Hartsongs

LEAHY: Let me just ask you a few questions that could easily be answered yes or no.
I'm not asking about operational details, I'm trying to understand when the administration came to the conclusion that the congressional resolution authorizing military force again Al Qaida, where we had hoped that we would actually catch Osama bin Laden, the man who hit us -- but where 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 14th, 2001?

GONZALES: Senator, what I can say is that the program was initiated subsequent to the authorization to use military force.

LEAHY: Well, then, let me...

GONZALES: And our legal analysis was completed prior to the authorization of that program.

LEAHY: So your answer is you did not come to that conclusion before the Senate passed the resolution on September 14th, 2001?

GONZALES: Sir, I certainly had not come to that conclusion. There may be others in the administration who did.

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

GONZALES: Senator, sitting here right now I don't have any knowledge of that.

LEAHY: Were you aware of anybody coming to that conclusion before the president signed the resolution on September 18th, 2001?

GONZALES: No, sir.
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...

LEAHY: Mr. 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 Qaida, and especially to go after Osama bin Laden, the man that we all understood masterminded the attacks, the man who's still at large.

LEAHY: 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 18th, 2001? You were the White House counsel at the time.

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.

LEAHY: When was that?

GONZALES: It was subsequent to the authorization to use military force.

LEAHY: When?

GONZALES: Sir, it was just a short period of time after the authorization to use military force.

LEAHY: Was it before or after NSA began its surveillance program?

GONZALES: Again, the NSA did not commence the activities under the terrorist surveillance program before the president gave his authorization.

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.

LEAHY: So NSA didn't do this until the president gave them the green light that they could authorize warrantless wiretapping of Americans inside the United States, under the circumstances you described in your earlier testimony.

GONZALES: Of course, Senator, the NSA has other authorities to engage in electronic surveillance, and I'm told that they...

LEAHY: I understand that. But I'm talking about the specific program.

GONZALES: ... and I'm told they took advantage of those authorities.

But it's my understanding -- and I believe this to be true -- that the NSA did not commence in the kind of electronic surveillance which I am discussing here today prior to the president's authorization.

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 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?

GONZALES: Sir, I don't know. I don't know when he gave you those proposals.

LEAHY: Well, we enacted the USA Patriot Act in October 2001. And you were there at the signing ceremony. 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?

GONZALES: I'd have to go back and check. I don't know.

LEAHY: OK, you're going to back here this afternoon. Please check because I'll ask you this question again, and you'll have a chance to ask. I'm looking around the room, you've got an awful lot of staff here. Let's have that answer before.

You were there when he signed the act. Let us know when his first authorization -- whether it was before or after he signed that act.

GONZALES: Sir, may I make a statement?

We believe the authorization to use military force constituted statutory grant of authority to engage in this kind of surveillance and therefore...

LEAHY: Did you, with the first...

GONZALES: ... wouldn't be necessary to seek an amendment to FISA through the Patriot Act.

LEAHY: OK. My question still remains, and I, like Senator Specter, I want -- I'm trying to ask these basic things you could answer yes or no.

You talk about authorization for use of military force. We have a chart up over there; says that, "The president is authorized to use all necessary and appropriate force against those nations, organizations of persons that he determines planed, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001, or harbored such organizations of persons, in order to prevent future acts of international terrorism against the United States by such nations, organizations or persons."

Now, basically, what you're saying is that Congress must have 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 prosecutors here, we know what a wiretap statute looks like. This is not it.

So let me ask this: Under that logic, is there anything that stops you from wiretapping without a warrant somebody inside the United States that you suspect of having Al Qaida connections?

GONZALES: Clearly, Senator, that is not what's going on here, first of all.

The president had authorized a much more narrow program.

GONZALES: 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.

LEAHY: Well, Mr. Attorney General, we're getting the impression that this administration's, kind of, picking and choosing what they are subject to.

Can you show us in the authorization for use of military force what is the specific language you say that's authorizing wiretapping of Americans without a warrant?

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.

LEAHY: But there wasn't a law -- they didn't have a law specifically on this.

GONZALES: Sure they did, sir.

LEAHY: Using the Jackson test, they have a law on wiretapping. It's called FISA. It's called FISA. And if you don't like that law, if that law doesn't work, why not just ask us?

GONZALES: Sir, there was a law at question in Hamdi. It was 18 USC 4001(a). And that is: You cannot detain an American citizens except as authorized by Congress.

And Hamdi came into the court saying, "The authorization to use military force isn't 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.

SPECTER: Well, then, let me ask you this.

Under your interpretation of this, can you go in and do mail searches? Can you go into e-mails? Can you open mail? Can you do black-bag jobs?

And under the idea that you don't have much time to go through what you described as a cumbersome procedure, what most people think is a pretty easy procedure, to get a FISA warrant, can you go and do that of Americans?

GONZALES: Sir, I've tried to outline for you and the committee what the president has authorized, and that is all that he has authorized.

LEAHY: Did it authorize the opening of first-class mail of U.S. citizens? That you can answer yes or no.

GONZALES: There is all kinds of wild speculation about...

LEAHY: Did it authorize it?

SPECTER: Let him finish.

GONZALES: There is all kinds of wild speculation out there about what the president has authorized and what we're actually doing. And I'm not going to get into a discussion, Senator, about...

LEAHY: Mr. Attorney General, you're not answering my question. I'm not asking you what the president authorized.

Does this law -- you're 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?

GONZALES: Senator, I think that, again, that is not what is going on here.

We're only focused on international communications where one part of the communication is Al Qaida. That's what this program is all about.

LEAHY: You haven't answered my question..

Well, Mr. Chairman, I'll come back to this. And the attorney general understands there's some dates he's going to check during the break, and I'll go back to them.