Alberto Gonzales Files -Feinstein to Gonzales Letter

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Transcript of Alberto Gonzales Files -Feinstein to Gonzales Letter

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    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.

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    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

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    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")

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    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.

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    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