new court filings.

    This is, obviously, a piece of news that I find interesting, to say the least. Do you have authority to declassify, you in your role as Attorney General?

    Attorney General GONZALES. It would depend on the information that we're talking about.

    Mr. DELAHUNT. Does the Vice President have the authority, independently of the President, to declassify?

    Attorney General GONZALES. He might have—again, depending on the circumstances, yes.

    Mr. DELAHUNT. Is there any mechanism that's available that would inform the American people that classified information has been declassified by the President or by the Vice President?

    Attorney General GONZALES. I don't know that there is or I don't know if there isn't, Congressman.

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    Mr. DELAHUNT. Because I would suggest that the American people ought to be informed that information can be disclosed to the media outlets by the President, and it does not violate any laws, but it certainly would improve their understanding of the news and the information, that if it was attributed to the President. So I would ask you to reflect on that, and I'd be interested in a list of those cabinet-level officials, who on their own authority, have the authority to declassify. I think it's an area that really needs some review.

    Chairman SENSENBRENNER. The time of the gentleman has expired.

    The gentlewoman from Florida, Ms. Wasserman Schultz.

    Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman.

    Mr. Attorney General, my colleague from Florida, Congressman Wexler, engaged you in a line of questioning related to emergency contraception, and I know you indicated that you didn't know the answer to his question and you'd have to get back to him. Do you just not have the information available to you, or do you have absolutely no knowledge of the omission of emergency contraception?

    Attorney General GONZALES. I don't have the information available to me.

    Ms. WASSERMAN SCHULTZ. Do you not even have any knowledge?

    Attorney General GONZALES. I do have knowledge, yes.
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    Ms. WASSERMAN SCHULTZ. Not knowledge that you can share with the Committee here?

    Attorney General GONZALES. Before responding to that question, I want to make sure I have the most current and accurate information. I think it's only fair to the Committee that I provide to you the most complete answer that I can.

    Ms. WASSERMAN SCHULTZ. Okay. Well, if you could get that information to us, that would be extremely helpful.

    My question is related to terrorist access to guns. The GAO report entitled Gun Control and Terrorism, FBI could better manager firearm-related background checks involving terrorist watch list records. That report indicated that a total of 47 firearms were purchased over a 9-month period in 2004 by individuals that were designated as suspected or known terrorists by the Federal Government, and the GAO went on to determine that with regard to such purchases, DOJ's information sharing procedures failed to ''address the specific types of information from NICS's transaction that can or should be provided to Federal counterterrorism officials or the source from which such information can be obtained.'' In response to the GAO report you announced the formulation of a working group which began meeting in March of 2005.

    My questions include: In your personal opinion, should individuals listed on the terrorist watch list be permitted to purchase firearms? And could you give us an update on the number of firearms that have been purchased by individuals that are included on the terrorist watch list since the conclusion of the GAO report?
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    Attorney General GONZALES. I don't know the answer to your last question. With respect to your first question, what I will say is I don't think terrorists should have access to weapons, and I think we can all agree on that.

    Mr. LUNGREN. It's a breakthrough in this Committee.

    Ms. WASSERMAN SCHULTZ. Well, it appears that you differ with the opinion of the other Members of the Committee on the other side of the aisle.

    Chairman SENSENBRENNER. The Committee will be in order.

    Mr. LUNGREN. Will the gentlelady yield on that?

    Ms. WASSERMAN SCHULTZ. No. I only have 5 minutes.

    Mr. LUNGREN. Well, you ascribe certain things to this side of the aisle. It would be nice to——

    Ms. WASSERMAN SCHULTZ. Mr. Chairman, I think the floor is——

    Chairman SENSENBRENNER. The floor belongs to the gentlewoman from Florida.

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    Mr. NADLER. Mr. Chairman, could she be credited with the time that was just taken from her?

    Chairman SENSENBRENNER. She gets a bonus of 15 seconds.

    Ms. WASSERMAN SCHULTZ. Thank you very much, Mr. Chairman.

    Attorney General GONZALES. The issue, of course, is that Congress decides the disabilities as to what would prevent someone from having access to a firearm. We have been working on this issue to see what kind of legislation may be appropriate and helpful, and I'm told that that work has not yet been completed, I regret to say. But it's not yet been completed. In the interim——

    Ms. WASSERMAN SCHULTZ. General Gonzales, the working group's been meeting since March 2005. It's now April 2006.

    Attorney General GONZALES. Believe me, I understand that. I can say, however, we do have a procedure in place implemented by the Deputy Attorney General, whereby that if in fact there is an attempt to purchase a weapon, and someone appears on the violent gang or terrorist group list, that there is a slight delay of approval, so that gives Federal officials an opportunity to talk with State officials to see whether or not there's additional information that would satisfy one of the disabilities that Congress has placed into the law.

    So we've tried to establish sort of a stopgap measure, but it's an issue we're still working on.
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    Ms. WASSERMAN SCHULTZ. General Gonzales, since you indicated that you don't think that terrorists or suspected terrorists should have access to firearms, would you support legislation that would specifically prohibit terrorists or suspected terrorists from having access to firearms? Because I know you previously said that you needed to get back to my colleague from Maryland on that, and we have not heard back from you on that.

    Attorney General GONZALES. I would like to look at that. Let me——

    Ms. WASSERMAN SCHULTZ. Are you still looking at it, General Gonzales, because you've already told that several months ago to my colleague.

    Attorney General GONZALES. I'm waiting for the work of the working group within the Department of Justice. Now let me just——

    Ms. WASSERMAN SCHULTZ. How long is too long, 13 months?

    Attorney General GONZALES. Let me give you an—I agree, I'm frustrated as well. But let me give you an example of why that may be problematic. We may have information about someone that we honestly believe is a terrorist. We may think that they may be involved in some kind of terrorist plot. As part of that plot, they may be wanting to purchase a weapon. We may want them—we may have them under complete surveillance, and we may be okay with him purchasing that weapon because it may lead us to other——

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    Ms. WASSERMAN SCHULTZ. General Gonzales, can I just stop you for 1 second before you go on? Because under current law we prohibit firearm sales to anyone suffering from a drug addiction. They don't even have to have been convicted of anything, and we prohibit firearm sales to them. Also, limited on mere suspicion, we limit an individual's ability to even get on an airplane if they're on the no-fly list, so why wouldn't we pass along—why can't you unequivocally say that you support a law that prohibits suspected terrorists from possessing firearms? That seems like a no-brainer.

    Attorney General GONZALES. Well, I'll stand by my earlier statement about terrorists shouldn't have access to weapons.

    Chairman SENSENBRENNER. The time of the gentlewoman as extended has expired.

    Gentleman from Virginia, Mr. Scott.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. Gonzales, did you not answer the question that you support or oppose legislation prohibiting those on the terrorist watch list from purchasing firearms?

    Attorney General GONZALES. Again, Congressman, I would focus on not people on the list, per se, but terrorists. I mean I think we can all agree that if you're a terrorist, we ought to certainly make it as difficult as possible to have weapons.

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    Mr. SCOTT. Well, would you do that by legislation? Do you support legislation to actually do that?

    Attorney General GONZALES. Be happy to consider the legislation.

    Mr. SCOTT. Consider it, okay. Did I understand you to say that ''reasonable cause to believe'' and ''probable cause'' were essentially the same thing?

    Attorney General GONZALES. From the way that this program has been operated, yes, that it is a probable cause standard that's being applied with respect to the terrorist surveillance program, consistent with the jurisprudence relating to probable cause in the normal criminal law context.

    Mr. SCOTT. My question was ''reasonable cause to believe'' and ''probable cause'' are essentially the same standard; is that what you——

    Attorney General GONZALES. Well, what I said was it that standard we use is ''reasonable grounds to believe.'' That's the standard that is applied by the career professionals.

    Mr. SCOTT. Is there a difference between ''reasonable cause to believe'' and ''probable cause?''

    Attorney General GONZALES. From my perspective, it is the same standard.
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    Mr. SCOTT. I asked you before, you know, we don't know what this NSA wiretap thing is, so we're kind of playing 20 questions here. We know there are no checks and balances. I asked you if the wiretap target was individually considered and individually selected. Would that rule out mass recording of calls where they may be law-abiding citizens who are tapped as part of the operation?

    Attorney General GONZALES. Congressman, what I can say is there's a lot of misinformation and disinformation in the media about the scope of this program, and I'm only going to comment on what the President's confirmed is what this program includes, and I——

    Mr. SCOTT. Well, we know it includes some things. We're trying to play 20 questions back and forth to figure out what it also might include. My question was, would it rule out mass recording of calls where there may be law-abiding citizens who are tapped as far as the operation, and you are not denying that that may be part of the possibility?

    Attorney General GONZALES. There is not mass—there is not mass recording of phone calls.

    Mr. SCOTT. Is it possible that whatever you've got going, that innocent law-abiding citizens, who if you individually considered the situation, you would not tap their phones?

    Attorney General GONZALES. Well, each communication that is surveilled is considered on an individual basis, based upon information judged by a career professional out at NSA, that, again, who is an expert in al-Qaeda communications, aims and tactics, and believes that someone on this call is a member of an agent of al-Qaeda or an affiliate terrorist organization.
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    Mr. SCOTT. And why couldn't you get a wiretap warrant? Why couldn't you get a warrant through FISA if that was the situation?

    Attorney General GONZALES. I didn't indicate that we couldn't get a warrant from FISA. What I indicated was, is that we may be interested in the communication that may be about to happen in a matter of hours, and it may not be possible, because of the strictures of FISA——

    Mr. SCOTT. No, we've been through that, because you can get an after-the-fact warrant.

    Attorney General GONZALES. But that's not—sir, that is a misconception that people have about FISA and the emergency authorization under FISA. It is true that I can authorize electronic surveillance for a period of 72 hours before we submit an application to the FISA Court. But I have to be satisfied, when I give that authorization, that every requirement under FISA is going to be satisfied, and is satisfied at the time I give my oral authorization.

    Mr. SCOTT. Let met ask you another question. I got diverted to another Committee, and when I left you had said that in Los Angeles, that programs will be led by the U.S. Attorney, will work with each State, loan and community partners to implement all three pieces of this comprehensive anti-gang strategy. The first is prevention. Did I understand that you agreed with the statement that you should first bring down gang networks, deal with those who are here illegally, then implement prevention programs?
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    Attorney General GONZALES. No, that's not what I said. I think that's an important component of dealing with gangs. And it is my primary responsibility as the chief law enforcement officer of the country to focus on enforcement. I think one of the things——

    Mr. SCOTT. I just have a couple of questions. I'm just——

    Chairman SENSENBRENNER. The time of the gentleman has expired.

    The gentleman from Maryland, Mr. Van Hollen.

    Mr. SCOTT. Can he continue answering the question he was answering?

    Chairman SENSENBRENNER. If you would like to continue answering the question.

    Attorney General GONZALES. What was the question? [Laughter.]

    Mr. SCOTT. I yield back.

    Chairman SENSENBRENNER. Mr. Van Hollen.

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    Mr. VAN HOLLEN. Thank you, Mr. Chairman.

    Let me just pick up very briefly on where my colleague from Florida, Ms. Debbie Wasserman Schultz, left off. We did have you, Mr. Attorney General, here I believe last summer, and I asked you a question about whether you'd support legislation that would prevent people who were on the watch list, terrorist watch list, from obtaining a weapon. At that time you said you'd get back to us. I think you can understand why people up here get frustrated at times——

    Attorney General GONZALES. I sure can.

    Mr. VAN HOLLEN [continuing]. With the lack of cooperation with the Executive branch to hear that we—no, in this particular instance, in any event, we would welcome a response as soon as possible on that issue. After all, if you're on the terrorist watch list you can't get on an airplane right now, and it seems to me it doesn't make sense for you to be able to drive to your local gun store and buy a couple—a lot of weapons.

    Let me just move on because I want to pursue Mr. Scott's line of questioning and what I asked you a little bit earlier, with respect to the standard that apply under the NSA electronic surveillance and the FISA Court, because as I understand what you're saying, is that the legal standard you apply, in your opinion, is the same.

    Attorney General GONZALES. But we have to remember something. This is not probable cause that a crime has been committed or probable cause that someone is guilty. And, of course, even under FISA, that's not the standard. I mean the standard in FISA is that there's probable cause that the target is a foreign power or an agent of a foreign power, and probable cause to believe that the facility which is being used or about to be used, is being used or about to be used by a foreign power or an agent of a foreign power.
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    Mr. VAN HOLLEN. Right. I understand that. So FISA doesn't require showing probable cause about a crime to be committed. I understand that. That's why I'm saying you don't require that in electronic surveillance. You want to have probable cause or reasonable basis to believe that there's—that one party to the phone conversation is a member of al-Qaeda or affiliated with al-Qaeda, right?

    Attorney General GONZALES. Yes.

    Mr. VAN HOLLEN. And as I understood your statement, you know, the court is somewhat time consuming, you got to sign off and be 100 percent sure that you meet that standard in advance, and sometimes you need rapid response time. And my question is this: we know that before 9/11 there were communications between al-Qaeda agents here in this country. If the time is the question, if the rapid response is the question, then for the security of the American people, why wouldn't we want to capture those conversations? Why when it comes to conversations between two al-Qaeda folks in the United States are you willing to take the extra time required and the extra risk to the security of the country required, going to the court? If it's just a matter of time, why aren't you taking this action?

    Attorney General GONZALES. Well, we do use FISA with respect to those kind of communications.

    Mr. VAN HOLLEN. But that takes you—according to your testimony, that takes longer.

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    Attorney General GONZALES. Yes.

    Mr. VAN HOLLEN. And the added time, as I understand it, the reason you've got to have this quick turnaround is for security reasons, to be able to act quickly. And so if security is the issue, why, for God's sakes, would we want to take greater risks for communications within the United States than outside the United States?

    Attorney General GONZALES. That's simply the decision that was made to limit this program to foreign communications, where we believe one party is a member of al-Qaeda, and that we would rely upon other authorities like FISA to surveil communications such as domestic communications here in the United States. I can't give you a better answer than that, sir.

    Mr. VAN HOLLEN. Well, let me just say, because this gets back to the question of whether this program's been authorized, and I'm trying to figure out how, as you said earlier, it was this collective decision, how people came to the decision that Congress wouldn't authorize exactly what we're talking about? I mean what was the debate back and forth? I think on a bipartisan basis, you have a vote if people had reason to believe, probable cause to believe that one party of the phone conversation was al-Qaeda or a member of al-Qaeda, that we would allow an expedited process?

    Attorney General GONZALES. What I said was, is that it wouldn't be approved—we wouldn't be successful in that effort without compromising the effectiveness of the program. The very fact that we're talking about this, and have been talking about this for months, the intelligence experts say that al-Qaeda, they can already see the way—changes in the way they communicate with each other, because they now know we have this capability. And so we can all agree this is a great program and we need to be doing it, but because we're now talking about it, and because the legislative process is such that people are going to be talking about what the legislation should or should not be, it informs our enemy about the tactics that we use to engage in surveillance.
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    Mr. VAN HOLLEN. If I might, Mr. Attorney General, as I understood your testimony here, there's not additional communications that we're now able to intercept, because that was just a question of a timing on the FISA Court. But now, in other words, they're not different in nature, and so it seems to me that anyone operating as an al-Qaeda member had to presume, prior to the disclosure of this information, that their phone conversations were being recorded.

    Attorney General GONZALES. You can assume. This is a——

    Mr. GOHMERT [Presiding]. The gentleman's time has expired. You can answer the question.

    Attorney General GONZALES. This is a very patient and very smart enemy. However, we know that from their conversations that they sometimes get lazy and they sometimes get careless. They're less likely to be careless and less likely to be lazy if every day they are hammered by the fact in the press that we're doing this.

    Mr. GOHMERT. The Chair recognizes the gentleman from North Carolina, Mr. Coble, for 5 minutes.

    Mr. COBLE. I thank the Chairman.

    Good to see you again, Mr. Attorney General. The gentleman from California, I yield to you.
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    Mr. LUNGREN. Thank you very much. Just to set the record straight, so that people understand what we're talking about, the Attorney General, in response to the question, mentioned that we could all agree that terrorists ought not to have weapons, and then people took a leap of faith to suggest that if you don't suppoPrt prohibiting that from people who are on the terrorist watch list, you therefore are supportive of people who can't have—people who are terrorists having weapons. And the statement was made if you're on the terrorist watch list you can't get on an airplane. Those are factually inaccurate. There is a no-fly list, and there is a terrorist watch list. One is much more exclusive than the other. One does not allow you to fly. The other one allows for secondary searches and also informs people, presumably within the Government, of an identification if an individual may be on that list.

    So let's not play fast and loose——

    Mr. VAN HOLLEN. Would the gentleman yield on that point?

    Mr. LUNGREN. No. I was refused an opportunity to yield.

    Mr. VAN HOLLEN. Well, you're suggesting—now you're suggesting people are playing fast and loose, but you're not willing to yield. That's fine.

    Mr. COBLE. I still control the time.

    Mr. LUNGREN. One of the things that really surprises me is the lack of comity in this place in the absence of 16 years. If one is going to make statements with respect to other Members about what they say or how they voted, it ought to be presumed the Committee would allow a person to respond to that. I'm now setting a record straight based on what was misstated on the other side about positions held here. The fact of the matter is, if you want to act in the absence of information or act out of ignorance, you are certainly welcome to do that. But to mischaracterize what facts are on a record, it seems to me to be inappropriate, and we ought not to allow the American people to believe that certain things are being done that subject them to more threat from terrorists because of unreasonable positions, when that in fact is not the case.
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    So a little attention to detail, and a little attention to the facts, presumably might help us to reach on occasion more bipartisan responses to very difficult issues that we're all, I hope, dedicated to dealing with. With that, I yield back to the gentleman from North Carolina, and I thank him for the time.

    Mr. COBLE. And I yield back my time.

    Mr. GOHMERT. The gentlewoman from California, Ms. Sánchez.

    Ms. SÁNCHEZ. Thank you.

    Mr. Attorney General, I have a deep concern about several issues with the DOJ, but one is regarding a series of articles last fall in the Washington Post, detailing the politicization of decisionmaking in the Civil Rights Division, in the voting section in particular, and this series of articles detailed how the Republican political appointees overruled decisions that were made by career attorneys when it came to authorizing the pre-clearance of election procedures, specifically two cases, the voter ID law in Georgia, and the redistricting map drawn by Representative Tom DeLay in Texas, even though those changes discriminated against minority voters in violation of the Voting Rights Act.

    In the Georgia ID case, for example, four of five lawyers and analysts working on that case made a recommendation to deny pre-clearance of a law, and in the Texas redistricting case, six career attorneys, two career analysts, and Joseph Rich, the Voting Section Chief at the time, made a recommendation to deny pre-clearance of the law.
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    My question to you is, are there guidelines for making an ultimate decision on a particular case of pre-clearance at the DOJ, because I'd like to know what guidelines exist at the DOJ that would allow a political appointee to overrule a unanimous or near-unanimous recommendation made by Civil Rights Division experts in those two cases?

    Attorney General GONZALES. Congresswoman, first of all, let me respectfully disagree with your characterization that we have authorized conduct that would discriminate against minority voters in violation of the law. Quite the contrary, in Texas, this matter has been litigated, and certainly, at least to the Circuit Court level——

    Ms. SÁNCHEZ. I was going to say, is it not pending before the Supreme Court?

    Attorney General GONZALES. But the latest word on this matter is, is that the decisions by the Texas officials is in fact lawful, so, obviously, the Supreme Court is going to have the final say on that.

    With respect to Georgia, respectfully, the top career person in the Civil Rights Division pre-cleared that case. And I visited with Congresswoman Waters about this. There may have been disagreement amongst other members of the career staff, but the top career lawyer in the Civil Rights Division pre-cleared that. And at the end of day, of course, political appointees are nominated by the President and confirmed by the U.S. Senate to exercise their own independent judgment.

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    There have been stories which have troubled me about the politicization of the Civil Rights Division. This is something that troubles me as a Hispanic in particular. I've had numerous conversations with Wan Kim, the Assistant Attorney General for Civil Rights. I believe he's dedicated to ensuring that the guidelines that we follow is the law. Those are the guidelines that we follow.

    Ms. SÁNCHEZ. I want to take issue with you about one thing. Number one, the redistricting case is currently pending decision in the Supreme Court. But if I'm not mistaken, the Georgia District Court likened the ID case requirement to a poll tax, and if that's—a poll tax is not a violation of civil rights, then educate me, because I was under the impression that it was.

    Attorney General GONZALES. Well, except what was considered in that litigation is different than what we have to consider as a Department in terms of pre-clearance under section 5. So it's like comparing apples and oranges.

    Ms. SÁNCHEZ. But your statement was that it wasn't in violation. In terms of pre-clearance—what I'm really trying to get at is what are the guidelines? Who makes the ultimate decision? I mean are the career attorneys and the analysts with the most number of years of experience allowed to make those decisions, or can they be overridden by political appointees?

    Attorney General GONZALES. We—you know, I am ultimately responsible for all the decisions within the Department of Justice, and——

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    Ms. SÁNCHEZ. So you agree with the two decisions in the pre-clearance.

    Attorney General GONZALES. I stand behind the decisions coming out of the Civil Rights Division, because I'm the Attorney General and I stand behind those decisions.

    Obviously, we take very seriously, and value—we take seriously the advice of career officials. We value their input. We value their experience and their role in making recommendations, but we are charged, we're the ones, with making the ultimate decision. Now, and the fact that there may be disagreement, as I indicated before, doesn't mean that the decision was the wrong decision. Sometimes these can be complicated issues. They're highly politically charged. They can be emotional issues. People may disagree as lawyers. That's what lawyers do, as you know, we disagree. But ultimately someone has to be responsible for that ultimate decision.

    Ms. SÁNCHEZ. And so you're assuming the responsibility and you're standing by those two decision to go——

    Attorney General GONZALES. Stand by those two decisions, yes, ma'am.

    Chairman SENSENBRENNER [Presiding]. The time of the gentlewoman has expired.

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    The gentlewoman from California, Ms. Waters.

    Ms. WATERS. Thank you very much.

    There have been several attempts to talk with you about the Civil Rights Division, and I'd like to continue with that, just read you something that was prepared for me.

    The past year, 20 percent of the Civil Rights Division's career lawyers have resigned, many in protest over what they allege to be the Administration's neglect of civil and voting rights enforcement. Their claims are supported by the Justice Department's own statistics. In the past 5 years, the Division's racial and gender discrimination caseload had dropped 40 percent. During that same period the Division has filed only 3 cases under section 2 of the Voting Rights Act, the provision that prohibits States and municipalities from enacting voting practices or procedures that discriminate on the basis of race, color or membership in a covered language minority group, all of them in 2005.

    This drop in section 2 enforcement comes at a time when there are conservative voter integrity initiatives aimed at purging African Americans from the voter rolls and intimidating Blacks at the polls are on the rise.

    I took a look at the three cases that were filed, and found some information. The Bush administration has filed only three lawsuits, all of them this year, on this section of the Voting Rights Act that prohibits discrimination against minority votes, and none of them involves discrimination against Blacks. The initial case was the Justice Department's first reverse discrimination lawsuit, accusing a majority Black county in Mississippi of discriminating against White voters.
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    Now, Mr. Attorney General, the stories are rampant about the Division that's going on between the Civil Rights Division and the appointees. November 13th, an article in the Washington Post; November 17, December 2nd, and February 2005. It's something going on. What do you have to say for what I just read?

    Attorney General GONZALES. I don't know whether or not all these stories were written by the same reporter for the same paper. Were they, if I may ask the question?

    Ms. WATERS. I don't know.

    Attorney General GONZALES. Well, let me give you a few numbers of my own. The Department's Civil Rights Division prosecuted a record number of criminal civil rights cases in the last 2-year period. We have doubled the number of trafficking defendants charged, increasing the number of trafficking lawsuits filed by over 30 percent, and we've secured more convictions against human trafficking defendants from '04 to '05. We've created 12,000 new housing opportunities for people with disabilities in——

    Ms. WATERS. Excuse me. May I interrupt you? Is it true that you have filed only three lawsuits, all of them this year, on the section of the Voting Rights Act that prohibits discrimination against minority voters, and that none of them were against Blacks, discrimination against Blacks, and did you have one case that was a reverse discrimination case in a Black county against White voters? Is that statement true?

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    Attorney General GONZALES. I think the last statement is true. I don't know the answer to the first——

    Ms. WATERS. You don't know how many lawsuits you have filed under this section of the Voting Rights Act?

    Attorney General GONZALES. No, ma'am, I don't, but we can certainly——

    Ms. WATERS. You have some people here with you. Turn around and ask them.

    Attorney General GONZALES. We'll find out.

    Ms. WATERS. Nobody knows. That's a lot of personnel years over there for none of you to know——

    Attorney General GONZALES. We can provide you the information, Congresswoman.

    Ms. WATERS. Well, you know, that's why we want you here. I mean I don't want it in secret. I want it in public. You know, I want everybody to know that you——

    Attorney General GONZALES. Well, can I finish my numbers?
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    Ms. WATERS. Yes.

    Attorney General GONZALES. We filed more cases under the minority language provisions of the Voting Rights——

    Ms. WATERS. Well, I know you did, but I didn't ask you about that.

    Attorney General GONZALES. No, ma'am, but I think——

    Ms. WATERS. No, no, no, this is my dime.

    Attorney General GONZALES. Yes, ma'am.

    Ms. WATERS. All right. So, having asked you that, what about these lawyers that have quit in the Civil Rights Division, and some of them wanting to go public because they think what you are doing is not right? Have you heard about that?

    Attorney General GONZALES. I'm aware of these stories, which I think were written by one reporter for one paper. I do know that there was a—I was asked a similar question in another hearing, whether or not there was a concerted effort within the Department to remove people from the Division. And I advised that Member of Congress that there was an effort, as a personnel move, to offer sort of buy-outs for everyone within the Department meeting certain qualifications, certain criteria——
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    Ms. WATERS. Okay, I got that. Let me tell you what the Post said. The Post has also reported that conflict between career attorneys and political appointees extend to issues of enforcement. Recent revelations about a series of voting rights cases demonstrate that the appointees have redirected VRA enforcement away from protecting Black voters and toward advancing the interests of White Republicans.

    What do you have to say about that?

    Attorney General GONZALES. Disagree with that.

    Chairman SENSENBRENNER. The time of the gentlewoman has expired.

    The gentleman from New York, Mr. Weiner.

    Mr. WEINER. Thank you.

    Mr. Attorney General, earlier today you said the President has—and there's a quote—''inherent authority'' to decide who in fact should have classified information. In your view of the law, does he need to go through a declassification procedure or simply giving out the information is an act sufficient under his authority? Does he have to go through the formal process of a declassification——

    Attorney General GONZALES. As a general matter, I think the President could decide to declassify information.
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    Mr. WEINER. Does he have to go through a process of declassification? He can, by giving it to someone, in your view, de facto, declassify it?

    Attorney General GONZALES. I think the President could decide what would be the appropriate method of declassifying information.

    Mr. WEINER. Is it your view that, as you describe, the President has the inherent authority, does that extend to the Vice President, in your view?

    Attorney General GONZALES. I think I was asked that question, and I'm not sure, and given my position of recusal in this case, which I know these questions are related solely to this matter that came out today, I'm not going to answer the question.

    Mr. WEINER. What troubles me though, Mr. Attorney General, is this sounds vaguely evocative to someone who said when the President does it, that means it is not illegal. That was President Richard Nixon in explaining his behavior. And his argument was that Executive authority essentially said anything the President does de facto makes it legal.

    And I'm concerned that by your explanation, the President could theoretically see no limits on his ability to declassify a document if he saw it was in the national interest. Is that your view, even if it was not related to national security, he just thought it would be a good thing for people to know? Is it your view that he has the authority to take classified information that he has access to, and theoretically you have access to—you earlier said you have the highest authority, the highest classification—is it your view that he has unfettered authority under Executive privilege to release any document he sees fit?
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    Attorney General GONZALES. Congressman, I've already answered that question. I've got nothing to add on this.

    Mr. WEINER. If you would humor me, I forget the answer to it. Is your view that he has the authority to—you said earlier that he could do it if he decided there was a national security interest. Is that the only circumstance under which he can do it?

    Attorney General GONZALES. I've answered this question as far as I can go, Congressman.

    Mr. WEINER. Would you try it again for me? Would you humor me by repeating the answer?

    Attorney General GONZALES. I've answered the question.

    Mr. WEINER. I don't recall the answer to the question. I'm asking you again. Would you be so kind as to repeat your answer?

    Attorney General GONZALES. I've answered the question, Congressman.

    Mr. WEINER. Mr. Attorney General, I'm asking you a fairly straightforward question. If you've already answered it, then it's already on the record.

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    Attorney General GONZALES. Congressman, I stand by my earlier answer.

    Mr. WEINER. Okay. Your earlier answer seems to be, when the President does it, that means it is not illegal. That is exactly what President Richard Nixon said.

    Attorney General GONZALES. I stand by my earlier answer.

    Mr. WEINER. You have taken a position that essentially says the President has the right to leak information whenever he sees fit. He has the right, under your explanation, to give it to the Vice President, and to have the Vice President hand it off to his chief of staff to then leak it to a newspaper.

    And I would say to you, you know, earlier today you also said, in a question that I do have the answer records, is the President covered under the same law that you and I are? Attorney General Gonzales said, ''No, he's not.'' That was from earlier today. That was an answer I did take note of. And I think it's most troubling, and I think, frankly, that the crux of the issue about so many of the cases that we deal today, is the sense that you, on behalf of the Administration, and the Administration itself, has a sense just like Richard Nixon did, that if the President does it, it must make it legal. You're not disputing that today. You've even gone on to repeat it a couple of times. You said the President has inherent authority to decide who in fact should have classified information. You've said that he's not covered under the same law that you and I are.

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    Indeed, Mr. Attorney General, he is covered under those laws. He does not have the right to simply say, ''This is information I think should be in the public domain for any reason I see fit.''

    Mr. ISSA. Would the gentleman yield?

    Mr. WEINER. It's my authority.

    Mr. ISSA. Would the gentleman yield?

    Mr. WEINER. I will yield under only the circumstance that the Attorney General repeats his answer to the question that I missed.

    [No response.]

    Mr. WEINER. In that case, I will not yield.

    This is the problem with the Administration today. And if you think it's not cause for concern, I would just urge you, Mr. Attorney General, to realize that I understand your allegiance to the President, understand your allegiance to the Administration, I understand your role here. But there's a higher question that is at play here, and it is whether or not the President is accountable to the same laws. The answer to the earlier question, is the President covered under the same law that you and I are, is, ''Yes, Congressman,'' not ''No.'' The answer is not the President has inherent authority to leak classified information, it's ''Of course, he does not.'' The answer is not, as Richard Nixon said, ''When the President does it, that means it is not illegal.'' That is not correct. That is an incorrect view not only of your job, not only of the Constitution, but it's an incorrect understanding of the fundamental underpinnings of our Constitution. That is why you've heard so many concerns here today.
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    And, frankly, you know, to say as you have, that is the President covered under the same law that you and I are? No, he's not. The President has inherent authority to decide who in fact should have classified information. And Richard Nixon, who said, on May 20th of 1977, ''When the President does it, that means it is not illegal.'' Mr. Attorney General, you are incorrect.

    Chairman SENSENBRENNER. Time of the gentleman has expired.

    Mr. Issa would like 5 minutes.

    Mr. ISSA. General Gonzales, I appreciate your staying with us throughout the afternoon. I would have answered for the gentleman from New York, the question, happily, except I'm not any different than the gentleman from New York. I'm a Member of Congress, a separate body, one that makes its rules irregardless-if that's a word—of what the rules for the judiciary may be, and regardless of what the rules for the Executive branch is, and I certainly appreciate your longstanding understanding of the separation of branches and why we can make something classified or declassified, the President can issue Executive Orders and he can change Executive Orders, and I appreciate that.

    Would you please enlighten me, since I wasn't able to hear the rest of your statement of prosecutions and how this year has gone in the enforcement of civil rights and other matters?

    Attorney General GONZALES. I need to find it.
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    Mr. ISSA. While you're finding that, I'd also like to thank you for quickly recusing yourself and taking the lead on making sure that there is a fair and impartial answer to the gentleman's questions, because I think that sort of leadership, and quickly, is very non-Nixonian. In the Nixon period in which I enjoyed my youth, there was just the opposite. There was a statement that nobody would answer, and everyone was above the law, and I think this Administration, you in particular, have never implied that in any way, shape or form.

    Please continue.

    Attorney General GONZALES. Thank you. Just three final points and that is—and I may have made this first one—the Civil Rights Division has filed more cases under the minority language provisions of the Voting Rights Act in 2005, than in any previous year. We've undertaken the most vigorous enforcement of the language minority provisions of the Voting Rights Act, its history, and the Civil Rights Division has significantly increased the number of criminal lawsuits filed against defendants charged with damage to religious property in 2005.

    Thank you.

    Mr. ISSA. I'm not going to ask you to excessively comment on this, but I have a copy of a piece from today related to what Mr. Weiner was talking about, and I note that it says ''Vice President Dick Cheney's former top aide told prosecutors''—and there's no parentheses, no quote—''President Bush authorized the leak of sensitive intelligence information about Iraq.''
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    Without accepting those words since they're not in quotations, isn't it the obligation of the President, as the Chief Executive and as the Commander-in-Chief, to make determinations about what should or should not be made available in order to create fear by our enemies, misinformation, et cetera, and doesn't the President hold the sole responsibility of deciding when to take those risks for whatever purpose, and when to, for example, withhold information for the same reason, that lives are at stake? Isn't that inherently within the President's power?

    Attorney General GONZALES. Well, of course, the President does—he is the Chief Executive Officer of the United States. He does have—he is the Commander-in-Chief. As part of that responsibility also, as the inherent authority, he is the sole organ for the United States with respect to foreign relations. There are many responsibilities and obligations that stem from those responsibilities, and, obviously, one of those is to protect this country against our enemies.

    This Congress, when it passed the authorization to use military force, recognized that the President does have the inherent authority under the Constitution—it is in the preamble—and the authorization to use military force. The President does have the authority—let me just quote from it—''The President has the authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.'' Now, those words must mean something.

    We take the position that the President does have the inherent authority, has been recognized by every court that's looked at this issue to authorize electronic surveillance of the enemy during a time of war.
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    Mr. ISSA. Thank you. And I notice that my colleague from California, Mrs. Waters, used the term ''reverse discrimination.'' Isn't it fairer to say that the civil rights statutes don't recognize reverse discrimination, only discrimination regardless of the source?

    Attorney General GONZALES. I would hope that Americans would expect the Department of Justice to apply the laws equally. If someone is being discriminated on the basis of their color, that we should enforce the civil rights laws.

    And let me just make one final point. Talking about the rate of attrition, the rate of attorney attrition during this Administration is almost identical. Less than 1 percent different than during a comparable period of the prior Administration. And so attrition does occur. It is part of the normal life of an Administration.

    Chairman SENSENBRENNER. The gentleman's time has expired.

    The gentlewoman from California, Ms. Lofgren.

    Ms. LOFGREN. Thank you, Mr. Chairman, and Mr. Attorney General.

    I'd like to return to the NSA discussion. Well, before I do, let me just make an observation, something you said earlier in response to a question, that the PATRIOT Act wasn't just about our fight against terrorism and the war, it was even in times not a war. And I couldn't help but remember being in this very room in the days after the 9/11 attack, sitting at the table where you're sitting now, with the Viet Dinh, and working through this. And I'll tell you, everything we were told at that time and everything we've been told since was that the motivation and the reason for the PATRIOT Act was to fight against terrorism, not a general crime statute. So I just think that statement struck me as extremely odd.
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    But I want to talk also about the rule of construction. We passed the authorization for the invasion of Afghanistan. I voted for it. But the FISA statute has a specific provision that discusses how to proceed after the Congress has declared war. And it seems to me, as an ordinary rule of statutory interpretation, that the specific takes precedence over the general. I don't want to get sidetracked on that because I have some specific questions.

    First, under CALEA, communications providers are required to provide standard interfaces to law enforcement agencies for wiretapping. Are these the same interfaces NSA is using to conduct surveillance under this program? What other interfaces or accesses has the NSA been provided by communications providers? Or if that is a classified matter, could you just say so and we'll pursue it in proper format.

    Attorney General GONZALES. Respectfully, Congresswoman, that is an operational detail that I cannot discuss.

    Ms. LOFGREN. All right. Let me talk about—it's my understanding, and all the Committee really knows is what we read in the newspapers, which I think is actually a pretty sad commentary on the lack of the partnership that we should have on this fight, the legislative and the Executive branch together on this. But in any case, it's my understanding from press reports that in 2004 the FISA Court insisted on a process where information from warrantless NSA intercepts would be tagged, so as to not leak into the FISA warrant process. The press reports further indicate that because of problems with this tagging process, some intelligence, nonetheless, did lead through to the FISA Courts warrant process.

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    What processes do you have in place to sequester information gathered under this program and to keep it from being used to develop warrant requests?

    Attorney General GONZALES. Again, Congresswoman, that is information that I'm not at liberty to discuss, certainly not in this setting. But I can say——

    Ms. LOFGREN. That strikes me as very odd.

    Attorney General GONZALES. Let me just say this. We have a very good relationship with the FISA Court, and it is important for us that the FISA Court have confidence in what we're doing, that they have confidence in the applications that we submit, that they have confidence in the representations that we make to the Court, and so, despite all the revelations that have occurred—and of course, now I'm speaking on behalf of the Court and maybe I shouldn't be doing that—but to my knowledge, I think the Court is comfortable with what the Department is doing.

    Ms. LOFGREN. Well, I don't know, and apparently we can't discuss that. But I'd like to know, if you're able to tell us this, how many prosecutions have involved intelligence gathered under this program, either directly or indirectly?

    Attorney General GONZALES. I'm sorry. I can't——

    Ms. LOFGREN. You won't tell us that either?

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    Attorney General GONZALES. But let me just—but let say this, and I think this is important, and hopefully, it will be helpful to you. Let me just quote for you——

    Ms. LOFGREN. My time is almost up, so you can give me what you would quote, and I promise I'll read it. I just would like to mention that under—you said that whatever is incident to conducting war, the President can do under his war powers authority without regard to statutes, is essentially what you've said.

    Attorney General GONZALES. That's what the Supreme Court said.

    Ms. LOFGREN. And in your 43. So which of the following things would be incident to conducting war? Shooting people, taxing them in their homes or on the street, putting them in POW camps; are all of those things incident to war?

    Attorney General GONZALES. I think we'd have to look at what has occurred in the past in connection with conflicts. Let me just says—well——

    Ms. LOFGREN. Just a final thing. I do appreciate you being here. This is a long day for you as well as for us, but I have a great deal of frustration. You have a job to do, but the Congress has a job to do, and we have been denied the opportunity to do it, and I thank you.

    Chairman SENSENBRENNER. The gentlewoman's time has expired. The gentleman from Iowa, Mr. King.
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    Mr. KING. Thank you, Mr. Chairman.

    And, again, General Gonzales, I thank you for your due diligence and patience before this Committee and the time that you've committed to this cause that we have. I wonder if we could return for a moment to section 203 of the Voting Rights Act, and maybe explore another aspect of the Voting Rights Act that we didn't get to earlier today. And that would be—and I'm speaking off the top of my head without notes with regard to the language that's in there—but as I recall, that when a language-deficient population is identified within a voting district, and I believe in one of those definitions it's a universe of 10,000 language deficient—-then that would be the trigger that would set up the requirement for bilingual or multilingual ballots——

    Attorney General GONZALES. I think it's 10,000 or 5 percent or something like—I too don't have the exact language in front of me.

    Mr. KING. Conceptually we're on the same page, I'm confident. So I would submit then that if there were 9,999 in that universe, or 5,000 or 1,000 or 500 or 1, are those people—are they afforded equal protection under the law, under the 14th amendment, or how do we ever provide for equal protection under the law if we set numerical standards for preferences in that regard?

    Attorney General GONZALES. That's an interesting question, Congressman. It's not one that I have thought about, and it's the kind of question that before providing you an answer as to whether or not we've got an equal protection problem on a statute that's been passed by Congress, it would be one that I would like to talk to others in the Department about.
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    Mr. KING. Well, thank you, and I will submit that question in writing. And as I listen to this discussion——

    Chairman SENSENBRENNER. Without objection, the question and the written response will appear in the record, and all Members may, without objection, submit questions of the Attorney General for a written response. In order to get this record to the printer, I would ask that this all get wrapped up by the 1st of May, however, which means the questions should come within the next 4 or 5 days.


    Mr. KING. Thank you, Mr. Chairman.

    And as I listened to this discussion here, and particularly the remarks made by the gentlelady from California, Ms. Sánchez—and I believe the number that she gave was almost half of the people that applied to register to vote were denied, and I believe the number she gave was 43 percent. And as I listen to that, I speculate as to what percentage of those people might be illegal that are applying to vote and being denied in that fashion. I won't ask you to speculate on that, but I just, if I could read from the, actually read from the 14th amendment. And there is a provision in here that we don't discuss very much in this Congress: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole numbers of persons in each State. And I'll paraphrase a little bit. And for the elections—and it lists mostly Federal election but also included the State legislature—if that right to vote is denied to any of the male inhabitants of such State—and I suspect that has been corrected by a subsequent amendment so that it is male and female, and those of age—the basis of representation therein shall be reduced in the proportion of which the number of such citizens shall bear to the whole number of citizens in the respective district. That's a paraphrase of section 2 of the 14th amendment.
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    So I would submit this question. As I look at the polls that come back across the 435 congressional districts in America, and I see that I need to be able to garner one more than about 240,000 votes in order to win an election, there are a couple of seats in California that don't garner perhaps even 25,000 votes in order to win an election. I speculate partly on that testimony, or partly on the question oft gentlelady from California, that there are quite a lot of illegals in those districts. They are counted for redistricting purposes, and the representation of the illegals within those districts are voiced here in Congress by people who only need 25,000 votes to win a seat. And I'd ask you, is that section 2 of the 14th amendment then, would that apply so we could correct that by an interpretation of the Constitution, or do you believe we need a constitutional amendment to correct that huge inequity that we have?

    Attorney General GONZALES. Honestly, Congressman, I don't know. But I mean you've raised, obviously, some thoughtful questions, and I'd be happy to look at it and give you my views.

    Mr. KING. Thank you, General Gonzales, and I will reserve the balance of my questions and put those in print as well, as directed by the Chairman. And I thank you, and I yield back the balance of my time.

    Chairman SENSENBRENNER. Gentleman from New York, Mr. Nadler.

    Mr. NADLER. Thank you.

    Mr. Attorney General, the President has stated repeatedly, and you have too, that we are using warrantless wiretaps only to wiretap the conversation where one party is a terrorist or suspected to be a terrorist abroad. Given that, can you assure us that no warrantless surveillance is being done in cases where if you had all the time in the world, you could not get a—in your opinion, you could not get a warrant from a FISA Court?
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    Attorney General GONZALES. I don't have that information.

    Mr. NADLER. Thank you. Number 2. Can you assure us that there is no warrantless surveillance of calls between two Americans within the United States?

    Attorney General GONZALES. That is not what the President has authorized.

    Mr. NADLER. Can you assure that it is not being done?

    Attorney General GONZALES. As I indicated in response to an earlier question, no technology is perfect.

    Mr. NADLER. Okay.

    Attorney General GONZALES. We do have minimization procedures in place——

    Mr. NADLER. But you're not doing that deliberately.

    Attorney General GONZALES. That is correct.

    Mr. NADLER. Thank you. Now, despite the efforts of many Members of Congress, as you know, there is no public reporting requirement on the number of national security letters issued every year, and there has not been a official accounting from your Department on their use. In November of last year we learned from the Washington Post, they said that about 30,000 national security letters are issued every year. Are they within the ballpark; is this approximately true?
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    Attorney General GONZALES. Quite frankly, sir, I don't know. We do send classified reports to Congress regarding our use of——

    Mr. NADLER. Can you get back to us in unclassified as to roughly how many are issued?

    Attorney General GONZALES. I'd be happy to consider your request, sir.

    Mr. NADLER. Is there any reason why you couldn't make public the number of NSLs that have been issued every year or two?

    Attorney General GONZALES. I can't think of a reason off the top of my head, but, there's a reason they're classified and——

    Mr. NADLER. Well, if you can't back to us with those numbers, could you get back to us with a reason why you can't?

    Attorney General GONZALES. That's fair enough.

    Mr. NADLER. Thank you. Secondly, I have a question about the practice of extraordinary rendition, particularly rendition to repressive countries we know practice torture. There's one widely publicized case that illustrates the issue. A Canadian citizen, Mr. Arar, was detained in 2002 at JFK Airport in New York as a suspected terrorist. He was on his way home to Canada, changing planes at Kennedy. He was grabbed by CIA agents, I gather, secretly deported to Syria where he endured 10 months of torture in a Syrian prison.
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    After the Syrians determined that he didn't know anything about terror, they released him. Upon his release, he declared at a news conference that he had pleaded with U.S. authorities to let him continue on to Canada, where he has lived for over 15 years, and his family, but instead, he was flown under U.S. guard to Jordan, and handed over to Syria, where he had been born, and where he was then tortured.

    Does the United States Government claim the authority to kidnap anybody at a U.S. airport, and without any administrative or judicial process of any sort, put that person on a plane to a torture-practicing nation? We do not claim that authority or we do?

    Attorney General GONZALES. We have international agreements, which we are a party to, where the United States has agreed, has committed, that it will not render someone to another country, where we believe it's more likely than not——

    Mr. NADLER. Well, do we claim the authority to render someone to another country—let's assume we believe they're not going to use torture—by what right do we—legal right, do we pick someone up at an airport and deny him the right to continue to Canada which is where he's a citizen of, and send them to Syria without any kind of administrative or judicial process?

    Attorney General GONZALES. Well, I'm not comment as to what actually may have happened or may not have——

    Mr. NADLER. Do we claim the right to do that? Whatever happened in that case, is that something we claim the right to do?
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    Attorney General GONZALES. I don't know, but I would be happy to get back to you on that.

    Mr. NADLER. You don't know if we claim the right to do that because the Government defended that in court, your Department defended that in court.

    Attorney General GONZALES. Before I comment any further on that, Congressman, I'd like the opportunity to get back to you.

    Mr. NADLER. Okay. And let me further ask, since we have done this, and since your Department has defended this in court, specifically in the Eastern District, is this practice limited only to airports, or do we claim the right to take people going about their business, walking on the street, grocery shopping, window shopping, at the mall, suddenly and unexpectedly to grab them and to deport them to places like Syria without any evidence, without any due process? Do we claim that right? And if we don't claim that right, why do we claim it at airports?

    Attorney General GONZALES. Mr. Congressman, I'm not going to get into specific, what we do, what we don't do. What I can say is that we understand what our legal obligations are, we follow the law.

    Mr. NADLER. Let me ask you the last question then. Can you assure this Committee that the United States Government will not grab anybody at an airport or anyplace in U.S. territory, and send them to another country without some sort of due process?
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    Attorney General GONZALES. Well, what I can tell you is that we're going to follow the law in terms of what——

    Mr. NADLER. Well, does the law permit us to send someone to another country without any due process, without a hearing before an administrative, an immigration judge or somebody? Just grab them off the street and put them on a plane, goodbye without—we've done that. Does the law permit us to do that? Do we claim that right?

    Attorney General GONZALES. I'm not going to confirm that we've done that——

    Mr. NADLER. Well, wait a minute. That was confirmed in court. There's no question it was done.

    Chairman SENSENBRENNER. The gentleman's time——

    Mr. NADLER. Do we claim the right to do it?

    Chairman SENSENBRENNER. The gentleman's time has expired.

    Mr. NADLER. Could he answer the question, please?

    Chairman SENSENBRENNER. The gentleman's time has expired. I yield myself the last 5 minutes.
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    General Gonzales, I'd like to ask some follow-up questions relative to the timeline on the NSA terrorist surveillance program that I talked about at the beginning of the Q&A period when I yielded myself some time. The response that you gave to the oversight letter, which I sent, indicated that the program was first authorized and implemented in October of 2001. My recollection indicates to me that the first time that the leadership and the Chair and Ranking Members of both Intelligence Committees were briefed, was sometime in 2003. And Senator Rockefeller sent a handwritten letter expressing his concern to the Vice President. Were there briefings before 2003?

    Attorney General GONZALES. I believe—I'm fairly certain, Mr. Chairman, that there were briefings that began in early or the spring of 2002, but I'm not 100 percent certain, but I'm fairly certain, certainly well before 2003.

    Chairman SENSENBRENNER. Well, you know, according to your recollection, the program was authorized and implemented well before the first briefing took place with the leadership and the leadership of the two Intelligence Committees.

    Attorney General GONZALES. I don't want to quibble with you over the word ''well,'' but certainly the program was initiated before there was a briefing with congressional leadership.

    Chairman SENSENBRENNER. The problem is, is that this Committee has been completely in the dark, even though this Committee has got jurisdiction over the FISA law, and maybe the problems that exist today would not have occurred had we been brought into the loop, and an amendment to the FISA law would have been advisable.
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    I would like to ask another question. Also from press reports that indicated that somebody from the Administration went to former Attorney General Ashcroft while he was in the hospital to obtain his sign-off on something, after then-Deputy Attorney General James Comey refused to do so. My question is, is this a program that is significantly different than that which was previously authorized and implemented on October 2001?

    Attorney General GONZALES. That is a difficult question for me to answer, Mr. Chairman, and I can't answer that question. What I can say is that the members of the Intell. Committee know the answer to that question.

    Chairman SENSENBRENNER. Why was a new sign-off required?

    Attorney General GONZALES. Well, there's a new sign-off required every 45 days or so, Mr. Chairman, because—and the reason for that is because we are limited by the fourth amendment, and that this search has to be reasonable, which requires an examination of the totality of the circumstances, and so within 45 days there is an analysis of the intelligence community about the threat to America, and so there is a periodic sign-off.

    Chairman SENSENBRENNER. I'm fully aware of the 45-day requirement, and that is a reasonable requirement. But it seems to me if the circumstances had not significantly changed, then the position of the Justice Department in the sign-off should not have required someone who had previously signed off to change their mind.

    Attorney General GONZALES. Mr. Chairman, what I can say—and I'm sure this will not be acceptable, but let me say it anyway—is that I have testified before that the disagreement that existed does not relate to the program the President confirmed in December to the American people.
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    Chairman SENSENBRENNER. Unfortunately, General Gonzales, I'm afraid that you have caused more questions to be put out for debate within the Congress and in the American public as a result of your answers that you've just given, as well as the answers to my questions this morning.

    Now, that concerns me, and I think I can speak in a bipartisan manner that we're your partners in this area. We have not been treated as partners for whatever reason. I think that that's been a mistake, and a lot of future problems in this area could be eliminated if you bring us into your trust and confidence. We all strongly support the war against terrorism. It was this Committee that worked twice to enact the PATRIOT Act and then to extend the PATRIOT Act. Both of those were on a bipartisan vote.

    I am really concerned that the Judiciary Committee has been kind of put in the trash heap after we had been able to pass some really significant legislation. And if this continues, the debate is going to continue on the NSA program.

    You had a chance today to put some of these questions to rest, and I am afraid that there are more questions that will be posed out there because of the answers that you have not given.

    Having said that, let me thank you for coming——

    Ms. JACKSON LEE. Mr. Chairman. Mr. Chairman, could I make an inquiry?
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    Chairman SENSENBRENNER. No. I would like to close the hearing down.

    Having said that, let me thank you for appearing. I have noted from my score card here that you answered 48 5-minute questions from both sides of the aisle, 28 from the Democratic side and 20 from the Republican side. You put in an honest day's work for an honest day's pay. We appreciate you coming here. This has been a very wide-ranging hearing, and let me say that you're always welcome to come back.

    Mr. NADLER. Mr. Chairman?

    Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition?

    Mr. NADLER. I seek recognition to point out that if a Member of the Committee seeks recognition, you can only close the hearing by a majority vote; otherwise, she must be recognized.

    Chairman SENSENBRENNER. I was planning on recognizing her.

    Mr. NADLER. Okay.

    Chairman SENSENBRENNER. I haven't been interrupting people except when their time is expired. I would kind of like to have the same courtesy.
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    For what purpose does the gentlewoman from Texas seek recognition?

    Ms. JACKSON LEE. I thank you, Mr. Chairman. My understanding was that you were closing the hearing and that your 5 minutes had ended, but I thank you very much.

    I wanted to inquire whether or not——

    Chairman SENSENBRENNER. For what purposes does the gentlewoman seek recognition?

    Ms. JACKSON LEE. To make a point of inquiry, Mr. Chairman.

    Chairman SENSENBRENNER. State your point of inquiry.

    Ms. JACKSON LEE. The point of inquiry is, can this Committee go into classified—go into a classified session for the Attorney General to provide us with the answers to some of the questions that were not answered today, prospectively?

    Chairman SENSENBRENNER. The answer to your inquiry is yes, but both Mr. Conyers and I have concerns about the effect of doing so, and this matter will be discussed with the minority, and a decision will be reached sometime——

    Ms. JACKSON LEE. Thank you, Mr. Chairman.
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    Chairman SENSENBRENNER. The purpose for which this hearing, having been called without objection, the Committee stands adjourned.

    [Whereupon, at 3:03 p.m., the Committee was adjourned.]


Material Submitted for the Hearing Record


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]


THE WASHINGTON POST News Article ''Civil Rights Focus Shifts Roils Staff at Justice,'' dated November 13, 2005

    Correction to This Article

    A Nov. 13 article incorrectly said that the Justice Department's Civil Rights Division filed three friend-of-the-court briefs in fiscal 2005, down from 22 in 1999. The division filed 14 such briefs in 2005. The article also said that lawyer Richard Ugelow left the division in 2004. He left in 2002.
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    By Dan Eggen
    Washington Post Staff Writer
    Sunday, November 13, 2005; A01

    The Justice Department's Civil Rights Division, which has enforced the nation's anti-discrimination laws for nearly half a century, is in the midst of an upheaval that has driven away dozens of veteran lawyers and has damaged morale for many of those who remain, according to former and current career employees.

    Nearly 20 percent of the division's lawyers left in fiscal 2005, in part because of a buyout program that some lawyers believe was aimed at pushing out those who did not share the administration's conservative views on civil rights laws. Longtime litigators complain that political appointees have cut them out of hiring and major policy decisions, including approvals of controversial GOP redistricting plans in Mississippi and Texas.

    At the same time, prosecutions for the kinds of racial and gender discrimination crimes traditionally handled by the division have declined 40 percent over the past five years, according to department statistics. Dozens of lawyers find themselves handling appeals of deportation orders and other immigration matters instead of civil rights cases.

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    The division has also come under criticism from the courts and some Democratsfor its decision in August to approve a Georgia program requiring voters to present government-issued identification cards at the polls. The program was halted by an appellate court panel and a district court judge, who likened it to a poll tax from the Jim Crow era.

    ''Most everyone in the Civil Rights Division realized that with the change of administration, there would be some cutting back of some cases,'' said Richard Ugelow, who left the division in 2004 and now teaches law at American University. ''But I don't think people anticipated that it would go this far, that enforcement would be cut back to the point that people felt like they were spinning their wheels.''

    The Justice Department and its supporters strongly dispute the complaints. Justice spokesman Eric Holland noted that the overall attrition rate during the Bush administration, about 13 percent, is not significantly higher than the 11 percent average during the last five years under President Bill Clinton.

    Holland also said that the division filed a record number of criminal prosecutions in 2004. A quarter of those cases were related tohuman-trafficking crimes, which were made easier to prosecute under legislation passed at the end of the Clinton administration and which account for a growing proportion of the division's caseload.

    In addition, Holland defended the department's decision to approve the Georgia voter law, saying that ''career and political attorneys together concluded'' that the measure would have no negative effect on minorities.

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    ''This administration has continued the robust and vigorous enforcement of civil rights laws,'' Holland wrote in an e-mail statement, adding later: ''These accomplishments could not have been achieved without teamwork between career attorneys and political appointees.''

    Attorney General Alberto R. Gonzales, the first Hispanic to hold the job, named civil rights enforcement as one of his priorities after taking office earlier this year and supports reauthorization of the Voting Rights Act.

    Although relations between the career and political ranks have been strained throughout the Justice Department over the past five years, the level of conflict has been particularly high in civil rights, according to current and former staffers. The debate over civil rights flared in the Senate in recent weeks after the nomination of Wan J. Kim, who was confirmed on Nov. 4 as the assistant attorney general for the division and is the third person to hold that job during the Bush administration. Kim has been the civil rights deputy for the past two years.

    There were no serious objections to Kim's nomination, but Democrats including Sens. Richard J. Durbin (Ill.) and Edward M. Kennedy (Mass.) said they were concerned about serious problems with morale and enforcement within the division.

    ''Its enforcement of civil rights over the past five years has been negligent,'' Kennedy said in a statement. ''Mr. Kim has promised to look closely at these issues and to increase the division's enforcement, and I believed he should be given a chance to turn the division around.''

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    Critics point to several key statistics in arguing that Gonzales and the previous attorney general, John D. Ashcroft, have charted a dramatically different course for civil rights enforcement than previous administrations of both parties.

    The Lawyers' Committee for Civil Rights Under Law, which includes a number of former Justice lawyers, noted in a letter to the Senate Judiciary Committee that the division has filed only a handful of cases in recent years dealing with employment discrimination or discrimination based on the statistical impact on women or minority groups.

    The total number of criminal prosecutions is within the range of the Clinton administration, but a growing percentage of those cases involve prosecuting human smugglers, which have become a priority for the division only in recent years. Other types of civil rights prosecutions are down, from 83 in fiscal 2001 to 49 in 2005.

    The Bush administration has filed only three lawsuits—all of them this year—under the section of the Voting Rights Act that prohibits discrimination against minority voters, and none of them involves discrimination against blacks. The initial case was the Justice Department's first reverse-discrimination lawsuit, accusing a majority-black county in Mississippi of discriminating against white voters.

    The change in emphasis is perhaps most stark in the division's appellate section, which has historically played a prominent role intervening in key discrimination cases. The section filed only three friend-of-the-court briefs last year—compared with 22 in 1999—and now spends nearly half its time defendingdeportation orders rather than pursuing civil rights litigation. Last year, six of 10 briefs filed by the section were related to immigration cases.
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    William R. Yeomans, a 24-year division veteran who took a buyout offer earlier this year, wrote in an essay in Legal Affairs magazine that ''morale among career attorneys has plummeted, the division's productivity has suffered and the pace of civil rights enforcement has slowed.''

    In an interview, Yeomans said some of the problems stem from the way the ''front office'' at Justice has treated career employees, many of whom have been forced to move to other divisions or to handle cases unconnected to civil rights. As an example of the strained relations, Yeomans points to the recent retirement party held for a widely admired 37-year veteran: Not one political appointee showed up.

    At the same time, Ashcroft implemented procedures throughout Justice that limited the input of career lawyers in employment decisions, resulting in the hiring of many young conservatives in civil rights and elsewhere in the department, former and current lawyers have said.

    ''The more slots you open, the more you can populate them with people you like,'' said Stephen B. Pershing, who left the division in May and is now senior counsel at the Center for Constitutional Litigation, a Washington law firm that handles civil rights cases. ''It's pretty simple really.''

    To Roger Clegg, the situation is also perfectly understandable. A former civil rights deputy in the Reagan administration who is now general counsel at the Center for Equal Opportunity, Clegg said the civil rights area tends to attract activist liberal lawyers who are philosophically opposed to a more conservative approach.
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    ''If the career people are not reflecting the policy priorities of the political appointees, then there's a problem,'' Clegg said. ''Elections have consequences in a democracy.''

    Holland, the Justice spokesman, said critics are selectively citing statistics. For example, he said, the department is on the winning side of court rulings 90 percent of the time compared with 60 percent during the Clinton years. Federal courts are ''less likely to reject our legal arguments than the ones filed in the previous administration,'' he said.

    Ralph F. Boyd Jr., the civil rights chief from 2001 to 2003, agreed: ''It's not a prosecutor's job to bring lots of cases; it's a prosecutor's job to bring the right cases. If it means fewer cases overall, then that's what you do.''


    See footnote on Page 77

(Footnote 1 return)
At the time this transcript was printed, the Committee had not received Mr. Conyer's and Ms. Jackson Lee's letter that they had wished be entered into the record.