Misleading Testimony About NSA Domestic Spying

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.


Russell D. Feingold
United States Senator



Sen. Russ Feingold, D-Wis., is a member of the Senate Foreign Relations and Intelligence Committees.