Alberto Gonzales Files - judiciary house gov-dojnsa

8/14/2019 Alberto Gonzales Files - judiciary house gov-dojnsa

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F.JAMES SEN.SENBRENNER. JR., WisconsinCHAIRMANJOHN CONYERS, JR., MichiganRANKINGMINORI1Y MEMBER

HENRY J . HYDE. I ll ino isHOWARD COBLE. Nor th C ar ol in aLAMAR S . SMITH. T ex asELTON GALLEGLY, Cal if or ni aBOB GOODLATTE. Vir gini aS TEVE CHABOT , Ohi oDANIEL E . LUNGREN. Cal if or ni aWILLIAM L. JENKINS , Tenness eeCHRIS CANNON , U tahSP ENCER BACHUS, A la bamaBOB INGLI S. So ut h C ar ol in aJ OHN N . HOSTETTLER , I nd ia naMARK GREEN, Wis cons inRIC KELLER. FloridaDARRELL ISSA. CaliforniaJEFF FLAKE, Ari zonaMIKE PENCE, I nd ianaJ. RANDY FORBES. V ir gi ni aS TEVE K ING, I owaTOM FEENEY , F lor id aTRENT FRANKS. A ri zo naLOU IE GOHMERT . T ex as

ONE HUNDRED NINTH CONGRESSHOWARD L. BERMAN, CaliforniaR ICK BOUCHER . Vir gini aJERROLD NADLER, N ew YorkROBERT C. SCOTT. V ir gi ni aMELVIN L. WATT. Nort h C ar ol in aZOE LOFGREN. Cal if or ni aS HE ILA JACKSON LEE , T ax asMAXINE WATERS, Cal if or ni aMARTIN T. MEEHAN. Mas sachus et tsWILLIAM D. DELAHUNT. Mas sachus et tsROBERT WEXLER, F lo ridaANTHONY D. WEINER, New YorkADAM B.SCHIFF, CaliforniaL INDA T. SANCHEZ. Cal if or ni aADAM SMITH. Was hing tonCHR IS VAN HOLLEN, Mar yl an d

Q:ongressfthe~nited ~tatesiltousrofRrprrsrntatiorsCOMMITTEEON THEJUDICIARY2138 RAYBURN HOUSE OFFICE BUILDING

WASHINGTON, DC 20515-6216(202) 225-3951hnp://www.house.gov/judiciary

February 8, 2006The Honorable Alberto GonzalesAttorney GeneralU.S. Department of Justice950 Pennsylvania Avenue, N.W.Washington, DC 20530DearAttorneyGeneralGonzales:

As you are aware,on December 16,2005, the New York Times reported that the Presidentordered theNational SecurityAgency (NSA) to conductwarrantlesswiretaps on internationalcommunicationsbetween suspectedterrorists and individuals within the United States.I OnDecember 17,2005, the President addressed the Nation in his weekly radio address andresponded to the New Yorktimes article.2 President Bush explained that "To fight the war onterror, I amusing authority vested in me by Congress, including the Joint Authorization for Useof MilitaryForce,which passed overwhelmingly in the first week after September the 11thoI'malso using constitutional authority vested in me as Commander-in-Chief."3He highlighted thefact that this program is continuously reviewed. "The activities authorized are reviewedapproximately every 45 days. Each review is based on a fresh intelligenceassessment of terroristthreats to the continuity of our government and the threat of catastrophicdamage to ourhomeland. During each assessment,previous activities under the authorization are reviewed.The review includes approvalby our nation's top legal officials, including the AttorneyGeneraland the Counsel to the President."4

I See JamesRisenand Eric Lichtblau,BushLets u.s. Spy on Callers WithoutCourts,N.Y.TIMES,Dec. 16,2005, atAI.2See Radio Address of the President to the Nation, Dec. 17,2005,

http://www.whitehouse.gov/news/releases/2005/l2/20051217.html (last visitedFebruary 2, 2006).3Jd

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TheHonorableAlberto GonzalesFebruary 8, 2006Page 2 of 14

The Committee on the Judiciary has received two referrals of resolutions of inquiryregarding the Department of Justice's involvement in the NSA program.5 As the House ofRepresentatives' Committee of jurisdiction over "subversive activities affectingthe internalsecurity ofthe United States" under RuleX(l)(19) of the Rules of the House of Representatives,the House Committee on the Judiciary is responsible for conducting oversight on issues or claimsof domestic surveillance. Additionally, the Committee hasjurisdiction of issuesrelated to civilliberties under Rule X(l)(5). As part of the Committee's oversight of the use of this program,please respond to the following questions byMarch 2, 2006.Legal Authority1. The Foreign Intelligence SurveillanceCourt of Review, as the CongressionalResearchService (CRS) concedes in its 2006 examination of the NSA program, "is a court ofappeals and is the highest court with express authority over [theForeign IntelligenceSurveillanceAct,] FISA to address the issue, its reference to inherent constitutional

authority for the President to conduct warrantless foreign intelligence surveillancemightbe interpreted to carry considerableweight.,,6The FISACourt of Review issued anopinion in 2002 that stated "all the other courtsto have decided the issue, held that thePresident did have inherent authority to conductwarrantless searchesto obtain foreignintelligence information. . .. We take for granted that the President does have thatauthority. . . .,,7The CRSmemorandumdated January 5, 2006, does not dispute the factthat all other courts support the proposition that the President has inherent authority toconduct warrantless searches. Instead, the CRS memorandumappears to attempt todownplay these precedents with a statement that the FISACourt of Review's "allusion tothe holdingsof 'all the other courts to have considered the issue,' appears to have beenthe caseswhich pre-date FISA's passage or which address pre-FISA surveillances."ga. Have any courts addressed this issue since the enactment of FISA?b. Have any courts since the enactment of FISA concluded that the President did nothave inherent authority?c. Does reliance on pre-FISA cases by the FISACourt of Review "[undercut] the

5H.Res. 643 (l09thCong.); H. Res. 644 (l09thCong.)6ElizabethB. Bazan and Jennifer K. Elsea, 30 CongressionalResearch ServiceMemorandum:Presidential

Authorityto ConductWarrantlessElectronic Surveillanceto GatherForeign Intelligence Information,Jan. 5,2006[hereinafterCRSMemo].7 In reSealed Case, 310 F.3d 717, 742 (FISA Ct. ofReview2002).g31 CRSMemo.

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The Honorable Alberto GonzalesFebruary8, 2006Page 3 of 14

persuasive force,,9of the conclusion that the president has inherent constitutionalauthority to conductwarrantless surveillance?2. In holding that the President has inherent authority to conduct warrantless surveillance,did any of the cases concludethis inherent authority did not arise fromthe Constitution?3. Isthere legal authority to supportthe proposition drawn from the FISACourt of Review'sdecision in In re Sealed Case,10 that the President continues to have the power toauthorizewarrantless electronic surveillanceto gather foreign intelligenceoutside theFISAframework?4. In In re Sealed Case the Court of Review states, in part, "Even without taking intoaccount the President's inherent constitutionalauthority to conduct warrantless foreignintelligence surveillance. . . ."11The January 5, 2006 CRS memorandumasserts that oneapproach to interpretingthis and other Court of Review statementswould be to interpretthem "as referring to the President's inherent authority to conduct such surveillancesoutside the scope of 'electronic surveillance' under FISA. In essence, the court'sstatementswould then be seen as a reference to presidential authority over those areas ofNSA activitieswhich were intentionallyexcluded fromFISAwhen it was enacted. .Alternatively, it might be argued that the court's statementsmay refer to continuingexercise of inherent presidential authoritywithin the FISA structure,which the Court ofReview found to be constitutional."12Does the President adhere to either of these

approaches to support the program?5. Some have questioned whether President Carter's signature on FISA in 1978,togetherwith his signing statement,was an explicit renunciation of any claim to inherentExecutive authority under Article II of the Constitution to conductwarrantlesssurveillance.

a. Does Congress havethe authority to renounce any inherent presidential authority?b. Is there any case law that supports or proscribes Congress' ability to renounceinherent presidentialauthority?

9 32 CRSMemo.10See 310 F.3d at 746.

II !d.

1232 CRS Memo.


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The Honorable Alberto GonzalesFebruary 8, 2006Page 4 of 14

6. Has any other President held that the President has this inherent authority? If so, has anyother President used such an authorityprior to and after the enactment of FISA?7. The Department of Justice has stated that Congress has confirmedand supplemented thePresident's inherent authority by statute through the Authorization for the Use of MilitaryForce (AUMF).13Please explain specificallyhow the AUMF has "confirmed andsupplemented"14he President's inherent authoritywith respect to warrantlesssurveillance.8. On December 19,2005, USAToday reported that the President's executive order that

authorized the surveillance program represented a "dramatic shift from restrictions ondomestic spying imposed after exposure in the mid-1970s ofNSA operations againstU.S.citizens.,15a. Is this claim substantiated?b. Have previous Administrations, at the very least, recognized the President'sConstitutional duty to authorize similar programs related to national security?c. The same article asserted that the CommunicationsAct of 1934aswell as the

U.S. Criminal Codehave provisions that limit or ban the interceptionof electroniccommunications. How do these laws effect the President's prerogative toauthorize theNSA program?9. In a January6, 2006 letterfromProfessor LaurenceTribe to CongressmanConyers, theProfessor states that theNational SecurityAgencyprogram "in question, far from beingauthorized by Congress, flies in the face of an explicit congressionalprohibition and istherefore unconstitutionalwithout regard to the FourthAmendment. . .. The inevitable

conclusion is that the AUMFdid not implicitlyauthorize what the FISA expresslyprohibited. It follows that the presidential program of surveillanceat issue here is aseparationof powers as grave an abuse of executive authority as I can recall ever havingstudied."16Do you agreethat FISA "expressly prohibits" the specific activities authorized

1541). 13See Pub. L.No. 107-40, 2(a), 115Stat. 224, 224 (Sept. 18,2001) (reported as a note to 50U.S.C.A.

14Department of Justice, 2 LEGAL AUTHORITIES SUPPORTINGTHE ACTIVITIESOFTHENATIONAL SECURITYAGENCY DESCRIBED BYTHE PRESIDENT, Jan. 19,2006.

15John Diamond, NSA's Surveillance of Citizens Echoes 1970s Controversy; Bush Denies Post-9111 OrderClashes with 1978 Law Requiring Warrants, USAToday, Dee 19,2005, at A6.16Letter ITomLaurence Tribe to Representative John Conyers (Jan. 6, 2006), at 2.


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under this program?to. IfFISA were read to prohibit the President from taking steps he deemed necessary to

protect the United States duringwartime,would the constitutionalityof that Act be calledinto question? Please explain in detailwhat constitutional problemsor questions mayarise ifit were determined that FISA, separatelyor in conjunction with the AUMF,prohibits the President from authorizing the terrorist surveillanceprogram.

11. The January 5, 2006 CRS Memorandum quotes a December 22, 2005 letter from the DOJOffice of LegislativeAffairs that says, "But under establishedprinciples of statutoryconstruction, the AUMFand FISAmust be construed in harmony to avoid any potentialconflict between FISAand the President's Article II authority as Commander in Chief."The memorandum, however, concludes, on this point, that "It is unclear how FISAandthe AUMF are seen to collide. Principles of statutory constructiongenerally provideguidance for interpretingCongress's intent with respect to a statute where the text isambiguous or a plain reading leads to anomalous results; and where possible, a statutethat might be read in such a way as to violate the Constitution is to be construedto avoidthe violation. However, such principles are onlyto be appliedwhere there is a genuineambiguityor conflict between two statutes, and where there is somepossible reading thatmight avoid a conflict. . . ."17A contraryview has been presented by constitutionalscholar Robert Alt, that "if for somereason a court finds that there is a conflict betweenthe AUMFand FISA, then standard rules of statutory interpretationsuggest that theAUMFmust control. Specifically, the AUMF contains a savings clause, making clearthat the statute does not intend to impair the operation of the War Powers Resolution. SeeAUMF, 2(b)(2) (Nothing in this resolution supercedes any requirement of the WarPowers Resolution.). The canon of expressio unius est exc/usio alterius requires thatCongress, having created an express exception for a statute intendedto limit Presidentialpower, must have excepted FISAif they intendedto exempt it from any conflictwith theAUMF. Theydid not, and so the AUMFmust control if the statutes are seen asconflicting.,,18(See enclosure)a. Which analysis is correct? Please explain why you agree or disagree with theseanalyses.b. Do FISA, the AUMF, and the NSA program conflict?

12. Please explain how theNSA terrorist surveillanceprogram relates to FISA. In doing so,please explain how the program - which operatesoutside the context of FISA- is

1741CRSMemo.18Letter ITomRobert Alt to Chairman Sensenbrenner(Feb. 3,2006), at 8.


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The Honorable Alberto GonzalesFebruary8, 2006Page 6 of 14

consistentwith FISA, given that FISA- provides it shall be the "exclusivemeans bywhich electronic surveillance, as defined in section 101of [FISA],and the interception ofdomestic wire, oral, andelectronic communicationsmay be conducted."1913. Some are concerned that NSA's use of this authority erodes the Department of Justice's

authority to conduct wiretaps under FISA. Do you agreewith this concern?14. Does the fact that Congress amended FISA in response to the terrorists attacks onSeptember 11,2001, "[bolster] the notion that FISA is intendedto remain fullyapplicable," as assertedby the January 5, 2006 CRS Memorandum?2015. What is the rationale for authorizing a program to conduct surveillancein a manner thatdoes not require prior judicial review bythe FISACourt?16. Doesthe legislative history ofFISA "reflect an intention that the phrase 'authorized bystatute' was a reference to chapter 119of Title 18of the U.S. Code (Title III)and to FISAitself, rather than having a broader meaning, in which case a clear indication of

Congress's intent to amend or repeal it might be necessary before a court would interpreta later statute as superceding it,,?21Do you agreewith this assertion? Please explain.17. Havepast United StatesPresidents employedsignals intelligenceof the kind authorizedbyPresident Bush after 9/11 to protect the nation duringwartime? Please explain.18. Does the Administration's position rely, as asserted by the January 5, 2006 CRSMemorandum, on the assumptions that (1) "the power to conduct electronic surveillancefor intelligencepurposes is an essential aspect of the use ofmilitary force in the samewaythat the capture of enemy combatantson the battlefield is a necessary incident to theconduct of militaryoperations," and (2) theAdministrationconsiders "the 'battlefield' inthe war on terrorism to extend beyondthe area of traditional military operations toincludeU.S. territory"? The CRSMemorandumcontinuesthat "[b]oth assumptions havebeen the subject of debate.'>22Do you agree that it is debatable as to whether the UnitedStateshomeland is still a target of al Qaeda?

19 18D.S.C. 2511(2)(f).20 37 CRSMemo.2140 CRS Memo.2234 CRSMemo.


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19. Does the Administration interpret the AUMF's authorization to be contingenton therealization of "actual attacks"23on U.s. soil, or to be an authorization for the President toact in advance of actual attacks to prevent their occurrence?

20. The January 5, 2006 CRS memorandum states, "To the extent that the President'sexecutive order authorizes surveillance of personswho are suspectedof merelysupportingAl Qaeda or affiliatedterrorist organizations, itmay be seen as being overlybroad."24Does thePresident's executive order provide that persons "merely supportingalQaeda" are covered? The CRS memorandumappears to attempt to diminish the concernof those supporting al Qaeda in the U.s. What could be the consequencesof the actionsof a person "merely supporting al Qaeda?"

21. The January 5, 2006 CRSMemorandum states, "While the collection of intelligence isalso an important facet of fighting a battle, it is not clear that the collection of intelligenceconstitutes a use offorce.,,25Do you agree?22. The January 5, 2006 CRSMemorandumexplains that the "Hamdi plurality cited theGeneva Conventions and multiple authorities on the law of war to reach its conclusionthat the capture of combatants is an essential part ofwarfare." The Memorandumthen

continues, "The Administrationhas not pointed to any authority similar to those cited bytheHamdi plurality [at518-19] to support its propositionthat signals intelligenceis afundamental aspect of combat.,,26Do you agree with the assumptionmade by CRS thatsignals intelligence is a less than conventionalaspect of the conflict that would lead to itscategorization as non-essential?

23. The January5,2006CRSMemorandumstatesthat"a presumptionthatthe authorization[in the AUMF] extends to less conventionalaspects of the conflict could unravel thefabric ofHamdi, especiallywheremeasures are takenwithin the United States.'>27Do youagreewith CRS' presumption and conclusion?

2337 CRSMemo.24!d.

2535 CRSMemo.26!d.

271d.

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24. Professor Tribe argues, in his January 6, 2006 letter, contrary to the Department ofJustice's assertion, thatHamdi supports the conclusionthat the AUMF cannotprovide therequisite authorization by pointing to the fact that "theHamdi plurality agreed 'thatindefinite detentionfor thepurpose of interrogation' even of conceded enemy combatants'is not authorized' by the AUMF. 124 S.Ct. at 2641 (emphasis added)."28 Do you agreewith Professor Tribe's argument.

25. What legal precedents, if any, support the Administration'sposition that the September14,2001 AUMF directive to the President to use "all necessary and appropriate force,,29against al Qaeda included the ability to authorizeNSA intercepts of al Qaeda-relatedcommunications into and out of the United States?26. Putting aside the AUMF, can the Administrationcite any legal precedents that support thePresident's authorityto conduct searches for foreign intelligencepurposes in the absenceof express statutoryorjudicial authorization?27. On January21, 2006, theNational Journal purportedthat President Bush is "unilaterallyinterpret(ing] the law," constitutional or otherwise, in the "global war on terror.,,30Is this

a proper characterizationof the President's actions in authorizingtheNSA program?What is the President's role in interpreting law?28. OnJanuary 20, 2006, Senator Patrick Leahy introduceda resolution31and stated that he is

"setting the record straight that Congressdid not authorize President Bush's illegal spyingprogramwhen it passed a 2001 resolution governing the use ofmilitary force in the waron terror.,,32Please explain theAdministration's position of what the resolutiongoverning the use ofmilitary force pennits the President to do? Does it impose specificrestrictionson the President?

28Tribe, supra note 12, at 5.29Section 2(a).30Alexis Simendinger, The Speech -Kingfor a War (Jan. 21, 2006), http://nationaljoumal.comlpubs/njl(last visited February 2, 2006).31S. Res. 350, 109thCongo(2006).32 Statement made by United States Senator Patrick Leahy, Leahy on Friday Introduces Resolution

Underscoring That Congress Did Not Authorize Illegal Spying on America (Jan. 20, 2006), available athttp://leahy.senate.gov/press/20060I/012006.html.

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29. Does the lack of specific languagein the AUMFreferencing electronic surveillanceundermine the Administration's contentionthat theAUMF provides the statutoryauthority for the program to be authorizedby the President?

Review Process30. OnDecember 17,2005, the President stated that "[t]he authorization [he] gave theNational SecurityAgency after Septemberthe 11th helped address that problem in a waythat is fully consistent with [his]constitutionalresponsibilities andauthorities." Hestated that "the activities [he] authorizedare reviewed approximatelyevery 45 days.Each review is based on a fresh intelligenceassessment of terrorist threats to the

continuity of our governmentand the threat of catastrophicdamage to our homeland.During each assessment,previous activities under the authorization are reviewed. Thereview includes approval by our nation's top legal officials, including the AttorneyGeneral and the Counsel to the President.,m This appears to explain the ongoing reviewof the program for compliance.a. Please explain how the proposal for the program was reviewed before it wasauthorized and initiated.b. Who was included in this review prior to the program going into effect?c. What was the time line of the discussions that took place?d. When was the program authorized?e. Was the program implementedin anycapacitybefore receiving legal approval?

31. With regard to the ongoing reviewprocess of the NSA's activities that includes thoroughreviewby the Justice Department andNSA's top legal officials, includingNSA's generalcounsel and inspector general,please explain this reviewprocess, what each reviewconstitutes, and how reviews were conductedwhen new individuals assumed positionspreviouslyheld by others who alreadyhad been consulted. What is the process forreauthorizing the program?

32. To what extent were FISAjudges informed of the program? Did FISAjudges whowereinformed about the program object to it? Inwhat mannerwere objectionsraised? Howdid the Administration respond to the objections, if theywere raised? If a Memberhadproblemswith the program,whatwere they legally permitted to do?

33. Did anyofthe individuals involved in the pre-program reviewexpress concernor refuseto sign-off on the program?a. On January 9, 2006,Newsweekpublished a story on the development of the33 Supra note 2.


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TheHonorableAlberto GonzalesFebruary8, 2006Page 10of 14

program. The article claims that "On one day in the spring of2004, White Housechief of staff AndyCard and the thenWhite House CounselAlberto Gonzalesmade a bedside visit to JohnAshcroft, attorney general at the time, who wasstrickenwith a rare and painful pancreaticdisease, to try-without success-toget him to reverse his deputy,ActingAttorneyGeneral James Corney,who wasbalking at the warrantless eavesdropping."34Is this accurate?

b. On January 17,2006, theNew York Times reported that FBI officials repeatedlycomplained about theNSA "eavesdroppingprogram" and believed that it wasintruding upon the rights of everydaylaw-abidingU.S. citizens.35Are theredocumented complaints by FBI officials challenging the legality of this program atthe time of its inception or throughout its activity?

c. The Times article claimed that DirectorMueller also raised concerns about thelegal rationale of the NSA program. Is this claim accurate and, if so, wereDirector Mueller's concernsaddressed to his satisfaction?34. The President in his December 17, 2005 radio address, also pointed out that theleadership and the IntelligenceCommitteechairs and rankingmembers "have beenbriefed more than a dozen times on this authorization and the activities conducted under

it.,,36Please explain whichMembers of Congresswere consulted,whether anyexpressedconcern, and how those concernswere addressed. In addition, please explain how anyconsultationswere conducted whennew individuals assumed positions previously heldby otherswho alreadyhad been consulted.35. Please explain what efforts the Administrationhas made to keep Congress informedabout the terrorist surveillanceprogramand what, if any, efforts the President plans toundertake to ensure the Congress is fully informed about the program.36. Please explainwhy the Administration is onlyinformingthe Congressas a whole of thescope and nature of this program at the present time.37. OnDecember 20,2005, the St. Petersburg Times claimedthat former Senator Bob

34Evan Thomas and Daniel Klaidman, Full Speed Ahead, After 9/11, Bush and Cheney Pressed for MorePower and Got It. Now, Predictably, the Questions Begin. Behind the NSA Spying Furor,http://www.msnbc.msn.comlid/10663996/site/newsweek (last visited February 2, 2006).

35See LowellBergman,Eric Lichtblau, Scott Shane,Don VanNatta Jr.; WilliamK. Rashbaum,contributor,Domestic Surveillance:The Program; SpyAgencyDataafter Sept. II led F.B.I. to DeadEnds, N.Y. TIMES,Jan. 17,2006, at AI.36 Supra note 2.


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The HonorableAlberto GonzalesFebruary 8, 2006Page 11of!4

Graham, who chaired the Senate IntelligenceCommittee at the time the Committeewasbriefed about the program byVice President Cheney, said, "We were not told that therewas not goingto be a warrant secured and werenot told that this was goingto change thestandard forwiretapping of U.S. citizen.'>37a. Howmuch detail was disclosed to the IntelligenceCommittees regarding theNSAprogram?b. Was the level of detail disclosed consistent with what was required by law andconsistent with disclosures regardingclassified other programs?c. Did anyMembers of Congress ask for additional details?d. What are the legal requirementsor precedents that stipulate the type ofinformation to be disclosed or withheld?38. The January 17,2006 New York Times article also quoted an anonymous FBI agentwhoallegedly said that the program uncovered no active al Qaeda networks planning attacksinside the U.S.. Does the President conduct ongoing evaluations ofthe effectivenessofthis program?38The SurveillanceProgram39. Please explain the exact scope of the terrorist surveillanceprogramdescribed by thePresident. Specifically,please explain whether the program is designed to interceptonlyinternational communicationsorwhether it is also designed to interceptdomestic

communications.a. What is the distinction?b. Also, please specifically describe the typeof individual targeted by the program.In doing so, please explainwhether the program is targeted specificallyat thesurveillance of individuals affiliatedwith al Qaeda and related terroristorganizations orwhether it is broader in scope.

40. On December 16,2005, the New York Times claimed that PresidentBush "secretlyauthorized theNational SecurityAgency to eavesdropon Americans and others inside theUnited States to searchfor evidenceof terrorist activitywithout court-approvedwarrantsordinarily required for domestic spying, according to government officials."39

37Above the Law?, ST.PETERSBURGTIMES,Dec 20, 2005, at A14.38See supra note 29.39JamesRisen and EricLichtblau,Barclay Walsh, contributor,Bush Lets US. Spy on Callers WithoutCourts,N.Y. nMES,Dec. 16,2005, at AI.


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a. Did PresidentBush authorizethis programto search for evidence of terroristactivity orwas there a more narrowpurpose for this surveillance?b. If the purpose was more narrow, please describe that purpose.41. Has surveillanceconducted under this program been of communicationsbetween parties,all of which were known to be located within the United States?42. If al Qaeda memberspurchase cell phones with U.S. domestic phone numbers,but thesemembers are located and are placing phone calls outside the United States, would thesecalls be characterized as "domestic"? Does the characterizationchange if the call isrouted domestically?43. The President explained that these interceptswererelated to the war on terrorism andthat, "Before we intercept these communications, the governmentmust have informationthat establishes a clear link to these terrorist networks."40Is this still true? What is thestandard?44. Please explain in detailwhether the terrorist surveillanceprogramcomplieswith therequirements of the FourthAmendment.45. Throughout the Federal criminal code,41the statutes authorize arrests without warrants ifthere is "reasonable grounds to believe" that a crime has been or is about to be

committed. Does this a probablecause standard translate to theNSA program? Is therecase law to support this standard?46. Please explain what efforts are currentlyunderwaywith respect to the terroristsurveillanceprogram to ensure that the civil liberties and privacy of ordinaryAmericansare adequatelyprotected and what additional efforts, if any, the President is considering toeffectivelyaddress these issues.47. Press reports have stated that the Justice Department has opened an investigationof theleak of informationregarding the highlyclassifiedNSA program.42Does theDepartment

40Supra note 2.41See, e.g., 18 V.S.C. 3051.42See, e.g., Inquiry into leak ofNSA spying program launched, CNN.COM,Dec.30, 2005,

http://www.cnn.com/2005/POLITICS/12/30/nsa.1eak/index.html (last visited February 3, 2006); Dan Eggan, JusticeDept. Investigating Leak ofNSA Wiretapping - Probe Seeks Source of Classified Data, WASHINGTONOST,Dec.31,2005, at AI.

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The HonorableAlberto GonzalesFebruary 8, 2006Page 13 of 14

consider the unauthorizeddisclosure of information about this program to be a leakofclassified information? Has the Department, as reported by the press, opened aninvestigation of the leak of this information?48. The WashingtonPost reported that "Fewer than 10U.S. citizens or residents a year,according to an authoritative account, have aroused enough suspicion duringwarrantlesseavesdropping tojustify interceptionof their domestic calls, as well.,,43Are targets of theNSA surveillanceprogram "U.S. citizens and residents," or do targets also include non-U.S. persons? Are targets of this surveillanceprogram those who have "aroused enoughsuspicion" or are there otherjustifications for the interception? Do you agree with thepremise made bythe WashingtonPost that this programmonitored domestic calls?49. This article also stated that "Computer-controlledsystems collect and sift basicinformation about hundredsof thousands of faxes, e-mails and telephone calls into andout of the United Statesbefore selecting the ones for scrutinyby human eyes and ears."And that "Successive stages of filtering grow more intrusiveas artificial intelligencesystems rank voice and data traffic in order of likeliest interest to human analysts. Butintelligenceofficers, who test the computerjudgments by listening initially to brieffTagmentsofconversation,"washout"mostof the leadswithindaysorweeks.,44 GeneralHayden, in an interviewwith ChrisWallace on February5, 2006, indicated that this is notan accurate depiction of the NSA surveillanceprogram. Is this a data-mining program, asthe WashingtonPost article conveys,or is this a limited program "whereNSA has already

established its reasons for being interested in that specific communication"?50. On behalf of a groupof organizations45hat requested, in a January 30, 2006 letter to

43BartonGellman,Dafua Linzer, andCarolD. Leonnig, SurveillanceNet YieldsFew Suspects;NSA's Huntfor TerroristsScrutinizes ThousandsofAmericans, butMost Are Later Cleared,WASHINGTONOST,Feb 5, 2006, atAI.

44Id.45American-ArabAnti-DiscriminationCommittee,AmericanCivil LibertiesUnion,American Friends

ServiceCommittee,AmericanProgressActionFund, AmnestyInternational USA, Arab CommunityCenter forEconomic and Social Services, Bill of RightsDefenseCommittee,Center for Democracy and Technology,Centerfor Financial Privacy andHumanRights, Center forNational Security Studies,Common Cause,ConstitutionProject,DarfurAlert Coalition,Democrats.com,ElectronicFrontier Foundation, Electronic Privacy InformationCenter,FairfaxCountyPrivacyCouncil,FirstAmendmentFund, Federation of American Scientists,FriendsCommitteeonNationalLegislation,Hate FreeZoneWashington,League ofUnited Latin American Citizens, Liberty Coalition,MoveOn.org Political Action,MuslimAdvocates,MuslinPublic AffairsCouncil,National Association of CriminalDefense Lawyers, National Committee Against Repressive Legislation, National Lawyers Guild -National Office,NationalNetworkforArabAmericanCommunities,NationalSecurityWhistleblowersCoalition,OpenSociety


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Chairman SensenbreIll1erandRankingMember Conyers, oversight of theNSAsurveillance program,please respond to the following:a. Is the NSA surveillanceprogram a single program, which operates under a singleauthorization? What is the scope and/or nature of the program(s)?b. What are the criteriaand triggersfor collection and/or analysis of information?

How do these criteria and triggers differ fromthose in effect prior to September11,2001?c. Were laws violated and, if so, who bears responsibility?d. What information is obtained through this program? Is it shared with otheragencies? Onceobtained, how is it used and/or stored, whether byNSA or other

agencies?51. Finally,please explain whether you believe Congress should amend FISAto provide thePresidentwith the necessaryauthorityto conduct the terrorist surveillance program. Ifthe answer to this question is yes, please explain what amendments to the FISA

legislationmay be needed. If the answer to this question is.no, please explain howCongressmay effectivelyevaluate or conduct oversight of the program.Pleaseprovide your responses to Beth Sokul, SpecialCounsel on IntelligenceandHomeland Security, in 2138 RayburnHouseOfficeBuilding, byMarch 2,2006.

Sincerely,

F.JAMChairman

Policy Center, Patriots to Restore Checks and Balances, People for the American Way, Privacy Activism,Republican Liberty Caucus, Rutherford Institute, United for Peace and Justice, U.S. Bill of Rights Foundation, TheMultiracial Activist, World Privacy Forum.

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Alberto Gonzales Files - judiciary house gov-dojnsa