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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 

(II)

COMMITTEE ON THE JUDICIARY 

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 

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. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

(III)

C O N T E N T S 

APRIL 6, 2006

OPENING STATEMENT 

Page 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Committee on the Judiciary ..... 1

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 19

WITNESSES 

The Honorable Alberto R. Gonzales, Attorney General, U.S. Department of 

Justice, Washington, DC 

Oral Testimony ..................................................................................................... 2

Prepared Statement ............................................................................................. 6

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Responses to Post-Hearing Questions for the Record posed to Attorney General Gonzales ........................................................................................................ 107

The Washington Post News Article ‘‘Civil Rights Focus Shifts Roils Staff 

at Justice,’’ dated November 13, 2005 ................................................................ 219

Letter from the Honorable John Conyers, Jr., a Representative in Congress 

from the State of Michigan, and Ranking Member, Committee on the Judiciary ....................................................................................................................... 221

(1)

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. 

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. 

2

Mr. Attorney General, the floor is yours. 

TESTIMONY OF THE HONORABLE ALBERTO R. GONZALES, ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

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. 

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. 

3

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. 

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. 

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. 

4

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. 

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. 

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. 

5

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. 

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. 

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:]

6

PREPARED STATEMENT OF THE HONORABLE ALBERTO R. GONZALES


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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 highlevel officials involved in the discussion over the legality of the program who did not agree with its legal basis. 

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——

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-inChief. 

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 adVerDate 0ct 09 2002 12:07 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 G:\WORK\FULL\040606\26915.000 HJUD2 PsN: 26915
19

dress 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. 

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. 

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 fullblown 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. 

20

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. 

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. 

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 

21

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——

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. 

We submit, sir, that the electronic surveillance of the enemy during a time of war is also fundamentally incident to waging war. It 

22

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. 

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. 

23

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. 

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.’’

24

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. 

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. 

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 DepartVerDate 0ct 09 2002 12:07 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6601 G:\WORK\FULL\040606\26915.000 HJUD2 PsN: 26915
25

ment has taken in terms of the information provided to us? But let 

me give a little more content to the specific questions I have. 

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. 

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 

26

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. 

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. 

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 

27

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. 

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. 

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. 

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. 

28

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. 

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. 

Thank you, Mr. Chairman. I yield back. 

29

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. 

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. 

30

I ask you to respond to that, and let me quickly give you some 

other questions. 

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. 

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 assurVerDate 0ct 09 2002 12:07 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6601 G:\WORK\FULL\040606\26915.000 HJUD2 PsN: 26915
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ances 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. 

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. 

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. 

32

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. 

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. 

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? 

33

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. 

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. 

Mr. BERMAN. But the question isn’t whether you’re doing it. The 

question is whether you have the authority to do it. 

34

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. 

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. 

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 

35

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? 

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. 

36

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. 

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. 

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. 

37

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. 

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. 

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 SubVerDate 0ct 09 2002 12:07 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 G:\WORK\FULL\040606\26915.000 HJUD2 PsN: 26915
38

committee 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. 

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. 

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 

39

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. 

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 

40

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.’’

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. 

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-inChief 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 

41

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. 

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. 

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 

42

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.’’ 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. 

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. 

One other area, back beginning last June, when I’d seen some 

newspaper reports that our district attorney in Austin had indicted 

43

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. 

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. 

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? 

44

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. 

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. 

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 

45

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. 

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. 

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.’’

46

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. 

Mr. KING. Is it your position that the word ‘‘wilfully’’ has a practical significance with regard to interpretation of the law? 

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

that. 

Mr. KING. And I hope we can have a conversation on that and 

look forward to that? 

Attorney General GONZALES. I would look forward to that. 

Mr. KING. Okay, and then—let me shift to another subject. 

That’s section 203 of the Voting Rights Act. You have testified on 

that to some degree with Mr. Chabot. And I’m reflecting on your 

statement, if you can’t exercise your right to vote, then you can’t—

if you can’t understand English. Well, unless we have the Voting 

Rights Act, section 203. 

First I’d ask you, with the exception of Puerto Rico, if you could 

point out circumstances by which a person would arrive at voting 

age and be able to—and not have a significant command of the 

English language, at least to the level that they should be able to 

vote on a ballot in a voting booth. And in those circumstances, how 

does that happen in America? 

Attorney General GONZALES. Well, I think you can come of voting 

age and become a citizen with a basic level of understanding of 

English. But as you know, sometimes when you get into the voting 

booth, you can have a long ballot, you can have some very complicated referendums, and some people are simply more comfortable if they can read it in a different language. 

My own personal view, Congressman, is, is that English represents freedom in this country. You need and should be able to 

speak English well and read and write in English well. And so let 

me emphasize that. And when I talk to Hispanic groups about this 

issue, I tell them that’s got to be a focus. If we want our kids to 

progress, that’s important. However, I do worry about people not 

feeling totally comfortable when they go into the voting booth on 

election day. 

Mr. KING. Okay, thank you. 

And then, with regard to surname analysis, requiring that they 

use a surname analysis to determine the concentrations of certain 

ethnicities to direct whether the ballots need to be provided in 

those languages. And I would point out that, especially Hispanic 

surnames, are among the oldest surnames in the United States of 

America. People have been here the longest and may be the most 

proficient, among the most proficient in English. And I would submit that that’s not a legitimate evaluation of the proficiency in lanVerDate 0ct 09 2002 12:07 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 G:\WORK\FULL\040606\26915.000 HJUD2 PsN: 26915
47

guage and that we do have census analysis where people self-identify their language skills. Wouldn’t it be more appropriate to use 

the census analysis for that purpose rather than just a simple analysis of surnames? 

Attorney General GONZALES. It may be, Congressman. We have 

to look at that. 

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

Attorney General GONZALES. Yes, sir. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Maryland, Mr. Van Hollen. 

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

Attorney General. 

Our colleague Mr. Berman in his remarks characterized part of 

the Administration’s legal argument with respect to the wiretapping debate as a ‘‘lack of intellectual honesty,’’ and I got to tell 

you, reading the 43-page report and legal analysis, I think that’s 

an apt characterization. Let me just—— Attorney General GONZALES. Can I interrupt you? 

Mr. VAN HOLLEN. Yes, you may. 

Attorney General GONZALES. Okay. Can I——

Mr. VAN HOLLEN. But, Mr. Chairman, you may—if it comes out 

of my 5 minutes, I really—you can—— Attorney General GONZALES. Well, go ahead. 

Mr. VAN HOLLEN. All right. Because I only get 5 minutes, and 

your response—but let me ask you this. Ms. Wasserman Schultz 

asked you a question regarding this is what you characterized as 

a collective agreement between yourself, the Administration, and 

certain leaders in Congress, that it would be difficult to get this authority, this express authority through Congress. 

Now, let me ask you, you would agree—— Attorney General GONZALES. Without compromising the effectiveness of the program. 

Mr. VAN HOLLEN. You would agree with me that if you don’t 

have that authority, an agreement between yourself and leaders of 

Congress doesn’t make it okay to go ahead, right? 

Attorney General GONZALES. Absolutely. And whether or not 

FISA works or not, it wouldn’t matter. I mean, that’s not the question. The question is: Does the President have the authority? 

Mr. VAN HOLLEN. Let me ask you this: Who—which—if you could 

tell us this collective agreement, what Members of Congress made 

this agreement with you? 

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

Mr. VAN HOLLEN. I don’t think it’s a question of Executive privilege. This is a discussion with Members of Congress. Can you tell 

us which—there is this collective agreement. Who was it? 

Attorney General GONZALES. Certain Members in the House and 

certain Members in the Senate——

Mr. VAN HOLLEN. And you’re not—you’re not willing to tell us 

who made the collective agreement? 

Attorney General GONZALES. I can say that the leadership of the 

Congress and the leadership of the Intel Committees. 

Mr. VAN HOLLEN. Democrat and Republican both? 

Attorney General GONZALES. Both sides of the aisle. 

48

Mr. VAN HOLLEN. All right. Let me ask you—I’m trying to understand the extent to which the authorization to use force in Afghanistan is essential to your argument, so let me give you a hypothetical. If you had an organization out there that was not related 

to al-Qaeda in any way, under your analysis would the President 

still have the legal authority to intercept electronic transmissions 

if they believed they were someone wanting to do harm to the 

United States or involved in some activity or plot to do harm to the 

United States, under your analysis could the President use the 

NSA program to intercept those communications? 

Attorney General GONZALES. Well, I need to go back and look at 

the language, the specific language with respect to Afghanistan. 

You’re talking about the authorization to use force——

Mr. VAN HOLLEN. Yeah. 

Attorney General GONZALES [continuing]. That passed? Okay. 

Okay. And, again, your question, Congressman? I’m sorry. 

Mr. VAN HOLLEN. Well, my question goes to what extent does 

your argument hinge on the authorization to use force. So if you 

had—under the authorization the President has to make a finding 

that the organization is somehow related to al-Qaeda, okay? Let’s 

say you had an organization out there we considered a terrorist organization, but it had no relationship to al-Qaeda. We suspect 

they’re involved in a plot against the United States. Can you use 

the NSA wiretap? 

Attorney General GONZALES. Well, then we’re—look, in evaluating that question, I referred to Justice Jackson in the Youngstown analysis in terms of whether or not—what is the scope of the 

President’s power versus congressional power. And so we believe 

that—it’s a three-part test, as you know, and we believe that with 

the authorization to use force, you are in the first part. Congress—

the President is taking action consistent with the express or implicit approval of Congress. And there his authority is the greatest. 

If you don’t have the authorization to use force, that doesn’t 

mean that the President taking action is unlawful. It simply means 

you move into the third part of the Jackson analysis, where you 

have the President taking action, exercising his constitutional authority, minus whatever constitutional authority Congress might 

have in the area, and so we would have to make that evaluation 

as to whether or not—could Congress constitutionally limit the 

President’s authority under the Constitution as Commander-inChief to engage in electronic surveillance of the enemy. That’s the 

analysis that we——

Mr. VAN HOLLEN. Well, let me just ask you with respect to that 

issue. Do you think FISA—I mean, part of your argument under 

the authorization to use force is——

Attorney General GONZALES. I think it would—it would raise serious constitutional concerns, and, you know, I go back to Judge 

Silberman’s statement in In Re Sealed, the 2002 case of the FISA 

Court of Review, where he looked at the—he canvassed the Court’s 

decisions about the President have authority and said all the courts 

that have looked at this issue have found that the President of the 

United States has the inherent authority under the Constitution to 

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ligence purposes. And assuming that to be true, FISA cannot encroach upon that authority. 

Mr. VAN HOLLEN. Let me ask the last question here, which is 

that what is it under the FISA statute, if anything—what kind of 

standards or criteria in that statute that would make you unable 

to get the authorization from the FISA Court to do the kind of 

intercepts that are being done now? 

Attorney General GONZALES. I’m not suggesting that we wouldn’t 

get the authorization. It’s a—— Mr. VAN HOLLEN. Let me—could I give you a hypothetical? 

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

Mr. VAN HOLLEN. If I—let me just give you a hypothetical. If we 

were to take the FISA justices and put them over at the NSA, in 

your opinion is there any intercept that you’re receiving now that 

they would not authorize under the current FISA statute? 

Attorney General GONZALES. Well, that’s an impossible question 

for me to answer. What I will say is that the question is not whether or not a FISA Court would approve the application. The question 

is the time it would take. We’re not talking—with respect to FISA, 

in a straightforward case you may be able to get approval from the 

Court within a matter of hours or days, or maybe weeks. But under 

FISA it could be days, weeks, months. And so when you’re talking 

about fighting an enemy that we’re fighting today where information is critical, in certain circumstances that’s the problem that we 

have under FISA. 

But let me just emphasize, FISA in my judgment has been a 

wonderful tool. It really has been, and we utilize it all the time. 

What people need to understand, though, is FISA—we use FISA 

not just for foreign—we use FISA for collections here within the 

United States. We use FISA against foreign powers beyond alQaeda. And we use FISA even during peacetime. 

And so because of those circumstances, I think the restrictions 

that we have in FISA probably make sense when you’re talking 

about domestic collection in peacetime. And so when we—when 

people start talking about amending FISA, I think people need to 

understand that FISA covers much more than simply international 

communications involving al-Qaeda. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Forbes. 

Mr. FORBES. Thank you, Mr. Chairman, and thank you, Mr. Attorney General, for being here today. 

When I hear some alarming statements like we’re headed for this 

looming crisis of confidence or this great constitutional crisis or the 

sky is falling, they concern me, or at least they did 35 years ago 

when I first read about them and I heard them being made as a 

political science student in undergraduate school. And then I quickly realized that every time somebody didn’t like the Administration 

or they didn’t like a particular law, they reached up and grabbed 

those off the shelf and used them, instead of sometimes looking at 

the facts. 

Today, I’d like for you to examine some of the facts. In section 

202 of H.R. 4437, that was where we reformed the anti-smuggling 

provisions in the Immigration and Nationality Act, and specifically 

two questions. 

50

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

And, secondly, we’ve heard a lot of critics of the House bill who 

have alleged that these provisions would be used to prosecute 

priests and doctors who provide aid to illegal aliens. How valid are 

those allegations? 

Attorney General GONZALES. Well, I would be worried about it if 

I were a priest or doctor, quite frankly. I know that’s not the intent. As I indicated before in response to an earlier question, the 

U.S. Attorneys on the Southern border are concerned about the 

current language, the current law, and they appreciate a tightening 

up of the language. No one, however, wants to engage—no one 

wants to criminalize Good Samaritan behavior. 

The other thing I worry about is creating whole carve-outs, quite 

frankly, because we then tell alien smugglers what conduct they 

should engage in and they would fall within the safe harbors provided in the statute. 

And so it’s a delicate balance and I understand it, but I think the 

law can be written in a way that we make it easier for prosecutors 

to go after alien smugglers, but we don’t criminalize priests and 

doctors who simply want to help their fellow man. 

Mr. FORBES. It’s been reported that China has over 3,000 front 

companies in the United States that exist mainly to obtain sensitive U.S. technology. In February 2006, a Federal grand jury indicted two men on charges of conspiring to illegally send military 

equipment, including an F-16 jet aircraft engine to China, in violation of the Arms Export Control Act. Where would you rank China 

on the list of the top ten suspicious foreign collection efforts against 

the U.S.? And would you consider China to be one of the top counterintelligence priorities? And how is DOJ responding to this 

threat? 

Attorney General GONZALES. I would consider China to be one of 

the top counterintelligence priorities for the Department. I would 

prefer to defer to perhaps the DNI or the CIA Director in terms of 

where I specifically would rank China. We have a very active—regrettably, we have a very active and robust counterespionage section within the Department because there are a lot of countries, of 

course, that are engaged in espionage against the United States 

from abroad and here within the United States. That counterespionage section is going to, as you know, be merged into the National Security Division. When that is stood up, I think that that 

will make us much more effective. We’re asking for additional 

agents to help us with this effort. But the bottom line for us is it’s 

a serious threat to the national security of this country. 

Mr. FORBES. The last question I have for you is I am deeply concerned about the criminal prosecution of obscenity cases, and we’re 

well aware of the proliferation of trafficking in and display of obscene material, much of which exploits children, women, and other 

innocent victims, and only whets the appetite of pedophiles and 

sexual abusers. 

Can you outline for the Committee what steps the Justice Department has taken and will take to increase the investigation and 

prosecution of these kind of crimes? 

51

Attorney General GONZALES. Well, it is a serious issue. I outlined 

in my opening statement that we’ve created this new initiative, 

Project Safe Childhood, where we want to work with the Internet 

Crimes Against Children Task Forces that currently exist. We 

want to supplement their efforts. U.S. Attorneys now understand 

that this has to be a priority for the Department, and through that 

effort we intend to provide planning in terms of the strategy district by district. We intend to provide training to State and local 

prosecutors. We intend to provide education, which means that we 

need to alert parents how serious this threat is to our children. 

And so it’s something that we are very focused on. We’ve created 

an obscenity prosecution task force within the Criminal Division of 

the Department of Justice, and I believe that there have been 46 

prosecutions over the past few years. Sometimes these can be different cases to make, but we’re focused on it. I think it’s important. 

I’ve had a lot of parents come up to me and say they need help in 

protecting their children, even within their own homes. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The gentlewoman from California, Ms. Sa ́nchez. 

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

As you may know, your Department entered into an agreement 

with California’s Secretary of State to implement HAVA’s voter 

database requirements, and that’s resulting in L.A. County a rejection rate of 43 percent of all new voter registration forms. And the 

registrar recorder of Los Angeles County, the League of Women 

Voters, many others, including myself, are very concerned about 

the potential disenfranchisement of these voters that this could 

cause. 

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

Attorney General GONZALES. I’d be happy to do that. I was in 

Los Angeles just last week. I spent some time with the mayor, and 

he didn’t raise it with me, but if this is—obviously it sounds like 

a serious issue. I’d be happy to look at it. 

Ms. SA ́ NCHEZ. Very serious. Forty-three percent is a pretty high 

rejection rate, and I appreciate your willingness to answer some 

specific questions on that. 

I want to move to some questions regarding immigration. Last 

year, the House passed Chairman Sensenbrenner’s immigration enforcement bill, and one of the most controversial provisions of that 

legislation would make unlawful status a criminal offense. If that 

provision becomes law, there will be an estimated 11 million new 

criminals in the United States. 

I know that the Justice Department has ceded authority over immigration to Homeland Security, but your Department retains the 

jurisdiction over enforcement of our criminal law. 

So my question to you is: Does the Justice Department have the 

resources to arrest and process 11 million potentially new criminals 

in the United States? 

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

52

Ms. SA ́ NCHEZ. Would it require significant plus-up in funding for 

the Department to enforce that? 

Attorney General GONZALES. Well, again, I’m not here to talk 

about or ask for increased funding for the Department, but it would 

present some significant challenges for us. 

Ms. SA ́ NCHEZ. Okay. A 2003 Inspector General’s office report 

found a sharp rise in civil rights and civil liberties complaints filed 

by immigrant detainees immediately the PATRIOT Act became 

law. How many civil rights complaints have immigrant detainees 

filed against the Department of Justice since you were sworn in in 

February? 

Attorney General GONZALES. I do not know, but we obviously 

can——

Ms. SA ́ NCHEZ. Can you provide that information for us? 

Attorney General GONZALES [continuing]. Provide that answer. 

Ms. SA ́ NCHEZ. As well as providing us with the number of complaints that were filed, could you also break out the number of 

those complaints that involve acts of violence? 

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

Ms. SA ́ NCHEZ. Okay, great. As you know, immigration is a pretty 

timely topic, and the Senate is currently involved in the issue of 

how to fix our broken immigration system. And one issue that they 

are trying to address is employer sanctions. In 2005, the Department of Justice only instituted sanctions against three companies 

in the entire country for their use of undocumented labor. 

So my question is: Why aren’t we enforcing the laws against hiring illegal labor by applying employer sanctions on the books 

against those who violate those laws? 

Attorney General GONZALES. I think that’s an excellent question, 

quite frankly. Someone mentioned that to me on my West Coast 

trip, and I found it somewhat—I found it surprising and somewhat 

alarming, quite frankly. And I don’t know whether it’s a situation 

of these kinds of cases being difficult to prosecute. I don’t know the 

circumstances, but I intend to find out. And I agree that we need 

to have comprehensive immigration reform, and part of that has to 

be enforcement of employer sanctions. They have a role to play. I 

think we need to—we need to have a structure in place where it’s 

not so burdensome upon employers to make a determination 

whether someone is in status or out of status. But once we’ve got 

that infrastructure in place, we need to ensure that employers are 

following the law. And I think in order to have an effective immigration policy, that’s got to be an important component of it. 

Ms. SA ́ NCHEZ. So this is just an issue that you’ve recently become 

aware of? 

Attorney General GONZALES. I recently became aware of it last 

week, actually, on my trip to Los Angeles. 

Ms. SA ́ NCHEZ. So it never occurred to you that perhaps the pull 

for many of these immigrants is work opportunities and that one 

way to try to reduce that pull would be to try to enforce laws that 

are on the books right now——

Attorney General GONZALES. Quite the contrary. Quite the contrary. There’s a reason—I know the reason why people come to this 

country. It’s because they want a better life, a better job to provide 

53

for their families. No, I understand why people come into this country. 

Ms. SA ́ NCHEZ. But yet when we talk about enforcement of immigration, it seems like the enforcement aspect of it is simply upon 

the people that are coming and not upon the economic pull that 

brings them here—— Attorney General GONZALES. Well, I agree that we shouldn’t just 

focus on the folks who are coming. We should focus on the people 

that are helping them come, like the alien smugglers, and we ought 

to be focusing on employers who are hiring them when they 

shouldn’t be. I agree with that. 

Ms. SA ́ NCHEZ. So you would use your leadership then to try to 

help enforce the laws that are on the books against those who are 

violating——

Attorney General GONZALES. I think that’s important. 

Chairman SENSENBRENNER. The gentlewoman’s time has expired. 

The gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Attorney General, welcome. We are delighted to have you with 

us today, and we appreciate your being willing to take so many 

questions on such a wide variety of issues. 

I’d like to talk to you about intellectual property, but before I do 

so, I do want to acknowledge the interests of the last Member who 

questioned you about immigration issues and her concern about the 

fact that legislation is now pending which makes people who are 

illegally in the country felons. As she knows, an amendment was 

offered on the floor of the House to revert that back to a misdemeanor status, and she and all but eight other Members on her 

side of the aisle voted against that amendment. So while I appreciate her concern, I’m a little perplexed by the way that she and 

other Members of her party have handled that, because the opportunity existed to eliminate that—— Ms. SA ́ NCHEZ. Would the gentleman yield? 

Mr. GOODLATTE [continuing]. Provision, which I voted for. I’m 

afraid I don’t have enough time because I’ve got to ask some other 

questions, but we’ll talk, I’m sure, later. 

Attorney General Ashcroft in 2004 released a report of the Department’s task force on intellectual property. It was completed 

after a very thorough investigation and analysis and contains a 

number of very thoughtful suggestions, and I’d like to ask you to 

ask the Department to take a look back at that report to see what 

recommendations have been implemented, which have not, and 

whether or not there is anything that we can do to help you follow 

through on some of the recommendations that would help us to 

combat the unauthorized reproduction and distribution of copyrighted materials. This is a very, very serious problem around the 

world, but that includes a serious problem here in the United 

States, and—— Attorney General GONZALES. Congressman, I believe—I will confirm this, but I believe all the recommendations have been implemented or we’re certainly close to it. Shortly after I became Attorney General, I decided to continue the work of the intellectual 

property task force so that we could move forward and make sure 

54

that the recommendations were implemented. I agree this is a serious issue. It is an issue that I can’t deal with solely within our borders, and that’s why when I travel overseas, particularly to China, 

for example, we talk about the importance of the enforcement of intellectual property laws and the protection of intellectual property 

rights. And so I agree with you this is an important issue, and I 

can assure you that we’re focused on it. 

Mr. GOODLATTE. I thank you, and that is encouraging. If you 

would, if you could have somebody respond to the Committee with 

information about how the report is being implemented, that would 

be very helpful for us to conduct our oversight in that area. 

One thing I’m particularly interested in is how many FBI agents 

are dedicated to intellectual property crimes, and I understand the 

competing priorities that face the Justice Department and the FBI, 

but intellectual property is our economic future and it demands a 

lot of attention. 

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

Attorney General GONZALES. Congressman, let me see what we 

are already doing and maybe have a conversation with the Director 

before answering that question. We obviously can give you an answer. 

Mr. GOODLATTE. And, also, if you feel that in your efforts to implement that report and other efforts you think that we should be 

providing you with additional resources, including human resources, to fight piracy, please let us know that as well. 

Attorney General GONZALES. I’d be happy to do that. Of course, 

we have recently suggested some changes in the laws, and so there 

are some additional tools that would be helpful. I’d be happy to 

visit with you about that as well. 

Mr. GOODLATTE. The other area that I’d like to address with you 

is something that—there was a brief discussion regarding child 

predators earlier on, and we certainly appreciate your concern and 

your efforts to deal with that. I wonder if you could explain the extent to which the Department is enforcing our Nation’s obscenity 

laws in general, including any recent prosecutions of online obscenity? 

Attorney General GONZALES. Well, there’s been a lot in the news 

lately about that. I indicated earlier that we have—in 2005, I did 

establish an obscenity prosecution task force within the Criminal 

Division at the Department of Justice. It is led by a career prosecutor. We have five attorneys dedicated to it. We have ten FBI 

agents. We have one agent from the Internal Revenue Service and 

one postal inspector. And so we’ve had something like, I think, 46 

prosecutions in the past few years, and I believe that there are still 

something like 12 persons or entities under indictment. And so 

those represent sort of the scope of our efforts. 

I must tell you, this is an area that I have concerns about. With 

the changing technology, it is so easy to access obscene materials. 

And it’s so easy for our children through their cell phones, through 

the iPods, through computers, and it’s something that I worry 

about, quite frankly, as a parent and as the chief law enforcement 

officer of the country. And I would urge Congress to likewise focus 

on this issue. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

55

We are about ready to have a vote, and let me outline what the 

process will be after the bell rings. 

The next Member who is up for questions is the gentlewoman 

from California, Ms. Waters. There will be one vote only. There is 

no previous question vote or no rolled votes that are scheduled. 

And the vote will take place at 11:30. After whoever is questioning 

the Attorney General at 11:30’s time has expired, the Committee 

will then recess for 45 minutes, and 45 minutes after the recess 

time, we will come back. 

I will call on Members who have not asked questions in the order 

that they have appeared, so those of you who haven’t asked questions have a great incentive to come back, to be here when we start 

up again. And then we’ll go through a second round of questions 

until the time we have the AG for runs out. And that will be in 

the order in which everybody appeared this morning rather than 

when they appeared this afternoon. 

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

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

Mr. Gonzales, you were in my district at Jordan Downs Housing 

Project. You came with some kind of program. I don’t know what 

it is. I’m reading about some of it in the paper. Don’t you think 

that it would make good sense that you would have the—give me 

the common courtesy of indicating that you’re going to come to Jordan Downs Housing Project and you’re going to pay for cameras to 

be installed and you’re going to put together a task force or a team 

working with someone supposedly to deal with gang problems and 

crime. I was just there 2 weeks prior to your coming in, with the 

Black History Month celebration, with the employment project 

where I had UPS and a contractor with Verizon, and others coming 

out to help get people jobs. I have to give some hope. I wasn’t able 

to talk with them about your visit because I didn’t know about it, 

and now some people think that simply I came to pave the way for 

you to come in and bring cameras to place them under surveillance. 

There probably is no good answer—— Attorney General GONZALES. The answer is it would have been 

courteous. 

Ms. WATERS. I beg your pardon? 

Attorney General GONZALES. Yes, it would have been courteous 

to do so. Yes, ma’am. 

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

Attorney General GONZALES. Yes, ma’am, I think that would be 

a good idea. 

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

Secondly, we are in the middle of an immigration reform debate 

in the Congress of the United States. Many of us voted against Mr. 

Sensenbrenner’s bill because it’s too tough, it’s too punitive. It 

makes felons out of folks who, as you said, are coming to work to 

try and have a better life. 

We support a path to legalization, but in the middle of this debate, while we’re fighting for a path to legalization, we find when 

we look down in New Orleans Federal contractors are hiring illegal 

immigrants. You’re doing nothing to enforce the law. You keep 

talking about you enforce the law. An article that appeared in the 

56

Los Angeles Times documents 10,000 to 20,000 immigrants and all 

of the description of how they’re sleeping, basically on the ground, 

eating one meal a day, being exploited by Federal contractors. You 

appear to be just as blind as Brownie, who didn’t see all of the 

folks in New Orleans who were outside the Convention Center. 

Why aren’t you enforcing the law? 

Attorney General GONZALES. Congresswoman, we are enforcing 

the law. I don’t—— Ms. WATERS. You’re not enforcing the law. Why aren’t you enforcing the law in New Orleans? 

Attorney General GONZALES. Well, we are enforcing the law in 

New Orleans, and we do have a good story to tell with respect to, 

say, for example, enforcing fraud through our Hurricane Katrina 

Task Force. 

Ms. WATERS. How many contractors have you cited for breaking 

the law? 

Attorney General GONZALES. I don’t know but we can certainly 

find out. 

Ms. WATERS. No, don’t find out and tell me. Do your job. Get a 

special task force. Go into the golf course. You cite those contractors who are breaking the law and exploiting these workers. You 

are not doing your job, Mr. Attorney General. 

Attorney General GONZALES. Yes, ma’am. 

Ms. WATERS. And we want it done. You add to the fire that’s 

going on here. It’s hard for us to continue to fight for a pathway 

to legalization while people see what is going on and the Attorney 

General is not enforcing the law. We cannot make excuses for you, 

so don’t sit here and try to patronize me and talk about, yes, I understand, and, yes, I will get back to you. Don’t get back to me. You 

just do your job. 

In addition to that, let me talk to you about Georgia. Why did 

you override your team, your staff, Mr. Robert Berman, Amy 

Zebrinski, Heather Moss, and Toby Moore, who were part of a fiveperson task force inside your office that advised you about the ID 

requirements of the legislation that was presented for clearance to 

you from Georgia? You rejected their advice. You literally took a 

State with a history of denying voting rights. You literally took 

that State, who has a requirement to have any changes in the law 

cleared by you, and you overrode your staff, allowing them to require six forms of ID rather than 17 forms of ID, and still with the 

requirement that the ID be purchased. And this business of signing 

some form to say you are too poor to pay for it you seem to think 

is all right, and you were advised that the information was——

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

Attorney General GONZALES. We did our job with respect to looking at what the law requires and preclearing the law in Georgia. 

And the fact that there may be disagreement, not just within the 

Civil Rights Division but within every other component within the 

Department of Justice doesn’t mean the decision was wrong or unlawful. It simply means that there may have been disagreement. 

At the end of the day, the bottom line from my perspective is: 

Have we made the decision that is supported by the law in this 

case? We did. 

57

Chairman SENSENBRENNER. The gentleman from Arizona, Mr. 

Franks——

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

please. 

Chairman SENSENBRENNER. The Chair will object to that because 

the ground rules were established, and we’re 5 minutes away 

from——

Ms. WATERS. Well, I’ll say it anyway. Mr. Gonzales, you ought 

to be ashamed of yourself. 

Chairman SENSENBRENNER. The gentlewoman will comply with 

the rules. 

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

Mr. FRANKS. Thank you, Mr. Chairman, and thank you, Mr. Attorney General. I have to applaud your patience and attitude here 

in the face of some impertinent comments from some of the Committee Members here. I think you’ve done a great job, and just for 

the record, you don’t need my permission to come to my district. 

You’re welcome anytime. And we would be glad to have the Attorney General of the United States promoting justice in Arizona. 

Having said that, I know you’ve faced a lot of questions today related to the terrorist surveillance program by the Administration, 

and I would be numbered among those, sir, that believe that the 

President’s designation as the Commander-in-Chief of the United 

States of America not only empowers him in this particular program, but certainly I think he would have a duty to do some of the 

things that I think the program is doing. I think it’s very important, what you’re doing. 

It occurs to me that if the President has the constitutional power 

and even the authority from this Congress to hunt down terrorists, 

to ferret them out and kill them, that he probably should also—

that should encompass his power to listen to them on the phone before he proceeds. 

And having said that, I know that the questions have been focused on the FISA Court and the FISA issue here. And, incidentally, I think you would have been also derelict to try to bring the 

law—to try to change the law in the FISA Court in the face of some 

of the demagoguery that’s in this body right now. I think you would 

have probably, as you say, worked against the national security in 

bringing that issue before the Congress. 

Having said that, the FISA Court has on two occasions made 

clear indication that the President was—that Presidents were within their constitutional authority to surveil foreign terrorist communications in our country. Do you know of any case where the FISA 

Court has ever ruled to the contrary in any way? 

Attorney General GONZALES. Not only the FISA Court, but I’m 

not aware of any court ever saying that the President does not 

have the inherent authority under the Constitution to engage in 

electronic surveillance for foreign intelligence purposes, and all of 

those cases were in the peacetime context. And so I think it’s even 

more true than in a wartime context. One could make certainly a 

stronger argument that the President has the authority under the 

Constitution. 

Mr. FRANKS. Thank you, Mr. Attorney General. 

58

I am going to have to, in the interest of time here, shift gears 

on you here a little bit, come closer to home, in a situation that’s 

occurred in my district that I’m really not sure how quite to handle. 

With a lot of the discussion of immigration, all of us believe that 

the immigration laws need to be enforced and that there should be 

a fair and balanced approach regardless of where those immigrants 

come from. 

Recently, some of the Serbian immigrants that have come to my 

district, who came here documented and in a legal fashion, I believe were subjected to what amounts to a vendetta on the part of 

a person within the U.S. Attorney’s Office. And just to briefly explain it, this person in the U.S. Attorney’s Office is a former prosecutor from the Hague and called upon some of the Serbian immigrants who were already in this country with good jobs, doing 

things that we would all consider productive to the United States, 

were called upon to testify in what would be a political trial—or 

a trial that—they were called upon to testify, and they felt like 

that this might put them in some sort of danger or otherwise, and 

they were in no way required to testify. But on being told that they 

would not testify, the U.S. Attorney suggested to them that they 

would be hearing from her, and they certainly were. They were arrested and their lives were disrupted in the most profound way, 

and the basis was a retroactive examination of their application for 

citizenship. And some of the reasons given were very arbitrary and 

not applied across the board. 

I’m just wondering who would—we have contracted—we asked 

the U.S. Attorney to meet with us, and they refused to do that. 

Who would in your Department be someone that we could look to 

to take a look at that? Because the situation is pretty blatant. 

Attorney General GONZALES. Well, why don’t you communicate, 

if you don’t mind, Congressman, with Will Moschella, who is our 

legislative person, and we’ll see what’s going on here. 

Mr. FRANKS. We’ll do that. Then in the 30 seconds that I have 

remaining, could you address the guidelines by the military on 

chaplains who are—in some cases the guidelines that say to certain 

chaplains in our military that they cannot pray according to the 

dictates of their own faith in a public situation. It seems to me, you 

know, that one of the cornerstones of all freedom is the freedom of 

religion. If you can tell people what to think or who to worship or 

how to worship, then it seems like you’ve taken every vestige of 

freedom from them. 

Attorney General GONZALES. Congressman, I’d have to defer to 

the Department of Defense. I’m not as familiar as perhaps I should 

be with respect to the DOD guidelines. 

Mr. FRANKS. I’m hoping you’ll take a look at that, Mr. Attorney 

General. Thank you for being here, sir. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

We are about ready to get to a vote, so there is now going to be 

a previous question vote on the rule as well as on the rule itself. 

I think that what we should do then is simply recess for an hour 

and come back at 12:30. And the order of questioning will be 

Weiner, Inglis, Lofgren, Flake, Nadler, Feeney, Wexler, and Issa. 

And then we’ll go to the top of the list. 

59

So those of you who are at the top of the list that I just read off 

have an incentive to be back here at 12:30. 

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

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

AFTERNOON SESSION 

Chairman SENSENBRENNER. The Committee will be in order. A 

quorum for the taking of testimony is present. When the Committee recessed for the lunch break, the Attorney General was responding to questions of Members who are recognized under the 5-

minute rule. We will continue that procedure this afternoon until 

3 o’clock. The next in the order of appearance this morning to be 

recognized is Mr. Weiner of New York. 

The gentleman from New York is recognized for 5 minutes. 

Mr. WEINER. Attorney General, welcome. 

Mr. Attorney General, do you have the highest security clearance 

that is available in the United States Government? 

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

Mr. WEINER. Is it—and this is probably an obvious question, it 

is illegal for you to share information you got that was classified 

with another citizen who doesn’t have that type of clearance. is 

that correct? 

Attorney General GONZALES. Yes. 

Mr. WEINER. Is it also illegal for you to tell someone who works 

for you, say your deputy, to go share information? Is that still a 

crime for you to do, or is it just a crime for that person? 

Attorney General GONZALES. Well, if I don’t have the authority, 

I guess potentially that’s a crime for me. If that’s your question. I 

mean—— Mr. WEINER. It is. So——

Attorney General GONZALES. Would I have the authority to grant 

that clearance? 

Mr. WEINER. No. No, what I’m saying is if this was information 

that was not supposed to be going to Person X, and you told the 

first deputy attorney general give this information to Person X. 

Would both he and you, both your deputy and you, be committing 

a crime under the existing statute? 

Attorney General GONZALES. Possibly, Congressman. I guess I— I’d want to think about that, but I—yes, possibly. 

Mr. WEINER. Can you tell me a situation where it wouldn’t be 

just so I can understand the law? 

Attorney General GONZALES. No. I can’t tell you a situation. But 

again, if in fact this is a line of question that you’re serious about, 

I’m happy to look into it. 

Mr. WEINER. If I gave you any impression that I wasn’t serious 

about my line of question, I apologize for that, because I’m asking 

you a serious question. 

Attorney General GONZALES. Right. 

Mr. WEINER. If the President, hypothetically, were to share classified information with a citizen who were not entitled to that information, not covered by the highest security clearance—this was 

classified information, he shared it with another person—is the 

President covered under the same law that you and I are? 

Attorney General GONZALES. No. He’s not. 

60

Mr. WEINER. He’s not. Tell me a little bit about the differences, 

just in the context of sharing classified information with someone 

who is not entitled to have it. 

Attorney General GONZALES. I think the President has the inherent authority to decide who in fact should have classified information. And if the President decided that a person needed the information, that he could have that information shared. 

Mr. WEINER. Under any circumstances? Just if he wanted to, say, 

give it for a purpose that it would help with the national security, 

he could share that information? 

Attorney General GONZALES. He could decide—I believe the 

President would have the authority to simply say this information 

is no longer classified for purposes of sharing it with this person. 

I think that there’s a national security interest in having this information shared with this individual. 

Mr. WEINER. Gotcha. Now, if—does that authority that the President have extend all the way down the chain? For example, if he 

said to the Vice President, who then said it to the Vice President’s 

chief of staff, who then said it to someone else, how far in your 

scene, does the President’s authority only go for his direct actions 

or anyone working beneath him? 

Attorney General GONZALES. I don’t know, Congressman. That’s 

not a question that I’ve ever—that I’ve thought about, so I don’t 

know the answer to that. 

Mr. WEINER. It’s not a question you’ve—— Attorney General GONZALES. I don’t know the answer to your 

question. 

Mr. WEINER. Gotcha. And in the context of the present news, I’m 

puzzled that you hadn’t thought of it. I mean, frankly, since 

the——

Attorney General GONZALES. Well, Congressman, I’m—— Mr. WEINER [continuing]. Testimony—let me just finish my question. Since there has now been public testimony in front—or testimony that has become public that alleges exactly that thing, that 

the President said to the Vice President you go reveal the—tell 

your deputy or you take whatever means are appropriate or you 

think to do this, to leak classified information, that’s exactly the allegation that is being considered now by prosecutors, is it not? 

Attorney General GONZALES. Well, I don’t know what’s being considered by prosecutors because I’m recused from that case. And 

that’s why I haven’t thought about this issue. And I don’t know exactly the details of what’s been reported. There’s oftentimes information on television that is totally inconsistent with the truth. 

But——

Mr. WEINER. What is the—where were you, what job did you 

have at about July of 2003? 

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

Mr. WEINER. And tell me a little bit, did you—as part of your job 

description, not as part of your specific acts, part of your job description, offer the President advice on compliance with Federal 

law? 

Attorney General GONZALES. Of course. Part of my job was to 

give the President advice regarding authorities, yes, legal authorities. 

61

Mr. WEINER. And you’d never once considered the idea whether 

the President would be acting lawfully if he asked his Vice President or someone working for the Vice President to reveal top secret 

information? That never—that’s not something you even thought 

about? 

Attorney General GONZALES. Congressman, I can’t recall whether 

or not that was something that I ever thought about. And if it was 

something that we ever discussed, it’s not—it would not be something that I would disclose to this Committee. 

Mr. WEINER. Understood. And just so I understand, in conclusion, what is the penalty if you, the Attorney—— Attorney General GONZALES. I don’t know. 

Mr. WEINER. I haven’t finished the question. What is the penalty 

or the range of penalties if you, the Attorney General, or the President of the United States, or a Member of Congress, willingly, 

knowingly—leave out those other words—passed along tip secret 

information to someone who did not have the right to have it, 

didn’t have the clearance? Do you have any idea what the penalties 

are? 

Attorney General GONZALES. I do not know. 

Mr. WEINER. If you could, would you—— Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. WEINER. If you would be so kind before my second round, 

perhaps a member of your staff can get that information? Thank 

you. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Forbes. 

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. Attorney General, once again thank you for being here. I’ve 

got two questions I’d like to ask. First of all, I want to clarify an 

earlier response that you had to a question that I asked you about 

the application of the anti-smuggling provisions in section 202 of 

H.R. 4437. If that provision were passed in the form as passed by 

the House of Representatives, would the Department of Justice 

prosecute priests and doctors who provided humanitarian aid to illegal immigrants? 

Attorney General GONZALES. No, we would not. 

Mr. FORBES. Has the Department of Justice ever prosecuted individuals who have provided purely humanitarian relief to illegal immigrants? 

Attorney General GONZALES. No, I don’t believe so. 

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

correct? 

Attorney General GONZALES. That is correct. 

Mr. FORBES. Okay. And the other question I had was in relationship to your response to Congressman Scott’s question about gangs, 

when he asked it earlier, and the prevention aspects of it. The information that I have here is testimony and information that we 

received when we were doing the gang legislation. All the experts 

that we had testified in law enforcement across the country agreed 

on certain things about gang activity in the United States. One of 

the things that they agreed upon was that if we want to successVerDate 0ct 09 2002 12:07 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6601 G:\WORK\FULL\040606\26915.000 HJUD2 PsN: 26915
62

fully go after the gangs, that we’ve got to do what we did with organized crime, and that is to bring down the gang networks. Would 

you agree with that? 

Attorney General GONZALES. I would. 

Mr. FORBES. The other thing that they seemed to be unanimous 

about is, if you looked at some of the most violent gangs we have 

in the country, particularly MS-13 among others, that anywhere 

between 65 and 75 percent of the members of that gang were here 

illegally. Do you agree with those numbers? 

Attorney General GONZALES. I don’t know with certainty, but 

that wouldn’t surprise me. 

Mr. FORBES. A huge percent, a large percentage. Now, specifically, could you tell us what prevention programs that we could utilize that would help us in going after the networks and bringing 

those down or help reach those individuals who are here illegally 

in those gangs, what would you recommend that we use in prevention programs that would stop those two aspects? 

Attorney General GONZALES. Well, I don’t know that I can identify specific programs that would be effective vis-a-vis the network 

or vis-a-vis certain kinds of gangs or certain kinds of gang members. The truth of the matter is, is that perhaps the only thing we 

can do is enforce the laws and prosecute these folks. 

When I was talking about the importance of education earlier, 

what I meant—what I said, certainly intended to say, was that 

there is certainly a group of—a segment of our community, young 

kids in particular, that there is hope that we can discourage them 

from joining a gang. But I didn’t mean to suggest that prevention 

or education would be effective in all cases. And as I indicated in 

my earlier response, as the chief law enforcement officer of the 

country, I am focused on law enforcement. We have about, for the 

2007 budget, about $400 million that we’re spending on gangs, 

dealing with the gang issue. And a vast majority of that is for law 

enforcement, because that is the primary responsibility of the Department of Justice. 

Mr. FORBES. And the only reason for my question, and to follow 

up, is that all the testimony that we’ve had from families and people across the country is not that prevention programs don’t have 

a place but, as far as our priorities, that the top priority we have 

is to bring down those networks, that we’ve got to go after the networks. 

And the second thing is that many of our prevention programs, 

although they make us feel good and we like to do them because 

they’re the right things to do, that sometimes, if you’re talking 

about people coming here illegally in the first place, they bypass 

those prevention programs, so they’re not going to be valid in pulling down the networks. 

And the third thing is a lot of the kids that we want to reach 

are scared to death to go out in their neighborhoods to get to the 

prevention programs because of these networks. 

And so our focus has been go after the networks, pull them down, 

go after the people here illegally, and then use the prevention programs. Would you agree with that approach? 

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

63

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

Chairman. 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. And I welcome the opportunity, Mr. Attorney General, to ask you several questions 

about the NSA program that has been the subject of our—so much 

of the questioning in the morning session. 

Before I do, I think that it’s important to clarify the concern 

here. I would guess that we would have a unanimous conclusion 

among the Members of this Committee and, I would say, probably 

among the Congress that if someone in the United States is talking 

to an al-Qaeda member, that we want to know about that. That’s 

not the problem. The problem, or the concern, is whether it’s really 

more an article I concern than a fourth amendment concern, and 

whether the rule of law, whether laws duly enacted are going to 

control the Executive branch. This isn’t about President Bush, it’s 

about the Executive branch and about the legislative branch. 

So I’m seeking to understand exactly what the Department—or 

what the Administration has done, why they have done it. And I 

think a good outcome would be to regularize this in a way that preserves the rule of law, frankly. 

You testified in the Senate that the Department of Justice was 

establishing probable cause that a party to the communication is 

a suspected foreign agent. Is there probable cause as to both parties to the communication being suspected foreign agents? And if 

not, is that the primary reason why the FISA warrants would be 

unavailable? 

Attorney General GONZALES. I don’t believe I testified that DOJ 

was determining probable cause in the Senate Judiciary Committee 

meeting—hearing. If I said that, then I misspoke. I hope that what 

I said was that it is career folks at NSA. 

Ms. LOFGREN. All right. If—let me amend the question, then. 

Would that be the primary reason why a FISA warrant would not 

be available? 

Attorney General GONZALES. Well, I—we never suggested that it 

wouldn’t be ultimately available. I’ve never suggested that if an application were completed and submitted to the FISA court that it 

wouldn’t be approved. 

Ms. LOFGREN. So you’re saying, if I can—I don’t want to be rude, 

but we only have 5 minutes. 

Attorney General GONZALES. Yes, ma’am. 

Ms. LOFGREN. You’re saying that you could get them but you’ve 

declined to do so. 

Attorney General GONZALES. Well, I believe—you know, I haven’t 

done an itemized inventory of the actions taken under the program 

and whether or not they would satisfy all the applications under 

FISA. That’s something that is hard to do after the fact. But again, 

the problem is not that we couldn’t get approval under FISA. The 

problem has been is that because of the procedures in place under 

FISA, it takes an extraordinarily long period of time in certain 

cases to get approval under FISA. 

Ms. LOFGREN. So, if I may——

Attorney General GONZALES. Yes, ma’am. 

64

Ms. LOFGREN. If I’m hearing you correctly, the Administration 

has decided not to comply with FISA because there’s—as an alternative to streamlining the FISA processes. 

Attorney General GONZALES. Congressman, I would characterize 

it differently. I would say that the Administration has decided that 

it is going to use all the tools that is lawfully available to it to deal 

with this threat. 

Ms. LOFGREN. Well, we’re—let me just ask, does every individual 

intercepted communication have a suspected foreign terrorist overseas as at least one party to the communication? And if your answer—does your answer apply only to the so-called Terrorist Surveillance Program, or would it apply to all of the Administration’s 

intelligence programs? 

Attorney General GONZALES. Well, if we’re talking about the Terrorist Surveillance Program, there is a determination—and I answered this in response to an earlier question. With respect to the 

Terrorist Surveillance Program, there is a determination by a career official out at NSA that one party to the communication——

Ms. LOFGREN. Is overseas. 

Attorney General GONZALES. That one party is overseas and that 

one party, that there’s reasonable grounds to believe that one party 

is a member or agent of al-Qaeda or an affiliate terrorist organization. 

Ms. LOFGREN. If that is true about the Terrorist Surveillance 

Program, can you make that reassurance to us relative to the other 

programs that are ongoing in the Administration? 

Attorney General GONZALES. No, ma’am, I can’t, because, for example, under FISA we’re allowed to collect certain communications 

that may not be overseas. So long as we meet the requirements of 

FISA, however, you know, we’re obviously committed to do so 

under the FISA Act. 

Ms. LOFGREN. Let me ask, once a non-probable-cause party has 

been identified in a communication with a party who is a suspected 

foreign agent, are the first party’s communications subsequently 

intercepted even where the suspected foreign agent is not a party 

to those communications? 

Attorney General GONZALES. Congressman, you’re asking me 

now to get into details about the operations, how we work—how 

this program operates. And I can’t answer that question. 

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

Chairman SENSENBRENNER. The time of the gentlewoman has expired. 

The gentleman from New York, Mr. Nadler. 

Ms. LOFGREN. Mr. Chairman? Could I just ask that we explore 

a classified briefing for the parts of the answers that the Attorney 

General cannot give us? 

Chairman SENSENBRENNER. We can explore that, but there are 

up sides and down sides to that, and this is not the place to discuss 

them. 

The gentleman from New York, Mr. Nadler. 

Mr. NADLER. Thank you. 

Mr. Attorney General, you said a few minutes ago that the President can declassify anything; that is, if the President, through the 

Vice President, outed Valerie Plame as a CIA agent, that would 

65

have been legal because it’s the President’s decision to declassify 

anything he wants? 

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

Mr. NADLER. No, I’m asking a case. Assuming those were the 

facts, that would have been legal? 

Attorney General GONZALES. I’m not going to answer questions 

related to the investigation. 

Mr. NADLER. Well, but you said that——

Attorney General GONZALES. I’m recused from this case. I’m 

recused from the Plame investigation. 

Mr. NADLER. Forget the Plame investigation. Can the President, 

on his own, declassify anything he wants? 

Attorney General GONZALES. I believe the President would have 

the authority as commander in chief to determine which information——

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

Yes. 

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

Mr. NADLER. You are, because you’re—I only have 5 minutes 

and—The answer’s yes. You didn’t have to say what you said. 

Are there standards? Does the President have to make a finding 

that declassifying something is—does not injure the national security, or can he do it for political reasons? 

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

interest of the country. 

Mr. NADLER. For whatever reason he feels like? 

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

Mr. NADLER. Okay. 

Attorney General GONZALES. My judgment. 

Mr. NADLER. Okay, so he could do it for political reasons and 

that would be—and no one can second-guess that, if he wanted to. 

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

Mr. NADLER. He could do it for political reasons if he wanted to, 

and no one could second-guess that because he’s the commander in 

chief. Right? 

Attorney General GONZALES. The President’s going to make the 

determination as to what is in the best interests of the country. 

Mr. NADLER. Yeah, he might. But he could. I’m asking you a theoretical question about the authority of the President—not necessarily this President. A President could declassify something for 

political reasons and no one has the authority to second-guess him 

because he’s the commander in chief. That’s what you’re saying? 

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

Mr. NADLER. Okay. Thank you. 

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

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

Attorney General GONZALES [continuing]. Of classified——

66

Mr. NADLER. The Bush administration continues to claim that 

Guantanamo is filled with only dangerous terrorists. On March 

8th, the New York Times revealed that a lawsuit by the Associated 

Press has now demonstrated the truth in shameful detail. The suit 

compelled the release of records from hearings for some of the 760 

or so men who have been in prison at Guantanamo Bay. Far too 

many show no signs of being a threat to American national security. Some, it appears, did nothing at all. And they have no way 

to get a fair hearing because Gitmo is created outside the law. 

Close quote. 

The transcripts describe the case, for example, of Abdur Sayed 

Rahman, a poor chicken farmer detained in Guantanamo for almost 5 years because he was mistaken for Abdur Zahid Rahman, 

the former deputy foreign minister of the Taliban, who had a similar name. This is one of many cases of mistaken identity, apparently, turning an innocent person into a prisoner without any judicial review or due process, which President Bush assured us could 

not occur under his vigilant watch and just due process measures. 

Do you think—‘‘I’m only a chicken farmer in Pakistan,’’ this fellow said, when he was finally given the opportunity to appear in 

front of a tribunal, which the Supreme Court forced the Administration to create. Do you think in light of this information that we 

should perhaps give more due process not to terrorists—the Secretary of Defense said that the terrorists have no rights—but to 

people who haven’t been determined to be terrorists? Somebody 

thought they might be, we paid a bounty to some Pakistani warlord 

and they turned over people they said were terrorists, but we don’t 

really know that. We have to determine whether they are. 

Do you at least agree that a new judicial review procedure that 

provides for swift processing and prosecution of detainees in a 

manner that ensures the country’s national security but also ensures a full and fair judicial hearing for the detainee to determine 

whether he is in fact an enemy combatant should be instituted? 

Attorney General GONZALES. No. 

Mr. NADLER. Because? 

Attorney General GONZALES. Because I believe that we have a 

process in place that goes well beyond what even the Geneva Convention requires. There was a determination made when someone 

was captured on the battlefield as to whether or not there were an 

enemy combatant. They were then sent to——

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

Attorney General GONZALES. The battlefield commanders on the 

ground. 

Mr. NADLER. Except that many—except that I gather that most 

of the people at Guantanamo were not captured by American 

troops on the battlefield but were given to us by various Pakistani 

or Afghani warlords who said that they had—who told us that they 

were enemy combatants. 

Attorney General GONZALES. And then when we take custody of 

someone in that circumstance, there is another determination 

made as to whether or not is this person an enemy combatant. 

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

And by whom? 

67

Attorney General GONZALES. Well, looking at the facts, like—the 

same way that it was done during World War II when battlefield 

determinations were made on the ground——

Mr. NADLER. In World War II, people were fighting in uniforms. 

When we captured people, we didn’t take them from someone else. 

Attorney General GONZALES. Sometimes it’s hard to tell who the 

real enemy is, particularly when they’re trained to lie about their 

status and to lie about their conditions. And once they get to Guantanamo, once they get to Guantanamo, we do have a combatant 

status review tribunal process which has been in—which was put 

in place after the Supreme Court decision in Hamdi. There is an 

annual——

Mr. NADLER. I know, but——

Chairman SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from Florida, Mr. Wexler. 

Mr. WEXLER. Thank you, Mr. Chairman. 

Thank you, sir. I was hoping you can clear up some confusion I’m 

having. What I’m trying to do is square what—the descriptions 

both you and the President provide as to the surveillance programs 

and a specific instance that happened in my district in Palm Beach 

County in Florida. 

Putting aside the legalities and the constitutional issues, if I understand your policy position, it’s essentially this: You are the 

country’s leading law enforcement officer. We are at war with a terrorist enemy. It’s your obligation to leave no stone unturned to protect the American people. I agree. I can’t imagine anyone here who 

would disagree. 

You describe those incidents where, regardless of what type of 

communication it is, there is a terrorist connection and therefore 

you need to implement intrusive techniques or whatever techniques 

are available to you to protect the American people. Again, I’m 

with you 110 percent. 

My issue comes up when the other part of the story is not told. 

The other part of the story, as I understand it, is warrantless surveillance programs are being conducted by agencies of the United 

States Government on American citizens who have nothing at all 

whatsoever to do with terror in any respect. 

The Truth Project in Lake Worth, Florida, which has been reported by the New York Times, many papers, TV stations—I think 

the Pentagon itself has a report—essentially is a group of Americans, if I understand the group correctly—grandmothers, some Korean War veterans. They met in a church. As far as I know, church 

meetings are not suspect—yet. And they decided that they may disagree with the policy we have in Iraq, and they also decided that 

they may disagree with the way in which the United States goes 

about recruiting soldiers and the information that our soldiers are 

given. And they engaged in a program to provide different information. 

They then found themselves on a ‘‘credible threat’’ list and found 

themselves subject to warrantless surveillance. Every one of them 

an American. Every one of them, if I understand it, has never had 

any training in Pakistan or Afghanistan. Their alleged violation 

68

was freedom of speech and they may have had a political ideology 

that was different than yours, maybe different than mine. 

Would you acknowledge for us today that agencies of the United 

States Government have conducted warrantless surveillance on 

Americans in respect to communications that have nothing whatsoever to do with terrorists or terrorism? 

Attorney General GONZALES. Not to my knowledge, no. 

Mr. WEXLER. Not to your knowledge. Okay. I would respectfully 

suggest, sir, that you review the Pentagon report and the Pentagon 

documents regarding the Talon Project, in which the Pentagon is 

going around this country identifying people as credible threats, 

and they’re Americans that have nothing to do with terror. This is 

under your watch, sir, with all due respect. Please look into it. 

If I could follow on a totally different issue. Twenty-five thousand 

American women every year are raped in America and then become 

pregnant as a result of the rape. If I understand, the Department 

of Justice national protocol for sexual assault medical forensic examinations rules that have been provided under your watch, sir, 

you do not allow for the provision of emergency contraception information. Emergency contraception that would prevent, after a rape, 

25,000 American women from becoming pregnant. What’s the justification? What’s the justification for putting 25,000 American 

women through a double hell after having been sexually assaulted, 

of then going to an American hospital and knowing that our own 

Department of Justice provides rules that exempts out information 

that might prevent that poor victim of a sexual assault from having 

to go through the double trauma of getting pregnant as a result of 

it? What’s the justification? 

Attorney General GONZALES. I’ll have to get back to you with an 

answer on that, Congressman. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Issa. 

Mr. ISSA. Thank you, Mr. Chairman. 

General Gonzales, I very much appreciate your being here and 

being here particularly for such an extended period of time. I apologize that I wasn’t here for the first round earlier—I’m sorry, for my 

normal place in the first round, Mr. Chairman, you’re right. 

But I have looked over your dialogue with Mr. Keller and I want 

to, first of all, thank you for recognizing the challenges we face in 

the border in San Diego, also your willingness to meet with the 

California delegation, to take this a little further on a personal 

basis. 

I would like to just delve into this just a little bit more in one 

sense. Over a year ago, we got the appropriators to agree to create 

opportunities for earmarking of additional dollars, over a million 

dollars, to allow for coyote, or illegal—people who smuggle illegals, 

but it doesn’t seem to have gone in the right direction. And I know 

that you said full funding would make a difference. Can you quantify for me, when you say ‘‘full funding,’’ now, and if not completely 

now then in writing, what are we talking about to have a zero tolerance for people who traffic in human beings? 

Attorney General GONZALES. I can’t give you specific numbers, 

Congressman, but would be happy to try to get that information for 

you. 

69

Mr. ISSA. Can you give me an idea of—the best way to put this 

is, do you believe that the courts could handle this if—and we’re 

not talking about the illegals, we’re just talking about the people 

who are the smugglers. Do you believe the courts can handle that 

within their capacity, separate from the question of U.S. attorneys? 

Attorney General GONZALES. I would have concerns about it, 

quite frankly. I know a lot of the courts, particularly along the border, are straining with dealing with these kinds of cases. And so 

this would clearly present additional challenges for those courts. 

For that reason, I think one thing to consider is whether or not we 

need additional judges. That would be one thing to consider. 

Mr. ISSA. Well, you know, we added five additional judges in San 

Diego, so that was one of the reasons for my question, is that we 

did reduce the case load down to at or around the national average. 

But I would appreciate it in your response, in addition to the dollars, if you could give us an estimate of the human power that 

would be necessary to be added either in the prosecution or, of 

course, in the Federal courts, because this Committee has jurisdiction over both. 

Lastly I’d like to talk to you about is there a way, in your opinion, if we don’t dramatically reduce the capability, the capacity of 

human smugglers, is there a way to prevent the smuggling of 

Hezbollah or al-Qaeda or other operatives through our southern 

border? 

Attorney General GONZALES. It would be hard. 

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

you, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. Thank you for being here, 

Mr. Attorney General. I apologize for missing my place in the first 

round also. 

I’m interested in all of the issues that have been raised on a 

more global level and terrorism, but the thing that I’d really like 

to focus on in my questioning is what’s going on in our communities. There was an extremely troubling report about Black males 

and their condition and plight, employment, prison, confinement 

being even more dramatically worse than even the official statistics 

would have you believe. And we’ve known that it’s been a really serious issue and problem for a long time. 

In your opening statement, which I was here for because I wanted to hear the general parameters that you were going to cover, 

you mentioned one of your initiatives being preparing prisoners for 

return to society. And that’s an issue that’s disproportionately important to African Americans because African Americans, especially males, are disproportionately in the prison population. And 

what they’re finding is that once they have any kind of prison 

record, there’s really no re-entry programs, there’s not treatment, 

there’s no jobs. They can’t get a job, they can’t vote in a lot of 

States when they come out of prison. So it’s just a vicious cycle. 

They almost don’t have another alternative but to return to the 

same kind of life. 

So I guess my specific question is can you talk to us a little bit 

more about what that prisoner re-entry initiative is that you made 

70

reference to in your opening statement. And on a more general 

level, are there other things that you perceive that your office can 

do in conjunction with Members of Congress, other people who are 

interested in attacking this serious problem that, in our estimation, 

is exacerbated by our drug policy and our sentencing policy. Are 

there things that you can propose that we ought to be working on 

together to try to address this on a very serious level? 

Attorney General GONZALES. Thank you, Congressman. You’re 

right, this is a problem. The President believes that we have an obligation to try to work with those in prison to ensure that when 

they’re done their time, that they can become productive members 

of our society. Now, for that reason, he does support, as do I, programs like Prison Industries, where people in prison can learn job 

skills. We also support programs like Life Connections, which we 

have in five prisons and we hope to expand to eight next year to 

provide basic services to people in prison. 

What I spoke to specifically in my opening was related to part 

of the focus of gangs. We have a new gang initiative and it is focused on three components. One is education, one is enforcement, 

and the other is prisoner re-entry. We have focused—these are 

kind of like pilot projects, but we’re trying to see whether or not 

this kind of approach works in these specific neighborhoods. They 

were based upon the applications submitted by the U.S. attorneys 

in these neighborhoods looking at the specific needs in those districts and submitting an application that we believe would be effective in those areas. 

So it would be a program, with respect to the prisoner re-entry 

part of it would look at whether or not prisoners, did they have— did they need transitional housing when they got out; if so, is that 

something that could be provided. If they had problems with drugs, 

could we provide substance abuse treatment in connection with 

their departure from prison. If there was a question regarding getting them ready for jobs or some kind of job-readiness programs 

that we could put in place. 

And so, again, these are targeted on six projects around the 

country to see whether or not we can focus on the specific needs 

of these particular areas from the education, enforcement, and prisoner re-entry side. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Arizona, Mr. Flake. 

Mr. FLAKE. Thank you, Mr. Chairman. 

Thank you, Mr. Attorney General. I want to follow along with 

the questioning that Adam Schiff started with regard to the 

warrantless wiretaps, the NSA program. 

I just want to understand your answer. I wasn’t here when he 

questioned, but was briefed by him. You mentioned that you would 

not rule out wiretapping solely domestic calls, domestic-to-domestic 

calls, under the inherent authority that the President received 

under the War Resolution that we passed here. Is that correct? 

Attorney General GONZALES. I can’t rule it out, but let’s remember the framework in which I’ve outlined, and that is, is that we 

are at war with al-Qaeda, there is a long history of presidents engaging in electronic surveillance of the enemy during a time of war. 

I don’t think anyone can argue that the electronic surveillance of 

71

the enemy during a time of war is a fundamental incident of waging war, which the Supreme Court says the authorization of the 

use of military force is what Congress provided to the President of 

the United States. 

And so the question is, if you’re talking about domestic surveillance involving al-Qaeda during a time of war, when we’re at war 

with al-Qaeda, it’s not something that I would rule out. 

Mr. FLAKE. But the context for which—— Attorney General GONZALES. But that’s not what the President 

has authorized. I want to emphasize that. 

Mr. FLAKE. Can we be confident that there are no ongoing programs, or no programs that have been started and stopped, that 

have solely domestic-to-domestic, that have conducted surveillance 

on domestic-to-domestic communications? 

Attorney General GONZALES. Congressman, I can’t comment on 

anything beyond what the President has said, although I will say 

that in terms of what the activities of the program have been and 

are, have been briefed to certain Members of Congress. 

Mr. FLAKE. Let me just say that we—all of the discussions we’ve 

had with regard to the PATRIOT Act have been during the time 

at which we are at war. And what I seem to be hearing is that 

these are, you know, maybe interesting or fun, but they’re irrelevant. 

Attorney General GONZALES. Not at all. A lot of the changes in 

the PATRIOT Act, even those changes related to FISA, are changes 

that were necessary, quite frankly, and would have been necessary 

irrespective of our conflict with al-Qaeda. And you have to understand that the tools of the PATRIOT Act go well beyond our conflict with al-Qaeda. They apply in the domestic context, for threats 

to our communities that go beyond al-Qaeda—— Mr. FLAKE. I understand, but—— Attorney General GONZALES [continuing]. And they apply in the 

peacetime context. 

Mr. FLAKE. I understand. But with regard to domestic surveillance of communications solely domestic, domestic-to-domestic, 

you’re saying that you don’t rule out or you see it as still in the 

President’s inherent authority to go ahead and do that without regard to the strictures of either FISA or, in this case, the PATRIOT 

Act. 

Attorney General GONZALES. Well, again, every court that has 

looked at this issue has determined that the President does have 

the inherent authority under the Constitution to engage in electronic surveillance for the purpose of gathering foreign intelligence. 

Mr. FLAKE. Let me shift gears here for a minute. In 1984, Congress enacted the Material Witness Law under which individuals 

can be detained as witnesses in an ongoing investigation. It seems 

that this has been taken beyond its original purpose. We have 

many, many cases now of individuals being detained for months at 

a time as material witnesses when there is no grand jury convened 

or no ongoing investigation with which they are going to be called 

as a witness. 

Do you feel that the Material Witness statute has been used appropriately? Would you entertain or would you suggest that we 

need—do you need additional authorities so that you can actually 

72

hold people who are suspected terrorists, rather than holding them 

under a statute that is ill-suited for that purpose? 

Attorney General GONZALES. Congressman, I would respectfully 

disagree with your characterization. We can only hold people under 

a material witness warrant with the approval of a judge and under 

the supervision of a judge. And even if under those circumstances, 

I mean, the person is entitled to a lawyer, the person can disclose 

the fact that the person’s being held as a material witness under 

a material witness warrant. I think people have—— Mr. FLAKE. Excuse me, I don’t believe that’s accurate that they 

are entitled to lawyer. Some have been held for weeks without access to a lawyer. 

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

Mr. FLAKE. The case of Brandon Mayfield. 

Attorney General GONZALES. I can’t comment on the specifics. 

Well, there the IG did not make a determination and a material 

witness warrant was inappropriate in that case. I think the finding 

there was that certain conditions—certain representations made in 

connection with acquiring the warrant didn’t appear to be accurate. 

And I think that’s what the IG held. 

But in response to your question, I support the use of material 

witness warrants. People have this misperception that we’re using 

these in all kinds of cases. In probably about 96 percent of the 

cases, we’re talking about immigration cases, where we need material witness warrants in order to secure someone who is an undocumented alien and who would otherwise flee. Someone who is an undocumented alien, who has testimony that would help us prosecute 

an alien smuggler. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

We will now being the second round of questioning. According to 

the order that I have announced earlier, the gentleman from Michigan, Mr. Conyers, is recognized. 

Mr. CONYERS. Attorney General Gonzales, could there be a possibility, and would you be willing to initiate the action that would 

compel the State of Louisiana to implement out-of-State satellite 

voting procedures similar to those made available for Iraqi citizens 

in their national elections? 

Attorney General GONZALES. As an initial matter, Congressman, 

I think the procedures decided upon the State elected officials 

should be—I mean, I think they have the primary responsibility to 

decide what those procedures are. Now, having said that, those 

procedures must meet the requirements of the Constitution. This 

is a matter that has been reviewed by the Department of Justice, 

but more importantly has been reviewed in the courts. And while 

we can always argue about whether or not we could do more to ensure that people have the right and the ability to vote, the determination has been made, is that the legal requirements have 

been—— Mr. CONYERS. But would you advocate such a procedure, or 

would you feel compelled to not support such a procedure if it came 

forward? 

Attorney General GONZALES. As a general matter, Congressman, 

I’m always in favor of doing what we can to encourage more people 

to vote. 

73

Mr. CONYERS. It would expedite voting a great deal because, as 

we know, the candidates don’t know where the voters are and the 

voters don’t know who the candidates are. It’s a big dilemma. I just 

wanted to get the maximum amount of support that I could from 

you on this very, very important and timely question. 

Now, let me ask you about the whole area of special counsel. 

We’ve never had—this is the first Department of Justice where 

over 5 years we’ve never had one special counsel appointed pursuant to 28 C.F.R. Part 600. And I was wondering if there is some 

problem about special counsel. We have this epidemic of torture in 

Abu Ghraib, Guantanamo Bay, Iraq. We have problems with military contractors over there. We have the Thomas Noe fund-raising 

scandal in Ohio, the demotion of U.S. Attorney Frederick Black for 

daring to investigate Jack Abramoff. Potentially unconstitutional 

wiretapping. 

I don’t want to make these up or give you a laundry list. The fact 

of the matter is that it seems extraordinary to some of us on the 

Committee on Judiciary that, in all of this time, there’s been no recourse to special counsel. 

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

Mr. CONYERS. No, he—I don’t think he’s a special counsel in the 

terms that I’m using. 

Attorney General GONZALES. Well, are you talking about—are 

you thinking in terms of more like an independent counsel? 

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

through. 

Attorney General GONZALES. Let me just say this. You did indicate certain events or activities that you felt might warrant a special look. In each and every one of these cases there has been an 

examina—for example, what happened at Abu Ghraib. There have 

been multiple hearings. There have been multiple investigations. 

Mr. CONYERS. But in the end, you don’t feel that it’s unusual 

that there have been no special counsels? 

Attorney General GONZALES. Well, we have, obviously, procedures in place. We have career folks that give me advice as to 

when it may or may not be appropriate to appoint a special counsel. And if the circumstances dictate it, that’ll happen. 

Mr. CONYERS. All right, let me raise this with you, finally. Why 

have there been 40 percent decline in the Civil Rights Division 

prosecution of cases for racial discrimination and gender discrimination? Has that been brought to your attention? 

Attorney General GONZALES. Well, I don’t—my understanding is, 

is that overall there’s been an increase in the Civil Rights Division 

with respect to prosecutions. And so I don’t know about that specific, that specific number, but——

Mr. CONYERS. We’re not talking about immigration cases. We’re 

talking about——

Attorney General GONZALES. I understand that. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from California, Mr. Schiff. 

Mr. SCHIFF. Mr. Attorney General, I wanted to follow up a bit 

on our earlier dialogue on the NSA issue. You mentioned both in 

74

reference to my question and Representative Flake’s on the issue 

of whether you have the authority to do purely domestic eavesdropping between two Americans, that where there was an alQaeda link you can’t rule out the inherent authority to do that 

without going to court. 

The question I have is, we’re talking about between two Americans. Now, I realize that it’s certainly possible that one of those 

Americans could be affiliated with al-Qaeda, much as I hate to 

think of the prospect. The question I have, though, is, where you 

have a call between two Americans on American soil, who outside 

the Executive branch would ever oversee the Executive branch’s decision to use its inherent authority to eavesdrop on that call? Who 

would be able to provide any oversight of that? 

Attorney General GONZALES. Well, of course, Congressman, we 

do—we do communicate with certain Members of Congress about 

what we’re doing here. People at the NSA take very seriously their 

obligations and the limitations that have been imposed with respect to the collection of electronic surveillance. 

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

Attorney General GONZALES. Well, of course, even the fourth 

amendment doesn’t expect perfection. So long as a mistake is 

made—— Mr. SCHIFF. No, but it does—but the Fourth—— Attorney General GONZALES [continuing]. That’s reasonable, then 

that’s permissible. 

Mr. SCHIFF. The fourth amendment does expect that there is a 

system of checks and balances, where the courts have a role in 

overseeing the legitimate expectation of privacy of Americans. And 

in a situation where the Executive arrogates to itself the power to 

eavesdrop on a purely domestic call between two Americans without any court review before, without any court review after, or 

can’t rule it out, there is no outside oversight of that. We can’t do 

it. 

You mentioned today the problem with FISA is, and you mentioned some problems with FISA—you said it could take days, it 

could take hours, take weeks or months to get approval. It may be 

the first time anyone has come before our Committee, other than 

minor changes to FISA, and said there was a problem with FISA. 

Indeed, as I mentioned earlier, in the Senate the testimony was 

there isn’t a problem with FISA. 

The question I have, you have to acknowledge that even in the 

best of circumstances, with the best white paper you’ve drafted, the 

legal questions are still very problematic. And if that’s the case, 

why not come to the Congress? Why didn’t the Justice Department 

come to the Congress and ask us to change FISA? If you couldn’t 

do what needed to be done to protect the country, why not come 

to Congress, why not come to this Committee? We can have classified hearings just as the Intel Committee can have. We are no less 

bound by the oath to maintain the confidentiality of classified information than the Intel Committee is. 

But we have a slightly different mission than the Intel Committee in that we have a primary responsibility to make sure that 

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tion. That’s a slightly different focus than the Intel Committee, 

which also has an obligation, but not in the same way we do. 

Why didn’t the Justice Department come to the Congress and 

ask us to amend FISA? 

Attorney General GONZALES. Congressman, I think that I’ve already answered that question. There was some consideration about 

doing that and ultimately there was a collective agreement that 

that would not be possible without compromising the effectiveness 

of the program. 

Now, the circumstances are different now. People now know—— Mr. SCHIFF. Does that mean because you couldn’t trust Committee Members to keep the information classified? I mean, why— al-Qaeda shouldn’t care whether you have to go to court or not. But 

we care whether there’s some oversight. We all agree that the 

eavesdropping should take place if it’s necessary to do so. The only 

question is whether there is some outside review of your decisionmaking to make sure that it’s being done properly. 

I still don’t understand. Yes, you have answered the question, 

but I still don’t really understand the answer. I don’t understand 

why you couldn’t have come to Congress and asked us to change 

the law, as you have—Why didn’t it compromise our national security to ask for the changes you did as for in the PATRIOT bill? 

Attorney General GONZALES. Well, but again, because what we 

asked for in terms of changes for the PATRIOT Act were changes 

that would apply not just to al-Qaeda, not just during a wartime 

situation. This was generally to respond to threats to our communities, to our neighborhoods around the country. And so to come 

into the Congress and say, okay, we need this change in the PATRIOT Act because we’re doing this against an enemy we’re at war 

with, I think it’s a much different story. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

At this point, I’d like to ask unanimous consent that an article 

submitted by Mr. Conyers from the Washington Post of Sunday, 

November 13, 2005, entitled ‘‘Civil Rights Focus Shift Roils Staff 

at Justice,’’ be inserted in the record. And without objection, so ordered. 

[The information referred to follows in the Appendix] 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Lungren. 

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

Mr. Attorney General, in the PATRIOT Act reauthorization that 

we had, there was a section in there dealing with habeas corpus 

reform under which States that qualify under the Powell Committee recommendations would receive what I would refer to as expedited review in Federal courts of their cases. In 1996, when Congress acted, the authority was within the courts, the Federal 

courts, to make that determination as to whether the State qualified under the Powell Commission recommendations. 

In the absence of any Federal court finding any State system as 

consistent with the Powell Commission recommendation, Powell 

Committee recommendations, the change in the PATRIOT Act 

grants that responsibility to you. And my question is—in other 

words, for a State to receive that treatment, they must apply to the 

76

U.S. Justice Department for your determination as to whether they 

can opt in to that program and receive expedited review. Your decision, then, would be subject to an appeal to the appellate court for 

the District of Columbia—or the circuit court. 

Have you made any decisions with respect to the organization 

within your Department as to how that would be handled? 

Attorney General GONZALES. I don’t—I—quite frankly, I don’t 

know, Congressman. But let me try to find out what we’ve done on 

that. 

Mr. LUNGREN. Okay. That’s extremely important, because when 

we drafted this—and I was not here, but my office in California 

helped in the drafting—and the idea was to try and create a balance. That is, we would encourage States to do a far better job of 

having competent counsel at the appellate level, including the habeas level. And in return for them doing that, there would be expedited proceedings. That is, there would be expedited timelines for 

consideration in habeas cases as considered by the Federal court. 

We were doing that because of difficulty we were having with 

Federal courts making decisions within a reasonable time. We 

thought establishing those rules would have the Federal courts actually seriously look at it, but to this date, some decade later, not 

a single State has been able to opt in. And so the idea was to get 

someone who didn’t have a dog in the fight. These are State cases, 

not Federal cases. And so the thought was that your office would 

be able to review those to see if in fact we’d met the standards established by the Congress pursuant to the Powell Committee recommendations. 

And I would just hope that I can get an answer on that so that, 

when my home State does apply, there’s not going to be a delay in 

the Department of Justice in reviewing that because you haven’t 

geared up for that. 

Attorney General GONZALES. Yes, sir. 

Mr. LUNGREN. The second area of inquiry I’d like to pursue is in 

the area of sentencing. With the Supreme Court decisions on sentencing guidelines, we have waited for some period of time to see 

what would occur. And some of the things that we have found are 

truly bothersome. 

We find lower prison sentences for criminals for whom Congress 

had sought higher sentences when it passed the PROTECT Act. 

The rate of imposition of below-range sentences for abusive sexual 

contact cases decreased following the PROTECT Act but increased 

after the Booker decision. And what that means in real terms is 

that the post-Booker defendants accused of abusive sexual contact 

are getting sentences below the recommended guidelines at an increasing rate, negating the very improvements that this Congress 

wished to occur. Although the post-Booker average length of prison 

sentences has increased incrementally from 57 months to 58 

months, the average sentence imposed upon career offenders, that 

is the defendants who have the most serious criminal records, has 

decreased. 

I think we’ve waited patiently to see what the courts would do, 

but these kinds of facts are somewhat concerning. There’s also 

some analysis that we’re having increased sentencing disparities 

based on race and geography. Now, that ought to concern all of us 

77

1 At the time this transcript was printed, the Committee had not received Mr. Conyer’s and 

Ms. Jackson Lee’s letter that they had wished be entered into the record. 

no matter where we stand on the ideological spectrum. What is the 

position of your Department on that, and recommendation, if any, 

as to what we should do following up on those results that we’ve 

seen after substantial period of time? 

Attorney General GONZALES. Thank you, Congressman. I think 

that this is a very good question. I think there are many—first of 

all, let me begin by saying many judges are doing a good job trying 

to stay within the guidelines that once existed. You’re right. We 

have waited for a period of time to see how the judges do. And the 

report from the Sentencing Commission is not very encouraging. 

There are some very troubling trends with respect to certain 

crimes, particularly against children. Also I’m concerned about 

trends that appear to show the disparity based upon race and geography, as you indicated. And we’re seeing disparities within districts and between circuits. And that is very troubling. 

For that reason, we have proposed, at least as a—this is our proposal, is that we look at making the minimum guidelines mandatory, we keep—we have the maximum guidelines, we keep those as 

advisor. We believe that would be consistent with the sixth amendment and the Supreme Court jurisprudence. And we think that 

that would be a way to meet our obligations under the Constitution 

and would result in a sentencing regime that is fair and tough and 

determinate, which is what we were all looking for under the Sentencing Reform Act. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

The gentlewoman from Texas, Ms. Jackson Lee. 

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

I want to thank the Attorney General for the time that you’ve 

shared with us. I think that you can detect from the questioning 

that Members are serious, that this is not a personal affront, if you 

will, but it is our responsibility in oversight. 

Let me again state the fact from your opening statement that 

we’re stewards of American democracy. We will present to you, before you leave, a letter from myself and Mr. Conyers that asks for 

a reconsideration de novo of the pre-clearance of the Katrina voting 

structure that will come about on April 22. And the reason is because your lawyer—and the letter is here—misrepresented the position of the State legislators, the Black State legislators who will 

be in your offices tomorrow to correct the fact that they did not consent or approve to the structure that was proposed by the State of 

Louisiana. And the unfortunate part of this is that the judge, that 

again, denied satellite voting, cited and included as part of his findings, unfortunately, the mischaracterization by the Justice Department of the statement and beliefs of the State Black legislators. So 

I will submit this letter, both to the record as unanimous consent——

Chairman SENSENBRENNER. Without objection. 

[The letter follows:]1

78

Ms. JACKSON LEE. And I will present you with a copy. But let 

me also—and I’m going to just ask a series of questions—so if you 

would respond to that mischaracterization. 

But the other is that Members of Congress also wrote you and 

told you of the abuse that Katrina survivors suffered by local authorities, one, being refused to cross a certain bridge into a certain 

parish. I think the parish is run by Sheriff Lee, who tried to refuse 

marchers on April 1st from going over that same bridge. And I 

would ask again whether there is an investigation of the treatment 

of those survivors trying to evacuate. I never thought that any jurisdiction had the power of keeping evacuees running for their lives 

out of a jurisdiction really on the basis of race. 

Then I want to follow up on the question that we asked, so many 

have asked, about the potential for domestic-domestic surveillance 

under FISA. I know you’ve asked—answered it maybe to the best 

of your knowledge, but the problem is, and the question is this: if 

mistakes have been made, are you prepared to tell us today that 

from this day you will be able to surveil this process—of course, I 

agree that we are not using FISA—and ensure the America people 

that there are no domestic to domestic—I know you mentioned alQaeda—but no domestic to domestic mistakes that could be made 

because we don’t use FISA? And I’d appreciate your answer on 

that. 

Let me finish these other questions. The Chairman led, and I 

joined him, in the passage of the No Fear Act in this Judiciary 

Committee. That is, I consider, the first civil rights act of the 21st 

century. We are hearing horrible stories. That is a bill that would 

prevent—not prevent, but try to stop the tide of discrimination in 

the Federal system. We understand that it has not been prosecuted 

enthusiastically and that many are suffering because the No Fear 

Act has not been properly implemented. I would appreciate any assessment you have on that. 

I refer you to the case regarding the young Justin, who indicated 

in testimony that he gave documentation on 1,500 pornographers 

or child abusers, sex abusers. Unfortunately, one has been arrested, and we can’t for the life of us understand why this horrific 

case has not had more attention and that more prosecutions have 

not been rendered. So, please, tell us what’s happening to your sex 

prosecution area. 

And then I would like to as the question regarding the immigration situation. I think you’re aware of a report that came through 

that suggested that immigration judges are intemperate or even 

abusive. You received these memos from—in memos sent to you 

from immigration judges and the Board of Immigration Appeals. 

You said you were concerned about these reports, and we understand also that many of these judges didn’t even have immigration 

experience. Can you tell us what you have done or what the Justice 

Department is prospectively doing to ensure a better response to 

the dignity of those immigrants who are in those courts seeking to 

do the right thing, and are subjected to inhuman, indecent and inappropriate behavior by judges? 

Attorney General GONZALES. I don’t know whether I got all your 

points, Congresswoman, but let me try to respond to what I have, 

going backwards on immigration judges. 

79

I am aware that there has been criticism and concerns raised by 

Federal judges around the country about the treatment. And for 

that reason I have ordered a Department review. I have ordered 

the Deputy Attorney General and the Associate Attorney General 

to do review about what exactly is going on. Is there inadequate 

training? I mean we need to find out if there’s a problem here, and 

to make recommendations to me about what we can do to address 

this issue. I am hopeful that we are about at the end of that review, and then the recommendations will be made to me as to what 

changes we can make to address that issue. 

With respect to Justin Berry, let me just say this. We are committed to focusing on crimes against children. Mr. Berry is involved 

in a criminal prosecution. It is an ongoing investigation, and for 

that reason I’m not going to get into any more about that situation 

other than to assure you that I understand it’s a serious problem 

for our parents. We need to do more to protect our children, and 

our prosecution rates are up. We do have special task forces looking at this problem, and so I am committing to you that we’re going 

to stay focused on that. 

Domestic to domestic, there is no technology that is perfect. I 

can’t tell you that mistakes will never be made. What I can tell you 

is that we have trained professionals who understand what the 

President has authorized. We have minimization procedures in 

place, much like the minimization procedures that exist with respect to FISA, with respect to collection under Executive Order 

12333, and those procedures are in place to ensure that to the extent that information is collected, it shouldn’t be either collected or 

maintained or disseminated, that it’s done so in a way that we protect the privacy rights of Americans. 

I’ll have to get back to you specifically about this situation involving—I think you said Sheriff Lee. I just don’t have any information. I’ll have to get back to you. 

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

Mr. GOHMERT. Thank you, Mr. Chairman. 

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

But anyway, you know the President, I know the President. We 

know the President’s heart. We know that nobody has done more 

than this President in fighting a war on terror abroad. We know 

it’s hard. We know he wants to protect America. Some of us realize 

that he wasn’t the first one to use this surveillance program, you 

know, nobody’s screaming about Clinton, and nobody’s screaming 

about people of the past. But we know that this President is doing 

enough to fight the war on terror that 30 years from now he’s not 

going to be some embittered President that regrets subconsciously 

all he didn’t do 30 years before, and therefore, feels the need to 

lash out at some nice President 30 years later at somebody’s funeral instead of paying credit to the deceased. We know this President won’t have to do that. He’s got this battle ongoing. 

But I would like to ask a few questions about the program itself, 

as a former judge and chief justice from Texas, and you’ve been 

there, you understand what goes on. I’m curious about the probable 

cause that’s utilized in the surveillance program. Do you use a 

80

probable cause standard in that program in deciding which ones to 

go after? If you could address that, please? 

Attorney General GONZALES. Congressman, it is a probable cause 

standard. We refer to it as reasonable ground to believe. But it is 

the same kind of standard. The difference is there is no—it’s not 

a probable cause to believe that someone is guilty or that someone 

has committed a crime. It is probable cause to believe that a party 

to the communication is a member of al-Qaeda or an agent of alQaeda or of an affiliated terrorist organization. 

We use the words ‘‘reasonable grounds to believe’’ because that 

is a more layman’s like term. Because the decision’s made not by 

lawyer, it is made by career professionals out at NSA in connection 

with a military operation, and that’s what we consider this. This 

is not a criminal law operation. This is a military operation against 

our enemy in a time of war, made by military professionals at NSA 

who experience dealing with al-Qaeda. 

Mr. GOHMERT. Thank you. There appears to be, under the 

1806(j), the FISA Court can have an ex parte process for disallowing the notice. I’m curious how effective that process is, if you 

could comment on that? 

Attorney General GONZALES. I’m afraid I don’t understand the 

question. I’m sorry. 

Mr. GOHMERT. You know, when you’re pursuing records, surveillance, and you’re going before the FISA Court, there is a provision 

that—I mean the process allows you to do it ex parte rather than 

having the other party there. Well, in most of our jurisprudence 

history, you know, it’s an adversary system where both are there. 

In this system you’re going, just one side going there. 

Attorney General GONZALES. The FISA process, that is correct. I 

mean, it is a process where it is the Federal Government that is 

appearing before the FISA Court. And we understand very much 

what our obligations ar under the FISA Act in terms of the standards that have to be met. And we have a good record before the 

Court. The reason that we have a good record before the Court in 

terms of getting our applications approved is not because the Court 

isn’t doing its job, it’s because we looked very carefully at the requirements of the FISA law, and that’s why it takes us a little bit 

longer, quite frankly, in getting these applications ready to go, and 

for me to approve them and submit it to the FISA Court, is because 

we work very hard to know that when we submit that application, 

it is going to be approved. 

There is discussion sometimes with the Court, a judge on the 

Court, about an application, and we can get an idea whether or not 

there may be problems in the application, so there may be modifications in the application, but it is an ongoing process of relationship——

Mr. GOHMERT. And these are district judges that are reviewing; 

is that correct? 

Attorney General GONZALES. These are article III judges that are 

appointed by the Chief Justice of the United States to serve on the 

FISA Court. 

Mr. GOHMERT. I think a lot of people do not understand that, and 

they hear that it’s a one-side process and think, oh, this is wrong 

because it should be adversary, not realizing that whether it’s in 

81

State court, Federal court, FISA court, if you go for a warrant, 

you’re looking for documents, you’re looking for a warrant. It’s always, nearly always an ex parte one-sided proceeding—— Chairman SENSENBRENNER. The—— Mr. GOHMERT [continuing]. As a judge—and I understand my 

time has expired, Mr. Chairman, and I appreciate it. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from California, Mr. Berman. 

Mr. BERMAN. Thank you, Mr. Chairman. 

I’ve had 5 minutes to vent, and now I would like 5 minutes to 

ask you a few questions. There’s a fellow named Marko Boskic, who 

allegedly helped murder—and I don’t expect you to have the answer to this, but I would like you to look into this if you would be 

willing to—who allegedly helped murder thousands of people in 

Bosnia, war crimes and torture in Bosnia. We have a Federal statute which we passed as part of ratifying the Convention Against 

Torture, that says it is—you are criminally liable for coming and 

living in the United States, having committed torture or war 

crimes abroad. 

I am told that the U.S. Attorneys in Boston wanted to charge 

this person under this act, but that somewhere in Washington they 

said no, deport him. Deporting him back to Serbia and expecting 

there to be—I mean in a way it’s the flip side of the charges about 

rendition—going to deport him to a country where he probably will 

not be held responsible for his conduct seems like a poor alternative. One person said it would be like picking up a Salvadorean 

general in Miami, who had committed human rights violations, and 

telling him he has to retire in Costa Rica. It’s not punishment. 

If you could just check out this decision of whether this is really 

the wise and just course, the deportation rather than prosecution. 

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

Mr. BERMAN. That’s right. 

Attorney General GONZALES. I’d be happy to do that. I believe 

that we also, I think, have an office in the Department that focuses 

on this issue, but I’d be happy to look at——

Mr. BERMAN. I don’t mean so much even you personally, but if 

the Justice Department could sort of get back to us about why 

we’re pursuing it that way. 

Now, turning to the most important issue America faces today, 

which is the protection of intellectual property. The October 2004 

report of the Department of Justice’s Task Force on Intellectual 

Property recommended that the FBI increase the number of special 

agents assigned to intellectual property investigations. Have the 

Department of Justice and the FBI implemented this recommendation from 2004? If not, why not? If so, how many special agents are 

now assigned exclusively to intellectual property investigation, and 

where are these special agents deployed? 

Attorney General GONZALES. I believe all the recommendations 

have been adopted. Congressman, I don’t know the specific numbers in terms of the increase in the FBI agents. Let me get that 

information for you. 

Mr. BERMAN. Fine, I would appreciate that. Next in that area, 

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gence of organized crime and intellectual property, especially domestic and overseas hard disc piracy involving counterfeit CDs, 

DVDs, computer software and video games. Does the Department 

have a comprehensive long-term plan for combatting the emergency 

of organized crime and intellectual property theft? 

Attorney General GONZALES. Well, we’re focused on, generally, on 

the issue of enforcement of intellectual property rights, the protection of those rights. And you are correct, there is a concern that 

it is a source of revenue for organized crime, and we have created, 

as you probably know, we have these CHIP units in various U.S. 

Attorney’s Offices around the Country. I can’t remember the exact 

number that we have today, but we are going to expand that number, and these are specially dedicated Assistant U.S. Attorneys focused on prosecution of those engaged in the violation of intellectual property laws. 

We are also, of course, in constant communication with our counterparts overseas. As I indicated in response to an earlier question, 

this is the kind of issue, quite frankly, I cannot be successful dealing with without the assistance of my counterparts overseas, particularly in areas like China, and so we—this is a topic that is always on my agenda when I go overseas, is talking about what 

we’re doing to protect intellectual property rights, asking what 

they’re doing, seeing if there are ways that we can work together 

to deal with this issue. We’ve had success, we’ve had takedowns 

worldwide involving intellectual property theft, and so we’ve made 

progress, but clearly a lot more needs to be done. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. Thank you, Mr. Chairman. 

President Bush instructed you to conduct an investigation into 

the disclosure of classified information that appeared in the New 

York Times story back in December regarding the NSA spy program. Is that accurate? 

Attorney General GONZALES. There is an ongoing investigation. 

Mr. DELAHUNT. How many investigations into the disclosure of 

classified information is the Department of Justice conducting now? 

If you don’t know a specific number, do you have a range? 

Attorney General GONZALES. I don’t know the specific number, 

Congressman, and as you know, as a matter of policy, we normally 

would not confirm the existence of investigations. 

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

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

Mr. DELAHUNT. I’m in the process now of compiling a list of 

media reports that clearly include the disclosure of classified information, and I would like to forward them to you and receive some 

kind of response regarding what Justice is doing, because I don’t 

think we want to leave an impression that the Administration is 

only interested in this specific case because of possible political concerns about embarrassment, if you will. 

Attorney General GONZALES. Let me assure that if we can prosecute leaking classified information, we will do so. Those are typically hard to do, but they’re important. 

83

Mr. DELAHUNT. Great. And you indicated, I understand, earlier, 

to Mr. Weiner, that the President has the authority to disclose inherent in his presidential powers? 

Attorney General GONZALES. That was my statement. 

Mr. DELAHUNT. There’s a story out today—and I’m not going to 

ask you to comment in terms of the specifics, but let me read into 

the record. This is from the New York Sun: ‘‘A former White House 

aide under indictment for obstructing a leak probe, I. Lewis Libby, 

testified to a grand jury that he gave information from a closelyguarded ’National Intelligence Estimate’ on Iraq to a New York 

Times reporter [in 2003] with the specific permission of President 

Bush, according to a new court filing from the special prosecutor 

in the case.’’ ‘‘Mr. Libby is said to have testified that ’at first’ he rebuffed Mr. 

Cheney’s suggestion to release the information.’’ Presumably there 

was a conversation between them. I’m not commenting on the veracity with the reporters. ‘‘Mr. Cheney subsequently said he got 

permission for the release directly from Mr. Bush. Defendant testified that the vice president later advised him that the president 

had authorized defendant to disclose the relevant portions. . .’’ ‘‘Mr. Libby told the grand jury that he also sought the advice of 

the legal counsel to the vice president,’’ Mr. Addington, ‘‘who indicated that Mr. Bush’s permission to disclose the estimate ’’amounted to a declassification of the document,‘‘’’ according to the new 

court filings. 

This is, obviously, a piece of news that I find interesting, to say 

the least. Do you have authority to declassify, you in your role as 

Attorney General? 

Attorney General GONZALES. It would depend on the information 

that we’re talking about. 

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

Attorney General GONZALES. He might have—again, depending 

on the circumstances, yes. 

Mr. DELAHUNT. Is there any mechanism that’s available that 

would inform the American people that classified information has 

been declassified by the President or by the Vice President? 

Attorney General GONZALES. I don’t know that there is or I don’t 

know if there isn’t, Congressman. 

Mr. DELAHUNT. Because I would suggest that the American people ought to be informed that information can be disclosed to the 

media outlets by the President, and it does not violate any laws, 

but it certainly would improve their understanding of the news and 

the information, that if it was attributed to the President. So I 

would ask you to reflect on that, and I’d be interested in a list of 

those cabinet-level officials, who on their own authority, have the 

authority to declassify. I think it’s an area that really needs some 

review. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

The gentlewoman from Florida, Ms. Wasserman Schultz. 

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

Mr. Attorney General, my colleague from Florida, Congressman 

Wexler, engaged you in a line of questioning related to emergency 

84

contraception, and I know you indicated that you didn’t know the 

answer to his question and you’d have to get back to him. Do you 

just not have the information available to you, or do you have absolutely no knowledge of the omission of emergency contraception? 

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

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

Attorney General GONZALES. I do have knowledge, yes. 

Ms. WASSERMAN SCHULTZ. Not knowledge that you can share 

with the Committee here? 

Attorney General GONZALES. Before responding to that question, 

I want to make sure I have the most current and accurate information. I think it’s only fair to the Committee that I provide to you 

the most complete answer that I can. 

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

My question is related to terrorist access to guns. The GAO report entitled Gun Control and Terrorism, FBI could better manager 

firearm-related background checks involving terrorist watch list 

records. That report indicated that a total of 47 firearms were purchased over a 9-month period in 2004 by individuals that were designated as suspected or known terrorists by the Federal Government, and the GAO went on to determine that with regard to such 

purchases, DOJ’s information sharing procedures failed to ‘‘address 

the specific types of information from NICS’s transaction that can 

or should be provided to Federal counterterrorism officials or the 

source from which such information can be obtained.’’ In response 

to the GAO report you announced the formulation of a working 

group which began meeting in March of 2005. 

My questions include: In your personal opinion, should individuals listed on the terrorist watch list be permitted to purchase firearms? And could you give us an update on the number of firearms 

that have been purchased by individuals that are included on the 

terrorist watch list since the conclusion of the GAO report? 

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

last question. With respect to your first question, what I will say 

is I don’t think terrorists should have access to weapons, and I 

think we can all agree on that. 

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

Ms. WASSERMAN SCHULTZ. Well, it appears that you differ with 

the opinion of the other Members of the Committee on the other 

side of the aisle. 

Chairman SENSENBRENNER. The Committee will be in order. 

Mr. LUNGREN. Will the gentlelady yield on that? 

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

Mr. LUNGREN. Well, you ascribe certain things to this side of the 

aisle. It would be nice to——

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

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

Mr. NADLER. Mr. Chairman, could she be credited with the time 

that was just taken from her? 

Chairman SENSENBRENNER. She gets a bonus of 15 seconds. 

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

85

Attorney General GONZALES. The issue, of course, is that Congress decides the disabilities as to what would prevent someone 

from having access to a firearm. We have been working on this 

issue to see what kind of legislation may be appropriate and helpful, and I’m told that that work has not yet been completed, I regret to say. But it’s not yet been completed. In the interim—— Ms. WASSERMAN SCHULTZ. General Gonzales, the working 

group’s been meeting since March 2005. It’s now April 2006. 

Attorney General GONZALES. Believe me, I understand that. I 

can say, however, we do have a procedure in place implemented by 

the Deputy Attorney General, whereby that if in fact there is an 

attempt to purchase a weapon, and someone appears on the violent 

gang or terrorist group list, that there is a slight delay of approval, 

so that gives Federal officials an opportunity to talk with State officials to see whether or not there’s additional information that 

would satisfy one of the disabilities that Congress has placed into 

the law. 

So we’ve tried to establish sort of a stopgap measure, but it’s an 

issue we’re still working on. 

Ms. WASSERMAN SCHULTZ. General Gonzales, since you indicated 

that you don’t think that terrorists or suspected terrorists should 

have access to firearms, would you support legislation that would 

specifically prohibit terrorists or suspected terrorists from having 

access to firearms? Because I know you previously said that you 

needed to get back to my colleague from Maryland on that, and we 

have not heard back from you on that. 

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

me——

Ms. WASSERMAN SCHULTZ. Are you still looking at it, General 

Gonzales, because you’ve already told that several months ago to 

my colleague. 

Attorney General GONZALES. I’m waiting for the work of the 

working group within the Department of Justice. Now let me 

just——

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

Attorney General GONZALES. Let me give you an—I agree, I’m 

frustrated as well. But let me give you an example of why that may 

be problematic. We may have information about someone that we 

honestly believe is a terrorist. We may think that they may be involved in some kind of terrorist plot. As part of that plot, they may 

be wanting to purchase a weapon. We may want them—we may 

have them under complete surveillance, and we may be okay with 

him purchasing that weapon because it may lead us to other—— Ms. WASSERMAN SCHULTZ. General Gonzales, can I just stop you 

for 1 second before you go on? Because under current law we prohibit firearm sales to anyone suffering from a drug addiction. They 

don’t even have to have been convicted of anything, and we prohibit firearm sales to them. Also, limited on mere suspicion, we 

limit an individual’s ability to even get on an airplane if they’re on 

the no-fly list, so why wouldn’t we pass along—why can’t you unequivocally say that you support a law that prohibits suspected terrorists from possessing firearms? That seems like a no-brainer. 

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

86

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

Gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Gonzales, did you not answer the question that you support 

or oppose legislation prohibiting those on the terrorist watch list 

from purchasing firearms? 

Attorney General GONZALES. Again, Congressman, I would focus 

on not people on the list, per se, but terrorists. I mean I think we 

can all agree that if you’re a terrorist, we ought to certainly make 

it as difficult as possible to have weapons. 

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

Attorney General GONZALES. Be happy to consider the legislation. 

Mr. SCOTT. Consider it, okay. Did I understand you to say that 

‘‘reasonable cause to believe’’ and ‘‘probable cause’’ were essentially 

the same thing? 

Attorney General GONZALES. From the way that this program 

has been operated, yes, that it is a probable cause standard that’s 

being applied with respect to the terrorist surveillance program, 

consistent with the jurisprudence relating to probable cause in the 

normal criminal law context. 

Mr. SCOTT. My question was ‘‘reasonable cause to believe’’ and 

‘‘probable cause’’ are essentially the same standard; is that what 

you——

Attorney General GONZALES. Well, what I said was it that standard we use is ‘‘reasonable grounds to believe.’’ That’s the standard 

that is applied by the career professionals. 

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

Attorney General GONZALES. From my perspective, it is the same 

standard. 

Mr. SCOTT. I asked you before, you know, we don’t know what 

this NSA wiretap thing is, so we’re kind of playing 20 questions 

here. We know there are no checks and balances. I asked you if the 

wiretap target was individually considered and individually selected. Would that rule out mass recording of calls where they may 

be law-abiding citizens who are tapped as part of the operation? 

Attorney General GONZALES. Congressman, what I can say is 

there’s a lot of misinformation and disinformation in the media 

about the scope of this program, and I’m only going to comment on 

what the President’s confirmed is what this program includes, and 

I——

Mr. SCOTT. Well, we know it includes some things. We’re trying 

to play 20 questions back and forth to figure out what it also might 

include. My question was, would it rule out mass recording of calls 

where there may be law-abiding citizens who are tapped as far as 

the operation, and you are not denying that that may be part of 

the possibility? 

Attorney General GONZALES. There is not mass—there is not 

mass recording of phone calls. 

87

Mr. SCOTT. Is it possible that whatever you’ve got going, that innocent law-abiding citizens, who if you individually considered the 

situation, you would not tap their phones? 

Attorney General GONZALES. Well, each communication that is 

surveilled is considered on an individual basis, based upon information judged by a career professional out at NSA, that, again, who 

is an expert in al-Qaeda communications, aims and tactics, and believes that someone on this call is a member of an agent of alQaeda or an affiliate terrorist organization. 

Mr. SCOTT. And why couldn’t you get a wiretap warrant? Why 

couldn’t you get a warrant through FISA if that was the situation? 

Attorney General GONZALES. I didn’t indicate that we couldn’t 

get a warrant from FISA. What I indicated was, is that we may 

be interested in the communication that may be about to happen 

in a matter of hours, and it may not be possible, because of the 

strictures of FISA——

Mr. SCOTT. No, we’ve been through that, because you can get an 

after-the-fact warrant. 

Attorney General GONZALES. But that’s not—sir, that is a misconception that people have about FISA and the emergency authorization under FISA. It is true that I can authorize electronic surveillance for a period of 72 hours before we submit an application 

to the FISA Court. But I have to be satisfied, when I give that authorization, that every requirement under FISA is going to be satisfied, and is satisfied at the time I give my oral authorization. 

Mr. SCOTT. Let met ask you another question. I got diverted to 

another Committee, and when I left you had said that in Los Angeles, that programs will be led by the U.S. Attorney, will work with 

each State, loan and community partners to implement all three 

pieces of this comprehensive anti-gang strategy. The first is prevention. Did I understand that you agreed with the statement that you 

should first bring down gang networks, deal with those who are 

here illegally, then implement prevention programs? 

Attorney General GONZALES. No, that’s not what I said. I think 

that’s an important component of dealing with gangs. And it is my 

primary responsibility as the chief law enforcement officer of the 

country to focus on enforcement. I think one of the things——

Mr. SCOTT. I just have a couple of questions. I’m just—— Chairman SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from Maryland, Mr. Van Hollen. 

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

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

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

Mr. SCOTT. I yield back. 

Chairman SENSENBRENNER. Mr. Van Hollen. 

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

Let me just pick up very briefly on where my colleague from 

Florida, Ms. Debbie Wasserman Schultz, left off. We did have you, 

Mr. Attorney General, here I believe last summer, and I asked you 

a question about whether you’d support legislation that would prevent people who were on the watch list, terrorist watch list, from 

88

obtaining a weapon. At that time you said you’d get back to us. I 

think you can understand why people up here get frustrated at 

times——

Attorney General GONZALES. I sure can. 

Mr. VAN HOLLEN [continuing]. With the lack of cooperation with 

the Executive branch to hear that we—no, in this particular instance, in any event, we would welcome a response as soon as possible on that issue. After all, if you’re on the terrorist watch list 

you can’t get on an airplane right now, and it seems to me it 

doesn’t make sense for you to be able to drive to your local gun 

store and buy a couple—a lot of weapons. 

Let me just move on because I want to pursue Mr. Scott’s line 

of questioning and what I asked you a little bit earlier, with respect to the standard that apply under the NSA electronic surveillance and the FISA Court, because as I understand what you’re 

saying, is that the legal standard you apply, in your opinion, is the 

same. 

Attorney General GONZALES. But we have to remember something. This is not probable cause that a crime has been committed 

or probable cause that someone is guilty. And, of course, even 

under FISA, that’s not the standard. I mean the standard in FISA 

is that there’s probable cause that the target is a foreign power or 

an agent of a foreign power, and probable cause to believe that the 

facility which is being used or about to be used, is being used or 

about to be used by a foreign power or an agent of a foreign power. 

Mr. VAN HOLLEN. Right. I understand that. So FISA doesn’t require showing probable cause about a crime to be committed. I understand that. That’s why I’m saying you don’t require that in electronic surveillance. You want to have probable cause or reasonable 

basis to believe that there’s—that one party to the phone conversation is a member of al-Qaeda or affiliated with al-Qaeda, right? 

Attorney General GONZALES. Yes. 

Mr. VAN HOLLEN. And as I understood your statement, you 

know, the court is somewhat time consuming, you got to sign off 

and be 100 percent sure that you meet that standard in advance, 

and sometimes you need rapid response time. And my question is 

this: we know that before 9/11 there were communications between 

al-Qaeda agents here in this country. If the time is the question, 

if the rapid response is the question, then for the security of the 

American people, why wouldn’t we want to capture those conversations? Why when it comes to conversations between two al-Qaeda 

folks in the United States are you willing to take the extra time 

required and the extra risk to the security of the country required, 

going to the court? If it’s just a matter of time, why aren’t you taking this action? 

Attorney General GONZALES. Well, we do use FISA with respect 

to those kind of communications. 

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

Attorney General GONZALES. Yes. 

Mr. VAN HOLLEN. And the added time, as I understand it, the 

reason you’ve got to have this quick turnaround is for security reasons, to be able to act quickly. And so if security is the issue, why, 

89

for God’s sakes, would we want to take greater risks for communications within the United States than outside the United States? 

Attorney General GONZALES. That’s simply the decision that was 

made to limit this program to foreign communications, where we 

believe one party is a member of al-Qaeda, and that we would rely 

upon other authorities like FISA to surveil communications such as 

domestic communications here in the United States. I can’t give 

you a better answer than that, sir. 

Mr. VAN HOLLEN. Well, let me just say, because this gets back 

to the question of whether this program’s been authorized, and I’m 

trying to figure out how, as you said earlier, it was this collective 

decision, how people came to the decision that Congress wouldn’t 

authorize exactly what we’re talking about? I mean what was the 

debate back and forth? I think on a bipartisan basis, you have a 

vote if people had reason to believe, probable cause to believe that 

one party of the phone conversation was al-Qaeda or a member of 

al-Qaeda, that we would allow an expedited process? 

Attorney General GONZALES. What I said was, is that it wouldn’t 

be approved—we wouldn’t be successful in that effort without compromising the effectiveness of the program. The very fact that we’re 

talking about this, and have been talking about this for months, 

the intelligence experts say that al-Qaeda, they can already see the 

way—changes in the way they communicate with each other, because they now know we have this capability. And so we can all 

agree this is a great program and we need to be doing it, but because we’re now talking about it, and because the legislative process is such that people are going to be talking about what the legislation should or should not be, it informs our enemy about the tactics that we use to engage in surveillance. 

Mr. VAN HOLLEN. If I might, Mr. Attorney General, as I understood your testimony here, there’s not additional communications 

that we’re now able to intercept, because that was just a question 

of a timing on the FISA Court. But now, in other words, they’re 

not different in nature, and so it seems to me that anyone operating as an al-Qaeda member had to presume, prior to the disclosure of this information, that their phone conversations were being 

recorded. 

Attorney General GONZALES. You can assume. This is a—— Mr. GOHMERT [Presiding]. The gentleman’s time has expired. You 

can answer the question. 

Attorney General GONZALES. This is a very patient and very 

smart enemy. However, we know that from their conversations that 

they sometimes get lazy and they sometimes get careless. They’re 

less likely to be careless and less likely to be lazy if every day they 

are hammered by the fact in the press that we’re doing this. 

Mr. GOHMERT. The Chair recognizes the gentleman from North 

Carolina, Mr. Coble, for 5 minutes. 

Mr. COBLE. I thank the Chairman. 

Good to see you again, Mr. Attorney General. The gentleman 

from California, I yield to you. 

Mr. LUNGREN. Thank you very much. Just to set the record 

straight, so that people understand what we’re talking about, the 

Attorney General, in response to the question, mentioned that we 

could all agree that terrorists ought not to have weapons, and then 

90

people took a leap of faith to suggest that if you don’t suppoPrt prohibiting that from people who are on the terrorist watch list, you 

therefore are supportive of people who can’t have—people who are 

terrorists having weapons. And the statement was made if you’re 

on the terrorist watch list you can’t get on an airplane. Those are 

factually inaccurate. There is a no-fly list, and there is a terrorist 

watch list. One is much more exclusive than the other. One does 

not allow you to fly. The other one allows for secondary searches 

and also informs people, presumably within the Government, of an 

identification if an individual may be on that list. 

So let’s not play fast and loose——

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

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

Mr. VAN HOLLEN. Well, you’re suggesting—now you’re suggesting 

people are playing fast and loose, but you’re not willing to yield. 

That’s fine. 

Mr. COBLE. I still control the time. 

Mr. LUNGREN. One of the things that really surprises me is the 

lack of comity in this place in the absence of 16 years. If one is 

going to make statements with respect to other Members about 

what they say or how they voted, it ought to be presumed the Committee would allow a person to respond to that. I’m now setting a 

record straight based on what was misstated on the other side 

about positions held here. The fact of the matter is, if you want to 

act in the absence of information or act out of ignorance, you are 

certainly welcome to do that. But to mischaracterize what facts are 

on a record, it seems to me to be inappropriate, and we ought not 

to allow the American people to believe that certain things are 

being done that subject them to more threat from terrorists because of unreasonable positions, when that in fact is not the case. 

So a little attention to detail, and a little attention to the facts, 

presumably might help us to reach on occasion more bipartisan responses to very difficult issues that we’re all, I hope, dedicated to 

dealing with. With that, I yield back to the gentleman from North 

Carolina, and I thank him for the time. 

Mr. COBLE. And I yield back my time. 

Mr. GOHMERT. The gentlewoman from California, Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Thank you. 

Mr. Attorney General, I have a deep concern about several issues 

with the DOJ, but one is regarding a series of articles last fall in 

the Washington Post, detailing the politicization of decisionmaking 

in the Civil Rights Division, in the voting section in particular, and 

this series of articles detailed how the Republican political appointees overruled decisions that were made by career attorneys 

when it came to authorizing the pre-clearance of election procedures, specifically two cases, the voter ID law in Georgia, and the 

redistricting map drawn by Representative Tom DeLay in Texas, 

even though those changes discriminated against minority voters 

in violation of the Voting Rights Act. 

In the Georgia ID case, for example, four of five lawyers and analysts working on that case made a recommendation to deny preclearance of a law, and in the Texas redistricting case, six career 

attorneys, two career analysts, and Joseph Rich, the Voting Section 

91

Chief at the time, made a recommendation to deny pre-clearance 

of the law. 

My question to you is, are there guidelines for making an ultimate decision on a particular case of pre-clearance at the DOJ, because I’d like to know what guidelines exist at the DOJ that would 

allow a political appointee to overrule a unanimous or near-unanimous recommendation made by Civil Rights Division experts in 

those two cases? 

Attorney General GONZALES. Congresswoman, first of all, let me 

respectfully disagree with your characterization that we have authorized conduct that would discriminate against minority voters in 

violation of the law. Quite the contrary, in Texas, this matter has 

been litigated, and certainly, at least to the Circuit Court level——

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

Attorney General GONZALES. But the latest word on this matter 

is, is that the decisions by the Texas officials is in fact lawful, so, 

obviously, the Supreme Court is going to have the final say on that. 

With respect to Georgia, respectfully, the top career person in the 

Civil Rights Division pre-cleared that case. And I visited with Congresswoman Waters about this. There may have been disagreement 

amongst other members of the career staff, but the top career lawyer in the Civil Rights Division pre-cleared that. And at the end 

of day, of course, political appointees are nominated by the President and confirmed by the U.S. Senate to exercise their own independent judgment. 

There have been stories which have troubled me about the 

politicization of the Civil Rights Division. This is something that 

troubles me as a Hispanic in particular. I’ve had numerous conversations with Wan Kim, the Assistant Attorney General for Civil 

Rights. I believe he’s dedicated to ensuring that the guidelines that 

we follow is the law. Those are the guidelines that we follow. 

Ms. SA ́ NCHEZ. I want to take issue with you about one thing. 

Number one, the redistricting case is currently pending decision in 

the Supreme Court. But if I’m not mistaken, the Georgia District 

Court likened the ID case requirement to a poll tax, and if that’s—

a poll tax is not a violation of civil rights, then educate me, because 

I was under the impression that it was. 

Attorney General GONZALES. Well, except what was considered in 

that litigation is different than what we have to consider as a Department in terms of pre-clearance under section 5. So it’s like 

comparing apples and oranges. 

Ms. SA ́ NCHEZ. But your statement was that it wasn’t in violation. 

In terms of pre-clearance—what I’m really trying to get at is what 

are the guidelines? Who makes the ultimate decision? I mean are 

the career attorneys and the analysts with the most number of 

years of experience allowed to make those decisions, or can they be 

overridden by political appointees? 

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

and——

Ms. SA ́ NCHEZ. So you agree with the two decisions in the preclearance. 

92

Attorney General GONZALES. I stand behind the decisions coming 

out of the Civil Rights Division, because I’m the Attorney General 

and I stand behind those decisions. 

Obviously, we take very seriously, and value—we take seriously 

the advice of career officials. We value their input. We value their 

experience and their role in making recommendations, but we are 

charged, we’re the ones, with making the ultimate decision. Now, 

and the fact that there may be disagreement, as I indicated before, 

doesn’t mean that the decision was the wrong decision. Sometimes 

these can be complicated issues. They’re highly politically charged. 

They can be emotional issues. People may disagree as lawyers. 

That’s what lawyers do, as you know, we disagree. But ultimately 

someone has to be responsible for that ultimate decision. 

Ms. SA ́ NCHEZ. And so you’re assuming the responsibility and 

you’re standing by those two decision to go——

Attorney General GONZALES. Stand by those two decisions, yes, 

ma’am. 

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

The gentlewoman from California, Ms. Waters. 

Ms. WATERS. Thank you very much. 

There have been several attempts to talk with you about the 

Civil Rights Division, and I’d like to continue with that, just read 

you something that was prepared for me. 

The past year, 20 percent of the Civil Rights Division’s career 

lawyers have resigned, many in protest over what they allege to be 

the Administration’s neglect of civil and voting rights enforcement. 

Their claims are supported by the Justice Department’s own statistics. In the past 5 years, the Division’s racial and gender discrimination caseload had dropped 40 percent. During that same period 

the Division has filed only 3 cases under section 2 of the Voting 

Rights Act, the provision that prohibits States and municipalities 

from enacting voting practices or procedures that discriminate on 

the basis of race, color or membership in a covered language minority group, all of them in 2005. 

This drop in section 2 enforcement comes at a time when there 

are conservative voter integrity initiatives aimed at purging African Americans from the voter rolls and intimidating Blacks at the 

polls are on the rise. 

I took a look at the three cases that were filed, and found some 

information. The Bush administration has filed only three lawsuits, 

all of them this year, on this section of the Voting Rights Act that 

prohibits discrimination against minority votes, and none of them 

involves discrimination against Blacks. The initial case was the 

Justice Department’s first reverse discrimination lawsuit, accusing 

a majority Black county in Mississippi of discriminating against 

White voters. 

Now, Mr. Attorney General, the stories are rampant about the 

Division that’s going on between the Civil Rights Division and the 

appointees. November 13th, an article in the Washington Post; November 17, December 2nd, and February 2005. It’s something going 

on. What do you have to say for what I just read? 

93

Attorney General GONZALES. I don’t know whether or not all 

these stories were written by the same reporter for the same paper. 

Were they, if I may ask the question? 

Ms. WATERS. I don’t know. 

Attorney General GONZALES. Well, let me give you a few numbers of my own. The Department’s Civil Rights Division prosecuted 

a record number of criminal civil rights cases in the last 2-year period. We have doubled the number of trafficking defendants 

charged, increasing the number of trafficking lawsuits filed by over 

30 percent, and we’ve secured more convictions against human 

trafficking defendants from ’04 to ’05. We’ve created 12,000 new 

housing opportunities for people with disabilities in—— Ms. WATERS. Excuse me. May I interrupt you? Is it true that you 

have filed only three lawsuits, all of them this year, on the section 

of the Voting Rights Act that prohibits discrimination against minority voters, and that none of them were against Blacks, discrimination against Blacks, and did you have one case that was a reverse discrimination case in a Black county against White voters? 

Is that statement true? 

Attorney General GONZALES. I think the last statement is true. 

I don’t know the answer to the first——

Ms. WATERS. You don’t know how many lawsuits you have filed 

under this section of the Voting Rights Act? 

Attorney General GONZALES. No, ma’am, I don’t, but we can certainly—— Ms. WATERS. You have some people here with you. Turn around 

and ask them. 

Attorney General GONZALES. We’ll find out. 

Ms. WATERS. Nobody knows. That’s a lot of personnel years over 

there for none of you to know——

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

Ms. WATERS. Well, you know, that’s why we want you here. I 

mean I don’t want it in secret. I want it in public. You know, I 

want everybody to know that you—— Attorney General GONZALES. Well, can I finish my numbers? 

Ms. WATERS. Yes. 

Attorney General GONZALES. We filed more cases under the minority language provisions of the Voting Rights—— Ms. WATERS. Well, I know you did, but I didn’t ask you about 

that. 

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

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

Attorney General GONZALES. Yes, ma’am. 

Ms. WATERS. All right. So, having asked you that, what about 

these lawyers that have quit in the Civil Rights Division, and some 

of them wanting to go public because they think what you are 

doing is not right? Have you heard about that? 

Attorney General GONZALES. I’m aware of these stories, which I 

think were written by one reporter for one paper. I do know that 

there was a—I was asked a similar question in another hearing, 

whether or not there was a concerted effort within the Department 

to remove people from the Division. And I advised that Member of 

Congress that there was an effort, as a personnel move, to offer 

94

sort of buy-outs for everyone within the Department meeting certain qualifications, certain criteria——

Ms. WATERS. Okay, I got that. Let me tell you what the Post

said. The Post has also reported that conflict between career attorneys and political appointees extend to issues of enforcement. Recent revelations about a series of voting rights cases demonstrate 

that the appointees have redirected VRA enforcement away from 

protecting Black voters and toward advancing the interests of 

White Republicans. 

What do you have to say about that? 

Attorney General GONZALES. Disagree with that. 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. 

The gentleman from New York, Mr. Weiner. 

Mr. WEINER. Thank you. 

Mr. Attorney General, earlier today you said the President has—

and there’s a quote—‘‘inherent authority’’ to decide who in fact 

should have classified information. In your view of the law, does he 

need to go through a declassification procedure or simply giving out 

the information is an act sufficient under his authority? Does he 

have to go through the formal process of a declassification——

Attorney General GONZALES. As a general matter, I think the 

President could decide to declassify information. 

Mr. WEINER. Does he have to go through a process of declassification? He can, by giving it to someone, in your view, de facto, 

declassify it? 

Attorney General GONZALES. I think the President could decide 

what would be the appropriate method of declassifying information. 

Mr. WEINER. Is it your view that, as you describe, the President 

has the inherent authority, does that extend to the Vice President, 

in your view? 

Attorney General GONZALES. I think I was asked that question, 

and I’m not sure, and given my position of recusal in this case, 

which I know these questions are related solely to this matter that 

came out today, I’m not going to answer the question. 

Mr. WEINER. What troubles me though, Mr. Attorney General, is 

this sounds vaguely evocative to someone who said when the President does it, that means it is not illegal. That was President Richard Nixon in explaining his behavior. And his argument was that 

Executive authority essentially said anything the President does de 

facto makes it legal. 

And I’m concerned that by your explanation, the President could 

theoretically see no limits on his ability to declassify a document 

if he saw it was in the national interest. Is that your view, even 

if it was not related to national security, he just thought it would 

be a good thing for people to know? Is it your view that he has the 

authority to take classified information that he has access to, and 

theoretically you have access to—you earlier said you have the 

highest authority, the highest classification—is it your view that he 

has unfettered authority under Executive privilege to release any 

document he sees fit? 

Attorney General GONZALES. Congressman, I’ve already answered that question. I’ve got nothing to add on this. 

95

Mr. WEINER. If you would humor me, I forget the answer to it. 

Is your view that he has the authority to—you said earlier that he 

could do it if he decided there was a national security interest. Is 

that the only circumstance under which he can do it? 

Attorney General GONZALES. I’ve answered this question as far 

as I can go, Congressman. 

Mr. WEINER. Would you try it again for me? Would you humor 

me by repeating the answer? 

Attorney General GONZALES. I’ve answered the question. 

Mr. WEINER. I don’t recall the answer to the question. I’m asking 

you again. Would you be so kind as to repeat your answer? 

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

Mr. WEINER. Mr. Attorney General, I’m asking you a fairly 

straightforward question. If you’ve already answered it, then it’s already on the record. 

Attorney General GONZALES. Congressman, I stand by my earlier 

answer. 

Mr. WEINER. Okay. Your earlier answer seems to be, when the 

President does it, that means it is not illegal. That is exactly what 

President Richard Nixon said. 

Attorney General GONZALES. I stand by my earlier answer. 

Mr. WEINER. You have taken a position that essentially says the 

President has the right to leak information whenever he sees fit. 

He has the right, under your explanation, to give it to the Vice 

President, and to have the Vice President hand it off to his chief 

of staff to then leak it to a newspaper. 

And I would say to you, you know, earlier today you also said, 

in a question that I do have the answer records, is the President 

covered under the same law that you and I are? Attorney General 

Gonzales said, ‘‘No, he’s not.’’ That was from earlier today. That 

was an answer I did take note of. And I think it’s most troubling, 

and I think, frankly, that the crux of the issue about so many of 

the cases that we deal today, is the sense that you, on behalf of 

the Administration, and the Administration itself, has a sense just 

like Richard Nixon did, that if the President does it, it must make 

it legal. You’re not disputing that today. You’ve even gone on to repeat it a couple of times. You said the President has inherent authority to decide who in fact should have classified information. 

You’ve said that he’s not covered under the same law that you and 

I are. 

Indeed, Mr. Attorney General, he is covered under those laws. He 

does not have the right to simply say, ‘‘This is information I think 

should be in the public domain for any reason I see fit.’’

Mr. ISSA. Would the gentleman yield? 

Mr. WEINER. It’s my authority. 

Mr. ISSA. Would the gentleman yield? 

Mr. WEINER. I will yield under only the circumstance that the 

Attorney General repeats his answer to the question that I missed. 

[No response.] 

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

This is the problem with the Administration today. And if you 

think it’s not cause for concern, I would just urge you, Mr. Attorney 

General, to realize that I understand your allegiance to the PresiVerDate 0ct 09 2002 12:07 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00099 Fmt 6633 Sfmt 6601 G:\WORK\FULL\040606\26915.000 HJUD2 PsN: 26915
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dent, understand your allegiance to the Administration, I understand your role here. But there’s a higher question that is at play 

here, and it is whether or not the President is accountable to the 

same laws. The answer to the earlier question, is the President covered under the same law that you and I are, is, ‘‘Yes, Congressman,’’ not ‘‘No.’’ The answer is not the President has inherent authority to leak classified information, it’s ‘‘Of course, he does not.’’

The answer is not, as Richard Nixon said, ‘‘When the President 

does it, that means it is not illegal.’’ That is not correct. That is 

an incorrect view not only of your job, not only of the Constitution, 

but it’s an incorrect understanding of the fundamental 

underpinnings of our Constitution. That is why you’ve heard so 

many concerns here today. 

And, frankly, you know, to say as you have, that is the President 

covered under the same law that you and I are? No, he’s not. The 

President has inherent authority to decide who in fact should have 

classified information. And Richard Nixon, who said, on May 20th 

of 1977, ‘‘When the President does it, that means it is not illegal.’’

Mr. Attorney General, you are incorrect. 

Chairman SENSENBRENNER. Time of the gentleman has expired. 

Mr. Issa would like 5 minutes. 

Mr. ISSA. General Gonzales, I appreciate your staying with us 

throughout the afternoon. I would have answered for the gentleman from New York, the question, happily, except I’m not any 

different than the gentleman from New York. I’m a Member of 

Congress, a separate body, one that makes its rules irregardlessif that’s a word—of what the rules for the judiciary may be, and 

regardless of what the rules for the Executive branch is, and I certainly appreciate your longstanding understanding of the separation of branches and why we can make something classified or declassified, the President can issue Executive Orders and he can 

change Executive Orders, and I appreciate that. 

Would you please enlighten me, since I wasn’t able to hear the 

rest of your statement of prosecutions and how this year has gone 

in the enforcement of civil rights and other matters? 

Attorney General GONZALES. I need to find it. 

Mr. ISSA. While you’re finding that, I’d also like to thank you for 

quickly recusing yourself and taking the lead on making sure that 

there is a fair and impartial answer to the gentleman’s questions, 

because I think that sort of leadership, and quickly, is very nonNixonian. In the Nixon period in which I enjoyed my youth, there 

was just the opposite. There was a statement that nobody would 

answer, and everyone was above the law, and I think this Administration, you in particular, have never implied that in any way, 

shape or form. 

Please continue. 

Attorney General GONZALES. Thank you. Just three final points 

and that is—and I may have made this first one—the Civil Rights 

Division has filed more cases under the minority language provisions of the Voting Rights Act in 2005, than in any previous year. 

We’ve undertaken the most vigorous enforcement of the language 

minority provisions of the Voting Rights Act, its history, and the 

Civil Rights Division has significantly increased the number of 

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criminal lawsuits filed against defendants charged with damage to 

religious property in 2005. 

Thank you. 

Mr. ISSA. I’m not going to ask you to excessively comment on 

this, but I have a copy of a piece from today related to what Mr. 

Weiner was talking about, and I note that it says ‘‘Vice President 

Dick Cheney’s former top aide told prosecutors’’—and there’s no parentheses, no quote—‘‘President Bush authorized the leak of sensitive intelligence information about Iraq.’’

Without accepting those words since they’re not in quotations, 

isn’t it the obligation of the President, as the Chief Executive and 

as the Commander-in-Chief, to make determinations about what 

should or should not be made available in order to create fear by 

our enemies, misinformation, et cetera, and doesn’t the President 

hold the sole responsibility of deciding when to take those risks for 

whatever purpose, and when to, for example, withhold information 

for the same reason, that lives are at stake? Isn’t that inherently 

within the President’s power? 

Attorney General GONZALES. Well, of course, the President 

does—he is the Chief Executive Officer of the United States. He 

does have—he is the Commander-in-Chief. As part of that responsibility also, as the inherent authority, he is the sole organ for the 

United States with respect to foreign relations. There are many responsibilities and obligations that stem from those responsibilities, 

and, obviously, one of those is to protect this country against our 

enemies. 

This Congress, when it passed the authorization to use military 

force, recognized that the President does have the inherent authority under the Constitution—it is in the preamble—and the authorization to use military force. The President does have the authority—let me just quote from it—‘‘The President has the authority 

under the Constitution to take action to deter and prevent acts of 

international terrorism against the United States.’’ Now, those 

words must mean something. 

We take the position that the President does have the inherent 

authority, has been recognized by every court that’s looked at this 

issue to authorize electronic surveillance of the enemy during a 

time of war. 

Mr. ISSA. Thank you. And I notice that my colleague from California, Mrs. Waters, used the term ‘‘reverse discrimination.’’ Isn’t 

it fairer to say that the civil rights statutes don’t recognize reverse 

discrimination, only discrimination regardless of the source? 

Attorney General GONZALES. I would hope that Americans would 

expect the Department of Justice to apply the laws equally. If 

someone is being discriminated on the basis of their color, that we 

should enforce the civil rights laws. 

And let me just make one final point. Talking about the rate of 

attrition, the rate of attorney attrition during this Administration 

is almost identical. Less than 1 percent different than during a 

comparable period of the prior Administration. And so attrition 

does occur. It is part of the normal life of an Administration. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

The gentlewoman from California, Ms. Lofgren. 

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

I’d like to return to the NSA discussion. Well, before I do, let me 

just make an observation, something you said earlier in response 

to a question, that the PATRIOT Act wasn’t just about our fight 

against terrorism and the war, it was even in times not a war. And 

I couldn’t help but remember being in this very room in the days 

after the 9/11 attack, sitting at the table where you’re sitting now, 

with the Viet Dinh, and working through this. And I’ll tell you, everything we were told at that time and everything we’ve been told 

since was that the motivation and the reason for the PATRIOT Act 

was to fight against terrorism, not a general crime statute. So I 

just think that statement struck me as extremely odd. 

But I want to talk also about the rule of construction. We passed 

the authorization for the invasion of Afghanistan. I voted for it. But 

the FISA statute has a specific provision that discusses how to proceed after the Congress has declared war. And it seems to me, as 

an ordinary rule of statutory interpretation, that the specific takes 

precedence over the general. I don’t want to get sidetracked on that 

because I have some specific questions. 

First, under CALEA, communications providers are required to 

provide standard interfaces to law enforcement agencies for wiretapping. Are these the same interfaces NSA is using to conduct 

surveillance under this program? What other interfaces or accesses 

has the NSA been provided by communications providers? Or if 

that is a classified matter, could you just say so and we’ll pursue 

it in proper format. 

Attorney General GONZALES. Respectfully, Congresswoman, that 

is an operational detail that I cannot discuss. 

Ms. LOFGREN. All right. Let me talk about—it’s my understanding, and all the Committee really knows is what we read in 

the newspapers, which I think is actually a pretty sad commentary 

on the lack of the partnership that we should have on this fight, 

the legislative and the Executive branch together on this. But in 

any case, it’s my understanding from press reports that in 2004 the 

FISA Court insisted on a process where information from 

warrantless NSA intercepts would be tagged, so as to not leak into 

the FISA warrant process. The press reports further indicate that 

because of problems with this tagging process, some intelligence, 

nonetheless, did lead through to the FISA Courts warrant process. 

What processes do you have in place to sequester information 

gathered under this program and to keep it from being used to develop warrant requests? 

Attorney General GONZALES. Again, Congresswoman, that is information that I’m not at liberty to discuss, certainly not in this 

setting. But I can say——

Ms. LOFGREN. That strikes me as very odd. 

Attorney General GONZALES. Let me just say this. We have a 

very good relationship with the FISA Court, and it is important for 

us that the FISA Court have confidence in what we’re doing, that 

they have confidence in the applications that we submit, that they 

have confidence in the representations that we make to the Court, 

and so, despite all the revelations that have occurred—and of 

course, now I’m speaking on behalf of the Court and maybe I 

99

shouldn’t be doing that—but to my knowledge, I think the Court 

is comfortable with what the Department is doing. 

Ms. LOFGREN. Well, I don’t know, and apparently we can’t discuss that. But I’d like to know, if you’re able to tell us this, how 

many prosecutions have involved intelligence gathered under this 

program, either directly or indirectly? 

Attorney General GONZALES. I’m sorry. I can’t——

Ms. LOFGREN. You won’t tell us that either? 

Attorney General GONZALES. But let me just—but let say this, 

and I think this is important, and hopefully, it will be helpful to 

you. Let me just quote for you——

Ms. LOFGREN. My time is almost up, so you can give me what 

you would quote, and I promise I’ll read it. I just would like to 

mention that under—you said that whatever is incident to conducting war, the President can do under his war powers authority 

without regard to statutes, is essentially what you’ve said. 

Attorney General GONZALES. That’s what the Supreme Court 

said. 

Ms. LOFGREN. And in your 43. So which of the following things 

would be incident to conducting war? Shooting people, taxing them 

in their homes or on the street, putting them in POW camps; are 

all of those things incident to war? 

Attorney General GONZALES. I think we’d have to look at what 

has occurred in the past in connection with conflicts. Let me just 

says—well——

Ms. LOFGREN. Just a final thing. I do appreciate you being here. 

This is a long day for you as well as for us, but I have a great deal 

of frustration. You have a job to do, but the Congress has a job to 

do, and we have been denied the opportunity to do it, and I thank 

you. 

Chairman SENSENBRENNER. The gentlewoman’s time has expired. The gentleman from Iowa, Mr. King. 

Mr. KING. Thank you, Mr. Chairman. 

And, again, General Gonzales, I thank you for your due diligence 

and patience before this Committee and the time that you’ve committed to this cause that we have. I wonder if we could return for 

a moment to section 203 of the Voting Rights Act, and maybe explore another aspect of the Voting Rights Act that we didn’t get to 

earlier today. And that would be—and I’m speaking off the top of 

my head without notes with regard to the language that’s in 

there—but as I recall, that when a language-deficient population is 

identified within a voting district, and I believe in one of those definitions it’s a universe of 10,000 language deficient—-then that 

would be the trigger that would set up the requirement for bilingual or multilingual ballots——

Attorney General GONZALES. I think it’s 10,000 or 5 percent or 

something like—I too don’t have the exact language in front of me. 

Mr. KING. Conceptually we’re on the same page, I’m confident. So 

I would submit then that if there were 9,999 in that universe, or 

5,000 or 1,000 or 500 or 1, are those people—are they afforded 

equal protection under the law, under the 14th amendment, or how 

do we ever provide for equal protection under the law if we set numerical standards for preferences in that regard? 

100

Attorney General GONZALES. That’s an interesting question, Congressman. It’s not one that I have thought about, and it’s the kind 

of question that before providing you an answer as to whether or 

not we’ve got an equal protection problem on a statute that’s been 

passed by Congress, it would be one that I would like to talk to 

others in the Department about. 

Mr. KING. Well, thank you, and I will submit that question in 

writing. And as I listen to this discussion——

Chairman SENSENBRENNER. Without objection, the question and 

the written response will appear in the record, and all Members 

may, without objection, submit questions of the Attorney General 

for a written response. In order to get this record to the printer, 

I would ask that this all get wrapped up by the 1st of May, however, which means the questions should come within the next 4 or 

5 days. 

Continue. 

Mr. KING. Thank you, Mr. Chairman. 

And as I listened to this discussion here, and particularly the remarks made by the gentlelady from California, Ms. Sa ́nchez—and 

I believe the number that she gave was almost half of the people 

that applied to register to vote were denied, and I believe the number she gave was 43 percent. And as I listen to that, I speculate 

as to what percentage of those people might be illegal that are applying to vote and being denied in that fashion. I won’t ask you to 

speculate on that, but I just, if I could read from the, actually read 

from the 14th amendment. And there is a provision in here that 

we don’t discuss very much in this Congress: Representatives shall 

be apportioned among the several States according to their respective numbers, counting the whole numbers of persons in each 

State. And I’ll paraphrase a little bit. And for the elections—and 

it lists mostly Federal election but also included the State legislature—if that right to vote is denied to any of the male inhabitants 

of such State—and I suspect that has been corrected by a subsequent amendment so that it is male and female, and those of age—

the basis of representation therein shall be reduced in the proportion of which the number of such citizens shall bear to the whole 

number of citizens in the respective district. That’s a paraphrase 

of section 2 of the 14th amendment. 

So I would submit this question. As I look at the polls that come 

back across the 435 congressional districts in America, and I see 

that I need to be able to garner one more than about 240,000 votes 

in order to win an election, there are a couple of seats in California 

that don’t garner perhaps even 25,000 votes in order to win an 

election. I speculate partly on that testimony, or partly on the 

question oft gentlelady from California, that there are quite a lot 

of illegals in those districts. They are counted for redistricting purposes, and the representation of the illegals within those districts 

are voiced here in Congress by people who only need 25,000 votes 

to win a seat. And I’d ask you, is that section 2 of the 14th amendment then, would that apply so we could correct that by an interpretation of the Constitution, or do you believe we need a constitutional amendment to correct that huge inequity that we have? 

101

Attorney General GONZALES. Honestly, Congressman, I don’t 

know. But I mean you’ve raised, obviously, some thoughtful questions, and I’d be happy to look at it and give you my views. 

Mr. KING. Thank you, General Gonzales, and I will reserve the 

balance of my questions and put those in print as well, as directed 

by the Chairman. And I thank you, and I yield back the balance 

of my time. 

Chairman SENSENBRENNER. Gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Thank you. 

Mr. Attorney General, the President has stated repeatedly, and 

you have too, that we are using warrantless wiretaps only to wiretap the conversation where one party is a terrorist or suspected to 

be a terrorist abroad. Given that, can you assure us that no 

warrantless surveillance is being done in cases where if you had all 

the time in the world, you could not get a—in your opinion, you 

could not get a warrant from a FISA Court? 

Attorney General GONZALES. I don’t have that information. 

Mr. NADLER. Thank you. Number 2. Can you assure us that 

there is no warrantless surveillance of calls between two Americans 

within the United States? 

Attorney General GONZALES. That is not what the President has 

authorized. 

Mr. NADLER. Can you assure that it is not being done? 

Attorney General GONZALES. As I indicated in response to an 

earlier question, no technology is perfect. 

Mr. NADLER. Okay. 

Attorney General GONZALES. We do have minimization procedures in place—— Mr. NADLER. But you’re not doing that deliberately. 

Attorney General GONZALES. That is correct. 

Mr. NADLER. Thank you. Now, despite the efforts of many Members of Congress, as you know, there is no public reporting requirement on the number of national security letters issued every year, 

and there has not been a official accounting from your Department 

on their use. In November of last year we learned from the Washington Post, they said that about 30,000 national security letters 

are issued every year. Are they within the ballpark; is this approximately true? 

Attorney General GONZALES. Quite frankly, sir, I don’t know. We 

do send classified reports to Congress regarding our use of——

Mr. NADLER. Can you get back to us in unclassified as to roughly 

how many are issued? 

Attorney General GONZALES. I’d be happy to consider your request, sir. 

Mr. NADLER. Is there any reason why you couldn’t make public 

the number of NSLs that have been issued every year or two? 

Attorney General GONZALES. I can’t think of a reason off the top 

of my head, but, there’s a reason they’re classified and——

Mr. NADLER. Well, if you can’t back to us with those numbers, 

could you get back to us with a reason why you can’t? 

Attorney General GONZALES. That’s fair enough. 

Mr. NADLER. Thank you. Secondly, I have a question about the 

practice of extraordinary rendition, particularly rendition to represVerDate 0ct 09 2002 12:07 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00105 Fmt 6633 Sfmt 6601 G:\WORK\FULL\040606\26915.000 HJUD2 PsN: 26915
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sive countries we know practice torture. There’s one widely publicized case that illustrates the issue. A Canadian citizen, Mr. Arar, 

was detained in 2002 at JFK Airport in New York as a suspected 

terrorist. He was on his way home to Canada, changing planes at 

Kennedy. He was grabbed by CIA agents, I gather, secretly deported to Syria where he endured 10 months of torture in a Syrian 

prison. 

After the Syrians determined that he didn’t know anything about 

terror, they released him. Upon his release, he declared at a news 

conference that he had pleaded with U.S. authorities to let him 

continue on to Canada, where he has lived for over 15 years, and 

his family, but instead, he was flown under U.S. guard to Jordan, 

and handed over to Syria, where he had been born, and where he 

was then tortured. 

Does the United States Government claim the authority to kidnap anybody at a U.S. airport, and without any administrative or 

judicial process of any sort, put that person on a plane to a torturepracticing nation? We do not claim that authority or we do? 

Attorney General GONZALES. We have international agreements, 

which we are a party to, where the United States has agreed, has 

committed, that it will not render someone to another country, 

where we believe it’s more likely than not——

Mr. NADLER. Well, do we claim the authority to render someone 

to another country—let’s assume we believe they’re not going to 

use torture—by what right do we—legal right, do we pick someone 

up at an airport and deny him the right to continue to Canada 

which is where he’s a citizen of, and send them to Syria without 

any kind of administrative or judicial process? 

Attorney General GONZALES. Well, I’m not comment as to what 

actually may have happened or may not have——

Mr. NADLER. Do we claim the right to do that? Whatever happened in that case, is that something we claim the right to do? 

Attorney General GONZALES. I don’t know, but I would be happy 

to get back to you on that. 

Mr. NADLER. You don’t know if we claim the right to do that because the Government defended that in court, your Department defended that in court. 

Attorney General GONZALES. Before I comment any further on 

that, Congressman, I’d like the opportunity to get back to you. 

Mr. NADLER. Okay. And let me further ask, since we have done 

this, and since your Department has defended this in court, specifically in the Eastern District, is this practice limited only to airports, or do we claim the right to take people going about their 

business, walking on the street, grocery shopping, window shopping, at the mall, suddenly and unexpectedly to grab them and to 

deport them to places like Syria without any evidence, without any 

due process? Do we claim that right? And if we don’t claim that 

right, why do we claim it at airports? 

Attorney General GONZALES. Mr. Congressman, I’m not going to 

get into specific, what we do, what we don’t do. What I can say is 

that we understand what our legal obligations are, we follow the 

law. 

Mr. NADLER. Let me ask you the last question then. Can you assure this Committee that the United States Government will not 

103

grab anybody at an airport or anyplace in U.S. territory, and send 

them to another country without some sort of due process? 

Attorney General GONZALES. Well, what I can tell you is that 

we’re going to follow the law in terms of what——

Mr. NADLER. Well, does the law permit us to send someone to another country without any due process, without a hearing before an 

administrative, an immigration judge or somebody? Just grab them 

off the street and put them on a plane, goodbye without—we’ve 

done that. Does the law permit us to do that? Do we claim that 

right? 

Attorney General GONZALES. I’m not going to confirm that we’ve 

done that——

Mr. NADLER. Well, wait a minute. That was confirmed in court. 

There’s no question it was done. 

Chairman SENSENBRENNER. The gentleman’s time——

Mr. NADLER. Do we claim the right to do it? 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. NADLER. Could he answer the question, please? 

Chairman SENSENBRENNER. The gentleman’s time has expired. I 

yield myself the last 5 minutes. 

General Gonzales, I’d like to ask some follow-up questions relative to the timeline on the NSA terrorist surveillance program 

that I talked about at the beginning of the Q&A period when I 

yielded myself some time. The response that you gave to the oversight letter, which I sent, indicated that the program was first authorized and implemented in October of 2001. My recollection indicates to me that the first time that the leadership and the Chair 

and Ranking Members of both Intelligence Committees were 

briefed, was sometime in 2003. And Senator Rockefeller sent a 

handwritten letter expressing his concern to the Vice President. 

Were there briefings before 2003? 

Attorney General GONZALES. I believe—I’m fairly certain, Mr. 

Chairman, that there were briefings that began in early or the 

spring of 2002, but I’m not 100 percent certain, but I’m fairly certain, certainly well before 2003. 

Chairman SENSENBRENNER. Well, you know, according to your 

recollection, the program was authorized and implemented well before the first briefing took place with the leadership and the leadership of the two Intelligence Committees. 

Attorney General GONZALES. I don’t want to quibble with you 

over the word ‘‘well,’’ but certainly the program was initiated before 

there was a briefing with congressional leadership. 

Chairman SENSENBRENNER. The problem is, is that this Committee has been completely in the dark, even though this Committee has got jurisdiction over the FISA law, and maybe the problems that exist today would not have occurred had we been brought 

into the loop, and an amendment to the FISA law would have been 

advisable. 

I would like to ask another question. Also from press reports that 

indicated that somebody from the Administration went to former 

Attorney General Ashcroft while he was in the hospital to obtain 

his sign-off on something, after then-Deputy Attorney General 

James Comey refused to do so. My question is, is this a program 

104

that is significantly different than that which was previously authorized and implemented on October 2001? 

Attorney General GONZALES. That is a difficult question for me 

to answer, Mr. Chairman, and I can’t answer that question. What 

I can say is that the members of the Intell. Committee know the 

answer to that question. 

Chairman SENSENBRENNER. Why was a new sign-off required? 

Attorney General GONZALES. Well, there’s a new sign-off required 

every 45 days or so, Mr. Chairman, because—and the reason for 

that is because we are limited by the fourth amendment, and that 

this search has to be reasonable, which requires an examination of 

the totality of the circumstances, and so within 45 days there is an 

analysis of the intelligence community about the threat to America, 

and so there is a periodic sign-off. 

Chairman SENSENBRENNER. I’m fully aware of the 45-day requirement, and that is a reasonable requirement. But it seems to 

me if the circumstances had not significantly changed, then the position of the Justice Department in the sign-off should not have required someone who had previously signed off to change their 

mind. 

Attorney General GONZALES. Mr. Chairman, what I can say—and 

I’m sure this will not be acceptable, but let me say it anyway—is 

that I have testified before that the disagreement that existed does 

not relate to the program the President confirmed in December to 

the American people. 

Chairman SENSENBRENNER. Unfortunately, General Gonzales, 

I’m afraid that you have caused more questions to be put out for 

debate within the Congress and in the American public as a result 

of your answers that you’ve just given, as well as the answers to 

my questions this morning. 

Now, that concerns me, and I think I can speak in a bipartisan 

manner that we’re your partners in this area. We have not been 

treated as partners for whatever reason. I think that that’s been 

a mistake, and a lot of future problems in this area could be eliminated if you bring us into your trust and confidence. We all strongly support the war against terrorism. It was this Committee that 

worked twice to enact the PATRIOT Act and then to extend the 

PATRIOT Act. Both of those were on a bipartisan vote. 

I am really concerned that the Judiciary Committee has been 

kind of put in the trash heap after we had been able to pass some 

really significant legislation. And if this continues, the debate is 

going to continue on the NSA program. 

You had a chance today to put some of these questions to rest, 

and I am afraid that there are more questions that will be posed 

out there because of the answers that you have not given. 

Having said that, let me thank you for coming——

Ms. JACKSON LEE. Mr. Chairman. Mr. Chairman, could I make 

an inquiry? 

Chairman SENSENBRENNER. No. I would like to close the hearing 

down. 

Having said that, let me thank you for appearing. I have noted 

from my score card here that you answered 48 5-minute questions 

from both sides of the aisle, 28 from the Democratic side and 20 

from the Republican side. You put in an honest day’s work for an 

105

honest day’s pay. We appreciate you coming here. This has been a 

very wide-ranging hearing, and let me say that you’re always welcome to come back. 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition? 

Mr. NADLER. I seek recognition to point out that if a Member of 

the Committee seeks recognition, you can only close the hearing by 

a majority vote; otherwise, she must be recognized. 

Chairman SENSENBRENNER. I was planning on recognizing her. 

Mr. NADLER. Okay. 

Chairman SENSENBRENNER. I haven’t been interrupting people 

except when their time is expired. I would kind of like to have the 

same courtesy. 

For what purpose does the gentlewoman from Texas seek recognition? 

Ms. JACKSON LEE. I thank you, Mr. Chairman. My understanding was that you were closing the hearing and that your 5 

minutes had ended, but I thank you very much. 

I wanted to inquire whether or not——

Chairman SENSENBRENNER. For what purposes does the gentlewoman seek recognition? 

Ms. JACKSON LEE. To make a point of inquiry, Mr. Chairman. 

Chairman SENSENBRENNER. State your point of inquiry. 

Ms. JACKSON LEE. The point of inquiry is, can this Committee go 

into classified—go into a classified session for the Attorney General 

to provide us with the answers to some of the questions that were 

not answered today, prospectively? 

Chairman SENSENBRENNER. The answer to your inquiry is yes, 

but both Mr. Conyers and I have concerns about the effect of doing 

so, and this matter will be discussed with the minority, and a decision will be reached sometime——

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

Chairman SENSENBRENNER. The purpose for which this hearing, 

having been called without objection, the Committee stands adjourned. 

[Whereupon, at 3:03 p.m., the Committee was adjourned.] 

(107)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

RESPONSES TO POST-HEARING QUESTIONS FOR THE RECORD POSED TO ATTORNEY

GENERAL GONZALES


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THE WASHINGTON POST NEWS ARTICLE ‘‘CIVIL RIGHTS FOCUS SHIFTS ROILS STAFF

AT JUSTICE,’’ DATED NOVEMBER 13, 2005

Correction to This Article 

A Nov. 13 article incorrectly said that the Justice Department’s Civil Rights Division filed three friend-of-the-court briefs in fiscal 2005, down from 22 in 1999. The 

division filed 14 such briefs in 2005. The article also said that lawyer Richard 

Ugelow left the division in 2004. He left in 2002. 

CIVIL RIGHTS FOCUS SHIFT ROILS STAFF AT JUSTICE

VETERANS EXIT DIVISION AS TRADITIONAL CASES DECLINE

By Dan Eggen 


AGQFR0113.eps
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Washington Post Staff Writer 

Sunday, November 13, 2005; A01

The Justice Department’s Civil Rights Division, which has enforced the nation’s 

anti-discrimination laws for nearly half a century, is in the midst of an upheaval 

that has driven away dozens of veteran lawyers and has damaged morale for many 

of those who remain, according to former and current career employees. 

Nearly 20 percent of the division’s lawyers left in fiscal 2005, in part because of 

a buyout program that some lawyers believe was aimed at pushing out those who 

did not share the administration’s conservative views on civil rights laws. Longtime 

litigators complain that political appointees have cut them out of hiring and major 

policy decisions, including approvals of controversial GOP redistricting plans in Mississippi and Texas. 

At the same time, prosecutions for the kinds of racial and gender discrimination 

crimes traditionally handled by the division have declined 40 percent over the past 

five years, according to department statistics. Dozens of lawyers find themselves 

handling appeals of deportation orders and other immigration matters instead of 

civil rights cases. 

The division has also come under criticism from the courts and some 

Democratsfor its decision in August to approve a Georgia program requiring voters 

to present government-issued identification cards at the polls. The program was 

halted by an appellate court panel and a district court judge, who likened it to a 

poll tax from the Jim Crow era. 

‘‘Most everyone in the Civil Rights Division realized that with the change of administration, there would be some cutting back of some cases,’’ said Richard Ugelow, 

who left the division in 2004 and now teaches law at American University. ‘‘But I 

don’t think people anticipated that it would go this far, that enforcement would be 

cut back to the point that people felt like they were spinning their wheels.’’

The Justice Department and its supporters strongly dispute the complaints. Justice spokesman Eric Holland noted that the overall attrition rate during the Bush 

administration, about 13 percent, is not significantly higher than the 11 percent average during the last five years under President Bill Clinton. 

Holland also said that the division filed a record number of criminal prosecutions 

in 2004. A quarter of those cases were related tohuman-trafficking crimes, which 

were made easier to prosecute under legislation passed at the end of the Clinton 

administration and which account for a growing proportion of the division’s caseload. 

In addition, Holland defended the department’s decision to approve the Georgia 

voter law, saying that ‘‘career and political attorneys together concluded’’ that the 

measure would have no negative effect on minorities. 

‘‘This administration has continued the robust and vigorous enforcement of civil 

rights laws,’’ Holland wrote in an e-mail statement, adding later: ‘‘These accomplishments could not have been achieved without teamwork between career attorneys 

and political appointees.’’

Attorney General Alberto R. Gonzales, the first Hispanic to hold the job, named 

civil rights enforcement as one of his priorities after taking office earlier this year 

and supports reauthorization of the Voting Rights Act. 

Although relations between the career and political ranks have been strained 

throughout the Justice Department over the past five years, the level of conflict has 

been particularly high in civil rights, according to current and former staffers. The 

debate over civil rights flared in the Senate in recent weeks after the nomination 

of Wan J. Kim, who was confirmed on Nov. 4 as the assistant attorney general for 

the division and is the third person to hold that job during the Bush administration. 

Kim has been the civil rights deputy for the past two years. 

There were no serious objections to Kim’s nomination, but Democrats including 

Sens. Richard J. Durbin (Ill.) and Edward M. Kennedy (Mass.) said they were concerned about serious problems with morale and enforcement within the division. 

‘‘Its enforcement of civil rights over the past five years has been negligent,’’ Kennedy said in a statement. ‘‘Mr. Kim has promised to look closely at these issues and 

to increase the division’s enforcement, and I believed he should be given a chance 

to turn the division around.’’

Critics point to several key statistics in arguing that Gonzales and the previous 

attorney general, John D. Ashcroft, have charted a dramatically different course for 

civil rights enforcement than previous administrations of both parties. 

The Lawyers’ Committee for Civil Rights Under Law, which includes a number 

of former Justice lawyers, noted in a letter to the Senate Judiciary Committee that 

the division has filed only a handful of cases in recent years dealing with employVerDate 0ct 09 2002 12:07 Oct 17, 2006 Jkt 000000 PO 00000 Frm 00224 Fmt 6601 Sfmt 6621 G:\WORK\FULL\040606\26915.000 HJUD2 PsN: 26915
221

ment discrimination or discrimination based on the statistical impact on women or 

minority groups. 

The total number of criminal prosecutions is within the range of the Clinton administration, but a growing percentage of those cases involve prosecuting human 

smugglers, which have become a priority for the division only in recent years. Other 

types of civil rights prosecutions are down, from 83 in fiscal 2001 to 49 in 2005. 

The Bush administration has filed only three lawsuits—all of them this year—

under the section of the Voting Rights Act that prohibits discrimination against minority voters, and none of them involves discrimination against blacks. The initial 

case was the Justice Department’s first reverse-discrimination lawsuit, accusing a 

majority-black county in Mississippi of discriminating against white voters. 

The change in emphasis is perhaps most stark in the division’s appellate section, 

which has historically played a prominent role intervening in key discrimination 

cases. The section filed only three friend-of-the-court briefs last year—compared 

with 22 in 1999—and now spends nearly half its time defendingdeportation orders 

rather than pursuing civil rights litigation. Last year, six of 10 briefs filed by the 

section were related to immigration cases. 

William R. Yeomans, a 24-year division veteran who took a buyout offer earlier 

this year, wrote in an essay in Legal Affairs magazine that ‘‘morale among career 

attorneys has plummeted, the division’s productivity has suffered and the pace of 

civil rights enforcement has slowed.’’

In an interview, Yeomans said some of the problems stem from the way the ‘‘front 

office’’ at Justice has treated career employees, many of whom have been forced to 

move to other divisions or to handle cases unconnected to civil rights. As an example 

of the strained relations, Yeomans points to the recent retirement party held for a 

widely admired 37-year veteran: Not one political appointee showed up. 

At the same time, Ashcroft implemented procedures throughout Justice that limited the input of career lawyers in employment decisions, resulting in the hiring of 

many young conservatives in civil rights and elsewhere in the department, former 

and current lawyers have said. 

‘‘The more slots you open, the more you can populate them with people you like,’’

said Stephen B. Pershing, who left the division in May and is now senior counsel 

at the Center for Constitutional Litigation, a Washington law firm that handles civil 

rights cases. ‘‘It’s pretty simple really.’’

To Roger Clegg, the situation is also perfectly understandable. A former civil 

rights deputy in the Reagan administration who is now general counsel at the Center for Equal Opportunity, Clegg said the civil rights area tends to attract activist 

liberal lawyers who are philosophically opposed to a more conservative approach. 

‘‘If the career people are not reflecting the policy priorities of the political appointees, then there’s a problem,’’ Clegg said. ‘‘Elections have consequences in a democracy.’’

Holland, the Justice spokesman, said critics are selectively citing statistics. For 

example, he said, the department is on the winning side of court rulings 90 percent 

of the time compared with 60 percent during the Clinton years. Federal courts are 

‘‘less likely to reject our legal arguments than the ones filed in the previous administration,’’ he said. 

Ralph F. Boyd Jr., the civil rights chief from 2001 to 2003, agreed: ‘‘It’s not a prosecutor’s job to bring lots of cases; it’s a prosecutor’s job to bring the right cases. If 

it means fewer cases overall, then that’s what you do.’’

LETTER FROM THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDI- CIARY

See footnote on Page 77

Æ