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Gonzales Grilled at Senate Hearing, Defends NSA Spy Program

February 07, 2006


Albert Eisele

co-founder and editor at large of the Hill newspaper in Washington, D.C. He is the author of a dual biography of Hubert Humphrey and former Sen. Eugene McCarthy called "Almost to the Presidency" written in 1979. He was a Washington correspondent for the St. Paul Dispatch and Pioneer Press and Knight-Ridder before becoming press secretary to Vice President Walter Mondale.

Tom Hayden

former California State Senator. He lead the demonstrations at the 1968 Chicago Democratic Convention. Hayden and others were charged with conspiracy and inciting to riot in the famous trial known as the trial of the "Chicago Seven."

Republican and Democratic Senators questioned Attorney General Alberto Gonzales on Monday over the Bush administration’s right to spy on Americans citizens without court order. We play excerpts of the hearings. [includes rush transcript]

Yesterday’s hearings got off to a testy start when some Democrats on the Committee asked that Gonazales be sworn in before his testimony. The Republican Chairman of the committee, Arlen Specter, declared it wasn’t necessary and allowed the hearings to proceed without a swearing in.

We turn now to excerpts of the hearings. Senator Arlen Specter started the questioning by asking why the administration insists on bypassing the FISA court, which has the power to legally authorize government wiretaps.

  • Sen. Arlen Specter (R-PA), Judiciary Committee Chairman Arlen Specter questioning Attorney General Alberto Gonzales.

Wisconsin Senator Russ Feingold also asked pointed questions of Gonzales and accused him of lying under oath during his nomination hearings to become attorney general.

  • Sen. Russ Feingold (D-WI), questioning Attorney General Alberto Gonzales.

Vermont Senator Patrick Leahy posed some of the toughest questions to Gonzales.

  • Sen. Patrick Leahy (D-VT), questioning Attorney General Alberto Gonzales.


This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Senator Arlen Specter started the questioning by asking why the administration insists on bypassing FISA court, which has the power to legally authorize government wiretaps.

SEN. ARLEN SPECTER: Mr. Attorney General, starting with the FISA court, well respected, maintains secrecy, experienced in the field — and 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?

ALBERTO GONZALES: Senator, I totally agree with you that the FISA court should be commended for its great service. They’re working on weekends, they’re working at nights.

SEN. ARLEN SPECTER: Now, on to my question.

ALBERTO GONZALES: They’re —- assistance in the war on terror. In terms of why not go to the FISA court, once a 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 -—

SEN. ARLEN SPECTER: Okay, you think you’re right. But there are a lot of people who think you’re wrong. As a matter of public confidence, why not take it to the FISA court? What do you have to lose if you’re right?

ALBERTO 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.

SEN. ARLEN SPECTER: Well, speaking for myself, I would urge the President to take this matter to the FISA court. They’re experts. They’ll 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?

ALBERTO GONZALES: I do not know why Judge Robertson resigned, sir.

SEN. ARLEN SPECTER: Has the FISA court declined to consider any information obtained from this program when considering warrants?

ALBERTO 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 —

SEN. ARLEN SPECTER: So, if you have information that you’re submitting to the FISA court in support for a warrant, you tell them that it was obtained from this program?

ALBERTO GONZALES: Senator, I am uncomfortable talking about how this — in great detail about how this information is generally shared. What I can say, as I 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, so that -—

SEN. ARLEN SPECTER: I’m not asking you how you get the information from the program. I’m asking you: Do you tell the FISA court that you got it from the program? I want to know if they’re declining to issue warrants, because they’re dissatisfied with the program.

ALBERTO GONZALES: Senator, I’m 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 very open, very candid discussion and relationship with the FISA court. To the extent that we’re involved in intelligence activities that relate in any way to the FISA court and they have questions about that, we have discussion 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 effect decisions that they make.

SEN. ARLEN SPECTER: I’m not going to press you further. But I would ask you to reconsider your answer.

AMY GOODMAN: That was Senate Judiciary Committee Chair Arlen Specter questioning Attorney General Alberto Gonzales. Wisconsin Senator Russ Feingold also pointed questions of Gonzales and accused him of lying under oath during his nomination hearings to become Attorney General.

SEN. RUSS FEINGOLD: — 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. 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.

ALBERTO GONZALES: Senator, I told the truth then. I’m 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.

SEN. RUSS 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 that was a hypothetical, you knew it was not a hypothetical, and you were under oath at the time.

AMY GOODMAN: That was Wisconsin Senator Russ Feingold. Vermont Senator Patrick Leahy posed some of the toughest questions to Gonzales.

SEN. PATRICK LEAHY: Apparently then, according to your interpretation, Congress, a lot of Republicans and a lot of Democrats disagree with you on this, when we voted for the authorization for military force, that we’re authorizing warrantless wiretapping. Did we — were we authorizing you to go into people’s medical records here in the United States, by your interpretation?

ALBERTO GONZALES: Senator, whatever the limits of the President’s authority, given by — under the authorization to use military force and his inherent authority as Commander-in-Chief in a time of war, it clearly includes the electronic surveillance of the enemy.

SEN. PATRICK LEAHY: Well, just let note that you did not answer my question. But here, you also said: ’We’ve 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’s your statement, alright? Who told you that?

ALBERTO GONZALES: Senator, there was discussion with a bipartisan group of Congress, leaders in Congress, leaders of the Intel Committee, 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.

SEN. PATRICK LEAHY: When did they give you that advice?

ALBERTO GONZALES: Sir, that was sometime in 2004.

SEN. PATRICK LEAHY: Ah, three years later. I mean, you’ve been doing this wiretapping for three years, and then they — suddenly you come up here and say, 'By the way, guys, can we have a little bit of authorization for this?' Is that what you’re saying?

ALBERTO GONZALES: Sir, it’s always been our position that the President has the authority under the authorization to use military force and under the Constitution.

SEN. PATRICK LEAHY: It’s 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 of 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 couldn’t write a law that would allow you to go after al-Qaeda in the way you’re talking about?

ALBERTO GONZALES: Sir, I don’t believe there were any discussions with any of the members of the Judiciary Committee —

SEN. PATRICK LEAHY: Even though we’re 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.

ALBERTO GONZALES: We had discussions —

SEN. PATRICK LEAHY: Does this sound like a CYA on your part? It does to me.

ALBERTO GONZALES: We had discussions with a bipartisan leadership of the Congress about this program.

SEN. PATRICK LEAHY: But not in front of this committee. We have both Republicans and Democrats on this committee, you know.

ALBERTO GONZALES: Yes, sir, I do know.

SEN. PATRICK 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, it’s been talked 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’re obviously not telling us.

ALBERTO GONZALES: Sir, we have advised bipartisan leadership of the Congress and the intel committees about this program.

SEN. PATRICK LEAHY: Well, did you tell them that before the passage of the USA PATRIOT Act?

ALBERTO 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.

SEN. PATRICK LEAHY: Okay, 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 said that the President’s program of spying on Americans without warrants was shut 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?

ALBERTO GONZALES: Sir, you’re asking me about the operations of the program. I’m not going to give you —

SEN. PATRICK LEAHY: Of course. I’m 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 emails under this — let me finish — under this authority, if he feels it involves al-Qaeda activity? I’m talking about within this country, under this authority you have talked about, does he have the power, under your authority, to wiretap Americans within the United States if they’re involved in al-Qaeda activity?

ALBERTO GONZALES: Sir, I have been asked this question several times.

SEN. PATRICK LEAHY: I know, and you’ve had somewhat of a vague answer, so I’m asking again.

ALBERTO GONZALES: And I’ve said that that’s — that presents a different legal question, a tough —- 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’re talking about here. That is not what the President has -—

SEN. PATRICK LEAHY: Are you doing that?

ALBERTO GONZALES: — authorized.

SEN. PATRICK LEAHY: Are you doing that?

ALBERTO GONZALES: I can’t give you assurances. It’s not what the President has authorized —

SEN. PATRICK LEAHY: Are you doing that?

ALBERTO GONZALES: — with this program.

SEN. PATRICK LEAHY: Are you doing that?

ALBERTO GONZALES: Senator, you’re asking me again about operations of what are we doing.


AMY GOODMAN: Vermont Senator Patrick Leahy questioning Attorney General Alberto Gonzales at Monday’s hearings before the Senate Judiciary Committee.

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