[Senate Hearing 110-462]
[From the U.S. Government Printing Office]
S. Hrg. 110-462
DEPARTMENT OF JUSTICE OVERSIGHT
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
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APRIL 19 AND JULY 24, 2007
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Serial No. J-110-28
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Printed for the use of the Committee on the Judiciary
DEPARTMENT OF JUSTICE OVERSIGHT
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
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APRIL 19, 2007
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., a U.S. Senator from the State of Delaware,
prepared statement............................................. 188
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 210
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 190
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 6
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 7
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 4
WITNESS
Gonzales, Alberto R., Attorney General of the United States,
Department of Justice.......................................... 7
QUESTIONS AND ANSWERS
Responses of Alberto R. Gonzales to questions submitted by
Senators Leahy, Specter, Kennedy, Durbin, and Schumer.......... 96
SUBMISSION FOR THE RECORD
Gonzales, Alberto R., Attorney General of the United States,
Department of Justice, statement and attachment................ 192
Hertling, Richard A., Acting Assistant Attorney General,
Department of Justice, Washington, D.C., letter................ 213
JULY 24, 2007
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 219
prepared statement........................................... 580
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 222
WITNESS
Gonzales, Alberto R., Attorney General of the United States,
Department of Justice.......................................... 224
QUESTIONS AND ANSWERS
Responses of Alberto R. Gonzales to questions submitted by
Senators Leahy, Specter, Kennedy, Biden, Feinstein, Feingold,
Schumer, Durbin and Grassley................................... 287
SUBMISSION FOR THE RECORD
Gonzales, Alberto R., Attorney General of the United States,
Department of Justice.......................................... 554
DEPARTMENT OF JUSTICE OVERSIGHT
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THURSDAY, APRIL 19, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 9:33 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein,
Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch,
Grassley, Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. This week, like all
Americans, we join in mourning the tragic killings at Virginia
Tech on Monday. The innocent lives of students and--before we
start, I notice some people holding up signs. A lot of people
have stood in line a long time to be here. This is an important
hearing. I would ask that people be polite enough not to hold
up something and block those who have waited in line, waited to
be at this hearing. Certainly anybody can be here, but I will
not allow anyone, no matter what positions they may be taking,
to block the view of others who have a legitimate right to be
here.
As I said, we join in mourning the tragic killings at
Virginia Tech. The innocent lives of students and professors
are a terrible loss to their families, their friends, and their
community. It affects us all. We honor them and mourn their
loss. My family and I hold them in our prayers and our
thoughts.
I expect in the days ahead, as we learn more about what
happened, how it happened, and perhaps why it happened, we will
have debate and discussion and perhaps proposals to consider. I
look forward to working with the Department of Justice, with
Regina Schofield, the Assistant Attorney General for the Office
of Justice Programs, the Attorney General, who has offered
briefings, and others to make improvements that can increase
the safety and security of our children and grandchildren in
schools and colleges.
Today the Department of Justice is experiencing a crisis of
leadership perhaps unrivaled during its 137-year history. There
is a growing scandal swirling around the dismissal and
replacement of several prosecutors, and persistent efforts to
undermine and marginalize career lawyers in the Civil Rights
Division and elsewhere in the Department.
We hear disturbing reports that politics played a role in a
growing number of cases, and I have warned for years against
the lack of prosecutorial experience and judgment throughout
the leadership ranks of the Department. We are seeing the
results amid rising crime and rampant war profiteering,
abandonment of civil rights and voting rights enforcement
efforts, and lack of accountability. I fear the Justice
Department may be losing its way.
The Department of Justice should never be reduced to
another political arm of the White House, this White House or
any White House. The Department of Justice must be worthy of
its name. The trust and confidence of the American people in
Federal law enforcement must be restored.
Now, since Attorney General Gonzales last appeared before
this Committee on January 18th, we have heard sworn testimony
from the former U.S. Attorneys forced from office and from his
former Chief of Staff. Their testimony sharply contradicts the
accounts of the plan to replace U.S. Attorneys that the
Attorney General provided to this Committee under oath--under
oath--in January and to the American people during his March
13th press conference.
The Committee is still seeking documents and information
and testimony so that we may know all the facts, the whole
truth, surrounding the replacement of these prosecutors who had
been appointed by President Bush.
One thing abundantly clear is that if the phrase
``performance related'' is to retain any meaning, that
rationale should be withdrawn as the justification for the
firing of David Iglesias, John McKay, Daniel Bogden, Paul
Charlton, Carol Lam, and perhaps others. Indeed, the apparent
reason for these terminations has a lot more to do with
politics than performance.
In his written testimony for this hearing and his newspaper
columns, the Attorney General makes the conclusory statement
that nothing improper occurred.
The truth is that these firings have not been explained,
and there is mounting evidence of improper considerations and
actions resulting in the dismissals.
The dismissed U.S. Attorneys have testified under oath they
believe political influence resulted in their being replaced.
If they are right, the mixing of partisan political goals into
Federal law enforcement is highly improper. The Attorney
General's own former Chief of Staff testified under oath that
Karl Rove complained to Attorney General Gonzales about David
Iglesias not being aggressive enough against so-called voter
fraud, which explains his being added to the list.
With respect to Mr. Iglesias, the former U.S. Attorney in
New Mexico, the evidence shows that he is held in high regard,
considered for promotion to the highest levels of the
Department, and chosen by the Department to train other U.S.
Attorneys in the investigation and prosecution of voter fraud.
Then as the election approached in 2006, administration
officials received calls from New Mexico Republicans
complaining that Mr. Iglesias would not rush an investigation
and indictments before the November election.
True accountability means being forthcoming. True
accountability requires consequences for bad actions. So this
hearing is such an opportunity.
Last November, the American people rejected this
administration's unilateral approach to Government and to the
President acting without constitutional checks and balances.
Rather than heed that call, within days of that election senior
White House and Justice Department staff finalized plans to
proceed with the simultaneous mass firings of a large number of
top Federal prosecutors.
By so doing, they sent the unmistakable message--not only
to those forced out but to those who remain--that the
traditional, independent law enforcement by U.S. Attorneys
would not be tolerated by this administration. Instead,
partisan loyalty had become the yardstick by which all would be
judged.
So I do not excuse the Attorney General's actions and his
failures from the outset to be forthright with us, with these
prosecutors, but especially with the American people.
The White House political operatives who helped spearhead
this plan did not have effective and objective law enforcement
as their principal goal. They would be happy to reduce United
States Attorney's Offices to just another political arm of the
administration.
If nothing improper was done, people need to stop hiding
the facts and tell the truth and the whole truth. If the White
House did nothing wrong, then show us. Show us the documents
and provide us with the sworn testimony--the sworn testimony--
of what was done and why and by whom. If there is nothing to
hide, then the White House should stop hiding it.
Quit claiming the e-mails cannot be produced. Quit
contending that the American people and their duly elected
representatives cannot see and know the truth. And I trust that
after the weeks of preparation for this hearing, the Attorney
General's past failures to give a complete and accurate
explanation of these firings will not be repeated today.
There has always been a tacit and carefully balanced
intersection between politics and our law enforcement system,
but it has been limited to the entrance ramp--the entrance ramp
of the nomination and confirmation process. And instead of an
entrance ramp, this administration seems to have envisioned a
political toll road.
Real oversight has returned to Capitol Hill, and the
investigation of this affair already pulled back the curtain to
reveal unbridled political meddling, Katrina-style cronyism,
and unfettered White House unilateralism that has been directed
at one of our most precious national assets--our law
enforcement and our legal system.
Earlier in this process, it seemed the administration was
concluding that any answer would do, whether it was rooted in
the facts or not. Those days are behind us. Just any answer
won't do anymore. We need the facts, and we will pursue the
facts until we get the truth.
Just as respect for the United States as a leader in human
rights has been diminished during the last 6 years, the current
actions have served to undercut confidence in our United States
Attorneys.
And just as Mr. Gonzales cannot claim immunity from the
policies and practices regarding torture that were developed
under his watch while White House Counsel, he cannot escape
accountability for starting off on this plan to undercut
effective Federal prosecutors and to infect Federal law
enforcement with narrow political goals. His actions have
served to undermine public confidence in Federal law
enforcement and the rule of law. By getting to the truth, we
can take a step toward restoring that trust.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman.
The purpose of this Senate oversight hearing is to
determine this Committee's judgment as to whether Attorney
General Alberto Gonzales should continue in that capacity. We
are mindful of the difficulties and the achievements that
Attorney General Gonzales had to surmount to become a Harvard
Law graduate, become a Texas State Supreme Court Justice, White
House Counsel, and now the chief law enforcement officer of the
United States--a very distinguished record indeed. And we
further appreciate your status as a role model as the first
Hispanic Attorney General and well recall the historic
occasion, January 4, 2005, when you appeared at that table at
your confirmation hearing.
As I see it, you come to this hearing with a heavy burden
of proof to do three things: first, to re-establish your
credibility; second, to justify the replacement of these United
States Attorneys; and, third, to demonstrate that you can
provide the leadership to the United States Department of
Justice, which has such a vital role in protecting our national
interests in so many lines.
Notwithstanding demands for your resignation by Democrats
and Republicans in the U.S. Senate and elsewhere, I have
insisted both publicly and privately that you be given your so-
called day in court to give your responses. You do so in the
context of testimony from a number of people in the Department
of Justice who have contradicted certain of your public
statements.
You earlier said that you were not involved in any
discussions, and then your subordinates testified to the
contrary, that you were at meetings where discussions were
undertaken about the replacement of these U.S. Attorneys.
You then said that you did not see memoranda, and again
your subordinates have testified under oath that you were at
meetings where documents, memoranda, were distributed. And then
you modified your statement about discussions to say that you
were not involved in deliberations. And, again, the testimony
of three of your key subordinates--your former Chief of Staff,
Kyle Sampson; the Acting Associate Attorney General, Bill
Mercer; and the former Director of the Executive Office of U.S.
Attorneys, Michael Battle--who said that you were involved in
deliberations and had done so with some particularity. So that
this is your opportunity, Mr. Attorney General, to tackle that
burden of proof, the heavy burden of proof, to re-establish
your credibility here.
With respect to the removal of United States Attorneys,
there is no doubt that the President can remove U.S. Attorneys
for no reason at all. And President Clinton did just that in
1993 when, in one fell swoop, he removed 93 United States
Attorneys. But there cannot be a removal for a bad reason; that
is, if, as suggestions have been made, U.S. Attorney Lam in San
Diego was replaced because she was hot on the trail of
confederates of former Congressman Duke Cunningham, who is now
serving 8 years in jail. Or a U.S. Attorney may not be replaced
if, as the allegations are made--and until we hear from you,
Mr. Attorney General, I am going to regard them as allegations,
until we hear from you, until we give you an opportunity to
respond. But the allegations were made that U.S. Attorney
Iglesias in New Mexico was removed because he would not
initiate prosecutions which, in his discretion, he felt were
unwarranted.
Now, as you and I know, I have been candid with you in
suggestions as to what you should do. I think that is the role
of a Senator, to be open to discuss the issues candidly, and
you called me on a Saturday, and I wrote to you some time ago
outlining what I thought you had to address. As far as I am
concerned, this is not a game of ``gotcha.'' This is a matter
where we want the facts. We want the hard facts so we can make
an evaluation. And I suggested to you that you make a case-by-
case analysis as to all of the U.S. Attorneys who were asked to
resign; and if you concluded on re-examination that some were
asked to resign improperly, that you ought to say so and even
ought to consider reinstatement. If someone is improperly
removed, there are judicial remedies--not in this case but in
other analogous situations where courts will order
reinstatement. Well, it's pretty hard to unscramble the eggs,
but that is a possibility.
With respect to leadership, no one, short of the Secretary
of Defense, has a more important role in our Government in the
administration of civil and criminal justice than does the
Attorney General of the United States heading the Department of
Justice. In your effort to remove yourself or distance
yourself, as you appear to have done, denying discussions,
denying deliberations, denying memoranda, you face really the
horns of a dilemma, and that is, if you were removed and
actions were taken which were inappropriate, that you were not
really part of, although you have articulated your overall
responsibility as CEO, but not responsible on the judgments,
from the other horn of the dilemma of how you can provide the
leadership if you are detached on such really important
matters. It is a very tough dilemma, I think, that you face.
And I believe you have come a good distance from the day you
said that this is an ``overblown personnel matter'' in the USA
Today article.
So this is as important a hearing as I can recall, short of
the confirmation of Supreme Court Justices, more important than
your confirmation hearing. In a sense, it is a reconfirmation
hearing. And I await your testimony.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Specter.
What I am going to do, the Chairman and Ranking Member of
the appropriate Subcommittee, even though we are holding this
in the full Committee, the Chairman and Ranking Member, Senator
Schumer and Senator Sessions, we are going to grant 2 minutes
each to them, first Senator Schumer and then Senator Sessions,
and then we will go, Attorney General, to your testimony.
Senator Schumer.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Well, thank you, Mr. Chairman. I join you
in mourning the losses at Virginia Tech.
It cannot make anyone happy to have to question the
credibility and competence of the Nation's chief law
enforcement officer. This is, however, a predicament strictly
of the Attorney General's own making, so I would like to make
three points.
First, we must get sincere and direct answers from the
Attorney General. We need clear responses, not careful
evasions. The Attorney General, as we have all read, has been
preparing long and hard for this hearing, so I hope and expect
we will be treated to a minimum of ``I don't recall.'' I hope
we will not get meandering answers that take up time but do not
answer the question. After all this time, if the Attorney
General cannot answer a straightforward, factual question from
a Senator about recent events, how can he possibly run the
Department?
Second, the burden of proof has clearly shifted. Of course,
we are not going to find an e-mail that says, ``Fire Carol Lam
because she is prosecuting Duke Cunningham.'' But when there is
no cogent explanation for most of the firings, when there is
virtually no documentation to support those decisions, when
there are mounting contradictions, when there are constant
coincidences, when those firings occur against a backdrop of
mishaps, missteps, and misstatements by the highest officials
at the Justice Department, what are we to think?
Every lawyer knows that cases are often made without
finding the so-called murder weapon, but are often made on
circumstantial evidence. Here, the circumstantial evidence is
substantial and growing, and the burden is on the Attorney
General to refute it. If the Attorney General cannot give clear
and consistent reasons for each firing, then that burden will
not have been met.
And, third, and finally, I hope we will not hear the
Attorney General continually repeat like a mantra, as if it is
some sort of defense against all inquiry, that the President
can dismiss a U.S. Attorney for almost any reason. If the
President suddenly ordered the firing of every U.S. Attorney
with an IQ over 120 because he did not want smart people in the
job, he is certainly legally permitted to do so. But a Congress
that did not challenge such a silly plan would not be doing its
job, and an Attorney General who would unquestioningly executed
it should not keep his job. The issue is not whether the
administration has the legal power to fire U.S. Attorneys. It
is about how that power has been exercised. Was it used for
proper, prudent reasons or improper political ones? Was it used
wisely or crassly? Was it used with the best of intentions or
the worst?
We do not know all the facts yet. I hope we learn more
today.
Chairman Leahy. Thank you.
Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. This is an
important hearing, and there is politics here, but there are
some very serious problems, Mr. Attorney General. Having served
as United States Attorney for 12 years myself and knowing so
many of those people that have served, they are out there by
themselves having to make tough decisions, and it is important
that they feel like the Department of Justice will back them up
when they are right.
But they are accountable. They are appointed by the
President and can be removed by the President. And there are a
lot of important issues that United States Attorneys must be
engaged in, such as illegal gun use, corruption, terrorism,
immigration. They have to be held to account for the
performance of those duties.
It is a tough job for United States Attorneys, and I would
say for the Attorney General, it is a very tough job. Ask John
Ashcroft. Ask Janet Reno. It is not easy, the job that you
have. It is a great challenge and a very great responsibility.
The integrity of the office you hold must be above reproach. I
know you feel that way. You have said that to me more than once
and said so publicly. But we have got some questions, and those
questions have to be answered.
It does appear that your statements given at the Department
of Justice at a press conference incorrectly minimized your
involvement in this matter. I believe that you should have been
more involved in the entire process. I believe, frankly, you
should have said no. I do not believe this was a necessary
process, particularly the way it was conducted.
I do remember your Chief of Staff toward the end of the
hearing said this: ``In hindsight, I wish that the Department
had not gone down this road, and I regret my role in it.''
I think it has hurt the Department. It has raised questions
that I wish had not been raised, because when United States
Attorneys go into court, they have to appear before juries, and
those juries have to believe that they are there because of
merit of the case and that they have personal integrity.
So this matter has taken on a bit of a life of its own, it
seems. Your ability to lead the Department of Justice is in
question. I wish that were not so, but I think it certainly is.
So be alert and honest and direct with this Committee. Give it
your best shot. You are a good person, and I think that will
show through.
Thank you, Mr. Chairman.
Chairman Leahy. Mr. Attorney General, please stand and
raise your right hand. Do you solemnly swear that the testimony
you will give before this Committee will be the whole truth, so
help you God?
Attorney General Gonzales. I do.
Chairman Leahy. Your full statement will be made part of
the record, and I understand that you have a shortened version
you wish to give, so please go ahead.
STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE
UNITED STATES, DEPARTMENT OF JUSTICE
Attorney General Gonzales. Good morning. Chairman Leahy,
Ranking Member Specter, members of the Committee, I, too, want
to begin by recognizing those who died and were injured on
Monday. The tragic events in Blacksburg have shocked and
saddened Americans who have come together this week to grieve,
to remember, and to try to make sense out of this senseless act
of violence. I offer my prayers and condolences to the victims,
their families, and friends.
I also want to recognize the law enforcement personnel who
bravely responded to the scene. As I watched Monday's events
unfold, I was filled with pride watching men and women risk
their lives and care for victims in the line of duty. Moments
like these underscore my commitment to the mission of law
enforcement and the honor that I have to serve as the Nation's
chief law enforcement officer.
I have provided the Committee with a lengthy written
statement detailing some of the Department's work under my
leadership to protect our Nation, our children, and our civil
rights. I am proud of our past accomplishments in these and
other areas, and I do look forward to future achievements.
I am here, however, to answer your questions, not to repeat
what I have provided in writing. But before we begin, I want to
make three brief points about the resignations of the eight
United States Attorneys, a topic that I know is foremost on
your minds.
First, those eight attorneys deserve better. They deserve
better from me and from the Department of Justice, which they
served selflessly for many years. Each is a fine lawyer and
dedicated professional. I regret how they were treated, and I
apologize to them and to their families for allowing this
matter to become an unfortunate and undignified public
spectacle. I accept full responsibility for this.
Second, I want to address allegations that I failed to tell
the truth about my involvement in these resignations. These
attacks on my integrity have been very painful to me. Now, to
be sure, I have been--I should have been more precise when
discussing this matter. I understand why some of my statements
generated confusion, and I have subsequently tried to clarify
my words. My misstatements were my mistakes, no one else's, and
I accept complete and full responsibility here as well.
That said, I have always sought the truth in every aspect
of my professional and personal life. This matter has been no
exception. I never sought to mislead or deceive the Congress or
the American people. To the contrary, I have been extremely
forthcoming with information. As a result, this Committee has
thousands of pages of internal Justice Department
communications and hours of interviews with Department
officials, and I am here today to do my part to ensure that all
facts about this matter are brought to light. These are not the
actions of someone with something to hide.
Finally, let me be clear about this: While the process that
led to resignations was flawed, I firmly believe that nothing
improper occurred. U.S. Attorneys serve at the pleasure of the
President. There is nothing improper in making a change for
poor management, policy differences or questionable judgment,
or simply to have another qualified individual serve. I think
we agree on that. I think we also agree on what would be
improper. It would be improper to remove a U.S. Attorney to
interfere with or influence a particular prosecution for
partisan political gain. I did not do that. I would never do
that. Nor do I believe that anyone else in the Department
advocated the removal of a U.S. Attorney for such a purpose.
Recognizing my limited involvement in the process, a
mistake I freely acknowledge, I have soberly questioned my
prior decisions. I have reviewed the documents available to the
Congress, and I have asked the Deputy Attorney General and
others in the Department if I should reconsider.
What I have concluded is that although the process was
nowhere near as rigorous or structured as it should have been,
and while reasonable people might decide things differently, my
decision to ask for the resignations of these U.S. Attorneys is
justified and should stand. I have learned important lessons
from this experience which will guide me in my important
responsibilities. I believe that Americans focus less on
whether someone makes a mistake than on what he or she does to
set things right.
In recent weeks I have met or spoken with all of our U.S.
Attorneys to hear their concerns. These discussions have been
open and frank. Good ideas were generated and are being
implemented. I look forward to working with these men and women
to pursue the great goals of our Department. I also look
forward to continuing to work with the Department's career
professionals, investigators, analysts, prosecutors, lawyers,
and administrative staff, who perform nearly all of the
Department's work and deserve the credit for its
accomplishments.
I want to continue working with this Committee as well. We
have made great strides in protecting our country from
terrorism, defending our neighborhoods against a scourge of
gangs and drugs, shielding our children from predators and
preserving the integrity of our public institutions, and recent
events must not deter us from our mission.
I am ready to answer your questions. I want you to be
satisfied, to be fully reassured that nothing improper was
done. More importantly, I want the American people to be
reassured of the same.
Thank you.
[The prepared statement of Attorney General Gonzales
appears as a submission for the record.]
Chairman Leahy. Thank you, Attorney General. Your former
Chief of Staff testified under oath about a conversation which
Karl Rove told you about complaints of former New Mexico U.S.
Attorney David Iglesias and two other U.S. Attorneys were not
being aggressive enough against so-called voter fraud. When did
such a conversation between you and Karl Rove take place?
Attorney General Gonzales. What I recall, Senator, is that
there was a conversation where Mr. Rove mentioned to me
concerns that he had heard about pursuing voter fraud, or
election fraud, in three jurisdictions--New Mexico, Milwaukee,
Wisconsin, and Philadelphia, Pennsylvania, as I recall.
Chairman Leahy. Going back to New Mexico, how many
conversations about New Mexico with Mr. Rove?
Attorney General Gonzales. Senator, I can only recall of
that one conversation.
Chairman Leahy. Do you recall when that was?
Attorney General Gonzales. Senator, my recollection was
that it was in the fall of 2006.
Chairman Leahy. Do you remember where?
Attorney General Gonzales. No, sir, I don't remember where
that conversation took place. And, Senator, I don't recall
either whether or not it was a phone conversation or it was an
in-person conversation, but I do have a recollection of that
conversation.
Chairman Leahy. So when was David Iglesias added to the
list of U.S. Attorneys to be replaced?
Attorney General Gonzales. Of course, Senator, when I
accepted the recommendation, I did not know when Mr. Iglesias
was, in fact, added to the recommended list. As I have gone
back and reviewed the record, it appears that Mr. Iglesias was
added sometime between, I believe, October 17th and December
15th, but I was not responsible for compiling that list.
Chairman Leahy. He was added either before or after the
elections, but you do not know when; is that what you are
saying?
Attorney General Gonzales. Senator, I just responded as to
when I believe--as I have gone back and looked at the
documents, it appears he was added sometime between October
17th and November 15th.
Chairman Leahy. I understand. But you do not know when?
Attorney General Gonzales. Senator, I have no recollection
of knowing when that occurred.
Chairman Leahy. Do you know why he was added?
Attorney General Gonzales. Again, Senator, I was not
responsible for compiling that information. The recommendation
was made to me. I was not surprised that Mr. Iglesias was
recommended to me because I had heard about concerns about the
performance of Mr. Iglesias.
Chairman Leahy. From?
Attorney General Gonzales. Certainly, I had heard concerns
from Senator Domenici.
Chairman Leahy. And who else?
Attorney General Gonzales. Senator, certainly--
Chairman Leahy. And Karl Rove?
Attorney General Gonzales. I heard concerns raised by Mr.
Rove, and what I know today--while I don't recall the specific
mention of this conversation, I recall the meeting--is that
there was a meeting in October with the President in which the
President, as I understand it, relayed to me similar concerns
about pursuing election fraud in three jurisdictions.
Chairman Leahy. When was that?
Attorney General Gonzales. Senator, I have gone back and
looked at my schedule, and it appears that that meeting
occurred on October 11th.
Chairman Leahy. Mr. Iglesias has been described by your
former Chief of Staff as a diverse up-and-comer. He was
reportedly offered the job as the head of the Executive Office
of the United States Attorneys for you here in Washington. He
was selected by the Department of Justice to instruct other
U.S. Attorneys on investigating and prosecuting voter fraud.
This past weekend the Albuquerque Journal reported that when
Senator Domenici told--this is a quote--``Senator Domenici told
Gonzales he wanted Iglesias out in the spring of 2006.'' You
refused--I'm quoting now from the article--``and told Senator
Domenici you would fire Iglesias only on orders from the
President.'' In your testimony that you provided, you
characterize Mr. Iglesias as a fine lawyer, a dedicated
professional, gave many years of service to the Department.
In your March 7th column in USA Today you wrote that he was
asked to leave because he simply lost your confidence. When and
why did he lose your confidence?
Attorney General Gonzales. Senator, Mr. Iglesias, like
these other United States Attorneys, I recognize their service,
I recognize their courage to serve the American people. Mr.
Iglesias lost the confidence of Senator Domenici, as I recall,
in the fall of 2005, when he called me and said something to
the effect that Mr. Iglesias was in over his head, and that he
was concerned that Mr. Iglesias did not have the appropriate
personnel focused on cases like public corruption cases. He
didn't mention specific cases. He simply said public corruption
cases.
I don't recall Senator Domenici ever requesting that Mr.
Iglesias be removed. He simply complained about whether or not
Mr. Iglesias was capable of continuing in that position.
Chairman Leahy. With all due respect, Mr. Attorney General,
my question was not when he may have lost the confidence of
Senator Domenici, my question is when and why did he lose your
confidence?
Attorney General Gonzales. Senator, what I instructed Mr.
Sampson to do was consult with people in the Department.
Chairman Leahy. When and why did he lose your confidence?
Attorney General Gonzales. Based upon the recommendation,
what I understood to be the consensus recommendation of the
senior leadership in the Department, that, in fact, there were
issues and concerns about the performance of these individuals,
that is when I made the decision to accept the recommendation,
and in fact, it would be appropriate to make a change in this
particular district.
Now, the fact that Mr. Iglesias appeared on the list again
was not surprising to me because I had already heard concerns
about Mr. Iglesias's performance.
Chairman Leahy. In a March 21 op-ed in the New York Times,
Mr. Iglesias addressed the reasons he believes he was fired,
and let me just quote from it. These are his words. ``As this
story has unfolded these last few weeks, much has been made of
my decision to not prosecute alleged voter fraud in New Mexico.
Without the benefit of reviewing evidence gleaned from FBI
investigative reports, party officials in my State have said
that I should have begun a prosecution. What the critics, who
don't have any experience as prosecutors, have asserted is
reprehensible--namely that I should have proceeded without
having proof beyond a reasonable doubt. The public has a right
to believe that prosecution decisions are made on legal, not
political, grounds.''
Would you agree with that?
Attorney General Gonzales. I do agree with that.
Chairman Leahy. Justice Department officials, including
your principal associate deputy, Mr. Moschella, has said that
one of the reasons Mr. Iglesias was replaced, was because in
their words he was an absentee landlord, but I understand he
continues his service as an officer of the Naval Reserve, and
in fulfilling his Naval Reserve responsibilities to take him
out of the office approximately 40 days a year. You are aware,
I assume, that the Uniformed Services Employment and
Reemployment Rights Act and other laws prohibit employers from
denying an individual employment benefits because of their
military service?
Attorney General Gonzales. I am aware of that. I support it
strongly, and we enforce that act.
Chairman Leahy. When, how and by whom did this absentee
landlord rationale for replacing Mr. Iglesias arise?
Attorney General Gonzales. Senator, that rationale was not
in my mind, as I recall, when I accepted the recommendation. We
have, of course, several other United States Attorneys who
perform military service. I applaud it and I support it. It
would not be a reason that I would ask a United States Attorney
to leave.
Chairman Leahy. Let me ask you about absentee landlords.
You have a Mr. Mercer who is currently serving as your Acting
Associate Attorney General, and who is U.S. Attorney of
Montana. The Chief Judge out there has been very, very critical
of the way that office is run, the fact that he is gone. How
many days a year does Mr. Mercer stay here serving as your
Acting Associate Attorney General, rather than the job he was
confirmed for?
Attorney General Gonzales. Senator, that is an answer that
I have to get back to you. But I think every United States
Attorney--
Chairman Leahy. Do you have any general idea? I mean is it
like a week, a year, is it several months a year?
Attorney General Gonzales. Senator, let me get back with
you with the most accurate information--
Chairman Leahy. But he is your Associate Attorney General.
I mean, you would certainly know whether it was a week a year
or several months a year, would you not?
Attorney General Gonzales. Senator, I would like to give
you that information, but the main point I want the American
people to understand is that every case is different with
respect to serving in dual-hat capacities. I have heard no one
complain about the fact that Pat Fitzgerald was prosecuting--
Chairman Leahy. I am not talking about Mr. Fitzgerald.
Attorney General Gonzales.--that case while he was still
serving as United States Attorney.
Chairman Leahy. I am talking about an office that the judge
himself says is in disarray in Montana, and Mr. Mercer has
testified that he is in Montana just 3 days a month, 3 days a
month, while he is acting as your Associate Attorney General. I
just mention that because if we are talking about absentee
landlords, sometimes absentee landlords are created by your own
office.
Attorney General Gonzales. Can I respond to that?
Chairman Leahy. Certainly, and then it is Mr. Specter's
time.
Attorney General Gonzales. In my travels talking to the
United States Attorneys, I raise this issue whether or not
dual-hatting continues to be a good idea to a person. I don't
recall any dissent. They all thought it was good. It was good
for the U.S. Attorney to get transparency into the Department
of Justice. They also believed it was important for them to be
able to call someone they knew working the Department of
Justice. Every case is different. It may depend upon how strong
the first assistant is, it may depend upon the strength of the
other chiefs in that office, so every case is going to be
different, Senator. So the fact that someone can do it, like
Mr. Fitzgerald, depends on a lot of different circumstances.
Chairman Leahy. In my State I would be pretty upset if the
U.S. Attorney was there only 3 days a month.
Senator Specter.
Attorney General Gonzales. And, Senator, your views would
be very important. I would be interested in knowing what those
views are.
Senator Specter. Mr. Attorney General, in my opening
statement I raised the issue as to whether you had been candid,
more bluntly truthful in your statements about not being
involved in ``discussions'', not being involved in
``deliberations'', not seeing a memoranda. And in your opening
statement you said two things which appear to me to be carrying
forward this same pattern of being candid. You said that you
were only involved to a limited extent in the process, and then
you say you should have been more precise. It is not exactly a
matter of precision to say that you discussed the issues or
were involved in deliberations and decisions, that is just a
very basic, fundamental fact.
Let me review some of the record with you, and we do not
have much time, but it is necessary to go through it in a
rather summary basis, but I know you are familiar with this
record because I know you have been preparing for this hearing.
Attorney General Gonzales. I prepare for every hearing,
Senator.
Senator Specter. Do you prepare for all your press
conferences? Were you prepared for the press conference where
you said there were not any discussions involving you?
Attorney General Gonzales. Senator, I have already said
that I misspoke, it was my mistake.
Senator Specter. I am asking you were you prepared. You
interjected that you were always prepared. Were you prepared
for that press conference?
Attorney General Gonzales. Senator, I didn't say that I was
always prepared. I said I prepared for every hearing.
Senator Specter. What I am asking you, do you prepare for
your press conferences?
Attorney General Gonzales. Senator, we do take time to try
to prepare for the press conference.
Senator Specter. Were you prepared when you said you were
not involved in any deliberations?
Attorney General Gonzales. Senator, I have already conceded
that I misspoke at that press conference. There was nothing
intentional. And the truth of the matter is, Senator, I--
Senator Specter. Let us move on. I do not think you are
going to win a debate about your preparation, frankly, but let
us get to the facts. I would like you to win this debate,
Attorney General Gonzales. I would like you to win this debate.
Attorney General Gonzales. I apologize, Senator.
Senator Specter. But you are going to have to win it. This
is what some of the record shows, and this is according to
sworn testimony from your former Chief of Staff, Kyle Sampson,
from the Acting Associate Attorney General, Bill Mercer, and by
the former Executive Director of the Office of U.S. Attorneys,
Michael Battle.
You had a first conversation with Sampson in December of
2004 about replacing U.S. Attorneys. Then there were
intervening events, but I will come to some of the highlights.
On June 1st, 2006, in an e-mail, Sampson described your
statements on a plan addressing U.S. Attorney Lam's problems
with the option of removing her. Certainly, sounds like more
than discussions, deliberations and judgments. I am going to go
on because I want to give you the whole picture here.
Then on June 4th or 5th, according to sworn testimony,
Associate Attorney General Mercer discussed with you Lam's
performance. Then on June 13th of 2006, Sampson, in sworn
testimony, said that you were ``almost certainly consulted on
the removal of Bud Cummins.'' Then in mid October--you have now
identified a date of October 11th--you went to the White House
to talk about your vote fraud concerns. Mr. Rove, with the
President personally, came back, and according to Sampson's
sworn testimony said: look into the vote prosecution issues,
including those in New Mexico. That is what Sampson says under
sworn testimony. Then on November 27th of 2006, you attended a
meeting on the removal plans, attended by Sampson, Goodling,
McNulty, Battle, a whole host of people.
I have just given you a part of the picture as to what
these three deputies of yours, high-ranking deputies, have said
that you did on talking about removal, talking about
replacements. Do you think it is a fair, honest
characterization to say that you had only a ``limited
involvement in the process? ''
Attorney General Gonzales. Senator, I don't want to quarrel
with you.
Senator Specter. I do not want you to either, I just want
you to answer the question.
Attorney General Gonzales. Sir, I guess it's--I had
knowledge that there was a process going on. I don't know all
the--
Senator Specter. You did not understand there was a process
going on?
Attorney General Gonzales. No, I had--sir, I had knowledge
that there was a process going on.
Senator Specter. Well, were you involved in it?
Attorney General Gonzales. Senator, with respect to Carol
Lam, for example--
Senator Specter. Were you involved in the process?
Attorney General Gonzales. I was involved in the process,
yes, sir.
Senator Specter. Were you involved to a limited extent
only?
Attorney General Gonzales. Yes, sir.
Senator Specter. How much more could you have been involved
than to be concerned about the replacement of Cummins, and to
evaluate Lam, and to be involved in Iglesias? We have not gone
over the others, but is that limited in your professional
judgment?
Attorney General Gonzales. Based on what I thought that I
understood was going on, yes, Senator. I thought Mr. Sampson--I
directed Mr. Sampson to consult with senior officials in the
Department who had information about the performance of United
States Attorneys. I believe that that was ongoing and that he
would bring back to me a consensus recommendation. The
discussion about Ms. Lam, never in my mind, was about this
review process, and I indicated so in my conversation with Pete
Williams, I believe on March 26th, is that we were doing this
process. Of course, there were other discussions outside of the
review process about the performance of U.S. Attorneys. I can't
simply stop doing my supervisory responsibilities over U.S.
Attorneys because this review process is going.
Senator Specter. Did you tell Mercer to take a look at
Lam's record with a view to having her removed as a U.S.
Attorney, or is he wrong?
Attorney General Gonzales. Senator, I don't recall--
Senator, what I recall is, of course, we had received, the
Department had received numerous complaints about Carol Lam's
performance with respect to gun prosecutions and immigration
prosecutions. I directed that we take a look at those numbers
because I wanted to know, and I don't recall whether it was Mr.
Mercer who presented me the numbers, but I recall being very
concerned.
Senator Specter. But you were involved in evaluating U.S.
Attorney Lam's record, were you not?
Attorney General Gonzales. Senator, I did not view that, I
did not view that as part of Mr. Sampson's project of trying to
analyze and understand the performance of United States
Attorneys for possible removal.
Senator Specter. Never mind Mr. Sampson's project. Were you
not involved in the evaluation of U.S. Attorney Lam?
Attorney General Gonzales. Senator, of course, I was
involved in trying to understand--
Senator Specter. Were you not involved in the decision on
the removal of Arkansas U.S. Attorney Bud Cummins, as Kyle
Sampson testified?
Attorney General Gonzales. Senator, I have no recollection
about that but I presume that that is true.
Senator Specter. Were you not involved with the decisions
with respect to U.S. Attorney Iglesias in New Mexico, as you
have already testified in response to the Chairman's questions?
Attorney General Gonzales. Senator, I do recall having the
conversation with Mr. Rove. I now understand that there was a
conversation between myself and the President, and at some
point Mr. Sampson brought me what I understood to be the
consensus recommendation of the senior leadership that we ought
to make a change in that district.
Senator Specter. Okay. Now we have to evaluate--and this is
a final statement before I yield--as to whether the limited
number of circumstances that I have recited--and it is only a
limited number, there are many, many more--whether you are
being candid in saying that you were involved only to a
limited--you only had a ``limited involvement in the process,''
as to being candid and as to having sound judgment, if you
consider that limited. And as we recite these, we have to
evaluate whether you are really being forthright in saying that
you ``should have been more precise'' when the reality is that
your characterization of your participation is just
significantly, if not totally, at variance with the facts.
Attorney General Gonzales. Senator, you are talking about a
series of events that occurred over possibly 700 days. I
probably had thousands of conversations during that time. So
putting it in context, Senator, I would say that my involvement
was limited. I think that is an accurate statement, that it was
limited involvement.
And with respect to certain communications, such as the
communication with the President, such as the discussions about
Carol Lam, I did not view that at the time as part of this
review process. I simply considered those as doing part of my
job. We had heard complaints about the performance of Ms. Lam.
I directed the Department to try to ascertain whether or not
those complaints were legitimate, and if not, we ought to look
at perhaps doing something about it.
Senator Specter. The Chairman says I can ask one more
question. You are saying it is not part of the process, you
thought it part of your job? Is that what you are saying? If
you are, I do not understand it.
Attorney General Gonzales. Senator, I did not consider it
as part of this project that Mr. Sampson was working on. Simply
because we had this process ongoing with Mr. Sampson, doesn't
mean that I quit doing my job as Attorney General and
supervising the work of the United States Attorneys, and that's
what I attempted to do.
Senator Specter. But it was intimately connected with her
qualifications to stay on.
Attorney General Gonzales. Senator, of course, in
hindsight, I look back now that, of course, that that may have
affected the recommendations made to me, yes, but, Senator,
when I focused on those complaints, I wasn't thinking about
this process to remove U.S. Attorneys. I was focusing on a
complaint that I had received about her performance. That's
what I was focused on. I wasn't focused on the review process
itself. I wasn't focused on whether or not her name would go on
this list. I was focused on making sure that she was doing her
job. That's what I was focused on.
Chairman Leahy. So that Senators can focus on where they
are going to be, the order on the Democratic side will be,
going back and forth of course, will be Senators Kennedy, Kohl,
Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse and
Biden. And the list I have from the Republican side, it would
be Senators Grassley, Cornyn, Brownback, Hatch, Sessions,
Graham, Coburn and Kyl. And on what I said I would do earlier,
I take that list from Senator Specter.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
We appreciate, General, your sentiments about this horrific
tragedy. I think all of us here on the Committee, all
Americans, know that that is certainly something that is
hanging over all of our hearts at this very important and sad
time.
Just to come back to some themes that have been talked
about a little bit here earlier during the course of this
hearing, in your opening statement you indicated, as Senator
Specter mentioned, that you had a limited involvement and that
the process was not vigorous. And then you say: my decision is
justified and should stand.
Since you apparently knew very little about the performance
of the replaced U.S. Attorneys, how can you testify that the
judgment ought to stand? What is the basis for it?
Attorney General Gonzales. I think that is a fair question,
Senator. Obviously, when this began I was not the person at the
Department who had the most information about the performance
and qualification of U.S. Attorneys. There were many other
people, particularly the Deputy Attorney General. I challenged
Mr. Sampson, then my Deputy Chief of Staff, to engage in a
review. I think it was perfectly appropriate to see where we
could make changes to benefit the performance of the Department
of Justice. What I understood and what I expected is he would
talk to people like the Deputy Attorney General to ascertain
how U.S. Attorneys were performing.
And, of course, when the recommendation was presented to
me, I understood it recommended the consensus view of the
senior leadership of the Department.
Senator Kennedy. I am going to ask you, how can you know
that none of them were removed for improper reasons? How can
you give us those assurances since you had a limited
involvement, the process was not vigorous, and you left it
basically to somebody else?
Attorney General Gonzales. Well, Senator, since then, of
course, I have gone back to look at the documents made
available to Congress. I also had a conversation with--
Senator Kennedy. This is since then?
Attorney General Gonzales. Yes, sir.
Senator Kennedy. But when you made the judgment and
decision, you did not know, did you?
Attorney General Gonzales. On December 7th, I know the
basis on which I made the decision, no reasons that would be
characterized as improper. I think I was justified--
Senator Kennedy. But you did not know whether those
decisions were proper or improper since you have said you had
limited involvement, the process was not vigorous, and you
basically gave the assignment to Mr. Sampson, as he testified,
and you approved?
Attorney General Gonzales. Senator, I think that I am
justified in relying upon what I understood to be the
recommendation, the consensus recommendation of the senior
leadership. I think as we look through the documents, as you
glean through the documents, there is nothing improper occurred
here. You have more information about the testimony of
witnesses than I do. I'm not aware that anyone based their
recommendation on improper reasons, but just to be sure, I've
asked the Office of Professional Responsibility to work with
the Office of the Inspector General at the Department of
Justice to ensure that nothing improper happened here.
Senator Kennedy. Getting back to the time that you made the
judgment and decision, you did not really know the actual
reasons when you approved the removal, did you, at the time?
Attorney General Gonzales. Senator, I have in my mind a
recollection as knowing as to some of these United States
Attorneys. There are two that I do not recall knowing in my
mind what I understood to be the reasons for the removal. But
as to the others, I recall knowing the reasons why.
Independently I was not surprised to see their names
recommended to me because through my performance as Attorney
General I have become aware of specific issues related to
performance.
Senator Kennedy. We are reminded that the documents do not
show any clear rationale for the firings.
I want to come back to how you can say in your opening
statement that the Department of Justice makes decisions based
on evidence. That certainly was not the case with regard to
your judgment and decisions with regard to these firings. As I
understand, you said you had limited involvement, the process
was not vigorous. In response to Senator Leahy, you said that
you were not responsible for compiling information. How can you
give a blanket statement that the Department of Justice makes
decisions based on evidence when you did not have the rationale
for the firings of these individuals at the time that they were
fired?
Attorney General Gonzales. Senator, that statement related
to our decision with respect to prosecutions, but with respect
to what happened here, I believe that I had a good process when
this began.
Senator Kennedy. Let me ask about the process, if I could,
please. The Department of Justice has a process--it is called
the EARS process--for the evaluation of U.S. Attorneys. It has
been there for years and years. Am I correct that the
Department of Justice's periodic, comprehensive evaluation of
U.S. Attorneys is called EARS reports for Evaluation and Review
Staff reports?
Attorney General Gonzales. Senator, that evaluation is an
evaluation that occurs of United States Attorneys Offices. It
occurs every 3 or 5 years. It is a peer review, Senator. It is
a review conducted by Assistant United States Attorneys.
Senator Kennedy. I am asking you, Did you have an
opportunity, since it does review the performance of U.S.
Attorneys, did you have an opportunity to review that document
which is the standard document for the Justice Department in
the evaluation of U.S. Attorneys?
Attorney General Gonzales. Senator, I did not review the
document, but, however, it would be just one of many factors, I
think, that should be appropriately considered in evaluating
the performance of United States Attorneys. Just one of many
factors.
Senator Kennedy. Let me ask you some others. Did you speak
personally with any of the replaced U.S. Attorneys about their
performance? Have you at this time talked to any of the U.S.
Attorneys who were--
Attorney General Gonzales. Who were replaced?
Senator Kennedy. Yes.
Attorney General Gonzales. I have spoken with Mr. Bogden.
Senator Kennedy. He is the only one?
Attorney General Gonzales. He is the only one, yes.
Senator Kennedy. Did you speak with any of the Assistant
U.S. Attorneys in the affected offices of the U.S. Attorneys?
Did you talk to any of the Assistant U.S. Attorneys, those that
are serving with the U.S. Attorneys that have been replaced?
Did you speak with any of them?
Attorney General Gonzales. I certainly did it with respect
to San Diego. There may be Assistant United States Attorneys
who may be serving as the Acting U.S. Attorney that I may have
met with in connection with my visit to visit with United
States Attorneys after--sometime in the weeks of March 12th and
thereafter.
Senator Kennedy. So you may have met with someone that was
in one of the offices?
Attorney General Gonzales. I believe that I probably met
with everyone who is serving in the affected offices, who is
serving in the Acting U.S. Attorney capacity, and certainly
with respect to San Diego, I did visit the San Diego office,
and I spoke to the--
Senator Kennedy. This is before the firings?
Attorney General Gonzales. No, sir. This was well after the
firings.
Senator Kennedy. Did you perform any systematic review of
the effect of the ongoing prosecutions of removing U.S.
Attorneys? What would be the impact on ongoing prosecutions
that those U.S. Attorneys were involved in? Did you do an
evaluation of that?
Attorney General Gonzales. Senator, I think that is a good
question. I think it is important for the American people to
understand that prosecutions are done primarily by Assistant
United States Attorneys. Obviously, U.S. Attorneys are
important. They provide leadership. They establish morale. But
this institution is built to withstand change and departures in
leadership positions. And so if we have information about a
particularly important public corruption case, that would be
something we would consider. But if we did not have information
about a public corruption case and we were contemplating
changes, would it be wise to reach into the division and get
information about that case? I don't believe that would be a
good idea.
Senator Kennedy. My time is just about wrapped up. Did you
speak with others in the Department about the performance of
any of these U.S. Attorneys--individually, did you? Did you
speak to anyone else in the Department of Justice about any of
these U.S. Attorneys, about their performance, prior to the
time that they were fired, other than Mr. Sampson?
Attorney General Gonzales. Yes, sir.
Senator Kennedy. Who?
Attorney General Gonzales. Senator, I don't recall in
connection with this review process that Mr. Sampson was
engaged in, but obviously, issues came up with respect to Ms.
Lam and her performance. And I recall a meeting at the
Department. I don't recall everyone who was there, but I do
recall a discussion about the numbers. And, again, Ms. Lam is a
wonderful prosecutor and I acknowledge her service, but I had
genuine concerns about her efforts in pursuing gun prosecutions
and particularly her effort with respect to immigration
prosecutions. This is a very important border district, and
given the current debate about immigration reform, I felt that
we should do better, much better in this district. And, yes,
there was some discussion with others about Ms. Lam.
Senator Kennedy. My time is up. Thank you.
Attorney General Gonzales. Senator, there may have been
other discussions. I don't want to leave you with the
impression those were the only discussions.
Chairman Leahy. Thank you.
I am advised that Senator Grassley has stepped out and is
going to a funeral. Senator Brownback, on the list I have from
Senator Specter, you are next.
Senator Brownback. Thank you very much, Mr. Chairman.
Welcome, Attorney General. I would like to get just a
series of facts out on the table on why this list of U.S.
Attorneys out of the 93 were terminated. You have talked
already some about David Iglesias and Carol Lam. You just
addressed some of the reasons there. And I recognize, as you
state, that these are people that serve at the will and at the
pleasure of the President, so you can terminate them for cause,
without cause, whatever it might be. But it appears you have
come today prepared to discuss the reasons for the termination
of these various U.S. Attorneys, and I think it is important
that we find out what those reasons are, given the allegation
that a number of them were fired for inappropriate reasons.
So I want to just go down the list with you, if I could.
Daniel Bogden of Nevada, why was he terminated?
Attorney General Gonzales. Senator, this is probably the
one that to me, in hindsight, was the closest call. I do not
recall what I knew about Mr. Bogden on December 7th. That is
not to say that I was not given a reason. I just don't recall
the reason. I didn't have an independent basis or recollection
of knowing about Mr. Bogden's performance.
Since then, going back and looking at the documents, it
appears that there were concerns about the level of energy
generally in a fast-growing district, concerns about his
commitment to pursuing obscenity, which is important for the
Department. It is a law. We have an obligation to pursue it.
And just generally getting a sense of new energy in that
office.
Now, in hindsight--and I had a discussion with the Deputy
Attorney General on the evening of Mr. Sampson's testimony,
because I went to the Deputy Attorney General and I asked him,
Okay, do we stand behind these decisions? And if you look at
some of the documents, you can see that the Deputy Attorney
General agonized over this one. And I think that is good. That
is a good thing that we are thinking about what is the effect
of making this kind of decision on people. But at the end of
the day, we felt it was the right decision.
Now, I regret that we didn't have the face-to-face meeting
with Mr. Bogden beforehand and let him know. And one of the
things I have learned is that the Department does not have, has
not had a good enough mechanism, in my judgment, to communicate
with United States Attorneys. There should be at least one
face-to-face meeting, at least, with the U.S. Attorney and with
the Deputy Attorney General or the Attorney General. So if we
are aware of concerns or if we have concerns, we can convey
those to the U.S. Attorney. And my regret with respect to Mr.
Bogden is that, in fact, that meeting did not occur.
Nonetheless, in thinking about it, I believe it was still
the right decision. However, because of the fact that Mr.
Bogden was not notified of the decision, I did talk to Mr.
Bogden, as I indicated that I had. And what I offered to Mr.
Bogden was my help in securing employment moving forward. If
there was anything that I could to help him, I wanted to do
that because I struggled as well over this decision.
Senator Brownback. Paul Charlton in Arizona, and if you
could be as concise as possible, I would appreciate that. But I
want to give you a chance to say why.
Attorney General Gonzales. What I recall about Mr.
Charlton, when the recommendation was made to me, is I recalled
knowing of his poor judgment in pushing forward a
recommendation on a death penalty case. These kinds of
decisions, of course, are very, very important, and I take them
very seriously. But we have a process in place to carefully
evaluate death penalty decisions of the Department around the
Nation.
Obviously, the views of the local prosecutor are very, very
important. I made a decision around, I believe, May 15th,
somewhere around there, about a particular case, and he came
back to me 2 months later, first going through the Deputy
Attorney General's Office and then back to me to have me
reconsider the case. And I am not aware of any new facts here,
but the Deputy Attorney General, the Capital Unit Review
Committee has already made a recommendation to me about this
particular case. I had already made a decision on this
particular case.
Since the decision on December 7th, I have also learned
that he exercised poor judgment in the way he pushed forward a
policy with respect to interviewing of targets. He wanted to
record those interviews. He implemented that policy on his own
without consideration of how it would affect other offices
around the country, without consideration of how the other
units like the FBI would feel about it.
In hindsight, there may be good reasons to pursue such a
policy, but to implement it unilaterally on his own, in my
judgment, I considered was poor judgment, but that is something
that I became more familiar about as I have studied the
documents.
Senator Brownback. Kevin Ryan, Northern District of
California.
Attorney General Gonzales. I was not surprised to see Mr.
Ryan on the list, and, again, it is difficult for me to talk
critically about these individuals who served our country, but
you are asking me these questions. I was aware, as a general
matter, about poor management in that office. There was
disruption. Mr. Ryan had lost confidence in some career
prosecutors. We had to send out a second EARS team out to that
office to try to get an understanding of the sources of
complaints that we were hearing. So, in essence, I would say it
is a question of poor management.
Senator Brownback. Margaret Chiara of the Western District
of Michigan.
Attorney General Gonzales. Same issue. She is the other
person, quite candidly, Senator, that I don't recall
remembering--I don't recall the reason why I accepted the
decision on December 7th. But I have since learned that it is a
question of similar kinds of issues: poor management issues,
loss of confidence by career individuals. We had to send
someone out from Main Justice to help mediate some kind of
personnel dispute. So it was a question simply of someone not
having total control of the office.
Senator Brownback. H.E. Bud Cummins of Arkansas.
Attorney General Gonzales. Mr. Cummins obviously is someone
who was on a different track, and because he was on a different
track and was asked to resign on June 14th and not December
7th, there has been some confusion about Mr. Cummins, was he
part of the seven. He was asked to resign on June 14th. I
myself was confused, quite frankly, when I testified on January
18th. I had forgotten that, in fact, Mr. Cummins had been asked
to resign on June 14th, and the reason I did is because Mr.
Cummins left basically the same time as everyone else did.
Mr. Cummins was asked to resign because there was another
well-qualified individual that the White House wanted to put in
place there that we supported because he was well qualified. I
also understand--this is after the fact--that, in fact, Mr.
Cummins had expressed a desire--and I do not want to put words
in his mouth because I think he may have testified, maybe not--
he has testified about this, but there was a newspaper article
that appeared in the Arkansas Times indicating that because of
having four kids he had to put through college, don't be
shocked if he didn't serve the rest of his term. So it was a
question of seeing that there may be a vacancy coming up and
having a well-qualified candidate to go in that office.
Senator Brownback. John McKay, Western District of
Washington.
Attorney General Gonzales. Mr. McKay, when I accepted the
recommendation on December 7th, generally I recall there being
serious concerns about his judgment. That is what I recall when
I accepted the recommendations, and what I have since learned,
of course, is that it related to an information-sharing
project. It is not the way that he--it is not that he pursued
this. We expected him to. He was doing a good job with respect
to that. It is the way he pursued it and exercising poor
judgment that involved some of his colleagues and a letter that
he sent to the Deputy Attorney General, that his colleagues
would not have signed on the letter if they had known the
Deputy Attorney General would not welcome the letter. And he
nonetheless asked them for their signature, and the Deputy
Attorney General was surprised by the letter. It angered his
colleagues, it angered the Deputy Attorney General, and it was
an indication of poor judgment.
There was also an instance where he gave an interview in
Washington where he basically told our State and local
partners, Don't come to me for any more help in terms of
partnerships because I just don't have the resources to do it.
That was inappropriate. If, in fact, there were concerns about
resources, he should come to us, try to let us help him with
it. But to go out and give an interview and tell State and
local partners, Don't come to us because we can't help any
more''--and I am paraphrasing here. I want to be fair to Mr.
McKay. That also demonstrated poor judgment.
Senator Brownback. Thank you for giving the information on
each of these; I am glad to hear the factual basis. I hope we
can get into that more during this hearing, and I hope too that
as this wears on, there is a chance for you to reach out to
some of these individuals as well, as you have discussed, I
guess, with Mr. Bogden in Nevada. I think that is something
that would be useful as well.
Attorney General Gonzales. Thank you, Senator.
Senator Brownback. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I am just curious on one thing. You said, if I understand
your answer to the question from Senator Brownback, that on
Cummins, when you had testified on the 18th, you had overlooked
what had happened on the 17th. Did you ever send a followup to
that testimony to clarify the issue?
Attorney General Gonzales. Senator, I don't recall sending
a follow-up. Quite frankly, I think if you look carefully--I
don't know if there was a misstatement or a mistake in my
testimony.
Chairman Leahy. Because witnesses often do correct their
testimony afterward. We always leave the record open so people
can do that.
Attorney General Gonzales. Senator, there was a specific
question about Mr. Cummins, and I did not indicate that the
reason for Mr. Cummins was because there was another well-
qualified individual.
Chairman Leahy. Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Mr. Gonzales, there have been allegations that voter fraud
and public corruption cases have been influenced by partisan
political considerations in my State of Wisconsin. We have seen
documents showing State party efforts, Republican party efforts
to influence these type of prosecutions routed through Karl
Rove's office directly into the office of your former chief of
staff.
So, Mr. Attorney General, was Mr. Steve Biskupic, U.S.
Attorney in the Eastern District of Wisconsin, ever on the list
of U.S. Attorneys who were to be dismissed? It has been
reported in the papers, both in the Washington Post and the
Milwaukee Sentinel, that he was to be fired, but the Justice
Department has not made public any documents to show that?
Attorney General Gonzales. Senator, I was never aware that
Mr. Biskupic was on a list, obviously, when I made my decision.
I am aware that he may have appeared in a category which would
indicate that there were concerns about Mr. Biskupic. But I
think he has already issued a press release saying he never
knew about that and that it never would have influenced and did
not influence any decisions that he made with respect to cases
in Wisconsin.
Senator Kohl. I appreciate that, but the question is: Was
he on a list of U.S. Attorneys who were being considered for
dismissal?
Attorney General Gonzales. Senator, I believe I testified
that I believe that he was listed as someone, yes, that--
Senator Kohl. So my question is: Why was he then taken off
the list?
Attorney General Gonzales. Senator, again, this was a
process that was ongoing, that I did not have transparency
into. I don't recall being--transparency with respect to Mr.
Biskupic. I don't recall being aware of discussions about Mr.
Biskupic. Mr. Biskupic is a career prosecutor. He was appointed
United States Attorney through a bipartisan panel. With respect
to the case I think everyone is focused on, he made charging
decisions after consulting with the then Democratic State
Attorney General and consulting with the Democratic local
prosecutor, and he believed it was the best--his best judgment
to charge that case based on the evidence.
Senator Kohl. I do appreciate that, but I am trying to
understand why he would have been on a list and then taken off
a list. There must have been a reason for one and then the
other.
Attorney General Gonzales. Senator, with all due respect,
there are other people that would have that information that
are witnesses, fact witnesses. I have not consulted with them
because I did not in any way want to compromise the integrity
of this investigation or the investigation at the Department.
Senator Kohl. That is fine. Could you get back to me within
a week with respect to the question of why he was on the list
and then why he was taken off the list?
Attorney General Gonzales. With all due respect, Senator,
the person who was responsible for compiling the list was Mr.
Sampson, and he is the person that would have the answer as to
why--he would be the best person as to why Mr. Biskupic was on
a list or off a list or anybody else that was on or off a list.
Senator, I will go back and see if there is something that
I can do, but I want to be very careful about talking to fact
witnesses, and I am not going to do that. I don't want to
compromise the integrity of this investigation or the integrity
of the Department investigations.
Senator Kohl. Mr. Attorney General, once appointed by the
President, confirmed by the Senate as Attorney General, we all
understand that you are expected to cast aside all partisan
politics and serve only the interests of justice and of the
American people. The Justice Department is expected to
investigate and prosecute those who violate our laws completely
blind to their partisan political affiliation. Public
confidence in your fidelity to these ideals, of course, is
essential. Without the public's confidence in the impartial
administration of justice, our entire judicial system is called
into question.
Sadly, your actions have severely shaken the confidence of
the American people in you and in your ability to fulfill your
public trust. According to recent polls, as many as 67 percent
of Americans believe that these eight U.S. Attorneys were fired
for political reasons, and over half of the American people
believe that you should resign. Moreover, press accounts have
detailed low morale among U.S. Attorneys across the country as
a result of these events.
I am sure we can agree that the integrity of the Office of
the Attorney General as an institution is more important than
the self-preservation of any one person who sits in it. Many
Americans wonder, therefore, what is the rationale for you to
remain as the Attorney General. Given the low morale, the
history of mismanagement, the apparent lack of independence
from the White House, and, most importantly the taint of
politics trumping justice in your tenure, would you explain to
the American people why it is so important that you should
remain in this office?
Attorney General Gonzales. Let me first address the
question about taint of politics, and let me just start with an
example, Senator.
Six weeks before the election, this Department took a plea
from Congressman Bob Ney. Six weeks before the election. We
could have taken the plea after the election, and I am sure
when we took that plea, there were some Republicans around the
country probably scratching their heads wondering: What in the
world are they doing?
Well, what we are doing is doing what is best for the case.
That is what we did. We don't let politics play a role,
partisan politics play a role in the decisions we make in
cases. And we have prosecuted Members of Congress, we have
prosecuted Governors, Republicans. And so this notion that
somehow we are playing politics with the cases we bring is just
not true, and the American people need to understand that,
because when you attack the Department for being partisan, you
are really attacking the career professionals. They are the
ones, the investigators, the prosecutors, the Assistant U.S.
Attorneys, they are the ones doing the work. And so when
someone says that we politicize a case, what you are doing is
criticizing the career folks, and that is not right.
In terms of why I should remain as Attorney General, you
are right, this is not about Alberto Gonzales. This is about
the Department of Justice and what is best for the Department.
And as I look back over the past 2 years, I look back with
pride in the things that we have accomplished--a lot of good
things with respect to protecting our kids, protecting our
neighborhoods, protecting our country.
I have admitted mistakes in managing this issue, but the
Department as a general matter has not been mismanaged. We have
done great things, and we will continue to do great things. And
I will work as hard as I can to improve morale.
Obviously, this was an unfortunate incident for the
Department, but the work of the Department continues, and it's
very important for the American people to understand that.
Cases are still being investigated, cases are still being
prosecuted, because these are career folks and all what they
care about is making sure justice is done. And that's what I
care about, and I've instructed every United States Attorney, I
don't want an investigation or a prosecution sped up or slowed
down because of what has happened here. I expect everyone at
the Department of Justice to do their job, and it continues.
Senator Kohl. Well, I appreciate that. The point is still,
I believe, that at the moment, two-thirds of the American
people believe that these U.S. Attorneys were fired for
partisan political reasons, and over half of the American
people believe that we would be better off if you resign.
Now, I am sure you would agree that the perception of the
American people with respect to the Attorney General and his
position and his impartiality in the dispensation of justice is
critical. If after these hearings are over, if a week or two or
three from now the American people still feel that way, how
would you then feel about the importance of your tenure as the
Attorney General of the United States?
Attorney General Gonzales. Senator, I have to be--I have to
know in my heart that I can continue to be effective as the
leader of this Department. Sitting here today, I believe that I
can. And every day I ask myself that question: Can I continue
to be effective as leader of this Department? The moment I
believe I can no longer be effective, I will resign as Attorney
General.
Senator Kohl. Yes, and if the American public's perception
is negative, how does that impact your perception?
Attorney General Gonzales. Senator, part of my goal today
is to educate and information the American public about what
happened here. The notion that there was something that was
improper that happened here is simply not supported by the
documents. I do not think it is supported by the testimony,
much of which of it I haven't seen. It's certainly not the
reason that I asked for these resignations. And I have tried to
reassure the American public I am committed to getting to the
bottom of this. I can't interfere with this investigation, but
I've asked the Office of Professional Responsibility to work
with the Office of the Inspector General and let's find out
what happened here. If, in fact, someone did something, made a
recommendation for improper reasons, yes, there is going to be
accountability. Absolutely.
Senator Kohl. Thank you very much, and thank you, Mr.
Chairman.
Chairman Leahy. Thank you.
I should note, just for the audience, we have people here
both supporters of the Attorney General and opponents of the
Attorney General. You are guests of the U.S. Senate, and nobody
is more protective of First Amendment rights than I. But if
signs are being held up and are blocking the views of people, I
don't care whether the signs are for the Attorney General or
opposed to the Attorney General, if signs are being held up,
blocking the views of others who have just as legitimate a
right to be here as everyone else, the people doing that will
be removed.
We are going to go to Senator Hatch, and then I am going to
go to Senator Feinstein, and then we will take a 10-minute
break. Thank you.
Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. Welcome, Mr.
Attorney General.
Mr. Attorney General, do you make decisions at the Justice
Department based upon the polls?
Attorney General Gonzales. No, sir, I don't.
Senator Hatch. No, you don't, do you?
Attorney General Gonzales. Senator, I make decisions on
what the case is based on the evidence, not based upon whether
or not the target is Republican or Democrat. And, of course, I
have been appointed by the President, confirmed by the Senate,
to make the decisions based on my best judgment.
Senator Hatch. I take it not whether it favors you or
disappoints you?
Attorney General Gonzales. Sometimes, Senator, in doing my
job I am going to make people unhappy.
Senator Hatch. On March 19th, one of my Democratic
colleagues said that he would be surprised if you were Attorney
General a week later. Well, I am glad to see you here a month
later, personally, because we have worked rather extensively
together, and I have seen an awful lot of good work done there
that you have been describing to a degree here today. And you
cannot even begin to touch all the good things that have been
done.
You have said here today that you want to help Congress and
the public understand what happened in the removal of these
U.S. Attorneys. Your actions back up your words. I applaud you
for making available the Justice Department's top officials and
staff for testimony and interviews, as well as thousands and
thousands of pages of documents. I am afraid that some simply
do not want to go where the evidence tells us to go. Some
appear to have decided in our country today instead where they
want to go, and they are fishing for anything that they can
claim will back up their preconceived conclusions.
Now, it is one thing to conduct legitimate oversight over
matters that are a subject of legislative concern. It is
another to traipse around on ground committed by the separation
of powers to another branch of Government. I think that is what
has been going on here, and I think it is unfortunate and I
think it is wrong.
You have stated this before, but let me ask you just once
more for the record, because this is important. Were any of
these eight U.S. Attorneys asked to resign in retaliation for
or to interfere with any case that they brought or refused to
bring?
Attorney General Gonzales. That is not the reason I asked
for the resignations, Senator. From everything that I have seen
and heard--
Senator Hatch. Then the answer is no.
Attorney General Gonzales.--I don't think any one was
motivated for that reason.
Senator Hatch. Okay. How many employees do you have at the
Department of Justice?
Attorney General Gonzales. Around 110,000.
Senator Hatch. Around 110,000 employees. What are the main
core functions of the Department of Justice that you supervise?
Attorney General Gonzales. Well, we enforce the law. We
prosecute cases in our Federal courts. The FBI is the lead
investigatory agency in the country. We have--
Senator Hatch. You overview the FBI.
Attorney General Gonzales. Pardon me?
Senator Hatch. You overview the FBI.
Attorney General Gonzales. The FBI comes within the
jurisdiction of the Department of Justice. We have the Drug
Enforcement Agency. We have the Bureau of Prisons. We have
Alcohol, Tobacco, and Firearms involved, along with the FBI
with respect to the tragedy that happened down at Blacksburg.
And so there are many very, very important divisions that exist
within the Department of Justice family that contribute to the
core mission of the Department of ensuring that our laws are
enforced and that justice is, in fact, delivered here in our
country.
Senator Hatch. You spend a lot of time traveling in the
country as well, don't you?
Attorney General Gonzales. I do. I think it's important to
go out and see the components. One of the things I really enjoy
is to visit folks in the United States Attorney Offices. I like
to go by and visit the United States Attorneys. I like to speak
with the staff, express to them how important they are, let
them know that really the success of the Department is not the
Attorney General. It is not the United States Attorney. It is
the career investigators, the career professionals.
Senator Hatch. You spend a lot of time down at the White
House as well, do you not?
Attorney General Gonzales. I don't spend as much time as I
used to spend at the White House.
Senator Hatch. What about the Cabinet meetings?
Attorney General Gonzales. Of course, I'm there at Cabinet
meetings, and I'm there for policy discussions and where
there's a need for me to be at the White House. As Andy Card
once used to say, if you need to see the President, you see the
President, if you want to see the President, you don't see the
President because his time is so valuable.
Senator Hatch. If the President wants to see you, you are
on call, right?
Attorney General Gonzales. Of course.
Senator Hatch. You go to intelligence meetings, right?
Attorney General Gonzales. That is correct.
Senator Hatch. Among various intelligence factions of
Government.
Attorney General Gonzales. Yes. From time to time we do
have meetings relating to threats to United States' interests
overseas, and of course, threats to the homeland.
Senator Hatch. In fact, I have been in some of those
intelligence meetings with you in the secure room in the White
House, right?
Attorney General Gonzales. We do have intelligence
briefings from time to time in the Situation Room, yes, sir.
Senator Hatch. Many of our fellow citizens may not have an
accurate picture of what Federal prosecutors do or their
relationship with the Justice Department here in Washington,
what we call Main Justice. I think many people probably see
U.S. Attorneys as something like independent contractors, able
to call their own shots, set their own priorities, follow their
own policies. There might also be another kind of
misunderstanding in the other direction when people hear it
said that U.S. Attorneys are political appointees. That makes
understanding all of this much harder for our fellow citizens
who have been characterized here today.
I would like you to help dispel these myths a little by
describing what the roles and the relationships should be
between the U.S. Attorneys around the country and the Justice
Department, which ultimately means you and the President here
in Washington.
Attorney General Gonzales. Senator, United States Attorneys
are accountable to the President through me. We are accountable
to the American people, and there has to be real
accountability. Obviously, with respect to decision relating to
prosecutions, U.S. Attorneys should have and do enjoy
independence in exercising their judgment as to what cases to
move forward with or not.
But with respect to policy, a President and the Attorney
General, we are accountable to the American people. The
President is elected based upon a set of his policies, his
priorities, and the only way to get those implemented is
through the U.S. Attorney, and it's important that the United
States Attorney support the policies and priorities of the
President of the United States.
Now, obviously, within each specific district, there are
going to be specific needs and priorities that are local, and
the U.S. Attorney has to find a way to accommodate those local
needs and priorities as well as the national needs and
priorities because those are important to the President of the
United States, and the U.S. Attorney is a member of the
President's team, is subordinate and is accountable to the
President, and the President is accountable to the American
people for his policies and for his priorities.
Senator Hatch. I want to give you a fuller opportunity to
explain your involvement in the process leading up to asking
these U.S. Attorneys to resign. You made an important
distinction which makes your description perfectly reasonable.
You distinguished between the general supervision of U.S.
Attorneys in which your involvement was extensive, and the
specific evaluation for identifying who should resign in which
your involvement was limited. Now this is an obvious
distinction and an important distinction. Did I describe it
accurately?
Attorney General Gonzales. That is correct, Senator. I had
in my mind this process that Mr. Sampson was coordinating, but
obviously, from time to time issues would come up with respect
to the performance of United States Attorneys that in my mind I
viewed as simply doing my job as the Attorney General to deal
with a concern or a complaint relating to performance of that
United States Attorney. I do not in my mind view that as, Okay,
that person goes on the list, because I relied upon Mr. Sampson
to coordinate an effort to consult with senior officials and
make a decision as to where there were issues and concerns
relating to performance. But the fact that I delegated this
task to Mr. Sampson doesn't mean that I abdicate my
responsibility as Attorney General to field complaints and to
review and address concerns about the specific issues relating
to a United States Attorney. And so, yes, in my mind, those
were separate and apart.
Senator Hatch. My time is up, Mr. Chairman.
Chairman Leahy. Thank you, Senator Hatch.
What we will do, I am going to go now to Senator Feinstein,
then take a 10-minute break. I am calling Senator Feinstein. As
I mentioned earlier, Senator Grassley is at a funeral. If he is
back, he would be next in line. If not, Senator Cornyn or
Senator Sessions, depending upon which one is here.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
I have essentially three questions that I would like to ask
you, Mr. Attorney General. Let me go back. Whose idea was it to
change the law in an amendment written by your staff, conveyed
by your staff, Mr. Moschella, to Senator Specter's staff, Brett
Tolman, on or about November 15th, 2005, to add in conference,
without sharing it with any Member of this Committee, an
amendment which effectively gave you the ability to replace
U.S. Attorneys without Senate confirmation? Whose idea was
this?
Attorney General Gonzales. Senator, I don't recall
specifically the genesis of the idea. In going back and looking
at the documents, it appears that there was some thinking about
this as early as 2004. I will say this, I do support, I did
support the change in the law, not in order to avoid Senate
involvement, but because I, quite frankly, do not like the idea
of the Judiciary deciding who serves on my staff, and that's
why I supported the law.
Senator Feinstein. So you essentially approved it being
conveyed to the Senate in the manner in which it was conveyed?
Attorney General Gonzales. No, that's not what I'm saying.
I don't have any recollection about the mechanics of getting
it--of the legislative process.
Senator Feinstein. So you do not have a recollection. Let
me go on because my time is short. I am very confused. I am
unsure whether you were really the decider on this list or not
because your written comments, printed yesterday, say, ``I did
not make decisions about who should or should not be asked to
resign.'' Today you said three different things: I accepted the
decision of the staff; I accepted the recommendations of the
staff; and then sort of a vague statement, I made my decision.
Who was the decider?
Attorney General Gonzales. Senator, I accepted the
recommendations made by the staff. I'm the Attorney General. I
make the decision. Can I see what you're reading from? You
referred to statements from yesterday. I don't recall making
any--
Senator Feinstein. Something entitled Statement of Alberto
Gonzales.
Attorney General Gonzales. Oh, the written statement.
Senator Feinstein. The written statement, the top of page
4.
Attorney General Gonzales. Okay.
Senator Feinstein. So in writing, you clearly say: I did
not make decisions about who should or should not. I guess, one
of the problems is that all of this has been kind of constant
equivocation. Apparently--
Attorney General Gonzales. Senator, you're not reading my
entire statement. Maybe you did, I'm sorry. During those--Mr.
Sampson periodically updated me on the review. As I recall, his
updates were brief, relatively few in number, and focused
primarily on the review process itself. During those updates,
to my knowledge, I did not make decisions about who should or
should not be asked to resign, so in connection with this
review process, as Mr. Sampson gave me updates, I don't recall
ever saying--even though they were still in deliberative
process, ever saying, no, take that person off, or add this
person. I don't recall ever doing that.
Now, certainly, after the work had been completed, Mr.
Sampson brought me recommendations. I accepted those
recommendations. Those were my decisions. I accept full
responsibility for those decisions.
Senator Feinstein. That is what I wanted to know.
Attorney General Gonzales. Yes.
Senator Feinstein. You are prepared to say that you made
the decision to fire these 7 U.S. Attorneys on that day,
December 7th?
Attorney General Gonzales. Senator, I don't recall whether
or not I made the decision that day. I don't--
Senator Feinstein. I am not saying that day.
Attorney General Gonzales. No, that was your question.
Senator Feinstein. Mike Battle made the phone calls that
day.
Attorney General Gonzales. Mr. Battle made phone calls that
day. I made a phone call to Senator Kyl. Yes, phone calls were
made that day. I don't recall exactly when I made the decision.
Senator Feinstein. You are testifying to us that you made
the decisions without ever looking at the performance reports?
Attorney General Gonzales. Senator, that is correct again.
Senator Feinstein. That is what I wanted to know.
Attorney General Gonzales. I just want to reemphasize that
those EARS evaluations are the evaluations of the performance
of the office. They would just be one of many factors, and I
would say United States Attorneys universally would say they
ought to be given the appropriate weight when looking at the
performance of a United States Attorney.
Senator Feinstein. Mr. Mercer, who was in charge of the
process, in his transcript on the--
Attorney General Gonzales. Senator, I don't believe he was
in charge. Mr. Sampson, I delegated to Mr. Sampson the task
coordinating this process.
Senator Feinstein. Mr. Mercer was not in charge of looking
at the EARS reports?
Attorney General Gonzales. Senator, I don't recall knowing
whether Mr. Sampson was in--you mean as a general matter?
Senator Feinstein. Excuse me; Mr. Battle.
Attorney General Gonzales. Mr. Battle. He was the Director
of the Executive Office of United States Attorneys, so the EARS
evaluation is performed through that office.
Senator Feinstein. He would have looked at those reports.
Let me give you a question and an answer from the transcript,
page 43.
Attorney General Gonzales. Senator, can I see what you are
reading from?
Senator Feinstein. I am reading from the staff interview on
a transcript.
Attorney General Gonzales. I haven't seen that transcript.
Could I see it if you're going to ask me a question about it?
Senator Feinstein. May I ask the question and then I will
send it down?
Attorney General Gonzales. Certainly, I'm sorry.
Senator Feinstein. The question is: ``What did you do in
response to her request to identify certain U.S. Attorneys and/
or districts? '' Answer: I ``basically wondered about the
request. I had my secretary print out a list of all the U.S.
Attorneys just to see if I could look at the list and see if
there was anybody on there who may have been involved in some
issues of misconduct or things of that nature that somebody
maybe didn't know about, and I could report that to someone. I
looked at the list, nobody jumped out at me. I put the list
away.'' If you would like to see it--
Chairman Leahy. I think, without--
Attorney General Gonzales. Could you just give me the page
number, Senator?
Chairman Leahy. I will offer extra time to the Senator from
California in this.
Mr. Attorney General, I sent you a letter notifying you of
this subject and referring to the transcript so you would not
be surprised.
Attorney General Gonzales. Thank you, Senator.
What page is that on, Senator?
Senator Feinstein. It is page 43.
Attorney General Gonzales. And your question is?
Senator Feinstein. My question is, did anybody that was
involved in the unprecedented group firing of U.S. Attorney
ever look at their performance reports prior to putting them on
the list?
Attorney General Gonzales. Senator, I don't know that.
Senator Feinstein. Oaky. You said today--
Attorney General Gonzales. But I would just say again, I
want to emphasize, about the appropriate way to put on a EARS
evaluation. You could have a great EARS Evaluation, which means
you have a great team, but you could have a U.S. Attorney who's
not doing a very good job.
Senator Feinstein. You said today, ``We could do much
better with regard to Carol Lam.'' So let me be clear. Carol
Lam was ranked as one of the top ten prosecutors in the country
for her prosecutions and her conviction rates. San Diego
reached its lowest crime rate in 25 years during her tenure.
She brought down the Hell's Angels gang in San Diego. She was
told by Deputy Attorney General James Comey that he was
satisfied with her prosecution strategy for gun crimes. She
brought indictments against the Arellano Felix Cartel, a
significant success in the fight against drugs. She gained a
national reputation for her work on public corruption cases,
which was the FBI's second highest priority just after
terrorism. She was praised by the Border Patrol, the
Immigration and Customs Enforcement, local leaders of the FBI,
the San Diego City Attorney, judges in her district, and many
others.
The letters have said immigration is not one of the
Department's top priorities, however, immigration prosecutions
accounted for the largest single crime category prosecuted
during Lam's tenure. I received a letter dated August 23rd--
that is just prior to the December 7th firing--signed by Will
Moschella that says this: Prosecutions for alien smuggling in
the Southern District under 8 U.S.C. Section 1324 are rising
sharply in the year 2006. As of March 2006, the halfway point
to the fiscal year, there were 342 alien smuggling cases filed
in that jurisdiction. This compares favorably with the 484
alien smuggling prosecutions brought there during the entirety
of fiscal year 2005.
The letter goes on. This was an answer to an inquiry I
made. The letter says all is fine on the western front, the
Southern District, with respect to these prosecutions. And
finally, no one in the Department communicated to Carol Lam
that there were concerns with the handling of her immigration
cases. If this is the reason for the firing of a distinguished
U.S. Attorney, should not somebody talk to her and say, look,
we have a concern, and give her an opportunity to respond?
Attorney General Gonzales. Senator, she is a distinguished
prosecutor, and I commend her service as a prosecutor and as a
judge, and she's a wonderful person. She was acutely aware of
the concerns that existed with respect to her policies. She
received letters directly from Congress. She met with Members
of Congress. There were communications back and forth with the
Department of Justice about her numbers. I think that she was
aware of the fact that we had concerns.
With respect to the letter, I don't recall being aware of
the letter when I accepted the recommendation. I made the
decision to ask for Ms. Lam's resignation. But you can't just
focus solely on alien smuggling. Illegal entry, illegal reentry
are likewise important.
Ms. Lam served with distinction in a lot of other areas,
and of course, she's going to have a lot of fans, and as do
these other United States Attorneys that were asked to resign
because there are good things that they did, but this was a
very important border district, and it was appropriate for the
President of the United States and the Attorney General to
expect that we would make improvements with respect to both gun
prosecutions and immigration prosecutions. That is the reason
why I asked for Ms. Lam's resignation. She had served for 4
years, and we felt it was the appropriate time to make a
decision to try to improve performance with respect to,
certainly with respect to immigration prosecutions.
Senator Feinstein. If I might, you mentioned the House
members. I would like to bring to your attention an e-mail sent
on August 2nd that indicates she is meeting with Issa and
Sensenbrenner. This is from Rebecca Seidel to Mark Edley.
``Sounds like she handled well and it was actually
constructive. See below.'' Then there is a litany about the
meeting, very cordial, very constructive, et cetera.
Attorney General Gonzales. Senator, there is no question
that the record is full of discussions and concerns that the
Department had about Ms. Lam's performance which related to
immigration and gun prosecutions. That is the reason why I
decided to ask for her resignation, to make a change. That's
the reason why.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Leahy. Thank you. We will take a 10-minute recess,
and then Senator Cornyn will be next.
[Recess 11:17 a.m. to 11:30 a.m.]
Chairman Leahy. The Committee will be in order, and again,
I would remind people that you are here as guests of the U.S.
Senate. We have both supporters and opponents of the Attorney
General. That is fine. I think the Attorney General would agree
with me, we protect the right of people to do that, but I will
not have you disrupting anybody on either side, disrupting
these hearings. These hearings are important. The Attorney
General is entitled to be heard, the Senators are entitled to
ask their questions, and we will have the kind of decorum
expected by the Senate, just so everybody understands.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
General Gonzales, you and I have known each other a long
time, and I believe that you are a good and decent man. But I
have to tell you that the way that this investigation has been
handled has just been really deplorable. You say that the
process was flawed and you made mistakes in managing it, and I
would like to ask you: How should you and the Department have
conducted this process, if at all?
Attorney General Gonzales. I believe that the review was
appropriate, quite frankly. I think it is appropriate to ensure
that public servants are doing their job, and that if we can
make improvements, I think I have an obligation as the Attorney
General to pursue those improvements.
Looking back, things I would have done differently, I think
I would have had the Deputy Attorney General more involved,
directly involved. I think that I should have told Mr. Sampson
who I wanted him to consult with specifically. I should have
asked him, Who are you going to consult with? I should have
told him I want the recommendation to include these people, and
I think I should have asked him, Who do you think it ought to
include as well?
I should have told him the factors that I thought were
important for him to consider. I should have told him this is a
process that should not take 2 years; it is a process that
should be completed in probably about 6 months, 6 to 12 months,
something like that. And I think I would have told, I should
have told him there ought to be a face-to-face meeting with
every United States Attorney during this review, and it ought
to involve the DAG or it ought to involve me, and we should
have a list of particulars and talk with them about issues or
concerns that we have and give them an opportunity, give the
United States Attorney an opportunity to respond to those
concerns that we have raised. And so I think these are the
things--when I talk about a more rigorous, a more structured
process, I think these are the kinds of things, in hindsight,
that I wish would have happened.
Now, I want to be very, very careful about formalizing a
review process. Quite frankly, I raised this issue in my United
States Attorney dialog. United States Attorneys do not want a
formal evaluation process. They don't want it. They want to
report to the DAG and to the Attorney General, and so what we
are going to do is try to improve communication as opposed to
implementing a formal process.
I think it is also unfair to the President of the United
States, quite frankly. If you have a formal evaluation process
and that process shows that a United States Attorney is doing a
great job but the President wants to make a change, politically
it may be tougher for the President to do that.
And so I think for those reasons, I would not have a
formalized process, but I would have had a more structured and
a more rigorous process in the manner that I've described.
Senator Cornyn. Well, what I am struggling to understand
about this controversy is. President Clinton replaced 93 United
States Attorneys in one fell swoop. There is no requirement
that any cause for replacement of a U.S. Attorney be stated
because they serve at the pleasure of the President of the
United States. That is one of the consequences of the election.
And so if, in fact, there is no evidence--and I have not
heard of any evidence--that these U.S. Attorneys were replaced
with the purpose in mind of interfering with an ongoing
investigation or prosecution--your comments along that line
have been backed up by the FBI Director and others that there
is no evidence of that--then I can only conclude that we find
ourselves here today, you find yourself where you are today, as
a result of injecting performance-based rationale into the
decision to replace the United States Attorney. My recollection
is that the Deputy Attorney General, Mr. McNulty, first offered
those performance-based rationales for replacement of these
attorneys, each of whom had served 4 years, and this is not a
lifetime tenure job. It is not like a Federal judge. And it
would have been much better to tell each of these United States
Attorneys, ``Thank you for your service. You have served for 4
years, and now it is time for someone else to have an
opportunity to serve their country in this important job.''
Wouldn't that have been a better way to address this in
retrospect?
Attorney General Gonzales. Senator, that was, as I have
gone back and reviewed sort of the implementation plan, in
essence, sort of the talking point. It was not to get into
specifics about issues or concerns about performance.
But if you look at the documentation, it is clear that we
struggled--not struggled, but this was an endeavor to identify
those areas where there were issues or concerns about
performance. Where we made a mistake, clearly, I think, is once
we said performance, we should have defined that, because
performance to me means lots of things. It means whether or not
you have got the appropriate leadership skills, whether or not
you have got the appropriate management skills. It may mean
whether or not you support the President's policies and
priorities. It may mean that you don't have--do you have a
sufficient--do you have relationships with State, local, and
Federal partners to discharge the mission of the office?
And so there are lots of things that fall within, in my
judgment, the definition of ``performance related,'' and I
think that having said ``performance related,'' we should have
defined what we meant by that. It did not mean that the person
was a bad lawyer, necessarily a bad manager. It may have been
an instance where the person no longer continued to be the
right person at the right time for that position.
Senator Cornyn. Well, I think that invariably, when
people's performance is placed in issue, then they feel the
necessity to defend themselves, and that should not have been
required of them in a public forum like this, because,
unfortunately, their reputations now have been affected by this
present controversy. And what concerns me even more is there
have been attempts, I know on the House side particularly, to
identify people who were reviewed who were not relieved and to
further drag them and their reputations through this process. I
think that would be a disservice to them and a serious mistake
to engage in that kind of fishing expedition.
But, Mr. Attorney General, since I do not have a chance to
ask you questions like this very often, let me change the topic
just briefly to decisions made by Federal prosecutors in recent
border prosecutions. Senator Feinstein asked you about Carol
Lam and some of her immigration-related prosecutions, but, in
particular, I have received a number of complaints from
constituents about the prosecution and jailing of two Border
Patrol agents from the El Paso area, Agents Ramos and Compean.
I assume you are familiar with that. I am confident you are
given the attention that it has received, and I would like to
ask you to answer these questions, and I will ask you the
questions, and my time will run out, and you feel free to
answer them.
Do you believe that the public has been fully informed by
the news media about this case? Do you agree that a hearing by
this Committee on that case at which time all of the facts can
be explored would be a legitimate exercise of our oversight
responsibility? Would you, in fact, welcome such a hearing? And
would you pledge on behalf of the Department of Justice full
cooperation with the Committee as we prepare for such a
hearing?
Attorney General Gonzales. Senator, it is hard for me to
answer the first question. There is a lot, I think, of
misinformation or disinformation about what happened here. I
have known the prosecutor for many years, and I have confidence
in his judgment. A jury agreed with the fact that these border
agents who--let me just say, Border Patrol agents should be
saluted as heroes. They serve this very important function for
our country, sometimes at the risk of their lives. But a jury
agreed that in this particular case, these two individuals
broke the law. And not only did they break the law, but they
tried to hide their crime. Mr. Sutton, again, following the
evidence, did what he thought was right based upon the
circumstances of this particular case.
With respect to a hearing by the Committee in terms of what
happened here, I will say that the Department will try to be--
as always, will fully cooperate. We will try to be as helpful
as we can. And I would be happy to consider your request for a
hearing. There is already a lot of information out there, but
if we have not provided more information about this, I would be
happy to do so.
We want the Committee to be reassured that, in fact, there
was nothing improper that happened here as well, that Mr.
Sutton, again, followed the evidence, a jury agreed that, in
fact, a crime had been committed, and this was the right
result. And if there is information that we have that we can
provide to the Committee to reassure the Committee, I would be
happy to look at that.
Senator Cornyn. I know a hearing was scheduled, and then it
was postponed, and my hope is that it can be rescheduled and we
can have that oversight hearing to make sure all of the facts
get out--not rumor, innuendo, and speculation but the facts--so
we can conduct our proper oversight responsibilities and the
American people can be reassured of what the facts actually
are.
Thank you, Mr. Chairman.
Chairman Leahy. I just want to make sure I fully understand
something. It was mentioned--and I understand this to be a
fact--that President Clinton replaced 93 of the U.S. Attorneys
from the previous administration. How many of President
Clinton's U.S. Attorneys were replaced by President Bush?
Attorney General Gonzales. Eventually, Senator, I believe--
I don't know--
Chairman Leahy. It was either 92 or 93, I think you will
find.
Attorney General Gonzales. Over a period of time, that is
correct, sir. There was a conscious decision made that we would
not follow the model used by this President's predecessor, that
it was too abrupt and disruptive, and that we felt that we
ought to do the resignation on staggered terms.
Chairman Leahy. Just because I get a lot of calls from
people saying, ``Well, didn't President Clinton replace''--as I
recall it, just in the period of time I have been here,
President Carter replaced all of the Ford-Nixon U.S. Attorneys.
President Reagan replaced all of President Carter's. Former
President Bush eventually replaced most of President Reagan's.
President Clinton replaced President Bush's. And then this
President Bush replaced President Clinton's. I cannot speak
about what happened before I was in the Senate, but that is my
recollection.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman, and let me just
note that I hear a lot in my State about these border guard
incidents as well, and I look forward to whatever information
is coming forward on that, or hearings.
Mr. Attorney General, you have sworn an oath today, and
that oath carries with it certain legal consequences, but you
have a duty to the American people as a public servant to tell
the truth when you speak to the public in a press conference, a
news interview, or by publishing an op-ed piece in the
newspaper, don't you?
Attorney General Gonzales. Senator, I believe that when I
speak to the American people and to the public that I should be
truthful, and I endeavor to be truthful.
Senator Feingold. Let me then go back to the subject that
Senator Kohl brought up that is of particular interest to us in
Wisconsin and the question of the case of Georgia Thompson.
This was the highly publicized public corruption case which got
a lot of attention in Wisconsin during much of 2006, especially
since it happened during the re-election campaign of the
Governor of Wisconsin.
On April 5th, right after oral argument in the case, the
Court of Appeals for the Seventh Circuit ordered that Ms.
Thompson be immediately released from prison and her conviction
was summarily reversed. I thought the report was wrong because
it is so unusual for an appeals court to simply release
somebody at that level. The appellate judges suggested that the
evidence in the case was extremely weak and said essentially
that the case should have never been brought.
Can you understand why many citizens of my State, as they
see this U.S. Attorney scandal widen, are now questioning
whether the U.S. Attorney in Milwaukee could have possibly
brought the Thompson case for political reasons?
Attorney General Gonzales. Senator, I don't--look at the
facts here. Again, this was a career prosecutor. The charging
decision was made in consultation with the then Democratic
State Attorney General and a Democratic local prosecutor.
When you allege or anyone alleges--I am sorry. When anyone
alleges that, in fact, there may have been politics involved in
this case, what does that say to that Attorney General, to that
local prosecutor, to the career investigators and career
prosecutors?
Senator Feingold. Let me interrupt here because time is
limited. I did not ask you--and I am not alleging that there
were political considerations here. I am asking, Can't you see
how this U.S. Attorney scandal or problem that has occurred
throughout the Justice Department leads to a situation where
people wonder if there are political situations,
considerations?
Attorney General Gonzales. Senator, I can't speak to what
may be in the minds of the people in your State. Again, I am
doing everything I can--
Senator Feingold. Yes, I can, and I can tell you this
overall problem here has led to some very unfortunate thoughts
about the situation that may or may not be justified. I am just
trying to highlight what a problem this whole scandal has
created.
Do you plan to have the Department's Office of Professional
Responsibility review the Georgia Thompson case?
Attorney General Gonzales. Sir, am I?
Senator Feingold. Yes, are you planning to have the
Department's Office of Professional Responsibility review this
case that I just--
Attorney General Gonzales. Senator, I don't recall whether
there has been action on that, but I would be happy to consider
that.
Senator Feingold. I hope you will because I think it is
very important for the reason I just gave you.
I also understand from press reports that the U.S.
Attorney's Office in Milwaukee has provided documents to the
Justice Department that are responsive to the letter that
Senator Kohl and I sent, along with Chairman Leahy and other
members of the Committee, last week on this incident. When can
we expect a response to our letter and the production of the
documents we asked for?
Attorney General Gonzales. Senator, it is a recent request.
I am told that we are talking about a voluminous amount of
records. We are in discussions with, I understand, Committee
staff and trying to do what we can to get documents up as
quickly as we can.
Senator Feingold. I hope it will be soon. Now, let me ask
you about something that has been a major part of the
questioning of Senator Specter, Senator Kennedy, Senator
Feinstein, and others, and these are factual questions. I hope
there can be quick answers.
Kyle Sampson has testified that he kept you generally
informed about the process of identifying U.S. Attorneys who
might be asked to step down. Did you ever ask him for specific
information about who he was speaking to in connection with
this process or what he was doing to follow-up and check out
the information he received?
Attorney General Gonzales. Senator, what I recall is
telling Mr. Sampson, ``Make sure the White House is
appropriately advised,'' because these are political
appointees, and telling him that I expected him to consult with
the senior leadership of the Department, people who would know
best the qualifications, the performance of United States
Attorneys.
Senator Feingold. This is what you told him to do, but I am
asking whether you checked back with him after he did it.
Attorney General Gonzales. Senator, I can't recall whether
or not at the time he made the recommendations that I said,
``Who did you consult with and whose recommendations are these?
'' I will tell you what I understood. What I understood--
Senator Feingold. Let me continue. That is a sufficient
answer. You said you don't recall having done that. Did you at
any time probe the information that Kyle Sampson provided you,
including the recommendations that he ultimately made in the
seven U.S. Attorneys to be fired?
Attorney General Gonzales. Senator, I don't recall having
specific questions about specific reasons. I do recall that
when the recommendations were made, I was not surprised to see
five of the names on the list.
Senator Feingold. Did you ever talk to Deputy Attorney
General Mr. McNulty about whether he was comfortable with the
process that was under way?
Attorney General Gonzales. With the process that was under
way? I don't recall such a conversation, but afterwards, on the
evening of Mr. Sampson's testimony--
Senator Feingold. Oaky. I am just interested in the facts
prior to. Did you ever talk to the head of the Executive Office
of U.S. Attorneys or anyone else, other than Mr. Sampson, about
whether the process was identifying the proper U.S. Attorneys
to be relieved of their positions?
Attorney General Gonzales. What I recall, a conversation
with Mr. Sampson. That is what I recall, Senator.
Senator Feingold. Did you at any time prior to your meeting
on November 27, 2006, ask for a report in writing on the
progress of the project?
Attorney General Gonzales. I don't recall asking for a
report in writing.
Senator Feingold. How about when the final decisions were
made? At any time prior to November 27, 2006, when you approved
the firings, were you given or did you request a written memo
or report giving the justifications for each of the decisions?
Attorney General Gonzales. Senator, I don't recall that
occurring. Again, what I recall is Mr. Sampson presenting to me
a recommendation, which I understood to be the consensus
recommendation of senior officials at the Department.
Senator Feingold. Well, in light of the fact that you had
so little to do with the decision and made so little effort to
understand--
Attorney General Gonzales. I had everything to do with the
decision. It was my decision.
Senator Feingold. Well, so little to do with the basis for
the decision or why it was done, and you made so little effort
to understand the reasons behind them, you really had no basis
for telling the American people in your USA Today op-ed of
March 7th that these U.S. Attorneys had lost your confidence,
did you?
Attorney General Gonzales. Senator, what I understood was
that the recommendations reflected the consensus judgment of
the senior leadership of the Department and that, therefore,
the senior leadership had lost confidence in these individuals,
thus the Department had lost confidence.
Now, I will say I regret the use of those words, but,
clearly, I understood that the senior leadership--that the
recommendation made to me reflected the consensus view of the
senior leadership of the Department, of individuals who would
know better than I about the qualifications of these
individuals.
Senator Feingold. Well, I recognize that you have stated
this now, but you could have taken immediate steps to correct
the misstatements in this op-ed. You could have sent a letter
to the editor. Instead, you let what is essentially a false
statement sit out there, harming the reputation of dedicated
public servants, and I think that is inexcusable. In light of
the fact that you had so little to do with the decisions and
made so little effort to understand the reasons behind them,
you can't really say with certainty, as you did in your
testimony today, that ``There is no factual basis to support
the allegation, as many have made, that these resignations were
motivated by improper reasons.'' You can't really say that, can
you?
Attorney General Gonzales. Senator, I know the basis on
which I made my decision, and I'm not aware of anything in the
record, I'm not aware of any testimony which would seem to
support the allegation that someone was motivated by improper
reasons in making a recommendation to me. I don't think the
documents support such an allegation. But just to be sure, I
have asked the Office of Professional Responsibility to work
with the Office of Inspector General to confirm this. I want to
get to the bottom of this as well, Senator, just as you do, and
I want to reassure the American people that there was nothing
improper about what happened.
Senator Feingold. I appreciate that sentiment at this
point, but you didn't know then and you don't know today how
each of these people actually made it onto that list that you
were presented with on November 27th, do you?
Attorney General Gonzales. Senator, I have gone back and
searched the record. I have spoken with the Deputy Attorney
General and asked him whether or not he stood by the decision.
And so that is his view, that is my view. The decision stands.
It should stand. And I believe it was the right decision. I
regret the way in which it was implemented. There were
obviously mistakes in the review process. I have outlined to
Senator Cornyn the things that I would have done differently
that in hindsight I think would have been more appropriate.
Senator Feingold. Well, you know, I am obviously taking
that as a no to the question I actually asked, but, you know,
it is pretty clear that this is the situation, that at the time
you had no basis to know exactly how these people came to be on
the list. The fact that various justifications have been made
up or concocted after the fact does not cut it with me.
Attorney General Gonzales. Senator, if you look carefully
at the documents, you can see that there were people at the
Department of Justice looking at various issues with respect to
U.S. Attorneys, a lot of documentation with respect to
immigration and gun prosecutions with respect to Carol Lam.
There is some documentation with respect to obscenity and Mr.
Bogden. There is documentation with respect to the information
sharing and Mr. McKay. So there is documentation, Senator,
about these reasons.
Now, there may be other evidence or information in the
minds of fact witnesses that you have access to that I don't
have access to, but it's because I want to respect the
integrity of this process.
Senator Feingold. There is no credibility to the notion
that it was your considered judgment that those justifications
were the reason for removing those people at the time. There is
simply nothing in the record that demonstrates that you had a
sufficient effort made to make that determination.
Attorney General Gonzales. Senator, I thought I had a good
process in place. I think I am justified in relying upon the
judgment of the senior leadership of the Department of Justice.
I think I'm justified in relying upon the people who know a lot
more about the qualifications and performance of United States
Attorneys and accepting that recommendation. I did have in my
mind at least information or reasons with respect to five of
these individuals. I was not surprised that they were
recommended to me based upon my knowledge.
Senator Feingold. Thank you, Mr. Chairman, for the extra
time.
Chairman Leahy. Thank you very much.
Senator Sessions.
Senator Sessions. Mr. Attorney General--
Chairman Leahy. Before we start the clock on Senator
Sessions, just so we will know what the timing is, after
Senator Sessions it will be Senator Schumer, Senator Graham,
and Senator Durbin.
Thank you. Go ahead, Senator Sessions.
Senator Sessions. Mr. Attorney General, I think the thing
that caused a lot of us concern was you had a press conference
at the Department of Justice--it was a formal matter--to
address these issues, and in that press conference you stated,
``I was not involved in seeing any memos, was not involved in
any discussions about what was going on.'' And at a later press
conference, you said, ``I don't recall being involved in
deliberations involving the question of whether or not a United
States Attorney should or should not be asked to resign. I
didn't focus on specific concerns about individuals.''
Now, Mr. Sampson testified that there was a meeting--a
final meeting, I guess--when this was discussed in some detail
and that you were present. Do you recall that meeting and where
it took place?
Attorney General Gonzales. Senator, I have searched my
memory. I have no recollection of the meeting. My schedule
shows a meeting for 9 o'clock on November 27th, but I have no
recollection of that meeting. My understanding, as I reviewed
Mr. Sampson's public testimony, was that he had hazy
recollections about it as well.
But, in any event, I have no recollection of that meeting.
Senator Sessions. Well, do you recall who Mr. Sampson said
was there present along with you?
Attorney General Gonzales. Senator, I recall, looking at
the documentation on the calendar, who would be there. It would
be the Deputy Attorney General, and I have no memory--
Senator Sessions. McNulty.
Attorney General Gonzales. Yes. I have no memory of this,
but I think the calendar shows that the invitees were the
Deputy Attorney General; the Principal Associate Deputy
Attorney General, Mr. Will Moschella; Kyle Sampson, the Chief
of Staff; Mike Battle, the Executive Director of the Executive
Office of United States Attorney Attorneys; Monica Goodling,
senior counselor in the Attorney General's Office; and myself.
Senator Sessions. And this was not that long ago. This was
in November of last year?
Attorney General Gonzales. According to my calendar,
November 27th.
Senator Sessions. And Mr. Sampson seemed to indicate that
he understood it was a momentous decision, that there would
probably be political backlash. He even performed some outline
about how that should be managed, and you don't recall any of
that?
Attorney General Gonzales. Senator, I can only testify as
to what I recall. Believe me, I have searched my mind about
this meeting. I would have no reason not to talk about this
meeting.
At some point, of course, Mr. Sampson presented to me the
recommendations, and at some point I understood what the
implementation plan was. But I don't recall the contents of
this meeting, Senator. I am not suggesting that the meeting did
not happen.
Senator Sessions. I know, but I am worried about it. Mr.
Battle, who was there, testified that you were there, and he
thought you were there most of the time. Would you dispute Mr.
Battle?
Attorney General Gonzales. Senator, putting aside the
issue, of course, sometimes people's recollections are
different, I have no reason to doubt Mr. Battle's testimony.
Senator Sessions. Well, I guess I am concerned about your
recollection, really, because it is not that long ago, it was
an important issue, and that is troubling to me, I have got to
tell you.
Attorney General Gonzales. Senator, I went back and looked
at my calendar for that week. I traveled to Mexico for the
inauguration of the new President. We had National Meth
Awareness Day. We were working on a very complicated issue
relating to CFIAS, and so there were a lot of other weighty
issues and matters that I was dealing with that week.
You have to remember that this was a process that had been
ongoing for 2 years. This wasn't something that just showed up
1 day on my desk. And I'm not downplaying the importance of
this issue--
Senator Sessions. Well, what about you mentioned you made a
call to Senator Kyl? Was that on this day, about one of the
U.S. Attorneys in his district, his State?
Attorney General Gonzales. Sir, I don't understand what the
question is.
Senator Sessions. You indicated you made a phone call to
Senator Kyl--
Attorney General Gonzales. Yes, that was--
Senator Sessions [continuing]. About the decision you had
made.
Attorney General Gonzales. That was on December 7th, as I
recall it, December 7th.
Senator Sessions. That was later on.
Attorney General Gonzales. The day we were implementing--
the day the plan was being implemented.
Senator Sessions. Well, Mr. Gonzales, with regard to United
States Attorney Iglesias, there are concerns about vote fraud.
Senator Feingold has raised concern about a United States
Attorney in his district on vote fraud. Senator Cornyn has
raised questions about a decision by a United States Attorney
in Texas on prosecuting Border Patrol agents. So I would
suggest first, there is nothing wrong with questioning a United
States Attorney by a politician or anyone else, raising
questions about it. But I am going to tell you what I think Mr.
Iglesias was entitled to as a member of the Department of
Justice who is out there in the field. I think he should have
been inquired of about this voter fraud case. And I am going to
tell you, I have prosecuted voter fraud cases. They are the
most controversial things you can imagine. And sometimes they
look like they are easy to prosecute, and I have been
criticized as Attorney General for not being aggressive in
that, and I have been criticized as a United States Attorney
over those cases.
So I would just suggest to you that that is a delicate
matter, and I think somebody should have met with him to
ascertain his judgment on that.
Attorney General Gonzales. You are absolutely right. It is
a delicate matter. It is one thing to tell Mr. Iglesias, ``How
are you doing on voter fraud cases generally? '' But if you are
talking about inquiring about a specific case, that is really
delicate because simply inquiring into the case sends a message
to the United States Attorney. And if you mention, ``Oh, by the
way, the home-State Senator, the guy who recommended you for
this job, is concerned about how you are doing on this case,''
that is really dangerous. And so--
Senator Sessions. Well, perhaps, but, you know, we are
all--United States Attorneys have to be tough, too. I mean,
they have to defend what they do, and if Senator Feingold wants
to ask about a voter fraud case, somebody at some point, I
think, should inquire as to what he can say about that case and
to form an opinion on it.
Let me ask you a couple of things I think that were
somewhat important from your perspective. Apparently there was
a suggestion from Harriet Miers, Counsel to the President, that
all the United States Attorneys should be fired, you should
start over again after the first 4 years of the Bush
administration. I thought you responded well, as I understand
it, to that. What did you say to that?
Attorney General Gonzales. Senator, my recollection is that
I didn't think that would be a good idea, and let me just--I
don't know whether or not that was Harriet Miers' idea, whether
even she supported the idea. But I recall Mr. Sampson coming to
me and telling me that this was an idea raised by Ms. Miers.
Senator Sessions. You rejected that.
Attorney General Gonzales. Yes.
Senator Sessions. Then Kyle Sampson proposed--Senator
Feinstein has expressed concern about the new law that allows
appointment without a potential confirmation hearing here. She
asked about that. And Mr. Sampson said these appointments
should be made under that new Act. I believe he testified that
you disapproved and said no, and that, ``the Attorney General
was correct.'' Is that a fair statement?
Attorney General Gonzales. Senator, I never liked this
idea, quite frankly, because I believe it is important for
United States Attorneys to be Presidentially appointed and
confirmed. They've got to knock heads sometimes with other
Federal officials and with State and local officials. I just
think it makes them look stronger to have been through that
process. And quite frankly, I thought it was kind of a dumb
idea, because the first time we would do it as a matter of
routine the Senate would simply change the law, and so I never
liked the idea.
And the first opportunity, the first concrete time
opportunity came up with respect to Mr. Griffin in the Eastern
District of Arkansas, and I had conversation with Senator
Pryor, and I told Senator Pryor we're going to put in Tim
Griffin in an interim basis. I want to see how he does. You
should see how he does. Let's see how he does.
Senator Sessions. Not utilize the new Act?
Attorney General Gonzales. Pardon me?
Senator Sessions. You did not utilize the new--
Attorney General Gonzales. Even before the change in the
law, the Attorney General had the authority to put someone in
on an interim basis for at least 120 days. That's been true for
many, many years. What changed here was eliminating the 120-day
requirement. But I had told Senator Pryor I wanted Mr. Griffin
in for a period of time. Let's see how he does. And in a
subsequent conversation with Mr. Pryor I asked him, ``Can you
support Mr. Griffin as the nominee? '' And he made it clear to
me that he would not support him by not giving me a yes answer,
and so I said: Well, then I cannot recommend him to the White
House, because if you don't support him, I know he will not be
confirmed. We'll look for someone else, and give me names that
we ought to consider.
And so at the first concrete opportunity that came up with
respect to this interim authority and avoid Senate
confirmation, what I did was consult with the home State
Senator, solicit his views, and when I believe that he was not
going to be supportive of Mr. Griffin as a nominee, I said,
fine, we'll look a different direction.
Senator Sessions. My time is expired.
Chairman Leahy. Of course, under the law that we then voted
to repeal, you could have kept him in there whether Senator
Pryor wanted him or not. You know, Mr. Attorney General, you
said in answer to Senator Sessions' question you do not recall
the November 27 meeting where you made the decision.
Attorney General Gonzales. Senator, I don't know that a
decision was made at that meeting.
Chairman Leahy. How can you be sure you made the decision?
Attorney General Gonzales. Senator, I recall making the
decision. I recall making the decision.
Chairman Leahy. When?
Attorney General Gonzales. Sir, I don't recall when the
decision was made.
Chairman Leahy. We may go back to that. Count on it.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Leahy. And I will ask, again, I will advise the
people in the audience, this is a serious matter. Out of
respect both for the Senate and the Attorney General, I would
ask not to have any displays of either approval or disapproval.
You certainly are going to have plenty of time to state that
publicly to one way or the other to the press, but not here.
Senator Schumer. Thank you, Mr. Chairman.
Thank you, Mr. Attorney General. First I want to just go
back to an interchange that you had a couple of minutes ago.
You told Senator Feinstein that Carol Lam was, quote, these are
your words, ``acutely aware of the Department's concerns about
her immigration enforcement.''
Now let me read to you a portion of Mr. Sampson's public
testimony on March 29th. He said, ``I'm not suggesting that
someone did give Carol Lam notice,'' these are his words. ``I
think we did not give--no one to my knowledge talked to Carol
Lam about the concerns we had in the leadership of the
Department about her office's immigration enforcement.''
This is Kyle Sampson, the man you said was at the center of
the whole decisionmaking process saying she was not given
notice, and yet, a few minutes ago you told Senator Feinstein
that she was, ``acutely aware.''
Attorney General Gonzales. Notice of what, Senator?
Senator Schumer. Notice both case of immigration
enforcement, both--
Attorney General Gonzales. Senator, I'm not going to
characterize Mr. Sampson's testimony. What I will tell you is
what I recall, and I will tell you what I have learned from
looking at the documents. I believe in looking at the
documents, there was communication with Ms. Lam about how she
was doing with respect to immigration. There was a lot of
communication by Members of Congress with Ms. Lam about
immigration. And so she was aware that there was some concern,
certainly interest, about how she was doing in--otherwise, why
would we contact her?
Senator Schumer. Senator Feinstein just informs me Carol
Lam was not aware of the Justice Department's views on her
prosecution of immigration. Kyle Sampson says she was not
aware. And you are saying that the Department made her aware,
and this is what we have been through all morning. The people
that we have interviewed, whether it is Kyle Sampson or Mercer
or Battle, have contradictory statements as to what you say. I
am sure when the Department has trouble with a U.S. Attorney
they do not tell a Congressman to go tell her. Which is right?
Attorney General Gonzales. Senator, I recall sitting in a
meeting concerned about Ms. Lam, and saying that those numbers
needed to change, and I expected that information to be
communicated. Now, Ms. Lam may not have been told that in fact,
if you don't change your policies, there's going to be a
change, but I believe, looking at the documents--and I never
spoke to her directly--but I believe looking at the documents
that she had knowledge that there was certainly an interest
about her immigration numbers. And why would we have an
interest but for the fact that we were concerned about those
numbers.
Senator Schumer. Kyle Sampson said no one told her. She
said no one told her.
Attorney General Gonzales. No one told her what? No one
told her that if--that there was any interest or concern, or no
one told her that if you don't change, you're going to be
removed?
Senator Schumer. I will yield to my colleague.
Senator Feinstein. If I may, Attorney General, Carol
Sampson said she was never spoken to--
Senator Schumer. Carol Lam.
Senator Feinstein. Excuse me. Carol Lam said she was never
spoken to by the Department about their concern on her
immigration prosecutions.
Senator Schumer. Let me just say, Mr. Attorney General,
this is a serious hearing, you have had months to prepare. The
U.S. Attorney in question says she was not spoken to. Kyle
Sampson, at public testimony, not the private transcripts, not
a private conversation, says the same.
Attorney General Gonzales. Senator, I did not say that Ms.
Lam was aware that if her numbers didn't change, we would ask
her to resign. What I said was that she was aware of the
concerns, and certainly the interest that we had about her
performance. There's no question about that. If you look at the
letters, if you look at the e-mail communication, there is no
question about that.
Senator Schumer. Sir, I am going to move on. I think the
record will state just what we have stated, that she does not
believe she was talked to and Kyle Sampson does not believe she
was talked to about immigration concerns. That was Senator
Feinstein's question. That is what Carol Lam said. That is what
Kyle Sampson said. I am going to move on here.
Attorney General Gonzales. But why would Members of
Congress send her letters about her immigration reform?
Senator Schumer. Sir.
Attorney General Gonzales. Why would they want to have
meetings with her?
Senator Schumer. Sir.
Attorney General Gonzales. Why did we send her
communications about immigration? Because there was concern
about her numbers.
Senator Schumer. Is it general policy of the Department of
Justice, when they have problems with a U.S. Attorney, to let a
Congress member tell them that something is wrong, or is the
Department supposed to communicate directly with the U.S.
Attorney?
Attorney General Gonzales. Here's what I'll say, I think we
should have done a better job in communicating with Ms. Lam. I
think we should have done a better job in communicating with
all of these United States Attorneys. I've already conceded
that, and that's one of the things that we're going to
institutionalize going forward.
Senator Schumer. But, sir, the issue goes beyond that. It
goes to who is telling the truth around here. You said a minute
ago she was told. She is saying, Kyle Sampson is saying she was
not told. It is beyond doing a better job, it is getting to the
real truth in a hearing where you have had a month to prepare,
where all of these things are public. It is a key question, and
it is still an answer that contradicts what others have said.
But I am going to move on because I have limited time. this is
about another issue. There is a real question raised by this
investigation about whether you and the Department of Justice
intended to bypass the Senate's role in confirming the U.S.
Attorney as it relates to the law that Senator Feinstein passed
and all but two of us in the Senate voted for, and equally
troubling, as I mentioned, is a real question about whether you
were honest with the Members of Congress about your intent, and
this is a serious matter.
Attorney General Gonzales. I agree, Senator.
Senator Schumer. To emphasize how serious I want to read to
you what Senator Pryor had to say on the floor of the Senate
about his interactions with you.
Attorney General Gonzales. Can I see his transcript?
Senator Schumer. Yes. But I will read it. It is very clear.
And I am sure you know it, his searing words, as you will hear.
Attorney General Gonzales. I would like to see it.
Senator Schumer. We will get it to you. As everyone here
knows, Senator Pryor is one of the most temperate members of
the Senate. He is mild mannered, and his words are all the more
striking for that reason. He said: ``The Attorney General not
only lied to me as a person, but when he lied to me, he lied to
the Senate and he lied to the people I represent.'' I spoke to
Senator Pryor yesterday. He stands by those words.
Kyle Sampson wrote to Harriet Miers last September--that is
what he wrote--he wrote that they wanted to do this plan of
getting around the Senate and appointing interim U.S.
Attorneys, and he also told Congress that the White House never
rejected the idea of evading the Senate confirmation in the
Eastern District of Arkansas. According to Kyle Sampson, you
became aware of this idea or plan in early December of 2006. He
told you about it. You did not reject it.
Then on December 19th Kyle Sampson is promoting this
astonishingly perverse plan. He is going forward with it. And
this poster, which we have here--and I will get you a copy of
what it says--shows it. Sampson's advice to the White House is,
``We'' meaning the Department, ``We should gum this to death to
run out the clock.'' He lays out a specific plan for running
out the clock. The Department of Justice should ask Arkansas
Senators to meet Tim Griffin, give him a chance. After that,
the administration to pledge to desire a Senate-confirmed U.S.
Attorney and so forth. The plan was to use these tactics to
delay so Griffin could stay in without Senate confirmation
until the end of the President's term.
But now, 4 days before Kyle Sampson sends that plan, you
personally talked with Senator Pryor. Kyle Sampson testifies
that he was in the room. You talked to him twice--he was in the
room on one of those occasions--about Tim Griffin. Kyle Sampson
says you talked with Senator Pryor two times. He was in the
room and you said to Senator Pryor that you wanted to go
through a Senate confirmation. This is in December. What would
you think if you are in Senator Pryor's shoes? There is a plan
to circumvent U.S. Attorneys early in December. You go along
with that.
Attorney General Gonzales. I didn't go along with it.
Senator Schumer. On December 19th a memo was sent to
implement it. Yet on December 15th you are on the phone with
Senator Pryor saying, oh, no, no, you are going to get
confirmation.
So which is it? Again, did Kyle Sampson put out this memo
completely on his own? And if he did, I mean you cannot have it
both ways. If your chief of staff is implementing a major plan
that contradicts what you just told a U.S. Senator from that
State, in my view you should not be Attorney General. And if on
the other hand, what you said to Senator Pryor contradicts the
plan you also should not be Attorney General. Can you explain
what happened to you?
Attorney General Gonzales. Yes.
Senator Schumer. Because I am totally sympathetic with what
Senator Pryor said.
Attorney General Gonzales. Mr. Sampson also testified 15 to
20 times in various ways that I either rejected this plan, I
never liked this plan, thought it was a bad idea, never
considered it, would not have considered it.
Senator Schumer. No. He said that you did know about it. He
told you about it and you did not reject it.
Attorney General Gonzales. Senator, 15 to 20 times he said
I either rejected it, didn't like it, thought it was a bad
idea, wouldn't consider it, didn't consider it.
Senator Schumer. Oab. Then he went ahead, when you did not
like the plan, on December 19th?
Attorney General Gonzales. Senator, I didn't--
Senator Schumer. That was later that you did not like the
plan. Kyle Sampson said in December you had no rejection of the
plan. But let's even assume you did not like it. What are we to
think as U.S. Senators? You do not like a plan your chief of
staff, the man in charge of everything, even though you are
saying do not do this plan, puts out something to go ahead and
go forward. Who is running the Department?
Attorney General Gonzales. Senator, I wasn't aware of this
e-mail, but again, I want to be very, very clear about this. I
never liked this plan.
Senator Schumer. You never liked the plan, and your chief
of staff, 4 days after you assure Senator Pryor otherwise, puts
out a detailed, step-by-step process on how to implement the
plan. Does that indicate someone who is running the Department?
Attorney General Gonzales. Senator, Mr. Sampson has
testified that this was a bad idea, and it was a bad idea, and
it was never accepted, not only by me, but he also testified as
to the principles.
Senator Schumer. Sir, Mr. Sampson said it was a bad idea in
retrospect in February and March. In December he was going full
bore ahead with the plan, as the memo you have just been shown
shows.
Attorney General Gonzales. Senator, and he's also
testified--if we're going to go on his testimony--that this was
a plan I never liked, that I rejected it, that I didn't
consider it--
Senator Schumer. No. That is not what he testified to, sir.
Go look at the transcript. In December he says you did not
reject the plan when he talked to you about it.
Attorney General Gonzales. Sir, I don't recall the exact
timeframe, but he also said that I never liked this idea, I
didn't consider it and wouldn't consider it.
Chairman Leahy. Gentlemen.
Senator Schumer. I would just say, sir, that it defies
credulity that your chief of staff, 4 days after you tell
somebody you're going one way, goes exactly the opposite way
and says, says that you never rejected the plan when you say
you did.
Thank you, Mr. Chairman.
Chairman Leahy. Obviously, though, you accepted the use of
the provision in the PATRIOT Act to replace a number of
Senators, and now in probably the strongest bipartisan vote I
have seen in the Senate in years, we voted to remove that from
the PATRIOT Act.
Attorney General Gonzales. Senator, if you look at the
record, the reauthorization of the PATRIOT Act was March 9th,
and the administration has nominated to virtually all these
vacancies. We are pursuing and have been pursuing and
respecting the role of the Senate, and I take issue with
Senator Schumer's characterization.
Chairman Leahy. We will go back to that. Senator Graham has
been waiting patiently, but I would note that when you talk
about sending up nominations to these vacancies, you sent two
nominations, 21 vacancies. That is one out of 10.
Attorney General Gonzales. Senator, sometimes it's because
we have to wait for recommendations from home State Senators,
so let's look at their performance as well.
Chairman Leahy. Sometimes I think one would look for the
possibility of a nomination before they started--
Attorney General Gonzales. We want to continue working with
the Senate.
Senator Graham. Thank you, Mr. Chairman. Is it my turn?
Chairman Leahy. I will let that one go. We have a
difference of opinion.
Go ahead, Senator Graham.
Senator Graham. Let us make sure that we understand the two
things we are talking about in terms of plans. One plan was to
get rid of all 93 U.S. Attorneys at once; is that correct?
Attorney General Gonzales. Sir, I don't know if I would
call it a plan. It was an idea that was raised.
Senator Graham. And it was shot down.
Attorney General Gonzales. That is correct.
Senator Graham. This plan that you are talking about with
Senator Schumer involves what?
Attorney General Gonzales. As I understood it, what I
expected Mr. Sampson to do was coordinate a review of all U.S.
Attorneys, and make an evaluation, make a recommendation to me
as to where there were issues or concerns of particular U.S.
Attorney districts where it may be appropriate to make a change
for the benefit of the Department.
Senator Graham. This December memo that he is talking
about, or e-mail, what is the point there? From your point of
view, how do you reconcile the conversation with Senator Pryor
and the e-mail?
Attorney General Gonzales. Senator, it's difficult for me
to reconcile the conversation. All I know is what I
communicated to Senator Pryor in good faith.
Senator Graham. Was?
Attorney General Gonzales. Was that we wanted to put Mr.
Griffin in on an interim basis. I didn't know Mr. Griffin that
well, and I wanted to see how he did, and I recall telling
Senator Pryor--
Senator Graham. And the reason Mr. Griffin was going to be
put in is because the White House wanted him to have an
opportunity to serve in this position?
Attorney General Gonzales. This was a well-qualified
individual, and, yes, the White House had a desire to have him
serve.
Senator Graham. And it was no problem with Mr. Cummins'
performance, it was just a preference for somebody new in the
second term?
Attorney General Gonzales. I would say that's a fair
statement.
Senator Graham. Now, if you told Mr. Sampson 15 or 20 times
this is a bad idea, why did it not sink in?
Attorney General Gonzales. Sir, I didn't tell him 15 or--I
don't recall telling him 15 or 20 times. As I reviewed the
transcript from his testimony, he was asked repeatedly about
whether or not was this something the Attorney General
supported or approved, and my recollection is, is that 15 to 20
times he said something like, I didn't consider it, I wouldn't
consider it, thought it was a bad idea, I rejected it, it was
rejected by principles. So 15 or 20 times, as I recall, this
question was posed to Mr. Sampson in one way or another to try
to get a sense--
Senator Graham. But he always said you never bought into
this idea?
Attorney General Gonzales. Well, sir, he never said that,
as I recall, in his testimony. And again, the first opportunity
really where this came up--
Senator Graham. But he always said that you disagreed with
this plan?
Attorney General Gonzales. I believe he said I didn't like
it. Look, I know I didn't, I never liked it. I thought--again,
I thought--
Senator Graham. And what did you not like?
Attorney General Gonzales. What I didn't like was the fact
that I think it's more important to have U.S. Attorneys
nominated by the President and confirmed by the Senate because
I believe it--you know, that certainly the appearance of more
authority, and it makes it more effective.
Senator Graham. The White House had a different view?
Attorney General Gonzales. Sir, I can't speak for the White
House, quite--
Senator Graham. Where did this idea come from?
Attorney General Gonzales. Which idea, sir?
Senator Graham. The idea of Senate confirmation being
changed?
Attorney General Gonzales. Well, let me--I can't speak to
where the idea came from, but what I can say is that I
supported the idea because I don't--I supported a change in the
law, not the idea of avoiding Senate confirmation. I supported
the change in the law because I didn't like the notion of a
judge telling the Attorney General who should be on his staff,
and the prior law had a requirement that after 120 days of an
interim appointment, then the chief judge in the district makes
the decision about who serves as the acting--the acting United
States Attorney.
Senator Graham. Just some personal advice, you know, we all
respect Senator Pryor, and he said some pretty harsh things,
which is out of character, so I would just advise you to set
down with him and walk through what happened, because I think
he is a reasonable fellow, and you all straighten that out if
you can.
Attorney General Gonzales. Senator, I couldn't agree more.
I have a great deal of admiration for Senator Pryor, and I
think that's a good idea.
Senator Graham. I guess my basic problem is that you
apologize here in April to all the U.S. Attorneys that have
gone through pretty hard times about their job performance, and
you gave a very good explanation to Senator Brownback about
each person. But it took us a long time to be able to nail that
down, and you have given news conferences where things were--
you did not have any ownership of the process, basically, you
delegated it. You made the final decision, but the process
itself--is it fair to say that when you made your final
decision it was based on trust of your senior team more than it
was knowledge?
Attorney General Gonzales. I think that's a fair
assessment. Again, what I understood was that the
recommendation that would come to me would be a consensus
recommendation of people that I trusted that would know most,
certainly better than I, about the qualifications and
performance of United States Attorneys.
Senator Graham. My basic question is that the decision to
replace people based on poor performance that you would roll
out to the Nation, because eventually it was your decision, I
know you have said this, but it really does bother me that
people like Mr. Iglesias apparently were never able to tell
their side of the story. If someone came to me and said, this
person has to go, they are not doing their job well in terms of
prosecuting a particular case or a series of cases, they need
to go, no one seemed to contact Mr. Iglesias and say, ``What is
your side of the story? ''
Attorney General Gonzales. Senator, I agree with that. I
think in hindsight, certainly, what I discovered is that we
don't have good enough communication between me--
Senator Graham. And you said Ms. Lam did have notice of her
poor performance.
Attorney General Gonzales. Senator, I think Ms. Lam
certainly had notice of the fact that there was interest, if
not concern, about her immigration numbers. There were
meetings. There was communication with her.
Senator Graham. I guess what I am trying to wonder, is this
really performance based or do these people just run afoul of
personality conflicts in the office and we were trying to make
up reasons to fire them because we wanted to get rid of them?
Attorney General Gonzales. Sir, I think if you look at the
documentation, I think you can see that there is documentation
supporting these decisions.
Senator Graham. Mr. Attorney General, most of this is a
stretch. I think it is clear to me that some of these people
just had personality conflicts with people in your office or at
the White House, and we made up reasons to fire them. Some of
it sounds good, some of it does not, and that is the lesson to
be learned here.
Attorney General Gonzales. Senator, I respectfully disagree
with that, I really do.
Senator Graham. I do believe this, that you never
sanctioned anybody being fired because they would not play
politics a particular way.
Attorney General Gonzales. I would not do that.
Senator Graham. I do believe that your associates have
prosecuted both Democrats and Republicans. I do not believe you
are that kind of person. I do not believe that you are involved
in a conspiracy to fire somebody because they would not
prosecute a particular enemy of a politician or a friend of a
politician. But at the end of the day, you said something that
struck me, that sometimes it just came down to these were not
the right people at the right time. If I applied that standard
to you, what would you say?
Attorney General Gonzales. Senator, I think what I would
say, what I would say--Senator, what I would say is that I
believe that I can continue to be effective as the Attorney
General of the United States. We've done some great things in
the past 2 years.
Senator Graham. And you have done some very good things, I
agree with that.
Attorney General Gonzales. I acknowledge the mistakes that
I have made here. I've identified the mistakes. I know what I
would do differently. I think it was still a good idea.
Senator Graham. What kind of damage do you believe needs to
be repaired on your part with the Congress or the Senate in
particular?
Attorney General Gonzales. Senator, I think I need to
continue to have dialog with the Congress, to try to be as
forthcoming as I can be to reassure the Congress. I've tried to
inform the Congress that I don't have anything to hide. I
didn't say no, to the document request. I didn't say ``no, you
can't interview'' to my internal staff. You know, I asked OPR
to get involved. I've done--everything I've done has been
consistent with the principle of pursuing truth and
accountability.
Senator Graham. Finally, you are situationally aware that
you have a tremendous credibility problem with many Members of
the Congress, and you are intent on trying to fix that. Today
is a start, right?
Attorney General Gonzales. Absolutely, Senator.
Senator Graham. Thank you.
Chairman Leahy. Senator Durbin of Illinois.
Senator Durbin. Thank you, Mr. Chairman.
Thank you, Mr. Attorney General, for being with us today.
When you were White House counsel, did you ever sit in on these
meetings with the Attorney General and Karl Rove to discuss
judicial nominations and nominations for U.S. Attorneys?
Attorney General Gonzales. Senator, that's an internal
White House process of making decisions about judicial nominees
and U.S. Attorneys. I was a part of that committee. Mr. Rove
would, I would say infrequently, but he would occasionally be
present at these meetings.
Senator Durbin. Do you recall the conversation leading up
to the nomination of Patrick Fitzgerald to be the U.S. Attorney
for the Northern District of Illinois?
Attorney General Gonzales. I do not.
Senator Durbin. You were not present?
Attorney General Gonzales. I do not recall. I'm sorry, I
thought your question was ``do you recall the conversation? ''
I don't recall the conversation. I don't recall whether or not
I was present. I suspect I probably was, but I don't recall.
Senator Durbin. It has been reported that Mr. Rove had
misgivings about Patrick Fitzgerald because of the political
impact it might have in my State of Illinois. Do you remember
any statements by Mr. Rove to that effect?
Attorney General Gonzales. I don't recall, Senator. Where
has it been reported?
Senator Durbin. It has been reported in the New York Times.
I can read portions of it to you, but it is in a March New York
Times article just recently published. But I would like to ask
you this: you took over as Attorney General, if I am not
mistaken, in January of 2005?
Attorney General Gonzales. I believe it was in February of
2005, Senator.
Senator Durbin. February 2005. At the time you knew who
Patrick Fitzgerald was?
Attorney General Gonzales. Yes, sir.
Senator Durbin. He was a rather high profile U.S. Attorney
having been chosen as Special Counsel by Deputy Attorney
General Comey to investigate the Valerie Plame incident and the
involvement of the Vice President's Office and other offices;
is that correct?
Attorney General Gonzales. That is correct.
Senator Durbin. Shortly after you arrived, there was an
evaluation made of Patrick Fitzgerald's performance as U.S.
Attorney. Do you remember that evaluation?
Attorney General Gonzales. Senator, I think you--no, sir, I
don't. I don't know what evaluation you're referring to. Could
you just, please, clarify?
Senator Durbin. The evaluation I refer to was by Mr.
Sampson.
Attorney General Gonzales. Okay. I'm aware now of what
you're referring to.
Senator Durbin. And you are aware of the fact that Patrick
Fitzgerald, who had been designated Special Counsel, who was in
the process of investigating any criminal wrongdoing by members
of the President's or Vice President's staff, was given a
recommendation that said he had ``not distinguished himself
either positively or negatively.'' Do you remember that?
Attorney General Gonzales. Senator, now I'm aware of this.
I didn't know about this at the time, but subsequent--I mean
recently I've become aware of this issue.
Senator Durbin. So these evaluations by Kyle Sampson of
U.S. Attorneys were never shown to you?
Attorney General Gonzales. Senator, I don't recall ever
seeing these evaluations.
Senator Durbin. Let me ask you point blank: do you think
that was a fair evaluation of Mr. Fitzgerald at that time?
Attorney General Gonzales. Well, let me say a couple of
things. One, I recused myself and had been recused with respect
to Mr. Fitzgerald and the investigation. Two, even if I weren't
recused, I would have serious questions about an evaluation of
a U.S. Attorney involved in this kind of prosecution. And
third, let me just say that based upon my own personal
knowledge and experience, I think Mr. Fitzgerald is an
outstanding prosecutor.
Senator Durbin. Are you aware of the fact that Kyle Sampson
testified under oath that he recommended to Harriet Miers that
Patrick Fitzgerald also be removed as a U.S. Attorney as part
of this purge?
Attorney General Gonzales. Senator, I'm aware of what he
said. I remember reading the transcript. I'm not sure that it
was a recommendation, per se. I'm aware of what he said in his
testimony, yes, sir.
Senator Durbin. Did he speak to you before he made that
recommendation, and tell you that he was going to ask for
Patrick Fitzgerald to be removed in the middle of this
investigation of the White House?
Attorney General Gonzales. I don't recall him speaking to
me about that, sir.
Senator Durbin. It did not happen, it did happen, or you do
not recall?
Attorney General Gonzales. Senator, again, you're talking
about events that happened over 2 years, thousands of
conversations. I don't think that conversation occurred.
Senator Durbin. Mr. Gonzales, this is the highest profile
U.S. Attorney in America.
Attorney General Gonzales. Yes.
Senator Durbin. He is investigating the White House,
including people that you have worked with for years, and now
your chief of staff is going to make a recommendation to the
President's White House counsel that he be removed as U.S.
Attorney and you cannot remember that conversation?
Attorney General Gonzales. Senator, I don't think that
conversation happened. I don't think he ever made that
recommendation to me or raised it. And I wouldn't characterize
it as a recommendation. I would refer you back to his
testimony. But whatever it was, I don't think he raised it with
me.
Senator Durbin. Did you ever have a conversation after the
appointment of Patrick Fitzgerald as a Special Counsel to
investigate the White House over the Valerie Plame incident,
with either the President or Mr. Rove about the removal of
Patrick Fitzgerald?
Attorney General Gonzales. Senator, I believe the answer to
that is no.
Senator Durbin. Could I ask you about the other U.S.
Attorneys that were removed? Did you ever have a conversation
with Karl Rove about the removal of David Iglesias?
Attorney General Gonzales. Senator, I recall a conversation
with Mr. Rove. It wasn't a recommendation or a discussion about
removal of Mr. Iglesias. But there was a discussion that I
recall Mr. Rove had with me about voter fraud cases in three
districts, including New Mexico, which of course, Mr. Iglesias
is United States Attorney.
Senator Durbin. What did Karl Rove say to you?
Attorney General Gonzales. Senator, my recollection, the
conversation was basically, I've heard complaints about voter
fraud prosecutions or lack of prosecutions, and again, I could
be--I'm paraphrasing. I don't recall precisely what he said,
but it was generally about voter fraud prosecutions or voter
fraud cases in three districts, including New Mexico.
Senator Durbin. And there was no conclusion to that
conversation about the fate of Mr. Iglesias?
Attorney General Gonzales. Senator, I believe that I
communicated this information to Mr. Sampson, but I don't
remember or recall what happened after that.
Senator Durbin. How about the fate of Mr. Iglesias himself?
Was that something that you were party to, the decision for his
removal?
Attorney General Gonzales. It was my decision.
Senator Durbin. And now that you reflect on that decision,
having looked at his performance and considered the calls that
were made by Members of Congress, do you still think that was
the right decision?
Attorney General Gonzales. Senator, I think that is a very
fair question. Obviously--and, by the way, this is a matter
being investigated by the Congress, so I am not conceding that,
in fact, what Mr. Iglesias said was true. Senator Domenici and
Congresswoman Wilson will have the opportunity to present their
story. But if a Member of Congress contacts a U.S. Attorney to
put pressure on him on a specific case, that is a very, very
serious issue. And if, in fact, we had known, if the Deputy
Attorney General, I believe, had known about these calls, which
Mr. Iglesias admitted that he did not contact us, would it have
made a difference? It probably would have made a difference.
But now we are looking in hindsight, and so what we also know
is that Mr. Iglesias did not report these conversations. That
was a serious transgression. He intentionally violated a policy
meant to protect him.
And so as we weigh these additional facts, my conclusion is
that I stand by the decision that Mr. Iglesias should no longer
serve as United States Attorney.
Senator Durbin. In the situation with Carol Lam, did you
have any conversations with Karl Rove about her fate?
Attorney General Gonzales. Senator, I don't recall having
any conversations with Mr. Rove about Ms. Lam in connection
with this process.
Senator Durbin. Let me conclude, Mr. Chairman. I thank
everyone for their patience here. I am going to send this
article down to you, and I wish you would take a look at it. It
is an article published in the Chicago Tribune April 17th by
Patrick M. Collins. Do you know Mr. Collins?
Attorney General Gonzales. I don't believe I do, sir.
Senator Durbin. Mr. Collins served as an Assistant U.S.
Attorney from 1995 to March 2007, was the lead prosecutor in
the trial of a former Governor of Illinois, worked with Mr.
Fitzgerald. He believes that your continued service creates a
problem for people who have served in his position as Assistant
U.S. Attorney, and he believes that, frankly, it raises
questions about their impartiality when it comes to public
corruption cases. He says in conclusion here, ``all U.S.
Attorneys `serve at the pleasure of the President,' . . . But
they must never serve only to please the President.''
Attorney General Gonzales. I agree with that.
Senator Durbin. And I think what we have heard here about
some of the political considerations, comments about ``loyal
Bushies'' by Kyle Sampson, the involvement of Mr. Rove in
decisions about the fate of some of these U.S. Attorneys,
raises serious questions as to whether or not your continued
service is going to make it difficult for professional
prosecutors in the Department of Justice to do their job
effectively.
Attorney General Gonzales. Senator, if I could respond, I
think, again, it's absolutely true that this is not about
Alberto Gonzales. It's about what's best for the Department and
whether or not I can continue to be effective in leading this
Department.
I believe that I can be. I think that there are some good
things that working with this Committee I can accomplish on
behalf of this country. Clearly, there are issues that I have
to deal with, and I am going to work as hard as I can to re-
establish trust and confidence with this Committee and Members
of Congress, and, of course, with the career professionals in
our Department. And all the credit, everything that we do, the
credit goes to them. And so when there are attacks against the
Department, you're attacking the career professionals.
Senator Durbin. Mr. Gonzales, that is like saying if I
disagree with the President's policy on the war I am attacking
the soldiers.
Attorney General Gonzales. What I'm saying is--
Senator Durbin. The fact of the matter is--
Attorney General Gonzales.--you should attack me. You
should attack me.
Senator Durbin.--your conduct in this Department--your
conduct in this Department has made it more difficult for these
professionals to do their job effectively--
Attorney General Gonzales. And I'm going to deal with that.
Senator Durbin.--and if you ignore that reality, then you
cannot be effective as an Attorney General.
Attorney General Gonzales. Senator, I understand that, and
I'm going to work at that. What I'm saying is that be careful
about criticizing the Department. Criticize me.
Senator Durbin. Mr. Gonzales, this testimony today is from
you about your reputation. It is not about the reputation of
the men and women working in these offices.
Attorney General Gonzales. Thank you, Senator.
Chairman Leahy. What we will do is, so everybody will
understand--Officer?
What we will do, if I might have the attention of everybody
here, we will break for lunch until 2 o'clock. After lunch,
provided the funeral is over, we will recognize Senator
Grassley, then Senator Cardin, then Senator Coburn, then
Senator Whitehouse, then Senator Kyl, then Senator Biden, and
we will go to a second round. Is that OK with you, Senator
Specter.
Senator Specter. Yes, sir.
Chairman Leahy. We stand in recess.
[Whereupon, at 12:37 p.m., the Committee was recessed, to
reconvene at 2 p.m., this same day.]
AFTERNOON SESSION [2:35]
Chairman Leahy. I want to welcome everybody back. As you
understand, we had votes in the Senate, which delayed us coming
back, but it was the Port Security Act, which is a significant
piece of legislation, which I know the Attorney General and
everybody on this Committee has supported, and a significant
piece of legislation which we passed, and I thank all the
Senators who supported it.
As I mentioned this morning, Senator Grassley had to be at
a funeral and would have been recognized much earlier this
morning, but we will begin, Senator Grassley, with you.
Senator Grassley. Thank you very much.
General Gonzales, I have reserved judgment on what has
happened with the firing of U.S. Attorneys. I have to admit
that it has been difficult. The inconsistent information has,
unfortunately, made what may be a perfectly explainable
situation into something that many have already concluded was
misconduct. Your testimony today--and I left about the time you
were starting your opening statement, so I have missed
everything since then. But your testimony today, it seems to
me, is extremely important, at least for me, to sort through
all the facts and draw my own conclusions. I hope your
testimony sets the story straight and clears the waters.
No one seriously takes issue with the statement that U.S.
Attorneys serve at the pleasure of the President. The President
has the authority to hire or fire U.S. Attorneys. If an
individual was not pursuing his priorities aggressively enough
or if the President wanted to give another candidate an
opportunity, those things are not against the law. However, it
is improper for a President to fire a U.S. Attorney for
retaliatory reasons or to impede or obstruct a particular
prosecution for unjust political or partisan gain. We do not
want to see the independence and integrity of our attorneys
compromised to a point where they are not serving their
district in the interest of justice.
I do not know if the U.S. Attorneys were fired because they
were pursuing or not pursuing investigations or prosecutions
based on political motivation. But once the administration
started to make representations to Congress and the American
people about how or why the firings came about, those
representations had to be accurate and complete. Yet documents
produced by your Department are inconsistent with public
statements and congressional testimony of other officials and
we just do not have a straight story on what transpired and
whether the motivations for what happened were pure.
You are well aware that I am very serious about conducting
congressional oversight. Oversight is a core responsibility of
my job as a Member of the Senate. I am an equal opportunity
oversight person when it comes to that. Over the years I have
looked into both Republican and Democrat administrations with
the same vigor. So to get complete and truthful information is
important for me, but I feel that on many occasions this
administration has made a concerted effort to thwart my
oversight efforts. Just last week, the Justice Department tried
to block a convicted felon from testifying before the Finance
Committee. I was glad to say that the Federal courts disagreed
with you, and in the end we got our witness.
I know that the Justice Department has produced documents
to the Judiciary Committee in response to our request for
information on U.S. Attorney firings, but your representations
to Congress need to be accurate and complete, or else our
oversight activities will not be able to get to the bottom of
anything. We should not be getting conflicting statements from
the Attorney General and/or his staff. We should not be getting
conflicting statements at all. The story needs to be
consistent, complete, and, of course, it must be the truth. We
and the American people expect nothing less from our top law
enforcement officials.
So, General Gonzales, I hope that you will be able to be
complete and forthcoming and candid with me as I ask questions.
I am looking for my first question to see what the environment
was and the situation all this took place. I would like to
start by asking you for an explanation as to why there are so
many inconsistencies. There is something about the environment
you work in that would produce these inconsistencies. How does
that happen?
Attorney General Gonzales. Senator, I think as an initial--
well, first of all, I regret the inconsistent statements, and
as I said in my opening statement, the misstatements are my
mistakes, and I accept responsibility for it.
I think as an initial matter, when I came out on March 13th
and gave the press conference, I made some statements that
were, quite frankly, overbroad. I should have been more precise
in my statements. One of the reasons is because--one of the
primary reasons is because I had not gone back and looked at
the documents. I hadn't gone back and looked at my calendar,
for example, about the November 27th meeting.
And so, in hindsight, maybe I got out there too quickly, or
certainly my statements were too broad. I felt a tremendous
need to come out quickly and defend the Department about
accusations about improper conduct. And that is why I made the
statements on March 13th, and in hindsight that was a mistake,
because obviously we had not gathered up all the documents
which we have now produced to the Congress. But I accept full
responsibility for not being more careful.
Senator Grassley. So you are not running a Department where
there is enough protocol so that everybody can be on the same
page?
Attorney General Gonzales. I wouldn't say that, Senator.
Again, this was a situation where there was a lot of
information--we are talking about a 2-year process, and
conversations and meetings that happened over a 2-year process.
And I did not do my job in making sure that I had all the
information before I made my first public statements. And those
first public statement, I should have been more careful about
those statements.
Senator Grassley. Oka7. In prior statements, you indicated
that you really had not been involved in any discussions or
deliberations to remove the U.S. Attorneys. But e-mails
indicated that you had discussions with Mr. Sampson about this
in late 2004 or early 2005 and that you attended a November
2006 meeting just prior to the firing. Mr. Sampson testified
before this Committee that your statements were not fully
accurate, and your testimony today backtracks on what you said
earlier.
Why is your story changing? Can you tell us when you first
got involved and the extent of your participation in the
process to evaluate and replace U.S. Attorneys? And,
additionally, who came up with the plan to evaluate U.S.
Attorneys?
Attorney General Gonzales. Yes, sir. Well, the reason why
my statements initially were incorrect is because I had not
gone back and looked at the record. Since then, I have tried to
clarify it. I think Mr. Sampson even in his testimony said that
I have clarified my statements.
The meeting--the e-mail that you are referring to, the
discussion that happened in either--I think January 2005, as I
recall, Senator, would relate to a discussion that would have
happened in Christmas week, between Christmas and New Year's,
and just weeks before my confirmation. And so I don't have a
recollection of that discussion, quite frankly, but what we
have tried to do since this time, since early March, is gather
up as much information as we can and provide to the Congress
documents and make people available so that we can get to the
bottom of what happened here.
And I'm here to provide what I know, what I recall as to
the truth in order to help the Congress help to complete the
record, but there are clearly some things that I don't know
about what happened, and it is frustrating to me as head of the
Department to know that--to not know that still today. But I
haven't done that--I haven't talked to witnesses because of the
fact that I haven't wanted to interfere with this investigation
and Department investigations.
Senator Grassley. Who did you discuss the review with at
the White House? Did you question any of the recommendations?
Were you comfortable with the process and the methodology for
the final recommendations? And what was your personal input in
that process?
Attorney General Gonzales. Senator, as to whether or not I
had a specific conversation with individuals about the review
process is not something that I can recall having that kind of
conversation. I had understood that there was a process in
place where Mr. Sampson would consult with the senior
leadership in the Department, people that knew the most
information about U.S. Attorneys, and that he would bring back
to me a consensus recommendation of the senior leadership of
where there were districts in terms of issues and concerns
about the performance of United States Attorneys.
Still today, I think that was an appropriate thing for a
manager to do, is to try to identify where there were areas of
improvement. Clearly, there were mistakes made in the
implementation of this plan and the review of this plan, and I
accept responsibilities for those mistakes.
Senator Grassley. The red light is on, but there was a
question just prior that you did not answer. Who came up with
the plan to evaluate U.S. Attorneys?
Attorney General Gonzales. Senator, I think--that was my
plan. I believed it was appropriate to look to see whether or
not the United States Attorneys were doing a good job. Were
they doing their job? I felt that was a good management
decision to simply look to see whether or not the United States
Attorneys were doing their job. I think the American people
want to know that public servants are serving them.
Chairman Leahy. Did you get all you need?
Senator Grassley. Yes.
Chairman Leahy.
Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman.
Mr. Gonzales, I have listened to the entire hearing here
today, listened to your response to my colleagues' questions,
answering my colleagues' questions, and I find some things
troubling. But I think what concerns me the most is after
reviewing all the facts involved in the dismissal of the U.S.
Attorneys, having a chance now to really go into detail and
understand all the problems that have developed, you stand by
the decision to remove these U.S. Attorneys.
You have acknowledged, and rightly so, that dismissing U.S.
Attorneys would be wrong if it interferes with or influences a
particular prosecution for partisan political gain. Your former
Chief of Staff, Mr. Sampson, stated basically the same thing
when he said it would be wrong if it was an effort to interfere
with or influence a prosecution of a particular case for
political or partisan advantage. Yet Mr. Sampson acknowledged
that a factor that was used in the consideration would be
losing the trust and confidence of important local
constituencies in law enforcement or government. Mr. Sampson
confirmed--a question that I asked him--that local political
concerns from partisans may have been influential in the
firing.
You have said a couple times that you had confidence in the
process that had been set up. How did you know that wrong
political considerations were not being used in the advice that
was being given to you on the firing of these U.S. Attorneys?
Attorney General Gonzales. Senator, I think that's a fair
question. I certainly know the reasons on which I made my
decision, and I, quite frankly, relied upon people that I
trusted to make a recommendation to me. I think I'm justified
in relying upon the Chief of Staff to bring forward to me a
consensus recommendation of the senior leadership of the
Department.
I'm not aware of anything in the documentation or anything
with respect to testimony that would support the allegation
there was anything that was improper that happened here. But,
again, as I've said before, just to reassure myself, I did ask
the Office of Professional Responsibility and they are working
with the Office of the Inspector General to ensure that nothing
improper happened here.
Senator Cardin. I asked Mr. Sampson at a hearing in this
Committee, ``What safeguard did you have in the process to make
sure that that was not being done? ''--that is, improper
political considerations. Mr. Sampson replied, ``I don't feel
like I had any safeguards in the process.''
Attorney General Gonzales. Senator, I would never ask
someone to leave their position as United States Attorney for
an improper reason. The truth of the matter is, of course,
public corruption cases, for example, as a general matter, are
not tried by the United States Attorney. They are tried by the
Assistant United States Attorney and assisted by career people.
Senator Cardin. But the person who is giving you the
advice, who puts it all together, says there are no safeguards
in the process to filter out improper local political pressure
that may have been exerted to influence who is on that list.
And yet you have said in your testimony, ``I also have no basis
that anyone involved in the process sought the removal of U.S.
Attorneys for improper reasons.'' How do you know that?
Attorney General Gonzales. Senator, based on what I know--
and, again, it wasn't just the Chief of Staff. I was relying
upon what I understood to be the consensus recommendation of
the Department, in particular, the Deputy Attorney General.
U.S. Attorneys report to the Deputy Attorney General. He is a
former colleague. I don't believe that he would make a
recommendation based upon improper reasons that a former
colleague, a United States Attorney, should be removed.
Senator Cardin. Now you know that of the seven U.S.
Attorneys who were removed on the same day, five had
controversial political investigations in their jurisdiction,
including in New Mexico, where there was a probe of State
Democrats and Republicans were unhappy that in Nevada there was
a probe of a Republican Governor in Arizona, there were probes
of two Republican Congressmen in Arkansas, there was a probe of
a Republican Governor in Missouri, in California Representative
Cunningham's investigation which was being expanded; and
Washington declined to intervene in the disputed gubernatorial
election that angered local Republicans. You now know all that.
This was a unique process that was being used. It had not been
used before to remove this many attorneys for this type of a
reason.
Don't you see that this might have been interpreted as
trying to send a message to U.S. Attorneys around the country
to stay away from sensitive political corruption cases?
Attorney General Gonzales. Senator, I think that is a fair
question, and I spoke with the United States Attorney
community, I think the week of March 12th, and I told them what
I expected, and that is, no one should speed up or slow down a
prosecution or investigation in any way; that we follow the
evidence, we make decisions on cases based on the evidence and
not based upon the target is a Republican or Democrat. And if
you look at the record of the Department, Senator--
Senator Cardin. That is not really my question. My question
is the public perception.
Attorney General Gonzales. Yes, of course, I--
Senator Cardin. Mr. Sampson acknowledged a lack of
foresight that people would perceive it as being done to
influence a case for improper reasons. Your former Chief of
Staff has already acknowledged that.
Looking at all the information we now know, do you still
stand by the decision that this was the right thing to do, the
dismissal of these attorneys?
Attorney General Gonzales. I do, Senator. I do. One thing
we have to understand--and I have gone back and thought about
this a lot, believe me, and looking at the documents, and I had
a conversation with the Deputy Attorney General about this,
whether or not this was still the right decision, did he stand
behind his recommendation. And based on what I know today, I do
stand behind the decision because I have no information to tell
me that, in fact, the decisions were based upon improper
motive.
Senator Cardin. So you disagree with Mr. Sampson on the way
that he had analyzed what is out there. Or do you think
perception is Okay?
Attorney General Gonzales. No, I don't--I think perception
is very, very important.
Senator Cardin. Do you disagree with the perception that is
out there?
Attorney General Gonzales. I don't disagree with the
perception. I think perception--
Senator Cardin. But you would still do the same thing
again.
Attorney General Gonzales. Senator, but I have also
admitted mistakes in the way we did this and that it should
have been done a different way. The process should have been
more rigorous and more structured.
Senator Cardin. Let me just challenge you on the process
for one moment. I delegate to my senior staff for advice on a
lot of issues, but they try to understand where I am coming
from on these issues. You had some very sensitive political
discussions on at least three of these U.S. Attorneys. Your
senior staff knew about those discussions. Did it ever appear
to you that maybe they understood that when they made the
recommendation to you that they were trying to adhere to what
they thought you wanted?
Attorney General Gonzales. Well, Senator, I think I've been
very, very clear about my commitment not to improperly
interfere with cases, and--
Senator Cardin. You understood the political contacts that
had already been made with you, including the President of the
United States.
Attorney General Gonzales. Senator, I don't know about--I
can't speak to as to what people understood about what the
President of the United States may have said to me. But,
listen, Senator, I have been very, very committed to ensuring
that the Department makes this decision not based on politics
but on the evidence. And if you look at the record of the
Department in prosecuting public corruption cases in
particular, it has been extremely strong all across the board.
Senator Cardin. That is my concern. The message you sent
out is that it was too strong in some of the jurisdictions.
That is why you dismissed the--that is the impression: that is
why you dismissed the U.S. Attorneys.
Attorney General Gonzales. I would be concerned about that
perception, and that's why I spoke to the U.S. Attorney
community the week of March 12th to reassure them that that is
not what I expected of them.
Senator Cardin. I would tell you that public confidence is
also part of supporting the U.S. Attorney's Office, and that
has been undermined by your own acknowledgment and by Mr.
Sampson's acknowledgment.
Attorney General Gonzales. No question this has been an
unfortunate episode.
Senator Cardin. But you would still do the same thing
again. I don't understand that. I guess that is--
Attorney General Gonzales. Senator, maybe I should rephrase
it this way: I would use a different process--a different
process--
Senator Cardin. The same conclusion.
Attorney General Gonzales. Senator, it depended what the
recommendation would be coming to me. But hopefully--I believe
that we had a good process in place. I now know that that is
not true, that it was flawed, and that we should have used a
different kind of process. But I have no reason to believe that
these were improper motives in terms of the basis of the
recommendation.
Senator Cardin. Thank you.
Chairman Leahy. Thank you very much, Senator Cardin.
Senator Coburn.
Senator Coburn. Thank you, Mr. Chairman.
General Gonzales, in one of the statements earlier today,
you stated in terms of the insertion of the ability of the
administration to replace U.S. Attorneys--and if this quote is
not right, please pardon me; I think I wrote it down--that you
didn't think someone should decide who works for you at the
U.S. Attorney's Office?
Attorney General Gonzales. I said that I--I was troubled--
well, I can't recall exactly what I said, but the reason why I
supported a change in the law, 28 U.S.C. 546, was because of
the district judges making decisions about who should serve on
my staff as United States Attorneys.
We had had a recent incidence in South Dakota with respect
to trying to put someone in as the Acting United States
Attorney. The judge there wanted to put someone in who we had
concerns about. And so we were--I supported the change in the
law for that reason, not to circumvent--
Senator Coburn. I understand. All right. You testified
earlier this morning about Bud Cummins, and you made a
differential from him and the rest of the U.S. Attorneys and a
difference in the date at which he was actually either notified
or came about through that. But it was said that he had poor
performance. Is that correct?
Attorney General Gonzales. Senator, based on my review of
the documents--
Senator Coburn. I am asking you what was said formally by
the U.S. Justice Department about Bud Cummins's performance.
Attorney General Gonzales. Senator, I don't know what all
has been said about performance of Bud Cummins, but clearly--
clearly--from what I can tell looking back at the documents is
that Mr. Cummins was in a different situation for two reasons:
one is because he was asked to resign on June 14th--
Senator Coburn. I do not want to talk about the different
situation. I want to talk about was the statement said that he
was being replaced because of poor performance.
Attorney General Gonzales. Sir, I don't recall specifically
that statement, but if, in fact, that statement was made, then
I apologize for that statement, because, in fact, Mr. Cummins
was asked to resign on June 14th, and one of the reasons he was
asked to resign is because there was a desire to place another
well-qualified person--
Senator Coburn. Absolutely. And I have no qualms with that,
which really leads me to the other area. You know, what Senator
Cardin just raised, the issue that it appears--or the
perception that people were replaced for other than what seems
to be the facts as you have testified and certainly looks to be
the facts under a legitimate process for what you evaluate as
concerns in management and leadership. But I think the damage
to the Justice Department, the Attorney General, and you
personally has been significant.
Several people's reputations have been harmed, including
Bud Cummins. Communication has been terrible. Management has
been terrible. You were asked by Senator Cardin if you would
make this decision again, and you said yes because you thought
it was the right decision. The question I have for you is: How
would you have handled it differently in terms of implementing
the decision?
Attorney General Gonzales. Well, sir, when you say
implementing, you mean after the decision is made, how to
implement it going--after the decision is made?
Senator Coburn. Yes.
Attorney General Gonzales. Well, one of the things I would
have done, of course, is been more respectful in communicating
the decision, I think a face-to-face meeting, if at all
possible, involving the Deputy Attorney General or myself or
certainly a phone call involving the Deputy Attorney General or
myself instead of the Director of the Executive Office.
I think also if, in fact, the Department was going to say
something publicly about performance related, I think we should
have told these individuals the specific reasons. As a legal
matter, they are not entitled to those reasons, but I think as
a matter of fairness, as a matter of good management, I think
it would have been appropriate to apprise them of the concerns
that we had. I think it would have been better, of course, to
make them aware of those concerns before the actual decision.
It is one of the things that I identified as a problem in the
Department and certainly one of the things that I regret, and
what we are going to do is institutionalize a process where we
have at least an annual meeting face to face with every United
States Attorney and either the Deputy Attorney General or
myself so we can talk about issues that are of concern to us.
Senator Coburn. You said earlier this was an unfortunate
episode. You also said that these attorneys were evaluated
based on their leadership skills and management skills. And you
answered a question from Senator Graham earlier about your
position in light of all this.
Why would we not use the same standards to judge your
performance in handling this event that you applied to these
same individuals?
Attorney General Gonzales. I think that's a fair question,
Senator, and I think that I clearly made mistakes here--
clearly. And I accept responsibility for those mistakes,
Senator. I've tried to identify where those mistakes were made
and institutionalize where we can make changes to make the
Department even stronger.
I think the Department under my leadership in the past 2
years, I think we have done some great things. I think the
Department has been managed in a good way. This has not been
managed in a good way, and I accept responsibility for that.
But I still continue to have great faith in the career people
at the Department. Cases still continue, investigations still
continue. Obviously, I have a lot of work to do to restore
confidence and trust. I am committed to doing that.
Senator Coburn. That is not what I asked you. I said: Why
should you not be judged by the same standards by which you
judged these dismissed U.S. Attorneys?
Attorney General Gonzales. Senator, again, I've identified
my mistakes, and you'll make your decisions based upon my
testimony, based upon the review of the record in terms of what
has happened, and based upon the testimony of others. And,
Senator, what I can commit to you is that--I have acknowledged
mistakes. We all make mistakes. And I'm committed to addressing
those mistakes and working with you to make our country even
stronger.
Senator Coburn. I believe there are consequences to a
mistake. I was quoted in the paper saying I think this has been
handled in a very incompetent manner, and I believe most
people, I do not care which side of the aisle they are, would
agree with that. U.S. Attorneys' reputations that were
involved, have been harmed. The confidence in U.S. Attorneys
throughout this country has been damaged. The reputation of the
Attorney General's Office has been tarnished and brought into
question. I disavow aggressively any implication that there was
a political nature in this. I know that is the politics of the
blood sport that we are playing. I do not think it had anything
to do with it.
But to me there has to be consequences to the accepting
responsibility, and I would just say, Mr. Attorney General, it
is my considered opinion that the exact same standards should
be applied to you in how this was handled. It was handled
incompetently. The communication was atrocious. It was
inconsistent. It is generous to say that there were
misstatements. That is a generous statement, and I believe you
ought to suffer the consequences that these others have
suffered. I believe the best way to put this behind us is your
resignation.
Attorney General Gonzales. Senator, I don't know whether or
not that puts everything behind us, quite frankly. I am
committed--I know the mistakes that were made here, and I am
committed to fix those mistakes, and I'm committed to working
with you and try to restore the faith and confidence that you
need to have to work with me.
Senator Coburn. Mr. Attorney General, you set the standard.
You said leadership skills, management skills. They were sorely
lacking in this instance, and the responsibility is to start
with a clean slate, a new set of leadership skills, a new set
of management skills to heal this and the country, to restore
the confidence in this country.
I like you as a man. I like you as an individual. I believe
you are totally dedicated to your job in this country, but I
think mistakes have consequences, and I believe that should be
the one that it should be.
I have no further questions.
Chairman Leahy. Thank you, Senator Coburn.
Senator Whitehouse, you are next. So people know what is
happening, it will be Senator Whitehouse, then Senator Kyl. We
will then start those who want a second round, begin with
myself and Senator Specter, and we will go based on who is here
and the order they are in.
Senator Whitehouse, then Senator Kyl.
Senator Whitehouse. Thank you, Mr. Chairman.
Here is what concerns me, Attorney General Gonzales. The
administration of justice in our country is controlled within
structures. Some of them are constitutional structures. Some of
them are statutory structures. But some of them are structures
that have developed over time that amount to tradition and
practice, but they are there for good and important reasons. My
concern, after reading your testimony and hearing your
testimony today is that you do not seem to be aware of the
damage to those structures that this episode has caused. I
would like to run a few by you just to let you know where I am
coming from.
The two areas where you ask us to agree with you in your
testimony, the first is that U.S. Attorneys can be fired at
will by the President. That is undeniably true, but I think its
use as a rhetorical point in this discussion is highly
misleading, deeply misleading, because I think you and I both
know that for years, for decades, there has been a tradition of
independence on the part of U.S. Attorneys. Once they are
appointed, unless there is misconduct, they are left to do
their jobs, and that rule, that practice, has existed for good
and meaningful reason, and it cannot be overlooked by just
blithely saying, well, the President has to power to remove
these people. That misses the point. These people make tough
decision. They are out there on their own very often. Very
often the Department of Justice and the political environment
that surrounds it is one that you want to protect them from,
and the idea that willy nilly senior staff people can come out
and have the heads of U.S. Attorneys, I think is highly
damaging to that piece of structure.
This was not customary practice; we can agree on that, can
we not?
Attorney General Gonzales. Senator, I think that that's--I
do agree on that, and I do agree with you that structures and
traditions are important. I agree with that as well.
Senator Whitehouse. The second piece of the structure here
that I think is significant is that although you as Attorney
General are in command of the administration of justice in the
Federal system, there is actually very little prosecution that
takes place out of Main Justice. The enormous majority of the
prosecutive authority of the United States of America has been
dispersed out into 93 judicial districts, and it has been
dispersed to men and women who have certain characteristics.
One is that they are from the local community, and when they
are done they go back and they live in that local community,
and it is good for the administration of justice when they are
accountable in that way for their decisions, given the power
and often terror that prosecutor action can create in a family.
The second is that they have to get a Senator to sign off
on them, in fact, they have to get the majority of the whole
Senate to sign off on them, and a President of the United
States. When those things happen, it creates a corps, if you
will, c-o-r-p-s, a corps of practicality, of common sense, of
responsibility, of experience, that I consider to be a huge
value to the administration of justice in this country.
And in every way in which this was handled, it is highly
destructive of that independence, whether it is people from
Justice going out and taking these positions, whether it is
ducking Senate confirmation, whether it is not bringing people
from the local community up to take those positions, or whether
it is the general level of disrespect that has been shown for
the U.S. Attorneys through this whole process.
I guess I would like to ask you to comment, do you think
that that is a structural component of the administration of
justice, that dispersion of the authority out to 93 independent
local U.S. Attorneys that has value and that is important and
should be protected?
Attorney General Gonzales. I do think it has value, and I
think that the independence of the U.S. Attorneys is important.
I think U.S. Attorneys should feel independent to exercise
their judgment in prosecuting cases based upon the evidence.
However, I have to qualify that a bit, Senator, in that
with respect to policies and priorities, again, the President
of the United States has elected based upon his policies and
priorities.
Senator Whitehouse. I will spot you that, Attorney General,
but my point is, when you are making a decision like that,
there is a counterbalance to it. When you go to Carol Lam and
say, you know what, you are not doing enough immigration
prosecutions, therefore, you are fired, there are all sorts of
collateral consequences of that, some of which are really quite
damaging and evil, particularly when you are knocking off
somebody who is known among her colleagues as being really the
prime United States Attorney in the country on public
corruption prosecutions. It sends a really rough message. So in
the balancing between the structural protections and the
respect and all of that, and this question of policy, I would
hazard to you that you cannot let the policy question just run
away with the issue.
Attorney General Gonzales. No question.
Senator Whitehouse. You have to think it through
thoughtfully, and I cannot find a place in the whole tragic
record of the situation in which that careful thought was
administered.
Attorney General Gonzales. No question about it. No
question about it that we have to take into account how
decisions may affect ongoing cases. There's no question about
that.
But also I think it's important for the American people to
understand that even when there's a change at the top with the
Attorney General or a change in the U.S. Attorney, the cases
continue.
Senator Whitehouse. That is true.
Attorney General Gonzales. The cases continue to be
investigated.
Senator Whitehouse. As you and I know, the leadership from
the U.S. Attorney makes a big difference. That is why you
thought these replacements were important in the first place.
Attorney General Gonzales. They do make a big difference
with respect--
Senator Whitehouse. If I may make my second point because I
am running out of time here. It is the second thing that you
suggest, which is we should further agree on a definition of
what an improper reason for the removal of a U.S. Attorney
would be. Over and over again you have used the word improper
as sort of your target word as to where the boundary is, where
you should and should not go, but your definition of improper
is almost exactly the same as Kyle Sampson's.
He came in here and testified, you said without consulting
with anybody, and said that the improper reasons include an
effort--and I quote--``to interfere with or influence the
investigation or prosecution of a particular case for political
or partisan advantage.'' Your testimony is to interfere with or
influence a particular prosecution for partisan political gain.
You loaded up those words. You have used them repeatedly, and I
think that the definition of where impropriety lies, clearly,
that would be improper, that would be grotesquely improper. But
I think you have set the bar way low for yourself, if that is
your standard of where impropriety is, and I would like to hear
you comment on this. I think any effort to add any partisan or
political dimension into a U.S. Attorney's conduct of his
office, irrespective of whether it is intended to affect a
particular case or not, is something we need to react to
firmly, strongly, resolutely, and without any tolerance for it.
You have set the bar so that it is not impropriety until it
affects a particular case. Why did you do that?
Attorney General Gonzales. Senator, because of the
accusations that have been made primarily, certainly as an
initial matter, was that there was something improper, we were
trying to interfere with particular cases. And that's why,
certainly, the focus in my mind was to focus on, Oaky, what is
the legal standard? And I think it's important for us to
understand, as an initial matter, what is the legal standard,
what would be improper?
Senator Whitehouse. But something a lot less than that
would be improper, would it not? I mean when Admiral Bing got
hanged there was the famous comment: every once in a while you
have to hang an admiral just to encourage all the others. If
you hang a U.S. Attorney once in a while just to discourage all
the others, even if your intention is not to affect a
particular case, you have to agree that would be highly
improper.
Attorney General Gonzales. Senator, it may be improper as a
matter of management, some would have to wonder, is that really
an appropriate way to manage a department? But again, Senator,
you have to understand that--
Senator Whitehouse. Otherwise, it would be obstruction of
justice, correct?
Attorney General Gonzales. These individuals have served
their 4 years, they are holding over. There is no expectation
of a job here, there shouldn't be, because of the fact that
they are Presidential appointees. Now, clearly, as a management
issue, there is value added to a person who has served as a
United States Attorney in terms of experience, expertise, and
so those things are very important.
Senator Whitehouse. It is more than just a management
issue. It is an issue about the structure through which justice
is administered in this country, and when it is broken and when
it is damaged, and when the Attorney General of the United
States says the only place where impropriety exists is when
political and partisan influence has risen to the point that it
is intended to affect a particular case, but otherwise it is
fine, I have a real problem. And I think everybody in America
should have a real problem with that.
My time is expired.
Chairman Leahy. Thank you very much.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
I think I am last, and I think just about everything has
been said, but not everybody has said it. Although I would say
that it has been said better by some than by others, and I
think what Senator Whitehouse just did was to set out two very
important points well. I am not sure that the last point was
adequately answered. In addition to being wrong, if you
affected a particular political corruption case, would it not
also be an improper firing if it was for the purpose of
generally affecting or influencing political corruption cases?
Attorney General Gonzales. That would trouble me, Senator,
because--
Senator Kyl. Would it not more than trouble you?
Attorney General Gonzales. Yes, sir, I think that would be
wrong. I think--
Senator Kyl. Okay, thank you.
Attorney General Gonzales. I think U.S.--well, go ahead.
Senator Kyl. So I think you and Senator Whitehouse and I
can all agree that the standard that you set forth was not the
one and only situation that would be improper, but described
the situation that was being attributed to the Department of
Justice in this particular episode.
Attorney General Gonzales. We do not want to send a message
that prosecutors should not follow the evidence and prosecute
people. We want them to do that, absolutely. We don't want them
to be discouraged, and I don't want them to be discouraged from
coming forward and being candid with their views about issues
or about cases.
Senator Kyl. Let me ask you, as far as you know, since this
has all occurred, has there been any difference in the way that
any of the political corruption cases has been handled by the
career prosecutors in any of the offices?
Attorney General Gonzales. Senator, not to my knowledge,
but I think the American people need to understand that we have
limited information in Main Justice about cases being
prosecuted around the country. We really have limited
information, for good reason, I think.
Senator Kyl. Yes, indeed, and I would close this part
because I have two other questions I want to ask. There are
thousands of pages of documents and hundreds of hours of
testimony and interviews, and I found it instructive that
Senator Schumer would suggest this morning what I gather is a
new conspiracy theory standard, which is if the evidence does
not show any violation of what all would agree would be proper
practices, in this case, an attempt to influence political
corruption cases, that therefore, the burden should shift to
the Department of Justice to prove that it did not happen, in
effect, to prove a negative. That would be wrong. It would be
unprecedented. In my view, it would be dangerous.
Since this is an oversight hearing, I would like to ask
about a couple of other matters. I want to thank you, first of
all, for visiting recently with me about funding for crime
victims' rights. As you know, I remain very concerned about
that, and I just want to follow-up on our conversation and see
if we can get some additional information by having a meeting
next week, not involving you, but involving both John Gillis,
who is the Director of the Office for Victims of Crime, and
Will Moschella. Would you assist me in setting up such a
meeting next week?
Attorney General Gonzales. Yes, sir.
Senator Kyl. Thank you very much. And on the other matter,
relating to Internet gambling, I want to applaud your office
for cracking down on Internet gambling through a number of
prosecutions that have recently occurred. As you know, last
October 13th, the President signed into law the Unlawful
Internet Gambling Enforcement Act, and one of its purposes is
to target these offshore gambling operations that are not
readily subject to U.S. prosecution. The law creates tools to
enforce Federal and State gambling laws, particularly with
these website operators offshore. The purpose is to cutoff the
financial lifeblood of Internet gambling businesses by
requiring the financial institutions and payment systems to
block illegal Internet gambling transactions. I know you are
aware of this background, but let me just, one more quick
paragraph here.
Most illegal gambling entities operate offshore beyond the
personal jurisdiction of U.S. law enforcement. So the financial
regulations authorized under this new law are critical to
effective implementation of the law, and under Section 5364 of
Title 31 U.S.C., the regulations must require financial
institutions to implement policies and procedures to identify
and block funds related to illegal Internet gambling. The
regulatory authority is broad to allow Treasury to adapt the
procedures to the expediencies of different types of payment
systems. Under the law regulations are to be written by the
Treasury Department and the Federal Reserve Board, in
consultation with the Attorney General.
At the DOJ oversight hearing on January 18th I discussed
with you the need for your office to work with Treasury so
these regulations can be quickly issued, and you testified that
you had already initiated discussions with Treasury, the
process is moving hopefully and can be completed in an
expeditious manner.
On March 15th I sent to you and Secretary Paulson, a letter
signed by Judiciary Committee Members Specter, Cornyn, Sessions
and Brownback, noting time was of the essence, and urging the
regulations provide financial institutions with a periodically
updated list of gambling operations to whom transactions should
be blocked. Earlier this month I reiterated that same concern
for that list with you.
Just one quick prelude to the trigger that I will pull here
on my three or four questions. Both people from the Department
of Justice and the Department of State have noted that a major
concern that the Department has about online gambling is that
Internet gambling businesses provide criminals with an easy and
excellent vehicle for money laundering. That was testimony of
your Deputy Assistant Attorney General of the Criminal
Division, Mr. Malcolm, and from the State Department, just
quoting two lines, ``Internet gambling is particularly well
suited for the laying and integration stages of money
laundering. Internet gambling operations are in essence the
functional equivalent of wholly unregulated offshore banks with
the better accounts serving as bank accounts for account
holders who are in the virtual world virtually anonymous. For
these reasons, Internet gambling operations are vulnerable to
be used not only for money laundering but also for criminal
activities ranging from terrorist financing to tax evasion.''
Now, four quick questions. First, do you agree with me that
regulations need to be strong in this area?
Attorney General Gonzales. Absolutely.
Senator Kyl. You are familiar with the March 15th letter I
mentioned. The letter notes that the House Financial Services
Committee report expressly states the law contemplates a
mechanism whereby banks and other financial service providers
will be provided with the identity of specific Internet
gambling bank accounts to which payments are to be prohibited.
Does that seem reasonable to you?
Attorney General Gonzales. Senator, I think there are some
operational issues for us, quite frankly, with respect to
whether or not we can develop such a list. What we're saying is
these guys are breaking the law, and quite frankly, as a normal
matter, what we do is we prosecute that. And so I know my staff
has been consulting with your staff, trying to work through
this because I'm as anxious as you are to try to get these
regulations working so we can do a better job of enforcing the
law against these--
Senator Kyl. But providing that information specifically to
the financial institutions would offer them certainty as to
their legal obligations and would assist them in ensuring that
the law would be effectively enforced, would it not?
Attorney General Gonzales. It would certainly provide more
certainty. I'm not saying it can't be done. We're trying to
work through this, Senator, and I certainly understand your
interest in this, and my staff is working as hard as we can to
see if we can find a way to do this.
Senator Kyl. What I am interested in though, since Treasury
does not have access to the same information DOJ does, and the
list of these improper sites needs to come from DOJ rather than
Treasury, and the regulations are to be provided by Treasury in
consultation with the Department of Justice, whether you will
agree with us that the Department of Justice should do
everything it can to gather this information together and
provide it to the Department of Treasury, not just once, but on
some appropriate ongoing basis?
Attorney General Gonzales. Sir, what I can commit to you is
we are going to do everything we can to make sure these
regulations are strong and that we get them implemented as
quickly as we can. That's what I can commit to you, sir. I know
this is an important issue to you. It's an important issue to
me, but we need to do it the right way and I think we can--I'm
not saying we can't do this list. We're still looking at this.
It's very, very hard.
Senator Kyl. If I can just conclude, Mr. Chairman. Treasury
is just about to issue the regulations. They need input from
DOJ.
Attorney General Gonzales. They sure do. Yes, sir, I'm
aware of that.
Senator Kyl. It needs to occur quickly.
Attorney General Gonzales. Yes, sir.
Senator Kyl. Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you, Senator Kyl.
Mr. Attorney General, late last week the White House
spokesperson claimed that an unknown number of e-mails,
including those of Karl Rove from both White House accounts,
apparently those sent or received, using Republican National
Committee accounts were lost. Mr. Rove's attorney, in the
investigation that led to Scooter Libby's conviction for lying,
suggested that U.S. Attorney Patrick Fitzgerald, as part of the
Department of Justice, obtained all of Mr. Rove's e-mails as
part of the investigation into the leak of the identity of a
covert CIA operative.
If that is the case, those e-mails would be in your
possession or in the possession of the Department of Justice.
What do we have to do to obtain Mr. Rove's e-mails relevant to
the development and implementation of the plan to replace U.S.
Attorneys and the Committee's investigation into that matter?
Attorney General Gonzales. Senator, I was not aware that--I
didn't see that article, wasn't aware that Mr. Fitzgerald had
that information, or if, in fact, the Department still has that
information, so I would have to go back and look to see what,
in fact, the facts are.
Chairman Leahy. If he does have the information, and it
involves e-mails relevant to the development and implementation
of the U.S. Attorneys' plan--
Attorney General Gonzales. Sir, I believe that those--well,
I don't have the answer to that, Senator. I know that they're
of interest to the Committee, and obviously, the Department
wants to be cooperative with the Committee. There may be White
House equities here that need to be considered, and so I don't
have an answer--
Chairman Leahy. We are not talking about e-mails from the
President. In fact, the President does not use e-mail, as I
understand, am I right?
Attorney General Gonzales. As far as I know, that's
correct, sir. But the fact that they may have been
communications over an RNC account doesn't mean that they're
not Presidential records. If, in fact, it relates to Government
business and they're transmitted over an RNC account, they
could nonetheless be Presidential records, and so there would
be a White House interest in those records.
Chairman Leahy. These are the records supposedly that were
lost though.
Attorney General Gonzales. Senator, I don't know the
significance of these e-mails. What I'm saying is if, in fact,
they exist--
Chairman Leahy. Let me ask you this. The White House
Counsel's Office is responsible for the establishment and
oversight of these kind of internal rules, conduct. When you
served as White House Counsel--you were there for 4 years--what
was the policy and practice with regard to Karl Rove and other
political operatives at the White House using Republican
National Committee e-mail accounts to conduct official
Government business?
Attorney General Gonzales. Well, of course, Senator--
Chairman Leahy. That would be a policy set by your office.
What was the policy?
Attorney General Gonzales. Senator, there were a few people
in the White House, as I recall, who used nongovernmental
communications equipment. That was done actually, quite
frankly, for legitimate reasons in terms of not wanting to
violate the Hatch Act and using Government facilities for
political activity that is permitted under the Hatch Act for
certain individuals in the White House.
Chairman Leahy. What was the policy? Could they conduct
official business on those--
Attorney General Gonzales. I think the intent of the
policy, as I recall, Senator, is that those e-mails were to be
used primarily for nongovernmental purposes, but in fact, but
if there was governmental transactions or communications
communicated over these nongovernmental communications
equipment, that there ought to be some kind of effort to
preserve that communication if, in fact, these are Presidential
records.
Chairman Leahy. There ought to be or was there a policy
that there had to be?
Attorney General Gonzales. I think the policy--I have to go
back and look at it--was the policy was that it should be
preserved, printed out or somehow forwarded to a Government
computer.
Chairman Leahy. Are we talking about two or three computers
or a number of computers?
Attorney General Gonzales. Senator, I don't recall the
number.
Chairman Leahy. If the White House spokesperson says as
many as 50 current White House officials had these separate RNC
or other outside e-mail accounts to conduct official business,
would that sound accurate?
Attorney General Gonzales. Sir, I would have no way of
knowing.
Chairman Leahy. As White House Counsel, did you conduct any
audit or oversight of the use of nongovernmental e-mails by
White House personnel?
Attorney General Gonzales. Senator, I don't recall there
being an audit. We provided guidance, but I don't recall such
an audit.
Chairman Leahy. Is there anybody investigating this issue
now?
Attorney General Gonzales. At the Department of Justice or
at the White House?
Chairman Leahy. Are you aware of anyone investigating this
issue now?
Attorney General Gonzales. Senator, from what I understand
in the papers is that I think the Counsel's Office is looking
to see what happened here. I don't know if that's what you mean
by an investigation. I think there is an effort, but I haven't
spoken to the Counsel's Office about this issue as to whether
or not they're doing an investigation to see what happened.
Chairman Leahy. And you are not doing any investigation
from the Department of Justice?
Attorney General Gonzales. Senator, I'm not aware that
there is an investigation that's ongoing with respect to this
issue.
Chairman Leahy. In all likelihood, something like that
would be brought to your attention, would it not?
Attorney General Gonzales. Well, Senator, I'm aware of it,
so--you mean investigation? Senator, I don't know if such an
issue would be brought to me. I expect the career folks to
simply do their job and--
Chairman Leahy. You have been Attorney General since 2005.
Have you done anything to ensure that political operatives, Mr.
Rove and others, or his deputies, not use the Republican
National Committee e-mail accounts for official Government
business?
Attorney General Gonzales. Senator, again, that would not
be necessarily illegal or criminal. The obligation--
Chairman Leahy. Have you taken any official position on it?
Attorney General Gonzales. As Attorney General, I don't
believe--I don't recall taking such a position, sir.
Chairman Leahy. What was Monica Goodling's role in the
process of evaluating U.S. Attorneys and choosing U.S.
Attorneys for termination?
Attorney General Gonzales. Senator, I don't know of
everything that she did in connection with this issue. Her job
at the Department was senior counselor. She was also the White
House liaison. She worked on budget issues and special
projects. She, in essence, supported Mr. Sampson. Since Mr.
Sampson was coordinating this effort, my assumption is that she
coordinated Mr. Sampson's efforts in connection with this
review process.
Chairman Leahy. I noted a reporter for Newsweek, Michael
Isikoff, highly respected, wrote about your testimony, what it
does not say. He observed you never say if you talked to
Harriet Miers. An even more conspicuous omission is your
failure to mention talks about the subject of U.S. Attorneys
with Karl Rove, the President's chief political adviser. I had
asked you to include in your written statement a full and
complete account of the development of the plan to replace U.S.
Attorneys. Have you told us all you can recall about your role,
and the White House's role in the development of the plan to
replace U.S. Attorneys?
Attorney General Gonzales. In terms of what I know,
Senator, and not in terms of what I have since learned, it is
already in the documents. I suspect the Committee, Members of
this Committee, have a lot more information about what happened
here. I'm here to supplement the record by telling you what I
know.
Chairman Leahy. You told us all you can about your role?
Attorney General Gonzales. Senator, I think the written
statement reflects what I recall with respect to the
development of the plan. There are some conversations that are
not included that I've tried to try to inform the Committee
about in response to certain questions today.
Chairman Leahy. The President ever tell you specifically to
fire a U.S. Attorney?
Attorney General Gonzales. I don't recall the President
ever telling me specifically to fire a United States Attorney,
sir.
Chairman Leahy. Part of my problem is, we have had a number
of statements about the dismissal of these eight U.S.
Attorneys. I just want to know which one is the accurate one,
your January 18th testimony, or your March 7th op-ed in USA
Today, or your March 13th press conference, or your March 26th
interview with Pete Williams on MSNBC, or your written
testimony that was submitted in advance today, or your live
testimony here today? Which one is the one we should grab hold
of and say, this is the accurate statement, this is the one we
can go to the bank with?
Attorney General Gonzales. Senator, again, I've not done
anything intentional, and I have made misstatements, and those
misstatements, those are my mistakes, and I accept
responsibility for it. If there were specific issues that you
have questions about, I'm happy to try to answer your question.
Chairman Leahy. It would be--well, my time is up. I do have
a lot of specific questions, simply because those statements I
mentioned, each one on this subject, each one varies.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Understandably, most of the questions today have been on
the issue of the replacement of United States Attorneys, but
there are many other issues of great concern coming within the
purview of the Department of Justice on this oversight hearing.
And I would like to turn to the massacre at Virginia Tech on
Monday. The Congress has acted on campus safety. In 1990,
legislation was enacted known as the Jeanne Clery Act after a
young woman was brutally raped and murdered in Lehigh
University in Pennsylvania. And that law requires campus
authorities to notify in a timely way the campus community on
crimes considered to be a threat to other students or
employees.
Well, we do not have a crime which was reported as to Cho
Seung-Hui, but there were a number of indicators, which I want
to explore with you to see what might be done by way of
amendments to the Act or other legislation.
In late 2005, two female students complained separately
that they were stalked by Cho. He contacted them
inappropriately, personally, online and by phone. Campus police
obtained a court order requiring Cho to be evaluated at a
psychiatric facility, and he was released after an overnight
study finding him to be potentially suicidal.
Cho's work in an English class alarmed his professor, who
said that Cho wrote exceedingly dark essays about death and
murder. He was eventually removed from the class for his
antisocial behavior, and another professor reportedly tutored
Cho and had a signal with somebody in the room to mention the
name of a specific individual if there was some threat.
The law obviously cannot reach every potential threat or
identify them. But what I would ask you to do, Attorney General
Gonzales, is to undertake a more detailed study as to what we
know about Cho Seung-Hui and to see if there is any ambit that
law enforcement could act on.
One thought comes to me. When two women reported that he
stalked them, they could have been compelled to come forward.
The State, the prosecutor, has the authority to subpoena
witnesses. It is a crime against the Commonwealth, against the
State, not just the individuals. So that might have been
undertaken to give more of a background for some action. But to
the extent that we can find some way to deal with these
signals, it would be very useful. The public ought to--we ought
to be doing what we can to reassure the public that we will
look at the facets of what has happened here.
The President had a town hall meeting after the Amish
incident on October 10th of last year in Lancaster,
Pennsylvania, where there was talk about a clearinghouse that
could be set up by the National Association of Sheriffs. You
were at that meeting, along with the Secretary of Education.
Has anything been done on that, looking to identify this kind
of aberrant, unusual behavior which might mark or give some
insights into people who would be at risk? We talk often about
at-risk youth, trying to give them mentors. Has anything been
done on that report on the sheriffs' clearinghouse?
Attorney General Gonzales. Senator, with respect to the
specific conference, one of the things that we focused
primarily on as the Department of Justice was to ensure the
development of stronger relationships between State and local
police and the schools, but--
Senator Specter. Would you deal with my question before you
go to some other subject?
Attorney General Gonzales. I'm not aware that there has
been any effort, Senator. That doesn't mean that there hasn't
been with respect to this issue of--
Senator Specter. Well, would you--
Attorney General Gonzales [continuing]. Signs or marks, but
I would be happy to look at it.
Senator Specter. Would you check that out and get back to
us?
Attorney General Gonzales. Yes, sir.
Senator Specter. There are a couple of other subjects I
want to take up with you. The National Security Letters have
been misused, flagrantly, by the FBI. We had a very rugged
session with FBI Director Mueller where we found that in
structuring the PATRIOT Act, we gave law enforcement additional
powers, but we were very careful to put restraints on them. But
those National Security Letters were misused. They were used
under limited procedures for exigent--that is, emergency--
circumstances, misused, supposed to have documents to follow-
up.
What have you done, Mr. Attorney General, to act to see to
it that those problems are corrected?
Attorney General Gonzales. Senator, I've spoken with the
Director several times about this. I was very upset about this.
I'm going to have--
Senator Specter. Spoken to him? Upset about it?
Attorney General Gonzales. Yes.
Senator Specter. What did you do specifically?
Attorney General Gonzales. I asked the National Security
Division and our Privacy Officer to work with the FBI in trying
to find out what happened here. And--
Senator Specter. Wait a minute. Wait a minute. We know what
happened. They misused the letters.
Attorney General Gonzales. They did, so we're trying to--
Senator Specter. The question is: What corrective action
have you taken?
Attorney General Gonzales. Senator, we are involved in the
oversight and auditing of field offices, and moving forward, we
are going to be doing field office sites, 15 a year, so that
people--so we have a better idea of what is ongoing.
I think one of the things that Mr. Mueller--
Senator Specter. Attorney General Gonzales, I want to take
up one more subject, and I have got very limited time. What I
would like you to do on that subject is tell us what you as
Attorney General have done. You have responsibility over the
FBI, and we know what Director Mueller has done. And this
Committee would be interested in knowing specifically what you
have done in terms of your oversight to see to it that the FBI
complies with the law.
Attorney General Gonzales. I would be happy to, Senator.
Senator Specter. Let me take one other subject up very
briefly. You wrote to Senator Leahy and me on January 17th of
this year concerning the Foreign Intelligence Surveillance
Court and the Terrorist Surveillance Program, writing to us
that ``authorizing the Government to target for collection
international communications in or out of the United States has
now been given to the FISA Court, which would have to be
preceded, where there is probable cause''--that is the regular
proceeding. So that the President has discontinued the
Terrorist Surveillance Program. Is that correct? That program
has been discontinued?
Attorney General Gonzales. That is correct.
Senator Specter. In deference to sending all these cases
before the Court?
Attorney General Gonzales. That is correct, sir.
Senator Specter. Okay. We do not have time to go into this
in any detail, and it may be something that you cannot talk
about in an open session. But I would like to know the
specifics and details on what is done to provide probable cause
to the FISA Court in light of the tremendous number of
interceptions involved here. Interceptions from the U.S. going
out are supposedly in a smaller number, but I would like the
information on that. And, more specifically, on the quality of
the factors required to establish probable cause on the
communications coming from outside the United States in. And
the final question on that subject for the moment is: In the
light of the change in the approach, what is the need for the
legislation which you have submitted last Friday, April 13th?
If you would provide those responses in writing, we would
appreciate it.
Attorney General Gonzales. Yes, sir.
Senator Specter. Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Specter.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
I want to take you back once again, Mr. Attorney General. I
may be very slow--
Attorney General Gonzales. No, you are not, Senator.
Senator Feinstein [continuing]. But I do not understand how
this list was compiled. The list was essentially 10 percent of
the entire Attorney General's staff. Kyle Sampson, your former
Chief of Staff--I am going to talk about the senior so-called
leadership of the Department--and the person you said you
delegated this task to, testified that he did not put people on
the list. He said, ``It wasn't like that. It wasn't that I
wanted names on the list. I was the aggregator.'' That is page
184 of his transcript.
Mike Battle, Director of the Executive Office of the United
States Attorneys, said, ``I had no input. Nobody asked me for
my input.'' That is the interview page 82.
Bill Mercer, Acting Associate Attorney General and No. 3 at
DOJ, said, ``I didn't understand there was a list. I didn't
keep a list. It was just that any time I had a particular
concern, I made that known to different people.''
And you testified this morning that you did not know the
reasons U.S. Attorneys were put on the list until after you
decided to fire them.
I am very interested and I would like to send down to you
the plan--it is three pages--that was distributed at the
meeting on November 27th and ask you to take a look at it.
Attorney General Gonzales. Thank you, Senator. Let me
respond to a couple of things that you said.
First of all, I haven't read the transcript for Mr. Battle
and Mr. Mercer--
Senator Feinstein. Well, it is pretty accurate, and I gave
you the pages, so your staff can check it out.
Attorney General Gonzales. Thank you.
I don't know that I testified that I didn't know the
reasons when I made the decision. I recall knowing reasons as
to five, but I don't recall remembering the reasons as to two.
Senator Feinstein. Okay. Let's go on. If you could look at
this--and I think this is one of the--this is a small thing,
but apparently this three-page plan was distributed at that
meeting. Do you recall seeing it?
Attorney General Gonzales. Senator, I don't recall the
meeting, and I don't recall seeing this document. But I have no
reason to doubt that this was a document that--
Senator Feinstein. Okay. Well, let me give you one point
of--and this is a just a minor point of irritation. Senator
calls. The Republican Senators get calls. For the Democratic
Senators where U.S. Attorneys are being fired, the political
lead gets the call, whatever that is. I think, you know, it's
Senators that confirm. It's Senators that should have the
knowledge, not necessarily the political lead.
And if you would go to step 3 on page 2, it is entitled,
``Prepare to withstand political upheaval.'' And it goes on to
say, ``U.S. Attorneys desiring to save their jobs likely will
make efforts to preserve themselves in office.''
And then, ``This is what people should say.''
On the question of who decided, the talking point is, ``The
administration made the determination to seek the resignations,
not any specific person at the White House or the Department of
Justice.'' And to this time, we do not know who actually
selected the people to be put on the list. I would like to know
who selected the individuals that were on that list.
Attorney General Gonzales. Senator--
Senator Feinstein. Somebody had to. A human being had to.
Attorney General Gonzales. Senator, I'm not going to
characterize Mr. Sampson's testimony, but let me tell you what
I understood and what I expected, was that Mr. Sampson would
speak with the senior leadership in the Department, people that
knew about the performance of United States Attorneys, and he
would come to me with a recommendation, a consensus
recommendation, including his views.
That is what I understood. That's what I understood was
coming to me, because Mr. Sampson--
Senator Feinstein. Well, Mr. Sampson testified he didn't.
He was just the aggregator.
Attorney General Gonzales. No, and I'm not saying that--
that is--if that's what he testified, I'm sure that's his
perception of his role. What I'm testifying today is what I
viewed Mr. Sampson's role was, was to get information but to
present to me a recommendation that also included his own, and
the reason that was important--not as important as others, like
the Deputy Attorney General, but Mr. Sampson had been involved
in Presidential personnel, in filling senior leadership
positions at the Department of Justice, the top legal positions
at other agencies. And so he had experience in making personnel
decisions.
Senator Feinstein. All right. I want to ask other
questions. But perhaps you can understand that this has become
a serious matter, and seven out of the eight were involved in
public corruption prosecutions, and yet nobody knows who
selected them for this unusual thing to this very moment.
Now, I would like to go on with something else. From
documents and interviews, we know the following. The White
House was involved in the removal of Bud Cummins. Karl Rove
called you and asked about three districts: Milwaukee,
Philadelphia, and Albuquerque.
Attorney General Gonzales. Senator, I don't recall whether
he called or whether it was a visit. It may have been a call.
Senator Feinstein. Omay. You got a call from the President
about New Mexico in the fall of 2006.
Attorney General Gonzales. Senator, I think that was a
conversation. I don't think it was a phone calls.
Senator Feinstein. Conversation, thank you. And Harriet
Miers discussed whether to remove Debra Yang from Los Angeles.
Now, she resigned, so she was not part of this.
But given all these inquiries that we know about, how could
you say just 3 weeks ago that the White House did not play a
role in adding or taking off names?
Attorney General Gonzales. Well, Senator, the fact that
there may have been a conversation with the President
indicating a concern about election fraud and a particular
issue, in my mind I never would have equated that with the
process, this review process that was ongoing with respect to--
that Mr. Sampson was coordinating.
Senator Feinstein. Okay. Now let's continue this. This is
why this is so strange. When Mr. McNulty came and briefed us in
the Judiciary Room on the second floor, he mentioned the
reasons were performance. And then we began to ask to see the
EARS reports that Senator Kennedy referred to this morning, and
I believe we have all taken a look at them, and we see stellar
professional performance reports. We pick up USA Today, and we
see a ranking that they did, placed seven of them in the top
ten U.S. Attorneys in the United States. And I have a very hard
time with your telling me to this day you don't know who
suggested that each of these seven people on that December 7th
list, nobody knows how they got there.
Attorney General Gonzales. Well, Senator, first of all, I
don't know--the USA ranking, I don't know where that comes from
and what it's based on. But, Senator, you, the Committee, I'm
assuming, I'm presuming, has interviewed the people involved in
this process and can ask that question. I would like to know. I
would like to ask that question. But out of respect for this
investigation, I have not done so. The only thing that I can do
today is to give you the information that I know, the truth as
I recall it, and that is what I am trying to do here today, is
to tell you that I received the recommendation--what I presumed
was that--most importantly, what I cared about is did this
reflect the recommendation of the Deputy Attorney General. That
would be the most important thing.
Senator Feinstein. But if I were you, I would want to know
who selected this individual and what was their thinking. Why
did they put that individual on this list? Everybody knew from
the plan that it was going to be heavy going, that there were
going to be problems. It would just seem to me that you would
want to know these things.
Attorney General Gonzales. Senator, no question that--
Senator Feinstein. Now, when you talk about sort of an
amorphous senior leadership, people think of gray-haired, very
wise men making these decisions. In fact, they are very young
and sometimes very ideological people.
Attorney General Gonzales. Senator, what--
Senator Feinstein. And wouldn't you want to know who is
making the decision? Because when Mike Battle testified to the
staff of what the response was when he called these U.S.
Attorneys, it was a shock out of the blue. It was a shot to the
gut. They had thought they did very well. They had not been
told there were problems. And they were called and they were
told, ``You must leave.''
Attorney General Gonzales. Senator, I've already testified
that, clearly, as I look back on it now, the process would have
been much more rigorous, and there would have been some
discussion face to face with either myself or the Deputy
Attorney General.
You mentioned something that reminds me that the discussion
back and forth between you--involving you and Senator Schumer
about Carol Lam. I want to make sure that I am clear about
this. That is, I believe based on my review of the documents
that Ms. Lam, knew that there were concerns or certainly there
was an interest in her performance with respect to immigration
prosecutions. I don't know whether or not Ms. Lam knew that the
Department of Justice had those specific concerns or that if
things didn't change that she might lose her job. I wanted to
make sure that you understand that.
Senator Feinstein. I understand this, but let me tell you,
we all get concerns all the time. But if I were employed by
Justice, I would be curious as to what my bosses think, not the
flack that I may or may not be getting from other places,
because the flack, to some extent, comes with the territory.
Attorney General Gonzales. Senator, I expected that my
concerns about her immigration prosecution numbers and her gun
prosecution numbers would be communicated to Ms. Lam. That is
what I understood.
Senator Feinstein. But 2 months before she was fired, in a
letter to me, Will Moschella said everything was fine with her
immigration numbers.
Attorney General Gonzales. Senator, I believe--
Senator Feinstein. She has told us she was never contacted
by the Department about immigration.
Attorney General Gonzales. Senator, I--
Senator Feinstein. My time is up.
Attorney General Gonzales. Thank you.
Chairman Leahy. Did you want to respond to that question?
Attorney General Gonzales. That's fine, sir.
Chairman Leahy. I would certainly allow you to if you want
to.
Attorney General Gonzales. Thank you, sir.
Chairman Leahy. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. I think we
all will agree, I think you have agreed, that this was poorly
handled.
Attorney General Gonzales. Yes.
Senator Hatch. Contrast that with the years of service you
have given, not only at the White House but at the Justice
Department, and all of the really good things that you have
been able to do. I mean, how many times do you have to be
flagellated over that? Let me give you another illustration.
With regard to public prosecutions, do the named U.S.
Attorneys always try those cases?
Attorney General Gonzales. No, sir.
Senator Hatch. Very seldom.
Attorney General Gonzales. In fact, in most cases they are
tried by the career professionals, experienced--
Senator Hatch. Professional staff, right?
Attorney General Gonzales. That is correct, sir.
Senator Hatch. They are tried by professional staff. So if
a U.S. Attorney leaves, that case continues on, right?
Attorney General Gonzales. The institution is built to
withstand change in the leadership positions. That's the way it
should be. It's always--
Senator Hatch. So am I right, if the U.S. Attorney leaves,
that case continues and it is well handled?
Attorney General Gonzales. That is true.
Senator Hatch. And that is without interference by the
Department of Justice. Is that correct?
Attorney General Gonzales. We have every expectation that
the case will continue and move forward.
Senator Hatch. And there is no indication--well, let me say
this as well. I think it is important to say this, that U.S.
Attorneys serve, as everybody here has admitted, at the
pleasure of the President. They don't serve at the pleasure of
the U.S. Senate. They are confirmed by us, but they serve at
the pleasure of the Senate. And you serve at the pleasure of
the President, too.
Attorney General Gonzales. Yes, sir.
Senator Hatch. But you are confirmed by us. We have a role,
but that is not--but our role is not that they serve at our
pleasure. As I have said, I believe there are two legitimate
issues in the U.S. Attorney controversy. First, were any of
them removed for an improper reason? Second, did any
administration officials knowingly mislead or lie to Congress
or the public?
After 3 months of hearings, all kinds of interviews, and
thousands upon thousands of pages of documents, the evidence
shows that the answer to both of those questions is a
resounding no.
Now, continuing past the point of answering those
questions, it appears motivated more by partisan profit-taking
than proper oversight. And because some have not been able to--
they have not been able to prove either improper interference
with an ongoing case or investigation or a knowing misleading
of the Congress about how these U.S. Attorneys were removed,
some now want to shift gears and ask why some of the U.S.
Attorneys were not removed, as you saw this morning. Well,
crossing this line is wrong and calls into question not
decisions made about a few U.S. Attorneys in the past, but
decisions made by many U.S. Attorneys in the present and
future.
Now, as you said in your statement, you have recently met
with U.S. Attorneys all over the country, about 70 of them, if
I recall correctly.
Attorney General Gonzales. Over 70, yes, sir.
Senator Hatch. Over 70. How would this type of an approach
impact them, you know, why they are not removed and their
decisions, their cases, their work, to go down this road and
raise suspicion, innuendo, and doubt about their service? That
bothers me just a wee bit, too.
Attorney General Gonzales. Senator, the perception is
something that I am very, very concerned about and something
that I'm committed to try to address.
Senator Hatch. Well, in your op-ed column published last
Sunday in the Washington Post and in your written statement
today, you describe how you have asked the Office of
Professional Responsibility separately to investigate this U.S.
Attorney controversy. Now, many Americans might not be familiar
with the Office of Professional Responsibility, OPR, in the
Justice Department. If you would, please describe that office
in general, and then focus on what you have asked the office to
investigate and what you believe its work will contribute
regarding this controversy.
Attorney General Gonzales. Senator, it is an office headed
by a career professional. The role of the office is to ensure
that the Department of Justice lawyers meet their professional
obligations as lawyers, have met their ethical obligations in
providing legal advice as lawyers. And that is the role of the
office.
I thought it was important because of allegations of
wrongdoing by lawyers at the Department for the Office of
Professional Responsibility to look into this matter, because I
wanted to reassure--
Senator Hatch. That is no small request, right?
Attorney General Gonzales. Well, Senator, I think it's a
serious issue when you're asking the Office of Professional
Responsibility to look at the conduct of a lawyer.
Senator Hatch. Once you ask them to do that, it is in their
hands, not yours, right?
Attorney General Gonzales. It is certainly within their
hands, and let me just add that I have recused myself--in order
to avoid appearances of impropriety, I've recused myself from
oversight of that investigation or the investigation of the
Office of Inspector General in relation to this matter.
Senator Hatch. Well, I think we can all agree this was
poorly handled.
Attorney General Gonzales. Yes, sir.
Senator Hatch. But you delegated this authority to others
to handle who you had faith in, and trust. Is that a fair
comment?
Attorney General Gonzales. Yes, sir.
Senator Hatch. But you have taken responsibility for--
Attorney General Gonzales. I accept full responsibility for
this, Senator. I'm head of the Department. I made the decision
to delegate this process. I assumed the process would be
better, and it wasn't, and I accept responsibility for this.
At the end of the day, I know that I did not do anything
improper, and based on what I know and have seen, I don't think
anyone made any recommendations to me based on improper
motives.
Senator Hatch. That is one reason why this morning I
brought out how many--more than 100,000 people you supervise.
You are constantly at Cabinet meetings or other meetings at the
White House. Why, you are even called up here on a regular
basis, although it has been infrequent, but nevertheless you
have to go not just to the Senate, but the House. You have
constant phone calls from us up here that you answer.
Attorney General Gonzales. Senator, there are a lot of
responsibilities as Attorney General, but my job is also to be
responsible for what happens at the Department, and I accept
responsibility for what happened.
Senator Hatch. My point is that you are accepting
responsibility, but you have a lot of other responsibilities
that you have been carrying out effectively and well--
Attorney General Gonzales. I believe so.
Senator Hatch.--that I think cannot just be tossed aside
like you are not doing the job down there, which is kind of the
implication that comes out of this every once in a while. Let's
all admit this was poorly handled. It could have been better
handled. If you had more hands-on on this, maybe we would not
be in this position today. On the other hand, with 100,000-plus
employees, it is easy to see why something sometimes slips by,
and this one certainly did.
If there was any evidence that you were interfering with an
ongoing investigation or case or that you knowingly misled this
Congress, that is another matter. But there is not, and I just
want to point that out and say, you know, you have taken a lot
of lumps here, but you have also handled yourself well, too,
and I just wanted to make sure that there is a little more
even-handedness about this.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Let me make sure I fully understand one of your answers.
Were you suggesting that OPR, the Office of Professional
Responsibility, operates outside political interference? Was
that what you were saying?
Attorney General Gonzales. Senator, their job is to provide
an evaluation about the professional performance of the
attorneys within the Department of Justice.
Chairman Leahy. Are they ever subjected to political--have
you ever been aware of them being subjected to political
influence?
Attorney General Gonzales. Senator, I'm not sure I can
answer that. I think as a general matter, I'm not aware of
that. I'm not sure I understand what you mean by ``political
influence.''
Chairman Leahy. Well, I am thinking about the times that
OPR was asked to look into the question of warrantless
wiretapping by NSA, something that eventually turned out that
they should not have done, and they were told and given a
political order, ``Look no further.''
Attorney General Gonzales. Senator, I don't know if I would
characterize the political--I recommended that the Office of
Professional Responsibility--I recommended to the President
that the Office of Professional Responsibility be read into the
program so they could conduct an evaluation of the performance
of lawyers within the Department of Justice. And the decision
was made by the President that that would not be the right
thing to do, and that's what happened in that particular case.
Chairman Leahy. So I just did not want to leave the
impression that they operate unfettered by political influence,
in that case a very, very serious matter involving this Nation,
involving our laws, involving the FISA Court, they were
interfered with.
Senator Cardin.
Attorney General Gonzales. Senator, could I just make one
comment?
Chairman Leahy. Sure. Of course.
Attorney General Gonzales. I think it is important for the
American people to understand that the Office of Inspector
General has been read into the program, and they are certainly
looking into the role of the FBI in connection with this
program.
Senator Cardin. Thank you.
Mr. Attorney General, I want to make sure the record is
clear about your knowledge of what Monica Goodling might be
able to contribute, her input or what she knows on the process
with the dismissal of the U.S. Attorneys. I just want to give
you that opportunity to make sure our record is complete about
your knowledge in that regard.
Attorney General Gonzales. Senator, I am not sure I have
anything to add about Ms. Goodling's role. I don't have any
specific recollection about what else she might have done.
Certainly after the fact, after the decision, I'm aware
that she was involved with respect to preparation of testimony
and things of that nature. But in connection of her involvement
in the role of this--well, let me just say this: There is
within the documents, as I recall seeing them after the fact,
obviously she's involved in communicating with the White House
with respect to certain individuals, and she is involved in
other kinds of communications. I don't want to minimize her
role, but she would not be one of the persons I was relying
primarily on with respect to a recommendation to me about this
decision.
I relied primarily, what--I would be relying primarily on
the recommendation of the Deputy Attorney General, who every
one of these U.S. Attorneys reported to, and it was a former
colleague. I would be interested in--it was my understanding,
it was really my hope that Mr. Sampson would consult also with
the Acting Associate Attorney General, also a sitting United
States Attorney.
Senator Cardin. I just want to make sure I got Monica
Goodling, your recollection of whether there was anything more
that should be in the record from your testimony in regards to
her?
Attorney General Gonzales. Sir, I don't have any
independent knowledge beyond what's reflected in the documents.
Senator Cardin. I want to go to the issue of voter
intimidation, voter fraud. In a couple of the districts voter
fraud was an issue involved in the dismissal of the U.S.
Attorneys. It has come up several times. You and I have talked
about voter intimidation. I just tell you in my State of
Maryland, in one precinct in Prince George's County, Maryland,
there are more eligible voters who came out to vote and did not
vote because the lines were so long that they just did not have
the time to wait a couple hours to vote, than all the people in
Maryland who may have cast a vote who were not eligible to
vote. I mention that because there seems to be growing
activities of voter intimidation to try and affect minority
voters around the country. We saw that in half a dozen states
by specific examples in the last election.
You have indicated that the lack of energy on voter fraud
was involved in evaluation of a couple U.S. Attorneys. I did
not see any evaluations at all about U.S. Attorneys being
aggressive in dealing with voter intimidation. I am just
wondering where the priority of the office will be.
Attorney General Gonzales. Senator, I think you've raised a
very, very good point. First of all, with respect to voter
fraud generally, as someone who grew up in a poor neighborhood,
the one day we were equal to everyone else was on election day,
and so I really appreciate how important the right to vote is.
Voter fraud to me means you're stealing somebody's vote, and so
I take this very, very seriously.
Having said that, in enforcing or prosecuting voter fraud
we need to be careful that we don't discourage people or
intimidate people from participating on election day, and I
think it's important to send a strong signal that if you're
going to do an investigation, be sensitive to the fact that you
don't want to create, have a chilling effect, or create some
kind of cloud and discourage people from participating. So that
to me is very, very important.
We have guidance about that, doing those kind of
investigations near an election because it's important to
enforce the law, it's important to pursue voter fraud, but
let's be sensitive about the effect it has on particularly
minority participation.
Senator Cardin. I agree with that. I just hope that you
will take a look at the Obama bill that we have pending before
this Committee.
All of the information I have seen, I agree with you on
voter fraud. Voter fraud should be prosecuted. If someone tries
to vote who should not be voting, absolutely they should be
prosecuted. But the amount of voter fraud, from what has been
seen in those areas where those studies have been done, is
minuscule compared to those who are eligible to vote that have
been, one reason or another, unable to cast their vote. There
has been an increasing amount of activity, whether it be voting
machines that do not work in minority areas, as happened in
Maryland, or whether it is literature that is handed out that
is blatantly wrong, intimidating voters that they may be
arrested if they try to vote in minority communities, or giving
the wrong election day or giving wrong information about
political endorsements that are racially motivated. That, to
me, has a very serious effect on minority participation in
voting, and needs to be a priority.
I am somewhat concerned that as you are looking at the
aggressiveness of the U.S. Attorney's Office to carry out a
policy on making sure that everyone's vote is properly counted,
that we have balance here in making sure that we give the
Attorney General the tools that you need to counter voter
intimidation, and that we work together to really make sure
that every vote can count in this country, and we have not
reached that yet, so we need to have that balance.
Senator Cardin. Senator, you and I have spoken about this.
I believe that you met with the head of the Civil Rights
Division. This is something that's important to me personally,
and so it's something I would be anxious to work with you
about. I think there needs to be a balance.
Thank you. Mr. Chairman, I yield back the balance of my
time.
Chairman Leahy. Thank you. We told the Attorney General
before Senator Cardin asked questions we were going to take a
10-minute break, and that is my mistake that we did not. We
will stand in recess for 10 minutes.
[Recess 4:06 p.m. to 4:20 p.m.]
Chairman Leahy. I would note that we have a statement from
Senator Biden for the record, which I will put in the record.
Senator Whitehouse has asked for a question. I think
Senator Schumer may have something further. Unless Senator
Specter has something further--I will not. The Attorney General
has had a long day here, and I would hope that we will soon
wrap this up. I mention this also for the press and others so
they will know where we are. And I have discussed it already
with the Attorney General.
Senator Whitehouse.
Senator Whitehouse. Thank you, Mr. Chairman. Mr. Chairman,
with your permission may I give two documents to the witness?
Chairman Leahy. Yes, and we will not start the clock until
he has had a chance to see them.
Senator Whitehouse. Great. Thank you. We will circulate
them to anybody who is here.
Back to structure again, Attorney General Gonzales, I
assume that we can agree with the proposition that in the
enforcement of the laws, the Department of Justice should be
independent.
Attorney General Gonzales. Yes, sir.
Senator Whitehouse. Can we also agree that one of the
institutions of Government that the Department of Justice needs
to be independent from in the enforcement of the laws is the
White House?
Attorney General Gonzales. No question about it, Senator.
If you are talking about prosecuting someone in the White
House, yes, we should be independent from them when making
those kind of decisions.
Senator Whitehouse. And indeed, over a long history, there
have been concerns about influence from the White House to the
Department of Justice and people, indeed, members of this
Committee, have expressed concern about the White House-Justice
connection over many years. Is that not also correct?
Attorney General Gonzales. I think that is a legitimate
concern. I think that is very important. I think it's one of
the reasons, for example, that Attorney General Ashcroft
recused himself in connection with the Plame investigation.
Senator Whitehouse. The documents that I have given you are
two letters. One is from Attorney General Reno to Lloyd Cutler,
the Special Counsel to the President, dated September 29, 1994.
It lays out the policy for contacts between the White House and
the Department of Justice in the Clinton administration. And to
give credit where credit is due, it is my understanding that
the distinguished Senator Hatch, who was then the Chairman of
this Committee, had substantial interest in this and viewed it
as a significant area of oversight, and I want to commend him
for that.
What it does--the language is behind me--it says that with
regard to initial contacts involving criminal or civil matters,
they should only involve the White House Counsel or Deputy
Counsel or the President or Vice President and the Attorney
General or Deputy or Associate Attorney General, period.
The more recent memorandum, the other document that you
have in front of you, is from April 15, 2002. It represents the
policy of the Bush administration regarding White House-
Department of Justice contacts, and there in the highlighted
part on the front, it says that these contacts regarding
pending criminal investigations and criminal cases should take
place only between the Office of the Deputy Attorney General
and the Office of the Counsel to the President.
And then if you flip back to the very last page, there is
sort of an exemption paragraph that exempts further the
President, the Vice President, the Counsel to the President,
national security and homeland security officials, staff
members of the Office of the Attorney General if so designated,
and staff of the Office of the President, the Office of the
Vice President, the Office of the Counsel to the President, the
National Security Council, and the Office of Homeland Security.
So I asked my staff to take a look at what the difference
was between those two, in effect, and if you could, this is, in
effect, during the previous administration. This was the
Clinton protocol, and there were four people--the President,
the Vice President, the Deputy White House Counsel, and the
White House Counsel--who could participate in these kind of
discussions about cases and matters and initiate them with the
Department of Justice. And on the Department of Justice side,
the only people who were qualified to engage in those
discussions were the Attorney General, the Deputy Attorney
General, and Associate Attorney General. So they had narrowed
very carefully the field of people who could have these
discussions, which I think is a very important safeguard, to
narrow that portal, to police it. It is almost like there is an
airlock there for those communications.
Now, here is the result that I asked my staff to put
together if you count all the people who are eligible under the
new program. That to me--your staff can check on exactly how
accurately we have done it, but there are, I want to say--what
were the numbers? It is 417 folks in the White House who were
eligible to have these contacts and about 30-some in the
Department of Justice.
Again, from a structural point of view, my question to you
is: When over years this issue of White House to Department of
Justice contacts has become so significant, when, you know,
even on the Republican side of the Judiciary Committee there is
intense concern about this over the years, and it has been
narrowed down to a fine portal like this--you were the White
House Counsel at the time--what possible interest in the
administration of justice is there to kick the portal so wide
open that this many people now can engage directly about
criminal cases and matters as compared to before?
Attorney General Gonzales. Senator, I think you have raised
a good point here, one that I was concerned about at the
Counsel's Office, and I remain concerned as Attorney General,
in terms of making sure that communications between the White
House and the Department of Justice remain in the appropriate
channels. I do recall being concerned about that as White House
Counsel.
Senator Whitehouse. Quite a pronounced change, isn't it?
Attorney General Gonzales. Well, it is a pronounced change.
However, it is my understanding of the policy--and, again, this
is DOJ policy that occurred April 15, 2002--was that
communications with respect to individuals at the National
Security Council would not be with respect to particular cases,
but with respect--
Senator Whitehouse. This is national security aside. This
is not national security. This is criminal cases and civil
cases, initial contacts between the White House and the
Department of Justice.
Attorney General Gonzales. Senator, let me say this: I'm
not aware that there are initial contacts between the White
House and the Department of Justice as an initial matter with
respect to specific criminal cases, or if there are--let me put
it this way. I don't think there should be. I think it is very,
very important--I agree with you. It is important to try to
limit the communications about specific criminal cases between
the Counsel's Office and the Department of Justice.
Senator Whitehouse. But when I see the rules opened this
much, it makes me wonder to what extent this safeguard is
considered significant in this administration. And then we hear
stories like we have heard of United States Attorney McKay
reporting that when he went to the White House to be
interviewed, he was told by White House Counsel Harriet Miers
that he had--and this is the word he used, in quotes--
``mishandled'' the voter fraud investigation in the recent
election.
Now, I have met Harriet Miers. She strikes me as a very
careful, intelligent, thoughtful lawyer. She would not throw
around a word like ``mishandled,'' I don't think, which implies
a very significant degree of evaluation. And it seems to me
that one of two things is true about that conversation. Either
she had no idea what she was talking about and she misused that
term, or she had some idea of what the evidence was in the
voter fraud case in McKay's district that did not go forward.
And what I would like to know is: Do you know which one it was?
And if it was the latter, how on Earth did she get evidence
regarding a Department of Justice case sufficient to form the
professional opinion that the United States Attorney had
mishandled that case?
Attorney General Gonzales. Senator, I am not familiar with
the conversation that occurred between Mr. McKay and Ms. Miers.
Like you, I am--
Senator Whitehouse. Did you see the story on it, though?
Attorney General Gonzales. I'm aware of the reports, but
sometimes--
Senator Whitehouse. Didn't that send up a big red flag?
Attorney General Gonzales. Sometimes stories are wrong, and
the fact that she also may have been aware of the reports,
knowing that this was an issue in this district, that she may
have inquired about, well, what happened here, is there
something to worry about, without having any specific knowledge
about the underlying facts of the case. But I don't know. I am
just--
Senator Whitehouse. Has there been any effort to run down
what happened that caused a White House Counsel to reach an
evaluative opinion about an ongoing prosecution, or even in a
closed prosecution, I gather, just by way of safeguarding how
information is traveling back and forth across this now wide
open screen?
Attorney General Gonzales. Well, I think the safeguards you
are referring to I think are very, very important. I'm not sure
that there would have been a prosecution relating to--the
absence of a prosecution--well, to answer your question, I'm
not aware of any going back and looking at what happened here.
Again, I don't know if what the reports are even stating are
even accurate. But I, like you, am concerned about the level of
contacts and ensuring that the communications between the White
House and the Department of Justice occur at the appropriate--
within the appropriate channels.
Senator Whitehouse. Mr. Chairman, I know I am over my time,
but if I could ask a couple quick questions about OPR and--
Chairman Leahy. I think this is significant, and I am going
to not take the other questions I was going to ask. I find the
chart astounding. It goes beyond anything I have seen in 32
years here. Please go ahead and finish your questions.
Senator Whitehouse. OPR and OIG are both investigating this
matter.
Attorney General Gonzales. Yes, sir.
Senator Whitehouse. OPR reports are ordinarily not public.
OIG reports ordinarily are. Can we be assured that the result
of the OPR/OIG investigation will, in fact, be made public?
Attorney General Gonzales. Senator, I think, as I indicated
in response to an earlier question, that I am recused from the
oversight of these two investigations, and so as a technical
matter, I'm not sure that's going to be a decision for me to
make, quite frankly. And Mr. McNulty, the Deputy Attorney
General, has likewise recused himself, and so Paul--
Senator Whitehouse. So who do we talk to?
Attorney General Gonzales. It is Paul Clement, the
Solicitor General.
Senator Whitehouse. All right. When you look at the
record--you have asked us several times to look at the record
of the Department, the record of public corruption
prosecutions. Would you object to us asking the Office of
Inspector General to look at the record of public corruption
prosecutions and give us a confidential report, stripped of any
sort of telltale information, so that we can actually test the
proposition that you have invited us to look at?
Attorney General Gonzales. Senator, I don't know whether or
not that is really--as a general matter as to whether or not
lawyers have discharged their professional responsibilities, it
is not a matter within the purview of the Office of Inspector
General. But I believe it falls within the purview of the
Office of Professional Responsibility, and I would be happy to
go back again--I am not even sure I'm recused from making that
decision. But I understand your request, and we will see--
Senator Whitehouse. I think it is actually properly OIG.
And my last point is that it was originally your choice to
refer this matter to the Office of Professional Responsibility,
correct?
Attorney General Gonzales. Yes, sir.
Senator Whitehouse. Now, a suspicious mind would say, well,
wait a minute, OPR never makes a report, and more than that,
OPR is limited to evaluating the conduct of attorneys within
the Department of Justice when they are acting as attorneys. It
does not evaluate their administrative actions. It does not
evaluate whether they have subjected themselves to political
influence. And my question to you is: Who in this entire
process that led to the termination of the U.S. Attorneys was
at any point in this acting as a lawyer and not
administratively?
Attorney General Gonzales. Well, you raise a good question,
and I want to be careful about what I say here because my
recollection may be a little fuzzy. But I believe that in
talking with our Acting Chief of Staff, Chuck Rosenberg, I
spoke with him about the possibility of doing some kind of
joint investigation, and so I think the Office of Inspector
General is going to be looking at many of the issues that you
are concerned about.
I am told that the Office of Inspector General had on their
own decided that they were going to do an investigation, and,
therefore, I really can't claim and shouldn't claim credit.
Senator Whitehouse. A good thing.
Attorney General Gonzales. Which is fine, but I guess the
point I'm making is I believe that these issues in terms of
jurisdiction and who is going to look at what has been resolved
between those two offices. And my understanding is they are
going to pretty well cover the waterfront with respect to the
decisions about these eight U.S. Attorneys, whether or not did
anyone intentionally try to mislead Congress. And so I think
these issues are being looked at by both these offices.
Senator Whitehouse. And I guess my final question to you
then is: In choosing OPR as the place that you wish to refer
this investigation, did you take into account that OPR does not
ordinarily make their findings public and that they are
ordinarily limited to the conduct of lawyers in their conduct
as lawyers, the things that might subject them to bar
disciplinary activity and there is really no relation between
anybody's conduct here that is being questioned and their
conduct as lawyers? Typical misconduct--this is your thing--
Brady violations, Giglio violations, Federal Rule of Criminal
Procedure 16 violations, improper conduct before a grand jury,
improper coercion or intimidation of witnesses, improper use of
peremptory strikes, improper questioning of witnesses,
introducing of evidence, misrepresentations to court, improper
opening and closing arguments, failure to diligently represent
the interests of the Government, failing to comply with court
orders, scheduling orders, Hyde amendment fees violations. None
of that has anything to do with what we are questioning today,
why OPR?
Attorney General Gonzales. Senator, I think that is a fair
question, and I think that is the reason why I raised with our
Acting Chief of Staff, is to have the Office of Inspector
General also look at this. But, again, I can't claim and won't
claim credit for asking OIG to look into this because my
understanding is they were already thinking about doing that or
they were already beginning to look at it.
I don't recall in making the decision about OPR thinking
about, well, this is going to be a private report to me,
because, again, on March 8th, when I met with the Chairman and
others, I volunteered we would turn over documents voluntarily.
I volunteered that we would make DOJ officials voluntarily. And
so my actions have been consistent with the principle that we
want to get to the truth here. That is very important to me.
Senator Whitehouse. Well, I have long overextended my
questioning, and I appreciate very much the courtesy of the
Chairman and the Ranking Member and the Senator from New York
in allowing me to do so.
Chairman Leahy. Thank you.
I understand the Senator from New York needs a couple
minutes.
Senator Schumer. That is all I need, yes.
Chairman Leahy. Go ahead.
Senator Schumer. Thank you, Mr. Chairman.
Mr. Attorney General, at the beginning of the hearing, we
laid out the burden of proof for you to meet, to answer
questions directly and fully, to show that you were truly in
charge of the Justice Department, and most of all, to
convincingly explain who, when, and why the eight U.S.
Attorneys were fired. You have answered ``I don't know'' or ``I
can't recall'' to close to a hundred questions. You are not
familiar with much of the workings of your own Department. And
we still don't have convincing explanations of the who, when,
and why in regard to the firing of the majority of the eight
U.S. Attorneys.
Thus, you have not met any of these three tests. I don't
see any point in another round of questions. And I urge you to
re-examine your performance and, for the good of the Department
and the good of the country, step down.
Mr. Chairman, I yield. I yield my time.
Chairman Leahy. Thank you.
Attorney General Gonzales. Mr. Chairman, may I respond?
Chairman Leahy. Of course you may.
Attorney General Gonzales. Respectfully, Senator Schumer, I
think all Cabinet officials should ask themselves every day
what is best for the Department that you lead, and it is
something that I ask myself every day. I agree with you that I
have the burden of proof of providing to you the reasons why I
made my decision.
But the burden of proof as to whether or not something
improper happened here, respectfully, Senator, I think lies
upon those making the allegations. And I have done everything I
can to help you meet your burden of proof in terms of coming up
here and testifying and making other DOJ officials available
and providing documentation.
But I think in terms of whether or not something improper
has happened here, respectfully, Senator, I think that burden
lies upon you and others who are alleging that something
improper happened here.
Senator Schumer. Mr. Chairman? That would be true if this
were a criminal trial, sir. Our standard for Attorney General
isn't simply no criminal standard. It is a much higher standard
than that. And when you answer so many questions ``I don't
know,'' ``I can't recall,'' when major details of important
issues are not at your fingertips or even in your knowledge,
and most of all, no, sir, when you fire U.S. Attorneys, the
burden is on you to give a full, complete, and convincing
explanation as to why. And people on both sides of the aisle
failed to get that.
So, sir, in my view, no, no, no, when you fire people who
have good evaluations, who have devoted themselves to this
country, the burden of proof lays on the person who did the
firing, who took responsibility for the firing.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Specter.
Senator Specter. Mr. Attorney General, we begin with the
recognition of the long, arduous route you have taken with
great difficulty and accomplishment, as I said at the start,
Harvard Law and the State Supreme Court in Texas and White
House Counsel and Attorney General of the United States. And I
think you have been as forthcoming as you could be in your
testimony today. But the issue of credibility, I think your
credibility has been significantly impaired because of the
panorama of responses you have made, where you denied being
involved in ``discussions,'' and then your three key assistants
contradicted you on that, where you then shifted to not having
been involved in deliberations, and I went over with you the
long list. You did touch the issues as to U.S. Attorney Lam in
San Diego and what would happen to U.S. Attorney Iglesias in
New Mexico and what would happen to U.S. Attorney Cummins in
Arkansas. And then your denial of knowing about memoranda, and
you were at meetings where documents, memoranda, were
distributed. So I think inevitably there is a loss of
credibility just necessarily.
You and I talked informally during the luncheon break, and
you elaborated upon one of your answers where you said that
when you were questioning U.S. Attorney Lam's record to stay,
that it was different from what you had asked Chief of Staff
Kyle--
Attorney General Gonzales. Sampson.
Senator Specter [continuing]. Sampson to investigate. And
in my view, there is absolutely no difference. Those are the
same thing. And that when you looked at Ms. Lam's performance,
you were involved in the deliberation, the judgment as to what
happened to her.
Now, that was difficult for me to understand how you could
try to make that distinction, but I know you are doing that in
good faith. But the net result is, I think, necessarily a loss
of credibility, and I say that to you candidly and in a
friendly way.
When you come to the issue of the request of all these U.S.
Attorneys to resign, I agree with the conclusions that it
doesn't do any good to ask any more questions because I think
we have gone about as far as we can go with multiple rounds of
questions today. And you have been a forceful witness, and you
have had a lot of staying power. But we haven't gotten really
answers, and I think it is going to take a detailed analysis.
I urged you to put on the record the details as to all the
U.S. Attorneys you asked to resign so that we could evaluate
them, and you have not done that. You have not done that. And I
still think it would be useful if you did that as to your
personal views.
But perhaps it will be the Inspector General or perhaps it
will be the Office of Professional Responsibility, or maybe
they are not the right ones to do it, where our investigation
will go forward, and we have talked to a lot of people,
questioned a lot of people under oath, and we will continue to
do that to try to get the answer.
When it comes to the question as to impact on the
Department, Mr. Attorney General, it seems to me inevitable
that there has been a morale problem which some of the
questions have disclosed. There would be an implicit message,
if not an explicit message, even an unintended message, that
U.S. Attorneys ought to be on guard for their independence. I
handled the prosecutor's job and know the importance of not
being concerned about any collateral influence beyond the law
and the facts. And I think that has to have had an impact on
the Department.
For you to have said it is an ``overblown personnel
matter,'' I think that cannot be erased, and the clouds over a
lot of these professionals cannot be erased. And the worry by
those who have not been subjected to those clouds cannot be
erased.
Now, I am not going to call for your resignation. I am not
going to make a recommendation on that. I think there are two
people that have to decide that question. You have to decide it
in the first instance, and if you decided to stay on, then it
is up to the President to decide. He has the appointing power.
And I have signified the concerns that I have and the impact
that I think it has on the Department. But I think it is beyond
the purview of Senators--I mean, Senators can do whatever they
like, and I am not questioning anybody who wants to do it
differently. But for myself, I want to leave it to you and the
President.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
First off, I thank the Attorney General for being here.
This has not been a day that I think he may have wanted. I also
thank the Committee members, both Republicans and Democrats,
who were here. I think most of the Senators took this very
seriously and asked very serious questions.
You know, I cannot help but think--years ago we talked
about our backgrounds. When I was in law school at Georgetown,
I was invited with a handful of young law students who were
working here for the summer, here in Washington, to meet with
the then-Attorney General. I thought it would be a courtesy
call, in and out. The Attorney General spent well over an hour
with us--actually, considerably longer than that. We talked
about the Department of Justice and how important an arm it is
of the Government and how it is truly the one really
independent arm of the Government. It is the Attorney General
of the United States, not the Attorney General of the
President, which is interesting, especially because of this
particular Attorney General. He talked about the men and women
who worked there, most of whom he had no idea what their
political affiliations were; he just knew how professional they
were.
I remember saying afterward to my wife--and I have thought
about it since--how great it would be to work there or to be a
prosecutor. I was blessed with the opportunity to become one
for 8 years.
But I thought both when I was a prosecutor--and I know
Senator Specter felt the same way--that the independence was
the most important thing, and the independence of our Nation's
to Federal prosecutors, it is no small matter.
When you appeared here, Mr. Attorney General, in January
2005 for your confirmation hearing, you said, ``I feel a
special obligation and an additional burden coming from the
White House to reassure career people of the Department and to
reassure the American people that I am not going to politicize
the Department of Justice.''
I am afraid that both from the testimony today and the
evidence that we have uncovered during this investigation shows
that politics have entered the Department of Justice to an
unprecedented extent, and if left unchecked, it would become
just a political arm of the White House. That is something I
would oppose, whether it is a Democratic or Republican
administration.
The Attorney General is not White House Counsel. Every
President is entitled to and should have a White House Counsel.
But the Attorney General is the Attorney General of the United
States. If you put partisan politics, you have many people who
have been appointed in a political fashion who I do not believe
are confident. You have poor management. Then you add to such
things as the widespread abuses of National Security Letters,
and we know it goes even beyond what we have heard. You have
the invasion of Americans' privacy in an unprecedented fashion.
Never in this country have we had such an invasion of
Americans' privacy. We see the inaccuracies, gross
inaccuracies, in the Department's FISA applications, Foreign
Intelligence Surveillance Act applications.
So I say this saying we are going to have to continue and
will continue. I must admit that this is a day that does not
make me happy at all. I can think of very few things I have
presided over or been a part of--and I have been in the
majority and the minority half a dozen times. I cannot think of
any time that I have been more concerned--more concerned for
the system of criminal justice in this country.
So, with that, we stand adjourned.
[Whereupon, at 4:50 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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OVERSIGHT OF THE DEPARTMENT OF JUSTICE
----------
TUESDAY, JULY 24, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:32 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kennedy, Kohl, Feinstein,
Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch,
Grassley, Kyl, and Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. I would ask those who are
standing in the back to show courtesy to the people who have
stood in line to be here to sit down. Everybody is welcome here
who is here, but I would expect all those who are here for the
hearing to respect the rights of everybody who is here and to
not stand and block those who are trying to watch the
proceedings and who have a right to be here.
Three months ago, when Attorney General Gonzales last
appeared before this Committee, I said that the Department of
Justice was experiencing a crisis of leadership perhaps
unrivaled during its history. Unfortunately, that crisis has
not abated. Until there is independence, transparency, and
accountability, the crisis will continue. The Attorney General
has lost the confidence of the Congress and the American
people. But through oversight we hope to restore balance and
accountability to the executive branch. The Department of
Justice must be restored to be worthy of its name. It should
not be reduced to another political arm of the White House. It
was never intended to be that. The trust and confidence of the
American people in Federal law enforcement must be restored.
With the Department shrouded in scandal, the Deputy
Attorney General has announced his resignation. The nominee to
become Associate Attorney General requested that his nomination
be withdrawn rather than testify under oath at a confirmation
hearing. The Attorney General's Chief of Staff, the Deputy
Attorney General's Chief of Staff, the Department's White House
liaison, and the White House Political Director have all
resigned, as have others. I would joke that the last one out
the door should turn out the lights, but the Department of
Justice is too important for that. We need to shine more light
there, not less.
The investigation into the firing for partisan purposes of
United States Attorneys, who had been appointed by this
President, along with an ever-growing series of controversies
and scandals, have revealed an administration driven by a
vision of an all-powerful Executive over our constitutional
system of checks and balances, one that values loyalty over
judgment, secrecy over openness, and ideology over competence.
The accumulated and essentially uncontroverted evidence is
that political considerations factored into the unprecedented
firing of at least nine United States Attorneys last year.
Testimony and documents show that the list was compiled based
on input from the highest political ranks in the White House,
that senior officials were apparently focused on the political
impact of Federal prosecutions, on whether Federal prosecutors
were doing enough to bring partisan voter fraud and corruption
cases, and that the reasons given for these firings were
contrived as part of a cover-up.
What the White House stonewalling is preventing is
conclusive evidence of who made the decisions to fire these
Federal prosecutors. We know from the testimony that it was not
the President. Everyone who has testified has said that he was
not involved. None of the senior officials at the Department of
Justice could testify how people were added to the list or the
real reasons that people were included among the Federal
prosecutors to be replaced. Indeed, the evidence we have been
able to collect points to Karl Rove and the political
operatives at the White House. The stonewalling by the White
House raises the question: What is it that the White House is
so desperate to hide?
The White House has asserted blanket claims of executive
privilege, despite officials' contentions that the President
was not involved. They refuse to provide a factual basis for
their blanket claims, have instructed former White House
officials not to testify about what they know, and then
instructed Harriet Miers to refuse even to appear as required
by a House Judiciary Committee subpoena. Now, anonymous
officials are claiming that the statutory mechanism to test
White House assertions of executive privilege no longer
governs. In essence, the White House asserts that its claim of
privilege is the final word, that Congress may not review it,
and, of course, that no court dare review it. Here again, this
White House claims to be above the law.
My oath, unlike those who have apparently sworn their
allegiance to this President, is to the United States
Constitution. I believe in checks and balances and in the rule
of law.
Despite the stonewalling and obstruction, we have learned
that Todd Graves, U.S. Attorney in the Western District of
Missouri, was fired after he expressed reservations about a
lawsuit that would have stripped many African-American voters
from the rolls in Missouri. When the Attorney General replaced
Mr. Graves with Bradley Schlozman, the person pushing the
lawsuit, that case was filed but ultimately, of course, was
thrown out of court. Once in place in Missouri, though, Mr.
Schlozman also brought indictments on the eve of a closely
contested election, despite the Justice Department policy,
longstanding policy not to do so. This is what happens when a
responsible prosecutor is replaced by one considered a ``loyal
Bushie'' for partisan, political purposes.
Mr. Schlozman also bragged about hiring ideological
soulmates. Monica Goodling likewise admitted ``crossing the
line'' when she used a political litmus test for career
prosecutors and immigration judges. And rather than keep
Federal law enforcement above politics, this administration is
more intent on placing its actions above the law.
The Attorney General admitted recently in a video for
Justice employees that injecting politics into the Department's
hiring is unacceptable. But is he committed to corrective
action and routing out the partisanship in Federal law
enforcement? His lack of independence and tendency to act as if
he were the President's lawyer rather than the Attorney General
of the United States makes that doubtful. From the infamous
torture memo, to Mr. Gonzales's attempt to prevail on a
hospitalized Attorney General Ashcroft to certify an illegal
eavesdropping program, to the recent opinion seeking to justify
Harriet Miers's contemptuous refusal to appear before the House
Judiciary Committee, the Justice Department has been reduced to
the role of an enabler for this administration. What we need
instead is genuine accountability and real independence.
We learned earlier this year of systematic misuse and abuse
of National Security Letters, a powerful tool for the
Government to obtain personal information without the approval
of a court or prosecutor. The Attorney General has said he had
no inkling of these or other problems with vastly expanded
investigative powers. But now we know otherwise. Recent
documents obtained through Freedom of Information Act lawsuits
and reported in The Washington Post indicate that the Attorney
General was receiving reports in 2005 and 2006 of violations in
connection with the PATRIOT Act and abuses of National Security
Letters. Yet, when the Attorney General testified under oath
before the Senate Select Committee on Intelligence in April
2005, he said that ``[t]he track record established over the
past 3 years has demonstrated the effectiveness of the
safeguards of civil liberties put in place when the Act was
passed.'' Earlier this month, in responses to written questions
I sent to the Attorney General about when he first learned of
problems with National Security Letters, he once again failed
to mention these reports of problems.
Only with the openness and honesty that brings true
accountability will the Department begin to move forward and
correct the problems of the last few years. Instead, we have
leadership at the Department of Justice whose expressions of
concern and admissions that mistakes were made only follow
public revelations and amount to regrets really not that
mistakes and excesses were made, but apparently regrets that
somebody found out about those excesses.
In the wake of growing reports of abuses of National
Security Letters, the Attorney General announced a new internal
program. This supposed self-examination, with no involvement by
the courts, no report to Congress, and no other outside check,
essentially translates to ``Trust us.'' Well, with a history of
civil liberties abuses and cover ups, this administration has
squandered our trust. I am not willing to accept a simple
statement of ``Trust us.'' I don't trust you.
Earlier internal reviews, like the Intelligence Oversight
Board and the Privacy and Civil Liberties Oversight Board, have
been ineffective and inactive, failing to take action on the
violations reported to them. Only with a real check from
outside of the executive branch can we have any confidence that
abuses will be curbed and balance restored.
A tragic dimension of the ongoing crisis of leadership at
the Justice Department is the undermining of good people and
the crucial work that the Department does. Thousands of honest,
hard-working prosecutors, agents, and other civil servants
labor every day to detect and prevent crime, uncover
corruption, promote equality and justice, and keep all
Americans safe from terrorism. But, sadly, prosecutions will
now be questioned as politically motivated and evidence will be
suspected of having been obtained in violation of laws and
civil liberties. Once the Government shows a disregard for the
independence of the justice system and the rule of law, it is
very hard to restore the people's faith, and it is going to be
very hard to restore my trust in what is going on.
This Committee will do its best to try to restore
independence, accountability, and commitment to the rule of law
to the operations of the Justice Department. That is something
that both Republicans and Democrats could agree on.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
Attorney General Gonzales, I direct the remarks in my
opening statement to you. Your photo appears in the morning
press with the caption, ``I accept full responsibility.'' Let
me suggest to you that that is not enough. The question is
whether the Department of Justice is functioning as it must in
order to protect the vital interests of the American people.
Next to the Department of Defense, the Department of
Justice has the major responsibility for protecting Americans'
security--investigation of terrorism, dealing with drug sales,
dealing with organized crime, violent crime. And the issues
relating to the resignations of the U.S. Attorneys have placed
a very heavy cloud over the Department. There is evidence of
low morale, very low morale; lack of credibility; candidly,
your personal credibility. The Department is dysfunctional, as
so many items have arisen where there is a substantial basis to
conclude that there is a preoccupation with the investigation
on the resignations of the Attorneys. And I have asked you both
formally in this room and in our private conversations to give
us an explanation as to why each one of these U.S. Attorneys
was asked to resign, and that has not been done.
We have sought an accommodation to question the remaining
witnesses, and I believe that the administration has not had
any significant degree of flexibility in trying to work it out
with congressional oversight. I believe we are prepared to
concede that there will not be an oath because there are
penalties otherwise; prepared to concede that it could be in
private, although it ought to be public, it is the public's
business; prepared to concede that both Houses wouldn't have to
engage in the questioning of these witnesses, that a
representative group from the House Judiciary Committee and the
Senate Judiciary Committee, bipartisan, bicameral, would do the
questioning. But not to have a transcript I think is patently
unreasonable. But I am prepared even to do that if we could get
on with this matter, reserving the right for Congress to come
back if the informal interviews are unsatisfactory, then to
proceed with our authorities under subpoenas. And we were met
with the response, no, if you question these witnesses under
our unilateral terms, you cannot come back later.
Well, that is simply going too far. I do not believe that
the Congress has the right to give up our powers. We cannot
delegate them, we cannot abrogate them. They are our
responsibilities. We cannot give them up as part of an
arrangement with the administration.
Now we have a very remarkable turn of events. We now have
the invitation, announcement that the administration will
preclude the U.S. Attorney for the District of Columbia from
pursuing a contempt citation. Now, if that forecloses a
determination of whether executive privilege has been properly
imposed, then the President in that manner can stymie
congressional oversight by simply saying there is executive
privilege. Since we cannot take it to court, the President's
word stands, and the constitutional authority and
responsibility for congressional oversight is gone.
Now, that is carrying this controversy to really an
incredible level. If that is to happen, the President can run
the Government as he chooses, answer no questions, say it is
executive privilege. He cannot go to court, and the President's
word stands.
Now, we have been exploring some alternatives, and I will
be asking you about them. The Attorney General has the
authority to appoint a special prosecutor. You are recused, but
somebody else could do it. You are recused because you know all
of the principals. You have a conflict of interest. Your
recusal is understandable. But doesn't the President have an
identical conflict of interest? Can the President foreclose the
Congress from moving ahead and making an effort at having a
judicial determination as to the propriety of the claim of
executive privilege?
We also have the alternative of convening the Senate and
having a contempt citation and trying it in the Senate. That
might be productive. We could use the precedent of the Alcee
Hastings impeachment proceeding where a Committee took over,
had it in this room--I was the Vice Chairman, Senator Bingaman
was the Chairman--so we would not take up the full time of the
Senate in moving for a contempt citation. But we are going to
have to move ahead on that, Mr. Attorney General.
We have so many items that every week a new issue arises.
And I sent you letters advising you that we would be pursuing
these matters at this hearing. One is on the legality for the
Terrorist Surveillance Program. You said categorically there
has not been any serious disagreement about the program. And
yet we know from former Deputy Attorney General James Comey
exactly the opposite is true. This is what he testified:
When you and the Chief of Staff went to extract from then-
Attorney General Ashcroft, who was in the hospital under
sedation, approval of the program, Mr. Comey: ``I was very
upset. I was angry. I thought I had just witnessed an effort to
take advantage of a very sick man.''
I will be asking you about that, giving you a chance to
explain that, although it bedevils me to see any conceivable
explanation for your saying no disagreement and your going to
the hospital of the Attorney General, who is no longer in
power, he has delegated his authority, and seek to extract
approval from him. It seems to me that it is just decimating,
Mr. Attorney General, as to both your judgment and your
credibility.
But that is not all. The list goes on and on. I wrote to
you about the death penalty case where U.S. Attorney Paul
Charlton could only get 5 to 10 minutes of the time of the
Deputy Attorney General, who talked to you. You would not talk
to him. We will give you a chance to explain that.
On the PATRIOT Act, you testified repeatedly no problems,
and there is a wealth of information about very serious
incidents.
And then this OxyContin case, which has reached the
newspapers, where there was malicious, deliberate falsification
of the medicine; people died.
Is your Department functioning? Do you review these
matters? How many matters are there which do not come to our
attention because you do not tell us and the newspapers do not
disclose them?
Thank you, Mr. Chairman.
Chairman Leahy. Well, thank you very much.
I might mention Senator Specter has requested a hearing on
OxyContin, and I think he is absolutely right on that, and we
will have one at your request.
Mr. Attorney General, please stand and raise your right
hand. Do you solemnly swear that the testimony you will give in
this matter will be the truth, the whole truth, and nothing but
the truth, so help you God?
Attorney General Gonzales. I do.
Chairman Leahy. Go ahead, Mr. Attorney General. And I
should note before you start that there will be a series of
votes around 10:20, and I will consult with Senator Specter how
best to continue during that time. At most, we will try to
limit the break.
Attorney General Gonzales. I understand, Mr. Chairman.
Chairman Leahy. Go ahead.
STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE
UNITED STATES, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Attorney General Gonzales. I do have the great pleasure to
work with over 100,000 dedicated public servants at the
Department of Justice. I admire the dedication to the pursuit
of justice for all Americans. The Department's many
accomplishments are, in reality, their accomplishments.
As Attorney General, I have worked with these fine men and
women to keep our country safe from terrorists, our
neighborhoods safe from violent crime, and our children safe
from predators.
As my written statement explains in more detail, when it
comes to keeping our neighborhoods safe and protecting our
children, the Department has made great progress. In my brief
remarks this morning, I want to focus on the Department's No. 1
priority of keeping our country safe from terrorists and the
urgent need, quite frankly, for more help from Congress in this
fight.
As the recent National Intelligence Estimate as well as the
car bombings in London and Scotland demonstrate, the threat
posed to America and its allies by al Qaeda and other terrorist
groups remains very strong. To respond effectively to this
threat, it is imperative that Congress modernize the Foreign
Intelligence Surveillance Act of 1978, known as FISA. Doing so
is critically important to intelligence gathering, and it
really just makes plain sense.
When Congress drafted FISA in 1978, it defined the
statute's key provisions in terms of telecommunications
technologies that existed at that time. As we all know, there
have been sweeping changes in the way that we communicate since
FISA became law. And these changes have had unintended
consequences on FISA's operation.
For example, without any change in FISA, technological
advancements have actually made it more difficult to conduct
surveillance on suspected terrorists and other subjects of
foreign intelligence surveillance overseas.
In April, at the request of the Senate Select Committee on
Intelligence, the Director of National Intelligence transmitted
a comprehensive FISA modernization proposal to Congress. The
proposal builds upon thoughtful bills introduced during the
last Congress, and the bill would accomplish several key
objectives. Most importantly, the administration's proposal
restores FISA's original focus on protecting the privacy of
U.S. persons in the United States. FISA generally should apply
when conducting surveillance on those in the United States, but
it should not apply when our intelligence community targets
persons overseas. Indeed, it was advancements in technology and
not any policy decision of Congress that resulted in wide-scale
application of FISA and its requirements to go to court to
overseas targets.
This unintended consequence clogs the FISA process and,
quite frankly, hurts national security and civil liberties. As
amended, FISA's scope would focus on the subject of the
surveillance and the subject's location rather than on the
means by which the subject transmits a communication or the
location where the Government intercepts a communication. FISA
would become technology neutral. Its scope would no longer be
affected by changes in communications technologies.
The bill would also fill a gap in current law by permitting
the Government to direct communications companies to assist in
the conduct of lawful communications intelligence activities
that do not constitute ``electronic surveillance'' under FISA.
This is a critical provision that is a necessary companion to
any change in FISA's scope. Importantly, the administration's
proposal would provide a robust process of judicial review for
companies that wish to challenge these directives.
The administration's proposal would also provide
protections from liability to companies that are alleged to
have assisted the Government in the wake of the September 11th
terrorist attacks. The bill also streamlines the FISA
application process to make FISA more efficient, while at the
same time ensuring that the FISA Court has the information it
needs to make the probable cause findings required.
Finally, the administration's proposal would amend the
statutory definition of ``agent of a foreign power'' to ensure
that it includes groups who are engaged in the international
proliferation of weapons of mass destruction or who possess or
are expect to transmit or receive foreign intelligence
information while in the United States.
FISA modernization is critically important, and we urge the
Senate to reform this critical statute as soon as possible. I
am hopeful that this is an area we can work on together with
the Congress and this Committee. I think we can find common
ground on the central principles underpinning the
administration's proposal and, in particular, on the fact that
we should not extend FISA's protections to terrorist suspects
located overseas.
We already have had several helpful sessions with the
Intelligence Committees in the Senate and the House on this
issue. We look forward to continuing to work with the Senate
and this Committee on this important endeavor.
Thank you, Mr. Chairman.
[The prepared statement of Attorney General Gonzales
appears as a submission for the record.]
Chairman Leahy. Thank you, Mr. Attorney General, and your
full statement, of course, will be made a part of the record.
We have documents that we have--not in answer to requests
made by this and other committees, but obtained through Freedom
of Information Act lawsuits. They indicate that you received
reports in 2005 and 2006 of violations in connection with the
PATRIOT Act abuses of National Security Letters. The violations
apparently included unauthorized surveillance, illegal
searches, and improper collection of data.
But when you testified before the Senate Select Committee
on Intelligence in April 2005, you sought to create the
impression that Americans' civil liberties and privacies were
being effectively safeguarded and respected, and you said, and
I quote: ``The track record established over the past 3 years
has demonstrated the effectiveness of the safeguards of civil
liberties put in place when the Act was passed.''
Then I sent you written questions, and earlier this month,
you responded about when you first learned of problems with
National Security Letters. But in those responses, you did not
mention these earlier reports of problems.
So my question is this--as you know, I have written a
number of these questions to you in advance so that you would
be able to answer. Would you like to revise or correct your
April 2005 testimony to the Senate Select Committee on
Intelligence, which was misleading, or your July 6, 2007,
response to this Committee's written questions? Do you care to
revise either of them?
Attorney General Gonzales. Thank you for the question, Mr.
Chairman, and I can understand the confusion or concern about
my prior statements, which, of course, were made in connection
with the discussions about reauthorization of the PATRIOT Act
and were also made in the context of the IG's investigation of
abuses under the PATRIOT Act, exercising his authority under
the PATRIOT Act to investigate abuses.
My comments are similar to comments made by the Director of
the FBI, and--
Chairman Leahy. I do not care if they are similar to
anybody else. They are your comments I am concerned about. I am
not concerned about somebody's else comments. I am concerned
about yours. They seem contradictory.
Attorney General Gonzales. And my comments reflected the
understanding on my part, Mr. Chairman, that IOB violations--
which is what I want to refer to these as, ``IOB violations,
referrals or violations made the Intelligence Oversight Board--
that these do not reflect, as a general matter, intentional
abuses of the PATRIOT Act, that any--
Chairman Leahy. Are you saying they are not abuses if they
are not committed without malice? Is that what you are saying?
Attorney General Gonzales. That's not what I'm saying.
Obviously, they are very, very--and every such abuse, because
it does constitute abuse, is, in fact, referred to the IOB and
also is, in fact, referred to the Inspection Division at the
FBI.
Now, the good news is that when a referral occurs, there is
an examination and appropriate action is taken. The other bit
of good news is that I have directed each IOB referral to the
FBI also be made simultaneously to the National Security
Division, and the National Security Division is going to study
these IOBs, make a semiannual report to me, and identify
whether or not there are any trends here that we identify.
Chairman Leahy. Well, let me ask you about that, because I
understand that approximately 500--and if you want to go back
and elaborate on your answer, I will certainly give you time
because I do not think you have answered the question I asked.
But you keep talking about the Intelligence Oversight Board,
these things are referred to it. I understand that
approximately 500 incidents are annually referred to the
Intelligence Oversight Board, but the General Counsel of the
FBI has not received a single response from the Board. I
thought I was the only one that did not get responses, but
apparently 500 a year do not get back a single response. The
Board is not sent forward a single report of potentially
unlawful intelligence activities. But you are talking about an
oversight system that reports to that same Board.
You know, is this, oh, gosh, we have a problem, we will not
tell anybody about it, we will send it to somebody who will
file it away and nothing will ever be heard again, so,
therefore, we have no problems? It is almost an Alice in
Wonderland situation.
Attorney General Gonzales. I think you have misunderstood
my response, Mr. Chairman. What I said or certainly intended to
say was the fact that it is referred to the IOB does not mean
that it stops there. It is also sent to the Inspection
Division, and appropriate action is taken. We have also
instituted another check by involving the National Security
Division so that they can also identify any trends and make
suggestions in policies or training so that we can address
these kinds of issues.
Chairman Leahy. Well, in April 2005, when you said the
track record established in the past 3 years demonstrated the
effectiveness of the safeguards, that basically there had not
been any violations, was that correct or not? Had there been
violations?
Attorney General Gonzales. What I can say is--
Chairman Leahy. In the 3 years before you testified, had
there been any violations?
Attorney General Gonzales. A violation--
Chairman Leahy. Yes or no?
Attorney General Gonzales. A violation of IOB may not be a
violation of the PATRIOT Act. In fact, the Inspector General I
think has indicated that. And, Mr. Chairman, my view and the
views of other leadership in the Department is, in fact, when
we are talking about abuses of the PATRIOT Act, we are talking
about intentional, deliberate misuse of the PATRIOT Act, not
when some agent writes down the wrong phone number in a
National Security Letter. And, of course, whenever a mistake
like that happens, of course, we address it and appropriate
action is taken.
Chairman Leahy. Such as?
Attorney General Gonzales. We institute training for--
additional training, if it is a question of providing
additional guidance, providing additional training, or
disciplinary action against the agent.
Chairman Leahy. Incidentally, could I ask you this? We have
93 United States Attorneys. Only 70 have been confirmed by the
Senate. Do you have any idea when we are going to get--six have
just been sent up. When are we going to get the 17 remaining
ones?
Attorney General Gonzales. We are working as hard as we can
with the White House and with Members of Congress so that we
can go through the vetting process, the evaluation process, so
we can make recommendations to the President. The full intent
is, as I have committed to this Committee, that we are going to
have Senate-confirmed U.S. Attorneys in these positions.
Chairman Leahy. I would hope so because you tried to do
that back-door thing that you got inserted into the law, and
the Congress has repealed that because of revulsion at the use
of it. The President signed it.
My last question is this: As you know, if either the Senate
or House finds somebody in contempt, they have to refer it to
the U.S. Attorney for the District of Columbia, who has to then
not necessarily prosecute, but at least present the contempt
citation to a grand jury to determine whether criminal charges
are appropriate. Last week, the administration said that the
U.S. Attorney wouldn't be allowed to carry out that. So my
question to you is: If a House of Congress certified a contempt
citation against former or current officials for failing to
appear or comply with a congressional subpoena, would you
permit the U.S. Attorney to carry out the law and refer the
matter to a grand jury, as required by 2 U.S.C. 194, and,
therefore, fulfill the constitutional duty to faithfully
execute the law? Or would you block the execution of the law?
Attorney General Gonzales. Mr. Chairman, your question
relates to an ongoing controversy which I am recused from. I
can't--I'm not going to answer that question.
Chairman Leahy. Is there anybody left in the Department of
Justice who could answer the question?
Attorney General Gonzales. Of course, there is.
Chairman Leahy. Who?
Attorney General Gonzales. With respect to these kinds of
decisions--
Chairman Leahy. Who?
Attorney General Gonzales.--it would be made by the
Solicitor General.
Chairman Leahy. Well, then we may ask him why they are on
this refusal to prosecute that the administration talked about,
whether that extends to the executive branch lying to Congress
or perjury or destruction of evidence or obstruction of
justice, because, Mr. Attorney General, those are going to be
real issues. They are not going to be just debating points.
Thank you.
Senator Specter?
Senator Specter. Let me move quickly through a series of
questions. There is a lot to cover, starting with the issue
that Mr. Comey raises. You said, ``There has not been any
serious disagreement about the program.'' Mr. Comey's testimony
was that, ``Mr. Gonzales began to discuss why they were there
to seek approval.'' And he then says, ``I was very upset. I was
angry. I thought I had just witnessed an effort to take
advantage of a very sick man.''
First of all, Mr. Attorney General, what credibility is
left for you when you say there is no disagreement and you are
a party to going to the hospital to see Attorney General
Ashcroft under sedation to try to get him to approve the
program?
Attorney General Gonzales. The disagreement that occurred
and the reason for the visit to the hospital, Senator, was
about other intelligence activities. It was not about the
Terrorist Surveillance Program that the President announced to
the American people.
Now, I would like the opportunity--
Senator Specter. Mr. Attorney General, do you expect us to
believe that?
Attorney General Gonzales. Well, may I have the opportunity
to talk about another very important meeting in connection with
the hospital visit that puts it into context.
There was an emergency meeting in the White House Situation
Room that afternoon. It involved senior members of the
administration and the bipartisan leadership of the Congress,
both House and Senate, as well as the bipartisan leadership of
the House and Senate Intel Committees, the Gang of Eight.
The purpose of that meeting was for the White House to
advise the Congress that Mr. Comey had advised us that he could
not approve the continuation of vitally important intelligence
activities despite the repeated approvals during the past 2
years of the same activities.
Senator Specter. Okay. Assuming you are leveling with us on
this occasion--
Attorney General Gonzales. May I--
Senator Specter. No, I want to move to the point about how
can you get approval from Ashcroft for anything when he is
under sedation and incapacitated--for anything.
Attorney General Gonzales. May I continue the story,
Senator--
Senator Specter. No. I want you to answer my question.
Attorney General Gonzales. Senator, obviously there was
concern about General Ashcroft's condition, and we would not
have sought, nor did we intend to get any approval from General
Ashcroft if, in fact, he wasn't fully competent to make that
decision. But General--there are no rules governing whether or
not General Ashcroft can decide, ``I am feeling well enough to
make this decision.''
Senator Specter. But, Attorney General Gonzales, he had
already given up his authority as Attorney General. Ashcroft
was no longer Attorney General.
Attorney General Gonzales. And he could always reclaim
that. There are no rules about--
Senator Specter. While he is the hospital under sedation?
Attorney General Gonzales. Again, we didn't know--we know,
of course, that he was--that he was--he was ill, that he had
had surgery.
Senator Specter. I am not making any progress here. Let me
go to another topic. Attorney General, I would not-- and I
would like to have a lot of time, but I have got 3 minutes and
43 seconds left, and seven topics to cover with you.
Mr. Attorney General, do you think constitutional
government in the United States can survive if the President
has the unilateral authority to reject congressional inquiries
on grounds of executive privilege and the President then acts
to bar the Congress from getting a judicial determination as to
whether that executive privilege is properly invoked?
Attorney General Gonzales. Senator, you're asking me a
question that is related to an ongoing controversy, which I am
recused. I will say the President has tried very hard--
Senator Specter. No, no. I am not asking you a question
about something you are recused of. I am asking you a question
about constitutional law.
Attorney General Gonzales. You're asking me a question
that's related--
Senator Specter. I am asking you whether you could have--
Attorney General Gonzales.--to an ongoing controversy.
Senator Specter.--a constitutional government with the
Congress exercising its constitutional authority for oversight
if, when the President claims executive privilege, the
President then forecloses the Congress from getting a judicial
determination of it. That is a constitutional law question.
Attorney General Gonzales. Senator, both the Congress and
the President have constitutional authorities. Sometimes they
clash. In most cases, accommodations are reached. In the very
rare instances, they sometimes litigate it in the courts.
Senator Specter. Would you focus on my question for just a
minute, please?
Attorney General Gonzales. Senator, I'm not going to answer
this question because it does relate to an ongoing controversy
in which I am recused.
[Audience comments.]
Chairman Leahy. I would note, please, we will have decorum
in here. Senator Specter has the right to ask all the questions
he has. The Attorney General has the right to be heard. I have
indicated to Senator Specter, especially that I am taking some
of his time in saying this, that he has extra time. But,
please, let us continue without comments.
Senator Specter. I am not going to pursue that question,
Mr. Attorney General, because I see it is hopeless. It has got
nothing to do with your recusal. You are the Attorney General.
You are also a lawyer. And we are dealing with a very
fundamental controversy where the President is exerting
executive authority under executive privilege and the Congress
is exerting constitutional authority for oversight, and we are
trying to take it to court. The court decides when that
conflict exists. It has got nothing to do with necessarily the
U.S. Attorneys who were asked to resign.
Let me move ahead to another subject, see if I can get an
answer here. Do you have a conflict of interest on the matter
involving the resignations of the U.S. Attorneys?
Attorney General Gonzales. Yes. I am recused from that.
Senator Specter. Does the President have a conflict of
interest in deciding whether or not to allow a contempt
citation to go forward to former White House Counsel Harriet
Miers?
Attorney General Gonzales. Senator, I am not going to
answer that question. Again, you're talking about--asking me
questions about a matter in which I am recused. I'm not going
to answer that question.
Senator Specter. Well, let's see if somewhere somehow we
can find a question you will answer. How about the death
penalty case? I wrote you about this. We had a man who was
convicted of murder. The victim's body was never recovered.
There was no forensic evidence directly linking the defendant
to the victim's death. The U.S. Attorney, a man named Paul
Charlton, contacted your office and said, ``I don't think this
is a proper case for the death penalty.''
Deputy Attorney General Paul McNulty had a conversation
with Mr. Charlton and had a conversation with you, and then
McNulty's Chief of Staff, Mike Elston, called Charlton--and
this is Charlton's testimony: ``Elston indicated that McNulty
had spoken to the Attorney General and that McNulty wanted me
to be aware of two things: first, that McNulty had spent a
significant amount of time on this issue with the Attorney
General, perhaps as much as 5 or 10 minutes.''
Is that accurate factually? Will you answer a question as
to a fact, as to whether you talked to McNulty about this case
for as much as 5 or 10 minutes?
Attorney General Gonzales. I have no specific recollection
as to this particular case, but I can tell you we have a very
detailed process where hours are spent by lawyers, including
the U.S. Attorney, our Capital Case Review Unit, who then make
recommendations to the Deputy Attorney General.
Senator Specter. I am not interested in that. I am
interested in an answer to my question. If you don't know, if
you don't remember--
Attorney General Gonzales. I don't--I--
Senator Specter. Wait a minute. I'm not finished asking you
the question. If you don't know or you don't remember what
happened when you stood on a decision to have a man executed--
that is what you are saying.
Attorney General Gonzales. I have no specific recollection
about the amount of time that I talked with Paul McNulty on
this particular issue.
Senator Specter. Well, would you disagree with McNulty that
it was 5 to 10 minutes?
Attorney General Gonzales. I can't agree with that if I
don't recall, Senator.
Senator Specter. Okay. You can't agree with it. I didn't
ask you that. I asked if you disagreed with it.
Attorney General Gonzales. I can't agree or disagree with
it.
Senator Specter. Would you say that 5 to 10 minutes would
be a ``significant amount of time'' for you to spend on a case
involving the death penalty?
Attorney General Gonzales. It would depend on the
circumstances of the case and the recommendations coming up and
the facts. Those would all dictate how much time I would spend
personally on a particular case, because we have a very
extensive review process within the Department where hours are
spent analyzing what is the appropriate course of action for
the Department of Justice.
Senator Specter. Well, Mr. Attorney General, I am not
totally unfamiliar with this sort of thing. When I was district
attorney of Philadelphia, I had 500 homicides a year. I did not
allow any assistant to ask for the death penalty that I had not
personally approved. And when I asked for the death penalty, I
remembered the case.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Mr. Attorney General, the detention center at Guantanamo
Bay continues to harm our image around the world. There is
growing consensus on this. Secretary of Defense Robert Gates
told the House Committee, ``I came to this job thinking that
Guantanamo Bay should be closed.''
According to press reports, Secretary of State Rice has
also supported efforts within the administration to close
Guantanamo. And former Secretary of State Colin Powell said,
``If it was up to me, I would close Guantanamo, not tomorrow
but this afternoon.'' Last year, even the President himself
recognized that Guantanamo has been the focus of international
criticism, and he said, ``I'd like to close Guantanamo.''
Recent press reports have disclosed that efforts are
underway in the administration to do that. According to the New
York Times, however, these efforts ``were rejected after
Attorney General Gonzales and some other Government lawyers
expressed strong objections.''
So where are you on this? Do you think that we should close
Guantanamo?
Attorney General Gonzales. I wish we could close
Guantanamo. I am with everyone else. We should close
Guantanamo. However, a need remains, and there are legitimate
questions about what do you do with these individuals. I guess
we could turn them loose, Senator, and they could end up
fighting against us again. We could bring them into the United
States, although I understand the Senate recently rejected that
overwhelmingly. Bringing them into the United States raises
some serious legal issues. And as the Attorney General, my job
was to make sure that all of the policymakers were aware that
there were serious legal issues that would arise if, in fact,
they were brought into the United States.
But if your question is would I support closing Guantanamo,
absolutely, but not at the risk of the lives of our men and
women who are fighting overseas and not at the risk of the
national security of our country.
Senator Kohl. But we can put them into the American justice
system, and the American justice system, as you know, has
worked very effectively, even with respect to dealing with
terrorists and members of al Qaeda. There are ways in which we
can restrict classified information, important information. So
if you support closing Guantanamo, then why don't you put into
motion the kinds of things that will result in just that?
Attorney General Gonzales. Senator, I do believe there are
legitimate risks involved in bringing people into the United
States and putting them into our system, quite frankly. Let's
say--
Senator Kohl. What are the risks?
Attorney General Gonzales. Let's say that the evidence that
we have is not evidence that we want to compromise in order to
bring someone to trial. Once they're into the United States, if
they come from a country where, if we send them back, they may
be tortured, they will have the right to ask for asylum. And so
we may not have the ability to either hold them or to throw
them out of the United States and we have to let them go.
And so those are sort of the nightmare scenarios that we
worry about in bringing people into the United States.
Senator Kohl. Are you saying, therefore, that you do not
support closing Guantanamo?
Attorney General Gonzales. I support closing Guantanamo,
Senator, but I think we need to do it with our eyes wide open.
I think we probably would come to the Congress and ask for
legislation in order to ensure that we can protect this
country.
Senator Kohl. Well, why don't we do that?
Attorney General Gonzales. That is totally something that
is a serious discussion and debate.
Senator Kohl. So you may--
Attorney General Gonzales. In the administration.
Senator Kohl. You may, in fact, decide to close Guantanamo
and come to Congress for authorization.
Attorney General Gonzales. Again, there's been no decision
made by the President. My judgment is the President, like you,
wants to close Guantanamo. But like you, he doesn't want to do
so if it means jeopardizing the security of our country.
And so we're trying to work through these, and you're
right, it will ultimately, in my judgment, require additional
consultation with the Congress.
Senator Kohl. Mr. Attorney General, consumers today, as you
know, are suffering from near record high gas prices, and most
of this is due to the high price of crude oil. Despite this,
the administration has threatened to veto our NOPEC
legislation, which would enable the Justice Department and only
the Justice Department to sue OPEC member nations for violating
U.S. antitrust law when they conspire to fix the price of oil,
which they do. This bill passed both the House and the Senate
with overwhelming margins. Under this bill, the Justice
Department and only the Justice Department could institute this
kind of a proceeding.
So why do you not want this authority?
Attorney General Gonzales. I think cartels are bad, and we
ought to prosecute them and go after them. I agree with that.
The question is whether or not going after this cartel in this
way, through litigation, is the right approach because you
implicate questions of sovereignty and state action and, you
know, calls into question the fact that, you know, we have a
presence overseas and does that mean that either the American
Government or American businesses are going to be subject to
litigation, the jurisdiction of other countries overseas. I
think that's the concern that we have, is the downstream impact
or the result, the impetus that's going to arise as a result of
this legislation.
We think that a better approach is to continue to try to
work through this, through the Department of Energy and the
Department of State, through diplomatic means, and that's the
concern that we have, Senator. Again, cartels are bad. We'd
like to deal with it. I just--we're concerned that this may not
be the best approach.
Senator Kohl. But you don't have to use, if you don't--you
know that the only way in which the legislation can be effected
is through the President and the Department of Justice. So if
you think it is legislation that should not be used, you won't
use it.
Attorney General Gonzales. But once Congress passes
legislation and puts it on the books, what is going to be the
response of another country who sees this action taken by the
Congress? And are they going to take some kind of action in
response to simply the legislation passing?
It's hard to predict. I would simply urge the Congress to
consider giving the Department of State and the Department of
Energy additional time to try to work through this.
Senator Kohl. Mr. Attorney General, since our last
oversight hearing, it seems that very little has improved at
the Justice Department. Many of the people in senior positions
have resigned, as you know, and according to press reports,
these positions have not been filled, in many cases because
people have turned down these jobs. The American public has
lost confidence in you, according to recent polls. Morale at
the Justice Department remains low.
The integrity of the Office of the Attorney General as an
institution is obviously more important, I am sure you would
agree, than the person sitting in it. In other words, Mr.
Attorney General, this cannot be just all about you.
And so would you please explain to us why the
administration of justice and the American people would not be
better served by somebody sitting in the office who does not
have all of the problems that you possess with respect to
believability, credibility, confidence, trust? What keeps you
in the job, Mr. Attorney General?
Attorney General Gonzales. That's a very good question,
Senator. Ultimately I have to decide whether or not is it
better for me to leave or to stay and try to fix the problems.
I've decided to stay and fix the problems, and that's what I
have been doing.
You talked about vacancies. We're at a time in the
administration where there are going to be vacancies in
agencies. It's just natural. Obviously, there have been changes
in personnel at the leadership of the Department. In many ways,
that is a good thing. We've just identified a new interim
Deputy Attorney General. He's a career prosecutor. I think he
will do a great job. I've got a Chief of Staff who is also a
United States Attorney, and so we're bringing in good,
experienced people into these positions because we want to
address the question about lack of leadership. I think we have
some strong leadership in the Department of Justice. We have
changed policies. We have been made aware of some issues
relating to some of our policies with respect to hiring of
immigration judges, with respect to the Honors Program, with
respect to hiring Assistant United States Attorneys, with
respect to hiring in the Civil Rights Division. And so we have
implemented policies to address each and every one of these.
We've also worked very hard to improve communication, not
with just the U.S. Attorney community but also with respect to
every employee at the Department of Justice. I think the way
you measure morale is you measure output. And I think if you
look at the output at the Department these past 6 months, it's
been outstanding.
Sure, we've had to deal with these issues. They're my
responsibility. I've accepted responsibility for it. But the
wonderful career people at the Department continue doing their
job day in and day out, and justice is being served in this
country.
Senator Kohl. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Hatch.
Senator Hatch. Thank you, Mr. Chairman.
Well, I want to make it clear that having gone there and
one of the earliest ones to go there, I do not agree with
closing Guantanamo. The big issue is, even if we did, what do
we do with them? What is the alternative?
I have heard a lot of the Senators around here bemoaning
the fact they sure don't want these terrorists in their State.
The fact of the matter is it is a separate place where they can
be contained, and appropriately so.
So I am opposed to closing Guantanamo. I think it is
ridiculous. I think the arguments have been ridiculous. And I
hope you will consider changing your mind on that because I
just think it is wrong.
But now, you may not have had--having said that, I just
thought I would make that point.
You may not have had a full opportunity to explain what
happened the day of your hospital visit to Attorney General
Ashcroft, so if you would, please finish your description of
those events so we can all understand just what happened there.
Attorney General Gonzales. The meeting that I was referring
to occurred on the afternoon of March 10th, just hours before
Andy Card and I went to the hospital. And the purpose of that
meeting was to advise the Gang of Eight, the leadership of the
Congress, that Mr. Comey had informed us that he would not
approve the continuation of a very important intelligence
activity despite the fact the Department had repeatedly
approved those activities over a period of over 2 years.
We informed the leadership that Mr. Comey felt the
President did not have the authority to authorize these
activities, and we were there asking for help, to ask for
emergency legislation--
Senator Hatch. Was Mr. Comey there during those 2 years?
Attorney General Gonzales. He was not there during the
entire time, no, sir.
Senator Hatch. How much of that time?
Attorney General Gonzales. I can't recall now, Senator,
when Jim Comey became the Deputy Attorney General.
The consensus in the room from the congressional leadership
is that we should continue the activities, at least for now,
despite the objections of Mr. Comey. There was also consensus
that it would be very, very difficult to obtain legislation
without compromising this program, but that we should look for
a way ahead.
It is for this reason that, within a matter of hours, Andy
Card and I went to the hospital. We felt it important that the
Attorney General knew about the views and the recommendations
of the congressional leadership, that as a former Member of
Congress and as someone who had authorized these activities for
over 2 years, that it might be important for him to hear this
information. That was the reason that Mr. Card and I went to
the hospital. Obviously, we were concerned about the condition
of General Ashcroft. We obviously knew that he had been ill and
had had surgery, and we never had any intent to ask anything of
him if we did not feel that he was competent.
When we got there, I will just say that Mr. Ashcroft did
most of the talking. We were there maybe 5 minutes, 5 to 6
minutes. Mr. Ashcroft talked about the legal issue in a lucid
form, as I have heard him talk about legal issues in the White
House. But at the end of his description of the legal issues,
he said, ``I'm not making this decision. The Deputy Attorney
General is.''
And so Andy Card and I thanked him. We told him that we
would continue working with the Deputy Attorney General, and we
left.
And so I just wanted to put in context for this Committee
and the American people why Mr. Card and I went. It's because
we had an emergency meeting in the White House Situation Room
where the congressional leadership had told us continue going
forward with this very important intelligence activity.
I might also add--
Senator Hatch. That was the Gang of Eight, you are saying?
Attorney General Gonzales. Pardon me?
Senator Hatch. That was the Gang of Eight.
Attorney General Gonzales. This was the Gang of Eight.
Senator Hatch. The two leaders in the House, the two
leaders in the Senate, the two leaders of the Intelligence
Committee in the House, and the two leaders of the Intelligence
Committee in the Senate, right?
Attorney General Gonzales. That is correct. I might also
add--
Senator Hatch. Democrats and Republicans?
Attorney General Gonzales. Democrats and Republicans. I
might also add that the urgency was that the authorities in
question were set to expire the very next day.
Senator Hatch. Right.
Attorney General Gonzales. And the President believed this
was a very important activity, as did the congressional
leadership. In fact, the very next morning, we had the Madrid
bombings, and so that puts into perspective the context of the
environment that we were operating under. And these are the
reasons why we went to the hospital on the evening of March
10th.
Senator Hatch. Well, thank you, sir. The administration has
made proposals to modernize FISA, of course, and is working
with the Judiciary Committee to ensure that appropriate staff
members have the necessary information about the terrorist
surveillance plans of the administration. However, some members
of the Committee have stated that they will not consider any
legislation in this area until they receive additional
information about the TSP.
Now, I do find this logic somewhat questionable since this
very Committee not only considered but passed three different
bills dealing with FISA modernization during the last Congress.
Now, how do you view the decision not to discuss FISA
modernization? Of all issues, isn't this the one in which
increased attention and expediency is paramount?
Attorney General Gonzales. This is the most important
legislative agenda item for the Department of Justice--FISA
modernization. The threats exist against the United States, and
we believe that FISA, while it has been a valuable tool, also
has made it more difficult to engage in electronic surveillance
of foreign targets overseas. We don't believe that was ever the
intent of FISA. It's a policy question. The Congress has to
decide that they want the Department and the Agency, NSA, the
FBI, the Department of Justice, utilizing our resources, our
agents, our analysts, our lawyers, in order to make a probable
cause determination and then present it to a judge in
connection with a foreign terrorist who's located outside the
United States. Is that what the Congress wants us to do?
Because if they do, we will continue to do it.
But I think it's legitimate to ask: Is that the right
policy for the United States today?
Senator Hatch. You have been accused of wanting to install
interim U.S. Attorneys to serve indefinitely without Senate
confirmation. I do not think there has ever been any evidence
for that, but then some accusations would be more useful than
they are true.
Since you were first asked about this more than a year and
a half ago, you said that it is your intention to have a
Senate-confirmed appointee to these positions. Now, I raise
this point to point out that we continue to see nominations to
the U.S. Attorney positions of men and women who have been
serving in an interim capacity. This is exactly what you said
the administration intended to do, if I recall it correctly. We
have seen this recently in Nebraska, Puerto Rico, and
elsewhere.
Now, is that your continued commitment to have Senate--
confirmed U.S. Attorneys in each jurisdiction?
Attorney General Gonzales. It is. I believe that a U.S.
Attorney, quite frankly, is stronger in dealing with other law
enforcement counterparts at the Federal, State, and local
level. And it's also, I think, vitally important with respect
to the Deputy Attorney General. We have, I think, a very strong
interim--we will have soon a very strong interim Deputy
Attorney General, but my intention and hope is that we have
someone who is considered and confirmed by the Senate soon.
Senator Hatch. Well, thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Are you saying that the interim Attorney
General who served as an interim U.S. Attorney in two different
places, whose name was never sent up for confirmation that,
that his name will now finally be sent up here for confirmation
for something?
Attorney General Gonzales. His name--well, I'm not saying
that his name--his name--will be sent up for confirmation.
After the White House has completed its very thorough
background investigation and interviews of candidates, the
intention is to send up someone for consideration by the Senate
to confirm as the Deputy Attorney General.
Chairman Leahy. He is interim, having been interim U.S.
Attorney in two different jurisdictions.
Attorney General Gonzales. He is the interim--he will be
the interim as soon as Mr. McNulty leaves.
Chairman Leahy. I thought I would ask. And you said that--
you spoke of how important it is to you to have this Committee
look at updates for FISA. Have you ever taken even 30 seconds
or a minute to call me and tell me that? I mean, I just heard
this from you for the first time here. You know, I have a
listed telephone number.
Attorney General Gonzales. I am sorry. I lost my train of
thinking.
Chairman Leahy. You just said to Senator Hatch that it is
extraordinarily important to you that this Committee consider
updates on FISA laws. Have you ever said that to me? Have you
ever picked up the phone and called me or told me that?
Attorney General Gonzales. Senator, I would be surprised if
that hasn't been communicated in a letter, and certainly it has
been communicated to your staff in terms of the importance of
FISA modernization.
Chairman Leahy. I have a listed telephone number. Feel free
to call anytime, if it is that important to you.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman. Mr.
Attorney General, I have sat here and listened particularly to
the opening comments of the Chairman and the Ranking Member,
and in my time in the Senate, I have never heard comments quite
like that coming from both sides of the aisle. And then I
listened to your response, which was nonresponsive, which went
into something about FISA unrelated to anything that had been
said.
I do not think you understand what is happening in the
Department of Justice--the diminution of credibility,
integrity. It is almost as if the walls were actually crumbling
on this huge Department. And I listened to you, and nothing
gets answered directly. Everything is obfuscated.
You cannot tell me that you went up to see Mr. Comey for
any other reason other than to reverse his decision about the
Terrorist Surveillance Program. That is clearly the only reason
you would go to see the Attorney General in intensive care.
Attorney General Gonzales. May I respond to that?
Senator Feinstein. Yes, you may.
Attorney General Gonzales. Okay. You're right. This is an
extraordinary event. But we were confronting extraordinary
circumstances where we had been advised that something the
Department had authorized for 2 years, they would not longer
continue to approve. We had just been advised by the
congressional leadership go forward anyway, and we felt it
important that the Attorney General, General Ashcroft, was
aware of those facts.
Clearly, if we had been confident and understood the facts
and was inclined to do so, yes, we would have asked him to
reverse the DAG's position. But--
Senator Feinstein. Well, then, why would he have said Mr.
Comey is in charge if you had not asked him?
Attorney General Gonzales. I don't understand the question.
Senator Feinstein. Well, clearly, you asked him the
question because James Comey testified to us that--
Attorney General Gonzales. My recollection, Senator, is--
and, of course, this happened some time ago and people's
recollections are going to differ. My recollection is that Mr.
Ashcroft did most of the talking. At the end, my recollection
is he said, ``I have been told it would be improvident for me
to sign, but that doesn't matter because I'm no longer the
Attorney General.''
Senator Feinstein. Okay. All right.
Attorney General Gonzales. And once he said that--
Secretary Card and I did not press him. We said, ``Thank you,''
and we left. But, again, we went there because we thought it
important for him to know where the congressional leadership
was on this. We didn't know whether or not he knew of Mr.
Comey's position, and if he did know, whether or not he agreed
with it.
Senator Feinstein. All right. I think we have taken care of
this.
What I would like to establish once and for all is who put
the names on the list to fire what are now nine U.S. Attorneys.
Since you were here last, we have had a number of your top
staff appear before us.
Kyle Sampson, your former Chief of Staff, said, ``I was the
aggregator of input that came in from different sources.''
Paul McNulty said, ``It was presented to me'' as here is
the idea and here are the names of individuals that are being
identified.
Jim Comey said, ``I was not aware there was any kind of
process going on.''
Bill Mercer said, ``I didn't understand there was a list. I
didn't keep a list.''
Mike Battle: ``A decision was made to compile a list. It
was made by someone. I had no input. Nobody asked for my
input.''
Will Moschella: ``Since I was not part of that process, I
don't have firsthand knowledge.''
Mike Elston: ``Kyle, asked me to give him my thoughts, give
him a draft list. I said, `Sure.' I didn't actually do it. I
was very busy.''
Who approved those names?
Attorney General Gonzales. I ultimately approved the list
of recommendations that were submitted to me. I accept
responsibility--
Senator Feinstein. And how many names did you approve for
firing?
Attorney General Gonzales. I think on that list that was
presented--
Senator Feinstein. No, no. Total. How many names have you
approved for firing?
Attorney General Gonzales. You mean total? For cause? Not
for cause? I'd have to get back to you on that.
Senator Feinstein. There were seven on December 7th.
Attorney General Gonzales. Seven on December 7th.
Senator Feinstein. We are now up to nine that we know
about. How many--this is important. How many U.S. Attorneys did
you approve to be summarily fired?
Attorney General Gonzales. Senator, there may have been
other--I would be happy to get back to you with that kind of
information about who has left. But I don't know the answer to
your question. But I can certainly find out.
Senator Feinstein. You don't know after all we have been
through, hearing, after hearing, after hearing?
Attorney General Gonzales. Well, in connection with this
review process that Mr. Sampson was coordinating, what was
presented to me was a list of seven individuals on December
7th. And so those are the seven that I accepted the
recommendation to ask for resignation.
Senator Feinstein. Seven, that is right, but those were the
ones that were called on December the 7th--
Attorney General Gonzales. Yes.
Senator Feinstein.--and told to leave by January 15th.
Attorney General Gonzales. Yes.
Senator Feinstein. There were others also asked to resign.
Attorney General Gonzales. Yes.
Senator Feinstein. I am asking what the total number was.
Attorney General Gonzales. Well, certainly Mr. Cummins was
asked to leave. Mr. Graves was asked to leave. I'm not aware,
sitting here today, of any other U.S. Attorney who was asked to
leave, except there were some instances where people were asked
to leave, quite frankly, because there was legitimate cause.
Senator Feinstein. So you are saying these were asked to
leave because the cause was not legitimate?
Attorney General Gonzales. I'm not--no. What I'm saying is
wrongdoing, misconduct. There may have been some-- in fact, I'm
sure there were others--
Senator Feinstein. What kind of misconduct?
Attorney General Gonzales. Well, and I am not suggesting
any of this conduct happened but, for example, an inappropriate
relationship, taking action where you have a direct conflict of
interest to help out a buddy, making a-- you know, those
kinds--something like that I would say would constitute
misconduct. And there--
Senator Feinstein. Were those specific things involved in
any U.S. Attorney that was terminated?
Attorney General Gonzales. No. With respect to the seven
and with respect to Mr. Cummins and with respect to Mr. Graves,
I am not aware that--certainly there was in my mind a problem
or basis to accept the recommendation that they be asked to
leave.
Senator Feinstein. All right. Let me go to something else.
You, of course, recognize these books, ``The Federal
Prosecution of Election Offenses.'' In prior hearings we had
the 1995 edition. Since May of this year, there is now a new
edition. I would like to read to you what has been dropped from
the earlier edition.
The first thing that has been removed is this: ``The
Justice Department generally does not favor prosecution of
isolated fraudulent voting transactions. This is based in part
on constitutional issues that arise when Federal jurisdiction
is asserted in matters having only a minimal impact on the
integrity of the voting process.''
This was removed in this new edition.
The second thing: ``The Justice Department must refrain
from any conduct which has the possibility of affecting the
election itself.'' This is weakened on page 92.
This language is removed: ``Federal prosecutors and
investigators should be extremely careful to not conduct overt
investigations during the pre-election period or while the
election is underway.'' Removed.
Then a sentence that is underlined in the 1995 edition,
which states, ``Thus, most, if not all, investigations of an
alleged election crime must await the end of the election to
which the allegation relates,'' was removed in this new
edition.
Weakened was this language: ``It should also be kept in
mind that any investigation undertaken during the final stages
of a political contest may cause the investigation itself to
become a campaign issue.''
Why was it necessary to remove this language in this new
edition of the ``Federal Prosecution of Election Offenses''
rules?
Attorney General Gonzales. Senator, I don't--sitting here
today, I don't know the answer to that question. I would like
to find out because I am certainly committed to ensuring that
we're smart in the way that we do investigations and
prosecutions and we do so in a way that doesn't intimidate
voters, that doesn't chill potential voters from coming out and
voting on election day. So I would like the opportunity to look
into this and respond back to you.
Senator Feinstein. I would appreciate it. It becomes more
relevant because two and possibly three of the fired U.S.
Attorneys were fired because they did not bring those small
cases that might affect an election. And, therefore, when one
looks at this book now, sees the new book coming out in May
2007 that deletes the very things that these U.S. Attorneys
were told to follow, something is rotten in Denmark.
Attorney General Gonzales. Thank you for the opportunity
for me to look into that.
Senator Feinstein. I appreciate that. Thank you very much.
My time is up.
Chairman Leahy. Thank you. Thank you very much, Senator
Feinstein.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Mr. Attorney General, as I understand it--and I am going to
ask you to correct me if I am wrong, to your knowledge--the
administration position on Guantanamo Bay is that while it
would be nice if we did not have the need for it and we would
like to be able to close it, we cannot because the terrorists
who represent a threat to the United States need to be held
somewhere, and there are no better alternatives. Almost nobody
wants them in the United States. You cannot just let them go.
Sending them to foreign countries is problematic, among other
reasons for the reasons you discussed. Is that your
understanding? And if not, what is your understanding?
Attorney General Gonzales. Yes.
Senator Kyl. Do you have any different reasons for desiring
to close Gitmo, for example, because--to your knowledge or
suspicion, is there anything going on down there that might be
a violation of either U.S. law or applicable treaties or
conventions?
Attorney General Gonzales. Quite the contrary. I think the
people who've gone down there, from this body, from the House,
other countries, have come away favorably impressed with what's
going on down there.
Senator Kyl. I just want to associate myself with the
remarks of Senator Hatch. It would be nice if we did not have
to have any prisons, for that matter, and it would certainly be
good if we did not have to have a place for these threats to
America. But they do have to be held somewhere, and I know of
no better alternative than where they are being held right now.
Let me ask you this question about a matter that you know I
am very interested in, and as a matter of fact, in a related,
potentially related matter, there is a scandal now brewing with
regard to the National Basketball Association.
Sports entities--in particular, the NFL, Major League
Baseball, basketball, the NCAA, amateur athletics--have for a
long time been concerned about Internet betting, which is
illegal under most State laws, and we have our Federal laws as
well. You are aware that on October 13th the President signed
into law the Unlawful Internet Gambling Enforcement Act to
augment enforcement efforts by targeting offshore gambling
operations that are not readily subject to U.S. prosecution.
There are additional existing laws--the Federal Wire Act and
money-laundering laws--that can be and have been used to go
after these Internet gambling operators.
I realize that you cannot comment on any existing cases,
but I would like for you to just express to the Committee
generally what your views are with respect to the Department's
contentions with respect to going after these illegal Internet
gambling operations.
Attorney General Gonzales. Thank you, Senator. I appreciate
your leadership on this issue. We do believe it is a serious
issue because, you talk about Internet gambling, it is highly
addictive. Quite frankly, I think it affects our youth. I think
it can be tied to money laundering and fraud. And we think it
is tied to organized crime.
There are existing laws on the books, and we intend to and
do enforce those laws. There are challenges because of the
existing laws, challenges because much of the time the evidence
is offshore. We may have difficulty getting the evidence. Also
because it involves another country, there are sometimes
serious issues of extradition.
So we appreciate the additional tools of the Unlawful
Internet Gambling Act, which bans certain financial payments to
support Internet gambling, and as you know, Treasury and the
Federal Reserve have primary responsibility for the issuance of
these regulations after consulting with the Department of
Justice. We have provided input, and so my understanding is
that those regs are moving forward.
Senator Kyl. The proposed regs have been made public. My
question really was a broader one. You have engaged in
prosecutions under other laws as well, and I was simply giving
you an opportunity to express your intentions to continue to
enforce all of these laws to the extent that they need to be
enforced.
Attorney General Gonzales. We certainly intend to do that.
You have my commitment, Senator.
Senator Kyl. Incidentally, I may have not been clear in my
reference to the NBA. I am not suggesting that there is
evidence of illegal Internet gambling with respect to that, but
I simply wanted to point out that these sports depend on the
public's view that they are unadulterated, that they are clean,
that they are not being affected by illegal forces. And that is
why they are so supportive of this legislation to make sure
that illegal Internet gambling does not in any way intrude into
those sports. And I think Americans have a right to have that
assurance.
Mr. Attorney General, the FBI is facing a mounting caseload
of applications from foreign nationals seeking to enter the
United States or to adjust status. The FBI, of course, does
background checks, but there is a huge backlog, as you know.
What technologies or resources can Congress secure for the
FBI to ensure that it is able to timely process applications
without compromising the safety and security of the American
people?
Attorney General Gonzales. This is a problem that I have
discussed with the Director. You are talking about background
checks, individuals from other countries. It does take us a
long time in some cases because of the fact it requires us to
get information and records from other countries. I know that
the Director is focused on trying to get additional resources,
additional individuals, maybe contract work out to help in this
endeavor. And so he is also looking at new computer system
technology, taking advantage of technology--
Senator Kyl. Let me just interrupt here because of the
time. There is a huge backlog. It should not exist. Do we--
Congress--need to provide additional resources?
Attorney General Gonzales. I don't know whether or not
additional resources are required from the Congress. I do know
that additional resources within the Bureau have to be focused
on this issue, and it may be--you know, the Director may come
to me and say, ``Well, if we do that, we are not going to be
able to protect America from terrorism the way we ought to be
in other areas.''
And so I don't know the answer to that, but certainly more
resources are necessary. We may already have the resources
within the Bureau. I suspect that the Director will say no.
Senator Kyl. We need to know if there is something else we
can do because you cannot compromise security and we cannot
tolerate the long backlogs that currently exist. So something
needs to give here, and if it is that we need more resources,
Congress needs to be advised.
Let me quickly, while I have just a second, ask one final
question. U.S. Customs and Border Protection at DHS reports
that 16 percent of foreign nationals apprehended illegally
crossing the Southern border have criminal histories. That is
about 140,000 individuals in the year 2005. And if that is not
alarming enough, DOJ and the GAO indicate that criminal aliens
in the U.S. are rearrested on an average of six to eight times
per offender, which puts a huge strain on both Federal, State,
and local law enforcement officers, prosecutors, courts, and
our jails.
Is the Department of Justice undertaking any initiatives
with DHS to proactively identify and prosecute and remove
criminal aliens? And here again, is there any authority or
resource that Congress needs to provide to DOJ to assist in the
prosecution of these criminal aliens?
Attorney General Gonzales. I think, quite candidly,
Senator, if you were to talk to my border U.S. Attorneys, they
would say, ``We need more resources,'' and so we are always
looking at ways to try to find those resources within the
existing budget. Obviously, the President has to consider a
number of priorities with respect to the budget that he submits
to the Congress, and the Congress, of course, ultimately makes
the decisions as to where those priorities should come out.
But we are having to be smart. We are trying to be more
efficient. But it does present--or it has presented some
challenges for us.
Senator Kyl. Mr. Chairman, if I can just do one follow-up
question?
Chairman Leahy. Go ahead.
Senator Kyl. In effect, are you saying you understand the
President's budget priorities and needs all across the
Government, but if more resources could be made available to
you, you could certainly take advantage of them, you could
certainly use them?
Attorney General Gonzales. We certainly would put them to
good use.
Chairman Leahy. Of course, you are also aware that the
President said if we put any money in there beyond what he has
asked for, he will veto the bill.
Senator Cardin.
Senator Cardin. Thank you very much, Mr. Chairman.
Attorney General Gonzales, I want to return to the U.S.
Attorney issue because I think there is a great deal of concern
and a lot of questions that have not been answered, and I want
to give you a chance to do that.
You have offered conflicting testimonies as to who is
responsible for the firing of the U.S. Attorneys. We still do
not know. And Senator Feinstein's questions really were not
answered. We do not know who was responsible for a particular
name ending up being fired. So let me just go over the U.S.
Attorneys who were fired, and the concern that I think
Americans have that your commitment to make sure the Department
of Justice is not politicized is exactly what happened with the
U.S. Attorneys that were fired.
Mr. Iglesias was involved in New Mexico as U.S. Attorney in
investigating certain Democrats. The prominent Republicans were
very unhappy with the timing of that investigation, which I
think has now become public. So there was a concern that the
U.S. Attorney was not doing what the local political
establishment, Republican establishment, wanted.
In Nevada, there was an investigation of the Republican
Governor by the U.S. Attorney, which certainly did not make the
local political establishment happy.
In Arizona, there was an investigation of two Republican
Members of Congress, which was not happy with the local
Republican establishment in Arizona.
In Arkansas, there was an investigation by Mr. Cummins in
regards to a Republican Governor that was creating a lot of
controversy.
In California, with Ms. Lam, there was the indictment and
conviction of Duke Cunningham, but then the expansion of that
investigation, which had Republicans concerned.
In Washington, the U.S. Attorney declined to intervene in a
disputed gubernatorial election, which angered the local
Republican establishment.
And then, of course, Mr. Graves in Missouri, we have
already talked about the voter fraud investigations and the
fact that the local political establishment was unhappy with
that.
Here we have an unprecedented removal of U.S. Attorneys
without a change in party in the White House, and we look at
those who were removed and find in almost all cases they were
involved in highly visible political issues that were unpopular
to the Republican establishment. What is one to think? And we
do not have the answers from the White House, we do not have
the answers from you, and we are having a very difficult time
getting the information without the assertion of executive
privilege.
So where do we go in our--what comfort can you give me
that, in fact, these U.S. Attorneys were fired for legitimate
reasons and not because of political considerations, which all
of us agree would be outrageous and wrong, if not illegal?
Attorney General Gonzales. Well, Senator, I have already
said repeatedly that I did not accept these recommendations
with the understanding that this was to punish or interfere
with an investigation for purely partisan reasons. I accept
responsibility for this. Senator Feinstein asked me who put the
names on the list. Quite frankly, I am assuming this Committee
has talked to everyone involved in putting those names on the
list and has asked that question.
Senator Cardin. We have not talked to the people in the
White House.
Attorney General Gonzales. I did not put the names on the
list. I accepted the recommendations. There were some names on
the list, the recommendations made to me, that did not surprise
me based upon my--what I had heard of performance during my
tenure as Attorney General. But no one as far as I know placed
anyone on the list. I certainly did not accept the
recommendation in order to punish someone because they--
Senator Cardin. But you do not know who put the names on
the list. At least I have not quite figured out who put the
names on the list.
Attorney General Gonzales. That is correct.
Senator Cardin. So how do you know someone didn't put the
names on the list because of partisan political considerations.
Attorney General Gonzales. Based on what I know, Senator,
that--that is what I know. You have had the opportunity, I
think, to talk to everyone involved and ask questions involved,
more so than I. The Office of Inspector General and OPR,
they're doing an investigation as well to try to find out
exactly how these names got on the list.
Senator Cardin. Let me move on to a second issue that
troubles me from your testimony today, and that is, you have
talked about your visit to the hospital, the preliminary
meetings with the leadership in Congress. Those meetings are
not public meetings, are they?
Attorney General Gonzales. Well, which meetings? With
Congress?
Senator Cardin. With the Gang of Eight.
Attorney General Gonzales. Well, I'm not sure--I'm not sure
that this meeting has been talked about, although I'm told this
meeting has been--information about the existence of this
meeting has been transmitted to the Congress, I think, in a
communication from the administration.
Senator Cardin. When you briefed the leadership of Congress
and the leadership on the Intelligence Committee, are those
briefings done in open session? When you seek their advice, are
they in open session?
Attorney General Gonzales. No.
Senator Cardin. And are those proceedings kept
confidential?
Attorney General Gonzales. In most cases, yes.
Senator Cardin. And the advice that the Congress gives you
at those meetings is not released or made public?
Attorney General Gonzales. In cases that is true.
Senator Cardin. And I would just suggest to you, to the
extent that there is importance of confidence in working with
the congressional leadership, the President's using the
executive privilege to not make information available to
Congress, it seems to me that you are being very selective in
what information you are making available publicly.
Attorney General Gonzales. Senator, I believe it's
important, when people question and wonder what in the world
were Andy Card and I doing going to the hospital, that it be
placed in the appropriate context.
Senator Cardin. You are exactly right, and we want the
appropriate context of the firing of the U.S. Attorneys. We are
entitled--we have a responsibility to get that information. And
the White House, when Sara Taylor testified, she was very clear
about being able to give information that was self-serving to
the White House. But when we are trying to get independent
information, we cannot get it. Do you understand our
frustration?
Attorney General Gonzales. I do understand your
frustration.
Senator Cardin. I have only a few seconds left, and I want
to make sure I cover this last point, which is the hiring in
the U.S. Attorney's Office. I very much appreciate your
statement in your prepared testimony where you say, ``There is
no place for political considerations in the hiring of our
career employees or in the administration of justice.'' You
further assert that you plan to ``remain in office to fix the
problem.'' I am pleased that you acknowledge a problem.
We had a hearing in the Judiciary Committee with the Civil
Rights Division in which the way career attorneys are now hired
has been changed. It used to be that there were career
attorneys that reviewed those applications and made
recommendations for the hiring of U.S. Attorneys for the Civil
Rights Division. That was taken over by political appointees. I
hope in your efforts to fix the problem that you will go back
to a nonpartisan environment for selecting the career attorneys
in the Department of Justice. We have had testimony here from
Monica Goodling and others about White House interference or
political interference that crosses the line. And I hope that
as part of your efforts to fix the problem you will remove the
political appointees from making certain recommendations or
standards on bringing in career attorneys or firing or removing
or repositioning career attorneys.
Attorney General Gonzales. Thank you, Senator. I think we
have taken those kinds of steps.
Senator Cardin. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Grassley was actually the first one here, but he
is, like all of us, juggling more than one Committee
assignment. I will recognize him now.
Senator Grassley. Thank you. I was sharing my time with the
Finance Committee.
Mr. Chairman, I have a list of outstanding requests for
documents and information from the FBI, and I am going to ask
that this be put in the record, and I am going to refer to it.
Chairman Leahy. Without objection, all the material will be
part of the record. Also without objection, opening statements
by various Senators who have asked be put in the record will be
placed in the record as though read.
Senator Grassley. Thank you.
Mr. Attorney General, the requests for documents and
information relate to the oversight involving Special Agent
Jane Turner, Special Agent Cecelia Woods, the Amerithrax
investigation, and e-mails relating to exigent letters that
were detailed in the National Security Letters Report. I
continue to wait for these responses, some of them months
overdue, and as the FBI is a component of the Department of
Justice and I am doing it here at this hearing, I ask if you
would personally ensure the prompt delivery of all information
requested.
Attorney General Gonzales. I will personally assure you the
prompt delivery of the appropriate information requested.
Senator Grassley. I want to refer to the False Claims Act
and its use in Iraq contracting. I am referring to the Boston
Globe, June 20, 2007, article entitled ``Justice Department
Opts Out of Whistleblower Suits; Cases Allege Fraud in Iraq
Contract.'' The article noted that the Department declined to
intervene in ten False Claims Act whistleblower cases, raising
allegations of fraud, waste, and abuse in contracts during
reconstruction in Iraq. Further, the article states that the
Department has only reached two civil settlements with
contractors in Iraq totaling $6.1 million.
Congress has appropriated hundreds of billions of dollars
to fund our troops and to support contractors as well as
reconstruction projects. So I find it hard to believe that only
$6.1 million has been lost to fraud and abuse by Government
contractors. For instance, in Government programs such as
Medicaid, we know that fraud in the program is around 5
percent, maybe higher. It is hard to imagine that fraud in Iraq
would be less, but I will leave the numbers to experts.
In addition, on April 19, 2006, a Wall Street Journal
article quoted critics of the Department as saying, ``The
current administration's use of judicial seal of False Claims
Act cases is unprecedented. Its critics argue that the
Department is using the judicial seal as a means to mask the
true extent of possible fraud in Iraq.''
So, General Gonzales, how many--I want to ask--well, let me
ask a couple questions at a time. I have got six questions in
this series. How many False Claims Act cases alleging fraud in
Iraq has the Department joined since 2003?
Attorney General Gonzales. I think the answer to that--I
think there are 26, but I would like the opportunity to confirm
that, if I can. I think that is in the neighborhood.
Senator Grassley. Okay. Is the Boston Globe article
accurate in stating that the Department has declined
intervention in ten false claims cases alleging contract fraud
in Iraq? And if so, why?
Attorney General Gonzales. I don't know if that number is
correct, but I will tell you, of course, the fact that we
decline doesn't mean that we don't follow the case. We still
remain a real party in interest, and so we closely monitor
these cases. And we may decide to intervene at a later point in
time. We may decide to file an amicus to protect the interests
of the United States. And so the fact that we have declined
doesn't mean that we're not going to get involved in any way
going forward.
Senator Grassley. Well, for the public and Chuck Grassley,
it seems to me that declination of intervention does signal an
unwillingness to pursue Iraq contracting fraud cases.
Attorney General Gonzales. No. What it means is that we
have to look at the cases and decide really is there now at
this time a judgment that we can prosecute these cases. We have
been very, very successful in those cases where we decide to
join because we evaluate the cases carefully and we think,
Okay, there's something there, we can win this case.
In those cases where we don't join, the relater doesn't
fare nearly as well because they are taking on cases that are
very, very difficult, and they can't prove them.
And so we are trying to be smart in utilizing the resources
that we have and prosecuting those cases where we think, you
know, the evidence will support the charge.
Senator Grassley. Are there currently any FCA cases under
seal relating to Iraq fraud contracting?
Attorney General Gonzales. I believe the answer to that is
yes, because, again, these are difficult cases and it takes us
a period of time--sometimes people would argue too long--to
decide whether or not we are going to intervene and join the
case.
Senator Grassley. Let me ask you last on this point: How do
you respond to the criticism outlined in the Wall Street
Journal article? Is the Department trying to escape
accountability by using the seal as a shield? That is what was
stated.
Attorney General Gonzales. No. Far from it. In fact, we
want to expose fraud and mismanagement and waste, quite
frankly, I think, and we have a special obligation at the
Department, if people are going to contract with the United
States, they ought to be held to the highest standard. And so,
again, we use it as a way to protect the interests of the
United States in litigation.
Senator Grassley. I want to go to the United State DRC,
Inc. v. Custer Battles. February 17, 2005, I wrote you
regarding this case urging that the Department comply with a
request of a district judge to file a brief on the issue of
whether the Coalition Provisional Authority--I am going to
refer to that as ``CPA''--was a Government entity under the
False Claims Act. On April 1, 2005, the Department filed a
brief stating the Government's position that knowingly false
claims presented to the CPA by Custer Battles, if proven, would
violate the False Claims Act. The Department also stated that,
notwithstanding the brief, they declined to intervene with the
whistleblowers.
Ultimately, the jury found Custer Battles violated the FCA
and should return $10 million to the U.S. Government. However,
the judge overturned the verdict and dismissed the case,
finding that the plaintiffs failed to prove the false claims
were actually submitted to the Government. The Department has
filed a brief supporting the whistleblowers' position on appeal
to the Fourth Circuit.
Why did the Department decline to intervene in district
court yet continue to support the appellate litigation? And,
last, is the Department concerned that failing to intervene at
an earlier time may lead to decisions that are detrimental to
the False Claims Act?
Attorney General Gonzales. It is a pending case, Senator,
so I am limited about what I can say. But going back to a
response to an earlier question, the fact that we don't
intervene at the initial stage doesn't mean that we don't
follow the case. And we do have the opportunity, like we see in
this case, of filing an amicus in the Fourth Circuit in order
to protect the interests of the United States. And so, clearly,
when we make a decision not to intervene, that doesn't mean
that the interests of the United States are going to be
jeopardized downstream. We do have the opportunity to file
something to ensure that the interests of the United States are
protected. As to the individual decision as to why we didn't
get involved in the case in the first place, I don't have that
answer to you, but I would be happy to go back and look at it.
If there's something we can provide to you, I'd be happy to do
so.
Senator Grassley. I would like to have you provide that in
writing.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
The Attorney General has asked if we might take a brief
break, and I should have asked that before. But, yes, we will
stand in recess briefly.
Attorney General Gonzales. Thank you, Mr. Chairman.
[Audience comments.]
Chairman Leahy. You know, we are going to have quiet in
this Committee room. We are also going to--we are also going to
have people stop blocking others who are here, and in one
instance, I have been told of a person who was here was
harassed because somebody else wanted her seat. There will be
none of that, or I will have the police remove those doing it.
I just want to make it clear.
[Recess from 11:09 a.m. to 11:20 a.m.]
Chairman Leahy. I have been advised that the vote
originally scheduled on the Senate floor will be somewhat
later, probably in about an hour. There will be a couple votes.
I am hoping we can finish the first round before then.
Senator Whitehouse, you are now recognized.
Senator Whitehouse. Thank you, Mr. Chairman.
Mr. Gonzales, just before our little break, you indicated
in describing your reason for visiting the stricken Attorney
General in his hospital room was to alert him to the change in
the Department of Justice view of the program at issue. And you
testified that Attorney General Ashcroft--and these are the
words that I wrote down-- ``authorized these activities for
over 2 years.''
Is it your testimony under oath that Attorney General
Ashcroft was read into and authorized the program at issue for
2 years prior to your visit to him in that hospital?
Attorney General Gonzales. I want to be very careful here
because it is fairly complicated. What I can say is I am
referring to intelligence activities that existed for a period
of over 2 years, and what we were asking the Department of
Justice to do was--which they had approved, and what we--
Senator Whitehouse. They had approved, I guess is the point
that I am getting at.
Attorney General Gonzales. General Ashcroft, yes.
Senator Whitehouse. You said that Attorney General Ashcroft
had authorized this program for over 2 years prior to that day.
Attorney General Gonzales. General Ashcroft had authorized
these very important intelligence activities for a period of 2
years. We had gone to the Deputy Attorney General and asked him
to reauthorize these same activities. But there are facts
here--and I want to be fair to everyone involved. They're
complicated, and we have had discussions in the Intel
Committees about this issue, trying to be as forthcoming as we
can.
Let me just say I believe everyone acted in good faith
here. All the lawyers worked as hard as they could to try to
find a way forward, the right solution. But, yes, I mean, the
view was that these activities had been authorized. We
informed--
Senator Whitehouse. By Attorney General Ashcroft himself.
Attorney General Gonzales. By Attorney General Ashcroft.
But there are additional facts here that--I want to be fair and
it's complicated. But--
Senator Whitehouse. I am just trying to nail that one fact
down. I'm not trying to go into--
Attorney General Gonzales. Well, I am not sure I can give
you complete comfort--I'm not sure I want to give you complete
comfort on that point out of fairness to others involved in
what happened here. I want to be very fair to them. But what we
were talking about--
Senator Whitehouse. It is a different question--
Chairman Leahy. Well, why not just be fair to the truth.
Just be fair to the truth and answer the question.
[Applause.]
Senator Whitehouse. Was Attorney General Ashcroft read into
and did he approve the program at issue from its inception?
Attorney General Gonzales. General Ashcroft was read into
these activities and did approve these activities--
Senator Whitehouse. Beginning when?
Attorney General Gonzales. From the very beginning. I
believe from the very beginning.
Senator Whitehouse. All right.
Attorney General Gonzales. But--well--
Senator Whitehouse. That is all right.
Attorney General Gonzales. Again, it is very complicated.
Senator Whitehouse. My question has been answered.
Attorney General Gonzales. And I want to be fair to General
Ashcroft and others involved in this, and it's hard--it's hard
to describe this in this open setting. We've tried to be--we've
tried to--we have discussed it in the Intel Committees in terms
of exactly what happened here. But I can't--I can't get into
some fine details, quite frankly, because I want to be fair to
General Ashcroft.
Senator Whitehouse. And I think it is also important that
people know whether or not a program was run with or without
the approval of the Department of Justice, but without the
knowledge and approval of the Attorney General of the United
States, if that was ever the case.
Attorney General Gonzales. We believe we had the approval
of the Attorney General of the United States for a period of 2
years. That is--
Senator Whitehouse. For a period of 2 years? Also from the
inception of the program?
Attorney General Gonzales. From the inception, we believed
that we had the approval of the Attorney General of the United
States for these activities, these particular activities.
Senator Whitehouse. Would that be reflected in any
document?
Attorney General Gonzales. Yes, it would.
Senator Whitehouse. We will pursue the document later. When
you went into the Attorney General's room at the hospital that
night, what document did you have in your hand?
Attorney General Gonzales. I had in my possession a
document to reauthorize the program.
Senator Whitehouse. Where is it now?
Attorney General Gonzales. I'm assuming the document is at
the White House. It was a White House document.
Senator Whitehouse. And it would be covered by Presidential
Records laws?
Attorney General Gonzales. It is a White House document.
Senator Whitehouse. Director Mueller was involved that
evening. Do you consider Director Mueller to be reasonable,
sober, and levelheaded?
Attorney General Gonzales. Yes.
Senator Whitehouse. He is a former Deputy Attorney General,
former United States Attorney?
Attorney General Gonzales. Yes.
Senator Whitehouse. Why would he tell FBI agents not to
allow you and Andy Card to throw the Acting Attorney General
out of the Attorney General's hospital room?
Attorney General Gonzales. I don't know that he did that,
and I have no way--I can't respond to your question. I'm not
Director Mueller.
Senator Whitehouse. We have direct testimony that he did.
Is there any series of events that led up to this that would so
provoke him as to--
Attorney General Gonzales. I wasn't aware of that comment
until I read Mr. Comey's testimony.
Senator Whitehouse. Is there some background to this that
would help elaborate why he would have that feeling? I mean,
when the FBI Director considers you so nefarious that FBI
agents had to be ordered not to leave you alone with the
stricken Attorney General, that is a fairly serious challenge.
Attorney General Gonzales. Well, again, I'm not sure that
the Director knew at the time of the meeting and the
conversation that we had had with congressional leaders. Again,
we were there following an emergency meeting in the White House
Situation Room with the Gang of Eight, who said despite the
recommendation of the Deputy Attorney General, go forward with
these very important intelligence activities for now, and we
will see about moving forward with some legislation. And that
was important information that led us to go to the hospital
room. The Director, I am quite confident, did not have that
information, when he made those statements, if he made those
statements.
Senator Whitehouse. Is it awkward to supervise the FBI
after this piece of history has come out that the Director
didn't feel comfortable leaving you alone with the stricken
Attorney General?
Attorney General Gonzales. I can't speak for the Director's
feelings about me, but I certainly have a great deal of
confidence and admiration and respect for Bob Mueller.
Senator Whitehouse. A separate topic. Will you allow the
White House to direct United States Attorneys how to conduct
litigation to which the White House is itself a party?
Attorney General Gonzales. Would I?
Senator Whitehouse. Would you allow the White House to
direct United States Attorneys how to conduct litigation to
which the White House is a party?
Attorney General Gonzales. I don't believe so. Again,
you're asking me a hypothetical, but my reaction to that is no.
Senator Whitehouse. Is there any matter--any matter that
the Department of Justice is involved in--in which you would
allow the Department of Justice to agree to the investigative
terms set by the White House for this Committee: no transcript,
closed-door interviews, one round of questions only, and then
nevermore? Is there any matter in the Department's jurisdiction
where you would allow your lawyers to subject themselves to
that kind of a restriction in doing their duties?
Attorney General Gonzales. You know I can't answer that
question. I don't know. There may be a matter, but I don't
know. I don't know.
Senator Whitehouse. Can you think of one?
Attorney General Gonzales. Again, I mean, I could probably
think of one, so--
Senator Whitehouse. Where you would allow your lawyers to
be subject to those restrictions?
Attorney General Gonzales. Senator, again, you're asking me
is it possible. I'd say virtually anything is possible. But,
obviously, that's something that we'd have to look at.
Senator Whitehouse. My time has expired, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Whitehouse.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
Mr. Attorney General, on the question Senator Feinstein
asked you about the voting rights change, some of those are
probably changes that needed to be done, but they are very
significant--I would say ``controversial,'' within the group of
people that practice in that area of the law. I am curious as
to your statement saying that you were not aware of that. As to
those policies, who signs off on that? And who approved a
policy that significantly, at least in certain specific areas,
alters the policies of the Department of Justice if you don't?
Attorney General Gonzales. It would be the Deputy Attorney
General, who is the chief operating officer of the Department.
And so in some certain cases, it would be certain policies that
would be adopted by the Deputy Attorney General. In other
cases, depending on what we're talking about, it would be
something that I would approve of.
Senator Sessions. Is that policy for the Voting Rights
Section of the Department of Justice something you have
delegated to the Deputy Attorney General?
Attorney General Gonzales. I can't answer that question,
Senator, but I would be happy to give you that answer.
Senator Sessions. Well, I think it is something the
Attorney General should do. I think that is a significant
policy. There are certain responsibilities that I think you
have, and to set major policy positions ultimately should be
your responsibility.
Attorney General Gonzales. And I believe that that would be
my responsibility, but I just want to confirm that with you.
Senator Sessions. Mr. Attorney General, with regard to some
of the immigration questions that we are facing, there are so
many matters that are within the jurisdiction of the Department
of Justice. The effectiveness of our immigration enforcement
policies depend on good policies within the Department of
Justice. And I was recently reminded of a serious problem we
have with regard to aliens who have been convicted of crimes in
the United States. Mr. Harvey Lappins, Director of the Federal
Bureau of Prisons, recently told us in this Committee--within
the last year, I believe-- that 27 percent of the Federal
prison population is foreign born.
We have laws that I think authorize the removal from our
country of persons who are convicted of crimes immediately upon
the completion of their sentence, as I recall the statutes. I
would note the article by Michelle Malkin quoting some of the
examples we have had here where Mr. Adhan was convicted of--was
relating to his involvement in the kidnapping and murder of 12-
year-old Zina Linnik in Tacoma, Washington, on July 4th. He had
been convicted apparently of incest in 1990 and had sexually
assaulted his 16-year-old relative, got that pleaded down to
second-degree rape. Two years later, he was convicted of
intimidation with a dangerous weapon, and the law calls for--
says that anyone convicted of a weapon offense is deportable.
But he was not deported, and that is how apparently this murder
occurred.
Another instance was Mwenda Murithi, arrested 27 times
without deportation before being arrested in the shooting death
of a 13-year-old innocent bystander, Schanna Gayden, last month
in Illinois.
So I guess I am asking you about this whole policy, whether
or not you have taken a lead to see that it is carried out. Do
you believe it should be systematically and regularly carried
out? And if there are any statutory weaknesses, do you have any
suggestions about how they should be improved?
Attorney General Gonzales. I think it should be carried
out. I am aware that probably the level of cooperation that
exists between the Department and DHS on this issue is not as
good as it should be, Senator. What I would like to do is have
the opportunity to maybe have a conversation with Secretary
Chertoff to see whether or not we can do something to improve
the situation. Legislation may not be necessary, but obviously
it may turn out to be the case that we may need to have some
help from the Congress.
Senator Sessions. Well, as I understand, the Department of
Homeland Security IG estimated last year that half of the
650,000 foreign-born inmates in prisons and jails won't be
removed because they say that it ``does not have the resources
to identify, detain, and remove them.'' Is that true?
Attorney General Gonzales. I've heard that as a possible
complaint or challenge. That very well may be the case. Again,
what I'd like to do is have the opportunity to sit down with
Secretary Chertoff. I have not spoken with the Secretary about
this particular issue. I would be happy to do so, and if there
is something that would be helpful for the Congress, I would
like to have the opportunity to talk to you about it.
Senator Sessions. Well, I hope that you would because I
think that is a major issue here. People are concerned when we
pass laws in Congress and then law enforcement officials do not
enforce them and don't execute them and leaving criminals in
the United States in large numbers.
I understand there are a number of prisons that do not
participate in the institutional removal program. Do you think
it would be beneficial to expand this program to all Federal
prisons?
Attorney General Gonzales. I can see very good arguments
why that would make sense, and I plan on speaking with Harvey
Lappins, the Director, and seeing what the status is and the
challenges that exist with respect to implementing it at all
the prisons.
Senator Sessions. I understand there is a pilot program
ongoing, I believe maybe in El Paso, in which persons who enter
the country illegally in violation of our laws are being
prosecuted before they are deported. And as a result, there has
been a significant reduction in the number of people attempting
to enter that area of the border. Is that true? And what are
your plans to consider expanding that?
Attorney General Gonzales. It is true. It requires the
cooperation of the judge, quite frankly, and so we have had
discussions with judges along the border to see whether or not
they would be agreeable to such a process. And so we would like
to expand it. There are challenges, and, again, it does require
the cooperation of the judge.
Senator Sessions. Well, I would hope that the judges would
cooperate. I mean, they don't get to decide who gets charged.
They don't get to make the deciding function. Their
responsibility is to enforce--to give a fair trial to whoever
is brought before them by the prosecutor. Isn't that right?
Attorney General Gonzales. Yes, but they will insist on
certain processes, that it follow certain timetables. And so
unless a judge is willing to agree to an expedited process in
the manner that we are seeing with respect to this particular
judge, it can present some challenges for us.
Senator Sessions. Well, I understand it has worked well. I
think it is something that ought to be replicated, and I would
expect that Federal judges, if they understand the national
interest in seeing that laws get enforced, would cooperate. I
hope that you will pursue that. Will you pursue that?
Attorney General Gonzales. We will certainly do that, yes.
Senator Sessions. I wrote you a letter in April--my time is
out, and I will just briefly--
Chairman Leahy. Go ahead and finish your question, Senator.
Senator Sessions. In April, asking for a response regarding
prosecution of criminal immigration cases. Two questions that--
you gave me a response to one of my questions, but two
questions that were unanswered are these. I asked what the
official policy of each district office was in determining
whether to prosecute immigration-related violations; and, two,
the declination rate for immigration cases referred to each
Southwest border district by the Department of Homeland
Security with an explanation as to some of the reasons given
for that decision. We have not yet received responses on that.
Will you give me a response to that?
Attorney General Gonzales. If I can. The second one may
require information from the Department of Homeland Security,
but if we can provide the information, we will certainly try to
do so.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
On my list, the next Senator to question will be Senator
Schumer, and unless--
Senator Sessions. Could I ask one quick question? I hate--
Chairman Leahy. Go ahead, Senator Sessions. Feel free.
Senator Sessions. Thank you, Mr. Chairman. You are most
gracious.
Senators Salazar, Cornyn, Pryor, and I, former Attorneys
General, have introduced legislation again to reduce some of
the crack penalties and alter the balance between crack and
powder cocaine. Has the Department of Justice taken a position
on that as of this year? And will you?
Attorney General Gonzales. Well, we think--I'd be happy to
have a continued dialog with you. Personally, as I sit here
today, I would say that where we're at today is certainly
reasonable. We think crack is more dangerous. It's related to,
I think, addiction more quickly. It's more related to more
dangerous crimes. The effects of it I think are more dangerous.
So from a law enforcement perspective, it makes sense to have
the kind of sentences that exist today. But we obviously have a
great deal of respect for all--
Senator Sessions. I think it is time to review that. I
hope--
Attorney General Gonzales. And we would be happy to review
it.
Chairman Leahy. I might note that I think it is long past
time to review it. There is more and more growing feeling that
crack cocaine carries the highest penalties. It is also the
people you are apt to see in the poorer neighborhoods. Powder
cocaine, which is in some of the boardrooms and some of the
yachts and some of the Hollywood parties of others who have a
lot more money to hire lawyers and everything else, that gets a
lower penalty.
But be that as it may, there will be a time we will have
hearings on that. I have told the Senator from Alabama we will
look into this issue. I think it is long past looking into. I
know the Sentencing Commission has worked on it, and we will
want an answer from the Department of Justice on its position.
I started to say that the order on our side will be Senator
Schumer, Senator Durbin, Senator Feingold, Senator Kennedy, and
Senator Biden. And, of course, we will interpose Republican
Senators if they come, but so far we have heard from all of the
Republican Senators who have showed up today.
Senator Schumer.
Senator Schumer. Well, thank you, Mr. Chairman, and thank
you, Mr. Attorney General. I would like to just pick up where
Senator Specter left off about the TSP program, just a few
preliminaries.
First, I take it there was just one program that the
President confirmed in 2005. There was not more than one.
Attorney General Gonzales. He confirmed one, yes,
intelligence activity, yes, one program.
Senator Schumer. Thank you. Okay. And you have repeatedly
referred to the, quote, program that the President confirmed in
December 2005. I am just going to put up a chart here. Here is
what you said before this Committee on February 6th of 2006.
You said, ``There has not been any serious disagreement about
the program the President has confirmed. With respect to what
the President has confirmed, I do not believe that these DOJ
officials that you were identifying had concerns about this
program.''
This was in reference to a question I asked you, was there
any dissent here. This was before Comey came to testify. It was
in February, but we had some thoughts that maybe that happened.
And now, of course, we know from Jim Comey that virtually the
entire leadership of the Justice Department was prepared to
resign over concerns about a classified program. Disagreement
does not get more serious than that.
And what program was the ruckus all about? And this is the
important point here. At your press conference on june 5th, it
was precisely the program that you testified had caused no
serious dissent. You said, ``Mr. Comey's testimony''--and he
only testified once--``related to a highly classified program
which the President confirmed to the American people some time
ago.'' Those are your words, sir.
So please help us understand how you did not mislead the
Committee. You just admitted to me there was only one program
that the President confirmed in December of 2005. I asked you
was there dissent. You said no. Now you are saying--you said in
a letter to me there was--well, there was dissent over other
intelligence activities. But your June 5th statement confirms
that what Comey was testifying about, because he had then
testified, was the very program, sir, the very program that you
said there was no dissent to.
How can you say you haven't deceived the Committee?
Attorney General Gonzales. Well, I stand by what I said at
the Committee. This press conference is one that I would like
to look at the question. I would like to look at my response.
Senator Schumer. Okay. We are going to bring it up to you
right now, sir. Okay?
Attorney General Gonzales. Good.
Senator Schumer. These are your words, right? You don't
deny that these are your words? This was a public press
conference.
[Pause.]
Attorney General Gonzales. I'm told that what I--in fact,
here in the press conference, I did misspeak, but I also went
back and clarified it with the reporter.
Senator Schumer. You did misspeak?
Attorney General Gonzales. Yes. But I went back and
clarified it with the reporter.
Senator Schumer. When was that? And what was the reporter's
name?
Attorney General Gonzales. The Washington Post, 2 days
later. Dan Egan was the reporter.
Senator Schumer. Okay. Well, we will want to go follow-up
with him. But the bottom line is this: You just admitted there
was just one program that the President confirmed in December.
Just one. Is that correct, sir?
Attorney General Gonzales. The President talked about a set
of activities--
Senator Schumer. No. I am just asking you a yes or no
simple question, just as Senator Specter has, and just like
Senator Specter and others here, I would like to get an answer
to that question. You just said there was one program. Are you
backing off that now?
Attorney General Gonzales. The President--
Senator Schumer. Was there one program or was there not
that the President confirmed?
Attorney General Gonzales. The President confirmed the
existence of one set of intelligence activities.
Senator Schumer. Fine. Now, let's go over it again, sir,
because I think this shows clear as could be that you are not
being straightforward with this Committee, that you are
deceiving us.
Then you said in testimony to this Committee in response to
a question that I asked, there has not been any disagreement
about the program the President confirmed. Then Jim Comey comes
and talks about not just mild dissent, but dissent that shook
the Justice Department to the rafters. And here, on June 5th,
you say that Comey was testifying about the program the
President confirmed.
Attorney General Gonzales. And I've already said--
Senator Schumer. You, sir--
Attorney General Gonzales.--clarified my statement on June
5th. Mr. Comey was talking about a disagreement that existed
with respect to other intelligence activities.
Senator Schumer. How can we--this is constant, sir, in all
due respect, with you. You constantly make statements that are
clear on their face that you are deceiving the Committee, and
then you go back and say, ``Well, I corrected the record 2 days
later.'' How can we trust your leadership when the basic facts
about serious questions that have been in the spotlight you
just constantly change the story, seemingly to fit your needs
to wiggle out of being caught, frankly, telling mistruths.
It is clear here. It is clear. One program. That is what
you just said to me. That is what locks this in, because,
before that you were sort of alluding in your letter to me on
May 17th, you said, well, there was one program--you said there
was this program, TSP, and then there were other intelligence
activities.
Attorney General Gonzales. That is correct.
Senator Schumer. You wanted us to go away and say, well,
maybe it was other--wait a second, sir.
Attorney General Gonzales. And the disagreement related
to--
Senator Schumer. Wait a second, sir.
Attorney General Gonzales.--the other intelligence
activities.
Senator Schumer. I will let you speak in a minute, but this
is serious because you are getting right close to the edge
right here. You just said there was just one program. Just one.
So the letter, which was sort of intended to deceive but
doesn't directly do so because there are other intelligence
activities, gets you off the hook, but you just put yourself
right back on here.
Attorney General Gonzales. I clarified my statement 2 days
later with the reporter.
Senator Schumer. What did you say to the reporter?
Attorney General Gonzales. I did not speak directly to the
reporter.
Senator Schumer. Oh, wait a second. You did not. Okay. What
did your spokesperson say to the reporter?
Attorney General Gonzales. I don't know, but I told the
spokesperson to go back--
Senator Schumer. Well, wait a minute, sir. Sir--
Attorney General Gonzales.--and clarify my statement.
Senator Schumer.--in all due respect--and if I could have
some order here, Mr. Chairman. In all due respect, you are just
saying, well, it was clarified with the reporter, and you don't
even know what he said. You don't even know what the
clarification is.
Sir, how can you say that you should stay on as Attorney
General when we go through exercises like this, where you are
bobbing and weaving and ducking to avoid admitting that you
deceived the Committee. And now you don't even--I will give you
another chance. You are hanging your hat on the fact that you
clarified the statement 2 days later. You are now telling us
that it was a spokesperson who did it. What did that
spokesperson say? Tell me now. How do you clarify this?
Attorney General Gonzales. I don't know, but I will find
out and get back to you.
Senator Schumer. How do you clarify this? This is serious
because it looks like you have deceived us.
Chairman Leahy. In your own words, how would you clarify
it?
Senator Schumer. How would you clarify it? You don't need--
Attorney General Gonzales. What I would say--here, let me
answer the question--
Senator Schumer. If you want to be Attorney General, you
should be able to clarify it yourself right now and not leave
it to a spokesperson who you don't know what he said. Tell me
how you would clarify it.
Attorney General Gonzales. I would have said Mr. Comey's
testimony about the hospital visit was about other intelligence
activities, disagreement over other intelligence activities.
That's how I would clarify it.
Senator Schumer. That is not what Mr. Comey says. That is
not what the people in the room say.
Attorney General Gonzales. That's how we'd clarify it.
Senator Schumer. Explain that again? Because it still
doesn't add up.
Attorney General Gonzales. What I would--
Senator Schumer. You said there is only one--
Attorney General Gonzales. Mr. Comey--
Senator Schumer. You said there is one program the
President confirmed. Are you saying Mr. Comey didn't disagree
with the program that the President confirmed in December?
Attorney General Gonzales. What I'm saying is that the--
Senator Schumer. That is what you're saying here.
Attorney General Gonzales.--disagreement Mr. Comey
testified about was about other intelligence activities.
Senator Schumer. Mr. Chairman, I think we have to pursue
this at some point because this is--I have never heard anything
quite like this.
Chairman Leahy. Could I ask, if I might, you said you made
a clarification to a reporter. This is such a significant and
major point. Did you ever offer such a clarification to either
Senator Specter or myself?
Attorney General Gonzales. You mean in terms of what was
said at the press conference?
Chairman Leahy. Yes.
Attorney General Gonzales. I don't believe so. But I think
my correspondence and testimony is accurate. The statement at
the press conference was not accurate, and I corrected it. That
was corrected.
Senator Schumer. But, Mr. Chairman, if I might, now what
the Attorney General is saying, the way this is clarified, is
that Jim Comey was not talking about the program the President
confirmed.
Chairman Leahy. I am going to ask for a review of the
transcript, both what Mr. Comey said--
Senator Schumer. Everyone knows that is not true.
Chairman Leahy.--and what Mr. Gonzales said. If there is a
discrepancy here in sworn testimony, then we are going to have
to ask who is telling the truth and who is not.
Mr. Durbin, Senator Durbin
Senator Schumer. Thank you, Mr. Chairman.
Senator Durbin. Thank you, Mr. Chairman. Thank you, Mr.
Attorney General.
There are many controversial issues that have been raised
in this hearing: warrantless wiretapping, the political
dismissal of U.S. Attorneys, and the like. I think that this
administration and your tenure as Attorney General will be
haunted in history by another issue, and that is the issue of
torture. It is the reason I could not vote for your
confirmation, the role that you played as counsel to the
President in saying that we as a Nation did not have to follow
the torture statute and the provisions of the Geneva
Conventions.
Now, last Friday, President Bush signed an executive order
interpreting Common Article III of the Geneva Conventions for
the purposes of CIA secret detention and interrogation. The
Executive order rejected your earlier position and acknowledges
that the CIA must follow applicable law, including Common
Article III of the Geneva Conventions, the torture statute, and
the McCain torture amendment, which I was happy to cosponsor.
Do you now agree that Common Article III applies to all
detainees held by the United States?
Attorney General Gonzales. What I can say is that certainly
Common Article III applies to all detainees held by the United
States in our conflict with al Qaeda.
Senator Durbin. I am sorry. What--
Attorney General Gonzales. In our conflict with al Qaeda,
yes.
Senator Durbin. Well, I am worried about the qualification
at the end. Are you suggesting that other terrorist conflicts
are not covered by Common Article III in terms of the treatment
of detainees?
Attorney General Gonzales. You know, we have to look at the
words of Common Article III. The Supreme Court rendered a
decision about the application of Common Article III with
respect to our conflict with al Qaeda only. And so--I believe,
if I recall correctly.
If that were the case, if there were a different kind of
conflict that on its face isn't covered by Common Article III,
then obviously we would not be legally bound by Common Article
III, although I think the President has said we are going to
treat people humanely nonetheless.
Senator Durbin. So let me get into a specific here. Last
year, the highest-ranking attorneys in each of the four
military services--Army, Navy, Air Force, and Marines--the
Judge Advocates General testified before this Committee, and I
sent them follow-up questions asking their opinion about
specific abusive interrogation techniques that this
administration has reportedly authorized. I received their
responses this morning, and, Mr. Chairman, I ask consent that
those responses be made a part of the record.
Chairman Leahy. They will be made part of the record.
Senator Durbin. Mr. Attorney General, the opinion of the
Judge Advocates Generals was unanimous. They all agreed that
the following interrogation techniques violate Common Article
III of the Geneva Conventions, and there are five: painful
stress positions, threatening detainees with dogs, forced
nudity, waterboarding, and mock execution. Do you agree?
Attorney General Gonzales. Senator, I'm not going to get
into a public discussion here about possible techniques that
may be used by the CIA to protect our country. What I can say
is the executive order lays out a very careful framework to
ensure that those agents working for the CIA, trying to get
information about the next attack do so in a way that is
consistent with our legal obligations. And so, again, without
commenting on specific techniques, we understand what the rules
of the road are.
Senator Durbin. Mr. Attorney General, do you know what you
are saying to the world about the United States when you refuse
to acknowledge that these techniques are beyond the law, beyond
the tradition of America? These Judge Advocates General have a
responsibility as well. They have been explicit and unanimous.
The problem with your statement, Mr. Attorney General, is that
you are leaving room for the possibility that you disagree with
them.
Attorney General Gonzales. And, of course, those in the
military are subject to the Army Field Manual. It's a standard
of conduct that is way above Common Article III. And so they
come at it from a different perspective, quite frankly,
Senator. And, again, I wish I could talk in more detail about
specific actions, but I cannot do that in an open setting.
Senator Durbin. Well, let me just ask you to consider this
for a moment. Aside from the impact of what you have just said
on America's reputation in the world, aside from the fact that
we have ample record that you have disagreed with the use of
Geneva Convention standards and have pushed the torture issue
beyond where the courts or the Congress would take it, would it
be legal for a foreign government to subject a United States
citizen to these so-called enhanced interrogation techniques
which I just read?
Attorney General Gonzales. Would it be legal for the United
States Government to subject--
Senator Durbin. No. For a foreign government.
Attorney General Gonzales. For a foreign government.
Senator Durbin. To subject a United States citizen to the
five--any of the five interrogation techniques which I read to
you?
Attorney General Gonzales. Well, again, Senator, we would
take the position--you are talking about an American soldier
who fights pursuant to the rules of the Geneva Convention--
Senator Durbin. No, no. That is a different story. That is
a uniformed person. I am talking about a United States citizen.
Attorney General Gonzales. Would it be legal under their
laws? Would it be legal under international standards? What do
you mean by ``would it be legal''? We obviously would demand
humane treatment and treatment for U.S. citizens consistent
with international legal obligations and that's what--
Senator Durbin. And would you--
Attorney General Gonzales. That's what this President
expects of those of us who work in this Government.
Senator Durbin. And do you believe these techniques which I
have read to you would be beyond the laws and the international
standards if they were used against an American citizen?
Attorney General Gonzales. Senator, you are asking me to
answer a question which I think may provide insight into
activities that the CIA may be involved with in the future.
Senator Durbin. No. I am asking you a hypothetical
question. Anytime we get close to a specific issue, an
investigation, you recuse yourself.
Attorney General Gonzales. Every time--
Senator Durbin. Now I am asking you for a general
observation. Mr. Attorney General, the point I am making to you
is if you cannot be explicit about the standards of conduct and
the values of this country when it comes to the use of torture,
you create an ambiguity which, unfortunately, reflects badly on
America around the world and invites those who would take
American citizens as captives and detainees to also suggest,
well, there is an ambiguity, we can go a little further than
perhaps international law allows.
Attorney General Gonzales. Well, what is prohibited would
be grave breaches, which are set forth--
Senator Durbin. What about these five specifics?
Attorney General Gonzales.--in the Military Commissions
Act. There are also violations of the DTA, which would be
violation of cruel, inhumane, degrading standard, which is tied
to our constitutional standards of shocking the conscience. And
then there are prohibited actions which would be covered by the
President's executive order. And, again, it would depend on
circumstances, quite frankly.
Senator Durbin. Well, that is the kind of ambiguity which
allows many people to conclude that you personally and this
administration, whether by signing statements or the Bybee
memos, are really trying to leave a little opening in a door
for the United States to engage in conduct which we condemn
around the world.
The last question I want to ask you is this: The latest
National Intelligence Estimate suggests that al Qaeda is
stronger today than they were on 9/11. It suggests, as we all
know, that Osama bin Laden is still at large. And it suggests
that Guantanamo has become a symbol of injustice around the
world.
Can you explain to me why 5 years after the Guantanamo
detention situation has been created there still has not been a
single conviction of any of these detainees or combatants for
any wrong doing?
Attorney General Gonzales. It is not for lack of trying on
the Government's part, Senator. It is because these
individuals--
Senator Durbin. It could be lack of competence.
Attorney General Gonzales. These individuals have been
provided process, and they are taking advantage of that
process, and I don't begrudge them for it, for hiring good
lawyers and defending their interests in the courts. And so we
are slugging it out in the courts. And, you know, I would like
to get all these issues resolved. I would like to bring all
these individuals to justice. So we are doing our best, but we
are doing it in a way that reflects the reality that these
individuals have the opportunity and the means to go into court
to contest what we are doing.
Senator Durbin. I would suggest 5 years ago, Senator
Specter and I proposed legislation to create military
commissions which we thought would have given you that
opportunity, and the administration was not receptive. Thank
you, sir.
Chairman Leahy. As I recall, I was one of those who joined
with you on that proposal. There was almost arrogant rejection
of our proposal. Basically the White House--you were then White
House Counsel--said that you knew better, we don't need it, and
rejected it out of hand. Of course, when the Supreme Court came
down, a Republican-dominated Supreme Court came down, said you
were wrong, we were right. We have wasted years, which I think
was Senator Durbin's point.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. I will shortly
be introducing a resolution to censure the President and senior
members of his administration for undermining the rule of law,
from authorizing an illegal wiretapping program to claiming the
power to detain U.S. citizens indefinitely without charging
them.
I think this administration has shown disdain for the
constitution and the laws of the land. You have played a
central role in that effort. So I would like to give you an
opportunity to defend your actions.
With respect to the NSA's illegal wiretapping program, last
year in hearings before this committee and the House Judiciary
Committee, you stated that, ``[t]here has not been any serious
disagreement about the program that the President has
confirmed.'' That any disagreement that did occur ``[d]id not
deal with the program that I am here testifying about today.''
And that ``[t]he disagreement that existed does not relate to
the program the President confirmed in December to the American
people.''
Two months ago you sent a letter to me and other members of
this committee defending that testimony and asserting that it
remains accurate, and I believe you said that again today. Now
as you probably know, I am a member of the Intelligence
Committee. And therefore, I am one of the members of this
committee who has been briefed on the NSA wiretapping program
and other sensitive intelligence programs.
I have had the opportunity to review the classified matters
at issue here, and I believe that your testimony was misleading
at best. I am prevented from elaborating in this setting, but I
intend to send you a classified letter explaining why I have
come to that conclusion.
Attorney General, the integrity of the Congressional
testimony of the highest law enforcement official in the
country is an extremely important matter. I therefore ask that
after reviewing that letter you provide clarification in a
classified setting. But also please consider how you can
address this issue publically to dispel the doubts about your
voracity that this episode has raised. Will you agree to do
that?
Attorney General Gonzales. I certainly would endeavor to do
that, Senator. I guess I am very surprised at your conclusion
that I may have been misleading. If, in fact, you understood
the briefings in the Intel Committees, quite frankly. I find
your statements surprising, so I look forward to your
correspondence.
Senator Feingold. Well, I look forward to the information,
the classified setting, and to your public attempts to set this
straight. I strongly disagree with your analysis of how
somebody would come down as to whether you were misleading.
In fact, I'm appalled by your efforts today to try to shift
responsibility for the effort to strong arm Attorney General
Ashcroft. First given your history of misleading this
committee, I don't know why we should trust your account of the
situation.
Second, unless you're talking about a covert action, the
limited Gang of Eight briefing itself was a violation of the
National Security Act. And third, it was you, Mr. Attorney
General, who visited the hospital to try to strong arm a sick
man who had temporarily relinquished his responsibility. You
are responsible for those actions.
At your confirmation hearing in January, 2005, I asked you
whether the President has the power to authorize warrantless
wiretapping under the theories of the torture memo. You called
my question ``hypothetical,'' when you knew full well, full
well that this had been going on for years. You could have
spoken to me after the hearing and told me that there was
something I should know that you couldn't explain in open
session, but you did not. Then during your campaign to
reauthorize the Patriot Act, you told Congress that there were
no abuses of that law that we needed to worry about. Even
though you had documents showing there had actually been
problems with the Patriot Act and other surveillance
authorities.
Then again last year you came to this committee and told us
that there had not been any serious disagreement about the
warrantless wiretapping program the President confirmed in late
2005. A statement I believe was misleading at best.
In every case you somehow managed to come up with some
convoluted theory for why your statement was technically
accurate. When you look at all of these incidents together, it
is hard to see anything but a pattern of intentionally
misleading Congress again and again.
Shouldn't the Attorney General of the United States meet a
higher standard?
Attorney General Gonzales. The Attorney General of the
United States should try to meet the highest standard, and I
have tried to meet that standard, Senator.
Senator Feingold. You feel you've met that standard?
Attorney General Gonzales. Obviously there have been
instances where I have not met that standard, and I've tried to
correct that. When those standards have not been met, I have
tried to make amends and tried to clarify to the committee and
to the American people about statements that I've made.
Senator Feingold. You state in your testimony that the
administration has transmitted to Congress a proposal to
modernize the Foreign Intelligence Surveillance Act, and yet
your department still refuses to share with this committee and
with the Intelligence Committee basic information about the
evolution of the department's legal justifications for the
illegal wiretapping program from 2001 to the present.
And your legislative proposal contains a provision that
would grant blanket immunity to individuals who cooperate with
the government for participating in certain unidentified
intelligence activities.
How can you come to Congress with a straight face and ask
for this immunity provision, yet at the same time refuse to
tell most members of Congress what they would be granting
immunity for?
Attorney General Gonzales. Of course we have provided
briefings to the Intel committees. And again, we went to
companies for help, they provided help in trying to protect
this country, and we think that's appropriate for the Congress
to consider.
Senator Feingold. But I'm asking you how you can say that
in light of the fact that most Members of Congress won't even
be told what they are being granted immunity for.
Attorney General Gonzales. Well, again, we have provided,
it is in the judgment, the administration, the appropriate
briefings to the Congress about these activities.
Senator Feingold. I don't think that cuts it for most
people who are going to be voting on this. Do you agree that
the potential liability of private entities for failing to
follow the law is an important part of the enforcement of our
privacy laws?
Attorney General Gonzales. If I understand your question,
yes.
Senator Feingold. I'm not asking whether you think there
was an illegal activity in any particular instance. I'm asking
you whether you think private liability is an important part of
the enforcement scheme of our privacy laws.
Attorney General Gonzales. I think as a general matter,
that would be true, yes.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. Thank you. Senator Kennedy.
Senator Kennedy. Thank you. Thank you very much, Mr.
Chairman. Thank you.
Just to come back for a moment or two to the issue of
torture. As you are aware, the President's latest Executive
Order has been published. It was published on July 20th, 2007.
Did the department review the Executive order?
Attorney General Gonzales. Yes.
Senator Kennedy. The order was put out?
Attorney General Gonzales. As a matter of custom, we would
do that, yes.
Senator Kennedy. Okay. And did you produce any memoranda or
any other documents assessing the legality of the order?
Attorney General Gonzales. Senator, I don't know, we
certainly provided advice, yes, about the order.
Senator Kennedy. Well--
Attorney General Gonzales. I can't tell you whether or not
we provided a legal document with respect to the order.
Senator Kennedy. Or comments about that.
Attorney General Gonzales. Yes.
Senator Kennedy. Could you--can you make those available to
the committee? Can you make those available to us, all of the
department's analysis of that?
Attorney General Gonzales. I will take that back and see
what we can do, Senator.
Senator Kennedy. In the Executive order, at section 3(b)(i)
paragraph E it mentions certain activities that by definition
violate human decency. It specifies those activities.
It says in paragraph E, outrageous acts of personal abuse
done for the purpose of humiliating or degrading the individual
in a manner so serious that any reasonable person, considering
the circumstances, would deem the acts to be beyond the bounds
of human decency.
Then it specifically prohibits certain activities. Certain
activities are prohibited in the Executive order. It says, such
as sexual or sexually indecent acts undertaken for the purpose
of humiliation, those activities are prohibited. It says,
forcing the individual to perform sexual acts or to pose
sexually, those activities are prohibited.
Threatening the individual with sexual mutilation, or using
the individual as a human shield, those activities are
prohibited. Then paragraph F says that acts intended to
denigrate the religion, religious practices, or religious
objects of the individual these acts are prohibited.
So the question is, why aren't you willing, if those are
prohibited, why aren't you willing to prohibit the other kinds
of activities that were outlined earlier, including
waterboarding, stress, dogs, nudity, and mock executions? You
prohibit these activities. Why don't you prohibit those?
Attorney General Gonzales. Senator, there are certain
activities that are clearly beyond the pale, and that everyone
would agree should be prohibited. So obviously the President is
very, very supportive of those actions that are identified by
its terms in the Executive order.
There are certain other activities where it is not so
clear, Senator. Again, it is for those reasons that I can't
discuss in a public session.
Senator Kennedy. The point has been made superbly by my
colleague, Senator Durbin. What you are basically saying to
this committee and the rest of the world is that these acts,
which are mentioned in the Executive order, are prohibited, but
these other activities are not, the five other activities which
were the subject of a good deal of our own hearings when we had
a problem with your confirmation as Attorney General. These
other five activites don't rise to the point where they are
prohibited.
Attorney General Gonzales. I am not saying that they are
not. What I'm saying is--
Senator Kennedy. But they weren't of sufficient importance
to list them as you listed these other activities.
Attorney General Gonzales. I wouldn't say it is importance.
But clearly these activities are ones that are clearly beyond
the pale, and everyone agrees the United States government
should not be engaged in.
With respect to whether or not other activities should be
prohibited, that will be determined based upon the parameters
set forth in the Executive Order, and for the Director of the
CIA to make sure that certain standards are met before
authorizing any activity to ensure that it complies with the
requirements of the order.
Senator Kennedy. This past Sunday, Admiral McConnell was on
Meet the Press, and he was asked about some of these
activities. He indicated that he was not going to comment
specifically on it.
Is it lawful to leave the threat of torture hanging out? Is
the threat of torture a violation of the Geneva Convention?
Attorney General Gonzales. Well, of course the--we're not
going to torture. We are bound by both domestic and
international law. We don't engage in torture. I don't think
we've let the threat out there. We have said we are not going
to engage in torture.
Senator Kennedy. Okay. Well, the point is about these five
items, which Admiral McConnell indicated in response to a
question that he wasn't going to comment on. The question is
whether that threat is extreme psychological harm. The fact
that you won't indicate that those activities are off the table
poses a violation of the Geneva Convention.
Let me go to another issue. This morning's Washington Post
had this story on the front page. Diplomats received political
briefings. They were done even at the Peace Corps.
Now, we have already had some 15 Federal agencies and
departments subject to briefing by Karl Rove's political office
at the White House. These briefings focused on the key
electoral contests.
According to the Post today, even diplomats and the Peace
Corps have been given briefings that went so far as to identify
Democrats targeted for defeat in 2008.
Has Karl Rove or anyone from his office given similar
briefings to the leadership in the Department of Justice?
Attorney General Gonzales. Not that I'm aware of.
Senator Kennedy. Well, you would know if he had.
Attorney General Gonzales. I would think so, but I don't
believe so, sir.
Senator Kennedy. And is it your legal opinion that these
briefings given in the Peace Corps which target Democrats for
defeat, are these briefings consistent with the Hatch Act? Is
that a violation of the Hatch Act?
Attorney General Gonzales. I don't know. I haven't studied
this article. I'm not aware of what happened in the briefings.
I certainly wouldn't rely upon the article in making--
Senator Kennedy. Well, it raises serious questions, does it
not?
Attorney General Gonzales.--in reaching a conclusion as to
whether or not the Hatch Act--
Senator Kennedy. You are going to look into it?
Attorney General Gonzales. We will look to see whether or
not there is something there.
Senator Kennedy. Whether it's a violation. Whether they in
these briefings were doing partisan targeting on government
property, talking to these officials in the Peace Corps. Going
into the Peace Corps, telling them that they should be
undermining Democrats who should be defeated in the next
election.
Attorney General Gonzales. Let me try to get more
information about this, Senator. I really don't know anything.
I need to find out more about it.
Senator Kennedy. Well, if this story is true, would it
appear to you that it would be a violation?
Attorney General Gonzales. Again, Senator, I would like to
have the opportunity to find out what happened.
Senator Kennedy. Let me go quickly in the last seconds to
the Civil Rights Division in the Justice Department. We had Wan
Kim who was here asked about the number of cases filed to fight
voter discrimination against African-Americans.
The Bush administration has filed only two voting rights
cases on race discrimination against African-Americans, and it
took until 2006 to file these. They found time to clear Tom
DeLay's Texas redistricting plan and the Georgia photo ID law,
but filed just two cases on this.
Attorney General Gonzales. You mean against African-
Americans, or total?
Senator Kennedy. Cases about discrimination in voting
rights filed on behalf of African-Americans, just two cases.
Dramatically less than the previous administration.
Do you think that this really reflects what's happening out
there in terms of voter discrimination against African-
Americans?
Attorney General Gonzales. No, I still believe we have a
problem, and we have an obligation to try and address it. I
read with great interest the testimony. I think it was Dr.
Norton and the panel that followed Mr. Kim's testimony in terms
of the allegation that the numbers across the boarder down, and
I questioned Mr. Kim about that. We talked about the numbers
and the cases.
So I think the person to testify was either mistaken or
just plain wrong. So we have provided a lot of information to
this committee about the successes of the Civil Rights
Division, and I can tell you, Senator, I am firmly committed to
protecting the civil rights of all Americans.
Senator Kennedy. My time is up, Mr. Chairman. I'd like to
just provide information at this point.
Chairman Leahy. Thank you. And I would expect an answer to
the question on the Hatch Act that Senator Kennedy spoke about.
When Monica Goodling testified under oath before the House
Judiciary Committee, she crossed the line with the
unprecedented vetting of potential career hires for political
allegiances throughout the department, including apparently for
career Assistant U.S. attorney positions. I'm not talking about
political positions, but career ones.
She testified under oath that she crossed the line. Were
you aware that Ms. Goodling was doing so?
Attorney General Gonzales. That she was crossing the line?
No.
Chairman Leahy. Were you aware that she was talking, asking
about political allegiances and vetting career Justice
Department?
Attorney General Gonzales. I don't recall being aware of
that. If I had been aware of that, that would have been
troubling to me.
Chairman Leahy. Do you know whether other officials at the
White House were aware she was doing that?
Attorney General Gonzales. Not that I'm--let me just
mention, I'm aware, and I think I became aware after the U.S.
attorneys were asked to resign. There was an issue that I
became aware of where Ms. Goodling apparently asked a potential
career hire into the D.C. U.S. Attorney's Office improper
questions.
So at some point I did become aware of that. But otherwise,
I can't recall being aware of other instances where she may
have asked improper questions.
Chairman Leahy. When you consider, recommend, or approve
candidates for employment to career positions at the
department, do you ever consider their political party
affiliation or ideology or membership in nonprofit
organizations or demonstrate loyalty to the President or any of
those matters?
Attorney General Gonzales. Did I? No.
Chairman Leahy. Do you ever?
Attorney General Gonzales. Do I ever? No.
Chairman Leahy. Do you know whether anybody else in the
department does that?
Attorney General Gonzales. Well, again, apparently based
upon the testimony, it appears that Ms. Goodling, as she
testified, may have crossed the line.
Chairman Leahy. Have you made it clear that people cannot
do that?
Attorney General Gonzales. Yes. We have now revised
policies both with respect to immigration judges, with respect
to Civil Rights division, with respect to career Assistant
United States attorneys, with respect to the honors programs,
we have changed our policies to make it clear.
Chairman Leahy. Do you make that clear that nobody at the
White House can do that either?
Attorney General Gonzales. In terms of?
Chairman Leahy. Those hires.
Attorney General Gonzales. I don't know whether or not--I
have communicated with the White House about that now.
Chairman Leahy. It might not be a bad idea. They are also
in the book. Feel free to contact them.
You testified to both the Senate and the House Judiciary
Committee that you didn't speak with anyone involved in the
firings of the U.S. attorneys about that process because you
didn't want to appear with the investigation.
But on May 23rd, Monica Goodling testified under oath
before the House Judiciary Committee that she had an
uncomfortable conversation with you shortly before she left the
department during which you outlined your recollection of what
happened and asked for her reaction.
Which one of you is telling the truth?
Attorney General Gonzales. I did have that conversation
with her in the context of trying to console and reassure an
emotionally distraught woman that she had done something wrong,
and I tried to reassure her as far as I knew, nothing had done
anything intentionally wrong, and that was the basis of the
conversation that I had.
She came to my office, this was March 15th, just days after
this really became a big story. She came in and she was
emotionally distraught.
Chairman Leahy. But, you know, we sent you written
questions on this, on the eve of this. We got answers, and no
place in there did you make reference to that. So it is your
statement now that she did come and you did talk with her?
Attorney General Gonzales. Again, we had a conversation for
the purpose--my conversation with her, she was seeking to get a
transfer. I was simply trying to console this very emotionally
distraught woman.
Chairman Leahy. You did say that in your estimation,
nothing wrong was ever done?
Attorney General Gonzales. And I might add, Mr. Chairman,
that I had committed to you that we would make these people
available as witnesses, that the department would be
forthcoming in turning over documents.
As far as I knew, nothing improper, nothing illegal had
happened here.
Chairman Leahy. So your earlier testimony was wrong?
Attorney General Gonzales. Senator, I wouldn't say that it
was wrong. What I want to do is put it in context that again,
my conversation with her was not to shape her testimony. My
conversation with her was to simply reassure her that as far as
I knew, no one had done anything intentionally wrong here.
Mr. Sampson had just resigned. She reported to Mr. Sampson,
and I think she was confused, and I think needed reassurance.
Chairman Leahy. Let me ask you about just how the
department is administered. You said you do administer it, and
I understand that.
In 2003, Congress unanimously, unanimously passed the Home
Town Heros Act. This would extend Federal survivor benefits to
the families of firefighters, police officers, emergency
workers, who die of a heart attack or a stroke in the line of
duty.
More than 3.5 years after that the Justice Department used
its regulatory authority to shift the burden of proof from the
government to the families. So there has been 260 applications,
you approved only 14 claims out of those 260, denied 47 others.
People are really concerned. It seems like a stall. It took 3
years to write the regulation, and nothing gets approved.
Now, let me just give you one example of what your
department denied. You denied benefits to a U.S. forest service
firefighter in Arizona. He was standing closer than I am to you
behind a fire line, a shovel in his hand, working to contain
that. Your department said well, they couldn't determine
whether he was engaged in strenuous activity at the time of his
heart attack.
I don't know what you consider strenuous activity. I think
if I was standing this close to a fire line with a shovel in my
hand trying to contain a forest fire, I would certainly
consider it more strenuous than my normal day's activities.
What are you going to do to knock down these kind of
bureaucratic delays? This is picky, petty, and it is wrong to
the families of very, very brave people. It makes many of us
feel, many in both parties feel the President may have assigned
this law, he may not have put a signing statement in, which he
often does to ignore the law. But by God, he's going to make
sure the bureaucracy ignores it. What are you going to do to
clear that up?
Attorney General Gonzales. Thank you for that question,
Senator. You're right. It has taken us too long, and I
apologize to the families. There are two reasons for the delay.
One is of course the regulations, which took us much too
long, 3 years. Part of the fact is that we wanted to consult
with the medical community and with law enforcement to ensure
that we have the right regulatory framework in place, but it
still took us too long.
The second area of delay is the actual processing of
claims. We have to do a better job of--
Chairman Leahy. Clear it up. Clear it up.
Attorney General Gonzales. That's what I said. Yes, sir, I
agree.
Chairman Leahy. Report back to Senator Specter and I,
please.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman. Attorney General
Gonzales, does Solicitor General Paul Clement now have the
unquestioned authority to appoint a special prosecutor since
you and the Deputy Attorney General are recused?
Attorney General Gonzales. It would be his decision, yes.
Senator Specter. Just to be abundantly clear, so that if a
request were made to him to appoint a special prosecutor to
handle the contempt proceedings arising out of this entire
matter, it would be his decision?
Attorney General Gonzales. Yes.
Senator Specter. His sole decision?
Attorney General Gonzales. I would not be involved with it,
and neither would the Deputy Attorney General.
Senator Specter. Or nobody else would be involved in it. It
is the Attorney General's responsibility under the statute.
Attorney General Gonzales. Ultimately he would make the
decision, yes, sir.
Senator Specter. Going back to the question about your
credibility on whether there was dessent within the
administration as to the terrorist surveillance program, was
there any distinction between the terrorist surveillance
program in existence on March 10th when you and the Chief of
Staff went to see Attorney General Ashcroft contrasted with the
terrorist surveillance program which President Bush made public
in December of 2005?
Attorney General Gonzales. Senator, this is a question that
I should answer in a classified setting, quite frankly. Now you
are asking me to hint about our operational activities. I'd be
happy to answer that question, but in a classified setting.
Senator Specter. Well, if you won't answer that question,
my suggestion to you for, Attorney General Gonzales, is that
you review this transcript very, very carefully. I do not find
your testimony credible, candidly.
When I look at the issue of credibility, it is my judgment
that when Mr. Comey was testifying, he was talking about the
terrorist surveillance program. That inference arises in a
number of ways, principally because it was such an important
matter that led you and the Chief of Staff to Ashcroft's
hospital room.
When you say that you were going to get Ashcroft's approval
on another intelligence matter, it strains fragulity that it
would be other than the foremost program to go to his hospital
room when he's under sedation.
When you testified here this morning earlier that you were
looking to see if Attorney General Ashcroft had sufficient
capacity to answer the question as to his giving his approval,
the man was under sedation. It's just all the attendant
circumstances make it appear, lead to the inference, that we
are dealing with a terrorist surveillance program.
So my suggestion to you is that you review your testimony
very carefully. The Chairman has already said that the
committee is going to review your testimony very carefully to
see if your credibility has been breached to the point of being
actionable.
I had asked you about the case involving United States
Attorney Charlton. Are you aware of the fact that with respect
to the defendant for whom you are seeking the death penalty,
Jose Rias, that the testimony against him was mostly from
addicts and drug dealers?
Attorney General Gonzales. Sitting here today, I have no
specific recollection of that, no, sir. But again, this is an
ongoing case, Senator, and we are going to try to make this
case in the courts. So the more criticism there is of the
government's position, the harder it's going to be for the U.S.
Government to prevail in court.
I would simply urge that we try not to criticize the
government's position in this case in connection with an
ongoing matter.
Senator Specter. Well, I disagree with you categorically. I
think the government's position ought to be reevaluated. I do
not know whether it's a proper case for the death penalty or
not sitting here. But I do know that if you spent only 5 to 10
minutes on it, you haven't made a reflected, mature, sensible
judgment on it. The procedures haven't been followed.
I also know that when the U.S. attorney who handles the
case makes a request to the Attorney General, he is one man,
and you're another man. You're dealing with a death penalty for
a third man. But you owe the process more than 5 to 10 minutes,
or you ought to be in the position to say to this committee, it
wasn't 5 to 10 minutes, I don't function that way. I don't make
the decision on the death penalty in 5 to 10 minutes. But you
can't say that, because you don't know.
So what I would say to you to try to simplify it, go back
and take another look at this.
Attorney General Gonzales. I will do that.
Senator Specter. And I'd also suggest to you that you go
back and take a look at all the other cases where you have
pressed for the death penalty, especially the ones where your
United States attorneys have recommended against it.
Well, time is almost up and we're about to have a vote. We
are having a vote, but let me cover one more subject very
briefly. That is the issue on Oxycontin.
This is a matter, Attorney General Gonzales, where your
department entered into a plea agreement with the Perdue Pharma
Company where scores of people died as a result of Oxycontin
abuse, and even a greater number became addicted.
The situation arose where there was an acknowledgment that
there was an intent to mislead. Now, that constitutes malice,
reckless disregard for the life of somebody else would support
a common law prosecution for murder in the second degree.
Now, the question is why does the Department of Justice
enter into a plea agreement for a fine? No jail times, the cost
of doing business. The only way to deter white collar crime is
if there is a penalty involved, if people go to jail who
acknowledge that they deliberately misled to sell a product.
What was the reason for that?
Attorney General Gonzales. Senator, it was the considered
judgment of the prosecutor that it would be--he was not
confident in the evidence to support the intent, the individual
intent or malice of the corporate executives. He took advantage
of the statute passed by Congress to hold these individuals
liable without having to show intent.
As a consequence, they are paying $30 million in fines.
This was a very difficult and very complex case. So I think
that the prosecutors here looked at the evidence and decided--
Senator Specter. How many deaths were there?
Attorney General Gonzales. I can't answer that question.
Senator Specter. Would you answer it? Did you review this
case?
Attorney General Gonzales. I did not review this case.
Senator Specter. Do you know how much money is involved for
this corporation to sell this product?
Attorney General Gonzales. I don't know the answer to that
question, Senator.
Senator Specter. $30 million maybe and cheap license.
Attorney General Gonzales. It was $600 million for the
company.
Senator Specter. $600 million may be slightly more
expensive cheap license.
Chairman Leahy. Are you finished?
Senator Specter. Well, I'm not finished, but I'll conclude.
Thank you.
Chairman Leahy. I'm not trying to cut him off. We have to
vote and there's about 4 or 5 minutes left in this. We will
recess for 20 minutes. We will recess for 20 minutes.
Senator Schumer can vote. Senator--we don't have to recess
unless the Attorney General wants a break. I'll turn the gavel
over to Senator Whitehouse.
Senator Whitehouse. Thank you, Mr. Chairman. Mr. Gonzales,
let me just follow-up briefly on what Senator Feingold was
saying, because I'm also a member of both committees, and I
have to tell you, I have the exact same perception that he
does.
That is that if there is a kernel of truth in what you said
about the program which we can't discuss, but we know it to be
the program at issue in your hospital visit to the Attorney
General, the path to that kernel of truth is so convoluted and
is so contrary to the plain import of what you said, that I
really at this point have no choice but to believe that you
intended to deceive us and to lead us or mislead us away from
the dispute that the Deputy Attorney General subsequently
brought to our attention.
So you may act as if he is behaving, you know, in a crazy
way to even think this, but at least count two of us and take
it seriously.
When we first spoke some time ago, we talked about
communications about cases between your office and the White
House. In that context, let me ask you sort of a background
question, or a context question.
That is, if you want an independent Department of Justice,
one that is protected from improper political influence, as you
are assaying the different places from which improper political
influence might come to affect the Department of Justice, what
do you think would be the locus most presenting that risk?
Attorney General Gonzales. I'm sorry, Senator. I don't
understand the question.
Senator Whitehouse. Well, if you are setting up barriers,
for instance, administrative barriers to protect the department
from improper influence, where would you be looking to have
the, I mean, the Boy Scouts of America, not a major risk,
wouldn't you say?
Attorney General Gonzales. Of course.
Senator Whitehouse. Mayors, City Councils around the
country, not probably a major risk.
Attorney General Gonzales. I think where you are trying to
lead me to is the White House.
Senator Whitehouse. Isn't the White House the number one
locus of general concern that has persisted through many
administrations as to where political influence coming into the
Department of Justice improperly is going to come from?
Attorney General Gonzales. Obviously that would be
certainly a key source of concern.
Senator Whitehouse. The key. The key, right?
Attorney General Gonzales. Probably the key source of
concern.
Senator Whitehouse. Okay. And in response to that, as we
discussed in the last hearing, as I can remind you, there was
the 1994 letter from Janet Reno to Lloyd Cutler. In response to
that concern, which we agree is a very real one, the letter
announced, and I believe that the letter, I wasn't here at the
time, but I believe the letter was actually reduced to writing
at the direction and instigation of then Judiciary Chairman
Orrin Hatch, who saw this as a significant concern.
The letter says this. Initial communications between the
White House and the Justice Department regarding any pending
department investigation or criminal or civil case should
involve only the White House counsel or deputy counsel (or the
President or Vice President) and the Attorney General or Deputy
or Associate Attorney General. Seven people.
As you'll recall, I showed you a graph of what has been
done since. In response to that, you seem to agree that I had a
somewhat legitimate concern that I was pursuing. You said, this
is from your transcript. I remain concerned as Attorney General
in terms of making sure that communications from the White
House and the Department of Justice remain in the appropriate
channels.
You further said, I agree with you. It is important to try
to limit the communications about specific criminal cases
between the counsel's office and the Department of Justice.
You specifically said, I think the safeguards that you're
referring to I think are very, very important. Then you said,
I, like you, am concerned about the level of contacts in
ensuring that the communications from the White House and the
Department of Justice occur at the appropriate, within the
appropriate channels.
Attorney General Gonzales. Channels.
Senator Whitehouse. Now, I then showed you the letter that
Attorney General, the memorandum that Attorney General Ashcroft
prepared. That is the document that sort of kicked open the
door from 7 to hundreds of people to be involved and have
discussions about ongoing criminal civil investigative matters.
That's what led to our discussion about all of this.
Attorney General Gonzales. Yes.
Senator Whitehouse. Now, you've had some time to think
about this. You have indicated a desire to clean up the mess at
the department. I would like to bring to your attention a May
4th, 2006 memorandum that is a subsequent document to the
Ashcroft memorandum.
This one is signed by you. If you don't mind, could you
give them a copy to put up?
Here is what concerns me. And the Ashcroft memorandum,
which was the subject of concern before, at the very, very end
of the Ashcroft memorandum, as you'll remember, there was that
paragraph under asterisks that changes the whole memorandum in
front of it.
It says, not withstanding any procedures or limitations set
forth above, the Attorney General may communicate directly with
the President, Vice President, Counsel of the President,
Assistant to the President for National Security Affairs, and
various others. Then it provides the staff members it can
consult with.
Directly with officials and staff of the Office of the
President, Office of the Vice President, Office of the Counsel
of the President, National Security Counsel, and so forth.
Now, I took the position that that was pretty much kicking
down a very important door that had protected the department
from political influence, but I see in your May 4th, 2006
memorandum a number of things that concern me even more.
The first is at the bottom of the first page where there is
an asterisk footnote which says at the bottom, for convenience,
the executive functions of the Vice Presidency are referred to
in this document as the Office of the Vice President, or OVP,
and the provisions of this memorandum that apply with respect
to communications with the EOP, Executive Office of the
President I assume that is, will apply in parallel fashion to
communications with the Office of the Vice President.
Let me ask you first, what on earth business does the
Office of the Vice President have in the internal workings of
the Department of Justice with respect to criminal
investigations, civil investigations, and ongoing matters?
Attorney General Gonzales. As a gentleman, I would say
that's a good question.
Senator Whitehouse. Why is it here, then?
Attorney General Gonzales. I'd have to go back and look at
this.
Senator Whitehouse. I'd like to know where this came from,
and how that addition was made.
Then if you look at the very back, the very last paragraph,
once again there is a final paragraph set off by asterisks that
pretty much undercuts everything that was said in the previous
enumerated paragraphs.
Here, you can see the difference. It's almost identical
with the previous memorandum, only it adds some things. Not
withstanding any procedure or limitation set forth above, the
Attorney General may communicate directly with the President,
Vice President, so far same as the Ashcroft memorandum.
Then you add, their Chiefs of Staff, Counsel to the
President, then you add, or Vice President. Somebody took the
trouble to write in Counsel to the Vice President and provide
that individual access to ongoing criminal investigations,
ongoing civil investigations, and ongoing other investigative
matters.
Attorney General Gonzales. Which I don't know whether or
not that in fact has happened. So I want to emphasize that.
Senator Whitehouse. Part of what we do around here is to
prevent things from happening.
Attorney General Gonzales. Exactly. Exactly.
Senator Whitehouse. And when you kick down doors, you
invite people to do it, whether or not it has been done.
Attorney General Gonzales. And I agree. And on its fact, I
must say sitting here, I'm troubled by this.
Senator Whitehouse. And if you continue, just let me
finish, because we're not done with the paragraph.
Attorney General Gonzales. All right.
Senator Whitehouse. If you go further on down, what was the
staff of the Office of the President has become the staff of
the White House office, and the entire Office of Management and
Budget has been thrown in.
So you come here today with I think, to put it mildly,
highly diminished credibility, asserting to us that you want to
bring, to restore the Department of Justice, and yet here where
there is something that you could do about it since our past
discussion, nothing has been done. The memo that has your
signature makes it worse, and we have agreed that this
connection between the White House and the Department of
Justice is the most dangerous one from a point of view of the
potential for the infiltration of political influence in the
department.
How in the light of all those facts can I give you any
credibility for being serious about the promises you have made
that you intend to clean up the mess you've made?
Attorney General Gonzales. Well, because we have taken, I
have taken several steps to clean up, to address some of the
mistakes that have been made, Senator.
I can say that I have directed my staff to try to
understand what happened with respect to the Ashcroft, what was
the genesis of it? In fact, we went back and talked to a former
member of the Ashcroft leadership team to understand, what was
the basis of the change? What caused this to happen?
And so we have been looking at this issue, because I am
concerned about it. With respect to this memo, quite frankly,
I'd have to look at it. I would be concerned about
inappropriate access to ongoing investigations, and it is
something that if it is encouraged by this kind of memorandum,
I think it's something that we ought to rethink.
Senator Whitehouse. I would just mention to you that
Senator Leahy and I, the Chairman and I, have a piece of
legislation that would restrict the department back to the
original seven, unless a notification were made to this
committee about other contacts that were actually made. I hope
you'll consider that and support it as well.
It is very difficult at this point to take seriously your
promises, however well you might mean them subjectively, to
restore the Department of Justice. There are a lot of people
here who love it. There are a lot of people here who think very
highly of it. Everywhere I go, I find increased concern about
it. People that I used to work with, people who are friends and
family of people who work in the Department of Justice right
now.
We have seven U.S. attorneys or more dismissed. You have
the Deputy Attorney General McNulty gone, Acting Associate
Attorney General Mercer gone, your Chief of Staff Kyle Sampson,
gone, White House liaison Monica Goodling, gone, Chief of Staff
to Deputy Attorney General Michael Ellston, gone, Director of
EOUSA Mike Battle, gone.
In addition to hearing it wherever I go, you get things
like the recent op ed in the Denver Post written by an active
AUSA.
As a long-time attorney at the U.S. Department of Justice,
I can honestly say that I have never been as ashamed of the
Department and government that I serve as I am at this time.
The public record now plainly demonstrates that both the
DOJ and the government as a whole have been thoroughly
politicized in a manner that is inappropriate, unethical and
indeed unlawful.
In more than a quarter of a century at the Department of
Justice, I have never before seen such consistent and marked
disrespect on the part of the highest ranking government
policymakers for both law and ethics.
I realize that this constitutionally protected statement
subjects me to a substantial risk of unlawful reprisal, from
extremely ruthless people who have repeatedly taken such action
in the past. But I'm confident that I'm speaking on behalf of
countless thousands of honorable public servants at Justice and
elsewhere who take their responsibilities seriously and share
these views.
Some things must be said, whatever the risk. As you know,
this is not an isolated feeling, and I just, I don't know how
you can say that you can help solve the problem. It appears to
a lot of people that you, sir, are in fact the problem.
Attorney General Gonzales. Senator, I understand that
statement. I disagree. I think the morale the department, I
think is good if you look at the output. Clearly the U.S.
attorney situation has not been helpful to the morale of the
department. But with respect to mistakes that have been
identified, we have taken steps to address them.
The fact that there has been changes in personnel, some
people would say it's a good thing. It's good we have these
changes, it's good these people have left. Some people like
Mike Battle you cite in that list, Mike was planning on leaving
because of personal reasons that had nothing to do with any of
this. It is unfair to include him in this.
So I am working as hard as I can to work with the members
of this committee to make improvements in the Department of
Justice, responding to Senator Feinstein's earlier comment
about how after hearing the opening statements of Senator Leahy
and Senator Specter why I would talk about FIZA.
The reason I would is I am focused on doing the work of the
people in this country who care most about making sure their
country is safe from terrorism, who care most about making sure
their neighborhoods are safe from gangs and drugs and violent
crime, and who care most about that their children are
protected from predators.
That is what I'm permanently focused on, but I'm also at
the same time trying to address these problems. I feel that's
my obligation as Attorney General.
Senator Whitehouse. Senator Cardin.
Senator Cardin. Thank you. I want to just raise one, to
come back to the concerns that I have about selected release of
information.
Our responsibility is to do the oversight to make sure that
things are done according to law, that you are held
accountable, and that we carry out our responsibilities as a
legislative branch of government. We need a complete record in
order to do that.
My concern is we get selective release of information.
Today you released some information concerning the
congressional advice to you in regards to an intelligence
briefing at the White House.
My understanding is that the details of those types of
briefings are classified information that can be released by
the President. You released information concerning the advice
given to you by the Congressmen that were there, Senators that
were there. We don't know who was there, we don't have those
details. We are not entitled to those details if I understand
correctly the ground rules for these types of briefings.
So can you just, first of all, was a conscientious decision
made to release that information by the White House?
Attorney General Gonzales. No. There was no approval by the
White House. Listen. People made statements about my conduct in
connection with the hospital visit. I think it's important for
the American people and for this committee to understand the
context of that visit.
Senator Cardin. I agree with you completely. But we should
have all the information. We should have all the information
with the White House. We should be able to have independent
review of all the information.
For example, can we get the details of that briefing
supplied to this committee?
Attorney General Gonzales. Senator, you are asking me
questions that really touch on White House equities, and that
will be a decision made at the White House, a decision that I
won't, in most cases will not be able to control.
Senator Cardin. This committee has gotten selective
information. The same thing happened to Sara Taylor when she
was here. She told us information, she said I can't tell you
anything about my conversations at the White House because we
have executive Presidential privilege. But however, I can tell
you things that I think make us look good.
Attorney General Gonzales. Senator, I don't know if that's
to be the case or not. My understanding, it appeared--
Senator Cardin. Review the testimony.
Attorney General Gonzales [continuing]. That Ms. Taylor was
trying to be as helpful to the committee as she could, but that
there were certain lines in which she was--
Senator Cardin. The problem is she sees it helpful when she
can advance the cause of the White House. She doesn't think
it's helpful giving us subjective information to make our own
judgments.
It's the same thing about your--we need to get a complete
record, and we're going to get a complete record. The courts
are going to ultimately make these judgments.
I just question, we are trying to find out the details of
what happened at the hospital, and you give us some information
about a briefing, and we don't have the rest of it. I just
think it puts us in a very difficult position.
You may not have intended that to be the case, but I would
certainly think that the Attorney General of the United States
would want to make sure that this committee had a complete
record, and that we don't have to take just selective
information on making judgments.
Attorney General Gonzales. It was certainly my intent to
make sure the committee had a more complete record than the
testimony that has been provided in terms of what happened
during that period.
Senator Cardin. But you didn't clear your testimony about
that briefing with anyone in the White House. That was your
judgment to talk about the briefing?
Attorney General Gonzales. The White House was advised that
this is what I was going to be talking about. I did not seek
their approval, nor did I get guidance in terms of what to say.
Senator Cardin. Thank you. I don't believe that, let me
just find out whether the Chairman wants this hearing to
continue, or if we are all right to do a recess. Oh. The
committee will stand in brief recess. My understanding is other
Senators will be returning.
[Recess from 12:52 p.m. to 12:58 p.m.]
Chairman Leahy. The audience will be in order, and the
committee will be back in order.
For those who spend much time watching Senate procedures,
we know that we sometimes get interrupted by votes, and I am
trying to, in this hearing, to a conclusion. Although I express
my appreciation both to the majority leader and to Senator
Kennedy for delaying the votes as long as they could.
Senator Schumer has asked for a little more time. I yield
to Senator Schumer, and if there are no other questions, that
will conclude this hearing. Of course all Senators have the
right to submit questions for the record.
The witness has the right of course to look at the record,
and should he want to change or amplify the answers, he can. I
will be looking at that transcript. You may want to look at it
very, very carefully.
Attorney General Gonzales. I will look at it very
carefully, Mr. Chairman.
Chairman Leahy. I would recommend you look at it extremely
carefully.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. I appreciate your
waiting for the votes. I have just a few quick questions that I
hope you'll be able to answer quickly and concisely.
First, Mr. Attorney General, at the time you went to Mr.
Ashcroft's hospital bed, did you know that power had been
transferred to Jim Comey?
Attorney General Gonzales. I think that there were
newspaper accounts, and the fact that Mr. Comey was the Acting
Attorney General is probably something that I knew of.
Senator Schumer. Probably you knew of it?
Attorney General Gonzales. Well, again, sitting here today,
I can't tell you yes, absolutely I knew. But let me make an
important point here. The fact that transfer had, let's assume
that transfer had occurred. There is no governing legal
principle that says that Mr. Ashcroft if he decided he felt
better could decide I'm feeling better and I can make this
decision, and I'm going to make this decision. But to answer
your question, I--
Senator Schumer. But you believe you knew?
Attorney General Gonzales. Yes.
Senator Schumer. Is that a fair characterization?
Attorney General Gonzales. I would say that, let's just
assume that I knew. But again, I'm not sure that's the main
point.
Senator Schumer. And at the time you went to Mr. Ashcroft's
hospital bed, you touched on this. What was your understanding
of Mr. Ashcroft's authority?
Attorney General Gonzales. My understanding, sitting here
today, my understanding is that the main focus was that Mr.
Comey would be making the decision with respect to this matter.
Senator Schumer. All right. When you went to the hospital
room, what was your understanding of Mr. Ashcroft's condition?
Attorney General Gonzales. I don't know if I can recall
exactly my understanding. I suspect it was of course that he
was sick, had had surgery. I may have understood that he was in
intensive care.
I may have, from newspaper accounts may have understood in
fact that he had problems with his pancreas or gallstones or
something.
Senator Schumer. Did you know that all visitors had been
barred by his wife because of how ill he was?
Attorney General Gonzales. I don't know if I knew that
subsequently. I certainly have been made aware of the fact that
she was being very, very careful in terms of who could visit
with him and who could speak with him.
Senator Schumer. The facts have come out that all visitors
were barred by her. Okay.
Next, do you have documents in your possession reflecting
the transfer of power or authority from Ashcroft to Comey?
Attorney General Gonzales. I do have them now, yes.
Senator Schumer. You didn't have them then?
Attorney General Gonzales. I don't recall personally having
them. There is some question, as I understand it, about whether
they came to the White House and who at the White House had
them.
But again, I'll just--
Senator Schumer. Wouldn't the counsel have gotten such
documents?
Attorney General Gonzales. I would think so, yes.
Senator Schumer. So you probably had them? Would that be
fair?
Attorney General Gonzales. I would say that they may have
come in. I have no recollection of that.
Senator Schumer. Would you go through your records and
produce for this committee any documents in your possession at
that time, or in your offices, the Office of Counsel's
possession at that time?
Attorney General Gonzales. I'd be happy to take that back
and see if that can be done.
Senator Schumer. Why couldn't it be done?
Attorney General Gonzales. Well, I don't know, Senator. If
we can do it, we'll produce it.
Senator Schumer. Okay. Could you give them to our committee
by Friday?
Attorney General Gonzales. We'll certainly do our best.
Senator Schumer. Thank you. Did you discuss classified
information in front of Ms. Ashcroft, who did not have a
security clearance?
Attorney General Gonzales. It is my recollection that the
answer to that question is no. General Ashcroft did virtually
all of the talking, and he did all of the talking with respect
to the legal issues. I can't, sitting here today, I don't
believe that he disclosed classified information in the
hospital room.
Senator Schumer. Okay. Let me ask you this. Who sent you to
the hospital?
Attorney General Gonzales. Senator, what I can say is we
had had a very important meeting at the White House over one of
the--
Senator Schumer. I didn't ask that.
Attorney General Gonzales. I am answering your question,
sir, if I could.
Senator Schumer. Did anyone tell you to go?
Attorney General Gonzales. It was one of the most important
programs for the United States. It was important. It had been
authorized by the President. I'll just say that the Chief of
Staff to the President of the United States and the counsel of
the President of the United States went to the hospital on
behalf of the President of the United States.
Senator Schumer. Did the President ask you to go?
Attorney General Gonzales. We were there on behalf of the
President of the United States.
Senator Schumer. I didn't ask you that.
Attorney General Gonzales. I understand that.
Senator Schumer. Did the President ask you to go?
Attorney General Gonzales. Senator, we were there on behalf
of the President of the United States.
Senator Schumer. Why can't you answer that question?
Attorney General Gonzales. That's the answer that I can
give you, Senator.
Senator Schumer. Well, can you explain to me why you can't
answer it directly?
Attorney General Gonzales. Senator, again, we were there on
an important program for this President on behalf of the
President of the United States.
Senator Schumer. Did you talk to the President about it
beforehand?
Attorney General Gonzales. Senator, obviously there were a
lot of discussions that happened during that period of time.
This involved one of the President's premier programs.
Senator Schumer. But sir, you are before this committee,
you are before this committee, you are supposed to answer
questions. You have not claimed any privilege. I don't think
there is any here, and I asked you a question and you refuse to
answer it. Why?
Attorney General Gonzales. If I can answer the question, I
will answer the question.
Senator Schumer. You did that. I know, but could you tell
me why you can't answer this question?
Attorney General Gonzales. Senator, because again, this
relates to activities that existed when I was in the White
House. Because of that with respect to your specific questions,
I will go back and see whether or not I can answer the
question.
Senator Schumer. Did the Vice President send you?
Attorney General Gonzales. Again, Senator, we were there on
behalf of the President.
Senator Schumer. Did you talk to the Vice President about
it?
Attorney General Gonzales. We were there on behalf of the
President, sir.
Senator Schumer. You will not answer that question as well,
is that correct?
Attorney General Gonzales. We were there on behalf--I'd be
happy to take back your question, and if we can respond to it,
we will.
Senator Schumer. Okay. Now, you kept referring to this
meeting of the gang of eight. Did any member of the gang of
eight direct you to go Ashcroft's hospital bed?
Attorney General Gonzales. No. In fact, I'm not sure--
Senator Schumer. Was there any discussion--
Attorney General Gonzales. No. I'm not sure that they knew
that we went.
Senator Schumer. So they had no knowledge you were doing
that?
Attorney General Gonzales. Let me put it this way. I did
not tell them that we were going to do it.
Senator Schumer. Okay. Did every member of the gang of
eight know that Comey, Ashcroft, and Muller and others were
prepared to resign over the program?
Attorney General Gonzales. Well, first of all, I'm not
aware that that is true, that saying is true. But in terms of,
I'm not sure that we got into discussions about any
resignations. The discussions centered on the fact that Mr.
Comey was unwilling to authorize the continuation of this very
important intelligence activity, and that we were there to seek
help from Congress for legislation.
Senator Schumer. Understood. But you didn't, did they know
that there was dissent within the administration on this,
within the Justice Department?
Attorney General Gonzales. I was pretty clear, quite
frankly, in making sure that they understood that the Deputy
Attorney General did not believe that the President had the
authority to authorize these activities.
I tried to paint--I didn't want to be accused in any way of
not presenting in the most forceful way that I could the
disagreement that existed. So I, yes, I think that they
understood that there was serious dissent.
Senator Schumer. Okay. But you testified to us that you
didn't believe there was serious dissent on the program that
the President authorized, and now you're saying they knew of
the dissent, and you didn't?
Attorney General Gonzales. The dissent related to other
intelligence activities. The dissent was not about the
terrorist surveillance program.
Senator Schumer. So if we asked the eight who were there,
they would say that's the case? Would they say that? Would they
say it was not about the TSP? That it was about other issues? I
thought you just testified that you brought them to talk about
that issue because you needed legislation.
Attorney General Gonzales. I can't tell you what they would
say if you asked them the questions, sir. I'm just telling you
what I recall.
Senator Schumer. Sir, we're back in the same conundrum as
always. It just doesn't seem that you're leveling here with the
American people or the committee.
Attorney General Gonzales. I don't see how I can be more
clear.
Senator Schumer. Sir, you said that they knew that there
was dissent. But when you testified before us, you said there
has not been any serious disagreement and it's about the same--
it's about the same exact--you said the President authorized
only one before.
The discussion, you see, it defies credulity to believe
that the discussion with Attorney General Ashcroft or with his
group of eight, which we can check on, and I hope we will, Mr.
Chairman, that will be yours--was about nothing other than TSP.
If it was about the TSP, you are--to this committee.
Now, was it about the TSP or not, the discussion on the
8th?
Attorney General Gonzales. The disagreement on the 10th was
about other intelligence activities.
Senator Schumer. Not about the TSP? Yes or no.
Attorney General Gonzales. The disagreement and the reason
we had to go to the hospital had to do with other intelligence
activity.
Senator Schumer. Not the TSP? Come on. If you say it's
about other, that implies not. Now say it or not.
Attorney General Gonzales. It was about other intelligence
activities.
Senator Schumer. Was it about the TSP? Yes or no, please.
That is vital to whether you are telling the truth to this
committee.
Attorney General Gonzales. It was about other intelligence
activities.
Senator Schumer. Okay. All right. Let me ask you this. Did
the gang of eight have access to the Office of Legal Counsel
opinions expressing concerns about the program's legality?
Did they know that the Justice Department Office in charge
of saying whether this program was legal or not said it's not?
Attorney General Gonzales. In essence, what they understood
was that the Department of Justice, Mr. Comey, was unwilling to
approve the continuation of these intelligence activities.
Senator Schumer. I know that. Did they have any access,
you're having a discussion here, you are asking them to approve
new legislation. Don't you think it would be extremely logical
and fair to tell them that the Office of Legal Counsel
disagreed?
Attorney General Gonzales. I think it would be equally
logical for them to assume that if the Deputy Attorney General
took that position, that perhaps the Office of Legal Counsel
might also have that same position.
Senator Schumer. All right. I know the Chairman wants to
wrap up, and I appreciate that. Just one other quick question
here.
Senator Leahy, Chairman Leahy and Senator Specter and I
have discussed some idea, that would have to go ahead with
this, of having the special prosecutor, Patrick Fitzgerald,
come testify before the committee.
Now, just last week on July 17th, the department made
available to the committee Texas U.S. attorney Johnny Sutton,
who is in the exact same position as Fitzgerald is. In other
words, Sutton testified at length about the case, about border
agents Ramos and Campion. In that case, as in this, the trial
is over, and in that case, as in this, there are appeals
pending.
Mr. Sutton testified about issues that will not affect the
appeal. So my question to you is should this committee, and
that decision is not mine, but should this committee, and given
the public interest in this case, wish to bring Patrick
Fitzgerald before us, would you have any objection?
Attorney General Gonzales. Senator, you know, I am recused
from Mr. Fitzgerald's investigation. So I'm not sure that I'd
be in a position to say one way or the other.
Senator Schumer. Who would make that decision?
Attorney General Gonzales. It would be the Deputy Attorney
General.
Senator Schumer. So the Acting Deputy Attorney General
would make that decision?
Attorney General Gonzales. No, the Deputy Attorney General,
Paul McNulty.
Senator Schumer. Paul McNulty. Okay. But you are not going
to opine whether that would be okay?
Attorney General Gonzales. I don't believe so. Again, I was
recused from that investigation.
Senator Schumer. Okay. Thank you, Mr. Chairman.
Chairman Leahy. Senator Specter.
Senator Specter. Just a few concluding comments. Attorney
General Gonzales, I would ask you to take a close look at the
functioning of your department, or perhaps consult with others
to give you an objective view as to what is happening.
The consensus appears to be that the morale is at an all
time low from what has happened. The U.S. attorneys around the
country don't know when the next shoe is going to drop,
although perhaps replacements or requests for resignations have
been tempered to slow down and perhaps even eliminated because
of the focus of this committee's inquiry.
But I would ask you to take a look at that morale issue.
Attorney General Gonzales. I will do so.
Senator Specter. And then I'd ask you to take a look at how
the department is functioning generally. I mentioned the
Oxycontin case only because it received a lot of newspaper
publicity.
The case involving the homicide where you asked for the
death penalty also received a lot of publicity. But it looks to
me candidly, Attorney General Gonzales, as if the department is
dysfunctional.
When you have many people killed and many people addicted
from a dangerous drug where there is malicious misleading of
the consumers, that constitutes malice. That is criminal
conduct.
The profits that are made from these drugs are in the
billions. So when you have even $600 million, I don't know all
the details, and this committee can't possibly run your
department. We can't possibly run your department.
I know you are recused technically, but you are still the
Attorney General. We really ought to reach an accommodation
with the administration on finishing up this investigation.
I think you would obviously be as anxious to have it
finished as anyone, perhaps more so. We have made concessions
to what the President has proposed, and I wrote to White House
counsel. You're not White House counsel anymore, and talked to
Mr. Fielding about a meeting where Chairman Conyers, Chairman
Leahy and I might talk to the President. I found dealing with
the President would move above the levers of bureaucracy to be
able to come to conclusions and come to judgments.
The transcript issue seems to me fundamental. I don't know
why any witness would want to appear before a committee on an
informal basis and not have a transcript so that someone might
contend at a later time that a false official statement was
made which carries the same penalty as perjury, 5 years. I
don't know why anyone would want that.
But if they insist on it, I'd even take that. I think that
John Conyers and Pat Leahy and Chuck Schumer and Arnold Specter
and others could find out a lot of information, even on an
informal basis. But I won't give up the Senate's right to
pursue a subpoena if we feel it necessary.
We cannot delegate that. I think back to the great
attorneys general in our history. Edmond Randolph, Washington's
attorney general, Harlen Fisk Stone, later Chief Justice of the
Supreme Court, Robert Jackson, FDR's attorney general, still
citing his opinions on a wide variety of subjects.
I would just ask you to consider the interest of the
Department of Justice and the interest of the American people,
because your department, next to the Department of Defense, is
the most important department in the government. Thank you, Mr.
Chairman.
Chairman Leahy. Thank you, Senator Specter. I find this
frustrating. I have a lot more questions, and I find it so
difficult to get answers, I may or may not submit them for the
record.
But I think the tragic thing here is the ongoing crisis in
the ongoing crisis of leadership of the Justice Department is
the undermining of good people in the crucial work the
department does.
There are thousands of honest, hard working prosecutors and
civil servants. They work every day. They deter crime or
prevent crime or uncover crime.
I know in my years as a prosecutor, the admiration I had
for them. I've worked with them for decades since, both
Republican and Democratic administrations, the professionals,
the career people.
I have never had any one of them say anything to me that
indicates one way or the other what their political feelings
are. I just got straight answers.
But I, you say morale is good. It is not, and I'm not
trying to put words in your mouth. Let me just say this. You
come here seeking our trust. Frankly, Mr. Attorney General,
you've lost mine. You've lost mine. This is something I have
never said to any cabinet member before, even some of whom I've
disagreed with greatly.
I hope you can regain the trust of the hardworking men and
women who are at the department. They deserve better. Now, once
a government shows a disregard for the independence of the
justice system and the rule of law, it is very hard to restore
people's faith.
Any prosecutor will tell you when they go into court, they
carry with them the credibility of their office. If that
credibility is lost, it's an uphill battle the whole way
through.
This Committee will do its best to try to restore
independence and accountability, and commitment to the rule of
law, to the operations of the Justice Department. I'll be
joined by a lot of the Senators, Republican and Democratic.
I take no pleasure in saying this, but I am seriously
gravely disappointed. Thank you. If you wish to say something--
then we stand adjourned.
[Whereupon, at 1:19 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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