[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]








                         LEGAL PERSPECTIVES ON
                       CONGRESSIONAL NOTIFICATION

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

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                   INTELLIGENCE COMMUNITY MANAGEMENT

                                 of the

                       PERMANENT SELECT COMMITTEE
                            ON INTELLIGENCE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

            Hearing held in Washington, DC, October 22, 2009







                  Printed for the use of the Committee


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            LEGAL PERSPECTIVES ON CONGRESSIONAL NOTIFICATION

                              ----------                              


                       THURSDAY, OCTOBER 22, 2009

                  House of Representatives,
        Permanent Select Committee on Intelligence,
         Subcommittee on Intelligence Community Management,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:06 a.m., in 
Room HVC-340, Capitol Visitor Center, the Hon. Anna G. Eshoo 
(chairwoman of the subcommittee) presiding.
    Present: Representatives Eshoo, Hastings, Holt, 
Ruppersberger, Schakowsky, Murphy, Reyes (ex officio), 
Thornberry, Rogers, Myrick, King, Hoekstra (ex officio).
    Chairwoman Eshoo. Good morning, everyone. I call this 
hearing to order. The Ranking Member has joined us. Members 
will be coming in. I want to welcome everyone that is here 
today; most especially, our panel of witnesses who we are very 
grateful to for sharing their views with us.
    Today's hearing very importantly examines the provisions in 
the National Security Act of 1947 that established how the 
President keeps Congress informed of intelligence activities. 
It is part of the full committee's investigation into whether 
the Intelligence Community has met its obligation to keep 
Congress ``fully and currently''--and that term comes from the 
National Security Act--informed of intelligence activities.
    The obligation is a solemn one. Intelligence activities 
necessarily take place in secret, the details known only to 
those who execute and plan them. They are not subject to the 
scrutiny of public debate, competing interest groups, or 
taxpayers. The only people outside the executive branch who may 
examine these activities are members of the congressional 
Intelligence Committees. We act as the stewards of the public 
trust, a check on a system that sometimes acts without the 
benefit of independent perspectives.
    Congress cannot fulfill its constitutional role without 
access to information. Congress has a duty to learn, and the 
executive branch has a duty to share, the information that is 
necessary for Congress to authorize, to appropriate funds, and 
oversee the activities of the Federal Government, including 
intelligence activities.
    The manner in which the branches have shared information 
has evolved in the decades since World War II. From 1947 until 
the mid-1970s, the Intelligence Community briefed Congress 
primarily through informal meetings with a handful of senior 
committee chairmen. The Church and Pike Commissions helped 
usher in reforms that led to the creation of the Intelligence 
Committees and required that the President report to Congress 
when initiating a covert action.
    The Iran-Contra affair and revelations about other U.S. 
government activities in Latin America spurred Congress to 
create the current standard in 1991; that the President must 
keep Congress ``fully and currently informed'' of all 
``significant'' and ``significant anticipated'' intelligence 
activities.
    But even the statutory regime is flawed. Members of this 
committee have been repeatedly frustrated by the lack of 
prompt, thorough notification of intelligence activities. 
Public revelations of intelligence activities after 2001 have 
also raised serious questions about the commitment of the 
executive branch to meeting not just the letter of the law, but 
its intent as well.
    Some have argued that there is no obligation to notify 
Congress if an activity is not ``operational,'' a term not 
found in the statute. There have been disputes about what 
``significant'' actually means in this context. We need to 
understand why there are no penalties in the National Security 
Act itself and what Congress' remedies are if the executive 
branch does not comply with its obligation to keep Congress 
informed.
    I hope each one of our witnesses today can help us answer 
these questions and gain a deeper understanding of Congress' 
oversight role, the history of Congress and the Intelligence 
agencies, and the meaning of the statute itself.
    Before I welcome our panelists and introduce them 
individually, I would like to recognize what I think is really 
a wonderful and outstanding Ranking Member of this 
subcommittee, Ms. Myrick, for any statement she may wish to 
make.
    Mrs. Myrick. Thank you, Madam Chairwoman. Welcome to our 
witnesses, all. Today, we are talking about congressional 
notification. There is one thing that is of great concern to me 
that I wanted to mention. This is the ninth-month anniversary 
of President Obama's decision to close the Guantanamo Bay 
detention facility. And so I can't think of a better time to 
discuss the lack of notification to Congress about the plans 
for this facility and the terrorist prisoners there.
    The decision was rushed and the President didn't have a 
plan when he started out on this. And in the time since he has 
made this choice, the administration has refused to brief this 
committee on how it will implement the decision or to discuss 
the threats posed by moving detainees to the United States.
    The public hearing is very timely. It gives Congress a rare 
opportunity to discuss before the American people both the 
threat posed by the closure of GTMO and the refusal of the 
administration to keep Congress fully and currently informed on 
this national security issue, which I happen to believe is a 
huge one.
    I ask all of our witnesses today to comment on why you 
think it is important that a national security policy that 
could mean moving terrorist suspects into American communities 
must be conducted with full transparency, full congressional 
notification, and with tough congressional oversight.
    There were reports that could include moving Guantanamo 
detainees to California, North Carolina--my State--Kansas, or 
Michigan. There are other reports that some of these places may 
or may not still be under consideration, but the reality is, 
unfortunately, no one knows which of these reports is true 
because the administration has not notified Congress of its 
plans for Guantanamo Bay, and it has not offered that 
transparency to the American people.
    So I welcome this hearing this morning and I believe it is 
a chance to move beyond discussing just the issue of 
notification as an academic one and to examine it as an issue 
that has real-life consequences.
    With that, I again welcome witnesses and look forward to 
your testimony. And, thank you, Madam Chairwoman.
    Chairwoman Eshoo. Thank you. I would like to remind my 
colleagues that the subject of today's hearing is the 
``Congressional Notification of Intelligence Activities.'' We 
have asked our witnesses to testify to the history and 
relevance of provisions in the National Security Act of 1947 
that require congressional notification generally, as well as 
those that address covert actions and regular collection 
activities.
    I think the members of this committee know very well that 
the detention facility at Guantanamo Bay is not under the 
jurisdiction of the Intelligence Committee and is really 
outside the scope of this hearing. Obviously, members can 
choose to say whatever they want to say, but I think, with all 
due respect to not only the construct of this hearing and its 
very purpose and the witnesses that we have called who are 
experts in the area of not only the history and the relevance 
of the provisions in the National Security Act and 
congressional notification, that that is what this hearing was 
set up to examine, and that is what we will do.
    I now would like to recognize the distinguished Chairman of 
the full Intelligence Committee of the House, Mr. Reyes of 
Texas.
    Mr. Chairman.
    Mr. Reyes. Thank you for convening this very important 
hearing. This is one of several hearings on congressional 
notification that the Intelligence Committee will conduct, both 
open and closed. This is an open hearing today. These hearings 
are part of a full committee investigation into the symptoms 
that make up the broader issue of the timely and accurate 
notification to Congress of intelligence activities.
    I have asked the subcommittee to look into the state of the 
law on notifications. I thank you, Madam Chairwoman, for 
working hard in looking into all these different aspects.
    Obviously, this is a serious issue that we want to look at 
and we want to get as many different perspectives as possible 
and feasible. In other aspects of the committee's 
investigation, we will be looking into specific instances in 
which the community may have fallen short of its obligations.
    Today, though, Chairwoman Eshoo has assembled for us two 
distinguished and expert witnesses, to which I add my welcome 
and thank you for agreeing to be here this morning. Just 
looking and reading your bios, I really appreciate the 
experience that you bring to this hearing today.
    I also welcome you, sir. Thank you for agreeing to be here.
    I guess you can say that from your perspective and your 
experience, you had ringside seats to the debates that actually 
led to the key provisions of the law that we will be discussing 
both today and in this process, trying to fix something that 
hasn't worked, at least to the satisfaction of keeping Congress 
fully and functionally informed.
    As I think all of us know and appreciate, this is a serious 
subject, one that goes to the heart of what is this committee's 
obligation to conduct a thorough oversight of intelligence 
activities of the United States.
    I appreciate that we work in a political body and that 
sometimes more provincial issues can take center stage. There 
are things we can control and things that we can't. I hope that 
we remain focused today on the larger question of what the 
requirements are for notification in the realm of intelligence 
activities. I know we will have opportunities later to discuss 
specific instances as they may apply broadly across our 
country, but today is not the day for that.
    I think it is imperative that we get different perspectives 
and we have as complete an understanding as possible so the 
committee can move forward and do its very serious work.
    So, again, welcome to all of you. Thank you for being here.
    Madam Chairwoman, thank you for convening this very 
important hearing. I regret that I won't be able to stay 
because I am in another hearing myself, but I look forward to 
your recommendations.
    Chairwoman Eshoo. Thank you, Mr. Chairman. This 
subcommittee is really devoted to producing a sound report to 
the full committee, the completion of our work that you charged 
us with. So thank you for being here this morning.
    With that, I would like to recognize the distinguished 
Ranking Member of the full committee, Mr. Hoekstra.
    Mr. Hoekstra. Thank you. I appreciate the time. And I 
appreciate the direction that the Chairwoman has set, that this 
is about intelligence and it is about the National Security 
Act. It is exactly for that specific reason that we do want to 
talk about GTMO and the Guantanamo facility, because we know 
that where the prisoners and the detainees are housed at GTMO, 
whether they are housed in GTMO or somewhere in the United 
States, will affect our ability to gather intelligence from 
these individuals.
    We, I think, all recognize that many of these individuals 
that are in GTMO have been identified as high-value targets. 
And this is also the responsibility of the committee because we 
have received information through the committee and have been 
notified through the committee of significant information 
regarding these individuals, their detention, that may or may 
not impact where these individuals should be located, and 
information that should be available to the people in the State 
and the communities where these individuals may be moved to.
    We go back to January 22, as the Ranking Member indicated, 
the Obama administration decided to move these individuals or 
to close the GTMO facility. Since that time, there has been a 
total lack of transparency on its efforts to close the 
detention facility, although it will have a significant impact 
on intelligence. Despite signing that executive order for the 
facility to be closed in one year, the President has still 
failed to provide any plan on how this administration will do 
so.
    The Obama administration is scrambling to find a place to 
move Guantanamo detainees. It refuses to meet with this 
committee to discuss known security risks, legal issues 
associated with moving them to America and elsewhere around the 
world. The Obama administration is also refusing to provide any 
information to State and local officials on the security 
profiles we have built on the detainees or to talk about 
relevant security precautions that must be taken before 
relocating prisoners to my home State, Michigan, or anywhere 
else in the United States.
    It is clear that President Obama and Secretary Gates are 
trying to shut down congressional oversight. They are willing 
to disregard the requirements of the law to keep the 
congressional Intelligence Oversight Committees fully and 
currently informed about national security matters.
    The Obama administration officials clearly do not want to 
answer any tough questions about what so far has been one of 
the most disastrous policy decisions made by this President. 
Even though President Obama and his officials know full well 
there are extremely dangerous terrorist suspects in Guantanamo 
that cannot be safely transferred, they still plan to move 
them, including bringing some to the United States.
    The consequences of the President's decision and whether it 
is necessary or wise to close Guantanamo Bay are legitimate and 
timely topics that should be the subject of robust 
congressional oversight and debate.
    I am glad that Dave Munson is here. He is here as a 
representative from Standish, Michigan, because the Obama 
administration is thinking of relocating GTMO detainees to a 
soon-to-be-closed prison there. Mr. Munson organized a 
grassroots effort to oppose this move and has been asking tough 
questions of local, State, and Federal officials. Mr. Munson 
and I agree that although Michigan and Standish are facing 
tough economic times, our State does not need an al Qaeda 
stimulus.
    Worried residents of Michigan want to know more about plans 
to move GTMO detainees to our State. Residents of other States 
are also asking questions. I have asked questions and sent 
letters. I have asked the Obama administration for permission 
to provide information on the detainees to Michigan officials 
and to allow me to lead a delegation of State lawmakers for an 
oversight visit to the GTMO facility. All of our requests have 
been denied. Along with them, the American people, the people 
of my home State, and even Dave Munson, were denied much-needed 
transparency on this serious security issue.
    So often we talk about the lack of transparency and the 
requirements of the National Security Act as how they impact us 
here in Washington and the relationship between the executive 
branch and Congress. Today, we add another dimension to that 
discussion and to that debate: what happens when there is a 
lack of transparency, a lack of accountability, and a lack of 
following the law of keeping people and Congress and others 
fully informed on national security issues?
    Today we add the local dimension. A small community that is 
facing tough economic times, and what happens when they are 
promised things from Washington, DC--at least certain people 
may be--but the community, State legislators, and the 
congressional delegation is refused access to that information 
that should be fully shared and open as that discussion and 
those decisions are being made.
    I am glad that Dave is here today to provide that 
additional dimension to that debate. It clearly relates to 
intelligence and it clearly relates to local issues and it 
clearly relates to statutory requirements to keep us fully and 
currently informed.
    Thank you, Madam Chairwoman.
    Chairwoman Eshoo. The chairman of the full committee is 
recognized.
    Mr. Reyes. I just want to make sure that the record is 
clear that we have jurisdiction in this committee and rules in 
the House that we have to abide by. The issues that the Ranking 
Member just raised are the jurisdiction of the Armed Services 
Committee. There are a number of us that are on the 
Intelligence Committee--that are also members of both 
committees. But it is very important that we understand that 
those jurisdictions have to be respected.
    I know that he and I have worked hard to protect the 
jurisdiction of this committee. I know that Chairman Skelton 
and Ranking Member McKeon worked very hard to protect the 
jurisdiction of this committee, and we ought to respect that.
    Hearing the comments of the Ranking Member, this is 
something that individually we have to be responsible in how we 
approach the jurisdiction and the topics that this committee 
looks at. I could make the same kind of argument and bring 
somebody here from the border to address the violence that is 
currently going on in Mexico and somehow stretch that into the 
national security issue, but that is not what this is about.
    This shouldn't be about a personal issue that you want to 
look at. This is about the bigger issue of how do we move 
forward in making a case for and fixing a system that hasn't 
served us well in the Congress. And that is why you two 
gentlemen are so critical to this, because, as I said, you have 
held ringside seats when these issues were being discussed, 
when these issues were being formulated.
    I am anxious to hear your perspective so that we can get 
back to how we can work as a coequal branch of government with 
the executive branch so we can get our respective jobs done.
    I just wanted to make sure that the record was clear on 
that issue, and thank you for the time.
    Mr. Hoekstra. Mr. Chairman.
    Chairwoman Eshoo. Thank you. Mr. Hoekstra, do you want to 
yield?
    Go ahead.
    Mr. Hoekstra. Thank you. Mr. Munson here is going to 
provide us with a front-row seat as to what happens when the 
requirements are not met. This is very much an intelligence 
issue. Many of these people that are housed in GTMO are 
individuals that we continue to gather intelligence from. So it 
is the responsibility of this committee.
    We receive information on these detainees on a regular 
basis in our committee that we are briefed on. And to say that 
this is just solely the jurisdiction of the Armed Services 
Committee is totally inaccurate. We get information on a 
regular basis as to who these folks are, how they may or may 
not be assisting us in our ability to comprehend the plans, 
intentions, and capabilities of al Qaeda and radical jihadists, 
and recognizing that if we move these individuals to another 
location, our ability to gather that intelligence may be 
compromised or may be limited, but we do know it will be 
changed.
    It is very much an intelligence issue, and also an 
intelligence issue as to how this impacts a local community.
    Chairwoman Eshoo. I would like to start the hearing.
    Mr. Hoekstra. I am just asking for the same amount of time 
to respond to the Chairman's critique of the statement that I 
have. If you want to shut this down, we know you have the 
capability and authority to make that happen. I believe that 
would be a very unfortunate step to take.
    Chairwoman Eshoo. I am not going to take any unfortunate 
steps today, Mr. Hoekstra. This hearing is clearly to examine 
the National Security Act. All of the members know that. This 
was a charge of the Chairman of the full committee to the full 
committee of members and what each subcommittee would do 
relative to the overall investigation and examination.
    So I am very pleased that it is public. I think all the 
members of this subcommittee know what my preference is, and 
that is that we have as many public hearings so that the people 
of our country are well instructed. The statute does not 
address the right of locals to be informed about intelligence 
activities. It is certainly your prerogative to raise something 
that is in your State and a concern. We welcome the Minority 
witness from Standish, Michigan. We are very pleased to see 
you. But we are going to stick with the reason why we called 
this hearing today.
    As I said in the beginning of my remarks, when we talk 
about the obligation to keep Congress fully and currently 
informed of intelligence activities, that that is an obligation 
that is really a solemn one.
    So with that, I would like to once again welcome our 
panelists and I would like to introduce the Honorable L. Britt 
Snider, who is sitting in the middle of the table. That is in 
fine print there on the card. He served as the first statutory 
Inspector General of the Central Intelligence Agency from 1998 
to 2001. Prior to that, he served as the General Counsel to the 
Senate Select Committee on Intelligence. He is the author of 
``The agency and the Hill: CIA's Relationship to Congress, 1946 
to 2004.''
    If any member of the committee has not gotten that book, I 
would suggest that you do. Now it may not be the fastest moving 
page-turner, but it is so highly instructive and you will come 
away enriched, I believe, to learn the history, to understand 
the history that he has set forth so factually from after World 
War II up to the present moment. So thank you for your 
brilliant work. He is currently a visiting scholar for the 
CIA's Center for the Study of Intelligence.
    Seated next to him is Mr. Fritz A.O. Schwarz, Jr., who has 
served as the General Counsel to the Church Committee. He is 
the coauthor of ``Unchecked and Unbalanced: Presidential Power 
in a Time of Terror.'' He is currently the General Counsel to 
the Brennan Center for Justice at the NYU School of Law. He is 
also a senior partner at Cravath, Swain and Moore in New York. 
We welcome you and we thank you for your brilliant work. I am 
also reading your book. I would recommend it to all the members 
of this committee.
    Of course, we welcome Mr. David Munson, who is a private 
citizen from Standish, Michigan. Thank you for traveling to 
Washington, DC to be here with us.

STATEMENTS OF L. BRITT SNIDER, FORMER INSPECTOR GENERAL, CHURCH 
COMMITTEE; FRITZ A.O. SCHWARZ, JR. FORMER CHIEF COUNSEL, CHURCH 
  COMMITTEE; AND DAVID E. MUNSON, PRIVATE CITIZEN, STANDISH, 
                            MICHIGAN

    Chairwoman Eshoo. With that, we will begin with Mr. Snider. 
You are recognized and we look forward to your testimony.

                  STATEMENT OF L. BRITT SNIDER

    Mr. Snider. Thank you, Madam Chairwoman. I would correct 
one thing. I was actually the second statutory IG at the CIA. 
Fred Hitz was my predecessor.
    It is indeed a pleasure to be here with you today. I have 
been asked to provide a brief historical perspective on the 
congressional notification issue and limit my remarks to 10 
minutes, which I am going to try to do, but it will require me 
to skip over fairly large portions of my prepared statement, so 
please bear with me while I go through this.
    There was nothing that required intelligence agencies to 
keep Congress informed of their activities until the mid-1970s. 
Before that, what was shared with Congress was a matter of what 
a DCI believed Congress needed to know in terms of securing his 
appropriation each year, or what the DCI believed Congress 
needed to know in order to explain something that had found its 
way into the press.
    Having said this, I found no instance in my research where 
a DCI ever refused a request from a chairman of one of his 
subcommittees during this early period. And as you all will 
recall, at that point, the subcommittees of the Armed Services 
Committees and Appropriations Committee on each side did 
oversight of the CIA. In fact, the DCIs took great pains to 
court their overseers during this early period. But they didn't 
ask very much of the agency at that point. All of them, I 
think, wondered if they were being told the whole story.
    In fact, I came across instance after instance where they 
asked the DCI that question, whether they were being given the 
entire story. But they thought that the CIA was carrying out an 
important mission and they thought an overly inquisitive 
Congress could only detract from that mission. By the mid-1970s 
it had become painfully clear that the existing arrangements 
were inadequate.
    The CIA subcommittees simply had not known of the alleged 
improprieties and illegalities that began coming to light 
during this period in wave after wave of press disclosures. I 
am referring to collecting political activities of U.S. 
citizens, interfering in the elections of democratic countries, 
building an infrastructure at the CIA to carry out political 
assassinations, conducting drug experiments on unwitting 
subjects within the United States, these kinds of things. The 
CIA subcommittees were not aware of any of these activities and 
really didn't know enough to ask about them.
    The congressional committees that were set up to 
investigate these activities, the Church Committee in the 
Senate and the Pike Committee here in the House, both 
recommended at the end of their work that permanent committees 
be established, dedicated to the oversight of the CIA and the 
rest of the intelligence Community. Of course, the Senate acted 
first, in May of 1976, to create the SSCI. The House took a bit 
longer, creating HPSCI in August of 1977.
    I think if there were one thing Congress intended when they 
created these committees, it was to improve the awareness of 
Congress as an institution with respect to U.S. intelligence 
activities. In fact, one need to only look at the language of 
S. Res. 400 that created the Senate Intelligence Committee, 
which included among other things, ``sense of the Senate'' 
language that the heads of all intelligence agencies should 
keep the new committee fully and currently informed of their 
activities, including any significant anticipated activities--
words that have become very familiar to all of us.
    The resolution went on to say it was the sense of the 
Senate that intelligence agencies should provide any 
documentation that was requested by the committees. Also, it 
went on to say that the agencies should report any violation of 
law or executive branch regulation that they became aware of. 
These words were not legally binding upon the agencies, but 
they were the first expressions by either House of Congress in 
terms of what they expected intelligence agencies to do vis-a-
vis the oversight committees they were creating.
    Two years later, the Carter administration issued an 
executive order on intelligence which did make these 
obligations in the Senate resolution binding upon the 
intelligence agencies. Two years after that, Congress passed 
the Intelligence Oversight Act of 1980, incorporating them into 
statutory law that would now be binding on future 
administrations, not just the Carter administration.
    The 1980 act also did several other things. It pared the 
number of committees to receive notice of covert actions under 
the old Hughes-Ryan amendment from eight committees to two--the 
two Intelligence Committees. It also gave the President the 
option of providing notice, where particularly sensitive 
intelligence activities were concerned, to a group of eight 
congressional leaders, the so-called Gang of Eight, rather than 
the committees as a whole. This option originally was to be 
available whether the intelligence activity involved sensitive 
collection or covert action.
    In addition, where covert actions were concerned, the new 
law specifically recognized that there may be occasions where 
the President cannot provide prior notice either to the Gang of 
Eight or to the full committees, and that when that occurred, 
notice would be provided the committees ``in a timely 
fashion,'' together with an explanation of why prior notice 
could not have been given.
    The 1980 act was amended in 1991, both to take into account 
what had happened during the Iran-Contra scandal during the 
late 1980s, as well as to take into account the practice under 
the statute to that point.
    The basic obligations of intelligence agencies vis-a-vis 
the committees remained the same, but several important 
adjustments were made in the notification process. One of these 
was to limit the Gang of Eight option to covert actions only, 
rather than making it available to notify the committees of any 
intelligence activity that was particularly sensitive.
    While the timely fashion formulation was retained, where 
prior notice of the covert action had not been given, the 
committee said in report language they expected the notice to 
be provided, without exception, within a few days of the 
President's approving a covert action finding.
    There have been no major changes to the notification 
requirements since 1991, although, as I point out in my 
prepared statement, there have been some changes in the 
practice under the statute.
    Allow me to close now with just two observations and 
something of an eye to the future. Ever since the obligation to 
keep the oversight committees fully and currently informed 
first appeared in the law, there has been, as a practical 
matter, a degree of latitude in terms of how this should be 
done. From the very beginning, in fact, the heads of 
intelligence agencies would brief particularly sensitive 
intelligence activities, first with the leaders of the two 
oversight committees and perhaps their key staff, before 
providing notice to the committees as a whole. The purpose of 
these consultations would be to discuss how the sensitive 
matter at issue would be handled within the committee; when 
would the full committee be briefed, whether there were certain 
details that could be left out that were not crucial to the 
committee's ability to weigh the operation in question, whether 
documentary materials would be retained by the committee or 
kept within the executive branch, how many staff would be 
cleared, and so forth. The kind of things you might do to limit 
the security risk while still accommodating the needs of the 
committees.
    There is nothing in the law that precludes this kind of 
consultation and, in fact, over the years I think it has been 
very useful to have had these discussions. I don't see them as 
a substitute for notice to the full committees, but rather as a 
way of getting there in a way that satisfies, to the extent we 
can, the interest of both branches.
    The last observation I would make deals with the notice to 
the Gang of Eight and, from the standpoint of the Congress, it 
has never worked very well. The problem in my view has not been 
with notice to the Gang of Eight per se, but rather with how it 
has been implemented. It is weighed too heavily, I think, in 
favor of the executive branch. It does not sufficiently take 
into account congressional needs.
    I don't think the Congress, when Congress provided this 
option, intended it to be that way, but I think that is the way 
it has evolved and been implemented. The statute itself simply 
says that in especially sensitive cases the President has the 
option of providing notice of covert actions to a smaller 
group. It doesn't say what this smaller group may do with the 
information. But the executive branch has told them. In fact, 
it has told them they can't do anything with the information. 
And over the years, the Gang of Eight has acquiesced in what 
the executive branch has told them.
    I think, personally, this has been a mistake, because when 
it has happened, it has effectively marginalized congressional 
oversight. It has meant that eight congressional leaders can 
only react to what they hear, without the advice of their 
professional staffs, without the advice of knowledgeable 
colleagues. And I think this is difficult for them to do, 
coming at it cold, having it presented to them in the most 
benign way possible.
    If they decide they have a problem, they have to be able to 
articulate on the spot what that problem is in a convincing 
way. If they later decide they have a concern, then they have 
to take it upon themselves to go back and raise it with the 
administration. Again, they are going to have to rely on their 
own memory, because they weren't allowed to take notes at the 
briefings and there is no record of what they were told that 
they have access to.
    And so just very few, I think, congressional leaders are 
going to be willing or able to do this. But rest assured, if 
whatever program they have been briefed about subsequently goes 
south, their buy-in will be touted by the administration very 
prominently.
    I just simply don't think this is fair to the members 
involved. If the Gang of Eight option is to be kept, and I 
think an argument can be made that it should, then I think 
something needs to be done to restore the balance; something 
that better recognizes and accommodates the needs of the eight 
congressional leaders.
    I personally think it can be done by each committee 
adopting procedures without amending the statute itself. But it 
would be desirable, I think, that these procedures be developed 
with the administration's participation and with their 
concurrence if this is going to work. I think this is possible 
if both branches operate in good faith.
    Madam Chairwoman, I continue to hope that it will happen. 
Thank you.
    Chairwoman Eshoo. Thank you, Mr. Snider, for your excellent 
testimony and, really, for all the contributions you have made 
to the well-being of our country. Again, we are honored to have 
you here.
    [The statement of Mr. Snider follows:]





    
    Chairwoman Eshoo. I now would like to recognize Mr. 
Schwarz.

            STATEMENT OF FREDERICK A.O. SCHWARZ, JR.

    Mr. Schwarz. Thank you, Madam Chair. Before the Church 
Committee and the Pike Committee, you could characterize 
Congress' role in overseeing the Intelligence Community as 
being ``don't ask, don't tell.'' That was harmful to the 
Intelligence Community and to the United States.
    The wonderful, longtime general counsel of the CIA, 
Lawrence Houston, said that the lack of congressional oversight 
caused problems for the CIA because ``We became a little cocky 
about what we could do.'' The same thing could be said in 
spades for the FBI and could be said for the NSA.
    Now the Church Committee laid out a whole lot of 
wrongdoing. Britt mentioned some of it. There is a chapter in 
my book that does more. I know at least one member here has a 
lot of the reports in his office. But I am not going to 
summarize all that wrongdoing. But I want to give a conclusion, 
which is that all of that improper, overreaching conduct 
harmful to the United States was directly enabled by lack of 
congressional notification and oversight. I think that fact is 
important in your thinking about today what is important for 
you to do.
    Now on the technicalities of the current National Security 
Act, it seems to me that CIA Director Leon Panetta was correct 
in saying that the Gang of Eight notification should be limited 
to covert action. It should not cover, it should not have 
covered items like torture or wireless wiretapping which were, 
under the recent administration, used the Gang of Eight device 
and prevented, I think to the great harm of this country, 
adequate oversight of those actions, which have hurt us.
    Now I also think that, assuming the Gang of Eight is kept, 
you can't have a process in which staff people are not allowed 
to participate. You shouldn't have a process in which each 
member is called in on their own instead of the group having a 
chance to deliberate. Also, I think the law should be clarified 
so that it is made clear that with respect to covert action 
itself, the Gang of Eight, if it is kept, should be limited to 
emergency, immediate covert actions, and should not cover long-
term ongoing covert actions which, because they are long-term 
and ongoing, deserve the attention of this full committee, the 
full committee.
    And to make a point about the committees in both the Senate 
and the House, they have had an exemplary record with respect 
to handling sensitive matters well. In fact, of course, it is 
true that there are far more breaches of security that come 
from the executive branch than come from the Congress. I don't 
think there have been any breaches of security that have come 
from the Congress after those committees were created. That was 
the hope. And you have all carried that out well.
    And so the idea that it is dangerous to give information to 
the full committee is just not correct. And it is dangerous not 
to give the information to the full committee because important 
matters affecting our national security deserve discussion, 
deserve analysis.
    I think another principle that is important is the 
Constitution. The Constitution provides that this body, the 
Congress, shall have the lion's share of power. It is the 
Constitution that in Article I describes the Congress. As a 
scholar that I quote in my longer testimony says, ``You could 
have had a fully functioning government if the Constitution had 
ended at the end of Article I.''
    Congress has enormous powers in the national security 
field. You have power over war. You have power to define and 
punish offenses against the law of nations--that would cover 
laws against torture, which you passed; you have powers to make 
rules for the government and regulation of the land and naval 
forces. Now, that is 1787 speech for the military and the 
security agencies--the land and naval forces. You have power to 
make rules for the government and regulation of those bodies.
    And if you look at the Youngstown case which I refer to in 
my written testimony, Congress, if it has acted, has the 
greater power. But this isn't a question only of the 
Constitution and where power lies, even though it does lie with 
you. It is a question of the national interest.
    I think that is the most important point about this 
discussion; which is, the national interest is well-served if 
there is responsible, informed dialogue between the executive 
branch and the Congress. The national interest is ill-served if 
there are policies devised in secret and with only a small 
cadre of executive branch officials within the branch 
considering them.
    I use in my paper, my written testimony, the torture 
subject as sort of a case study. And it is a classic case study 
of the way--forget about what you think about that, ultimately. 
All of us probably have strong views on one side or another. 
But it is clear, I believe, that you should not have a decision 
like that made without any debate or discussion. If Congress is 
only brought into the process by a system that gives the 
Congress, this committee, insufficient information, using a 
stinted process, which is the way the Gang of Eight is now 
working--it is a stinted process--there are a number of harms 
that ensue.
    First, the likelihood of unwise decisions increases. The 
Founding Fathers, James Madison, when he wrote his wonderful 
51st Federalist, understood human nature. And human nature is 
such that men, he said--we would say men and women--are not 
angels. And since we are not angels, the import of that lesson 
is that decisions are better made if they are made with full 
information and after discussion and debate.
    I believe that is the most important thing that you should 
consider as you determine how to either rewrite the National 
Security Act or talk about the issue with the executive branch.
    The executive branch also is not well-served by decisions 
being made without adequate information. They tend to blow up 
in their face.
    Of course, the final point I will make is when you have a 
system like the Gang of Eight--Britt referred to this at the 
very end of his testimony--usually things that were covered by 
secrecy come out. They don't come out because of this 
committee. They come out because of the press, they come out 
because executive branch people leak things. But they usually 
come out.
    As Britt, coming from North Carolina, used this ``go 
south,'' as apparently something bad--I am not sure he really 
meant that--but when they ``go south'', inevitably there are 
going to be unseemly debates between the executive branch and 
the Congress over who was told what. And you shouldn't operate 
in a system where it is unclear who has been told what. You 
should operate in a system where the Congress, and the 
Congress' chosen on your issues--to make that mean this 
committee--should be fully and currently informed.
    Thank you.
    Chairwoman Eshoo. Thank you very much for your outstanding 
testimony, Mr. Schwarz.
    [The statement of Mr. Schwarz follows:]



    Chairwoman Eshoo. Now we welcome the testimony of Mr. 
Munson.

                  STATEMENT OF DAVID E. MUNSON

    Mr. Munson. Madam Chairwoman, I am thrilled to be here 
today and to talk to you about the situation in my hometown. I 
come from a county of 15,000 people, a city of 1,500, and I am 
a business owner there. I sell less than $200,000, or around 
$200,000 worth of goods in a restaurant. I have five employees. 
Fifty percent of my sales are food. And life is tough. It is 
very hard. We are having a very hard way to go.
    The Governor decided to close the prisons--not just ours, 
but seven others--and the situation is such that there has been 
a lot of information coming to certain individuals in the town 
from the Federal Government or representatives of the Federal 
Government, and the people of the town have not been included 
in that when they come to town. They see city councilmen, 
county commissioners, other people in town. It is a selected 
few they talk to. And specifically DOD, Homeland Security, 
Representative Bart Stupak, Department of Corrections in 
Michigan--which is not your issue.
    But we are having a hard time dealing with being number one 
on the list for the Guantanamo people. I mean this is what we 
are being told all the time. We are having a hard time dealing 
with that because we are not getting information from the 
Federal Government to the people in my area.
    The last statement I saw was that ``After we make the 
decision, you will have 45 days to deal with it.'' And that was 
by our Representative, Bart Stupak.
    Now I would think that they would come and tell us, inform 
us as to what they want to do before they make the decision to 
take our prison and do something with it, that they would 
include the people in town.
    We are just a small town, we are small people. We are 
trying to survive. This does not look like a win-win situation 
for us. Three hundred-thirty people have been transferred out 
of the prison to close the prison and it appears as though this 
whole scenario, with budget problems in Michigan, which every 
State has got budget problems, but this whole scenario with 
Standish Max was put together to bring these people here, to 
have a place to bring these people.
    We would like to strongly object to what is going on; the 
lack of transparency I guess it is called, the lack of 
information. If we could have a town hall meeting and we could 
have the Federal Government come and present their option to 
us, we might be interested in it. But at this point, people are 
scared to death. They don't want Guantanamo North to be 
Standish Max. We don't want to be a jihad ward when Guantanamo 
is closed, because Standish Max does not have the protection 
that Guantanamo has. We don't have the infrastructure. We have 
12 officers in our county and one police officer in our city. 
We couldn't handle anything close to what this kind of move 
would do to our community.
    And so we would ask that if you have any power to do 
something with that, if you could get the Federal Government to 
come and let us know what their plans are--not after they have 
made their decision, but before they do. Some of the people in 
our--our mayor is on speed dial with a gentleman at DOD called 
Phillip Carter. We can't get him to answer e-mails, we can't 
get him to answer phone calls.
    The mayor pro tempore is talking to him, some of the county 
commissioners. That all came out in a referendum they just 
passed on the 19th where they were going to accept Federal 
detainees, and instead they changed the wording to Federal 
prisoners. But during the city council meeting, the mayor did 
say he had talked to these people. The county commissioner said 
he had been talking to them, too. So why aren't the people in 
town?
    We had a hundred people at our city council meeting. One 
person was in favor of it. Ninety-nine percent were against. We 
had a non-quorum city council meeting where some of the 
councilmen just discussed it with us. There were over a hundred 
people there. And 2 people were in favor of it, and 98, to give 
you a number, were against it.
    Everything I read, everything I hear is that the local 
community is in favor of this. Even the township supervisors 
are not in favor of this. But a few people that they have wired 
in keep going to the press and saying that this is what 
everybody in the area is in favor of. And we are not.
    So I thank Mr. Hoekstra for giving me some time to come and 
tell you that this is a very big issue in our town, even though 
I know it is not a big issue here. But the lack of transparency 
is very big.
    Mr. Munson's statement follows.



    
    Chairwoman Eshoo. Mr. Munson, thank you again for traveling 
across the country to raise an issue that you care, obviously, 
a great deal about. I would not characterize any member of this 
committee as to not caring about the issue, which is enormously 
complex, relative to Guantanamo Bay, to the detainees, and how 
that is all going to be handled.
    You have huge problems in the State of Michigan. States are 
struggling. You have characterized, obviously, the pain that is 
being felt in a small town and also the confusion because there 
is not, from what I hear from you, very good communication.
    I pledge to work with--and I think other members of this 
subcommittee--to work with the Michigan delegation to help 
clear some of that out. As I understand it, the facility that 
is in your community was a State prison, not a Federal 
facility. To you, that is neither here nor there, because you 
are worried. You can always debate how people can think, but 
you can't tell them they are wrong for how they feel.
    So we welcome your coming to Washington to share your 
views. As you know, as you can tell, this hearing is not set up 
to discuss Guantanamo.
    We nonetheless welcome you. We thank you for your 
observations. And I commit, and I am sure other Members do, to 
work with the Michigan delegation first, that people in the 
community get very clear information. So while you obviously 
don't share the credentials that the other gentlemen at the 
table have, nonetheless we are glad that you are here. But we 
are not going to be spending--at least many of us here are not 
going to be spending time examining what you just said, because 
the hearing is not about Guantanamo, and I think that you 
appreciate that. That is no reflection on you. You are a 
gentleman and a fine citizen.
    So let me start with the questions. Mr. Snider, in your 
testimony you discuss the administration's obligation to brief 
the committees ``of significant anticipated intelligence 
activities.'' I think the key word here is ``significant.'' 
Members of Congress obviously don't have the time to be briefed 
on every single intelligence activity, and we are not, so there 
must be some process for deciding which are the most important 
ones. Some activities are routine; some, as exposed, are highly 
controversial, as we have learned. The statute focuses on 
significant intelligence activities.
    What factors, both Mr. Snider and Mr. Schwarz, should we 
look at to determine whether an activity is significant? That 
is my first question. And should we be looking at the level of 
the official who approved the activity, the impact or national 
interest if the activity were revealed? I think that should be 
taken into consideration, but you may want to comment on it. 
And the amount of money that is spent on the activity. And 
should we define--and this is, I guess, the top of my question, 
even though I am stating it last. Should we define what 
``significant'' means in the statute, and how would that work?
    Mr. Snider. All right. Let me see if I can answer all of 
that.
    I think there are a number of factors that agencies 
consider. And, by the way, I would just point out it is the 
responsibility under the law of the head of the intelligence 
agency involved to make that decision, whether, in fact, 
Congress needs to be notified because it has a significant 
anticipated--or significant intelligence----
    Chairwoman Eshoo. Can I just interrupt here? If in my view, 
or I should say in my experience, if it is left to the 
individual, does that not start to become multiple choice and 
chip away at really what is significant and that it be defined? 
I think this is where we somehow have come off the rails, so to 
speak, because it seems to be a choice which then bumps up 
against being fully and currently informed.
    Mr. Snider. My personal view is, I think, resting that 
responsibility with the agency head is the appropriate place to 
put it, because if someone is going to make a determination 
that Congress does not need to be informed because the activity 
is, quote, not significant, it seems to me that person ought to 
be the agency head. He should be accountable for that decision, 
whether Congress is informed or not.
    And in terms of the factors that they might consider, 
whether the activity they are contemplating is new in terms of 
its target or in terms of its methodology. Some of the other 
factors you alluded to, the amount of resources, personnel 
involved; the likely impact that what they are contemplating 
will have on the agency's mission; the likelihood that it might 
be disclosed and criticized; what risks do you run.
    So I think there are any number of factors that agencies do 
weigh in terms of whether Congress needs to be told about 
something new that they are planning to do.
    I don't think I would include activities that are just 
percolating, ideas that are percolating down in the agencies 
themselves that have not at least achieved the status of 
management approval or recognition or whatever. I think that is 
reaching too low, but otherwise I think the system works 
reasonably well based on my experience when I was working in 
it.
    Chairwoman Eshoo. Mr. Schwarz.
    Mr. Schwarz. I had had--first thing in hearing your 
question I wanted to comment on a little bit was the word 
``brief.'' I mean, that does bide on when the administration 
should come forward. But I think Congress needs to watch out 
about thinking that it is just a passive recipient of the 
briefing when the briefing comes, because, as you know, you 
have the opportunity and the right to explore on your own part 
and inquire as well as be briefed.
    I am not sure you are going to define ``significant'' in a 
law way, but I wrote down four factors. One would be how is it 
handled within the administration itself, within the executive 
branch itself. If the executive branch tries to have something 
decided by only a tiny group of people, that almost is by 
definition something that is significant.
    So then I think another example where something clearly 
would be significant is where it goes against existing law. I 
mean, under the theory of John Yoo and also the former Vice 
President, the White House could disobey the law as English 
kings could in the 1600s. But if they are doing something which 
goes against the law, even if they incorrectly think they have 
the right to do that, that surely is something that the 
Congress should be brought in on.
    And then what is the potential harm to the Nation if the 
matter is disclosed? That is a reason to increase the 
likelihood that this committee is involved, because it is a 
recognition something is important. And your record is 
exemplary on not disclosing things.
    And then finally, cost is a factor, but there are many very 
important things which don't cost very much. I think the 
torture program didn't cost very much, but it is a torture 
program, and they should have used that word honestly. It 
doesn't cost very much, but it hurt the Nation enormously.
    Chairwoman Eshoo. Thank you.
    I just have one more question, and then I want to get to 
the Ranking Member, and there are so many Members here to 
participate.
    Can either one of you instruct us as to--because you know 
the history of this so well--why there were not any penalties 
built into the statute if there were violations of it?
    When I read it, that is one of the things that, in reading 
it, that stood out.
    Mr. Schwarz. I think probably the first answer is nobody 
thought of that, because they thought it was such a great thing 
to have a permanent committee and so forth.
    The best penalty for governmental failures is criticism, it 
seems to me. I am not sure that penalties that--which say if 
the head of the CIA doesn't tell you, they have got to hide in 
the corner or something like that. I think if someone fails to 
do what they should do, and what they should do on the 
Constitution, the best penalty is disclosure and disagreement. 
It is my gut on it.
    Chairwoman Eshoo. Mr. Snider.
    Mr. Snider. I would just say on one point while the statute 
itself doesn't contain any criminal penalties, you have had 
agency employees disciplined by their own agency for failing to 
abide by the congressional notification requirements.
    Chairwoman Eshoo. Can you give us some examples of that; 
not the names, but what happened to them?
    Mr. Snider. It happened in connection with the Guatemala 
case back in 1994.
    Chairwoman Eshoo. But what happened to individuals? Did 
they lose their jobs, or what happened?
    Mr. Snider. I can't recall. I think they just received 
reprimands, I am not sure. I do remember--it has happened in 
the past. It is not as if agencies don't take this seriously. I 
just point that out.
    Chairwoman Eshoo. Yes. I am not suggesting that they don't 
take it seriously. It needs to be, but it just stood out to me 
that there wasn't, and I thought you might know some of the 
history here. Thank you.
    With that I would like to recognize our wonderful Ranking 
Member Mrs. Myrick.
    Mrs. Myrick. Thank you, Madam Chairwoman.
    Mr. Snider, and I am quoting something that was recently 
said, in recent press reports Senator Bond, who is the Ranking 
Member of the Senate Intelligence Committee, indicated his view 
that a growing number of disclosures of highly secret programs, 
tactics and other information had caused irreparable damage to 
the U.S. Intelligence Community.
    How does this problem affect the willingness of the 
executive branch to share information with Congress? What can 
be done about it?
    And there is a second part of that that is just a personal 
gripe of mine, and that is I am new to the committee, but a lot 
of what we are told simply I have read about in the press 
before I am told here on the committee, and it is very 
aggravating. And so, you know, I don't know how and where; it 
obviously doesn't come from us, because we don't have it, but 
yet this is becoming more and more of an issue on a lot of 
sensitive issues that that committee deals with, in my opinion.
    Mr. Snider. Well, I should point out to you that I am 
retired. I left the government 8 years ago.
    Mrs. Myrick. Smart.
    Mr. Snider. So in terms of my experience, my experience is 
fairly dated. I can tell you when I was in the government and 
in the CIA for the last 4 years of my career, there was an 
incredible amount of information shared with the two committees 
back in the 1990s. I presume that is still continuing.
    Mrs. Myrick. I am not saying we don't get information, but, 
I mean, there have been several incidences within the last year 
actually of things, and probably before that. I wasn't on the 
committee; I am just new to the committee this year. But you 
will see it in The Washington Post or The New York Times or 
something, and we haven't been notified.
    Mr. Snider. Well, I presume you would complain under those 
circumstances if you think you should have been notified. I 
think there are always slip-ups, and then there are things that 
aren't slip-ups, but are more intentional. But I don't have--I 
am not able to really give you an explanation of why they 
didn't tell you.
    Mrs. Myrick. Some of this is leaks, and I understand you 
just referred to that, and I understand that.
    Mr. Schwarz, do you have a comment?
    Mr. Schwarz. The one thought I had in listening to you and 
Britt, if you feel you have not appropriately been informed, 
Congress is entitled to hold a hearing, and in this case you 
would hold it in executive session about why you weren't 
informed. That is within your prerogative to do. And I think 
that is the sort of republican remedy for a wrong, using the 
``republican'' as James Madison did, when you are worried about 
you want to go to things that are republican, like getting the 
information.
    Mrs. Myrick. But it is so after the fact.
    Mr. Schwarz. Yes, but still, I mean, if you hold a hearing, 
and it turns out there was wrongdoing, that is going to make it 
less likely that there is wrongdoing the next time.
    Mrs. Myrick. Happen again.
    Mr. Schwarz. Yeah.
    Mrs. Myrick. Thank you.
    Mr. Munson, I just wanted to say to you that I completely 
understand where you are coming from, because North Carolina is 
one of the States that has been mentioned as a place to put 
these detainees as well. And our people in North Carolina have 
the same concerns that you do of not getting any information, 
or not being notified, or not being told. And then there is a 
concern of what would happen if the people are released, and 
you know what can come from that.
    I also appreciate your being here today.
    Mr. Munson. Thank you, ma'am.
    Mrs. Myrick. I yield back, Madam Chairwoman.
    Chairwoman Eshoo. Thank you.
    Mr. Holt. Wonderful participant, member of this committee, 
very thoughtful, everyone knows that. And he is a rocket 
scientist.
    Mr. Holt. Thank you, Madam Chair, and I thank the witnesses 
for their testimony today and even more for their long record 
of good citizenship and public service.
    The witnesses have laid out clearly that congressional 
oversight is not only required constitutionally and legally, 
but that it is also beneficial from a practical point of view 
and from the point of view of organizational structure and 
management.
    One would hope that the Intelligence Community and the 
national security community at large would seek the 
consultation, the oversight and notification of Congress, but 
evidently not. So we have to talk about how we are going to 
accomplish that.
    It is, I must say, offensive to me and to some of us, I 
believe, when people say that, well, this must be restricted 
for the sake of national security. I mean, Congress has as much 
responsibility to provide for the common defense. Our oath of 
office is clear and unmistakable on this, and as the witnesses 
have commented, I think the history is pretty clear that leaks, 
the breaches of classified material, of the confidentiality do 
not seem to be coming from the legislative branch. I am sure 
national security reporters could certify to this, and I have 
actually suggested several times that they do that, but that is 
another matter.
    So because of the frequent lack of cooperation of the 
Intelligence Community, I would say that under the best of 
circumstances we are hampered, critically hampered, in doing 
our job. Some days I go so far as to say that under the best of 
circumstances, we cannot conduct the oversight that it is our 
responsibility to perform. Every other committee in Congress 
has outside interest groups, active citizen groups and others 
helping to perform that oversight, whether it is the Sierra 
Club or the American Trucking Association or the National 
Education Association or whatever. We don't have that benefit, 
nor is there a culture of whistleblowing in the Intelligence 
Community, so we depend on this information.
    Now, earlier the Chair commented on the significance of the 
word ``significant.'' I would actually highlight a different 
word as the most significant one, which is ``informed.'' In 
fact, the law that requires fully and currently informed 
Congress has been turned into congressional notification. And I 
would appreciate a comment on whether you think that is--should 
be and is--the intended meaning of the phrase that Congress 
should be kept fully and currently informed, whether it is 
notification or consultation.
    If there is another round of questions, I will talk about 
what besides covert action should be covered, because we do 
specify covert action; maybe we could specify other things. I 
would like to talk about the gray area between Title 10 and 
Title 50 in the U.S. Code where there is a lot of activity that 
is taking place that may or may not be intelligence, but it 
seems very much like intelligence to me and should be included 
in notification to the intelligence committees.
    Before I give up the microphone, I just also wanted to make 
sure that in this discussion everyone is aware that there has 
been a significant change here in the House of Representatives 
in the last couple of years in response to the recommendations 
of the 9/11 Commission. We have created the Select Intelligence 
Oversight Panel, composed of some members of this committee and 
some appropriators to take advantage of the power of the purse, 
to provide better coordination between authorizing and 
appropriating and to enhance oversight. And that panel, which I 
have the honor of chairing, is coordinating with this committee 
in this general oversight effort that the Chair of this 
committee mentioned in his opening remarks.
    So I guess I have used up all of my time. If there is a 
comment about this notification, consultation informing matter, 
I would welcome that.
    Mr. Schwarz. It is wonderfully refreshing to see a man who 
is a scientist by training to be so very, very precise and 
sharp with words, which I first saw when I met you wearing my 
environmental hat. But there is a difference between being 
notified and being informed, and being informed is what the 
experience that led to these committees calls for. I mean, that 
is what the Church Committee really found out, that not being 
informed means there are more likely to be things that are 
illegal, unfair, embarrassing, bad for the country. I thought 
that was a very, very important point of emphasis. Notification 
is a partial tool toward informed, but the obligation of the 
executives should be to keep this committee informed. I think 
that was very terrific.
    Mr. Snider. I would simply agree with that. When I think of 
notifications, I think of formal notices of new programs or new 
operations or something like that. I think of being informed, 
including consultation, before something is done, having a back 
and forth; not just being told this is what is happening, but 
rather have a give and take with the committees. So I think 
being informed is broader than simply notification.
    Mr. Holt. And notification can become perfunctory.
    Mr. Snider. Yes.
    Mr. Holt. Thank you, Madam Chair.
    Chairwoman Eshoo. Thank you, Mr. Holt.
    The Chair is pleased to recognize Mr. Hoekstra.
    Mr. Hoekstra. Thank you.
    Mr. Munson, you are in a unique kind of position because 
you can kind of relate to where certain Members of Congress may 
feel at a time when the Gang of Eight has been briefed on an 
issue, but the rest of Congress has not been briefed on. When I 
take a look at what is going on in Standish, in Michigan, you 
are at a position where you believe that other people have been 
given information that you may not have been--that may not have 
been shared with other people in the community; is that right?
    Mr. Munson. That is correct, from the Federal Government, 
yes.
    Mr. Hoekstra. And the information is primarily information 
that may have been coming from a Phil Carter in the Department 
of Defense, and perhaps some of that information is--or he had 
shared certain kinds of information perhaps with the mayor, the 
city manager, that stays very close hold.
    Mr. Munson. Yes, they seem to be on speed dial together.
    Mr. Hoekstra. And that is information that you have asked 
for and other people in the community have asked for?
    Mr. Munson. We have asked them a lot of questions, and we 
are not getting many answers, and they are making decisions 
that the people in the community don't like. We raised over 
400, almost 500, signatures from people from the time they 
posted their 4 o'clock meeting on Friday, and they had it at 4 
o'clock on Monday, just by going to the churches and explaining 
the Guantanamo issue to bring it up for this resolution that 
they had, and these people freely signed these petitions and 
wanted more information.
    Mr. Hoekstra. And you are also aware that a number of State 
legislators have had and requested this same kind of 
information from the Federal Government?
    Mr. Munson. Yes. Tim Moore, our representative in the 97th 
district; Joe Haveman, the representative in your old district 
has asked for it, and there is nothing forthcoming. Mike Bishop 
has even asked for it. He is senate majority leader.
    Mr. Hoekstra. And I believe that this week the State--or 
the State senate judiciary committee held a hearing where they 
brought in the Michigan Corrections Department, and the 
Michigan Department of Corrections has indicated that they have 
had no discussion with the Federal Government or with the 
Department of Defense on this issue as well.
    Mr. Munson. They seem to be totally in the dark.
    Mr. Hoekstra. It is much of the same kind of information. 
We have got a number of requests in from our office and from 
this committee because it is an issue this committee has 
responsibility for. We are responsible for the military 
intelligence programs and falls well within our jurisdiction. 
Had requests into the Department of Defense and the individuals 
responsible for this program, supposedly the individuals that 
are making and having the discussions with local officials, and 
say, hey, just share with us maybe what you shared with the 
city manager in Standish. And they seem to be very, very 
reluctant. To date they have been totally unwilling to share 
that kind of information with us.
    Mr. Munson. People in my area are scared to death. They 
don't know what is going on. They feel like they are being 
pushed--this issue is being pushed on them, and they are 
scared, they are just frightened.
    Mr. Hoekstra. And it is really no different that maybe 
perhaps some of the frustrations that Members of Congress may 
feel when there are classified programs where the information 
is very, very close hold; then it is kind of like they are 
frustrated as well that they can't get access to more 
information.
    I am also assuming that you have read press reports about 
what Department of Defense has been telling the folks locally 
about what the impact may be; is that correct?
    Mr. Munson. There have been some reports, but there really 
has not been any facts or any real information, just small 
reports they were here, or they were there, or they said this, 
or they said that.
    Mr. Hoekstra. But there have been discussions about how 
many jobs it might bring into the district. I think those were 
press reports, right?
    Mr. Munson. Right. They were talking about 1,000 jobs, 500 
from DOD and 500 from Homeland Security.
    Mr. Hoekstra. So, I mean, again, you are in the same 
position sometimes that Members of Congress are in in that we 
may read about something in the press before the information 
has been shared with us in a formal way.
    Mr. Munson. They said at city council meeting, it finally 
came out, that this was whispered across the table at the 
prison when DOD and Homeland Security were there, and everybody 
in the county ran with it, we are going to get 1,000 more jobs. 
And that is what drove all of this speculation on how the 
prison was going to be used. We just asked the Federal 
Government to come tell us what they are going to do.
    Mr. Hoekstra. I think you have asked the Federal Government 
for information. Just give us the background of who these 
people are and what they have done; give us your experience 
with housing them in Guantanamo; have there been any special 
challenges that you have incurred with housing them, just so 
that you would have a better understanding.
    But I very much appreciate your being here and recognizing 
that sometimes what you have gone through are some of same 
experiences that we go through here in Congress when we can't 
get the information that we need to make the kinds of decisions 
that we need to make.
    Thank you very much.
    Mr. Munson. Thank you.
    Chairwoman Eshoo. We have been notified that votes will 
begin 11:30. What I would like to do is to come back. There are 
Members who haven't had the opportunity to ask questions of the 
witnesses.
    But we still have some more time now, because the bells 
haven't gone off. Before I recognize Ms. Schakowsky, let me ask 
you this, Mr. Munson: Is this correct or not correct, and I 
come from local government, that this was a local government 
discussion that Mr. Hoekstra just had with you? It reminds me 
of my days on the board of supervisors in San Mateo County in 
California, which I cherish. There is a huge upset in the 
community for all the obvious reasons. And, of course, 
Guantanamo adds a whole another layer of issues to that.
    From what I have read in press reports, you were for this 
to begin with, and then you changed your mind after speaking to 
Mr. Hoekstra; is that correct?
    Mr. Munson. I was coming to Washington to lobby for it and 
when I talked to Mr. Hoekstra, and he said----
    Chairwoman Eshoo. And you are entitled to change your mind. 
I just wanted it know if that was the case.
    Mr. Munson. Well, the reason I changed my mind is because I 
was picketing outside the prison to keep it open, and when he 
said that these people would be at risk, I see 20, 30 people 
driving in and out of there in their cars a day, and, yes, if 
this was an issue, these people would be at risk. So I changed 
my mind.
    Chairwoman Eshoo. I just wanted to establish that. Yeah, 
thank you. Good. Everyone is entitled to change their minds.
    Ms. Schakowsky.
    Ms. Schakowsky. Thank you, Madam Chairwoman. I appreciate 
this hearing.
    I have to say I am somewhat surprised that the Ranking 
Member feels that we ought to be talking about something else, 
because on a bipartisan basis, as Mrs. Myrick indicated, we 
have over the last--this is just my--I am finishing my third 
year on the committee--time and again read in the newspaper or 
seen on television something that clearly should have been 
reported to us, where we should have been informed, where the 
Intelligence Community comes back and says, mea culpa, we 
should have told you, and situations where we have been misled. 
We have been told information that actually is either not 
complete or actually inaccurate. So now I am looking, and I 
can't see it anymore. Mr. Snider, it absolutely happens, and 
has happened with too great of frequency in our committee.
    Next Tuesday we will continue this discussion, this 
subcommittee, and mine, the oversight and investigation 
committee, is going to go further. We are going to examine how 
the Intelligence Community implements the laws we are 
discussing today.
    I wanted to ask you, Mr. Holt asked about the word 
``inform'' and Ms. Eshoo about the word ``significant.'' I want 
to ask about anticipated activities and how you think that we 
can define, or if we need to define, ``anticipated committees'' 
and perhaps refine that.
    Mr. Schwarz, I guess you mentioned to some extent that it 
shouldn't be conversations, but what should it be?
    Mr. Schwarz. How to define ``anticipated''?
    Chairwoman Eshoo. Speak up.
    Mr. Schwarz. I would suppose that Congress plays a 
particularly valuable role when the issue is something that is 
anticipated, because then you can give your wisdom, bring your 
perspectives, which include being more in touch with the local 
communities. So I would say anticipated should not be seen as 
sort of a secondary issue for Congress, but a major issue for 
Congress. You can really make a difference when it is 
anticipated.
    Ms. Schakowsky. Does the National Security Act require the 
executive branch, Mr. Snider, in your view, to notify the 
committee of anticipated covert actions?
    Mr. Snider. Yes, it does require prior notice of covert 
actions. It also recognizes there may be circumstances where 
the President is unable to provide prior notice, and he then 
would provide notice in a timely fashion. Congress recognized 
the possibility that the President may have to act on an 
emergency basis to protect the country's interests, and there 
just simply wasn't time to brief the committees. But that was 
the only circumstance that was contemplated when that language 
was written.
    Ms. Schakowsky. The Director of National Intelligence 
Office unclassified January 2006 policy memorandum, which 
defines how the Intelligence Community must notify Congress 
about intelligence activities. The policy memorandum does not 
appear to require the consideration of a specific amount of 
money. I realize it may not be the only factor when assessing a 
program's significance. Should it? I ask either one of you.
    Mr. Snider. I am not familiar with what you are referring 
to, but I would certainly say it would be one of the factors to 
be considered in whether something is significant or not is how 
much money it was going to cost. I don't know whether that was 
a purposeful omission or what. I just haven't seen what you are 
referring to.
    Ms. Schakowsky. Mr. Schwarz, do you think there ought to be 
a threshold or some way to describe the amount of resources, 
money put into it?
    Mr. Schwarz. Well, I mean, as I said in answer to the 
Chair's question at the very beginning, there are lots of 
important things that don't cost very much money. I guess 
anything that costs a lot of money is important, but there are 
things that don't cost----
    Ms. Schakowsky. I agree with that, but regardless of those 
other factors, do you think that it is important that money be 
and funding be a part of that, and should there be more 
specificity?
    Mr. Schwarz. Perhaps. I haven't thought that through enough 
to be very helpful to you. I think as long as you don't imply 
from doing that that the things that cost less are not 
important. You have got to watch out people reading 
implications into things you write.
    Ms. Schakowsky. That is good advice.
    Thank you, and I yield back.
    Chairwoman Eshoo. I think--thank you. I think what we will 
do is we will go over. Is it time to vote?
    Mr. Holt. We are 5 minutes into it.
    Chairwoman Eshoo. Should we take one more? Why don't we 
move to Mr. Thornberry. And then when Mr. Thornberry completes 
his questioning, we will take a break, with your patience, and 
take the three votes and come back, because I know Members 
still have questions.
    Mr. Hoekstra. I have a note that says the first vote will 
be held open for approximately 30 minutes to accommodate the 
Afghan briefing. You guys will be able to figure that out 
better than what I can.
    Chairwoman Eshoo. All right. Whey don't we keep going? We 
will ask our staff to keep us in the loop on the clock being 
held open, but we will take advantage of the time that another 
briefing is stretching the time on the first vote.
    Mr. Thornberry, you are recognized. Thank you for your 
contributions to the subcommittee and your patience this 
morning.
    Mr. Thornberry. Well, thank you, Madam Chair. I appreciate 
it.
    And, Mr. Munson, thank you for being here.
    As I listen to the other testimony, one of the themes that 
comes through is freer information flow results in better 
discussions, and that is what you are trying to get at where 
the rubber meets the road. And I appreciate very much you being 
here.
    Let me ask you all your reaction, because I have had an 
amendment to the National Security Act that basically says the 
presumption is that the administration shares everything with 
the Intelligence Committee. If the President wants to restrict 
it to some group less than the full Intelligence Committee, he 
needs to ask to do that, and the Chair and the Ranking Member 
of the full committee will jointly decide whether to agree with 
the President's request to restrict it to a smaller number. If 
they agree to restrict it or agree not to restrict it, then 
they decide who among the committee will be notified, but it 
would be Congress's decision. If the Chair and the Ranking 
Member disagree, it would be restricted as the President 
requests.
    But part of the point is, Mr. Snider, I think it gets to 
your point where it requires consultation and discussion back 
and forth about how that notification or information will go. 
The other advantage, it seems to me, is it requires the Chair 
and the Ranking Member work together, which sometimes has been 
difficult.
    Anyway, let me just get your reaction to that presumption, 
Congress gets everything unless the President says to restrict 
it, and the Chair and Ranking Member decide on that request.
    Mr. Snider. So this would take the place of the Gang of 
Eight?
    Mr. Thornberry. Yes.
    Mr. Snider. And would it also take the place of fully and 
currently informing the committee as a whole?
    Mr. Thornberry. It would actually put the presumption for 
fully and currently informing the committee of everything, 
unless the President has a specific request, and then the Chair 
and Ranking Member have to act on that request jointly.
    Mr. Snider. Well, I haven't thought about it, but as you 
point out, I do like the idea of consultation between the 
executive branch and the committees in terms of how something 
sensitive should be handled, and this would seem to provide for 
it. Now, it seems to me you are leaving a lot of power in the 
hands of the two leaders of your committee to agree.
    Mr. Thornberry. Certainly.
    Mr. Snider. And if they couldn't agree, obviously you would 
have a committee that was not told.
    Mr. Thornberry. It would be the President's restriction 
would take effect, that is true.
    Mr. Schwarz.
    Mr. Schwarz. Well, I think the idea of more consultation is 
a good one. Historically with the Church Committee it was 
notable that there never was a difference between the six 
Democratic Members and the five Republican Members on getting 
information. There were sometimes some differences on how to 
construe it or what to do about it. But John Tower, who was the 
Vice Chair, was extremely vigorous in pushing for getting 
information.
    So I think this is truly a bipartisan issue where the 
interest of the Congress as an institution are----
    Mr. Thornberry. Well, as a matter of fact, what I outlined 
was jointly agreed to by the Majority and Minority on this 
committee last year, but for some reason it was not supported 
bipartisanly this year. But it was a bipartisan agreement to do 
just like I outlined last year.
    Let me ask one other thing, because we are limited on time. 
What do you do in a situation where Members of Congress are 
informed, but they deny that they were ever informed? We have 
had a long--several instances, whether it is the terrorist 
surveillance program or the enhanced interrogation program, 
where Members of Congress say, no, they never told me. And you 
look at the record, and there were 15 briefings on one, 40 on 
the other. You get a prominent Member in political trouble, and 
she says, oh, they lie to us all the time.
    How you do deal with that where in a way it is political 
cover for Members in leadership or perhaps on the committee to 
deny that they were ever briefed, where, in fact, they were?
    Mr. Snider. I have long thought that all ``Gang of Eight'' 
briefings should be transcribed. There should be a transcript 
so there is no question of what the Members were told. And it 
would be available to the Members who were briefed. You know, 
it could be done. I don't know why it isn't done. That would 
take care of the problem, it seems to me.
    Mr. Schwarz. I think I love his transcribed idea, and you 
can keep those transcripts, as you know, totally secure. I 
think that is a great idea. It is almost inevitable that when 
you have these informal briefings, that there are going to be 
differences about what was said. I don't think it is a fault of 
either side. I think it is almost inevitable if you have this 
system that it is going to lead later on to disagreements about 
what was said, particularly about, I would think, the adequacy 
of what was said.
    Mr. Thornberry. Thank you.
    Chairwoman Eshoo. Thank you.
    Mr. Thornberry. This is a very interesting discussion that 
I think we are going to--really deserves a lot more 
examination. But I can't help but think that the tighter the 
noose is around secrecy, that the less--that what is diminished 
are the things that we are talking about and the outcomes that 
we have experienced. I mean, the Gang of Eight and the way it 
has operated, it is not so much their fault, the Members that 
happen to be a part of it, but it hasn't, in my view, served us 
well. There are no records kept whatsoever, nothing. And yet we 
know that there is a safe, there needs to be, and some of the 
Nation's top jewels in terms of secrets are kept there.
    Now, if this is such sensitive information, why wouldn't 
there be a documentation of the time, the date, the place, the 
participants and the content of a meeting? I mean, that just, 
to me, really defies common sense. And then the outcomes as a 
result of this, unfortunately for the country, have turned into 
highly partisan debates and views that are held, and fingers 
are pointed, and fault and blame are assessed. And all of it is 
on the front pages of the newspaper, which, you know, in the 
last analysis, I don't think that is where that should be.
    At any rate, how are we doing on time?
    Voice. Four minutes left.
    Chairwoman Eshoo. I think we ought to go and take the vote. 
You all get to take a break.
    Are they going to keep it open?
    Mrs. Myrick. They said they were going to hold it open.
    Chairwoman Eshoo. Three hundred eighty people haven't 
voted. I think we can take Mr. Rogers.
    Mr. Rogers. I think this Gang of Eight idea is just an 
awful idea anyway. I think the Ranking Member has been good 
about it. I think it is a bipartisan effort. It is just not a 
good way to conduct oversight of 16 agencies.
    And to Mr. Schwarz's point, I do believe that we have the 
responsibility to go ask questions as well. We cannot be 
passive observers in what is a very dynamic and, by culture, 
secretive organization. It is up to us to extract that 
information.
    I have to say I have never felt, when I have gone and asked 
questions, that I have been lied to, even about programs that 
have been briefed to the Gang of Eight that by showing up and 
asking questions you can get information on. I have never been 
told I can't get it, which is kind of an interesting dilemma. 
So I think we can fix this problem relatively simply by making 
sure that the law is clear about what they must and what they 
must not--I want to get into more of that.
    Mr. Munson, thanks for being here. I do think this is a 
great irony that here is an example that will impact a 
community more than anything that I can think of, especially in 
a community like Standish where you can't get access to the 
full information. And I just want to ask you a few questions, 
things that I would want to know.
    Have they briefed you as a community about the risks of 
bringing this many terrorists and housing them in one facility 
in your town?
    Mr. Munson. We have asked that question. These guys are 
rock stars of the jihad movement, and we got no answers.
    Mr. Rogers. So they have given you no answer.
    Did they inform you that there have been prison breaks and 
attacks on these prisons in Yemen trying to free terrorists? 
Did they tell you about this?
    Mr. Munson. We have heard about it from the experts that 
came to our town hall meetings.
    Mr. Rogers. But the Federal Government has not briefed----
    Mr. Munson. The Federal Government has not----
    Mr. Rogers. A quick yes or no, if I can, just based on 
time, if you don't mind. How about Iraq? Did they tell you 
about the prison break and the attack on the prison in Iraq?
    Mr. Munson. No.
    Mr. Rogers. Morocco? Beirut?
    Mr. Munson. No.
    Mr. Rogers. Philippines?
    Mr. Munson. No.
    Mr. Rogers. Singapore?
    Mr. Munson. No.
    Mr. Rogers. How about this year a British prison where a 
group of terrorists were planning a pretty aggressive attack, 
including outside help?
    Mr. Munson. The government has told us nothing.
    Mr. Rogers. So here is a great example of why this is more 
than just a prison, isn't it?
    Mr. Munson. Yes.
    Mr. Rogers. This isn't just a prison where somebody gets 
convicted, they have the will to live, they go and serve their 
time, and they hopefully get rehabilitated, certainly 
debatable, but go back to their community, correct?
    Mr. Munson. Correct.
    Mr. Rogers. This is not that.
    Mr. Munson. No.
    Mr. Rogers. And so here is somebody who has a business in 
this community who could stand to gain by 1,000 jobs if that, 
in fact, were real.
    Mr. Munson. Real.
    Mr. Rogers. And you have the courage to stand up and say, I 
am not sure this is good for the community, but, gee, I would 
sure like the information to make an informed decision.
    Mr. Munson. The information would be really nice.
    Mr. Rogers. You are just asking for some information that 
might help you make a better decision.
    Mr. Munson. Yes, sir, we all are.
    Mr. Rogers. And they have not told what risk these 
prisoners pose to even prison guards and the experiences they 
have had at Guantanamo Bay, have they?
    Mr. Munson. Haven't heard a thing from the government.
    Mr. Rogers. I can understand your frustration, and now I 
think and I hope at least the public can understand sometimes 
our frustration when we are expected to make a decision that 
might alter our communities, our national security. You don't 
get the right amount of information, so it impacts Congress as 
much as it impacts a local community in the great State of 
Michigan and a great town like Standish.
    Mr. Munson. Thank you. Yes, sir.
    Mr. Rogers. Would you be open-minded if they were to give 
you all of the information in a forum that was acceptable to 
the community where you could ask questions, tough questions, 
about the British prison break, and the Yemen, and Iraq, and 
Singapore and what it means to be a target for these kinds of 
operations?
    Mr. Munson. We have been asking for them to come to our 
community and give it to us, and there are no answers. Nobody 
answers the e-mails or phone calls.
    Mr. Rogers. Did your local community vote by city council 
on this issue?
    Mr. Munson. City council voted by resolution to allow 
Federal prisoners. They take the words ``Federal detainees'' 
out of it.
    Mr. Rogers. And did they give any indication that they had 
received information that the community was not receiving in 
order to make that vote?
    Mr. Munson. They had conversations with people from the 
government, DOD, Homeland Security and these meetings that they 
have had at the prison across the table. That is where the 
1,000 jobs came from. But the community knows nothing about it. 
It is driving this need to bring these people here.
    Mr. Rogers. I appreciate you having the courage to be here 
and the courage to forego any profit that you might make by 
having 1,000 jobs plop down in your community. I think that 
takes courage and certainly foresight of the dangers that might 
arise by bringing this many of the world's worst into one 
community.
    I see I am out of time. I wish I had time to talk about 
Gang of Eight. I do think we have to work out legislatively so 
it is very clear. I think it is not so clear. It wasn't clear 
to us. When I read the law, it is not very clear. I think when 
the Intelligence Community reads it, it is not clear to them. I 
think this is something that we can probably work out in a 
bipartisan way.
    Chairwoman Eshoo. And that is exactly the purpose of this 
hearing.
    Mr. Munson, just before we break, let me ask you this: Has 
the Michigan congressional delegation on a bipartisan basis 
come together to request that whomever has responsibility for 
this in the executive branch to meet with the locals? Are you 
aware of that? Or maybe I should be asking Mr. Hoekstra and Mr. 
Rogers. They are both from Michigan. But again, this sounds 
exactly like something that I would have dealt with when I was 
in local government, and that does not diminish its importance. 
But is there a bipartisan team from the Michigan delegation 
that has requested--not just Mr. Hoekstra, because I know he 
has got some candidacy involved in this.
    Mr. Hoekstra. Excuse me, ma'am, you are questioning my 
motives.
    Chairwoman Eshoo. No, I am not.
    Mr. Hoekstra. Yes, you are. That is totally inappropriate.
    Chairwoman Eshoo. I am asking is there a bipartisan team 
from the Michigan congressional delegation that has requested 
assistance in the form of a team to come and make some kind of 
presentation and answer the questions to the good people in 
Standish? That is all I am asking. Do you know if there is, Mr. 
Munson?
    Mr. Munson. A lot of people, a lot of Representatives have 
said things, but there has been no team put together to do 
that.
    Chairwoman Eshoo. Okay. Thank you.
    All right. We will resume after we finish voting. Thank 
you.
    [Recess.]
    Chairwoman Eshoo. Thank you for your patience and waiting 
for us to go across the street to cast our votes and return. 
With that, I am pleased to recognize Mr. Hastings, a highly 
respected and valued member not only of this subcommittee, but 
of the full committee.
    Mr. Hastings.
    Mr. Hastings. Thank you very much, Madam Chair. Thank you 
for holding this hearing.
    Mr. Snider and Mr. Schwarz, both of you have cast an awful 
lot of clarity on a subject that I think cries out for clarity 
and language in a statute that cries out for specificity.
    Madam Chair, I regret very much that Mr. Munson is not 
here, and I would reference it just because we do have a record 
and maybe Mr. Hoekstra would hear my comments through this. I 
would be telling Mr. Munson. If he were her, that I have 
proposed legislation that fixes not only his problem, but all 
these Congresspeople with this ``not in my backyard'' business. 
All that is playing pure, unadulterated politics when the deal 
goes down, and that is whether it is Hoekstra, Democrats, or 
anybody else.
    But the legislation that I have proposed that I think all 
of this committee ought look at deals with the policy of 
detention, not the place. And that is what we don't have here 
at this level. We don't have the policy.
    Now, my scrivening may not be all that is needed, but the 
simple fact of the matter is we could do something about 
detention policy, and it wouldn't matter whether a person were 
held in Guantanamo, Bagram, or outside my house, if we have a 
policy that deals with this matter.
    So I hope those words find Mr. Munson well, wherever he is, 
and I will tell Mr. Hoekstra again about my legislation.
    Madam Chair, let me give my bona fides to the gentlemen at 
the table. I think personally that the Gang of Eight first 
ought to change its name to ``come see two'' people. The reason 
I say that, anytime you mention a gang, it has a negative 
connotation. And that is in there just for whatever it is 
worth.
    But as a member of this committee, I personally am opposed 
to the statutory provisions that have allowed this nuanced 
group of people to get together, that can't do anything, can't 
tell us, and then, in the final analysis, we are ill-informed.
    One of the things I know is this: We ostensibly hold the 
power of the purse and authorize and appropriate. But when we 
are notified of covert actions, we are responsible for the 
cost. When we are not notified of covert actions, we are 
responsible for the cost. And among the constituency--and a 
part of our constituency is the larger body of 
Congresspersons--we are thought to have this information that 
we don't have.
    So if you look at this statute--and I am sure you two 
gentlemen especially have read it and both of you would know 
this to be true--if you read any statute, each time you read 
it, you can reference matters that you could change or see. Let 
me give you two good examples.
    Under ``see two people'', the President determines if it is 
essential to limit access. And then it goes on. The second-to-
the-last sentence, it identifies those persons, and then says, 
``and the minority leader of the House, the majority and 
minority leaders of the Senate, and such other Member or 
Members of the congressional leadership as may be included by 
the President.'' So it isn't as exclusive as it sounds.
    And then in D, ``The President shall ensure that the 
Intelligence Committee,'' and then it has an ``or,'' and if I 
were changing this statute, I would say ``and/or.'' And I tend 
to come down where you are, Mr. Snider, and that is that I can 
make a case for the Gang of Eight, but here is what experience 
has taught me, not just in the Intelligence Committee but as a 
citizen of this country.
    There has been a bending and swaying of the pendulum 
between the executive and the legislative branch and indeed the 
judicial branch of government that kind of goes ignored 
sometimes, but is necessary. But the pendulum swings back and 
forth. And I am not talking about ideologically, I am talking 
about power.
    And what has happened in more recent vintage since 
President Nixon, not just as it relates to intelligence, but 
Presidents generally have arrogated unto themselves more and 
more power, not just in the intelligence arena, but generally, 
and have been less and less transparent, and that includes 
Clinton, Bush, and the new administration in my judgment.
    There are ways to be transparent. And if I have any 
question at all, it would be what you think could be done, and 
I hear you with reference to it being worked out between the 
administration and the committees. I thoroughly agree with 
that. But there needs to be yet another kind of mechanism to 
make that happen. And I don't know how to do that. Otherwise, 
we are at the mercy of the executive branch and it leaves us in 
the wilderness repeatedly. And I for one am about changing the 
statute to balance the powers.
    If I have said anything that is deserving of comment, I 
would appreciate it.
    Mr. Snider. Well, I simply agree with virtually everything 
you said. I think you are on target. I have already elaborated 
on my views on the Gang of Eight. I won't repeat all of that.
    I think the balance--we don't have the balance that we need 
right now. Something needs to be done. I think this is the time 
to do it.
    Mr. Schwarz. I think the best--on the constitutional side, 
Congress has the power. And they shouldn't let it slip between 
their fingers. You have the power. Presidents of both parties 
consistently and increasingly have tried to take the power. You 
have the power of the purse.
    I think in making the record for change that results in you 
being more realistically fully and currently informed, the best 
way to do that is not to argue the abstractions of where the 
power lies under the Constitution, but by showing with concrete 
examples how the current system has led to more harmful 
decisions that hurt the country. And I think making a record on 
that gets the public on your side and is the most convincing 
way to arrive at change.
    Mr. Hastings. Thank you both. Thank you, Madam Chair.
    Chairwoman Eshoo. Mr. Hastings, we have time, if you have 
any follow-up questions. I would be glad to allot you any time 
you want to use. I know that there were a couple of members 
that said they would come back. So if there is something where 
you want to follow up.
    While you are thinking about it, I just want to say to our 
witnesses that you have given us very practical advice today. 
It really is what we need. There are many frustrations that 
have surfaced here today with the members, that comments have 
made on both sides of the aisle on this whole issue of the 
Congress being informed.
    We talk about briefings, and yet when I hear the 
description of some of them, especially ``Gang of Eight,'' they 
sound like drive-by briefings. This really does not comport 
with the solemnness of the responsibilities that both the 
executive branch and the legislative branch have in this 
particular area.
    As Mr. Holt said earlier, and I think I said in my opening 
statement, we don't deal with the push-and-pull of many 
constituencies here. That is not what this committee does. Most 
of what we do is done behind closed doors, by necessity.
    But I think what troubles so many of us, and this has been 
cumulative--it is not fault or blame--I think it is cumulative, 
where the executive branch really holds so much more sway today 
in this area, and the Congress less and less. I am not 
interested in the Congress having more power just to have the 
power, but I do think that it needs to be shared. And I think 
when there is equality between the two, if I might use that 
expression, then the respect and the good will will be 
forthcoming and that we will enjoy more of that. And when we 
do, there will be, I think, a better, a stronger bond between 
the two, which I think the work really calls for.
    Mr. Hastings, I asked if you wanted more time. I don't 
think you need it. Thank you for coming back.
    I am happy to recognize Mr. Holt and to thank him for 
coming back for a second round of questions.
    Mr. Holt. Well, it was certainly an easy decision to come 
back after this brief recess because this is a critically 
important issue. It gets to the heart of the role of Congress 
in protecting our national security to provide for the common 
defense. It is a very rich subject, legally and 
constitutionally. Really, nothing could be more important.
    Let me pursue a little bit more the specification of what 
should be briefed. It is now specified in the law that covert 
action is something that requires special attention, as well it 
should. I sometimes wonder, though, whether by specifying 
things, it makes it easy to neglect other things.
    So I wanted to explore a little bit how far you think we 
should go in specifying what needs to be briefed. I will leave 
it that general and ask both witnesses for comments.
    Mr. Snider. I guess I am skeptical of trying to be more 
specific than ``fully and currently'' for the very reason you 
just mentioned, that I think when you start trying to be too 
specific, then you are going to leave out things that, if you 
just thought about them, you would have included.
    I think there is always going to be an element of judgment 
in terms of exactly what needs to be briefed to the committees 
and how far that needs to go that the agencies will first make 
and then presumably they will discuss it with the committees 
and get their sense of the situation. That is the way things 
should work, I think.
    Mr. Holt. Let me broaden the question a little bit, if I 
may, before you take it on, Mr. Schwarz. Similarly, by 
specifying who should be briefed, say the Gang of Eight, does 
it make it easier to neglect briefing a larger group? You may 
not know enough about the internal functioning of Congress--and 
this is worth remembering--this is, I think beyond argument, 
that the congressional authorizing committees, this committee 
and the corresponding Senate committee, are not very good at 
notifying other Members of their bodies about things that they 
should know. That is part of our responsibility. I don't think 
our record is very good in that.
    Mr. Schwarz. When the question of specificity first was put 
on the table, or examples, I tried to think of some things that 
would be particularly important to be briefed on or to inquire 
into. But I agree with Britt, and I think you said it too, it 
can be dangerous to in the law specify certain things, because 
the implication is then, well, if it is not covered, we don't 
have to.
    So it might be that you could do more by way of legislative 
history or, where you are going through confirmation hearings, 
going over those kinds of questions. I at least think you ought 
to be cautious in making a list in the statute of things to 
be--that have to be informed.
    Mr. Snider. Going to your second question, if I may, if you 
go back and look at the legislative history of the Gang of 
Eight option when it was put into the statute--and there is not 
a lot of it, but from what there is, it seems pretty clear to 
me that Congress intended that the full committees would be 
briefed on what the Gang of Eight had been briefed on when the 
sensitivity or whatever had caused the Gang of Eight briefing 
in the first place had passed. It seems to me that still should 
be the operating principle.
    There should be a point where Gang of Eight briefings, 
whatever the subject matter was, will be provided to the full 
committee. I think that is one of the things I mentioned 
earlier that could be written into procedures that the 
committee adopts, both on each side.
    So you make that just standing operating procedure rather 
than having to have the Gang of Eight think about doing it.
    Mr. Schwarz. That is consistent with the little footnote I 
have on page 5 of my testimony, that even with covert action, 
if there is retained any special Gang of Eight, it should only 
be for something that is immediate emergency and it should not 
cover ongoing covert action programs at all. There is no reason 
why they should be briefed to just the Gang of Eight.
    There is an analogy, historical analogy to Abraham Lincoln 
and how he handled emergency powers in a way that contrasts 
with certainly what was done over the last 8 years and what has 
been done often.
    The Civil War started. Troops were coming south through 
Baltimore. They had to walk from one train to another to change 
trains to come down to defend Washington, DC, and 16 were 
killed by a mob in Baltimore. And then the mayor of Baltimore 
said, I am going to tear down the bridges so no more troops can 
come from the North to get to the South to protect Washington, 
DC.
    Lincoln then suspended habeas corpus, arrested the mayor 
and maybe some other people, and held them. It is clear that 
only Congress has the right to suspend habeas corpus. On the 
other hand, Congress was not in session. So Lincoln said to the 
Congress, ``Here's what I did and here's why I did it. And if 
you think I shouldn't, please punish me. If you think I did 
right, please ratify what I did.''
    It seems to me that is a good historical principle, for 
there is a difference between how, in the short term, matters 
of importance--that was not about secrecy. He acted openly in 
arresting the mayor of Baltimore. I think it illustrates 
powerfully the difference between short-term emergency action 
by a President; like in the short term telling your committee 
about something where they are about to fly into Iran to rescue 
some hostages, for example. But that is very different than 
keeping the thing secret from the whole committee or the whole 
Nation.
    Maybe that is a wandering.
    Mr. Holt. That is helpful. Maybe we don't need a 
congressional committee to establish for the record that 
Abraham Lincoln was a wise leader. But it certainly is a useful 
precedent.
    May I continue?
    Chairwoman Eshoo. I know Mr. Snider has a one o'clock. I 
just have one more question. But certainly make use of the time 
to ask another question.
    Mr. Holt. Thank you. I had suggested earlier that I would 
begin to explore the gray area between the U.S. Code Title 10 
activities and Title 50 activities. There is a lot going on in 
the world these days. There is a lot that one could imagine 
that is going on in the world these days, whether it be remote 
killings or assassinations or intelligence collection that 
falls--or other kinds of actions that fall somewhere between 
Title 10 and Title 50, depending on who does them and how they 
are done.
    It has become the practice here on the Hill not to brief 
some of those activities. It is not clear whether some of those 
activities are briefed to anyone. But, in any case, they are 
often not briefed to the Intelligence Committees when I think a 
reasonable person would say there are intelligence activities 
or there are significant intelligence components of the 
activities.
    Is there anything that you can tell us about the history of 
this, whether this has been examined, and can you give us any 
guidance for the current day?
    Mr. Snider. This has been a longstanding issue. I dealt 
with it very often when I was general counsel of the Senate 
Intelligence Committee 15 years ago. The basic problem is that 
you have military intelligence people doing things overseas. 
They could be gathering intelligence, could be covert actions. 
Could be things that they are doing ostensibly as part of a 
military operation to prepare the battlefield, or however you 
want to call it.
    From the standpoint of the Committee, they look like 
activities within the Intelligence Committee's jurisdiction, 
but because they are considered by at least the Defense 
Department to be part of a military operation, they say 
jurisdiction belongs to the Armed Services Committee. And, as 
you point out, sometimes the Armed Services Committees get 
notice and sometimes they don't, of what is being done in 
preparation for a military operation or is part of a military 
operation. But I think that is where the problem comes, in that 
area.
    If it is not being done as part of a military operation or 
preparing for it, then I think it is clearly a covert action or 
intelligence gathering by the military that is under the 
jurisdiction of this committee. It would require Presidential 
finding if it were a covert action.
    Mr. Schwarz. I am not sure I have anything to add to Britt 
on that.
    Mr. Holt. Do you see any language that is necessary, 
legislative language, that would be helpful in clarifying this?
    Mr. Snider. We struggled with this. The definition of 
covert action--you probably remember in the statute--we 
struggled with this for about a year with the Armed Services 
Committee in the Senate, and finally excluded traditional 
military operations from the definition of covert action. And 
then we went into report language for several pages in terms of 
what was a traditional military operation.
    That is the only place I know where we tried to resolve 
this issue back in 1991, 1992. That is all I can point you to. 
The fact that it still is an issue just shows me it hasn't been 
resolved.
    Mr. Schwarz. I did the Church Committee, and then after 
that was over and the committee was established, I went back to 
the practice of law and did city government and lots of other 
things. I do know that when the Senate at least was setting up 
its Permanent Select Committee on Intelligence, some of the 
barons--I think they were called--of the other committees tried 
to get in the way of it happening. And did they possibly even 
affect questions like the budget authority of the Intelligence 
Committees? They may have.
    So these, in a way, intramural rivalries, have been 
important for a long time.
    Mr. Holt. This has to do with the Church Committee. I 
believe it was the case, and maybe you could quickly summarize, 
Mr. Schwarz, I believe that the Church Committee expanded its 
scope as it followed threads that it uncovered as the 
investigation got underway. I think there may well be some 
lessons for us as we undertake what we are doing here.
    So far, it is a less focused investigation than what the 
Church Committee was designed to do. But in fact it seems to me 
that the Church Committee didn't really stick to its focus; 
that it broadened considerably as it followed threads.
    So I am wondering whether there are any lessons for us.
    Mr. Schwarz. A, your factual premise is true. You start out 
thinking you know some things, but you find out there is a lot 
you don't know. I think a lesson is to make sure you press to 
get information and, most importantly, documents, because that 
is where so often the stories really lie. And they open doors, 
they open your minds up.
    I know that was vital to our running an effective 
investigation and vital to finding other, as I think you put 
it, threads to look at. Maybe they were bigger than threads. 
That is one important thing.
    I think also necessary for successful investigations or 
committees is that you establish reliability on being able to 
keep secrets. The Church Committee definitely did that. There 
was only one leak from the committee, which was the gender of a 
woman who happened to be a ``friend'' of both President Kennedy 
and the head of the Mafia in Chicago. And that was relevant to 
who knew what about Castro.
    Chairwoman Eshoo. And you have that in your extended 
remarks.
    Mr. Holt. Just quickly. I don't mean to interrupt. You had 
more to say on that subject?
    Mr. Schwarz. Not really.
    Mr. Holt. On the matter of classification, how much of the 
proceedings of the Church Committee remains classified and do 
you believe that some of it should--should there be more that 
should be released and should we go about trying to get that 
released?
    Mr. Schwarz. There is more that should be released--not on 
the domestic side, because they never tried to stop us from 
doing anything on the domestic side, the FBI particularly. On 
the foreign side, we had the assassinations report, which is 
probably the best study of covert action because it really gets 
into how it is authorized, how does it go right, how does it go 
wrong.
    But then there was the assassination of the CIA station 
chief in Athens. They tried to--Kissinger and others tried to 
tar the two committees with involvement in that, which was 
totally false. Bush, as CIA director, had to withdraw an 
accusation he made. But it did, on the foreign side, it slowed 
down release.
    So there are still classified elements of the final report 
dealing with foreign intelligence that have not come out. And, 
my goodness gracious, they are more than 30 years old now, and 
why shouldn't those come out?
    Mr. Holt. And they are stored at the Archives now?
    Mr. Schwarz. I am not sure where they are.
    Mr. Holt. Thank you very much. Your testimony has been very 
helpful to me.
    Chairwoman Eshoo. Thank you, Mr. Holt. I just want to ask 
this question quickly and then we will close. And thank you for 
giving us more than half a day of the best of what you know. 
Your testimony has been incredibly enlightening for the 
subcommittee. We are very grateful to you.
    My last question is: In determining whether a particular 
intelligence activity should be briefed to Congress, does it 
matter whether that activity is ``operational?''
    Let me give you an example of why I am asking this 
question. It is not the only example, but it is a recent one. 
Everyone has read about the situation this last June when the 
CIA director came and he did what he was supposed to do. He was 
informed by his own people, I believe on June 23, that there 
had been a program set up and running since 2001, and they 
informed him of that in 2009. And he came, as I said, following 
the law, the next day, and informed us.
    There was then a debate that spilled out that the agency 
had really not done anything that could be considered to fly in 
the face of the National Security Act because it wasn't 
``operational.''
    First of all, I never thought that stuff should be 
discussed, but then it poured out all over. So I ask it not 
only by the most recent experience, but as we move forward and 
we examine what we need to fix, if there needs to be a rewrite, 
if there are additions or subtractions, how would you advise us 
on this issue of ``operational?''
    Mr. Snider. I have never heard that distinction before. In 
fact, I don't think it is a valid distinction.
    Ms. Eshoo. I think that is the answer.
    Mr. Snider. I don't think that is what you should be 
focusing on. It doesn't matter. That is not the test, from my 
standpoint.
    I am sorry I have to leave. I have a meeting that I have 
been trying to set up for weeks.
    Chairwoman Eshoo. We know that. Thank you so much, Mr. 
Snider, both for today and all of what you have done for our 
country and your service to it and your great writings. Thank 
you.
    Mr. Schwarz. It was nice. I hadn't seen Britt since the 
last day of the Church Committee.
    Ms. Eshoo. Glad we could bring you together.
    Mr. Schwarz. There is a logical flaw with not giving you 
information about something because it is not yet operational. 
The logical flaw is, suddenly it may become operational; then 
it is an emergency, and then they would say because it is an 
emergency, we can only tell the Gang of Eight or something.
    Another flaw with not telling you things that are hatched--
I mean baked but not yet hatched--is Congress contributes to 
wisdom, too, and they can help guide the administration on 
would it be a smart thing to go down this road or not.
    I could give you, in the case of the efforts to assassinate 
people, there was, on the one hand, an ongoing operational 
effort in the CIA to kill various foreign leaders. When Kennedy 
came into office, his national security head, McGeorge Bundy, 
called in the head of covert action for the CIA and said, I 
would like you to create a standby capacity to assassinate 
foreign leaders.
    Now the interesting thing was that the guy who Bundy spoke 
to was deeply involved in the ongoing effort to assassinate 
foreign leaders. So there was this sort of standby capacity 
that also was the same thing as what they were already doing.
    I think that just illustrates--that particular example 
illustrates how much better it would be not to say Congress is 
always going to be right when it puts its wisdom--brings its 
wisdom to bear, but these are important decisions that matter 
to the country. And having them discussed in a wider circle is 
going to make it more likely the decision is right and less 
likely it is wrong.
    Chairwoman Eshoo. Thank you very, very much, again, not 
only for the wisdom that you have shared with us this morning 
but your service to our country over so many years. And major, 
major contributions. I think today has been so enlightening. 
And you can see from both sides of the aisle the burning 
interest in this.
    I think at the end of the day, on a bipartisan basis, each 
one of us understands what an enormous stake we have in this, 
what a solemn responsibility exists not only with the House 
Intelligence Committee, but the power that must be protected in 
the Congress in order to exercise, as you referred to, the 
wisdom and what that can bring about throughout the system. 
Because, at the end of the day, having responsibility for 
national security is the top responsibility for Members of 
Congress. And this committee and the work that it does with the 
Intelligence Community, where so many, really hundreds of 
thousands of individuals, work every day to protect our 
country, we have the responsibility to make this stronger and 
better.
    We know that some things have gone off the tracks. I look 
forward to more hearings. And we would like to ask you, Mr. 
Schwarz, as we did the others, that you be on standby--not the 
type of standby you just described during the Kennedy 
administration, but on standby to assist us in this all-
important work as we take this examination on, and hopefully 
from this subcommittee produce a product that the rest of our 
colleagues will find worthy and the Congress will find worthy 
if we so choose to make the changes that are necessary.
    Mr. Schwarz. I was really honored to be here and happy to 
help.
    Chairwoman Eshoo. You honored us with your presence. I 
would like to thank the staffs from the both sides of the 
aisle; the Minority staff for the work that they did to help 
prepare their members for today and bringing Mr. Munson from 
Michigan. I think it was a big day for him. As he said, a real 
honor. I think he learned something as he listened to our 
discussion of the National Security Act.
    I think on that note, too, that I hope that some of us will 
reach out to members of the Michigan delegation on a bipartisan 
basis to see how we may be able to assist them; that 
jurisdiction of where prisons are to be sited does not rest 
with this committee, but that doesn't mean that that 
jurisdiction should stop us from reaching out and being 
helpful. I will certainly do that.
    And to our wonderful staff, exceptional staff on the 
Majority side, especially Mieke, who has done so much to put 
this together, thank you.
    With that, the committee is adjourned. Thank you.
    [Whereupon, at 1:04 p.m., the subcommittee was adjourned.]
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