H. Rept. 109-385 - 109th Congress (2005-2006)
March 07, 2006, As Reported by the Intelligence (Permanent) Committee

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House Report 109-385 - 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




[House Report 109-385]
[From the U.S. Government Printing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-385

======================================================================

 
  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

                                _______
                                

  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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \4\ See generally Fisher, ``House Resolutions of Inquiry,'' 
Congressional Research Service Report for Congress RL31909 (May 12, 
2003).
---------------------------------------------------------------------------
    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.