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27–443 PDF 2006

S. HRG. 109–500

WARTIME EXECUTIVE POWER AND THE NATIONAL

SECURITY AGENCY’S SURVEILLANCE AUTHORITY

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

FEBRUARY 6, FEBRUARY 28, AND MARCH 28, 2006

Serial No. J–109–59

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

FEBRUARY 6, 2006

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 233

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 7

prepared statement .......................................................................................... 338

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESS 

Gonzales, Alberto R., Attorney General of the United States, Department 

of Justice, Washington, D.C. ............................................................................... 10

QUESTIONS AND ANSWERS 

Responses of Alberto R. Gonzales to questions submitted by Senator Specter .. 130

Responses of Alberto R. Gonzales to additional information requested by 

Senators (February 28, 2006) .............................................................................. 141

Responses of Alberto R. Gonzales to questions from all Democratic Senators 

(March 24, 2006) .................................................................................................. 147

Responses of Alberto R. Gonzales to questions submitted by Senators Feingold, Schumer, Biden, Feinstein, Durbin, and Leahy (July 17, 2006) ............. 162

SUBMISSIONS FOR THE RECORD 

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas, February 

6, 2006, vote-by-proxy form ................................................................................. 226

Buchen, Philip W., former Counsel to the President, March 15, 1976, memorandum and attachment ...................................................................................... 227

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma, February 

6, 2006, vote-by-proxy form ................................................................................. 232

Cunningham, H. Bryan, Attorney at Law, Morgan and Cunningham LLC, 

Denver, Colorado, letter ....................................................................................... 235

Fein, Bruce, former Associate Deputy Attorney General, Bruce Fein & Associates, Washington, D.C., letter ............................................................................. 259

Former government officials with experience in national security matters, 

joint statement ..................................................................................................... 262

Gonzales, Alberto R., Attorney General of the United States, Department 

of Justice, Washington, D.C., prepared statement and attachments .............. 264

Gorelick, Jamie S., former Deputy Attorney General, Department of Justice, 

Washington, D.C., letter ...................................................................................... 320

Halperin, Morton H., Director, U.S. Advocacy, Open Society Institute and 

Senior Fellow, Center for American Progress and Jerry Berman, President, 

Center for Democrary & Technology, joint statement ...................................... 321

Harmon, John M., former Assistant Attorney General, Office of Legal Counsel, Department of Justice and Larry L. Simms, former Deputy Assistant 

Attorney General, Office of Legal Counsel, Department of Justice, joint 

statement .............................................................................................................. 333

Newsweek, February 6, 2006, article ..................................................................... 342

New York Times: 

December 16, 2005, article ............................................................................... 349

December 24, 2005, article ............................................................................... 357

January 17, 2006, article ................................................................................. 360

Page

IV

New York Times—Continued

January 29, 2006, article ................................................................................. 365

Roll Call, January 19, 2006, article ....................................................................... 368

Scholars of constitutional law and former government officials: 

January 9, 2006, joint letter ............................................................................ 371

February 2, 2006, joint letter .......................................................................... 382

September 11th Advocates, joint statement .......................................................... 394

Smith, Jeffrey H., former General Counsel of the Central Intelligence Agency 

and a former General Counsel of the Senate Armed Services Committee, 

January 3, 2006, memorandum .......................................................................... 396

Washington Post: 

December 20, 2005, article ............................................................................... 404

December 23, 2005, article ............................................................................... 406

February 5, 2006, article .................................................................................. 408

Washington Times: 

January 4, 2006, article ................................................................................... 415

January 24, 2006, article ................................................................................. 417

FEBRUARY 28, 2006

STATEMENTS OF COMMITTEE MEMBERS 

Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 421

prepared statement .......................................................................................... 640

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 419

WITNESSES 

Fein, Bruce, Fein and Fein, Washington, D.C. ..................................................... 431

Gormley, Ken, Professor of Constitutional Law, Duquesne University School 

of Law, Pittsburgh, Pennsylvania ....................................................................... 435

Kmiec, Douglas W., Professor of Constitutional Law, Pepperdine University 

School of Law, Malibu, California ....................................................................... 429

Koh, Harold Hongju, Dean, Yale Law School, New Haven, Connecticut ............ 425

Levy, Robert A., Senior Fellow in Constitutional Studies, Cato Institute, 

Washington, D.C. ................................................................................................. 427

Turner, Robert F., Associate Director and Co-Founder, Center for National 

Security Law, University of Virginia School of Law, Charlottesville, Virginia ....................................................................................................................... 433

Woolsey, R. James, Vice President, Global Strategic Security Division, Booz 

Allen Hamilton, McLean, Virginia ...................................................................... 424

QUESTIONS AND ANSWERS 

Responses of Bruce Fein to questions submitted by Senators Leahy and 

Kennedy ................................................................................................................ 467

Responses of Ken Gormley to questions submitted by Senators Kennedy and 

Schumer ................................................................................................................ 470

Responses of Douglas Kmiec to questions submitted by Senator Schumer ........ 478

Responses of Harold Koh to questions submitted by Senator Schumer ............. 480

Responses of Robert Levy to questions submitted by Senators Schumer and 

Kennedy ................................................................................................................ 484

Responses of Robert Turner to questions submitted by Senators Kennedy 

and Schumer ......................................................................................................... 490

Responses of R. James Woolsey to questions submitted by Senators Kennedy 

and Schumer ......................................................................................................... 513

SUBMISSIONS FOR THE RECORD 

American Bar Association, Denise A. Cardman, Senior Legislative Counsel, 

Washington, D.C., letter, resolution, and report ............................................... 517

Constitution Project, Washington, D.C., joint statement and attachment ......... 539

Fein, Bruce, Fein and Fein, Washington, D.C., prepared statement and attachment ............................................................................................................... 544

Page

V

Franklin, Jonathan S., Partner, Hogan & Hartson, LLP, Washington, D.C., 

letter and memorandum ...................................................................................... 564

Gormley, Ken, Professor of Constitutional Law, Duquesne University School 

of Law, Pittsburgh, Pennsylvania, prepared statement ................................... 566

Kmiec, Douglas W., Professor of Constitutional Law, Pepperdine University 

School of Law, Malibu, California, prepared statement ................................... 594

Koh, Harold Hongju, Dean, Yale Law School, New Haven, Connecticut, prepared statement ................................................................................................... 621

Levy, Robert A., Senior Fellow in Constitutional Studies, Cato Institute, 

Washington, D.C., prepared statement .............................................................. 643

New York Times, February 12, 2006, editorial ..................................................... 657

Turner, Robert F., Associate Director and Co-Founder, Center for National 

Security Law, University of Virginia School of Law, Charlottesville, Virginia, prepared statement ................................................................................... 659

Washington, Post, February 16, 2006, Washington, D.C., editorial .................... 705

Washington Times, Washington, D.C.: 

December 20, 2005, article ............................................................................... 707

December 28, 2005, article ............................................................................... 711

January 4, 2006, article ................................................................................... 715

January 24, 2006, article ................................................................................. 719

January 31, 2006, article ................................................................................. 723

February 6, 2006, article .................................................................................. 727

February 14, 2006, article ................................................................................ 731

Woolsey, R. James, Vice President, Global Strategic Security Division, Booz 

Allen Hamilton, McLean, Virginia, prepared statement .................................. 735

TUESDAY, MARCH 28, 2006

STATEMENTS OF COMMITTEE MEMBERS 

Page

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 829

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 748

prepared statement .......................................................................................... 870

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 747

WITNESSES 

Baker, Hon. Harold A., Judge, U.S. District Court for the Central District 

of Illinois, Urbana, Illinois .................................................................................. 759

Brotman, Hon. Stanley S., Judge, U.S. District Court for the District of 

New Jersey, Camden, New Jersey ...................................................................... 760

Halperin, Morton J., Executive Director, Open Society Policy Center, Washington, D.C. ........................................................................................................... 785

Keenan, Hon. John F., Judge, U.S. District Court for the Southern District 

of New York, New York, New York .................................................................... 762

Kornblum, Hon. Allan, Magistrate Judge, U.S. District Court for the Northern 

Dirstrict of Florida, Gainesville, Florida ............................................................ 752

Kris, David S., Senior Vice President, Time Warner, Inc., New York, New 

York ....................................................................................................................... 789

Stafford, Hon. William, Jr., Judge, U.S. District Court for the Northern District of Florida, Pensacola, Florida ..................................................................... 764

QUESTIONS AND ANSWERS 

Responses of Judge Baker to questions submitted by Senator Feingold ............ 797

Responses of Judge Brotman to questions submitted by Senator Feingold ....... 799

Responses of Mort Halperin to a question submitted by Senator Leahy ............ 801

Responses of Judge Keenan to questions submitted by Senator Feingold ......... 802

Responses of David Kris to questions submitted by Senator Leahy ................... 804

Responses of Judge Stafford to questions submitted by Senator Feingold ......... 811

Page

VI

SUBMISSIONS FOR THE RECORD 

Halperin, Morton J., Executive Director, Open Society Policy Center, Washington, D.C., prepared statement ....................................................................... 812

Keenan, Hon. John F., Judge, U.S. District Court for the Southern District 

of New York, New York, New York, prepared statement ................................. 820

Kris, David S., Senior Vice President, Time Warner, Inc., New York, New 

York, prepared statement .................................................................................... 830

National Journal, March 18, 2006, article ............................................................. 873

New York Times, March 25, 2006, article ............................................................. 880

Robertson, James, Judge, U.S. District Court for the District of Columbia, 

Washington, D.C., letter ...................................................................................... 882

Stafford, Hon. William, Jr., Judge, U.S. District Court for the Northern District of Florida, Pensacola, Florida, prepared statement .................................. 884

U.S. News & World Report, March 27, 2006, article ............................................ 891

Washington Post: 

February 9, 2006, article .................................................................................. 895

March 9, 2006, editorial ................................................................................... 899

(1)

WARTIME EXECUTIVE POWER AND THE NATIONAL SECURITY AGENCY’S SURVEILLANCE AUTHORITY 

MONDAY, FEBRUARY 6, 2006

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. 

Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, Sessions, Graham, Cornyn, Brownback, Leahy, Kennedy, Biden, Kohl, 

Feinstein, Feingold, Schumer, and Durbin. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. It is 9:30. The Judiciary Committee will now 

proceed with our hearing on the administration’s program administered by the National Security Agency on surveillance. 

We welcome the Attorney General of the United States here 

today, who will be testifying. We face as a Nation, as we all know, 

an enormous threat from international terrorism. The terrorists attacked this country on 9/11, and we remain in danger of renewed 

terrorist attacks. 

The President of the United States has the fundamental responsibility to protect the country, but even as the Supreme Court has 

said, the President does not have a blank check. And this hearing 

is designed to examine the legal underpinnings of the administration’s program from the point of view of the statutory interpretation and also from the point of view of constitutional law. 

The Foreign Intelligence Surveillance Act was passed in 1978 

and has a forceful and blanket prohibition against any electronic 

surveillance without a court order. That law was signed by President Carter with a signing statement that said it was the exclusive 

way for electronic surveillance. There is also a constitutional issue 

as to whether the President has inherent powers under Article II 

of the Constitution to undertake a program of this sort. If the 

President has constitutional authority, that trumps and supersedes 

the statute. The Constitution is the fundamental law of the country, and a statute cannot be inconsistent with a constitutional provision. 

We will be examining the administration’s contention that, notwithstanding the Foreign Intelligence Surveillance Act, there is 

2

statutory authority for what the President has done by virtue of 

the resolution of Congress authorizing the use of force against the 

terrorists. I have already expressed myself as being skeptical of 

that interpretation, but I believe the administration is entitled to 

a full and fair opportunity to advance their legal case on that important issue. 

We will be examining with the Attorney General the generalized 

rules of statutory interpretation. One of them is that a repeal by 

implication is disfavored. Also, the specific governs the generalizations. And in the Foreign Intelligence Surveillance Act you have 

the specific prohibition contrasted with the generalized authority 

under the resolution for the authorization for the use of force. 

I sent a letter to the Attorney General propounding some 15 

questions, and I thank the Attorney General for his responses. 

They will provide to a substantial extent the framework for our discussion here today. One of the key points on my mind is the role 

of the Foreign Intelligence Surveillance Court. One of the questions 

which I asked of the Attorney General was the role of the court in 

granting permission in advance, the role of the court in granting 

permission within 72 hours after the President exercises surveillance authority. I also asked whether the administration might 

now consider having the Foreign Intelligence Surveillance Court review this entire issue. 

The whole question of probable cause is one with very substantial flexibility under our laws, depending upon the circumstances 

of the case. The Foreign Intelligence Surveillance Court has a great 

reputation for integrity, with no leaks—candidly, unlike the Congress; candidly, unlike the administration; candidly, unlike all of 

Washington, perhaps all of the world. But when that court has secrets, they keep the secrets, and they also are well respected in 

terms of their technical competence. 

One of the questions, the lead question, which I will be asking 

the Attorney General is whether the administration would consider 

sending this entire program to the court for their evaluation. The 

scope of this hearing is to examine the law on the subject, and the 

ground rules are that we will not inquire into the factual 

underpinnings of what is being undertaken here. That is for another Committee and for another day. That is for the Intelligence 

Committee and that is for a closed session. 

It may be that some of the questions which we will ask the Attorney General on legal issues may, in his mind, require a closed 

session, and if they do, we will accommodate his request in that regard. 

One of the other questions which I will be directing to the Attorney General to follow up on the letter is the practice of making disclosures only to the so-called Gang of 8—the Speaker and the Democrat Leader in the House, the Majority Leader and the Democrat 

Leader in the Senate, and the Chairmen and Vice Chairmen of the 

two Intelligence Committees—and the adequacy of that in terms of 

the statute which calls for disclosure to the committees. The committees are much broader. And if the administration thinks that 

the current law is too broad, they have the standing to ask us to 

change the law, and we would certainly consider that on a showing 

of necessity to do so. 

3

We have told the Attorney General we would require his presence all day. We will have 10-minute rounds, which is double what 

is the practice of this Committee, and as I have announced in advance, we will have multiple rounds. 

There has been some question about swearing in the Attorney 

General, and I discussed that with the Attorney General, who said 

he would be willing to be sworn. After reflecting on the matter, I 

think it is unwarranted because the law provides ample punishment for a false official statement or a false statement to Congress. 

Under the provisions of 18 United States Code 1001 and 18 United 

States Code Section 1505, the penalties are equivalent to those 

under the perjury laws. 

There has been a question raised as to legal memoranda within 

the Department, and at this time and on this showing, it is my 

judgment that that issue ought to be reserved to another day. I am 

sure it will come up in the course of questioning. The Attorney 

General will have an opportunity to amplify on the administration’s position. But there is a fairly well-settled doctrine that internal memoranda within the Department of Justice are not subject 

to disclosure because of the concern that it would have a chilling 

effect. If lawyers are concerned that what they write may later be 

subjected to review by others, they will be less than candid in their 

positions. 

This Committee has faced those issues in recent times with requests for internal memoranda of Chief Justice Roberts. They were 

not produced, and they were more relevant there than here because 

of the issue of finding some ideas as to how Chief Justice Roberts 

would function on the Court if confirmed. Here we have legal 

issues, and lawyers on this Committee and other lawyers are as capable as the Department of Justice in interpreting the law. 

One other issue has arisen, and that is the issue of showing 

video. I think that would not be in order. The transcripts of what 

the President said and the transcripts of what you, Mr. Attorney 

General, said earlier in a discussion with Senator Feingold are of 

record. This is not a Sunday morning talk show, and the transcripts contain the full statement as to legal import and legal effect, and I am sure that those statements by the President and 

those statements by you will receive considerable attention by this 

Committee. 

That is longer than I usually talk, but this is a very big subject. 

Senator FEINGOLD. Mr. Chairman? 

Chairman SPECTER. This is the first of a series of hearings, at 

least two more, because of the very profound and very deep questions which we have here involving statutory interpretation and 

the constitutional implications of the President’s Article II powers. 

And this is all in the context of the United States being under a 

continuing threat from terrorism. But the beauty of our system is 

the separation of powers, the ability of the Congress to call upon 

the administration for responses, the willingness of the Attorney 

General to come here today, and the capability of the Supreme 

Court to resolve any conflicts. 

Senator FEINGOLD. Mr. Chairman? 

Chairman SPECTER. I would like to yield now—

Senator FEINGOLD. Mr. Chairman? 

4

Chairman SPECTER [continuing]. To the distinguished Ranking—

Senator FEINGOLD. Can I just ask a quick clarification? 

Chairman SPECTER. Senator Feingold? 

Senator FEINGOLD. I heard your judgment about whether the 

witness should be sworn. What would be the distinction between 

this occasion and the confirmation hearing where he was sworn? 

Chairman SPECTER. The distinction is that it is the practice to 

swear nominees for Attorney General or nominees for the Supreme 

Court or nominees for other Cabinet positions. But the Attorneys 

General have appeared here on many occasions in the 25 years 

that I have been here, and there should be a showing, Senator 

Feingold, to warrant swearing. 

Senator FEINGOLD. Mr. Chairman, I would just say that the reason that anyone would want him sworn has to do with the fact that 

certain statements were made under oath at the confirmation hearing, so it seems to me logical that since we are going to be asking 

about similar things that he should be sworn on this occasion as 

well. 

Senator LEAHY. And, Mr. Chairman, if I might on that point—

if I might on that point, of course, the Attorney General was sworn 

in on another occasion other than his confirmation when he and Director Mueller appeared before this Committee for oversight. And 

I had asked the Chairman, as he knows, earlier that he should be 

sworn on this. And I made that request right after the press had 

pointed out where an answer to Senator Feingold appeared not to 

have been truthful. And I felt that that is an issue that is going 

to be brought up during this hearing, and we should go into it. 

I also recall the Chairman and other Republicans insisting that 

former Attorney General Reno be sworn when she came up here on 

occasions other than her confirmation. 

I think because, especially because of the article about the questions of the Senator from Wisconsin, Senator Feingold. I believe he 

should be sworn. That is obviously the prerogative of the Chairman, but I would state again, and state strongly for the record 

what I have told the Chairman privately. I think in this instance, 

similar to what you did in April with Attorney General Gonzales 

and Director Mueller, both of whom were sworn, and as the Chairman insisted with then-Attorney General Reno, I believe he should 

be sworn. 

Chairman SPECTER. Senator Leahy and I have not disagreed on 

very much in the more than a year since we first worked together 

as ranking member and Chairman, and I think it has strengthened 

the Committee. I did receive the request. I went back and dug out 

the transcript, and reviewed Senator Feingold’s vigorous cross-examination of the Attorney General at the confirmation hearings. I 

know the issues as to torture, which Senator Feingold raised, and 

the issues which Senator Feingold raised as to searches without 

warrants. I have reviewed the provisions of 18 USC 1001 and the 

case involving Admiral Poindexter, who was convicted under that 

provision. I have reviewed the provisions of 18 United States Code 

1505, where Oliver North was convicted, and there are penalties 

provided there commensurate with perjury. It is my judgment that 

it is unnecessary to swear the witness. 

5

Senator LEAHY. Mr. Chairman, may I ask, if the witness has no 

objection to being sworn, why not just do it and not have this question raised here? I realize only the Chairman can do the swearing 

in. Otherwise, I would offer to give him the oath myself, insofar as 

he said he would this morning be sworn in, but if he is willing to 

be, why not just do it? 

Senator SESSIONS. Mr. Chairman? 

Chairman SPECTER. The answer to why I am not going to do it 

is that I have examined all the facts, and I have examined the law, 

and I have asked the Attorney General whether he would object or 

mind, and he said he would not, and I have put that on the record. 

But the reason I am not going to swear him in, it is not up to him. 

Attorney General Gonzales is not the Chairman. I am. And I am 

going to make the ruling. 

Senator SESSIONS. Mr. Chairman? 

Senator FEINGOLD. Mr. Chairman? 

Senator LEAHY. Mr. Chairman, I would point out that he has 

been here before this Committee three times. The other two times 

he was sworn. It seems unusual not to swear him this time. 

Senator DURBIN. Mr. Chairman, I move the witness be sworn. 

Chairman SPECTER. The Chairman has ruled. If there is an appeal from the ruling of the Chair, I have a pretty good idea how 

it is going to come out. 

Senator DURBIN. Mr. Chairman, I appeal the ruling of the Chair. 

Chairman SPECTER. All in favor of the ruling of the Chair say 

‘‘aye.’’

[Chorus of ayes.] 

Senator SCHUMER. Roll call. 

Chairman SPECTER. Opposed? 

Senator LEAHY. Roll call has been requested. 

Senator FEINGOLD. Mr. Chairman, ask for a roll call vote. 

Chairman SPECTER. The clerk will call the roll. I will call the 

roll. 

[Laughter.] 

Chairman SPECTER. Senator Hatch? 

Senator HATCH. No. 

Chairman SPECTER. Senator Grassley? 

Senator GRASSLEY. No. 

Chairman SPECTER. Senator Kyl? 

Senator KYL. Mr. Chairman, is the question to uphold or to reject 

the ruling? 

Chairman SPECTER. The question is to uphold the ruling of the 

Chair, so we are looking for ayes here, Senator. 

[Laughter.] 

Senator LEAHY. But we are very happy with the noes that have 

started on the Republican side, being the better position. 

Senator HATCH. I am glad somebody clarified that. 

Chairman SPECTER. The question is, should the ruling of the 

Chair be upheld that Attorney General Gonzales not be sworn? 

Senator HATCH. Aye. 

Senator GRASSLEY. Aye. 

Senator KYL. Aye. 

Senator DEWINE. Aye. 

Senator SESSIONS. Aye. 

6

Senator GRAHAM. Aye. 

Senator CORNYN. Aye. 

Chairman SPECTER. By proxy, for Senator Brownback, aye. 

Senator Coburn? 

[No response.] 

Chairman SPECTER. We have enough votes already. 

Senator Leahy? 

Senator LEAHY. Emphatically, no. 

Senator KENNEDY. No. 

Senator BIDEN. No. 

Senator KOHL. No. 

Senator FEINSTEIN. No. 

Senator FEINGOLD. No. 

Senator SCHUMER. No. 

Senator DURBIN. No. 

Chairman SPECTER. Aye. The ayes have it. 

Senator FEINGOLD. Mr. Chairman, I request to see the proxies 

given by the Republican Senators. 

Chairman SPECTER. Would you repeat that, Senator Feingold? 

Senator FEINGOLD. I request to see the proxies given by the Republican Senators. 

Chairman SPECTER. The practice is to rely upon the staffers. But 

without counting that vote—well, we can rephrase the question if 

there is any serious challenge to the proxies. This is really not a 

very good way to begin this hearing, but I found that patience is 

a good practice here. 

Senator SESSIONS. Mr. Chairman? 

Chairman SPECTER. Senator Sessions? 

Senator SESSIONS. I am very disappointed that we went through 

this process. This Attorney General, in my view, is a man of integrity, and having read the questions, as you have, that Senator 

Feingold put forward, and his answers, I believe he will have a perfect answer to those questions when they come up at this hearing, 

and I do not believe they are going to show he perjured himself in 

any way or was inaccurate in what he said. I remember having a 

conversation with General Meyers and Secretary of Defense Rumsfeld, and one of the saddest days in their career was having to 

come in here and stand before a Senate Committee and raise their 

hand as if they were not trustworthy in matters relating to the defense of this country. And I think that is it not necessary that a 

duly confirmed cabinet member have to routinely stand up and just 

give an oath when they are, in effect, under oath and subject to 

prosecution if they do not tell the truth. 

I think it is just a question of propriety and good taste, and due 

respect from one branch to the other, and that is why I would support the Chair. 

Senator LEAHY. Mr. Chairman, I do not—

Chairman SPECTER. Let us not engage in protracted debate on 

this subject. We are not going to swear this witness and we have 

the votes to stop it. 

Senator Leahy? 

7

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Mr. Chairman, I stated my position why I believe he should be sworn in, but I understand that you have the 

majority of votes. 

Now the question for this hearing goes into the illegality of the 

Government’s domestic spying on ordinary Americans without a 

warrant. 

The question facing us is not whether the Government should 

have all the tools it needs to protect the American people. Of course 

it should. Every single Member of Congress agrees they should 

have all the tools necessary to protect the American people. The 

terrorist threat to America’s security remains very real. We should 

have the tools to protect America’s security. That is why I co-authored the PATRIOT Act 5 years ago, and why it passed with such 

broad bipartisan support, and I would also remind everybody that 

is why we amended FISA, the Foreign Intelligence Surveillance 

Act, five times since 9/11 to give it more flexibility, twice during 

the time when I was Chairman. 

We all agree that if you have al Qaeda terrorists calling we 

should be wiretapping them. We do not even need authority to do 

that overseas, and certainly going into, so far, the unsuccessful effort to catch Osama bin Laden in Afghanistan. Congress has given 

the President authority to monitor al Qaeda messages legally with 

checks to guard against abuses when Americans’ conversations and 

e-mails are being monitored. But instead of doing what the President has the authority to do legally, he decided to do it illegally 

without safeguards. 

A judge from the special court Congress created to monitor domestic spying would grant any request to monitor an al Qaeda terrorist. Of the approximately 20,000 foreign intelligence warrant applications to these judges over the past 28 years, about a half dozen 

have been turned down. 

I am glad the Chairman is having today’s hearing. We have precious little oversight in this Congress, but the Chairman and I 

have a long history of conducting vigorous bipartisan oversight investigations, and if Congress is going to serve the role it should, 

instead of being a rubber stamp for whoever is the Executive, we 

have to have this kind of oversight. 

The domestic spying programs into e-mails and telephone calls, 

apparently conducted by the National Security Agency, was first 

reported by the New York Times on December 16, 2005. The next 

day President Bush publicly admitted that secret domestic wiretapping has been conducted without warrants since late 2001, and 

he has issued secret orders to do this more than 30 times. 

We have asked for those Presidential orders allowing secret 

eavesdropping on Americans. They have not been provided. We 

have asked for official legal opinions of the Government that the 

administration say justify this program. They too have been withheld from us. 

The hearing is expressly about the legality of this program. It is 

not about the operational details. It is about whether we can legally spy on Americans. In order for us to conduct effective oversight, we need the official documents to get those answers. We are 

8

an oversight Committee of the U.S. Senate, the oversight Committee with jurisdiction over the Department of Justice and over its 

enforcement of the laws of the United States. We are the duly 

elected representatives of the United States. It is our duty to determine whether the laws of the United States have been violated. 

The President and the Justice Department have a constitutional 

duty to faithfully execute the laws. They do not write the laws. 

They do not pass the laws. They do not have unchecked powers to 

decide what laws to follow, and they certainly do not have the 

power to decide what laws to ignore. They cannot violate the law 

or the rights of ordinary Americans. 

Mr. Attorney General, in America, our America, nobody is above 

the law, not even the President of the United States. 

There is much that we do not know about the President’s secret 

spying program. I hope we are going to get some answers, some 

real answers, not self-serving characterizations. 

Let’s start with what we do know. Point one, the President’s secret wiretapping program is not authorized by the Foreign Intelligence Surveillance Act. 

The law expressly states it provides the exclusive source of authority for wiretapping for intelligence purposes. Wiretapping that 

is not authorized under this statute is a Federal crime. That is 

what the law says. It is also what the law means. This law was 

enacted to define how domestic surveillance for intelligence purposes can be conducted while protecting the fundamental rights of 

Americans. 

A couple of generations of Americans are too young to know why 

we passed this law. It was enacted after decades of abuses by the 

Executive, including the wiretapping of Dr. Martin Luther King, 

and other political opponents of earlier Government officials. After 

some of the so-called White House enemies on the Nixon White 

House enemies list, during that time another President asserted 

that whatever he did what was legal because he was President, 

and being President, he could do whatever he wanted to do. 

The law has been updated five times since September 11, 2001. 

It provides broad and flexible authority. In fact, on July 31, 2002, 

your Justice Department testified this law is a highly flexible statute that has been proven effective. And you noted, ‘‘When you are 

trying to prevent terrorist acts, that is really what FISA was intended to do and it was written with that in mind.’’

But now the Bush administration concedes the President knowingly created a program involving thousands of wiretaps of Americans in the United States over the periods of the last four or 5 

years without complying with FISA. 

And legal scholars and former Government officials, including 

many Republicans, have been almost unanimous in stating the obvious, this is against the law. 

Point two, the authorization for the use of military force that 

Democratic and Republican lawmakers joined together to pass in 

the days immediately after the September 11 attacks did not give 

the President the authority to go around the FISA law to wiretap 

Americans illegally. 

9

That authorization said to capture or kill Osama bin Laden, and 

to use the American military to do that. It did not authorize domestic surveillance of American citizens. 

Let me be clear. Some Republican Senators say that we are talking about special rights for terrorists. I have no interest in that. 

Just like every member of this Committee and thousands of our 

staffs, and every Member of the House of Representatives, I go to 

work every single day in a building that was targeted for destruction by al Qaeda. Of course, I want them captured. I wish the Bush 

administration had done a better job. I wish that when they almost 

had Osama bin Laden, they had kept on after him and caught him, 

and destroyed him, rather than taking our Special Forces out of Afghanistan and sending them precipitously into Iraq. 

My concern is the laws of America, and my concern is when we 

see peaceful Quakers being spied upon, where we see babies and 

nuns who cannot fly in airplanes because they are on a terrorist 

watch list put together by your Government. 

And point three, the President never came to Congress and never 

sought additional legal authority to engage in the type of domestic 

surveillance in which NSA has been secretly engaged for the last 

several years. 

After September 11, 2001, I led a bipartisan effort to provide 

legal tools. We passed amendments to FISA. We passed the U.S. 

PATRIOT Act, and we upgraded FISA four times since then. In 

fact, when a Republican Senator on this Committee proposed a 

legal change to the standards needed for a FISA warrant, the Bush 

administration did not support that effort, but raised questions 

about it and said it was not needed. The administration told the 

Senate that FISA was working just fine. 

You, Mr. Attorney General, said the administration did not ask 

for legislation authorizing warrantless wiretapping of Americans, 

and did not think such legislation would pass. Who did you ask? 

You did not ask me. You did not ask Senator Specter. 

Not only did the Bush administration not seek broader legal authority, it kept the very existence of this illegal wiretapping program completely secret from 527 of the 535 Members of Congress, 

including members of this Committee and members on the Intelligence Committee. 

The administration had not suggested to Congress and the American people that FISA was inadequate, outmoded or irrelevant. You 

never did that until the press caught you violating the statute with 

the secret wiretapping of Americans without warrants. In fact, in 

2004, 2 years after you authorized the secret warrantless wiretapping program—and this is a tape we are told we cannot show—

the President said, ‘‘Anytime you hear the U.S. Government talking about wiretap, a wiretap requires a court order. Nothing has 

changed...When we’re talking about chasing down terrorists, we’re 

talking about getting a court order before we do so.’’ That was 

when he was running for reelection. Today we know at the very 

least, that statement was misleading. 

Let me conclude with this. I have many questions for you. But 

first, let me give you a message, Mr. Attorney General, to you, to 

the President and to the administration. This is a message that 

should be unanimous from every single Member of Congress, no 

10

matter what their party or their ideology. Under our Constitution, 

Congress is a co-equal branch of Government, and we make the 

laws. If you believe you need new laws, then come and tell us. If 

Congress agrees, we will amend the law. If you do not even attempt to persuade Congress to amend the law, then you are required to follow the law as it is written. That is true of the President, just as it is true of me and you and every American. That 

is the rule of law. That is the rule on which our Nation was founded. That is the rule on which it endures and prospers. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Thank you, Senator Leahy. 

We turn now to the Attorney General of the United States, 

Alberto R. Gonzales. The Attorney General has held the office for 

a little over a year. Before that he was Counsel to the President, 

right after the President’s inauguration in 2001. He had served in 

State Government with Governor Bush. He attended the U.S. Air 

Force Academy from 1975 to 1977, graduated from Rice University 

with a bachelor’s degree, and from Harvard Law School. He was a 

partner in the distinguished law firm of Vinson and Elkins in 

Houston before going into State Government. 

We have allotted 20 minutes for your opening statement, Mr. Attorney General, because of the depth and complexity and importance of the issues which you and we will be addressing. You may 

proceed. 

STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL 

OF THE UNITED STATES, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Attorney General GONZALES. Good morning, Chairman Specter, 

Senator Leahy and members of the Committee. I am pleased to 

have this opportunity to speak with you. 

And let me just add for the record, when Chairman Specter 

asked me whether I would be willing to go under oath, I did say 

I would have no objections. I also said that my answers would be 

the same, whether or not I was under oath. 

Al Qaeda and it affiliates remain deadly dangerous. Osama bin 

Laden recently warned America, ‘‘Operations are under preparation and you will see them in your homes.’’ Bin Laden’s deputy, 

Ayman Al-Zawahiri added just days ago that the American people 

are, and again I quote, ‘‘destined for a future colored by blood, the 

smoke of explosions and the shadows of terror.’’

None of us can afford to shrug off warnings like this or forget 

that we remain a Nation at war. Nor can we forget that this is a 

war against a radical and unconventional enemy. Al Qaeda has no 

boundaries, no government, no standing army. Yet they are capable 

of wreaking death and destruction on our shores. And they have 

sought to fight us not just with bombs and guns. Our enemies are 

trained in the most sophisticated communications, counterintelligence, and counter-surveillance techniques, and their tactics, they 

are constantly changing. 

They use video feed and worldwide television networks to communicate with their forces, e-mail, the Internet and cell phones to 

11

direct their operations, and even our own training academies to 

learn how to fly aircraft as suicide-driven missiles. 

To fight this unconventional war, while remaining open and vibrantly engaged with the world, we must search out the terrorists 

abroad and pinpoint their cells here at home. To succeed we must 

deploy not just soldiers and sailors and airmen and marines, we 

must also depend on intelligence analysts, surveillance experts, 

and the nimble use of our technological strength. 

Before 9/11 terrorists were clustered throughout the United 

States preparing their assault. We know from the 9/11 Commission 

report that they communicated with their superiors abroad using 

e-mail, the Internet and telephone. General Hayden, the Principal 

Deputy Director of National Intelligence, testified last week before 

the Senate that the terrorist surveillance program instituted after 

9/11 has helped us detect and prevent terror plots in the United 

States and abroad. Its continuation is vital to the national defense. 

Before going any further, I should make clear what I can discuss 

today. I am here to explain the Department’s assessment that the 

President’s terrorist surveillance program is consistent with our 

laws and the Constitution. I am not here to discuss the operational 

details of that program or any other classified activity. The President has described the terrorist surveillance program in response 

to certain leaks. And my discussion in this open forum must be 

limited to those facts the President has publicly confirmed, nothing 

more. 

Many operational details of our intelligence activities remain 

classified and unknown to our enemy, and it is vital that they remain so. 

The President is duty bound to do everything he can to protect 

the American people. He took an oath to preserve, protect and defend the Constitution. In the wake of 9/11 he told the American 

people that to carry out this solemn responsibility, he would use 

every lawful means at his disposal to prevent another attack. 

One of those means is the terrorist surveillance program. It is an 

early warning system designed for the 21st century. It is the modern equivalent to a scout team sent ahead to do reconnaissance or 

a series of radar outposts designed to detect enemy movements. 

And as with all wartime operations, speed, agility and secrecy are 

essential to its success. 

While the President approved this program to respond to the new 

threats against us, he also imposed several important safeguards 

to protect the privacy and the civil liberties of all Americans. 

First. Only international communications are authorized for 

interception under this program, that is, communications between 

a foreign country and this country. 

Second. The program is triggered only when a career professional 

at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of al Qaeda or an 

affiliated terrorist organization. As the President has said, if you 

are talking with al Qaeda, we want to know what you are saying. 

Third. To protect the privacy of Americans still further, the NSA 

employs safeguards to minimize the unnecessary collection and dissemination of information about U.S. persons. 

12

Fourth. This program is administered by career professionals at 

NSA. Expert intelligence analysts and their senior supervisors with 

access to the best available information, they make the decisions 

to initiate surveillance. The operation of the program is reviewed 

by NSA lawyers, and rigorous oversight is provided by the NSA Inspector General. I have been personally assured that no other foreign intelligence program in the history of NSA has received a 

more thorough review. 

Fifth. The program expires by its own terms approximately every 

45 days. The program may be reauthorized, but only on the recommendation of intelligence professionals, and there must be a determination that al Qaeda continues to pose a continuing threat to 

America based on the latest intelligence. 

Finally, the bipartisan leadership of the House and Senate Intelligence Committees has known about this program for years. The 

bipartisan leadership of both the House and Senate has also been 

informed. During the course of these briefings, no Members of Congress asked that the program be discontinued. 

Mr. Chairman, the terrorist surveillance program is lawful in all 

respects. As we have thoroughly explained in our written analysis, 

the President is acting with authority provided both by the Constitution and by statute. First and foremost, the President is acting 

consistent with our Constitution. Under Article II, the President 

has the duty and the authority to protect America from attack. Article II also makes the President, in the words of the Supreme 

Court, ‘‘the sole organ of Government in a field of international relations.’’

These inherent authorities vested in the President by the Constitution include the power to spy on enemies like al Qaeda without 

prior approval from other branches of Government. The courts have 

uniformly upheld this principle in case after case. Fifty–five years 

ago the Supreme Court explained that the President’s inherent constitutional authorities expressly include, ‘‘the authority to use secretive means to collect intelligence necessary for the conduct of 

foreign affairs and military campaigns.’’

More recently, in 2002, the FISA Court of Review explained that, 

‘‘All the other courts to have decided the issue have held that the 

President did have inherent authority to conduct warrantless 

searches to obtain intelligence information.’’ The court went on to 

add, ‘‘We take for granted that the President does have that authority, and assuming that that is so, FISA could not encroach on 

the President’s constitutional powers.’’

Now, it is significant, that this statement, stressing the constitutional limits of the Foreign Intelligence Surveillance Act, or FISA, 

came from the very appellate court that Congress established to review the decisions of the FISA Court. 

Nor is this just the view of the courts. Presidents, throughout our 

history, have authorized the warrantless surveillance of the enemy 

during wartime, and they have done so in ways far more sweeping 

than the narrowly targeted terrorist surveillance program authorized by President Bush. 

General Washington, for example, instructed his army to intercept letters between British operatives, copy them, and then allow 

those communications to go on their way. 

13

President Lincoln used the warrantless wiretapping of telegraph 

messages during the Civil War to discern the movements and intentions of opposing troops. 

President Wilson, in World War I, authorized the military to 

intercept each and every cable, telephone and telegraph communication going into or out of the United States. 

During World War II, President Roosevelt instructed the Government to use listening devices to learn the plans of spies in the 

United States. He also gave the military the authority to review, 

without warrant, all telecommunications, ‘‘passing between the 

United States and any foreign country.’’

The far more focused terrorist surveillance program fully satisfies the ‘‘reasonableness’’ requirement of the Fourth Amendment. 

Now, some argue that the passage of FISA diminished the President’s inherent authority to intercept enemy communications even 

in a time of conflict. Others disagree, contesting whether and to 

what degree the legislative branch may extinguish core constitutional authorities granted to the executive branch. 

Mr. Chairman, I think that we can all agree that both of the 

elected branches have important roles to play during a time of war. 

Even if we assume that the terrorist surveillance program qualifies 

as electronic surveillance under FISA, it complies fully with the 

law. This is especially so in light of the principle that statutes 

should be read to avoid serious constitutional questions, a principle 

that has no more important application than during wartime. By 

its plain terms, FISA prohibits the Government from engaging in 

electronic surveillance ‘‘except as authorized by statute.’’ Those 

words, ‘‘except as authorized by statute,’’ are no mere incident of 

drafting. Instead, they constitute a far-sighted safety valve. 

The Congress that passed FISA in 1978 included those words so 

that future Congresses could address unforeseen challenges. The 

1978 Congress afforded future lawmakers the ability to modify or 

eliminate the need for a FISA application without having to amend 

or repeal FISA. Congress provided this safety valve because it 

knew that the only thing certain about foreign threats is that they 

change in unpredictable ways. 

Mr. Chairman, the resolution authorizing the use of military 

force is exactly the sort of later statutory authorization contemplated by the FISA safety valve. Just as the 1978 Congress anticipated, a new Congress in 2001 found itself facing a radically 

new reality. In that new environment, Congress did two critical 

things when it passed the force resolution. 

First, Congress recognized the President’s inherent constitutional 

authority to combat al Qaeda. These inherent authorities, as I have 

explained, include the right to conduct surveillance of foreign enemies operating inside this country. 

Second, Congress confirmed and supplemented the President’s 

inherent authority by authorizing him ‘‘to use all necessary and appropriate force against al Qaeda.’’

This is a very broadly worded authorization. It is also one that 

must permit electronic surveillance of those associated with al 

Qaeda. Our enemies operate secretly, and they seek to attack us 

from within. In this new kind of war, it is both necessary and apVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
14

propriate for us to take all possible steps to locate our enemy and 

know what they are plotting before they strike. 

Now, we all agree that it is a necessary and appropriate use of 

force to fire bullets and missiles at al Qaeda strongholds. Given 

this common ground, how can anyone conclude that it is not necessary and appropriate to intercept al Qaeda phone calls? The term 

‘‘necessary and appropriate force’’ must allow the President to spy 

on our enemies, not just shoot at them blindly, hoping we might 

hit the right target. In fact, other Presidents have used statutes 

like the force resolution as a basis for authorizing far broader intelligence surveillance programs. President Wilson in World War I 

cited not just his inherent authority as Commander in Chief to 

intercept all telecommunications coming into and out of this country; he also relied on a congressional resolution authorizing the use 

of force against Germany that parallels the force resolution against 

al Qaeda. 

A few Members of Congress have suggested that they personally 

did not intend the force resolution to authorize the electronic surveillance of the enemy, al Qaeda. But we are a Nation governed by 

written laws, not the unwritten intentions of individuals. What 

matters is the plain meaning of the statute passed by Congress and 

signed by the President, and in this case, those plain words could 

not be clearer. The words contained in the force resolution do not 

limit the President to employing certain tactics against al Qaeda. 

Instead, they authorize the use of all necessary and appropriate 

force. Nor does the force resolution require the President to fight 

al Qaeda only in foreign countries. The preamble to the force resolution acknowledges the continuing threat ‘‘at home and abroad.’’

Congress passed the force resolution in response to a threat that 

emerged from within our own borders. Plainly, Congress expected 

the President to address that threat and to do so with all necessary 

and appropriate force. 

Importantly, the Supreme Court has already interpreted the 

force resolution in the Hamdi case. There the question was whether the President had the authority to detain an American citizen 

as an enemy combatant, and to do so despite a specific statute that 

said that no American citizen could be detained except as provided 

by Congress. A majority of the Justices in Hamdi concluded that 

the broad language of the force resolution gave the President the 

authority to employ the traditional incidents of waging war. Justice 

O’Connor explained that these traditional powers include the right 

to detain enemy combatants, and to do so even if they happen to 

be American citizens. 

If the detention of an American citizen who fought with al Qaeda 

is authorized by the force resolution as an incident of waging war, 

how can it be that merely listening to al Qaeda phone calls into 

and out of the country in order to disrupt their plots is not? 

Now, some have asked if the President could have obtained the 

same intelligence using traditional FISA processes. Let me respond 

by assuring you that we make robust use of FISA in our war efforts. We constantly search for ways to use FISA more effectively. 

In this debate, however, I have been concerned that some who have 

asked ‘‘Why not FISA?’’ do not understand how that statute really 

works. 

15

To be sure, FISA allows the Government to begin electronic surveillance without a court order for up to 72 hours in emergency situations or circumstances. But before that emergency provision can 

be used, the Attorney General must make a determination that all 

of the requirements of the FISA statute are met in advance. This 

requirement can be cumbersome and burdensome. Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the request 

to make sure it meets all of the requirements of the statute. And 

then lawyers at the Justice Department must also review the requests and reach the same judgment or insist on additional information before processing the emergency application. Finally, I as 

Attorney General must review the request and make the determination that all of the requirements of FISA are met. 

But even this is not the end of the story. Each emergency authorization must be followed by a detailed formal application to the 

FISA Court within 3 days. The Government must prepare legal 

documents laying out all of the relevant facts and law and obtain 

the approval of a Cabinet-level officer as well as a certification 

from a senior official with security responsibility, such as the Director of the FBI. Finally, a judge must review, consider, and approve 

the application. All of these steps take time. Al Qaeda, however, 

does not wait. 

While FISA is appropriate for general foreign intelligence collection, the President made the determination that FISA is not always sufficient for providing the sort of nimble early warning system we need against al Qaeda. Just as we cannot demand that our 

soldiers bring lawyers onto the battlefield, let alone get the permission of the Attorney General or a court before taking action, we 

cannot afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of 

defense by tracking secretive al Qaeda operatives in real time. 

Mr. Chairman, the terrorist surveillance program is necessary, it 

is lawful, and it respects the civil liberties we all cherish. It is well 

within the mainstream of what courts and prior Presidents have 

authorized. It is subject to careful constraints, and congressional 

leaders have been briefed on the details of its operation. To end the 

program now would be to afford our enemy dangerous and potentially deadly new room for operation within our own borders. 

I have highlighted the legal authority for the terrorist surveillance program, and I look forward to our discussion and know that 

you appreciate there remain serious constraints on what I can say 

about operational details. Our enemy is listening, and I cannot help 

but wonder if they are not shaking their heads in amazement at 

the thought that anyone would imperil such a sensitive program by 

leaking its existence in the first place, and smiling at the prospect 

that we might now disclose even more or perhaps even unilaterally 

disarm ourselves of a key tool in the war on terror. 

Thank you, Mr. Chairman. 

[The prepared statement of Attorney General Gonzales appears 

as a submission for the record.] 

Chairman SPECTER. Thank you very much, Attorney General 

Gonzales. 

16

Before proceeding to the 10-minute rounds for each of the Senators, let me request that you make your answers as brief as possible. You are an experienced witness, and we will try to make our 

questions as pointed and as brief as each Senator finds it appropriate. 

Senator LEAHY. Mr. Chairman, could I also ask that we have for 

the record the statement that the Attorney General—well, obviously the statement that he just gave now, but the statement that 

he submitted to the Committee under our rules a couple days ago 

as part of the record. 

Chairman SPECTER. Is there a difference between the two statements, Mr. Attorney General? 

Attorney General GONZALES. Sir, there is a difference between 

the written statement and the oral statement, yes, sir. 

Chairman SPECTER. Are they the same? 

Attorney General GONZALES. There is a difference, sir. They are 

not the same. 

Chairman SPECTER. Well, both will be made a part of the record. 

All right. Now for the 10-minute rounds. Mr. Attorney General, 

let’s start with the FISA Court, which is well-respected, maintains 

its secrets and is experienced in the field. I posed this question to 

you in my letter: Why not take your entire program to the FISA 

Court, within the broad parameters of what is reasonable and constitutional, and ask the FISA Court to approve it or disapprove it? 

Attorney General GONZALES. Senator, I totally agree with you 

that the FISA Court should be commended for its great service. 

They are working on weekends, they are working at nights—

Chairman SPECTER. Now on to my question. 

Attorney General GONZALES. They are assisting us in the war on 

terror. In terms of when I go to the FISA Court, once the determination was made that neither the Constitution nor FISA prohibited the use of this tool, then the question becomes for the Commander in Chief which of the tools is appropriate given a particular 

circumstance. And we studied very carefully the requirements of 

the Constitution under the Fourth Amendment. We studied very 

carefully what FISA provides for. 

As I said in my statement, we believe that FISA does anticipate 

that another statute could permit electronic surveillance and—

Chairman SPECTER. OK. You think you are right, but there are 

a lot of people who think you are wrong. As a matter of public confidence, why not take it to the FISA Court? What do you have to 

lose if you are right? 

Attorney General GONZALES. What I can say, Senator, is that we 

are continually looking at ways that we can work with the FISA 

Court in being more efficient and more effective in fighting the war 

on terror. Obviously, we would consider and are always considering 

methods of fighting the war effectively against al Qaeda. 

Chairman SPECTER. Well, speaking for myself, I would urge the 

President to take this matter to the FISA Court. They are experts. 

They will maintain the secrecy. And let’s see what they have to 

say. 

Mr. Attorney General, did Judge Robertson of the FISA Court resign in protest because of this program? 

17

Attorney General GONZALES. I do not know why Judge Robertson 

resigned, sir. 

Chairman SPECTER. Has the FISA Court declined to consider any 

information obtained from this program when considering warrants? 

Attorney General GONZALES. Sir, what I can say is that the 

sources of information provided or included in our application are 

advised or disclosed to the FISA Court because obviously one of the 

things they have to do is judge the reliability. 

Chairman SPECTER. So if you have information that you are submitting to the FISA Court for a warrant than you tell them that 

it was obtained from this program? 

Attorney General GONZALES. Senator, I am uncomfortable talking about how this—in great detail about how this information is 

generally shared. What I can say is just repeat what I just said, 

and that is, we as a matter of routine provide to the FISA Court 

information about the sources of the information that form the 

basis of an application—

Chairman SPECTER. I am not asking you how you get the information from the program. I am asking you, do you tell the FISA 

Court that you got it from the program? I want to know if they are 

declining to issue warrants because they are dissatisfied with the 

program. 

Attorney General GONZALES. Senator, I am not—I believe that 

getting into those kind of details is getting into the detail about 

how the program is operated. Obviously, the members of the court 

understand the existence of this program. What I can say is we 

have a very open and very candid discussion and relationship with 

the FISA Court. To the extent that we are involved in intelligence 

activities that relate in any way to the FISA Court and they have 

questions about that, we have discussions with the FISA Court. 

Our relationship with the court is extremely important, and we 

do everything that we can do to assure them with respect to our 

intelligence activities that affect decisions that they make. 

Chairman SPECTER. I am not going to press you further, but I 

would ask you to reconsider your answer. 

Attorney General GONZALES. Yes, sir. 

Chairman SPECTER. In your response to my letter, you said this: 

‘‘No communications are intercepted unless it is determined that’’—

and then I am leaving some material out—‘‘a party to the communication is a member or agent of al Qaeda or an affiliated terrorist 

organization.’’ You are representing to this Committee that before 

there is an interception, there is a determination that one of the 

parties is a member of al Qaeda, an agent of al Qaeda, or an affiliated terrorist organization. Is that true? 

Attorney General GONZALES. Sir, I believe General Hayden, the 

Deputy Director of Intelligence, yesterday confirmed that before 

there is any interception, there is a determination made by an intelligence officer at NSA that, in fact, we have reasonable grounds 

to believe that one party in the communication is a member or 

agent of al Qaeda or an affiliate terrorist organization. 

Chairman SPECTER. Is there any way you can give us assurance 

that it is true without disclosing the methods and sources of your 

program? It seems to me that that is a very important statement. 

18

If we were really sure that you are dealing only with a communication where you have a member of al Qaeda, an agent of al Qaeda, 

or an affiliated with al Qaeda terrorist organization, it would be a 

good thing, because the concern is that there is a broad sweep 

which includes people who have no connection with al Qaeda. What 

assurances can you give to this Committee and beyond this Committee to millions of Americans who are vitally interested in this 

issue and following these proceedings? 

Attorney General GONZALES. Well, I would say, Senator, and to 

the American people and to this Committee, that the program as 

operated is a very narrowly tailored program, and we do have a 

great number of checks in place to ensure, I am told by the operations folks, a great degree of certainty, a high degree of confidence 

that these calls are solely international calls. We have these career 

professionals out at NSA who are experts in al Qaeda tactics, al 

Qaeda communications, al Qaeda aims. They are the best at what 

they do, and they are the ones that make the judgment as to 

whether or not someone is on a call that is a member of al Qaeda 

or a member of an affiliated organization. 

The Inspector General, as I have indicated, has been involved in 

this program from its early stages. There are monthly—

Chairman SPECTER. Mr. Attorney General, let me interrupt you 

because I want to cover a couple more questions and time is fleeting. I think you have given the substance of the response. 

We have contacted former Attorney General Ashcroft about his 

availability to testify before this Committee, and he has not said 

yes and he has not said no. He is considering it. I believe that the 

testimony of former Attorney General Ashcroft would fall under a 

different category than that of line attorneys within the Department who are giving information. With them there is the concern 

about having a chilling effect on their advice if they know their 

views are later to be examined. 

I think the Attorney General is different, and my question to you 

is: Would you have any objection to former Attorney General 

Ashcroft’s appearance before this Committee on this issue? 

Attorney General GONZALES. I would not, Senator, although, of 

course, if it relates to questions regarding the law and the position 

of the executive branch, that is what I am doing today, is conveying 

to this Committee what is the executive branch position on the 

legal authorities of the President in authorizing the terrorist surveillance program. 

Chairman SPECTER. That is all we would ask him about. We 

wouldn’t ask him about the operations. I take it, if I heard you correctly, you would not have an objection. 

Attorney General GONZALES. Senator, this Committee, of course, 

can ask who they want to ask to come before the Committee. 

Chairman SPECTER. I know we can ask. It is a totally different 

question as to what we hear in response. He has not told us that 

he is going to look to the Department of Justice. But I think he 

would feel more comfortable knowing that you had no objection. I 

thought I heard you say earlier that you didn’t have an objection. 

Attorney General GONZALES. Senator, I don’t think I would have 

an objection. 

19

Chairman SPECTER. OK. Two more questions, which I want to 

ask before my red light goes on. 

On looking at congressional intent as to whether the resolution 

authorizing the use of force was intended to carry an authorization 

for this electronic surveillance with respect to the Foreign Intelligence Surveillance Act, you were quoted as saying, ‘‘That was not 

something that we could likely get.’’ Now, that is different from the 

other response you had that it might involve disclosures. 

If this is something you could not likely get, then how can you 

say Congress intended to give you this authority? Let the record 

show my red light went on with the conclusion of the question. 

Attorney General GONZALES. Senator, in that same press conference, I clarified that statement, and I think, the next press conference I was at with Mike Chertoff, I clarified that statement. 

That is, the consensus was in a meeting that legislation could not 

be obtained without compromising the program, i.e., disclosing the 

existence of the program, how it operated, and thereby effectively 

killing the program. 

Chairman SPECTER. Thank you very much. 

Senator Leahy? 

Senator LEAHY. Mr. Chairman, you have raised some interesting 

points. In listening to the Attorney General, who is now arguing 

that the President’s wiretapping of Americans without a warrant 

is legal, that it does not violate the controlling law, the Foreign Intelligence Surveillance Act, they have given a fancy name to the 

President’s program. But I would remind him that the terrorist 

surveillance program is the FISA law which we passed. I think you 

are violating express provisions of that Act. 

Let me just ask you a few questions that can be easily answered 

yes or no. I am not asking about operational details. I am trying 

to understand when the administration came to the conclusion that 

the Congressional resolution authorizing the military force against 

al Qaeda, where we had hoped that we would actually catch Osama 

bin Laden, the man who hit us, but when you came to the conclusion that it authorized warrantless wiretapping of Americans inside the United States. Did you reach that conclusion before the 

Senate passed the resolution on September 14, 2001? 

Attorney General GONZALES. Senator, what I can say is that the 

program was initiated subsequent to the authorization to use military force—

Senator LEAHY. Well, then let me—

Attorney General GONZALES. [continuing]. And our legal analysis 

was completed prior to the authorization of that program. 

Senator LEAHY. So your answer is you did not come to that conclusion before the Senate passed the resolution on September 14, 

2001. 

Attorney General GONZALES. Senator, I certainly had not come to 

that conclusion. There may be others in the administration who 

did. 

Senator LEAHY. Were you aware of anybody in the administration that came to that conclusion before September 14, 2001? 

Attorney General GONZALES. Senator, sitting here right now, I 

don’t have any knowledge of that. 

20

Senator LEAHY. Were you aware of anybody coming to that conclusion before the President signed the resolution on September 18, 

2001? 

Attorney General GONZALES. No, Senator. The only thing that I 

can recall is that we had just been attacked and that we had been 

attacked by an enemy from within our own borders and that—

Senator LEAHY. Attorney General, I understand. I was here when 

that attack happened, and I joined with Republicans and Democrats and virtually every Member of this Congress to try to give 

you the tools that you said you needed for us to go after al Qaeda, 

and especially to go after Osama bin Laden, the man that we all 

understood masterminded the attack and the man who is still at 

large. 

Now, back to my question. Did you come to the conclusion that 

you had to have this warrantless wiretapping of Americans inside 

the United States to protect us before the President signed the resolution on September 18, 2001. You were the White House Counsel 

at the time. 

Attorney General GONZALES. What I can say is that we came to 

a conclusion that the President had the authority to authorize this 

kind of activity before he actually authorized the activity. 

Senator LEAHY. When was that? 

Attorney General GONZALES. It was subsequent to the authorization to use military force. 

Senator LEAHY. When? 

Attorney General GONZALES. Sir, it was just a short period of 

time after the authorization to use military force. 

Senator LEAHY. Was it before or after NSA began its surveillance 

program? 

Attorney General GONZALES. Again, the NSA did not commence 

the activities under the terrorist surveillance program before the 

President gave his authorization, and before the President gave the 

authorization, he was advised by lawyers within the administration 

that he had the legal authority to authorize this kind of surveillance of the enemy. 

Senator LEAHY. So NSA didn’t do this until the President gave 

them the green light that they could engage in warrantless wiretapping of Americans inside the United States under the circumstances you described in your earlier testimony? 

Attorney General GONZALES. Of course, Senator, the NSA has 

other authorities to engage in electronic surveillance—

Senator LEAHY. I understand that. 

Attorney General GONZALES [continuing]. And I am told that 

they—

Senator LEAHY. I am talking about this specific program. 

Attorney General GONZALES. And I am told they took advantage 

of those authorities, but it is my understanding—and I believe this 

to be true—that the NSA did not commence the kind of electronic 

surveillance which I am discussing here today prior to the President’s authorization. 

Senator LEAHY. The President has said publicly that he gave 

about 30 of these authorizations, having held off for a period of 

time, I think, when the administration heard the New York Times 

was looking into it. But you were White House Counsel. Did the 

21

President give his first authorization before or after Attorney General Ashcroft met with us and gave us the proposals from the administration which ultimately went into the USA PATRIOT Act? 

Attorney General GONZALES. Sir, I don’t know. I don’t know 

when he gave you those proposals. 

Senator LEAHY. Well, we enacted the USA PATRIOT Act in October 2001, and you were there at the signing ceremony. We used 

the—we tried to encompass those things that the administration 

said they needed. Was the first one of the President’s authorizations done before he signed the USA PATRIOT Act? 

Attorney General GONZALES. Sir, I would have to go back and 

check. I don’t know. 

Senator LEAHY. OK. You are going to be back here this afternoon. Please check because I will ask you this question again, and 

you will have a chance to ask—I am looking around the room. You 

have an awful lot of staff here. Let’s have that answer. You were 

there when he signed the Act. Let us know when his first authorization was, whether it was before or after he signed that Act. 

Now—

Attorney General GONZALES. Sir, may I make a statement? We 

believe the authorization to use military force constituted a statutory grant of authority to engage in this kind of surveillance, and, 

therefore, it wouldn’t be necessary to seek an amendment to FISA 

through the PATRIOT Act. 

Senator LEAHY. OK. My question still remains, and like Senator 

Specter, I am trying to ask basically things you could answer yes 

or no. You talk about the authorization for use of military force. We 

have a chart up over there that says that, ‘‘The President is authorized to use all necessary and appropriate force against those 

nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred September 11, 2001, or harbored such organizations or persons in 

order to prevent any future acts of international terrorism against 

the United States by such nations, organizations, or persons.’’

Now, basically what you are saying is that Congress must be understood to have authorized the President to do it, not that we actually did but that we must have understood it. 

Now, this authorization is not a wiretap statute. I was a prosecutor. Senator Specter was a prosecutor. A lot of other prosecutors 

are here. We know what a wiretap statute looks like. This is not 

it. 

So let me ask this: Under that logic, is there anything to stop 

you from wiretapping without a warrant somebody inside the 

United States that you suspect of having al Qaeda connections? 

Attorney General GONZALES. Clearly, Senator, that is not what 

is going on here, first of all. The President has authorized a much 

more narrow program. We are always, of course, subject to the 

Fourth Amendment, so the activities of any kind of surveillance 

within the United States would, of course, be subject to the Fourth 

Amendment. 

Senator LEAHY. Well, Mr. Attorney General, we are getting the 

impression that this administration is kind of picking and choosing 

what they are subject to, can you show us in the authorization for 

22

use of military force, what is the specific language you say is authorized in wiretapping of Americans without a warrant? 

Attorney General GONZALES. Sir, there is no specific language, 

but neither is there specific language to detain American citizens, 

and the Supreme Court said that the words ‘‘all necessary and appropriate force’’ means all activities fundamentally incident to waging war. 

Senator LEAHY. But there was not a law—they did not have a 

law specifically on this. 

Attorney General GONZALES. Sure they did, sir. 

Senator LEAHY. If you use the Jackson test, they have a law on 

wiretapping. It is called FISA. It is called FISA. And if you do not 

like that law, if that law does not work, why not just ask us to 

amend it? 

Attorney General GONZALES. Sir, there was a law in question in 

Hamdi. It was 18 USC 4001(a), and that is, you cannot detain an 

American citizen except as authorized by Congress. And Hamdi

came into the Court saying the authorization to use military force 

is not such a permission by Congress to detain an American citizen, and the Supreme Court, Justice O’Connor said, even though 

the words were not included in the authorization, Justice O’Connor 

said Congress clearly and unmistakably authorized the President 

to detain an American citizen, and detention is far more intrusive 

than electronic surveillance. 

Senator LEAHY. Let me ask you this: under your interpretation 

of this, can you go in and do mail searches? Can you open firstclass mail? Can you do black-bag jobs? And under the idea that you 

do not have much time to go through what you describe as a cumbersome procedure, but most people think it is a pretty easy procedure, to get a FISA warrant, can you go and do that, of Americans? 

Attorney General GONZALES. Sir, I have tried to outline for you 

and the Committee what the President has authorized, and that is 

all that he has authorized. 

Senator LEAHY. Did it authorize the opening of first-class mail of 

U.S. citizens? That you can answer yes or no. 

Attorney General GONZALES. There is all kinds of wild speculation about what the—

Senator LEAHY. Did it authorize it? 

Chairman SPECTER. Let him finish. 

Attorney General GONZALES. There is all kinds of wild speculation out there about what the President has authorized, and what 

we are actually doing. And I am not going to get into a discussion, 

Senator, about—

Senator LEAHY. Mr. Attorney General, you are not answering my 

question. I am not asking you what the President authorized. Does 

this law—you are the chief law enforcement officer of the country—

does this law authorize the opening of first-class mail of U.S. citizens? Yes or no, under your interpretation? 

Attorney General GONZALES. Senator, I think that, again, that is 

not what is going on here. We are only focused on communications, 

international communications, where one party to the communication is al Qaeda. That is what this program is all about. 

Senator LEAHY. You have not answered my question. 

23

Well, Mr. Chairman, I will come back to this, and the Attorney 

General understands there are some dates he is going to check during the break, and I will go back to him. 

Chairman SPECTER. Thank you, Senator Leahy. 

Senator Hatch.

Senator HATCH. This is a very interesting set of issues, and a lot 

of constitutional issues, for people who are watching this. We have 

got, in addition to all kinds of constitutional issues about interpreting statutes, you have got the canon of constitutional avoidance 

here, that is a very important rule in constitutional law. You have 

got the Vesting Clause, vesting power in the President. You have 

got inherent Executive authority that people seem to just brush 

aside here. They will talk in terms of, well, Congress is co-equal 

with the President, but they do not ever really talk in terms of the 

President being co-equal with the Congress, or to pass laws, you 

have got the various canons of statutory interpretation. All of these 

are here, and it makes this a very interesting thing. 

But let me just ask you some specific questions here. It is my understanding, as I have reviewed this, and as I have looked at a lot 

of the cases, that virtually all of the Federal Courts of Appeal that 

have addressed the issue, have affirmed the President’s inherent 

constitutional authority to collect foreign intelligence without a 

warrant. Is that a fair statement? 

Attorney General GONZALES. It is a fair statement, Senator, that 

all of the Court of Appeals that have reviewed this issue have concluded that the President of the United States has the authority, 

under the Constitution, to engage in warrantless searches consistent with the Fourth Amendment for purposes of gathering foreign intelligence. 

Senator HATCH. That is what the Katz v. U.S. case seemed to 

say, is it not, that wiretapping to protect the security of the Nation 

has been authorized by successive Presidents; is that correct? 

Attorney General GONZALES. It is certainly the case that successive Presidents, particularly during a time of war, have authorized 

warrantless searches. 

Senator HATCH. And you are relying on the Hamdi case as well, 

where a majority of the Court basically authorized the President 

exceptional powers under the Authorized Use of Military Force 

Statute? 

Attorney General GONZALES. I would not say they are exceptional 

powers. I think that they are traditional powers of the President 

in a time of war. 

Senator HATCH. Then U.S. v. Truong. That was a 1983 case. 

Attorney General GONZALES. Yes. Once again, the Court finding 

that the President of the United States does have the inherent authority to engage in warrantless searches, consistent with the 

Fourth Amendment, for purposes of gathering foreign intelligence. 

Senator HATCH. That was the case after the enactment of the 

FISA law, right? 

Attorney General GONZALES. It was a case after the enactment 

of FISA, but I think to be fair, I do not think the Court did a rigorous analysis about how FISA affects the analysis, but there was 

a decision by the Court that the President had the inherent authority. 

24

Senator HATCH. That is the important part of the case, as far as 

I am concerned. U.S. v. Butenko. It is a 1974 case, before FISA. 

U.S. v. Brown, U.S. v. U.S. District Court, and the so-called Keith

case. 

Attorney General GONZALES. The Keith case was where the 

Court, for the first time, said that electronic surveillance, it would 

be subject—electronic surveillance for domestic security purposes is 

subject to the Fourth Amendment. 

Senator HATCH. Haig v. Agee, that is a 1981 case, again, after 

FISA, that matters intimately related to foreign policy and national 

security are rarely proper subjects for judicial intervention. That is 

a recognition that the President has to make some decisions, right? 

Attorney General GONZALES. Right. If I could just followup, Senator. My statement on the Keith case where the Court did say that 

electronic surveillance for purposes of domestic security would be 

subject to warrant requirements under the Fourth Amendment. 

The Court expressly made clear that they were not talking about 

electronic surveillance for foreign intelligence purposes. They were 

only talking about electronic surveillance for domestic security purposes. 

Senator HATCH. What about The Prize Cases, they are very wellknown cases, and culminating in the case that quotes The Prize 

Cases in Campbell v. Clinton. Attorney General GONZALES. Again, there are a number of cases 

that recognize the President’s inherent constitutional authority, 

particularly in a time of war—

Senator HATCH. And the President’s independent authority; is 

that correct? That is what Campbell v. Clinton says. 

Attorney General GONZALES. To engage in surveillance in order 

to protect our country. 

Senator HATCH. In fact, there is a 2002 case, In re: Sealed Cases, right? 

Attorney General GONZALES. In re: Sealed Cases, I said in my 

statement is—

Senator HATCH. I mean that is a case decided by the FISA Court 

of Review, the actual FISA Court, right? 

Attorney General GONZALES. The FISA Court of Review was created by Congress to review the decisions by the FISA Court. In 

that decision, in that case, the FISA Court of Review acknowledged 

that these cases by other Circuit Courts, that the President does 

have the inherent authority, and the FISA Court of Review said, 

assuming that to be true, that FISA could not encroach upon the 

powers of the President. 

Senator HATCH. They could not encroach on the President’s constitutional powers. 

Attorney General GONZALES. That is correct. 

Senator HATCH. So people who are wildly saying that the President is violating the law are ignoring all of these cases that say 

that—at least imply—that he has the inherent power to be able to 

do what he should to protect our Nation during a time of war? 

Attorney General GONZALES. And I want to emphasize, Senator, 

this is not a case where we are saying FISA—we are overriding 

FISA or ignoring FISA. Quite the contrary. We are interpreting the 

authorization to use military force as a statutory grant—

25

Senator HATCH. You use FISA all the time, don’t you? 

Attorney General GONZALES. FISA is an extremely important tool 

in fighting the war on terror. I know today there is going to be 

some discussion about whether or not we should amend FISA. I do 

not know that FISA needs to be amended, per se, because when 

you think about it, FISA covers much more than international surveillance. It exists even in peacetime. And so when you are talking 

about domestic surveillance during peacetime, I think the procedures of FISA, quite frankly, are quite reasonable, and so that is 

one of the dangers of trying to seek an amendment to FISA, is that 

there are certain parts of FISA that I think provide good protections. And to make an amendment to FISA in order to allow the 

activities that the President has authorized, I am concerned will 

jeopardize this program. 

Senator HATCH. It may even encroach on the inherent powers of 

the President, right? 

Attorney General GONZALES. Yes, sir. 

Senator HATCH. Let me just say this to you: as I view your arguments, we are faced with a war unlike any other war we have ever 

been in. We are faced with a war of international terrorists. That 

is one reason we did the PATRIOT Act was to bring our domestic 

criminal laws up—excuse me—our international antiterrorism laws 

up to the equivalent of domestic criminal laws. And you are saying 

that—and I have to say I find some solace in this—you are saying 

that when Congress, through a joint resolution, authorized the use 

of military force, gave the President these wide powers that are 

much wider than the ordinary single sentence declaration of war 

up through World War II, which was the last one if I recall it correctly, that that statute allowed you, coupled with inherent powers 

of the President, to be able to go after these terrorists before they 

hit us again? 

Attorney General GONZALES. This is an example of Congress exercising its Article I powers to pass legislation, so the President, in 

exercising his inherent authorities under Article II, has all the authority that he needs to fight al Qaeda. 

Senator HATCH. The Authorized Use of Military Force Resolution, which was a joint resolution of both Houses of Congress, declared that the Nation faces, ‘‘an unusual and extraordinary 

threat,’’ and acknowledges that the President has authority under 

the Constitution to take action to deter and prevent acts of international terrorism against the United States and provides that the 

President is authorized ‘‘to use all necessary and appropriate force’’ 

against those he determines are linked to the September 11th attacks. 

That sweeping language goes a lot further than the usual single 

sentence declaration of war, right? 

Attorney General GONZALES. It is a very broad authorization 

which makes sense. I do not think anyone in those days and weeks, 

certainly not in the Congress, were thinking about cataloguing all 

of those authorities that they wanted to give to the President. I 

think everyone expected the President of the United States to do 

everything he could to protect our country, and the Supreme Court 

has said that those words, ‘‘all necessary and appropriate force’’ 

mean that the Congress has given to the President of the United 

26

States the authority to engage in all the activities that are fundamental and incident to waging war. 

Senator HATCH. So you are relying on an Act of Congress, a joint 

resolution. You are relying on the inherent powers of the President 

to protect our borders and to protect us, and you are relying on the 

Fourth Amendment which allows reasonable searches and seizures 

in the best interest of the American public; is that a fair analysis? 

Attorney General GONZALES. That is a fair analysis, yes, sir. 

Senator HATCH. My time is up, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Hatch. 

Senator Kennedy. 

Senator KENNEDY. Thank you, Mr. Chairman. I think the final 

comments about all of us desiring to protect our country is something which is common. We certainly respect your strong dedication 

and commitment to that, Attorney General. 

Attorney General GONZALES. Thank you, Senator. 

Senator KENNEDY. I think all of us remember the time of 9/11. 

I certainly do, I was with Mrs. Bush just before her testimony at 

an education hearing. It is a moment that is emblazoned in all our 

minds. 

I want to approach this in a somewhat different way. I am very 

concerned about the whole issue in question if you are not right legally. Now, you make a very strong case in your presentation here 

about the authority which you are acting on. You talk about the 

authorization by the Congress. You talk about inherent power. You 

talk about the President having the authority and the power to do 

this. But there is, of course, a very significant legal opinion to the 

contrary. There was within your Department, thoughtful lawyers 

who questioned it, constitutional authorities that have questioned 

it. 

So we are taking really a risk with national security, which I 

think is unwise. We are sending the wrong message to those that 

are in the front lines of the NSA, that maybe someday they may 

actually be prosecuted, criminally or civilly. We are sending a message to the courts, that perhaps the materials that we are going 

to take from eavesdropping or signal intelligence, may not be used 

in the courts, in prosecutions against al Qaeda, people we really 

want to go after, because it was not done legally. We are sending 

a message to the telephone companies that they may be under assault and attack as well. There are already cases now brought by 

individuals against the telephone companies. We have to get it 

right, because if we do not get it right, we are going to find that 

we have paid a very harsh price. Some of the toughest, meanest 

and cruelest members of al Qaeda may be able to use illegality in 

the court system to escape justice, maybe or maybe not. But why 

take a chance? 

We were facing the issue of electronic surveillance at another 

time, in 1976, with Attorney General Ed Levi and President Ford. 

They followed a much different course than you have followed. Ed 

Levi came and consulted with us. Members of this Committee went 

down and visited the Justice Department on four different occasions. The memoranda that we have from that period of time, the 

Buchen memoranda which are part of the record, the concerns that 

the Attorney General had about getting it right in terms of elecVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
27

tronic surveillance, uncertainty in courts, validity of evidence, cooperation of the phone companies. And in a series of memoranda 

that go to the President of the United States and discussions that 

were actually held with Henry Kissinger, Don Rumsfeld, Ed Levi, 

Brent Scowcroft, George Bush, lengthy discussions with others, finally, the Attorney General said the main concern was whether 

this legislative initiative would succeed or whether, as some feared, 

the legislation which is actually passed would depart in objectionable ways, so that they were not sure about what Congress would 

do. But they dealt with the Congress and they got FISA. 

He later goes on to say, that already the Attorney General has 

found key members of the Senate Judiciary receptive to the legislation. And then finally, ‘‘the Attorney General is strongly of the 

opinion that you,’’ the President, ‘‘should support the legislation as 

drafted. If you feel any hesitancy, I’ll come by and brief you.’’

This is what we had 27 years ago: an Attorney General that 

came up to the Judiciary Committee, had them come down and 

work out FISA, and it passed with one dissenting vote in the U.S. 

Senate. We might not have gotten it right, but certainly for that 

period of time, that it got it right. 

The question that I have for you is, why did you not follow that 

kind of pathway which was so successful at a different time? We 

had a Republican President and a Republican Attorney General. 

We are talking about electronic surveillance. And as you know from 

the FISA, there are very sensitive provisions that were included in 

there that were directed against foreign nationals that this Committee was able to deal with, and did so in a responsible way. Why 

didn’t you follow that pattern? 

Attorney General GONZALES. Sir, the short answer is, is that we 

did not think we needed to, quite frankly. I have tried to make 

clear today that we looked at this issue carefully, decided that neither the Constitution nor FISA, which contemplated a new statute, 

would prohibit this kind of activity from going forward. 

I might also say this is a little different time from what existed 

in 1976. Of course, we are at war, and we have briefed certain 

Members of Congress. So it is not entirely true that we did not 

reach out to the Congress and talk—certain Members of the Congress and talk to them about this program and about what we were 

doing. 

Senator KENNEDY. The point, I would say, is that we were facing 

a nuclear threat. We have got terrorism now, but it was a nuclear 

threat then. The cold war was in full flow at that time. It was a 

nuclear threat at that time. 

And you know what Attorney General Levi did? He took a day 

and a half to have outside constitutional authorities advise him on 

the questions of the constitutionality of the legislation, a day and 

a half. Now, did you talk to any outside authorities—not inside authorities that are going to give you, quite frankly, probably what 

you want to hear—but did you check any—the reason I question 

this, General, is because we have been through the Bybee memorandum, we have been through torture memoranda, where you and 

the OLC and the White House Counsel thought that the Bybee 

memorandum was just fine. Then we find out, during the course 

28

of your hearings, that it was not fine, and it was effectively repealed, a year and a half after it was in effect. 

So it is against that kind of background of certainty, of your view 

about its legality, and in-house review of the legality. Some of us 

would have wondered whether you took the steps that an Ed Levi, 

Republican Attorney General, on the same subject, was willing to 

take, to listen to outside constitutional authority, because as we 

have seen subsequently, you have had difficulty in your own Department and you have had substantial difficulty with constitutional authorities and others who might not believe that you are 

correct. If you are correct, we do not have a problem. If you are not 

correct, then it is a step back in terms of national security. 

My question to you is, looking at the national security issue, 

would we not be in a stronger position if you had come to the Congress and said, ‘‘Let’s get the kind of legislative authority that we 

need, rather than take a chance.’’ Wouldn’t our national security 

have been better defended if we did not have any question as to 

the legality of this issue? Wouldn’t the people in the front lines of 

our national security be better protected, and our court system better defended? And when we are able to get those al Qaeda individuals, and they know they do not have any loopholes by appealing 

illegal eavesdropping, maybe then they would begin to talk and try 

to make a deal. Maybe that would enhance our national security 

as well. 

Attorney General GONZALES. Well, sir, you have said a lot, so I 

do not know—

Senator KENNEDY. Yes, it is short time. 

Attorney General GONZALES. Let me just say you are absolutely 

right, we have got to have a very clear message, and we cannot be 

wrong on this. I do not think that we are wrong on this. Are we 

worried about the front line people down at NSA? Of course we are. 

That is why the President, the day after the story ran in the New 

York Times, went out to the American people to reassure them this 

was not a situation where you had an agency running amok, that 

he had authorized this activity, and it was very narrowly tailored. 

In terms of whether or not, are we concerned about activities 

that may jeopardize investigations or prosecutions? Absolutely, we 

are. That is the last thing we want to do. We do not believe this 

program is—we believe this program is lawful. We do not believe 

that prosecutions are going to be jeopardized as a result of this program. Obviously, we are in litigation now, so I do not want to say 

much more than that, but, of course, we ought to be operating in 

a way where we are doing what we need to do to protect our investigations and to protect our prosecutions, and I think that we are 

doing that. 

Senator KENNEDY. My time is just about up. Thank you very 

much, General. 

Chairman SPECTER. Thank you very much, Senator Kennedy. 

I want to acknowledge the presence in the audience of Ms. Deborah Burlingame, who is the sister of Captain Charles F. Burlingame, the pilot on American Airlines Flight 77, which crashed 

into the Pentagon. 

Would you like a break? 

29

Attorney General GONZALES. If you are offering a break, Mr. 

Chairman, yes. 

Chairman SPECTER. Well, I am not going to offer you one unless 

you want one. 

[Laughter.] 

Attorney General GONZALES. I am fine, sir. I will defer to you, 

Mr. Chairman. 

Senator LEAHY. Take the break. 

Attorney General GONZALES. I will take a break. 

Chairman SPECTER. Let’s take a vote here. 

[Laughter.] 

Chairman SPECTER. Ten-minute break. 

[Recess from 11:06 a.m. to 11:14 a.m.] 

Chairman SPECTER. Before proceeding, I would like to acknowledge the presence of Ms. Monica Gabrielle and Ms. Mindy 

Kleinberg whose husbands were in the World Trade Center at the 

time of the 9/11 attack. 

Mr. Attorney General, thank you for rejoining us, and we turn 

now to Senator Grassley. 

Senator GRASSLEY. Thank you very much. 

I am going to start with something that is just peripheral to the 

issues we are on, but it does deal with our national security, and 

it is the leak of this information to New York Times. I am greatly 

concerned about this, and these leaks could be putting our Nation’s 

safety into serious jeopardy. Could you tell us what is being done 

to investigate who leaked this national security information, and 

whether the Department of Justice will initiate a prosecution of an 

individual leaking the information? 

Attorney General GONZALES. Senator, we have confirmed—the 

Department has initiated an investigation into possible crimes 

here, and consistent with Department practice, I am not going to 

talk much further about an ongoing investigation. Obviously, we 

have to look at the evidence and if the evidence shows that a crime 

has been committed, then, obviously, we will have to make a decision about moving forward with a prosecution. 

Senator GRASSLEY. I do not blame you for this, but I do not hear 

as much about public outcry about this leak as I did about Valerie 

Plame and the White House disclosures of her—presumed disclosures of her identity as a CIA agent, and to me, that is a two-bit 

nothing compared to this sort of issue that we have before us or 

this information being leaked to the press. 

In the followup commentaries, reading the newspapers and TV, 

you get the impression that this is some sort of an LBJ–J. Edgar 

Hoover operation that is designed to skirt the law to spy on domestic enemies. And I think you are making very clear the opposite, 

that this is only concerned about the national security of the 

United States, and that is where the focus should be. 

The constant repetition on the news media of the term ‘‘domestic 

spying,’’ as opposed to spying and electronic surveillance of somebody outside the United States connected with an organization that 

has as their goal the killing of Americans, or the threatening of 

America, or the destruction that happened on September the 11th 

is entirely two different things, but when domestic spying is often 

30

used, you can understand, General, the people having outrage 

maybe at what is going on. 

Also, for my colleagues on this Committee, it seems to me that 

if we are doing our job right, we have got some problems. Because 

let’s just say the Attorney General is wrong in the statutory and 

constitutional authority by which they proceeded to do what they 

are doing. And yet, Members of Congress were told about this program over a period of 4 years, a few Members of Congress were, 

the appropriate ones were. Then all of a sudden it hits the New 

York Times, and all of a sudden, then that story breaks, Congressmen change their tune from the one sung in private for 4 years, 

to outrage that this is going on. 

So if Senator Grassley, who is not a member of that elite group 

that has to be concerned about oversight of foreign intelligence 

knows about it, and does not tell—if I were a member and did not 

tell my colleagues about it, and then express that outrage, where 

have I been as a member of that group for the last 4 years? If 

something is wrong after the New York Times reported it, there 

had to be something wrong before the New York Times reported it. 

All of a sudden I see Members of Congress who had that responsibility, if they really, sincerely think it is wrong today, that were 

caught not doing their job of congressional oversight as they should 

have, informing the other Members of Congress that there is really 

something wrong that the President is doing here. 

So I think we in Congress have to do some looking, internal looking of whether or not we are doing our job as well of oversight. 

I always to want to remind people in the United States that 

what we are talking about here today is to make sure that September the 11th does not happen again, and somehow we tend to 

have short memories. We ought to remember that it happened in 

Madrid, it happened in London, it happened in Amman, it happened in a resort in Egypt, it happened in Bali twice, and it has 

happened here. It can happen again. It seems to me that what you 

are trying to tell us is the President is determined to make sure 

that it does not happen in the United States again, and that is 

what this surveillance is all about. Yes? 

Attorney General GONZALES. Senator, he is absolutely determined to do everything that he can, under the Constitution and the 

laws of this country, to prevent another September 11th from happening again. 

Senator GRASSLEY. And I think you are telling us that in the 

case of people giving some information, that it is very necessary to 

act with dispatch, that acting with dispatch or not can be a matter 

of life or death for Americans. 

Attorney General GONZALES. Absolutely. If we get information 

that may lead us to other information about a terrorist operating 

in this country, we may not have a matter of days or weeks or 

months, which is sometimes the case with respect to a FISA application, but we may not have that much time to begin surveillance. 

And if we wait—and again, FISA has been a wonderful tool and 

has been very effective in the war on terror. But there are certain 

circumstances where the requirements of FISA present challenges, 

and if we wait, we may lose valuable information that may help us, 

it may help us get information that might prevent another attack. 

31

Senator GRASSLEY. I had an opportunity to speak to you on the 

phone recently, and I asked you to come ready to give us some specific instances of when past Presidents have ordered warrantless 

intelligence surveillance in the prosecution of a war or to otherwise 

fulfill the Commander in Chief’s duties. I think that as the American public hears examples of how Democrat Presidents and Republican Presidents alike have done similar things, they may begin to 

see that this program, in a different light, particularly in regard to 

the Presidents’ over 225 years use of the exercise of the power of 

Commander in Chief. 

Attorney General GONZALES. I gave in my opening statement, 

Senator, examples where President Washington, President Lincoln, 

President Wilson, President Roosevelt, have all authorized electronic surveillance of the enemy on a far broader scale, without any 

kind of probable cause standard, all communications in and out of 

the country. So, for example, President Wilson, World War I, he relied upon his constitutional authority, inherent constitutional authority, and a use of force resolution, declaration of war, very consistent with what we are dealing with today. 

Senator GRASSLEY. And December the 8th, ’41, the day after 

Pearl Harbor, FDR ordered the FBI to intercept any communications between our country and any other country, whether it be by 

mail or any other source. 

Attorney General GONZALES. President Roosevelt did authorize 

very broad surveillance of the enemy. 

Senator GRASSLEY. It is well established that the President has 

a number of inherent constitutional powers. Today’s hearing and 

the two that will follow will give the Senate an opportunity to analyze the President’s case on constitutionality. When Moussaoui was 

arrested, the FBI could not look at his computer files and telephone 

contacts. That has been changed so you can have that sort of communication now. Could you tell us in the Department of Justice 

white paper entitled Legal Authority Supporting the Activities of a 

President doing this, the administration argued that ‘‘The President’s power to authorize the NSA activities is at its zenith,’’ citing 

Justice Jackson’s concurrence in the Sawyer case. I guess you 

would call it the Youngstown case. 

Would you, please, discuss the framework set by Justice Jackson 

for determining how much deference a President should be given, 

including why the administration believes that its power in this regard is at its zenith? 

Attorney General GONZALES. Yes, sir. I will try to in the time remaining. Justice Jackson—

Senator GRASSLEY. All I have to do is finish my question before 

the time is up. 

Attorney General GONZALES. Pardon me, Senator. Justice Jackson laid out a three-part test in terms of determining Presidential 

power. The first part is where the President is exercising his authority with the concurrence in essence of Congress. We believe 

that is what is occurring here. We believe the authorization to use 

military force is such a concurrence by Congress for the President 

to engage in this kind of activity, and therefore, we believe the 

President’s power is at its zenith in this first category. 

32

The second category is where the President is exercising his constitutional authority in the absence of any congressional action. 

And there Justice Jackson talked about being sort in the zone of 

twilight and trying to ascertain where the limits are between Presidential authority and congressional authority. That is not the case 

here. 

The third part was where the President is acting in contravention—not in contravention, but in a way that is incompatible with 

congressional action. In that particular case, you looked at the 

President’s constitutional authority minus whatever constitutional 

authority Congress has. 

So the question is in which category we are in. We believe we 

are in the first category, that the Congress has, through the authorization to use military force, provided its support for Presidential action. 

If in fact that is not the case, then we are in the third category, 

and I submit, Senator, that this case is very different from Youngstown, where we talked about the President of the United States 

taking over domestic industry. We are talking here about a core 

constitutional action by the President, and a long history of Presidents engaging in electronic surveillance of the enemy. So this is 

a much different situation. 

My judgment is, while these are always very hard cases, and 

there is very little precedent in this matter, I believe that even 

under the third part, that the President does have the constitutional authority. I will just remind the Committee that Chairman 

Roberts just recently submitted a letter to the Committee, and he, 

himself, opined that he also believes that if we were in the third 

category, that he believes that the President does, would have the 

constitutional authority to engage in these kinds of activities. 

Chairman SPECTER. Thank you, Senator Grassley. 

Without objection we will admit into the record the letter from 

Senator Pat Roberts, Chairman of the Intelligence Committee, to 

Senator Leahy and to myself, dated February 3rd of this year. 

Senator Biden.

Senator BIDEN. Thank you, Mr. Chairman. I hope Chairman Roberts will see it is his responsibility to also hold extensive hearings 

in a forum that is more appropriate, totally secret. Thus far, I am 

told, he intends on not holding any, which I find bordering on lacking any responsibility in terms of congressional oversight, but I 

hope he will do as you have done here. 

General, there are two real issues here in my view, and I am 

going to focus on one. That is the President’s reassurance as to 

what is exactly happening, where if in fact the only people being 

wiretapped or e-mails read are al Qaeda operatives contacting 

American citizens, I do not think you are going to find anybody in 

America saying, ‘‘Oh, my God, don’t do that.’’

What is really at stake here is the administration has made assertions in the past, where their credibility has somewhat been 

questioned. So it is not merely the constitutional reach you have, 

it is what is actually happening, what is actually going on. I am 

going to focus on that first, if I may. 

How will we know, General, when this war is over? 

33

Attorney General GONZALES. I presume the straightforward answer, Senator, is that when al Qaeda is destroyed and no longer 

poses a threat to the United States. Whenever that may be—we 

know it is not today. We know we are still at war today. We know 

we will probably be at war still tomorrow, and so we know it still 

continues today. 

Senator BIDEN. The truth is there is no definition of when we are 

going to know whether we have won, because al Qaeda, as the 

President points out, has mutated into many other organizations 

that are not directly dealing with bin Laden and are free agents 

themselves; is that correct? 

Attorney General GONZALES. It is certainly true that there are a 

number of terrorist groups who share many of the same objectives 

of al Qaeda in terms of destroying America. 

Senator BIDEN. So as long as any of them are there, I assume 

you would assert you have this plenary authority? 

Attorney General GONZALES. Well, Senator, obviously, if Congress were to take some kind of action to say the President no 

longer has the authority to engage in electronic surveillance of the 

enemy, then I think that would put us into the third part of Justice 

Jackson’s three-part test, and that would present a much harder 

question as to whether or not the President has the authority. As 

I have already indicated in response to Senator Grassley, I believe 

that under those circumstances—and again, it is a hard question, 

and it may have been irresponsible for me to offer up an opinion 

because I would like to have to study it. I would like the opportunity to study it. But I think the fact would present a much different case than what we had in Youngstown v. Sawyer. 

Senator BIDEN. Why if you—and I have read everything you have 

submitted, and I was here when FISA was written. I was a cosponsor. I was on the Intelligence Committee and on the Foreign Relations Committee, and as the Ranking Member of the Foreign Relations Committee, I was charged by the Democratic leadership to be 

part of the small group to write the authorization for the use of 

force, so I have been involved in this. Does not mean I am right, 

but I have been deeply involved. 

As I understand your reasoning, I do not understand why you 

would limit your eavesdropping only to foreign conversations. In 

other words, al Qaeda communicating from Algeria—I am making 

it up—or from France or Germany or wherever, to the United 

States. That is the assertion, it is only emanating from a foreign 

country, correct? 

Attorney General GONZALES. Yes, sir. 

Senator BIDEN. Why limit it to that? 

Attorney General GONZALES. The authorization of the program I 

am talking about—well, of course, that is a Presidential decision, 

and I believe, Senator—now I am purporting to speak for the President, but I believe it is because of trying to balance concerns that 

might arise that in fact the NSA was engaged in electronic surveillance with respect to domestic calls. So there was a decision made 

that this is the appropriate balance. There may be some in America, I suspect there are some in America who are saying, ‘‘Well, you 

know, if you’ve got reason to believe that you’ve got two members 

34

of al Qaeda talking to each other in America, my God, why aren’t 

you listening to their conversations?’’

Again, this was a judgment made that this was the right balance 

between the security of our country and protecting the privacy interests of Americans. 

Senator BIDEN. Well, the President said he would do everything 

under the law to prevent another 9/11. The communications that 

occurred within this country, not outside this country, which, in 

fact, brought about 9/11 would not be captured by the President’s 

efforts here. Is he refusing to do it for public relations reasons, for 

appearance reasons, or because he thinks he does not have the constitutional authority to do it? 

Attorney General GONZALES. I don’t believe that it is a question 

of constitutional authority. That analysis, quite frankly, had not 

been conducted. It is not a question of public relations. In his judgment, it was the appropriate thing to do given the circumstances 

that we find ourselves in. 

Senator BIDEN. Who determines what calls or e-mails are to be 

monitored? 

Attorney General GONZALES. The decisions as to which communications are to be surveilled are made by intelligence experts out 

at NSA. As I indicated, I believe, in response to an earlier question, 

these are individuals who are expert in al Qaeda’s aims, objectives, 

communications. I have heard General Hayden say that they are 

the best at what they do. They know about al Qaeda, and they 

would probably be in the best position, better than certainly any 

lawyer, in evaluating whether or not there are reasonable grounds 

to believe that this person is an agent or member of al Qaeda or 

an affiliated terrorist organization. 

Senator BIDEN. How many of them are there? 

Attorney General GONZALES. Senator, I do not know. 

Senator BIDEN. There are thousands of people who work for 

NSA. It would be useful for us to know. Are there two people? Five 

people? Twenty-five people? Two hundred and fifty people? A thousand people? 

Attorney General GONZALES. Senator, I don’t know the exact 

number of people out at NSA who are working on this program. As 

I indicated to you, the people that are making the decision about 

where the surveillance should occur are people that are experts 

with respect to al Qaeda. 

Senator BIDEN. Well, what are the guidelines? Are there any 

written guidelines they are bound by? 

Attorney General GONZALES. Senator, there are guidelines. There 

are minimization procedures. As you know, there are minimization 

procedures for the work of NSA with respect to its collection activities under FISA, with respect to its collection activities under 

12333, Executive Order 12333. There are minimization requirements that are generally comparable with respect to this program. 

I understand there is also a monthly sort of senior directors’ 

meeting, due diligence meeting out at NSA, where they talk about 

how the program is going. They evaluate how the program is going, 

try to identify if there are any problems. And so they spend a great 

deal of time making sure the program is being authorized in a way 

that is consistent with the President’s authorization. 

35

Senator BIDEN. By definition, you have acknowledged, though, 

the very minimization programs that exist under FISA you are not 

bound by. You have acknowledged that you are not bound by FISA 

under this program; therefore, are you telling me the minimization 

programs that exist under FISA as the way FISA is applied are adhered to? 

Attorney General GONZALES. OK. I am sorry if I was confusing 

in my response. What I was meaning to say is that there are minimization requirements. Those minimization requirements are basically consistent with the minimization requirements that exist with 

respect to FISA if FISA were to apply. 

Senator BIDEN. Would it be in any way compromise the program 

if you made available to the Intelligence Committee what those 

minimization procedures that are being followed are? 

Attorney General GONZALES. Well, of course, the minimization 

procedures themselves under 12333, and I believe perhaps under 

the FISA Court, are classified. I also believe they probably have 

been shared with the Intel Committee. 

Senator BIDEN. They have not, to the best of my knowledge. They 

have not been shared with the Intelligence Committee, to the best 

of my knowledge, unless you are talking about this very small 

group, the Chairman and the Ranking Member. 

Attorney General GONZALES. Senator, I am talking about the 

minimization procedures for 12333 and for FISA. 

Senator BIDEN. Let me be very precise. I have not heard of NSA 

saying to the Intelligence Committee, ‘‘We are binding ourselves as 

we engage in this activity under the minimization procedures of 

12333 as well as statutes.’’ I am unaware that that is written down 

or stated anywhere or been presented to the Intelligence Committee. Can you assure us that has been done? 

Attorney General GONZALES. No, Senator, I can’t assure you that. 

Senator BIDEN. Can you assure us, General, that you are fully, 

totally informed and confident that you know the absolute detail 

with which this program is being conducted? Can you assure us, 

you personally, that no one is being eavesdropped upon in the 

United States other than someone who has a communication that 

is emanating from foreign soil by a suspected terrorist, al Qaeda, 

or otherwise? 

Attorney General GONZALES. Senator, I can’t give you absolute 

assurance—

Senator BIDEN. Who can? 

Attorney General GONZALES [continuing]. The kind that you have 

asked for. Certainly General Hayden knows more about the operational details of this program. What I can give the American people assurance of is that we have a number of safeguards in place 

so that we can say with a high degree of confidence or certainty 

that what the President has authorized in connection with this program, that those procedures are being followed. 

Senator BIDEN. Mr. Chairman, my time is up. This is why the 

Intelligence Committee has a responsibility to be able to look at 

someone and have an absolute, guaranteed assurance that under 

no circumstance is any American being eavesdropped upon unless 

it is coming from foreign soil and a suspected terrorist, and do it 

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sented. I am not suggesting the Attorney General can do that. We 

have got to find out who can do that. 

Chairman SPECTER. Thank you, Senator Biden. 

Senator Leahy? 

Senator LEAHY. Mr. Chairman, just for Senator Biden’s round, 

you put into the record the letter from Senator Roberts that was 

sent to the two of us concerning the authority. I want to place in 

the record a letter from Bruce Fein, formerly a senior Justice Department official in the Reagan administration, basically responding to Senator Roberts’s letter. I mentioned earlier that Mr. Fein 

was very critical of this program. In fact, at that point, why don’t 

I just put in—I have a number of things here, if I could. 

Chairman SPECTER. Without objection, the letter from Mr. Bruce 

Fein will be made part of the record. And do you have other unanimous consent requests? 

Senator LEAHY. For other material regarding this hearing, if I 

might put them all in the record. 

Chairman SPECTER. Without objection, those materials will be 

made a part of the record. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. Thank you, Mr. Attorney General. 

I think it is very interesting how the argument over this program 

has evolved in the last several weeks from initial concerns about 

the program itself now to some very different questions. And I 

think it is a good evolution because I doubt, if we polled the members of this Committee today, that there would be anybody who 

would vote against the conduct of this particular kind of surveillance. 

There was then the suggestion that while the program is good, 

it is being conducted illegally. That was the charge, and I would 

submit a very serious charge, that the Ranking Member made earlier in his remarks. 

It seems to me that a little humility is called for by the members 

of this Committee, especially before we accuse the President of 

committing a crime, which is what illegal activity is. If our hearings with now-Justices Alito and Roberts demonstrated anything, 

I think it is that there are a lot of smart lawyers in Washington, 

D.C., other than those who are sitting here on this Committee. 

And in that regard, I appreciate the last couple of rounds of 

questions that were asked by Senators Kennedy, Biden, and Grassley because they got more into specifics about how we might have 

better oversight. 

Before I get into that, let me just ask four specific questions that 

I think you can answer very, very briefly. I am reminded, by the 

way—I told one of my staff the very first time I saw a murder trial 

before I went to law school, I was absolutely persuaded after the 

prosecution’s summation that this guy was guilty as could be. Then 

after his lawyers argued, I was absolutely certain that he was innocent. And by the time the prosecutor finished, I was once again 

convinced that maybe he was guilty—the bottom line being that 

with tough legal questions, good lawyers take both sides and there 

are two sides to every question and you should not prejudge. And 

that is what I think happened with regard to this program. Before 

37

you and others in the administration explained the legal rationale 

for it, there were people jumping to conclusions about its illegality. 

Now, I think you made four key points, and I just want to make 

sure that we have got them right. 

Your first key point was that Article II of the U.S. Constitution 

has always been interpreted as allowing the President to do what 

is necessary to conduct war, and that includes surveillance of the 

enemy. Is that right? 

Attorney General GONZALES. Yes, Senator. 

Senator KYL. Second, that when Congress passed the authorization of military force on September 18, 2001, we actually did two 

things in that resolution. First of all, we affirmed the President’s 

constitutional authority that I just spoke of. 

Attorney General GONZALES. Yes. 

Senator KYL. And, second, we granted authority that included 

the words ‘‘all necessary and appropriate force.’’

Attorney General GONZALES. Yes. 

Senator KYL. And your point has been that that activity has always included surveillance of the enemy and, in fact, that the FISA 

Court itself has said that—has commented on that inherent authority in a situation in which it involved the detention of an 

American citizen who was involved in terrorist activity. 

Attorney General GONZALES. That would be the Supreme Court, 

Senator, not the FISA Court. 

Senator KYL. The Supreme Court. I am sorry. 

Attorney General GONZALES. Yes, Senator. 

Senator KYL. And that also, your second point is, the statutory 

authorization is contemplated in the FISA language except as authorized by statute. 

Attorney General GONZALES. That is correct. We are acting in a 

way that the President has authorized activities that are consistent 

with what FISA anticipated. 

Senator KYL. Right. The third point is you talked a little bit 

about FISA and noted that in your view—and it is difficult to further discuss the point because you cannot discuss the detail of the 

program itself, but that the 1978 FISA law is really not well suited 

to the particular kind of program that is being conducted here, including the 72-hour provision of FISA. Is that correct? 

Attorney General GONZALES. That is correct, Senator, but I don’t 

want these hearings to conclude today with the notion that FISA 

has not been effective. And, again, I think a lot of the safeguards, 

some of the procedures in FISA make a lot of sense. When you are 

talking about a peacetime situation, particularly domestic surveillance—FISA also covers that kind of activity. And so when you are 

talking about amending FISA because FISA is broke, well, the procedures in FISA under certain circumstances I think seem quite 

reasonable. 

Senator KYL. And you continue to use FISA not only—well, you 

continue to use FISA including in regard to the war on terrorism. 

Attorney General GONZALES. Absolutely. 

Senator KYL. The fourth key point that you argued about the 

checks and balances in the program, the fact that it has to be reauthorized every 45 days by the President himself, that there has 

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38

lican leaders and Chairmen and Ranking Members, respectively, of 

the Intelligence Committees, and that there is extensive IG review. 

Is that correct? 

Attorney General GONZALES. That is correct. 

Senator KYL. And the Inspector General is what Inspector General? 

Attorney General GONZALES. This is the Inspector General for 

the NSA. 

Senator KYL. OK. In addition, you noted the two qualifications 

of the program: international communications involving al Qaeda 

or affiliated individuals. 

Attorney General GONZALES. That is correct, Senator. 

Senator KYL. And, finally, you noted that this was as interpreted 

by the NSA professionals. 

Now, I thought there were two particularly interesting lines of 

inquiry, and one was Senator Biden’s question about whether or 

not, if this program is really necessary, we shouldn’t try to evaluate 

whether it should also be applied to calls from al Qaeda terrorist 

A to al Qaeda B, though they happen to be in the United States. 

And it was my understanding you said that the analysis of that 

had not been conducted. Is that correct? 

Attorney General GONZALES. The legal analysis as to whether or 

not that kind of surveillance—we haven’t done that kind of analysis because, of course, the President—that is not what the President has authorized. 

Senator KYL. I understand that, but I would suggest that that 

analysis should be undertaken because I think most Americans 

now appreciate that this is a very important program. It might 

warn us of an impending attack. It could be that the attackers are 

already in United States, and, therefore, it could involve communication within the United States. Understanding the need to balance the potential intrusion on privacy of American citizens within 

the United States, you would want to have a very careful constitutional analysis, and certainly the President would not want to authorize such an activity unless he felt that he was on very sound 

legal ground. 

On the other hand, there is no less reason to do it than there 

is to intercept international communications with respect to a potential terrorist warning or attack. So I would submit that Senator 

Biden is correct and that this—at least the inference was in his 

question that this study should be accomplished, and I would think 

that it should. 

I also think that both he and Senator Grassley and Senator Kennedy to some extent talked about, well, what happens if we are 

wrong here? How can we be assured that there is no improper surveillance? And in this regard, I would ask you to think about it, 

and if you care to comment right now, fine. But this might hit you 

cold. 

It seems to me that you might consider either in the Presidential 

directive and the execution of that or even potentially in congressional legislative authorization some kind of after-action report, 

some kind of quarterly review or some other appropriate timeframe, maybe every 45 days, whatever is appropriate, to the eight 

people who are currently briefed in the Congress on questions such 

39

as whether the program acted as it was intended, whether it appeared that somebody might have been surveilled who under the 

guidelines should not have been, and if there ever were such a 

case, how it happened and what is done to ensure that it does not 

happen again, and whether there was any damage as a result of 

that; and also just generally whether the program is having the intended result of being able to demonstrate important information 

to the people that we charge with that responsibility. 

It seems to me that reporting on that kind of activity, including 

information about the guidelines to provide some additional assurance that it is being conducted properly, would be appropriately 

briefed to the Members of Congress. We do have an oversight responsibility, but we are not the only governmental entity with responsibility here. The President has critical responsibility, and I 

agree with those who say that should there be an attack and a review of all of this activity is conducted, the President would be 

roundly criticized if he had a tool like this at his disposal and did 

not utilize it to protect the people of the United States of America. 

Attorney General GONZALES. Senator, I have not been present at 

all the briefings with Members of Congress, but in connection with 

those briefings where I was present, there was discussion about requiring some of the types of issues that you have just outlined. I 

would be happy to take back your comments. 

Senator KYL. Thank you, Mr. Attorney General. 

Chairman SPECTER. Thank you, Senator Kyl. 

Senator Kohl? 

Senator KOHL. Thank you, Mr. Chairman. 

Mr. Attorney General, the administration and the Congress and 

the courts share a common goal: to protect the American people. 

We all believe that as we face the long-term threat from terrorism, 

we must work together to ensure that the American people are 

safe. We in Congress have our role to play by writing the laws that 

protect Americans, and you have your role executing those laws, 

and, of course, the courts have their role. 

As part of this effort against terrorism, we have drafted many 

laws to give the administration the powers that it needs, and I am 

hopeful that we can work together again to ensure that our laws 

are working to protect the American people. 

Mr. Attorney General, if terrorists are operating in this country 

or people in this country are communicating with terrorists, then, 

of course, we must collect whatever information we can. To accomplish this, the administration had three options, as you know. 

First, you could have followed the current law, which most experts 

believe gives you all the authority you need to listen to these calls. 

Second, if you thought the law inadequate, you could have asked 

Congress to grant you additional authority. Or, third, the course 

you followed, conduct warrantless spying outside current law and 

without new authorization. 

If you had the two options that would have given you unquestionable authority to monitor these calls and one whose legality 

was at best questionable, then why did you go for the most questionable one? Why not either follow the law or seek new laws? 

Attorney General GONZALES. Senator, I agree with you, we are 

a Nation of laws, and we do believe we are following the law. And 

40

we do believe that the Constitution allows the President of the 

United States to engage in this kind of surveillance. We also believe that the authorization to use military force represents a supplemental grant of authority by the Congress to engage in this kind 

of surveillance totally consistent with FISA. 

If you study carefully the white paper that we have submitted, 

we are not arguing that somehow FISA was amended or that we 

are somehow overriding FISA. That is not what we are talking 

about here. We are acting in a manner consistent with FISA. FISA 

contemplates another statute. The Congress passed another—provided an additional supplemental statutory grant of authority 

through the authorization to use military force. And so I totally 

agree with what you are saying. We should be acting—particularly 

in a time of war, I think it is good to have the branches of Government working together. It is good for the country. I believe that is 

what happened here. Congress exercised its Article I authorities to 

pass the authorization to use military force. That supplemented the 

President’s constitutional authorities as Commander in Chief, and 

we are working together—

Senator KOHL. Are you saying that there was never any debate 

within the administration at any level or Justice Department at 

any level about whether or not you were pursuing the right course? 

Attorney General GONZALES. Senator—

Senator KOHL. It is my understanding that there was debate. 

Attorney General GONZALES. Of course, there was a great deal of 

debate. Think about the issues that are implicated—

Senator KOHL. Well, but if there were debate—

Attorney General GONZALES. Of course, there was debate, Senator. Think about—if I may just finish this thought. Think about 

the issues that are implicated here. The very complicated Foreign 

Intelligence Surveillance Act, it is extremely complicated; the President’s inherent authority under the Constitution as Commander in 

Chief; the Fourth Amendment; the interpretation of the authorization to use military force. You have got a program that has existed 

over 4 years. You have multiple lawyers looking at the legal analysis. Of course, there is—I mean, this is what lawyers do. We disagree, we debate, we argue. 

At the end of the day, this position represents the position of the 

executive branch on behalf of the President of the United States. 

Senator KOHL. Well, with all of the debate we are going through 

today and leading up to today, it seems to me clear that there is 

a real question about the course you pursued. That is why we are 

here today, which it would seem to me justify asking the question, 

Why did you take the third option? And, of course, you have given 

your answer. But there are some of us that would question that answer. Let’s just move on. 

Attorney General GONZALES. Yes, Senator. 

Senator KOHL. Mr. Attorney General, if applying to the secret 

FISA Court is too burdensome, then would you agree to after-thefact review by the FISA Court and by Congress of the wiretaps 

used specifically in this program? At least in this way we can ensure going forward that the authority will never be abused by this 

or any other President? 

41

Attorney General GONZALES. Senator, obviously, we want to ensure that there are no abuses. The President has said we are 

happy to listen to your ideas about legislation. There is concern, 

however, that, of course, the legislative process may result—first of 

all, of course, we believe the President already has the authority 

and legislation is not necessary here. But the legislative process 

may result in restrictions upon the President’s—attempted restrictions upon the President’s inherent constitutional authority. He 

may not be able to protect the country in the way that he believes 

he has the authority to do under the Constitution. And then, finally, of course, the legislative process is one where it is pretty difficult to keep certain information confidential, again, because if you 

are talking about amending FISA, there are many aspects of FISA 

that make sense to me, they work well. Again, you are talking 

about—if you are talking about domestic surveillance during peacetime, I think having the kind of restrictions that are in FISA 

makes all the sense in the world. And so you are probably talking 

about a very narrowly tailored, focused amendment in FISA. And, 

again, I am not the expert on legislation, but we are talking potentially a very narrow-focused amendment of FISA. And I think I am 

concerned that that process will inform our enemies about what we 

are doing and how we are doing it. 

Subject to those concerns, of course, as the President said, we are 

happy to listen to your ideas. 

Senator KOHL. After-the-fact review by the FISA Court, you don’t 

have any problem with that? 

Attorney General GONZALES. Again, Senator, we are happy to listen to what you—happy to consider it. 

Senator KOHL. All right. Mr. Attorney General, is there anything 

the President cannot do in a time of war in the name of protecting 

our country? We saw that the Justice Department changed its position on torture, but are there other limits to the President’s power? 

Or can, in your opinion, the President assign to himself without an 

Act of Congress any powers that he believes are necessary? 

Attorney General GONZALES. Well, of course, we are not talking 

about acting outside of an Act of Congress here. We think in this 

case the President has acted consistent with an Act of Congress. 

And, of course, there are limits upon the President of the United 

States. The Constitution serves as a limit of the President. The 

President’s authorities under Article II as Commander in Chief are 

not limitless. Obviously, Congress has a role to play in a time of 

war. The Constitution says Congress can declare war. The Constitution says it is Congress’s job to raise and support armies. The 

Constitution says it is Congress’s job to provide and maintain navies. It is the role of Congress to provide rules regarding capture. 

And so in the arena of war, it is not true that the President inhibits—or works in that arena to the exclusion of Congress. Quite 

the contrary, the Framers intended that in a time of war, both 

branches of Government have a role to play. 

Senator KOHL. If the administration investigates an American 

for ties to terrorism using this program and finds nothing—and, of 

course, news reports have indicated that this happens the vast majority of the time—then what is done with the information colVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
42

lected? Does the administration keep this information on file somewhere? Is it disposed of? What happens with this information? 

Attorney General GONZALES. Well, let me tell you that every 

morning I receive an intelligence briefing out at the FBI, and there 

are numbers of possible threats against the United States. Many 

of them wash out, thank God. The fact that they wash out does not 

mean that we should stop our intelligence collection. Intelligence is 

not perfect. 

In terms of what is actually done with that information, what I 

can say is, again, I cannot talk about specifics about it, but information is collected, information is retained, and information is disseminated in a way to protect the privacy interests of all Americans. 

Senator KOHL. So you are saying the information, even if it turns 

out to be without any correctness, the information is retained? 

Attorney General GONZALES. Senator, I cannot provide any more 

of an answer than the one I just gave. In terms of there are minimization requirements that exist, and we understand that we have 

an obligation to try to minimize intrusion into the privacy interests 

of Americans, and we endeavor to do that. 

Senator KOHL. Just to go back to what Senator Biden and then 

Senator Kyl referred to about al Qaeda-to-al Qaeda within the 

country, you are saying we do not get involved in those cases. Now, 

it would—

Attorney General GONZALES. Not under the program on which I 

am testifying, that is right. 

Senator KOHL. It seems to me that you need to tell us a little 

bit more because to those of us who are listening, that is incomprehensible that you would go al Qaeda-to-al Qaeda outside the country, domestic-outside the country, but you would not intrude into 

al Qaeda-to-al Qaeda within the country. You are very smart. So 

are we. And to those of us who are interacting here today, there 

is something that unfathomable about that remark. 

Attorney General GONZALES. Well, Senator, we certainly endeavor to try to get that information in other ways if we can. But that 

is not what the President—

Senator KOHL. No, but isn’t it—you know, we need to have some 

logic, some sense, some clarity to this discussion this morning. 

Attorney General GONZALES. Senator, think about the reaction, 

the public reaction that has arisen in some quarters about this program. If the President had authorized domestic surveillance as 

well, even though we were talking about al Qaeda-to-al Qaeda, I 

think the reaction would have been twice as great. And so there 

was a judgment made that this was the appropriate line to draw 

in ensuring the security of our country and the protection of the 

privacy interests of Americans. 

Senator KOHL. I appreciate that. And before I turn it back, yet 

the President has said, you know, with great justification, he is 

going to protect the American people regardless, and if there is 

some criticism, he will take the criticism. And yet you are saying 

al Qaeda-to-al Qaeda within the country is beyond the bounds? 

Attorney General GONZALES. Senator, it is beyond the bounds of 

the program which I am testifying about today. 

Senator KOHL. Thank you. 

43

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Kohl—

[Audience disruption.] 

Chairman SPECTER. If you do not sit down immediately, you will 

be removed from the chamber. Senator DeWine? Senator DeWine, 

that is your introduction. 

Senator DEWINE. Thank you, Mr. Chairman. 

Senator SESSIONS. Mr. Chairman, I would like to state for the 

record that you are not a fascist. 

Chairman SPECTER. Thank you for that reassurance, Senator 

Sessions. 

[Laughter.] 

Chairman SPECTER. Senator DeWine? 

Senator DEWINE. Mr. Chairman, this issue has been raised several times by several members. My understanding is Senator Roberts, Chairman of the Intelligence Committee, has announced that 

there will be a closed hearing on February 9th with Attorney General Gonzales as well as General Hayden to cover this issue. 

Mr. Attorney General, thank you very much for being with us 

today. We have had a lot of discussion and I know we are going 

to continue to have discussion about this very serious constitutional 

issue, constitutional law issue. Let me tell you, though, what I 

know and what I truly believe. I truly believe that the American 

people expect the President of the United States in a time of national emergency and peril to take actions to protect them, even if 

those actions are not specifically authorized by statute. I think they 

expect no less. They would want the President to do no less than 

that. 

Second, though, it is clear that there are serious legal and constitutional questions concerning whether the Fourth Amendment 

‘‘reasonableness’’ requirement for searches requires the President, 

after a period of time, after a program has been in place for a period of time, to come to the Congress for statutory authorization to 

continue such actions. Legal scholars, Mr. Attorney General, can 

and certainly are debating this issue. But what is not debatable is 

that both from a constitutional as well as from a policy point of 

view, the President and the American people would be stronger, 

this country would be stronger and the President would be stronger 

if he did so, if he did come to the Congress for such specific statutory authorization. 

There was a reason that President George H.W. Bush and President George W. Bush both came to Congress prior to the respective 

wars in Iraq, even though some people argued and would still 

argue today that such resolutions were legally and constitutionally 

unnecessary. Presidents are always stronger in the conduct of foreign affairs when Congress is on board. 

Statutory authorization and congressional oversight for this program would avoid what may be a very divisive, hurtful debate here 

in Congress. I truly believe it is in our national interest to resolve 

this matter as quickly as possible. 

Mr. Attorney General, we need meaningful oversight by the Intelligence Committee, followed then by whatever statutory changes 

in the law might be appropriate. 

44

Let me ask you, to follow on that statement, a question. What 

if Congress passed a law which just excluded FISA from any electronic surveillance of international communications where one 

party to the communications is a member of or affiliated with al 

Qaeda or a related terrorist group? And, further, if we went on and 

provided that there would be the normal oversight by both the 

House and the Senate Intelligence Committee, periodically that the 

administration would report to the Intelligence Committees on the 

progress of that program? We obviously have the ability within the 

Committee to keep such things classified. We do it all the time. 

What would be your reaction to that? Is that something that would 

be possible from your point of view? 

Attorney General GONZALES. Well, I will repeat what the President has said, and that is, to the extent that Congress wants to 

suggest legislation, obviously we will listen to your ideas. I have already in response to an earlier question talked about some of the 

concerns that we have. Obviously, generally most concerns can be 

addressed in one way or the other, and if they could legitimately 

be addressed, then obviously we would listen to your questions—

I mean, we would listen and consider your ideas. 

Senator DEWINE. I appreciate that. You know, I understand your 

legal position. You have made it very clear today, I think articulated it very well. The administration has articulated it. Obviously, 

there are others who don’t agree with your position. This is going 

to be a debate we are going to continue to have. It just seems to 

me that some 4 years into this program, this debate could be put 

aside if—we ought to be able to find some way to be able to protect 

the American people, but take care of what legal issues that some 

might find to be there. And I would look forward, frankly, to working with you on that. 

Let me move, if I could, to what to me has been a troubling question about FISA, really unrelated to this program. And you and I 

have talked about this before. You have talked today about how 

FISA is being used. Frankly, it is being used more than it has been 

used in the past. 

Attorney General GONZALES. The use of FISA is up 18 percent 

from 2004 to 2005. 

Senator DEWINE. Let me talk about something, though, that 

troubles me, and I have been talking and asking about this problem since 2004. Let me give you a quote from 2004. Director 

Mueller of the FBI said, and I quote, ‘‘We still have some concerns, 

and we are addressing it with the Department of Justice. But there 

is still frustration out there in the field in certain areas where, because we have had to prioritize, we cannot get to certain requests 

for FISA as fast as perhaps we might have in the past.’’

My understanding, Mr. Attorney General, from recent information that I have, current information, is that there is still a backlog, that there are still what I would call mechanical problems, 

both in the FISA Court and at Justice. Could you just briefly address that? Because every time I see you, I am going to go back 

at this because—I am not saying it is your fault, but I just think 

it is something that working together we need to resolve. And this 

is something, I think, that Congress has to play a part in. If you 

don’t have the money, if you don’t have the resources, we cannot 

45

tolerate a backlog in FISA applications if it can be fixed mechanically. 

Attorney General GONZALES. I appreciate the opportunity to respond to that question, Senator. 

I will say that the staff, our staff at the Department of Justice—

these are the experts in the FISA process—has in essence tripled 

since 2002. I think we all realized following the attacks on 9/11 

that we needed to get more folks on board to help us with the FISA 

applications. 

It still takes too long, in my judgment, to get FISAs approved. 

I described in my opening statement the process that is involved 

here. FISA applications are often an inch thick, and it requires a 

sign-off by analysts out at NSA, lawyers at NSA, lawyers at the 

Department, and finally me. And then it has got to be approved by 

the FISA Court. 

I have got to tell you—I was going to try to make this point in 

response to a question from the Chairman—the members of the 

FISA Court are heroes, as far as I am concerned. They are available day or night. They are working on weekends and holidays because they want to make themselves available. They are killing 

themselves, quite frankly, making themselves available to be there, 

to sign off on a FISA application if it meets the requirements of the 

statute. But we still have some problems. 

It is true that because of the procedures that are in FISA, it inherently is going to result in some kind of delay. And for that reason, the President made the determination that for certain very 

narrow circumstances, he is going to authorize the terrorist surveillance program. 

But we continue to work at it, and I know you are very interested in this, and I continue to—and I look forward to continuing 

to have discussions with you about it. 

Senator DEWINE. Well, I appreciate that, Mr. Attorney General. 

It is something that continues to trouble me. Putting aside the 

issue that we are here about today, FISA is a matter of national 

security, and I am still hearing things that, frankly, disturb me. 

And it is just a question of whether this can be sped up. Some 

things are inherent, as you say, but I get the impression that part 

of the problem is not inherent and I think could be fixed. 

Attorney General GONZALES. Well, one of the things that hopefully will happen soon is the creation of a new national security division. As you know, the PATRIOT Act has a provision in it which 

creates a new Assistant Attorney General for the national security 

division. We believe that division will assist in the streamlining of 

the FISA process. 

Senator DEWINE. Thank you, Mr. Attorney General. 

Attorney General GONZALES. Senator? Mr. Chairman? 

Chairman SPECTER. Thank you, Senator DeWine. 

Senator Feinstein? 

Attorney General GONZALES. Mr. Chairman? 

Senator SESSIONS. Mr. Chairman, I think the Attorney General 

had a question. 

Attorney General GONZALES. I am sorry. Could I make one point 

in response to Senator Kohl? I made this point, but I want to make 

sure that the Committee understands this in terms of domestic-toVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
46

domestic al Qaeda communications. I said that we are using other 

authorities. To the extent we can engage in intercepting al Qaeda 

domestic-to-domestic calls, even under FISA, if we can do it, we are 

doing it. So I don’t want the American people to believe that we 

are doing absolutely nothing about al Qaeda domestic-to-domestic 

calls. The President has made a determination this is where the 

line is going to be, and so we operate within those boundaries. And 

so we take advantage of the tools that are out there. And FISA 

isn’t always the most efficient way to deal with that, but if that is 

all we have, that is what we use. 

So I guess I want to make sure the American people understand 

that we are not simply ignoring domestic-to-domestic communications of al Qaeda. We are going after it. 

Chairman SPECTER. Thank you, Attorney General Gonzales, for 

that clarification. 

Senator Feinstein? 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. 

I would like to make clear that, for me at least, this hearing is 

not about whether our Nation should aggressively combat terrorism. I think we all agree on that. And it is not about whether 

we should use sophisticated electronic surveillance to learn about 

terrorists’ plans, intentions and capabilities. We all agree on that. 

And it is not about whether we should use those techniques inside 

the United States to guard against attacks. We all agree on that. 

But this administration is effectively saying—and the Attorney 

General has said it today—it does not have to follow the law. And 

this, Mr. Attorney General, I believe is a very slippery slope. It is 

fraught with consequences. The Intelligence Committees have not 

been briefed on the scope and nature of the program. They have 

not been able to explore what is a link or an affiliate to al Qaeda 

or what minimization procedures are in place. We know nothing 

about the program other than what we have read in the newspapers. 

And so it comes with huge shock, as Senator Leahy said, that the 

President of the United States in Buffalo, New York, in 2004, 

would say, and I quote, ‘‘Any time you hear the U.S. Government 

talking about wiretap, it requires—a wiretap requires a court 

order. Nothing is changed, by the way. When we are talking about 

chasing down terrorists, we are talking about getting a court order 

before we do so.’’

Mr. Attorney General, in light of what you and the President 

have said in the past month, this statement appears to be false. Do 

you agree? 

Attorney General GONZALES. No, I don’t, Senator. In fact, I take 

great issue with your suggestion that somehow the President of the 

United States was not being totally forthcoming with the American 

people. I have his statement, and in the sentence immediately before what you are talking about, he said he was referring to roving 

wiretaps. And so I think anyone who—I think—

Senator FEINSTEIN. So you are saying that statement only relates 

to roving wiretaps. Is that correct? 

Attorney General GONZALES. Senator, that speech was about—

that discussion was about the PATRIOT Act, and right before he 

uttered those words that you are referring to, he said, ‘‘Secondly, 

47

there are such things as roving wiretaps. Now, by the way, any 

time you hear the U.S. Government talking about wiretaps, it requires—a wiretap requires a court order.’’

So, as you know, the President is not a lawyer, but this was a 

discussion about the PATRIOT Act. This was a discussion about 

roving wiretaps, and I think people are—some people are trying to 

take part of his statement out of context, and I think that is unfair. 

Senator FEINSTEIN. OK, fair enough. Let me move along. 

In October 2002, at a public hearing of the Senate-House joint 

inquiry into NSA activities, the then-NSA Director General Michael Hayden told me, ‘‘If at times I seem indirect or incomplete, 

I hope that you and the public understand that I have discussed 

our operations fully and unreservedly in earlier closed sessions.’’

As I mentioned, the Intelligence Committee has not been notified. 

Let me ask you this: If the President determined that a truthful 

answer to questions posed by the Congress to you, including the 

questions I ask here today, would hinder his ability to function as 

Commander in Chief, does the authorization for use of military 

force or his asserted plenary powers authorize you to provide false 

or misleading answers to such questions? 

Attorney General GONZALES. Absolutely no, Senator. Of course 

not. Nothing—

Senator FEINSTEIN. Thank you. I just asked the question. A yes 

or no—

Attorney General GONZALES [continuing]. Would excuse false 

statements before the Congress. 

Senator FEINSTEIN. All right. You have advanced what I think is 

a radical legal theory here today. The theory compels the conclusion that the President’s power to defend the Nation is unchecked 

by law, that he acts alone and according to his own discretion, and 

that the Congress’s role at best is advisory. You say that the Authorization for Use of Military Force allows the President to circumvent the Foreign Intelligence Surveillance Act, and that if the 

AUMF doesn’t, then the Constitution does. 

Senator Daschle has testified that when he was Majority Leader, 

the administration came to him shortly before the AUMF came to 

the floor and asked that the words ‘‘inside the United States’’ be 

added to the authorization, and that he said, ‘‘Absolutely not,’’ and 

it was withdrawn. 

The question I have is: How do you interpret congressional intent 

from the passage of the AUMF that it gave the administration the 

authority to order electronic surveillance of Americans in contravention to the FISA law? 

Attorney General GONZALES. Senator, it is not in contravention 

of the FISA law. We believe the authorization to use military force 

is the kind of congressional action that the FISA law anticipated. 

It has never been our position that somehow the AUMF amended 

FISA. It has never been our position that somehow FISA has been 

overridden. Quite the contrary, we believe that the President’s authorizations are fully consistent with the provisions of FISA. In 

terms of—

Senator FEINSTEIN. Now, let me stop you just for a second. I have 

read the FISA law. There are only two escape hatches: one is 15 

48

days after a declaration of war, and the second is the 72-hour provision, which was actually amended by us in the PATRIOT Act 

from a lower number to 72 hours. Those are the only two escape 

hatches in FISA. 

What in FISA specifically then allows you to conduct electronic 

intelligence—excuse me, electronic surveillance within America on 

Americans? 

Attorney General GONZALES. I believe that in Section 109 it talks 

about persons not engaging in electronic surveillance under color of 

law except as authorized by statute. I may not have it exactly 

right. We believe that that is the provision in the statute which allows us to rely upon the authorization of the use of military force. 

Now, you may say, well, I disagree with that construction That 

may be so. There may be other constructions that may be fairly 

possible. We believe this is a fairly possible reading of FISA, and 

as the Supreme Court has said, under the Canon of Constitutional 

Avoidance, if you have two possible constructions of a statute and 

one would result in raising a constitutional issue, if the other interpretation is one that is fairly possible, that is the interpretation 

that must be applied. And if you reject our interpretation of FISA, 

Senator, then you have a situation where you have got an Act of 

Congress in tension with the President’s constitutional authority as 

Commander in Chief. And the Supreme Court has said when that 

happens, you go with another interpretation if it is a fair application, and that is what we have done here. 

Senator FEINSTEIN. Could you check your citation? I just read 

109, and I do not believe it says that. We will talk about that after 

lunch. 

Attorney General GONZALES. Yes, ma’am. 

Senator FEINSTEIN. Let me go on and tell you why it is a slippery 

slope. Senator Kennedy asked you about first-class mail, has it 

been opened, and you declined answering. Let me ask this way: 

Has any other secret order or directive been issued by the President or any other senior administration official which authorizes 

conduct which would otherwise be prohibited by law? Yes or no will 

do. 

Attorney General GONZALES. Senator, the President has not authorized any conduct that I am aware of that is in contravention 

of law. 

Senator FEINSTEIN. Has the President ever invoked this authority with respect to any activity other than NSA surveillance? 

Attorney General GONZALES. Again, Senator, I am not sure how 

to answer that question. The President has exercised his authority 

to authorize this very targeted surveillance of international communications of the enemy. I am sorry. Your question is? 

Senator FEINSTEIN. Has the President ever invoked this authority with respect to any activity other than the program we are discussing, the NSA surveillance—

Attorney General GONZALES. Senator, I am not comfortable going 

down the road of saying yes or no as to what the President has or 

has not authorized. I am here—

Senator FEINSTEIN. OK. That is fine. I just want to ask some others. If you don’t want to answer them, don’t answer them. 

Attorney General GONZALES. Yes, ma’am. 

49

Senator FEINSTEIN. Can the President suspend the application of 

the Posse Comitatus Act? 

Attorney General GONZALES. Of course, Senator, that is not what 

is at issue here. 

Senator FEINSTEIN. I understand that. 

Attorney General GONZALES. This is not about law enforcement. 

This is about foreign intelligence. 

Senator FEINSTEIN. I am asking questions. You choose not to answer it? 

Attorney General GONZALES. Yes, ma’am. 

Senator FEINSTEIN. OK. Can the President suspend, in secret or 

otherwise, the application of Section 503 of the National Security 

Act, which states that no covert action may be conducted which is 

intended to influence United States political processes, public opinion, policies, or media? In other words, can he engage in otherwise 

illegal propaganda? 

Attorney General GONZALES. Senator, let me respond to—this 

will probably be my response to all your questions of these kinds 

of hypotheticals. The question as to whether or not Congress can 

pass a statute that is in tension with a President’s constitutional 

authority, those are very, very difficult questions. And for me to 

answer those questions sort of off the cuff I think would not be responsible. I think that, again, we have got—

Senator FEINSTEIN. OK. That is fine. I don’t want to argue with 

you. All I am trying to say is this is a slippery slope. Once you do 

one, there are a whole series of actions that can be taken, and I 

suspect the temptations to take them are very great. We are either 

a Nation that practices our rule of law or we are not. 

Has any Supreme Court case since FISA held that the President 

can wiretap Americans once Congress has passed a law forbidding 

this without warrant? 

Attorney General GONZALES. I think the only case that comes to 

mind that is really pertinent would be the 2002 case, In re Sealed 

Case, by the FISA Court of Review where, while the court did not 

decide this issue, the court acknowledged that every case that has 

considered this has found that the President has the inherent authority. And assuming that to be true, that court said that FISA 

could not encroach upon those authorities, those constitutional inherent authorities. 

Senator FEINSTEIN. My time is up. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Feinstein. 

Senator Sessions? 

Senator SESSIONS. Thank you. 

Attorney General Gonzales, I believe you have faithfully fulfilled 

your responsibility to give your best honest answers to the questions so far. I think they have been very effective. If people have 

listened, I think they will feel much better about the program that 

the President has authorized and that you are explaining, because 

some of the news articles in particular gave the impression that 

there is widespread wiretapping of American citizens in domestic 

situations, and in every instance there is an international call. 

Most of us by plain language would understand ‘‘international’’ to 

be different from ‘‘domestic,’’ and the President has limited this to 

50

international calls in which one or more parties are connected to 

al Qaeda. Is that correct? 

Attorney General GONZALES. Sir, the program that I am talking 

about today, yes, is limited to international calls. 

Senator SESSIONS. And I am sorry that there are those who 

would suggest that in previous testimony you may have not been 

truthful with the Committee. I don’t believe that is your reputation. I don’t believe that is fair. I think you have a good answer 

to any of those charges. And I also think it is unfortunate that we 

are in a position where, when the President is talking about the 

PATRIOT Act, just like we talked about the PATRIOT Act throughout the debate on the PATRIOT Act, we insisted that it did not authorize non-warrant wiretaps or searches. That is what we said 

about the PATRIOT Act, because it did not. So don’t you think it 

is unfair to mix classified international surveillance issues with the 

PATRIOT Act debate? 

Attorney General GONZALES. Well, Senator, I don’t know if it is 

my place to characterize whether it is fair or unfair. I do believe 

that there is a difference, certainly in practice, and a difference recognizing the course between domestic surveillance and international surveillance. 

Senator SESSIONS. Well, I think it is important for us to remember the world is hearing this, and so we have people suggesting 

that the Attorney General of the United States and the President 

of the United States are deliberately lying. And it is not fair. It is 

not accurate. It is not true. So I think that is important. 

With regard to the briefing of Congress, the eight members that 

have been designated to receive highly secret information were 

briefed on this program, were they not, Attorney General Gonzales? 

Attorney General GONZALES. Sir, from the outset, the bipartisan 

leadership of the Intel Committees have been briefed in great detail about this, and there have also, in addition, been fewer briefings with respect to the bipartisan congressional leadership. 

Senator SESSIONS. I would just note that, of course, there are 

eight that hold those positions, but since the beginning of the program, at least 15 individuals have been in and out of those positions, including Tom Daschle, Bob Graham, and Dick Gephardt, 

who are no longer in Congress, but were presumably part of that 

process and were aware of it and participated in passing the FISA 

Act and believed that it was correct to go forward. I don’t think 

they were hot-boxed or forced into this. I believe they weighed 

these issues based on what they thought the national interest was 

and what the law was, and they made their decision not to object 

to this program. And there has been no formal objection by any of 

those members to this program, and I think it is unfair to suggest 

that the President has acted in secret without informing key Members of Congress about this highly classified program. 

Attorney General GONZALES. Senator, of course, I cannot speak 

for the Members of Congress, but to my knowledge, no one has asserted the program should be stopped. 

Senator SESSIONS. I thought about the Super Bowl. There was 

some reference to the intense security around that event, that police and Secret Service and every available Federal and, I guess, 

State agency that could be brought into that were intensely aware 

51

that there could be an attack on the Super Bowl or any other major 

public event like that. But the Super Bowl would be a prime target, 

would you not agree, of the al Qaeda types? 

Attorney General GONZALES. Clearly, we would have concerns 

that events like the Super Bowl would be ones that would be attractive to al Qaeda. 

Senator SESSIONS. And intelligence is valuable to that. I mean, 

that is the key to it, and that is what we are trying to gather, and 

everybody understood after 9/11 that our failure was not in the capability to stop people; it was our capability to identify them. This 

program seems to me to be a step forward in our ability to identify 

them, and I believe, as you have explained it, it is consistent with 

our laws. 

With regard to statutory construction and how we should construe it, people have made the point that it is a general principle 

that a specific statute might control over a general statute. But 

isn’t it true that if a general statute clearly contemplates certain 

actions, and it cannot be effective without those actions, then it will 

overrule the more specific earlier statute? 

Attorney General GONZALES. Depending on the circumstances, 

that would certainly be true, Senator. I might just also remind people when you are talking about general statutes versus specific 

statutes, this same argument was raised in connection with the 

Hamdi case. We had a specific statute that said no American citizen could be detained except as otherwise authorized by statute. 

And the Supreme Court said the authorization to use military 

force, even though it may have been characterized by some as a 

broad grant of authority, nonetheless, that was sufficient to override the prohibition in 4001(a). 

Senator SESSIONS. I think that is absolutely critical. I believe the 

Hamdi case is a pivotal authority here. After FISA, after the authorization of force against al Qaeda, an American citizen was detained without trial, and the Supreme Court of the United States 

held that since it was part of a military action in wartime, that 

person could be held without trial as an incident to the authorization of force. Would you not agree that listening in on a conversation is less intrusive than putting an American citizen in jail? 

Attorney General GONZALES. It would certainly seem to me that 

it would be less intrusive. Just for the record, the language that 

I keep referring to, ‘‘fundamental incident of waging war,’’ was 

from Justice O’Connor. It is part of a plurality. And, of course, Justice Thomas in essence would have felt the President had the inherent authority under the Constitution to detain an American citizen. 

So I just want to make sure that we are accurate in the way we 

describe the decisions by the court. 

Senator SESSIONS. Well, you have been very careful about those 

things, and we appreciate that. 

With regard to history, you made reference to history. Isn’t it 

true—of course—that President Washington instructed his army to 

find ways to intercept letters from British operatives? President 

Lincoln ordered warrantless tapping of telegraph lines, telegraph 

communications during the Civil War to try to identify troop movements of the enemy? 

52

Is it true that President Wilson authorized the military to intercept all telephone and telegraph traffic going into and out of the 

United States? 

Attorney General GONZALES. That is correct. 

Senator SESSIONS. And that President Roosevelt instructed the 

government to use listening devices to learn the plans of spies in 

the United States and that he gave the military the authority to 

access, without review, without warrant, all telecommunications 

‘‘passing between the United States and any foreign country.’’

Attorney General GONZALES. That is correct, sir. 

Senator SESSIONS. What I would say to my colleagues and to the 

American people is, under FISA and other standards that we are 

using today, we have far more restraints on our military and the 

executive branch than history has demonstrated. We have absolutely not—we are not going hog wild restraining American liberties. In fact, the trend has been to provide more and more protections, and there can be a danger that we go too far in that and 

allow sleeper cells in this country to operate in a way that they are 

successful in killing American citizens that could have been intercepted and stopped. 

Attorney General GONZALES. Of course, Senator, we are doing everything we can to ensure that that does not happen. 

Senator SESSIONS. But when you do domestic—well, I will not go 

into that. 

I want to ask you this question about President Clinton’s administration ordering several warrantless searches on the home and 

property of an alleged spy, Aldrich Ames. Actually, he was convicted. Isn’t that true? It also authorized a warrantless search of 

the Mississippi home of a suspected terrorist financier. And the 

Deputy Attorney General, Jamie Gorelick, the second in command 

of the Clinton Department of Justice, said this: ‘‘[T]he President 

has inherent authority to conduct warrantless physical searches for 

foreign intelligence purposes,’’ and ‘‘the rules and methodology for 

criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the President in carrying out 

his foreign intelligence responsibilities.’’

Are those comments relevant to the discussion we are having 

today? 

Attorney General GONZALES. As I understand it, that was her 

testimony, and I think there was an acknowledgment of the President’s inherent constitutional authority. 

Now, of course, some would rightly say that in response to that, 

FISA was changed to include physical searches, and so the question is—again, that tees up, I think, a difficult constitutional issue, 

whether or not—can the Congress constitutionally restrict the ability of the President of the United States to engage in surveillance 

of the enemy during a time of war? And, fortunately, I don’t think 

we need to answer that question. I think in this case the Congress 

has authorized the President to use all necessary and appropriate 

force, which would include electronic surveillance of the enemy. 

Senator SESSIONS. But Deputy Attorney General Gorelick in the 

Clinton administration defended these searches. She asserted it 

was a constitutional power of the President, and this was in a period of peace, not even in war. Isn’t that correct? 

53

Attorney General GONZALES. That is correct. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Sessions. 

We will now take a luncheon break, and we will resume at 1:45. 

[Whereupon, at 12:35 p.m., the Committee recessed, to reconvene 

at 1:45 p.m., this same day.]

AFTERNOON SESSION [1:45 P.M.] 

Chairman SPECTER. It is 1:45. The Committee prides itself on 

being prompt, and we thank you, Mr. Attorney General, for being 

prompt in coming back. 

I think the hearings have been very productive. We’ve had full 

attendance, or almost full attendance, and I think the other Senators who could not be here early have an excuse—it is unusual to 

have Monday morning session for the U.S. Senate. And we have 

done that because this Committee has been so busy. We have asbestos reform legislation, which Senator Leahy and I are cosponsoring, which is coming to the floor later today and we have had 

a full platter with the confirmation of Justice Alito. We wanted to 

have this hearing at an early date and this was the earliest we 

could do, given the intervening holidays after the program was announced back on December 16th. 

We anticipated a full day of hearings and at least two rounds, 

and it is apparent to me at this point that we are not going to be 

able to finish today within a reasonable time. Senator Feingold is 

nodding in the affirmative. That is the first time I have got him 

to nod in the affirmative today, so you see we are making some 

progress. But I do believe there will be a full second round. We 

don’t function too well into the evening. If we have to, we do, but 

it is difficult for the witness. I have conferred with the Attorney 

General, who has graciously consented to come back on a second 

day. So we will proceed through until about 5 o’clock this afternoon 

and then we will reschedule for another day. By that time, everybody will have had a first round, and it will give us the time to 

digest what we have heard. Then we will continue on a second day. 

Senator Feingold, you are recognized. 

Senator FEINGOLD. Good afternoon, Mr. Attorney General and 

Mr. Chairman. 

Let me say, of course, we have a disagreement, Mr. Chairman, 

about whether this witness should have been sworn, and that is a 

serious disagreement. But let me nod in an affirmative way about 

your Pittsburgh Steelers, first of all. 

[Laughter.] 

Chairman SPECTER. Green Bay—

Senator FEINGOLD. Green Bay will be back. 

Senator SPECTER. With Green Bay out of it, why not root for the 

Steelers, Senator Feingold? 

Senator LEAHY. That is why we didn’t have the hearing last 

night. 

Senator FEINGOLD. Well, I understood that. I was curious about 

that. 

Chairman SPECTER. Reset the clock at 10 minutes. 

[Laughter.] 

Chairman SPECTER. I was only kidding. 

54

Senator FEINGOLD. Let me also say, Mr. Chairman, despite our 

disagreement about the swearing-in issue, that I praise you for 

your candor and your leadership on this issue and for holding this 

hearing and the other hearings you may be holding. 

I also want to compliment some of my colleagues on the other 

side of the aisle for their candor on this issue already, publicly. 

People like Senator DeWine, Senator Graham, Senator Brownback. 

Maybe they don’t want me to mention their names, but the fact is 

they have publicly disputed this fantasy version of the justification 

of this based on the Afghanistan Resolution. It is a fantasy version 

that no Senator, I think, can actually believe that we authorized 

this wiretapping. 

So the fact is, this can and should be a bipartisan issue. I see 

real promise for this being a bipartisan issue, and it should be. But 

the problem here is that what the administration has said is that 

when it comes to national security, the problem is that the Democrats have a pre-9/11 view of the world. 

Well, let me tell you what I think the problem is. The real problem is that the President seems to have a pre-1776 view of the 

world. That is the problem here. All of us are committed to defeating the terrorists who threaten our country, Mr. Attorney General. 

It is, without a doubt, our top priority. In fact I just want to read 

again what you said: ‘‘As the President has said, if you are talking 

with al Qaeda, we want to know what you’re saying.’’ Absolutely 

right. No one on this Committee, I think no one in this body believes anything other than that. I want to state it as firmly as I 

can. 

But I believe that we can and must do that without violating the 

Constitution or jeopardizing the freedoms on which this country 

was founded. Our forefathers fought a revolution, a revolution to 

be free from rulers who put themselves above the law. And I have 

to say, Mr. Chairman, I think this administration has been violating the law and is misleading the American people to try to justify it. 

This hearing is not just a hearing about future possible solutions. 

That is fine to be part of the answer and part of the hearing. This 

hearing, Mr. Chairman, is also an inquiry into possible wrongdoing. 

Mr. Attorney General, there have already been a few mentions 

today of your testimony in January of 2005, your confirmation 

hearing. I am going to ask you a few quick, simple and factual 

questions, but I want to make it clear that I don’t think this hearing is about our exchange or about me or what you said to me in 

particular. I am concerned about your testimony at that time because I do believe it was materially misleading. But I am even 

more concerned about the credibility of your administration, and I 

am even more concerned than that about the respect for the rule 

of law in this country. So that is the spirit of my questions. 

Mr. Attorney General, you served as White House Counsel from 

January 2001 until you became Attorney General in 2005. On January 6, 2005, you had a confirmation hearing for the Attorney General position before this Committee. Mr. Attorney General, you testified under oath at that hearing, didn’t you? 

Attorney General GONZALES. Yes, sir. 

55

Senator FEINGOLD. And, sir, I don’t mean to belabor the point, 

but just so the record is clear, did you or anyone in the administration ask Chairman Specter or his staff that you not be put under 

oath today? 

Attorney General GONZALES. Senator, I have already indicated 

for the record, the Chairman asked my views about being sworn in 

and I said I had no objection. 

Senator FEINGOLD. But did anyone, you or anyone in the administration, ask the Chairman to not have you sworn? 

Attorney General GONZALES. Sir, not to my knowledge. 

Chairman SPECTER. The answer is no. 

Senator FEINGOLD. That’s fine. 

At the time you testified in January of 2005, you were fully 

aware of the NSA program, were you not? 

Attorney General GONZALES. Yes, sir. 

Senator FEINGOLD. You were also fully aware at the time you 

testified that the Justice Department had issued a legal justification for the program. Isn’t that right? 

Attorney General GONZALES. Yes, there had been legal analysis 

performed by the Department of Justice. 

Senator FEINGOLD. And you as White House Counsel agreed with 

that legal analysis, didn’t you? 

Attorney General GONZALES. I agreed with the legal analysis, 

yes. 

Senator FEINGOLD. And you had signed off on the program, 

right? 

Attorney General GONZALES. Yes. I do believe the President—I 

did believe at the time that the President has the authority to authorize this kind of—

Senator FEINGOLD. And you had signed off on that legal opinion. 

And yet, when I specifically asked you at the January 2005 hearing 

whether in your opinion the President can authorize warrantless 

surveillance notwithstanding the foreign intelligence statutes of 

this country, you didn’t tell us yes. Why not? 

Attorney General GONZALES. Sir, I believe your question, the hypothetical you posed—and I do consider it a hypothetical—which is 

whether or not had the President authorized activity, and specifically electronic surveillance, in violation of the laws—and I have 

tried to make clear today that in the legal analysis in the white 

paper, the position of the administration is, is that we—the President has authorized electronic surveillance in a manner that is totally consistent, not in violation, not—not overriding provisions of 

FISA, but totally consistent with FISA. 

Senator FEINGOLD. Mr. Attorney General, certainly it was not a 

hypothetical, as we now know. 

Attorney General GONZALES. Your—Senator, your question was 

whether or not the President had authorized certain conduct in violation of law. That was a hypothetical. 

Senator FEINGOLD. My question was whether the President could 

have authorized this kind of wiretapping. 

Attorney General GONZALES. In violation of the criminal statutes. 

And our position is and has been, is that no, this is not in violation 

of the criminal statutes. FISA cannot be—

56

Senator FEINGOLD. You said the question was merely hypothetical and that—Look, this is what you said: It’s not the policy 

or the agenda of this President to authorize actions that would be 

in contravention of our criminal statutes. And when you said that, 

you knew about this program. In fact, you just told me that you 

had approved it and you were aware of the legal analysis to justify 

it. You wanted this Committee and the American people to think 

that this kind of program was not going on. But it was. And you 

knew that. And I think that is unacceptable. 

Attorney General GONZALES. Senator, your question was whether 

or not the President had authorized conduct in violation of law, and 

I—

Senator FEINGOLD. The question was whether the President—

Attorney General GONZALES [continuing]. And I have laid out—

I have—

Senator FEINGOLD. Mr. Attorney General, my question was 

whether the President would have the power to do that. 

Attorney General GONZALES. And Senator, the President has not 

authorized conduct in violation of our criminal statutes. We have 

laid out a 42-page analysis of our legal position here. The authorities the President has exercised are totally consistent with the 

criminal provision. The primary criminal provision in FISA is Section 109. 

Senator FEINGOLD. I have heard all your arguments. But I want 

to get back to your testimony, which frankly, Mr. Attorney General, 

anybody that reads it basically realizes you were misleading this 

Committee. You could have answered the question truthfully. You 

could have told the Committee that, yes, in your opinion, the President has that authority. By simply saying the truth, that you believe the President has the power to wiretap Americans without a 

warrant, would not have exposed any classified information. 

My question wasn’t whether such illegal wiretapping was going 

on. Like almost everyone in Congress, I didn’t know, of course, 

about the program then. It wasn’t even about whether the administration believed that the President has this authority. It was a 

question about your view of the law—about your view of the law—

during a confirmation on your nomination to be attorney general. 

So of course if you had told the truth, maybe that would have 

jeopardized your nomination. You wanted to be confirmed. And so 

you let a misleading statement about one of the central issues of 

your confirmation, your view of Executive power, stay on the record 

until the New York Times revealed the program. 

Attorney General GONZALES. Senator, I told the truth then, I am 

telling the truth now. You asked about a hypothetical situation of 

the President of the United States authorizing electronic surveillance in violation of our criminal statutes. That has not occurred. 

Senator FEINGOLD. Mr. Chairman, I think the witness has taken 

mincing words to a new high. No question in my mind that when 

you answered the question was a hypothetical, you knew it was not 

a hypothetical and you were under oath at the time. 

Let me switch to some other misrepresentations. 

Chairman SPECTER. Wait a minute. Do you care to answer that 

Attorney General Gonzales? 

57

Attorney General GONZALES. Senator, as I have stated before, 

what I said was the truth then, it is the truth today. The President 

of the United States has not authorized electronic surveillance in 

violation of our criminal statutes. We have laid out in great detail 

our position that the activities are totally consistent with the criminal statute. 

Senator FEINGOLD. All you had to do, Mr. Attorney General, was 

indicate that it was your view that it was legal. That was what my 

question was. I would have disagreed with your conclusion. But 

that is not what you said, and you referred to this as merely a hypothetical. 

Mr. Attorney General, the administration officials have been very 

misleading in their claims in justifying the spying program. To 

make matters worse, last week in the State of the Union the President repeated some of these claims. For one thing, the President 

said that his predecessors have used the same constitutional authority that he has. 

Isn’t it true that the Supreme Court first found that phone conversations are protected by the Fourth Amendment in the 1967 

Katz case? 

Attorney General GONZALES. Yes, in the 1967 Katz case, the Supreme Court did find that telephone conversations are covered by 

the Fourth Amendment. 

Senator FEINGOLD. So when the Justice Department points to 

Presidents Wilson and Roosevelt’s actions, those are really irrelevant, aren’t they? 

Attorney General GONZALES. Absolutely not, Senator. I think 

that they are important in showing that Presidents have relied 

upon their constitutional authority to engage in warrantless surveillance of the enemy during a time of war. The fact that the 

Fourth Amendment may apply doesn’t mean that a warrant is necessarily required in every case. As you know, there is jurisprudence 

of the Supreme Court regarding special needs—normally in the national security context, outside of the ordinary criminal law context, where, because of the circumstances, searches without warrants would be justified. 

Senator FEINGOLD. Mr. Chairman, my time is up. I will continue 

this line of questioning later. 

Chairman SPECTER. Thank you very much, Senator Feingold. 

Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. 

I would like to congratulate you also for having these hearings. 

I think what we are talking about is incredibly important for the 

country in terms of the future conduct of wars and how we relate 

constitutionally to each other, and personally how we relate. I find 

your testimony honest, straightforward. Your legal reasoning is 

well articulated. I don’t agree with it all. 

About hiding something about this program, is it not true that 

the Congress has been briefed extensively, at least a small group 

of Congressmen and Senators about this program? 

Attorney General GONZALES. Senator, I have not been present, as 

I have testified before, at all of the briefings. But in the briefings 

that I have been present, the briefings were extensive, the briefings 

were detailed. Members—certain—members who were present at 

58

the briefing were given an opportunity to ask questions, to voice 

concerns. 

Senator GRAHAM. And if any member of this body believes that 

you have done something illegal, they could put in legislation to 

terminate this program, couldn’t they? Isn’t that our power? 

Attorney General GONZALES. Certainly, Senator, it—

Senator GRAHAM. Well, I would think if you believed our President was breaking the law, you would have the courage of your 

convictions and you would bring—you would stop funding for it. 

Now, it seems to me there are two ways we can do this. We can 

argue what the law is, we can argue if it was broken, we can play 

a political dance of shirts v. skins, or we can find consensus as to 

what the law should be—and I associate myself with Senator 

DeWine as to what I think it should be. In a dangerous and difficult time for our country, I choose inquiry versus inquisition, collaboration versus conflict. 

To me, there are two big things that this Congress faces and this 

President faces. In all honesty, Mr. Attorney General, the statutory 

force resolution argument that you are making is very dangerous 

in terms of its application for the future. Because if you overly interpret the force resolution—and I will be the first to say when I 

voted for it, I never envisioned that I was giving to this President 

or any other President the ability to go around FISA carte blanche. 

And you are right, it is not my intent; it is the letter of the resolution. What I am saying is that if you came back next time, or the 

next President came back to this body, there would be a memory 

bank established here and I would suggest to you, Mr. Attorney 

General, it would be harder for the next President to get a force 

resolution if we take this too far and the exceptions may be a mile 

long. Do you share my concern? 

Attorney General GONZALES. I understand your concern, Senator. 

Senator GRAHAM. Thank you. I appreciate that. 

So that is just a comment about the practical application of 

where we could go one day if we over-interpret. Because the offer 

is on the table. Let’s make sure we have understanding, because 

if we have the same understanding between the executive, the legislative, and the judicial branch, our enemy is weaker and we are 

stronger. 

Now to the inherent authority argument. Taken to its logical conclusion, it concerns me that it could basically neuter the Congress 

and weaken the courts. I would like to focus a minute on the inherent-authority-of-the-President-during-a-time-of-war concept. I will 

give you a hypothetical and you can answer it if you choose to, and 

I understand if you won’t. 

There is a detainee in our charge, an enemy prisoner, a highvalue target. We believe, reasonably believe that this person possesses information that could save millions or thousands of American lives. The President as Commander in Chief tells the military 

authorities in charge you have my permission, my authority, I am 

ordering you to do all things necessary, and these five things I am 

authorizing. Do it because I am Commander in Chief and we have 

to protect the country. 

There is a preexisting statute on the book, passed by the Congress, called the Uniform Code of Military Justice. And it tells our 

59

troops that if you have a prisoner in your charge, you are not to 

do these things. And they are the same five things. 

What do we do? 

Attorney General GONZALES. Well, of course, Senator, the President has already said that we are not going to engage in torture. 

He has made that—that is a categorical statement by the President. As to whether or not the statute that you referred to would 

be constitutional, these kinds of questions are very, very difficult. 

One could make the argument, for example, that the provision in 

the Constitution that talks about Congress under section 8 of Article I, giving Congress the specific authority to make rules regarding captures, that that would give Congress the authority to legislate in this area. 

Now, there is some disagreement among scholars about what 

‘‘captures’’ means—

Senator GRAHAM. And I will tell you, it is talking about ships. 

It is not talking about people. But it is clear to me that the Congress has the authority to regulate the military, to fund the military. And the Uniform Code of Military Justice is a statutory 

scheme providing guidance, regulation, and punishment to the 

military that the Congress passes. 

Attorney General GONZALES. That would probably—I think most 

scholars would say that would fall under that—the clause in section 8 of Article I giving the Congress the authority to pass rules 

regarding Government and regulation of the Armed Forces. 

Senator GRAHAM. And I would agree with those scholars. And the 

point I am trying to say is that we can tell our military don’t you 

do this to a detainee, and you as Commander in Chief can tell the 

military we have to win the war, we have to protect ourselves. 

Now, what I am trying to say is that I am worried about the person 

in the middle here. Because if we had adopted the reasoning of the 

Bybee memo—that has been repudiated, appropriately—the point I 

was trying to make at your confirmation hearing is that the legal 

reasoning used in determining what torture would be under the 

Convention of Torture or the torture statute not only was strained 

and made me feel uncomfortable, it violated an existing body of law 

that was already on the books called the Uniform Code of Military 

Justice. If a military member had engaged in the conduct outlined 

by the Bybee memo, they could have been prosecuted for abusing 

a detainee because it is a crime in the military, Mr. Attorney General, for a guard to slap a prisoner, much less have something 

short of major organ failure. 

This is really a big deal for the people fighting the war. And if 

you take your inherent-authority argument too far, then I am really concerned that there is no check and balance. And when the Nation is at war, I would argue, Mr. Attorney General, you need 

checks and balances more than ever, because within the law we 

put a whole group of people in jail who just looked like the enemy. 

Attorney General GONZALES. Senator, if I could just respond. I 

am not—maybe I haven’t been as precise with my words as I might 

have been. I don’t think I have talked about inherent exclusive authority. I have talked about inherent authority under the Constitution in the Commander in Chief. Congress, of course, and I have 

60

said in response to other questions, they have a constitutional role 

to play also during a time of war. 

Senator GRAHAM. We coexist. 

Now, can I get to the FISA statute in 2 minutes here? And I hope 

we do have another round, because this is very important. I am not 

here to accuse anyone of breaking the law; I want to create law 

that will help people fighting the war know what they can and 

can’t do. 

The FISA statute, if you look at the legislative language, they 

made a conscious decision back in 1978 to resolve this two-lane debate. There are two lanes you can go down as Commander in Chief. 

You can act with the Congress and you can have inherent authority as Commander in Chief. The FISA statute said, basically, this 

is the exclusive means to conduct foreign surveillance where American citizens are involved. And the Congress, it seems to me, gave 

you a one-lane highway, not a two-lane highway. They took the inherent-authority argument, they thought about it, they debated it, 

and they passed a statute—if you look at the legislative language—

saying this shall be the exclusive means. And it is different than 

1401. 

So I guess what I am saying, Mr. Attorney General, if I buy your 

argument about FISA, I can’t think of a reason you wouldn’t have 

the authority ability, if you chose to, to set aside the statute on torture if you believed it impeded the war effort. 

Attorney General GONZALES. Well, Senator, whether or not we 

set aside a statute, of course, is not—

Senator GRAHAM. But inherent authority sets aside the statute. 

Attorney General GONZALES. That is not what we are talking 

about here. We don’t need to get to that tough question. 

Senator GRAHAM. If you don’t buy the force resolution argument, 

if we somehow magically took that off the table, that is all you are 

left with is inherent authority. And Congress could tomorrow 

change that resolution. And that is dangerous for the country if we 

get in a political fight over that. 

All I am saying is the inherent-authority argument in its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out, it deals 

the courts out and, Mr. Attorney General, there is a better way. 

And in our next round of questioning we will talk about that better 

way. 

Attorney General GONZALES. Sir, can I simply make one quick 

response, Mr. Chairman? 

Chairman SPECTER. You may respond, Attorney General. 

Attorney General GONZALES. Well, the fact that the President, 

again, may have inherent authority doesn’t mean that Congress 

has no authority in a particular area. And we look at the words of 

the Constitution and there are clear grants of authority to the Congress in a time of war. And so if you are talking about competing 

constitutional interests, that is when you get into sort of the third 

part of the Jackson analysis. 

Senator GRAHAM. That is where we are at right now. 

Attorney General GONZALES. I don’t believe that is where we are 

at right now, sir. 

Senator GRAHAM. That is where you are at with me. 

61

Attorney General GONZALES. Sir, even under the third part of the 

Jackson analysis—and I haven’t done the detailed work that obviously these kinds of questions require. These are tough questions, 

but I believe that the President does have the authority under the 

Constitution. 

Chairman SPECTER. Thank you, Senator Graham. 

Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman. 

And General Gonzales, I just want to make a couple of points 

that are important to keep in mind as we ask you questions. First, 

we all support a strong, robust, and vigorous national security program. Like everyone else in this room, I want the President to have 

all the legal tools he needs as we work together to keep our Nation 

safe and free, including wiretapping. And I appreciate the difficult 

job you and the President have balancing security and liberty. That 

is not an easy one. 

But I firmly believe that we can have both security and rule of 

law. And I am sure you agree with that, General Gonzales, don’t 

you? 

Attorney General GONZALES. Yes, Senator. 

Senator SCHUMER. And that is what distinguishes us from so 

many other nations, including our enemies. Is that correct? 

Attorney General GONZALES. That is correct. 

Senator SCHUMER. Now, the first job of Government is to protect 

our security, and everyone on this Committee supports that. But 

another important job of Government is to enforce the rule of law, 

because the temptation to abuse the enormous power of the Government is very real. That is why we have checks and balances. 

They are at the fulcrum of our democracy. You agree with that? 

Attorney General GONZALES. I agree with that, Senator. 

Senator SCHUMER. I have to say, by the way, that is why I am 

disappointed that Chairman Specter wouldn’t let us show the clip 

of the President’s speech. Senator Specter said that the transcript 

speaks for itself. But seeing the speech with its nuances is actually 

very different from reading the record. And when you watch the 

speech, it seems clear that the President isn’t simply talking about 

roving wiretaps, he is talking about all wiretaps. Because the fact 

that you don’t wiretap citizens without a warrant has been a bedrock of American principles for decades. 

Nonetheless, having said that, I am gratified that these hearings 

have been a lot less partisan than the previous ones we held in this 

room. And many Republican colleagues have voiced concerns about 

the administration policy. I want to salute my Republican colleagues for questioning some of these policies—Chairman Specter 

and Senator DeWine, Senator Brownback, Senator Graham, and 

others. But it is not just Republican Senators who seriously question the NSA program, but very high-ranking officials within the 

administration itself. 

Now, you have already acknowledged that there were lawyers in 

the administration who expressed reservations about the NSA program. There was dissent. Is that right? 

Attorney General GONZALES. Of course, Senator. This, as I indicated, these—this program implicates some very difficult issues. 

62

The war on terror has generated several issues that are very, very 

complicated. 

Senator SCHUMER. Understood. 

Attorney General GONZALES. Lawyers disagree. 

Senator SCHUMER. I concede all those points. 

Let me ask you about some specific reports. It has been reported 

by multiple news outlets that the former number two man in the 

Justice Department, the premier terrorism prosecutor, Jim Comey, 

expressed grave reservations about the NSA program and at least 

once refused to give it his blessing. Is that true? 

Attorney General GONZALES. Senator, here is a response that I 

feel that I can give with respect to recent speculation or stories 

about disagreements. There has not been any serious disagreement, including—and I think this is accurate—there has not been 

any serious disagreement about the program that the President 

has confirmed. There have been disagreements about other matters 

regarding operations, which I cannot get into. I will also say—

Senator SCHUMER. But there was some—I am sorry to cut you 

off, but there was some dissent within the administration, and Jim 

Comey did express at some point—that is all I asked you—some 

reservations. 

Attorney General GONZALES. The point I want to make is that, 

to my knowledge, none of the reservations dealt with the program 

that we are talking about today. They dealt with operational capabilities that we are not talking about today. 

Senator SCHUMER. I want to ask you again about them, just we 

have limited time. 

Attorney General GONZALES. Yes, sir. 

Senator SCHUMER. It has also been reported that the head of the 

Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the 

program. Is that true? 

Attorney General GONZALES. Senator, rather than going individual by individual—

Senator SCHUMER. No, I think we are—this is—

Attorney General GONZALES [continuing]. By individual, let me 

just say that I think the differing views that have been the subject 

of some of these stories does not—did not deal with the program 

that I am here testifying about today. 

Senator SCHUMER. But you are telling us that none of these people expressed any reservations about the ultimate program. Is that 

right? 

Attorney General GONZALES. Senator, I want to be very careful 

here. Because of course I am here only testifying about what the 

President has confirmed. And with respect to what the President 

has confirmed, I believe—I do not believe that these DOJ officials 

that you are identifying had concerns about this program. 

Senator SCHUMER. There are other reports—I am sorry to—I 

want to—you are not giving the yes-or-no answer here. I understand that. Newsweek reported that several Department of Justice 

lawyers were so concerned about the legal basis for the NSA program that they went so far as to line up private lawyers. Do you 

know if that is true? 

Attorney General GONZALES. I do not know if that is true. 

63

Senator SCHUMER. Now let me just ask you a question here. You 

mentioned earlier that you had no problem with Attorney General 

Ashcroft, someone else—I didn’t want to ask you about him; he is 

your predecessor—people have said had doubts. But you said that 

you had no problem with him coming before this Committee and 

testifying when Senator Specter asked. Is that right? 

Attorney General GONZALES. Senator, who the Chairman chooses 

to call as a witness is up to the Chairman. 

Senator SCHUMER. The administration doesn’t object to that, do 

they? 

Attorney General GONZALES. Obviously, the administration, by 

saying that we would have no objection, doesn’t mean that we 

would waive any privileges that might exist. 

Senator SCHUMER. I understand. I got that. 

Attorney General GONZALES. That is up to the Chairman. 

Senator SCHUMER. But I assume the same would go for Mr. 

Comey, Mr. Goldsmith, and any other individuals: Assuming you 

didn’t waive executive privilege, you wouldn’t have an objection to 

them coming before this Committee. 

Attorney General GONZALES. Attorney-client privilege, deliberative privilege—to the extent that there are privileges, it is up to the 

Chairman to decide who he wants to call as a witness. But let me 

just say, if we are engaged in a debate about what the law is and 

the position of the administration, that is my job and that is what 

I am doing here today. 

Senator SCHUMER. I understand. And you are doing your job. 

And that is why I am requesting, as I have in the past but renewing it here today, reaffirmed even more strongly by your testimony 

and everything else, that we invite these people, that we invite 

former Attorney General Ashcroft, Deputy Attorney General 

Comey, OLC Chair Goldsmith to this hearing and actually compel 

them to come if they won’t on their own. And as for privilege, I certainly—

Chairman SPECTER. If I might interrupt you for just one moment—

Senator SCHUMER. Please. 

Chairman SPECTER [continuing]. And you will have extra time. 

Senator SCHUMER. Yes. Thank you. 

Chairman SPECTER. I think the record was in great shape where 

I left it. If you bring in Attorney General Ashcroft, that is a critical 

step. 

Senator SCHUMER. Right. 

Chairman SPECTER. It wasn’t that I hadn’t thought of Mr. Comey 

and Mr. Goldsmith and other people. But I sought to leave the 

record with the agreement of the Attorney General to bring in 

former Attorney General Ashcroft. 

Senator SCHUMER. OK, well, Mr. Chairman, I respect that. I 

think others are important as well. But I want to get to the issue 

of privilege here. 

Chairman SPECTER. I am not saying they aren’t important. I am 

just saying what is the best way to get them here. 

Senator SCHUMER. OK. Well, whatever way we can I would be 

all for. 

64

On privilege. Because that is going to be the issue even if they 

come here, as I am sure you will acknowledge, Mr. Chairman. 

I take it you would have no problem with them talking about 

their general views on the legality of this program, just as you are 

talking about those. 

Attorney General GONZALES. Well—

Senator SCHUMER. Not to go into the specific details of what happened back then, but their general views on the legality of these 

programs. Do you have any problem with that? 

Attorney General GONZALES. The general views of the program 

that the President has confirmed, Senator, that is—again, if we are 

talking about the general views of the—

Senator SCHUMER. I just want them to be able to testify as freely 

as you have testified here. Because it wouldn’t be fair, if you’re an 

advocate of administration policies, you have one set of rules, and 

if you are an opponent or a possible opponent of administration 

policies, you have another set of rules. That is not unfair, is it? 

Attorney General GONZALES. Sir, it is up to the Chairman to—

Senator SCHUMER. No, but would you or the administration—you 

as the chief legal officer—have any problem with them testifying 

in the same way you did about general legal views of the program. 

Attorney General GONZALES. I would defer to the Chairman. 

Senator SCHUMER. I am not asking you, sir, in all due respect, 

I am not asking you what the Chairman thinks. He is doing a good 

job here, and I don’t begrudge that one bit. 

Attorney General GONZALES. So my answer is I defer—

Senator SCHUMER. I am asking you what the administration 

would think in terms of exercising any claim of privilege. 

Attorney General GONZALES. And again—

Senator SCHUMER. You are not going to have—I am sorry here—

you are not going to have different rules for yourself, an administration advocate, than for these people who might be administration dissenters in one way or another, are you? 

Attorney General GONZALES. Sir, I don’t know if you are asking 

me what are they going to say—

Senator SCHUMER. I am not asking you that. Would the rules be 

the same? I think you can answer that yes or no. 

Attorney General GONZALES. If they came to testify? 

Senator SCHUMER. Correct. 

Attorney General GONZALES. Well, sir, the client here is the 

President of the United States. I am not sure it is in my place to 

offer—

Senator SCHUMER. Or his chief—

Attorney General GONZALES [continuing]. Offer a position or my 

recommendation to you about what I might recommend to the 

President of the United States. 

Senator SCHUMER. But what would be—

Attorney General GONZALES. It would not be appropriate here. 

Senator SCHUMER. I just am asking you as a very fine, well-educated lawyer: Should or could the rules be any different for what 

you are allowed to say with privilege hovering over your head, and 

what they are allowed to say with those same privileges hovering 

over their heads? Should the rules be any different? If you can’t say 

yes to that, then we—you know, then that is fundamentally unfair. 

65

It is saying that these hearings—or it is saying, really, that the administration doesn’t have the confidence to get out the whole truth. 

Attorney General GONZALES. Sir, my hesitation is, is quite frankly I haven’t thought recently about the issue about former employees coming to testify about their legal analysis or their legal recommendations to their client. And that is the source of my hesitation. 

Senator SCHUMER. I was just—my time—

Chairman SPECTER. Senator Schumer, take 2 more minutes, for 

my interruption. 

Senator SCHUMER. Well, thank you, Mr. Chairman. 

Chairman SPECTER. Providing you move to another subject. 

Senator SCHUMER. Well, OK. 

[Laughter.] 

Senator SCHUMER. I just—again, I think this is very important, 

Mr. Chairman. 

Chairman SPECTER. Oh, I do, too. 

Senator SCHUMER. And I think you would agree. 

Chairman SPECTER. If this were a court room, I would move to 

strike all your questions and his answers because the record was 

so much better off before. 

Senator SCHUMER. Well, I don’t buy that, Mr. Chairman. 

Chairman SPECTER. But take 2 more minutes on the conditions 

stated. 

Senator SCHUMER. I don’t buy that. I think we have to try to tie 

down as much as we can here. OK? 

Let me go to another bit of questions here. 

You said, Mr. Attorney General, that the AUMF allowed the 

President—that is one of the legal justifications, the Constitution—

to go ahead with this program. Now, under your legal theory, could 

the Government, without ever going to a judge or getting a warrant, search an American’s home or office? 

Attorney General GONZALES. Of course, Senator, any authorization or activity by the President would be subject to the Fourth 

Amendment. What you are talking about—I mean I presume you 

are talking about a law enforcement effort—

Senator SCHUMER. Let me interrupt for a minute. Aren’t wiretaps subject to the Fourth Amendment as well? 

Attorney General GONZALES. Of course they are. 

Senator SCHUMER. So they are both subject. What would prevent 

the President’s theory, your theory, given the danger, given maybe 

some of the difficulties, from going this far? 

Attorney General GONZALES. Well, sir, it is hard to answer a hypothetical question the way that you have posed it in terms of how 

far do the President’s authorities extend. However far they may extend, Senator, they clearly extend so far as to allow the President 

of the United States to engage in electronic surveillance of the 

enemy during a time of war. 

Senator SCHUMER. Could he engage in electronic surveillance 

when the phones calls both originated and ended in the United 

States if there were al Qaeda suspects? 

Attorney General GONZALES. I think that question was asked 

earlier. I have said that I do not believe that we have done the 

analysis on that. 

66

Senator SCHUMER. I did not ask that. I asked what do you think 

the theory is? 

Attorney General GONZALES. That is a different situation, Senator, and again, these kind of constitutional questions, I would—

I could offer up a guess, but these are hard questions. 

Senator SCHUMER. Has this come up? Has it happened? 

Attorney General GONZALES. Sir, what the President has authorized is only international phone calls. 

Senator SCHUMER. I understand. Has there been a situation 

brought to your attention where there were al Qaeda call—someone 

suspected of being part of al Qaeda or another terrorist group calling someone from the United States to the United States? 

Attorney General GONZALES. Sir, now you are getting into sort 

of operations, and I am not going to respond to that. 

Senator SCHUMER. I am not asking any specifics. I am asking 

ever. 

Attorney General GONZALES. You are asking about how this program has operated, and I am not going to answer that question, 

sir. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Schumer. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. I think your comments, Mr. Chairman, about this not being a court of law are apt, 

because I do not think we are going to get resolution about the disagreement among lawyers as to what the legal answer is. But I do 

believe it is important to have the hearing and to air the various 

points of view. 

But I would hope, and I trust, on the lines of what Senator Schumer stated, that there would be a consensus on the Committee and 

throughout the Congress that we should use all legal means available to us to gather actionable intelligence that has to potential of 

saving American lives. You certainly would agree with that, 

wouldn’t you, General Gonzales? 

Attorney General GONZALES. Yes, Senator. 

Senator CORNYN. Some have stated the question like this. They 

say, ‘‘Has the Foreign Intelligence Surveillance Act, which was 

passed in 1978, authorized the President to conduct this particular 

program?’’ I have a couple of problems with the question stated in 

that way. 

Number one, the technology has surpassed what it was in 1978, 

so our capacity to gain actionable intelligence has certainly 

changed. And the very premise of the question suggests that the 

President can only exercise the authority that Congress confers. 

When people talk about the law, the law that pertains to this particular question is not just the Foreign Intelligence Surveillance 

Act, but it includes the Constitution and the Authorization for Use 

of Military Force; would you agree with that, General Gonzales? 

Attorney General GONZALES. Senator, you raise a very important 

point. People focus on the Foreign Intelligence Surveillance Act and 

say, this is what the words say, and that is the end of it. If you 

are not following it in total, you are obviously in violation of the 

law. That is only the beginning of the analysis. You have to look 

to see what Congress has done subsequent to that, and then, of 

67

course, you have to look at the Constitution. There have been many 

statements today about no one is above the law, and I would simply remind—and I know this does not need to be stated—but no 

one is above the Constitution either, not even the Congress. 

Senator CORNYN. Clearly, the Supreme Court in the Hamdi case 

said what we all know to be the fact, that no President is above 

the law. No person in this country, regardless of how exalted their 

position may be, or how relatively modest their position may be, we 

are all governed by the Constitution and laws of the United States. 

Attorney General GONZALES. During my confirmation hearings, I 

talked about Justice O’Connor’s statement from Hamdi, that a 

state of war is not a blank check for the President of the United 

States. I said in my hearings that I agree with that. 

Senator CORNYN. General Gonzales, I regret to say that just a 

few minutes ago I was watching the ‘‘crawler’’ on a cable news network. It referred to the NSA program as ‘‘domestic surveillance,’’ 

which strikes me as a fundamental error in the accuracy of the reporting of what is going on here. You made clear that what has 

been authorized here is not ‘‘domestic surveillance,’’ that is, starting from and ending in the United States. This is an international 

surveillance of known al Qaeda operatives, correct? 

Attorney General GONZALES. I think people who call this a domestic surveillance program are doing a disservice to the American 

people. It would be like flying from Texas to Poland and saying 

that is a domestic flight. We know that is not true. That would be 

an international flight. And what we are talking about are international communications, and so I agree with your point, Senator. 

Senator CORNYN. With regard to the Authorization for Use of 

Military Force, some have questioned whether it was actually discussed in Congress whether surveillance of international phone 

calls—between al Qaeda overseas and here—was actually in the 

minds of individual Members of Congress when they voted to support the force resolution. It strikes me as odd to say that Congress 

authorized the Commander in Chief to capture, to detail, to kill, if 

necessary, al Qaeda, but we can’t listen to their phone calls and we 

can’t gather intelligence to find out what they are doing in order 

to prevent future attacks against the American people. 

You have explained the Department of Justice’s legal analysis 

with regard to the Hamdi decision—that intelligence is a fundamental incident of war. I think that analysis makes good sense. 

Here again, I realize we have some very fine lawyers on the Committee, and there are a lot of lawyers around the country who have 

opined on this, some of whom have been negative, some whom have 

been positive. I was struck by the fact that John Schmidt, who was 

Associate Attorney General during the Clinton Justice Department, 

wrote what I thought was an eloquent op-ed piece for the Chicago 

Tribune, dated December 21, 2005, agreeing with the administration’s point of view. But that is only to point out that lawyers, regardless of their party affiliation, have differing views on this 

issue. But again, I would hope that what we are engaged in is neither a partisan debate nor even an ideological debate, but a legal 

debate on what the Constitution and laws of the United States provide for. 

68

Let me turn to another subject that has caused me a lot of concern, and that is our espionage laws, and the laws that criminalize 

the intentional leaking of classified information. It is my understanding from the news reports that the Department of Justice has 

undertaken an investigation to see whether those who actually 

leaked this program to the New York Times or any other media 

outlet might have violated our espionage laws. Is that correct? 

Attorney General GONZALES. I can confirm, Senator, that investigation has been initiated. 

Senator CORNYN. Does that investigation also include any potential violation for publishing that information? 

Attorney General GONZALES. Senator, I am not going to get into 

specific laws that are being looked at, but, obviously, our prosecutors are going to look to see all of the laws that have been violated, 

and if the evidence is there, they are going to prosecute those violations. 

Senator CORNYN. Well, you may give me the same answer to this 

next question, but I am wondering, is there any exclusion or immunity for the New York Times or any other person to receive information from a lawbreaker seeking to divulge classified information? Is there any explicit protection in the law that says if you receive it and you publish it, you are somehow immune from a criminal investigation? 

Attorney General GONZALES. Senator, I am sure the New York 

Times has their own great set of lawyers, and I would hate in this 

public forum to provide them my views as to what would be a legitimate defense. 

Senator CORNYN. There are a lot of very strange circumstances 

surrounding this initial report in the New York Times, including 

the fact that the New York Times apparently sat on this story for 

a year, and then, of course, the coincidence, some might say, that 

the story was broken on the date that the Senate was going to vote 

on reauthorization of the PATRIOT Act. But we will leave that perhaps for another day. 

I will yield the rest of my time back. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Senator Durbin. 

Senator DURBIN. Thank you very much, Mr. Chairman. 

Thank you, Attorney General, for being here. During the course 

of this hearing you have referred to FISA several times as a useful 

tool, a useful tool in wiretapping and surveillance. I have thought 

about that phrase because it is a phrase that has been used by the 

White House too. 

Referring to FISA as a useful tool in wiretapping is like referring 

to speed limits and troopers with radar guns as useful tools on a 

motoring trip. I think FISA is not there as a useful tool to the administration. It is there as a limitation on the power of a President 

when it comes to wiretapping. I think your use of that phrase, useful tool, captures the attitude of this administration toward this 

law. We will use it when it does not cause a problem; we will ignore it when we have to. I think that is why we are here today. 

I am curious, Mr. Attorney General, as we get into this, and I 

look back on some of your previous testimony and what you said 

to this Committee in confirmation hearings and the like, how far 

69

will this administration go under the theories which you stated 

today to ignore or circumvent laws like FISA. I asked you during 

the course of the last—your confirmation hearing, a question about 

this whole power of the Commander in Chief. I wish I could play 

it to you here, but there is a decision made by the Committee that 

we are not going to allow that sort of thing to take place, but I do 

believe that if I could play it, you would be asked to explain your 

answer to a question which I posed to you. 

The question was this: ‘‘Mr. Attorney General, has this President 

ever invoked that authority as Commander in Chief or otherwise, 

to conclude that a law was unconstitutional and refuse to comply 

with it?’’

Mr. Gonzales: ‘‘I believe that I stated in my June briefing about 

these memos that the President has not exercised that authority.’’

You have said to us today several times that the President is 

claiming his power for this domestic spying, whatever you want to 

call it, terrorist surveillance program, because of the President’s inherent powers, his core constitutional authority of the executive 

branch. And so I have to ask you point blank, as Senator Feingold 

asked you earlier, you knew when you answered my question that 

this administration had decided that it was going to basically find 

a way around the FISA law based on the President’s, as you called 

it, inherent constitutional powers. So how can your response be 

valid today in light of what we now know? 

Attorney General GONZALES. It is absolutely valid, Senator. 

The—and this is going to sound repetitious—but it has never been 

our position that we are circumventing or ignoring FISA. Quite the 

contrary. The President has authorized activities that are totally 

consistent with FISA, with what FISA contemplates. I have indicated that I believe that putting aside the question of the authorization to use military force, that while it is a tough legal question 

as to whether or not Congress has the authority under the Constitution to cabin or to limit the President’s constitutional authority 

to engage in electronic surveillance of the enemy, that is not a 

question that we even need to get to. 

It has always been our position that FISA can be and must be 

read in a way that it doesn’t infringe upon the President’s constitutional authority. 

Senator DURBIN. Let me read to you what your own Justice Department just issued with in the last few weeks in relation to the 

President’s authority, the NSA program and FISA. I quote, ‘‘Because the President also has determined that NSA activities are 

necessary to the defense of the United States from a subsequent 

terrorist attack or armed conflict with al Qaeda,’’, I quote, ‘‘FISA 

would impermissibly interfere with the President’s most solemn 

constitutional obligation to defend the United States against foreign attack.’’

You cannot have it both ways. 

Attorney General GONZALES. And that is why—

Senator DURBIN. You cannot tell me that you are not circumventing it and then publish this and say that FISA interferes with 

the President’s constitutional authority. 

70

Attorney General GONZALES. And that is why you have to interpret FISA in a way where you do not tee up a very difficult constitutional question under the canons of constitutional avoidance. 

Senator DURBIN. What you have to do is take out the express 

language in FISA which says it is the exclusive means, it is exclusive. The way you take it out is by referring to—and I think you 

have said it over and over here again—you just have to look to the 

phrase you say, ‘‘except as otherwise authorized by statute.’’

Senator Feinstein and I were struggling. We were looking 

through FISA. Where is that phrase, ‘‘except as otherwise authorized by statute?’’ It is not in FISA. It is not in the FISA law. You 

may find it in the criminal statute and may want to adopt it by 

reference, but this FISA law, signed by a President and the law of 

the land, is the exclusive way that a President can wiretap. 

I want to ask you, if this is exclusive, why didn’t you take advantage of the fact that you had and the President had such a strong 

bipartisan support for fighting terrorism that we gave the President the PATRIOT Act with only one dissenting vote? We have 

supported this President with every dollar he has asked for to fight 

terrorism. Why didn’t you come to this Congress and say, ‘‘There 

are certain things we need to change,’’ which you characterized as 

cumbersome and burdensome in FISA. Why didn’t you work with 

us to make the law better and stronger and more effective when 

you knew that you had a bipartisan consensus behind you? 

Attorney General GONZALES. Senator, the primary criminal code, 

criminal provision in FISA, section 109, 50 U.S.C. 1809, it is page 

179 if you have one of these books, provides that ‘‘a person is guilty 

of an offense if he intentionally engages in electronic surveillance 

under cover of law except as authorized by statute.’’ This provision 

means that you have to engage in electronic surveillance as provided here, except as otherwise provided by statute. And this is a 

provision that we were relying upon. It is in the Foreign Intelligence Surveillance Act. 

Senator DURBIN. It is Title 18. But let me just tell you, what you 

do not want to read to us—

Attorney General GONZALES. Sir, it is not Title 18. 

Senator DURBIN. The Foreign Intelligence Surveillance Act of 

1978 ‘‘shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, interception of domestic wire or electronic communication may be conducted.’’

And so what you said is, well, when you authorized the war, you 

must have known that we were going to really expand beyond 

FISA. I have the book here. You can look through it if you like. 

There is not a single reference in our passing this AUMF that we 

talk about, Authorized Use of Military Force, not a single reference 

to surveillance and intelligence in the manner that you have described it. 

Attorney General GONZALES. Sir, there is probably not a single 

reference to detention of American citizens either, but the Supreme 

Court has said that that is exactly what you have authorized because it is a fundamental incident of waging war. 

Senator DURBIN. Since you have quoted that repeatedly, let me 

read what that Court has said. Hamdi decision: ‘‘We conclude that 

detention of individuals falling into the limited category we are 

71

considering for the duration of the particular conflict in which they 

are captured is so fundamental and accepted an incident to war to 

be an exercise of necessary and appropriate force.’’

Attorney General GONZALES. No question. That case was not 

about electronic surveillance. I will concede that. 

Senator DURBIN. I will tell you something else, Mr. Attorney 

General, if you then read, I think, the fine reasoning of Justice 

O’Connor, she comes to a point which brings us here today—and 

I thank the Chairman for allowing us to be here today—and this 

is what she says in the course of this decision. ‘‘It is during our 

most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested, and it is in those times 

that we must preserve our commitment at home to the principles 

for which we fight abroad.’’

We have said repeatedly, as nominees for the Supreme Court 

have come here, do you accept the basis of Hamdi, that a war is 

not a blank check for a President? They have said, yes, that is consistent with Jackson and Youngstown. Now what we hear from you 

is that you were going to take this decision in Hamdi and build it 

into a way to avoid the most basic statute when it comes to electronic surveillance in America, a statute which describes itself as 

the exclusive means by which this Government can legally do this. 

Attorney General GONZALES. Senator, I think that in reading 

that provision you just cited, you have to consider section 109. Section 109 contemplates an additional authorization by the Congress. 

Congress provided that additional authorization when it authorized 

the use of military force following the attacks of 9/11. 

Senator DURBIN. The last thing I would like to say—and I only 

have a minute to go—is the greatest fear that we have is that what 

this President is now claiming is going to go far beyond what you 

have described today. What you have described today is something 

we would all join in on a bipartisan basis to support, use every 

wiretap capacity you have to stop dangerous terrorists from hurting Americans. If you came to Capitol Hill and asked us to change 

a law in a reasonable way to reach that goal, you would have the 

same bipartisan support. Our concern is what this President is asking for will allow this administration to comb through thousands 

of ordinary Americans’ e-mails and phone calls. 

In the audience today is Richard Fleischer of Willow Brook, Illinois. I do not know if Mr. Fleischer is still here. Mr. Fleischer 

wrote to the NSA and asked if he had been wiretapped because he 

had had conversations with people overseas. And after several letters that he sent back and forth, the best he could get from the National Security Administration is that they would neither confirm 

nor deny the existence of records responsive to his request. Ordinary Americans wondering if their telephone calls, if their e-mails 

overseas have been wiretapped, and there is no safeguard for their 

liberty and freedom. 

What we have today is your announcement that career professionals and experts will watch out for the freedoms of America. Career professionals and experts, sadly, in our Nation’s history, have 

done things in the past that we are not proud of. Career professionals have made bad decisions, Japanese internment camps, enemies list. What we really rely on is the rule of law and the ConVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00079 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
72

stitution, safeguards we can trust by people we can see. When it 

comes to some person working at NSA, I don’t think it gives us 

much comfort. 

Chairman SPECTER. Thank you, Senator Durbin. 

Before yielding to Senator Brownback, I want to announce that 

I am going to have to excuse myself for just a few minutes. We are 

starting on floor debate this afternoon at 3 o’clock on the Asbestos 

Reform Bill, which Senator Leahy and I are cosponsors of, and I 

am scheduled to start the debate at 3 o’clock. I will return as soon 

as I have made a floor statement. In the interim, Senator Hatch 

has agreed to chair the hearing. 

Senator Brownback, you are recognized. 

Senator BROWNBACK. Thank you, Mr. Chairman. I appreciate the 

hearing. 

Attorney General, thank you for being here. I want to look at the 

reason we are in this war on terrorism. I want to talk about the 

length of time we may be in this war on terrorism, and then I went 

to look at FISA’s use forward from this point in the war on terrorism. 

I do not need to remind the Attorney General, but I certainly 

would my colleagues, that we are very actively engaged in a war 

on terrorism today. January 19th of this year, Osama bin Laden 

in a tape says this, quote, ‘‘The reason why we didn’t have such an 

operation will take place and you will see such operations by the 

grace of God.’’ And by that he is talking about more 9/11s, and that 

was January 19th, 2006. 

Al-Zawahiri, number two person, January 30th of this year says 

this, ‘‘Bush, do you know where I am? Among the Muslim masses 

enjoying their care with God’s blessings and sharing with them 

their holy war against you until we defeat you, God willing. The 

Lion of Islam, Sheik Osama bin Laden, may God protect him, offered you a decent exit from your dilemma, but your leaders who 

are keen to accumulate wealth insist on throwing you in battles 

and killing your souls in Iraq and Afghanistan, and God willing, on 

your own land.’’

I just want to remind people that as we get away from 9/11 and 

2001, we not forget that we are still very much in a war on terrorism and people are very much at war against us. 

We are talking about probably one of the lead techniques we can 

use in this war, which I would note, in recent testimony, General 

Hayden said this about the technique of the information you are 

using right now. He said, ‘‘Had this program been in effect prior 

to 9/11, it’s my professional judgment that we would have detected 

some of the 9/11 al Qaeda operatives in the United States, and we 

would have identified them as such.’’

Mr. Attorney General, I don’t know if you have a different opinion from General Hayden on that, but—

Attorney General GONZALES. I never have a different opinion 

from General Hayden on the intel capabilities that we are talking 

about here. Both he and Director Mueller have recently testified 

about the importance of the terrorist surveillance program. General 

Hayden did say it has been very successful, and we have gotten information we would not have otherwise gotten, that it has helped 

us, I think he said deter and detect attacks here and abroad. 

73

FBI Director Mueller said that it was a valuable tool, had helped 

identify would-be terrorists in the United States and helped identify individuals providing material support to terrorists. So those 

are experts saying how valuable this tool has been. 

Senator BROWNBACK. Having said that, I have read through most 

of your white paper material, and I have looked at a great deal of 

it. I am struck and I think we have an issue we need to deal with. 

Part of what we are working off of is a war declaration dated September 18th, 2001, a war declaration on Afghanistan, and a war 

declaration, October 16th, 2002 on use of military force in Iraq, and 

all necessary force, and all necessary—the President is authorized 

to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks. 

It strikes me that we are going to be in this war on terrorism 

possibly for decades. Maybe not, but this could be the cold war of 

our generation. Maybe it does not go that period of time, but it has 

the possibilities of going for some extended period of time. I share 

Senator DeWine’s concern that we should look then at the FISA 

law and make sure that as we move forward on this, that we are 

not just depending upon these authorizations of war to say that 

that puts us in a superior position under the Article II powers, but 

that to maintain the support of the American public, to have another set of eyes also looking at this surveillance technique is an 

important thing in maintaining the public support for this. 

I want to look and direct you to looking at the FISA law in particular. You have made some comments here this morning, today, 

that have been very well stated and thought through. You have to 

one point, the FISA law was not well structured to the needs of today’s terrorist war effort. That law was passed, what, 27 years ago, 

or something of that nature, and certainly didn’t contemplate a war 

on terrorism like we are in today. 

I want to look specifically at how we could amend that FISA law, 

looking at a possible decades long war on terrorism. 

One of the areas you have talked about that is cumbersome is 

the 72-hour provision within the law, if I am gathering what you 

are saying correctly. Congress extended this period from 24 to 72 

hours in 2001. Just looking narrowly at what would need to be 

done to use the FISA authority more broadly and still be able to 

stop terrorists, if that is extended further, would it make it more 

likely that you would use the FISA process, if that is extended beyond 72 hours? 

Attorney General GONZALES. It is hard to say, Senator, because, 

you know, whether it is 24, 72, whatever, I have got to make a determination under the law that at the time I grant emergency authorization, that all the requirements of FISA are met. I think 

General Hayden said it best yesterday, this is not a 72-hour sort 

of hall pass. I have got to know, when I grant that authorization, 

whether I then have 24 or 72 hours to submit a written application 

to the court, I have to know at the time I say, ‘‘Yes, go forward,’’ 

that all the requirements of FISA are met. That is the problem. 

If I could just also make one final point. 

Senator BROWNBACK. Fair enough. 

74

Attorney General GONZALES. There was not a war declaration either in connection with al Qaeda or in Iraq. It was an authorization to use military force. I only want to clarify that because there 

are implications—Obviously, when you talk about a war declaration, you are possibly talking about affecting treaties, diplomatic 

relations, and so there is a distinction in law and in practice, and 

we are not talking about a war declaration. This is an authorization only to use military force. 

Senator BROWNBACK. Looking forward in the war on terrorism 

and the use of FISA and this Committee’s desire, I believe, to have 

the administration wherever possible and more frequently use 

FISA—and you noted you have used it more this past year than 

the year before—what specific areas would make this decision on 

your part easier, more likely to use the FISA process? 

Attorney General GONZALES. Well, Senator, if you are talking 

about domestic surveillance in a peacetime situation, for other 

kinds of terrorists beyond al Qaeda, I am not sure—

Senator BROWNBACK. No. I am talking about the war on terrorism. 

Attorney General GONZALES. Senator, I would like the opportunity to think about that and maybe talk to the experts in the Department, I think would have a better sense about what kinds of 

specific things. I can say that the PATRIOT Act includes a provision which allows these orders to stay in place a longer period of 

time before they are renewed. It is quite burdensome, the fact that 

these things expire. We then have to go back and get a renewal. 

That just places an additional burden on our staff, but I would like 

to have the opportunity to get back to you about what other kinds 

of specific changes might be helpful. 

Senator BROWNBACK. If you could, because I think we are going 

to be in this for a period of time, and we are going to be in it for 

succeeding administrations in this war on terrorism, and probably 

our most valuable tool that we have is information, early information, to be able to cut this off. So the American public, I think, 

clearly wants us to be able to get as much information as we can. 

And yet, I think we need to provide a process that has as much 

security to the American public that there is no abuse in this system. This is about us trying to protect people and protect people 

in the United States. I want to know too, Presidential authority 

that you are protecting. This has been talked about by the Clinton 

administration Attorney General before, many others. It is not just 

this administration at all, as others have specifically quoted. But 

I do think as this wears on, we really need to have those thoughts 

at how we can make the FISA system work better. 

Attorney General GONZALES. Senator, we are likewise as concerned about ensuring that we protect the rights of all Americans. 

Senator BROWNBACK. I am sure you are, and I appreciate that. 

I want you to protect us from security attacks, too, and bin Laden, 

to my knowledge, when he normally makes a threat, he has followed through on these. This is a very active and live area. I just 

want to see if we can make that law change where it can work for 

a long-term war on terrorism. 

Thank you, Mr. Chairman. 

Senator HATCH. [Presiding.] Senator Leahy? 

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Senator LEAHY. Thank you, Mr. Chairman. 

Incidentally, Senator Brownback rightly pointed out the date 

when FISA was enacted, but, of course, we have updated it five 

times since 9/11, two of those when I was Chairman. In the year 

2000, the last year of the Clinton administration, they used the 

FISA Court 1,005 times. And in the year of September 11th, your 

administration there, they actually used it less times even than the 

Clinton administration used it before. 

I am just curious. When I started this morning, I asked you a 

very straightforward question. I told you I would come back to it. 

I am sure you have had time to check for the answer during the 

lunch hour. So I come to you again with it. When did the Bush administration come to the conclusion that the congressional resolution authorizing the use of military force against al Qaeda also authorized warrantless wiretapping of Americans inside the United 

States? 

Attorney General GONZALES. Sir, the authorization of this program began—

Senator LEAHY. I cannot hear you. Could you pull your mike a 

little bit closer? 

Attorney General GONZALES. Pardon me. The authorization regarding the terrorist surveillance program occurred subsequent to 

the authorization to use military force and prior to the PATRIOT 

Act. 

Senator LEAHY. OK. So what you call terrorist surveillance, some 

would call the breaking of the Foreign Intelligence Surveillance 

Act. I am asking when did you decide that the authorization for 

use of military force gave you the power to do this? I mean, you 

were White House Counsel then. What date did it give you the 

power? 

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

dates about when—

Senator LEAHY. That is what I asked you this morning, and you 

had the time to go and look. You had to sign that or sign off on 

that before the President—when did you reach the conclusion that 

you didn’t have to follow FISA? 

Attorney General GONZALES. Sir, I am not going to give an exact 

date as to when the program actually commenced—

Senator LEAHY. Why not? 

Attorney General GONZALES [continuing]. But it has always been 

the case—because that is an operational detail, sir. I have already 

indicated—the Chairman has invited me—the Committee has invited me here today to talk about the legal analysis of what the 

President authorized. 

Senator LEAHY. We are asking for the legal analysis. I mean, obviously you had to make a determination that you had the right 

to do this. When did you make the determination that the AUMF 

gave you the right to do this? 

Attorney General GONZALES. From the very outset, before the 

program actually commenced. It has always been the position that 

FISA cannot be interpreted in a way that infringes upon the President’s constitutional authority, that FISA must be interpreted, can 

be interpreted in a way—

76

Senator LEAHY. Did you tell anybody that when you were up 

here seeking the PATRIOT Act and seeking the changes in FISA? 

Did you tell anybody you had already determined—I mean, it is 

your testimony here today that you made the determination virtually immediately that you had this power without using FISA. 

Attorney General GONZALES. Well, sir, the fact that we were having discussions about the PATRIOT Act and there wasn’t a specific 

mention about electronic surveillance with respect to this program, 

I would remind the Committee that there was also discussion about 

detention in connection with the PATRIOT Act discussions. Justice 

Souter in the Hamdi decision made that as an argument, that 

clearly Congress did not authorize—

Senator LEAHY. Judge Gonzales, I am not asking about what 

happens when you catch somebody on a battlefield and detain him. 

I am not asking about what you do on the battlefield in our failed 

attempt to catch Osama bin Laden, what we were actually asking 

the administration to do. I am not asking about what happens on 

that battlefield. I am asking why did you feel that this—now, your 

testimony is that virtually immediately you determined you had 

the power to do this warrantless wiretapping because of the 

AUMF. You did not ask anybody up here. Did you tell anybody 

that you needed something more than FISA? 

Attorney General GONZALES. Sir, I don’t recall—did I tell anyone 

in Congress or tell—

Senator LEAHY. Congress. Let’s take Congress first. 

Attorney General GONZALES. Sir, I don’t recall having conversations with anyone in Congress about this. 

Senator LEAHY. All right. Do you recall that anybody on this 

Committee, which actually is the one that would be amending 

FISA, was told? 

Attorney General GONZALES. Sir, I have no personal knowledge 

that anyone on this Committee was told. 

Senator LEAHY. Now, apparently, then, according to your interpretation, Congress—a lot of Republicans and a lot of Democrats—

disagree with you on this—we were authorizing warrantless wiretapping. Were we authorizing you to go into people’s medical 

records here in the United States by your interpretation? 

Attorney General GONZALES. Senator, whatever the limits of the 

President’s authority given under the authorization to use military 

force and his inherent authority as Commander in Chief in time of 

war, it clearly includes the electronic surveillance of the enemy. 

Senator LEAHY. Well, I would just note that you did not answer 

my question, but here you also said, ‘‘We have had discussions with 

the Congress in the past, certain Members of Congress, as to 

whether or not FISA could be amended to allow us to adequately 

deal with this kind of threat. We were advised that that would be 

difficult, if not impossible.’’

That is your statement. Who told you that? 

Attorney General GONZALES. Senator, there was discussion with 

a bipartisan group of Congress, leaders in Congress, leaders of the 

Intel Committees, to talk about legislation, and the consensus was 

that obtaining such legislation—the legislative process is such that 

it could not be successfully accomplished without compromising the 

program. 

77

Senator LEAHY. When did they give you that advice? 

Attorney General GONZALES. Sir, that was some time in 2004. 

Senator LEAHY. Three years later. I mean, you have been doing 

this wiretapping for 3 years, and then suddenly you come up here 

and say, ‘‘Oh, by the way, guys, could we have a little bit of authorization for this?’’ Is that what you are saying? 

Attorney General GONZALES. Sir, it has always been our position 

that the President has the authority under the authorization to use 

military force and under the Constitution. 

Senator LEAHY. It has always been your position, but, frankly, it 

flies in the face of the statute, Mr. Attorney General, and I doubt 

very much if one single person in Congress would have known that 

was your position, had you not known the newspapers were going 

to print what you were doing. Not that anybody up here knew it. 

When you found out the newspapers were going to print it, you 

came up here. Did you talk to any member of the Judiciary Committee that would actually write it? And let me ask you this: Did 

any member of this Committee, this Judiciary Committee that has 

to write the law, did anybody here tell you we could not write a 

law that would allow you to go after al Qaeda in the way you are 

talking about? 

Attorney General GONZALES. Sir, I don’t believe there were any 

discussions with any members of the Judiciary Committee about—

Senator LEAHY. Even though we are the ones that have to write 

the law, and you are saying that you were told by Members of Congress we couldn’t write a law that would fit it. And now you tell 

us that the Committee that has to write the law never was asked. 

Does this sound like a CYA on your part? It does to me. 

Attorney General GONZALES. We had discussions with the bipartisan leadership of the Congress about this program. 

Senator LEAHY. But not from this Committee. We have both Republicans and Democrats on this Committee, you know. 

Attorney General GONZALES. Yes, sir, I do know that. 

Senator LEAHY. And this Committee has given you—twice under 

my chairmanship—we have given you five amendments to FISA because you requested it. But this you never came to us. 

Mr. Attorney General, can you see why I have every reason to 

believe we never would have found out about this if the press 

hadn’t? Now, there has been talk about, well let’s go prosecute the 

press. Heavens. Thank God we have a press that at least tells us 

what the heck you guys are doing, because you are obviously not 

telling us. 

Attorney General GONZALES. Sir, we have advised bipartisan 

leadership of the Congress and the Intel Committees about this 

program. 

Senator LEAHY. Well, did you tell them that before the passage 

of the USA PATRIOT Act? 

Attorney General GONZALES. Sir, I don’t recall when the first 

briefing occurred, but it was shortly—my recollection is it was 

shortly after the program was initiated. 

Senator LEAHY. OK. Well, let me ask you this then. You said several years after it started you came up here and talked to some 

group of Members of Congress. The press reports that the President’s program of spying on Americans without warrants was shut 

78

down for some time in 2004. That sounds like the time you were 

up here. If the President believed the program was necessary and 

legally justified, why did he shut it down? 

Attorney General GONZALES. Sir, you are asking me about the 

operations of the program, and I am not going to—

Senator LEAHY. Of course. I am sorry, Mr. Attorney General. I 

forgot you can’t answer any questions that might be relevant to 

this. 

Well, if the President has that authority, does he also have the 

authority to wiretap Americans’ domestic calls and e-mails under 

this—let me finish—under this authority if he feels it involved al 

Qaeda activity? I am talking about within this country, under this 

authority you have talked about, does he have the power to wiretap 

Americans within the United States if they are involved in al 

Qaeda activity? 

Attorney General GONZALES. Sir, I have been asked this question 

several times—

Senator LEAHY. I know, and you have had somewhat of a vague 

answer, so I am asking it again. 

Attorney General GONZALES. And I have said that that presents 

a different legal question, a possibly tough constitutional question, 

and I am not comfortable just off the cuff talking about whether 

or not such activity would, in fact, be constitutional. 

I will say that that is not what we are talking about here. That 

is not what—

Senator LEAHY. Are you doing that? 

Attorney General GONZALES [continuing]. The President has authorized. 

Senator LEAHY. Are you doing that? 

Attorney General GONZALES. I cannot give you assurances. That 

is not what the President has authorized—

Senator LEAHY. Are you doing that? 

Attorney General GONZALES [continuing]. Through this program. 

Senator LEAHY. Are you doing that? 

Attorney General GONZALES. Senator, you are asking me again 

about operations, what are we doing. 

Senator LEAHY. Thank you. 

Senator HATCH. Throughout this process, you don’t know when 

it began, but at least eight Members of Congress have been informed about what has been disclosed by people who have violated 

the law in disclosing it and by the media that has printed the disclosures. Is that correct? 

Attorney General GONZALES. That is generally correct, sir. Yes, 

sir. 

Senator HATCH. Did you have one complaint about the program 

from any of the eight—and that was bipartisan, by the way, those 

eight people. Four Democrats—

Attorney General GONZALES. They were not partisan briefings. 

Senator HATCH. Four Democrat leaders in the Congress, four Republican leaders in the Congress. Is that right? 

Attorney General GONZALES. It was a bipartisan briefing, yes, 

sir. 

Senator HATCH. Did you have any gripes or complaints about 

what was disclosed to them, to the best of your recollection? 

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Attorney General GONZALES. Well, again, I want to be careful 

about speaking for Members, but—

Senator HATCH. I am not asking you to speak for Members. I am 

asking you if you had any gripes or complaints. 

Attorney General GONZALES. Again, I wasn’t present—

Senator HATCH. Or suggestions. 

Attorney General GONZALES. I wasn’t present at all the briefings. 

But for those briefings that I was present at, they received very detailed briefings about these operations. They were given ample opportunity to ask questions. They were given ample opportunity to 

express concerns. 

Senator HATCH. Now, you were somewhat criticized here in some 

of the questions that your argument that the authorized use of 

military force is a faulty argument because the FISA Act does not 

really talk about except as authorized by statute. But you have 

pointed out that Section 109, or if you want to be more specific, 

Section 1809 of Title 50, Chapter 36, subchapter 1, 1809, does say 

that a person is guilty of an offense if he intentionally engages in 

electronic surveillance under color of law except as authorized by 

statute. 

Attorney General GONZALES. That is the main criminal prohibition against engaging in electronic surveillance, except as otherwise provided for by statute or except—I mean, except as otherwise 

provided by FISA or except as otherwise provided by statute. 

Senator HATCH. Now, this authorized use of military force enabled you ‘‘to use all necessary and appropriate force against the 

nations, organizations, or persons the President determines 

planned, authorized, committed, or aided the terrorist attacks.’’ Is 

that correct? 

Attorney General GONZALES. This is a very important point, Senator. Think about it. The authorization does not identify specifically—it never mentions the word ‘‘al Qaeda.’’ It authorizes the 

President to engage in all necessary and appropriate force to identify those he determines, who the President determines, and the 

President is not able to do that without information, without intelligence, without the kind of electronic surveillance we are talking 

about today. 

Senator HATCH. That is right. As someone who helped to write 

the PATRIOT Act, the original PATRIOT Act, I cannot help but express the awareness of those of us around here that here we are 

well over a month after the expiration of the PATRIOT Act, and 

we keep renewing it from month to month because we cannot get 

Congress to really agree on what the changes should be. Is that a 

fair assessment? 

Attorney General GONZALES. Well, what I will say is I think the 

tools of the PATRIOT Act are important, and I hope that they are 

reauthorized quickly. 

Senator HATCH. But the reason I am bringing that up is because 

at one time at least one report was that one of these eight Members was asked—who had the program disclosed to them, at least 

remarked that he didn’t think that a statute could be passed to resolve these issues. 

Attorney General GONZALES. I do not want to attribute to any 

particular Member that statement. What I will say is that—

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Senator HATCH. You don’t have to do that, but is that true? 

Attorney General GONZALES. There was a consensus that pursuing the legislative process would likely result in compromising 

the program. 

Senator HATCH. In other words, it is not easy to get things 

through 535 Members of Congress, 435 in the House and 100 in 

the Senate. Now, I know that you love the Congress and will not 

find any fault with any of us. 

Attorney General GONZALES. Sir, you have been at this a little 

bit longer than I have, but it has certainly been my experience that 

it is sometimes difficult. 

Senator HATCH. Yes, it is. Is it not true that one check on the 

President’s power to operate the NSA surveillance program is the 

Congress’s power over the purse, as listed in Article I, section 8 of 

the Constitution? 

Attorney General GONZALES. Absolutely. I think even those who 

are sort of in the pro-executive camp in terms of the allocations of 

constitutional powers in a time of war would have to concede that 

the power of the purse is an extremely strong check on the President, on the Commander in Chief. 

Senator HATCH. Well, I have noticed that while many in Congress have sharply criticized the President and the NSA program 

that we have been discussing here, I am not aware of any Member 

of Congress introducing legislation to end the program through either an authorization or an appropriations mechanism. But from 

what we know about the intent of the program today, I expect a 

few Members of either the House or the Senate would vote to eliminate this program or cutoff its funding. And the reason I state that 

is because all of us are concerned about this battle that we are 

waging, that this is not an easy battle. This is a war unlike any 

war we have ever had before. And it is a very secret war on their 

side. And I think the administration has taken the position that we 

have got to be very careful about disclosures on our side as well. 

Is it not true that the disclosures that have occurred have very 

definitely hurt our ability to gather intelligence? 

Attorney General GONZALES. The Director of the CIA, I believe, 

has publicly commented that it has hurt us. 

Senator HATCH. It is important, General, to bring out that President Clinton’s administration ordered several warrantless searches 

on the home and property of a domestic spy, Aldrich Ames. That 

is true, isn’t it? 

Attorney General GONZALES. That is correct, sir. 

Senator HATCH. That was a warrantless set of searches. 

Attorney General GONZALES. That is correct, sir. 

Senator HATCH. And the Clinton administration also authorized 

a warrantless search of the Mississippi home of a suspected terrorist financier. Is that correct? 

Attorney General GONZALES. I think that is correct, sir. 

Senator HATCH. The Clinton Justice Department authorized 

these searches because it was the judgment of Deputy Attorney 

General Jamie Gorelick, somebody I have great admiration for—

and let me quote her. It has been quoted before, but I think it is 

worth quoting it again. This is the Deputy Attorney General of the 

United States in the Clinton administration. She said, ‘‘The PresiVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
81

dent has inherent authority to conduct warrantless physical 

searches for foreign intelligence purposes’’—now, this is against domestic people—‘‘and the rules and methodologies for criminal 

searches are inconsistent with the collection of foreign intelligence 

and would unduly frustrate the President in carrying out his foreign intelligence responsibilities.’’ You are aware of that quote. 

Attorney General GONZALES. I am aware of it, yes, sir. 

Senator HATCH. If the President has inherent ability to surveil 

American citizens in national security cases during peacetime, I 

guess what is bothering me, how can it be that President Bush is 

precluded, as some have argued, from surveilling al Qaeda sources 

by intercepting foreign calls into this country to people who may 

be al Qaeda, affiliated with al Qaeda, or affiliated with somebody 

who is affiliated with al Qaeda? How can that be? 

Attorney General GONZALES. Senator I think that the President’s 

authority as Commander in Chief obviously is stronger during a 

time of war. If the authorization to use military force did not exist 

or was repealed or was not interpreted in the way that we are advocating, then it seems to me you are teeing up a fairly difficult 

constitutional question as to whether or not Congress can constitutionally limit the President’s ability to engage in electronic surveillance of the enemy during a time of war. 

Senator HATCH. We were aware of the Clinton’s administration 

approaches. I don’t know of any Republicans who raised Cain about 

that. 

Walter Dellinger, the former head of the Office of Legal Counsel 

under President Clinton, in a final opinion published on July 14, 

1994, wrote, ‘‘Specifically, we believe that the prohibition on destruction of aircraft would not apply to the actions of United States 

military forces acting on behalf of the United States during its 

state of hostilities. We know specifically that the application of the 

provision to acts of the United States military personnel in a state 

of hostilities could lead to absurdities. For example, it could mean 

in some circumstances that military personnel would not be able to 

engage in reasonable self-defense without subjecting themselves to 

the risk of criminal prosecution.’’

General, do you believe that Walter Dellinger, who is now a critic 

of the President’s authorization of wartime surveillance of al 

Qaeda, was correct in 1994? 

Attorney General GONZALES. Sir, I have not studied that opinion 

in a while, but it sounds like it would be correct in my judgment. 

Senator HATCH. All right. Now, let me just bring up again, as I 

understand it, just so we can repeat it one more time, the administration takes the position that a further statute on top of Section 

109 of the FISA Act would also complement the Act, and the authorized use of military force granted by Congress is an acceptable, 

legitimate statute that goes to the point that I made earlier, to use 

all necessary and appropriate force against nations, organizations, 

or persons the President determines planned, authorized, committed, or aided the terrorist attacks, and that that justifies doing 

what you can to interdict these foreign terrorists who are calling 

in to our country to people who may also be affiliated. Now, as I 

understand it, that is part of it. 

82

The second part of it is the fact that you are citing that the 

President does have inherent powers under Article II of the Constitution to engage in these activities; and, third, that you have not 

violated the Fourth Amendment of the Constitution because the position you are taking under these circumstances with the obligation 

to protect this country are reasonable searches and seizures. 

Attorney General GONZALES. I think clearly these searches are 

reasonable given the circumstances, the fact that we have been attacked by an enemy here within this country. I think it would fall 

within the special needs jurisprudence as something that would 

allow warrantless searches. 

Let me just say that an important component of our argument 

relies upon the Canon of Constitutional Avoidance, because there 

are—I have heard some members of the Committee say they are 

not sure they buy the authorization to use military force analysis. 

If our interpretation is simply fairly possible, if it is only fairly possible, then the Court has held that that interpretation must be 

adopted if it means that we can avoid a tough constitutional issue. 

Senator HATCH. Well, thank you, sir. My time is done. 

Senator Feinstein? 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

Mr. Chairman, I want to respond to you on the Jamie GorelickAldrich Ames situation. 

Senator HATCH. Sure. 

Senator FEINSTEIN. Because, in fact, the law was changed directly after the Aldrich Ames case. I called because I heard you say 

this before, so I called Jamie Gorelick, and I asked her to put this 

in writing. She has done so, and I have it before me now. And she 

points out in this letter that her 1994 testimony arose in the context of congressional consideration of an extension of FISA to cover 

physical searches. And at the time FISA covered only electronic 

surveillance, such as wiretaps. 

In 1993, the Attorney General had authorized foreign intelligence 

physical searches in the investigation of Aldrich Ames, whose counsel thereafter raised legal challenges to those searches. Point: 

There was no law at that time. And then she goes on to say that 

the Clinton administration believed ‘‘it would be better if there 

were congressional authorization and judicial oversight of such 

searches. My testimony did not address inherent Presidential authority to conduct electronic surveillance, which was already covered by FISA.’’

I would ask that this letter and her testimony be entered into the 

record. 

Senator HATCH. Without objection, it will be entered into the 

record. 

Senator FEINSTEIN. Thank you. You know, I respect you greatly, 

but I think that is a bit of a red herring. 

Senator HATCH. Well, but you need to also quote in the same letter where she said, ‘‘My testimony did not address whether there 

would be inherent authority to conduct physical searches if FISA 

were extended to cover physical searches.’’ And she goes on. We 

will put it into the record. 

Senator FEINSTEIN. All right. Thank you. 

Senator SESSIONS. Mr. Chairman, could I just—

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Senator FEINSTEIN. If I—

Senator SESSIONS [continuing]. Say one point. Just one point. 

Senator FEINSTEIN. If I have extra time, you can speak as long 

as you—

Senator HATCH. You will have extra time. 

Senator SESSIONS. The Attorney General explained that when I 

asked him. He narrowed my question when I raised it and made 

that qualification. Perhaps you were not here when he did that. 

Senator FEINSTEIN. All right. Mr. Attorney General, it is my view 

that the briefings of the Big 8 essentially violate the law as well. 

I believe that is a second violation of law, because I believe that 

Section 502, 5 U.S.C. 413(a)(1) and (2) and (b)(1) and (2) specifically say how the Intelligence Committee should be notified. I was 

present in the Intelligence Committee in December of 2001 when 

this was considered. And Senator Graham was Chairman of the 

Committee, and the Committee really wanted all sensitive intelligence reported in writing. And what this did was set up a mechanism for that. 

So, in my view, it was very clear that what the Intelligence Committee wanted at that time was all sensitive intelligence outside of 

covert to be reported to the Committee, and this set up the format. 

Now, let me just move on, if I can. 

Attorney General GONZALES. Senator, could I respond to that? 

Senator FEINSTEIN. Sure. Of course. 

Attorney General GONZALES. Because I disagree. First of all, both 

Chairman Roberts and Chairman Hoekstra disagree. They believe 

that we have provided notice as required by the law to the Intel 

Committees, and they both take the position that nowhere in the 

law does it requires that each individual member of the Intel Committee be briefed. 

The section that I think you quoted to—and I must tell you 

sometimes it gets kind of confusing to read these (bb)’s and (ii)’s. 

It gets kind of confusing. I think you are referring to a section 

which imposes an obligation on the President to ensure that agencies within the administration meet the notice requirements. If you 

go to the actual notice requirements under 413a.(a) and 413b.(b), 

those impose the obligations to make sure that the Intel Committees are currently and fully informed. However, a.(a), which deals 

with non-covert action, and b.(b), which deals with covert action, 

both have a proviso that, to the extent it doesn’t mean compromising—and I am paraphrasing here—sources and methods and especially sensitive matters. And so I think we have been acting consistent with the law based upon these provisions that I just cited. 

There has been a long practice of giving briefings only to the Chair 

and Ranking or a certain limited subset of the Intel Committees. 

And, again, I would just simply remind the Senator, I know Chairmen guard their prerogatives jealously, and both the Chairmen of 

the Intel Committees, Senate and House, both Chairmen have said 

we have met our obligations to provide briefings to the Intel Committee. 

Senator FEINSTEIN. Well, my reading of the law, I disagree. I still 

disagree. I recognize we have a difference of opinion. I will propose 

an amendment to strengthen it in the next authorization bill. To 

84

me—and I remember being there. I remember the discussion. And, 

anyway, I would like to move on. 

I am puzzled, and I want to go back to why you did not come 

for a change in FISA. Let me just read off a few of the changes that 

we have made to FISA. We extended the emergency exemption 

from 24 to 72 hours. We lowered the legal standard for surveillance 

to the significant purpose test. We allowed for John Doe roving 

wiretaps. We lowered the standard for FISA pen traps. We expanded their scope to include Internet routing information. We extended the scope of business records that can be sought under 

FISA. We extended the duration of FISA warrants. We broadened 

FISA to enable the surveillance of lone wolf terrorists. And we 

made the Director of National Intelligence the lead authority. 

Now, in view of the changes that we have made, I cannot understand why you did not come to the Committee unless the program 

was much broader and you believed it would not be authorized. 

That is the only reason I can figure you did not come to the Committee, because if the program is as the President has said and you 

have said, to this date you haven’t briefed the Intelligence Committee. You haven’t let us ask the question, What is a link? What 

is an affiliate? How many people are covered? What are the precise—and I don’t believe in the briefings those questions were 

asked. What are the precise numbers? What happens to the data? 

How long is it retained in the data base? When are innocent people 

taken out of the data base? 

Attorney General GONZALES. Senator, I—

Senator FEINSTEIN. I can only believe—and this is my honest 

view—that this program is much bigger and much broader than 

you want anyone to know. 

Attorney General GONZALES. Well, Senator, of course, I cannot 

talk about aspects here that are beyond what the President has already confirmed. What I can say is that those Members of Congress 

who have received briefings know—I think they know, and, of 

course, I don’t know what they actually know. But they have been 

briefed on all the details about all the activities. So they know 

what is going on. 

Senator FEINSTEIN. I understand your point of view. This morning, I asked you whether there was any Supreme Court cases—this 

goes to precedent—that has held that the President can wiretap 

Americans since the Congress passed the FISA law, and you responded In re Sealed Case. 

Attorney General GONZALES. Which, of course, is not a Supreme 

Court case. 

Senator FEINSTEIN. That is right. I was going to bring that up, 

which is not a Supreme Court case. 

Attorney General GONZALES. And I apologize if I was not clear. 

Senator FEINSTEIN. I just wanted to come back at you. So it is 

pure dicta, and—

Attorney General GONZALES. It was not. Absolutely right, Senator. 

Senator FEINSTEIN. I wanted to ask a question that you might 

not like, but I am going to ask it anyway. At the time of the In 

re Sealed Case, did the Department of Justice or other administraVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00092 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
85

tion officials tell the FISA Court that warrantless domestic electronic wiretapping was going on? 

Attorney General GONZALES. In connection with that litigation, 

not to my knowledge, Senator. 

Senator FEINSTEIN. OK. And since the passage of FISA, has any 

court spoken specifically to the President’s authority to conduct 

warrantless domestic electronic surveillance? Since the passage of 

FISA, any Supreme Court—

Attorney General GONZALES. The Supreme Court? I do not believe so. I think the last word on this by the Supreme Court is the 

Keith case, the 1972 case. And I think that year is right, and there 

the Court dealt with domestic security surveillance. And the Court 

was very clear, went out of its way, I believe, to make it clear that 

they were not talking about electronic surveillance for foreign intelligence purposes. 

Senator FEINSTEIN. Was the program mentioned to the Court in 

the Hamdi case? 

Attorney General GONZALES. I do not know the answer to that 

question, Senator. 

Senator FEINSTEIN. I would appreciate it if you could find the answer and let us know. 

Senator HATCH. Senator, take another 2 minutes because of our 

interruptions. 

Senator FEINSTEIN. Oh, thank you very much. 

This morning, you said, and I quote, ‘‘Presidents throughout our 

history have authorized the warrantless surveillance of the enemy 

during wartime.’’ Has any President ever authorized warrantless 

surveillance in the face of a statute passed by the Congress which 

prohibits that surveillance? 

Attorney General GONZALES. Actually, I think there was a statute on the books in connection with the order by President Roosevelt. I want to confirm that, but it is my recollection that that 

is, in fact, the case, that even though there was a statute on the 

books, and maybe even a Supreme Court case—I cannot remember 

now—President Roosevelt ordered electronic surveillance. 

Senator FEINSTEIN. I would be very interested to know that. 

As I understand your argument, it is that if one does not agree 

that the resolution to authorize military force provides a statutory 

exception to FISA, then FISA is unconstitutional—

Attorney General GONZALES. No—well, if that is the impression 

I gave, I don’t want to leave you with that impression. That tees 

up, I think, a difficult constitutional issue. I think it is an easier 

issue for the executive branch side than the facts that were dealt 

with under Youngstown v. Sawyer, because there you were talking 

about the President of the United States exercising dominion over 

part of our domestic industry, the steel industry. Here you are talking about what I think is a much more core constitutional right of 

the Commander in Chief. 

I believe that the President—that a statute that would infringe 

upon that I think would have some—there would be some serious 

constitutional questions there. But I am not prepared at this juncture to say absolutely that if the AUMF argument does not work 

here, that FISA is unconstitutional as applied. I am not saying 

that. 

86

Senator FEINSTEIN. All right. But you sidestep FISA using the 

plenary authority as Commander in Chief. The problem there, as 

I see it, is that Article I, section 8 gives the Congress the authority 

to make the regulations for the military. NSA is part of DOD. 

Therefore, the Congress has the right to make those regulations. 

Attorney General GONZALES. I think that the clause you are referring to is the clause in section 8 of Article I, which clearly gives 

to the Congress the authority and power to make rules regarding 

the Government and regulation of our Armed forces. And then the 

question is, well, electronic surveillance, is that part of the Government and regulation of our Armed Forces? There are many scholars 

who believe that there we are only talking about sort of the internal administration of our military, like court martials, like selective 

service. 

And so I think there would be a question, a good debate and discussion about whether or not—what does that clause mean and 

does it give to the Congress under the Constitution the authority 

to impose regulations regarding electronic surveillance? I am not 

saying that it doesn’t. I am just saying I think that is obviously a 

question that would have to be resolved. 

Senator HATCH. Senator, your time is up. 

Senator Grassley? 

Senator FEINSTEIN. Thank you very much. Thanks, Mr. Attorney 

General. 

Senator GRASSLEY. Thank you. 

It appears to me that FISA generally requires that if surveillance 

is initiated under the emergency authorization provisions and an 

order is not obtained from the FISA Court, the judge must ‘‘cause 

to be served on any U.S. person named in the application and on 

such other U.S. persons subject to electronic surveillance as the 

judge’’ believes warranted: the fact of the application; two, the period of the surveillance; and, three, the fact that during the period 

information was or was not obtained. 

So that brings these questions if that is a factual reading of the 

statute. Does this explain the caution and the care and the time 

that is used when deciding whether to authorize 72-hour emergency surveillance? And let me followup. And then the possibility 

that if you got it wrong, could you wind up tipping off an enemy? 

In this case, we are worried about al Qaeda terrorists. Would this 

interfere with the President’s ability to establish this vital early 

warning system under FISA? And is this one of the reasons then—

and this is the last question. Is this one of the reasons why FISA 

is not as nimble and quick a tool as you need to combat terrorist 

threats and that members of this Committee think ought to be 

used to a greater extent? 

Attorney General GONZALES. Senator, those are all very good 

questions. The reason we are careful about our work in seeking a 

FISA is because we want to get it right. We absolutely want to get 

it right in every case, and we have career professionals working 

hard on these kinds of issues. And we want to get it right. 

It is true that if I authorize an emergency—if I give an emergency authorization and an order is not obtained, my reading of the 

statute or my understanding of the statute is that the presumption 

is that the judge will then notify the target of that surveillance 

87

during that 72-hour period. We would have the opportunity and 

make arguments as to why the judge should not do that. But in 

making those arguments, we may have to disclose information certainly to the judge, and if we fail, the judge may very well notify 

the target that they were under surveillance. And that would be 

damaging. That could possibly tip off a member of al Qaeda or 

someone working with al Qaeda that we have reasons to be concerned about their activities. And so it is one of the many reasons 

why we take such great care to ensure that when I grant an emergency authorization, that all the requirements of FISA are met. 

The reason we have such a high approval rate at the FISA Court 

is not because the FISA Court is a rubber stamp. It is because we 

do our work in ensuring that those applications are going to meet 

the requirements of the statute. 

Senator GRASSLEY. What we know about al Qaeda and their 

method of operation, which I think at the very least we think that 

it involves the placement of sleeper cells in our country for months 

or—they look way ahead—it could even be for years for a planned 

attack, and the need to rely upon an electronic communication network to convey instructions to those cells from command structures 

that would be located for al Qaeda outside the country. The surveillance program authorized by the President was tailored precisely 

to meet the natures of the threat that we face as a nation, particularly with sleeper cells; would that be right? 

Attorney General GONZALES. It is a narrowly tailored program, 

and of course, that helps us in the Fourth Amendment analysis as 

to whether or not these are reasonable searches, and we believe 

that under the special needs jurisprudence, given the fact that we 

have been attacked from al Qaeda within our country, we believe 

that these would satisfy the requirements of the Fourth Amendment. 

Senator GRASSLEY. I think in your opening statement, didn’t you 

make a reference to bin Laden about his recent speech 2 weeks 

ago, and that is, obviously, a reiteration of the threat, and he said 

that these attacks, future attacks could dwarf the 9/11 magnitude? 

If that is true, is it in some sense incredible to you that we are sitting here having this discussion today about whether the President 

acted lawfully and appropriately in authorizing a program narrowly targeted an communication that could well lead to a disruption or prevention of such an attack? 

Attorney General GONZALES. Senator, I think that we should all 

be concerned to ensure that all branches of Government are operating within the limits of the Constitution. And so I can’t disagree 

with this hearing, the discussions, the questions in these hearings. 

I think we have a good story to tell from the administration viewpoint. I wish there were more that we could tell, because it is not 

simply a coincidence that the United States of America has not 

been hit again since 9/11. It is because of the brilliant and wonderful work of our men and women in the military overseas. It is because of tools like the PATRIOT Act. It is because of tools like the 

terrorist surveillance program. 

Senator GRASSLEY. Howard Dean, the Chairman of the Democratic Party was quoted recently as equating the terrorist surveillance program authorized by President Bush to, quote, ‘‘abuses of 

88

power during the dark days of the Nixon administration.’’ You are 

awful young, but does that have a fair comparison to you? And if 

it is not a fair comparison, why or why not? 

Attorney General GONZALES. Well, it is not a fair comparison. I 

would direct you and the other members of the Committee to 

Chairman Roberts’s response to Mr. Dean in terms of making it 

clear that what is going on here is much more akin to the directive 

by President Roosevelt to his Attorney General Jackson in terms 

of authorizing the Department to—authorizing his administration 

to initiate warrantless surveillance of the enemy, and so this is—

again, this is not domestic surveillance. This is not going after our 

political enemies. This is about international communications. This 

is about going after al Qaeda. 

Senator GRASSLEY. I wonder if you would discuss the nature of 

the threat posed by al Qaeda to our country, because al Qaeda operates not under the rules of law, but with disregard and contempt 

for conventional warfare. In combatting al Qaeda, can we afford to 

rely purely upon conventional law enforcement techniques such as 

those traditionally used to combat organized crime groups and al 

Qaeda traffickers, and if we were to do that, what would be the result? 

Attorney General GONZALES. The President expects us to use all 

the tools available under the Constitution. Obviously, we have 

strong law enforcement tools that we have been using and will continue to use. But this is also a very serious military campaign, and 

we are going to exercise and use all the tools, again, that are available to us in fighting this new kind of threat and this new kind 

of war. 

Senator GRASSLEY. I think we had some discussion from you 

about the review that goes on every 45 days or approximately every 

45 days, but the President himself said, quote, ‘‘carefully reviewed 

approximately every 45 days to ensure its ongoing propriety.’’ The 

surveillance is then reauthorized only after the President signs off 

on it. 

So I want to ask you a few questions about this review process. 

I want to ask these questions because it is important that the 

American people know whether the President has instituted appropriate procedures to guard against abuses. In the 42-page legal 

memorandum from your Department, it is noted about the program, quote, ‘‘Reviewed for legality by the Department of Justice 

and are monitored by the General Counsel and the Inspector General of the NSA to ensure that civil liberties are being protected.’’

I would like to give the opportunity to explain to the fullest extent possible, without compromising the programs, what, who, 

when, why, where and how of the periodic review. What can you 

tell us about the periodic review and reauthorization of the surveillance program? What assurances can you give the American people 

about their constitutional rights being zealously guarded against 

abuses? 

Attorney General GONZALES. There is a lot there in that question, Senator. I will do my best to respond. Obviously, this is a 

periodic review, approximately every 45 days or so. We have people 

from the intelligence community evaluate whether or not al 

89

Qaeda—what is the level of threat that continues to be posed by 

al Qaeda. 

During that period of time, we have monthly meetings out at 

NSA, where people who are involved in the program, senior officials, get together, sit down, talk about how the program is operating, ensuring that the program is being operated in a way that’s 

consistent with the President’s authorization. 

In connection with each authorization, the Department does 

make an analysis with respect to the legal authority of the President of the United States to move forward. And so there are administration lawyers that are involved, looking to see whether or 

not the President does still have the authority to authorize the terrorist surveillance program that I have described here today. 

Senator GRASSLEY. I think my time is up. I was going to have 

some followup questions on that point, but if it is necessary, I will 

submit it for answer in writing. 

Senator HATCH. Thank you, Senator. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. 

General Gonzales, when my time ended last time, we were beginning to talk about the President’s statements in the State of the 

Union that his predecessors used the same legal authority that he 

is asserting. Let me first ask, do you know of any other President 

who has authorized warrantless wiretaps outside of FISA since 

1978 when FISA was passed? 

Attorney General GONZALES. None come to mind, Senator, but 

maybe—I would be happy to look to see whether or not that is the 

case. 

Senator FEINGOLD. I take it as a no unless you submit something. 

Attorney General GONZALES. I can’t answer that—I can’t give 

you an answer. 

Senator FEINGOLD. OK. Isn’t it true that the only Federal courts 

to decide the President’s authority to authorize warrantless national security wiretaps were considering wiretaps carried out before the enactment of FISA? 

Attorney General GONZALES. I am sorry, Senator. I was thinking 

about your question and I—

Senator FEINGOLD. Would you like to answer the previous question? 

Attorney General GONZALES. No, but I was trying to think of an 

answer, and I did not catch the first part of your second question. 

Senator FEINGOLD. Isn’t it true that the only Federal courts that 

decide the President’s authority to authorize warrantless national 

security wiretaps were considering wiretaps that were carried out 

before the enactment of FISA? 

Attorney General GONZALES. In which there were actual decisions? Actually, there was a Fourth Circuit decision, the Truong

decision, which was decided after FISA. To be fair, I don’t think 

they really got into an analysis. 

Senator FEINGOLD. That case was about a Vietnam era wiretap 

before FISA was enacted, right? 

Attorney General GONZALES. The collection occurred before FISA 

was enacted. The decision was made after FISA, and consequently, 

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my recollection is, is that case doesn’t really get into a discussion 

about how the passage of FISA impacts—

Senator FEINGOLD. It was based in facts prior to FISA, then the 

law that controls is the law prior to FISA, right? 

Attorney General GONZALES. That is right. And then, of course, 

In re: Sealed Cases, that did not—

Senator FEINGOLD. You covered that with Senator Feinstein. 

That was dicta, correct? 

Attorney General GONZALES. Yes. 

Senator FEINGOLD. Thank you. So when the President said that 

Federal courts have, quote, ‘‘approved the use of that authority,’’ 

unquote, if he was trying to make people think that the courts had 

approved the authority he is invoking and the legal theory that you 

put forward here, that isn’t really accurate, is it? 

Attorney General GONZALES. The President was totally accurate 

in saying that in considering the question as to whether or not the 

President has inherent constitutional authority to authorize 

warrantless searches consistent with the Fourth Amendment to obtain foreign intelligence, the statement, I think, is perfectly accurate. 

Senator FEINGOLD. But he said the Federal courts had said it 

was all right. 

Attorney General GONZALES. That is right. 

Senator FEINGOLD. And you were not able to give me anything 

here since FISA that indicates that. 

Attorney General GONZALES. But, Senator, I don’t believe that he 

was making a statement since or before—he was making the statement the courts who have considered the President’s inherent constitutional authority, have—the Court of Appeals have said, and I 

think—there are five Court of Appeals decisions cited in the In re: 

Sealed Case. All of them have said, I believe, that the President 

does have the constitutional authority to engage in this kind of surveillance. 

Senator FEINGOLD. That is why we just went over all this because all of that is based on pre-FISA law. Here is my concern. The 

President has somehow suggested that he could not wiretap terrorists before he authorized this program. He said, quote, ‘‘If there are 

people inside our country who are talking with al Qaeda, we want 

to know about it.’’ Of course, I agree with that 100 percent, and we 

have a law that permits it. Isn’t it true that FISA permits the NSA 

to wiretap people overseas without a court order even if they call 

into the United States? 

Attorney General GONZALES. Well, of course, it depends, Senator. 

Senator FEINGOLD. It does do that in some circumstances, does 

it not? 

Attorney General GONZALES. It could do it in some circumstances 

depending on whether or not it is electronic surveillance as defined 

under FISA. As you know, they are very—I don’t want to say convoluted—it is a very complicated definition of what kind of radio 

or wire communications would in fact be covered by FISA. 

Senator FEINGOLD. General, I understand that, but clearly, FISA 

in part does permit that kind of activity in certain cases? 

Attorney General GONZALES. Depending on the circumstances. 

91

Senator FEINGOLD. To leave the impression that there is no law 

permitting that would be incorrect. 

Attorney General GONZALES. Well, of course not. We use FISA 

whenever we can. 

Senator FEINGOLD. That is what I am trying to get at, is the impression that the President left, I think in the State of the Union, 

was not completely accurate. Isn’t it true that FISA permits the 

FBI to wiretap individuals inside the United States who are suspected of being terrorists or spies so long as the FBI gets secret approval from a judge? 

Attorney General GONZALES. Senator, I think I have already said 

that with respect to even domestic communications involving members of al Qaeda, we use all the tools available to us including 

FISA. If we can get a FISA—

Senator FEINGOLD. So the fact is that when the President suggests that he doesn’t have that, that power doesn’t exist, that 

power does exist, at least in part, under FISA, under current law? 

Attorney General GONZALES. Senator, I don’t know whether or 

not that is what the President suggested, but clearly, the authority 

does exist for the FBI, assuming we can meet the requirements of 

FISA, assuming it is electronic surveillance covered by FISA, to engage in electronic surveillance of al Qaeda here in this country. 

Senator FEINGOLD. Here is what the President said. He said, ‘‘If 

there are people inside our country who are talking with al Qaeda, 

we want to know about it,’’ unquote. I was sitting in the room. He 

sure left me the impression that he was suggesting that without 

this NSA program, somehow he didn’t have the power to do that. 

That is misleading. So when the President said that he authorized 

a program to, quote, ‘‘aggressively pursue the international communications of suspected al Qaeda operatives and affiliates to and 

from America,’’ trying to suggest that without this program he 

could not do that under the law, that is not really right, is it? 

Attorney General GONZALES. Senator, I believe what the President has said is accurate. It is not misleading. The day following 

the New York Times story, he came out to the American people 

and explained what he had authorized. We have given numerous 

briefings to Congress since that day. I am here today to talk about 

legal authorities for this program. 

Senator FEINGOLD. I think the President’s comments in the State 

of the Union were highly misleading. The American people need to 

know that you already have legal authority to wiretap anyone you 

suspect of helping al Qaeda, and every person on this Committee 

and the Senate supports your use of FISA to do just that. 

Let me switch to another subject. Senator Feinstein sort of got 

at this, but I want to try a different angle. If you can answer this 

with a yes or no, I would, obviously, appreciate it. Has the President taken or authorized any other actions, any other actions that 

would be illegal if not permitted by his constitutional powers or the 

authorization to use military force? 

Attorney General GONZALES. Repeat your question, please, Senator. 

Senator FEINGOLD. Has the President taken or authorized any 

other actions that would be illegal if not permitted by his constitutional powers or the authorization to use military force? 

92

Attorney General GONZALES. You mean in direct contradiction of 

a statute, and relying upon his commander in chief authority? 

Senator FEINGOLD. Has he taken any other—yes, it would be a 

legal—

Attorney General GONZALES. Not to my knowledge, Senator. 

Senator FEINGOLD. In other words, are there other actions under 

the use of military force for Afghanistan resolution that without 

the inherent power would not be permitted because of the FISA 

statute? Are there any other programs like that? 

Attorney General GONZALES. Well, I guess what I would like to 

do, Senator, is I want to be careful about answering your question. 

I, obviously, cannot talk about operational matters that are not before this Committee today, and I don’t want to leave you with the 

wrong impression. So I would like to get back to you with an answer to that question. 

Senator FEINGOLD. I definitely prefer that to then being told that 

something is a hypothetical. 

On September 10, 2002, Associate Attorney General David Kris 

testified before the Senate Judiciary Committee. His prepared testimony includes the following statement. ‘‘Thus, both before and 

after the PATRIOT Act, FISA can be used only against foreign 

powers and their agents, and only where there is at least a significant foreign intelligence purpose for the surveillance. Let me repeat 

for emphasis, we cannot monitor anyone today whom we could not 

have monitored at this time last year,’’ unquote. 

And this last sentence was actually underlined for emphasis in 

the testimony, so let me repeat it too. ‘‘We cannot monitor anyone 

today whom we could not have monitored at this time last year.’’

Now, I understand that Mr. Kris did not know about the NSA 

program and has been highly critical of the legal justifications offered by the Department. I also realize that you were not the Attorney General in 2002, so I know you won’t know the direct answer 

to my question. But can you find out—and I would like if you can 

give me a response in writing—who in the White House had the 

Department of Justice reviewed and approved Mr. Kris’s testimony, 

and of those people, which of them were aware of the NSA program 

and thus let, obviously, a highly misleading statement be made to 

the Congress of the United States. Will you provide me with that 

information? 

Attorney General GONZALES. We will see what we can provide to 

you, Senator. My understanding is, is that Mr. Kris—I don’t think 

it is fair to characterize his position as highly critical. I think he 

may disagree, but saying it’s highly critical I think is unfair. 

Senator FEINGOLD. We could debate that, but the point here is 

to get to the underlying information. I appreciate your willingness 

to get that for me if you can. 

General Gonzales, I would like to explore a bit further the role 

of the telecommunications companies and Internet service providers in this program. As I understand it, surveillance often requires the assistance of these service providers, and the providers 

are protected from criminal and civil liability if they have been provided a court order from the FISA Court or criminal court, or if a 

high-ranking Justice Department official has certified in writing 

that, quote, ‘‘No warrant or court order is required by law that all 

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statutory requirements have been met and that the specified assistance is required.’’

Am I accurately stating the law? 

Attorney General GONZALES. I believe that is right, Senator, 

but—

Senator FEINGOLD. Have you or anyone at the Justice Department provided any telephone companies or ISPs with these certifications in the course of implementing the NSA’s program? 

Attorney General GONZALES. Senator, that is an operational detail that I just can’t go into in this hearing. 

Senator FEINGOLD. I look forward to an opportunity to pursue it 

in other venues. And thank you very much. 

Attorney General GONZALES. Thank you, Senator. 

Senator HATCH. Thank you, Senator. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. I hadn’t intended to ask 

any questions, but I think there are two areas that need to be 

cleared up, first with regard to two points that Senator Feingold 

said the President—in which the President made highly misleading 

statements, one in the State of the Union, allegedly leaving the impressions that the President had authority he did not have. 

When he discussed the authority that he had that other Presidents had, or had exercised, what was he referring to there? Was 

he referring to FISA, or was he referring to something else? 

Attorney General GONZALES. Senator, he was referring to the 

President’s inherent constitutional authority to engage in electronic 

surveillance of the enemy. 

Senator KYL. Exactly. And second, Senator Feingold asked you if 

there was authority under FISA to conduct wiretaps, including of 

suspected al Qaeda terrorists, and that it was misleading for the 

President to infer otherwise. Is it possible to acknowledge that 

FISA authority exists while also making the point that it is not the 

optimal or maybe even workable method of collection of the kind 

that is done under the surveillance program at issue here? 

Attorney General GONZALES. No question about it. It is one of 

the reasons for the terrorist surveillance program that while FISA 

ultimately may be used, it would be used in a way that has been 

less effective because of the procedures that are in FISA. 

Senator KYL. Thank you. Now, let me clear up a concern expressed by Senator Feinstein that the reason that Congress had 

not been asked to statutorily authorize this surveillance program 

may be because it is much bigger than we have been led to believe. 

Is that the reason? 

Attorney General GONZALES. Senator, the reason is because, 

quite frankly, we didn’t think we needed it under the Constitution, 

and also because we thought we had it with respect to the action 

by the Congress. We have believed from the outset that FISA has 

to be read in a way where it is not inconsistent with the President’s constitutional authority as Commander in Chief. 

Senator KYL. Right. Now, there was also discussion about briefings by the intelligence community, General Hayden and perhaps 

others, to what has been called the Big 8, which are the 4 elected 

leaders, bipartisan, of the House and Senate, and 4 chairmen and 

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gress. Was that the group that you referred to when you said that 

there had been discussion about whether to seek an amendment of 

FISA in the Congress? 

Attorney General GONZALES. Senator, it did include the leadership of the Congress and the leadership of the Intel Committees. 

Senator KYL. In terms of evaluating—also Senator Leahy asked 

the question about why you did not come to the members of this 

Committee. Who would be in a better position to judge or to assess 

the impact on our intelligence with respect to compromise of the 

program? Would it be leadership and chairmen and ranking members of the Intelligence Committees or members of this Committee 

that had not been read into the program? 

Attorney General GONZALES. Senator, the judgment was made 

that the conversation should occur with members of the Intel Committee and the leadership of the Congress, bipartisan. 

Senator KYL. And in fact, if you came to this Committee to see 

amendments to cover the program at issue, the members of this 

Committee would have to be read into the program, would they 

not? 

Attorney General GONZALES. Yes, sir. 

Senator KYL. Senator Leahy also said thank goodness—I am 

paraphrasing now—thank goodness that we have the press to tell 

us what the administration is doing with this program because we 

would not know otherwise. And of course, the press did disclose the 

existence of this highly classified program, which you have indicated has compromised the program to some extent or has done 

damage to it. I forgot your exact phrase. 

Attorney General GONZALES. Those, I believe, were the comments 

from the CIA Director. 

Senator KYL. And it seems to me, Mr. Chairman, that the attitude that it is a good thing that this program was compromised 

validates the view of the bipartisan leadership that briefing Members of Congress further, or at least briefing members of this Committee would further jeopardize the program. It seems to me that 

those entrusted with knowledge of this program must be committed 

to its protection. 

Thank you, Mr. Chairman. 

Senator HATCH. Thank you, Senator. 

Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman. 

I just want to go back to where we left off and then I will move 

forward, and thank you, General Gonzales. I know it has been a 

long day for you, especially with all that bobbing and weaving. It 

is not so easy. 

We talked before about the legal theory that you have under 

AUMF, and I had asked you that under your legal theory can the 

Government, without ever going to a judge or getting a warrant, 

search an American’s home or office? I am not saying—well, can 

you give me an answer to that? Why wouldn’t the same exact legal 

theory apply, that the Congress, in the resolution gave the President power he needed to protect America? Why is one different 

than the other, both at Fourth Amendment? 

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Attorney General GONZALES. Senator, I am not suggesting that 

it is different. Quite frankly, I would like the opportunity simply 

to—

Senator SCHUMER. I am sorry, if you could pull the mic forward. 

Attorney General GONZALES. I’m sorry. I am not saying that it 

would be different. I would simply like the opportunity to contemplate over it and give you an answer. 

Senator SCHUMER. And you will be back here so we can ask that, 

right? 

Attorney General GONZALES. According to the Chairman. 

Senator SCHUMER. OK, good. If not, I would ask unanimous consent that Mr. Gonzales—General Gonzales be given time to answer 

that one in writing. 

Senator HATCH. He said he would. 

Senator SCHUMER. Good. Now, here is the next question I have. 

Has the Government done this? Has the Government searched 

someone’s home, an American citizen, or office, without a warrant 

since 9/11, let’s say? 

Attorney General GONZALES. Sir, to my knowledge, that has not 

happened under the terrorist surveillance program, and I am not 

going to go beyond that. 

Senator SCHUMER. I do not know what—what you said, under 

the terrorist surveillance program. The terrorist surveillance program is about wiretaps. This is about searching someone’s home. 

It is different. So it would not be done under this surveillance program. I am asking you has it be done? 

Attorney General GONZALES. But now you are asking me questions about operations or possible operations, and I am not going 

to get into that, Senator. 

Senator SCHUMER. I am not asking you about any operation. I 

am not asking you how many times. I am not asking you where. 

Attorney General GONZALES. If you ask me has that been done. 

Senator SCHUMER. Yes. 

Attorney General GONZALES. Have we done something. 

Senator SCHUMER. Yes. 

Attorney General GONZALES. That is an operational question in 

terms of how we are using our capabilities. 

Senator SCHUMER. So you will not answer whether it is allowed 

and you will not answer whether it has been done. I mean is not 

part of your—in all due respect, as somebody who genuinely likes 

you—but isn’t this part of your job to answer a question like this? 

Attorney General GONZALES. Of course it is, Senator, and—

Senator SCHUMER. But you are not answering it. 

Attorney General GONZALES. Well, I am not saying that I will not 

answer the question. I am just not prepared to give you an answer 

at this time. 

Senator SCHUMER. All right. I have another one, and we can go 

through the same thing. How about wiretap under the illegal theory, can the Government, without ever going to a judge, wiretap 

purely domestic phone calls? 

Attorney General GONZALES. Again, Senator, give me an opportunity to think about that, but of course, that is not what this program is. 

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Senator SCHUMER. It is not. I understand. I am asking because 

under the AUMF theory, you were allowed to do it for these wiretaps. I just want to know what is going on now. Let me just—has 

the Government done this? You can get back to me in writing. 

Attorney General GONZALES. Thank you, Senator. 

Senator SCHUMER. And one other, same issue. Placed a listening 

device, has the Government, without ever going to a judge, placed 

a listening device inside an American home to listen to the conversations that go on there? Same answer? 

Attorney General GONZALES. Same answer, Senator. 

Senator SCHUMER. But now I have another one, and let’s see if 

you give the same answer here. And that is, under your legal theory, can the Government, without going to a judge—this is legal 

theory, I am not asking you whether they do this—monitor private 

calls of its political enemies, people not associated with terrorism, 

but people who they don’t like politically? 

Attorney General GONZALES. We are not going to do that. That’s 

not going to happen. 

Senator SCHUMER. All right. Next, different issue. Last week in 

the hearing before the Intelligence Committee, General Hayden refused to state publicly how many wiretaps have been authorized 

under this NSA program since 2001. Are you willing to answer that 

question, how many have been authorized? 

Attorney General GONZALES. I cannot—no, sir, I’m not at liberty 

to do that. I believe—and of course, I have not been at all the briefings for the congressional leaders, and the leaders of the Intel 

Committee. I believe that that number has been shared, however, 

with Members of Congress. 

Senator SCHUMER. You mean the Chair of the Intelligence Committee or something? It is not a classified number, is it? 

Attorney General GONZALES. It is a—I believe it is a classified 

number, yes, sir. 

Senator SCHUMER. Here is the issue. FISA is also important to 

our national security, and you have praised the program, right? 

Attorney General GONZALES. I couldn’t agree more with you, Senator. It’s very important. 

Senator SCHUMER. Now, FISA makes public every year the number of applications. In 2004 there were 1,758 applications. Why 

can’t we know how many under this program? Why should one be 

any more classified than the other? 

Attorney General GONZALES. I don’t know whether or not I have 

a good answer for you, Senator. 

Senator SCHUMER. I do not think you do. 

Attorney General GONZALES. The information is classified, and I 

certainly would not be at liberty to talk about it here in this public 

forum. 

Senator SCHUMER. And I understand this isn’t exactly your domain, but can you—I cannot even think of a rationale why one 

should be classified and one should be made routinely public. Both 

involve wiretaps. Both involve terrorism. Both involve protecting 

American security. And we have been doing the FISA one all along. 

I am sure if the—well, let me ask you this. If the administration 

thought that revealing the FISA number would damage security, 

wouldn’t they move to classify it? 

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Attorney General GONZALES. I think maybe—of course, now I am 

just—I am going to give you an answer. Perhaps it has to do with 

the fact that with—FISA, of course, is much, much broader. We’re 

talking about enemies beyond al Qaeda. We’re talking about domestic surveillance. We are talking about surveillance that may 

exist in peacetime, not just in wartime. And so perhaps the equities 

are different in making that information available to Congress. 

Senator SCHUMER. Would you support declassifying that number? 

Attorney General GONZALES. Senator, I would have to think 

about that. 

Senator SCHUMER. OK, we will wait for the next round. That is 

another. We have a lot of questions to followup on here. 

Attorney General GONZALES. I look forward to our conversation. 

Senator SCHUMER. Me too. Me too. 

Abuses. This is when Frank Church was speaking at the hearing 

that Senator Kennedy, I think, talked about much earlier this 

morning, he said the NSA’s, quote, capability at any time could be 

turned around on the American people and no American would 

have any privacy left. Such is the capability to monitor everything—telephone conversations, telegrams, it doesn’t matter. There 

will be no place to hide. 

Now it is 31 years later and we have even more technology. So 

there is the potential that Senator Church mentioned for abuse is 

greater. 

So let me ask you these questions. I am going to ask a few of 

them so you can answer them together. 

Have there been any abuses of the NSA surveillance program? 

Have there been any investigations arising from concerns about 

abuse of the NSA program? Has there been any disciplinary action 

taken against any official for abuses of the program? 

Attorney General GONZALES. Senator, I think that—

Senator SCHUMER. Because—this gets to the nub of things—this 

is what we are worried about. 

Attorney General GONZALES. Of course. 

Senator SCHUMER. Most of us, I think all of us, want to give the 

President the power he needs to protect us. I certainly do. But we 

also want to make sure there are no abuses. So if there have been 

some abuses, we ought to know about it. And it might make your 

case to say, yeah, we found an abuse, or a potential abuse, and we 

snuffed it out. 

Tell me what the story is. 

Attorney General GONZALES. Well, I do not have answers to all 

of these questions. I would like to remind people that, of course, 

even in the area of criminal law enforcement, when you talk about 

probable cause, sometimes there are mistakes made, as you know. 

Senator SCHUMER. No question. No one is perfect. 

Attorney General GONZALES. The mistake has to be one that 

would be made by a reasonable man. And so when you ask have 

there been abuses, I can’t—you know, these are all investigations, 

disciplinary action—

Senator SCHUMER. Yes, this is something you ought to know, if 

there has been any disciplinary action. Because I take it that would 

be taken—

98

Attorney General GONZALES. Not necessarily. I think the NSA 

has a regimen in place where they ensure that people are abiding 

by agency policies and regulations. 

Senator SCHUMER. If I asked those two questions about the Justice Department, any investigations arising out of concerns about 

abuse of NSA surveillance or any disciplinary action taken against 

officials, in either case by the Justice Department, you would know 

the answer to that. 

Attorney General GONZALES. I would probably know the answer 

to that, to my knowledge, no. 

Senator SCHUMER. Could you commit, when we come back, to tell 

us if there have been—you know, you can then go broader than 

what you know—more broadly than what you know now—

Attorney General GONZALES. In terms of what is going on at 

NSA or Justice? 

Senator SCHUMER. NSA. 

Attorney General GONZALES. Well—

Senator SCHUMER. I mean, as the chief law enforcement officer, 

it is still your job to sort of know what is going on in other agencies. 

Attorney General GONZALES. Well, sir, but if we are not talking 

about—Each agency has its own policies and procedures in place. 

Senator SCHUMER. I am just asking you when you come back 

next time to try and find the answers. 

Attorney General GONZALES. I will see what I can do about providing you additional information to your questions. 

Senator SCHUMER. A little soft, but I will have to take it, I guess. 

Thank you, Mr. Chairman. 

Senator HATCH. Thank you. 

Senator DeWine.

Senator DEWINE. Thank you, Mr. Chairman. 

Long day, Mr. Attorney General. Let me just ask you a few questions. We have had a lot of discussion today and you have referenced a lot to this group of 8, report to this group of 8. I just 

want to make a point. It is a small point, I guess, but the statutory 

authorization for this group of 8 is 50 USC 413b. When you look 

at that section, the only thing that it references as far as what this 

group of 8 does is receive reports in regard to covert action. So that 

is really what all it is. There is no—it does not cover a situation 

like we are talking about here at all. 

So I just want to make that point. We all have a great deal of 

respect for these eight people. It is a different group of 8 at different periods of time. We have elected them, we have selected 

them, they are leaders of the Congress. But there is no statutory 

authority for this group other than this section has to do with covert operations. And this is not a covert operation as defined in the 

specific section. 

Attorney General GONZALES. Senator, can I respond to you? 

Senator DEWINE. Sure. 

Attorney General GONZALES. Because I had a similar question 

from Senator Feinstein and I don’t know whether or not you were 

here. 

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First of all, again repeating for the record that of course the 

Chairman of the Senate Intel Committee and the Chairman of the 

House Intel Committee are both—

Senator DEWINE. And I was here when she—

Attorney General GONZALES. OK. Well, they both have communicated that we are meeting our statutory obligations. There is a 

provision that requires the President of the United States to ensure 

that agencies are complying with their notice requirements. The actual notice requirements, as I read it, are 413a(a) and 413b(b). And 

413a(a) deals with non-covert action; 413b(b) deals with covert action. And both of them—

Senator DEWINE. Mr. Attorney General, I don’t have much time. 

I don’t mean to be impolite. 

Attorney General GONZALES. That is all right. 

Senator DEWINE. I listen to that and I respect your position on 

it. My only point was a small point. 

Attorney General GONZALES. Yes, sir. 

Senator DEWINE. And that point simply is that when we referenced a group of 8, there is no statutory authorization for the 

group of 8 other than for a covert operation. I guess I am just kind 

of a strict constructionist, a kind of conservative guy, and that is 

how I read the statute. That is my only point. And I understand 

your legal interpretation. I respect that. But, you know, that is it. 

I don’t see it any other way on that. 

Let me ask you a couple of other questions that I wonder if you 

could clarify for me. One is the legal standard that you are using, 

that is being used by the NSA under this program for deciding 

when to conduct surveillance of a suspected terrorist. In your December 19th press conference you said that you must have a, and 

I quote, ‘‘reasonable basis to conclude’’ that one party to the communication is affiliated with al Qaeda. Speaking on Fox TV yesterday, General Hayden referred to the standard as ‘‘in the probable 

cause range.’’

Could you just define it for me? I know you have talked about 

it today, but we are hearing a lot of different definitions. 

Attorney General GONZALES. To the extent there is—

Senator DEWINE. You are the Attorney General. Just clarify it 

for me, pinpoint it, give me the definition that the people who are 

administering this every single day in the field are following. 

Attorney General GONZALES. To the extent there is confusion, I 

must—we must take some of the credit for some of the confusion, 

because we have used different words. The standard is a probable 

cause standard. It is reasonable grounds to believe—

Senator DEWINE. A probable cause standard. That doesn’t mean 

it is—is that different than probable cause as we would normally 

learn that in law school? 

Attorney General GONZALES. Not in my judgment. 

Senator DEWINE. OK. So that means—

Attorney General GONZALES. I think it is probable cause. But it 

is not probable cause as to guilt—

Senator DEWINE. I understand. 

Attorney General GONZALES [continuing].—or probable cause as 

to a crime being committed. It is probable cause that a party to the 

communication is a member or agent of al Qaeda. The precise lanVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00107 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
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guage that I would like you to refer to is a reasonable grounds to 

believe. Reasonable grounds to believe that a party to the communication is a member or agent of al Qaeda or of an affiliated terrorist organization. 

Senator DEWINE. So—

Attorney General GONZALES. It is a probable cause standard, in 

my judgment. 

Senator DEWINE. So probable cause. 

Attorney General GONZALES. It is probable cause. 

Senator DEWINE. And so all the case law or anything else that 

we would learn throughout the years about probable cause, about 

that specific question, would be what we would look at and what 

the people are being instructed to follow. 

Attorney General GONZALES. But again, it has nothing to do with 

probable cause of guilt or probable cause that a crime had been 

committed. It is about—

Senator DEWINE. I understand. We are extrapolating that traditional standard over to another question. 

Attorney General GONZALES. And the reason that we use these 

words instead of ‘‘probable cause’’ is because people relying upon 

the standard are not lawyers. 

Senator DEWINE. Let me followup. I don’t have much time. General Hayden described the standard as a softer trigger than the one 

that is used under FISA. 

What does that mean? 

Attorney General GONZALES. I think what General Hayden 

meant was that the standard is the same but the procedures are 

different, and that you have more procedures that have to be complied with under FISA. But the standards are the same in terms 

of probable cause. But there clearly are more procedures that have 

to be met under FISA, and that is what I believe General Hayden 

meant by ‘‘it’s a softer trigger.’’

Senator DEWINE. So it is more—it is a procedure issue, then. In 

other words, I have to go through more hoops on one, loops on the 

other. I mean, it is a difference what I have to go through, but my 

legal standard is the same. Is that what you are saying? 

Attorney General GONZALES. It is a probable cause standard for 

both and, yes, sir, the—what has to—

Senator DEWINE. It is the same standard. 

Attorney General GONZALES. It is the same standard. 

Senator DEWINE. Different question, but—

Attorney General GONZALES. Different procedures. 

Senator DEWINE [continuing]. The same standard. 

Final followup question on this. I believe you have said that the 

individual NSA analysts are the ones who are making these decisions. The people who are actually doing are making the decisions, 

obviously. What kind of training are these individuals given in regard to applying the standard? 

Attorney General GONZALES. Well—

Senator DEWINE. Are you involved in that or are you not involved in that? 

Attorney General GONZALES. This is primarily handled by the 

General Counsel’s Office at NSA. And as you know, they are very, 

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suring that all the activities that are ongoing out at NSA are consistent with the Constitution and certainly consistent with the authorization by the President for this terrorist surveillance program. 

Senator DEWINE. So this is not something your Department is 

directly involved in? 

Attorney General GONZALES. No, sir, I think it would be unfair 

to say that we are directly involved. We have provided some guidance, but I think it would be unfair to say that the Department of 

Justice has been intimately involved in providing training and 

guidance. This has been primarily—that, I think, aspect—I think 

it is fair to say that that responsibility has fallen primarily to the 

General Counsel’s Office out at NSA. 

Senator DEWINE. Well, Mr. Attorney General, I am going to conclude at this point. I just go back to what I said this morning, and 

that is, you know, we have heard a lot of debate, even more debate 

than we had this morning, about these legal issues. People on different sides of these legal issues. I just really believe it is in the 

country’s best interest, the President’s best interest to want—terrorism’s best interest, which is what we are all concerned about—

some 4 years or so after this program has been initiated for the 

President to come to Congress and to get—for us, the Intelligence 

Committee, which is the Committee that has jurisdiction, to take 

a look at this program, to get debriefing on the program, and then 

to see whatever changes in the law have to be made and to deal 

with it. I think you will be in a—the President will be in a much 

stronger position at this point to go forward, and it will be in the 

best interest of the country. 

So I thank you. 

Attorney General GONZALES. Thank you, Senator. 

Senator HATCH. Thank you, Senator. 

Senator Kennedy. 

Senator KENNEDY. Thank you, Mr. Chairman. And thank you, 

General Gonzales. I join all of those that paid tribute to you for 

your patience on this, and thank you for responding to these questions. 

Just to pick up on what my friend and colleague, Senator 

DeWine, has mentioned. I am in strong agreement with that recommendation. It is bipartisan. I didn’t have a chance to talk to 

Senator DeWine. I mentioned earlier in the course of our visit this 

morning that we had, I thought, extraordinary precedent with Attorney General Levi, and President Ford, where the members of 

this Committee, a number of us, went down to the Justice Department and worked with them. And they wanted to get it right on 

eavesdropping. And then General Levi had a day and a half where 

he listened to outside constitutional experts, because he wanted to 

get it right. 

My very great concern is that we are not getting it right. Maybe 

the NSA thinks that they are getting the information, but what we 

are seeing now with the leaks and others is that there are many 

people out there that wonder whether they are going to face future 

prosecution, whether the court system is going to be tied up because of information that is gained as a result of the NSA taps that 

is not going to be permitted, and that we are going to have these 

known al Qaeda personnel that are going to be either freed or 

102

given a lesser sentence or whatever, and that they are less inclined 

to sort of spill the beans because, if they know that they are going 

to get away or worse, they will be better prepared to make a deal 

with the law enforcement authorities than if they think they can 

tie up the courts. 

So in the FISA Act, as you well know, the 15 days that were included in there were included, as the legislative history shows, so 

that if they needed to have a broader context—it was spelled out 

in the legislative history—the administration would have 7 days allegedly to make emergency recommendations and we would have 

7 days to act. Maybe that was too precipitous, but it was certainly 

the intent at the time to recognize the time. And I believe very 

strongly that as Senator DeWine has said, we have uncertainty 

now. When you have those within your own department who wonder about the legality, the list of constitutional authorities that 

question the legality. When you have Professor Curtis Bradley, 

someone who had been part of the administration, the State Department, question the legality, I think this is a matter of concern. 

I asked you, and I don’t think I gave you a chance to answer, 

but you really didn’t have a chance to test this out with outside 

constitutional authority, as I understand it. 

Attorney General GONZALES. Sir, of course I wasn’t at the Department when the program commenced. So certainly, from within 

the White House, I am not aware of any discussions generally or 

specifically. I don’t think there would have been any specific discussions with outside experts. And I suspect, in fact I am fairly sure, 

there were not discussions with outside experts at the Department, 

although I don’t know for sure. 

Senator KENNEDY. Well, we will have our chance and opportunity, hopefully, to find that out in further hearings. But what 

was done previously and the coming together when the legislation 

was passed with virtual unanimity in the House and the Senate is 

impressive. And I think, as others have expressed, we want to give 

the President the power to do what is right in terms of protecting 

us, but we need, as we do on other issues, to have the kinds of 

checks and balance to make sure that it is done right. 

I have just a couple of questions in other areas. I am not sure—

you might have been asked about this, and if you can’t answer it, 

you can’t answer it, but since September 11th, has the President 

authorized any other surveillance program within the United 

States under his authority as Commander in Chief or under the 

authorization for use of military force in Afghanistan? 

Attorney General GONZALES. Senator, I can’t answer that question in terms of other operations. 

Senator KENNEDY. All right. On another issue, and I have heard 

from staff—I apologize for not being here through the whole session; we are dealing with the asbestos legislation on the floor at the 

time—

Attorney General GONZALES. Yes. Of course. 

Senator KENNEDY [continuing]. And I needed to go over to the 

floor. I understand that the telephone companies that assist the 

Government in engaging in electronic surveillance face potential 

criminal and civil penalties if they disclose consumer information 

unlawfully. But they are protected from such liability if they reVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00110 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
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ceive a written certification from the Attorney General or his designee saying that, and I quote, no warrant or court order is required by law, that all statutory requirements have been met, and 

that the specific assistance is required. 

So you understand that telephone companies can face criminal 

and civil liability if they provide wiretapping assistance in a way 

that is not authorized by statute? 

Attorney General GONZALES. I do understand that, yes, sir. 

Senator KENNEDY. Have you provided a certification to the telephone companies that all statutory requirements have been met? 

Attorney General GONZALES. Senator, I can’t provide that kind of 

information. 

Senator KENNEDY. You can’t answer that. And you couldn’t even 

provide us with redacted copies. 

So I guess we would assume that, since that is a requirement or 

otherwise that they would be held under the criminal code, and 

that is a requirement, one would have to assume that you have 

given them that kind of authority. But that—

Attorney General GONZALES. Sir, two points. There is a lot in the 

media about potentially what the President has authorized. Much 

of it is incomplete. Much of it is, quite frankly, wrong. And so you 

have this muddled picture that the President has authorized something that is much greater than what in fact he has authorized. 

And I can’t remember my second point. 

Senator KENNEDY. But your response to the earlier question 

about the range of different—

Attorney General GONZALES. Oh, I remember my second—if I 

could just—My second point is, is that this—your question—again, 

I haven’t—I think this is true; I don’t want to give you the—Well, 

maybe I shouldn’t make this statement. I am sorry. Go ahead, sir. 

Senator KENNEDY. Well, we were looking at sort of the range of 

different programs. 

I want to just mention, General, as someone that was here when 

we had the testimony, just quickly on the wiretaps, that prior to 

the time that J. Edgar Hoover used to appear, they used to lift all 

the wiretaps. They had 450 or 500 wiretaps, and they had 20 the 

day he testified, and then 500 the next day. No one is suggesting 

that that is what is happening, but many of us who have been on 

this Committee for some time have seen those abuses. No one is 

suggesting that, and we understand your reluctance in mentioning 

this, but this is an issue that has been around over some period 

of time. 

I would just say in conclusion, Mr. Chairman, I am very hopeful. 

We want to have as much certainty on the program as possible. I 

think what we have seen out in the public now the information 

that has been out there, certainly weekly, is a result of concerned 

individuals in these agencies, hard-working Americans that are 

trying to do a job and are concerned about the legality of this job. 

And I think they are entitled to the protections that we ought to 

be able to provide for them. As someone who has been a member 

of this Committee, I think that this Committee has in the past and 

certainly would still recognize the extraordinary sensitivity and the 

importance of it, do the job, do it right, and do it well. And then 

done so, I think we would have a different atmosphere and a difVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00111 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
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ferent climate. And I think we would be able to get the kind of information that is going to be so important to our national security. 

I hope that will be a judgment that you will consider, as Senator 

DeWine has mentioned and others have mentioned. I appreciate 

your testimony. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Before proceeding to Senator Sessions, who 

is next on the Republican side—I will defer my turn until after 

Senator Sessions has had his turn—I think this is a good time to 

make an announcement. Senator Kennedy made a suggestion earlier today about the Committee’s intentions with respect to renewing the Voting Rights Act. This would be an especially appropriate 

action with the death of Coretta Scott King. We have been talking 

about hearings. We are going to move to renew the Voting Rights 

Act this year, if we possibly can, in advance of the 2007 date. We 

have been laboring under a very, very heavy workload, which everybody knows about, and we will be scheduling those hearings 

early on. They have to be very comprehensive and provide an evidentiary base. That is a matter of great concern, really, to everybody on the Committee. 

Senator Kennedy? 

Senator KENNEDY. I want to thank the Chair. We have had a 

chance to talk about this at other times. And I particularly appreciate his sensitivity, as many of us are going down to the funeral 

for Coretta Scott King. I think it is an important statement and 

comment that her legacy will continue. So I thank the Chair. I 

know we have broad support. My friend Senator Leahy has been 

a strong supporter. Others here, Senator Biden—I look around this 

Committee. It is a very, very important legislation. In the time that 

we inquired of General Gonzales, he had indicated the full support 

of the administration on this. We will look forward to working with 

you. 

I thank the Chair for making that announcement. 

Chairman SPECTER. Thank you, Senator Kennedy. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

I would like to offer for the record a letter from Mr. H. Brian 

Cunningham, who served for 6 years with the CIA and the Department of Justice in President Clinton’s administration and for a 

time President Bush’s administration, in which he defends the actions of the terrorist surveillance program. 

I would also join with the Chairman in welcoming Ms. Deborah 

Burlingame here. She has been here all day. Her brother was a 

pilot who lost his life in the plane that crashed into the Pentagon. 

I think her presence today is a vivid reminder of the human cost 

that can occur as a result of negligence, or failure of will, or failure 

to utilize the capabilities that are constitutionally legal in this 

country. We have a responsibility to make sure that we do those 

things that are appropriate and legal to defend this country. It is 

not merely an academic matter. We have had some good discussions here today. But it is beyond academics. It is a matter of life 

and death. And we have lost a lot of people; nearly 3,000 people 

have no civil rights today. They are no longer with us as a result 

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of a terrorist attack. Thank you, Ms. Burlingame, for coming and 

being with us today. 

We talked about the inherent power of the President. I think 

there has been a remarkable unanimity of support for the inherent 

power of the President to do these kind of things in the interest 

of national security. And I know, post-Aldrich Ames, as you pointed 

out when I asked you about it, Mr. Gonzales, Attorney General 

Gonzales, that laws were changed with regard to that. But in fact, 

Jamie Gorelick, the Deputy Attorney General in the Clinton administration, testified in defense of a warrantless search of Aldrich 

Ames’s home and a warrantless search of the Mississippi home of 

a terrorist financier in the Aldrich Ames case. She testified that 

the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes. 

Now, that sounds to me like she was saying that that is an inherent constitutional power. I don’t understand it any other way. 

Would you? 

Senator BIDEN. Would the Senator yield for a question? What 

year is that? I am sorry. 

Senator SESSIONS. This would have been after the Aldrich Ames 

case, 1994–1995. 

Senator BIDEN. Thank you. 

Senator SESSIONS. It was before the statute was changed by the 

Congress. But she did not discuss it in that context. Her context 

was that it is the inherent power of the President. And she went 

on to say, ‘‘that the rules and methodology for criminal searches 

are inconsistent with the collection of foreign intelligence and 

would unduly frustrate the President in carrying out his foreign intelligence responsibilities.’’

And in addition to that, Judge Griffin Bell, who served as a Federal judge for a number of years and was Attorney General under 

a Democratic President, Jimmy Carter, when the FISA Act was 

passed, acknowledged that while the bill did not recognize the 

President’s inherent power to conduct electronic surveillance, he 

said this: ‘‘[T]his does not take away the power of the President 

under the Constitution. It simply, in my view, is not necessary to 

state that power, so there is no reason to reiterate or iterate it as 

the case may be. It is in the Constitution, whatever it is.’’

And he went on to say a little earlier, when asked about the inherent power of the President to order electronic surveillance without first obtaining a warrant, former Attorney General Griffin Bell 

testified, ‘‘We can’t change the Constitution by agreement.’’ Or by 

statute, I would add. 

A little later, he said when asked if he thought the President 

has, quote—he was asked this question—Does the President have 

‘‘the inherent right to engage in electronic surveillance of an American citizen in this country?’’, Judge Bell responded, ‘‘I do. I think 

he has a constitutional right to do that, and he has a concomitant 

constitutional duty to do it under certain circumstances.’’

So I don’t know all the answers to what the powers are here. 

There are a lot of different opinions. I would say this. You have almost been criticized some today for not going further, not 

surveilling phone calls within our country. Some on the other side 

have criticized you—are apparently surprised you didn’t assert that 

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authority. But the President, I think, acted narrowly and within 

what he thought would be appropriate, given the constitutional and 

statutory structure and after having informed eight of the top leaders in the U.S. Congress. 

Would you comment on that? 

Attorney General GONZALES. Well, it is a very narrow authorization. And again, I want to repeat what I said earlier in the hearings in terms of—I want to assure you that while domestic-to-domestic is not covered under the terrorist surveillance program, we 

are using all the tools available, including FISA, to get information 

regarding those kinds of communications. I mean, if there are other 

ways to do it that are permitted under the Constitution, we are 

going to try to get that information, so very, very important. 

Senator SESSIONS. Well, thank you. I would just observe that I 

think this system was working. It was a narrow program that the 

President explained to congressional leaders. He had his top lawyers in the Department of Justice and the White House review its 

constitutionality and he was convinced that it was legal. He narrowly constrained it to international calls, not domestic calls, and 

al Qaeda-connected individuals. And he also did it with the one 

group that he has concluded was responsible for 9/11, al Qaeda, the 

group that this Congress has authorized him to engage in hostilities against, to go to war against. And they declared war on us 

even before 9/11. That is the one group, not other groups that 

might have hostile interests to the United States like Hizbollah, or 

a Colombian group, or terrorist group around the world. That is 

what he authorized to occur. So I think he showed respect for the 

Congress, not disrespect. 

And General Gonzales, other groups that may have violent elements within them are not authorized to be surveilled through this 

terrorist surveillance program. Isn’t that correct? 

Attorney General GONZALES. Senator, under the President’s terrorist surveillance program, again as I have indicated, what we are 

talking about today is people, members or agents of al Qaeda or related—of al Qaeda or related terrorist organizations. That is what 

we are talking about. And I think General Hayden, I believe, testified before the Intel Committee that there are professionals out at 

NSA and, I presume, from other branches of the intel community 

that provide input as to what does that mean to be sort of related 

or working with al Qaeda. 

Senator SESSIONS. Well, let me just conclude with this point. I 

think the system was working in that way. We were conducting a 

highly classified, important operation that had the ability to prevent other people from being killed, as Ms. Burlingame’s brother 

was killed and several thousand others on 9/11. 

I believe that CIA Director Porter Goss recently—his statement 

that the revealing of this program resulted in severe damage to our 

intelligence capabilities, is important to note. And I would just like 

to followup on Senator Cornyn’s questions, General Gonzales, and 

ask you to assure us that you will investigate this matter, and if 

people are found to have violated the law, that the Department of 

Justice will prosecute those cases when they reveal this highly secret, highly important program. 

107

Attorney General GONZALES. Senator, of course we are going to 

investigate it. And we will make the appropriate decision regarding 

subsequent prosecution. 

Senator SESSIONS. Will you prosecute if it is appropriate? 

Attorney General GONZALES. We will prosecute when it is—if it 

is appropriate, yes, sir. 

Senator SESSIONS. Thank you. 

Chairman SPECTER. Thank you, Senator Sessions. 

Senator Biden. 

Senator BIDEN. Thank you very much. 

General, how has this revelation damaged the program? I am almost confused by it. I mean, it seems to presuppose that these very 

sophisticated al Qaeda folks didn’t think we were intercepting their 

phone calls. I mean, I am a little confused. How did this revelation 

damage the program? 

Attorney General GONZALES. Well, Senator, I would first defer to 

the experts in the Intel community who are making that statement, first of all. I am just a lawyer, and so when the Director of 

the CIA says this will really damage our intel capabilities, I would 

defer to that statement. 

I think, based on my experience, it is true. You would assume 

that the enemy is presuming that we are engaged in some kind of 

surveillance. But if they are not reminded about it all the time in 

the newspapers and in stories, they sometimes forget, and you are 

amazed at some of the communications that exist. And so, but 

when you keep sticking it—putting it in their face that we are involved in some kind of surveillance, even if it is unclear in these 

stories, it can’t help but make a difference, I think. 

Senator BIDEN. Well, I hope you and my distinguished friend 

from Alabama are right that they are that stupid and naive, because we are much better off if that is the case. I got the impression from the work I have done in this area that they are pretty 

darned sophisticated. They pretty well know. It is a little like when 

we talk about—when I say you all haven’t—not you personally—

the administration has done very little for rail security. They have 

done virtually nothing. And people say, Oh, my lord, don’t tell 

them, don’t tell them there are vulnerabilities in the rail system. 

They’ll know to use terror. Don’t tell them that tunnel was built 

in 1860 and has no lighting, no ventilation. 

I mean, I hope they are that stupid. 

Attorney General GONZALES. Sir, I think you can be very, very 

smart and be careless. 

Senator BIDEN. Well, OK, but if that is the extent of the damage, 

then I hope we focus on some other things, too. 

Look, I would like to submit for the record a letter numerous 

people have already submitted this letter—it has probably already 

been done—to Senators Specter and Leahy from former Deputy Attorney General Jamie Gorelick. She makes a very basic point. I 

don’t want to debate it at this time. She said the Aldrich Ames case 

is about physical search. FISA didn’t cover physical searches, as 

my distinguished friend from Alabama knows. At the time they 

conducted the search, FISA did not cover physical searches. 

And then she went on to say, My testimony did not address 

whether there would be inherent authority to conduct physical 

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searches if FISA were extended to cover physical searches. After 

FISA was extended to cover physical searches, to my knowledge 

FISA warrants were sought. 

So, I mean, let’s compare apples and apples, and oranges and oranges. 

Let me ask a few other basic questions. Because for me, you 

know, I have real doubts about the constitutionality, as others have 

raised here. I used to have a friend who used to say, you have to 

know how to know. You have to know how to know. And we don’t 

know. 

Now, you are telling me and the rest of us that the Director of 

CIA says we have been damaged. Well, the former Director told us 

that we were going to be greeted with open arms. You know, that 

they had weapons of mass destruction. Those were honest mistakes. I mean, for me to accept the assertion made by a single person is something I would consider but is not dispositive. 

Let me ask you this question. Do you know—and you may not—

do you know how many of these wiretaps and/or e-mail intercepts 

have resulted in anything? 

Attorney General GONZALES. Well—

Senator BIDEN. Any criminal referral, any—

Attorney General GONZALES. Without getting into specifics, Senator, I can say that the Director of the FBI said this has been a 

very valuable program. And it has helped identify would-be terrorists here in the United States, and it has helped identify individuals providing material support for terrorists. General Hayden has 

said this has been a very successful program, that but for this program we would not have discovered certain kinds of information. 

General Hayden also said that this program has helped detect and 

prevent—I think those were his words—attacks both here and 

abroad. These folks are the ones that are paid to make these kinds 

of assessments. I am not. 

Senator BIDEN. Have we arrested those people? Have we arrested 

the people we have identified as terrorists in the United States? 

Attorney General GONZALES. Sir, when we can use our law enforcement tools to go after the bad guys, we do that. 

Senator BIDEN. No, that is not my question, General. You said 

that, you cited the assertions made by Defense Department, by 

General Hayden, by the FBI that this has identified al Qaeda terrorists. Have we arrested them? 

Attorney General GONZALES. Senator, I am not going to go—I am 

not going to go into specific discussions about—

Senator BIDEN. I am not asking for specifics, with all due respect. 

Attorney General GONZALES. Well, in terms of how that information has been used and the results of that information. 

Senator BIDEN. Well, I hope we arrested them if you identified 

them. I mean, it kind of worries me because you all talk about how 

you identify these people and I have not heard anything about anybody being arrested. I hope they are not just hanging out there like 

we had these other guys hanging out prior to 9/11. I don’t think 

you would make that mistake again. 

Can I ask you, again. A suspected al Qaeda terrorist calls from 

Abu Dhabi to an American citizen in Selma, Alabama. Turns out 

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that when you do the intercept, the person on the other end, from 

Abu Dhabi, wasn’t a terrorist. Understandable mistake. And it 

turns out the person in Selma wasn’t talking to a terrorist. What 

do you do with that conversation that has now been recorded? 

Attorney General GONZALES. What I can say, Senator, is that we 

do have—there are minimization procedures in place. You and I 

had this conversation before about the minimization procedures 

that may exist with respect to this program. 

Senator BIDEN. That may exist? 

Attorney General GONZALES. Meaning—

Senator BIDEN. Either they do or they don’t. Do they exist? 

Attorney General GONZALES. There are minimization procedures 

that do exist with this program, and they would govern what happens to that information. 

Senator BIDEN. Does anybody know what they are? 

Attorney General GONZALES. Yes, sir, the folks out at NSA who 

are actually administering this program. 

Senator BIDEN. Have they told anybody in the Congress? Have 

they told any court? 

Attorney General GONZALES. Sir, I do not know that, the answer 

to that question. 

Senator BIDEN. I guess maybe you all don’t have the same problem I have. If, in fact, there are minimization procedures and they 

are being adhered to, no problem. If, in fact, the people being intercepted are al Qaeda folks and they are talking to American citizens, no problem. But how do we know? I mean, doesn’t anybody 

get to look at this ever? Doesn’t a court retrospectively get to look 

at it? Doesn’t, you know, the royalty within the Senate get to look 

at it, you know, these two, four, or eight people? I mean, doesn’t 

somebody look at it? Or, you know, the cold war lasted 40 years. 

This war is likely to last 40 years. Is this for 40 years we have got 

to sit here and assume that every President is just, well, we know 

old Charlie, he is a good man, we are sure he wouldn’t do anything 

wrong? And we know no one in the intelligence community would 

every do anything wrong. We have a history of proving that never 

occurred. And we know no one in the FBI will ever do anything 

wrong. That is clear. That never occurred. 

I mean, is there some place along the line that somebody other 

than an analyst, who we don’t know but we know he is asserted 

to be an expert on al Qaeda, is there somebody other than that person who is ever going to know what happened? And whether or not 

there is, the next President may be less scrupulous. Maybe he or 

she will be engaged in data-mining. 

Attorney General GONZALES. Senator, as I indicated in my opening remarks, of course, the Inspector General at NSA, he has the 

responsibility to ensure that the activities out of this program are 

done in a way that is consistent with the President’s authorization, 

including the minimization requirements. 

Senator BIDEN. OK. This reminds me of a Supreme Court hearing. What goes into the President making the decision on reauthorization every 45 days? Does anybody come and say, Mr. President, 

look, we have done 2,117 wiretaps or 219, 60 percent of them had 

some impact or only 1 percent has an impact, and we think—or is 

110

it automatic? I mean, what kind of things does a President look at 

other than we still have al Qaeda out there? 

Attorney General GONZALES. Sir, it is not automatic. As I also indicated in my opening statement, the President receives information from the intelligence community about the threat. The threat 

is carefully evaluated as to whether or not we believe al Qaeda continues to be a continuing threat to the United States of America. 

Senator BIDEN. So as long as it is, the program, so that is the 

criteria, is al Qaeda a threat? Not is the program working, but is 

al Qaeda a threat? Is that the criteria? 

Attorney General GONZALES. Well, of course not. If we do not 

have a tool, a lawful tool that is effective, why would we use it? 

We only use a tool if it is effective. 

Senator BIDEN. Thank you, General. 

Attorney General GONZALES. Mr. Chairman, could I ask for a 

short break? 

Chairman SPECTER. Granted. 

Attorney General GONZALES. Thank you, Mr. Chairman. 

[Recess 4:44 p.m. to 4:52 p.m.] 

Chairman SPECTER. The Judiciary Committee hearing will resume. We have four more Senators who have not completed their 

next round who are on the premises, so it may be that we can finish today. Other Senators have looked toward another round, so let 

me negotiate that between today and some date in the future to see 

if it is necessary to ask you to come back, Mr. Attorney General. 

And I had thought about limiting the time to 5-minute rounds, but 

we are going to be here at least until about 5:30. So let’s go ahead 

with the full 10 minutes, and I will yield at this time to Senator 

Graham? 

Senator BIDEN. Mr. Chairman, parliamentary inquiry. I do have 

other questions. I am not asking they be asked today or even tomorrow, but if we end today, which I think makes a lot of sense—

the General has been very generous, and his physical constitution 

has been required to be pretty strong here today, too. Is it likely 

if after you survey us, after we close down today, that you may 

very well ask the General back for more questions from us in open 

session? 

Chairman SPECTER. Senator Biden, I would like to leave that 

open. Senator Leahy said that he was looking forward to another 

round, which is where we were when he left. 

Senator BIDEN. OK. 

Chairman SPECTER. I thought we would have a number of Senators who wouldn’t have finished a second round, so Attorney General Gonzales would have had to come back for a second round. But 

it may be that others will have further questions, or it may be that 

on some of our other hearings we will have matters that we want 

to take up with the Attorney General. And the Attorney General 

has stated to me his flexibility in coming back, so let’s—is that correct, Mr. Attorney General? 

Attorney General GONZALES. I try to be as helpful as I can to 

you, Mr. Chairman. 

Chairman SPECTER. I take that to be a yes. 

Senator BIDEN. Ten more seconds. The only reason I ask, I, like 

you, want to go to the floor and speak on the asbestos bill that is 

111

up, and I didn’t know whether I should stay here for a third round 

or—

Chairman SPECTER. I can answer that. You should stay here. 

[Laughter.] 

Senator BIDEN. I oppose the Chairman’s position on asbestos. I 

shouldn’t have asked that question. I withdraw the question, Mr. 

Chairman. 

Chairman SPECTER. I expect to go to 9 o’clock, Senator Biden. 

You are going to miss very important materials if you leave. 

Senator Graham? 

Senator GRAHAM. Thank you, Mr. Chairman. 

Mr. Attorney General, we will see if we can talk a little more 

about this constitutional tension that is sort of my pet peeve, for 

lack of a better word. 

I would just echo again what Senator DeWine said. Instead of 

another round at another time, I would love to engage in a collaborative process with the administration to see if we can resolve this 

tension. I want to talk to you exclusively about inherent power and 

your view of it and the administration’s view of it, and share some 

thoughts about my view of it. 

The signing statement issued by the administration on the 

McCain language prohibiting cruel, inhumane, and degrading 

treatment, are you familiar with the administration’s signing statement? 

Attorney General GONZALES. I am familiar with it, Senator. 

Senator GRAHAM. What does that mean? 

Attorney General GONZALES. The entirety of the statement, Senator? 

Senator GRAHAM. Well, I guess to me I was taken back a bit by 

saying, notwithstanding, it was sort of an assertion that the President’s inherent authority may allow him to ignore the dictates of 

the statute. Does it mean that, or did I misunderstand it? 

Attorney General GONZALES. It may mean that this President—

first of all, no President can waive constitutional authority of the 

executive branch. 

Senator GRAHAM. My question is very simple but very important. 

Is it the position of the administration that an enactment by Congress prohibiting the cruel, inhumane, and degrading treatment of 

a detainee intrudes on the inherent power of the President to conduct the war? 

Attorney General GONZALES. Senator, I think—I don’t know 

whether or not we have done that specific analysis. 

Senator GRAHAM. Can I ask you this question then? 

Attorney General GONZALES. Yes. 

Senator GRAHAM. Is it the opinion of—your opinion and the administration’s position without the force resolution that FISA is unconstitutional in the sense it intrudes on the power of the President to conduct surveillance at a time of war? 

Attorney General GONZALES. I think that question has been 

raised a couple times today. I have indicated that that then puts 

us into the third part of the Jackson analysis. I have also indicated 

that these are difficult questions. 

Senator GRAHAM. And I will accept that as an honest, sincere answer, because they are difficult. 

112

Let’s get back to my scenario about the military member who has 

a detainee under their charge. They get an order from the commander in chief or some higher authority to do certain techniques. 

The justification is that we need to know about what is going to 

happen in terms of battlefield developments. We believe this person 

possesses information. And those techniques are expressly prohibited by prior statute under the authority of the Congress to regulate the military. That is another classic moment of tension. What 

do we tell that troop? If they called you as a lawyer and they said, 

‘‘I got the order from my commander,’’ maybe even from the President, ‘‘to engage in five things, but I have been told there is a statute that says I cannot do that passed by Congress, what should I 

do?’’ what would your answer be to that person? 

Attorney General GONZALES. I don’t know if I can give that person an immediate answer. I think that is the point that you are 

making. To put our military in that kind of position, that is a very 

difficult place to be. 

Senator GRAHAM. Thank you for that. That is absolutely the 

point I have been trying to make for a year and a half. I want to 

give that troop an answer that we all can live with, and let me take 

this just a little bit further. 

The FISA statute in a time of war is a check and balance, but 

here is where I think I am your biggest fan. During the time of 

war, the administration has the inherent power, in my opinion, to 

surveil the enemy and to map the battlefield electronically, not just 

physical but to electronically map what the enemy is up to by seizing information and putting that puzzle together. And the administration has not only the right but the duty, in my opinion, to pursue fifth column movements. And let me tell folks who are watching what a fifth column movement is. It is a movement known to 

every war where Americans, citizens, will sympathize with the 

enemy and collaborate with the enemy. It has happened in every 

war. And President Roosevelt talked about we need to know about 

fifth column movements. 

So to my friends on the other side, I stand by this President’s 

ability inherent to being Commander in Chief to find out about 

fifth column movements. And I don’t think you need a warrant to 

do that. 

But here is my challenge to you, Mr. Attorney General. There 

will come a point in time where the information leads us to believe 

that citizen A may be involved in a fifth column movement. At that 

point in time, where we will need to know more about citizen A’s 

activity on an ongoing basis, here is where I part. I think that is 

where the courts really come in. I would like you and the next Attorney General and the next President, if you have that serious information that you need to monitor this American citizen’s conduct 

in the future, that they may be part of a fifth column movement 

to collaborate with the enemy. I want a check and a balance and 

here is why: Emotions run high in war, and we put a lot of people 

in prison who just look like the enemy and never did anything 

wrong, just as loyal an American as you or I. But it would be very 

easy in this war for an American citizens to be called up by the 

enemy and labeled as something they are not. It would be very 

easy, in my opinion, if you are a business person dealing in the 

113

Mideast who happened to be an American citizen, the business deal 

goes bad, that bad things could happen to you. 

I would just like the administration to entertain the idea of sitting down with Senator DeWine and others to see if we can find 

a way at some point in the process of monitoring fifth column 

movements to have a check and balance system that not only 

would strengthen the Commander in Chief’s role, it will give guidance to the people fighting the war. You will have Congress on 

board. You will be stronger in courts, and the enemy will be weaker. 

How does that proposition sit with you? 

Attorney General GONZALES. Senator, the President has already 

said that we would be happy to listen to your ideas. 

Senator GRAHAM. OK. But you do understand my inherent authority argument, my concern with that argument, because taken—

the next President may not be as sensitive to this limited role of 

the Government. Really, Mr. Attorney General, you could use the 

inherent authority argument of a Commander in Chief at a time 

of war to almost wipe out anything Congress wanted to do. 

Attorney General GONZALES. See, I disagree with that, Senator. 

I really meant it when I said earlier that in time—

Senator GRAHAM. Give me a situation where the Congress could 

regulate or trump the inherent power argument in time of war. 

Attorney General GONZALES. I think Congress has a powerful 

check on the Commander in Chief. It is through the purse. 

Senator GRAHAM. If the Congress decided to limit treatment or 

interrogation techniques of a detainee, would the President have to 

honor that? Is that part of our authority under the Constitution to 

regulate the military? Do we have the authority to tell the military 

you will not do the following things? Would that intrude on the inherent power of the President to run the military? 

Attorney General GONZALES. The question is whether or not this 

is an interference with the day-to-day command functions of the 

Commander in Chief or does it fall within that clause of section 8 

of Article I, which says that Congress—

Senator GRAHAM. Do you believe it is lawful for the Congress to 

tell the military that you cannot physically abuse a prisoner of 

war? 

Attorney General GONZALES. I am not prepared to say that, Senator. I think that that is—I think you can make an argument that 

that is part of the rule the Government—

Senator GRAHAM. Mr. Attorney General, if we cannot do that, if 

we cannot during a time of war regulate the behavior of our troops, 

then really we have no power in a time of war. And that is the 

point here. I think we share power. 

Attorney General GONZALES. I agree. I agree that power is 

shared in time of war. 

Senator GRAHAM. I think we share a purpose of winning the war. 

Attorney General GONZALES. No question about that. 

Senator GRAHAM. But we need to get together so the people on 

the front lines who are pulled and torn—if the Bybee memo, Mr. 

Attorney General had become the policy, there would have been 

people subject to court martial. And in your good judgment, you repealed that. But I can assure you, Mr. Attorney General, if the 

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Bybee memo’s view of how you handle a detainee and what is torture and what is not, if it had been implemented, it would have 

violated the Uniform Code of Military Justice, and our guys could 

have gone to jail. And in your good judgment, you repealed that. 

I am asking for you to use that good judgment again and advise 

our President to come to this Congress and let us sit down and 

work through these constitutional tensions, because we do not need 

tension among ourselves. We need unanimity. 

Thank you for your service to our country. 

Attorney General GONZALES. Thank you, Senator. 

Chairman SPECTER. Thank you very much, Senator Graham. 

Senator Durbin? 

Senator DURBIN. Thank you. 

Attorney General, you have said that the safeguards for this program, this terrorist surveillance or domestic spying program, include the fact that they are reviewed by career professionals—I believe you referred to the National Security Agency, perhaps other 

agencies—and that there is a 45-day review as to whether you will 

continue the program. 

Where did the 45-day review requirement come from? 

Attorney General GONZALES. Senator, that really sort of arose by, 

quite frankly, schedules in terms of having folks be in a position 

to provide recommendations and advice as to whether the program 

can continue. There is nothing magical about the 45 days. 

Senator DURBIN. I am not worried about the magic so much as 

is there a statute that drives this? Is there a legal requirement of 

a 45-day review? 

Attorney General GONZALES. We felt that it was—I think it helps 

us in the Fourth Amendment analysis in terms of is this a reasonable search, the fact that it is reviewed periodically, and I think it 

is more sort of by happenstance that it really has come out to be 

approximately every 45 days. 

Let me just also mention that when I talked about the review out 

at NSA, there are monthly meetings, as I understand it, 

unconnected with this 45-day review, in which senior officials involved in this program sit down and evaluate how the program is 

being operated. That is a process that is totally independent of this 

45-day review process. 

Senator DURBIN. But who chooses the professionals that evaluate 

this program? 

Attorney General GONZALES. Senator, I am led to believe—I don’t 

know for sure, but I am led to believe that they are people—I am 

assuming senior officials at NSA identify people at NSA who have 

al Qaeda experience, al Qaeda expertise, knowledge about al Qaeda 

tactics and aims, and, therefore, are in the best position to evaluate 

whether or not a person who is on the call is, in fact, a member 

or agent of al Qaeda or an affiliated terrorist organization. 

Senator DURBIN. Which gets to my point. This so-called safeguard—and it has been referred to as a check and balance—is literally the administration talking to itself. People within the administration meet within their offices and decide about the civil liberties and freedoms of those who are going to be subjected to this 

surveillance. That is a significant departure from the ordinary 

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checks and balances of our Government, is it not, that all of this 

is being decided within the same executive branch? 

Attorney General GONZALES. I don’t know if I would characterize 

it that way. I think that there is a lot of—there is intelligence that 

is collected by the National Security Agency where they have control over this information, they have internal rules and regulations, 

they are subject to minimization requirements. Those are classified. Those have been shared, as I understand it, with the Intel 

Committee, if you are talking about Executive Order 12333. And so 

I don’t know that it is so unique to this program. 

Senator DURBIN. Well, let me just say, if you want a wiretap, as 

Attorney General you know what you have to do. 

Attorney General GONZALES. Yes, sir. 

Senator DURBIN. You have to go to another branch of our Government. You have to get a warrant. That is in criminal cases—

Attorney General GONZALES. In criminal cases, Title III, that is 

right. 

Senator DURBIN. Terrorist cases, you know that FISA applies. 

And now when it comes to these wiretaps, or whatever they may 

be, this surveillance, whatever it may be, you don’t go to another 

branch of Government. You meet within your own branch of Government, and that I think is a significant difference. 

Here is what it comes down to. You know, there is a general concern here as to whether or not the scope of what we are talking 

about, what it might be. And I know you are limited in what you 

can tell us. But I also know that Michael Chertoff, the Secretary 

of Homeland Security, recently said the NSA was ‘‘culling through 

literally thousands of phone numbers and trying to sift through an 

enormous amount of data very quickly.’’ You have assured us that 

this is not a dragnet. 

But I think the thing that it continues to come back to is whether innocent Americans, ordinary Americans are going to have their 

e-mails and their phone calls combed through. And you may shake 

your head and say, oh, we would never do that. But, Attorney General, no one is looking over your shoulder. You are not going to 

anyone, as you would with another wiretap request, to determine 

whether or not it is a reasonable request or it goes too far or, in 

fact, is targeted rather than random. 

I talked to you about Mr. Fleischer, who is sitting out here, who 

asked the very basic question: Have I been victimized by this program? Have I been the subject of this program? He couldn’t get an 

answer. He has had communications overseas. The fact that he is 

sitting here today is a suggestion that he is not worried about what 

the outcome might be, but he is worried about his freedoms and his 

liberties. There is no one for him to speak to. When he contacts 

your administration, they say, Neither confirm nor deny. So there 

is no check and balance here. There is nothing to protect his freedom or liberty or the freedom or liberty of a lot of innocent people 

who wonder if you are going too far. That I think is why many of 

us are absolutely stunned that this administration won’t come to 

Capitol Hill and ask us on a bipartisan basis for help with this 

FISA Act, if, in fact, it does create a problem. 

I voted for the PATRIOT Act. All but one of the Senators in the 

Senate voted for the PATRIOT Act. It isn’t as if we are not ready 

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to cooperate with you. We would feel better about your conduct and 

the conduct of this administration if there was a law that you followed. We are not asking you to spell out the operational details, 

but we are asking you to have at least a FISA Court judge, someone from another branch of Government, taking a look at what you 

are doing. There is some assurance under that situation for 28 

years that there is a check and balance. 

Do you understand why the blank check that you have asked for 

causes so much heartburn? 

Attorney General GONZALES. Senator, I do understand concern 

about a blank check. I don’t believe that is what we have here. In 

your comments, you have talked about going around the law, going 

around FISA. That is not the case here. We believe we are acting 

consistent with the requirements of FISA. 

I don’t know about the comments that Secretary Chertoff made. 

General Hayden has been out very publicly talking about what this 

program is about, and it is not about—it doesn’t sound like it is a 

kind of program that Secretary Chertoff is talking about. But I 

would be very interested in studying his remarks. 

This is a very narrowly tailored program. 

Senator DURBIN. But how do I know that? There is no one—other 

than your good word today, there is no one that can tell me: I have 

looked at this program, trust me, Senator, you can tell Mr. 

Fleischer and your constituents in Illinois not to worry; we are not 

going to comb through the records of innocent Americans. There is 

no one for me to turn to. 

Attorney General GONZALES. I don’t know if it is proper to ask 

you a question, Senator, but I am going to ask you a question. 

Senator DURBIN. Go ahead. 

Attorney General GONZALES. If we were to brief you into the program, how would anyone be assured that you would protect the 

rights of ordinary citizens? Because we have briefed congressional 

leaders, and so they know what we are doing and—

Senator DURBIN. They are sworn to secrecy, are they not? 

Attorney General GONZALES. This is a very classified, highly classified program. 

Senator DURBIN. They are sworn to secrecy. 

Attorney General GONZALES. But they also—

Senator DURBIN. If they found the most egregious violation of 

civil rights taking place in this program, they are sworn not to say 

one word about it. 

Attorney General GONZALES. Senator, I have got to believe that 

all of us—we take an oath of office, and if we honestly believe that 

a crime is being committed, then we would do something about it. 

Senator DURBIN. How would they? I have been on the Intelligence Committee, and I can tell you that when you are briefed 

with classified material—I sat in briefings not far from here, just 

a few feet away, and listened to what I thought was very meager 

evidence about weapons of mass destruction before the invasion of 

Iraq. Based on that, I voted against it. But I couldn’t walk outside 

that room, until it became public much later, and say this administration was at war within when it came to this issue. 

Attorney General GONZALES. Senator, I think we are letting 

Members of Congress off the hook easily by saying that if they get 

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briefed into a secret program and they believe it is against the law, 

that they can’t do anything about it. I think you have an obligation, 

quite frankly, when you take that oath of office, if you believe that 

conduct is, in fact, unlawful, I think you can do something about 

it. 

Senator DURBIN. Well, let’s talk about one Congressman—Congresswoman in this case, who has spoken out, Congresswoman 

Jane Harman. She has been briefed on the program, and she has 

said publicly you can use FISA, you don’t need to do what you are 

doing, you don’t need to go through this warrantless process. 

So from her point of view, I think she has gone as far as she can 

go. That is it. 

Attorney General GONZALES. Senator, I don’t think we have ever 

said that we could not use FISA in particular cases. But the time 

it would take to get a FISA application approved would mean that 

we may lose access to valuable information. 

Senator DURBIN. You will not come before us and tell us how to 

change the law to overcome that problem. That is what I find absolutely inexplicable. 

The last thing I would like to do, Mr. Chairman, or whoever is 

now presiding, we have had several references to Mrs. Burlingame, 

who is here, and I thank her for joining us today and for her statements to the press. I would also like to acknowledge the presence 

of Monica Gabrielle and Mindy Kleinberg, who were also in the 

Families of Victims of 9/11. They are here today, and they have 

made a statement for the record. I will read the last sentence and 

ask that this be part of the record. ‘‘Retaining our civil liberties 

and our cherished democracy in the face of a looming terrorist 

threat is the only way we will win this war on terror.’’ And I ask 

that this statement be made a part of the record. 

Senator GRAHAM [Presiding.] Without objection. 

[Laughter.] 

Senator DURBIN. Thank you very much, Chairman Graham. 

Thank you, General. 

Attorney General GONZALES. Thank you, Senator. 

Senator CORNYN. Attorney General Gonzales, Chairman Specter 

had to step out, but he asked me to proceed after Senator Durbin, 

and I am happy to do that so we can move on. 

If an employee of the National Security Agency has a concern 

about the legality of what they are being asked to do, are they authorized to have a press conference or to otherwise leak that information to outside sources? 

Attorney General GONZALES. Senator, I think there are laws that 

prohibit the disclosure of classified information. I think there might 

be other ways that would certainly be more appropriate. 

Senator CORNYN. Let me suggest one to you. In 1998, Congress 

passed the Intelligence Community Whistleblower Protection Act 

which provides, in part, that an employee of the DIA, the National 

Imagery and Mapping Agency, the National Reconnaissance Office, 

or the National Security Agency or a contractor of any of those 

agencies who intends to report to Congress a complaint about the 

legality of the program, that they can report that to the Inspector 

General of the Department of Defense or to the leadership of the 

Intelligence Committees in the U.S. Congress. 

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Would you consider that to be a more appropriate place for a socalled whistleblower to report their concerns? 

Attorney General GONZALES. Yes, sir, I would. 

Senator CORNYN. Well, at the very least, there would be an opportunity for those officials to evaluate the complaint of this individual, and we wouldn’t risk the disclosure of highly classified information or programs that are collecting intelligence. 

Attorney General GONZALES. No question about it. The danger or 

problem of going to the media as an initial matter is that you have 

some people, I think, whose motivation I think can be questioned 

in terms of why are they doing that. And when they go out and 

talk to the public about a highly classified program, they harm the 

national security of this country. I think Congress realized that 

when they passed the statute that you just described to try to provide an avenue for those people who legitimately are concerned 

about perhaps wrongdoing, that they have an avenue to pursue, to 

express their grievances, and to do so in a way that we don’t jeopardize the Nation’s secrets. 

Senator CORNYN. Let me ask you—the last area I want to ask 

you about—you have endured through a long day, and I know we 

are trying to wrap up. I have read a lot about the debate on this 

program and trying to understand why it is the administration believed that it needed to exercise the authority that it was granted 

by Congress under the Authorization for Use of Military Force and 

perhaps the President’s power under the Constitution, over and 

above what FISA would ordinarily provide. 

First of all, if NSA wants to listen to communications between 

terrorists abroad that are wholly located in some other country, 

they can do that without a warrant, can they not? 

Attorney General GONZALES. Whether or not FISA applies depends on the answer to basically four key questions: Who is the 

target? Primarily we are concerned about whether or not the communication involves a U.S. person. Where is the target? Primarily 

we are concerned about whether or not the person is in the United 

States. Where is the acquisition taking place? And then, finally, 

what are you trying to acquire? Is it wire communication? Is it 

radio communication? 

And so the answer as to whether or not FISA would apply with 

respect to a particular communication primarily depends upon answering those kinds of questions. 

Senator CORNYN. Thank you for the precise answer. But as a 

general matter, if the persons are located in a foreign country and 

they are not American citizens and the communications are taking 

place within that foreign country, then FISA does not require the 

issuance of a warrant. 

Attorney General GONZALES. As a general matter, if you are talking about non-U.S. persons outside the United States, and certainly 

if the acquisition is outside the United States, we don’t have to 

worry about FISA. 

Senator CORNYN. Isn’t it true that the problem that this program 

has tried to address, the gap in FISA that it tries to address, is 

that in order to get a warrant under FISA, the Government must 

have grounds to believe the U.S. person it wishes to monitor is a 

foreign spy or terrorist? And even if a person is here on a student 

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or tourist visa or no visa, the Government cannot get a warrant to 

find out whether they are a terrorist. It must already have reason 

to believe that they are one. 

Attorney General GONZALES. Well, certainly to obtain an order 

from the FISA Court, the court has to be satisfied that there is 

probable cause to believe that the target is either a foreign power 

or an agent of a foreign power and probable cause to believe that 

the facility being targeted is actually being used or about to be 

used by a foreign power or an agent of a foreign power. 

Senator CORNYN. Stated another way, the problem with FISA as 

written is that the surveillance it authorizes is unusable to discover 

who is a terrorist as distinct from eavesdropping on known terrorists. Would you agree with that? 

Attorney General GONZALES. That would be a different way of 

putting it, yes, sir. 

Senator CORNYN. You would agree with that statement? 

Attorney General GONZALES. Yes, sir. 

Senator CORNYN. So the particular program that has been debated here—and the authority that the National Security Agency 

has to conduct it—is filling a gap that exists in our intelligencegathering capabilities. Is that an accurate description? 

Attorney General GONZALES. I think we quickly realized after the 

attacks of 9/11 that the tools that we had traditionally been using 

were insufficient, and this was the opinion of the intelligence community, and that is why the President authorized this program, 

was because we did have vulnerabilities in our access to information about the enemy. 

Senator CORNYN. Finally, with regard to exclusivity, there have 

been some on the Committee who have asked whether the statement that Congress has made in the FISA statute—that it is the 

exclusive means to gather foreign intelligence—is necessarily a 

binding obligation if it comes into conflict with the Constitution. 

You have cited the doctrine of constitutional avoidance, is that 

correct? 

Attorney General GONZALES. The canon of constitutional avoidance, yes, sir. 

Senator CORNYN. Thank you. 

This has more than just hypothetical applications. For example, 

are law enforcement authorities in this country authorized to shoot 

down a plane that they believe is carrying illegal drugs or committing some other crime? 

Attorney General GONZALES. Well, Senator, I guess I would have 

to think about that. If you were asking whether the military had 

the authorization to shoot down an airplane—

Senator CORNYN. I am asking about law enforcement authorities 

other than the military. 

Attorney General GONZALES. Well, let me just say that we do not 

expect our law enforcement officers to be perfect in their judgment 

when you are talking about the Fourth Amendment and searches. 

The standard is probable cause; it is the totality of the circumstances. 

But it is very, very important to remember we are talking about 

the judgment from the eye of a professional officer, and this is 

what the courts have said. That is why in the terrorist surveillance 

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program we have the determination made by someone who is experienced regarding al Qaeda tactics and communications. He is making that decision from the view of—like the police officer on the 

beat in terms of what is reasonable, what satisfies a probable cause 

standard. 

Senator CORNYN. Making this very personal and real, if a plane 

is heading toward the Capitol, don’t you believe that the use of 

force resolution and Article II of the Constitution authorize the 

President to have United States military forces shoot that plane 

down, if necessary? 

Attorney General GONZALES. I believe so, sir, and I quite frankly 

believe that the President had the authority prior to the authorization to use military force. I think even those proponents, pro-Congress scholars who believe very strongly in the power of Congress 

during a time of war—even they acknowledge that with respect to 

initiation of hostilities that only Congress can declare war, but, of 

course, military force can be initiated by the President if the 

United States has already been attacked or if there is an imminent 

threat to the United States. 

And so I think there are strong arguments that would support 

the notion that the President of the United States, even before the 

authorization to use military force was passed by Congress, after 

we had been attacked already, of course, could then use military 

force to repel an additional attack. 

And we have to remember, of course, that in the days and weeks 

following 9/11, there were combat air patrols. So the President was 

exercising his authority even before the authorization to use military force to have the military in place to protect us from another 

attack. 

Senator CORNYN. Thank you. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Senator Kohl. 

Senator KOHL. Thank you very much. 

Just a couple of questions, Mr. Attorney General. Can you tell us 

how many U.S. citizens have had communications intercepted, listened to or recorded by this program since it started? 

Attorney General GONZALES. Senator, I wish I could share more 

information with you, but that information is classified and I can’t 

disclose that. 

Senator KOHL. How many Americans have had their phone conversations recorded or their e-mails intercepted without a court 

order? Any idea? 

Attorney General GONZALES. Again, Senator, you are asking me 

about the operations of this program and I really can’t get into it. 

I have outlined today that this is a very narrowly tailored program 

that has been authorized by the President of the United States, 

and we have taken great pains to try to protect the privacy interests of every American. But as the President has said, even if you 

are an American citizen, if you are talking to a member of al 

Qaeda, we would like to know why. 

Senator KOHL. You have talked at length today and over the 

course of the past month about how the program has to be reauthorized every 45 days, and you have lauded that as a strong check 

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and a balance on the potential for abuse. News reports suggest that 

one of the authorizations has led to changes in the program. 

Could you tell us what those changes were? 

Attorney General GONZALES. Well, again, Senator, you are asking me about operational details of the program and I really can’t 

get into operational details. 

Senator KOHL. All right. The New York Times reported that in 

interviews with current and former law enforcement officials, the 

flood of NSA tips that came from this program led them to expend 

considerable resources in following leads and diverted some agents 

from work that they had viewed as more productive. 

Law enforcement officials interviewed said that the program had 

uncovered no active plots in the United States. One said that, 

quote, ‘‘The information was so thin and connections were so remote that they never led to anything,’’ unquote. Another said, 

quote, ‘‘It affected the FBI in the sense that they had to devote so 

many resources to tracking every single one of these leads, and in 

my experience they were all dry leads,’’ unquote. 

So is there a concern that this program is not collecting enough 

worthwhile information, and does this suggest that the net was 

perhaps too large and that you ensnared too many Americans who 

were not, in fact, involved in any terrorist activities? 

Attorney General GONZALES. Thank you for that question, Senator. I am aware of these stories. First of all, it is true that Director Mueller feels very strongly that we cannot afford to not investigate one way or the other or to check out every particular tip. We 

have an obligation to do that. 

I think General Hayden has already indicated publicly that immediately following the attacks of 9/11, he exercised his own independent authorities, which do exist for the NSA, to gather up information, gather up more information than he would normally do—

again, these are under existing authorities, lawful authorities—and 

to share all that information with the FBI. 

And so you had a situation where the NSA was gathering up 

more information than it normally does and then sharing more of 

that information with the FBI. We quickly discovered that that was 

not very efficient because of the fact that it required the FBI to utilize their resources. And so that process or that procedure stopped, 

and so I think the stories that you are referring to do not relate 

to the terrorist surveillance program about which I am testifying 

today. 

Senator KOHL. I thank you very much, and I thank you, Mr. 

Chairman. 

Chairman SPECTER. Thank you, Senator Kohl. 

Senator Brownback. 

Senator BROWNBACK. Mr. Chairman, thank you. 

General, an interesting line of questioning, and I want to pursue 

going after a FISA warrant with some specificity with you because 

I want to understand this process better. I think you have covered 

it in bits and pieces and today, and I have been in and out at 

times, but I want to go into it in some depth. 

Before I do that, I want to note in the New York Post online edition of February 6th, just really in response to the last question 

here, ‘‘A 2004 NBC report graphically illustrated’’—and I am readVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00129 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
122

ing from this—‘‘what not having the program cost us four-and-ahalf years ago. In 1999, the NSA began monitoring a known al 

Qaeda switchboard in Yemen that relayed calls from Osama bin 

Laden to operatives all over the world. Surveillance picked up the 

phone number of a Khalid in the United States, but the NSA didn’t 

intercept those calls, fearing it would be accused of ‘domestic spying.’ After 9/11, investigators learned that Khalid was Khalid AlMidhar, then living in San Diego under his own name, one of the 

hijackers who flew American Airlines Flight 77 into the Pentagon. 

He made more than a dozen calls to the Yemen house where his 

brother-in-law lived. NBC News called this, quote, ‘one of the 

missed clues that could have saved 3,000 lives.’’’ It was a very real 

thing and a very real thing for us today, and one that had we been 

operating it effectively prior to 9/11 could have possibly saved thousands of lives. 

Mr. Attorney General, I certainly appreciate the need for expediency in carrying out electronic surveillance, and you mentioned 

that getting a FISA warrant is often a time-consuming procedure. 

Could you go into some specificity for me so I can hear this on how 

long that process generally takes? To the degree you can, without 

revealing information that is classified, how long does this process 

taken? 

Attorney General GONZALES. Well, it varies. What I can say, Senator, is that we have, for a variety of reasons, some applications 

that have been pending for months, quite frankly. Sometimes, that 

results because we can’t get sufficient information from the FBI or 

NSA in order to satisfy the lawyers at the Department that, in fact, 

we can meet the requirements of the FISA Act. 

Sometimes, it is a situation where priorities—with each passing 

day, renewals expire on very important programs, so we then have 

to prepare a renewal package to submit to the FISA court, and that 

means that other FISA applications that our lawyers have been 

working on kind of get pushed to the side as they work on the more 

important cases. So there are a variety of reasons why it takes 

some time to get a FISA application approved. If you want me to 

get into a more down-in-the-weeds discussion—

Senator BROWNBACK. I would. 

Attorney General GONZALES. OK. 

Senator BROWNBACK. I would like to get, you know, what is it 

that takes so much time in these FISA applications. 

Attorney General GONZALES. Well, of course, we can’t begin surveillance just based on a whim by someone, say, at the FBI. There 

has to be a reason to believe that all of the standards of the FISA 

statute can be satisfied. We have to know that a FISA court judge 

is going to be absolutely convinced that this is an agent of a foreign 

power, that this facility is going to be a facility that is going to be 

used or is being used by an agent of a foreign power. 

The things that I have to approve I have to—when I sign an application, we have to identify the target. We have to set forth the 

circumstances and the reasons that I believe that the target is a 

foreign power or an agent of a foreign power. I have to set forth 

the circumstances for why I believe that this facility is being used 

or is about to be used by a foreign power or agent of a foreign 

power. 

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We have to set forth in the application the minimization requirements that we intend to use. We have to set forth in the application with specificity the type of information we are hoping to get 

and the type of facilities or communications that we are targeting. 

So those are just some of the things that I have to include in the 

application. 

The application has to be accompanied by a certification that is 

signed by a senior official of the administration who has national 

security responsibility. Normally, it is the FBI Director. It could be 

the Director of the CIA. So that person has to certify that, in fact, 

this is foreign intelligence information. That person has to certify 

that a significant purpose of the surveillance is for foreign intelligence purposes. That person has to certify that normal investigative techniques or means are not otherwise available, and there are 

some other provisions that have to be certified. 

So all those conditions, requirements have to be met even before 

I authorize verbally an emergency authorization, and it takes time. 

Even in a perfect world, even in an ideal case, it is going to take 

a period of time. And I am not talking about hours. We are normally talking about days, weeks, on the more complicated cases 

sometimes months. 

Senator BROWNBACK. And this would include even these sorts of 

operations we have read about—about data-mining operations? 

Would that include those sorts of operations, or are those totally 

a separate type of field? 

Attorney General GONZALES. I am not here to talk about that. 

Again, let me just caution everyone that you need to read these stories with caution. There is a lot of mixing and mangling of activities that are totally unrelated to what the President has authorized 

under the terrorist surveillance program. So I am uncomfortable 

talking about other kinds of operations that are unrelated to the 

terrorist surveillance program. 

Senator BROWNBACK. These would be strictly ones where you are 

going after a targeted set of individuals that have gone through—

Attorney General GONZALES. Under FISA? 

Senator BROWNBACK. Yes, under the FISA applications. 

Attorney General GONZALES. We have to remember, of course, 

this is—

Senator BROWNBACK. Along the lines of what you have just described in some detail, this is the sort of information you are seeking before you are going after anything under FISA. 

Attorney General GONZALES. In every case—and, of course, we 

always have to remember that we are not just talking about al 

Qaeda when you are talking about FISA. You are talking about 

agents of other countries, and it is not limited only to international 

communications under FISA; it is domestic communications. So we 

want to get it right, of course. 

As I said earlier in response to another question, the fact that 

we have such a high approval rate by the FISA court isn’t an indication that the FISA court is a rubber stamp. It is more, I think—

Senator BROWNBACK. Your process internally. 

Attorney General GONZALES [continuing]. Proof that we have got 

a legitimate process. We take this very seriously. 

124

Senator BROWNBACK. Well, I don’t want to drag on the questions. 

You have been here a long period of time. I do want to encourage 

us that as the war on terrorism wears on, because it is going to 

wear on for a period of time, that we do have a check and balance 

system in place that is workable so that you can get the type of 

information that you need and that we need to protect the country, 

but at the same time can protect the civil liberties of the Nation, 

and you are doing everything you can in that regard. 

I just think as we look on forward, this is going to be a key policy 

factor of how we move forward and sustain support for the war on 

terrorism over the period of various administrations and possible 

length of time that this could well take. 

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

Chairman SPECTER. Thank you, Senator Brownback. 

Mr. Attorney General, you have held up remarkably well for a 

long day. I have deferred my second round until everyone else has 

concluded a second round because, as Chairman, I have stay. So I 

thought I would go last in any event. So it is just you and me. 

When we came in today, there was a long line in the hallway waiting to get in, and now only a few people are here and the Senators’ 

bench is pretty well cleared. 

I want to come back to the issue as to whether the resolution authorizing the use of force of September 14 gives the President congressional authority to undertake electronic surveillance. I said 

candidly at the outset that I did not think that it did, and let me 

explore with you a number of questions I have that I am interested 

in the administration’s response. 

Let me start first with the signing statement of President Carter 

when he signed the Foreign Intelligence Surveillance Act of 1978 

on October 25th. He said, in part, quote, ‘‘The bill requires for the 

first time a prior judicial warrant for all electronic surveillance for 

foreign intelligence or counter-intelligence purposes in the United 

States, in which communications of U.S. persons might be intercepted. It clarifies the executive’s authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are 

conducted to protect our country against espionage and international terrorism.’’

So when you talk about what happened in Washington’s time on 

intercepting messages or unsealing envelopes, or what happened in 

Lincoln’s time or what happened in Franklin Delano Roosevelt’s 

time, or when you talk about a number of the circuit court opinions 

giving broad Presidential authority saying that the gathering of intelligence was his prerogative without respect to the Fourth 

Amendment, that is before Congress acted. 

Now, a signing statement is subject to a number of limitations. 

If the President in a signing statement seeks to distinguish his 

view from what the Congress has passed, I think it is entitled to 

very little, if any, weight. Where the President, as President Carter 

did, squarely backs what the Congress has done, then you have a 

concurrence of the Congress and the President. You really have 

very forceful, very plain, very strict language in the Foreign Intelligence Surveillance Act. 

125

How do you counter what President Carter has said that it applies to all U.S. persons and covers all foreign intelligence by electronic surveillance in the United States? 

Attorney General GONZALES. Well, of course, I don’t believe that 

it is possible for any President to waive for future Presidents any 

constitutional authority, any authority given to a President under 

the Constitution. I haven’t read that statement in a while. I don’t 

think in the statement President Carter says I have no inherent 

authority remaining in this area. 

Finally, I would just simply remind the Chair—I think this was 

mentioned earlier by one of the Senators—his Attorney General in 

hearings in connection with the legislation—I think it was before 

a Committee of the House—talked about the fact that this is—and 

I am paraphrasing here—this in no way takes away from the President’s inherent constitutional authority, this legislation. So that is 

how I would respond to your question. 

Chairman SPECTER. Well, Mr. Attorney General, that is not the 

Jackson test which you have subscribed to, but I am going to come 

back to that in just a minute. 

In your responses to my question about statutory interpretation—we have covered the doctrine that it is disfavored to have a 

repeal by implication. You have the statute of FISA that specifically says no interception of electronic communication without a 

warrant. And then you have the generalized statement of the September 14th resolution which, at best, would be a repeal by implication, which is disfavored. 

But then we come upon another very important provision of statutory construction, and that is specific language takes precedence 

over more generalized pronouncements. And in your answer you 

said, quote, ‘‘It is not clear which provision is more specific,’’ close 

quote. Well, that is false on its face. 

If you have the statute saying no electronic surveillance without 

a warrant, there is no doubt that that is more specific than the 

September 14th resolution, is there? How can you disagree with 

those plain words? 

Attorney General GONZALES. By that answer, I only meant to 

convey, Senator, that the resolution is more specific with respect to 

al Qaeda, certainly. And, of course, the FISA statute is not limited 

only to al Qaeda. As the answer also indicates, we had sort of this 

same—or this same discussion occurred in the Hamdi decision. We 

had the same situation. We had a specific statute, 18 U.S.C. 

4001(a), and it said no American citizen could be detained, except 

as otherwise provided by Congress, or maybe otherwise provided by 

a statute by Congress. 

And the Supreme Court said that, nonetheless, you had a broader authorization than the authorization to use military force and 

that would satisfy the statute, even though you had a specific statute with respect to detention and you had a broad authorization. 

Chairman SPECTER. Did the Supreme Court deal with that statute? 

Attorney General GONZALES. 4001(a)? That was the statute at 

issue, yes, sir, in the Hamdi decision, of course. 

Chairman SPECTER. Did the Supreme Court deal with it specifically? 

126

Attorney General GONZALES. Sir, in Hamdi, Mr. Hamdi was contesting that that statute prohibited the President of the United 

States from detaining him because he was an American citizen. 

And the Supreme Court said, well, OK, you are right, you have the 

specific statute. But you have also got this broad grant of authority 

by the Congress and that is sufficient to allow the President of the 

United States to detain you even as an American citizen. 

Chairman SPECTER. Well, I think you are dealing with very different circumstances when you talk about a soldier on the field as 

opposed to a United States person whose conversations are being 

electronically surveilled, but let me move on here. It may very well 

be that you and I won’t agree on this point. 

The resolution of September 14th did not add the words ‘‘in the 

United States’’ after the words, quote, ‘‘appropriate force.’’ That 

was rejected since it would give the President broad authority not 

just overseas, but also in the United States. Isn’t that a clear indication of congressional intent not to give the President authority 

for interceptions in the United States? 

Attorney General GONZALES. Sir, I don’t know where that record 

is to reflect that that actually happened. I think the CRS, Congressional Research Service, said that in the legislative history—and I 

may be wrong; it is late, but I believe that they said that there is 

no record to indicate that that ever occurred, quite frankly. 

As I indicated in my opening statement, I think the American 

public, I think our soldiers, I think our courts ought to be able to 

rely upon the plain language passed by the Congress. And there is 

no question that the resolution talked about the President of the 

United States protecting Americans both here and abroad. 

And we have to put it in context. We were just attacked here in 

this country from folks within our country communicating within 

our country. It is hard to imagine, as smart as you are, that you 

wouldn’t have provided the President of the United States the 

grant of authority to at least deal with a similar kind of threat to 

the one we just experienced. 

Chairman SPECTER. The law involving wiretapping prior to the 

enactment of the Foreign Intelligence Surveillance Act had the preceding sentence, quote, ‘‘Nothing contained’’—referring to the law—

‘‘shall limit the constitutional power of the President to obtain foreign intelligence information deemed essential to the security of 

the United States.’’

When the Foreign Intelligence Surveillance Act was passed, that 

language was stricken. So by all customary standards of statutory 

interpretation, FISA, the Foreign Intelligence Surveillance Act, 

changed that 180 degrees, didn’t it? 

Attorney General GONZALES. There is no question, if you look at 

the legislative history and the record, that Congress intended to try 

to limit whatever the President’s inherent authority existed. But 

there is also from my review of the record a clear indication that 

some Members of Congress were concerned about the constitutionality of this effort. 

I think the House conference report talked about the fact this is 

what we are trying to do. It may be the Supreme Court may have 

a different view of this. And I am paraphrasing here, but that is 

127

a remarkable acknowledgement by a Member of Congress that, gee, 

is what we are doing here really constitutional? 

No question about it that certainly Congress intended to cabin 

the President’s authority, but also Congress when they passed 

FISA included Section 109, which is the main criminal provision in 

FISA that talks about you can’t engage in electronic surveillance 

under color of law, except as otherwise provided by statute. And so 

I think we have to apply a fairly plausible reading of the statute 

in that way in order to avoid, in my judgment, a tough constitutional question as to whether or not the Congress does have the 

constitutional authority to pass a statute that infringes upon the 

President’s inherent authority as Commander in Chief to engage in 

electronic surveillance of the enemy during a time of war. 

Chairman SPECTER. I don’t think you can use the principle of 

avoiding a tough constitutional conflict to disagree with the plain 

words of the statute. 

Attorney General Gonzales, when Members of Congress heard 

about your contention that the resolution authorizing the use of 

force amended the Foreign Intelligence Surveillance Act, there was 

general shock. 

Attorney General GONZALES. Sir, we have never asserted that 

FISA has been amended. We have always asserted that our interpretation of FISA which contemplates another statute—and we 

have that here in the authorization to use force—that those complement each other. This is not a situation where FISA has been 

overridden or FISA has been amended. That has never been our 

position. 

Chairman SPECTER. Well, that just defies logic and plain 

English. FISA says squarely that you can’t have electronic surveillance of any person without a warrant. And you are saying, when 

you tag on another statute which is in the penal provision, that 

those words in FISA are no longer applicable, that there has been 

a later statutory resolution by Congress which changes that. 

Attorney General Gonzales, I think we come back to the Jackson 

formula, and my judgment, with some experience in the field. I was 

starting to tell you how shocked Congress was when we found out 

that you thought that we had used the resolution of September 

14th to authorize electronic surveillance. Nobody else believed that. 

Senator Graham has articulated in very forceful terms the consequence of the administration making this interpretation. Before 

you ever get the authority from Congress again, we are going to go 

through every conceivable exception we can think of. And we just 

may not give the authority, because you may come back to relying 

on inherent authority. And you may have the inherent authority, 

you may have the Article II authority. But I do not think that any 

fair, realistic reading of the September 14th resolution gives you 

the power to conduct electronic surveillance. 

That brings me to what Jackson really said, and it is so wise it 

is worth reading again, quote, ‘‘When the President takes measures 

incompatible with the express or implied will of Congress, his 

power is at its lowest ebb, for then he can rely only upon his own 

constitutional powers, minus any constitutional powers of Congress 

over the matter.’’

128

Now, my reading of this situation legally is that there has been 

an express statement of Congress to the contrary and if the President seeks to rely on his own inherent power, then he is disregarding congressional constitutional power. 

Then Jackson goes on, quote, ‘‘Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from 

acting upon the subject.’’ And I think that is what you are doing. 

You are disabling Congress from acting on the subject. Congress 

did act, and this legislation was signed by the President. 

And then Justice Jackson goes on for really the critical language, 

‘‘Presidential claim to power at once so conclusive and preclusive 

must be scrutinized with caution.’’ That is what we are doing here 

today. We are going to do it a lot more. And then these are the critical words more so than any of the others, quote, ‘‘For what is at 

stake is the equilibrium established by our constitutional system.’’ 

And there is a very high value placed on the equilibrium of our 

constitutional system. That means everything. 

Attorney General GONZALES. I agree, Senator. 

Chairman SPECTER. OK. Well, finally, we found something to 

agree upon. 

Now, on the issue of the inherent power of the President, I believe the President has very substantial Article II power; I believe 

he does. And we have to be concerned as a life-or-death matter 

about al Qaeda, we really do, and I subscribe to the good faith of 

the President as to what he has done here. I have said that publicly. And I subscribe to your good faith in what you have done 

here. 

I just hope that there will be oversight somewhere along the line, 

perhaps in the Intelligence Committee. To get into the details, the 

interstices, the semicolons, as to what you are doing, because I 

know you can’t do that here. But I don’t think you can measure the 

President’s inherent authority under Article II without knowing 

what you are doing. You just cannot do it, because that authority 

is not unlimited which you have admitted. 

Attorney General GONZALES. I agree with that. 

Chairman SPECTER. It is not a blank check. 

Attorney General GONZALES. That is correct, sir. 

Chairman SPECTER. So it has to be within the parameters of 

being reasonable. The cases and the circuit opinions all emphasize 

the reasonable parameters. And the Supreme Court hasn’t ruled on 

this issue yet. It is an open question, and the circuit opinions are 

mostly, if not all, pre-dating the Foreign Intelligence Surveillance 

Act. 

So I just hope the Intelligence Committee is going to come down 

to brass tacks here, and I hope it is the Committee and not just 

the Ranking Member and Chairman. Both Senator Roberts and 

Senator Rockefeller have expressed forcefully their concern about 

not being lawyers and not having an opportunity to present these 

issues to lawyers to get a legal interpretation to square the facts 

up to what the law is. They just have been very explicit in their 

own limitations. 

So in conclusion—the two most popular words of any presentation—I hope you will give weighty thought to taking this issue 

to the Foreign Intelligence Surveillance Court, lock, stock and barVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00136 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
129

rel. Let them see the whole thing and let them pass judgment, because if they disagree with you, it is the equilibrium of our constitutional system which is disturbed. 

The al Qaeda threat is very weighty, but so is the equilibrium 

of our constitutional system. 

Attorney General GONZALES. I agree, Senator. 

Chairman SPECTER. Security is very weighty, but so are civil 

rights. 

Thank you very much, Attorney General Gonzales. You have established very forcefully your fortitude and stamina here today, 

even if we disagree with portions of your case. 

Attorney General GONZALES. Thank you, Mr. Chairman. 

Chairman SPECTER. That concludes the hearing. 

[Whereupon, at 5:56 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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(419)

WARTIME EXECUTIVE POWER AND THE NSA’S 

SURVEILLANCE AUTHORITY 

TUESDAY, FEBRUARY 28, 2006 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, Leahy, 

Kennedy, Biden, Kohl, Feingold, and Schumer. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Senate Judiciary Committee will now proceed with our second 

hearing on the administration’s electronic surveillance program. 

It is our practice to start right on time. We have a very distinguished panel of witnesses, and we have a great deal of ground to 

cover. This morning the PATRIOT Act is on the floor of the U.S. 

Senate on a vote to cutoff debate. And that will require the attendance of members of this Committee on the floor, so we are targeting a conclusion of this hearing at 11:30. We can run a little 

over but not too much, so we need to start on time, and we need 

to progress with the 5-minute statements by each witness and the 

5-minute rounds of questioning by all the Senators. 

I have delayed making any substantive comment until the arrival of our distinguished Ranking Member, Senator Leahy. 

We will be inquiring today about the President’s authority to institute the electronic surveillance program, will be focusing significantly on the President’s inherent power under Article II of the 

United States Constitution. We will also take up the issue of the 

Foreign Intelligence Surveillance Act, and whether the resolution 

to authorize the use of force on September 14th modifies that statute. I have already expressed my opinion that it does not for a variety of reasons, but that still leaves open the issue of constitutional 

authority. If the President has constitutional authority, as we all 

know, that would trump the statutory limitation which allows electronic surveillance only with a court order. 

Legislation has been circulated—we have asked the witnesses to 

be prepared to comment on it—which would make the Foreign Intelligence Surveillance Court the unit to make a determination of 

constitutionality. Notwithstanding the statutory requirements that 

the Intelligence Committees in full would have access to programs 

420

of this sort, this administration and previous administrations have 

chosen not to utilize the committees because Congress has a wellestablished record for leaking. Of course, so does the White House. 

This town leaks like a sieve, in the vernacular. So the President 

has been reluctant to take these matters to the Congress, limiting 

it only to the so-called Gang of 8. 

The thinking has been that the Foreign Intelligence Surveillance 

Court has the expertise, the record for maintaining secrecy and can 

appropriately be entrusted with the job of making a determination 

of constitutionality. The legislation which I have circulated sets 

forth criteria for the FISA court to make a determination on the 

scope of the intrusions, and the steps taken to minimize results. 

There has been some concern as to whether there is a general 

warrant involved here. We think the authorities are strong, that it 

is not. There has been concern as to whether there is an advisory 

opinion here, and we think the authorities, again, are strong that 

it is not an advisory opinion in derogation of the Case in Controversy Clause of the United States Constitution. 

When judges of the Foreign Intelligence Surveillance Court are 

asked to issue a search warrant, they do so on in ex parte proceeding. That has direct analogy to the kind of determination we 

are asking the court to make here on a broader basis for the entire 

program. There are other statutory ideas being circulated. One 

would involve congressional approval of the program, which seems 

difficult, really impossible to meet, unless we know what the program is, and we do not have that information. But the Foreign Intelligence Surveillance Court has the standing, the expertise, and 

the record for secrecy to make a determination of constitutionality 

for this program. 

The existence of the President’s program was disclosed rather 

dramatically on Friday morning, December 16th, the day we were 

in final arguments on the PATRIOT Act. It had quite an impact 

on our discussion that day, and cloture was not invoked. A number 

of Senators raised the point that there was special concern about 

privacy as a result of the disclosure of the administration’s program in the context of what the PATRIOT Act should provide. 

We have since worked through the issues. I think the chances 

are good that there will be cloture imposed today, although you 

never know what the Senate is going to do until the final vote is 

tallied. 

I said yesterday on the Senate floor that I would introduce supplementary legislation which would bring back the standards that 

the Senate bill had, which passed this Committee unanimously and 

which passed the Senate by unanimous consent. But we have 

structured a compromise with the House of Representatives. We 

have a bicameral legislative branch, as we all know, and we have 

reached very significant compromises. One very important one by 

the House was a sunsetting in 4 years, which was a concession 

from 10–7. But my view is we ought to strive for the best bill we 

can. We have an acceptable bill, in my judgment, on the current 

state of the record, but we can improve it. 

On this Committee, Senator Leahy and I are committed to have 

vigorous oversight. The FBI Director will be before this Committee 

on March 29th, and we will be asking him all of the tough quesVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00428 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
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tions about the provisions of the PATRIOT Act which were excluded in the conference report. 

I am down to 4 seconds. I now yield to Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. In fact, I will be cosponsoring that legislation you just spoke about to emphasize that 

it is a bipartisan effort, as the legislation that originally passed 

this Committee was. 

Our hearing today is the second to explore the legality of President Bush’s warrantless domestic spying program. On December 

17th, one day after the program was revealed in the New York 

Times, the President admitted that the administration engaged in 

secret wiretapping of ordinary Americans without warrants for 

more than 4 years. Then 7 weeks later, Attorney General Gonzales 

came before this Committee to talk about this. 

Now, that testimony of the Attorney General was far from complete. It left many important questions unanswered. As the chief 

legal officer of the United States, the Attorney General is not the 

President’s legal adviser; he is the American people’s lawyer. His 

sworn duty is to uphold the Constitution and the laws enacted by 

Congress. So it seemed reasonable to ask him how his Department 

of Justice will interpret these laws, how are they interpreting 

them. And by starting with legal questions, we were not asking any 

operational issues that could implicate national security or would 

require a closed hearing. 

So I asked him a very simple question: When did the administration come up with its current theory that the congressional resolution authorizing the use of force against al Qaeda—a resolution, incidentally, that says absolutely nothing about wiretapping—also 

authorized secret, warrantless wiretapping of Americans inside the 

United States? He was asked that question repeatedly, and at 

every opportunity the Attorney General failed, he refused to answer what is a basic factual question. 

He was asked several times to clarify the scope of the Bush-Cheney administration’s legal theory of Executive power. If, as they 

claim, they can ignore the Foreign Intelligence Surveillance Act’s 

express prohibition of warrantless wiretapping, could they also 

eavesdrop on purely domestic phone calls? Could they search or 

electronically bug an American’s home or office? Can they comb 

through Americans’ medical records and open first-class mail? Can 

they suspend the Posse Comitatus Act? 

Now, these are questions to which I believe Congress, but especially the American people, deserve some answers. And based on 

his testimony and his persistent refusal to answer responsively, it 

appears the Attorney General has a radically different understanding of the laws than those of us who are the people’s representatives here in Congress. He limited his appearance to confirming ‘‘those facts the President has publicly confirmed, nothing 

more.’’ Again, we were not asking about operation. We were asking 

what is the law. What is the law? You are the Attorney General. 

What is the law? In a last-minute change to his prepared testimony, he also followed the path of his predecessor by playing poliVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00429 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
422

tics on security matters, hoping to intimidate Senators who sought 

to get the facts. 

I think we can confirm that every single Member of the U.S. Senate, Republican and Democrat, are patriots and believe in the security of this country, and asking questions does not mean that we 

do not believe in the security of our Nation. In fact, sometimes in 

asking questions, you might improve the security of Americans. 

Senators from both parties took great care to ask straightforward 

questions that could be answered without danger to national security. When did the program begin? How many Americans have had 

their calls and e-mails intercepted? Has the program led to any arrests? Of these thousands of intercepts, has there been even one arrest? What involvement, if any, has the FISA court had with the 

program? Why was the program shut down in 2004 and its scope 

changed? Once again, we got no answers. Whatever we asked was 

either too relevant or not relevant enough, and either way, we were 

getting no answers from the Attorney General. 

Now, there was one crack in the stone wall he erected. It has 

been reported that senior Department of Justice officials concluded 

in 2004 that the President’s program was illegal and, backed by 

former Attorney General Ashcroft, they insisted its scope be narrowed. So Chairman Specter asked the Attorney General whether 

he objected to his predecessor testifying before the Committee on 

this issue. Attorney General Gonzales said, ‘‘I would not.’’ But then, 

one week later, in a carefully worded about-face, he had an assistant write to the Chairman that the administration would not permit any former officials to provide any information to the Committee, and the stone wall went right back up. 

Now, his conduct has made the administration’s position crystal 

clear: It claims there is no place for congressional or judicial oversight of any of its activities related to national security in the post9/11 world. Through stonewalling, steamrolling, and intimidation, 

I believe they are running roughshod over the Constitution and 

hiding behind inflammatory rhetoric demanding Americans blindly 

trust their decisions, whether it is this, reports, or anything else. 

Last week, we were reminded again they hold to that position 

even when bipartisan Members of Congress raise national security 

concerns about the approval of a deal allowing a government-owned 

Dubai company to take over major port operations in the United 

States. Now, in both cases, this obsessively secretive administration proceeded with action that it must have known would face 

strong bipartisan opposition, and did so without informing Congress or the American people. They made no attempt to follow specifically expressed Federal statutes. In both cases, the Bush-Cheney administration has responded to congressional oversight efforts 

with bellicose political threats. 

So it is up to the Congress, even though it is controlled by the 

same party as the White House, to fulfill its constitutional duty of 

providing the checks and balances by engaging in real oversight, or 

it can abdicate that role in deference to the other end of Pennsylvania Avenue. 

Now, Chairman Specter has a history of engaging in meaningful, 

bipartisan oversight, and I appreciate his efforts. I am glad we are 

having this hearing. But we should know what this hearing is. This 

423

hearing will go into some questions, but it is not oversight in the 

sense that we are asking the administration. There are no former 

officials who are allowed by the administration to come forward 

and answer questions. I think to get them we may have to go to 

subpoenas. 

I have gone over my time, Mr. Chairman. I appreciate your courtesy, and I will put my full statement in the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Senator Kyl, would you care to make an opening statement? 

Senator KYL. Mr. Chairman, in view of what I just heard, I am 

tempted to, but I think it is more important for us to hear the witnesses, so I will defer. 

Chairman SPECTER. Succinct and well said. Thank you, Senator 

Kyl. 

I want to especially acknowledge the work on this Committee of 

Ms. Carolyn Short, our General Counsel, who is serving her last 

day on a 14-month stint. Ms. Short came here from a very prestigious law firm at a substantial cut in salary, and she has contributed very extensively to this Committee. In fact her contributions 

include the lion’s share of the preparation for this hearing today. 

We have been joined by the distinguished former Chairman of 

the Committee, Senator Hatch. Would you care to make an opening 

statement? 

Senator HATCH. No, Mr. Chairman. I am just happy to be here, 

and we want to welcome all of you here. I am looking forward to 

hearing what you have to say. 

Chairman SPECTER. Thank you very much, Senator Hatch. 

We have had an issue raised before the Committee on swearing 

witnesses, and after some consideration, the judgment has been 

made that we are going to make it a regular practice to swear all 

witnesses. And in so doing we won’t have any issue as to whether 

there is any special concern about witnesses or whether any witnesses are being targeted. We are just going to swear all the witnesses. That may not be totally necessary in circumstances where 

expert opinions are given, but if we have a uniform rule, I think 

it will facilitate the work of the Committee. 

So if you will all rise, I will administer the oath to you in a 

group. Raise your right hands. Do you each of you solemnly swear 

that the evidence and testimony that you give before this Committee will be the truth, the whole truth, so help you God? 

Mr. WOOLSEY. I do. 

Mr. KOH. I do. 

Mr. GORMLEY. I do. 

Mr. KMIEC. I do. 

Mr. FEIN. I do. 

Mr. TURNER. I do. 

Mr. LEVY. I do. 

Chairman SPECTER. Thank you all very much. 

Our first witness is the distinguished former Director of Central 

Intelligence, Hon. James Woolsey, a graduate of Stanford University with great distinction, Phi Beta Kappa, Oxford University, 

Yale Law School, managing editor of the Yale Law Journal. We 

424

may be a little heavy with Yale Law representation here today, but 

we have other distinguished schools represented. We are going to 

make Senator Leahy an honorary Yale Law grad, except he would 

probably reject the offer. 

Director Woolsey, thank you very much for joining us today, and 

we look forward to your testimony. 

Let me repeat that the clock is set at 5 minutes, and we ask you 

to adhere to the rules so we can have the maximum amount of 

time for dialog, questions and answers. 

The floor is yours, Director Woolsey. 

STATEMENT OF R. JAMES WOOLSEY, VICE PRESIDENT, GLOBAL STRATEGIC SECURITY DIVISION, BOOZ ALLEN HAMILTON, MCLEAN, VIRGINIA 

Mr. WOOLSEY. Thank you, Mr. Chairman. It is an honor to be 

asked to be with you. 

Since we are in a war, I would start with the enemy, and I will 

summarize briefly the first several pages of my testimony to say 

that two fanatic theocratic totalitarian movements in the Middle 

East have chosen in the last few years to be at war with us—one 

from the Shi’ite side of Islam, one from the Sunni side of Islam. 

They are manifested in tactically shifting alliances, doctrinal differences that can sometimes be submerged in alliances of convenience. They have two somewhat different objectives: one wishes to 

kill as many people as possible in order to bring the Mahdi back 

and hopefully have an end of the world as soon as possible. The 

other would only like to fold us into a caliphate someday that 

would rule the world under Shariya. We may shake our heads in 

puzzlement at these types of objectives, but we have learned with 

the Thousand Year Reich and with world communism that we need 

to take totalitarianism and its views seriously. 

Unlike the cold war, we have a number of assumptions that we 

have to operate under today that are fundamentally different. Far 

from fighting a single rigid empire, our enemies have a host of different relationships with government. Containment and deterrence 

have very little to do with them. Unlike the Soviets in the cold war, 

they are fantastically wealthy from oil. Unlike the Soviets in the 

cold war, their ideology is not dead. It is religiously rooted. It is 

central to their behavior. 

Unlike the Cold War, we are not safe behind our shores. The 

chief of strategy for Mr. Ahmadinejad, who is close to Hezbollah, 

says that he knows of the 29 sensitive sites in the U.S. and the 

West which he has spied out and is ready to attack in order to ‘‘end 

Anglo-Saxon civilization.’’ 

Unlike the Cold War, our intelligence requirements are not just 

overseas. We live on the battlefield, and we need to be able to map 

electronically that battlefield. 

Unlike the cold war, domestic terrorism in this country cannot 

solely be dealt with by criminal law. It is difficult to understand 

how one deters through the criminal law individuals who want to 

die themselves while killing thousands of us. 

Unlike the cold war, security can come more into conflict with 

liberty than we wish would be the case. 

425

And unlike the cold war, and perhaps most importantly, the operation of Moore’s law over the course of the last two to three decades has fundamentally changed our world. Throw-away cell 

phones and Internet websites and chat rooms are now available to 

terrorists. This is no longer 1978 when phones plugged into the 

wall and the Internet was just a gleam in the eye of a few people 

at the Defense Advanced Research Projects Agency. 

I believe that the inherent authority of the President under Article II, under these circumstances, permits the types of intercepts 

that are being undertaken. I believe that is true because the country has been invaded, albeit, of course, not occupied, and defending 

against invasion was at the heart of the President’s Article II authority from the Founders. 

We run a serious risk of being attacked again. Both bin Laden 

and Ahmadinejad and Abbassi and, indirectly, Hezbollah have so 

threatened. The threat from bin Laden is augmented by a fatwah 

from a Saudi religious leader that threatens the use of nuclear 

weapons. 

Since the battlefield is in part, sadly, here at home, I believe that 

what we have to do is think very hard about how to have a system 

that can provide a check and balance against the type of electronic 

mapping of the battlefield that I believe is necessary. The one-spyat-a-time surveillance systems of the Cold War, including FISA, 

through courts, are not designed to deal with fast-moving battlefield electronic mapping, in which an al Qaeda or a Hezbollah computer might be captured which contains a large number of e-mail 

addresses and phone numbers, which would have to be checked out 

very promptly. 

An Attorney General on a 72-hour basis, or a FISA court, simply 

cannot go through the steps that are set out on pages 9 and 10 of 

my testimony in time to deal with this type of a problem. In my 

judgment, oversight is needed. I generally endorse the support that 

Judge Posner submitted to the Wall Street Journal in an op-ed a 

couple of weeks ago, with one modification, which is in the testimony and which I do not have time to describe. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Woolsey appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Director Woolsey. 

We now turn to the Dean of the Yale Law School, Smith Professor of International Law, Dean Harold Koh. Summa cum laude 

graduate of Harvard, cum laude of the Law School, Oxford, and a 

clerk to Justice Harry Blackmun. 

Thank you very much for coming from New Haven today, Dean 

Koh, and we look forward to your testimony. 

STATEMENT OF HAROLD HONGJU KOH, DEAN, YALE LAW 

SCHOOL, NEW HAVEN, CONNECTICUT 

Mr. KOH. Thank you, Mr. Chairman and members of the Committee. In my career, I have had the privilege of serving our Government in both Republican and Democratic administrations, and 

I have also sued both Republican and Democratic administrations 

when I thought their conduct was unlawful. 

426

In my professional opinion, the NSA domestic surveillance program is as blatantly illegal a program as I have seen, and my reasons are given not just in my written testimony, but also in two 

letters that were sent to you by myself and a number of constitutional law scholars and former Government officials, as well as in 

the ABA Task Force Report, for which I served as an adviser. 

Now, I say this fully aware of the ongoing threat from al Qaeda 

and the need for law enforcement officials to gather vital information. And, of course, in time of war, our Constitution recognizes the 

President as Commander in Chief. But the same Constitution requires that the Commander in Chief obey the Fourth Amendment, 

which requires that any Government surveillance be reasonable, 

statutorily authorized, supported, except in emergencies, by courtordered warrants, and based on probable cause. 

The current NSA program is blatantly illegal because it lacks all 

of these standards, and the Supreme Court has never upheld such 

a sweeping, unchecked power of Government to invade the privacy 

of Americans without individualized suspicion, congressional authorization, or judicial oversight. 

For nearly 30 years, the FISA, the Foreign Intelligence Surveillance Act, has provided a comprehensive, constitutional, and, using 

its words, exclusive framework for electronic State and local. Under 

FISA, executive officials can conduct electronic surveillance of 

Americans, but they can do so without a warrant for only 3 days, 

or in case of wartime, for 15 days after a declaration of war. After 

that, they must either go to the special court for an order or come 

to Congress for an amendment or stand in violation of the criminal 

law. 

This was based on a simple logic. Before the President launches 

an extended domestic spying program, his lawyers must get approval from someone who does not work for him. Yet that is precisely what has happened here—what has not happened here. 

Now, of course, I agree with Director Woolsey that we can and 

should aggressively fight terrorism, but fighting terrorism outside 

the law is deeply counterproductive. Under the ongoing program, 

NSA analysts are increasingly caught between following orders and 

carrying out electronic surveillance that is facially illegal; and, 

moreover, evidence collected under the program will almost surely 

be challenged, and it may prove inadmissible, making it far more 

difficult to prosecute terrorists. 

With respect, none of the program’s defenders has identified any 

convincing defense for conducting such a sweeping program without congressional authorization and oversight and judicial review. 

And in my testimony, I review and reject those defenses, including 

the extraordinary claim that you here in Congress enacted the use 

of force resolution to repeal the FISA, which had, in fact, 

criminalized unauthorized, indefinite, warrantless domestic wiretapping 23 years earlier. 

Most fundamentally, my testimony rejects the radical view of unchecked executive authority that is offered by some of my fellow 

witnesses. That unilateral vision offends the vision of shared national security power that is central to what Justice Jackson called 

‘‘the equilibrium established by our constitutional system.’’ Read 

literally, the President’s reading of the Constitution would turn 

427

this body into a pointless rubber stamp whose limited role in the 

war on terror would be enacting laws that the President could ignore at will and issuing black checks that the President can redefine at will. 

Finally, Mr. Chairman, I have had a chance to look at the proposed bill to refine and amend the FISA. I don’t think it will improve the situation. First, as you say, it is radically premature. 

Congress simply does not have enough information to conduct such 

a broad revision at this time. Second, remember that the President 

has refused for 4 years to operate within the FISA framework. Unless the President acknowledges that he must obey the FISA 

amendments and agrees to operate within it, any new congressional action will be equally meaningless. And, third, the proposal 

pre-authorizes programs, not particular searches, and as a result it 

gives a general warrant to a significant number of unreasonable 

searches and seizures. This resembles the statutory version of the 

British general warrant that was used in the 1700s by the King. 

But it was precisely because English law did not protect our privacy that our colonial ancestors said that, even when the President 

in wartime is our Commander in Chief, we have a right of the people to be secure in their persons, houses, papers, and effects 

against unreasonable searches and seizures, and no warrant shall 

issue, except on probable cause, and the persons or things to be 

seen being stated with particularity. 

In sum, Mr. Chairman, for 4 years our Government has been 

conducting an illegal program and now wants to rewrite the Constitution to say that that program is lawful. This Committee should 

reject those claims. 

Thank you. 

[The prepared statement of Mr. Koh appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Dean Koh. 

Our next witness is Mr. Robert Levy, who is a Senior Fellow in 

Constitutional Studies at the Cato Institute. He has a bachelor’s 

degree from American University, a Ph.D. from American University, and a law degree from George Mason University. He is an adjunct professor at Georgetown University Law School and is a 

member of the Board of Visitors of the Federalist Society. 

Thank you for joining us today, Mr. Levy, and the floor is yours. 

STATEMENT OF ROBERT A. LEVY, SENIOR FELLOW IN CONSTITUTIONAL STUDIES, CATO INSTITUTE, WASHINGTON, D.C. 

Mr. LEVY. Thank you, Mr. Chairman, and members. Thank you 

very much for inviting me to testify. 

I would like to discuss four legal questions related to the surveillance program. First, do NSA warrantless domestic wiretaps necessarily violate Fourth Amendment protections against unreasonable searches? My answer to that is no, they do not, not necessarily. There are numerous exceptions to the warrant requirement, including hot pursuit, search incident to arrest, stop-andfrisk and others. And as for national security, that is an open issue 

as to whether there is an exception. 

Under the Keith case in 1972, the Court indicated that the administration could conduct some types of warrantless wiretaps 

428

without violating the Fourth Amendment if a foreign power were 

involved. 

The second question though, what about the FISA statute; does 

not the NSA program violate its express terms? My answer to that 

question is yes. The text is unambiguous. A person is guilty of an 

offense if he intentionally engages in electronic surveillance except 

as authorized by statute. Now, to be sure, FISA was drafted to deal 

with peacetime intelligence, but that does not mean that it is inapplicable in the post-9/11 war on terror. In fact, Congress expressly 

contemplated warrantless wiretaps during wartime, and limited 

them to the first 15 days after war is declared, and furthermore, 

FISA was amended by the PATRIOT Act, passed in response to

9/11 and signed by President Bush. So if 9/11 triggered wartime as 

the administration has repeatedly argued, then the amended FISA 

statute is clearly a wartime statute. 

Third question. Does the authorization for use of military force 

provide the statutory approval that FISA requires? Answer: No, it 

does not. A settled canon of statutory interpretation is that specific 

provisions supersede general provisions. When FISA forbids electronic surveillance without a court order, except for 15 days, while 

the AUMF permits necessary and appropriate force, it seems to me, 

quite simply, bizarre to argue that electronic surveillance is thereby authorized without a warrant. 

Congress, in passing the AUMF, did not intend to make compliance with FISA optional. In fact, Congress was simultaneously relaxing selected surveillance provisions via the PATRIOT Act. To 

my knowledge, not a single Member of Congress, among the 518 

members who voted for the AUMF, now claims that his vote 

changed domestic wiretapping rules. 

Fourth question and the most difficult: do the President’s inherent wartime powers allow him to ignore FISA? My answer is no. 

That is not to say the President is powerless to order warrantless 

wartime surveillance. For example, intercepting enemy communications on the battlefield is clearly an incident of his war power, but 

warrantless wiretapping of Americans inside the United States, 

who may have nothing to do with al Qaeda, does not qualify as incidental wartime authority. The President’s war powers are broad, 

but they are not boundless, and indeed, they are not exclusive. The 

power to grant pardons, for example, is exclusive. Congress could 

not make an exception for persons convicted of, let us say, child 

abuse. 

But war powers are not exclusive. They are shared between the 

President and Congress. It is Congress, not the President, that is 

constitutionally authorized to declare war, suspend habeas, define 

and punish offenses against the law of nations, make rules concerning captures on land and water. The real question is not 

whether the President has some inherent authority to conduct 

warrantless surveillance. He does. The tougher question is to determine the scope of his authority in the face of Congress’s concurrent 

powers. And the key Supreme Court case, as you know, is Justice 

Jackson’s concurrence in Youngstown Sheet and Tube v. Sawyer. 

Clearly, the NSA surveillance program belongs in Youngstown’s 

third category, in which the President has acted in the face of an 

express statutory prohibition. In my view he has overreached. The 

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executive branch may be justified in taking measures that in pre9/11 times could be seen as infringements of civil liberties, but the 

President cannot, in the fact of an express prohibition by Congress, 

unilaterally set the rules, execute the rules and eliminate oversight 

by the other branches. In short, the NSA surveillance program, 

under current law, is illegal. 

Now in the 20 seconds remaining, I would like to comment on 

Director Woolsey’s statement that the battlefield is here at home. 

Calls from the actual battlefield, Afghanistan, or anywhere else 

outside the United States, can be monitored under current FISA 

rules, as long as the target is not a U.S. person in the U.S. So to 

suggest that calls cannot be monitored is a mistake. A call from 

France or the U.K. cannot be construed as battlefield-related, unless the term ‘‘battlefield’’ has no geographic limits, and indeed, if 

France is part of the battlefield, why not Nebraska? The same logic 

that argues for warrantless surveillance of foreign communications 

would permit warrantless surveillance of domestic communications 

as well. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Levy appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Mr. Levy. 

Our next witness is Professor Doug Kmiec, Professor of Constitutional Law at Pepperdine; one time Dean and Professor at Catholic 

University, and on the faculties of Notre Dame Law School and 

Valparaiso; undergraduate degree from Northwestern with honors, 

and a law degree from the University of Southern California; Assistant Attorney General in the U.S. Department of Justice for 4 

years from 1985 to 1989. Thank you for being with us today, Professor, and we look forward to your testimony. 

STATEMENT OF DOUGLAS W. KMIEC, PROFESSOR OF CONSTITUTIONAL LAW, PEPPERDINE UNIVERSITY SCHOOL OF 

LAW, MALIBU, CALIFORNIA 

Mr. KMIEC. Thank you, Mr. Chairman, and members of the Committee. I ask that my full statement be made part of the record. 

Chairman SPECTER. Without objection, it will be made part of the 

record, as will all the statements. 

Mr. KMIEC. I believe there is a common objective between the 

President and the Congress, and of course, that common objective 

is to prevent further attack. 

One of the things that was immediately recognized after 9/11, 

recognized by both the President and by the Congress, was that 

there were missed opportunities to unravel that plot through enhanced surveillance. The joint independent inquiry of the Select Intelligence Committees recognized that. It also recognized that there 

was a perception that FISA was not working because of its lengthy 

process. So there was a legal issue. Did the President have the authority to address that question—the shortcomings with surveillance? 

The President’s lawyers in the White House concluded that he 

did. The Chair of the Senate Intelligence Committee concluded that 

he did. The Attorney General, in a eloquent statement to you on 

February 6, illustrated why he concluded that he did. And I affirm 

430

these conclusions as both constitutionally reasonable, practically 

justified and necessary. 

In my written testimony I give detailed support for that conclusion, but in a nutshell it is this: that Congress, through FISA, was 

seeking to address a political abuse of the use of surveillance. It 

was important for them to address that abuse. They did, and it has 

been stopped. That Congress, through FISA, was taking up Justice 

Powell’s suggestion in the Keith case, that domestic security, while 

needing to comply with the Fourth Amendment did not need to 

comply precisely in the same way as criminal investigations. It 

could be done through a specialized court and specialized determinations of particularity and probable cause. 

But Congress also chose to launch into an area that is very difficult because there is authority in both Congress and the President with regard to issues of foreign intelligence. Griffin Bell cautioned the Congress on this score, and it responded to that caution 

with a number of provisions in FISA that basically anticipated the 

need for specialized legislation in the event of wartime. I believe 

that specialized legislation has been passed in the form of the Authorization for the Use of Military Force, and that fully authorizes, 

as the Supreme Court has held in Hamdi, that the President can 

use all incidents of war to wage war successfully. 

I recognize that reasonable minds can differ on this question. 

Reasonable minds have been differing on this question since Madison and Hamilton had a debate about the neutrality policies of the 

United States. Justice Jackson himself disagreed with FDR on 

some questions with regard to foreign affairs authority. Of course, 

this body disagreed to some degree with President Reagan in matters of Iran-Contra. 

But the fact that these questions have been debated perennially 

since the time of our founding, certainly does not mean that these 

disagreements are illegal or that they call for the appointment of 

a special counsel. Such rhetoric, it seems to me, to be partisan, unnecessary, unfortunate and unwise. 

The American poet, T.S. Eliot, observed that war is not life, it 

is a situation. It is a situation which can neither be ignored nor accepted. The war on terror cannot be ignored, and the prospects of 

further attack cannot be accepted. 

I think the real constructive purpose of this hearing, Mr. Chairman, is not to have recriminations about legality or illegality, because there is a genuine argument on both sides of that question, 

but rather to pursue the issue of what is the appropriate course as 

we go forward. I know that legislation has been drafted for our consideration, and my sense with regard to that legislation is to give 

it a qualified affirmation. It is qualified, as it must be, because, of 

course, any legislation in this area must always maintain focus on 

the primary objective to prevent attack, and to the extent that it 

fails to accomplish that objective, it must be rejected. But if it does 

in fact authorize a program warrant requirement that meets constitutional specifications—and I believe in many respect it does—

then it is striking a more appropriate balance between the legislature and the executive. I hope to answer your specific questions 

about the legislation in the questions that are to come. 

Thank you, sir. 

431

[The prepared statement of Mr. Kmiec appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Professor. 

Our next witness is Mr. Bruce Fein, Partner of Fein and Fein; 

undergraduate degree from the University of California, phi beta 

kappa, Harvard Law, cum laude; was a special assistant in the 

antitrust division of the Department of Justice, 1973 to 1980; General Counsel to the FCC under President Reagan, 1983 to 1985; 

constitutional lawyer, international consultant. 

Thank you very much for agreeing to be a witness, Mr. Fein, and 

we look forward to your testimony. 

STATEMENT OF BRUCE FEIN, FEIN AND FEIN, WASHINGTON, 

D.C. 

Mr. FEIN. Thank you, Mr. Chairman, and members of the committee. This is a defining moment in the constitutional history of 

the United States. And on this issue I think we are all Republicans 

and we are all Democrats, to borrow from Thomas Jefferson’s Inaugural, because the issues that we confront with regard to checks 

and balances, are indispensable to the liberty of those living and 

those yet to be born. 

The theory invoked by the President to justify eavesdropping by 

the NSA, in contradiction to FISA, would equally justify mail openings, burglaries, torture, or internment camps, all in the name of 

gathering foreign intelligence. Unless rebuked, it will lie around 

like a loaded weapon, ready to be used by any incumbent who 

claims an urgent need. On this score, as Justice Holmes said, a 

page history speaks volumes of logic. 

FISA was the child of the Church Committee hearings. It disclosed, among other things, that in 1938, when a secret program 

of domestic surveillance not authorized by Congress was undertaken to identify fascists or communists, the Director of the FBI, 

the Attorney General and the President concurred as follows: ‘‘In 

considering the steps to be taken for the expansion which then occurred of the present structure of intelligent work, it is believed imperative that it be preceded with the utmost degree of secrecy in 

order to avoid criticism or objections, which might be raised by 

such an expansion by either ill-informed persons or individuals 

having some ulterior motive. Consequently, it would seem undesirable to seek special legislation which would draw attention to the 

fact of what is being done.’’ 

President Bush has advanced the identical justification for refusing to seek congressional authority for the NSA’s warrantless 

eavesdropping targeting American citizens at home. What happened after the 1938 secret intelligence program commenced? The 

abuses, mail openings, burglaries, Internal Revenue Service harassments, a security index in violation of the Internal Security Act 

of 1950 and COINTELPRO. The bureaucratic mentality of the spy 

was captured in the following FBI Headquarters response to its 

New York office’s conclusion that surveillance of a civil rights leader should cease because an investigation had unearthed no evidence of communist sympathies. 

And this is what the Bureau headquarters wrote in response: 

The Bureau does not agree with the express belief of the New York 

432

office that Mr. X is not sympathetic to the party cause. While there 

may not be any direct evidence that Mr. X is a communist, neither 

is there any direct substantial evidence that he is anti-communist. 

In other words, it is the mental inclination of spies and the intelligence community to overreach, because their job is to gather intelligence, their job is not to weigh and balance privacy interests. 

Privacy interests that Justice Louis D. Brandeis characterized in 

Olmstead v. United States, as the right to be left alone, the most 

comprehensive of rights and the right most valued by civilized 

men. 

This Committee was told by the Attorney General on February 

6 that we can all be assured because NSA professionals are deciding who is and who is not sympathetic to al Qaeda, that only the 

culprits are targeted. But the whole purpose of the Fourth Amendment, the whole purpose of FISA was to have an outside check on 

the executive branch spying because of the inherent tension with 

the desire of the professional to get the maximum intelligence and 

the desire of the American people to be secure in their persons, 

houses, papers and effects. 

That is the reason why FISA was enacted and why it has demanded such scrupulous conformity over the years. The argument 

is made that the authorization to use military force somehow 

overrode the FISA statute. On its face it is preposterous because 

the theory that the AUMF authorized the President to undertaken 

anything pertinent to collecting foreign intelligence, also meant 

that this Committee and this Congress silently overrode the prohibitions on mail openings, on breaking and entering homes, on torture, cruel, inhumane degrading treatment of prisoners, and to do 

all of those things in silence on its face is laughable. 

I would like to briefly address what I think the responsibility of 

this Committee is. You do not know, we do not know exactly what 

the nature of the spying program of the NSA is, as the Attorney 

General conceded on February 6th. So we do not know the nature 

of the problem that is created by FISA. The Attorney General said, 

to domestic al Qaeda calls, ‘‘FISA works reasonably well, and the 

President hasn’t authorized those kinds of interceptions without 

warrants.’’ Well, on its face, why would the practical difficulty of 

complying with FISA when an international call is at issue, should 

be different from the domestic calls? Maybe there is, but this Committee and the American people have not been told why. The burden of persuasion ought to be on the President to explain why 

FISA is unworkable, not on us to explain why a secret program we 

know nothing about is unnecessary. 

The power of the purse is perhaps the greatest power the Founding Fathers entrusted to the legislative branch. It has been used 

in the past, and in my judgment, should be used now to stipulate 

that the President can undertake no electronic surveillance for foreign intelligence purposes outside of FISA unless— 

Chairman SPECTER. Mr. Fein, could you summarize? 

Mr. FEIN. Yes. Unless within 30 days the President comes forward with a plan that this Congress agrees will be treated on a 

fast track basis like trade negotiations, and let the burden be on 

the administration to explain to this Committee why changes are 

necessary. 

433

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Fein appears as a submission for 

the record.] 

Chairman SPECTER. Thank you, Mr. Fein. 

We now turn to Professor Robert Turner of the Woodrow Wilson 

Department at the University of Virginia; bachelor’s degree from 

Indiana University, and an advanced law degree from University 

of Virginia Law School; has served in key positions such as the Associate Director of the Center for National Security Law, the President’s Intelligence Oversight Board, and the President of the Institute for Peace, and worked back in the 1970s for Senator Robert 

Griffin. 

Thank you very much for agreeing to join us today, Professor 

Turner, and we look forward to your testimony. 

STATEMENT OF ROBERT F. TURNER, ASSOCIATE DIRECTOR 

AND CO-FOUNDER, CENTER FOR NATIONAL SECURITY LAW, 

UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VIRGINIA 

Mr. TURNER. Thank you, Mr. Chairman. It is an honor to be 

here. I hope that our question period will provide an opportunity 

to talk both about the power of the purse and also about the statutory authorization issue. I think a case can be made that the 

AUMF did authorize these intercepts, but I have 5 minutes, so let 

me focus on the more important issues. 

I share the view that no one, including the President, is above 

the law, but I would emphasize when we are talking about law, 

that the Constitution comes first, as the Chairman did in his opening remarks. Chief Justice John Marshall told us in Marbury, an 

Act of the legislature repugnant to the Constitution is void. I think 

there is a place for FISA, but the bill needs to include a recognition 

of the President’s independent constitutional power to act in this 

area, as Attorney General Griffin Bell noted during the Carter administration when he testified before the Senate in 1978. 

During these hearings it has been suggested that unchecked 

Presidential power is incompatible with democratic governance. 

Once again I would call your attention to Marbury v. Madison, 

where Chief Justice Marshall noted, ‘‘By the Constitution of the 

United States the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country and his political character, and to his conscience. Whatever opinion may be entertained 

of the manner in which Executive discretion may be used, still 

there exists and can exist no power to control that discretion.’’ 

At the core of Executive discretion, I submit, is the control of foreign intelligence during wartime. As John Jay noted in Federalist 

No. 64, ‘‘The Convention have done well, ‘‘and so dividing the treaty powers, that the President ‘‘will be able to manage the business 

of intelligence as prudence might suggest.’’ When the Founding Fathers vested the Executive power in the President in Article II, section 1, they gave the general control of foreign intercourse to the 

President subject only to narrowly construed negatives or checks 

vested in the Senate or Congress. 

434

As I document in my written statement, George Washington, 

James Madison, Thomas Jefferson, John Jay, Alexander Hamilton 

and John Marshall, all specifically referred to the ‘‘Executive 

power’’ grant as the reason for the President’s control in this area. 

As Jefferson put it in 1790, ‘‘The transaction of business with foreign nations is Executive altogether.’’ 

The need for secrecy was central to the decision to vest not only 

foreign intelligence, but also the negotiation of treaties exclusively 

in the President. As the Supreme Court noted in the landmark 

1936 Curtiss-Wright decision, ‘‘into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.’’ 

Sadly, since Vietnam, Senators have too often breached this barrier. 

In my prepared statement I explain why Curtiss-Wright remains 

the primary Supreme Court precedent concerning foreign affairs. I 

also explain that Youngstown is not really a foreign affairs case. 

Both Justice Black for the majority, and Justice Jackson, in his 

concurring opinion, time and again, emphasized that this was a 

question of internal powers, of a taking of private property without 

due process of law, a clear violation of the Fifth Amendment. 

Similarly, the Keith case has been greatly misunderstood. Like 

Justice Black and Justice Jackson, Justice Powell, for the unanimous Court in Keith, repeatedly emphasized the case involved internal threats from domestic organizations, in this case, the Black 

Panthers. And he noted that the Court took no position on the 

President’s power with respect to foreign powers within or without 

this country. 

I would add that the argument that FISA was enacted in response to an invitation from the Supreme Court is simply not accurate. What Justice Powell said, was, ‘‘given those potential distinctions between Title III’’—that is, Title III of the ’68 Crime Control 

and Safe Streets Act—‘‘criminal surveillance and those involving 

the domestic security,’’ that is, groups like the Black Panthers, 

‘‘Congress may wish to consider protective standards for the latter,’’ 

that is, domestic security, ‘‘which differ from those. . .in Title II.’’ 

The Court made no suggestion that Congress should put any constraints on foreign intelligence gathering. And since Keith the 

courts have clearly sided with the President, as have all the Presidents. 

In 2002, the Foreign Intelligence Surveillance Court of Review 

noted that every court that has considered the issue has held the 

President did have inherent authority under the Constitution to 

conduct warrantless searches to obtain foreign intelligence. And the 

Court went on to say, ‘‘we take it for granted the President does 

have that authority, and assuming that is so, FISA could not take 

away that Presidential power.’’ 

Finally, Mr. Chairman, I would note that FISA has done serious 

harm to this Nation. Colleen Rowley was one of Time’s Persons of 

the Year because she complained that the FBI would not even request a FISA warrant. In fact, as I am sure, you know, the reason 

the FBI would not request a FISA warrant was because Congress 

had failed to consider the possibility of a ‘‘lone wolf’’ terrorist like 

Zacarias Moussaoui, and the statute made it clearly illegal to get 

435

a warrant to look at his laptop. FISA was amended in 2004 to fix 

that omission. 

General Michael Hayden, former head of NSA, has said that if 

this program had been legal back before 9/11, it might have prevented those attacks, but FISA prohibited this kind of program. 

We have heard a lot of talk about a ‘‘risk-avoidance culture’’ in 

the intelligence community. I followed the Church hearings. I was 

here at the time. Look at the fact you have made felony penalties 

for— 

Chairman SPECTER. Professor Turner, could you summarize at 

this point? 

Mr. TURNER. Yes, sir. You have made felony penalties for intelligence agents who step over the line, even if they do so with Presidential authority, and that contributes to such a culture. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Turner appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Professor Turner. 

Our concluding witness is Professor of Law from Duquesne University, Professor Ken Gormley; undergraduate degree from University of Pittsburgh, law degree from Harvard; clerked for Federal 

Judge Ziegler and State Supreme Court Justice Ralph Cappy. In 

2002 he organized a symposium to celebrate the 50th anniversary 

of the Youngstown steel seizure case, and without object, we will 

make a part of the record, the videotape and the statement of the 

Coalition to Defend Checks and Balances, an initiative of the Constitution Project. 

I reviewed your tape, Professor Gormley, and it brought back a 

lot of memories. The steel seizure case in black and white does not 

have the drama that the videos did with the newsreels of President 

Truman, the Korean War and the pressure the need for steel put 

on the President’s wartime powers. We were at war at that time, 

although we have not found any nominee for the Supreme Court 

who will say it was a war yet. I have been trying for more than 

a decade. 

If you will permit just a 30-second personal aside, I was one of 

2,000 ROTC cadets at Lowry Air Force Base, arriving there on 

June 25th, 1950, the day the Korean War started, and we were 

sure in TACU we were heading right for the trenches. And after 

we were there for six weeks, they sent us all back to college. I 

guess they wanted to win the war. 

[Laughter.] 

Chairman SPECTER. But when your video was shown, it was 

enormously impressive, and you were able to get Chief Justice 

Rehnquist to say that public opinion influences the Supreme Court. 

I thought that was quite a concession. 

By the way, none of this is out of your time, Professor Gormley. 

You may proceed, please. 

STATEMENT OF KEN GORMLEY, PROFESSOR OF CONSTITUTIONAL LAW, DUQUESNE UNIVERSITY SCHOOL OF LAW, 

PITTSBURGH, PENNSYLVANIA 

Mr. GORMLEY. Thank you very much, Chairman Specter and 

members of the Committee. It is a great privilege to testify today, 

436

and as Senator Specter said, I have had the good fortune of studying the issue of Presidential power and specifically the steel seizure 

case often described as the granddaddy of the cases dealing with 

Presidential power, especially on American soil. And my written 

testimony contains a lengthy summary of that. 

Let me just summarize the problems I do see with the current 

Bush administration secret surveillance program, acknowledging 

that I believe it flows from good faith efforts to wage a crucial war 

on terror. Then I would like to talk about solutions. 

Justice Jackson, as you know, declared in his famous concurrence 

in that case that Presidential power is at the high point, at the theater of war abroad; it is at its low ebb on American turf, especially 

when the President has acted without constitutional or congressional support. Applying that precedent, I see four problems with 

the current surveillance program. 

Nothing, first, in the text of the Constitution specifically gives 

the President power to conduct such secret warrantless surveillance on the domestic front, even in times of emergency. 

Second, the administration specifically bypasses an Act of Congress in creating the FISA Court that directly deals with precisely 

these sorts of surveillance efforts with respect to citizens of the 

United States and residents. 

Third, the President’s power—and this is important—the President’s power is further diminished because the program directly 

collides with rights of American persons under the Bill of Rights, 

specifically, the Fourth Amendment. And this collision, I should 

point out, potentially puts President Bush’s power even at a lower 

point than President Truman’s in the steel seizure case. 

And fourth, this is interesting, if you adapt the steel seizure test 

and apply it to Congress, you discover that unlike the President, 

Congress is at its zenith of power here. Congress has the power to 

establish inferior courts under Article I, which it has done in establishing the FISA Court. It has the power to enact laws to ensure 

that Fourth Amendment rights and Bill of Rights protections are 

safeguarded, as it has done since the 1960s with wiretap laws. So 

Congress is at its high point here. The President is at low ebb. 

So how does this Committee give the President the tools he 

needs to fight the war on terror while still making sure that no 

constitutional shortcuts are taken? Here is a very quick summary. 

First, the existing FISA statute, I believe, should be used as a 

starting point. It works. It has been in place for 28 years. It is the 

best framework for any new legislation. 

Second, a mechanism has to be created for judicial review. Congressional oversight is important, yes, and I have proposed a form 

of that in my written comments, but any secret surveillance legislation that makes it impossible to test the constitutionality of the 

program in the courts will end up violating the separation of powers doctrine as well as the Fourth Amendment. Probable cause, by 

definition, includes the participation of neutral and detached 

judges. So it is key that the FISA Court be included in the process, 

albeit making sure it operates in a highly secure fashion. 

Third, a mechanism must be created to allow standing for aggrieved parties so that a valid case or controversy can be created 

in the courts. As you know, this is very complicated stuff. I have 

437

attempted to spell out some suggestions in my written testimony. 

I think there are ways to accomplish standing legitimately. My proposal would put the Intelligence Committees of Congress in the 

role of intermediator in order to permit valid cases and controversies to be presented to the courts without jeopardizing national security. 

And fourth, the U.S. Supreme Court must possess the final 

power of review. All roads have to lead to the Supreme Court here. 

Even Congress cannot write the Supreme Court out of Article III. 

And fifth, the intake valve in what is funneled into the FISA 

Court has to remain extremely narrow. Any new legislation has to 

be fine tuned carefully when it comes to surveillance of American 

citizens in secret. This should be a rare thing, to be limited to cases 

where there is an awfully good reason to believe there is someone 

linked to terrorism on the other end of the communication. I think 

that still needs some tweaking. 

Let me just end by saying, Mr. Chairman, that there is no question in my mind that President Bush and his advisers and the Attorney General are doing everything humanly possible to do the 

right thing for our country here, just as Harry Truman did in 1952 

in the steel seizure case. He thought it was essential to seize those 

steel mills in order to protect American troops in the field of battle. 

President Bush confronts a world quite different than any other 

previous President. This is serious business, there should be no finger-pointing here. 

At the same time, this Congress has clearly defined powers 

under the Constitution. It has a duty to our system of Government 

to ensure that these are not disemboweled or diminished in any 

way by any other branch of Government, however well intentioned. 

Some of the draft legislation I believe is a positive step in that direction. This is not about right or wrong, Mr. Chairman. It is about 

attempting to find some common constitutional ground among 

equally well-intentioned public officials and branches of Government, and I pray that we as a Nation are still capable of doing 

that. 

Thank you for the privilege of testifying. 

[The prepared statement of Mr. Gormley appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Professor Gormley. 

As I said at the outset of the hearing before some of the Senators 

had arrived, we have the PATRIOT Act on the floor, and a number 

of us have to be there this morning. Scheduling of the PATRIOT 

Act and a motion to cutoff debate coincides with this hearing, so 

we are going to have to stay on the schedule and conclude in the 

next hour, hour and a quarter. And we have, as is our practice, 5-

minutes rounds for Senators, and on the early bird, in order of arrival. 

Beginning with you, Professor Kmiec, I note your statement on 

page 18 of your 27-page statement—and we thank you for being so 

detailed—you have come to the conclusion that if legislation were 

enacted giving the Foreign Intelligence Surveillance Court the responsibility to determine constitutionality under the standards set 

forth in the proposed bill, that it would not be an advisory opinion. 

You articulated that the program warrant is a fair equivalent of 

438

the FISA warrant, which has been upheld, as you put it, as a quintessential judicial determination at common law. Would you amplify your reasoning on that point, please? 

Mr. KMIEC. Certainly, Mr. Chairman. The concerns I had when 

I first saw the draft of legislation was whether this was an advisory opinion, whether this was assigning to the Court something 

that was inconsistent with the Court’s function in the sense that 

it was an administrative or non-judicial posture. 

But one of the things that is very clear from our history and from 

the cases, is that the determination of probable cause and particularity is, and has been described since Matthew Hale, since Blackstone and commentators thereafter, as quintessentially a judicial 

function. 

Chairman SPECTER. And a determination about the constitutionality of the overall program would follow those general principles? 

Mr. KMIEC. It would as well, because, of course, the very determination of the appropriateness or inappropriateness of a warrant 

always has as a background principle the issue of constitutionality, 

and the way you describe it in your proposed legislation is that the 

judges would be ascertaining that constitutionality in the performance of this function. I think that is what they do generally. 

Chairman SPECTER. We only have a limited amount of time so 

you will have to forgive our moving rather rapidly to another question. 

Dean Koh, you said that unless the President agrees to comply 

with the operation of the Foreign Intelligence Surveillance Act it 

would be meaningless to pass more legislation, where we would 

give to the Foreign Intelligence Surveillance Court the responsibility to determine constitutionality of the overall program. Why do 

you say it would be meaningless? You are not suggesting that it 

would be meaningless if the FISA Court made a determination that 

the program was unconstitutional? It has to be noted we do not 

know the details of the NSA program, and I do not think we are 

about to find out anytime soon. There may be some very limited 

oversight, but even then the administration has shown a real reluctance to tell the Congress. 

I served as Chairman of the Intelligence Committee in the 104th 

Congress—and Director Woolsey has real insights here—I could not 

find out very much even though I was Chairman of the Committee. 

I thought at times the Director did not know very much about what 

the Central Intelligence Agency was doing. It’s a very compartmentalized and secret agency. 

Let the record show Director Woolsey is smiling. 

[Laughter.] 

Chairman SPECTER. I will not say that is an affirmation of what 

I said, but it has some probative value. Perhaps not much. 

But, Dean Koh, if the FISA Court said it was unconstitutional, 

that would not be meaningless, would it? It would be respected by 

the President? 

Mr. KOH. Well, Senator, 28 years ago Congress and the President 

enacted a law which they said was exclusive, and now the President is saying in fact it is not exclusive. He can operate outside the 

scope of that law. 

439

Chairman SPECTER. But the President is saying the Attorney 

General came in and said he has constitutional authority. If the 

President does have inherent authority under Article II, would that 

not trump the statute? 

Mr. KOH. Well, what I am saying is that if you pass a new statute, and the Attorney General and the President have inherent authority to operate outside the scope of it, you can keep passing statutes as long as you want, and they can keep doing it under their 

inherent power or under the AUMF. 

I should just point out that the act of passing the PATRIOT Act, 

again, is irrelevant if their theory is true, because the AUMF has 

already reauthorized the key provisions, and you do not need to 

pass anything. In other words, the role of Congress here is to either 

give a blank check, which is revised later on, or to just play this 

role in which you pass legislation that can be ignored at will. 

Chairman SPECTER. In the 15 seconds I have left, I can propound 

the question, Professor Gormley, and you will have more time to 

answer it after my red light goes on. You have come to the conclusion that the creation of this legislation would not be an advisory 

opinion. Would you amplify that, please? 

Mr. GORMLEY. Yes, Chairman Specter. I think that it, again, requires some fine tuning. Here we are talking about the proposed 

draft Specter bill, and I think it is a good start, it is a good framework, because it allows for program-based warrants, but it requires 

probable cause. It includes the FISA Court. It includes Congress in 

an oversight capacity, so we have all three branches of Government 

working. I think that is a good start. 

I do think that it is essential to make sure that there is some 

way that there can be a case or controversy presented to the courts. 

That is a problem, because when you stop and think about it, when 

matters are done in secret, there is no plaintiff by definition. You 

have to allow some plaintiff to be created legitimately. 

So what I have proposed is to give the power—require the Director of National Intelligence to give an inventory of American citizens who have been subject to surveillance who are not terrorists, 

as is done under Title III, and allow the congressional oversight 

committee, the Intel Committees, with consultation with the executive branch, to determine if it is OK to release some of those 

names, and then you would have live cases or controversies and 

they could go to the FISA Court. 

But I do think that in general the system works. I do think it 

has to be tweaked, and let me just give you one example, Mr. 

Chairman. The way this thing is written right now—and I think 

it is why Dean Koh and John Podesta at the Center for American 

Studies, and others have some problem as written—it talks only 

about foreign agents, which makes sense currently under FISA. 

But, for instance, if one of your staff members contacted today a 

Government official in Canada, that is a foreign agent, and then 

that person, your staff member could be wiretapped for 45 days. I 

do not think that that is what is intended. I think there has to be 

a more direct link to terrorists and I think that can be done fairly 

easily. 

Chairman SPECTER. Thank you, Professor Gormley. 

440

Senator Leahy will be returning shortly, and in his absence, I 

will turn to Senator Biden. 

Senator BIDEN. Thank you very much. 

I would like to ask Messrs. Woolsey and Turner, is FISA constitutional? 

Mr. WOOLSEY. I believe insofar as it intrudes on mapping the 

electronic battlefield in war time when the United States is under 

direct threat of attack, Number one believe that there are many 

provisions of FISA that are constitutional with respect to looking 

into individuals, and as Judge Posner’s proposal, that I in general 

endorsed, suggests, in traditional cases of FISA, spies and the like, 

where you have the identity of an individual and the question of 

probable cause of whether or not that individual is an agent of a 

foreign power or terrorist organization arises, under those circumstances I think FISA can operate, and should operate today, 

and should operate in the future, but that is not what we have 

here. 

What we have here—we often do not even know individual who 

is at issue with the electronic surveillance plan. 

Senator BIDEN. In the interest of my time, you have answered 

my question. Thank you. 

Mr. Turner? 

Mr. TURNER. Thank you, Senator Biden. I was here when FISA 

was passed— 

Senator BIDEN. So was I. 

Mr. TURNER. And spent 3 years overseeing it as Counsel to the 

President’s Intelligence Oversight Board. I am a fan of FISA, but 

ultimately, as Griffin Bell noted as Attorney General in the Carter 

administration in ’78, and as the FISA Court of Review that you 

established has said, the President has independent power in this 

area that cannot be taken away by Congress. So I— 

Senator BIDEN. To the extent that FISA attempts to limit the 

President, it is unconstitutional? 

Mr. TURNER. In cases involving foreign intelligence, and certainly 

during time of war, I would say yes. This is the administration— 

Senator BIDEN. I got it. My time is—with all due respect. I apologize. 

Mr. TURNER. Yes, sir. 

Senator BIDEN. Now, based on the legal—one of the advantages 

of commuting, you get to read all this. I read all your statements, 

and I must say for the record I agree most with Mr Fein, which 

should worry him. 

[Laughter.] 

Senator BIDEN. But the fact is that under the legal reasoning 

that some of you have put forward, in addition to the legal reasoning put forward by the administration in the memorandum prepared by Mr. Yoo in 2002, on August 1, 2002, I do not see any rational distinction in the argumentation being made by the administration or by you, Mr. Woolsey, or by you, Professor, or by you, Mr. 

Turner, that would suggest that the President does not have authority to exercise the same authority absent any prohibition and 

including any prohibition on the part of Congress for domestic-todomestic wiretapping. What is the distinction? 

441

Mr. KMIEC. I think the distinction is the Supreme Court’s decision in Keith has made it plain that with regard to domestic security, the Fourth Amendment does have an application different 

than it has with regard to foreign intelligence. The motivation for 

FISA was largely to pursue that domestic security side of the question, and I think that is fundamentally different. 

Senator BIDEN. I was here, and was a cosponsor of that, and I 

disagree with both your characterizations of what we intended to 

do at the time, but I do not have time. 

Mr. Woolsey? 

Mr. WOOLSEY. I might just quickly say I think internal communications, even between terrorists, are a different and a more troubling case. Mr. Levy says that the battlefield was Afghanistan, but 

not France. I do not think the United States is the only side that 

gets to decide where the battlefield is. If you were here on 9/11 and 

saw that crash into the Pentagon, it is hard to tell the families of 

the people who died that they were not on a battlefield. I think the 

battlefield is in part here, and connections between here and terrorists overseas, whether they are in France or anyplace else— 

Senator BIDEN. And whether or not they are overseas or not, I 

do not get it. 

Mr. Fein, what would you say? My time is running out. 

Mr. FEIN. I agree exactly, Senator Biden, and Attorney General 

Gonzales himself, on February 6, said there is not any difference, 

it is just the President, for political purposes, decided that domestic-to-domestic would subject him to too great recriminations, and 

therefore, this is not because of absence of legal authority. 

If I could just mention a couple points that former Director Woolsey made. Number one, General Hayden has said the United States 

is targeting specific individuals. This is not a dragnet. It is not data 

mining that we are discussing. Specific individuals precisely of the 

type that FISA is addressed to. 

And second, with regard to battlefield intelligence, the Supreme 

Court has made clear for more than a decade, when we are intercepting calls on a battlefield abroad, or even al Qaeda into the 

United States, where we are intercepting the conversation before 

it gets into domestic transiting, there is not any Fourth Amendment protection at all for al Qaeda. So this is not application of 

FISA to curtail or handicap in any substantial way the President’s 

ability to gather foreign intelligence. It is not an effort to micromanage what the President can gather in fighting al Qaeda and 

otherwise. 

And I think there has been gross misrepresentations of suggesting that under FISA, if al Qaeda makes a call into the United 

States, an American picks up the phone, then the United States 

has to stop listening. No. That has not been the case. It has never 

been the case and it should not be the case. 

Mr. WOOLSEY. Mr. Fein has misrepresented what General Hayden said. 

Senator BIDEN. Pardon me? 

Mr. WOOLSEY. I think Mr. Fein has misrepresented what General Hayden said. He has not said that each of these cases is going 

after an individual, a known individual. I believe they are going 

after phone numbers, cell phone numbers, addresses, e-mail adVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00449 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
442

dresses and the like. If they were going after individuals, then individual tests of probable cause could be supplied. It is precisely the 

problem that in many cases one does not know who has the cell 

phone or when it has been thrown away and the rest. I think Mr. 

Fein fundamentally misstated what the General said. 

Chairman SPECTER. Thank you, Senator Biden. 

Senator Hatch? 

Senator BIDEN. Could Mr. Fein respond to that? 

Mr. FEIN. I would disagree with that characterization of Mr. 

Woolsey because— 

Chairman SPECTER. Yes, you may respond, Mr. Fein. 

Mr. FEIN. Because when you are targeting a specific location, 

even if you do not have the name of an individual, it is focused on 

an ability to establish some probable cause or a suspicion that that 

particular phone or location is being utilized to further terrorism 

or the al Qaeda war against the United States, and it is that focus 

that is addressed by FISA and distinguishes this from simply a 

data mining gathering of information that is not targeting any particular location. 

Chairman SPECTER. Under the early bird rule, Senator Kyl was 

here earlier. 

Senator KYL. Thank you, Mr. Chairman. 

Let me pursue just a little bit the question that Senator Biden 

asked, because we pursued this with the Attorney General when he 

was here too. No one was suggesting at that time that we should 

engage in a domestic surveillance program such as is being done 

with respect to the surveillance where there is an international 

point of contact, but I think we were troubled by his answer which 

was actually that he had not done the analysis. The Attorney General said the analysis on domestic has not been done. I said, ‘‘Well, 

you ought to at least do it.’’ 

I am just wondering, apart from your other views with respect 

to this question of the distinction between international and domestic, I gather some of you think there is a distinction there that 

would authorize some kind of program like this, and others believe 

there is not. 

If the Attorney General said to you, ‘‘I would like to do this analysis and understand whether there is a distinction between domestic and international,’’ what would your advice be? If I could just 

a quick response from each of you on the panel, because I do have 

one other question to ask. 

Director Woolsey, maybe we can begin with you. 

Mr. WOOLSEY. I think the distinction comes when one zeroes in 

on an individual and then you can have a court understandably 

consider whether there is probable cause that that individual is an 

agent of a foreign power or a terrorist organization. When there is 

not an individual, when a call is from a switch in Yemen to a cell 

phone in the United States, then I think under those types of circumstances, the administration’s assertion of its authority is well 

taken. It is a tougher case if one has a call from a cell phone in 

Lackawanna from someone you suspect to be a terrorist to a cell 

phone in Toledo, and we have apparently terrorist cells, one in 

Lackawanna and one potentially in Toledo. That is a tougher case. 

443

Once individuals get involved, and one knows names and locations, it seems to me the FISA procedures begin to be appropriate. 

This is a tough crosswalk between those, but for what the administration is talking about—calls from that switch in Yemen to a cell 

phone of unknown possession in the United States, which in fact 

occurred with Al-Midhar and Al-Hasmi—NSA did not follow it up, 

because as NBC News says, it was worried about being charged 

with domestic intelligence collection. I think in cases like that, the 

administration program ought to be able to go forward. 

Senator KYL. Thank you. 

Mr. FEIN. Mr. Senator, I do not see any distinction in the sense 

that the critical point is whether the gathering of the information 

is for foreign intelligence purposes. That is the touchstone of FISA 

application. And if it is for foreign intelligence purposes, namely, 

to fight or identify terrorism or help in the conduct of foreign relations, I do not see why it makes any difference whether you are 

gathering that information when it happens to transit in the 

United States as opposed to transiting between the United States 

and elsewhere. It is the use that is critical. 

Senator KYL. Thank you. 

Maybe just quickly get, again, because of the time, just a real 

quick response from the others of you too. 

Mr. KOH. I agree that it is about foreign intelligence gathering. 

If all the world is a battlefield, the question is whether the FISA 

is still relevant and still controls the way in which Congress, the 

President and the courts operate, or whether the President is suddenly entitled to step completely outside that and rely on inherent 

unwritten power. 

Senator KYL. Thank you. 

Mr. LEVY. The restrictions in FISA apply to U.S. persons who are 

in the United States and who are specifically and intentionally targeted. It does not matter whether the person on the other end of 

that line is somebody who is in Toledo, Ohio or somebody who is 

in Beirut. The distinction here between domestic and foreign is not 

a distinction that you can find anywhere in the FISA statute. Domestic surveillance consists of targeting somebody in the United 

States who is a U.S. person. And I see nothing in the NSA program, other than the President’s assertion, that it only applies 

when one end of the conversation happens to be outside the United 

States. Nothing conceptually would distinguish those two cases. 

Senator KYL. OK, thank you. 

Professor Kmiec? 

Mr. KMIEC. Well, I agree with much of your statement, and I 

think they indicate that this distinction between domestic and foreign is not the right distinction. The right distinction is whether or 

not there are individuals, whether they are domestic or foreign, 

who are associated with al Qaeda and are seeking to materially advance al Qaeda’s interests. 

I think the fundamental difficulty for the President is that the 

NSA, in their description of the operational details, which we do 

not have, has indicated that the program, as it operates, inevitably 

picks up some U.S. persons, and to the extent that it does, it then 

starts to rub against the provisions of the FISA statute. 

444

So the President tried to solve that problem by drawing this distinction between domestic and international, but it does not solve 

it because the right distinctions, as others on this panel have said, 

is the connection to al Qaeda and their purpose to harm us. 

Senator KYL. Professor Turner? 

Mr. TURNER. Sir, I think the confrontation here is between the 

President’s powers under the Executive Power Clause and Commander in Chief Clause and the Fourth Amendment. I do not think 

Congress can narrow the Fourth Amendment. I do not think Congress could take away the President’s independent powers. I think 

that the Fourth Amendment does allow at least some domestic surveillance when you are talking about people the President believes 

are foreign terrorists. I do not doubt that will mean some injustice 

or some innocent people will be listened to, but the President 

makes all sorts of targeting decisions during war that kill innocent 

people around the world, because that is the nature of war. It is 

unfortunate, but I do not think FISA can really play in this game 

when you are talking about a confrontation between major constitutional powers. 

Mr. GORMLEY. Senator Kyl, it is a great question, and I think the 

greatest danger that faces Congress in dealing with this issue is allowing the distinction between domestic and international surveillance to be collapsed into one in the wake of September 11th. In 

one case Congress has more power under the Constitution, in another, the President. And the solution, in my view, is to include the 

courts because the courts can make sure that boundary line is not 

crossed, even though it is a fuzzy one. 

Senator KYL. Appreciate it. Thank you very much to all of you. 

Chairman SPECTER. Thank you, Senator Kyl. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. Senator Leahy 

had to leave and asked if we could put a few items in the record 

for him: February 12th New York Times editorial; February 16th 

George Will column; and a statement from the Coalition to Defend 

Checks and Balances. 

Chairman SPECTER. Without objection, they will be made a part 

of the record. 

Senator FEINGOLD. Thank you, Mr. Chairman. I appreciate this 

hearing, appreciate all the witnesses, and regret that I have to go 

to the floor shortly on the PATRIOT Act issue the Chairman mentioned. 

But I would like to ask one question. Let me first say I am just 

amazed at the constantly shifting justifications for this NSA program. After going through two Supreme Court nominations and 

hearing these two now-Justices talk about how central Youngstown

is to the analysis of this sort of thing, we hear the argument now 

that Youngstown does not even apply. I mean, literally, it is a spectacular range of shifting justifications for what is, frankly, in my 

view unjustifiable from a legal point of view. 

But I am very concerned that the administration’s theory in support of the NSA program has no limits, and that it could be used 

to justify virtually any action, and override virtually any statute 

based just on a tangential relation to combatting terrorism. None 

of us actually know what else the administration might have alVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00452 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
445

ready authorized. As the Chairman has indicated, we do not even 

know for sure what this program is, but based solely on its legal 

theory, I do not know what would prevent the administration from 

authorizing all kinds of activities that would otherwise violate a 

statutory prohibition. 

It seems to me that its legal theory could be used to justify, as 

we were just discussing, of course, purely domestic communications 

of Americans, but also conducting warrantless searches of people’s 

homes or even assassinating citizens inside the United States. 

I would like each of you to tell me whether you see any limit to 

the administration’s legal theory, and if so, where would you draw 

the line? Let me start first with those who generally support the 

administration position, and then elicit a response from those who 

oppose it. 

Mr. Woolsey? 

Mr. WOOLSEY. Senator Feingold, I think that even at its lowest 

ebb under the Youngstown language, Justice Jackson’s, there is 

still an ocean, and the ocean is the President’s Article II authority 

as Commander in Chief. Personally, I see mapping the electronic 

battlefield in a situation in which the United States has been attacked, as far more inherently related to the President’s Commander in Chief powers than operating steel mills under one set 

of labor regulations or another. So I do not think Youngstown

reaches this commander in chief power. 

Senator FEINGOLD. My question is, what limits are there under 

the doctrine? 

Mr. WOOLSEY. As one gets further away from what a Commander in Chief does in wartime, I think congressional counteraction, such as FISA or something else, begins to have more and 

more effect. I agree with Justice Jackson’s underlying rationale in 

the concurring opinion in Youngstown. So if the President, for example, decided he needed to operate computer companies in order 

to have better computer chips, I think he loses under Youngstown, even if he tries to do it under his inherent commander in chief rationale. 

Senator FEINGOLD. I will try to get an answer from everybody, 

so Professor Kmiec? 

Mr. KMIEC. Senator, I think Youngstown has been portrayed 

aptly as a limitation on Presidential power, clearly it was in that 

case, as applied. But there is also instruction from Justice Jackson 

in that case that the real purpose is to see that Congress and the 

President work together. Because he indicates that he can find apt 

quotations, as he says, to support the President’s power independently and Congress’s power independently, from materials that he 

described as enigmatic as the dreams of a pharaoh. 

The fact of the matter is, is that there are limits. Mr. Woolsey 

properly described them. The limits start to apply more soundly 

and more directly as you move away from military intelligence, battlefield intelligence, and what the Attorney General described to 

you when he was here, and that is, reasonable suspicion that a person is connected to al Qaeda or a related organization. That is— 

Senator FEINGOLD. What about assassinating American citizens; 

is that prohibited? 

Mr. KMIEC. I think it clearly is by existing— 

446

Senator FEINGOLD. By what? 

Mr. KMIEC. By existing Executive order as well— 

Senator FEINGOLD. If that order was rescinded, what would prohibit it under your doctrine? 

Mr. KMIEC. I think you are asking what are the tactical judgments of the President in the time of war. 

Senator FEINGOLD. Could the President make the tactical judgment to assassinate American citizens under the power you described? 

Mr. KMIEC. I do not believe he can. 

Senator FEINGOLD. I do not think that is the logical extension of 

your argument. 

Professor Turner? 

Mr. TURNER. Yes, sir. The reason the Founding Fathers largely 

cut Congress out of the detailed business of war is because they felt 

it could not keep secrets. I discuss that in my testimony. D-Day 

was not prebriefed to Congress. That did not mean that FDR 

thought he was doing something evil or illegal. It was because he 

understood that operational security and the lives of our troops depended upon keeping that operation a secret. 

Sure, the President could abuse these powers. Imagine if we focused instead on his power to order the use of lethal force. Could 

the President decide that a Senator he did not like was flying on 

an airplane out of France, and tell the military, ‘‘That is an al 

Qaeda plane; shoot it down?’’ Possibly that could happen. If it did 

happen, there are tremendous checks within the executive branch 

that would undoubtedly bring it to light. There are over 200 employees in the NSA I.G. office alone. 

Senator FEINGOLD. Sir, I have to move to the other people. Now, 

I am really getting worried. 

[Laughter.] 

Senator FEINGOLD. Dean Koh? 

Mr. KOH. Youngstown is critical, Senator, because it states a vision of shared power and national security between Congress, the 

President and the courts. The vision that they are painting is one 

in which the President only has a role, and Congress and the 

courts can be ousted. 

Your example of assassination is apt in the sense that if would 

ordinarily be forbidden by a criminal statute, the President could 

override the criminal statute, as he has overridden FISA here. 

The only other limitation that would come in is the Fourth 

Amendment, which, of course, would limit him to reasonable 

searches and seizures. But the battlefield argument being uses 

makes everything ‘‘reasonable.’’ And also, you have the problem 

that the program perspective on this—and program 

preauthorization means you could sweep up in a dragnet a huge 

number of unreasonable searches looking for one reasonable 

search. 

So I think the answer to your question is, taken to its logical 

limit, there are no limits posed by the theories presented here. 

Senator FEINGOLD. Thank you, Dean. 

Mr. Levy. 

Mr. LEVY. If the President’s inherent wartime powers were not 

limited by Congress, surely they would extend to roving wiretaps, 

447

to sneak-and-peek searches, to library record searches, to national 

security letters, all of which are now being vigorously debated in 

terms of reauthorizing the PATRIOT Act. What is the purpose of 

that debate if the President has inherent authority? And indeed, 

we have evidence that the President believes his inherent authority 

extends to such lengths. The President has used the same justification, namely the authorization to use military force, his Executive 

power, and commander in chief power, to authorize military tribunals without congressional authorization, secret CIA prisons, indefinite detention of Hamdi and Padilla, and enemy combatant declarations in Guantanamo without the hearings that are required by 

the Geneva Convention. 

Senator FEINGOLD. Thank you, Mr. Levy, very much. 

Mr. Fein. 

Mr. FEIN. I think the President’s actions are more illegal than in 

Youngstown for two reasons. One, Youngstown related to seizure of 

private property, as opposed to invading privacy of conversation, 

which Justice Brandeis characterized as the most cherished right 

among civilized people. 

Second, in Youngstown, it was implied that Congress had turned 

down or had impliedly not authorized the seizure of the business. 

In this case, FISA has affirmatively said you cannot surveil outside 

of FISA, that it is the exclusive means for conducting electronic 

surveillance. So it is a much more affirmative assertion of congressional power than was at issue in Youngstown. In my judgment, 

therefore, if Youngstown is good law, this case is very easy. 

With regard to limits, it is clear that the President, in my judgment, has propounded a theory that would surely justify torture, 

claiming that we maybe can get better intelligence if we torture individuals irrespective of the Federal statute. The early decisions of 

the United States Supreme Court, Chief Justice Marshall, Little v. 

Barreme, U.S. v. Brown, they concern Presidential assertions of 

power far less weighty than the President’s here, and were turned 

down. Namely, in U.S. v. Brown, the President asserted a power 

to confiscate enemy alien property in the United States during the 

War of 1812. And Supreme Court said, no, Congress is the only authority to condemn that property. In Little v. Barreme, the Congress said that the President could not intercept ships going from 

France to the United States, as opposed to going from the United 

States to France. Both upheld. 

And last, with regard to Mr. Turner’s statement about secrecy, 

we built the Manhattan Project in secrecy, and Congress was consulted, in World War II. The Nazis, the Japanese did not get any 

fair warning. 

Thank you. 

Chairman SPECTER. Senator Feingold, you are almost 5 minutes 

over. 

Senator FEINGOLD. Just one question. 

Chairman SPECTER. We are going to have a—yeah, I know, but 

you keep re-asking it. 

[Laughter.] 

Chairman SPECTER. And it is true that the witnesses have done 

most of the talking. You have been very artful with your 5 minutes. 

448

Mr. GORMLEY. Mr. Chairman, can I invoke the rule that the person from Pennsylvania gets at least 30 seconds? 

Chairman SPECTER. You could if there were any such rule. 

[Laughter.] 

Chairman SPECTER. Go ahead, Senator Feingold. Finish up. 

Senator FEINGOLD. I just wanted to ask— 

Mr. GORMLEY. In the present posture, Senator, I don’t think that 

there are any boundaries. Even Congress can’t authorize the President to eviscerate the Fourth Amendment. And as I said in my testimony, homeland security includes protecting the Bill of Rights. So 

unless we are prepared to say a President can unilaterally suspend 

the Constitution indefinitely, I think the answer has to be that, 

after a period of time, you simply would have to amend the Constitution. 

Senator FEINGOLD. Thank you, Mr. Chairman, for all the time. 

Chairman SPECTER. Thank you, Senator Feingold. 

Senator Hatch. 

Senator HATCH. Well, the Fourth Amendment does talk about 

reasonable search and seizures, and there is some real question 

whether there is reasonable cause to do this. I believe that I would 

come down on the side of reasonable cause. 

Mr. Woolsey, you started this off and you have been attacked 

ever since, to a degree. I would like to just spend a few minutes 

with you on this because I kind of think that the Curtis Wright

case is a central case as well. In fact, maybe in this instance much 

more important than the Youngstown Sheet & Tube case. 

But I think you didn’t have a chance to use some of your remarks—and I would just like to get your ideas on this. You say 

that ‘‘the captured al Qaeda or Hezbollah computer contains, like 

Moussaoui’s, a substantial number of e-mail addresses and phone 

numbers and we have only hours before the capture is known, during which time we must check out those numbers and addresses 

and others with whom they may have been in contact before the 

owners throw away their phones and change their e-mail addresses. How can an Attorney or a FISA court, even with amended procedures, make these decisions sufficiently quickly? The FISA court 

considered and deliberated about only 1759 requests for warrants 

in all of 2004 and asked that 94 be modified before they were 

granted.’’ And then you go on to list each of the FISA warrant application approaches in order to get a FISA warrant in individual 

cases. 

Now, with all due respect, other than with the possible exception 

of Mr. Woolsey, I don’t think anybody on this panel—and I may be 

wrong on this, but I don’t think anybody on this panel has a full 

understanding of what really is being done here. But you say here 

that just to get a warrant for an individual before FISA, you make 

a warrant request form filled out by the FBI, the target and individuals identified, facts are set out establishing there is probable 

cause to believe that the individual is involved in terror or spying, 

details of the facilities and communications to be monitored are 

supplied, procedures are set forth to minimize the collection of information about people in the U.S., a field office supervisor then 

verifies and approves the request. 

449

And you go further. I mean, to me—well, let’s just give the last 

few: FBI special agents and attorneys at headquarters ensure that 

the form contains all required information and finish the form, the 

Director at the Agency certifies that the information being sought 

is necessary to protect the U.S. against actual potential attacks, 

spying, or international terrorism. It cannot be obtained by normal 

investigative techniques. At the Justice Department, lawyers at the 

Office of Intelligence Policy and Review draft a formal application 

based on the request. The Attorney General reviews and approves 

the application. Then you have to go to the FISA court and get the 

warrant. In each case. 

Is that right? 

Mr. WOOLSEY. That is—this summary is taken from the New 

York Times summary of the statute, Senator. I think this is the 

main problem. And it is not ill will on anyone’s part. It is that the 

operation of Moore’s law has given us the Internet and throw-away 

cellular phones and everything else, which terrorists have access 

to. That was not remotely envisioned in 1978. 

Senator HATCH. And Moussaoui may have sent thousands of references. 

Mr. WOOLSEY. I don’t know how many were on, but apparently 

there was a large number. 

Senator HATCH. Well, I am just saying, any number of these people may have had thousands of e-mail addresses, names, other references. 

Mr. WOOLSEY. Exactly. We captured Khalid Sheik Mohammed 

and got his computer. We have captured other hard disk drives 

from people. And when it is known that they are out of communication and they are not going to be back up for awhile, people suspect 

that they may be captured and, I would surmise, do things like 

throw away their cell phones and change to different chat rooms 

and the rest. This is a fast-operating world, this business of electronic battlefield surveillance. And it is not the President’s fault 

that we are on the battlefield here. We didn’t want to be on the 

battlefield. The battlefield is not, as Mr. Levy seems to suggest, 

just where we choose, like Afghanistan. 

Senator HATCH. Now, do you believe it is just Afghanistan and 

Iraq? 

Mr. WOOLSEY. Say again? 

Senator HATCH. Is the battlefield just Afghanistan and Iraq? 

Mr. WOOLSEY. Of course not. I mean, not this war that we are 

in—the Administration is starting to call it ‘‘the long war,’’ which 

I think is better than ‘‘war against terrorism.’’ The first part of my 

testimony suggests we really have two totalitarian movements, 

broadly speaking, fragmented into different parts, that have chosen 

to be at war with us. And they include elements, I think, within 

the Iranian government, they include Hezbollah in some circumstances, include different Sunni Islamist groups, include for 

some purposes the Wahhabis in Saudi Arabia. This is a complicated matter. We are in the gunsights of more than one international terrorist Islamist organizations that have ties, some of 

them, to states. And these are shifting alliances. This is a hard 

kind of thing to keep up with. 

450

And trying to do it spy-by-spy, case-by-case, pleading-by-pleading, as one does in the FISA court, is not only difficult, it is absolutely impossible. The FISA court doesn’t fit with this need poorly; 

it doesn’t fit at all, as far as I am concerned. 

Senator HATCH. So the President has exercised his inherent 

power to do the best he can to protect the homeland? 

Mr. WOOLSEY. I believe in this regard, that is correct. I don’t believe the President could order assassinations of Americans. I am 

something of a student of American military history and I can’t 

think of a single case in all the wars we have been in where the 

President has ordered the assassination of an American citizen. 

But the President has collected a lot of battlefield intelligence in 

wartime. 

Senator HATCH. My time is up. Thank you. 

Chairman SPECTER. Thank you, Senator Hatch. 

Mr. Levy, you testified that the electronic surveillance of citizens 

other than al Qaeda is beyond the pale, in effect. Attorney General 

Gonzales testified that the program is triggered only when a career 

professional at the NSA has reasonable grounds to believe that one 

of the parties to a communication is a member or agent of al Qaeda 

or an affiliated terrorist organization. We have never had any specification as to how they can make that kind of a determination. It 

is difficult to see how they would do it, and I would be interested 

in how they do it. And then you have the career professional who 

makes the reasonable grounds determination, which obviously is 

not an impartial magistrate. But if there were a way—and I use 

the subjunctive there—that you knew that at one end of a conversation there was an agent of al Qaeda or an affiliated terrorist 

organization, would you think that permissible? 

Mr. LEVY. It depends on who is the target of the surveillance, 

Senator. If the target of the surveillance is the agent, then surely 

it is permissible. And in fact, procedures are available under FISA 

to authorize that. If the target of the surveillance is a mere contact, 

somebody who may not even be aware that his conversation has intelligence value, the notion that the U.S. Government can put a 

wiretap or some other form of surveillance on that person’s communications, his telephone calls and e-mails, is outside the scope of 

FISA. 

Chairman SPECTER. Do you think that necessity could be shown 

or a program could be justified where you have a career professional at NSA making that determination? 

Mr. LEVY. I would be leery of having career professionals make 

these kinds of determinations. I mean, the very essence of our constitutional structures is sharing of power between branches. So if 

we’re going to have a career professional providing input, that is 

all good and well, but I would like to see input provided to someone 

outside of the executive branch, preferably the FISA court, and 

that information can then be used and agreed upon by more than 

one branch of Government before this kind of surveillance is authorized. 

Again, the key point for me is who the target of the surveillance 

is. There is no restriction right now on intercepting communications that go to a U.S. person in the United States if the U.S. person in the United States has not been made the intentional target 

451

of the surveillance. So the suggestion that battlefield communications can’t be intercepted, that is nonsense. 

Chairman SPECTER. Let me move now to Director Woolsey. The 

National Security Act of 1947, under the title of General Congressional Oversight Provisions, specifies that the President shall ensure that the congressional intelligence committees are kept fully 

and currently informed of the intelligence activities of the United 

States. And the statute, as you know, refers to the committees repeatedly. What do you make of this practice to limit it to the socalled Gang of 8 in derogation of what the statute requires when 

it refers to a Committee which has 15 members in the Senate. 

Mr. WOOLSEY. It does, Senator, but I think when you add the 

House Committee and the appropriations subcommittees and the 

staffs of all four of those, you get up in the ballpark of 200 individuals. 

Chairman SPECTER. Well, you don’t have the appropriations committees specified in the statutes. You have the intelligence committees. And you could read that to exclude the staff, but it is pretty 

hard to read it to exclude the Senators or the Members of the 

House. 

Mr. WOOLSEY. You could try to do that and— 

Chairman SPECTER. What is the justification? When you were Director of CIA under President Clinton’s administration, did you 

limit the information to the so-called Gang of 8? 

Mr. WOOLSEY. No, but I frequently would go to the Chairman 

and Ranking Member of each of the two oversight committees and 

each of the two appropriations committees and leave it to their discretion as to how widely to hold a hearing, for example. But I never 

went precisely to the so-called Gang of 8 because that really is related, as I recall, to a later amendment dealing—or Executive order 

dealing—with certain CIA covert actions, and we didn’t have any 

that I thought needed to be limited to Gang-of-8 notification. So I 

always dealt with the Chairman and Ranking Member and left it, 

essentially, up to their judgment how widely to disseminate things. 

You and I, unfortunately, only overlapped for a very brief period 

of time. I wish you had been Chairman in 1993 and 1994 and not 

just come in in 1995, frankly. 

Chairman SPECTER. So do I. 

Before turning to Senator Schumer, who has just arrived, let me 

turn to Senator Kyl for a second round. 

Senator KYL. Thank you, Mr. Chairman. 

Other than Professor Kmiec, do any of you believe that the FISA 

court could judge the constitutionality of the NSA program, as suggested by Senator Specter’s proposed legislation, without an actual 

plaintiff who presents an actual case or controversy? Do any of you 

agree with him on that? 

Mr. FEIN. I do, Senator Kyl. I think the way in which this could 

be done is if the Attorney General approached the FISA court with 

an application for a warrant and said we are using, as part of this 

application, information obtained from the NSA’s warrantless surveillance program. Then it would be up to the court to decide 

whether that program was tainted and therefore the information 

could be utilized or not, and— 

452

Senator KYL. Excuse me, so if the Attorney General approached 

the court with a warrant for an actual— 

Mr. FEIN. Seeking a FISA warrant and saying to the FISA court, 

In support of this warrant I am utilizing the following information 

that we received from the NSA’s warrantless surveillance program. 

Senator KYL. Well, let me back up. There is a big difference between collecting intelligence, on the one hand, which is what this 

program is intending to do, and collecting evidence for prosecution 

in a case. And I think we need to keep that distinction in mind 

here. It may be that evidence collected under this program could 

not later be used to make a criminal case— 

Mr. FEIN. I am not addressing that issue, Mr. Senator. What I 

am addressing is application of a warrant to collect foreign intelligence under FISA, not for a criminal prosecution. I am saying you 

go in seeking that warrant— 

Senator KYL. And you think that could—all right. But are you 

suggesting it would have to be for a particular situation? 

Mr. FEIN. For a particular search-warrant-under-FISA case. 

Senator KYL. OK, that would presumably, then, offer up an actual case or controversy. 

Mr. FEIN. Yes. 

Senator KYL. All right. Well, my question was no case or controversy. So, all right. 

It seems to me—and if any of you—well, let me ask this. Several 

of you have noted the fact that there is a genuine legal argument 

to be made for power residing both in Congress and the Executive, 

and perhaps even a court review of that in a particular situation, 

and have noted that this is to some extent dependent upon the 

facts—is it domestic, is it not domestic? There were other distinctions made earlier. 

It seems to me that this is almost a classic case, like the war 

powers debate, where it is not arguable that both Congress and the 

Executive have authority. It is to some extent competing, to some 

extent overlapping. And it is very difficult to sort out in the abstract. It is the classic case where the court on political questions 

has avoided sometimes getting involved in the debate and where 

both parties, both the Congress and the President, have marched 

right up to the brink and have backed away and resolved the issue. 

I mean, we don’t—I mean, the President still says I don’t have to 

follow the War Powers Act; Congress says yes, you do. And yet we 

both go on about our business warily working with each other in 

a way that doesn’t set that conflict up, because we understand 

there are larger, more important things than necessarily having a 

fight that is going to try to force a court to resolve an issue where 

in fact the Founding Fathers and the Constitution does not provide 

a crystal-clear answer for every situation. And so I guess what I 

am arguing for here is a resolution of this that is sort of in the 

spirit that some of you have suggested. 

Let me just pose one hypothetical case. And this may be so hypothetical that it is not helpful or real. But hypothetically, if the Intelligence Committee or parts of the Intelligence Committee were 

regularly briefed—say, 45 days—on this program, and that that 

briefing included a certified IG report on whether there were ever 

any situations of purely domestic surveillance, inadvertent, in the 

453

program which would then enable Congress to suggest that the 

court ought to have a role in this, is it necessarily the case that 

the court would have to have a role in it prior to that situation? 

We are going to get into the admonition of the Chairman, so at 

least a couple of you. Professor Kmiec and then the two of you 

down at this end that had your hands up. 

Mr. KMIEC. I think both of your questions are is it more appropriate for a court or for an Inspector General, an Executive agent, 

to have this oversight responsibility. 

I think the reason Justice Powell suggested the court in the 

Keith case was because some of this evidence potentially can end 

up in a criminal prosecution. Not all does. Much of it is for purposes of prevention. And that is why there is a constitutional justification for the court, because— 

Senator KYL. If I could just interrupt you. I am really sorry to 

do it, but the Chairman would get all over me if I don’t here. I was 

not talking about the ultimate oversight. My hypothetical was you 

have the existing program, it is briefed to members of the Intelligence Committee, and if there is ever a situation where there is 

an inadvertent surveillance that is purely domestic, that involves 

no international context, that that would have to be told to the 

committee. And my hypothetical, really, is, in that intelligencegathering context, given the fact that Congress would then have 

the ability to inject the judiciary, and if it decided to do so, would 

that be an appropriate way to begin to provide oversight? 

Mr. KMIEC. No question about it. It would be a more deferential 

form of oversight insofar as it would allow the Executive to more 

fully operate, and until a problem arose there would not be a referral to a court or to others for further proceeding. So it is tweaking 

the process of oversight— 

Senator KYL. Admittedly. 

Mr. KMIEC [continuing]. And it is just simply more deferential to 

the Executive side. 

Senator KYL. Thank you. 

Just the first two, would that be all right, Mr. Chairman, and 

then— 

Chairman SPECTER. Go ahead, Jon. 

Senator KYL. Mr. Woolsey and Dean Koh. 

Mr. WOOLSEY. Senator Kyl, what you suggest is a rather close 

cousin to the amended version of Judge Posner’s recommended 

oversight procedure that I include at the end of my testimony. I 

would far rather have the intelligence committees or some subset 

thereof, or perhaps the Group of 8—it would be up to Congress—

be the oversight mechanism here than the FISA court. I don’t believe courts are, as I said earlier, the right institution to provide 

oversight over intelligence collection as distinct from these individual cases we talked about. 

I think that a mechanism somewhat of that sort would be a compromise, somewhat analogous to the compromise or standoff that 

had developed with respect to war powers, and I think it is a good 

insight. I agree with it. 

Senator KYL. Dean? 

Mr. KOH. Senator, I agreed with your main point, which is this 

is one of those areas in which Congress and the President make a 

454

bargain as to how they are going to do things, and then both sides 

are supposed to agree to stick within the bargain. If the FISA is 

not working, as Senator Hatch is suggesting, then the job of the 

President is to come to Congress, give those examples, and ask for 

an amendment to remove the court and insert various bodies of 

Congress into it. They have done that in the PATRIOT Act. They 

have come for various kinds of FISA amendments. 

Senator KYL. Or—excuse me—we could do it on our own initiative. 

Mr. KOH. You could have hearings to do that based on knowing 

more— 

Senator KYL. We could pass a law to do it. 

Mr. KOH. Well, it might help first to know exactly what it is that 

they are doing and what warrants they can’t get. That is what I 

don’t know. In what ways has the FISA court actually stood in the 

way of them getting warrants that they need to get? 

Now, they are suggesting that there are so many warrants they 

want to get that the FISA court, which has given 19,000 warrants 

and rejected only five, won’t give them. And they have never given 

us an example of a warrant that they can’t get. 

So the real question is why is it that the FISA court is failing 

them? And why is it they need to involve the committees of Congress? But the point that the Chairman made is they have not even 

involved the intelligence committees, only the Gang of 8 and on 

limited briefings. 

Senator KYL. Thanks very much. And of course the answer that 

the administration gives to the question you posed is that that gets 

into the operational details of the program, which would make it 

very, very difficult to discuss publicly. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman. And again, I want 

to thank you for your work in arranging these hearings. I think 

you have tried very hard to be fair. This panel shows it. It probably 

has one more witness against what the administration wants than 

for it overall. So despite your best efforts, which I have no problem 

with, you have been fair, as you usually are, or always are—almost 

always, I guess. 

I am worried about these hearings. The structure of the hearings 

I don’t think is going to allow us to get to the heart of the matter. 

We had General Gonzales, who is a spokesperson for the administration. I don’t begrudge him that; that is his job. Here today we 

have an extraordinarily distinguished panel of experts and thinkers, all smart on the law, smart on policy, but, unfortunately, ignorant of the details of the NSA surveillance program at issue here 

today. And while I and others on the Committee welcome your expert testimony, what we really must have before this process is 

over is the frank testimony of former administration officials who 

are familiar with the NSA program. What about the people who 

dissented? What about people who expressed reservations—Jim 

Comey, John Ashcroft, Jack Goldsmith? Hardly flaming liberals, all 

of whom had real problems with this. Will we ever hear from 

them? 

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We have the 42-page white paper that is an after-the-fact defense of the NSA program, but what about the other papers? What 

about the contemporaneous legal memos that supposedly justified 

the NSA program? Will we ever see those? 

Now, after Attorney General Gonzales testified, the administration made clear they are going to assert every conceivable privilege, 

maybe with the exception of priest-penitent, to prevent former officials from shedding light on their view of the legality of the program. More than 3 weeks have passed and we haven’t even gotten 

answers to any of our followup questions to the Attorney General. 

So, Mr. Chairman, I fear that without hearing from the other 

witnesses and without receiving other materials, these hearings 

will be like a baseball game where only one team gets to bat. You 

guys are sort of referees and umpires there. But we haven’t heard 

from the other team. 

So let me ask each of you, do you agree that it would be helpful 

to hear from those who are actually familiar with the NSA program, who had concerns within the administration? And do you believe it would be good for the administration to be flexible about 

the issue of privilege so the American people can get to the bottom 

of what went on here? 

I will take anybody who wants to say something. 

Mr. FEIN. I agree, Mr. Senator, and I think that it is almost irresponsible for the Congress to enact legislation not knowing what 

the nature of the problem is. And the reason isn’t your fault, it is 

that the administration has concealed everything, not just operational details. They haven’t provided a glimpse as to the nature 

of this surveillance program. The way in which the Congress was 

clearly intended by the Founding Fathers to extract that kind of information is through the power of the purse. You simply enact a 

law that says the President has no authority to conduct electronic 

surveillance outside of FISA unless within 30 days, 60 days, he 

comes forward and explains the program to Congress and the need 

for any changes. That is the only way I think you are going to get 

this information. This bargaining is just going to last for years and 

have no end point. 

Senator SCHUMER. Thanks. 

Professor Koh, and then Mr. Levy. 

Mr. KOH. I would differ with Mr. Fein only in saying it is not 

almost irresponsible, it is irresponsible to pass new legislation 

without knowing exactly what went on. And without getting a commitment from the administration that, if you revise FISA, they will 

obey the new FISA, when they didn’t obey the old FISA. 

Senator SCHUMER. Mr. Levy? 

Mr. LEVY. One purpose of these hearings was to determine 

whether or not what the administration is engaged in is legal. And 

I don’t believe that this Committee needs much more in the way 

of inputs to make that legal assessment. I do believe that the remedial question is quite separate; that is, what should we be doing 

about that? And that question, of course, depends heavily on operational details. It is impossible to craft a remedy if the administration believes that the existing procedures are too cumbersome or 

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tial, number one and number two whether it is effective. We don’t 

know the answer to either of those questions. 

Senator SCHUMER. Does anyone dissent from the general view 

here? 

Mr. KMIEC. I dissent. I think the administration has been very 

forthcoming. I think the Attorney General has tried his best to outline the legal rationale, which I think is a plausible one. But I 

think, with all due respect, Senator, the purpose of this Committee 

is not recrimination. It is for the very purpose that Justice Jackson 

outlined in Youngstown, and that is to have this Congress and the 

President work together to solve the basic problem. And the basic 

problem is we are fighting a novel war where we have specific 

needs of surveillance and intelligence that both require us to preserve the civil liberties of individual citizens in ways that are differently challenged because of the nature of that war. 

So what we need is a programmatic way to have a detached set 

of eyes check the responsibility of the Executive. 

Senator SCHUMER. But don’t you think, sir, that having people— 

Chairman SPECTER. Senator Schumer, your time has expired. As 

I said when we began the hearings at 9:30 and before we started 

on the first round, the PATRIOT Act is on the floor. Some of us 

are going to have to be there before noon and we had targeted a 

conclusion at about 11:30. Finish your last question, but we are 

going to have to move on. 

Senator SCHUMER. OK, I was just saying to Professor Kmiec, 

doesn’t it make eminent sense to do exactly what you are saying, 

that it would help to find some people who not only have a great 

deal of legal knowledge but who were on the ground and the time 

and realized the subtleties and difficulties that I am very well 

aware of. I mean, I hardly have an absolutist position on this. And 

to not have someone like Jim Comey, the premier terrorist prosecutor, around, who knows both the Constitution and the difficulty 

in prosecuting people in these difficult times, as you say, deprives 

us of the kind of key input that we need. You don’t agree with that 

view? 

Mr. KMIEC. Well, I think it will unnecessarily provoke a dispute 

over executive privilege and deliberative process, and all of that 

ends up being kind of a principled dog fight between this body and 

the Executive. That is not helpful, in my judgment, to actually solving the immediate problem, and that is how to get a proper authorization, a specific authorization for the authority that the President 

believes he has as a constitutional matter. 

Chairman SPECTER. We are going to have to go now to Senator 

Hatch and then Senator Kennedy. 

Senator Hatch. 

Senator HATCH. I just want to say this is a particularly profound 

panel of experts. I really have enjoyed every one of you. I have listened very carefully to every one of your testimonies here today. 

I do think, Senator Schumer, you would have a little bit of—I 

thought Bob Levy’s testimony was particularly important, as I did 

all of them, but I think you would find a little difficulty not considering New York as a battleground in this unusual war on terror 

and that only Afghanistan or Iraq constitute that. I am not sure 

that is what you said, but that is the way I— 

457

Senator SCHUMER. No, it is not. 

Senator HATCH. I didn’t think so. I hope not. I wanted to make 

that clear. 

But let me just clarify your position, some of you who care to respond, your position on a few points based on your understanding 

of the law. If the Government obtains information through the NSA 

program, do you believe, as a matter of law, that this information 

can be used in support of applications for a court order under the 

FISA statute? 

Mr. FEIN. I would say no. 

Mr. LEVY. I would agree. To the extent that the NSA program 

is illegal, as I believe it is, then any information— 

Senator HATCH. Well, do you believe that any fruit of the poisonous tree arguments are valid in this matter? 

Mr. KMIEC. I don’t think there is an easy answer to that question, Senator. I think the answer turns—to the extent that there 

is derivative information that is used for purposes of bringing 

criminal charges against individuals—on the nature of those criminal charges. Are we talking about sabotage? Are we talking about 

materially advancing terrorism? Or are we talking about some 

independent drug crime or something else? I think the constitutional question is different in each case and I think the court would 

practically examine those issues— 

Senator HATCH. Let me go a little bit further here. Professor 

Koh, I didn’t mean to cut you— 

Mr. KOH. Senator, the very question you ask shows the way in 

which the program has cast doubt on the credibility of evidence 

and the usability of evidence. That is exactly what FISA was supposed to do, to create a process where evidence obtained through 

FISA warrants could be used. And now this extra-legal program is 

not only putting into jeopardy that evidence, but also the warrants 

that is based on that evidence, and bringing the entire FISA 

scheme under a cloud. 

Senator HATCH. Well, I don’t agree with that. Let me ask this—

did you have a comment? 

Mr. WOOLSEY. Just a quick point, Senator Hatch. I think the proposal that I mentioned by Judge Posner has some real merit here, 

because one thing it does—by having a statutory declaration of a 

national emergency and a Presidential declaration that this particular type of surveillance is necessary—is narrowly define the 

purpose. It narrowly defines national security; for example, with 

respect to terrorism it does not involve ecoterrorism and the like. 

And so one has the surveillance focused on precisely what the administration says it is concerned about, which is violent terrorists 

abroad communicating with people in the United States. 

I think under those circumstances one still should not be able to 

use the fruits of this surveillance in a criminal prosecution. But 

there would be less conflict under Judge Posner’s approach than 

under some of the others. 

Senator HATCH. I don’t think that—I don’t believe that any of 

you believe that information obtained under the NSA program may 

be legally used in support of an application for a Title 18 warrant, 

where you believe that one of the parties has been determined to 

be an al Qaeda affiliate but is—or has not been determined to be 

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an al Qaeda affiliate but is just a common criminal, such as a drug 

dealer. 

Let me ask this question. Can information obtained from the 

NSA program, but found not to be connected to al Qaeda activities 

or associates, be used by agencies like the IRS or DHS for non-terrorist proceedings such as tax evasion proceedings or immigration 

proceedings? Just yes or no. 

Mr. LEVY. Not under Judge Posner’s proposal and not under 

mine. 

Senator HATCH. I agree. The administration says in its 42-page 

legal opinion that earlier presidents have used surveillance programs like the NAS program in other war-time situations. Do any 

of you believe that the facts support this assertion, and do you believe that the presence of the current FISA statutes affects this argument? 

Mr. FEIN. Well, I think that the earlier claims were without 

FISA, so you didn’t have Congress speaking itself directly to the 

matter. The Supreme Court in U.S. v. Calandra said that wiretapping taken in violation of Title III can’t be used in grand jury 

investigations. I don’t see how there would be any deterrent, how 

there would be any teeth to the Fourth Amendment if you said the 

electronic surveillance, even if it is illegal, can be utilized and that 

there is no remedy for individual whose conversations have been illegally seized. There must be some remedy or else the right becomes totally hollow. That is the reason why the Supreme Court 

decided it would no longer tolerate Wolf v. Colorado and provided 

a remedy in Mapp v. Ohio and then the Bivens case. 

Senator HATCH. Senator Leahy is going to allow me to ask one 

more question, and I really appreciate it because it goes directly to 

his statute. And that is this: In preparation for this hearing, Senator Specter asked you all to review his draft bill. Now, the Specter 

bill contains a probable cause standard. Senator DeWine has suggested that a reasonable suspicion standard might be more appropriate for this type of program because, at this stage of an investigation, there may be relatively little known about the persons involved. And I would like to know what you think the appropriate 

standard should be. 

And let me tell you my problem. My problem is that I believe 

that you must have a probable cause standard to appear before 

FISA. But this type of surveillance is reasonable, but I don’t know 

that it rises to the dignity of a probable cause standard. And unlike 

Dean Koh, I really believe that this is a very, very big problem 

here if we are going to really protect the country. I would just like 

to know which standard do you think should be applicable, because 

I don’t think you could do most of this work on a strictly probable 

cause basis. And I suggest that an awful lot of reasonable cause 

problems are never brought to FISA because that is all they can 

raise is a reasonable cause. And in spite of the almost 2000 FISA 

requests last year, we are talking about maybe many multiples of 

that. 

So I would like to just have your view on this. 

Mr. WOOLSEY. Senator Hatch, I think that is precisely the problem. If you try to fit this electronic battlefield mapping operation 

into the FISA warrant process and you lower the warrant requireVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00466 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
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ment to one of only, say, ‘‘reasonable suspicion’’, or maybe even 

lower—‘‘might yield useful information’’—then you rapidly approach the point where the warrant process ceases to be a filter 

and judges have no basis for refusing to grant applications. 

Also, much of this is not about individuals who may be agents. 

Suppose al Qaeda calls someone in the United States and it is a 

false flag operation and they pretend to be Hezbollah, to get him 

to do something. Is that probable cause to believe he is an agent 

of al Qaeda? I don’t think so. I don’t know. And you might not even 

know who is at the other end on the cell phone. None of this concern and need really fits into warrants and individual case-by-case 

determination about single individuals. I think that is the essence 

of the problem. 

Mr. KMIEC. I also think that, in fairness to Senator Specter’s 

draft, his definition of probable cause is different than probable 

cause of a specific individual or a particular crime or a crime that 

is being committed. The definition is probable cause to believe that 

the program will intercept communications of a foreign power or a 

foreign agent. And so he is really creating a programmatic form of 

approval before a neutral magistrate. 

Now, the benefit of the program warrant is the neutral magistrate and the demonstration of those facts that lead to that belief. 

I think it is important for us not to confuse old FISA with this reform of the FISA program that is being proposed. 

Mr. KOH. Senator, I think the question is probable cause of what. 

It is not saying in this bill probable cause that somebody on the 

conversation is from al Qaeda, it is saying probable cause to believe 

that the program will accept communications from persons who 

had communications with agents of foreign powers. I would say everybody in this room has had communications with a foreign government official when you get a visa. And if the program will accept the communications of everyone in this room, then it is not a 

program in which the probable cause standard is limiting the surveillance. 

Chairman SPECTER. Let us come back to Senator Hatch’s question after Senator Kennedy is given a chance to answer. Playing 

referee on time is always hard here. Senator Feingold was almost 

5 minutes over. Senator Hatch has an important question. Senator 

Kennedy has been waiting. Senator Hatch has been here all morning. You know, Senator Kennedy— 

Senator KENNEDY. If he wants to—if Orrin wants to finish up— 

Senator HATCH. No, I am happy. 

Chairman SPECTER. The Chair recognizes Senator Kennedy. 

Senator KENNEDY. Thank you. 

Thank you very much, Mr. Chairman. Thank all of you for being 

here. 

I remember a different time, 1976, President Ford, Attorney General Levi, understanding in the wake of all the Watergate and all 

the challenges that we had at that time we had to do something 

that was going to be in our national security interest. That is what 

we are talking about today, what is in our national security interest. And I remember myself and other members of our Judiciary 

Committee on four different occasions going down to the Justice 

Department with Attorney General Levi to work out that language, 

460

which was the FISA language. And finally, at the final roll call 

that was called in 1978, there was one vote in the U.S. Senate 

against it. 

And we took into consideration the dangers, the national security 

issues of secrecy at that time in the language which was included. 

And the members of this Committee understood it, the administration understood it. And with the intervention of President Ford, 

this was passed, bipartisan, in our national security interest. 

Now we have a wild-haired scheme which is going to open up, 

I think, the NSA individuals to suit, open up the telephone companies to suit, and is going to taint evidence as we are even seeing 

at the Fourth Circuit at the present time, where evidence has been 

introduced and there has been a delay in terms of sentencing and 

remanding of cases because whether that evidence is going to be 

tainted. And we will have al Qaeda out there, individuals that 

ought to be treated harshly and possibly creating the loopholes 

where they will escape. 

I think what is happening now is not in the national security interest. What we are looking for here in this Committee is something that would be in the national security interest and worked 

out in a bipartisan way. We asked the administration, if we have 

seen the example that has been done in a previous time, why not 

do that at this particular time. The administration doesn’t care any 

more about national security than any individual members of this 

Committee or any of the members on this panel. And that, I think, 

is really the dilemma that we are facing at this time. 

I would ask Professor Koh—and I realize we are all short on 

time—and there is an additional question I want to ask about the 

Fourth Circuit and if members are familiar with what is happening 

there, the two cases there. Maybe there are members of the panel 

that understand it. 

But in your understanding of the history of the FISA—other 

members do as well—do you really question that this Committee 

and an administration couldn’t get together and try and pass legislation that would be in the national security interest and meet the 

particular sort of constitutional issues and challenges, and also respect the Executive for their interests? 

Mr. KOH. I agree that this is the moment to have that kind of 

discussion, with the factual background of knowing exactly what 

warrantless surveillance programs have been going on for the last 

4 years. I think the public has a right to know and the Committee 

has a right to know. 

I recall this discussion about trained NSA professionals. You will 

remember, Senator, that it was because of the work of trained NSA 

professionals who did all kinds of domestic wiretapping that we 

had a FISA in the first place. We weren’t going to trust these professionals, we were going to trust an independent FISA court. 

Senator KENNEDY. Professor Fein? 

Mr. FEIN. I think that there is a misunderstanding that ‘‘checks 

and balances’’ means ‘‘weak government.’’ And I want to call the 

Committee’s attention to something that Justice Robert Jackson 

wrote. He was Attorney General under Roosevelt who was a strong 

proponent of Executive power. He was also the Nuremberg prosecutor. And he wrote, in West Virginia State Board of Education v. 

461

Barnett, assurance that rights are secure tends to diminish fear 

and jealousy of strong government and by making us feel safe to 

live under it makes for its better support. So that limits on power 

does not mean anemic government, it means stronger government. 

Mr. GORMLEY. Senator Kennedy, I do think that it is possible for 

Congress and the executive branch to get together to do this. This 

can’t be a partisan issue. It really can’t. And I think Senator Specter’s bill is a good step toward that. I think it does have to be 

worked out. But you have to include the courts, as I said earlier. 

You cannot box them out. That is not our system of government. 

No one is saying that the President can’t get the materials, the 

tools he needs to fight the war on terror. But certain procedures 

must be followed consistent with our Constitution. I think that is 

all that everyone is saying. 

Senator KENNEDY. Just finally, and I will wind up with this, Mr. 

Chairman, on the Fourth Circuit, is Professor Koh or Professor 

Fein familiar with the two cases there that are at this time being 

reviewed? 

Mr. FEIN. I am familiar with one case relating to sentencing of 

someone who pled guilty to an offense, and the court has now 

issued an order demanding that the administration respond to the 

demand to disclose whether the NSA surveillance was utilized in 

the investigation of the individual. And the administration has not 

yet responded. 

Senator KENNEDY. Professor Koh, just on the— 

Mr. KOH. Yes, the other is the Padilla case, which was up at the 

Supreme Court, went back down. But it was before the District of 

South Carolina and then back up in the Fourth Circuit. 

I think the main point that you are making, Senator, which I 

could not agree with more is that every defendant’s lawyer for a 

terrorist defendant has a new argument until this matter is clarified: exactly what evidence was legally obtained and what evidence 

was illegally obtained. 

Chairman SPECTER. Thank you, Senator Kennedy. 

Senator Hatch, do you want to complete the round robin on the 

question you had posed? 

Senator HATCH. I think Senator Leahy is— 

Senator LEAHY. If you want to go ahead— 

Senator HATCH. No, no, that is fine. Unless somebody would care 

to— 

Mr. GORMLEY. Yes, Senator Hatch, I just wanted to say that I 

do think that this can be done within the court system. But I do 

think you must have particularity and you must have some of the 

procedures that are already set out in FISA and this draft legislation. 

But it is a question, as Dean Koh said, of ‘‘probable cause of 

what? ’’ If you have probable cause that a person on one end of a 

communication is a terrorist, for instance, I don’t think there is 

anything wrong with allowing what amounts to, based on reasonable suspicion, a stop-and-frisk of American citizens who may be in 

communication with them for a short period of time to see if you 

have anything there. And I think that courts can monitor that. 

So I think there is a way to do this, to deal with new technology 

but still to include the courts. 

462

Mr. FEIN. Mr. Senator, that particular proposal of yours was 

raised by Senator DeWine in 2002. The Department of Justice testified and said no, it wasn’t needed, the probable cause standard 

was good enough, and indeed lowering to that level would create 

constitutional qualms in the Department of Justice. That is the 

same Department that addressed this Committee on February 6th. 

Chairman SPECTER. Thank you, Senator Hatch. 

Senator Leahy. 

Senator LEAHY. Thank you. 

Let me just ask this question. You can answer it basically yes or 

no, so I will ask it of everybody. It has been reported that the 

President’s domestic spying program was suspended in March 

2004, then reauthorized with somewhat stricter standards after 

some in the administration raised doubts as to its legality. Attorney General Gonzales would not address that. 

So let me ask you this: Do any of you know what the scope and 

internal rules of the President’s program were between October 

2001, when it was first authorized, and March 2004, when it was 

reportedly suspended and overhauled? 

Mr. WOOLSEY. No. 

Mr. KOH. No. 

Mr. LEVY. No. 

Mr. KMIEC. No. 

Mr. FEIN. No. 

Mr. TURNER. No. 

Mr. GORMLEY. No. 

Senator LEAHY. So you can’t really give an answer as to what the 

legality of the program was during those two and a half years, not 

knowing the full details of the program. 

Mr. KOH. Well, we know that the law in 1978 and now says that 

the way to do it is exclusively through FISA, and it wasn’t done 

through FISA. 

Mr. KMIEC. Of course, FISA also provides that it can be authorized by other statutes and it also had a specific reservation for time 

of war. 

Senator LEAHY. But if we don’t know what is going on, we don’t 

know whether it was authorized by any other statute. 

Mr. KMIEC. Without a doubt, the facts are important. 

Senator LEAHY. And of course, the war on terrorists, we can assume throughout our lifetime we will be facing war on terrorists, 

and to what extent do we have extraordinary means throughout 

our lifetime. Now, we are not told how many Americans are affected by the program. In fact, we are not told whether it has produced any useful information at all. So it is hard to see how it satisfies the Fourth Amendment. 

If the program has provided valuable information—and so far, 

nobody in the administration says it has—but if it has, then the 

analysis may be different. Mr. Fein, what do you think? 

Mr. FEIN. What you have raised is the dilemma that this Committee confronts. Unless you know what is going on, who is being 

targeted, and what the results are, you can’t possibly make a 

Fourth Amendment evaluation because the Supreme Court has 

stated that the effectiveness certainly is an element of Fourth 

Amendment. 

463

Take, for example, 287,000 homes in Vermont, the latest census. 

If you decided to break and enter every single one of them on the 

understanding that, as a probability, you would uncover at least a 

handful of cases where you discover evidence of crime, then you 

would destroy the Fourth Amendment. Because you have to have 

something more than just a probable statistical likelihood of getting evidence to satisfy the Fourth Amendment. It has to rise above 

that minimal threshold. 

And the whole difficulty of addressing, for example, Senator 

Hatch’s idea of a reasonable suspicion test is we don’t even know 

what problem we are addressing, because the administration has 

concealed it from this Committee, from the American people. 

That is why I continue to suggest that the way responsibly to go 

forward is to insist that the administration come forward with the 

intelligence information that we have just asked about, or they will 

have their program shut down by the power of the purse within 30 

days. The burden of persuasion should be on the President to explain why the Fourth Amendment needs to be compromised, not on 

this Committee. 

Senator LEAHY. You know, it is funny, we got into, somewhat, 

these areas of where can we go in our laws, what could be set aside 

for facing terrorists. And it worries me, coming from a State, for 

example, where we strongly respect our privacy. And I remember 

my days as a prosecutor, when I had to make sure I got warrants. 

And I asked Professor Koh, when he came here testifying about 

Attorney General Gonzales, and I asked—Dean Koh, you probably 

remember this—I asked you whether the President could override 

our laws on torture and immunize those who commit torture under 

his order. Your answer was pretty succinct. You said no. 

So let me ask you a similar question. Can the President override 

our laws on domestic wiretapping and immunize those who engage 

in warrantless wiretapping under his order? 

Mr. KOH. I believe he cannot. And in page 2 of my testimony, I 

cite U.S. v. Smith, a case decided 200 years ago, by Justice 

Paterson. It says the President of the United States cannot control 

the statute nor dispense with its execution, and still less can he authorize a person to do what the law forbids. 

Senator LEAHY. We sometimes get interesting things when this 

happens. We find that the administration has not complied with 

the mandatory 45-day review provision of the Exon-Florio law with 

regard to the Dubai Ports Commission. Now we see what happens. 

I come from a State where they follow rules, and I think—well, it 

is up to the Chairman. I saw Professor Turner’s hand go up. 

Chairman SPECTER. You may proceed to answer the question, 

Professor Turner, then we are going to have to wrap up. 

Mr. TURNER. I think it is very important. I started off with 

Marbury v. Madison, the idea that a statute that violates the Constitution is not law, and the President has discretion that is not intended to be checked. We don’t have time to draw all those lines, 

but remember, Griffin Bell said that FISA could not take away the 

President’s power in this area. The appeals court you set up under 

FISA has said the President has independent power to do this, and 

FISA could not take that away. 

464

The issue here is a struggle between the Fourth Amendment and 

the President’s constitutional powers, in which FISA is a relatively 

minor player. It is very hard in 5 minutes or 30 seconds to draw 

the line on those powers, but to me that is the issue you have to 

look at. Since the Jay Treaty debates, John Marshall was in the 

Congress and said the President is the final determinator of what 

documents in his branch he will share with Congress. The Supreme 

Court in Curtis Wright said the same thing. We have gotten away 

from that. And I think it is very important that we remember that 

the Constitution is the supreme law, and if Congress passes laws 

that violate the Constitution, it is Congress that is the law-breaker. 

Chairman SPECTER. Senator, what he says—Professor Koh wants 

to make a comment, and Mr. Levy, and that is going to be it. Will 

you please be brief, Dean Koh? 

Mr. KOH. If the President thinks that a law is unconstitutional, 

he can veto it, and Congress can override, and then they can test 

it in court, as was done with McCain-Feingold, Gramm-Rudman, 

and a host of others. As we have recently seen with the McCain 

Amendment to the authorization act, the President can do a signing statement saying I think parts of it have to be administered in 

a certain way. One thing he can’t do is pretend like he is complying 

with it and for 4 years be operating an entirely different system 

that is not under statutory examination or involving judicial review. 

Chairman SPECTER. Mr. Levy, briefly. 

Mr. LEVY. Just to be clear about what FISA did: FISA expanded, 

it amplified the President’s authority. So the holding in the case 

that was just cited, the Sealed Case holding, was not that FISA encroached upon his authority, but rather that FISA, permissibly, expanded the President’s authority without violating the Fourth 

Amendment. The restrictions in FISA simply explain the President’s new and expanded authority, as authorized under the FISA 

statute. 

Chairman SPECTER. Thank you, all. 

Director Woolsey, you have a brief comment? 

Mr. WOOLSEY. Mr. Chairman, just one point. The intelligence 

provided about terrorists overseas in the course of this could be as 

important to us as the Enigma code-breaking was in World War II, 

and our breaking of the Japanese codes. Those were instrumental 

with respect to D-Day, Midway, and the rest. One cannot in public 

inform, as Mr. Fein says, who did what from the administration. 

What was the method? What the target was? Or, as Mr. Koh said, 

what kind of surveillance has been going on for the last 4 years? 

The public has the right to know. One cannot do that without informing al Qaeda. It is absolutely impossible. 

So I have no objection, as my testimony said, to a targeted, specific, in-house congressional examination of how to set up a check 

and balance here. But we cannot just sit here and talk about how 

everything needs to be public. I am sorry, but my background rather influences me on this particular matter. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Well, thank you all very much. This has 

been a very lively hearing, especially at the end. 

465

We, as I said earlier, have floor business which a number of us 

have to attend to. And Senators are very busy and Senators come 

and go. You witnesses don’t have to sit still, you are not under subpoena, you can leave if you choose. I think it has been a very informative hearing. And we will continue to work on the program 

and on the issues in the legislation. 

It is certainly true that we cannot approve a program that we 

don’t understand and don’t know about. There is no doubt about 

that. I agree that it would be irresponsible for us to do that, and 

we are not about to approve a program we don’t understand. But 

we do have to have respect for the President and for the emergency 

situation, for the war we are in. And when he makes an argument 

on constitutional grounds, we have to give him some slack. If he 

has inherent Article II powers, that tops a statute. 

I do not believe we have to get agreement from him. Dean Koh 

suggests that he is not going to observe a new statute since, as 

Dean Koh argues, he hasn’t observed FISA. I do not believe that 

the resolution for the authorization for the use of force changes 

FISA. I do not think that is so. And I think FISA requires a warrant. But it is a different issue as to constitutional powers which 

may trump FISA. And we will struggle to try to find out what the 

program is. 

When Senator Schumer says he would like to have Former Attorney General Ashcroft and Former Deputy Attorney General Comey 

in, so would I. And I called both of them and I talked to them. We 

had an agreement from the Attorney General in his testimony on 

February 6th that, taking one step at a time, he would not object 

to Attorney General Ashcroft’s testimony and that others muddied 

the waters in terms of what we accomplished there. I wrote to the 

Attorney General telling him what Mr. Ashcroft and Mr. Comey 

had said and asking for administration authorization for them to 

testify. 

When it comes to the issue of legal interpretation, neither Comey 

nor Ashcroft can tell us a whole lot more than Attorney General 

Gonzales did; all are interpreting the law. It has been reported that 

there was some activity at a hospital. We would like to know—I 

would like to know—what happened at the hospital with Attorney 

General Ashcroft and Deputy Attorney General Comey. But does 

that intrude on executive privilege, on what the lawyers are talking 

about if they had disagreements? 

Well, the issue is not closed. We are going to continue to work 

on it. 

But meanwhile, the Majority Leader has called a meeting this 

afternoon—it is at 5:30, so I think I will be able to make it; I think 

this hearing will be over by then—where we are going to try to 

structure the legislation. We face very, very important issues. And 

I am sympathetic to the difficulty of telling Congress very much. 

I am not sympathetic to the administration leaks. We have a knotty problem here with very serious consequences on protecting 

America and very serious consequences on protecting civil rights, 

and you seven men have added substantially to our progress. You 

may not think so, but you have. 

Senator LEAHY. Mr. Chairman, may I just say one word in there? 

Chairman SPECTER. One word? Yes, Patrick, one word. 

466

[Laughter.] 

Senator LEAHY. You are absolutely right if we go into questions 

of executive privilege. But some assistant in the Attorney General’s 

office is not the one who can claim executive privilege. The President is the only one that could. Mr. Fein raises a very good point—

other than the fact that he completely snowed me; I could not 

name the number of households in Vermont. 

Chairman SPECTER. Well, Senator Leahy— 

Senator LEAHY. But Mr. Chairman, I think you are to be applauded. And that will be my final word. You are to be applauded 

to have these hearings, but— 

Chairman SPECTER. If you are going to say that, you can go on. 

[Laughter.] 

Senator LEAHY. But we have a way to go. We have a way to go. 

And if they want to claim executive privilege, make them actually 

do it. 

Chairman SPECTER. Well, Senator Leahy and I have disagreed on 

very little as we have worked through the Committee for the better 

part of 15 months, and we will continue to work on this issue. It 

is a big one and we are going to devote our full energies to it. 

That does conclude the hearing. 

[Whereupon, at 12 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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(747)

NSA III: WARTIME EXECUTIVE POWERS AND 

THE FISA COURT 

TUESDAY, MARCH 28, 2006 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Hatch, DeWine, Graham, Leahy, Kennedy, Biden, Feinstein, Feingold and Durbin. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Ladies and gentlemen, it is 9:30 and the Judiciary Committee will now proceed with this hearing, captioned, 

Wartime Executive Powers of the President of the United States 

and the Foreign Intelligence Surveillance Court. 

We will be hearing today from two distinguished panels, the first 

consisting of judges who have had extensive experience with the 

Foreign Intelligence Surveillance Act, or who have been on the Foreign Intelligence Surveillance Court, and the fifth a key participant 

in the initial interpretation of the Foreign Intelligence Surveillance 

Act. 

This is the third hearing by the Judiciary Committee on this subject. Earlier this month we heard from the Attorney General, and 

a second hearing, a panel of experts, and the central thrust of this 

hearing is to determine what judicial review, if any, should be accorded the electronic surveillance program, which the President of 

the United States has disclosed. 

There is a contention by the administration that the Foreign Intelligence Surveillance Act was amended by the resolution authorizing the use of force on September 14th, 2001. After extensive 

hearings, it is widely viewed that the Foreign Intelligence Surveillance Act has been violated. That is my view, because the Act provides that the exclusive remedy for electronic surveillance in the 

United States must be preceded by a warrant of authorization by 

the FISA Court or with an exception, 72 hours afterward, on an 

emergency situation. 

There is a second issue as to whether the President has inherent 

authority as Commander in Chief, to conduct the electronic surveillance. That, as I see it, would require knowing what the program 

is. It may well be that the program is within the President’s inherent authority, but it seems to me that that determination has to 

748

be made in accordance with the tradition in America, by a court, 

by a judicial review. 

Our hearing today will take up the legislation which I have introduced, which essentially provides that the administration will 

have to submit the program to the Foreign Intelligence Surveillance Court, and the Court will make a determination as to constitutionality. The President says he is unwilling to share the information with the Intelligence Committees, as mandated by the National Security Act of 1947 because Congress leaks. That certainly 

is true, but so does the White House. But the FISA Court has an 

unblemished record of integrity and ability to maintain a secret, 

and they have the expertise to do the job. 

There has been recently created a Subcommittee on the Intelligence Committee of the U.S. Senate, none yet in the House. There 

is a controversy with some saying that they will not have a Subcommittee because the statute says that the review should be by 

the full committee, so we will wait to see what happens. 

There has been legislation introduced by Senator DeWine, which 

provides that the administration may conduct electronic surveillance without restraint for 45 days, and then at the end of 45 days, 

if there is sufficient evidence to go the FISA Court, they go there, 

but if there is not, then they go to the subcommittee of the Intelligence Committee. In my view, the subcommittee of the Intelligence Committee is no substitute for judicial review. 

These are, obviously, very, very weighty considerations. There is 

no doubt about the tremendous threat posed by al Qaeda to the security of the United States. That is a given, and recognized everywhere in the wake of the calamity on September 11, 2001, and we 

do need to be secure, and we want the President to have the authority he needs. But this is a shared responsibility, as the Supreme Court has made clear. The President has extensive executive 

authority under Article II, but the Congress has extensive authority in the premises under Article I. And the arbiter under our system of laws are the courts, ultimately the Supreme Court of the 

United States. 

We have a very unusual panel here today, judges who have experience on the FISA Court, who recognize the importance of security 

and the importance of law enforcement, but also recognize the importance of civil liberties, and the work which they have done on 

that court. 

Let me yield at this point to the distinguished ranking member, 

Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. I thank you for holding the hearing. We desperately need some answers to the basic 

questions about the President’s decision to wiretap Americans on 

American soil without court approval, without attempting to comply with the Foreign Intelligence Surveillance Act. 

More than 3 months and two Committee hearings after the 

President was forced to acknowledge the program’s existence, this 

Committee remains in the dark with regards to nearly every aspect 

749

of the program. As Senator Specter succinctly put it recently, we 

are still flying blind on a great deal of this. 

We had our first hearing on February 6th with Attorney General 

Gonzales, and his testimony was more obstructionist than enlightening. He flatly refused to discuss anything beyond those facts the 

President has publicly confirmed, nothing more. In other words, he 

would not tell us anything more than what we just read in the papers, and the stonewalling has gotten worse since then. 

Three weeks later, the Attorney General wrote an extraordinary 

letter to Chairman Specter, seeking to alter his live, televised testimony; meaning to make it even less responsive. That letter raised 

serious additional concerns about the scope of the administration’s 

domestic spying activities, his shifting legal rationalizations, and of 

course, the Attorney General’s own credibility. His letter admits 

that the Department’s legal analysis has evolved over time. In 

other words, they had one reason when they started, changed the 

reason when it became public, and again, refused to answer the 

basic factual question of when the administration came out with its 

theory that the congressional resolution authorizing military force 

against al Qaeda and the attempt to reach Osama bin Laden, a 

failed attempt to reach him in Afghanistan, authorized warrantless 

domestic wiretapping of Americans. 

I can only infer that their theory was concocted long after they 

decided to ignore the law, and in my 32 years in the Senate, I have 

never seen anything like this ever. 

To fulfill our legislative function, we need to know what other invasions into American rights and privacy the administration believes were authorized and why, but they continue to stonewall. 

We received a response late last Friday to the priority questions 

we sent the Attorney General following his appearance on February 6. We got a response. We did not get any answers, but to virtually every question we got a response that was some version of, 

‘‘We cannot answer,’’ ‘‘We are not able to answer,’’ ‘‘We are not in 

a position to answer,’’ ‘‘It would be inappropriate for us to answer.’’ 

In other words, take a long walk off a short pier. 

We had a second hearing on this program on February 28th. 

That was an academic panel with scholars. All of this is good discussion, but it is not oversight because they have no knowledge 

what is in the program. 

And our hearing today is somewhat the same. Our witnesses are 

experts in the Foreign Intelligence Surveillance Act, probably the 

best experts in the country, but they have no special knowledge of 

the President’s program to wiretap Americans outside the Act. 

They cannot tell us any more than the very little we already know 

about what this administration has been doing under its theory of 

limitless Executive power. 

So we have an impasse. We have an administration that says we 

have the power to do whatever we want to do, and actually the 

Congress and the courts are irrelevant. That, of course, is nothing 

new from an obsessively secretive administration. It has classified 

historical documents, documents that have been out in the public 

for years, are suddenly being yanked out of the Archives and 

marked ‘‘classified.’’ They have conducted energy policy and attempted to outsource port security behind closed doors. It routinely 

750

blocked investigations and audits. They repeatedly harass whistleblowers. They have dismissively refused to cooperate with congressional oversight for more than 5 years. They have a paranoid aversion to openness and accountability. They tell us, we will not tell 

you enough to do meaningful oversight of what we are doing, just 

trust us. 

How do we trust an administration when every day there is more 

evidence of its incompetence, including yesterday’s revelation that 

our borders, even though they spent billions of dollars extra, our 

borders are not even secure from the simplest scheme to smuggle 

in a dirty bomb? How do we move forward to protect the security 

and rights and freedoms of the American people? 

I think first, if the rule of law means anything, we have to insist 

on real oversight and real accountability. The Chairman said it was 

a struggle to try to find out what the program is. We do not need 

to struggle. We have the constitutional right to compel information 

from this administration by subpoena. 

During the last 2 years of the Clinton administration, this Committee approved the issuance of more than a dozen subpoenas to 

the Department of Justice and former DOJ officials, both for documents, including legal memoranda, and for live testimony. So the 

question is whether we can do the same thing when it is a Republican administration. 

Second, if there is a real need for legislation to ease existing restrictions under FISA, we should, of course, pass it, as we have 

done before, on a bipartisan basis, and we have done this with numerous powers requested by the administration over the past 5 

years, but we should not rush into that until we know it is happening. 

And finally, in discussing legislation, we should collectively draw 

a line. No new powers should be given to this administration until 

we secure a firm assurance they will faithfully execute and abide 

by the laws as written. We have seen them say they will not do 

that in the PATRIOT Act, even though we passed it. They will not 

do it under FISA even though we passed it. And as George Will 

pointed out, all those debates have been a meaningless charade if 

the administration’s monarchical assertions of essentially unfettered Presidential power are taken seriously. 

So we are not here to play charades. We are here to legislate the 

law of the land, and I think at the very least, before we legislate, 

we ought to know what is going on. Nobody in this room really 

does. 

Thank you. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Before proceeding to the first witness, I want to read the first 

paragraph of a letter from Judge James Robertson of the United 

States District Court for the District of Columbia, who had been a 

member of the FISA Court, and shortly after the surveillance program was announced, Judge Robertson resigned from the FISA 

Court, so to say that he resigned because of the surveillance program. That has not been confirmed by Judge Robertson, but he had 

751

been a member of the Court and he did resign, and that time sequence is a matter of record. 

Without objection, I will put his entire letter to me, dated March 

23rd, 2006 in the record, but I want to read the first paragraph 

where he endorses the legislation which I have proposed to give the 

FISA Court authority to review the electronic surveillance program. Judge Robertson writes as follows: ‘‘Thank you for soliciting 

my views on your proposal, which I support, to give approval authority over the administration’s electronic surveillance program to 

the Foreign Intelligence Surveillance Court. Seeking judicial approval for Government activities that implicate constitutional guarantees is, of course, the American way, but prudence in the handling of sensitive classified material suggests that only a limited 

number of judges should have the job. The Foreign Intelligence 

Surveillance Court is best situated to review the surveillance program. The judges are independent, appropriately cleared, experienced in intelligence matters, and have a perfect security record.’’ 

We turn now to our first witness, who is Magistrate Judge Allan 

Kornblum. The five judges met with me briefly this morning, and 

nominated and elected unanimously, Judge Kornblum to be the 

lead witness, and that has been done because of his very, very extensive experience with the FISA Court. The other judges will appear in alphabetical order. 

Judge Kornblum has an extraordinary academic record, a bachelor’s degree from Michigan State University, a master’s in public 

affairs from the Princeton University Woodrow Wilson School, a 

Ph.D. from Princeton in 1973. Then he served in the Department 

of Justice, and from 1979 to 1998, served as Deputy Counsel for Intelligence Operations at the Office of Intelligence Policy and Review, and for the 2 years from 1998 to 2000, as Senior Counsel. 

And during that time he supervised the preparation of more than 

10,000 FISA warrant applications, and is, I think, easily the most 

experienced person ever on the issues of the FISA Court. 

It is our custom, Judge Kornblum, to set the clock at 5 o’clock—

5 minutes—we had a long session yesterday. Before you give your 

testimony, it is our practice to swear witnesses. I would ask you 

all to rise. 

Do all of you solemnly swear that the testimony you will give to 

the Judiciary Committee will be the truth, the whole truth and 

nothing but the truth, so help you, God? 

Judge KORNBLUM. I do. 

Judge BAKER. I do. 

Judge BROTMAN. I do. 

Judge KEENAN. I do. 

Judge STAFFORD. I do. 

Chairman SPECTER. May the record show that each of the judges 

has answered in the affirmative. 

Judge Kornblum, you have an extensive background on the FISA 

Court, and you are going to be giving an extensive overview, and 

as I say, it is our custom to set the clock at 5 minutes, but we 

would expect you to take more time as you need it, to give a full 

statement of the background and operation of the FISA Court and 

the analysis of the pending legislation by Senator DeWine and myself. 

752

The floor is yours. 

STATEMENT OF HON. ALLAN KORNBLUM, MAGISTRATE 

JUDGE, U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, GAINESVILLE, FLORIDA 

Judge KORNBLUM. Thank you, Senator. I want to first express to 

you the humility that we feel, the five of us, at having the privilege 

to comment on this extraordinary proposed legislation, and I will 

be forthcoming and direct, but first I need to make two disclaimers. 

You should appreciate that we are not here to testify on behalf of 

the Federal Judiciary or the Judicial Conference, and we are not 

here to testify in any way representing the Foreign Intelligence 

Surveillance Court. 

I will take up three points in my introductory remarks, the importance of the FISA statute, the value of the proposal that you 

have made in the National Security Surveillance Act of 2006, and 

I will also take up the question of Presidential authority to authorize warrantless surveillance of Americans. I would point out that 

I have carefully chosen the word ‘‘Presidential authority’’ because 

I exercise that authority through a number of Attorneys General 

for almost 20 years, and further disclaim that we will not be testifying today with regard to the present program implemented by 

President Bush. The main reason we are not going to discuss that 

program is because we have never been briefed on it, we do not 

know what it involves, and we are not in a position to comment intelligently about it. 

I would also like to begin with our bottom line. Many judicial decisions begin with the court’s holding, and so I would like to tell 

you right up front where we come out on these issues. 

We believe that the Fourth Amendment permits the Congress to 

empower the President to seek judicial warrants targeting networks of communications of terrorists abroad used by persons who 

are engaged in international terrorism or activities in preparation 

therefore, which is the FISA standard, without having specific 

probable cause for all of those in the terrorist network, including 

incidental collection of U.S. person communications, balanced by 

stringent minimization procedures enforced by the FISA Court. 

That is the sort of holding that we have come to, and the position 

which I will argue in the next 10 or 12 minutes. 

I would like to point out that I was very privileged in 1978 to 

be appointed by Attorney General Griffin Bell to handle all of the 

FBI and NSA warrantless surveillance applications, and subsequently, the Foreign Intelligence Surveillance Act. The purpose of 

our testimony today will be to assist the Committee in legislating 

I this field. 

Because of my extensive experience in implementing the FISA 

statute from its inception in 1978, and my close lurking relationships with the FBI and NSA for more than 20 years, I am at a 

unique position to fully inform the Committee. ‘‘Fully inform’’ is the 

statutory provision in FISA, which I carried out for a number of 

years as the Deputy Counsel for Intelligence Operations. My presentation today is not going to be an academic discussion, but actually a discussion of my personal experiences, that is, I am going to 

753

be testifying from the things that I know happened of my own personal knowledge. 

I would like to begin by emphasizing one critical point. The FISA 

statute has been the most successful foreign intelligence program 

the United States has had since the code-breaking operations of 

World War II, the deciphering of the Japanese codes and the German codes. It has allowed the intelligence agencies to conduct intelligence activities beyond what they ever expected, and to succeed 

in many ways which have never been revealed, because in the intelligence business, your success is measured by the fact that these 

things are never disclosed. 

I have also been involved in litigating more than 80 cases involving the FISA statute, and that also came to the Office of Intelligence Policy and Review, OIPR for short, and our office worked 

with the criminal division in preparing the briefs, both for the district courts and the appellate courts, on issues relating to FISA. I 

was very proud of the fact the there were more than 80 district and 

circuit court decisions upholding the constitutionality of the FISA 

statute and its use by the FBI and NSA. In my experience, the success of the FISA statute has been due to the professional efforts of 

hundreds of FBI agents and NSA officials, of numerous Department of Justice lawyers, of six Councils for Intelligence Policy, who 

I served under, and eight Attorneys General, who I served under, 

and not to mention the 30 or 35 Federal District Judges, such as 

those before you today, who have served on the FISA Court. 

I also want to emphasize that the real success of the FISA statute is that it has proven indisputably that intelligence and counterintelligence activities are fully enhanced by the rule of law, and in 

fact, are fully compatible with the rule of law. 

The final introductory point I would make is that the legal protections afforded to FBI agents and NSA personnel, and all of the 

others involved in clandestine collection and counterintelligence activities is under-appreciated by many people, but it is not underappreciated by the men and women working for the FBI and NSA 

and the other intelligence agencies in the field. 

Having said that, I would now like to turn to Senator Specter’s 

bill and discuss specifically some of the provisions and the constitutional framework why we believe that the statement I made a few 

moments ago about surveillance of communications networks, terrorist communications networks, is constitutional. 

As you know, the Fourth Amendment bars unreasonable 

searches and seizures, and the term ‘‘unreasonable’’ is the overarching concept. The substantive requirements of the Fourth 

Amendment are for probable cause and particularity. That standard of reasonableness applies to both substantive provisions, that 

is, what is probable cause and what is sufficient particularity are 

subject to the standard of reasonableness which the Supreme Court 

has indicated is subject to different standards, that is, the standards under the Fourth Amendment for criminal warrants, for arrest warrants, may be different from those necessary for foreign intelligence collection and counterintelligence investigations. 

Just to clarify that, NSA, the National Security Agency, is in the 

foreign intelligence business. They are concerned with the plans, 

capabilities, intentions of foreign governments. The FBI is conVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00761 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
754

cerned with counterintelligence work, with countering the efforts of 

hostile intelligence services and terrorists in the United States and 

abroad. 

The definitions in FISA include a definition of international terrorism, as well as definitions of clandestine intelligence activities 

and terrorist organizations. The critical thing about terrorist organizations is that they bear a remarkable similarity to foreign governments. They have large numbers of people. They operate clandestinely. They have training facilities. They have weapons and 

munitions. And today, they use the worldwide network of sophisticated communications to further their terrorist plans. 

The intelligence activities at issue in the proposed bill from Senator Specter, that is, Surveillance of Terrorist Communications 

Networks, are directed at foreign powers and their agents. They include primarily collection abroad. But since the networks are undetermined when these surveillances begin, it is not unreasonable to 

expect that some of those communications may come to persons in 

the United States. Based on my personal experience, I would think 

that they are relatively small in number. However, they are extremely important because communications to the United States 

from terrorist networks abroad would signal a presence in the 

United States of terrorist cells, as well as a forthcoming attack on 

the United States. 

In the 1972 landmark decision of U.S. v. U.S. District Court, after striking down the executive branch’s warrantless surveillance 

program—by the way, in that case, it was a bombing case in Ann 

Arbor, Michigan of a CIA recruiting station. Nevertheless, the Supreme Court struck it down, but in doing so, the Supreme Court 

sent a signal to the Congress. The Supreme Court said that the 

Fourth Amendment was highly flexible, and that the standard for 

criminal, what they call ordinary crimes, what I would call traditional law enforcement, need not be the same as that for foreign 

intelligence collection, and that different standards for different 

Government purposes are compatible with the Fourth Amendment. 

That decision served as the basis for the FISA statute. 

There was actually a FISA statute from 1976, supported by Attorney General Levi and President Ford, that never passed. It was 

the Act of 1978, championed by Attorney General Griffin Bell and 

President Carter that actually passed, when I became to be involved in these intelligence activities. The reason I got involved is 

I was originally hired in 1975 to write the FBI’s guidelines for domestic security an counterintelligence work. When that was done, 

some staff unit was necessary to apply the guidelines and then to 

handle the warrantless surveillances, and then the FISA surveillances. So I turned out to be the natural repository for that authority. 

Because of the differences between traditional enforcement and 

the intelligence gathering requirements of the Fourth Amendment, 

the standard for intelligence gathering may be substantially different from those of traditional law enforcement. Notice I have 

used the word ‘‘different,’’ not ‘‘lower.’’ In other words, under Rule 

41 of the Federal Rules of Criminal Procedure, if you want an arrest warrant, you must convince a judge there is probable cause to 

believe that somebody has committed a crime, and then you must 

755

particularly describe that person. If you want a search warrant, 

you need probable cause to believe that the place to be searched 

contains the contraband of illegal substances, and you must describe that place with particularity. 

Under the FISA statute, you need probable cause to believe that 

someone is a foreign power or an agent of a foreign power. You 

must also describe with some particularity what you want to seize, 

and in the case of FISA, what you want to seize is foreign intelligence information. 

One of the critical factors of this is that the information, which 

is often foreign intelligence, can often be considered criminal evidence. That has always been a complicating factor in the operation 

of the FISA statute. I think that for the purpose of Senator Specter’s bill, the critical factor here is that, in targeting terrorist communications networks abroad and applying the standard of reasonableness, you have to look at the fact that the terrorists are located 

outside the United States. They are overseas in foreign lands, 

using foreign languages and modern modes of communications to 

carry out their terrorism. Thus, it would be unreasonable to expect 

U.S. intelligence agencies to know in advance the identity or identities of all of the people in these intelligence networks, where they 

are located, what their telephone numbers are, what their e-mail 

addresses are. Indeed, this is the very purpose of the surveillances, 

to identify these people and neutralize their terrorist activities. 

As I mentioned, U.S. persons may be in the network or chain of 

communications of known terrorists, but there will undoubtedly be 

many other people in the communications network who are known 

to the intelligence agencies. Some of them may include U.S. persons; thus, it is perfectly logical and reasonable to expect that, although the program is targeted against terrorist networks abroad, 

communications may come to the United States and are of great 

intelligence interest. 

The situation is not unlike things I have seen as a magistrate 

judge in drug trafficking, where the DEA and State officers are 

able to secure a cell phone used by a drug dealer. They look at the 

records of the cell phone. They see he has talked to other cell 

phones. And the people on those cell phones have talked to other 

people on cell phones. And so the DEA begins to track all of the 

people to identify the people in the network of drug trafficking. But 

until you get the records from the communications companies that 

keep these phone records, until you determine what the pattern of 

operation is, until you determine the identities of these people, it 

can take more than a year. And that was a case I recently saw in 

Gainesville. 

However, we do not have that time in dealing with international 

terrorism. Thus, as phone communications or e-mail communications are moving rapidly in international commerce, the intelligence agencies need to follow those communications without coming back to the FISA Court to specifically identify each individual 

in the network the way the law enforcement officers do in the drugtrafficking networks. And that is where I ended up a few minutes 

ago; that is, the Fourth Amendment permits Congress to empower 

the President to seek judicial warrants targeting networks of communications of terrorists abroad without having specific probable 

756

cause for all of those in the network, including the incidental collection of U.S. person communications. And the critical factor here is 

the reasonableness standard in the Fourth Amendment. 

The Fourth Amendment is not a suicide pact. It is intended to 

be a check on Government authority, and what is required is a reasonable application of that authority. And so when you are dealing 

with these communications networks worldwide—Saudi Arabia, 

Pakistan, Dubai, and all the countries in Southeast Asia—we cannot—that is, U.S. intelligence cannot know who all these people are 

and come to court, and each time someone is identified in the network, to rush back in the next morning and come to court. So the 

Government and the intelligence community needs a reasonable 

amount of time to gather this information and analyze and determine who are the real terrorists and who are the people who are 

being contacted but not necessarily involved in terrorism. 

These collection programs would be primarily focused on networks outside the U.S., supported by probable cause. I believe your 

bill calls for identifying at least one person in the network, but not 

requiring the identification of all of the persons in the network. 

And we support that basic concept because it would be unreasonable to expect the Government to have that information and 

present it to the judges. But balanced against that broad collection 

is restrictive minimization procedures, and I don’t think many people understand what minimization procedures are, and so I am 

going to explain them. It is not a difficult concept. 

Most foreign intelligence information is collected in foreign languages. Much of it is encoded or encrypted or uses vague concepts. 

For example, terrorists might say, ‘‘Is everything ready for the 

wedding? Have all the presents for the wedding been gathered?’’ 

when referring to terrorist activities. So the first step in minimization is that the information collected, whether in an electronic surveillance or a search, needs to be translated or decoded and put 

into an intelligible form. Once it is in an intelligible form, then the 

intelligence agencies can make an analysis. Is it foreign intelligence information? And if so, how does it fit into the big picture? 

And if it is not, then we should not be keeping it. 

Thus, in discussing this with your staff, I suggested some 

changes to the bill, simple ones. For example, in Section 701, where 

it talks about program, it is often misleading, and some people, I 

think, have misunderstood the purpose of the bill to think that the 

bill would allow targeting of just generic programs as opposed to 

specific terrorist networks. So when the definition of your program 

in Section 701(5), where it says, ‘‘The term ‘electronic surveillance 

program’ means a program to engage in electronic surveillance,’’ I 

would add ‘‘targeting terrorist communications networks.’’ That is 

what the program is about—‘‘targeting terrorist communications 

networks.’’ 

Chairman SPECTER. Judge Kornblum, how much more time do 

you think you will require? 

Judge KORNBLUM. Five minutes? 

Chairman SPECTER. Thank you. 

Judge KORNBLUM. I can stop now if you— 

Chairman SPECTER. No. Proceed. Five minutes would be fine. 

757

Judge KORNBLUM. I wrote the original sets of minimization procedures, which have been in use by the FBI and NSA since 1978. 

They have been amended from time to time to deal with new problems. But what I would see is, under your statute, broad collection, 

including incidental collection of Americans, if that should come 

about, but with stringent minimization at the end of the surveillance period. That is, if the information is determined not to be foreign intelligence, it should be discarded. If it is foreign intelligence, 

it should be used to produce additional applications in a FISA 

Court. But there is going to be a large body of information about 

which the intelligence community would not have had an opportunity to do a complete analysis and determine if it is foreign intelligence. In those cases, I would allow the Government to come to 

the FISA Court and seek a motion to allow the Government to continue to retain the information for continued analysis until such 

time with continuing Court approval. 

And I will now just spend a few minutes talking about Presidential authority. Again, I am not talking about the President’s 

program. 

Presidential authority to conduct wireless surveillance in the 

United States I believe exists, but it is not the President’s job to 

determine what that authority is. It is the job of the judiciary. Just 

as the judiciary determines the extent of Congress’s authority to 

legislate, so it determines the Executive’s authority to carry out his 

executive responsibilities. The President’s intelligence authorities 

come from three brief elements in Article II: the Executive power 

is vested exclusively in the President; so is much of the responsibility as commander in chief; as well as his responsibility to conduct foreign affairs. All three are the underpinnings for the President’s intelligence authorities. Most of the authority I see referred 

to in the press calls it ‘‘inherent authority.’’ I am very wary of inherent authority. It sounds like King George. It sounds like the 

kind of authority that comes to the head of a nation through international law. 

As you know, in Article I, section 8, Congress has enumerated 

powers as well as the power to legislate all enactments necessary 

and proper to their specific authorities, and I believe that is what 

the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of 

which today we are only talking about surveillance of Americans. 

Again, I emphasize that it is the judicial decisions that define the 

President’s authority. These decisions pre-date the FISA statute, 

and I was reviewing the FBI and NSA applications for wireless 

surveillance. Those surveillances by law were transferred to the 

FISA Court in 1978, and actually when it began in May 1979. 

However, the FISA statute has very specific definitions, and there 

are intelligence activities that fall outside the FISA statute. Those 

activities went forward and have continued to this day and are still 

being done under the President’s authorities set forth in the Executive orders describing U.S. intelligence activities. 

There were three orders: President Ford’s Order, 11905; President Carter’s Order, 12036; and the current Order, 12333, which 

was issued by President Reagan in December of 1981. That Order 

has been used by all of the Presidents following President Reagan 

758

without change, and I was responsible for processing those applications. They go to the Attorney General based on the delegation of 

authority. I have asked the staff to give you a copy of the current 

Executive order, and that is the authority that is being used today 

to some extent. 

The Presidential authority that is being used today is being used 

unilaterally. I think all of the judges agree with me that when the 

President operates unilaterally, his power is at its lowest ebb, as 

has been mentioned in judicial decisions. But when Congress 

passes a law, such as one authorizing the surveillance program targeting communications networks, when the Congress does that and 

the judiciary has a role in overseeing it, then the executive 

branch’s authority is as its maximum. What that means is they can 

do things, I believe, under an amended FISA statute that they cannot do now. 

For example, the President’s program says that the President reviews it every 45 days, but I would think, if Congress authorized 

the program and the Court oversaw it, that the surveillance programs could run for 90 days. 

Chairman SPECTER. Judge Kornblum, would you summarize at 

this point? 

Judge KORNBLUM. I will go back to what I started with, that I 

think and the judges all think that Congress can empower the 

President to conduct broad foreign intelligence surveillance programs targeting the communications networks of terrorists abroad, 

that the program can be monitored effectively by the FISA Court, 

that security can be maintained, and the bottom line would be an 

enhanced foreign intelligence collection program. 

Chairman SPECTER. Thank you very much, Judge Kornblum. 

Senator FEINGOLD. Mr. Chairman, could I just have 30 seconds? 

I just need to explain why I have to leave at this point, if I could. 

I would appreciate it, Mr. Chairman. I just want 30 seconds. 

Chairman SPECTER. Go ahead. 

Senator FEINGOLD. I was on the bipartisan delegation that went 

to Iraq this week, and the President has asked that we come to the 

White House now to brief him on that. Obviously, I regard this 

hearing as extremely important, and I am keeping an open mind 

on the Chairman’s legislative idea. I just want to comment, after 

having listened to Judge Kornblum, and I will have to read the 

transcript with regard to the others. 

I don’t think anyone could reasonably take what the judge has 

said to suggest that there is legal authority for what— 

Chairman SPECTER. Senator Feingold— 

Senator FEINGOLD [continuing]. The President is doing now. 

Chairman SPECTER. Senator Feingold, if you— 

Senator FEINGOLD. That is all I— 

Chairman SPECTER [continuing]. Want to explain your departure, 

we understand that. 

Senator FEINGOLD. I just wanted to put that on the record. 

Chairman SPECTER. But we do want to proceed in an orderly way 

here, and everybody is waiting to have a turn to comment. 

Let us turn now to Judge Baker, who received his bachelor’s degree from the University of Illinois, his law degree from the University of Illinois College of Law, appointed to the United States 

759

District Court for the Eastern District of Illinois in 1978, served as 

Chief Judge from 1984 to 1991, was given senior status in 1994, 

and was appointed a judge on the U.S. Foreign Intelligence Surveillance Court in 1998 by Chief Justice Rehnquist. 

Judge Baker, thank you very much for the very thoughtful analysis which you have provided to the Committee, and we look forward to your testimony. 

STATEMENT OF HON. HAROLD A. BAKER, JUDGE, U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS, 

URBANA, ILLINOIS 

Judge BAKER. Thank you, Mr. Chairman, and I want to express 

my—this is not on? I will start again. Thank you, Mr. Chairman, 

and I want to express my appreciation for the privilege of being 

asked to come here and speak to the Committee. 

Like the other judges, I am only speaking individually. I am not 

expressing opinions on behalf of the FISA Court or its members, 

as they are presently constituted. And what I hope to comment on 

is in a constructive manner to strengthen Senator Specter’s bill and 

the functions of the FISA Court, to strengthen the FISA Court. 

What Judge Kornblum said about the FISA Court being an invaluable tool to the intelligence community bears emphasis. 

The FISA statute—I suppose I only tell you what you know—is 

the compromise that was worked out between the congressional 

right of oversight and the powers of the Executive in gathering foreign intelligence. And it ends up being a balance between the constitutional construction and pragmatic necessities. It ended up that 

the intelligence community needed court orders in order to gain access to the carriers, the communications carriers. 

One of the problems that seems to arise—and I mentioned this 

to Senator Specter—is the lack of understanding, it is amazing to 

me, on the part of the Justice Department and the intelligence 

community as to what probable cause has to be. They have some 

idea that probable cause is a high bar that they have to cross, and 

in foreign intelligence matters, it is not. And if they go read Illinois

v. Gates and Maryland v. Pringle, where first Justice Rehnquist 

and, finally, in the Pringle case Chief Justice Rehnquist elaborates 

further, it comes down to a very practical, common-sense decision 

which in the case of foreign intelligence boils down to just a reasonable suspicion. 

The other aspect in the statute that bears discussing is minimization, and also, like determination of probable cause, minimization should be a judicial decision, an oversight by the judiciary of 

what the Executive is doing. 

I should call the attention of the Committee to the In Re Sealed

decision that was decided by the FISA Court of Review, which put 

two limitations on the FISA Court that exist now: first, in determining probable cause, saying that except for clear error, the Court 

should not look past the determination by the Executive of the existence of probable cause to think the communications would contain foreign intelligence; and the other was that minimization is 

not or should not be solely a function for the Executive, and that 

it is subject to review, that the minimization standards established 

760

by the Attorney General are reasonable and intended to protect 

Fourth Amendment rights of United States persons. 

The point I wanted to stress—and I did with Senator Specter in 

my letter to him—was that the Congress should tell what its intention is, specifically what its intention is with regard to who has the 

right to decide probable cause, who has the right of oversight of 

minimization. And I see the clock ticking away. I think I am in an 

appellate court again. I would be delighted to answer questions 

that may be put to me by members of the Committee. 

Thank you, Senator. 

Chairman SPECTER. Thank you very much, Judge Baker. 

Our next witness is Judge Stanley Brotman from the United 

States District Court of New Jersey, appointed there in 1975, bachelor’s from Yale, law degree from Harvard, served in the Counterintelligence Corps in Office of Strategic Services in World War II 

and in the Korean War in Armed Forces Security, a member of the 

FISA Court from 1997 until 2004. 

Thank you for coming to Washington today, Judge Brotman, and 

we look forward to your testimony. 

STATEMENT OF HON. STANLEY S. BROTMAN, JUDGE, U.S. DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, CAMDEN, 

NEW JERSEY 

Judge BROTMAN. Thank you, Senator. Good morning, everyone. 

Like the other judges, I also am honored to have been asked to 

appear before your Committee this morning to discuss the draft 

legislation entitled ‘‘The National Security Surveillance Act of 

2006.’’ 

As you mentioned, I served as a member of the United States 

Foreign Intelligence Surveillance Court from May 1997 to May 

2004. And I might add that, coincidentally, when I was recalled to 

active duty for the Korea campaign, I was assigned to an organization known as the Armed Forces Security Agency, which is the 

predecessor of the National Security Agency, only in those days it 

was operating solely from a military standpoint. 

I feel that since the other judges will be talking a little more of 

the legal intricacies, I would try and give you a picture of the FISA 

Court as it really works, who makes it work, its composition, the 

type of judge who serves on the Court, who appoints that person, 

and such other aspects of the operative procedure that I feel can 

be disclosed. And it is really to give you added confidence to those 

who do not know or have heard very little about this Court, what 

this Court really is and how it approaches the issues that come before it. 

Again, I also will say I am talking only for myself and not speaking for the FISA Court or any member of the FISA Court. My remarks are intended, as I said, to give you a feel for this Court. 

Starting with its inception in 1978, the process of appointment 

to the Court was handled through the appointment of each judge 

by the Chief Justice of the Supreme Court of the United States. 

The term is a 7-year term. A judge cannot be reappointed. When 

his term is over, it is over. 

Prior to 9/11, the Court was comprised of 7 members. Subsequent 

to 9/11, it was increased to its present membership of 11 members. 

761

There is a geographic mix, an ethnic mix. Each of these judges are 

United States District Court Article III judges who have had extensive trial experience and have had a very, very interesting dossier. 

How are the matters presented to the Court? What is the process? The process is by an application submitted by the requesting 

party’s authority, passed through various stages of review within 

that particular authority, by the Attorney General and others, and 

then it is filed with the Court. In other words, there are extensive 

reviews even before it reaches the Court in terms of making sure 

it complied with the provisions of the statute and the facts of the 

situation. 

It is then thoroughly reviewed by the assigned judge, and the 

agent or representative of the applicant appear before the judge at 

a hearing that is held, and if there are no problems, an order is 

issued allowing the collection. If there are problems, the judge will 

raise them and send the application back for further review and 

presentation. The culture or the theory of the Court is we are not 

there to stop the collection of information. It is vital to the security 

of the United States. What we are there for is to help those who 

make the application by making sure they comply with the law, 

with the statute, and as I say, if they are not complying or something is lacking, we will send it back, and you resubmit it. And 

that discipline has grown up over the last 28 years. As I say to 

them, the application must meet the request of the statute and of 

the Congress in the legislation creating the Court. And there must 

be, as we review these applications, there must be a balance between the needs of the surveillance and the protection of the provisions of Article IV. This balance has already been discussed by both 

Allan and Harold, and I will not repeat it. But it is crucial, and 

that balance is not always the same. It depends on the application 

of what is being sought. 

The judges assigned to this Court—and I think I can say this 

about all of them—they really have dedicated themselves to doing 

the job that they are there for. They recognize the security of our 

country is at stake. They recognize the protections due our citizens. 

They are hard-working. At times I was visited in my home in 

South Jersey 2 or 3 o’clock in the morning to sign orders. I was 

even found out in California where I was attending a meeting at 

one time. 

FISA has worked, and worked well. It is a necessary Court, and 

its orders reflect the balance to which I have made reference. It has 

no axe to grind, this Court. Judicial review provides confidence to 

the citizens of our country to know that a court has looked on what 

is being sought. Times change, methodology changes, equipment 

changes, processes change. All these things can be and should be 

accommodated with the FISA Court. And, again, I say I support, 

as do the other judges, the proposed amendment by Senator Specter in his draft. 

I thank you very much. 

Chairman SPECTER. Thank you very much, Judge Brotman. 

Judge BROTMAN. Sorry I went over a minute and 46 seconds. 

Chairman SPECTER. You are welcome to the extra time, and beyond it, Judge Brotman. We appreciate your coming in. We are not 

762

running stopwatches on the Court. On some other witnesses, 

maybe yes, but not on the Court. 

We will turn now to Judge John F. Keenan from the United 

States District Court for the Southern District of New York, appointed in 1983. Judge Keenan is a graduate of Manhattan College, 

Fordham Law School, was in the Army from 1954 to 1956, an assistant district attorney in New York County to the famed prosecutor, D.A. Hogan, whom I worked with in the so-called good old 

days; Deputy State Attorney General and special prosecutor for corruption in the city of New York from 1976 to 1979; appointed to 

the Foreign Intelligence Surveillance Court in 1994 and served 

there until the year 2001, and he is on senior status now. 

Thank you very much for joining us, Judge Keenan, and we look 

forward to your testimony. 

STATEMENT OF HON. JOHN F. KEENAN, JUDGE, U.S. DISTRICT 

COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, NEW 

YORK, NEW YORK 

Judge KEENAN. As the other judges have said, it is an honor for 

me to have been asked by Senator Specter to appear before your 

Committee and testify concerning Senator Specter’s proposed draft 

bill entitled ‘‘The National Security Surveillance Act of 2006.’’ As 

you heard, I served as a member of the United States Foreign Intelligence Surveillance Court from May 1994 until May of 2001. 

While I was in the Army, I served in the Far East in military intelligence in the Army Security Agency, which, as Judge Brotman 

said, was the precursor to the National Security Agency. 

During my tenure on the FISA Court, the Court consisted of 

seven district judges, no two of whom could be from the same circuit. We each served for 7-year terms that were staggered terms 

in the sense that one new judge would come on each year and one 

judge would go off. And those 7-year terms could not be extended. 

I know that Title 50, Sections 1801 and those sections that follow, the Foreign Intelligence Surveillance Act, or FISA, was 

amended after September 11th and that the Court now consists of 

11 district judges. 

FISA was originally enacted in 1978, and it is what I will call 

a Fourth Amendment statute. This is because in order to secure a 

FISA warrant, the Attorney General must establish probable cause. 

However, FISA probable cause is different than probable cause in 

the criminal context. In a FISA application, all the Government 

must show is that there is probable cause to believe that the target 

is a foreign power or the agent of a foreign power. In the case of 

a FISA warrant, the seizure is of foreign intelligence information. 

At present, as we have all heard here this morning, this whole 

area is one where there is considerable controversy and disagreement. It is not my purpose, nor do I think it appropriate, for me 

to allude to the politics of the subject. I respectfully suggest to you 

that FISA has been a valuable tool for the Nation in the collection 

of foreign intelligence. 

FISA can be improved and it should be improved to accommodate 

more modern technology, which was not contemplated in 1978 

when the original law was enacted. I believe your legislation, SenVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00770 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
763

ator Specter, with certain modifications, would improve FISA very 

much. 

Contrary, I should say, to an editorial that appeared in the February 9, 2006, Wall Street Journal, FISA and the Foreign Intelligence Surveillance Court should not be abolished. Under Article 

II, section 2 of the Constitution, the Executive has great power and 

authority in this area, as you have already heard and as you know. 

So, too, does the legislature under Article I, section 8, as is recognized in your bill and as is set forth in your bill. 

Whatever legislation is enacted should accord these two principles sufficient and significant recognition. It is my understanding 

that the legislation before you proposes to supplement the present 

law, not to overrule, repeal, or supplant it. I am aware that Section 

1805(f) of FISA was amended to authorize the Attorney General to 

employ electronic surveillance to obtain foreign intelligence without 

a court order for 72 hours in emergency situations. It is my understanding, based on an article in the March 9th New York Times, 

that there is a bill in the Senate Foreign Intelligence Committee 

seeking to allow warrants without court orders for up to 45 days. 

The National Security Surveillance Act of 2006 which is before 

you makes no reference to the 72-hour period and, thus, presumably leaves it in place. I would respectfully suggest that the period 

be increased to 7 days, or 168 hours, in emergency cases. This 

should be more than ample time to address any unforeseen emergencies if FISA was amended and extended to 168 hours. 

The legislation before you presumably leaves in place Section 

1803(b), which establishes a three-judge court of review over the 

FISA Court. In 2002, the review court sat for the first time and 

ruled at 310 Federal Reporter Third page 717 that, ‘‘FISA does not 

contemplate’’ an en banc proceeding wherein all the judges sit contemporaneously. The legislation here makes no reference to en 

banc proceedings, and if there is a desire on the part of your Committee—and it seems to me in certain cases it might well be valuable to be able to have en banc proceedings, and since they are now 

outlawed, that might be a helpful addition to the legislation. 

The legislation before you in proposed Section 701 defines several 

terms. Among them is the term ‘‘electronic surveillance.’’ I respectfully point out that this term is already defined in present Section 

1801(f) and that there are differences in the definitions which probably should be harmonized in the new legislation. 

Because of modern technology, the United States presence may 

well be in the network or the chain of communication of known terrorists. Concerning those terrorists, there may well be ample probable cause, but little or nothing may be known other than that he 

is receiving communications from the terrorists. I believe in the 

context of intelligence gathering that the Fourth Amendment allows Congress to empower the President to seek warrants targeting 

networks of communication used by people, including United States 

persons, where the network is engaged in terrorism, or activities 

related thereto, without having specific probable cause for all people in the network. I believe that your legislation, sir, accomplishes 

this important purpose and takes into account the sophisticated 

modern technology employed in present-day electronic communications while recognizing the need for minimization procedures. 

764

Thank you very much. 

[The prepared statement of Judge Keenan appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Judge Keenan. 

Our final witness on this panel is Judge William Stafford from 

the United States District Court for the Northern District of Florida. Judge Stafford is a transplanted Pennsylvanian, Mercer County, and his wife is from Franklin County, I was pleased to learn 

this morning; graduated from Temple University in 1953, bachelor’s degree, and a law degree from Temple in 1956; served as a 

Navy lieutenant for 4 years, was State Attorney for the First Judicial Circuit of Florida, the equivalent of a district attorney, and 

served as United States Attorney from 1969 to 1975 for the Northern District of Florida, when he was appointed to the district court. 

In 1996, he took senior status, was appointed to the Foreign Intelligence Surveillance Court, where he served until the year 2003. 

We welcome you here, Judge Stafford, and the floor is yours. 

STATEMENT OF HON. WILLIAM STAFFORD, JR., JUDGE, U.S. 

DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA, FLORIDA 

Judge STAFFORD. Mr. Chairman and members of the Committee, 

you have done me the honor of soliciting my comments on the draft 

legislation entitled ‘‘The National Security Surveillance Act of 

2006.’’ It is my judgment that these proposed amendments to the 

FISA statute strike a reasonable balance between the President’s 

power to conduct foreign affairs, including electronic surveillance, 

and the Congress’s power of oversight over the same. 

By positing the power to review and/or authorize this surveillance in the FISA Court of the third branch, this legislation accommodates the power of the President to fulfill his duty to protect the 

Nation against terrorism from without, while the civil liberties of 

Americans are being watched over by judges whose lifetime appointments put them above the current political clamor. 

For those of us who came of age during the cold war, the world 

political scene and the communications universe have changed dramatically. It is well, then, that the FISA statute, created nearly 30 

years ago, be looked at and revised in the light of the world as it 

really is in the year 2006. When FISA was first enacted in 1978, 

the Congress codified the President’s power to conduct foreign intelligence surveillance and the method by which that could be done. 

In 1984, Congress amended the FISA statute to permit physical 

searches under the same foreign intelligence surveillance umbrella. 

The Berlin Wall has since come down, and other artificial borders have disappeared, while wireless computers, cellular telephones, and other electronic creations have reduced the communications distances to nanoseconds. 

The events of September 11, 2001, and their aftermath demonstrate that while it is indeed a different world in which we now 

live, constitutional principles still apply, and your proposed legislation accommodates both of these verities. 

Your amendments create an electronic surveillance program in 

which the Congress recognizes that it is ‘‘not feasible to name every 

765

person or address every location’’ and requires, again quoting, ‘‘an 

extended period of electronic surveillance.’’ 

This is another recognition not only of the change in the world 

scene and in communications abilities, but also of the difference between traditional criminal prosecution and foreign intelligence 

gathering. By requiring a justification for continuing the surveillance and by establishing enhanced minimization procedures, these 

amendments offer a reasonable approach to meeting both the need 

for national security and for protecting Americans’ civil liberties. 

Foreign intelligence surveillance, as has been mentioned, is a different form of executive function than is law enforcement, and your 

proposed legislation recognizes that. In my considered opinion, it is 

well that a different threshold is set for the initiation and/or the 

continuation of foreign intelligence surveillance as contrasted to 

the traditional Fourth Amendment probable cause that is required 

in criminal search and seizure warrant applications. This is because the purposes of the intrusion and collection of information in 

each case is different. 

In the typical Fourth Amendment search and seizure context, the 

individual and/or the place and/or the type of evidence are generally spelled out in the warrant application, and criminal prosecution is the end game. Under FISA, the governmental function is the 

gathering of foreign intelligence information. And while the intelligence gatherers are not required to turn a blind eye to violations 

of the criminal laws, prosecution is not the purpose for the initiation or continuation of the foreign intelligence surveillance. 

Spelling out in your legislation a different level for the initiation 

and/or continuation of foreign intelligence surveillance has the additional benefit, Mr. Chairman, of providing guidance for those 

courts that may be called upon to review the product of any such 

foreign intelligence surveillance. Should evidence, incidentally 

gathered as a result of a FISA warrant, be offered in a criminal 

case and there be challenged as a product of an unreasonable 

search and seizure, it would be comforting for the trial judge and 

for the court of appeals judges who may have the same issue on 

appeal to know that Congress made the deliberate choice to set a 

different threshold for foreign intelligence purposes. 

Illinois v. Gates has been mentioned. It is my recollection that 

arose in a criminal case context. And while the language of that 

opinion may well allow for different levels of consideration, depending upon the purpose for the warrant application, having the legislative intent clearly stated here removes any doubt as to what the 

Congress would authorize or sanction in the FISA context. 

Choice of language to accomplish this is for you as drafters, but 

I respectfully suggest that if it is the will of Congress to set a different standard for foreign intelligence surveillance gathering that 

you do so for the benefit of the other two branches of Government 

and for the American people. 

As I approach my 75th birthday, it remains my belief that our 

Nation is really held together by a couple pieces of paper—the Declaration of Independence and the Constitution—and the belief of 

the American people that our system of Government works. FISA 

was created by Congress to clarify that the President had the authority to conduct foreign intelligence surveillance, but that the 

766

President would do so through a court composed of judges who had 

been nominated for lifetime appointments by a President and confirmed by the Senate, as provided in Article III of the Constitution. 

This arrangement seems to have worked well for everyone, and 

these amendments will, in my judgment, continue that arrangement into the real world of the 21st century. 

Thank you, sir. 

[The prepared statement of Judge Stafford appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Judge Stafford. Very 

profound. The two pieces of paper, so long as we follow them, have 

a great tradition for balance of power and for separation of power, 

which we are going to the heart of today. 

We will now begin the 5-minute rounds of questioning by members of the Senate, and I will begin, Judge Baker, by asking you 

about your testimony on minimization and establishing probable 

cause. And you are testifying that you think that the Foreign Intelligence Surveillance Court would be in a position to analyze the administration’s program, whatever it turns out to be, to see to it that 

those two constitutional requirements are followed if my bill was 

enacted, correct? 

Judge BAKER. Yes. I would urge you not to abandon the language 

of the Fourth Amendment of probable cause. Probable cause is the 

test, but there is a different probable cause that applies in a foreign intelligence case. And going back to how I feel the effectiveness of the FISA Court was limited by the In re Sealed Case decision saying that we should not look behind the minimization procedures, we had no right of review, I think that that is an oversight 

function that the Congress intended, and also that we should not 

look behind the determination of probable cause. Probable cause 

has always been a judicial determination when it comes to a warrant. 

Chairman SPECTER. And that can be accomplished with the legislation which I have proposed? 

Judge BAKER. Absolutely. Yes, sir. 

Chairman SPECTER. Judge Stafford, you testified about the necessity for balance and cited the advances in electronic and wireless communication. And you are looking for a balance for national 

security and protecting civil liberties. And do you think that the 

legislation which I have proposed will take into account the modern 

technological advances and will the FISA Court review provide that 

kind of balance? 

Judge STAFFORD. Yes, sir, I do. I think you recognize that, as I 

indicated, it is not possible to name everyone, and, therefore—and 

as previously noted, the electronics just flies around this world so 

quickly, and the prospect of running to the Court every time, it 

seems to me, is not possible. 

So I think your legislation is broad enough to permit the gathering of the foreign intelligence information and the minimization 

procedures to strike from that anyone, particularly U.S. persons, 

who may not have any foreign intelligence purpose whatsoever, so 

their names could be eliminated. 

So I think the legislation will accomplish that, Senator. 

767

Chairman SPECTER. Judge Keenan, you have sounded a similar 

note, talking about technology, and the Foreign Intelligence Surveillance Act, as you testified, should accommodate those changes 

which we find today contrasted with 1978 when FISA was enacted. 

Do you think that the legislation which I have proposed will appropriately take into account those changes in technology and provide 

the kind of judicial review which would establish constitutionality 

and at the same time give appropriate balance to law enforcement? 

Judge BROTMAN. Yes, I do. Was that you? I am sorry. 

Chairman SPECTER. That is fine. We will get a double answer. 

Judge KEENAN. I agree with Judge Brotman. I certainly— 

Chairman SPECTER. Before you answer, I want to be sure we 

have Judge Brotman on the record. I thought I heard you say, 

‘‘Yes, I do’’? 

Judge BROTMAN. Yes. 

Chairman SPECTER. OK. 

Judge BROTMAN. I was going to say something else, but I will let 

him answer first. 

Chairman SPECTER. OK. 

Judge KEENAN. I certainly do agree that the legislation serves 

the purpose that you suggest, and if I may, most respectfully, I 

would like to repeat my suggestion that the 72-hour provision be 

extended to 168 hours, in other words, 72 days—from 72 hours to 

7 days, I am sorry, the point being that emergencies sometimes 

arise. 

You heard from Judge Kornblum, I think, the number of steps 

and hurdles in a sense that the FISA application has to go through 

before it ever gets to the Court, and you heard it from Judge 

Brotman, to a judge of the Court. Emergencies do arise in life, and 

particularly with the type of communications we are talking about, 

which were never envisioned in 1978. 

When you were district attorney of Philadelphia and there was 

a wiretap, or when Senator Kennedy was an assistant up in Massachusetts and there was a wiretap, there were two people on the 

wire. That is not the way it is now, and that is what has to be covered, and you are covering it. 

Chairman SPECTER. Thank you, Judge Keenan. 

Judge Brotman, the red light went on, and I like to observe the 

red light so that everybody else does. The Chairman has to be the 

leader on that, and we will come back to you on my next round. 

I yield now— 

Senator LEAHY. Go ahead if you want. 

Chairman SPECTER. No, no. 

Senator LEAHY. Or take it from my time. 

Chairman SPECTER. I want to observe the time. Senator Leahy? 

Senator LEAHY. Judge Keenan, you bring back some memories 

for a number of us on this panel who were prosecutors. I will not 

go on to telling war stories. I do have a question. 

It has been reported that the current presiding judge of the FISA 

Court, Judge Kollar-Kotelly, and her predecessor, Judge Lambreth, 

expressed doubts about the legality of the President’s warrantless 

wiretapping program. Both insisted that information obtained 

through NSA surveillance not be used to gain warrants in the 

FISA Court. Do you agree with the decision of the presiding judges 

768

to bar the Justice Department from using information obtained 

from this program in their FISA applications, Judge Baker? 

Judge BAKER. I am not familiar with her decision on that, and 

I would like you to excuse me from interfering in the proceedings 

of the existing Court. I don’t know what has been presented to 

them. I am really in the dark with that, and for me to give an answer on it would be wild—would be speculation. 

Senator LEAHY. Judge Brotman, do you have any different answer? 

Judge BROTMAN. No, I would give the same answer. 

Senator LEAHY. Judge Keenan? 

Judge KEENAN. I am afraid, Senator, I would give the same answer. I don’t know what the program is, and I have never been 

briefed. 

Judge STAFFORD. I agree with my colleagues, Senator Leahy. 

Senator LEAHY. OK. Well, let me ask you this then: Suppose the 

Justice Department wanted to test the legality of the NSA program, and let’s assume for the moment that the facts are as I have 

described them by the chief judges. If they wanted to test the legality, couldn’t they do that anytime by applying for a FISA warrant 

based expressly on evidence obtained through the program, that is, 

evidence obtained through a warrantless wiretap of an American 

inside the United States? If you have a case where evidence is obtained through a warrantless wiretap of an American inside the 

United States, the Justice Department now comes forward and 

asks for a FISA warrant based on that, on those facts would that 

not put the judge in a position to consider whether the evidence 

was obtained lawfully? 

Judge BAKER. The judge would— 

Senator LEAHY. Take it as a hypothetical. 

Judge BAKER. Well, the judge would have to consider whether 

there was probable cause to believe that a foreign power was involved and that the communication was between a foreign power 

and there is probable cause to believe that the recipient is an 

agent. That would fall within the statute, if, if, if that was present. 

Senator LEAHY. And that would be— 

Judge BAKER. But I don’t know that that would be present. 

Senator LEAHY. And that would be—and doing that would really 

make the determination whether it was lawfully obtained, as well 

as asking the questions you have just referred to? 

Judge BAKER. No, because it goes beyond the question of a foreign power and the agent of the foreign power, and it is raising the 

question of whether the President has the authority to do such a 

thing. And, again, I end up saying I cannot answer it because it 

would amount to speculation. 

Senator LEAHY. You cannot answer a question whether if the 

Justice Department came in applying for a FISA warrant based expressly on evidence obtained through a warrantless wiretap of an 

American inside the United States, you couldn’t make—you 

couldn’t ask a question whether the evidence was obtained lawfully 

under FISA? That doesn’t seem to make a lot of sense. 

I mean, I will put it another way. Suppose they came in for a 

warrant to search a safe deposit box, and it said we are developing 

our probable cause based on an earlier warrantless search of the 

769

suspect’s home. Before you issued that search warrant for the safe 

deposit box, wouldn’t you have to at least reach a question of the 

legality of the search of the home? 

Judge BAKER. I might come to the conclusion that there was insufficient information because the information was not reliable to 

find probable cause. But I don’t know that I have to go back and 

decide what the Executive is doing is legal or illegal. And— 

Senator LEAHY. Well, then, let me wind up with this. Mr. 

Halperin is going to testify in the next panel. He said, ‘‘Should 

Congress seek to legislate based on the record currently before it, 

such legislation should respond to the specific needs that have been 

asserted by the Government rather than to conjecture as to what 

additional needs may exist.’’ Do you disagree with that? You are 

saying you want to have the facts. Isn’t Mr. Halperin saying the 

same thing? 

Judge BAKER. I guess, you know, I came to talk about the proposed legislation and how it would assist and reinforce the FISA 

Court and whether—what the existing situation is now, whether 

something is legal or illegal goes beyond that, and that is why I 

am shying away from answering that. 

Senator LEAHY. All right. With the heads shaking, I have a feeling I would get the same answer from Judge Brotman, Judge Keenan, and Judge Stafford. 

Judge BROTMAN. I would say this, Senator: that any application 

made to the FISA Court would have to be considered by the judge 

who receives that application. In the course of reviewing that application, if it doesn’t meet with the statute, then the application is 

not granted. We have to use the information in the application and 

the information we have learned, and all of us become briefed on 

new programs, become briefed on new equipment. We see how 

things operate. We have to in order to do our job. But if an application comes in and does not meet what it should meet, it goes back. 

Judge BAKER. Judge Kornblum reminds me, Senator Leahy, that 

in the Ames case, warrantless searches were disclosed to the Court, 

and the Court did proceed on the basis of those warrantless 

searches and further FISA surveillance. 

Senator LEAHY. And didn’t we amend FISA after that, at the request of the administration, to take care of cases like Ames? 

Judge BAKER. Yes, it was amended. 

Chairman SPECTER. Thank you, Senator Leahy. 

Senator Hatch? 

Senator HATCH. Well, I want to personally thank all of you for 

your service to our country, and we appreciate what you folks in 

the Federal judiciary are doing for all of us. We thank you for 

being here today, and we appreciate all the testimony we have had. 

I am going to direct my questions to you, Judge Kornblum, if I 

can, and anybody else who would care to respond, it would be fine 

with me. 

When the accusations against the President’s authorization of 

the NSA terrorist surveillance program were put together, the picture looked something like this: The President is given a mandate 

from the Constitution as Commander in Chief. The Congress, in response to domestic spying by certain administrations in the 1960s, 

devised a legal avenue by which the administration can conduct 

770

surveillance on Americans, and thus the FISA Court was born. 

Therefore, goes the argument, if the administration is to engage in 

any kind of surveillance, it must go through the FISA court. 

One Senator described FISA like a trap, with two escape hatches. 

Another Senator says the FISA Court is not a tool, but the prescribed avenue which Congress has given for conducting surveillance. 

Now, if this line of reasoning is true, then the authority of the 

President has truly been diminished through the creation of 

FISA—the very thing FISA was not supposed to do. 

On top of that, the leak of this classified program has been 

hailed as ‘‘a good thing’’ by some Senators. Other Senators have 

said publicly that they would be willing to give the President the 

explicit authority to conduct this program if the President had just 

asked. 

Now, I submit that when we sought to give law enforcement officers authority to use time-tested tools from years of investigating 

health care fraud or mail fraud, just to mention a couple of matters, under the PATRIOT Act and, under the PATRIOT Act, use 

those same tools in terrorism investigations, the same Senators 

supported a filibuster of the PATRIOT Act. 

Now, this is not an administration spying on political enemies. 

This is a well-regulated, carefully targeted effort to stop terrorists. 

The administration discussed this program with several congressional Members, and apparently none of them raised issues that so 

many are now trying to make political hay of today. And to my 

knowledge, no member has publicly requested the administration 

to stop the program or they have not even suggested that funding 

for NSA should be curtailed. 

Now, Senator Specter has this bill, which is a good effort, in my 

view, that addresses the issue of the FISA Court and the power of 

the President to conduct surveillance on suspected terrorists. 

One of the criticisms circulating regarding this bill is the constitutionality of the proposed bill, and we are all concerned about 

that. 

So my question to you, Judge, and any of the other judges who 

care to comment, is this: If the administration files a request with 

the FISA Court for permission to conduct something like the current terrorist surveillance program, and the request is denied, and 

subsequent revised requests are denied, does the administration 

still have the options to pursue in the effort to foil the terrorists, 

or should the FISA Court’s decision between a constitutionality infirm advisory opinion? 

Judge KORNBLUM. Well, you have overlooked the easy answer. 

There is a court of review, and just as back in 2001, when the administration objected to the Court’s decision in In re: All Intelligence Matters, they appealed to the court of review, and that is 

the specific purpose for the court of review, so they would have a 

legitimate legal outlet to pursue. 

Senator HATCH. Except this may be a crucial time-constraining 

situation where lives of Americans, maybe millions of lives of 

Americans may be at stake. So, again, would it be an advisory 

opinion, in your opinion, or would it not be? 

Judge KORNBLUM. No. 

771

Senator HATCH. Assuming that that situation is the situation, 

and I can tell you personally, that very well may be the situation. 

Judge KORNBLUM. If the facts were presented in the form prescribed in the FISA statute, and contained specific information regarding the foreign power, the agent of a foreign power, and explained how the surveillance was going to be conducted, and met 

all the requirements of the FISA statute, I would not think it is 

an advisory opinion. It would be a case of controversy for them to 

decide. 

Senator HATCH. Even if it involved very, very serious potential 

harm to millions of Americans? 

Judge KORNBLUM. I am not sure I understand your question, because it seemed to me almost all the FISAs. 

Senator HATCH. Let us say that we have some evidence that 

there is a widespread conspiracy to bring a nuclear device into 

America, and that the FISA Court decided that they have not met 

the requisites a couple of times. Is the President bound not to do 

anything, or is his only limitation to appeal the FISA Court’s to a 

court of review, that might take a tremendous amount of time and 

might result in the loss of millions of lives? 

Judge KORNBLUM. Well, of course, the President would be relying 

on the Attorney General and now the new National Director of Foreign Intelligence for their recommendations, and I certainly do not 

consider myself an expert on Presidential authority, but I could see 

the President deciding that using what I called his necessary and 

proper authority, he would assume the risk, and order the executive action necessary, such as electronic surveillance despite the 

Court’s approval—or disapproval. And I gather that’s the premise 

you wanted me to address. 

The Court would disapprove the application, and there would be 

insufficient time to call in the court of review. What should the 

President do? Well, just as the President is now acting unilaterally, 

he might choose to do that. If he— 

Senator HATCH. And he might be right. 

Judge KORNBLUM. He might be right, yes. 

Chairman SPECTER. Thank you, Senator Hatch. We will pursue 

that question of whether he might be right when my turn comes. 

[Laughter.] 

Chairman SPECTER. Senator Feinstein was here under the early 

bird rule. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I 

think four of us on this Committee are also members of Intelligence, and two of us are part of the Subcommittee that has been 

briefed on the program, and has been out to the NSA and seen it. 

It was very interesting. 

What you said this morning was of great help to me. Two of you 

have said that the probable cause standard is not a bar, but it is 

really lower than a Title III probable cause. It is really reasonable 

suspicion. Do all of you agree with that? Does anybody not agree 

with that, that for the collection of intelligence, the probable cause 

standard is really reasonable suspicion? 

Judge KEENAN. I am just not comfortable with those words. The 

reason that I say that is the cases all talk about ‘‘probable cause.’’ 

As I think we all tried to articulate, in my view, FISA probable 

772

cause is different than criminal probable cause. All you need with 

FISA is to prove—not prove—to establish probable cause— 

Senator FEINSTEIN. I am sorry. I cannot hear you. 

Judge KEENAN. I am sorry, excuse me. All you have to do with 

FISA, Senator, is establish that the target is an agent of a foreign 

power or a foreign power, and the purpose of it is to gain foreign 

intelligence. Once you have done that, you have cleared the probable cause hurdle for the FISA Act. If you want to— 

Senator FEINSTEIN. There are a couple of other things here that 

were very useful. I think the extension of the 72 hours to 7 days 

is very helpful. I think reviewing a program en banc is very helpful. There are a lot of contrasts that we have to deal with, and not 

the least of which is if you take something off a satellite, it is legal, 

if you take it off a wire, it is not without a warrant. And as you 

have adequately pointed out, the technology has changed so much 

that a law passed in 1978 really needs to be changed for a program 

as opposed to an individual warrant. 

I think there is justification for a program. The question now 

comes on: should the probable cause or reasonable suspicion standard be exercised? It certainly seems to me that a FISA Court, sitting en banc, is one appropriate standard. 

The other one comes down to probable cause or reasonable suspicion of what? Now, you have said agent of a foreign power or a 

foreign power, but it is also threat. It is also affiliation. I do not 

know that you would have sufficient probable cause in a program 

if it is just limited to an agent of a foreign power or a foreign 

power, because you are trying to develop connections, and you are 

trying to evaluate threat as well. Could you comment on that? 

Judge BAKER. I think that all you have to do is look at Pringle, 

the most recent Supreme Court case, where they hark all the way 

back to Chief Justice Marshall, and say, ‘‘a seizure under circumstances which warrant suspicion,’’ and being the agent of the 

foreign power would be involved in these activities that you describe. So it seems perfectly clear to me that probable cause in such 

a situation is a very low bar, a very low hurdle to get over, to make 

a warranted surveillance. 

Senator FEINSTEIN. In other words, the foreign power is outside 

the country. The target is in the country. You would also want to 

know, it seems to me, who that target called. 

Judge BAKER. Precisely. No, you would go after that target too. 

Senator FEINSTEIN. Right. And so there you are still agent of a 

foreign power, or foreign power, rather than a threat or a conspiracy? 

Judge BAKER. The agent of the foreign power engaged in clandestine activities which are a threat to the United States. I mean, it 

is what that agent is doing that you will be looking at, or we suspect that he is doing, or she. 

Senator FEINSTEIN. Thank you very much. Now, I want to clear 

something up. Judge Kornblum spoke about Congress’s power to 

pass laws to allow the President to carry out domestic electronic 

surveillance, and we know that FISA is the exclusive means of so 

doing. Is such a law, that provides both the authority and the rules 

for carrying out that authority, are those rules then binding on the 

President? 

773

Judge KORNBLUM. No President has ever agreed to that. When 

the FISA statute was passed in 1978, it was not perfect harmony. 

The intelligence agencies were very reluctant to get involved in 

going to court. That reluctance changed over a short period of time, 

two or 3 years, when they realized they could do so much more 

than they had ever done before without court— 

Senator FEINSTEIN. What do you think as a judge? 

Judge KORNBLUM. I think—as a Magistrate Judge, not a District 

Judge—that a President would be remiss in exercising his constitutional authority to say that ‘‘I surrender all of my power to a statute,’’ and, frankly, I doubt that Congress, in a statute, can take 

away the President’s authority, not his inherent authority, but his 

necessary and proper authority. 

Senator FEINSTEIN. I would like to go down the line if I could, 

Judge, please. Judge Baker? 

Judge BAKER. I am going to pass to my colleagues since I answered before. I do not believe a President would surrender his 

power either. 

Senator FEINSTEIN. So you do not believe a President would be 

bound by the rules and regulations of a statute; is that what you 

are saying? 

Judge BAKER. No, I do not believe that, a President would say 

that. 

Senator FEINSTEIN. That is my question. 

Judge BAKER. No. I thought you were talking about the decision 

that the— 

Senator FEINSTEIN. No. I am talking about FISA, and is a President bound by the rules and regulations of FISA? 

Judge BAKER. If it is held constitutional and it is passed, I suppose, just everyone else, he is under the law too. 

Senator FEINSTEIN. Judge? 

Judge BROTMAN. I would feel the same thing. I would feel the 

same way. 

Senator FEINSTEIN. Judge Keenan? 

Judge KEENAN. Certainly, the President is subject to the law, but 

by the same token, in emergency situations, as happened in the 

spring of 1861, if you remember—and we all do—President Lincoln 

suspended the writ of habeas corpus and got into a big argument 

with Chief Justice Taney, but the writ was suspended. Some of you 

probably have read the book late-Chief Justice Rehnquist wrote, 

‘‘All the Laws But One,’’ because in his inaugural speech—not his 

inaugural speech, but his speech on July 4th, 1861, President Lincoln said, essentially, ‘‘Should we follow all the laws and have them 

all broken because of one?’’ 

Senator FEINSTEIN. Judge? 

Judge STAFFORD. Everyone is bound by the law, but I do not believe, with all due respect, that even an Act of Congress can limit 

the President’s power under the Necessary and Proper Clause 

under the Constitution. And it is hard for me to go further on the 

question that you pose, but I would think that the President’s 

power is defined in the Constitution, and while he is bound to obey 

the law, I do not believe that the law can change that. 

Senator FEINSTEIN. So then you all believe that FISA is essentially advisory when it comes to the President. 

774

Judge STAFFORD. No. 

Senator FEINSTEIN. But that is what—my time is up, but this is 

an important point. 

Chairman SPECTER. Excuse me. It was four and a half minutes 

ago, but pursue the line to finish this question, Senator Feinstein. 

Senator FEINSTEIN. I do not understand how a President cannot 

be bound by a law— 

Judge BAKER. I could amend my answer saying that— 

Senator FEINSTEIN [continuing]. But if he isn’t, then the law is 

advisory it seems to me. 

Judge BAKER. No. If there is enactment, statutory enactment, 

and it is constitutional enactment, the President ignores it at the 

President’s peril. 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

Chairman SPECTER. Let me interpose for just a moment here. I 

think the thrust of what you are saying is the President is bound 

by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President’s 

constitutional authority. Anybody disagree with that? 

[No response.] 

Chairman SPECTER. Everybody agrees with that. And the question, whether he has constitutional authority, depends upon what 

he is doing, and that is why you have judicial review, and have to 

know what the program is to make an evaluation, as the courts 

have done consistently with the President’s authority once you 

know what a program is. And that is the thrust of what you have 

testified to in chief when you have given your 5-minute opening, 

and in response to my questions, that the FISA Court would have 

the authority to evaluate the specifics of the program and determine whether it is within the President’s constitutional authority. 

Anybody disagree with that? 

Judge KORNBLUM. Senator, I would also reiterate that the President does not have a carte blanche, that the courts are the arm of 

Government that determines what the President’s constitutional 

authority is, and over these past 25 years, in addition to the FISA 

statute, the President has continued to exercise his constitutional 

authority to authorize intelligence activities— 

Chairman SPECTER. I will come back to this when my turn 

comes, but in light of Senator Feinstein’s questions, I just thought 

that little bit of clarification might be in order. 

Senator Kennedy. 

Senator KENNEDY. Thank you very much, Mr. Chairman. 

Thank all of you. This has been enormously helpful, and I think 

all Americans ought to have a sense of confidence in those that are 

serving on the FISA Court. I certainly have been impressed by all 

of your presentations here, and reassured. 

Just to back very briefly, at the time that we passed that Act, 

we worked with President Ford and Attorney General Levi. They 

brought the members of this Committee down to the Justice Department. We worked it out in a calm and bipartisan way. The Foreign Intelligence Surveillance Act was passed 95 to 1 in 1978. 

Many of us believe that it was enormously important, and I think 

history will show it. 

775

Now many of us wonder why we are not having a similar kind 

of a situation, why we cannot, with the new kinds of challenges 

that we are facing here in the country with 9/11, why we cannot 

work in a calm and bipartisan way. We did at that time. We had 

the threats from the Soviet Union. There were provisions that were 

put in there as a result of secret information, all of which worked 

out, and worked out very well. 

Now we have situations where we are having warrantless electronic surveillance on a number of individuals. Judge Baker, first 

of all, have the comments on the Chairman’s proposal, have we all 

got the copies from your proposal? Has that been made available 

to all of us, Mr. Chairman, do you know, their comments on your 

proposal, do we all have those comments? 

Chairman SPECTER. I will make a part of the record Judge 

Baker’s comments, which are in writing, but those are the only 

comments. I will put in the record whatever comments have been 

made. 

Senator KENNEDY. Thank you. 

Second, this was originally going to be a hearing that was going 

to be a secret hearing. My question is, are we missing anything 

here that you would have told us. I mean, obviously, you can say, 

yes, a lot, and then everybody is going to want to know what. And 

then my next question, what is it, and we cannot hear it. 

But I am just wondering—I do not want to use up a lot of time 

on this, but are we getting the central thrust, or are we missing 

out on something here that we ought to sort of know about? Just 

very quickly, because I have a short time. Please, Judge Keenan? 

Judge KEENAN. I don’t know anything more than what I had to 

say. I have been off the Court since May of 2001, so I don’t know 

anything about the present situation other than what I have read. 

Senator KENNEDY. I just note that heads are going up and down 

that we are really not missing out on a great deal. 

Let me ask you if you have concerns about the potential impact 

on criminal prosecutions from evidence that is obtained from surveillance programs not approved by the FISA Court? Judge Baker? 

Judge BAKER. Certainly. When you get to the District Court, I 

think that the prosecutor would have a real problem in trying to 

put forward evidence that had not been obtained with judicial imprimatur first. I would be very worried about that. Now, in the In 

re: Sealed Case, it really went up originally because the Attorney 

General took the position you could use FISA for law enforcement 

purposes, and I am the guy who has the singular notoriety of being 

the only FISA Judge in history who has ever been reversed, because I signed that order. And it went up, and you know, we never 

said that you couldn’t down the line use it, or you couldn’t initiate 

and control it by the criminal division. 

I would be very concerned when I got to the District Court, if I 

was a prosecutor, with that kind of evidence. 

Senator KENNEDY. The rest, Judge Keenan, Judge Stafford, have 

similar concerns? 

Judge KEENAN. I agree with Judge Baker. 

Senator KENNEDY. So here we have a situation under the current 

Justice Department—I think most of us have at least drawn the 

conclusion that some of these leaks on NSA are because people are 

776

wondering about its constitutionality. We are going to find out in 

these courts whether the individuals, if they eventually get the al 

Qaeda and they are holding them, are generally thinking if you 

have a case that is just absolutely a closed case, that you might be 

able to get more information out of it. It enhances the Government’s ability to get more information out of those individuals 

whether they think they might get off and beat the rap on this. 

And what I think I am hearing from you is that there is at least 

some concern about the question about the evidence that is obtained. 

Let me ask you this. What about the information, is the Government required to get a court order or some other written certification before the Government can listen to telephone calls or read 

through e-mails? What is your understanding of the current law, 

the requirements that you think that must be met before the Federal Government can obtain information from telephone companies? 

Judge BAKER. For instance, we issues orders for— 

Senator KENNEDY. Do they have to get some written kind of authority to turn these matters over under your understanding under 

the FISA? 

Judge BAKER. That is the way it has been happening, absolutely. 

Senator KENNEDY. Would you think that they would have to do 

it if they are doing some other kind of process or some other procedure, which has not been described in detail to us, but would you 

assume that they have to have the same kind of an— 

Judge BAKER. I can only look back in history when the carriers 

refused to cooperate until they had a court order. 

Senator KENNEDY. Others would believe that to be so as well. 

Just a final point. A point has been made about FISA being a 

rubber stamp. I think to the contrary. If you could outline just 

quickly, because my time is up, about the kinds of negotiations that 

are taking place. I understand there have been reviews of some of 

the request, I think 93 or 94 different instances where you have 

perfected these kinds of requests. 

Just a last point. In response to the earlier kinds of questions 

with Senator Feinstein, we provide, if the President had a real 

issue on an emergency, we have in the FISA have the 72 hours in 

any event, so if they did not get the Court, the President could 

move ahead in the 72 hours I imagine. And as we remember when 

President Carter signed that, he effectively said he was going to be 

bound by the law. President Jimmy Carter said we are going to be 

bound. That was in his statement at the time. But would you 

just—I am exceeding my time—come back, any of the panel, talk 

just about these modifications. Can you describe about that process, or how you have altered or changed? Is it something that is 

done sometimes, infrequently, frequently? What can you tell us 

about it? 

Judge KORNBLUM. Senator, in supervising the submission of the 

applications to the Court, from time to time, members of the Court 

would express concern regarding certain aspects of an application, 

such as conflicting information on the probable cause or greater 

specificity on the means for the surveillance. We simply asked the 

Court for an opportunity to conduct further investigation or gather 

777

additional information, and file an amended application. And virtually every time that request was granted by the Court, and 

amended applications were filed and approved. 

Senator KENNEDY. So it is more than a rubber stamp. This is the 

point I am trying to get to. 

Judge BAKER. Oh, yes. 

Senator KENNEDY. Thank you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Senator Durbin. 

Senator DURBIN. Thank you very much, Mr. Chairman. 

Thanks to all the panel, and especially my friend, Judge Harold 

Baker. I am glad you are with us today. 

Judge BAKER. Thank you. 

Senator DURBIN. I am trying to follow the statement made by my 

colleague, Senator Hatch, in describing the FISA law, and he said 

at one point that it was not the intention to diminish the power 

of the President, FISA was not supposed to do that. But I cannot 

read that law without concluding that is exactly what Congress set 

out to do. By a vote of 95–1, they said that this was the exclusive 

means by which electronic surveillance and the interception of domestic wire, oral and electronic communications may be conducted. 

Now, there has been a larger question raised by the Chairman 

and by the members of the panel, as to whether the President has 

constitutional authority which supersedes any statute. It seems to 

me at this moment in time that the President, with his new wiretap program, had three options. He could follow the FISA law. He 

could ignore or violate the FISA law, or he could seek to change 

the law. We know for certain he did not take option No. 1, or No. 

3. He did not follow the FISA law, nor did he seek to change it. 

Members of the Senate Judiciary Committee have been given 

proposals by the administration for the PATRIOT Act and its revisions after 9/11 to give new authority to the administration. Those 

provisions passed on a strong bipartisan vote. 

So my question is very straightforward. Is there anyone on the 

panel here who believes that the President did not violate the FISA 

law with the new wiretap program as he has described it? 

Judge KEENAN. I don’t know what the new program is, Senator, 

and that is the reason— 

Senator DURBIN. If you could lean over a little closer to the mike. 

Judge KEENAN. Sure, I’m sorry. I don’t know what the new program is, Senator, and that’s why I, in my prepared remarks and 

in my answers to other questions, I’m not in a position to offer any 

opinion about that. My understanding—and this is from what I 

have read in the lay press now—I understand, having read this, I 

believe, in the Wall Street Journal, that some judges of the Foreign 

Intelligence Court, present judges—not any of us because we are 

not on it anymore, and certainly not me because I have been off 

it since 2001—some of the judges have been briefed on the program. I also understand, from what I have read in the lay press 

and what I heard from Senator Feinstein a few moments ago, that 

some Senators have been briefed. But I do now know what the program is, so I am not in a position to offer any comment at all about 

what the President’s doing. 

778

Senator DURBIN. Well, as we have heard it described—and I have 

not been briefed either, there are only a few Senators who have—

it is the interception of domestic communications between people in 

the United States and those in foreign lands, and that strikes me 

as falling within the four corners of the FISA law as written. 

Judge KEENAN. But you use the word in your introductory question and in that question, ‘‘domestic,’’ and as I understand from the 

lay press, again, this is international, it is not domestic. So that’s 

why I’m not in a position to answer, sir. 

Judge BAKER. Senator, did the statute limit the President? You 

created a balance between them, and I don’t think it took away the 

inherent authority that Judge Kornblum talked about. He didn’t 

call it ‘‘inherent,’’ he doesn’t like that. But the whole thing is that 

if in the course of collecting the foreign stuff, you are also picking 

up domestic stuff, which apparently is happening, I don’t know 

that that’s—it becomes a real question, you know, is he under his 

inherent power? Is he running around the statute? 

I had a great thought later when you asked the hypothetical 

about some FISA judge turning down the application on one of 

these warrantless programs, that that could happen, but not if the 

Court is allowed to sit en banc. My experience and knowledge of 

those judges, that’s just not going to happen, if they sit in en banc, 

where there is real problem or peril. 

Senator DURBIN. May I ask one last question? In the proposal by 

Senator Specter under Section 702(a), it states, ‘‘The FISA Court 

shall have jurisdiction to issue an order under this title, lasting not 

longer than 45 days, that authorizes an electronic surveillance program.’’ 

By passing this, would we be ceding authority to this Court to 

authorize programs, electronic surveillance programs, currently not 

authorized under law? 

Judge BAKER. It would be a different approach, certainly, 

wouldn’t it, Allan? 

Judge KORNBLUM. The programs that are being used, of which 

I don’t have any specific knowledge, are key to today’s technology 

and to the terrorist organizations, wherever they may be. It’s obvious, just as the years unfolded after 1978, that the intelligence 

threat changed. When we first started using FISA in 1978, the 

overwhelming number of targets were foreign governments, hypothetically, say the ‘‘evil empire’’ and Eastern European Bloc. However, as the world changed and the threat changed, so did the use 

of FISA. And by the time I left the FISA program, the balance between international terrorism and clandestine intelligence gathering, as the basis for the surveillances, had shifted dramatically 

to international terrorism. 

For example, the FBI has made international terrorism its No. 

1 priority, its No. 1 objective. So if you authorize programs, as opposed to surveillances of specific individuals or specific countries, 

it’s undoubtedly true that over time the programs will have to 

change to meet whatever the intelligence needs of the country are. 

Senator DURBIN. I would just add that I think it goes without 

saying that every Member of the Senate on both sides of the table 

would agree that we want to give this administration the authority 

it needs to keep America safe and intercept all communications 

779

necessary for that to happen. But we thought that we had established a legal process by which any President could use that authority with at least some court approval, carrying on a grand tradition in our country that no Executive could act unilaterally. 

But I am concerned even in passing the Specter law as to whether this President or future Presidents would just ignore it and go 

back to a point made earlier, that a President, as you said earlier, 

would be remiss in surrendering his constitutional authority to a 

statute. If that is the case, then I wonder if, all of our efforts notwithstanding, the President can claim necessary and proper authority or whatever it might be and simply ignore what we have 

done. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Durbin. 

Pardon the interruptions from time to time. We are negotiating 

the immigration bill while this is in process and we are concerned 

about a substitute being offered and vitiating the order for a vote 

on cloture. We have a lot of transactions we have to handle, so 

sometimes we are distracted a little bit, but I want to come back. 

Senator Hatch has another commitment, so I am going to yield to 

him at this point. 

Senator HATCH. Thank you, Mr. Chairman. I appreciate that 

courtesy, and I want to personally thank you all for being here. I 

think you have done a very good job of trying to explain to us these 

principles that you all deal with or have dealt with in the past. 

I am familiar with the program and I have to say that I certainly 

agree with your proposition that the Congress cannot take away 

the President’s power under Section 2 of the Constitution. I would 

even make the argument that the President’s program meets the 

Fourth Amendment requirements of reasonable cause. 

But to make a long story short, I think you have been very helpful to the Committee here today and it has meant a lot to me. As 

you know, I have a tremendous regard for the Federal courts and 

for each of you. I appreciate all the work you are doing, and I do 

think it is a good thing if we can comply with the FISA statute. 

But this current statute is not adequate to take care of the problems that currently exist. I appreciate the distinguished Chairman 

and his efforts to try and come up with a statute that Presidents 

will comply with, or can comply with without taking away inherent 

powers, to use that term, that the President has under Article II 

or otherwise. 

Let me just ask one more question, and I appreciate the distinguished Chairman giving me this opportunity. Again, I will direct 

it to you, Judge Kornblum. I would appreciate anything any of the 

rest of you tremendous judges would care to add. I would just like 

some clarification on a few points. 

Based on your understanding of the law, if the government obtains information through the NSA program, do you believe, as a 

matter of law, that this information can be used in support of applications for a court under the FISA statute? And do you believe 

that any fruit of the poisonous tree arguments are valid? In other 

words, if they actually obtain information that would support applications for a court order under the FISA statute, would the fruit 

of the poisonous tree arguments be valid against that information? 

780

Judge KORNBLUM. I think the answer to both questions is yes. 

As we did in the Ames case, we explained to the FISA court that 

Attorney General Reno had approved six warrantless searches of 

Ames’s home and office at the CIA. We did that in conjunction with 

the applications for continued electronic surveillance of Ames because the FISA statute at that time didn’t permit surreptitious 

searches. The court considered it and approved the electronic surveillances. 

Ames never went to trial. He decided to plead guilty rather than 

have his wife face imprisonment. If he had gone to trial, his attorney, Plato Cacheris, would undoubtedly have challenged all of the 

evidence obtained in the warrantless searches. My personal belief 

is that when I persuaded Attorney General Reno to authorize the 

warrantless searches, she was doing so lawfully under the TruongHumphrey line of cases in the Fourth Circuit, and, of course, Ames 

lived in Northern Virginia, which was in the Fourth Circuit. 

So you had a situation where, in the Ames case, you had 

warrantless electronic surveillance—I am sorry, warrantless physical searches approved by the Attorney General in full conformity 

with the law in the Eastern District of Virginia, and at the same 

time, you had FISA surveillances authorized by the FISA court. I 

think both would have been sustained, but there is an important 

difference between them. 

During the course of the trial, the FISA information, FISA applications would have been protected from discovery because FISA 

has that protective mechanism in it. Defense lawyers never get to 

see FISA applications. On the other hand, the warrantless searches 

authorized by Attorney General Reno would have been subject to 

full discovery, and whatever paperwork Attorney General Reno 

saw, what I had submitted to her would have been subject to disclosure and used by the District Court of the Eastern District of 

Virginia to determine whether the surveillances were lawfully authorized and conducted pursuant to the pre-FISA standard, even 

though it was conducted after FISA came into law, because the 

warrantless search was not available to the Government in the 

FISA statute. 

In the context of the present situation, the warrantless collections now being done by the President will be subject to the same 

discovery, that is, whatever legal mechanism was being authorized 

or was being followed to authorize the collection, if the President 

wanted to go forward with prosecution and use that evidence at 

trial, it would be subject to the Federal Rules of Criminal Procedure through the normal discovery. If the President— 

Senator HATCH. So there would definitely be protections for individuals? 

Judge KORNBLUM. Well, you have the Classified Information Procedures Act to deal with that, and if the situation became unbearable, the President could always withdraw prosecution or exert the 

State Secrets privilege to protect military— 

Senator HATCH. In either event, that would be a protection of the 

person accused? 

Judge KORNBLUM. Yes. Well, the State Secrets Act would, in effect, end the prosecution. 

Senator HATCH. Sure. 

781

Judge KORNBLUM. But the Federal Rules of Criminal Procedure 

would protect any defendant charged with evidence collected in the 

program. 

Senator HATCH. Do you mind, Mr. Chairman, if I ask just two 

more questions? I would be happy— 

Chairman SPECTER. Do I mind if you ask two more questions? 

Senator HATCH. If you do, I won’t. 

Chairman SPECTER. I have already opened the door. Ask all the 

questions you want, Senator Hatch. 

Senator HATCH. Oh, I am just beginning, then. No, I am just kidding. I have two more, and please, any of the other judges who care 

to comment, I am not meaning to just make this a dialog between 

the two of us— 

Chairman SPECTER. You want two more questions and how many 

more answers? 

[Laughter.] 

Senator HATCH. Well, anybody who feels like they should, I 

would be happy to listen to them. I am sure you would, too. 

Judge, do you believe that information obtained under the NSA 

program may be legally used in support of an application for a 

Title 18 warrant where you believe one of the parties has been determined to be an al Qaeda affiliate but is a suspected common—

or has not been determined to be an al Qaeda affiliate but is a suspected common criminal, say such as a drug dealer? 

Judge KORNBLUM. Any determination like that that is faced by 

a district judge in trial is going to be decided under the Federal 

Rules of Criminal Procedure and the protective mechanisms of the 

Classified Information Procedures Act. There is no way to predict 

what the facts are and the district judge would be faced with making that decision. 

Chairman SPECTER. Well, under Senator Hatch’s hypothetical, if 

one of the parties to the conversation is not al Qaeda, that is outside of the President’s purview. The Attorney General hasn’t told 

us much, but he has told us that one party to the conversation is 

in the United States and one is overseas, but at least one is al 

Qaeda. So when Senator Hatch poses the hypothetical that neither 

is al Qaeda, how could that be justified under the President’s program? 

Senator HATCH. Or even if one is al Qaeda, the foreigner calling 

into the country but talks to a common criminal, couldn’t that be 

used against the common criminal? 

Chairman SPECTER. Well, you have changed the hypothetical 

now to making one al Qaeda. 

Senator HATCH. OK. I kind of thought that was implied. 

Judge KORNBLUM. Whatever the facts are, the standard followed 

by the district judge is going to be that enunciated in the pre-FISA 

decisions. 

Senator HATCH. Right. 

Judge KORNBLUM. That is— 

Senator HATCH. In other words, the criminal will have some element of protection from a civil liberties standpoint. 

Judge KORNBLUM. I would think the answer was, yes, that a district judge would protect his liberties and he is going to be bound 

by the judicial decisions which define the President’s power. 

782

Chairman SPECTER. How did the criminal have protection when 

the wall was down? The law was established that if you have a foreign intelligence warrant and incidental to that there is evidence 

of a crime, that it is usable. That is the current status of the law. 

Senator HATCH. I am talking about using the current 

warrantless surveillance. 

Chairman SPECTER. You are talking about what, Senator Hatch? 

Senator HATCH. Warrantless surveillance, the warrantless surveillance. 

Judge KORNBLUM. Well, to be admissible— 

Chairman SPECTER. Let us see if we can bring this to a close, 

Judge Kornblum, if you will answer this question. 

Judge KORNBLUM. To be admissible, the evidence would have 

had to have been lawfully seized or lawfully obtained and the 

standard that the district judge would use is that, depending upon 

where this is, is the law in his circuit. In most of the circuits, the 

law is clear that the President has the authority to do warrantless 

surveillance if it is to collect foreign intelligence and it is targeting 

foreign powers or agents. If the facts support that, then the district 

judge could make that finding and admit the evidence, just as they 

did in Truong-Humphrey. 

Chairman SPECTER. Senator Hatch, I am delighted to have a few 

comments, but we are now over 10 minutes and we have another 

panel. 

Senator HATCH. I am happy to discontinue any further questions. 

Chairman SPECTER. Before you leave, Senator Hatch, I want to 

cover one point in your presence, and that is you have been privileged to have been briefed, because you are on the Subcommittee, 

and when you say that you believe that it is constitutional under 

the Fourth Amendment, I have a lot of respect for your legal judgment. I was once an advocate for you for the Supreme Court. But 

under the doctrine of separation of powers, you are not a judge— 

Senator HATCH. That is true, and I may very well be wrong. 

Chairman SPECTER. Well, you may be right or you may be wrong. 

Judges are sometimes right and sometimes they are wrong. 

Senator HATCH. Right. 

Chairman SPECTER. But our system is that the judges make determination of constitutionality. Senators don’t. Even super-lawyer 

Senators like you, Senator Hatch, you don’t make decisions on constitutionality. 

Senator HATCH. Well, we make them every day. The problem is 

that they may not be worth the decisionmaking paper that we 

write them on. 

Chairman SPECTER. I think they are very valuable, but it violates the principle of separation of powers. Senators are not judges, 

and to submit the program to the Intelligence Subcommittee and 

in a context of the statute proposed, to have 45 days of free reign 

for the administration, and then at the end of 45 days, if there is 

sufficient probable cause going to the FISA court, but if there is 

not, to go to the Subcommittee, I don’t know exactly what the Subcommittee does at that point. 

Senator HATCH. Let me just say this much. The administration, 

rightly or wrongly, and that might have to be determined by the 

courts in the final analysis, decided, the President decided that this 

783

program had to be reauthorized every 45 days, that the Chief 

Judge of the FISA court was informed. Eight Members of Congress 

were informed on the program. The question is, is that enough information to be able to resolve the conflict in favor of the President’s argument? 

It may take the courts to decide that, but I see plenty of concern 

here on the panel that you may not know yourselves how that 

should be decided at this particular point. The fact of the matter 

is that we have had people who have been hotly criticizing the 

President for doing what the President feels he had to do to protect 

our Nation and to protect our people from terrorism that could 

amount to very serious consequences, even worse than 9/11. These 

are very important issues. 

The distinguished Chairman, of course, is trying to come up with 

a statute that the Presidents will be happy to comply with that will 

solve the problems and the deficiencies of the current 1978 FISA 

statute. I commend the Chairman for that and I am certainly going 

to try and help him on that. And I commend all of you for being 

as cautious as you are on just how all of this is going to come down 

in the end. 

So, Mr. Chairman, I just want to thank you for allowing me to 

have this little extra time. I know I have taken more than I should 

have, but I just want to, again, express my respect for all of you 

and what you have had to say here. 

Chairman SPECTER. Let me make one more comment, Senator 

Hatch, before you go. 

Senator HATCH. Sure. 

Chairman SPECTER. That is that if there is an order by the FISA 

court that the President feels is wrong and needs to act against, 

he can get a supersedeas. I am going to ask that question, but we 

all know that he can get a supersedeas until there is an appeal. 

It is discretionary with the FISA court, but you would expect in an 

emergency situation there would be a supersedeas. Many have an 

appellate court for FISA. Then if you don’t like what the appellate 

court does, you can get another supersedeas and go to the Supreme 

Court. 

But when the court has ruled, if I understood Judge Kornblum 

correctly, the President can’t disregard it. When the court makes 

a determination on constitutionality and you get to the Supreme 

Court, that is that, don’t you agree, Judge Kornblum? 

Judge KORNBLUM. Yes, I do. 

Chairman SPECTER. That is Marbury v. Madison, 1803, which 

has been followed once or twice. 

I am going to go on to some other lines of questioning, Senator 

Hatch. 

Senator HATCH. Well, just one last point on that. 

Chairman SPECTER. I doubt it, but go ahead. 

[Laughter.] 

Senator HATCH. Judge Kornblum also indicated that the President may be faced with a situation, because of the time constraints 

and so forth—it isn’t just a yes here—where he may have to just 

act in the best interests of the country. That may be upheld by the 

courts and may not be, I don’t know, and neither does anybody else 

here today. But I will tell you one thing. I want my President actVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00791 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
784

ing, as long as it is clear that they have done everything they can 

to comply with the law and where they feel that they have this obligation under Article II of the Constitution. I would want my 

President to protect us. 

Chairman SPECTER. Well, let us— 

Senator HATCH. I think that is the position they have taken 

down there, rightly or wrongly, I personally believe rightly. 

Chairman SPECTER. Well, when you say act, you customarily 

mean some response if the country is in jeopardy, and of course, 

the President should act. 

Senator HATCH. That is right. 

Chairman SPECTER. If you are talking about gathering additional 

intelligence, the President can do that, too, and he has 72 hours 

to go to the court. If he has acted in a way that the court later says 

is illegal, he has gotten the information. He has acted and he has 

that authority under an emergency situation. 

Senator HATCH. All I can say is it is a little bit different in this 

situation from what I know about it. 

Chairman SPECTER. Well, Senator Hatch, would you be willing to 

be a witness so we can really— 

[Laughter.] 

Chairman SPECTER [continuing]. Really find out what is going on 

here? 

Senator HATCH. I think that is what I have been maybe doing, 

I don’t know. I apologize to the Chairman. 

Chairman SPECTER. Judge Brotman, we ended up on my first 

round with your being interrupted on responding to the question 

as to Judge Keenan, and to reconstruct the question, it is in a context of the modern technology and the changes since 1978 when the 

Foreign Intelligence Surveillance Act was passed. Do you think 

that the legislation which I have proposed will be a good balance 

to protect civil liberties and give the Executive sufficient authority 

to protect the country? 

Judge BROTMAN. Well, I do because if you look back over the 

years, the court has reacted to these changes. We have met. We 

have discussed new methods. We have seen them. They talked to 

us about them. We have been able to have a colloquy going back 

and forth, and in instances, we have agreed on a methodology of 

presenting the application within the language that was currently 

in the FISA statute. 

Chairman SPECTER. When— 

Judge BROTMAN. I mean, everything—you can’t keep coming 

back and forth all the time, but in the course of drafting something, and this is the Congress’s function— 

Chairman SPECTER. When— 

Judge BROTMAN [continuing]. In the course of drafting something, the language has to be sufficient to cover. 

Chairman SPECTER. When Senator Hatch was asking questions, 

hypothetical questions about obtaining information from the administration’s program and then using it in the context of an application for a warrant from the FISA court, there was an issue as 

to whether the judge to whom the application goes knows what the 

program is. We know that President Judge Lambreth, or we hear 

that President Judge Lambreth was briefed on the program. We 

785

hear that President Judge Kollar-Kotelly has been briefed on the 

program. But we don’t know about the other judges. We know that 

Judge Robertson resigned and the inference is because he didn’t 

know about the program and wasn’t going to be a party to being 

on the court when there was a program in effect that he didn’t 

know about. It is really very regrettable that we have to speculate 

about anything. 

That is why it seems to me that when you have a court where 

you have expertise and you have the ability to keep a secret, that 

the program ought to be submitted to the court. If Senator Hatch 

is right that it is constitutional, then there oughtn’t to be any hesitancy. When the court makes a ruling and the appellate court 

makes a ruling and then the Supreme Court makes a ruling, that 

is that under our society. That is how we decide that we are a nation of laws. 

We do need to protect the country, and the President has very 

vast authority under Article II. There is no doubt about that. But 

as you have all testified to, that is ultimately a judicial determination. It is rockbed Americana. It is Marbury v. Madison. We are going to take a very short break before the next panel, 

which will be heard more quickly since there won’t be too many 

rounds of questioning, but I want to thank the judges for being 

here. We will take just a recess for a minute or two. 

[Recess.] 

Chairman SPECTER. The Committee will resume. 

Our next witness is Mr. Morton Halperin, who is Senior Fellow 

for the Center for American Progress and Executive Director of the 

Open Society Policy Center. He has a Bachelor’s from Columbia, a 

Ph.D. in international relations from Yale. He served in both the 

Johnson and Nixon administrations in key positions. He served as 

the Director of the Washington Office of the American Civil Liberties Union, a consultant to the Secretary of Defense in 1993. 

That would be the Clinton administration. 

Thank you very much for joining us, Mr. Halperin, and thank 

you for your patience, if you have been patient. We welcome you 

here and look forward to your testimony. 

STATEMENT OF MORTON H. HALPERIN, EXECUTIVE DIRECTOR, OPEN SOCIETY POLICY CENTER, WASHINGTON, D.C. 

Mr. HALPERIN. Thank you very much, Senator. I appreciate the 

opportunity and I appreciate very much the efforts that you have 

made to try to bring this program under FISA and to reestablish 

the system that I think has worked very well, and as we heard 

from the judges, has permitted the intelligence agencies to gather 

the information that we need. 

I agree with you that it is critical that we find a way to bring 

what needs to be done under congressional authorization and judicial review, but I also think, as you have suggested, that Congress 

can’t legislate in the dark. We don’t know what the program is, and 

therefore, it is not possible to tell whether your legislation, even if 

it were enacted, would actually authorize what the administration 

is now doing. I just think it is a fundamental mistake for Congress 

to legislate in this area before it has had a full investigation and 

knows what is being done and before the administration states 

786

what it needs in order to carry on the surveillance that he thinks 

is necessary. 

Chairman SPECTER. Since I am the only Senator present, Mr. 

Halperin, I am going to vary our procedure and ask you a question 

on the point you have just made. In terms of knowing the program, 

my legislation provides for knowledge of the program to the FISA 

court. Why isn’t that sufficient? 

Mr. HALPERIN. Because the problem, Senator, is that you don’t 

just try to find the mechanism, which I think would be difficult to 

do, to say the administration’s current program with the current 

congressional authorization should be reviewed by the court. Your 

bill actually authorizes a program with a standard requiring the 

Attorney General to make a certification to the court that certain 

factual predicates have been met— 

Chairman SPECTER. Well, I disagree with you that we are authorizing the program. We are authorizing the FISA court to review the program. 

Mr. HALPERIN. But with respect, Senator, as I read your bill, you 

are authorizing the FISA court to issue a warrant for the program 

if it meets the standard—if the Attorney General certifies to the 

court that it has met the standard laid out in your legislation. 

Chairman SPECTER. Well, re-read my bill and so will I. That is 

not what is intended. What is intended here, and I think the statute provides what I have intended, and that is for the—we are not 

taking the Attorney General’s certification. We are not going to do 

that. We are going to require that the administration inform the 

FISA court fully what the program is and then the FISA court is 

going to make a determination whether it is constitutional. 

Mr. HALPERIN. Well, Senator— 

Chairman SPECTER. How about that, if the language satisfies 

you? 

Mr. HALPERIN. I think the problem with that is whether the 

FISA court could actually make a ruling, that is, whether there is 

a case in controversy since the administration is not asking for a 

warrant. But if you want to enact a bill that said, the President 

cannot conduct any surveillance except if he gets a warrant from 

the FISA court and it needs to go to the FISA court to see whether 

the court will give it a warrant for this program, I am not sure that 

that is constitutional because you don’t have a specific case in controversy— 

Chairman SPECTER. Well— 

Mr. HALPERIN [continuing]. But that is not what the bill, as 

drafted, as I read it, does. It— 

Chairman SPECTER. We have gone into the issue of advisory 

opinion and we did it here again today and we did it with a panel 

of experts. It is the same analogy. There is no case in controversy 

when the FBI goes to the FISA court and wants a warrant. It is 

an ex parte proceeding and there is no case in controversy. This is 

the analogy, which there is good legal authority is not advisory and 

is not in violation of the case in controversy rule. 

Mr. HALPERIN. Well, that may be, and the court would obviously 

decide that, and I think that is the appropriate case to decide that, 

but I think it is essential, if that is what your intention is, that 

you not draft language which the court may well interpret as auVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00794 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
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thorizing the program. For example, we know the argument that 

is now going on about the military tribunals is that the Congress, 

by providing for judicial review of the military tribunals in the 

court of appeals, the Government is arguing is therefore authorizing military tribunals. The Government would certainly argue, 

based on your legislation, that you had authorized a program and 

authorized the court to grant a warrant for the program if it meets 

the standards set out in your legislation. 

Chairman SPECTER. Well, the Government could argue most anything under any circumstance, but— 

Mr. HALPERIN. No, but— 

Chairman SPECTER [continuing]. But we will take a look at it 

and if you are correct, we will redraft. 

Mr. HALPERIN. OK. Well, I appreciate that, Senator. 

The critical section of your bill that deals specifically with that 

issue is Section 703(a)(7), which as I read it says that the Attorney 

General needs to certify that the program involves listening to 

agents of a foreign power or a foreign power or persons in communication with a foreign power where those persons have attempted 

to engage in terrorist activity, and that I read as an authorization 

of a program. 

Let me suggest an alternative way that it seems to me that Congress might proceed here, which is to say the Attorney General in 

his testimony before this Committee was pressed very hard by Senator— 

Chairman SPECTER. Mr. Halperin, let me set the clock back for 

you for 4 minutes so we will hear you. Senator Biden has arrived, 

so if other members are present, I will proceed informally. Instead 

of the 4-minutes, the floor is yours and then we will move on to 

Mr. Kris and then we will go to rounds of questioning. 

Mr. HALPERIN. My view is that the Congress first, as I said, 

needs to have a full investigation so that it knows what is going 

on. 

Second, I think it needs to insist that if it grants new authority 

to the President, that the President will agree to abide by that authority and again operate within FISA. There is no point in establishing a new procedure if the President takes the position that he 

is not bound by that new authority, as you gave him new authority 

in the PATRIOT Act, but is simply going to engage in whatever additional programs he wants, and I suggest in my bill some statutory changes in the language dealing with criminal penalties and 

civil penalties and the cooperation of the telephone companies 

which would make it absolutely clear, although I think it is unambiguous as Congress drafted it, that Congress intended that there 

be protection from civil and criminal penalties and a requirement 

by the phone companies to cooperate only if the surveillance is pursuant to FISA or Title III if it is a criminal case. 

I also think that you should focus on what the Attorney General 

has identified as the problem, and in his testimony before this 

Committee, when pressed very hard by Senators on both sides as 

to why FISA was not sufficient, the Attorney General gave only one 

example. He said, in an emergency situation, NSA officials do not 

have the time to get to the Attorney General to get him to authorVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00795 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
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ize an emergency surveillance, and that is, I think, a correct reading of the statute. 

So what I would urge you to consider is to, in effect, grant him 

an additional 72 hours so that the Attorney General can establish 

a procedure under which the NSA officials can authorize a surveillance in an emergency. They have 3 days to get to the Attorney 

General. If he agrees, that as he puts it, there is reasonable belief 

that the target is an al Qaeda person, that he can then authorize 

an additional 3 days of emergency surveillance and then he can go 

to the FISA court and get a warrant. 

That seems to me to satisfy the problem that the Attorney General has identified, and if the administration wants to come up and 

identify another problem, then I think the Congress needs to consider that other problem, as well, and assuming that it is constitutional, find a way to fix that problem. But I think to try to legislate 

a solution where the administration has not identified a problem 

that needs to be fixed simply will not solve the problem, which is 

that the administration is moving ahead without getting FISA warrants. 

As you recall, Senator, one of the reasons that we got FISA, and 

I think it has been alluded to before, is that the telephone companies were saying that they wanted clear guidance, and I think administration officials and the FBI and NSA were saying they wanted clear guidance. I think that clear guidance is essential, because 

otherwise, you put FBI agents, NSA agents, and private individuals in jeopardy of civil or criminal penalties if the President is acting not pursuant to the statutory scheme, and you also get leaks. 

I think it is not an accident that we got leaks before FISA was 

enacted because people thought the Presidents were ordering wire 

taps when they should not have done so in both Democratic and 

Republican administrations, and we got leaks of this program because people thought that the President was acting outside the 

law. As far as I am aware, there has not been a single leak of a 

program authorized under FISA, and I think that is because if people in the Government are confident that what is being done is constitutional and following the law as Congress has laid it out, then 

they don’t leak it. 

Therefore, I think it is essential to bring this program under 

those procedures. Thank you. 

Chairman SPECTER. Thank you very much, Mr. Halperin. 

[The prepared statement of Mr. Halperin appears as a submission for the record.] 

Chairman SPECTER. We turn now to Mr. David Kris, who is Senior Vice President, Deputy General Counsel, and Chief Ethics and 

Compliance Officer at Time Warner. He is a graduate of Haverford 

College and has a law degree from Harvard. He served as a law 

clerk to Judge Trott of the Ninth Circuit and was a special assistant for the U.S. Attorney in the District of Columbia. He has had 

a variety of positions in the Department of Justice. 

Thank you for joining us, Mr. Kris, and we look forward to your 

testimony. 

789

STATEMENT OF DAVID S. KRIS, SENIOR VICE PRESIDENT, 

TIME WARNER, INC., NEW YORK, NEW YORK 

Mr. KRIS. Thank you, Senator Specter. Thank you for inviting me 

to testify. I am appearing here only in my individual capacity and 

not as a representative of any current or former employer. 

On the legal issues raised here, I think I am exactly where you 

are. I believe that the NSA surveillance program violates the Foreign Intelligence Surveillance Act. I don’t believe it is permitted 

under the Authorization to Use Military Force. And I don’t know 

whether it is within the scope of the President’s Commander in 

Chief powers because I don’t possess the relevant facts. I was not 

read into this program at DOJ, and I have no classified information 

about its function or its operation. 

Because of the way I analyze the legal issues, I see this as a constitutional moment. I see it as a clash between the expressed will 

of Congress and the actions of the President. And even if those actions are, indeed, constitutionally authorized—as they may be—it 

is not a very appealing state of affairs, at least for the long run. 

So for that reason, I think it is very wise to consider legislation 

that would authorize and regulate the NSA surveillance program 

or something like it. 

Having said that, I don’t know whether legislation actually 

should be enacted, and if it is to be enacted, I don’t know exactly 

what it should say. I think factual ignorance is an impediment not 

only to legal analysis, but also to legislative drafting. 

I have to admit that I spent the weekend on legislative drafting, 

and the result is in my written testimony that I submitted yesterday. I tried in my draft to follow your lead, to use your bill as a 

model and also to stick to three basic principles. 

First, wherever possible, use existing language and structures 

from FISA. I think that will promote a more seamless integration 

of any new law into the old; and it will import into the new law 

the settled understandings of the terms that are used. 

Second, like Mr. Halperin, I believe it is appropriate to accommodate the Government’s needs to the extent that they should be, but 

I would not go beyond those articulated needs, at least without 

knowing what the facts are. 

And third and finally, most important for somebody like me on 

the outside, try to provide something that will be a useful vehicle 

for discussion and debate. My draft is really designed to be modular, almost like Lego. You can snap individual policy pieces in and 

out according to your preferences without disturbing the underlying structure. So the goal was really not so much to stake out a 

strong policy position on any of these issues but just to tee them 

up cleanly for your resolution. 

One of the key issues that we heard discussed this morning concerns the role of judges. Senator Specter, as I understand your bill, 

it would require the FISA court to review not only individual instances of electronic surveillance involving particular targets and 

facilities, as is the case now, but these electronic surveillance ‘‘programs’’ writ large. 

I think that judicial review of that type has a number of advantages to recommend it, among them that I think it would increase 

the public’s confidence in and acceptance of the surveillance. Now, 

790

it raises a couple of constitutional questions, but as laid out in my 

written testimony, I don’t know the answer to those questions and 

I don’t say that they will be ultimately a problem. And it may or 

may not be acceptable in the end to a lawmaking majority. That 

is obviously something that is beyond my ken. 

I do think, however, that your bill is an excellent, concrete, and 

specific vehicle for extended debate, which I assume will ensue. I 

have tried in my written submission and I will try today to contribute to that debate and I hope you find it helpful. Thank you. 

Chairman SPECTER. Thank you very much, Mr. Kris. 

[The prepared statement of Mr. Kris appears as a submission for 

the record.] 

Chairman SPECTER. We appreciate your suggestions on drafting. 

We are open, so we appreciate what Mr. Halperin said earlier. We 

will read and re-read and look for the bill as I have described it. 

Both of you have talked about an investigation so we know what 

the facts are before we legislate. That is a pretty good idea, generally. The President says that Congress leaks, and regrettably, 

that is true. The White House also leaks, and I wouldn’t want to 

get involved in which institution leaks the most. But we do know 

that the court has maintained confidentiality and that is why not 

knowing what the program is, I come to the conclusion that you 

can structure a statute where the administration cannot claim refusal to turn over the program, disclose the facts, because of concern that there will be a leak or inappropriate disclosure. 

Mr. Kris, you say that you have identified constitutional questions and you don’t know what the answers are. You have a firm 

resume as a lawyer. Are you concerned about the advisory opinion 

issue or would you accept the analogy on the ex parte application 

for a warrant would be the same as, in effect, an ex parte application for approval of a program? 

Mr. KRIS. It is interesting. In thinking about this, I actually 

found, with the assistance of a former colleague, an opinion of the 

Office of Legal Counsel from about 1978 that discussed whether 

the original version of FISA satisfied the case or controversy requirement. It made an argument that it did, and I assume that is 

why the legislation was enacted. 

I think much of the reasoning in that opinion would apply to programmatic judicial review as well as individual judicial review. I 

am just not sure that all of it would or exactly what the differences 

would be. I don’t mean to sort of be overly tentative, but I have 

only been thinking about this issue for about 72 hours and I am 

just not quite sure. I assume somebody, OLC or somebody else, can 

take a really hard look at it. Maybe you already have. Maybe this 

panel of experts that you had before have already thought through 

it, in which case that is fine. I really just thought I should flag the 

issue. I see that it was already flagged, and so I didn’t need to. 

Chairman SPECTER. We have taken a hard look at it and we 

have questioned experts. We have some testimony about it this 

morning again that it does not violate the advisory opinion doctrine 

so that we think we are on solid ground. 

Mr. Halperin, let me come back to pursue the discussion which 

you and I had a few moments ago, and that is if you accept a statute which I described, and that is that Congress would authorize 

791

the FISA court to review the administration’s program and make 

a determination of constitutionality, not authorizing the program 

as you are concerned about—and I can understand that. I don’t intend to offer it as a program. I don’t know what the program is. 

I am not about to authorize a program. But I would like to have 

somebody find out what the program is and make a determination, 

and that is a judicial function, in my opinion. It is not the function 

of the Subcommittee on the Intelligence Committee. 

Mr. HALPERIN. I certainly agree with that, Senator. 

Chairman SPECTER. You agree? Well, I am glad we found something to agree on. 

Mr. HALPERIN. No, I agree—I mean, I agree with all your comments on the other bill. I think they have those very serious—that 

they are relying on the Congress to do a judicial function and that 

is inappropriate. 

I would say if you are going to go down that route, you need to 

find a way to require the President to submit the program to the 

FISA court, and I think the only way to do that is to amend FISA 

and the authorization to use military force to reinforce what I 

think is already in the bills, but the administration doesn’t, that 

these are the sole and exclusive means that Congress intends to go 

forward and that nobody is safe from civil or criminal penalties, 

and the phone companies are not directed to cooperate unless the 

program is consistent with FISA. 

Chairman SPECTER. Well, we can legislate. We can pass the bill. 

The President has the authority, obviously, to veto it. If we can 

pass it over his veto, if it comes to that, then we would have authorized the FISA court to examine the program. That is as far as 

we can go. 

Mr. HALPERIN. But the President—the FISA court, I think, even 

under your theory, can’t examine it unless the President brings it 

there, and there is nothing in what the administration has said— 

Chairman SPECTER. If the legislation says the President must 

bring it there— 

Mr. HALPERIN. Not if the President says that beyond whatever—

as I understand the administration’s position, it is beyond whatever Congress says, it has the authority that Congress cannot limit 

in any way to conduct warrantless surveillance whenever it believes it needs to do so. So the first step, I think, has to be either 

to get the administration to concede that if it gets the appropriate 

authority, it will follow the legislative rules, or to find a way to 

compel it to do so. I think, as I understand its position, even if you 

passed this bill over its veto, it would still say, that is fine, but we 

are not bringing any program to the FISA court, and— 

Chairman SPECTER. My time is up and I believe in observing 

time— 

Senator BIDEN. Keep going. 

Chairman SPECTER. No, no— 

Senator BIDEN. There are only two of us. 

Chairman SPECTER. I am going to reserve time. 

Senator BIDEN. I believe in getting ideas out. Keep going. Take 

some of my time. 

Chairman SPECTER. You want to take less than 5 minutes, Senator Biden? 

792

Senator BIDEN. I will take less than 5 minutes, and I will take 

five in my second round. 

[Laughter.] 

Chairman SPECTER. It may be easier to deal with the administration than Senator Biden. 

[Laughter.] 

Senator BIDEN. We would be a lot better off if you were dealing 

with me instead of the administration. 

Chairman SPECTER. I am just going to make a concluding comment. I think there would be a political solution if Congress passed 

this bill over the President’s veto. It would be like the torture 

issue, where when we had it 89 to nine, the President accommodated to it. Of course, there is always a loose end, whatever we do 

around here. As Secretary of State Shultz said, nothing is ever settled in Washington. We have the signing statement, which takes 

away perhaps, or arguably, takes away our authority—we are 

going to have a hearing on that, as to the role of the signing authority, not that what we decide on signing authority will bind the 

President, either, but I think there would be a political answer. 

But if we pass a bill and we pass it over the President’s veto, I 

think there would be a political solution, but as they said in the 

song ‘‘Kansas City,’’ we have gone as far as we can go, and that 

is as far as this Judiciary Committee can go in pushing legislation 

for the Congress. 

Senator Biden? 

Senator BIDEN. Thank you, Mr. Chairman. 

I am not sure of this, but I think it was Professor Corwin who 

said the Constitution is little more than an invitation for the Congress and the President to do battle—I am paraphrasing—over the 

conduct of foreign affairs. We have retreated from the battlefield. 

This is a constitutional moment. This administration has virtually 

no credibility. And here we are—the Chairman’s bill is a solid bill. 

But here we are as a Congress as a whole just refusing to engage 

in that contest. 

I think if anybody gets censured, it should be the Intelligence 

Committee for failing to do its responsibility. I am serious about 

that. I think this idea of censuring the President, at this point, we 

don’t know what he did. I mean, Mr. Kris, your phrase, if I can find 

it here, is that ‘‘it is difficult to analyze a surveillance program, 

and almost impossible to comment on legislation to regulate such 

a program, without knowing the facts.’’ 

You have Stuart Taylor, which I think is kind of interesting, a 

well respected commentator and a newsperson saying the following. 

He is saying that the administration argument about tipping our 

hand to terrorists by telling the Intelligence Committee, because no 

oversight is appropriate, and he quotes and he says, it is ‘‘utterly 

unpersuasive and rather alarming. Carried to its logical conclusion, 

it would argue for ending all congressional oversight and censoring 

of media coverage of all sensitive intelligence and defense activities.’’ That is it in a nutshell, flat out. What are we doing here? 

What are we doing here? 

We are talking about the courts. You know, there is a third 

branch of government called the Congress, and the idea that I am 

going to delegate to the courts, as well as the administration, someVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00800 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
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thing as fundamental to the security of my country to make a substantive judgment of whether what they are doing makes sense—

not merely whether it is legal, does it make sense—does it make 

sense—what have we become? What has happened to the notion 

that this is something that the people have a right to have input 

on? It is bizarre. It is absolutely bizarre. 

Now, I agree with the Senator. He is being practical. He is being 

practical about this. We have a Judiciary—look, I was there when 

we wrote FISA. I was on the Intelligence Committee and on the 

Foreign Relations Committee. Somebody tell me that the risk of 

leakage at the time we were talking about the location of SS–18 

Soviet mobile missiles that the Soviets were in the process of pursuing and all the intelligence that we were engaged in around the 

world, that it was less dangerous then than it is today? Nothing 

got leaked. We held a year of oversight hearings, roughly, and then 

the Judiciary Committee, which I was also a member of, interfaced 

with the intelligence community when we came up with a thing 

called FISA. 

So what I find absolutely amazing here is that we are essentially 

in this constitutional moment being required to say, it is really not 

practical. There is not practically much we can do. We don’t have—

here is my question. Does anybody think, are either of you convinced that the Attorney General knows the extent of the program? 

What do you think? I am not being facetious. 

I asked him the question under oath. He was here and I asked 

him the question, Mr. Chairman, can you assure us the program 

you described is the only program that exists? And if my recollection is correct, he said no. I don’t even believe the Attorney General 

of the United States of America knows the extent of this surveillance program and I find it breathtaking, breathtaking, the arrogance of this administration concluding that. 

A group of people we do not even know—they do not name them, 

they will not tell us who they are—they are supposedly, quote, ‘‘experts on terror,’’ making judgments on the spot, as explained to us, 

as to upon whom to eavesdrop, and then no assurance or any program demonstrating how they mitigate information that they have 

gathered. This is like Alice in Wonderland. This is like Alice in 

Wonderland. And then this malarkey about, well, you know, if you 

raise questions about this, you want to support the terrorists. 

So do you think the Attorney General of the United States, do 

either of you think he knows the full extent of this program? 

Mr. HALPERIN. He certainly—I mean, he certainly doesn’t because he was asked questions like, who is it in NSA that can authorize this, and that question he actually answered and said he 

didn’t know. So I think it is clear that he doesn’t know. 

It is also, I think, clear if you look at the cases that authorized 

warrantless electronic surveillance prior to the enactment of FISA 

and the Ames case that the administration likes to talk about so 

much, they all turned and pawed on the fact that these were personal judgments by the Attorney General of the United States. 

There is no case that suggests that a nameless NSA official who 

is not confirmed by the Congress has the authority to make a determination of a warrantless surveillance of a United States perVerDate 0ct 09 2002 12:11 Aug 03, 2006 Jkt 027443 PO 00000 Frm 00801 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\27443.TXT SJUD4 PsN: CMORC
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son. So at the very least, I think there is a statutory infirmity 

there. 

But I think that the Congress has to act, in my view, on what 

the Attorney General said. He said, here is a specific problem. I 

think the Congress could react to that specific problem. But I think 

it would be a mistake to try to guess. 

And Senator, if I may, Section 704(3) of your bill says that the 

FISA court shall issue an ex parte order if it finds that there is 

probable cause, and then it lays out a standard of probable cause 

of what. That is a new standard that doesn’t appear in FISA, and 

as I read it, as I say, that is an authorization to the FISA court 

to conduct surveillance under that standard, and none of us have 

any idea whether that standard is what the administration is using 

on this program. That is the concern I have that the bill is an authorization. 

Senator BIDEN. One more question. In full disclosure, I am one 

of those unnamed congressional offices you referred to in talking to 

you about this legislation. Is there a way that would make sense, 

not for the purpose of compromise but for the purpose of being 

more comprehensive, is there a way of marrying and/or dealing 

with both the approach of giving the Attorney General what he 

says is the only impediment that he named, was that he is just effectively inundated and you don’t have time to make these judgments by extending the time available to the Attorney General’s office and the approach that the Chairman is pursuing? 

Mr. HALPERIN. Yes, I think there is. I mean, as I now understand 

the Chairman’s approach, it is to try to find a constitutional way 

to bring before the FISA court the President’s program as a program not authorized by Congress and to let the court make a judgment about whether that is constitutional or not. 

I think the press reports suggest the court has already done that, 

that is that the court, according to the press, told the administration not to bring warrants for FISA surveillance based on this program, and that is another way, of course, that the FISA does make 

this judgment. If they have, in fact, told the administration—and 

I don’t know whether that is true, it has certainly been reported 

in the press—but I think you also have to find a way to compel the 

President to do it, and I suggest in my testimony by rewriting 

those provisions so that you send a clear message to the telephone 

companies that whatever authorization or certification the Attorney 

General has given them isn’t worth anything unless it is pursuant 

to a FISA warrant or the exceptions that are actually in FISA for 

emergencies. 

I think if you did those two things coupled with a sunset provision and a requirement for a full investigation, that this would be 

a way to move it forward. So I would think it should be possible 

to merge these two approaches and I would hope that you would 

look at them. 

Senator BIDEN. I would conclude by saying, Mr. Chairman, I 

truly appreciate your willingness not to let this issue just go away. 

No one else, nobody else in the Congress with any authority, is 

doing anything constructive, nobody but you. You are the sole 

source of any constructive attempt to deal with this problem. So 

please do not read my frustration as anything having to do with 

795

my frustration with you. It is not. I understand that the truth of 

the assertion that the only thing that is going to change this administration’s mind is a political judgment reached by the U.S. 

Congress and confronting the President where he politically concludes it is not in his interest to continue to pursue the avenue he 

is on without any consultation with anybody. 

So you are right on the practical and probably right on the substance, as well. What frustrates me, I never thought I would sit 

here after 33 years, from Richard Nixon to this guy, to President 

Bush, and find ourselves in the posture where we are literally paralyzed from having any notion about having any idea, and I am 

supposed to accept and others accept the word of Dick Cheney, accept the word of the President, trust me? Trust me? 

Thank you for the time, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Biden, and thank you, 

Mr. Halperin and Mr. Kris. Senator Biden and I intend to pursue 

this matter. 

Senator BIDEN. Indeed, we do, and I would like to work with you 

in pursuing it. 

Chairman SPECTER. I intend to bring this bill up on the Executive Calendar on Thursday, and Senator DeWine’s bill at the same 

time. I want to vote these bills out of Committee and I am going 

to press the Majority Leader to list them for argument in the Senate and move ahead. 

The testimony we had today was powerful. We had five judges 

testify, four former judges of the Foreign Intelligence Surveillance 

Court testified that this bill is an appropriate way to determine 

constitutionality of the program. They talk about probable cause 

and they talk about minimization and they are experienced. Judge 

James Robertson, the judge who resigned from the FISA court, submitted a letter, which I read the key part into the record. In addition, Magistrate Judge Kornblum, who has been involved in 10,000 

applications under the FISA statute—very extensive experience 

going back to your work, Senator Biden, back in 1978, and their 

testimony is powerful, powerful, powerful, in my opinion. 

We have given the administration a chance to be heard, and the 

Attorney General came. We invited them to come into this hearing 

today. We have had three hearings in 22 days, which is pretty good 

for this Committee. We heard the Attorney General on March 6 

and we had a panel of experts in in the interim and then this hearing today and we are going to mark it up and we are going to bring 

it to the floor of the U.S. Senate. 

There is no question about the fact that the tradition in this 

country is to have judicial review before there is an electronic surveillance. There is no question about that. And the Foreign Intelligence Surveillance Act gave exclusive authority to the FISA court, 

and I understand constitutional law, that if the President has 

power under Article II, it trumps the statute. Now, I want a determination made as to whether, looking at the program from the judiciary, it is constitutional. Congress can’t do more than pass a law 

or exert political pressure and this is the avenue. 

We are spawning a censure motion. There is no showing that the 

President acted in bad faith, and he may well have the constitutional authority. We can’t determine that. 

796

I wanted to add a panel here today, Senator Biden, because this 

issue bears on the censure motion and I asked Senator Feingold to 

be prepared to have a panel today and he demurred. He was in 

Iraq. We had a long hearing yesterday on immigration and he was 

in town to vote, but he wasn’t in town for the Judiciary Committee 

meeting. I scheduled a hearing for Friday and he wants it postponed. I have got a letter, as soon as I get back to my office.—I 

have been engaged in this since 8:30 this morning—I am going to 

say no, and I am going to put that on the calendar for Thursday. 

Next week, we are going to be on the immigration bill. When we 

come back after the Easter recess, we have many hearings on the 

reauthorization of the Voting Rights Act, and the orderly processing of the Judiciary Committee is something the Chairman has 

to determine. 

I know you would agree with that, Senator Biden, because you 

were the Chairman and you ran a good Committee. You were the 

Chairman from 1987 to 1995. The 1994 election changed that— 

Senator BIDEN. I am so happy you are the Chairman now and 

not me. 

[Laughter.] 

Chairman SPECTER. Well, I am happy, too. 

[Laughter.] 

Chairman SPECTER. But I want to deal with the censure motion. 

Senator Feingold went to the Senate floor and got unanimous consent for 25 minutes to speak on it, and I knew he was going to be 

there so I got 25 minutes, and after he berated the President for 

25 minutes, I wanted to have a discussion with him about it and 

he left the chamber after I asked him to stay. I sent Mike O’Neill, 

my General Counsel, after him. I thought that after 25 minutes of 

berating the President, there ought to be some discussion about it. 

I know that is not reasonable, but that is what I thought, so I took 

my 25 minutes ex parte. But there will be a day when we will be 

in the same room discussing the matter. 

But I think today’s hearing advances the ball. How much it advances the ball, nobody can tell, but the ball is being advanced. The 

ball is moving forward and I appreciate your testimony today, the 

endorsement by Mr. Kris and the qualified endorsement by Mr. 

Halperin, and thank you for coming, Senator Biden. 

That concludes our hearing. 

[Whereupon, at 2:33 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow]. 

[Additional material is being retained in the Committee files.]

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Æ


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