109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-382
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DIRECTING THE ATTORNEY GENERAL TO SUBMIT TO THE HOUSE OF
REPRESENTATIVES ALL DOCUMENTS IN THE POSSESSION OF THE ATTORNEY GENERAL
RELATING TO WARRANTLESS ELECTRONIC SURVEILLANCE OF TELEPHONE
CONVERSATIONS AND ELECTRONIC COMMUNICATIONS OF PERSONS IN THE UNITED
STATES CONDUCTED BY THE NATIONAL SECURITY AGENCY
_______
March 2, 2006.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
DISSENTING VIEWS
[To accompany H. Res. 643]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 643) directing the Attorney General to
submit to the House of Representatives all documents in the
possession of the Attorney General relating to warrantless
electronic surveillance of telephone conversations and
electronic communications of persons in the United States
conducted by the National Security Agency, having considered
the same, report unfavorably thereon without amendment and
recommend that the resolution not be agreed to.
PURPOSE AND SUMMARY
House Resolution 643, introduced by Representative John
Conyers (D-MI) on December 22, 2005, directs the Attorney
General to transmit to the House of Representatives, not later
than 14 days after the date of adoption of this resolution, all
documents in the possession of the Attorney General relating to
warrantless electronic surveillance of telephone conversations
and electronic communications of persons in the United States
conducted by the National Security Agency (other than such
warrantless electronic surveillance authorized to be conducted
under section 102(a) of the Foreign Intelligence Surveillance
Act of 1978), subject to necessary redactions or requirements
for handling classified documents, including any and all
opinions regarding warrantless electronic surveillance of
telephone conversations and electronic communications of
persons in the United States.
BACKGROUND
House Resolution 643 is a resolution of inquiry. Under the
rules and precedents of the House of Representatives, a
resolution of inquiry allows the House to request information
from the President of the United States or to direct the head
of one of the executive departments to provide such
information. More specifically, according to Deschler's
Precedents, it is a ``simple resolution making a direct request
or demand of the President or the head of an executive
department to furnish the House of Representatives with
specific factual information in the possession of the executive
branch. The practice is nearly as old as the Republic, and is
based on principles of comity between the executive and
legislative branches rather than on any specific provision of
the Constitution that a Federal court may be called upon to
enforce.'' \1\
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\1\ 7 Deschler's Precedents of the House of Representatives, ch.
24, Sec. 8.
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A resolution of inquiry is privileged and thus may be
considered at any time after it is properly reported or
discharged from the committee to which it is referred.\2\
Clause 7 of Rule XIII of the Rules of the House of
Representatives provides that if the committee to which the
resolution is referred does not act on the resolution within 14
legislative days, a privileged motion to discharge that
committee accorded privileged consideration on the House floor.
In calculating the days available for committee consideration,
the day of introduction and the day of discharge are not
counted.\3\
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\2\ 7 Deschler's Precedents of the House of Representatives, ch.
24, Sec. 8.
\3\ William Holmes Brown, House Practice: A Guide to the Rules,
Precedents and Procedures of the House 819 (2003).
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A committee has a number of choices in disposing of a
resolution of inquiry. It may vote on the resolution without
amendment, or it may amend it. It may report the resolution
favorably, adversely, or with no recommendation. A committee
that adversely reports a resolution of inquiry does not
necessarily oppose the resolution under consideration. In the
past, resolutions of inquiry have frequently been reported
adversely for various reasons. Two common ones are that an
administration is in substantial compliance with the request
made by the resolution or that there is an ongoing competing
investigation. There is also past precedent for a resolution of
inquiry to be adversely reported because the nature of the
information requested was highly sensitive.\4\ Upon its
introduction on December 22, 2005, H. Res. 643 was referred to
the Committee on the Judiciary. On February 15, 2006 H. Res.
643 was ordered reported adversely by the Committee, which was
within the 14 legislative day period.
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\4\ H.R. Rep. No. 1079, 92nd Cong., 2nd Sess., (1972).
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House Resolution 643 directs the Attorney General to
transmit to the House of Representatives documents related to
opinions of the legality of the surveillance and documents that
are of a highly sensitive nature. Furthermore, Congress has
received and continues to receive information responsive to the
request for information contained in the resolution.
The war on terror
Osama Bin Laden, the head of the terrorist organization al-
Qaeda, declared war on the United States in 1996. America
ignored that declaration until the morning of September 11,
2001, when members of the terrorist organization attacked the
United States by crashing four hijacked civilian airliners into
the World Trade Center, the Pentagon, and a Pennsylvania field,
killing over 3,000 people and injuring over 2,000. In response
to this act of war by a terrorist organization--rather than a
nation state--Congress passed the Authorization for Use of
Military Force (AUMF) on September 14, 2001, which the
President signed into law on September 18, 2001.\5\
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\5\ Pub. L. No. 107-40.
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The leak of the highly classified Terrorist Surveillance Program (TSP)
On December 16, 2005, the New York Times reported that
President Bush ordered the National Security Agency (NSA) to
conduct warrantless wiretaps on calls placed or received in the
United States, to or from a foreign country. One of the New
York Times reporters who broke the story, James Risen, also
included an account of the NSA program in a book already
submitted for publication. When explaining the decision to
delay publication of the story for nearly a year, New York
Times executive Bill Keller stated after its publication that:
``[I]n the course of subsequent reporting we satisfied
ourselves that we could write about this program--withholding a
number of technical details--in a way that would not expose any
intelligence-gathering methods or capabilities that are not
already on the public record.'' The date of publication
coincided with thedate upon which the Senate voted on a motion
to end debate on H.R. 3199, the ``USA PATRIOT Improvement and
Reauthorization Act of 2005.'' The New York Times article has
subsequently spurned a debate as to whether the President went beyond
his Executive powers when he authorized the NSA Terrorist Surveillance
Program (TSP).
Pending criminal investigation into the unauthorized disclosure
investigation of the Terrorist Surveillance Program
On December 30, 2005, the Justice Department opened a
criminal investigation into the unauthorized disclosure of the
existence of this highly classified program. MSNBC.com reported
that, ``White House spokesman Trent Duffy said Justice
undertook the action on its own, and the president was informed
of it on Friday. 'The leaking of classified information is a
serious issue. The fact is that al-Qaeda's playbook is not
printed on Page One and when America's is, it has serious
ramifications,' Duffy told reporters in Crawford, Texas, where
Bush was spending the holidays.'' \6\ Several additional
reports confirm the existence of an ongoing criminal
investigation into this matter. \7\
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\6\ Justice Dept. to probe leak of spy program, the Associated
Press, Dec. 30, 2005, available at http://msnbc.msn.com/id/10651154/
from/RL.1/.
\7\ David Johnston, Officials interviews in widening inquiry into
eavesdropping article, N.Y. Times, February 13, 2006. Dan Eggen,
Eavesdropping Inquiry Begins Officials Question if Secret Material
Leaked Illegally, the Washington Post, Dec. 31, 2005.
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Documents and information pertaining to TSP already presented to
Congress and to the public
H. Res. 643 requests internal documents that are related to
a highly sensitive national security program. The following
summary highlights efforts by the Department of Justice and the
Administration to provide information about TSP to Congress and
the public. These efforts include providing documents,
conducting classified briefings, and presenting hearing
testimony relating to these issues.
(1) December 17, 2005 radio address by the President \8\
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\8\ Radio Address of the President to the Nation, Dec. 17, 2005,
http://www.whitehouse.gov/news/releases/2005/12/20051217.html (last
visited February 2, 2006)
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The day following the publication of the New York Times
story, the President gave a radio address and acknowledged the
existence of the program. He stated: ``To fight the war on
terror, I am using authority vested in me by Congress,
including the Joint Authorization for Use of Military Force,
which passed overwhelmingly in the first week after September
the 11th. I'm also using constitutional authority vested in me
as Commander-in-Chief.'' \9\ The President stated that the TSP
began ``[i]n the weeks following the terrorist attacks on our
nation,'' when ``[he] authorized the National Security Agency,
consistent with U.S. law and the Constitution, to intercept the
international communications of people with known links to al-
Qaeda and related terrorist organizations.'' \10\
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\9\ Id.
\10\ Id.
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The President explained that these intercepts were related
to the war on terrorism and that ``[b]efore we intercept these
communications, the government must have information that
establishes a clear link to these terrorist networks.'' He also
explained that the program was a ``highly classified program''
and ``crucial to our national security.'' \11\
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\11\ Id.
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He reminded the public that as the ``9/11 Commission
pointed out, it was clear that terrorists inside the United
States were communicating with terrorists abroad before the
September the 11th attacks, and the Commission criticized our
nation's inability to uncover links between terrorists here at
home and terrorists abroad. Two of the terrorist hijackers who
flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al
Mihdhar, communicated while they were in the United States to
other members of al-Qaeda who were overseas. But we didn't know
they were here, until it was too late.'' \12\
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\12\ Id.
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The President stated that ``[t]he authorization [he] gave
the National Security Agency after September the 11th helped
address that problem in a way that is fully consistent with
[his] constitutional responsibilities and authorities.'' He
stated that ``the activities [he] authorized are reviewed
approximately every 45 days. Each review is based on a fresh
intelligence assessment of terrorist threats to the continuity
of our government and the threat of catastrophic damage to our
homeland. During each assessment, previous activities under the
authorization are reviewed. The review includes approval by our
nation's top legal officials, including the Attorney General
and the Counsel to the President. [He has] reauthorized this
program more than 30 times since the September the 11th
attacks, and [he] intend[s] to do so for as long as our nation
faces a continuing threat from al-Qaeda and related groups.''
\13\
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\13\ Id.
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The President explained that a review process of the NSA's
activities exists that includes thorough review by the Justice
Department and NSA's top legal officials, including NSA's
general counsel and inspector general. He also pointed out that
the leadership and the Intelligence Committee chairs and
ranking members ``have been briefed more than a dozen times on
this authorization and the activities conducted under it.''
\14\
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\14\ Id.
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The President concluded that ``[t]he American people expect
[him] to do everything in [his] power under our laws and
Constitution to protect them and their civil liberties.'' He
promised that that ``is exactly what [he] will continue to do,
so long as [he's] the President of the United States.'' \15\
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\15\ Id.
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(2) December 18, 2005 broadcast television interview of the
Vice President of the United States
On December 18, 2005, the Vice President discussed the TSP,
and other issues in a network television interview. The Vice
President explained the legal authority of the program and
stated that it was ``consistent with the President's
constitutional authority as Commander-in-Chief. It's consistent
with the resolution that passed by the Congress after 9/11. And
it has been reviewed repeatedly by the Justice Department. . .
. '' \16\
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\16\ Interview by ABC News with Richard Cheney, Vice President,
United States (December 18, 2005), available at http://
www.whitehouse.gov/news/releases/2005/12/20051218-4.html.
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(3) December 19, 2005 press briefing by Attorney General
Alberto Gonzales and General Michael Hayden,
Principal Deputy Director for National Intelligence
On December 19, 2005, the White House held a press briefing
with Attorney General Alberto Gonzales and General Hayden, the
Principal Deputy Director for National Intelligence, to brief
the press and the public on the legal issues surrounding the
authorization of the TSP. At the briefing, the Attorney General
and General Hayden explained the legal bases of the program and
provided details on unclassified aspects of the program. The
Attorney General emphasized that the targeted phone calls were
not domestic but rather ``intercepts of contents of
communications where one of the--one party to the communication
is outside the United States.'' He went on to state:
[W]e also believe the President has the inherent
authority under the Constitution, as Commander-in-
Chief, to engage in this kind of activity. Signals
intelligence has been a fundamental aspect of waging
war since the Civil War, where we intercepted
telegraphs, obviously, during the world war, as we
intercepted telegrams in and out of the United States.
Signals intelligence is very important for the United
States government to know what the enemy is doing, to
know what the enemy is about to do. It is a fundamental
incident of war, as Justice O'Connor talked about in
the Hamdi decision. We believe that--and those two
authorities exist to allow, permit the United States
government to engage in this kind of surveillance.\17\
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\17\ Alberto Gonzales, U.S. Attorney General, NSA Terrorist
Surveillance Program, Press Briefing before the White House Press Corp
(Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/
2005/12/20051219-1.html.
General Hayden added that the program ``is less intrusive
[than FISA]. It deals only with international calls. It is
generally for far shorter periods of time. And it is not
designed to collect reams of intelligence, but to detect and
warn and prevent [future] attacks.'' \18\
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\18\ General Michael Hayden, U.S. Principal Deputy Director for
National Intelligence, NSA Terrorist Surveillance Program, Press
Briefing before the White House Press Corp (Dec. 19, 2005), available
at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
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(4) December 22, 2005 Department of Justice letter to the
chairmen and ranking members of the House and
Senate Intelligence Committees
The Department of Justice sent a letter to the Chairmen and
Ranking Members of the House and Senate Committees on
Intelligence on December 22, 2005, to provide ``an additional
brief summary of the legal authority supporting the NSA
activities described by the President.'' \19\ In summary, the
letter states that ``[u]nder Article II of the Constitution,
including in his capacity as Commander-in-Chief, the President
has the responsibility to protect the Nation from further
attacks, and the Constitution gives him all necessary authority
to fulfill that duty.'' \20\ In the letter, the Attorney
General further states that ``this constitutional authority
includes authority to order warrantless foreign intelligence
surveillance within the United States, as all Federal appellate
courts, including at least four circuits to have addressed the
issue, have concluded.'' \21\ The Attorney General also
emphasized that the TSP is consistent with the Foreign
Intelligence Surveillance Act because Congress provided
authority in the Authorization of the Use of Military Force
(Pub. L. No. 107-40) that ``the President has the authority
under the Constitution to take action to deter and prevent acts
of international terrorism against the United States.'' \22\
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\19\ Letter from William A. Moschella, U.S. Assistant Attorney
General, Department of Justice, to Chairmen Pete Hoekstra and Pat
Roberts, Ranking Member Jane Harman and Vice Chairman John D.
Rockefeller IV, House and Senate Intelligence Committees, available at
http://www.epic.org/privacy/terrorism/fisa/nsaletter122205.pdf.
\20\ Id.
\21\ Id.
\22\ Id.
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(5) January 11, 2006, Presidential discussion of the global
war on terror at the Kentucky International
Convention Center, Louisville, Kentucky
On January 11, 2006, the President participated in a
discussion on the Global War on Terror at the Kentucky
International Convention Center in Louisville, Kentucky at
which he provided additional legal justification for the
establishment of the TSP.\23\
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\23\ A transcript of these remarks can be found at http://
www.whitehouse.gov/news/releases/2006/01/20060111-7.html.
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(6) January 19, 2006 Department of Justice white paper on
legal authorities supporting the activities of the
National Security Agency described by the President
On January 19, 2006, the Department of Justice sent a 42-
page legal analysis explaining the ``legal authorities
supporting the activities of the National Security Agency
described by the President.'' Addressed to Senate Majority
Leader Frist and signed by Attorney General Alberto Gonzales,
the cover letter stated:
As I have previously explained, these NSA activities
are lawful in all respects. They represent a vital
effort by the President to ensure that we have in place
an early warning system to detect and prevent another
catastrophic terrorist attack on America. In the
ongoing armed conflict with al-Qaeda and its allies,
the President has the primary duty under the
Constitution to protect the American people. The
Constitution gives the President the full authority
necessary to carry out that the solemn duty, and he has
made clear that he will use all authority available to
him, consistent with the law, to protect the Nation.
The President's authority to approve these NSA
activities is confirmed and supplemented by Congress in
the Authorization for Use of Military Force (AUMF),
enacted on September 18, 2001. As discussed in depth in
the attached paper, the President's use of his
constitutional authority, as supplemented by statute in
the AUMF, is consistent with the Foreign Intelligence
Surveillance Act and is also fully protective of the
civil liberties guaranteed by the Fourth Amendment.\24\
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\24\ Letter from Alberto Gonzales, U.S. Attorney General,
Department of Justice, to Senator Bill Frist, Majority Leader, U.S.
Senate (January 19, 2006), available at http://
permanent.access.gpo.gov/lps66493/
White%20Paper%20on%20NSA%20Legal%20Authorities.pdf.
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(7) January 23, 2006 press conference by former NSA
Director General Hayden
On January 23, 2006, General Hayden held a press conference
in which he provided unclassified details concerning the TSP.
He emphasized that the TSP only intercepted suspected enemy
electronic signals when there was ``reason to believe that one
or both communicants are affiliated with al-Qaeda.'' \25\
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\25\ General Michael Hayden, U.S. Principal Deputy Director for
National Intelligence, What American Intelligence and Especially the
NSA Have Been Doing to Defend the Nation, Remarks before the National
Press Club (January 23, 2006), available at http://www.dni.gov/
release_letter_012306.html.
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In explaining what NSA is not doing, General Hayden
discussed the volume of misinformation in the public record
concerning the NSA and stressed that the NSA is acutely aware
of the balance between security and civil liberties. He stated
that:
the great urban legend out there then was something
called ``Echelon,'' and the false accusation that NSA
was using its capabilities to advance American
corporate interests: signals intelligence for General
Motors, or something like that.
You know, with these kinds of charges, the turf back
then feels a bit familiar now. How could we prove a
negative, that we weren't doing certain things, without
revealing the appropriate things we were doing that
kept America safe? You see, NSA had--NSA has--an
existential problem. In order to protect American lives
and liberties, it has to be two things: powerful in its
capabilities and secretive in its methods. And we exist
in a political culture that distrusts two things most
of all: power and secrecy.
Modern communications didn't make this any easier.
Gone were the days when signals of interest--that's
what NSA calls the things that they want to copy--gone
were the days when signals of interest went along some
dedicated microwave link between Strategic Rocket
Force's headquarters in Moscow and some ICBM in western
Siberia.
By the late '90s, what NSA calls targeted
communications--things like al-Qaeda communications--
coexisted out there in a great global web with your
phone calls and my e-mails. NSA needed the power to
pick out the ones, and the discipline to leave the
others alone. So, this question of security and liberty
wasn't a new one for us in September of 2001. We've
always had this question: How do we balance the
legitimate need for foreign intelligence with our
responsibility to protect individual privacy rights?
It's a question drilled into every employee of NSA from
day one, and it shapes every decision about how NSA
operates.
September 11th didn't change that.\26\
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\26\ Id.
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(8) January 24, 2006 remarks by Attorney General Gonzales
at the Georgetown University Law Center concerning
the legal basis of the TSP
On January 24, 2006, the Attorney General publicly outlined
the Administration's view of its legal authority to conduct
wartime electronic surveillance:
Some contend that even if the President has
constitutional authority to engage in the surveillance
of our enemy in a time of war, that authority has been
constrained by Congress with the passage in 1978 of the
Foreign Intelligence Surveillance Act. Generally, FISA
requires the government to obtain an order from a
special FISA court before conducting electronic
surveillance. It is clear from the legislative history
of FISA that there were concerns among Members of
Congress about the constitutionality of FISA itself.
For purposes of this discussion, because I cannot
discuss operational details, I'm going to assume here
that intercepts of al-Qaeda communications under the
terrorist surveillance program fall within the
definition of ``electronic surveillance'' in FISA.
The FISA Court of Review, the special court of
appeals charged with hearing appeals of decisions by
the FISA court, stated in 2002 that, quote, ``[w]e take
for granted that the President does have that
[inherent] authority'' and, ``assuming that is so, FISA
could not encroach on the President's constitutional
power.'' We do not have to decide whether, when we are
at war and there is a vital need for the terrorist
surveillance program, FISA unconstitutionally
encroaches--or places an unconstitutional constraint
upon--the President's Article II powers. We can
avoidthat tough question because Congress gave the President the Force
Resolution, and that statute removes any possible tension between what
Congress said in 1978 in FISA and the President's constitutional
authority today.
Let me explain by focusing on certain aspects of FISA
that have attracted a lot of attention and generated a
lot of confusion in the last few weeks.
First, FISA, of course, allows Congress to respond to
new threats through separate legislation. FISA bars
persons from intentionally ``engag[ing] . . . in
electronic surveillance under color of law except as
authorized by statute.'' For the reasons I have already
discussed, the Force Resolution provides the relevant
statutory authorization for the terrorist surveillance
program. Hamdi makes it clear that the broad language
in the Resolution can satisfy a requirement for
specific statutory authorization set forth in another
law.
Hamdi involved a statutory prohibition on all
detention of U.S. citizens except as authorized
``pursuant to an Act of Congress.'' Even though the
detention of a U.S. citizen involves a deprivation of
liberty, and even though the Force Resolution says
nothing on its face about detention of U.S. citizens, a
majority of the members of the Court nevertheless
concluded that the Resolution satisfied the statutory
requirement. The same is true, I submit, for the
prohibition on warrantless electronic surveillance in
FISA.
You may have heard about the provision of FISA that
allows the President to conduct warrantless
surveillance for 15 days following a declaration of
war. That provision shows that Congress knew that
warrantless surveillance would be essential in wartime.
But no one could reasonably suggest that all such
critical military surveillance in a time of war would
end after only 15 days.
Instead, the legislative history of this provision
makes it clear that Congress elected NOT TO DECIDE how
surveillance might need to be conducted in the event of
a particular armed conflict. Congress expected that it
would revisit the issue in light of events and likely
would enact a special authorization during that 15-day
period. That is exactly what happened three days after
the attacks of 9/11, when Congress passed the Force
Resolution, permitting the President to exercise ``all
necessary and appropriate'' incidents of military
force.
Thus, it is simply not the case that Congress in 1978
anticipated all the ways that the President might need
to act in times of armed conflict to protect the United
States. FISA, by its own terms, was not intended to be
the last word on these critical issues.
Second, some people have argued that, by their terms,
Title III and FISA are the ``exclusive means'' for
conducting electronic surveillance. It is true that the
law says that Title III and FISA are ``the exclusive
means by which electronic surveillance . . . may be
conducted.'' But, as I have said before, FISA itself
says elsewhere that the government cannot engage in
electronic surveillance ``except as authorized by
statute.'' It is noteworthy that, FISA did not say
``the government cannot engage in electronic
surveillance `except as authorized by FISA and Title
III.' '' No, it said, except as authorized by statute--
any statute. And, in this case, that other statute is
the Force Resolution.
Even if some might think that's not the only way to
read the statute, in accordance with long recognized
canons of construction, FISA must be interpreted in
harmony with the Force Resolution to allow the
President, as Commander in Chief during time of armed
conflict, to take the actions necessary to protect the
country from another catastrophic attack. So long as
such an interpretation is ``fairly possible,'' the
Supreme Court has made clear that it must be adopted,
in order to avoid the serious constitutional issues
that would otherwise be raised.
Third, I keep hearing, ``Why not FISA? Why didn't the
President get orders from the FISA court approving
these NSA intercepts of al-Qaeda communications?''
We have to remember that we're talking about a
wartime foreign intelligence program. It is an ``early
warning system'' with only one purpose: To detect and
prevent the next attack on the United States from
foreign agents hiding in our midst. It is imperative
for national security that we can detect RELIABLY,
IMMEDIATELY, and WITHOUT DELAY whenever communications
associated with al-Qaeda enter or leave the United
States. That may be the only way to alert us to the
presence of an al-Qaeda agent in our country and to the
existence of an unfolding plot.
Consistent with the wartime intelligence nature of
this program, the optimal way to achieve the necessary
speed and agility is to leave the decisions about
particular intercepts to the judgment of professional
intelligence officers, based on the best available
intelligence information. They can make that call
quickly. If, however, those same intelligence officers
had to navigate through the FISA process for each of
these intercepts, that would necessarily introduce a
significant factor of DELAY, and there would be
critical holes in our early warning system.
Some have pointed to the provision in FISA that
allows for so-called ``emergency authorizations'' of
surveillance for 72 hours without a court order.
There's a serious misconception about these emergency
authorizations. People should know that we do not
approve emergency authorizations without knowing that
we will receive court approval within 72 hours. FISA
requires the Attorney General to determine IN ADVANCE
that a FISA application for that particular intercept
will be fully supported and will be approved by the
court before an emergency authorization may be granted.
That review process can take precious time.
Thus, to initiate surveillance under a FISA emergency
authorization, it is not enough to rely on the best
judgment of our intelligence officers alone. Those intelligence
officers would have to get the sign-off of lawyers at the NSA that all
provisions of FISA have been satisfied, then lawyers in the Department
of Justice would have to be similarly satisfied, and finally as
Attorney General, I would have to be satisfied that the search meets
the requirements of FISA. And we would have to be prepared to follow up
with a full FISA application within the 72 hours.
A typical FISA application involves a substantial
process in its own right: the work of several lawyers;
the preparation of a legal brief and supporting
declarations; the approval of a Cabinet-level officer;
a certification from the National Security Adviser, the
Director of the FBI, or another designated Senate-
confirmed officer; and, finally, of course, the
approval of an Article III judge.
We all agree that there should be appropriate checks
and balances on our branches of government. The FISA
process makes perfect sense in almost all cases of
foreign intelligence monitoring in the United States.
Although technology has changed dramatically since FISA
was enacted, FISA remains a vital tool in the War on
Terror, and one that we are using to its fullest and
will continue to use against al-Qaeda and other foreign
threats. But as the President has explained, the
terrorist surveillance program operated by the NSA
requires the maximum in speed and agility, since even a
very short delay may make the difference between
success and failure in preventing the next attack. And
we cannot afford to fail.\27\
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\27\ Alberto Gonzales, U.S. Attorney General, Department of
Justice, Remarks at the Georgetown University Law Center (January 24,
2006), available at http://www.usdoj.gov/ag/speeches/2006/
ag_speech_0601241.html.
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(9) January 25, 2006 Presidential visit and speech at the
National Security Agency
In a speech delivered during a visit to the National
Security Agency on January 25, 2006, the President stated `` .
. . I authorized a terrorist surveillance program to detect and
intercept al-Qaeda communications involving someone here in the
United States. This is a targeted program to intercept
communications in which intelligence professionals have reason
to believe that at least one person is a member or agent of al-
Qaeda or a related terrorist organization. The program applies
only to international communications. In other words, one end
of the communication must be outside the United States.'' \28\
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\28\ George W. Bush, President of the United States, Remarks at the
National Security Agency (January 25, 2006), available at http://
www.whitehouse.gov/news/releases/2006/01/20060125-1.html.
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He went on to explain:
We know that two of the hijackers who struck the
Pentagon were inside the United States communicating
with al-Qaeda operatives overseas. But we didn't
realize they were here plotting the attack until it was
too late.
Here's what General Mike Hayden said--he was the
former director here at NSA. He's now the Deputy
Director of the National Intelligence--Deputy Director
of National Intelligence--and here's what he said
earlier this week: ``Had this program been in effect
prior to 9/11, it is my professional judgment that we
would have detected some of the 9/11 al-Qaeda
operatives in the United States, and we would have
identified them as such.''
The 9/11 Commission made clear, in this era of new
dangers we must be able to connect the dots before the
terrorists strike so we can stop new attacks. And this
NSA program is doing just that. General Hayden has
confirmed that America has gained information from this
program that would not otherwise have been available.
This information has helped prevent attacks and save
American lives. This terrorist surveillance program
includes multiple safeguards to protect civil
liberties, and it is fully consistent with our nation's
laws and Constitution. Federal courts have consistently
ruled that a President has authority under the
Constitution to conduct foreign intelligence
surveillance against our enemies.\29\
---------------------------------------------------------------------------
\29\ Id.
---------------------------------------------------------------------------
(10) January 26, 2006 Department of Justice briefing to the
Senate Judiciary Committee
The Department of Justice provided the Senate Judiciary
Committee a briefing prior to the scheduled February 6, 2006
hearing.
(11) February 1, 2006 Department of Justice briefing to the
Senate Select Committee on Intelligence
On February 1, 2006, the Administration provided a
classified briefing to the Senate Select Committee on
Intelligence.
(12) February 3, 2006 Department of Justice response to
January 24, 2006 letter from Senate Judiciary
Chairman Arlen Specter
On January 24, 2006, Senator Specter, Chairman of the
Senate Committee on the Judiciary, sent a letter to the
Department of Justice that contained 15 questions in advance of
the panel's February 6, 2006, hearing requesting the Department
to explain the legal authority for the program. The Attorney
General responded in writing on February 3, 2006, answering
each question.
(13) February 3, 2006 Department of Justice response to
January 24, 2006 letter from Senate Judiciary
Democrat members
On January 27, 2006, Democratic Members of the Senate
Judiciary Committee sent a letter to the Department of Justice
regarding the TSP. On February 3, 2006, the Department of
Justice sent a letter notifying the Senators that the
Department had received the letter and was in the process of
responding.
(14) February 3, 2006 Department of Justice response to
January 30, 2006 letter from Senator Feinstein
On January 30, 2006, Senator Feinstein sent the Department
of Justice a letter regarding the TSP. On February 3, 2006, the
Department of Justice sent a letter notifying the Senator that
the Department was working on a response.
(15) February 3, 2006 Department of Justice response to
January 30, 2006 letter from Senator Feingold
On January 30, 2006, Senator Feingold sent a letter to the
Department of Justice about the TSP. On February 3, 2006, the
Department of Justice responded to the Senator's letter
notifying the Senator that the Department was working on a
response.
(16) February 3, 2006 Department of Justice response to
January 31, 2006 letter from Senator DeWine
On January 31, 2006, Senator DeWine sent a letter
questioning the Department of Justice about the TSP. On
February 3, 2006, the Department of Justice responded to
Senator DeWine notifying the Senator that the Department was
working on a response.
(17) February 6, 2006 Senate Judiciary hearing: ``Wartime
Executive Power and the NSA's Surveillance''
The Attorney General testified before the Senate Judiciary
Committee on February 6, 2006 from 9:30 a.m. to shortly after
5:30 p.m. The Attorney General provided detailed information
pertaining to the legal authority and scope of the program.
(18) February 8, 2006 hearing before the House Permanent
Select Committee on Intelligence
On February 8, 2006, Attorney General Gonzales and General
Hayden testified in a closed classified hearing before the
House Permanent Select Committee on Intelligence answering
questions about the TSP.
(19) February 8, 2006 Departments of Justice and Defense
briefing to the House Armed Services Committee
On February 8, 2006, the Departments of Justice and Defense
presented a classified briefing to the House Committee on Armed
Services regarding the National Security Agency Terrorism
Surveillance Program.
(20) February 9, 2006 hearing before the Senate Select
Committee on Intelligence
On February 9, 2006, Attorney General Gonzales and former
NSA Director General Hayden testified in a closed classified
hearing before the Senate Select Committee on Intelligence
answering questions about the National Security Agency
Terrorism Surveillance Program.
(21) February 9, 2006 Department of Justice response to the
February 8, 2006 letter from House Judiciary
Committee Chairman F. James Sensenbrenner, Jr.
On February 8, 2006, Judiciary Committee Chairman
Sensenbrenner, Jr., sent a 14-page letter to the Department of
Justice with 51 questions regarding the legal authority, the
review process, and scope of the TSP. On February 9, 2006, the
Department of Justice sent a letter notifying the Chairman that
the Department had received the letter and was in the process
of answering the questions.
(22) February 13, 2006 Department of Justice briefing to
the House Committees on Judiciary and
Appropriations
On February 13, 2006, the Department of Justice presented a
briefing to the House Committees on Judiciary and
Appropriations on the legal authority of the program.
D. Sensitive documents requested
The United States is engaged in a war against terrorism and
this resolution calls for integral information, much of which
is of a highly sensitive and classified nature.
As the Weapons of Mass Destruction Commission explained as
it discussed the threats from other countries: ``. . . for
several reasons, penetrating these targets has also become more
difficult than ever before. For example, authorized and
unauthorized disclosures of U.S. sources and methods have
significantly impaired the effectiveness of our collection
systems. Put simply, our adversaries have learned much about
what we can see and hear, and have predictably taken steps to
thwart our efforts.'' \30\
---------------------------------------------------------------------------
\30\ WMD Commission p. 354 citing National Intelligence Council
(NIC), Title Classified (NIE 98-04) (1998-99).
---------------------------------------------------------------------------
Echoing this concern, on a February 12, 2006 television
appearance, Representative Hoekstra, Chairman of the House
Intelligence Committee stated: ``Does anyone really believe
that after 50 days of having the program on the front page of
our newspapers, across talk shows across America, that al-Qaeda
has not changed the way that it communicates?'' \31\
---------------------------------------------------------------------------
\31\ Meet the Press Interview with Pete Hoekstra, House of
Representatives Committee on Intelligence Chairman (Feb. 12, 2006),
available at http://www.msnbc.msn.com/id/1127264/.
---------------------------------------------------------------------------
CONCLUSION
The Committee is reporting this resolution adversely for
several reasons. First, as the Committee on Armed Services
concluded in H.R. Rep. No. 92-1003, because of the highly
sensitive nature of the information requested, the public
revelation of such information would not be compatible with
national security interests. The United States is at war
against a diffuse and shifting international terrorist threat
and the information requested is directly related to a
classified program aimed at preventing future terrorist
attacks. The information requested concerns signals
intelligence and communications surveillance upon al-Qaeda. The
disclosure of this information could disrupt the efforts of our
military and Intelligence Community to prevent another attack
upon the United States. While this resolution contains language
intended to protect classified information, past disclosures
have led to leaks of valuable information. In addition, the
Committee is concerned that even unclassified briefings have
aided the country's enemies as the Administration has been
required to explain in an accessible public forum strategies
and operational details of operations aimed at preventing
terrorist attacks. Furthermore, theAdministration has already
demonstrated a willingness to provide information sought by the
resolution. Therefore, the Committee is following the precedents
established in H.R. Rep. Nos. 109-230, 108-658, and 92-1003, which
concluded that the sensitive nature of the information requested was
reason for adversely reporting a resolution of inquiry.
Second, H. Res. 643 has the potential to jeopardize the
ongoing criminal investigation of the leak. Due to the
classified nature of the NSA program, the Department of Justice
has opened a criminal investigation of the leak of the program
to the New York Times. A competing investigation is a common
reason that committees have opposed resolutions of inquiry in
the past. This Committee has previously reported resolutions of
inquiry adversely for this very reason. On July 29, 2005, this
Committee adversely reported House Resolution 420, in part, due
to an ongoing grand jury investigation.\32\ On September 7,
2004, the Committee adversely reported House Resolution 700, as
this resolution of inquiry requested documents related to
several ongoing investigations, among other things.\33\ On
February 27, 2004, this Committee adversely reported House
Resolution 499,\34\ a resolution of inquiry, due to an ongoing
grand jury investigation and, on July 17, 2003, adversely
reported House Resolution 287,\35\ a resolution of inquiry, due
to an ongoing competing investigation of the Inspector General
of the Department of Justice. The Committee has also reported a
resolution of inquiry adversely to avoid jeopardizing a
competing investigation into the Abscam case.\36\
---------------------------------------------------------------------------
\32\ H.R. Rept. 109-230, 109th Cong., 1st Sess. (2005)
\33\ H.R. Rept. 108-658, 108th Cong., 2nd Sess. (2004)
\34\ H.R. Rept. 108-413, Part 3, 108th Cong., 2nd Sess.(2004)
\35\ H.R. Rept. No. 108-215, 108th Cong., 1st Sess. (2004)
\36\ H.R. Rept. No. 96-778, 96th Cong., 2nd Sess. (1980).
---------------------------------------------------------------------------
Finally, the Administration has substantially complied with
information requested thereby diminishing the need to risk the
disclosure of national security classified information.
Congress has and continues to receive responsive information
pertinent to the information requested in H. Res. 643. Prior to
the New York Times article, the Administration had provided
classified briefings to Members of Congress throughout the
course of the program's implementation. After the leak of the
program, the Department of Justice sent a white paper to
Congress detailing the legal authority for the President to
establish the program. Furthermore, the Administration has
provided testimony in open and closed hearings to Congress
explaining the legal authority for the program, as well as
classified and unclassified briefings regarding the program,
its scope, and the Administration's authority. In addition, the
Administration has held public forums and press conferences to
inform the public about the TSP. Finally, the Administration
has answered and is still answering several letters sent by
various Members of Congress. These documents, speeches,
testimony, and press conferences have detailed the
Administration's legal reasoning for the President to authorize
the TSP.
Accordingly, because the resolution could jeopardize
national security and an ongoing criminal investigation; and
because the Administration has substantially complied with the
intent of the resolution, the Committee reported H. Res. 643
adversely.
HEARINGS
No hearings were held in the Committee on the Judiciary on
H. Res. 643.
COMMITTEE CONSIDERATION
On February 15, 2006, the Committee met in open session and
adversely reported the resolution H. Res. 643 by a roll call
vote of 21 to 16, a quorum being present.
VOTE OF THE COMMITTEE
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee sets forth the
following roll call votes that occurred during the Committee's
consideration of H. Res. 643:
Final Passage. The motion to report the resolution, H. Res.
643, adversely was agreed to by a rollcall vote of 21 to 16.
------------------------------------------------------------------------
Ayes Nays
------------------------------------------------------------------------
Mr. Hyde............................................ X
Mr. Coble........................................... X
Mr. Smith........................................... X
Mr. Gallegly........................................ X
Mr. Goodlatte....................................... X
Mr. Chabot.......................................... X
Mr. Lungren......................................... X
Mr. Jenkins......................................... X
Mr. Cannon.......................................... X
Mr. Bachus
Mr. Inglis.......................................... X
Mr. Hostettler...................................... ........ X
Mr. Green........................................... X
Mr. Keller.......................................... X
Mr. Issa............................................ X
Mr. Flake........................................... X
Mr. Pence........................................... X
Mr. Forbes.......................................... X
Mr. King............................................ X
Mr. Feeney.......................................... X
Mr. Franks.......................................... X
Mr. Gohmert......................................... X
Mr. Conyers......................................... ........ X
Mr. Berman.......................................... ........ X
Mr. Boucher
Mr. Nadler.......................................... ........ X
Mr. Scott........................................... ........ X
Mr. Watt............................................ ........ X
Ms. Lofgren......................................... ........ X
Ms. Jackson Lee..................................... ........ X
Ms. Waters.......................................... ........ X
Mr. Meehan.......................................... ........ X
Mr. Delahunt........................................ ........ X
Mr. Wexler.......................................... ........ X
Mr. Weiner.......................................... ........ X
Mr. Schiff.......................................... ........ X
Ms. Sanchez......................................... ........ X
Mr. Van Hollen...................................... ........ X
Mrs. Wasserman Schultz
Mr. Sensenbrenner, Chairman......................... X
-------------------
Total......................................... 21 16
------------------------------------------------------------------------
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
NEW BUDGET AUTHORITY AND TAX EXPENDITURES
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
COMMITTEE COST ESTIMATE
In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the Committee estimates the
costs of implementing the resolution would be minimal. The
Congressional Budget Office did not provide a cost estimate for
the resolution.
PERFORMANCE GOALS AND OBJECTIVES
H. Res. 643 does not authorize funding. Therefore, clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives is inapplicable.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the rule
does not apply because H. Res. 643 is not a bill or joint
resolution that may be enacted into law.
SECTION-BY-SECTION ANALYSIS AND DISCUSSION
The Resolution directs that the Attorney General transmit
to the House of Representatives not later than 14 days after
the date of the adoption of this resolution all documents in
the possession of the Attorney General, relating to warrantless
electronic surveillance of telephone conversations and
electronic communications of persons in the United States
conducted by the National Security Agency (other than such
warrantless electronic surveillance authorized to be conducted
under section 102(a) of the Foreign Intelligence Surveillance
Act of 1978), subject to necessary redactions or requirements
for handling classified documents, including any and all
opinions regarding warrantless electronic surveillance of
telephone conversations and electronic communications of
persons in the United States.
CHANGES IN EXISTING LAW MADE BY THE RESOLUTION, AS REPORTED
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, the Committee notes that H. Res.
643 makes no changes to existing law.
Markup Transcript
BUSINESS MEETING
WEDNESDAY, FEBRUARY 16, 2006
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
Room 2141, Rayburn House Office Building, the Honorable F.
James Sensenbrenner, Jr., (Chairman of the Committee)
presiding.
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present.
Pursuant to notice, I now call up H. Res. 643, directing
the Attorney General to submit to the House of Representatives
all documents in possession of the Attorney General relating to
warrantless electronic surveillance of telephone conversations
and electronic communications of persons in the United States
conducted by the National Security Agency for purposes of
markup and move that it be reported adversely to the House.
Without objection, the resolution will be considered as read
and open for amendment at any point, and the chair recognizes
himself for 5 minutes to speak on the resolution.
H. Res. 643 is a resolution of inquiry relating to the
President's legal authority to establish an NSA terrorist
surveillance program. This program, the operational details of
which remain classified, permits the NSA to monitor
communications of suspected terrorists overseas with persons in
the United States. Under Clause 7 of Rule 13 of the House
Rules, the Committee must report this resolution within 14
legislative days after its introduction or a privileged motion
to discharge the Committee from consideration would be in order
on the House floor.
On December 22, Ranking Member Conyers introduced the
resolution, as he states in his press release, to allow
Congress to obtain the necessary information so that we can
learn precisely what the legal basis was for this great
expansion of executive power.
Since the New York Times publicly disclosed this highly
classified program, the Administration has and continues to
provide information about its legality. The Administration has
conducted press conferences, public briefings, Congressional
briefings, both classified and unclassified, sent officials to
testify at Congressional hearings, and submitted responses to
several letters by Members of Congress explaining the legal
authority for establishing the program.
Whether or not Members agree with the Administration's
responses to the inquiries, this does not change the fact that
the Administration has substantially complied with the stated
purpose of this resolution of inquiry. Furthermore, there is
broad recognition that this program is highly classified in
nature and disclosure of its operational details could harm our
nation's efforts in the war on terror.
This Committee has adversely reported previous resolutions
of inquiry because the information they requested could harm
national security. Compounding the problem, due to the
classified nature of this program, the unauthorized leak of its
existence is now under criminal investigation. There is also
precedent that supports the adverse reporting of a resolution
that could interfere with a competing investigation. This
resolution requests all the documents related to the terrorist
surveillance program and that these are the same documents that
may be required in the criminal investigation.
Accordingly, I move that the Committee report the
resolution adversely. As with previous resolutions, this one
should be reported adversely because the Administration has
already substantially complied with the request, the
information requested is related to a highly classified
program, and there is an ongoing criminal investigation on the
leak of the existence of this program. I urge the Members to
support the motion to report adversely and recognize the
gentleman from Michigan, Mr. Conyers.
[The resolution, H. Res. 643, follows:]
Mr. Conyers. Thank you, Mr. Chairman and colleagues. I am
urging the Members here today to carefully consider the
resolution of inquiry which has been cosponsored by 44 Members
of Congress, including every single Democrat on this Committee.
Let me make it clear that we are requesting materials only.
This is a resolution not calling for a hearing, not calling for
subpoenaing anyone. It is merely a request for documents that--
it is a strategy by which the Chairman has used many, many
times. I have a list of such incidents in which that has gone
on.
We are asking the Attorney General to submit all documents
in his possession relating to warrantless electronic
surveillance of telephone conversations and electronic
communications of persons in the United States conducted by the
National Security Agency subject to necessary redactions or
requirements for handling classified documents. Every Member of
this Committee is cleared to handle secret material, but we are
not asking that the Attorney General do anything but send to us
materials that would give us additional information. We have
requested hearings. We have asked for information. And we would
like now to have this officially voted.
The request would include any and all opinions regarding
warrantless electronic surveillance of telephone conversations
and electronic communications of persons in this country as
well as other records which would allow us to better understand
the size, scope, and nature of the program.
The second thing I would like to explain is why we are
asking for the information. We are not asking for this
information in a conclusory fashion. We are not saying that the
President broke the law or has acted contrary to the
Constitution. In fact, this resolution could produce documents
that rebut those allegations.
What is clear is that assuming what has been reported is
true, many constitutional and legal experts, some Democrats,
some Republicans, have indicated that this secret domestic
surveillance program raises substantial questions about whether
the program is legal and whether it is constitutional, and the
people that I am counting on are people, many of whom have been
before this Committee: Lawrence Tribe, William Sessions, former
Director of the FBI under three Presidents, William Alstyne, a
law professor of distinction, and Bruce Fein, a Deputy
Associate Attorney General in the Reagan administration,
Jonathan Turley, who was here in the Clinton impeachment.
So the question before us is not whether you agree or
disagree with these individuals, but whether you think their
judgments are sufficient, serious reasons to further warrant
inquiry by this Committee. I am trying to get us off the dime
in the House of Representatives.
I would also add that the Congressional Research Service
has weighed in on this and that the Department of Justice, even
though it had a briefing on Monday, indicated that many of the
legal questions are close calls.
The third point I would like to make is if you agree that
this warrants further inquiry, the question then is what kind
of action should this Committee take? Now, I commend the
Chairman----
Chairman Sensenbrenner. The gentleman's time has expired,
and without objection, he will be given two additional minutes.
Mr. Conyers. I thank you, Mr. Chairman. I commend the
Chairman for sending a letter to the Attorney General asking
questions about the program. Many of us have questions of our
own to ask, and I hope that the Chairman will forward them to
the Attorney General and ask that they be considered, as well.
Questions alone, however, are not sufficient. They can be
danced around, ignored. We all know what can happen. This
Committee has always taken the very practical approach that the
best way to find out what people were thinking at the time they
made decisions is to get the documents they wrote at the time
reflecting those thoughts. In fact, on a number of matters,
including everything from biometric passports, judicial
sentencing practices, the Civil Rights Commission, Legal
Services Commission, the Chairman's first step has been to
obtain and preserve relevant documents.
The Washington Post has written that the executive branch
treats the Congress as an annoying impediment to the real work
of Government. It provides information to Congress grudgingly,
if at all. It handles letters from lawmakers as if they are
junk mail, routinely tossing them aside without responding.
It is time that the House of Representatives, starting with
the Committee that controls constitutional questions, begins to
serve as a genuine check and balance on the Administration. It
is not partisan. To me, it is a constitutional issue and I urge
my colleagues on both sides of the aisle to help us before it
is too late, and I thank you.
Chairman Sensenbrenner. The gentleman's time has expired.
Are there amendments?
Mr. Lungren. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. Mr. Chairman, I ask to strike the requisite
number of words.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Lungren. Mr. Chairman, as one who has worked on this
Committee with Members of both sides on our oversight of the
PATRIOT Act and the FISA courts, I rise in support of the
Chairman's motion.
When the FISA law was enacted during the Carter
administration, the Attorney General at that time made it very
clear that the enactment of the FISA court did not in any way
impinge on the President's inherent constitutional authority as
Commander in Chief in the area of gathering information with
respect to foreign enemies, and that is what we are talking
about here. Someone may argue that perhaps it would have been a
better business practice for the President to have come to the
Congress in larger numbers, that is, talked with more Members
than he did, but that is not the constitutional question.
I never question the motivation of Members bringing actions
to the floor, but I must say, when I observed a hearing by
Members of the other side recently on this very subject, it
appears to me that the conclusions have already been reached.
As a matter of fact, I even heard Members of the other side
specifically advising people in the Justice Department and
other branches of the executive branch not to follow the
President's orders and informing them that if they did so, they
were breaking the law. Such conclusionary statements not only
confuse the issue, but I think put people at peril who are
following lawful orders of the President.
It seems to me rather straightforward to say that if the
President has the authority as Commander-in-Chief and with
respect to the grant of authority to use force against those
who perpetrated 9/11, as well as individuals, organizations, or
countries that support them, and was told to use force for the
purpose of preventing such attacks, that force includes the
Administration of lethal force. And it seems to me that if the
President has the authority to command the death of those who
are terrorists, he certainly has the right to listen to them
before he has troops attempt to ferret them out and kill them.
The fancy way of saying that is gathering intelligence of a
foreign enemy is a legal incident to the power to conduct war.
The President made a decision to do this and to inform the
Congress by way of talking to the leadership in the House and
the Senate and the leadership on the House Intelligence
Committee and the Senate Intelligence Committee. That was a
decision of the President. Others may think he should have
talked to more.
But I would just reflect on my previous service here and my
current service here and the time in between. We have not
exactly covered ourselves with glory in terms of punishing
Members of the House or the Senate who leak, particularly when
they serve on the Intelligence Committee. And a President of
the United States given the authority under the Constitution
and pursuant to the authority given to him by the Congress to
direct force against those who perpetrated 9/11 and to prevent
future such attacks, that President has to weigh very, very
carefully when you have a program like this as to whether or
not he increases the chances that leaks might take place and
destroy such a program. That is not an illegal act by the
President. That is an act by a President under his authority as
Commander in Chief.
Whether you like it or not, the American people elected
this President fully knowing he was running for Presidency and
would be Commander in Chief. And there is no evidence
whatsoever that this President has done other than what he has
said, that is, attempted to eavesdrop on communications between
those people identified as al-Qaeda operatives or affiliates
with individuals in the United States or individuals in the
United States with those other kinds of people. There is no
evidence whatsoever that the President has directed this
against political enemies.
If you will recall the words of Justice White in dealing
with this question a number of years ago----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Lungren. I ask unanimous consent that I get two
additional minutes.
Chairman Sensenbrenner. Without objection.
Mr. Lungren. Justice White suggested that in this area, the
President has primary responsibility and suggested that when he
exercised it in this fashion, he should maintain personal
oversight and engage the active participation of the Attorney
General. Every bit of evidence we have is the President has
done that. The Attorney General has actively looked over this.
They have attorneys reviewing this on an ongoing basis. The
President has reviewed it personally every 30 days, all
consistent with the suggestions made by Justice White when he
reviewed this kind of question before the Supreme Court.
The President went further and briefed Members of Congress,
and I have heard Members of Congress say, well, how could that
be fair? We didn't have our staff with us. If the problem is
that our leadership in the House and the Senate, or our
leadership on the Intelligence Committees don't feel that they
are capable of asking the proper questions, of understanding
this, then we ought to get different leadership. That is the
burden of leadership. And if people believe that that is too
much to do as the Ranking Members and the chairmen of the
Intelligence Committees, let us get other people. This idea
that we blame our inactivity on the fact that we don't have
staff present is absolutely silly.
There is no evidence whatsoever that at these briefings
anybody objected while they were at these briefings to what was
going on.
And so if you look at the totality of evidence that has
been presented, the information that has been presented, the
setting in which this has taken place, it is apparent that the
Administration has answered the question----
Chairman Sensenbrenner. The gentleman's time has once again
expired.
Mr. Lungren. And I would suggest that we support the
Chairman's motion.
Chairman Sensenbrenner. Are there amendments?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Mr. Chairman, I fully support this resolution
of inquiry. Last December 16, the New York Times first reported
that the National Security Agency was conducting warrantless
wiretapping on American soil at the secret request of the
President. The program turned the giant ear of the Federal
Government inwards to listen to domestic communications.
Despite the Administration's claim that only members of al-
Qaeda, individuals affiliated with it, or persons working with
terrorists are being monitored, news reports suggested perhaps
thousands of innocent Americans are being spied upon.
Warrantless domestic surveillance is illegal. There is a
court precisely empowered to review applications for domestic
surveillance to gather foreign intelligence. The Foreign
Intelligence Surveillance Act, FISA, requires judicial approval
of all electronic surveillance in this country and
investigations to prevent, quote, ``international terrorism or
sabotage'' or to, quote, ``monitor foreign spies.''
When President Bush decided to bypass the FISA court and
ordered the domestic surveillance without court approval, he
broke the law. The law makes it a crime for government
officials to, ``engage in electronic surveillance under the
color of law except as authorized by statute.'' FISA makes this
crime punishable, ``by a fine of not more than $10,000 or
imprisonment for not more than 5 years, or both.''
The President took an oath to preserve, protect, and defend
the Constitution of the United States and to take care that the
laws be faithfully executed. When the President acts outside
the limits set by the Constitution and contrary to the law, he
engages in a criminal conspiracy against the United States,
against the separation of powers, one of the chief pillars
supporting our liberties, and against those liberties.
This is a direct challenge to us. It is our responsibility
as Members of the House of Representatives to protect American
liberties by investigating the President's usurpations of power
and to determine whether they constitute high crimes and
misdemeanors in the constitutional sense. It would be a
terrible dereliction of duty if we were to disregard this
responsibility.
The legal arguments the Administration makes in defense of
this program are frivolous. FISA specifies that it is, quote,
``the exclusive means by which electronic surveillance may be
conducted except as authorized by a statute,'' close quote. The
President argues that the authorization for the use of force,
AUMF resolution, is the statute that does that, that contains
that authorization. He relies on Hamdi v. Rumsfeld to find that
his warrantless domestic surveillance program is constitutional
because it is a fundamental incident to the use of force
allowed by the statute.
But there is no limit to this baseless interpretation.
Under this interpretation of the resolution, the President
could suspend the writ of habeas corpus, torture detainees, put
people in concentration camps, authorize breaking and entering
without a warrant, or for that matter, authorize murder in the
streets of the capital if he thinks doing so would be helpful
in defeating terrorism.
In Hamdi, Justice O'Connor, to the contrary, points out
that, quote, ``a state of war is not a blank check for the
President when it comes to the rights of the nation's
citizens,'' close quote.
We are all familiar with the basic rule of statutory
construction that a specific law cannot be set aside by a
general law, but only by a law that specifically and explicitly
repeals or modifies it. Congress has clearly spoken on the
question of domestic electronic surveillance in FISA and this
specific and carefully-drawn statute cannot be superceded by an
assertive interpretation of the AUMF which contains not a
single page, not even a hint that Congress intended to repeal
FISA or to repeal its exclusivity. In fact, there is
legislative history that Congress refused to expand FISA to
give the President this kind of authority. The argument that
the AUMF resolution permits warrantless domestic spying is,
therefore, frivolous.
The President also claims that he enjoys inherent
constitutional authority regardless of FISA to conduct
warrantless domestic surveillance because we are at war. He
claims that as long as he is acting to protect national
security, his inherent authority trumps the law. Devoid of any
limiting principle, this claim asserts the monarchial doctrine
that with respect to war powers, Congress can place no limits
on unlimited executive power. This logic could be applied to
any action, unlawful surveillance today, perhaps murder
tomorrow. President Bush's monarchial abuses, if left
unchecked, will, as Justice Robert Jackson said, lie around
like a loaded gun and be utilized by any future incumbent who
claims a need.
Finally, the question arises as to why the President
believes it necessary to proceed without getting warrants from
the FISA court. If the Administration is telling us the truth
and they are wiretapping only conversations between people in
this country and suspected al-Qaeda agents abroad, there would
be no difficulty whatever in promptly getting FISA warrants
whenever necessary.
Logic therefore compels the conclusion that, as press
reports suggest, the Administration is lying to us and, in
fact, is going well beyond what they have stated into conduct--
--
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. I ask for unanimous consent for two additional
minutes.
Chairman Sensenbrenner. Without objection.
Mr. Nadler. Thank you. Logic, therefore, compels the
conclusion that, as press reports suggest, the Administration
is lying to us and, in fact, is going well beyond what they
have stated into conduct for which they could not get FISA
warrants.
It may be that if we are told the truth, we would amend
FISA to permit what they are doing. Or it may be that if we are
told the truth, we would find that my conclusions are mistaken.
Or it may be that if we were told the truth, because of the
shocking and dangerous nature of what would be revealed, we
would never amend the law to permit such conduct to continue.
We must, Mr. Chairman, know the facts. We must see the
documents to know what the story is, and that, Mr. Chairman, is
why I support this resolution of inquiry.
I thank you. I yield back.
Chairman Sensenbrenner. Are there amendments?
Mr. Inglis. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from South Carolina,
Mr. Inglis.
Mr. Inglis. Thank you, Mr. Chairman. I am going to vote in
support of the Chairman's motion because I think that
particularly with the letter that the Chairman sent here
recently on February 8, it corrects the over-broad nature of
the underlying resolution of inquiry.
Mr. Chairman, I think the letter of February 8 is an
excellent letter. It really does ask the right questions and I
congratulate the staff and the Chairman on asking those
questions and putting a reasonable date for a response. March 2
is a fairly quick response. It is appropriate that it is that
quick. If we get the answers to all of these questions, of
course, that will be after an awful lot of work on the
Administration's part, but I think that it will lead us to a
better understanding of the program.
I would take the----
Mr. Conyers. Would the gentleman yield on that point just a
moment?
Mr. Inglis. Certainly.
Mr. Conyers. All I want to do is, what about the other two
dozen Members of Judiciary who have questions as well as the
Chairman?
Mr. Inglis. Reclaiming my time, I think it would be
appropriate to work in a cooperative way to find an opportunity
to ask those additional questions, and I would say particularly
that the last question in the Chairman's letter is the one that
I would call attention to the Administration for a special
response, and that is the Chairman asked what amendments to
FISA might be needed, and I think that it would be helpful for
the Administration to consider the addition of some judicial
oversight at some point in this process, perhaps with that 45-
day trigger or maybe even moving the trigger up faster than 45
days and having judicial oversight after the fact if it can't
be done before the wiretaps are authorized.
I understand the technological issues with having a judge
oversee the issuance of the wiretaps before they are conducted,
but perhaps if they were reviewed very quickly afterwards to
determine whether the wiretap was appropriate or not, it might
help to guard the program from excesses.
Mr. Delahunt. Would the gentleman yield?
Mr. Inglis. I would be happy to yield to the gentleman.
Mr. Delahunt. I appreciate the tone and the constructive
nature of your observation, but I would also point out that
there is a provision that allows--the so-called emergency
exigent circumstances provision--that allows exactly what the
gentleman suggests, that up to 72 hours afterward, after the
surveillance itself is conducted, the Attorney General can
certify as to the emergency and therefore go and present to the
FISA court.
That is what is perplexing to me and to others, that I have
yet to hear a case that has any substance to it or any data to
indicate that FISA as it currently exists does not meet the
needs of a program that if it is just discretely focused on al-
Qaeda and so-called affiliated organizations, what is the
problem? That is my concern, or that is one of my multiple
concerns, and I thank the gentleman for yielding.
Mr. Inglis. I am happy to yield, and reclaiming my time, I
would just conclude by saying, Mr. Chairman, again, I want to
associate myself with the letter. I think it is an excellent
letter and I look forward to the responses. I hope the
Administration will be forthcoming, as I am sure they will be,
in answering the questions, particularly that last one about
suggestions, and perhaps also hear what Mr. Delahunt just had
to say. Perhaps there isn't a need for a change in the
underlying law. On the other hand, maybe this program could be
improved by either being closer to the underlying law, or if
the underlying law needs to be changed, let us look at that.
I yield back.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee, is recognized for 5 minutes.
Ms. Jackson Lee. I thank you, Mr. Chairman. One would
applaud the tone that is in this hearing room this morning. I
wouldn't doubt the sincerity of the Chairman or of my
colleagues on the other side of the aisle.
But I would argue that the importance of H. Res. 643 may be
more important than any one of us could eloquently articulate.
From my perspective, there is nothing more blasphemous than the
imploding of the Constitution, and particularly the sanctity of
the views and values of the American people that they live in a
democracy.
And I believe the reason for H. Res. 643 is to answer my
good friend, that leadership is not Congress. Congress is a
myriad of individuals who have responsibilities to almost a
million Americans. And the Judiciary Committee as a whole has
an enormous responsibility not only to the vastness of America,
but to our colleagues as the protectors and arbiters and
interpreters of the Constitution because we are the Judiciary
Committee. I think it falls upon us sometimes dastardly deeds.
I did not want to sit here some years ago dealing with the
articles of impeachment, but it was this majority that thought
it was warranted on behalf of this Judiciary Committee, our
duty to find the truth and our duty, of course, to the American
people.
And so I would argue that this resolution and one that will
follow couldn't be more important in this Committee's
protective role of the Constitution and the American people.
Mr. Chairman, might I offer to you the delegate vote of the
American Bar Association. I ask unanimous consent that it may
be submitted into the record.
Chairman Sensenbrenner. Objection.
Ms. Jackson Lee. But I would suggest to you then from it,
and I would hope that at some point it might be admitted, but I
would say to you that a bipartisan group of lawyers have found
that the Administration did not comply with FISA and urged them
overwhelmingly to comply, and they have said in words, we join
with you in the conviction that terrorism must be fought with
the utmost vigor, but we also believe we must ensure that this
fight is conducted in a manner reflective of the highest
American values. The bipartisan ABA task force that proposed
the policy included a former FBI Director and a former General
Counsel of the CIA.
The Washington Times noted that though Attorney General
Gonzales made a good effort, his defense was anemic.
And so I think it is important to note that the President
has secretly authorized the National Security Agency to
eavesdrop on Americans and others inside the United States to
allegedly search for evidence of terrorist activities, but he
is being condemned by vast voices across America who are not
partisan. It is noted that he did this without the court-
approved warrants ordinarily required for domestic spying, and
I believe that my colleague, Mr. Delahunt, made it very clear
in his dialogue that, in fact, after the fact, after the
action, you still have the ability to go into the court and get
an after-the-fact warrant. How in the word can the hands of the
Attorney General or the Administration be tied in light of this
flexibility?
Due to the highly classified nature of this program, the
details have not been revealed. Officials familiar with it,
however, say that NSA has eavesdropped without warrants on up
to 500 people in the United States at any given time. Why can't
the Members of Congress in classified briefings know who those
individuals are? Some reports indicate that the total number of
people monitored domestically have reached into the thousands,
while others indicated that significantly more people have been
spied upon than others.
I would argue that, really, the American people are owed
the understanding, not that we relate the names as Members of
Congress receiving it in a classified manner, but whether these
individuals were involved in anything other than the acts that
might perpetrate a terrorist act. Martin Luther King was owed
the understanding of why he was being spied on, and the
misrepresentations that he was engaged in communist activities,
we have been through this before. It is imperative that we
follow through on this resolution.
I oppose--I do not oppose the monitoring of telephone calls
and e-mail messages when it is necessary for national security
reasons, Mr. Chairman. I am, however, opposed to engaging in
such monitoring without a warrant because we have a Foreign
Intelligence Surveillance Court that was established for the
sole purpose of issuing such warrants when they are justified
and it has worked, 19,000 warrants issued and maybe five
denied.
The day after----
Chairman Sensenbrenner. The gentlewoman's time has expired.
Ms. Jackson Lee. I ask unanimous consent for 2 minutes.
Chairman Sensenbrenner. Without objection.
Ms. Jackson Lee. The day after this monitoring became
public, President Bush admitted that he had authorized it and
claimed that he had the authority to do so. According to the
President, the order was fully consistent with his
constitutional responsibilities and authorities, and I
respectfully disagree with the President and so does the ABA.
The law establishes well-defined procedures for
eavesdropping on U.S. persons and President Bush failed to
follow these procedures. The starting point for understanding
the surveillance law is the fourth amendment to the
Constitution, which states clearly that American privacy may
not be invaded without a warrant based on probable cause. Don't
fool the American people. Don't cause them to be fearful of
their own Constitution.
The United States Supreme Court has held that this
protection applies to Government eavesdropping. Consequently,
all electronic surveillance by the Government in the United
States is illegal unless it falls under one of a small number
of precise exceptions specifically carved out in the law. After
9/11, Congress approved an authorization to use military force
against those responsible for the attacks in order to authorize
the President to conduct foreign military operations, such as
the invasion of Afghanistan, but that resolution contains no,
no language changing, overriding, or repealing any laws by
Congress, particularly FISA. And FISA contains explicit
language describing the President's powers during time of war
and provides that the President through the Attorney General
may authorize electronic surveillance without a court order
under this title to acquire foreign intelligence information
for a period not to exceed 15 days following a declaration of
war by the Congress.
Therefore, the President did not operate under authority.
This resolution will give us the basis, the facts, and the
ability to go forward and secure the American people in the
justified manner within the Constitution. And consequently,
even assuming that the use of force resolution places us on a
war footing, warrantless surveillance would have been legal for
only 15 days after the resolution was passed on September 18,
2001.
The FISA law takes account of the need for emergency
surveillance. The need for quick action cannot be used as a
rationale for going outside the law. FISA allows wiretapping
without court order in emergency. The court simply must be
notified within 72 hours. Mr. President, why not? Mr. Attorney
General, why not? Why not utilize the law as it is? Why not
show to the world that we are a democracy and a republic and we
believe in the Bill of Rights and the Constitution and the
rights of all Americans?
The Government is aware of this emergency power and has
used it repeatedly. If President Bush found these provisions
inadequate----
Chairman Sensenbrenner. The time of the gentlewoman has
once again expired.
Ms. Jackson Lee. --he could have used something else. I ask
my colleagues to support resolution----
Chairman Sensenbrenner. Are there amendments? The
gentlewoman from California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman. I will be brief since
I am losing my voice. I would ask unanimous consent to submit
my full statement for the record.
Chairman Sensenbrenner. Without objection.
[The prepared statement of Ms. Lofgren follows:]
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California
I cosponsored this resolution, and I think we need to do more than
just consider it today, we need to pass it. But the fact is that simply
passing this resolution will not satisfy the Judiciary Committee's
responsibility to conduct true oversight over the reported NSA domestic
surveillance program and the Justice Department's role in it. We need
to hold hearings to find out the facts.
Nearly two months ago Congressman Boucher and I, along with 15 of
our colleagues on the Judiciary Committee, called upon the Chairman for
investigation and hearings into the NSA domestic surveillance program
authorized by the President. We have still not received a response to
our request. The informal briefing held earlier this week also does
little to satisfy this Committee's need for answers. The two days
notice given on a Saturday for this briefing ensured that almost no
Members would be able to actually attend and ask the Justice Department
critical questions about this program. We need to hold investigative
hearings, and today's markup of this resolution does nothing to answer
our request for hearings, now almost two months old.
If Americans are conspiring with al Qaeda agents, I want our
intelligence and law enforcement agencies to know about it--with
warrants obtained under the FISA Court. If existing laws like FISA are
insufficient to conduct counter-terror intelligence activities, then
Congress should have the opportunity to amend those laws within
recognized processes under the rule of law. That is what is at stake
here--serious questions about whether or not this program follows the
law, and serious questions about whether anything in the existing FISA
law even needs to be changed.
The Attorney General's testimony in the Senate last week left
questions about whether this program violates the 4th Amendment. His
testimony was contradictory and obscure on whether or not a probable
cause standard was being applied. His testimony also raised serious
questions about whether information collected unlawfully was then
secretly or inadvertently used by criminal prosecutors, again
potentially violating the 4th Amendment. The Attorney General failed to
provide assurances that physical searches were not being performed
under this program, and that purely domestic calls were not being
intercepted. And the Attorney General declined to answer when asked
what other activities were authorized by the President in reliance
solely upon his claimed powers as Commander in Chief. All of these are
serious questions that deserve answers that investigative hearings in
this Committee could provide.
The need for hearings in this Committee is further underscored by
the reluctance of the Executive Branch to investigate this program.
Nearly two months ago I and 38 of my colleagues wrote to the Inspector
Generals at the Defense Department and the Justice Department seeking
investigations into this program. Both of them declined to investigate,
with the feeblest of excuses.
The Defense Department's Inspector General told us that he would
defer to NSA's Inspector General, even though press reports tell us
NSA's Inspector General is not looking at the legality of the program
and is not doing any new review of this program. The Justice
Department's Inspector General told us he lacked jurisdiction because
the matter involved the Attorney General's provision of legal advice--
even though the issue here is not the Attorney General's credentialing
as a lawyer but whether or not his official actions comply with the
law. We also asked GAO to investigate, but GAO told us that it lacked
the power to investigate if the President designated this as a foreign
intelligence matter. The bottom line is that we received no responses
to our request for investigations, apart from refusals to actually
investigate.
There is a pattern of a reluctance to investigate emerging here,
and I do not believe the Judiciary Committee should contribute to that
pattern. This Committee should finally begin the investigative hearings
into this program we called for nearly two months ago.
Ms. Lofgren. I would just add to my written statement that
we have focused on the rights of individuals in the press about
this whole issue, but I think there is a broader question for
the Congress which really has to do with the relationship
between the executive and legislative branches.
I think it is important, and I am a cosponsor of this
resolution. I think this is one way to do it. But if this
resolution does not pass, and I am aware that these matters are
often decided on a party line vote, we must take some action
because it would be a severe mistake for the majority to assume
that because they are in control of the House and Senate and
there is a Member of their own party in the White House that
this is something not worthy of their attention. This really
goes to the fundamental question of whether the legislative and
judicial branches will have authority over the actions of the
executive.
We don't really even know exactly what has happened in this
NSA matter. I have written with my colleagues to the Attorney
General, to the NSA. I am not getting any information back. I
do think it would be important for this Committee to find out,
in a classified setting if necessary, exactly what is
happening, whether it does, in fact, comply or not comply with
the FISA statute. We don't even know that for sure. And if it
does not, we need to come to some kind of decision to either
conform the statute to the activity or have the executive
conform the activity to the existing statute. We cannot simply
ignore activity that is beyond the scope of what was envisioned
by the statute and the judiciary.
And so I would urge my colleagues on the other side of the
aisle, if you vote against this today, come up with some
strategy for us to work together. This is one of those times
when we ought to be working together for the benefit of the
very structure of our Government.
Mr. Lungren. Would the gentlelady yield?
Ms. Lofgren. I would yield to the gentleman.
Mr. Lungren. I guess my question would be, is one of your
underlying premises that if it is outside of FISA, it is
therefore illegal for the President to act, or do you agree
with Griffin Bell's testimony before the Congress at the time
the FISA law was passed that while we passed this law to create
a structure for these kinds of activities, it does not and
cannot impinge on the inherent constitutional authority of the
President in this area?
Ms. Lofgren. I believe that the--first of all, let me,
reclaiming my time, note that unless there is somebody on the
Intelligence Committee who knows more than I do, probably none
of us really is aware of exactly what this program is. I have
been trying to find out, and if someone does know, I would like
to find that out.
Number two, there are a set of facts that could lead one to
the conclusion that this activity does comply with FISA. You
know, I would like to find that because I don't think--the last
thing the country needs right now is a constitutional crisis.
Number three, I do think that there are constraints on the
actions of the executive when there is a specific statute.
There are things that the Congress cannot constrain the
President on. The communications I have had to the executive
branch, I think have been measured because I think we have an
obligation to find out first what is going on and to reassure
ourselves for the country that our system of Government is
really being adhered to, and I don't think a single one of us
can say that with assuredly here today.
So I am hopeful, even if we don't adopt this today, that we
come up with a strategy to ensure not only the Congress, but
the country and our heirs that we will leave our system of
Government as strong as we found it, and I yield back the
balance of my time.
Chairman Sensenbrenner. Are there amendments? The gentleman
from Florida, Mr. Wexler.
Mr. Wexler. Thank you, Mr. Chairman. I will try not to take
the full 5 minutes. I have listened very respectfully to the
majority's arguments about the need for aggressive techniques
to fight terrorism. I have listened to the Administration's
arguments that in the same light, the President's statements at
the State of the Union Address were on point. I agree with
them. I couldn't agree with them more wholeheartedly.
The American President and our Administration should be
relentless in pursuing people who are talking to al-Qaeda. We
should survey them. We should spy upon them. We should do
whatever is necessary, whatever is required to get the
information regarding what anybody is doing with al-Qaeda or
anybody is doing--what anybody is doing that threatens the
United States.
That is not the issue, however, that is presented to this
Committee. What is presented to this Committee is to the extent
that the President and the Administration has avoided the FISA
court, whether it be justifiable or not, I would argue not but
some will argue that it is. What were the reasons for doing so,
and should then this Congress engage in a debate as to whether
or not, based on what we found out, we ought to change the law?
Compiled with this is the assertion that the President
makes which unfortunately does not comport with the truth, and
that is that only people dealing with al-Qaeda have been the
targets of this program. At the hearing that Mr. Conyers held
on a Friday morning that unfortunately only Democrats were as
part of, and I would respectfully suggest to my good friends
and fellow Floridians, Mr. Keller and Mr. Feeney, what we found
out at that hearing from testimony from a gentleman named Mr.
Hirsch, who is a part of a group called the Truth Project,
fellow Floridians, who their alleged crime apparently is that a
group of grandmothers and some business people and I think
maybe one former Korean war veteran had the audacity to meet at
a Quaker church in Florida and talk about peace. As a result of
these grandmothers meeting and talking about peace, they were
then listed as a credible threat to the United States of
America and were subjected to all this spying.
Now, with all due respect to the President, I specifically
asked Mr. Hirsch, well, did anybody in your group ever visit
Afghanistan? Did anybody in your group ever visit Pakistan? Did
you ever visit Iraq? Did anybody engage in training programs in
any of those countries? And the testimony on the record was, to
his knowledge, no one has ever visited those countries. No one
has ever had anything to do with anybody from those countries.
No one has certainly ever trained. And from his point of view,
no one in the group had ever even left the country, except
maybe the one guy who was a Korean War veteran and had left
during the Korean War to fight for our country.
The point of this whole analysis is that if the President
is simply conducting surveillance on people having to do with
al-Qaeda or reasonably expected in circumstances dealing with
al-Qaeda, there wouldn't be one objection on this side of the
aisle, and I don't think there would be a single objection from
any American.
But the point is, the President has gone outside of FISA.
And whether you agree that it is illegal that he did it or
disagree, the Congress of the United States and the American
people have a right to know why the President of the United
States is conducting surveillance on what appears to be
ordinary Americans. We have a right to know that information
and this Congress has then a right and obligation to debate it
and come up with a sound and just policy that protects the
Constitution, and this H. Res. 643 is the only legitimate
mechanism at this point that this Committee has discussed that
allows us to begin that process and that is why I support it.
Mr. Lungren. Would the gentleman yield?
Mr. Wexler. Thank you, Mr. Chairman.
Mr. Lungren. Would the gentleman yield?
Mr. Wexler. Sure.
Mr. Lungren. I just ask this as a hypothetical. Let us
suppose, and this is a pure hypothetical, that through actions
conducted in Afghanistan or Iraq with identified al-Qaeda
operatives, we discover that they have a list of 25 phone
numbers of people in the United States. At that point in time,
we don't have probable cause of a court nature to say that
those people are necessarily identified. Would the gentleman
say it would be inappropriate to eavesdrop on conversations
between----
Chairman Sensenbrenner. The gentleman's time has expired,
and without objection will be given two additional minutes.
Mr. Lungren. Would the gentleman suggest it would be
improper for such a program to allow us to eavesdrop on
conversations between that al-Qaeda operative and one of these
individuals, even if that individual, based on everything we
know--I mean, we don't have any evidence that they're doing
anything other than that fact. Would that be inappropriate, or
would the gentleman consider that to be an appropriate
mechanism of attempting to figure out in the first instance
whether is intelligence to be gathered between an al-Qaeda
operative and someone in the United States?
Mr. Wexler. To respond to the gentleman's inquiry, in my
view, it would be entirely appropriate to then engage in
surveillance and spying and whatever information gathering is
necessary, and based on what I understand the record of the
FISA court to be in terms of the 13,000-plus warrants of
surveillance that have been granted, there is no reason to
believe that the FISA court would not give the President or the
Administration every power based on the probable cause of the
scenario you laid out.
Mr. Lungren. Would the gentleman further yield? If, in
fact, the numbers that we have are so numerous such that it
would be impractical to come in each and every instance as an
individual piece of evidence before the court, would the
gentleman consider the proposal made by Attorney General Levy
some time ago which suggested that whatever authority we have
would allow a court to approve an overall program? His
suggestion was an overall program as opposed to individual
wiretaps.
Mr. Wexler. Well, again in response, at first glance, that
sounds troubling to me, so what we're basically saying----
Mr. Lungren. I am talking about----
Mr. Wexler. --we're not going to apply the Constitution and
the protections of the Constitution to individuals. We're just
going to create a program for the whole country and hope that
people are covered by it? The whole point is to apply the facts
of each individual circumstance and determine whether there is
probable cause.
Mr. Nadler. Would the gentleman yield?
Mr. Wexler. Of course.
Mr. Nadler. I would point out to the gentleman from
California that the Administration says there are no more than
about 500 of these wiretaps at any time, so you're not talking
about vast numbers. I would yield back.
Chairman Sensenbrenner. The gentleman's time has once again
expired.
Mr. Feeney. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Feeney.
Mr. Feeney. I would move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Feeney. This Committee has some important oversight
responsibilities and I take those duties seriously. I think
every other Member does, as well. But some in the minority have
focused totally on FISA as though it is the exclusive power the
President has when it comes to surveillance in international
terrorist or international war situations.
In fact, I hope that our friends on the other side have
read the 51 questions that our Chairman has sent to the
Attorney General of the United States. These are very serious
questions. These are exactly the questions that legitimately
the minority and the majority want to have answered. I think it
is an appropriate forum.
The suggestion that FISA is the exclusive power that the
President of the United States has to protect us by use of
surveillance during a time of war, I think is foolhardy.
Mr. Nadler. Would the gentleman yield?
Mr. Feeney. Not until I am done, Mr. Nadler.
President Jimmy Carter's Attorney General, shortly after
the passage of FISA, had this to say about FISA. FISA
recognizes no inherent power of the President to conduct
electronic surveillance, and I want to interpolate here to say
that this does not take away the power of the President under
the Constitution. So Mr. Griffin Bell's position is that not
just under FISA powers, but there are preexisting
constitutional powers that FISA does not affect.
In addition to that, since Mr. Carter was President, we
have the passage of the authorization of military force, which
has additional powers added, so there are at least three
separate sets of powers that the President has, FISA being just
one of them, his inherent constitutional powers and the
authorization to use military force.
What the Chairman's letter does is to ask the
Administration with respect to all of the cases that involve
international or domestic surveillance for terrorism or to
prosecute the war on terror, under which powers does the
Administration consider itself proceeding under? I think those
are the legitimate questions that we need to ask. If we get a
response to this and are unsatisfied with the response, I think
individually or collectively, this Committee can pursue the
issue further.
But the Chairman has asked on behalf of the United States
Congress every reasonable question at this point that can be
asked. I congratulate the Chairman. I think rather than doing
the grandstanding and fear-mongering out there that we're all
being spied upon under some inherent Presidential power, we
ought to wait until we have given 2 weeks now for the President
of the United States through his Attorney General to respond to
these very important questions, and again, I want to
congratulate the Chairman----
Mr. Nadler. Now will the gentleman yield?
Mr. Feeney. I will be happy to yield to Mr. Nadler.
Mr. Nadler. Thank you. The FISA Act--we are confusing three
things here. No one doubts that the President has inherent
constitutional power to spy abroad. No one doubts that. The
FISA Act says that with respect to electronic surveillance in
the United States or against American persons, that is anybody
who is physically here, FISA is the exclusive source of
authority.
Mr. Feeney. Well, Mr. Nadler, number one, I think that is
inaccurate, Mr. Nadler, but even if, reclaiming my time, even
if you are accurate about that, Congress has no ability through
legislation to restrict the inherent powers of the executive of
the United States. We don't have the power----
Mr. Nadler. Would the gentleman yield on that point?
Mr. Feeney. --said that, which it doesn't, it wouldn't be
effective.
Mr. Nadler. Would the gentleman yield on that point?
Mr. Feeney. I will yield back.
Mr. Nadler. Thank you. What we are talking about is
surveillance allegedly directed at someone here who is
communicating with some alleged terrorist abroad. If it is
directed at the terrorist abroad and happens to overhear a
conversation here, nobody has any question about that. We are
talking about directed at someone in the United States. There,
I would submit, and I think the case law accurately shows that
there is no inherent power. And the AUMF, which simply gives
the President the power to repel or to punish the people who
attacked us on September 11, cannot by implication repeal a
specific statute. If we wanted to repeal or set aside that
specific statute, you have to say so because the statutory
construction rule that you can never repeal something specific
or modify it by a general term.
Mr. Feeney. Well, look, the gentleman may be right, he may
be wrong about this, but here is the point. The Chairman of
this Committee on behalf of all of us has asked in 51 very
specific questions the Administration through the Attorney
General to answer by what authority is the Administration
prosecuting the war on terror on this surveillance, and I
personally am prepared to give the Administration 2 weeks to
answer----
Mr. Schiff. Would the gentleman yield?
Mr. Feeney. Mr. Chairman, I will yield back the balance of
my time.
Mr. Schiff. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. I would like to respond to some of the
arguments that have been made by the opposition on this. I
strongly support the resolution. My gentleman from Florida
started out by saying he takes his oversight responsibility
seriously. With all due respect, I don't think this Committee
has taken its oversight responsibility seriously.
We have had little or no hearings to oversee the executive
in this Committee. We have fought bitterly to protect our
jurisdiction vis-a-vis other Committees of the Congress, but
when it comes to overseeing the executive, we have, I think,
been very unequal as a co-equal branch of Government. We are
now proposing basically interrogatories to the Administration
rather than calling witnesses before this Committee. Those
interrogatories don't give individual Members the opportunity
to ask questions we would like to ask and ask follow-up
questions we would like to ask.
In considering the minutiae of hearings that we have had in
this Committee, the failure to have a hearing on something
which on its face is one of the most serious issues of
Presidential power and potential overstep of Presidential power
is really incomprehensible to me.
The argument has been made by my colleague from California
on the other side of the aisle that, well, this practice was
disclosed to some of the Members of the Congress and maybe it
would have been a better business practice to disclose it to
more Members of the Congress. Well, that seems to presuppose
that if you take a practice which, let's assume for argument,
is a violation of FISA, is without authority, but you disclose
it, it no longer is a violation of the law. That, I don't think
is correct. It doesn't really matter how many Members of
Congress were disclosed--this program was disclosed to. If it
violated FISA or title III and the President didn't have the
constitutional authority inherently, it's still a violation of
law. That argument doesn't make the problem go away.
It's also been argued that, well, FISA, according to
Griffin Bell and others, couldn't limit the President's
inherent constitutional authority. Well, that's true, but is
this an area where the President's inherent constitutional
authority allows the President to act as this program has
provided? Well, we don't know because we don't know really
anything about how that program has been used, how broad it's
been.
My colleague from California posits, well, what if we had a
list in Afghanistan of al-Qaeda members trying to call the
United States? Well, what, my colleague from California, if we
had a purely domestic call between you and I that was
wiretapped by the President and the President claimed that FISA
and title III, title III also couldn't limit the President's
inherent constitutional authority, that he had some reason to
believe that you and I were involved in a terrorist act or we
had a contact with someone or we were leaking classified
information or who knows what?
There is no limiting principle to the arguments that you
make. The only limiting principle really is the vigor with
which the Congress is willing to do its oversight. That is the
only real limiting principle. FISA is very clear on its terms.
The only thing we could do to make it more clear is to pass
another law that says, when the Congress says exclusive, it
really means exclusive. But when we say exclusive, it does mean
exclusive.
And so the further argument has been made by the
Administration, well, even the debate about this has been
harmful to the national security, and this I find the most
disturbing of all because I think it betrays some of the
duplicity that's gone on in the whole discussion of the PATRIOT
bill and FISA and the NSA program. We have debated the PATRIOT
bill in this Committee for hours and hours. I have supported
the PATRIOT bill. I've been at odds with many of the people in
my party supporting different versions of the PATRIOT bill.
But now I find that the Administration's real position on
the PATRIOT bill is it doesn't really matter what we do,
because the Administration can do what it likes regardless of
the PATRIOT bill and regardless of FISA. And, in fact, in the
Senate--and this is the question that I don't think is in the
interrogatories that I would like to ask--in the Senate, when
one of the Republican Members said to the Administration
witness, we can change FISA if you find the probable cause
standard too high, we can change it, and the Administration's
response, we don't need to change FISA. FISA is working just
fine, thank you very much.
The real answer, the truthful answer would have been,
Senator, we don't need you to change FISA because we don't
consider ourselves limited by FISA. We're doing what we want
anyway. That would have been the more candid answer.
Now, what is this national security argument that we can't
debate this, we can't amend FISA, we can't have a discussion in
Congress about FISA because it gives aid and comfort to the
enemy somehow? Are we so naive to assume that our enemies don't
think that we eavesdrop on them? It doesn't matter to al-Qaeda
whether we go to a FISA court or not, but it does matter to the
United States. It matters to us----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Schiff. I would request an additional 2 minutes.
Chairman Sensenbrenner. Without objection.
Mr. Schiff. I appreciate the Chairman's fairness on this.
It does matter to all of us whether we uphold our own
Constitution, whether we have checks and balances. As my
colleague from Florida on this side of the aisle pointed out,
this is not about whether we bug al-Qaeda. We do bug al-Qaeda.
We will bug al-Qaeda. We should bug al-Qaeda. The question is
whether we have any checks and balances, whether there's any
review of who we're eavesdropping on and what the standard is
that should be applied. Is there anyone that can scrutinize the
work of the executive?
I think our system works better, I think our system works
more efficiently and I think that we protect our own rights
when we do our job of oversight, and that doesn't mean sending
a bunch of questions to be answered by a bunch of lawyers in
the White House. When you send interrogatories, you get lawyers
sending back answers. It doesn't tend to elucidate, it tends to
obscure.
And I wish, given the seriousness of this issue, that I
wasn't reading headlines like this in the Washington Post:
``Congressional Probe of NSA Spying is in Doubt, White House
Sways Some GOP Lawmakers.''
We are a co-equal branch of Government. It is time that we
started acting that way.
Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. For what purpose does the gentleman
from Florida seek recognition?
Mr. Keller. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes, and will the gentleman yield briefly?
Mr. Keller. I will yield.
Chairman Sensenbrenner. I ask unanimous consent to put in
the record a list of oversight that this Committee has done on
the war on terror from October 2001 through November 2005,
which includes hearings, letters, briefings both classified and
unclassified. It's pretty comprehensive, and anybody that says
that there has been no oversight done by this Committee just
doesn't know what's been going on here. I ask unanimous consent
to put this in the record and thank the gentleman for yielding.
[The information of Chairman Sensenbrenner follows:]
Mr. Keller. I thank the gentleman. Reclaiming my time, I
just have three points to make regarding this issue and I am
just going to try to give as much straight talk as I can on it.
The first point is we are talking about, as General Hayden
from the NSA has said, all calls consist of one party outside
the U.S. and there are reasonable grounds to believe that one
part is an agent of al-Qaeda or a related terrorist group. What
that means, as he has given analogy, if someone, for example,
Bin Laden himself sneaks across our porous Mexican-U.S. border
into San Diego and he makes a call from San Diego, California
to Orlando, Florida, there is not authority given to NSA to
wiretap that without a warrant, and he's said that on national
TV.
Second, the issue of constitutional authority versus the
authority to use military force. I'm not on the Supreme Court,
obviously, but I'm personally not convinced that we have
authority under the authorization to use military force, just
in the interest of straight talk. I think there is a good faith
argument that the President does have constitutional authority
under article II, that that authority rises above any law
passed by Congress. There is a FISA appellate court In re
Sealed Case where they said, quote, ``We take for granted that
the President does have that authority, and assuming that this
is so, FISA could not encroach the President's constitutional
authority.''
In fact, four Democratic Presidents have asserted, either
through themselves or their attorney generals, that they, too,
believe that they have authority under the Constitution to do
warrantless searches. Those Presidents or their attorney
generals are FDR, Truman, Clinton, and Carter.
Now, if that being the case, it brings me to my third
point. Why don't we just go before the FISA court 72 hours
afterwards, as is frequently argued? It's my understanding that
there are certain exigent circumstances or hot pursuit
situations that they could not practically go before the FISA
court for 72 hours, and you then ask, well, why is that, and
they say, well, to tell you that answer, we would have to tell
you how the program works and we can't do that. And so that is
essentially where we are.
I think the Senate has done oversight hearings. I think
Chairman Sensenbrenner has sent some very detailed questions
that must be answered by March 2 that he has posted on the
Judiciary Committee website for all to see. And I think we
should give the Administration a good faith opportunity to
respond to those questions, and that's where----
Mr. Nadler. Would the gentleman yield for a moment?
Mr. Keller. I will yield back.
Mr. Nadler. I would simply point out, firstly, that those
citations you cite, the In re Sealed Case case and the
attorneys general, were referring to warrantless wiretaps
abroad, overseas, not in the United States, and that is the key
difference. Everyone agrees that the President has inherent
authority overseas, that is to say, outside the United States.
Mr. Keller. Well, reclaiming my time, then, I would just
point out what General--and I'm just taking him at his word--
has testified that in all of these cases where you have a
warrantless search, there is at least one party overseas.
Mr. Nadler. Would the gentleman yield again?
Mr. Keller. I will.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. Could I have unanimous consent to give the
gentleman two additional minutes?
Chairman Sensenbrenner. Without objection.
Mr. Nadler. Thank you. We are talking about, again,
directing a wiretap surveillance at someone in the United
States, allegedly talking to someone overseas. If it's directed
at the person overseas, there's no question. So the fact that
one person is overseas is not relevant from this point of view.
But the second thing, I would simply observe that given the
credibility doubts that many people have about the
Administration in this respect arising from the fact that it is
not clear at all why they need the authority to go beyond FISA
if all they are doing is what they say they're doing, so maybe
they're doing something else, simply asking for interrogatories
is not sufficient. That's why we need to see the documents.
Mr. Keller. Let me reclaim my time and then yield back.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Thank you, Mr. Chairman. First of all, in
response to one of the things that was just--I move to strike
the last word. I'm sorry.
Mr. Chairman, I just want to, in response to one of the
last things that was said, when the prior Presidents claimed
that inherent right, they were claiming it in the absence of
any controlling statute. Since those claims have been made,
there is now a criminal statute prohibiting exactly what they
claimed to have and we need to determine whether or not the
President's claim that he can violate a specific criminal law
prohibiting what he's saying he can do.
Now, if the Administration has reasonable wiretaps that
need to be done, they can be done under FISA now. He can get a
warrant and do that. In fact, if he's in a hurry, he can get
the warrant after he's done it. So we are not talking about
whether or not he can do reasonable wiretaps. We are talking
about whether or not he has to comply with the criminal law.
Now, frankly, Mr. Chairman, I think one of the problems, we
don't know what he is doing. We know what has leaked out so
far, but there is nothing definitive that suggests that all the
calls that are being made are international calls. Some may be
domestic. We had a briefing yesterday, the Judiciary Committee
and staff had a Committee briefing yesterday where it was not
clear whether or not domestic-to-domestic calls were also part
of this plan.
I asked the question whether or not what is being done
would qualify for a FISA warrant and the answer I got wasn't
yes or no. I don't know what the answer was, but it certainly
wasn't yes or no. It was clearly evasive. There were assertions
and assumptions and innuendo that would clearly not rule out
more than what has leaked out so far. There's more to this than
we know. We'd just like to know what's going on.
One of the problems is if you accept the reasoning that the
President is not confined by the criminal law, there is no
limitation to that power. There are no checks and balances. In
fact, there was no anticipation that there would be any checks
and balances. Certainly, there's no suggestion that this would
be revealed to a court in an attempt to get a warrant. You just
do it and hope it doesn't get out. You could--this isn't a
covert operation. This is a program. You briefed a handful of
Members of Congress under the threat of criminal prosecution.
If they told anybody, including their staff, that's not how you
comply with the criminal law.
The question of whether it's legal or not, Mr. Chairman, I
was watching C-SPAN last night and saw another Committee
hearing that dealt somewhat with this issue and the suggestion
was made that there were NSA officials who were relieved that
the President was reelected because they doubted that what they
were doing was legal and if a new President Kerry had come in
and found out what had been going on, they might have to go to
prison. And so they were relieved that the President was
reelected.
We ought to ask these people, who are these people and why
did they think they might have to go to prison for what they
were doing? Do we care that there are people who think they're
breaking the law and do it anyway? Why don't we have a hearing,
do some investigation, and do something other than have the
Chairman on behalf of somebody, the gentleman said on behalf of
the Committee. I wasn't consulted on the questions. I'm advised
that no Democrats had input into the questions. So the
questions have been propounded on behalf of the Republicans on
the Committee. That's not an investigation.
We need to get the facts. We need to determine what is
going on and why these people think they were breaking the law.
I don't think that's asking too much of this Committee and I
would, therefore, support the resolution and oppose the
negative recommendation.
Ms. Jackson Lee. Would the gentleman yield?
Mr. Scott. Yes.
Ms. Jackson Lee. I thank the gentleman. Let me just very
briefly say that I think the debate is at the tone that it
should be because we are discussing the Constitution. To my
colleagues on the other side of the aisle, and I have not heard
this question asked to the Chairman but I will just ask it for
the record, I'm not sure if the materials that are going to be
requested by the Chairman comes to the entire Committee, comes
to one staff person. Will we have access to them?
I think the key element to H. Res. 643 by the Ranking
Member, Mr. Conyers, why it has such value, such importance,
is, one, because, as I said earlier, and for me it's personal,
having investigated the treatment of Dr. Martin Luther King as
a member----
Chairman Sensenbrenner. Will the gentleman yield? The
responses to the questions that were asked in my letter will
come to the Committee and will be made public unless they are
classified, and there are separate provisions under the House
rule to deal with that.
Ms. Jackson Lee. I thank the Chairman. May I just finish my
sentence and simply say that our oversight is so pivotal in
this, Mr. Chairman, and I----
Chairman Sensenbrenner. The time of the gentleman from
Virginia has expired.
Mr. Scott. One additional minute, Mr. Chairman?
Chairman Sensenbrenner. Without objection.
Ms. Jackson Lee. I thank you very much. The reason why this
is so important, because I have heard repeatedly that we are
referring again to the inherent powers of the President. It is
clear in our constitutional structure that we are equal
branches of Government. It also is clear in some materials that
I am going to offer in the record at a later time that there is
question to the complete blanket suggestion that there are
inherent powers that cannot be questioned. It was deemed
impossible to cover aspect and eventuality of Government.
Presidents have claimed for themselves certain powers that
they feel come with the authority granted to them in article
II. They have also claimed powers implied by article II that
the Supreme Court has stepped in when it felt that the
President has overstepped its mark. So, therefore, there are
checks and balances. The Supreme Court can oversee this idea of
inherent powers, and so it is the responsibility of Congress as
an equal branch of Government to be able to check the inherent
powers that a President argues for, and I believe they have
overstepped their bounds.
Chairman Sensenbrenner. The time of the gentleman from
Virginia has once again expired.
Mr. Scott. Can I have 30 additional seconds?
Chairman Sensenbrenner. The gentlewoman from California.
Ms. Waters. Thank you, Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California seek recognition?
Ms. Waters. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Waters. Thank you very much, Mr. Chairman. I would like
to add my voice to those Members who are trying to impress upon
you the importance of oversight on this issue.
To tell you the truth, I have frankly been surprised that
you have not taken a more aggressive role. I consider you to be
one of the credible civil libertarians and that I don't expect
you to take a back seat to the Senate or anybody else in
probing this issue or these kinds of issues. I sit here as a
Member of Congress watching the news nightly, watching what the
Senate is doing, and feeling as if I'm an outsider with no real
role or participation in what is going on.
Now, first of all, we are elected by the people and we're
not elected to watch the Senate do the work of this country.
We're participants in this. We have a role in this. This is the
people's House. I don't expect, again, to be on the outside of
this discussion.
The only way we can be involved in this discussion is
through our Committee work. That's why we serve on these
Committees. And I expect the Chairman not to tell us that we
can't have a hearing, that he's going to send some questions
over to the White House or to NSA or anybody. I expect those
questions to be placed before the relevant individuals in this
Committee with all of us participating.
It may be that some Members of our caucus were told that
somehow, there was a program that would allow the President of
the United States to break the law. I don't know. And listening
to one of the Members of my own caucus talk about the fact,
since it was classified information, they didn't feel that they
could say anything, is just unacceptable. It's not good enough.
And I don't think we can go back to our constituents
telling them, well, our Chairman won't let us. He is going to
send some questions. Well, the Senate is going to do the job. I
want to do the job. I want us to do the job.
I wanted to amend this resolution today, but I don't think
that it's practical to do so, but let me tell you why. FISA and
the rest of cyberspace, and I'm going to read from a report by
an individual, FISA should also be viewed in the context of
Echelon program. Echelon is a secret intergovernmental project
of the United States, Canada, Great Britain, Australia, and New
Zealand that maintains a series of powerful facilities around
the world to intercept electronic communication, some believe
all such transmissions. The data is downloaded and stored and
each Echelon country is notified and receives copies of
messages that contain key words which such country has included
in a dictionary.
Now, I got interested in this key word business by reading
in the newspaper that we have scanning that's going on, and
this means everybody is being scanned. And when the key words
pop up in a conversation, then the technology will allow them
to direct the surveillance to where those key words are coming
from.
Now, this is America, Mr. Chairman, and I don't expect that
my conversations or my neighbor's conversations or any
citizen's conversations will be routinely scanned and screened
with the help of the telecommunications companies that we pay
to provide us service and that we are subject to be under
surveillance simply because we use a particular word. In this
Congress, I hope that I can talk with my colleagues about al-
Qaeda. I hope that I can talk with interested constituents
about terrorism and what is going on without then being a
victim of this kind of scanning that will cause my
conversations to be listened to.
And so I guess what I'm saying to you, Mr. Chairman, is I
really do expect more from you than this. I expect that you
should be feeling the same way that I feel, that you don't want
to be on the outside of this discussion. You are the Chairman
of this Committee. And again, the Senate should have no more
power to investigate than we do. And when you talk about simply
using questions to go to the President rather than doing your
job of opening up this Committee so that we can have those
kinds of investigations, then I'm going to have to think that
you are not who I thought you were.
Mr. Chairman, you can talk all you want to to somebody else
while I'm talking to you. I want you to----
Chairman Sensenbrenner. Well, the time of the gentlewoman
has expired. Without objection, she will be given as much more
time as she needs.
Ms. Waters. I respectfully request another additional
minute so I can tell you----
Chairman Sensenbrenner. Without objection.
Ms. Waters. --that I don't care if you talk to someone else
while I'm talking to you. I think the reason you're doing that
is because I'm shaming you about the inability to get the job
done here. Now, you can have back the time and give it to
whomever you want to give it to.
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Delahunt. I move to strike the last word.
Chairman Sensenbrenner. You may have the time.
Mr. Delahunt. You know, to pursue the theme of my friend
from California, I would inquire of the chair that once we
receive these answers to these 51 questions, is it the
intention of the chair to call for additional hearings in terms
of the issue that we've been discussing here today?
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Delahunt. Of course.
Chairman Sensenbrenner. It is the intention of the chair to
have Attorney General Gonzales up on a general oversight
hearing, and as you know, at these hearings, Members may ask
whatever questions of the Attorney General the spirit moves
them to ask.
Mr. Delahunt. I thank the chair for the answer. I would go
beyond that, and I would make this request of the chair. A
former colleague of ours on this Committee who currently serves
in the Senate, Lindsey Graham, described this particular issue
as a Marbury v. Madison moment, and I concur and I agree with
Senator Graham.
This is a profound constitutional issue. Not only does it
implicate individual's civil liberty, but it does go to the
separation of powers and the relationship between the branches.
I haven't had an opportunity to read the 51 questions. I'm
sure that they're good questions.
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Delahunt. I yield.
Chairman Sensenbrenner. I'd just point out to the gentleman
from Massachusetts that question number 50 propounded the
questions that a group of organizations that included the Arab
American Anti-Discrimination Committee and the ACLU requested
in a letter dated January 30 to Mr. Conyers and myself. We
included those questions of the Attorney General, and there
were four of them. So the questions that were asked in the
letter were wide-ranging and I think we have to wait until the
Justice Department responds to make a determination on where to
go next, and I won't presuppose any response that they have.
Let me say that, as Mr. Conyers and I did in the questions
that we asked on the PATRIOT Act, if the response is irrelevant
or non-responsive or evasive, I intend on being the crabby
professor that I can be and telling the student to redo it,
because if the first letter gets a grade of incomplete, we
would like to have a complete answer so that this Committee can
grade it each to ourselves.
Mr. Delahunt. Well, again, I thank the chair for that
amplification. At the same time, I think it was Mr. Feeney who
indicated that these questions were propounded on behalf of the
Committee, and I think it was Zoe Lofgren who indicated that--
or maybe it was Bobby Scott that it was propounded by the
chair, presumably on behalf of the Republican Members of the
Committee, not the Democratic Members. It's my understanding,
and I could be wrong that there was no consultation with
Democratic Members. I know that there would be individuals on
this side of the aisle that could propound a series of
questions that would go beyond the 51.
But having said all that, I think it's important that the
American people know that Democrats were not consulted in the
51 questions that were put to the Attorney General. But I do
acknowledge that in the past the Chair has held Department of
Justice's allegorical feet to the fire and I am confident that
he will do the same.
But that is not sufficient, in my judgment. This is such an
issue of such consequence that we deserve to have multiple
hearings, not just from representatives of the Administration
but, for example, Mr. Lungren from California has raised an
array of constitutional issues. They deserve a hearing. They
deserve to be heard. He alludes to Attorney General Bell. I
would like to have Griffin Bell before this Committee, as I'd
like to have the Deputy Attorney General Comey who, according
to reports, refused to sign off on this particular program--the
second in command of the Department of Justice. The second in
the command because----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Delahunt. May I have an additional minute?
Chairman Sensenbrenner. Without objection.
Mr. Delahunt. But I am confident, Mr. Chairman, that none
of us wants to have as our legacy that, for all intents and
purposes, as Ms. Waters indicated, didn't do our job. The
Senator Judiciary Committee has done some hearings. I don't
want to describe them as extensive. The Intelligence
Committees. But this is our one hearing, and--I agree, they
only did one 2- or 3-day hearing. There should be multiple
hearings. This is not, in my judgment, about partisan politics.
I know that there are Members that serve on this Committee on
the other side of the aisle that share my reservations and
share the concerns. This is constitutional and it is about the
institution.
And again, we don't want to have a legacy that we sat here
as props while----
Chairman Sensenbrenner. The time of the gentleman has once
again expired.
The gentleman from New York, Mr. Weiner.
Mr. Weiner. Thank you, Mr. Chairman.
Mr. Chairman, I consider myself in the pro-spying caucus of
the Democratic Party. I think we should be spying a lot. It's
inexpensive, it's something we didn't do enough leading up to
September 11, it prevents us the necessity of having to send
the young men and women of our country to fight for war in
error. But I kind of have--that's my philosophical position.
I'm trying to figure out if there are any conservatives left on
this Committee that have a philosophy of their own.
I never thought I'd say this, but I long for the days of
Bob Barr. At least he understood that when you're a
conservative, you're suspicious of the idea that the Federal
Government is encroaching further and further into our lives.
And they're suspicious, and that suspicion always led them to
be concerned about the metaphorical black helicopter but also
the creeping line.
And what happened to the tradition that we were starting to
carve out under Chairman Sensenbrenner of fighting for our
jurisdiction? You know, if there is one change that we have had
in recent years in this Committee, is every single day we are
scratching and clawing to make sure other Committees don't take
our jurisdiction, making sure, God forbid, we allow the United
States Senate to be the straw that stirs the drink.
And now look at you. You're like, Oh, we can't ask for
information because we sent them a letter.
Have you seen how they answer these letters? Did you see
the Attorney General in front of the Senate? It was a shame for
legislatures everywhere. And now you're saying, well, let's
just wait for a letter.
The resolutions we are considering today say give us all
the information; we're big boys and girls, we can figure out
how to deal with it. Why is it that that is--I've heard no
explanation about why that would be a bad thing for this
Committee in its deliberation. If you think--whether it's 2
days, Mr. Chairman, 22 days or 32 days, you are not going to
get the equivalent of a letter from the Attorney General saying
butt out. You just haven't been following the news. That's what
it is going to be.
We have to start acting like we mean it around here. If
you're concerned about fighting for our jurisdiction, let's go
ahead and do it. If you want the United States Senate--and a
couple of my colleagues said, well, the Senate had hearings. Is
that going to be our measure for our job here, watching the
United States Senate do their work? I mean, honestly, if we
didn't get it, if we needed further evidence of the
fecklessness of that body, look at that hearing that they had.
Chairman Sensenbrenner. The Chair will remind the gentleman
from New York of the rules about impugning the integrity of the
other body even when it's warranted.
Mr. Weiner. Mr. Chairman, I thank you. I apologize,
although I would dispute ``feckless'' because I think it is
arguably a point of fact, no longer an opinion.
And let me just say this. Let me just say this to some of
my colleagues. I've heard some fascinating arguments against
this. One is the gentleman from California, Mr. Lungren, sets
up the ground ball FISA argument. You got phone numbers in a
terrorist camp, a whole list of phone numbers--yeah, that's a
ground ball. That's as easy as it comes. That's exactly what
FISA was created for. I doubt very much that that's the case
study here, because that's an easy one. We can all resolve that
one. There are many junior high school civics students who
would say clearly there's probable cause there.
I've heard the gentleman from Florida, Mr. Feeney, say, Oh,
but we have a letter. Don't go ahead and ask them for
information, because we've got this letter, we've got make sure
they answer our letter.
Well, what happened to us? This is the Judiciary Committee
of the House of Representatives. Don't we have some right and
some authority?
And then finally, in the best argument for the passage of
these resolutions was Mr. Keller. He said he has some
legitimate concerns. He's not quite sure himself. He says there
are some gray areas.
Exactly. Let's get the information in front of us and draw
some conclusions. And I'll tell you where I'm probably going to
come down is I'm probably going to come down in saying, yeah,
let's give the President the authority he--we want to make sure
that there aren't obstacles in the way to doing a legitimate
intelligence gathering exercise. I think there's broad
consensus in this country and in this Committee that that's----
How are we going to do it? Are we going to do it by waiting
for 30 days for a take-a-hike letter from the Attorney General,
or are we going to do it by having him come here and probably
not even swear him in and then when we do we watch him bob and
weave and say I've got no idea, how would I know, I'm just the
Attorney General?
No. We use the powers that we have in this body to say give
us the information. We're going to go through it. It's not just
going to be one group of Members of Congress that are locked in
a steel room in the Capitol. We on the Judiciary Committee see
broad constitutional questions here. We're ready to tackle
them. We have divergent views, but we have one thing in common,
and that we are deadly serious about the jurisdiction of this
Committee and making sure we do everything we can to make sure
the security of our citizens is ensured.
And one of the ways you do it is with a resolution like
this. We should pass it in bipartisan fashion. The
conservatives and the people who pretend to be conservatives
should both vote for it.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentlewoman from California, Ms. Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman and Ranking Member
Conyers.
I, too, would like to encourage all the Members of this
Committee to vote for the present resolution. And I want to be
clear, I'm not arguing that domestic surveillance doesn't have
a place in our fight against terrorism. If domestic
surveillance will help us prevent an attack or capture
terrorists, we should do it, but within the bounds of the law
and within the bounds of our Constitution. And Congress
shouldn't be setting the precedent of surrendering its role of
being a check on the executive branch to ensure that the
executive branch doesn't overstep the law or violate the
Constitution.
That is what this resolution is about, protecting the
constitutional rights of American citizens. If this resolution
is defeated, we take another step in the dangerous direction of
ceding congressional oversight.
The President, a handful of officials in his
Administration, and some of my vocal Republican colleagues on
the Committee think that the NSA's secret and warrantless
electronic surveillance of Americans is legal. They have tried
to convince us that the authorization for the use of military
force in Iraq and Afghanistan and the President's authority as
commander in chief during a time of war grants him the power to
conduct such warrantless surveillance. And I vehemently
disagree with this conclusion. Frankly, so do most experts on
intelligence and the Constitution, both Republican and
Democrat. Many of these experts agree that there is no legal
authority at all for warrantless surveillance because the
fourth amendment protects us against unreasonable searches and
seizures. Furthermore, the Foreign Intelligence Surveillance
Act unequivocally requires judicial approval of all electronic
surveillance in this country.
If there is so much disagreement about the legality of NSA
surveillance, then let the Attorney General appear before this
Committee to answer our questions. At a minimum, the AG should
comply with the terms of this resolution and give us the
documents related to NSA's domestic surveillance program.
I think it's very interesting that all of a sudden the
Judiciary Committee is willing to surrender its substantial
oversight role. Since I've been on this Committee, we have
aggressively guarded our jurisdiction and oversight authority.
We've gone toe-to-toe with the Justice Department and other
House Committees over telecommunications antitrust
jurisdiction, immigration, and even the regulation of steroid
use by professional athletes. I don't know about anybody else
on this Committee, but I think the American people are a little
more interested in protecting their privacy rights than whether
or not Rafael Palmeiro is suspended for an additional 10 days.
But that's just my opinion.
With this resolution, we reaffirm our jurisdiction to
investigate constitutional violations. And shockingly, this
Committee is choosing not to investigate the constitutionality
of warrantless surveillance of everyday Americans. Let me
repeat that. This Committee is choosing to punt and to not
investigate warrantless surveillance of everyday Americans. I
find this unacceptable. And what is worse is that it sets a
dangerous precedent to allow the Administration to circumvent
congressional oversight.
I think the American people deserve more from their Members
of Congress. This Committee needs to pass this resolution, and
I encourage all of my colleagues to vote yes. I yield back the
remainder of my time.
Chairman Sensenbrenner. The gentleman from Maryland, Mr.
Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. I move to strike
the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Van Hollen. Thank you. And Mr. Chairman, I'm pleased
we're here debating this issue today. I agree with my
colleague, Mr. Feeney, on the other side of the aisle that
oversight is important. I would remind my colleagues, however,
that the only reason we're having this important discussion
today is because Mr. Conyers introduced a resolution which, if
we don't deal with it somehow today, will go to the floor of
the House.
That's why we're having this discussion. It's the first
discussion that this Committee has had on this very important
issue--which I agree with my other colleagues who said this is
an issue that raises important questions about the
Constitution, raises important questions about separation of
powers, rule of law, and a range of national security
questions. And we've had a give-and-take here on some very
important issues just this morning, which of course raises the
question about why we have not yet had a hearing and why we're
not going to have a hearing around this total issue.
Now, a number of us back in mid-December, when we learned
about this issue in the New York Times--despite all the
oversight that's been done in the United States Congress, we
learned about this issue in the New York Times --we asked the
Chairman if we would hold a hearing. Well, we didn't have a
hearing, we didn't even get the room. But Mr. Conyers did
organize a hearing in the basement of this building, where we
took some important testimony, including testimony from Bruce
Fein, an attorney in the Justice Department in the Reagan
administration. There was important testimony there.
Now, I'm glad, Mr. Chairman, that you're setting these
questions. I've looked at the questions. I think there are lots
of good questions. I think there could be additional questions.
But I think we'd all have to agree that if we want to get to
the bottom of this, just going back and forth with questions is
not enough. I mean, the original opinion came out from the
Attorney General's Office as to why they thought this was
legal; we read it. They then expanded it. We got a 41-page
opinion which, although it was longer, it didn't get any
better. And I think all of us who have read that opinion know
what the answers to these questions are going to be.
But you wouldn't want to have a witness where you can only
do written back-and-forth. You need to have cross-examination.
Anyone who has looked at the way you get to the bottom of
things, you've got to have cross-examination. You need more
than just the Attorney General in front of this Committee. We
need the Attorney General, we need others that our colleagues
have mentioned, including James Comey, the Deputy Attorney
General who refused to sign off on this. We need scholars on
both sides. Because I think what will happen is, when we begin
to hear the testimony, we'll understand that the overriding
weight of legal opinion in this country on all sides is that
the President does not have the authority.
But that's a debate that we should have. We've begun to
have it this morning only because of this resolution, only
because of a resolution which forced the Chairman's hand, which
forced us all to be here. This Committee shouldn't take any
credit for saying this is part of our oversight, this
discussion today. This is purely as a result of a procedural
motion that was filed by Mr. Conyers.
And it shouldn't be that way. We should be taking the lead.
I strongly believe our Founding Fathers believed when they
created our system of Government and created the Congress as a
separate branch, that they expected Republicans and Democrats
alike in this body to live up to their obligations to make sure
we have oversight over the executive branch.
Now, another Committee in this body held over 40 hours of
hearings on the Clinton Christmas card list. And yet, we
haven't had 1 hour of hearings in the House Judiciary Committee
on one of the most important constitutional separation of
powers that's been raised. And as I understand it, we're not
even planning on having a hearing targeted to this issue
generally. We're going to have our regular hearing over the
Department of Justice. The Attorney General will be here. We're
not going to have any other witnesses, not going to call any
other people on either side of this issue. That is not
fulfilling our constitutional obligation.
I think it's a dereliction of duty that we haven't had a
hearing yet. It certainly is a dereliction of duty to this
Committee and this House if we don't have a full hearing on
this issue so that we can explore all sides and answer
questions for the betterment of the American people. And I urge
you, Mr. Chairman, to uphold the integrity of this Committee
and do that.
Chairman Sensenbrenner. The time of the gentleman has
expired. The gentleman from California, Mr. Issa.
Mr. Issa. Thank you, Mr. Chairman. And I'll be brief.
First of all, with all due respect, I understand that
President Clinton's Christmas list was a much larger group than
any amount of people that we're looking for in al-Qaeda.
Having said that, I want to thank Mr. Conyers for bringing
his resolutions. I know that I personally will be voting
against them, but not because it's inappropriate to ask the
questions but because I believe that we as a Committee have an
obligation to deal with the constitutional question that's been
alluded to by many Members on both sides of the aisle. I look
forward to this Committee determining to its own satisfaction
whether or not the President has that constitutional authority.
But just as the question of whether or not somebody can
burn a flag or any number of other actions that one can quickly
realize what the action is, we don't need any more facts about
whether or not the President ordered, on a limited or even
slightly less than limited basis, the eavesdropping on
conversations that were believed to include an al-Qaeda
representative in a foreign country. We do need to decide
whether or not there's a constitutional ability.
And I might just close by saying that I do not believe that
the FISA Court or any legislation done by this body limits the
President's constitutional authority. And I would hope that we
would all refrain from talking about laws as though laws
changed the Constitution. Only a constitutional amendment
changes inherent constitutional authority of the President.
What that, I yield back.
Mr. Franks. Will the gentleman yield for a question?
Chairman Sensenbrenner. The gentleman has yielded back. The
gentleman from Arizona, Mr. Franks.
Mr. Franks. Thank you, Mr. Chairman.
Mr. Chairman, as always, I think it's just very important
to remind ourselves why we're all here. And the context of this
debate is ultimately about the protection of both the
Constitution and the United States of America. And sometimes I
think it's important to realize that the causal reason that
we're having this discussion is because we are in a war on
terror.
After 9/11, many of the same people that are speaking in
favor of the motion on the floor here today said that somehow
the President didn't do his job in paying attention to what
terrorists were doing. And now, in my judgment, he has gone to
great lengths to try to do his job. In fact, I believe that if
the President failed to be listening where it was possible to
al-Qaeda or al-Qaeda-related terrorists communicating inside
the United States, he would be derelict if he failed to do
that.
Now, the FISA Court has concluded twice that the President
has the constitutional power for this limited scope of
terrorist surveillance. I think that probably the best
statement of the day was by a gentleman on our side of the
aisle here, when he said if the President has been given or the
President has the constitutional authority and the
responsibility from all of us to hunt down, to ferret out, and
to kill terrorists, then perhaps we should all conclude that he
has the right to listen to them on the phone before he
proceeds.
And I'm just convinced that one of the reasons that the
Chairman has gone forward with this letter is because he
understands that not only does he have to move forward in a
process that gives clear direction in what he's trying to
ascertain from the Administration, but he also understands that
there is a danger, when he brings these things before the
Committee, of leaks, and that puts him in an incredibly
difficult position because he not only has to measure his
responsibility for oversight, but he also has to measure the
impact that that will have on the overall war on terror.
Now, I guess it's easy for us to all talk about how serious
terrorism is, but sometimes I think we forget it so callously.
If terrorists have their ultimate end, we will see some type of
nuclear yield weapon detonated in this country, perhaps in this
city. And it will decapitate the forces of freedom. And I
cannot understand why we don't focus on that more clearly,
because in the final analysis, our responsibility is to protect
this Nation. In the final analysis, if the President does not
have the ability to surveil terrorists in time of war, in this
situation, then the Constitution and the Republic is in grave
danger.
I think the Chairman has acted in good faith and with
wisdom, and therefore I will----
Chairman Watt. Will the gentleman yield on that point?
Mr. Franks. I will yield back to the Chairman.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Mr. Chairman, I will try not to take the full 5
minutes, but I can't promise you that.
First of all, I want to say that I do not envy the
Chairman's position here. I know that he is a person who
strongly believes in the jurisdiction of this Committee and
strongly believes in the Constitution. I also know that there
are substantial pressures to protect the President and the
Administration here because it's a Republican President and
Administration.
I want to applaud the Chairman for the 50 or so questions
that he has submitted to the Administration. I especially want
to thank him for including some questions from the various
groups. The thing that's troubling about that as I heard it,
though, was it now appears that those groups may have a higher
standing there than the Members of this Committee, on our side,
as least.
I have reviewed the resolution. It appears to be a very
reasonably worded proposed resolution--and requests the
documents, not answers to a set of questions. It requests the
information that I think this Committee, under the safeguards
proposed in the resolution--which on page 2, starting on line
8, says ``subject to necessary redactions or requirements for
handling classified documents,'' so, I mean, there's a lot of
stuff that the Administration could still keep from this
Committee--but I think this Committee has some oversight
jurisdiction here and we can't responsibly do it unless we have
the information to look at what this Administration has been
doing. This resolution will allow us to do that.
Now, that's what I have to say on the resolution. But let
me go one step beyond that and tell you where I am out in the
political context, because I think you're going to find this
very interesting. There is a growing chorus in my congressional
district and in the Progressive community that we should start
toward impeachment proceedings against this President. I have
been against all those odds even as a Progressive member,
saying we can't do this willy-nilly, this is irresponsible. It
is against the backdrop that I recall Representative Bobby
Scott and myself sitting here in this Committee during
impeachment, and while all the cameras were rolling and all the
hoopla was going on, Representative Scott and I were sitting
here quietly talking to each other about whether we would apply
the same standard that we were applying in that case if this
were a Republican president.
So I've been saying to those people who have been out there
talking about this that impeachment is something that we
shouldn't be playing with because we don't need an ongoing
impeachment every 4 years every time we disagree with a
decision that has been made by a president. The standard is so
much higher. But if we don't have a means for understanding
what the President is doing and this Administration is doing,
if they're just saying trust me, or if they're saying I don't
really much care what you think, I'm going to do whatever I
want to do regardless of the constitutional standard, I think
we are put in a very, very difficult position.
I ask unanimous consent for 2 additional minutes.
Chairman Sensenbrenner. Without objection.
Mr. Watt. To exercise the kind of judgment, aside from all
the politics that is playing out on these extremely important
things that are coming before us. And right now, what I see on
this Committee appears to be a partisan divide on whether we
are going to aggressively and affirmatively exercise our
oversight responsibilities.
With all respect to whoever it was over there who said the
President has authority beyond FISA, fine. But this Committee
has responsibility beyond FISA also. This is not only about
whether FISA was complied with. This is the Judiciary Committee
of the people of the United States House of Representatives,
and we've got some constitutional responsibilities, too. And if
we don't have the information we need to evaluate what is being
done, quietly, privately, redacted, no classified leaks,
subject to whatever limitations you all want to put, I think we
can't do what we are obligated to do constitutionally.
It is for those reasons I support this proposed resolution.
Chairman Sensenbrenner. The gentleman's time has expired.
Are there amendments? If there are no amendments, a reporting
quorum is present.
The question occurs on the motion to report House
Resolution 643 adversely. All in favor of reporting adversely
will say aye? Opposed, no?
Chairman Sensenbrenner. The noes appear to have it. The
gentleman from Michigan, Mr. Conyers, asks for a recorded vote.
Those in favor of reporting the bill adversely will as your
names are called answer aye, those opposed, no, and the clerk
will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith of Texas. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mr. Franks?
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye. Mr. Gohmert?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Berman?
Mr. Berman. No.
The Clerk. Mr. Berman, no. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
Mr. Meehan. No.
The Clerk. Mr. Meehan, no. Mr. Delahunt?
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Mr. Weiner?
Mr. Weiner. No.
The Clerk. Mr. Weiner, no. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no. Ms. Sanchez?
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no. Mr. Van Hollen?
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
Members who wish to cast or change their votes? The
gentleman from Indiana, Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.
Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert?
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye.
Chairman Sensenbrenner. Further Members in the chamber who
wish to cast or change their vote? The gentleman from Illinois,
Mr. Hyde?
The gentleman from Illinois, Mr. Hyde?
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye.
Chairman Sensenbrenner. Further Members in the chamber who
wish to cast or change their vote? If not, the clerk will
report.
The Clerk. Mr. Chairman, there are 21 ayes and 16 nays.
Chairman Sensenbrenner. And the motion to report adversely
is agreed to. Without objection, the staff is directed to make
any technical and conforming changes, and all Members will be
given 2 days as provided by the House rules in which to submit
additional, dissenting, supplemental, or minority views.
Pursuant to notice, I now call up House----
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. I ask unanimous consent to include materials
from the Congressional Research Service, American Bar, 14
constitutional scholars, Professor Tribe, and Attorney Bruce
Fein in the record.
Chairman Sensenbrenner. Without objection.
Mr. Conyers. Thank you.
[The material referred to follows:]
[The prepared statement of Mr. Flake follows:]
Prepared Statement of the Honorable Jeff Flake, a Representative in
Congress from the State of Arizona
I am voting to report, unfavorably, Ranking Member Conyer's
resolution seeking all documents related to the President's National
Security Agency (NSA) domestic wiretapping program. I do not believe
Congress needs ``all'' documents related to this program. However, I am
concerned about recent revelations regarding domestic wiretapping.
The President has claimed that the Authorization of Use of Military
Force Resolution (AUMF) authorizes NSA domestic surveillance. This
seems to me to be a stretch. As a member of the House International
Relations Committee, which reported that Resolution, I can attest that
we did not authorize such a program. The AUMF does not mention FISA or
domestic surveillance. The Resolution's title clearly authorizes
``military'' force. It makes one wonder what other programs,
unauthorized by Congress, may also be in operation.
As a member of the House Judiciary Committee, I find it
disconcerting that we worked to reauthorize the Patriot Act while being
kept in the dark about the existence of the wiretapping program. I and
the other members of the Subcommittee on Crime, Terrorism, and Homeland
Security worked in good faith to craft a bill that protected civil
liberties while providing for the powers the President sought. If the
President wanted to go beyond the powers he currently has with FISA, he
should have sought clear congressional authorization. The argument that
seeking such explicit authorization would have tipped the terrorists
off is not compelling. Surely the terrorists know that surveillance is
already possible under FISA.
The administration's claims that an ``inherent commander-in-chief
power'' lets the President act unilaterally. This claim runs contrary
to the argument that this program is authorized by the AUMF. If the
President can act on his own, certainly he would not need to cite the
AUMF. In addition, the Department of Justice would not have needed to
brief the Chief Judge of the FISA court on the existence of this
program.
The Constitution states that ``[t]he President shall be Commander
in Chief of the Army and Navy of the United States, and of the militia
when called into actual service of the United States.'' Nowhere does
the Constitution state that the President has exclusive powers
governing military affairs. The Constitution states that Congress has
the power ``to make rules for the government and regulation of the land
and naval forces.''
The President cannot choose to ignore the FISA statute. He must
provide Congress with the information necessary to afford him the
powers he needs. Since it appears that is up to the House and Senate
Judiciary Committees to craft any FISA changes that will grant the
President the flexibility he seeks, members of this Committee must be
briefed on the details of the program in a secure environment.
I do not agree that, at this time, we should force the President to
release all information on the program. The President should recognize
that we are willing to work with him, and appreciate that we need the
information on this program to perform our oversight responsibility.
Let me reiterate that I believe that the NSA ought to have the
ability to monitor communications between known or suspected terrorists
overseas and U.S. citizens. I simply believe that it can, and should be
done within our constitutional framework.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas
President Bush secretly authorized the National Security Agency
(NSA) to eavesdrop on Americans and others inside the United States to
search for evidence of terrorist activity, and he did this without the
court-approved warrants ordinarily required for domestic spying. Due to
the highly classified nature of this program, the details have not been
revealed. Officials familiar with it, however, say that NSA has
eavesdropped without warrants on up to 500 people in the United States
at any given time. Some reports indicate that the total number of
people monitored domestically has reached into the thousands, while
others indicated that significantly more people have been spied upon.
I do not oppose the monitoring of telephone calls and e-mail
messages when it is necessary for national security reasons. I am
opposed, however, to engaging in such monitoring without a warrant. We
have a Foreign Intelligence Surveillance Court that was established for
the sole purpose of issuing such warrants when they are justified.
The day after this monitoring became public, President Bush
admitted that he had authorized it and claimed that he had the
authority to do so. According to the President, the order was fully
consistent with his constitutional responsibilities and authorities. I
respectfully disagree with the President. The law establishes well-
defined procedures for eavesdropping on U.S. persons, and President
Bush failed to follow those procedures.
The starting point for understanding surveillance law is the Fourth
Amendment to the Constitution, which states clearly that Americans'
privacy may not be invaded without a warrant based on probable cause.
The United States Supreme Court has held that this protection applies
to government eavesdropping. Consequently, all electronic surveillance
by the government in the United States is illegal unless it falls under
one of a small number of precise exceptions specifically carved out in
the law.
After 9/11, Congress approved an Authorization to Use Military
Force against those responsible for the attacks in order to authorize
the president to conduct foreign military operations such as the
invasion of Afghanistan, but that resolution contains no language
changing, overriding, or repealing any laws passed by Congress.
The Foreign Intelligence Surveillance Act (FISA) contains explicit
language describing the president's powers during time of war and
provides that the President, through the Attorney General, may
authorize electronic surveillance without a court order under this
title to acquire foreign intelligence information for a period not to
exceed fifteen days following a declaration of war by the Congress.
Consequently, even assuming that the use-of-force resolution places us
on a war footing, warrantless surveillance would have been legal for
only 15 days after the resolution was passed on September 18, 2001.
The FISA law takes account of the need for emergency surveillance.
The need for quick action cannot be used as a rationale for going
outside the law. FISA allows wiretapping without a court order in an
emergency; the court simply must be notified within 72 hours. The
government is aware of this emergency power and has used it repeatedly.
If President Bush found these provisions inadequate, he should have
taken his case to Congress and asked for the law to be changed, not
simply ignored it.
Congress needs to know more about this situation. I have
cosponsored H. Res. 643, which directs the Attorney General to submit
to the House of Representatives all documents in the possession of the
Attorney General relating to warrantless electronic surveillance of
telephone conversations and electronic communications of persons in the
United States conducted by the National Security Agency.
I urge you to vote for this resolution. Thank you.
[Intervening business.]
The business before the Committee having been completed for
today, without objection the Committee stands adjourned.
[Whereupon, at 12:25 p.m., the Committee was adjourned.]
DISSENTING VIEWS
We strongly dissent from the adverse reporting of H. Res.
643. This resolution would have simply required the Judiciary
Committee to conduct its constitutionally mandated oversight
role by obtaining those documents that reflect how the highest
lawyers in the United States government could approve a program
that has nearly unanimous, bipartisan legal opposition.
On December 16, 2005, we learned that the U.S. has been
conducting warrantless surveillance of U.S. persons on U.S.
soil, an unprecedented program that is not provided for in law.
Since then, the President and his Justice Department have been
on a publicity tour, trying to justify a program that is not
only most likely illegal, but according to Administration
sources, is also ineffective.
We all have grave legal and policy concerns, concerns which
led every other Committee of jurisdiction to hold at least
cursory hearings. As a result, we introduced this resolution to
obtain the basic information necessary to understand more than
the 42-page legal justification the Justice Department is now
distributing. To understand the intelligence, criminal and
constitutional implications of this program we need to know how
this program works, who approved of it, and why.
A. H. RES. 643 WOULD HAVE PROVIDED INSIGHT INTO WHY THE JUSTICE
DEPARTMENT APPROVED A PROGRAM THAT MANY EXPERTS AND SCHOLARS BELIEVE IS
ILLEGAL
H. Res. 643 requests the Attorney General to submit all
documents in his possession relating to warrantless electronic
surveillance of telephone conversations and electronic
communications of persons in the United States conducted by the
National Security Agency, subject to necessary redactions or
requirements for handling classified documents. This request
would have included any and all opinions regarding warrantless
electronic surveillance of telephone conversations and
electronic communications of persons in the United States, as
well as other records which would allow us to better understand
the size, scope, and nature of the program.
This is a measured and reasonable step. As a resolution of
inquiry, this legislation is simply a voluntary request for
information. It would have been within the discretion of the
Attorney General to decide what information to share with
Congress. Further, the request explicitly asked the Attorney
General to redact any sensitive information and provide
instructions for handling classified documents. In all, the
legislation is quite a modest request considering the weight of
issues implicated by warrantless wiretapping on American soil.
B. WARRANTLESS SPYING ON AMERICAN CITIZENS RAISES SERIOUS
CONSTITUTIONAL QUESTIONS WHICH CANNOT BE ANSWERED WITHOUT FURTHER
INFORMATION
We are not asking for this information in a conclusory
fashion. We are not saying that the President broke the law or
has acted contrary to the Constitution. In fact, this
resolution may well produce documents that rebut those
allegations. What is clear is that, assuming what has been
reported is true, many Constitutional and legal experts--
Republicans and Democrats--have indicated that this secret
domestic surveillance program raises substantial questions
about whether the program is legal and whether it is
constitutional.
These include the Nation's most preeminent legal and
intelligence authorities:
(1) Harvard Professor Laurence H. Tribe;
(2) Fourteen of the nations preeminent legal scholars,
including William S. Sessions, the former Director of the FBI
under Presidents Ronald Reagan, George H.W. Bush and Bill
Clinton, and William W. Van Alstyne, a Law Professor at William
and Mary who was a witness called by this Committee's
Republican Members during the impeachment of President Clinton;
(3) Bruce Fein, a former Deputy Associate Attorney General
in the Reagan Administration,
(4) Jonathan Turley, a Constitutional scholar and another
witness called by the Republicans on this Committee during the
Clinton impeachment,
(5) the non-partisan Congressional Research Service, and
(6) the American Bar Association.
The question before the Committee was not whether we agreed
with these individuals, but whether we think their judgments
are sufficiently serious to warrant further inquiry by this
Committee. We are immensely disappointed that 22 out of 23
Republican members disregarded this weight of legal opinion.
C. THIS COMMITTEE IS ABDICATING ITS OVERSIGHT ROLE BY IGNORING MOST
LIKELY ILLEGAL AND UNCONSTITUTIONAL ACTS BY ITS OWN JUSTICE DEPARTMENT
On December 18, 2005, every Democratic member of this
Committee wrote the Chairman and requested that he hold
hearings on the NSA spying program. To date, no hearing has
been held, and the letter has not been answered. In fact, the
House Judiciary Committee is the only committee of jurisdiction
that hasn't held some sort of hearing or inquiry into the
matter.
Chairman Sensenbrenner arranged a briefing for Committee
members and their staff on Monday, February 13, 2006. However,
notice did not go out until Saturday the 11th, too late for
members to change their schedules to attend. Mr. Scott was the
only Representative available for the briefing, and we have
asked for another briefing with reasonable notice.
Chairman Sensenbrenner did however send a letter to
Attorney General Alberto Gonzales on February 8, with 51
questions relating to the NSA scandal. The majority claims that
letter is a substitute for this resolution of inquiry.
The Chairman's letter, while lengthy, seeks little new
information if any at all. The first 38 questions ask the
Justice Department whether it thinks the wiretapping program is
legal. It is already clear from the Justice Department's
publicly distributed white paper that it does.\1\
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\1\ Department of Justice, LEGAL AUTHORITIES SUPPORTING THE
ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT,
Jan. 19, 2006.
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There are also a number of questions that are clearly
irrelevant to the spying program and are asked for partisan
purposes. For example, a number of questions ask about whether
previous Administrations engaged in similar behavior or
believed they had the authority to do so.
The Chairman's letter and briefing do not answer a number
of important questions that must be answered before a legal
determination can be made. To decide whether this program is
reasonable under the 4th Amendment--as the Administration
claimed in its briefing--members must know the particulars of
the program.
D. CONCLUSION
A letter alone--which can be ignored or danced around--is
not sufficient. This Committee has always taken the common
sense approach that the best way to find out what people were
thinking at the time they made decisions, is to get the
documents they wrote at that time reflecting those thoughts. In
fact, on a number of matters--including biometric passports,
judicial sentencing practices, the Civil Rights Commission, and
Legal Service Commission--the Chairman's first step has been to
obtain and preserve relevant documents.
The Washington Post has written, that the Executive Branch
treats Congress ``as an annoying impediment to the real work of
government. It provides information to Congress grudgingly, if
at all. It handles letters from lawmakers like junk mail,
routinely tossing them aside without responding.''
It's time that Congress begins to serve as a genuine check
and balance on the Administration. This is not a partisan
issue, but a constitutional issue that this Committee is
obligated to act independently and fairly on.
John Conyers, Jr.
Howard L. Berman.
Rick Boucher.
Jerrold Nadler.
Bobby Scott.
Melvin L. Watt.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
Bill Delahunt.
Robert Wexler.
Anthony D. Weiner.
Linda T. Sanchez.
Chris Van Hollen.
Debbie Wasserman Schultz.