109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-383
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REQUESTING THE PRESIDENT AND DIRECTING THE ATTORNEY GENERAL TO TRANSMIT
TO THE HOUSE OF REPRESENTATIVES NOT LATER THAN 14 DAYS AFTER THE DATE
OF THE ADOPTION OF THIS RESOLUTION DOCUMENTS IN THE POSSESSION OF THOSE
OFFICIALS RELATING TO THE AUTHORIZATION OF ELECTRONIC SURVEILLANCE OF
CITIZENS OF THE UNITED STATES WITHOUT COURT APPROVED WARRANTS
_______
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. 644]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 644) requesting the President and directing
the Attorney General to transmit to the House of
Representatives not later than 14 days after the date of the
adoption of this resolution documents in the possession of
those officials relating to the authorization of electronic
surveillance of citizens of the United States without court
approved warrants, having considered the same, report
unfavorably thereon without amendment and recommend that the
resolution not be agreed to.
PURPOSE AND SUMMARY
House Resolution 644, introduced by Representative John
Conyers (D-MI) on December 22, 2005, requests the President and
directs the Attorney General to transmit to the House of
Representatives, not later than 14 days after the date of
adoption of this resolution, documents in the possession of
those officials relating to the authorization of electronic
surveillance of citizens of the United States without court
approved warrants. The resolution then sets forth a list of
nine types of documents that are requested.
BACKGROUND
House Resolution 644 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 is 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. 644 was referred to
the Committee on the Judiciary. On February 15, 2006 H.Res. 644
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 644 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 the date 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. 644 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 theStates 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.
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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, 2006, 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 Sates, 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 avoid that 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.
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, the Administration 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. 644 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. 108-215, 108th Cong., 1st Sess. (2004).
\36\ H.R. Rept. 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. 644. 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. 644
adversely.
HEARINGS
No hearings were held in the Committee on the Judiciary on
H. Res. 644.
COMMITTEE CONSIDERATION
On February 15, 2006, the Committee met in open session and
adversely reported the resolution H. Res. 644 by voice vote, 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 notes that there
were no recorded votes during the Committee consideration of H.
Res. 644.
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. 644 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. 644 is not a bill or joint
resolution that may be enacted into law.
SECTION-BY-SECTION ANALYSIS AND DISCUSSION
The Resolution requests the President and directs the
Attorney General to transmit to the House of Representatives,
not later than 14 days after the date of adoption of this
resolution, documents in the possession of those officials
relating to the authorization of electronic surveillance of
citizens of the United States without court approved warrants.
The resolution then sets forth a list of nine types of
documents that are requested.
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.
644 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.
[Intervening business.]
Chairman Sensenbrenner. Pursuant to notice, I now call up
House Resolution 644, Requesting the President and directing
the Attorney General to transmit to the House of
Representatives not later than 14 days after the date of the
adoption of this resolution documents in the possession of
those officials relating to the authorization of electronic
surveillance of citizens of the United States with court
approved warrants, 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.
[The resolution, H. Res. 644, follows:]
Chairman Sensenbrenner. The Chair recognizes himself for a
very quick 5 minutes to explain the resolution.
Many of the arguments that have been given both pro and con
with the previous resolution apply to this resolution. However,
I would note that unlike the previous resolution, that at least
attempted to provide some protection for national security
information, H. Res. 644 contains no safeguards that would
protect the classified information requested. For that reason
and for all of the other reasons, I would urge approval of the
motion to report adversely.
I yield back the balance of my time and recognize the
gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. Mr. Chairman, I concur that to go into
hearings on this matter would be duplicative and, for reasons
of my own, I urge that we set aside the discussion to the
greatest extent possible. I call upon my colleagues to join
with me in this consideration.
I yield back the balance of my time.
Chairman Sensenbrenner. Are there any----
Mr. Watt. Would the gentleman yield? Ranking Member?
Mr. Conyers. Of course.
Mr. Watt. Is the gentleman recommending one way or another
on how we should vote on this, or is he just recommending that
we not speak on it?
Mr. Conyers. I am recommending that we do not speak on
this, but it is my intention to have--that this be disposed of
by voice vote and therefore that there may not be a record
therefrom.
Chairman Sensenbrenner. Without objection, Members may
place opening statements in the record at this point.
Are there amendments----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Just long enough to say that I liked the earlier
resolution a lot better, but we've got to get these records. It
seems to me that if we had passed the other resolution, there
would be a whole different discussion. No discussion, perhaps,
wouldn't even be any necessity to take this up. But it seems to
me we need the records in the House of Representatives to do
our responsibilities, and we can clean up this resolution after
it passes out of here or amended it after it passes out of
here. But we need a resolution that gets these documents to the
House of Representatives for us to exercise our responsibility
if we're going to do it. And for that reason, I intend to vote
for this resolution despite its shortcomings.
Ms. Jackson Lee. Would the gentleman yield?
Mr. Watt. Yes.
Ms. Jackson Lee. May I just associate myself with the
distinguished gentleman from North Carolina. I think all of us
have focused on the importance of oversight. I, too, believe
643 stands as a very strong resolution, but 644 requires our
attention, one, as I indicated before, and I hope subsequently
to add these materials to the record, but in any event, the
question of inherent powers is so crucial as relates to
domestic spying, which is the question that we're asking today,
and the complete ignoring of FISA and established statutory law
that's been reviewed by the Supreme Court, that I would also
suggest that this is a resolution that deserves our
consideration. I will be voting for it.
Mr. Watt. Reclaiming my time, let me just be clear. If we
won't exercise the responsibility in this Committee, the
Judiciary Committee, as the prior resolution says, I think
that's the appropriate place to do it, and with the protections
that were provided in the prior resolution. But in the absence
of our willingness to do it responsibly in this Committee,
where it should be done, these documents ought to come to the
House of Representatives so somebody who has the guts will do
it.
Mr. Delahunt. Would the gentleman yield?
Mr. Watt. Mr. Delahunt.
Mr. Delahunt. Yes, I just wanted to make an observation
that I think it's remarkable that what we have seen here today
occur. For conservatives to put their trust in the executive
branch and not to verify is a remarkable watershed in the
conservative movement. And I guess the last member of the
genuine conservative movement in this country is sitting two
down from my right. But I just find it absolutely incredible
that we come down to this, where Republicans say, okay, to Big
Government, we'll trust you, and we won't even verify.
And with that, I yield back.
Mr. Weiner. Mr. Chairman?
Mr. Watt. I yield to Mr. Weiner.
Mr. Weiner. Just to try to clarify the record here, if I
can just ask the Chairman to yield to a question.
Is there a commitment on your part to have hearings on this
particular issue, or only to have the Attorney General come in
as part of the due course of oversight? Are we going to have
hearings dedicated to this question, Mr. Chairman?
Chairman Sensenbrenner. The time belongs to the gentleman
from North Carolina.
Mr. Watt. I yield to the Chairman.
Chairman Sensenbrenner. The Attorney General will come in
and he will testify and answer questions on whatever he wishes
to testify on and whichever questions the Members wish to ask
him on. I would expect, if I'm listening properly, that most of
the questions that will be directed to him will be on this
issue.
Mr. Weiner. No, Mr. Chairman, I think you misunderstood my
question. My question was, as the Chairman are you committed to
convening a hearing on this particular subject? It does seem to
be----
Chairman Sensenbrenner. You know, the answer to the
question is no because I don't know if I can get the Attorney
General more than once.
Mr. Weiner. Well, let me ask you, if I can just continue.
Is there a commitment to have a hearing on this subject, and if
the Attorney General says to the Judiciary Committee take a
hike, I'm not going to come and answer any more questions or
I'm not going to come in on this subject, that we would then
get some other views? I mean, if our concern is we're not going
to schedule a hearing because the agency that we oversee----
Chairman Sensenbrenner. If the gentleman from North
Carolina will yield----
Mr. Watt. I will.
Chairman Sensenbrenner. The Chair is not in a position to
answer that question until we see what response comes on or
before the 2nd of March to the 51 questions that I have posed
to the Attorney General. As the gentleman knows, when the
former Attorney General tried to evade the oversight questions
that Mr. Conyers and I asked on the PATRIOT Act----
Mr. Watt. I ask unanimous consent for 1 additional minute.
Chairman Sensenbrenner. Without objection--you know, we
told him to re-do it until the questions were answered, and we
finally got the answer. Now, I did have to trip the subpoena in
the interim. But I want to get the answers to these questions.
You know I'm kind of a tiger on that, but give me a break.
Mr. Weiner. Mr. Chairman, yeah, but you're having a
pussycat moment here. [Laughter.]
The question is----
Chairman Sensenbrenner. If the gentleman will yield, tigers
are pussycats, too.
Mr. Watt. I ask unanimous consent for 1 additional minute
and yield to the Chairman and then to Mr. Weiner.
Mr. Weiner. No, what I'm trying to--first of all, I can't
imagine that, just given what the Attorney General's answer has
been to questions up to now, that we're going to be completely,
100 percent satisfied. I can't imagine he's going to solve, in
the context of this, why not? What is the downside? And I
haven't heard it from my colleagues there; maybe you can tell
me. What is the downside of saying we're going to have a
hearing in X amount of days, we're going to address these
things, we're going to get the Attorney General, we're going to
have a panel of people on all sides.
Chairman Sensenbrenner. Will the gentleman from North
Carolina yield?
Mr. Watt. Yes, sir, I will.
Chairman Sensenbrenner. You know, I think that taking a
case to trial without discovery might be malpractice, and we're
going to be doing the discovery first.
Mr. Weiner. Mr. Chairman, I'm not saying don't do the
discovery. I'm not saying don't get the answer to the 51
questions. I'm not saying don't do that. I'm saying that is
there a commitment at the very least on your part to have
hearings on----
Chairman Sensenbrenner. Well, if the gentleman will yield--
--
Mr. Weiner. Sure.
Chairman Sensenbrenner. --I've answered that question. And
that is, is that the AG will be up here, it will not be a
specified hearing. On the other hand, you know, I'm going to be
pretty darned insistent that there be answers that are
relevant, in point, and truthful to the 51 questions that have
been posed. And if it takes the Justice Department several
tries to get the answer down, we might not like what it is, but
at least it will be responsive to the question. So be it. And
that's what Mr. Conyers and I did on the PATRIOT Act and that's
what I intend to do on this letter, too.
Mr. Weiner. Well, Mr. Chairman, as grateful as I am on
behalf of the Committee for extending those 51 questions, that
is simply not a substitute for good oversight hearings.
I yield back.
Mr. Watt. I ask unanimous consent for 1 additional minute
and yield to Mr. Conyers.
Mr. Conyers. Mr. Chairman, I just have to insist upon the
point made by the gentleman from New York. This subject matter
requires hearings on the subject matter. To bring the Attorney
General to this Committee to talk about all of the matters
under his jurisdiction would be absolutely insufficient.
And I thank the gentleman for yielding.
Mr. Watt. Can I just reclaim my time long enough to say
that both of these resolutions, in my opinion, really deal with
the discovery stage as much as the 51 questions deal with the
discovery stage. We need the documents to have an informed
hearing, in my opinion. That's part of the discovery phase, if
you're putting it in trial-context terms. To be able to
exercise our responsibility in a responsible way, we need to
know what the Administration has done. And both of these
resolutions, the earlier one really more than this one is
directed at that.
I yield back.
Chairman Sensenbrenner. The gentleman's time has expired.
Are there amendments?
Ms. Waters. Yes. Yes.
Chairman Sensenbrenner. Does the gentlewoman from
California have an amendment?
Ms. Waters. No amendment. I move to strike the last word.
Chairman Sensenbrenner. For what purpose----
Mr. Gohmert. I was going to move to strike the last word
also.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert, is recognized for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
With all the metaphorical speaking about trials, you're
back in my bailiwick, my days as a judge and chief justice. And
I want a hearing on this, but what we're talking about here in
these two requests, a judge would look at these requests as
discovery requests and say they're overly broad, and that would
allow Respondent to object that they're overly broad, break it
down more carefully.
So the way I'm viewing this and the reason I voted aye on
the first one and will vote with the Chairman on this is that
those 51 answers will allow us to determine more succinctly
what exactly we want to request. Because I think the
Administration could object this is covering areas you may not
have a right to get into. And once it's broken down and we see
what they have, we get the answers to the 51, then we can go
back and make additional requests, refine those requests more
directly so that we don't get bogged down in a year or two of
litigation or dispute between us and the Administration over
what we have a right to see.
Mr. Watt. Would the gentleman yield just for a second?
Mr. Gohmert. We do want a trial, and this judge is going to
support getting to the metaphorical trial, but first we do need
to do proper discovery in proper form so we don't shoot for the
end result.
Yes, I will yield.
Mr. Watt. I thank the gentleman for yielding. I think we've
taken this metaphorical trial further than it really needs to
be and further than is appropriate. The great thing about the
legislative body is that in a trial i never asked a question
that I didn't already know the answer to. This time, I need the
facts regardless of what the answer is, regardless of how it
cuts, whose ox it gores--I don't care. It's our responsibility
to the public to ask the questions regardless of whether they
are objected to or not. So our responsibility is really way
beyond a trial. We're not trying anybody. We're just trying to
get the facts.
Mr. Gohmert. Would the gentleman yield back? I agree with
you, but by asking first questions first, then we can refine
our questions and hopefully avoid any kind of dispute over what
is reachable by this body in its oversight obligations.
Mr. Delahunt. Would my friend yield for a minute.
Mr. Gohmert. Yes, I yield to the gentleman from
Massachusetts.
Mr. Delahunt. You know, I think what the gentleman from New
York was driving towards as far as multiple hearings are
concerned, let's not just focus in on the response of the
Attorney General, but there should be a full exposition, if you
will, of all of the potential constitutionals that could be
implicated in this issue. We hear from Mr. Lungren about
inherent powers of the executive. We talk about FISA. We talk
about these relationships. We can have hearings on that and
listen to experts while we are waiting, if you will, for the
conclusion of the discovery phase. I just think this is too
important an issue constitutionally to not address it
aggressively.
Mr. Gohmert. Reclaiming my time. I agree with you, but if
you have the hearings before you get the initial answers, then
you're not going to be able to key in and ask the right
questions in sufficient specificity. So for that reason, I will
support the Chairman----
Mr. Delahunt. Could I ask the gentleman to yield on that
point?
Mr. Gohmert. Yes.
Mr. Delahunt. I'm not even saying we should not wait for
this. I don't think anyone is suggesting don't get all the
information we can. But it seems to me I can't think of an
issue that has presented itself in recent memory that hasn't
more lent itself to classic oversight of this Committee,
whether you're conservative on this issue, like I am, or a
raving liberal, like many of you guys apparently are, trusting
Government at every turn.
All I'm asking from the Chairman is say the easiest thing,
say Of course we're going to have hearings on this, we're the
Judiciary Committee. This is an issue that people are talking
about in coffee shops all around the country, that talks about
the very questions of balance of power that many of you have
said you're concerned about. Just say yes--I mean, sometimes I
think you're just reflexively saying no to us just because we
raise it. But this is an example of what we should be doing
here, is saying Of course, Congressmen, we're going to have
hearings on this. This is such an important issue. So many
people care about it.
And I disagree with some of my colleagues. As I said in my
remarks earlier, I want to do more spying, I want to increase
our intelligence budget, I want to have the ability to track
these things as best we can. And if FISA is somehow falling
down, I'm going to be one of the people who's going to vote to
fix it up.
Why not have the hearings? And no one, not a single person
has said on that side why not have hearings. Even you seem to
imply you want to have hearings.
Mr. Gohmert. I just want to do it in the proper order, and
I think----
Chairman Sensenbrenner. The time of the gentleman has
expired. Are there amendments?
Ms. Waters. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman from California is
recognized for 5 minutes.
Ms. Waters. Thank you very much.
Now, first of all, I understand that most of the Members of
this Committee have not seen the 51 questions. They just put
them before me and I tried to scan them, as they scan our
conversations that we're having all over the country, and I
note that those things that I'm interested in are not even
covered in the 51 questions.
For example, I talked about this Echelon Program. Do you
realize, Members, that not only is your country spying on you
in this program, they allow Canada, Great Britain, Australia,
and New Zealand to spy on you in this program. When they scan
and they hear the key words, the system enables one country to
eavesdrop on communications within another country without,
they say, violating its privacy laws and, at the same time,
transmit to that country's intelligence agencies messages that
are of interest to them. One does not have to speculate long or
engage in much imagination to see how synergistic FISA and
Echelon can be. This document says.
So I want to know more about this program, where we're
being spied on not only by our own country but by other
countries, and I want to know about these telecommunications
companies who get a call from God knows who and then they allow
this technology to be used to spy and place citizens under
surveillance without any warrants, without anything. All of
these companies--AT&T, MCI, Sprint, all of them cooperate with
warrantless surveillance, the executives say. You've seen this
information. My God, how scared can you be? How can anybody
whip you in line to such a degree that you would not want to
protect the Constitution of the United States?
I want to tell you, the President of the United States, my
mother and nobody else could put the fear of God in me to the
point where I wouldn't do my job on this issue. My God, how can
you look yourselves in the eye at night knowing that it has
been exposed that the Constitution is being violated, that the
President is breaking the law, that the FISA Court is being
ignored, and not do something about it? I mean, what do you
come to work for? Why are you elected to office?
This is outrageous and ridiculous, and I know that you
don't want to hear it, but we're going to have to talk about
it. I hope that every Member on this side of the aisle will go
to the floor ad nauseam until we force you to get the courage
to do what you need to be doing and not allow anybody to make
you shut up on this issue. This is outrageous.
And Mr. Chairman, no, your 51 questions are not good
enough. We did not participate at all in helping to organize
these. You disrespected us totally. You not only did not ask us
to participate--and I don't know about the Members who are
sitting over there with those stupid grins on their faces; you
look absolutely spineless on this issue and you ought to be
ashamed.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. Mr. Chairman, I would like to recommend that
unless there are other speakers, that we move to a final vote
on this. I will indicate that I am going to support the
gentlewoman from New York's resolution and that we end our
debate on this matter.
Chairman Sensenbrenner. Are there amendments? If there are
no amendments, a reporting quorum is present. The question
occurs on the motion to report H. Res. 644 adversely. All in
favor of reporting adversely, say aye? Opposed, no?
The ayes appear to have it.
Mr. Conyers. Mr. Chairman, I ask for a record vote.
Chairman Sensenbrenner. A record vote is requested. Those
in favor of reporting the resolution adversely will as your
names are called answer aye, opposed, no. The clerk will call
the roll.
Before the clerk calls the roll, we have one more bill
which I believe is noncontroversial, the Financial Services
Regulatory Relief Act, where the sequential expires during the
recess. We need to have a reporting quorum here to report that
out. The Chair knows of no amendments.
The clerk will now call the roll on----
Mr. Conyers. Mr. Chairman, I ask unanimous consent to
withdraw my request for a record vote.
Chairman Sensenbrenner. The request is withdrawn. Does
anybody else wish a recorded vote?
Hearing none, the ayes have it. Without objection, the
staff is directed to make 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.
[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
I dissent from the negative reporting of H. Res. 644, that
would have simply requested that the President and the Attorney
General provide Congress with documents that relate to
warrantless wiretapping. This Committee should have exercised
its constitutionally mandated oversight role and examined the
original legal theories behind this unprecedented wiretapping
program, the scope of program, and how it was approved. As more
fully discussed in the dissenting views of H. Res. 643, I
believe the Judiciary Committee is abdicating its role to
ensure that the executive acts within the constitution.
John Conyers, Jr.