SPEAKERS CONTENTS INSERTS
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26–915 PDF
2006
UNITED STATES DEPARTMENT OF JUSTICE
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
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
COMMITTEE ON THE JUDICIARY
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F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
C O N T E N T S
APRIL 6, 2006
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OPENING STATEMENT
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
WITNESSES
The Honorable Alberto R. Gonzales, Attorney General, U.S. Department of Justice, Washington, DC
Oral Testimony
Prepared Statement
APPENDIX
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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UNITED STATES DEPARTMENT OF JUSTICE
THURSDAY, APRIL 6, 2006
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.
TESTIMONY OF THE HONORABLE ALBERTO R. GONZALES, ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
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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:]
PREPARED STATEMENT OF THE HONORABLE ALBERTO R. GONZALES
[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.