This is a partial transcript from "Hannity & Colmes," January 16, 2005, that has been edited for clarity.
SEAN HANNITY, CO-HOST: And joining us now, the attorney general of the United States, Alberto Gonzales is with us.
Mr. Attorney General, welcome back. Thanks for being with us.
ALBERTO GONZALES, U.S. ATTORNEY GENERAL: Good evening.
HANNITY: Let's start with you said Friday that you were going to testify in a Senate hearing to give the administration's legal justification for this domestic eavesdropping program, although I would argue it's international more than domestic. Tell us what you plan to testify to and what facts you would bring up in that testimony?
GONZALES: Sean, this remains a highly classified program. It's still very valuable to the United States, and so I'm going to be limited to talking about the legal authorities for what the president described to the American people, those aspects of the program that the president described.
I think it's very, very important for the American people to understand that, from the very beginning, lawyers throughout the administration have carefully looked at this — the activities under this program. And we clearly and firmly believe that the legal authorities are there for the president to do what he promised the American people he would do shortly after the attacks of 9/11. He promised the American people that he would do whatever he could, utilize whatever intelligence tools were available under the Constitution in order to protect this country.
HANNITY: This is not really domestic spying, if we're talking about international calls from terrorists or known terrorists or associates with terrorists into the United States, is it? There is a distinction?
GONZALES: There is a clear distinction. There's certainly a distinction that had been recognized by the courts. The courts who have spoken on this issue have said that the president does have the inherent authority to engage in electronic surveillance in order to collect foreign intelligence.
And that's what we're talking about in this particular case, where one end of the call has to be outside of the United States and we have to have a reasonable basis to believe that one party to the call is a member of Al Qaeda, or a member of an organization that's affiliated with Al Qaeda, or assisting Al Qaeda.
HANNITY: There are those — the president's critics — that say that this is an illegal activity. There are even some people saying this may ultimately become the basis of a foundation for an impeachment against the president.
Is the legal justification and part of what you will explain when you testify — does it have anything to do, sir, with the fact that we are at war, and the president is the commander-in-chief, and the president has a sworn oath and duty to protect the people in this country? Will that be part of what you explain to the Senate and the Congress?
GONZALES: That will be part of what I explain to the American people and to members of the Senate Judiciary Committee. And that is the president not only has the authority, he has the duty, Sean, to protect America against another attack.
He is the one individual in our government who has that duty to protect America. And he's exercising these authorities in a lawful manner.
And part of my explanation to the American people will be that he's exercising his authority as commander-in-chief, inherent authority under the Constitution, to engage in this electronic surveillance for foreign intelligence, but also we believe that the Congress ratified this program in connection with the authorization to use force.
HANNITY: I want you to specifically respond. Former Vice President Al Gore, in a very angry speech today, insisted that the president repeatedly and persistently broke the law by eavesdropping on Americans without a court warrant, called for a federal investigation into the practice.
He said it represented a direct assault on special federal court that considers and decides whether to authorize such eavesdropping. How do you respond specifically to what the former vice president said?
GONZALES: Well, I didn't see the former vice president's speech. I will say to the American people, however, that, under the Clinton administration, the department — I mean, the administration was engaged in physical searches without a warrant. Aldrich Ames is an example, where his house was searched without a warrant.
And the deputy attorney general testified before Congress that the president of the United States does have the inherent authority to engage in physical searches in order to collect foreign intelligence.
HANNITY: Yes. I want to specifically address the issue he called for you in this speech — he called for you to propose that a special counsel be appointed to investigate whether or not there's any violations of law. Will you, in fact, do that? Will you even consider that?
GONZALES: Sean, this program, as I said at the outset, has been reviewed carefully by lawyers at the Department of Justice and other agencies within the administration. We firmly believe that this program is perfectly lawful. The president has legal authority to authorize these kinds of activities.
HANNITY: So there would be no special counsel, in any way, shape, matter or form?
GONZALES: Again, Sean, this has been looked at very, very carefully. And the Department of Justice believes clearly that the president acted within his lawful authorities.
HANNITY: OK. So did you play any role in the specific recommendation of the president? You keep saying here that many people looked into it, the Department of Justice looked into it. Did you specifically play a role in determining the legality of this?
GONZALES: The primary responsibility to provide advice to the executive branch, with respect to legality on a particular activity, relies within the Department of Justice and the Office of Legal Counsel. And as the counselor to the president, I played a role in a wide variety of issues and provided counsel and advice with respect to a wide variety of issues.
But at the end of the day, the responsibility to determine for the executive branch what is lawful, what is not lawful, lies within the Department of Justice.
HANNITY: All right. But you — so there was no specific recommendation for you as to the legality of this before they began the practice?
GONZALES: Sean, I'm not going to get into a discussion about what I may have recommended to the president or not recommended to the president.
GONZALES: What I am confirming is that the Department of Justice has carefully reviewed this program from its inception and a determination has been made that the program is lawful.
HANNITY: I want to specifically go back to the historical context of searches like this. And more specifically, we know that, during the 1990's, under both Clinton and Gore, the National Security Agency — we know for a fact — monitored millions of private phone calls placed by U.S. citizens and citizens in other countries under a super-secret program, code name Echelon. Can you tell us some similarities that might have been used back then?
GONZALES: Well, I'm not going to talk about super-secret, code-named programs, either now or in the past. What I can say is that this is a very targeted, very limited program focused on gathering information about who our enemy is, about where our enemy is looking to hit us again.
And I believe that the American people expect this president — and he promised the American people that he would do whatever was lawful in order to gather up intelligence, in order to protect this country.
HANNITY: Well, I'll tell you why I think this is important, because - - and this has been publicized extensively. The Echelon probably, communications were pulled on a massive scale, where it seems what the president is doing in the NSA program that the president is talking about here, it sought out specific contacts with known terrorists or people believed to be known terrorists. Isn't that a great distinction?
GONZALES: Well, again, I'm only going to talk about that portion of the program that the president disclosed to the American public, with respect to — clearly, what we're talking about are targeted communications, one end foreign, and where we believe one person of that phone call is affiliated with Al Qaeda or a member of Al Qaeda.
ALAN COLMES, CO-HOST: Welcome back to "Hannity & Colmes." I'm Alan Colmes.
Coming up, former Vice President Gore slammed President Bush today and said domestic wiretapping is a violation of the Constitution. Is the president breaking the law? We'll debate it, coming up.
First, we continue with Sean's one-on-one interview with Attorney General Alberto Gonzales.
HANNITY: Mr. Gonzales, are you concerned at all about the media basically breaking the story and where the sources may have been, in terms of breaking a story about a program that's supposed to be classified?
GONZALES: No question about it. We have very serious concerns about it. What made this program so effective is that the enemy was unaware — we believe was unaware that we were engaged in these activities.
We have seen examples in the past where highly classified techniques have been compromised, which has caused the enemy to change the way it communicates, the way it acts, which has made it much more difficult for us to connect the dots, to put together possible terrorist plots against this country.
And so of course we have very serious concerns that the disclosure of this program will make it much more difficult for this administration, this government to protect America.
HANNITY: Mr. Attorney General, there are some, in some circles, an ethical-moral dilemma, a bit of quandary, over, if a newspaper breaks a story or if people in the media break a story, and they have a source that was breaking the law to give them that story, should they be compelled to testify as to who gave them the information, if the person giving it to them was giving them illegal information or information that would compromise national security?
GONZALES: Well, Sean, you're talking about a hypothetical regarding an ongoing investigation, and I don't want to really want to comment on that.
HANNITY: Can I speak in principle then? If a reporter gets information about national security issues, matters that, by law, must be secret, should they be compelled to give up their source, in theory?
GONZALES: We believe it is important to ensure that our laws are enforced. Obviously, very much respect the First Amendment and the right of the media to gather up information and to inform the American public about what its government is doing.
But we also have an obligation to ensure the protection of various sensitive information which allows the government of the American people to protect the American people. And so we try to balance those two equities.
In this particular case, we are very concerned that the disclosure of this very highly classified program has compromised the national security of this country.
HANNITY: Are you at all concerned about a double standard between the people that are criticizing the president's policy here, more specifically Al Gore and the Clinton administration, and their own practices? Do you see any hypocrisy that you're willing to discuss publicly?
GONZALES: Well, again, what I can say is that there have been examples under the previous administration where there were physical searches conducted without warrants, in order to gather up foreign intelligence.
And as I indicated earlier, the deputy attorney general in the previous administration did testify that the president does have the inherent authority under the Constitution to engage in warrantless physical searches for purposes of gathering up foreign intelligence. And so that would appear to be inconsistent with what former Vice President Gore was talking about today.
HANNITY: You know, you're in this legal profession. Let me just change topics for a second. We've been following a story on this program. An admitted rapist of a 7-year-old girl, repeatedly raped her over a period of four years, a judge says he's no longer for punishment, only gave this rapist 60 days in jail. What are your thoughts, when you hear something like that, as a man who represents the law?
GONZALES: That is very troubling to me. It's one of the reasons why our sentencing guidelines are very, very important. I think we need to have uniformity of sentencing around the country. I think it's important to give judges some level of discretion.
But I worry about, if they're giving total discretion, you may have these kind of results throughout the country. And so this would be something that I would be very concerned about.
HANNITY: First of all, how did you think Judge Alito did in the hearings? And do you expect full confirmation? Are you concerned about the delay tactics the Democrats seem to be wanting to adopt?
GONZALES: Well, every expectation, all indications are — is that Judge Alito will be confirmed. I think Judge Alito did a really fine job in his hearings. I think he answered the questions that he could answer.
There are judicial canons that limit his ability to answer certain questions. And I think he was forthcoming — as forthcoming as he could be.
We're in the process now of Judge Alito answering written questions. And there will be many of those. And at the end of the day, there will be ample information about the qualifications of this fine man, in order for the entire Senate to make an informed judgment as to whether he should serve on the Supreme Court.
And I believe he should serve. I think he's well-qualified and should serve on the Supreme Court.
HANNITY: Mr. Attorney General, thank you for being with us. And hope to see you soon. Thank you.
GONZALES: Thank you, Sean.
Watch "Hannity & Colmes" weeknights at 9 p.m. ET!
Content and Programming Copyright 2005 FOX News Network, L.L.C. ALL RIGHTS RESERVED. Transcription Copyright 2005 eMediaMillWorks, Inc. (f/k/a Federal Document Clearing House, Inc.), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon FOX News Network, L.L.C.'s and eMediaMillWorks, Inc.'s copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.