Alberto Gonzales Files -Feinstein to Gonzales Letter

8/14/2019 Alberto Gonzales Files -Feinstein to Gonzales Letter

1/11

DIANNE FEINSTEINCALIFORNIA COMMITTEE ON APPROPRIATIONSCOMMITTEE ON ENERGY AND NATURAL RESOURCESCOMMITTEE ON THE JUDICIARYCOMMITTEE ON RULES AND ADMINISTRATION

SELECT COMMITTEE ON INTELLIGENCE

~ntteb~tate5 ~enateWASHINGTON, DC 20510-0504

http://feinstein.senate.gov

January 30,2006

The Honorable Alberto GonzalesAttorney GeneralDepartment of Justice950 Pennsylvania Avenue, NWWashington, DC 20530-0001

By U.S.Mail and Electronically

Dear Mr. Attorney General:I am deeply concerned by recent revelations concerning domesticelectronic surveillance and am looking forward to the Judiciary Committeehearing to discuss the authorities under which it has been conducted.Certainly all branches of governmentmust hold as their highest priority

protecting the nation against terrorist attack; but underlying that imperativeis the importance of following the rule of law.To assess the Administration's argument that the President has theinherent authority to authorize this surveillance, the Committeewill need toreview documents relating to the program, including the Presidential orderdirecting that the program be established, the legal memoranda upon whichthe President relied, and the text of the "45-day reviews" which have beencited by the President.Further, the Committee cannot assess the legality of the surveillancewithout understanding certain aspects of the program. Without getting intothe technical details of the intelligence collection,Members must understandexactly what surveillance activitieshave been conducted,how the NationalSecurityAgency selected targets of the surveillance, the number of U.S.Persons covered, how and by whom the resulting intelligencewas handled,and what actions were taken as a result of such intelligence.

1


2/11

For our February 6, 2006, hearing to be productive, Members musthave access to this information in advance. I therefore request that theCommittee be provided with as much of this information as possible on anunclassified basis, and that Members and appropriately cleared staffhavereasonable access to the relevant classified documents and information.

In addition to this general request, I have attached a set of writtenquestions which cover many of the issues which I hope will be exploredduring the hearing. I would greatly appreciate if you would be prepared toaddress these questions in detail at the hearing. To the extent you are able toanswer these questions in advance of the hearing, it would be muchappreciated. Further, some of the questions reference specific requests fordocuments. I would appreciate if you could forward such documents priorto the hearing, and if classified, through the Office of Senate Security.

I appreciate your cooperation with this request and look forward toworking with you in the coming weeks and months.

Sincerely,

~ '~- ~ ~\-1A-.,.

Dianne FeinsteinUnited States SenatorDF:sac

Encl: Questions to the Attorney General

2


3/11

SenatorDianne FeinsteinQuestions to the AttorneyGeneral in advance ofSenate Judiciary Committeehearings on"Wartime Executive Power andthe NSA's SurveillanceAuthority."

January 30, 20061. I have been informedby formerMajority Leader Senator TomDaschle that theAdministration asked that languagebe included in the "JointResolution to

Authorize the useof UnitedStatesArmed Forces against those responsiblefor therecent attacks launched against the UnitedStates" (P.L. 107-40)(hereinafter"theAuthorization" or "AUMF") which would add the words "in the United States" toits text, after thewords "appropriate force.". Who in the Administration contacted SenatorDaschle with this request?

Pleaseprovide copies of any communicationreflecting this request, aswell as anydocuments reflecting the legal reasoningwhich supported thisrequest for additional language..

2. Did any Administration representativecommunicate to anyMember of Congressthe view that the languageof the Authorization as approvedwould provide legalauthority for what otherwise would be a violation of the criminalprohibition ofdomestic electronic collectionwithin the United States?. If so,who in theAdministrationmade such communications?

Are there any contemporaneousdocumentswhich reflect that viewwithinthe Administration?

.3. According to Assistant AttorneyGeneralWilliamMoschella's letter of December22,2005, and the subsequent"White Paper," it is the viewof the Department ofJustice that theAuthorization"satisfies section [FISAsection] 109's requirementfor statutory authorization of electronic surveillance."l

. Are there other statuteswhich, in the view of the Department, have beensimilarly affectedby the passage of the Authorization?If so, please provide a comprehensive list of these statutes.Has thePresident, or any other senior Administration official, issued anyorder or directive based on the AUMFwhich modifies, supersedes oralters the applicationof any statute?

..

4. TheNational SecurityAct of 1947, as amended, provides that "[a]ppropriatedfunds available to an intelligenceagencymay be obligated or expended for an1 Letter, AssistantAttorney GeneralWilliamsMoschella to Senator PatRoberts, et aI., December 22, 2005,at p. 3 (hereinafter "Moschella Letter")

1


4/11

intelligence or intelligence-relatedactivity only if. .. (I) those fundswerespecifically authorizedby the Congress for use for such activities...,,2 It appearsthat the domestic electronic surveillanceconductedwithin the United States bythe National SecurityAgencywas not "specifically authorized," and thus may beprohibited by the National SecurityAct of 1947.. What legal authoritywould justify expendingfunds in support of thisprogram without the required authorization?

5. The Constitutionprovides that "[n]o money shall be drawn fromthe Treasury, butin consequenceof appropriationsmade by law.,,3 Title 31, Section 1341 (theAnti-DeficiencyAct) provides that "[a]n officeror employee of the United StatesGovernment. .. may not- make or authorize an expenditure or obligationexceeding an amount available in an appropriationor fund for the expenditureorobligation," and Section 1351of the sameTitle adds that "an officer or employeeof the United States Governmentor of the District of Columbiagovernmentknowingly and willfully violating sections 1341(a)or 1342of this title shall befined not more than $5,000, imprisonedfor not more than 2 years, or both." Insum, the Constitutionprohibits, andthe law makes criminal, the spending offunds except those funds appropriatedin law.

. Were the fundsexpended in support of this program appropriated?If yes,which law appropriatedthe funds?Please identify, by name and title, what "officer or employee" of theUnited Statesmade or authorized the expenditure of the funds in supportof this program?

..

6. Are there any other intelligenceprograms or activities, induding, but not limitedto, monitoring internet searches, emails andonline purchases, which, in the viewof the Department of Justice, have been authorizedby law, although kept secretfrom some members of the authorizing committee?. If so, please list and describe suchprograms.

7. Are there any other expenditureswhich have been made or authorizedwhich havenot been specifically appropriatedin law, and which have been kept secret frommembers of the AppropriationsCommittee?

. If so, please list and describe suchprograms.8. At a White House press briefing, onDecember 19,2005, you stated that that theAdministration did not seek authorization in law for thisNSA surveillance

2 National SecurityAct of 1947, as amended, Section 504, codifiedat 50 D.S.C. 414.3 U.S. Constitution, Article I, Section 7.

11


5/11

program because "you were advised that that was not. ...something [you] couldlikely get" fromCongress.. What were your sources of this advice?

As a matter of constitutional law, is it the view of the Department that thescopeof the President's authority increaseswhen he believes that thelegislative branchwill not pass a law he approves of?

.

9. The Department of Justice's position, as explained in the Moschella Letter and thesubsequentWhite Paper, is that even if the AUMF is determinednot to providethe legal authority for conductwhich otherwisewould be prohibited by law, thePresident's "inherent" powers as Commander-in-Chiefprovide independentauthority.. Is this an accurate assessmentof the Department's position?

10. Based on the Moschella Letter and the subsequentWhitePaper, I understand thatit is the position of the Departmentof Justice that the National SecurityAgency,with respect to this program of domestic electronic surveillance, is functioning asan element of the Department of Defense generally, and as one of a part of the"Armed Forces of the United States," as referred to in the AUMF.. Is this an accurate understanding of the Department's position?

11.Article 8 of the Constitutionprovides that the Congress "shall make Rules for theGovernment and Regulation ofthe land and naval forces." It appears that theForeign Intelligence SurveillanceAct (FISA), as applied to the National SecurityAgency, is precisely the type of "Rule" provided for in this section.. Is it the position of the Department of Justice that the President'sCommander-in-Chiefpower is superior to the Article 8 powers ofCongress?

Does the Department of Justice believe that if the President disagreeswitha law passed by Congress as part of its responsibility to regulate theArmed Forces, the law is not binding?.

12. On January 24,2006, during an interviewwith CNN,you said that "[a]s far as I'mconcerned,wehave briefed the Congress... [t]hey're aware of the scope of theprogram.". Please explain the basis for the assertion that I was briefed on thisprogram, or that I am "aware of the scope of the program."

111


6/11

13. It appears fromrecent press reports thatMr. Rove has been briefed about thisprogram,which, as I understand it, is consideredtoo sensitive to brief to Senatorswho aremembers of the Senate IntelligenceCommittee.. Who decided thatMr. Rovewas to be briefed about the program, and what

is his need-to-know?Is the program classifiedpursuant to Executive Order 12958,and if so,whowas the classifying authority, and under what authority provided inExecutive Order 12958was the classification decisionmade?Howmany executivebranch officials havebeen advised of the nature,scope and content of the program? Pleaseprovide a list of their names andpositions.Howmany individualsoutside the executivebranch have been advised ofthe nature, scope and content of the program?Please provide a list of theirnames and positions.

.

.

.

14.The AUMF authorizes the President to use "all necessary and appropriate forceagainst those nations, organizations, or persons he determines planned,authorized, committed, or aided the terrorist attacks that occurredon September11,2001, or harbored such organizationsor persons, in order to prevent any futureacts of internationalterrorism against theUnited Statesby such nations,organizations or persons.". What do you believe are the conditionsunder which the President'sauthority to conduct theNSA programpursuant to the Authorizationwould expire?

15. The Department of JusticeWhite Paper states that the program is usedwhen thereis a "reasonable basis" to concludethat one party is a member of al Qaeda,affiliatedwith alQaeda, or a member of an organization affiliatedwith alQaeda.. Can the programbe used against a personwho is a member of anorganization affiliatedwith al Qaeda, but where the organizationhas noconnection to the 9/11 attacks themselves?

Can you define the terms "reasonablebasis" and "affiliated?" Are thereany examples, for instance, fromcriminal law that can describe the"reasonablebasis" standardthat is being used for the NSA program?What about "affiliated?"Is it comparable to the "agentof' standard in FISA?Can the program be used to prevent terrorist attacksby an organizationother than al Qaeda?

.

..16. In addition to open combat, the detention of enemy combatants and electronicsurveillance,what else do you considerbeing "incident to" the use ofmilitaryforce? Are interrogationsof captives "incident to" the use ofmilitary force?

IV


7/11

17. The program is reportedly defined aswhere one party is in the US. and one partyin a foreign country. Regardlessof how the program is actuallyused, does theAUMF authorize the President to use the program against calls or emails entirelywithin theUS.?18. FISA has safeguard provisions for the destruction ofinfonnation that is notforeign intelligence. For instance, albeitwith some specific exceptions, ifnoFISA order is obtainedwithin 72hours,material gatheredwithout a warrant isdestroyed.

. Are there procedures in place for the destruction of infonnation collectedunder theNSA program'that is not foreign intelligence?If so, what are the procedures?Who detennines whether the infonnation is retained?..19. The DOJ White Paper relies on broad language in the preamble that is contained

in both the AUMF and theAuthorizationfor the Use of Military Force AgainstIraq as a source of the President's authority.. Does the IraqResolutionprovide similar authority to the President toengage in electronic surveillance? For instance, would it have beenauthorized to conduct surveillance of communicationsbetween an

individual in theUS. and someonein Iraq immediately after the invasion?20. In a December 17,2005, radio address the President stated, "I authorized theNational SecurityAgency.. .to intercept the internationalcommunications ofpeople with known links to al Qaeda and related terrorist organizations."

. What is the standard for establishinga link between a terroristorganization and a target ofthis program?Howmany such communicationshave been intercepted during the life ofthis program? Howmanydisseminated intelligence reports have resultedfrom this collection?Has the NSA interceptedunder this program any communicationsbyjournalists, clergy, non-governmental organizations (NGOs) or familymembers ofUS. military personnel? If so, forwhat purpose, andunderwhat authority?

.

.

21. In a December 17, 2005, radio address the President stated, "The activities Iauthorized are reviewed approximately every45 days... The review includesapprovalby our Nation's top legal officials, including the Attorney General andthe Counsel to the President.". AsWhite House Counsel during the first 4 years this program wasimplemented,were you aware of this program and of the legal arguments

v


8/11

.supporting it when this Committeeconsidered your nomination to beAttorney General?Who is responsible for determiningwhether to reauthorize this program,and uponwhat basis is this determinationmade?

22. In a Press Briefing onDecember 19, 2005, you said that you "believe thePresident has the inherent authorityunder theConstitution, as Commander-in-Chief, to engage in this kind of activity [domestic surveillance]." This authorityis further asserted in the Department of JusticeWhite Paper of January 19, 2005.. Has the President ever invoked this authority,with respect to any activityother than theNSA surveillanceprogram?

Has any other order or directive been issuedby the President, or any othersenior administrationofficial, based on such authoritywhich authorizesconductwhichwould otherwise be prohibitedby law?i. Can the President suspend (in secret or otherwise) the applicationof Section 503 of theNational SecurityAct of 1947(50US.C.413(b)),which states that "no covert actionmay be conductedwhich is intended to influenceUnited Statespolitical processes,public opinion,policies ormedia?"1. If so, has such authority been exercised?ii. Can the President suspend (in secretor otherwise) the applicationofthe Posse ComitatusAct (18 US.C 1385)?1. If so, has such authority been exercised?iii. Can the President suspend (in secret or otherwise) the applicationof 18US.C. 1001,which prohibits "themaking of false statementswithin the executive, legislative, orjudicial branch of theGovernmentof the United States."1. If so, has such authority been exercised?

.

23. Had the Department of Justice adopted the interpretationof the AUMF asserted inthe Moschella letter and subsequentWhite Paper at the time it discussed the USA-Patriot Act withmembers of Congress? That act substantially altered FISA, andyet, tomy knowledge, there was no discussion of the legal conclusions you nowassert- thattheAUMFhastriggeredthe "authorizedbyotherstatute"wordingofFISA.. Please provide any communications, internal or external,which are

contemporaneousto the negotiation of the USA-PatriotAct, which containinformationregarding this question.24. The USA-PatriotAct reauthorizationbill is currently being consideredby theCongress. Among the provisions at issue is Section 215, which governs thephysical search authorizationunder FISA. Does the legal analysisproposed bythe Department also apply to this section of FISA? If so, is the Department'sposition that, regardless ofwhether the Congress adopts the pendingConference

VI


9/11

Report, the Senate bill language, or some other formulation, the President mayorder the applicationof a different standardor procedure based on the AUMF orhis Commander-in-Chiefauthority?. If so, is there any need to reauthorize those sectionsof the USA-Patriot

Act which authorize domestic surveillance?25. Public statementsmadeby you, aswell as the President, imply that this programis used to identify terrorist operativeswithin the United States. Have any suchoperatives in fact been identified? If so, have these individuals been detained, andif so, where, and under what authority? Have any been killed?

. The arrest and subsequentdetentionof Jose Padilla is, tomy knowledge,the last public acknowledgmentof the apprehensionof an individualclassified as an "enemycombatant"within the United States. Have therebeen any other people identified as an "enemy combatant" and detainedwith the United States, and if so, what has been donewith theseindividuals?

26. Senator Roberts has stated that the program is limited to: "when we knowwithin aterrorist cell overseas that there is a plot and that plot is very close to itsconclusion or that plot is very close to being waged againstAmerica -- now, if acall comes in from anAlQaida cell and it is limitedto that where we have reasonto believe that they are planning an attack, to anAmericanphone number, I don'tthink we're violating anybody'sFourth Amendment rights in terms of civilliberties.,,4

. Is the program limited to such imminent threats against the United States,orwhere an attack is being planned? Is this an accurate description of theprogram?27. In a speechgiven inBuffalo,New Yorkby the President, inApril 2004, he said:"Now, by the way, any time you hear the United Statesgovernment talking aboutwiretap, it requires -- a wiretap requires a court order.Nothing has changed, bythe way.Whenwe're talking about chasing down terrorists,we're talking aboutgetting a court order beforewe do so. It's important for our fellowcitizens tounderstand, when you think Patriot Act, constitutionalguarantees are in placewhen it comes to doing what is necessary to protect our homeland, because we

value the Constitution."s. Is this statement accurate?

4Senator PatRoberts, CNNLate Edition withWolf Blitzer, January 29,20065Information Sharing, Patriot Act Vital to Homeland Security,Remarksby the President in a Conversationon the USA Patriot Act, KleinshansMusic Hall, Buffalo,New York, April 20, 2004

Vll


10/11

28. According to press reports, the Administrationat some point determined that theauthoritiesprovided in the FISAwere, in their view, inadequate to support thePresident's Commander-in-Chiefresponsibilities.. At what point was this determination reached?

Who reached this determination?If such a determination had been reached,why did the Administrationconceal the view that existing lawwas inadequate from the Congress?..

29. Based upon press reports, it does not appear that the NSA surveillanceprogramat issue makes use of any intelligence sources and methods which have not beenbriefed (in a classified setting) to the IntelligenceCommittees. Other than theadoption of a legal theorywhich allows the NSA to undertake surveillancewhichon its facewould be prohibited by law,what about this program is secret orsensitive?

. Is there any precedent for developing a body of secret law such as hasbeen revealed by last month's New York Times article about the NSAsurveillanceprogram?30. At a public hearing of the Senate/HouseJoint Inquiry, then-NSADirectorHaydensaid: "My goal today is to provide you and the American peoplewith asmuchinsight as possible into three questions: (a) What did NSA knowprior toSeptember 11th, (b) what havewe learned in retrospect, and (c) what have wedone in response? I will be as candid asprudence and the law allow in this opensession. If at times I seem indirect or incomplete, I hope that you and the publicunderstand that I have discussed our operations fully and unreservedly in

earlier closed sessions" (emphasis added).6. Under what, if any, legal authority did General Haydenmake thisinaccurate statement to the Congress(and to the public)?31. Were any collection efforts undertaken pursuant to this programbased oninformation obtainedby torture?

. Was the possibility that information obtained by torture would be rejectedby the FISAcourt as a basis for grantinga FISAwarrant a reason forundertaking this program?

6 Statement for theRecord by Lieutenant GeneralMichael V. Hayden,USAF, Director,National SecurityAgency/Chief. Central Security Service,Before the Joint Inquiry of the Senate SelectCommittee onIntelligence and theHouse PermanentSelectCommitteeon Intelligence, 17October 2002, availableathttp://intelligence.senate.gov/021Ohrg/021017/hayden.pdf

V111


11/11

32. If the President determined that a truthful answer to questions posed by theCongressto you, including the questions askedhere, would hinder his ability tofunction as Commander-in-Chief,does the AUMF, or his inherentpowers,authorize you to provide false or misleading answers to such questions?

IX

Alberto Gonzales Files -Feinstein to Gonzales Letter

Documents

Transcript of Alberto Gonzales Files -Feinstein to Gonzales Letter