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As Domestic Spying Hearing Looms,
Leahy Renews Request
For Key Documents On Domestic Spying Policy
…Urges DOJ Officials To Release
Current And Earlier Opinions
On Government Surveillance Policies and Practices
(THURSDAY, Feb.
2) -- Senator Patrick Leahy (D-Vt.), the ranking Democratic member
of the Judiciary Committee, Thursday pushed for the release of key
documents from the Department of Justice relating to current and
previous policies and procedures governing electronic surveillance.
“It is essential
that we get these documents,” Leahy said when asked at a press
conference Thursday afternoon on a bipartisan bill creating a trust
fund to compensate victims of asbestos exposure.
“No White House
can just pick and choose which laws it wants to follow. This
President has repeatedly asked Congress and the American people to
just trust him on key decisions that have resulted in failed polices
with devastating consequences.
“Drafting a
legal rationale after the fact in a one-sided white paper without
showing Congress its legal thinking and binding legal opinions over
time does little to lend credibility to this Administration’s
contentions.”
Also on
Thursday, Leahy hand-delivered the Democratic request to Paul
McNulty, who has been nominated to the number two position at the
Justice Department. During a Judiciary Committee hearing Thursday
morning on McNulty’s nomination to be Deputy Attorney General, Leahy
again urged the Justice Department to cooperate with the document
request from Democratic members of the committee before the panel
opens its hearing next Monday on the Administration’s illegal spying
program.
Leahy handed
McNulty a letter from the eight Democratic members of the committee
in which they request documents and correspondence from the days
immediately following the attacks of Sept. 11, 2001, as well as
departmental memos and legal opinions from the past 30 years
addressing the constitutionality of government practices and
procedures with respect to electronic surveillance.
Below is Leahy’s
statement from Thursday’s McNulty hearing as well as the letter sent
last week by the eight Democratic committee members seeking the
documents in advance of the Feb. 6 hearing on the NSA spying
program. Attorney General Alberto Gonzales is scheduled to testify
before the committee at the hearing.
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Statement On Senator Patrick Leahy,
Ranking Member, Committee On The Judiciary,
On Nomination Of Paul McNulty
To Be Deputy Attorney General
February 2, 2006
The Committee today will consider the
nomination of Paul McNulty to the position of Deputy Attorney
General. The Deputy Attorney General is the number two position at
the Department of Justice, and in the absence of the Attorney
General, the Deputy acts as the Attorney General.
The previous Deputies, including James Comey
and his predecessor Larry Thompson, have had extensive experience as
prosecutors. When the President nominated Tim Flanigan to this
position, I and other senators raised questions about his lack of
prosecutorial experience. It was of particular concern given that
none of the top officials at the Department had experience
prosecuting criminal cases. I noted that neither the current
Attorney General, nor the Associate Attorney General, nor the
Assistant Attorney General chosen to head the Criminal Division, nor
even the Solicitor General brought that vital experience to the
Department.
The President eventually withdrew Mr.
Flanigan’s nomination. Questions still remain about the
circumstances of that nomination. I joined Senator Durbin in a
letter just yesterday to the Attorney General about the role that
Mr. Flanigan’s dealings with Jack Abramoff and David Safavian played
in that action. I look forward to thoroughly responsive answers to
that letter.
With respect to prosecutorial experience, Mr.
McNulty comes to us as the Acting Deputy Attorney General and U.S.
Attorney for the Eastern District of Virginia, so he has had some
supervisory experience with criminal matters. Being a U.S. Attorney
is not like being a district attorney or local prosecutor, however,
and I am not sure how many cases Mr. McNulty has personally
prosecuted. As the Deputy Attorney General, prosecutorial
experience and prosecutorial judgment will be sorely needed and
tested in this Justice Department. He is overseeing delicate
investigative and prosecutorial decisions. Situations will arise
where prosecutorial experience will be beneficial and may be
critical, especially given the lack of other experience in the top
ranks of the Department.
This points to the bigger issue. We are faced
with a President who holds an extreme and expansive view of his
power. Within the Executive branch, the Department of Justice serves
as an important check on Presidential power, corruption and
illegality. The Justice Department must make independent decisions
about sensitive criminal prosecutions and must often tell the rest
of the Federal Government, including the White House, what it may
and may not legally do.
The most recent Deputy Attorney General, James
Comey, a respected prosecutor and a long-time Republican, seemed to
many of us to have taken this responsibility seriously. He
appointed a committed, independent prosecutor to investigate
potentially serious wrongdoing within the Bush Administration.
According to recent press reports,
Mr. Comey questioned the President’s authority
to conduct warrantless wiretapping and defended career attorneys who
sought to put the brakes on over-expansive assertions of Executive
power. It seemed to many of us and now appears from recent press
accounts, that for his trouble, for refusing to be a “yes man,” Mr.
Comey was apparently drummed out of the Department of Justice. The
Department of Justice should not be made up of “yes men.” It needs
to enforce the law and make sure that the law, including the laws
that Congress enacts to protect the liberties and rights of ordinary
Americans, are faithfully executed.
I voted against confirmation of the current
Attorney General because I did not believe that he would act
independently of the White House and serve the proper role of the
Attorney General of the United States. Attorney General Gonzales
has been a loyal friend and representative of the President and,
regrettably in my view, he has continued to act like the President’s
in-house counsel. During the debate of his nomination one year ago,
I noted the importance of having an Attorney General who would act
as a check against presidential overreaching:
“Ultimately, the Attorney General’s duty is to
uphold the Constitution and the rule of law—not labor to circumvent
it. Both the President and the nation are best served by an
Attorney General who gives sound legal advice and takes responsible
action, without regard to political considerations—not who develops
legalistic loopholes to serve the ends of a particular President or
Administration.”
Those words hold just as true for the important
position of Deputy Attorney General. At the time, I did not know
how right I would turn out to be. The recent revelation that the
Bush Administration has been conducting illegal spying on Americans
for more than four years, while Mr. Gonzales served as White House
Counsel and Attorney General, is the most serious of a series of
wrongheaded legal rationalizations for illegal conduct that include
the scandal of Abu Ghraib and the withdrawn torture memo, the
extraordinary rendition and black site prisons in the former Soviet
Union, and the Supreme Court having to reign in this President and
remind him that even war time “is not a blank check for the
President when it comes to the rights of the Nation’s citizens.”
Mr. McNulty has had a number of important
Republican political jobs. I first met him when he was serving as
staff for Republicans on the House Judiciary Committee. He is
someone I like personally. Whether he will be able to follow Mr.
Comey’s example of independence and the examples of other
Republicans like Elliot Richardson and William Ruckelshaus, who
resigned or were fired rather than interfere with the investigation
of wrongdoing of the Nixon Administration, is a critical question.
The Eastern District of Virginia, under Mr.
McNulty, has been the “go-to” district for the Bush Administration
for terrorism prosecutions, national security issues, and detainee
abuse allegations. His work on these issues needs to be explored
and explained. We need to understand how much he will be willing to
question extreme assertions of Presidential power and to look out
for the individual liberties of ordinary Americans and protect the
rule of law.
According to a recent letter from the
Department of Justice to Senator Durbin, since the beginning of the
war on Afghanistan in 2001, 20 allegations of detainee abuse by
American civilians have been referred to the Department of Justice,
and all but one of these cases, have been assigned to a task force
in the U.S. Attorney’s Office for the Eastern District of Virginia,
under Mr. McNulty’s supervision. To date, only one of these
allegations – the one that was not referred to his office – has
resulted in an indictment.
These are instances of serious misconduct that
have hurt American credibility in the world, potentially increased
the risk to our troops abroad and undermined our ability to combat
the threat of terrorism. Press reports say that these referrals
include one case in which a detainee was killed in CIA custody
within 45 minutes of the beginning of the interrogation and in that
case the CIA’s own Inspector General found the “possibility of
criminality.” It has been 18 months since former Attorney General
Ashcroft announced the creation of the taskforce in Mr. McNulty’s
office to investigate these cases. We need to understand why, when
the military has prosecuted detainee abuse cases and the Eastern
District of North Carolina has returned the one civilian indictment
thus far handed down for this type of conduct, Mr. McNulty’s task
force has not yet acted.
Finally, it will be important to find out what
he knew and when about the President’s warrantless domestic spying
program and what he has done to make sure that the Government is not
violating the law. We need to get to the bottom of this and
understand how Mr. McNulty responded to these important issues.
I support aggressive action to protect against
terrorism. I helped write and pass the USA PATRIOT Act. I am
working hard to pass its reauthorization. But it is also important
that the Department do its utmost to protect individual liberties
and to make sure that the Government acts legally. I hope that Mr.
McNulty can reassure us on these matters.
I welcome Mr. McNulty to the Committee today,
and I hope that he will provide the Members of this Committee with
candid responses and the information this Committee needs to conduct
necessary oversight.
# # #
# #
January 27, 2006
The Honorable Alberto Gonzales
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Dear Attorney General Gonzales:
We are pleased that you have agreed to testify
at the Judiciary Committee’s hearing on Monday, February 6, 2006, in
connection with the legal justifications of the recently revealed
NSA surveillance programs. To enable us to prepare for the hearing,
we request that you provide the following information without delay
and in advance of that hearing:
(1) Please
provide all letters, memoranda, notes, e-mails or other documents
that are or reflect communications from the Administration to
Congress during the time period September 11 through September 14,
2001, of proposals for, or draft language to be included in what
came to be the Authorization for Use of Military Force.
(2) Please
provide all letters, memoranda, notes, e-mails or other documents
that are or reflect communications from the Administration to
Congress during the time period September 11 through September 14,
2001, of the Administration’s understanding of the meaning of the
language being considered for inclusion in what came to be the
Authorization for Use of Military Force.
(3) Please
provide all documents that are or reflect internal Administration
communications during the time period September 11 through September
18, 2001, regarding the meaning of the language being considered for
inclusion in what came to be the Authorization for Use of Military
Force.
(4) The
Authorization for Use of Military Force makes no mention of domestic
surveillance. What specific language does the Administration assert
grants authority to the President to conduct domestic surveillance
without seeking warrants from the Foreign Intelligence Surveillance
Court?
(5) Please
provide copies of all memoranda and legal opinions rendered by the
Department of Justice during the past 30 years that address the
constitutionality of government practices and procedures with
respect to electronic surveillance.
(6) Please
provide any documents by which the President has, prior to and after
September 11, 2001, authorized the NSA surveillance programs,
including all underlying legal opinions authored by the White House.
We would appreciate your prompt cooperation
with these requests for underlying background information relevant
to the hearing.
Sincerely,
PATRICK LEAHY
EDWARD KENNEDY
JOSEPH BIDEN
HERB KOHL
DIANNE FEINSTEIN
RUSSELL FEINGOLD
CHARLES SCHUMER
RICHARD DURBIN
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