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February 1, 2006

Daniel P. Mulholland
Congressional Research Service
Library of Congress
Washington, DC 20540

Dear Mr. Mulholland:

I previously wrote to you on January 19, 2006, regarding CRS's work on certain intelligence matters. Specifically, I expressed concern that CRS should not speculate on highly classified intelligence matters on which it could be erroneously viewed by the public as an authoritative source, amd that its previous work was not conducted in a thorough and objective fashion. Subsequently, CRS has issued another memorandum with similar problems. I ask for immediate action on your part to ensure that CRS truly provides "comprehensive and reliable" legislative research that is "free of partisan or other bias."

As you know, on January 18, CRS Analyst Alfred Cumming completed a memorandum entitled "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions." The memorandum subseequently was characterized in media headlines thusly: "Congressional Agency Questions Legality of Wiretaps."1 The memorandum erroneously contended that certain intelligence reporting practices "would appear to be inconsistent with law, which requires that the 'congressional intelligence committees be kept fully and currently informed of all intelligence activities,' other than those involving covert actions."2 Once again, CRS has issued a memorandum on a highly sensitive intelligence issue on which it had no firsthand knowledge of the practices being followed by the Committee and the President and ignored highly relevant legal authorities and considerations.

Although I am not compelled to enter into a debate with CRS with respect to the practices of the Permanent Select Committee on Intelligence, I do want to point out three authorities highly relevant to the subject of the memorandum that were completely ignored by CRS. First, Section 501 of the National Security Act (50 U.S.C. §413) expressly provides that "The President and the congressional intelligence committees shall establish such procedures as may be necessary to carry out the provisions of this title." These procedures apply to the reporting requircd under Section 502 of the National Security Act, which was improperly read by Mr. Cumming in isolation. As I have publicly indicated on many occasions, I and the Ranking Member were fully briefed on many occasions on the activities in question in a manner fully consistent with the practices that had been developed between the Committee and the President under the authority provided in Section 501.

Second, CRS completely ignored the most basic principles of statutory interpretation. Those principles clearly establish that terms not specifically included in the text of a statute generally will not be read into it. The plain text of Section 502 nowhere requires individual members of the Committee to be briefed with respect to all intelligence activities. Putting aside the important policy question of whether it is desirable to brief additional members of the Committee, it is clear that such reporting is not mandated by the law.3.

Third, the Chairman (sometimes along with the Ranking Member) under longstanding practice customarily receives many statutorily mandated reports on behalf of the full Committee. It has never before been seriously argued that this practice is inconsistent with any of the statutes requiring these reports, even absent the type of clear guidance provided in Section 501.

Such a flawed and obviously incomplete analysis, seemingly intended to advocate the erroneous conclusion that the President did not comply with the relevant law, further reinforces my previously expressed concern that CRS's work on these matters has not been "free of partisan or other bias." Media reports have further suggested the possibility of additional circumstances that could lead an objective observer to question whether the memorandum in question was truly nonpartisan.4

Once again, I would appreciate your assistance in ensuring that CRS refrain from speculating with respect to highly sensitive national security matters on which it has no authoritative knowledge, as well as ensuring that CRS allows the position of Congress on policy issues relating to intelligence to bc determined by elected Members of Congress, Republican and Democrat, rather than by CRS staff.

The Honorable J. Dennis Hastert
Speaker of the House

The Honorable Vern Ehlers
Committee on House Administration

The Honorable Jerry Lewis
Committee on Appropriations