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