U.S. Department of Justice Office of Legislative Affairs Washington, D.C.20530 January 18,2007 The Honorable Patrick J. Leahy Chairman Committee on the Judiciary United States Senate Washington, D.C. 205 10 Dear Mr. Chairman: Enclosed please find responses to questions for the record, which were posed to Attorney General Alberto Gonzales following his appearance before the Committee on July 18,2006. The hearing concerned Department of Justice Oversight. Several of the questions relate to the Terrorist Surveillance Program described by the President. Please consider each answer to those questions to be supplemented by the enclosed letter, dated January 17,2007, from the Attorney Genera1 to Chairman Leahy and Senator Specter. The Office of Management and Budget has advised us that from the perspective of the Administration's program, they have no objection to submission of this letter. Sincerely, Richard A. Hertling Acting Assistant Attorney General Enclosures cc: The Honorable Arlen Specter Ranking Minority Member Questions for the Record for Attorney General Alberto Gonzales Senate Judiciary Committee DOJ Oversight Hearing on July 18, 2006 Senator Specter Rep. Jefferson FBI Raid 1. On May 27, 2006, The Washington Post reported that you, Deputy Attorney General Paul McNulty, and FBI Director Robert Mueller all threatened to resign if the President compelled you to return the documents collected from Rep. Jefferson’s offices. Is this report accurate and what was your motivation for considering such a drastic step? If Chief Judge Hogan’s July 10th decision had ordered the documents found in the raid to remain sealed and be returned to Rep. Jefferson’s office, would you have accepted that decision? ANSWER: Respectfully, it would not be appropriate to comment on internal deliberations within the Justice Department regarding steps that might have been considered or taken with respect to the seized records. It is accurate to say that it is the Department’s view that the search and seizure of Congressman Jefferson’s records were conducted pursuant to a lawful search warrant approved by a federal judge, and that procedures were proposed by the Department and approved by the court. The Department will, of course, abide by the final decision of the courts in this case. It is important to note that Judge Hogan’s July 10, 2006 ruling carefully considered the governing law in light of the facts of this case and fully upheld the Department’s actions. If, however, Chief Judge Hogan’s July 10 decision had ordered the records found in the search sealed and returned to Rep. Jefferson’s office, the Department would have carefully evaluated Chief Judge Hogan’s decision and reasoning in light of the governing law, and then considered a range of possible responses including an application for reconsideration as well as an appeal to the DC Circuit Court of Appeals. 2. Despite Judge Hogan’s ruling on July 10, 2006 that the FBI’s search of Rep. Jefferson’s office did not violate the Constitution’s Speech and Debate Clause, I still question why the FBI failed to take certain actions leading up to and during the execution of the search warrant. Arguably, tensions could have been eased between Congress and the Executive had the FBI taken any of the following actions: i. Sealing the office in question by utilizing Capitol Police or other law enforcement authorities; 1 ii. Pursuing Rep. Jefferson’s cooperation through the Clerk of the House; iii. Allowing Rep. Jefferson’s attorney to be present during the search. In such a high profile case, do you think any of these actions would have alleviated the tension that the raid has caused? ANSWER: As a matter of comity, and out of an abundance of caution, the Justice Department proposed, and a federal judge approved, special procedures designed to accommodate the Speech or Debate Clause privilege and the legitimate needs of a coordinate branch of Government. These procedures included the following precautionary measures: • The search was conducted by agents and certified forensic examiners from the FBI who have no role in the investigation, and who are prohibited from revealing any non-responsive or politically sensitive information that they may have come across inadvertently during the search, and are required to attest in writing to their compliance with this procedure. • Under the procedures proposed by the Government and adopted by the court, the responsive documents would have been transferred from the non-case agents to a “Filter Team” consisting of federal prosecutors and an FBI agent with no role in the investigation. The Filter Team would have reviewed each document seized to ensure that it was responsive and, if so, ensured that no document falling within the purview of the Speech or Debate Clause was transferred to the Prosecution Team. • Under those procedures, any potentially privileged materials would have been logged, copies would have been provided to Rep. Jefferson’s counsel, and the Filter Team would have asked the Court to review the records for a final determination about privilege. It is clear that no authority required that Rep. Jefferson’s office be sealed by the Capitol Police, that the Department first pursue Rep. Jefferson’s cooperation through the Clerk of the House, or that Rep. Jefferson’s counsel be permitted to be present during the search. Nevertheless, the Department did attempt to use other means to obtain the documents before seeking the court’s approval of a search warrant. We cannot describe those other means because the information concerns matters that are under seal. We can assure you that the Department has been and continues to be sensitive to what you describe as the “high-profile” nature of this case. Investigations such as this one are always “high profile,” but their prominence only underscores the importance of conducting them in a fair and impartial manner. Deviations from the normal procedures followed in the execution of a search warrant in an investigation of a Member of Congress might tend to suggest that Members of Congress are above the law and could expose the Department to charges that it is giving special treatment to Members of 2 Congress for political reasons, thereby undermining confidence in the integrity of criminal prosecutions. 3. The fact that the FBI used a “filter-team” to execute the search warrant as a means to shield the information found in Jefferson’s office from the Special Agents assigned to the investigation suggests that the Department of Justice was concerned about violating the Speech and Debate Clause or, perhaps, some other aspect of the separation of powers of the two branches. How did the use of FBI employees not associated with the investigation resolve this concern with respect to the Speech and Debate Clause? ANSWER: The use of a Filter Team and other special procedures were proposed by the Department and approved by the Chief Judge as a matter of comity and out of an abundance of caution. The search warrant properly addressed issues relating to the Speech or Debate Clause or other applicable privileges (such as attorney-client communications), as well as politically sensitive materials. The Department understood that execution of the search warrant would involve the incidental and cursory review by the seizing agents and Filter Team of materials that might be potentially covered by the Speech or Debate Clause, subject to other potential privileges or politically sensitive. As a result, the Filter Team and other special procedures were included in the search warrant as a reasonable method to control the process by which the seizing agents and Filter Team would perform an incidental and cursory review of potentially privileged or politically sensitive materials in order to extract the non-privileged evidence specifically sought by the search warrant. Moreover, as Chief Judge Hogan held in his July 10, 2006 decision, “the incidental and cursory review of documents covered by the legislative privilege, in order to extract non-privileged evidence, does not constitute an intrusion on legitimate legislative activity.” Americans with Disabilities Act 4. What is the status of the proposed changes to the ADA Accessibility Guidelines? When does the DOJ plan to issue its proposed rules that will lower the wheelchair scoping for stadiums and all public assembly facilities? ANSWER: The proposal to reduce wheelchair scoping in assembly facilities is contained in the revised Americans with Disabilities Act guidelines published by the U.S. Architectural and Transportation Barriers Compliance Board (also known as the Access Board) in July 2004. The revised ADA Guidelines are the result of a multi-year effort by the Access Board to revise and amend its accessibility guidelines. The overriding goal of the project was to promote consistency among the many federal and state accessibility 3 requirements. To become enforceable, the guidelines must be adopted by the Department of Justice as the revised ADA Standards for Accessible Design. The Department has initiated the process of revising its regulations implementing Titles II (public entities) and III (public accommodations and commercial facilities) of the ADA to amend the ADA Standards for Accessible Design (28 CFR part 36, appendix A) to ensure that the requirements applicable to new construction and alterations under title II are consistent with those applicable under title III, to review and update the regulations to reflect the current state of law, and to ensure the Department's compliance with section 610 of the Small Business Regulatory Enforcement Fairness Act (SBREFA). The Department initiated the rule-making process required to make this provision enforceable by publishing an Advance Notice of Proposed Rulemaking in September 2004. We received over 900 comments on that ANPRM, which are facilitating our process of drafting a Notice of Proposed Rulemaking and developing the required regulatory impact assessments.