109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-385
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REQUESTING THE PRESIDENT TO PROVIDE TO THE HOUSE OF REPRESENTATIVES
CERTAIN DOCUMENTS IN HIS POSSESSION RELATING TO ELECTRONIC SURVEILLANCE
WITHOUT SEARCH WARRANTS ON INDIVIDUALS IN THE UNITED STATES
_______
March 7, 2006.--Referred to the House Calendar and ordered to be
printed
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Mr. Hoekstra, from the Permanent Select Committee on Intelligence,
submitted the following
ADVERSE REPORT
together with
ADDITIONAL VIEWS
[To accompany H. Res. 641]
The Permanent Select Committee on Intelligence, to whom was
referred the resolution (H. Res. 641) requesting the President
to provide to the House of Representatives certain documents in
his possession relating to electronic surveillance without
search warrants on individuals in the United States, having
considered the same, report unfavorably thereon without
amendment and recommend that the resolution not be agreed to.
COMMITTEE STATEMENT AND VIEWS
A. Purpose and summary
H. Res. 641 is a resolution of inquiry requesting the
President to provide to the House of Representatives not later
than 14 days after its adoption ``all documents in the
possession of the President, including telephone and electronic
mail records, logs, calendars, minutes, memoranda, and advisory
legal opinions on, and identities of all individuals subject
to, electronic surveillance without search warrants by the
National Security Agency within the United States since
September 11, 2001.''
B. Background
A resolution of inquiry may be adopted by the House as a
means of obtaining documents from the Executive Branch for
investigative purposes. Clause 7 of rule XIII of the House of
Representatives provides for specific procedures regarding
resolutions of inquiry in the House, including that a motion to
discharge a committee from its consideration shall be
privileged if not reported to the House within 14 legislative
days after its introduction. H. Res. 641 was introduced on
December 18, 2005. Including recess days, the Committee
adversely reports H. Res. 641 to the House within 14
legislative days of its introduction in the House.
The resolution seeks documents that relate to ``electronic
surveillance without search warrants by the National Security
Agency within the United States since September 11, 2001''. On
December 17, 2005, the President disclosed that he had
``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'' \1\ following the
unauthorized disclosure of a sensitive and highly classified
national security program to and by the news media.\2\ The
President also noted, ``Leaders in Congress [had] been briefed
more than a dozen times on this authorization and the
activities conducted under it.'' \3\
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\1\ ``Radio Address by the President to the Nation,'' December 17,
2005.
\2\ The President also noted that ``our enemies have learned
information they should not have, and the unauthorized disclosure of
this effort damages our national security and puts our citizens at
risk. Revealing classified information is illegal, alerts our enemies,
and endangers our country.'' Id.
\3\ Id.
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Subsequently, the Executive Branch has provided additional
information with respect to the legal authority supporting the
program in an unclassified format to the House, to the
Committee and to the public. On December 19, 2005, Attorney
General Alberto Gonzales and Principal Deputy Director of
National Intelligence General Michael Hayden conducted a
briefing for members of the news media. On December 22, 2005,
Assistant Attorney General William Moschella provided a letter
to the bipartisan leadership of the Congressional intelligence
committees summarizing the legal authority supporting the NSA
activities described by the President. On January 19, 2006, the
Attorney General transmitted a more detailed legal analysis to
bipartisan House and Senate leadership and leadership of the
Congressional intelligence committees.
In addition, Attorney General Gonzales and Principal Deputy
Director of National Intelligence Hayden conducted a classified
briefing for the full membership of the Permanent Select
Committee on Intelligence on February 8, 2006 with respect to
certain operational details of the program and relevant legal
authorities.
Under the precedents of the House, a Committee may choose
to adversely report a resolution of inquiry when the Executive
Branch has already provided information on the relevant subject
matter or it concludes that the resolution would compete with
other investigations that are regarded as more appropriate.\4\
Both considerations are relevant with respect to H. Res. 641.
First, the Executive Branch conducted numerous briefings for
Members of Congress on the program prior to its public
disclosure and has subsequently briefed and answered questions
from the full Permanent Select Committee on Intelligence with
respect to operational details and legal authorities that are
the subject of the Resolution of Inquiry. Second, the Committee
has already undertaken a broader examination of issues relating
to potential reform and modernization of the Foreign
Intelligence Surveillance Act (``FISA'') that it believes will
provide a fuller opportunity to consider the entire range of
relevant issues rather than considering a single discrete
program in isolation.
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\4\ See generally Fisher, ``House Resolutions of Inquiry,''
Congressional Research Service Report for Congress RL31909 (May 12,
2003).
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The Committee intends to go forward with multiple steps in
its inquiry. First, the Chairman and Ranking Member have
transmitted a letter to the Attorney General asking for
clarification of a number of discrete issues relating to the
current state of practice and procedure under FISA. The letter
is not directed only to issues relating to the program
described by the President, but more broadly at the everyday
functioning of FISA as a whole.
Second, the Committee will conduct a classified briefing
with officials from the Justice Department and the Federal
Bureau of Investigation to allow members to directly ask
questions about the FISA process and how it is operating in
practice.
Third, the Chairman is working with the Executive Branch in
an effort to arrange for additional members of the Committee to
visit the National Security Agency to meet with personnel
operating the program.
Fourth, the Committee expects to hold a public hearing on
general issues relating to the FISA process and FISA
modernization in the near future. There has been widespread
misunderstanding and misinformation circulating about FISA. It
is important that the public have an opportunity to understand,
to the extent possible in an open session, what is myth and
what is reality.
These will be comprehensive efforts to review not just
issues relating to the program described by the President, but
also equally or more pressing issues relating to FISA that may
be hindering our nation's ability to conduct foreign
intelligence and effectively fight the war on terror.
The Committee also notes that the resolution would have
requested the President to provide highly sensitive materials
relating to intelligence sources and methods, including the
identities of the specific targets of surveillance, to the
House without restricting the information to the Permanent
Select Committee on Intelligence or expressly permitting it to
be submitted in a classified format. Information on specific
intelligence targets is so sensitive that the Committee
ordinarily does not receive or request it, even for routine
operations.
Because the resolution would likely be counterproductive to
the more comprehensive efforts underway to review these issues,
the Committee adversely reports H. Res. 641 to the House.
HEARINGS
The Committee held no hearings on H. Res. 641.
COMMITTEE CONSIDERATION AND VOTES
On March 2, 2006, the Committee met in open session and
ordered H. Res. 641 adversely reported, without amendment. The
Committee took the following votes:
1. Ms. Harman offered an amendment in the nature of a
substitute, which requested that the President provide to the
House of Representatives ``all legal advisory opinions and
finished intelligence reports related to electronic
surveillance conducted in the United States without a warrant
by the National Security Agency on or after September 11,
2001''. It was not agreed to by a record vote of 8 ayes to 10
noes:
Voting aye: Ms. Harman, Mr. Reyes, Mr. Boswell, Mr.
Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, Mr.
Tierney.
Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr.
Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr.
McHugh, Mr. Tiahrt, Mr. Rogers, Mr. Renzi.
2. Mr. Hoekstra offered a motion to report H. Res. 641
adversely to the House, which was agreed to by voice vote.
SECTION-BY-SECTION ANALYSIS
The resolution requests the President to transmit to the
House of Representatives not later than 14 days after its
enactment all documents in his possession relating to
``electronic surveillance without search warrants by the
National Security Agency within the United States since
September 11, 2001.'' The resolution would apply (but is not
limited) to ``telephone and electronic mail records, logs,
calendars, minutes, memoranda, and advisory legal opinions on,
and identities of all individuals subject to'' such electronic
surveillance.
The Committee adopted no amendments.
OVERSIGHT FINDINGS AND RECOMMENDATIONS
In accordance with clause 3(c)(1) of rule XIII 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 House of Representatives
is inapplicable because this resolution does not provide new
budgetary authority or increased tax expenditures.
GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause (3)(c)(4) of rule XIII of the
House of Representatives, the Committee's performance goals and
objectives are reflected in the descriptive portions of this
report.
UNFUNDED MANDATE STATEMENT
H. Res. 641 provides no federal mandates.
ADDITIONAL VIEWS
H. Res. 641, introduced by Representative Barbara Lee of
California, would have required the Administration to provide
Congress with documents relating to warrantless electronic
surveillance of U.S. persons by the National Security Agency
since September 11, 2001. In addition to seeking documents, the
Resolution called for ``identities of all individuals'' subject
to the surveillance.
With the consent of Representative Lee, Ranking Member
Harman offered an amendment in the nature of a substitute to
limit the request to ``legal advisory opinions and finished
intelligence products.''
We are disappointed that Committee Republicans voted to
reject the Harman Substitute to the Lee Resolution. The Harman
Substitute would have facilitated greater oversight over the
President's NSA Program. As we have repeatedly said, treatment
should follow diagnosis. Before considering changes to the FISA
process, the Committee must understand whether the current FISA
process is inadequate. To date, the Committee has received no
evidence that FISA is inadequate.
Contrary to the arguments set forth in this Report, the
Harman Substitute to the Lee Resolution would have imposed very
minimal burdens on the Administration and would not have risked
exposure of any sensitive intelligence sources and methods.
Resolutions of Inquiry have been used numerous times to obtain
information regarding national security activities of the
United States Government, and there is precedent for HPSCI
retaining control over all classified records turned over to
Congress under Resolutions of Inquiry. (See House Resolutions
of Inquiry, CRS Study, May 12, 2003, p. 25).
At the mark-up, Chairman Hoekstra stated his intention to
request ``legal advisory opinions and finished intelligence
products'' from the Administration in a letter-request. If the
Administration does not comply with the Committee's request for
these documents, we strongly urge the Chairman to use the
Committee's subpoena power to compel their production.
Jane Harman, Ranking Democrat.
Alcee L. Hastings.
Silvestre Reyes.
Leonard L. Boswell.
Bud Cramer.
Anna G. Eshoo.
Rush Holt.
C.A. Dutch Ruppersberger.
John F. Tierney.