Gonzales on Hot Seat: Senators Probe Terror Program, DOJ Oversight

Committee's top Republican asks Gonzales, 'Is Your Department Functioning?'

February 11, 2009, 8:09 PM

July 24, 2007— -- Attorney General Alberto Gonzales returned to the Capitol Hill hot seat Tuesday, facing pointed questions from senators on issues ranging from the domestic spying program to the firing of U.S. federal prosecutors to his personal judgment.

Out of the gate, Sen. Arlen Specter, R-Pa., the ranking member of the Senate Judiciary Committee, expressed his displeasure with the embattled attorney general.

Citing a list of issues that "goes on and on," Specter asked, "Is your department functioning? Do you review these matters? How many matters are there which do not come to our attention because you don't tell us and the newspapers don't disclose them?"

And the hot-button issue of the firing of eight U.S. attorneys last year became a sidebar to the controversy over the National Security Agency's eavesdropping program and other intelligence issues.

Much of the hearing focused on Gonzales' infamous 2004 trip to George Washington University Hospital with then-White House chief of staff Andy Card to have then-Attorney General John Ashcroft authorize a secret intelligence program, despite having ceded his powers to then-Deputy Attorney General James Comey.

Tuesday's hearing, however, seemed to produce more questions than answers.

In May, Comey provided dramatic testimony to Congress about racing to the hospital to get to Ashcroft, who was in hospital recovering from surgery from pancreatitis.

"I was angry," Comey testified. "I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general."

Specter expressed his dismay over the event Tuesday, telling Gonzales: "You're going to the hospital of the attorney general, who's no longer in power -- he's 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."

Describing why they needed to talk to Ashcroft, Gonzales said the attorney general could have reclaimed his powers, "and he could always reclaim that ... there are no rules."

Gonzales indicated that Ashcroft had previously authorized the program, noting, "We believe we had the approval for these activities."

He also testified that there was White House documentation on the program, which he brought with him to the hospital.

Gonzales said that at a White House situation room meeting March 10, 2004, the administration advised top congressional leadership and the heads of the intelligence committees, known as the Gang of Eight, that this secret program would no longer continue because the Justice Department would not authorize it. Gonzales said that the members of Congress wanted to continue the program, and this prompted his trip to the hospital with Card.

"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, Gonzales said.

Gonzales tried to elucidate the details of the mysterious trip, but his technical explanation seemed to confuse the senators and reporters covering the hearing. Sen. Charles Schumer, D-N.Y., asked the attorney general to respond "yes" or "no" on whether it involved the National Security Agency's terrorist surveillance program, Gonzales would only say, "It involved other intelligence activities."

The response could indicate that the TSP was initially much wider than has been previously disclosed by the administration. The program, which intercepts al Qaeda communications with individuals inside the United States without a court order, is due for more scrutiny by the Judiciary and Intelligence Committees as they seek to update the Foreign Intelligence Surveillance Act.

Schumer produced a large chart with previous statements by the attorney general when he testified February 6, 2006. "I'm here only testifying about what the president has confirmed. And with respect to what the president has confirmed, I do not believe that these DOJ officials that you're identifying had concerns about this program."

Gonzales has previously clarified testimony. In a May 17, 2007, letter Gonzales wrote to Sen. Richard Durbin, D-Ill., "It is that particular operation, which had been publicly described by the president, that we have referred to as the Terrorist Surveillance Program and that I was addressing in my testimony. At the same time, I acknowledged that there had been disagreements about other intelligence activities, as one would expect. My testimony on these points was and remains accurate."

Specter alluded to the fact the committee would examine if Gonzales has lied to Congress. "My suggestion to you is that you review your testimony very carefully," Specter said. "The chairman's already said that the committee's going to review your testimony very carefully to see if your credibility has been breached to the point of being actionable."

Two members of the Senate Intelligence Committee, Sens. Russ Feingold, D-Wis., and Sheldon Whitehouse, D-R.I., who have been briefed on the matter, indicated Gonzales was misleading the committee.

"When you look at all these incidents together, it's 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?" Feingold asked.

"Obviously, there have been instances where I have not met that standard, and I've tried to correct that," Gonzales admitted.

Feingold also said, "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."

Whitehouse said: "If there is a kernel of truth in what you've 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."

Although the Justice Department has recently set up new internal safeguards on FISA wiretaps and FBI National Security Letters in DOJ's National Security Division, Judiciary Chairman Sen. Patrick Leahy said, " [There's] no involvement by the courts, no report to Congress and no other outside check, essentially translates to 'trust us,' I am not willing to accept a statement of trust us. I don't trust you."

The hearing also exposed a new memorandum signed by Gonzales May 4, 2006. The memo expanded communication about DOJ investigations to include the vice president and the counsel to the vice president. The former memorandum by John Ashcroft clarifying communications with DOJ officials and the White House did not include the vice president's counsel.

Whitehouse asked Gonzales, showing him the memo, "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, ongoing matters?"

"As a general matter, I would say that that's a good question. ...I'd have to go back and look at this." Gonzales said about the memo bearing his signature, amid laughter from the audience.

Gonzales, the man who once called the Geneva Conventions "quaint," said, "I wish we could close Guantanamo." He said that there was a debate about what to do with the detainees and the complex issue of folding them into the U.S. criminal justice system.

Under questioning about torture, Gonzales told Sen. Ted Kennedy, D-Mass., "There are certain activities that are clearly beyond the pale and that everyone would agree should be prohibited. And 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. ... It's for those reasons that I can't discuss them in the public."

The senators asked about a recent Denver Post op-ed by John Koppel, a career DOJ attorney. In his op-ed Koppel wrote, "As a longtime 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."

Whitehouse told Gonzales: "It appears you are the problem."

Gonzales responded: "I disagree, if you look at the output of the department. ?I am working hard to work with the committee."

"The hardworking men and women of the department deserve better," Leahy said. "I'm seriously, gravely disappointed."

Before he gaveled the hearing to a close, Leahy asked the attorney general if he wished to respond. The attorney general only shook his head.

Leaving the room, Gonzales was moved past protestors from the anti-war group Code Pink to taunts of "Resign" and "Liar."

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