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106 th Congress
Rept. 106-130

1st Session
Part 1


May 7, 1999.--Ordered to be printed


                     ADDITIONAL VIEWS OF CHAIRMAN PORTER J. GOSS               

      Recently, and perhaps for the first time in the committee's history, 
   an Intelligence Community element of the United States Government       
   asserted a claim of attorney-client privilege as a basis for withholding
   documents from the committee's review. Similarly, various agencies      
   within the Intelligence Community have asserted, with disturbing        
   frequency, a ``deliberative process'' or ``pre-decisional'' argument as 
   a basis for attempting to keep requested documents from the committee's 
   scrutiny. These claims are unpersuasive and dubious.                    
      As part of its regular oversight responsibilities and preparatory to 
   the committee's legislative action on this bill, the committee was      
   questioning the National Security Agency's (NSA) application of current 
   operational guidelines in light of the enormous technological advances  
   that have been made in the past several years. The committee was seeking
   to ensure that the NSA was carrying out its signals intelligence mission
   in consonance with the law, relevant executive orders, guidelines, and  
   policy directives. At bottom, the committee sought to assure itself that
   the NSA General Counsel's Office was interpreting NSA's legal           
   authorities correctly and that NSA was not being arbitrary and          
   capricious in its execution of its mission.\1\                          

   \1\In the 1970s it was learned that the NSA, as well as other elements  
   of the United States intelligence community, engaged in serious abuses  
   of the privacy interests of U.S. persons. The congressional hearings on 
   these and other matters led directly to the establishment of the Senate 
   Select committee on Intelligence; see S. Res. 400, 94th Congress; and   
   the House Permanent Select Committee on Intelligence (HPSCI); see H.    
   Res. 658, 95th Congress. Additionally, as a result of those inquiries,  
   executive orders were issued and guidelines and policy statements were  
   promulgated defining the mission of the NSA and its legal obligations   
   and responsibilities pursuant to the Constitution and other laws of the 
   United States. See Legislative Oversight of Intelligence Activities: The
   U.S. Experience, Senate Select Committee on Intelligence , 103rd Cong., 
   2d Sess., at 2 6 (Comm. Print)(October 1994).        

      If the NSA General Counsel provided too narrow an interpretation of  
   the agency's authorities, it could hamper the collection of significant 
   national security and intelligence information. If, on the other hand,  
   in its effort to provide timely intelligence to the nation's policy     
   makers, the NSA General Counsel construed the Agency's authorities too  
   permissively, then the privacy interests of the citizens of the United  
   States could be at risk. To that end, the committee asked the NSA       
   General Counsel to provide the committee with legal memoranda, opinions 
   rendered, and other documents in the General Counsel's Office that      
   established that the advice it was providing to the NSA's technicians,  
   operators, and management was effective in helping the NSA achieve its  
   mission goals and objectives.                                           
      The committee's oral request for some of these documents was met by  
   the NSA General Counsel's claim of a ``government attorney-client       
   privilege.'' The claim was made on behalf of the Director of the NSA,   
   and the NSA, corporately. Shortly thereafter, the committee was again   
   advised by a representative of the NSA--at a budget hearing concerning  
   the NSA's fiscal year 2000 budget request--that the agency was working  
   on the document request, but that some documents would not be made      
   available because of the operation of the attorney-client privilege.    
      During additional conversations with employees of the NSA General    
   Counsel's Office, the Committee reminded the NSA lawyers of the agency's
   statutory obligations under section 502 of the National Security Act of 
   1947, as amended. That statute provides, in pertinent part, that the    
   heads of all Intelligence Community elements are obligated to furnish   
   ``any information or material concerning intelligence activities * * *  
   which is requested by either of the intelligence committees in order to 
   carry out its authorization responsibilities.'' 50 USC 413a(2). These   
   admonitions to the NSA about its responsibilities under the law were met
   by the argument that ``common law privileges,'' i.e., the               
   attorney-client privilege, survive even mandatory and unambiguous       
   statutory language in the absence of express language to the contrary.  
      The NSA General Counsel's Office contended, therefore, that its legal
   opinions, decisional memoranda, and policy guidance, all of which govern
   the operations and mechanisms of that federal agency, are free from     
   scrutiny by Congress. This would result in the envelopment of the       
   executive in a cloak of secrecy that would insulate the executive branch
   from effective oversight. It would also undermine the intent of the 94th
   and 95th Congresses to establish stringent congressional oversight of   
   the Intelligence Community. This outcome would seriously hobble the     
   legislative oversight process contemplated by the Constitution.         
      Congress has broad constitutional investigative powers. The          
   Constitution provides that ``Each House may determine the Rules of its  
   Proceedings.'' U.S. Const., art. I, 5, cl.2. Each chamber delegates the 
   authority to rule on objections to the production of documents, such as 
   claims of attorney-client privilege, to its various committees. The     
   rules of judicial procedure are not applicable to congressional         
   inquiries. United States v. Fort , 443 F.2d 670, 679 80 (D.C. Cir.      
   1970). There is no law that forbids a congressional committee from      
   exercising its discretion to reject claims of attorney-client privilege.
   Long standing precedents grant legislative bodies prerogatives and a    
   level of discretion on such matters not commonly found in adjudicatory  
      At common law, for instance, English courts were bound by an         
   assertion of attorney-client privilege; Parliament was not. See         
   Proceedings Against Ralph Bernstein and Joseph Bernstein (``Contempt    
   Report''), H.R. Rep. No. 462, 99th Cong., 2d Sess. at 12 13             
   (1986)(contempt proceedings against Ferdinand Marcos' lawyers for       
   refusal to disclose to House subcommittee any legal communications had  
   with their client). American commentators have long accepted the English
   common law custom as the practice established and followed in the       
   Congress and other legislative bodies of the United States. See L.      
   Cushing, Elements of the Law and Practice of the United States of       
   America, 390 (1856 ed., reprinted 1971)(''A witness cannot excuse       
   himself from answering * * * because the matter was a privileged        
   communication to him, as where an attorney is called upon to disclose   
   the secrets of his client * * *'').                                     
      In fact, Congress has, from time to time, set aside assertions by    
   private lawyers and private witnesses that their legal communications   
   should be shielded from disclosure in a Congressional hearing based on  
   the attorney-client privilege. See Contempt Report at 13;               
   Attorney-Client Privilege: Memoranda Opinions of American Law Division, 
   Library of Congress: Hearings before Subcomm. on Oversight and          
   Investigations of the House Comm. on                                    

                     Energy and Commerce (``Attorney-Client Privilege Memorandum  
          Opinions''), 98th Cong., 1st Sess. (Committee Print)(1983); Health Care 
          Fraud/Medicare Secondary Payer Program: Hearing Before the Permanent    
          Subcomm. on Investigations of the Senate Comm. On Governmental Affairs  
          (``Health Care Fraud Hearings''), 101st Cong., 2d Sess., at 1 11 (1990),
          aff'd sub nom., In the Matter of Provident Life and Accident Insurance  
          Co., CIV 1 90 219 (E.D. Tenn. June 13, 1990); Attorney-Client Privilege 
          and the Right of Congressional Access to Documents for Oversight        
          Purposes in the Case of the Supervision of the Telephone Loan Program by
          the U.S. Department of Agriculture: Subcomm. on Conservation, Credit,   
          and Rural Development of the House Committee on Agriculture             
          (``Congressional Access Report''), 102d Cong., 1st Sess., (Committee    
      Furthermore, there is no clear principle in our jurisprudence that a 
   ``government attorney-client privilege'' has as broad a scope as its    
   non-governmental counterpart. In fact, the opinion rendered by the U.S. 
   Court of Appeals for the 8th Circuit established the converse principle.
   See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997),
   cert. denied sub nom. Office of the President v. Office of the          
   Independent Counsel, 117 S. Ct. 2482 (1997). See also In re Bruce R.    
   Lindsey (Grand Jury Testimony), 148 F.3d 1100 (D.C. Cir. 1998).         
   Moreover, memoranda and other documents that form the basis of working  
   law within an agency must be made available to Congress when requested. 
   See Afshar v. Department of State, 702 F.2d 1125, 1139, 1141 (D.C. Cir. 
   1983); Schlefer v. United States, 702 F.2d 277 (D.C. Cir. 1983); Briston
   v. Department of State, 636 F.2d 600, 605 (D.C. Cir. 1980);             
   Bristol-Myers Co. v. Federal Trade Commission; 598 F.2d 18, 24 (D.C.    
   Cir. 1978); Jordan v. Department of Justice, 591 F.2d 753, 774 (D.C.    
   Cir. 1978) (en banc).                                                   
      The documents for which the claim was asserted are presumably key    
   interpretive memoranda and opinions utilized by agency officers to carry
   out their governmental duties in conformity with the law. The           
   committee's constitutional and statutory authority to conduct oversight 
   of the Intelligence Community provides a compelling rationale for the   
   rejection of any claim that the government attorney-client privilege    
   protects any documents within the possession of an intelligence         
   community entity from disclosure to this committee. See U.S. Const., art
   I, 5, cl. 2; 50 U.S.C. 413a(2). The fact that the privilege was asserted
   by government lawyers, on behalf of other government officials, vitiates
   the availability of the asserted privilege.                             
      The efforts of NSA, described above, and any other similar effort by 
   Intelligence Community elements, to shield its own interpretations of   
   their agency's legal obligations and decisional memoranda from          
   congressional review must be rejected. Former Attorney General Cushing  
   once aptly described the realities of our system of governance. He      

                     [T]he relation of the departments to Congress is   
          one of the great elements of responsibility and legality in   
          their own action. They are created by law; most of their      
          duties are prescribed by law; Congress may at all times call  
          on them for information or explanations in matters of official
          duty; and it may, if it sees fit, interpose by legislation    
          concerning them, when required by the interests of the        
          Government.--``Office and Duties of Attorney General,'' 6     
          Opinion of the Attorney General 326, 334 (1854)(emphasis      

      This is a concise statement of our governmental scheme. The executive
   interprets and carries out the laws enacted by Congress. Therefore, to  
   the extent that an agency's documents serve as interpretive guidance, or
   as research tools for agency personnel, such documents constitute a body
   of working law within that agency. See Taxation With Representation v.  
   Internal Revenue Service, 646 F.2d 666, 682 (D.C. Cir. 1981). As such,  
   they cannot be withheld from the committee. See Afshar, 702 F.2d at     
   1139, 1141; Schlefer, 702 F.2d 277; Briston, 636 F.2d at 605;           
   Bristol-Myers Co., 598 F.2d at 24; Jordan, 591 F.2d at 774. The         
   committee ought, then, have access to these legal interpretations to    
   ensure proper execution of the laws by the agencies within their        
   legislative jurisdiction.                                               
      Additionally, hornbook law makes it plain that attorney-client       
   privilege cannot work to preclude examination of legal opinions or files
   within a corporate entity by its overseers. In the context of private   
   corporations, the board of directors is entitled to review all legal    
   notes, files, opinions, and memoranda produced as a result of legal     
   discussions between the chief executive officers and the corporation's  
   lawyers. In our system of government, by analogy, the legislative branch
   can be viewed as a board of directors with oversight authority of the   
   executive, which is responsible for its actions to the board. Despite   
   the separation of executive and legislative powers under the            
   Constitution, the two political branches are without doubt integral     
   parts of the same corporate entity: the federal government of the United
   States of America. See The Attorney General's Refusal To Provide        
   Congressional Access to ``Privileged'' Inslaw Documents: Hearing Before 
   the Subcomm. on Economic and Commercial Law of the House Comm. on the   
   Judiciary (``Inslaw Hearings''), 101st Cong. 2d Sess., at 103 04        
   (1990)(citing written testimony of General Counsel to the Clerk of the  
      The lawyers within the Office of the NSA General Counsel, indeed, the
   General Counsel himself, are paid their wages and expenses from the     
   public fisc. These funds are collected from the people of the United    
   States and authorized and appropriated by the Congress for the conduct  
   of government business in the public interest. It is elementary,        
   therefore, that legal advice and counsel provided by federal government 
   attorneys to federal government officers are subject to oversight and   
   scrutiny by the Congress. See Contempt Report, supra; Attorney-Client   
   Privilege: Memorandum Opinion, supra; Health Care Fraud Hearings, supra;
   Inslaw Hearings, supra; Congressional Access Report, supra.             
      Underlying this legal foundation is sound public policy, especially  
   in the context of Intelligence Community oversight. Congress clearly has
   manifested its intent to provide for open government. When concerning   
   itself with matters of national security and the protection of sources  
   and methods, however, Congress has acknowledged a need for secrecy and  
   the protection of sensitive information from public disclosure in order 
   to keep the information from our nation's enemies. Accordingly, the     
   intelligence committees have been given a statutory obligation and a    
   fiduciary duty to conduct oversight of the United States Government     
   elements that must necessarily and understandably carry out their       
   official duties in secret. This acknowledgment compels the committee to 
   exercise its discretion and reject completely the notion that a         

                    government attorney-client privilege can allow an Intelligence
          Community element to withhold information requested by the committee.   
      Similarly, any effort by Intelligence Community elements to advance a
   so-called ``pre-decisional'' or ``deliberative process'' privilege as a 
   basis for withholding requested information from congressional oversight
   ought to be rejected. Any assertion that a document will not be provided
   to the committee because it may be an ``internal'' agency document, or  
   otherwise ``uncoordinated'' is unacceptable. When an agency offers these
   explanations for its refusal to produce documents requested by Congress,
   it is improperly putting Congress in the category of a ``citizen        
   requester'' under the Freedom of Information Act (FOIA) and trying to   
   extend Exemption 5 of that Act to Congress. See 5 U.S.C. 552.           
      Exemption 5 of FOIA permits withholding of information from          
   requesters on the basis that the documents do not indicate a final      
   disposition. Exemption 5 allows withholding from requesters if documents
   are preliminarily and deliberative in nature. It also permits           
   withholding from requests under the Act if such documents would disclose
   privileged communications, such as between an attorney and his client.  
   In the FOIA, itself, however, Congress specifically provided that       
   Exemption 5 ``is not authority to withhold information from Congress.'' 
   5 U.S.C. 552(d). The case of Murphy v. Department of the Army, 612 F.2d 
   1151 (D.C. Cir. 1979), is illustrative of this point.                   
      In Murphy , the court permitted the government department to withhold
   a memorandum produced by the department's General Counsel's Office from 
   a citizen FOIA requester as pre-decisional and also likely covered by   
   the attorney-client privilege. Despite the fact that the memorandum at  
   issue in the Murphy case was exempt under the FOIA, the document was    
   made available to Congressman Carl D. Perkins. The plaintiff cited the  
   disclosure of the document to the Congressman as proof that the         
   exemption should not apply in his case. The court rejected this         
   argument, however, noting that the FOIA exemptions provided no basis for
   withholding information from Congress because of:                       

                     * * * the obvious purpose of the Congress to carve 
          out for itself a special right of access to privileged        
          information not shared by others * * *. Congress, whether as a
          body, through committees, or otherwise, must have the widest  
          possible access to executive branch information, if it is to  
          perform its manifold responsibilities effectively. If one     
          consequence of the facilitation of such access is that some   
          information will be disclosed to congressional authorities but
          not to private persons, that is but an incidental consequence 
          of the need for informed and effective lawmakers.-- Id . at   
          1155 56, 1158.                                                

      Congressional authority to investigate is concomitant with its       
   authority to legislate. It is necessary, then, to have unfettered access
   to executive branch information in order to be able to make sound       
   legislative judgments. It is exactly the ``uncoordinated,''             
   ``deliberative,'' ``internal,'' and ``pre-decisional'' documents of an  
   agency that Congress needs in most cases. These documents can provide   
   unique insights into the full spectrum of thought on any given issue    
   pending before an agency and Congress. Without access to such documents,
   Congress would be left only with the ``spin'' the executive branch      
   agency opted to provide to the legislative branch. This result, without 
   question, would only serve to undermine the legitimate authority of     
   Congress to conduct independent oversight. Therefore, I would expect the
   committee to reject all efforts to extend the FOIA Exemption 5 to       
   congressional requests for information.                                 

         Porter J. Goss.                                                        

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