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The Honorable Alberto R. Gonzales
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
Dear Attorney General Gonzales:
I write in response to your
letter of February 28, 2006, regarding your February 6 testimony
before the Senate Judiciary Committee and responding to specific
requests for information by Senators during the hearing.
In particular, I would like
to follow up on your response to my question about the testimony
of then-Associate Attorney General David Kris before the Senate
Judiciary Committee on September 10, 2002. His testimony stated:
"Thus, both before and
after the Patriot Act, FISA can be used only against foreign
powers and their agents, and only where there is at least a significant
foreign intelligence purpose for the surveillance. Let me repeat
for emphasis: We cannot monitor anyone today whom we could
not have monitored at this time last year." (The emphasis
was in the original testimony.)
However, we now know as a result
of your letter that in October 2001 the President authorized
wiretaps of individuals inside the United States without getting
a court order under the Foreign Intelligence Surveillance Act.
At the hearing, I asked you who in the White House and Justice
Department reviewed Mr. Kris' testimony because I was concerned
that individuals who were aware of the President's authorization
allowed a senior Justice Department official to mislead Congress
about whether the Administration was complying with FISA.
Instead of responding to my question, you argued that the testimony
was technically accurate. I disagree with your argument, but,
in any event, it is irrelevant. You cannot dispute that from
the point of view of the Judiciary Committee, which had not been
made aware of the NSA program, Mr. Kris' statement was at best
misleading. And Mr. Kris was not aware that it was misleading,
since, as far as we know, he did not know about the program either.
It was therefore incumbent upon senior officials who reviewed
the testimony to make sure that the Committee was not misled.
It is unacceptable, under the circumstances, for you to decline
to answer my specific question simply because it is normally
against DOJ policy to disclose who approved testimony by Administration
officials. The Judiciary Committee is entitled to know what
senior officials allowed misleading testimony to be presented
at the hearing on September 10, 2002. In that connection, I
will revise my request so that individuals who reviewed the testimony
but were not aware of the NSA program need not be identified.
Therefore, please inform me whether anyone who reviewed or approved
the David Kris testimony was aware of the President's authorization
of wiretaps inside the U.S. without a court order under FISA,
and, if so, identify all such persons.
I am sure that you can appreciate
the seriousness of concerns that executive branch officials misled
Congress, especially about such a serious national security issue.
In fact, you were apparently concerned enough about the accuracy
of your own February 6 testimony that you felt it necessary to
write a letter to the Committee clarifying some of your statements
and suggesting what many of us already suspected based on your
carefully worded testimony at the hearing: that there may well
be other secret surveillance programs that the President has
authorized in addition to what he has acknowledged publicly.
It is of the utmost importance that testimony presented by all
Administration officials be accurate. Prepared testimony can
easily avoid disclosing classified information without being
actively misleading. As the chief law enforcement officer in
our country, you should take this responsibility particularly
seriously. Please provide the information that I requested as
soon as possible.
Sincerely,
Russell D. Feingold
United States Senator
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