FEINGOLD: This hearing is not just a hearing about future possible solutions. That is fine to be part of the answer and part of the hearing. This hearing, Mr. Chairman, is also an inquiry into possible wrongdoing.
Mr. Attorney General, there already have been a few mentions today of your testimony in January of '05, your confirmation hearing. I'm going to ask you a few quick, simple and factual questions, but I want to make it clear that I don't think this hearing is about our exchange or about me, or what you said to me, in particular.
I am concerned about your testimony at that time, because I do believe it was materially misleading. But I am even more concerned about the credibility of your administration. And I'm even more concerned than that about the respect for the rule of law in this country. So that is the spirit of my questions.
Mr. Attorney General, you served as White House counsel from January 2001 until you became attorney general in 2005. On January 6, 2005, you had a confirmation hearing for the attorney general position before this committee.
Mr. Attorney General, you testified under oath at that hearing, didn't you?
GONZALES: Yes, sir.
FEINGOLD: And, sir, I don't mean to belabor the point, but just so the record is clear, did you or anyone in the administration ask Chairman Specter or his staff that you not be put under oath today?
GONZALES: Senator, I've already indicated for the record that the chairman asked my views about being sworn in and I said I had no objection.
FEINGOLD: But did you or anyone in the administration ask the chairman to not have you sworn?
GONZALES: Sir, not to my knowledge.
SPECTER: The answer is no.
FEINGOLD: That's fine.
At the time you testified in January of '05, you were fully aware of the NSA program, were you not?
GONZALES: Yes, sir.
FEINGOLD: You were also fully aware at the time you testified that the Justice Department had issued a legal justification for the program, isn't that right?
GONZALES: Yes, there had been legal analysis performed by the Department of Justice.
FEINGOLD: And you, as White House counsel, agreed with that legal analysis, didn't you?
GONZALES: I agreed with the legal analysis, yes.
FEINGOLD: And you had signed off on the program, right?
GONZALES: Yes, I did believe at the time the president had the authority to authorize these kinds of...
FEINGOLD: And you had signed off on that legal opinion.
And yet when I specifically asked you at the January 2005 hearing whether, in your opinion, the president can authorize warrantless surveillance notwithstanding the foreign intelligence statutes of this country, you didn't tell us yes. Why not?
GONZALES: Sir, I believe your question, the hypothetical you pose -- and I do consider it a hypothetical -- which is whether or not, had the president authorized specific electronic surveillance in violation of the laws -- and I've tried to make clear today that, in the legal analysis in the white paper, the position of the administration is that the president has authorized electronic surveillance in a manner that is totally consistent -- not in violation, not overwriting provisions of FISA but totally consistent with FISA.
FEINGOLD: Mr. General, it certainly was not a hypothetical, as we now know.
GONZALES: Senator, your question was whether or not the president had authorized certain conduct in violation of law.
GONZALES: That was a hypothetical.
FEINGOLD: My question was whether the president could have authorized this kind of wiretapping...
GONZALES: In violation of the criminal statutes. And our position is, and has been, is that, no, this is not in violation of the criminal statutes. FISA cannot be...
FEINGOLD: You said the question was merely hypothetical.
Now, look, this is what you said: "It's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes." And when you said that, you knew about this program; in fact, you just told me that you had approved it and you were aware of the legal analysis to justify it.
You wanted this committee and the American people to think that this kind of program was not going on. But it was and you knew that. And I think that's unacceptable.
GONZALES: Senator, your question was whether or not the president had authorized conduct in violation of law. And I've laid out...
FEINGOLD: Mr. Attorney General, my question was whether the president would have the power to do that.
GONZALES: And, Senator, has not authorized conduct in violation of our criminal statutes.
We've laid out a 42-page analysis of our legal position here. The authorities the president has exercised are totally consistent with the primary criminal provision in FISA, Section 109.
FEINGOLD: I've heard all your arguments, but I want to get back to your testimony, which, frankly, Mr. Attorney General, anybody that reads it basically realizes you were misleading this committee.
You could have answered the question truthfully; you could have told the committee that, yes, in your opinion, the president has that authority. By simply saying the truth that you believe the president has the power to wiretap Americans without a warrant would not have exposed any classified information.
And my question wasn't whether such illegal wiretapping was going on. Like almost everyone in Congress, I didn't know, of course, about the program then.
It wasn't even about whether the administration believed that the president has this authority.
FEINGOLD: It was a question about your view of the law -- about your view of the law -- during a confirmation on your nomination to be attorney general.
So, of course, if you had told the truth maybe that would have jeopardized your nomination. You wanted to be confirmed, and so you let a misleading statement about one of the central issues of your confirmation, your view of executive power, stay on the record until the New York Times revealed the program.
GONZALES: Senator, I told the truth then, I'm telling the truth now.
You asked about a hypothetical situation of the president of the United States authorizing electronic surveillance in violation of our criminal statutes. That has not occurred.
FEINGOLD: Mr. Chairman, I think the witness has taken mincing words to a new high.
There's no question in my mind that when you answered the question that was a hypothetical you knew it was not a hypothetical and you were under oath at the time.
Let me switch to some other misrepresentations.
SPECTER: Wait a minute.
Do you care to answer that, Attorney General Gonzales?
GONZALES: Senator, as I've stated before, what I said was the truth then, it is the truth today.
The president of the United States has not authorized electronic surveillance in violation of our criminal statutes. We have laid out in great detail our position that the activities are totally consistent with the criminal statute.
FEINGOLD: All you have to, Mr. Attorney General, was indicate it was your view that it was legal. That was what my question was. I would have disagreed with your conclusions. But that's not what you said, and you referred to this as merely a hypothetical.
Mr. Attorney General, administration officials have been very misleading in their claims in justifying the spying program. To make matters worse, last week in the State of the Union the president repeated some of these claims. For one thing, the president said that his predecessors have used the same constitutional authority that he has.
Isn't it true that the Supreme Court first found that phone conversations are protected by the Fourth Amendment in the 1967 Katz case?
GONZALES: Yes. In the 1967 Katz case, the Supreme Court did find that telephone conversations are covered by the Fourth Amendment.
FEINGOLD: So when the Justice Department points to Presidents Wilson and Roosevelt's actions, those are really irrelevant, aren't they?
GONZALES: Absolutely not, Senator. I think that they're important in showing that presidents have relied upon their constitutional authority to engage in warrantless surveillance of the enemy during a time of war.
The fact that the Fourth Amendment may apply doesn't mean that a warrant is instantly required in every case, as you know. There is a jurisprudence of the Supreme Court regarding special needs, normally in the national security context, outside of the ordinary criminal law context, where, because of the circumstances, searches without warrants would be justified.
FEINGOLD: Mr. Chairman, my time's up. I'll continue this line of questioning later.
SPECTER: Thank you very much, Senator Feingold.
Sorry, wrong transcript. I hope you like this one better. 