[House Report 109-382]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-382

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

 
       DIRECTING THE ATTORNEY GENERAL TO SUBMIT TO THE HOUSE OF 
REPRESENTATIVES ALL DOCUMENTS IN THE POSSESSION OF THE ATTORNEY GENERAL 
     RELATING TO WARRANTLESS ELECTRONIC SURVEILLANCE OF TELEPHONE 
 CONVERSATIONS AND ELECTRONIC COMMUNICATIONS OF PERSONS IN THE UNITED 
            STATES CONDUCTED BY THE NATIONAL SECURITY AGENCY

                                _______
                                

   March 2, 2006.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                             ADVERSE REPORT

                             together with

                            DISSENTING VIEWS

                       [To accompany H. Res. 643]

  The Committee on the Judiciary, to whom was referred the 
resolution (H. Res. 643) directing the Attorney General to 
submit to the House of Representatives all documents in the 
possession of the Attorney General relating to warrantless 
electronic surveillance of telephone conversations and 
electronic communications of persons in the United States 
conducted by the National Security Agency, having considered 
the same, report unfavorably thereon without amendment and 
recommend that the resolution not be agreed to.

                          PURPOSE AND SUMMARY

    House Resolution 643, introduced by Representative John 
Conyers (D-MI) on December 22, 2005, directs the Attorney 
General to transmit to the House of Representatives, not later 
than 14 days after the date of adoption of this resolution, all 
documents in the possession of the Attorney General relating to 
warrantless electronic surveillance of telephone conversations 
and electronic communications of persons in the United States 
conducted by the National Security Agency (other than such 
warrantless electronic surveillance authorized to be conducted 
under section 102(a) of the Foreign Intelligence Surveillance 
Act of 1978), subject to necessary redactions or requirements 
for handling classified documents, including any and all 
opinions regarding warrantless electronic surveillance of 
telephone conversations and electronic communications of 
persons in the United States.

                               BACKGROUND

    House Resolution 643 is a resolution of inquiry. Under the 
rules and precedents of the House of Representatives, a 
resolution of inquiry allows the House to request information 
from the President of the United States or to direct the head 
of one of the executive departments to provide such 
information. More specifically, according to Deschler's 
Precedents, it is a ``simple resolution making a direct request 
or demand of the President or the head of an executive 
department to furnish the House of Representatives with 
specific factual information in the possession of the executive 
branch. The practice is nearly as old as the Republic, and is 
based on principles of comity between the executive and 
legislative branches rather than on any specific provision of 
the Constitution that a Federal court may be called upon to 
enforce.'' \1\
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    \1\ 7 Deschler's Precedents of the House of Representatives, ch. 
24, Sec. 8.
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    A resolution of inquiry is privileged and thus may be 
considered at any time after it is properly reported or 
discharged from the committee to which it is referred.\2\ 
Clause 7 of Rule XIII of the Rules of the House of 
Representatives provides that if the committee to which the 
resolution is referred does not act on the resolution within 14 
legislative days, a privileged motion to discharge that 
committee accorded privileged consideration on the House floor. 
In calculating the days available for committee consideration, 
the day of introduction and the day of discharge are not 
counted.\3\
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    \2\ 7 Deschler's Precedents of the House of Representatives, ch. 
24, Sec. 8.
    \3\ William Holmes Brown, House Practice: A Guide to the Rules, 
Precedents and Procedures of the House 819 (2003).
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    A committee has a number of choices in disposing of a 
resolution of inquiry. It may vote on the resolution without 
amendment, or it may amend it. It may report the resolution 
favorably, adversely, or with no recommendation. A committee 
that adversely reports a resolution of inquiry does not 
necessarily oppose the resolution under consideration. In the 
past, resolutions of inquiry have frequently been reported 
adversely for various reasons. Two common ones are that an 
administration is in substantial compliance with the request 
made by the resolution or that there is an ongoing competing 
investigation. There is also past precedent for a resolution of 
inquiry to be adversely reported because the nature of the 
information requested was highly sensitive.\4\ Upon its 
introduction on December 22, 2005, H. Res. 643 was referred to 
the Committee on the Judiciary. On February 15, 2006 H. Res. 
643 was ordered reported adversely by the Committee, which was 
within the 14 legislative day period.
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    \4\ H.R. Rep. No. 1079, 92nd Cong., 2nd Sess., (1972).
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    House Resolution 643 directs the Attorney General to 
transmit to the House of Representatives documents related to 
opinions of the legality of the surveillance and documents that 
are of a highly sensitive nature. Furthermore, Congress has 
received and continues to receive information responsive to the 
request for information contained in the resolution.

The war on terror

    Osama Bin Laden, the head of the terrorist organization al-
Qaeda, declared war on the United States in 1996. America 
ignored that declaration until the morning of September 11, 
2001, when members of the terrorist organization attacked the 
United States by crashing four hijacked civilian airliners into 
the World Trade Center, the Pentagon, and a Pennsylvania field, 
killing over 3,000 people and injuring over 2,000. In response 
to this act of war by a terrorist organization--rather than a 
nation state--Congress passed the Authorization for Use of 
Military Force (AUMF) on September 14, 2001, which the 
President signed into law on September 18, 2001.\5\
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    \5\ Pub. L. No. 107-40.
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The leak of the highly classified Terrorist Surveillance Program (TSP)

    On December 16, 2005, the New York Times reported that 
President Bush ordered the National Security Agency (NSA) to 
conduct warrantless wiretaps on calls placed or received in the 
United States, to or from a foreign country. One of the New 
York Times reporters who broke the story, James Risen, also 
included an account of the NSA program in a book already 
submitted for publication. When explaining the decision to 
delay publication of the story for nearly a year, New York 
Times executive Bill Keller stated after its publication that: 
``[I]n the course of subsequent reporting we satisfied 
ourselves that we could write about this program--withholding a 
number of technical details--in a way that would not expose any 
intelligence-gathering methods or capabilities that are not 
already on the public record.'' The date of publication 
coincided with thedate upon which the Senate voted on a motion 
to end debate on H.R. 3199, the ``USA PATRIOT Improvement and 
Reauthorization Act of 2005.'' The New York Times article has 
subsequently spurned a debate as to whether the President went beyond 
his Executive powers when he authorized the NSA Terrorist Surveillance 
Program (TSP).

Pending criminal investigation into the unauthorized disclosure 
        investigation of the Terrorist Surveillance Program

    On December 30, 2005, the Justice Department opened a 
criminal investigation into the unauthorized disclosure of the 
existence of this highly classified program. MSNBC.com reported 
that, ``White House spokesman Trent Duffy said Justice 
undertook the action on its own, and the president was informed 
of it on Friday. 'The leaking of classified information is a 
serious issue. The fact is that al-Qaeda's playbook is not 
printed on Page One and when America's is, it has serious 
ramifications,' Duffy told reporters in Crawford, Texas, where 
Bush was spending the holidays.'' \6\ Several additional 
reports confirm the existence of an ongoing criminal 
investigation into this matter. \7\
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    \6\ Justice Dept. to probe leak of spy program, the Associated 
Press, Dec. 30, 2005, available at http://msnbc.msn.com/id/10651154/
from/RL.1/.
    \7\ David Johnston, Officials interviews in widening inquiry into 
eavesdropping article, N.Y. Times, February 13, 2006. Dan Eggen, 
Eavesdropping Inquiry Begins Officials Question if Secret Material 
Leaked Illegally, the Washington Post, Dec. 31, 2005.
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Documents and information pertaining to TSP already presented to 
        Congress and to the public

    H. Res. 643 requests internal documents that are related to 
a highly sensitive national security program. The following 
summary highlights efforts by the Department of Justice and the 
Administration to provide information about TSP to Congress and 
the public. These efforts include providing documents, 
conducting classified briefings, and presenting hearing 
testimony relating to these issues.
            (1) December 17, 2005 radio address by the President \8\
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    \8\ Radio Address of the President to the Nation, Dec. 17, 2005, 
http://www.whitehouse.gov/news/releases/2005/12/20051217.html (last 
visited February 2, 2006)
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    The day following the publication of the New York Times 
story, the President gave a radio address and acknowledged the 
existence of the program. He stated: ``To fight the war on 
terror, I am using authority vested in me by Congress, 
including the Joint Authorization for Use of Military Force, 
which passed overwhelmingly in the first week after September 
the 11th. I'm also using constitutional authority vested in me 
as Commander-in-Chief.'' \9\ The President stated that the TSP 
began ``[i]n the weeks following the terrorist attacks on our 
nation,'' when ``[he] authorized the National Security Agency, 
consistent with U.S. law and the Constitution, to intercept the 
international communications of people with known links to al-
Qaeda and related terrorist organizations.'' \10\
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    \9\ Id.
    \10\ Id.
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    The President explained that these intercepts were related 
to the war on terrorism and that ``[b]efore we intercept these 
communications, the government must have information that 
establishes a clear link to these terrorist networks.'' He also 
explained that the program was a ``highly classified program'' 
and ``crucial to our national security.'' \11\
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    \11\ Id.
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    He reminded the public that as the ``9/11 Commission 
pointed out, it was clear that terrorists inside the United 
States were communicating with terrorists abroad before the 
September the 11th attacks, and the Commission criticized our 
nation's inability to uncover links between terrorists here at 
home and terrorists abroad. Two of the terrorist hijackers who 
flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al 
Mihdhar, communicated while they were in the United States to 
other members of al-Qaeda who were overseas. But we didn't know 
they were here, until it was too late.'' \12\
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    \12\ Id.
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    The President stated that ``[t]he authorization [he] gave 
the National Security Agency after September the 11th helped 
address that problem in a way that is fully consistent with 
[his] constitutional responsibilities and authorities.'' He 
stated that ``the activities [he] authorized are reviewed 
approximately every 45 days. Each review is based on a fresh 
intelligence assessment of terrorist threats to the continuity 
of our government and the threat of catastrophic damage to our 
homeland. During each assessment, previous activities under the 
authorization are reviewed. The review includes approval by our 
nation's top legal officials, including the Attorney General 
and the Counsel to the President. [He has] reauthorized this 
program more than 30 times since the September the 11th 
attacks, and [he] intend[s] to do so for as long as our nation 
faces a continuing threat from al-Qaeda and related groups.'' 
\13\
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    \13\ Id.
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    The President explained that a review process of the NSA's 
activities exists that includes thorough review by the Justice 
Department and NSA's top legal officials, including NSA's 
general counsel and inspector general. He also pointed out that 
the leadership and the Intelligence Committee chairs and 
ranking members ``have been briefed more than a dozen times on 
this authorization and the activities conducted under it.'' 
\14\
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    \14\ Id.
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    The President concluded that ``[t]he American people expect 
[him] to do everything in [his] power under our laws and 
Constitution to protect them and their civil liberties.'' He 
promised that that ``is exactly what [he] will continue to do, 
so long as [he's] the President of the United States.'' \15\
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    \15\ Id.
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            (2) December 18, 2005 broadcast television interview of the 
                    Vice President of the United States
    On December 18, 2005, the Vice President discussed the TSP, 
and other issues in a network television interview. The Vice 
President explained the legal authority of the program and 
stated that it was ``consistent with the President's 
constitutional authority as Commander-in-Chief. It's consistent 
with the resolution that passed by the Congress after 9/11. And 
it has been reviewed repeatedly by the Justice Department. . . 
. '' \16\
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    \16\ Interview by ABC News with Richard Cheney, Vice President, 
United States (December 18, 2005), available at http://
www.whitehouse.gov/news/releases/2005/12/20051218-4.html.
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            (3) December 19, 2005 press briefing by Attorney General 
                    Alberto Gonzales and General Michael Hayden, 
                    Principal Deputy Director for National Intelligence
    On December 19, 2005, the White House held a press briefing 
with Attorney General Alberto Gonzales and General Hayden, the 
Principal Deputy Director for National Intelligence, to brief 
the press and the public on the legal issues surrounding the 
authorization of the TSP. At the briefing, the Attorney General 
and General Hayden explained the legal bases of the program and 
provided details on unclassified aspects of the program. The 
Attorney General emphasized that the targeted phone calls were 
not domestic but rather ``intercepts of contents of 
communications where one of the--one party to the communication 
is outside the United States.'' He went on to state:

          [W]e also believe the President has the inherent 
        authority under the Constitution, as Commander-in-
        Chief, to engage in this kind of activity. Signals 
        intelligence has been a fundamental aspect of waging 
        war since the Civil War, where we intercepted 
        telegraphs, obviously, during the world war, as we 
        intercepted telegrams in and out of the United States. 
        Signals intelligence is very important for the United 
        States government to know what the enemy is doing, to 
        know what the enemy is about to do. It is a fundamental 
        incident of war, as Justice O'Connor talked about in 
        the Hamdi decision. We believe that--and those two 
        authorities exist to allow, permit the United States 
        government to engage in this kind of surveillance.\17\
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    \17\ Alberto Gonzales, U.S. Attorney General, NSA Terrorist 
Surveillance Program, Press Briefing before the White House Press Corp 
(Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/
2005/12/20051219-1.html.

    General Hayden added that the program ``is less intrusive 
[than FISA]. It deals only with international calls. It is 
generally for far shorter periods of time. And it is not 
designed to collect reams of intelligence, but to detect and 
warn and prevent [future] attacks.'' \18\
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    \18\ General Michael Hayden, U.S. Principal Deputy Director for 
National Intelligence, NSA Terrorist Surveillance Program, Press 
Briefing before the White House Press Corp (Dec. 19, 2005), available 
at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
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            (4) December 22, 2005 Department of Justice letter to the 
                    chairmen and ranking members of the House and 
                    Senate Intelligence Committees
    The Department of Justice sent a letter to the Chairmen and 
Ranking Members of the House and Senate Committees on 
Intelligence on December 22, 2005, to provide ``an additional 
brief summary of the legal authority supporting the NSA 
activities described by the President.'' \19\ In summary, the 
letter states that ``[u]nder Article II of the Constitution, 
including in his capacity as Commander-in-Chief, the President 
has the responsibility to protect the Nation from further 
attacks, and the Constitution gives him all necessary authority 
to fulfill that duty.'' \20\ In the letter, the Attorney 
General further states that ``this constitutional authority 
includes authority to order warrantless foreign intelligence 
surveillance within the United States, as all Federal appellate 
courts, including at least four circuits to have addressed the 
issue, have concluded.'' \21\ The Attorney General also 
emphasized that the TSP is consistent with the Foreign 
Intelligence Surveillance Act because Congress provided 
authority in the Authorization of the Use of Military Force 
(Pub. L. No. 107-40) that ``the President has the authority 
under the Constitution to take action to deter and prevent acts 
of international terrorism against the United States.'' \22\
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    \19\ Letter from William A. Moschella, U.S. Assistant Attorney 
General, Department of Justice, to Chairmen Pete Hoekstra and Pat 
Roberts, Ranking Member Jane Harman and Vice Chairman John D. 
Rockefeller IV, House and Senate Intelligence Committees, available at 
http://www.epic.org/privacy/terrorism/fisa/nsaletter122205.pdf.
    \20\ Id.
    \21\ Id.
    \22\ Id.
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            (5) January 11, 2006, Presidential discussion of the global 
                    war on terror at the Kentucky International 
                    Convention Center, Louisville, Kentucky
    On January 11, 2006, the President participated in a 
discussion on the Global War on Terror at the Kentucky 
International Convention Center in Louisville, Kentucky at 
which he provided additional legal justification for the 
establishment of the TSP.\23\
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    \23\ A transcript of these remarks can be found at http://
www.whitehouse.gov/news/releases/2006/01/20060111-7.html.
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            (6) January 19, 2006 Department of Justice white paper on 
                    legal authorities supporting the activities of the 
                    National Security Agency described by the President
    On January 19, 2006, the Department of Justice sent a 42-
page legal analysis explaining the ``legal authorities 
supporting the activities of the National Security Agency 
described by the President.'' Addressed to Senate Majority 
Leader Frist and signed by Attorney General Alberto Gonzales, 
the cover letter stated:

          As I have previously explained, these NSA activities 
        are lawful in all respects. They represent a vital 
        effort by the President to ensure that we have in place 
        an early warning system to detect and prevent another 
        catastrophic terrorist attack on America. In the 
        ongoing armed conflict with al-Qaeda and its allies, 
        the President has the primary duty under the 
        Constitution to protect the American people. The 
        Constitution gives the President the full authority 
        necessary to carry out that the solemn duty, and he has 
        made clear that he will use all authority available to 
        him, consistent with the law, to protect the Nation. 
        The President's authority to approve these NSA 
        activities is confirmed and supplemented by Congress in 
        the Authorization for Use of Military Force (AUMF), 
        enacted on September 18, 2001. As discussed in depth in 
        the attached paper, the President's use of his 
        constitutional authority, as supplemented by statute in 
        the AUMF, is consistent with the Foreign Intelligence 
        Surveillance Act and is also fully protective of the 
        civil liberties guaranteed by the Fourth Amendment.\24\
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    \24\ Letter from Alberto Gonzales, U.S. Attorney General, 
Department of Justice, to Senator Bill Frist, Majority Leader, U.S. 
Senate (January 19, 2006), available at http://
permanent.access.gpo.gov/lps66493/
White%20Paper%20on%20NSA%20Legal%20Authorities.pdf.
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            (7) January 23, 2006 press conference by former NSA 
                    Director General Hayden
    On January 23, 2006, General Hayden held a press conference 
in which he provided unclassified details concerning the TSP. 
He emphasized that the TSP only intercepted suspected enemy 
electronic signals when there was ``reason to believe that one 
or both communicants are affiliated with al-Qaeda.'' \25\
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    \25\ General Michael Hayden, U.S. Principal Deputy Director for 
National Intelligence, What American Intelligence and Especially the 
NSA Have Been Doing to Defend the Nation, Remarks before the National 
Press Club (January 23, 2006), available at http://www.dni.gov/
release_letter_012306.html.
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    In explaining what NSA is not doing, General Hayden 
discussed the volume of misinformation in the public record 
concerning the NSA and stressed that the NSA is acutely aware 
of the balance between security and civil liberties. He stated 
that:

        the great urban legend out there then was something 
        called ``Echelon,'' and the false accusation that NSA 
        was using its capabilities to advance American 
        corporate interests: signals intelligence for General 
        Motors, or something like that.
          You know, with these kinds of charges, the turf back 
        then feels a bit familiar now. How could we prove a 
        negative, that we weren't doing certain things, without 
        revealing the appropriate things we were doing that 
        kept America safe? You see, NSA had--NSA has--an 
        existential problem. In order to protect American lives 
        and liberties, it has to be two things: powerful in its 
        capabilities and secretive in its methods. And we exist 
        in a political culture that distrusts two things most 
        of all: power and secrecy.
          Modern communications didn't make this any easier. 
        Gone were the days when signals of interest--that's 
        what NSA calls the things that they want to copy--gone 
        were the days when signals of interest went along some 
        dedicated microwave link between Strategic Rocket 
        Force's headquarters in Moscow and some ICBM in western 
        Siberia.
          By the late '90s, what NSA calls targeted 
        communications--things like al-Qaeda communications--
        coexisted out there in a great global web with your 
        phone calls and my e-mails. NSA needed the power to 
        pick out the ones, and the discipline to leave the 
        others alone. So, this question of security and liberty 
        wasn't a new one for us in September of 2001. We've 
        always had this question: How do we balance the 
        legitimate need for foreign intelligence with our 
        responsibility to protect individual privacy rights? 
        It's a question drilled into every employee of NSA from 
        day one, and it shapes every decision about how NSA 
        operates.
          September 11th didn't change that.\26\
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    \26\ Id.
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            (8) January 24, 2006 remarks by Attorney General Gonzales 
                    at the Georgetown University Law Center concerning 
                    the legal basis of the TSP
    On January 24, 2006, the Attorney General publicly outlined 
the Administration's view of its legal authority to conduct 
wartime electronic surveillance:

          Some contend that even if the President has 
        constitutional authority to engage in the surveillance 
        of our enemy in a time of war, that authority has been 
        constrained by Congress with the passage in 1978 of the 
        Foreign Intelligence Surveillance Act. Generally, FISA 
        requires the government to obtain an order from a 
        special FISA court before conducting electronic 
        surveillance. It is clear from the legislative history 
        of FISA that there were concerns among Members of 
        Congress about the constitutionality of FISA itself.
          For purposes of this discussion, because I cannot 
        discuss operational details, I'm going to assume here 
        that intercepts of al-Qaeda communications under the 
        terrorist surveillance program fall within the 
        definition of ``electronic surveillance'' in FISA.
          The FISA Court of Review, the special court of 
        appeals charged with hearing appeals of decisions by 
        the FISA court, stated in 2002 that, quote, ``[w]e take 
        for granted that the President does have that 
        [inherent] authority'' and, ``assuming that is so, FISA 
        could not encroach on the President's constitutional 
        power.'' We do not have to decide whether, when we are 
        at war and there is a vital need for the terrorist 
        surveillance program, FISA unconstitutionally 
        encroaches--or places an unconstitutional constraint 
        upon--the President's Article II powers. We can 
avoidthat tough question because Congress gave the President the Force 
Resolution, and that statute removes any possible tension between what 
Congress said in 1978 in FISA and the President's constitutional 
authority today.
          Let me explain by focusing on certain aspects of FISA 
        that have attracted a lot of attention and generated a 
        lot of confusion in the last few weeks.
          First, FISA, of course, allows Congress to respond to 
        new threats through separate legislation. FISA bars 
        persons from intentionally ``engag[ing] . . . in 
        electronic surveillance under color of law except as 
        authorized by statute.'' For the reasons I have already 
        discussed, the Force Resolution provides the relevant 
        statutory authorization for the terrorist surveillance 
        program. Hamdi makes it clear that the broad language 
        in the Resolution can satisfy a requirement for 
        specific statutory authorization set forth in another 
        law.
          Hamdi involved a statutory prohibition on all 
        detention of U.S. citizens except as authorized 
        ``pursuant to an Act of Congress.'' Even though the 
        detention of a U.S. citizen involves a deprivation of 
        liberty, and even though the Force Resolution says 
        nothing on its face about detention of U.S. citizens, a 
        majority of the members of the Court nevertheless 
        concluded that the Resolution satisfied the statutory 
        requirement. The same is true, I submit, for the 
        prohibition on warrantless electronic surveillance in 
        FISA.
          You may have heard about the provision of FISA that 
        allows the President to conduct warrantless 
        surveillance for 15 days following a declaration of 
        war. That provision shows that Congress knew that 
        warrantless surveillance would be essential in wartime. 
        But no one could reasonably suggest that all such 
        critical military surveillance in a time of war would 
        end after only 15 days.
          Instead, the legislative history of this provision 
        makes it clear that Congress elected NOT TO DECIDE how 
        surveillance might need to be conducted in the event of 
        a particular armed conflict. Congress expected that it 
        would revisit the issue in light of events and likely 
        would enact a special authorization during that 15-day 
        period. That is exactly what happened three days after 
        the attacks of 9/11, when Congress passed the Force 
        Resolution, permitting the President to exercise ``all 
        necessary and appropriate'' incidents of military 
        force.
          Thus, it is simply not the case that Congress in 1978 
        anticipated all the ways that the President might need 
        to act in times of armed conflict to protect the United 
        States. FISA, by its own terms, was not intended to be 
        the last word on these critical issues.
          Second, some people have argued that, by their terms, 
        Title III and FISA are the ``exclusive means'' for 
        conducting electronic surveillance. It is true that the 
        law says that Title III and FISA are ``the exclusive 
        means by which electronic surveillance . . . may be 
        conducted.'' But, as I have said before, FISA itself 
        says elsewhere that the government cannot engage in 
        electronic surveillance ``except as authorized by 
        statute.'' It is noteworthy that, FISA did not say 
        ``the government cannot engage in electronic 
        surveillance `except as authorized by FISA and Title 
        III.' '' No, it said, except as authorized by statute--
        any statute. And, in this case, that other statute is 
        the Force Resolution.
          Even if some might think that's not the only way to 
        read the statute, in accordance with long recognized 
        canons of construction, FISA must be interpreted in 
        harmony with the Force Resolution to allow the 
        President, as Commander in Chief during time of armed 
        conflict, to take the actions necessary to protect the 
        country from another catastrophic attack. So long as 
        such an interpretation is ``fairly possible,'' the 
        Supreme Court has made clear that it must be adopted, 
        in order to avoid the serious constitutional issues 
        that would otherwise be raised.
          Third, I keep hearing, ``Why not FISA? Why didn't the 
        President get orders from the FISA court approving 
        these NSA intercepts of al-Qaeda communications?''
          We have to remember that we're talking about a 
        wartime foreign intelligence program. It is an ``early 
        warning system'' with only one purpose: To detect and 
        prevent the next attack on the United States from 
        foreign agents hiding in our midst. It is imperative 
        for national security that we can detect RELIABLY, 
        IMMEDIATELY, and WITHOUT DELAY whenever communications 
        associated with al-Qaeda enter or leave the United 
        States. That may be the only way to alert us to the 
        presence of an al-Qaeda agent in our country and to the 
        existence of an unfolding plot.
          Consistent with the wartime intelligence nature of 
        this program, the optimal way to achieve the necessary 
        speed and agility is to leave the decisions about 
        particular intercepts to the judgment of professional 
        intelligence officers, based on the best available 
        intelligence information. They can make that call 
        quickly. If, however, those same intelligence officers 
        had to navigate through the FISA process for each of 
        these intercepts, that would necessarily introduce a 
        significant factor of DELAY, and there would be 
        critical holes in our early warning system.
          Some have pointed to the provision in FISA that 
        allows for so-called ``emergency authorizations'' of 
        surveillance for 72 hours without a court order. 
        There's a serious misconception about these emergency 
        authorizations. People should know that we do not 
        approve emergency authorizations without knowing that 
        we will receive court approval within 72 hours. FISA 
        requires the Attorney General to determine IN ADVANCE 
        that a FISA application for that particular intercept 
        will be fully supported and will be approved by the 
        court before an emergency authorization may be granted. 
        That review process can take precious time.
          Thus, to initiate surveillance under a FISA emergency 
        authorization, it is notenough to rely on the best 
judgment of our intelligence officers alone. Those intelligence 
officers would have to get the sign-off of lawyers at the NSA that all 
provisions of FISA have been satisfied, then lawyers in the Department 
of Justice would have to be similarly satisfied, and finally as 
Attorney General, I would have to be satisfied that the search meets 
the requirements of FISA. And we would have to be prepared to follow up 
with a full FISA application within the 72 hours.
          A typical FISA application involves a substantial 
        process in its own right: the work of several lawyers; 
        the preparation of a legal brief and supporting 
        declarations; the approval of a Cabinet-level officer; 
        a certification from the National Security Adviser, the 
        Director of the FBI, or another designated Senate-
        confirmed officer; and, finally, of course, the 
        approval of an Article III judge.
          We all agree that there should be appropriate checks 
        and balances on our branches of government. The FISA 
        process makes perfect sense in almost all cases of 
        foreign intelligence monitoring in the United States. 
        Although technology has changed dramatically since FISA 
        was enacted, FISA remains a vital tool in the War on 
        Terror, and one that we are using to its fullest and 
        will continue to use against al-Qaeda and other foreign 
        threats. But as the President has explained, the 
        terrorist surveillance program operated by the NSA 
        requires the maximum in speed and agility, since even a 
        very short delay may make the difference between 
        success and failure in preventing the next attack. And 
        we cannot afford to fail.\27\
---------------------------------------------------------------------------
    \27\ Alberto Gonzales, U.S. Attorney General, Department of 
Justice, Remarks at the Georgetown University Law Center (January 24, 
2006), available at http://www.usdoj.gov/ag/speeches/2006/
ag_speech_0601241.html.
---------------------------------------------------------------------------
            (9) January 25, 2006 Presidential visit and speech at the 
                    National Security Agency
    In a speech delivered during a visit to the National 
Security Agency on January 25, 2006, the President stated `` . 
. . I authorized a terrorist surveillance program to detect and 
intercept al-Qaeda communications involving someone here in the 
United States. This is a targeted program to intercept 
communications in which intelligence professionals have reason 
to believe that at least one person is a member or agent of al-
Qaeda or a related terrorist organization. The program applies 
only to international communications. In other words, one end 
of the communication must be outside the United States.'' \28\
---------------------------------------------------------------------------
    \28\ George W. Bush, President of the United States, Remarks at the 
National Security Agency (January 25, 2006), available at http://
www.whitehouse.gov/news/releases/2006/01/20060125-1.html.
---------------------------------------------------------------------------
    He went on to explain:

          We know that two of the hijackers who struck the 
        Pentagon were inside the United States communicating 
        with al-Qaeda operatives overseas. But we didn't 
        realize they were here plotting the attack until it was 
        too late.
          Here's what General Mike Hayden said--he was the 
        former director here at NSA. He's now the Deputy 
        Director of the National Intelligence--Deputy Director 
        of National Intelligence--and here's what he said 
        earlier this week: ``Had this program been in effect 
        prior to 9/11, it is my professional judgment that we 
        would have detected some of the 9/11 al-Qaeda 
        operatives in the United States, and we would have 
        identified them as such.''
          The 9/11 Commission made clear, in this era of new 
        dangers we must be able to connect the dots before the 
        terrorists strike so we can stop new attacks. And this 
        NSA program is doing just that. General Hayden has 
        confirmed that America has gained information from this 
        program that would not otherwise have been available. 
        This information has helped prevent attacks and save 
        American lives. This terrorist surveillance program 
        includes multiple safeguards to protect civil 
        liberties, and it is fully consistent with our nation's 
        laws and Constitution. Federal courts have consistently 
        ruled that a President has authority under the 
        Constitution to conduct foreign intelligence 
        surveillance against our enemies.\29\
---------------------------------------------------------------------------
    \29\ Id.
---------------------------------------------------------------------------
            (10) January 26, 2006 Department of Justice briefing to the 
                    Senate Judiciary Committee
    The Department of Justice provided the Senate Judiciary 
Committee a briefing prior to the scheduled February 6, 2006 
hearing.
            (11) February 1, 2006 Department of Justice briefing to the 
                    Senate Select Committee on Intelligence
    On February 1, 2006, the Administration provided a 
classified briefing to the Senate Select Committee on 
Intelligence.
            (12) February 3, 2006 Department of Justice response to 
                    January 24, 2006 letter from Senate Judiciary 
                    Chairman Arlen Specter
    On January 24, 2006, Senator Specter, Chairman of the 
Senate Committee on the Judiciary, sent a letter to the 
Department of Justice that contained 15 questions in advance of 
the panel's February 6, 2006, hearing requesting the Department 
to explain the legal authority for the program. The Attorney 
General responded in writing on February 3, 2006, answering 
each question.
            (13) February 3, 2006 Department of Justice response to 
                    January 24, 2006 letter from Senate Judiciary 
                    Democrat members
    On January 27, 2006, Democratic Members of the Senate 
Judiciary Committee sent a letter to the Department of Justice 
regarding the TSP. On February 3, 2006, the Department of 
Justice sent a letter notifying the Senators that the 
Department had received the letter and was in the process of 
responding.
            (14) February 3, 2006 Department of Justice response to 
                    January 30, 2006 letter from Senator Feinstein
    On January 30, 2006, Senator Feinstein sent the Department 
of Justice a letter regarding the TSP. On February 3, 2006, the 
Department of Justice sent a letter notifying the Senator that 
the Department was working on a response.
            (15) February 3, 2006 Department of Justice response to 
                    January 30, 2006 letter from Senator Feingold
    On January 30, 2006, Senator Feingold sent a letter to the 
Department of Justice about the TSP. On February 3, 2006, the 
Department of Justice responded to the Senator's letter 
notifying the Senator that the Department was working on a 
response.
            (16) February 3, 2006 Department of Justice response to 
                    January 31, 2006 letter from Senator DeWine
    On January 31, 2006, Senator DeWine sent a letter 
questioning the Department of Justice about the TSP. On 
February 3, 2006, the Department of Justice responded to 
Senator DeWine notifying the Senator that the Department was 
working on a response.
            (17) February 6, 2006 Senate Judiciary hearing: ``Wartime 
                    Executive Power and the NSA's Surveillance''
    The Attorney General testified before the Senate Judiciary 
Committee on February 6, 2006 from 9:30 a.m. to shortly after 
5:30 p.m. The Attorney General provided detailed information 
pertaining to the legal authority and scope of the program.
            (18) February 8, 2006 hearing before the House Permanent 
                    Select Committee on Intelligence
    On February 8, 2006, Attorney General Gonzales and General 
Hayden testified in a closed classified hearing before the 
House Permanent Select Committee on Intelligence answering 
questions about the TSP.
            (19) February 8, 2006 Departments of Justice and Defense 
                    briefing to the House Armed Services Committee
    On February 8, 2006, the Departments of Justice and Defense 
presented a classified briefing to the House Committee on Armed 
Services regarding the National Security Agency Terrorism 
Surveillance Program.
            (20) February 9, 2006 hearing before the Senate Select 
                    Committee on Intelligence
    On February 9, 2006, Attorney General Gonzales and former 
NSA Director General Hayden testified in a closed classified 
hearing before the Senate Select Committee on Intelligence 
answering questions about the National Security Agency 
Terrorism Surveillance Program.
            (21) February 9, 2006 Department of Justice response to the 
                    February 8, 2006 letter from House Judiciary 
                    Committee Chairman F. James Sensenbrenner, Jr.
    On February 8, 2006, Judiciary Committee Chairman 
Sensenbrenner, Jr., sent a 14-page letter to the Department of 
Justice with 51 questions regarding the legal authority, the 
review process, and scope of the TSP. On February 9, 2006, the 
Department of Justice sent a letter notifying the Chairman that 
the Department had received the letter and was in the process 
of answering the questions.
            (22) February 13, 2006 Department of Justice briefing to 
                    the House Committees on Judiciary and 
                    Appropriations
    On February 13, 2006, the Department of Justice presented a 
briefing to the House Committees on Judiciary and 
Appropriations on the legal authority of the program.

D. Sensitive documents requested

    The United States is engaged in a war against terrorism and 
this resolution calls for integral information, much of which 
is of a highly sensitive and classified nature.
    As the Weapons of Mass Destruction Commission explained as 
it discussed the threats from other countries: ``. . . for 
several reasons, penetrating these targets has also become more 
difficult than ever before. For example, authorized and 
unauthorized disclosures of U.S. sources and methods have 
significantly impaired the effectiveness of our collection 
systems. Put simply, our adversaries have learned much about 
what we can see and hear, and have predictably taken steps to 
thwart our efforts.'' \30\
---------------------------------------------------------------------------
    \30\ WMD Commission p. 354 citing National Intelligence Council 
(NIC), Title Classified (NIE 98-04) (1998-99).
---------------------------------------------------------------------------
    Echoing this concern, on a February 12, 2006 television 
appearance, Representative Hoekstra, Chairman of the House 
Intelligence Committee stated: ``Does anyone really believe 
that after 50 days of having the program on the front page of 
our newspapers, across talk shows across America, that al-Qaeda 
has not changed the way that it communicates?'' \31\
---------------------------------------------------------------------------
    \31\ Meet the Press Interview with Pete Hoekstra, House of 
Representatives Committee on Intelligence Chairman (Feb. 12, 2006), 
available at http://www.msnbc.msn.com/id/1127264/.
---------------------------------------------------------------------------

                               CONCLUSION

    The Committee is reporting this resolution adversely for 
several reasons. First, as the Committee on Armed Services 
concluded in H.R. Rep. No. 92-1003, because of the highly 
sensitive nature of the information requested, the public 
revelation of such information would not be compatible with 
national security interests. The United States is at war 
against a diffuse and shifting international terrorist threat 
and the information requested is directly related to a 
classified program aimed at preventing future terrorist 
attacks. The information requested concerns signals 
intelligence and communications surveillance upon al-Qaeda. The 
disclosure of this information could disrupt the efforts of our 
military and Intelligence Community to prevent another attack 
upon the United States. While this resolution contains language 
intended to protect classified information, past disclosures 
have led to leaks of valuable information. In addition, the 
Committee is concerned that even unclassified briefings have 
aided the country's enemies as the Administration has been 
required to explain in an accessible public forum strategies 
and operational details of operations aimed at preventing 
terrorist attacks. Furthermore, theAdministration has already 
demonstrated a willingness to provide information sought by the 
resolution. Therefore, the Committee is following the precedents 
established in H.R. Rep. Nos. 109-230, 108-658, and 92-1003, which 
concluded that the sensitive nature of the information requested was 
reason for adversely reporting a resolution of inquiry.
    Second, H. Res. 643 has the potential to jeopardize the 
ongoing criminal investigation of the leak. Due to the 
classified nature of the NSA program, the Department of Justice 
has opened a criminal investigation of the leak of the program 
to the New York Times. A competing investigation is a common 
reason that committees have opposed resolutions of inquiry in 
the past. This Committee has previously reported resolutions of 
inquiry adversely for this very reason. On July 29, 2005, this 
Committee adversely reported House Resolution 420, in part, due 
to an ongoing grand jury investigation.\32\ On September 7, 
2004, the Committee adversely reported House Resolution 700, as 
this resolution of inquiry requested documents related to 
several ongoing investigations, among other things.\33\ On 
February 27, 2004, this Committee adversely reported House 
Resolution 499,\34\ a resolution of inquiry, due to an ongoing 
grand jury investigation and, on July 17, 2003, adversely 
reported House Resolution 287,\35\ a resolution of inquiry, due 
to an ongoing competing investigation of the Inspector General 
of the Department of Justice. The Committee has also reported a 
resolution of inquiry adversely to avoid jeopardizing a 
competing investigation into the Abscam case.\36\
---------------------------------------------------------------------------
    \32\ H.R. Rept. 109-230, 109th Cong., 1st Sess. (2005)
    \33\ H.R. Rept. 108-658, 108th Cong., 2nd Sess. (2004)
    \34\ H.R. Rept. 108-413, Part 3, 108th Cong., 2nd Sess.(2004)
    \35\ H.R. Rept. No. 108-215, 108th Cong., 1st Sess. (2004)
    \36\ H.R. Rept. No. 96-778, 96th Cong., 2nd Sess. (1980).
---------------------------------------------------------------------------
    Finally, the Administration has substantially complied with 
information requested thereby diminishing the need to risk the 
disclosure of national security classified information. 
Congress has and continues to receive responsive information 
pertinent to the information requested in H. Res. 643. Prior to 
the New York Times article, the Administration had provided 
classified briefings to Members of Congress throughout the 
course of the program's implementation. After the leak of the 
program, the Department of Justice sent a white paper to 
Congress detailing the legal authority for the President to 
establish the program. Furthermore, the Administration has 
provided testimony in open and closed hearings to Congress 
explaining the legal authority for the program, as well as 
classified and unclassified briefings regarding the program, 
its scope, and the Administration's authority. In addition, the 
Administration has held public forums and press conferences to 
inform the public about the TSP. Finally, the Administration 
has answered and is still answering several letters sent by 
various Members of Congress. These documents, speeches, 
testimony, and press conferences have detailed the 
Administration's legal reasoning for the President to authorize 
the TSP.
    Accordingly, because the resolution could jeopardize 
national security and an ongoing criminal investigation; and 
because the Administration has substantially complied with the 
intent of the resolution, the Committee reported H. Res. 643 
adversely.

                                HEARINGS

    No hearings were held in the Committee on the Judiciary on 
H. Res. 643.

                        COMMITTEE CONSIDERATION

    On February 15, 2006, the Committee met in open session and 
adversely reported the resolution H. Res. 643 by a roll call 
vote of 21 to 16, a quorum being present.

                         VOTE OF THE COMMITTEE

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee sets forth the 
following roll call votes that occurred during the Committee's 
consideration of H. Res. 643:
    Final Passage. The motion to report the resolution, H. Res. 
643, adversely was agreed to by a rollcall vote of 21 to 16.

------------------------------------------------------------------------
                                                        Ayes      Nays
------------------------------------------------------------------------
Mr. Hyde............................................        X
Mr. Coble...........................................        X
Mr. Smith...........................................        X
Mr. Gallegly........................................        X
Mr. Goodlatte.......................................        X
Mr. Chabot..........................................        X
Mr. Lungren.........................................        X
Mr. Jenkins.........................................        X
Mr. Cannon..........................................        X
Mr. Bachus
Mr. Inglis..........................................        X
Mr. Hostettler......................................  ........        X
Mr. Green...........................................        X
Mr. Keller..........................................        X
Mr. Issa............................................        X
Mr. Flake...........................................        X
Mr. Pence...........................................        X
Mr. Forbes..........................................        X
Mr. King............................................        X
Mr. Feeney..........................................        X
Mr. Franks..........................................        X
Mr. Gohmert.........................................        X

Mr. Conyers.........................................  ........        X
Mr. Berman..........................................  ........        X
Mr. Boucher
Mr. Nadler..........................................  ........        X
Mr. Scott...........................................  ........        X
Mr. Watt............................................  ........        X
Ms. Lofgren.........................................  ........        X
Ms. Jackson Lee.....................................  ........        X
Ms. Waters..........................................  ........        X
Mr. Meehan..........................................  ........        X
Mr. Delahunt........................................  ........        X
Mr. Wexler..........................................  ........        X
Mr. Weiner..........................................  ........        X
Mr. Schiff..........................................  ........        X
Ms. Sanchez.........................................  ........        X
Mr. Van Hollen......................................  ........        X
Mrs. Wasserman Schultz
Mr. Sensenbrenner, Chairman.........................        X
                                                     -------------------
      Total.........................................       21        16
------------------------------------------------------------------------

                      COMMITTEE OVERSIGHT FINDINGS

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               NEW BUDGET AUTHORITY AND TAX EXPENDITURES

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

                        COMMITTEE COST ESTIMATE

    In compliance with clause 3(d)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee estimates the 
costs of implementing the resolution would be minimal. The 
Congressional Budget Office did not provide a cost estimate for 
the resolution.

                    PERFORMANCE GOALS AND OBJECTIVES

    H. Res. 643 does not authorize funding. Therefore, clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives is inapplicable.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the rule 
does not apply because H. Res. 643 is not a bill or joint 
resolution that may be enacted into law.

               SECTION-BY-SECTION ANALYSIS AND DISCUSSION

    The Resolution directs that the Attorney General transmit 
to the House of Representatives not later than 14 days after 
the date of the adoption of this resolution all documents in 
the possession of the Attorney General, relating to warrantless 
electronic surveillance of telephone conversations and 
electronic communications of persons in the United States 
conducted by the National Security Agency (other than such 
warrantless electronic surveillance authorized to be conducted 
under section 102(a) of the Foreign Intelligence Surveillance 
Act of 1978), subject to necessary redactions or requirements 
for handling classified documents, including any and all 
opinions regarding warrantless electronic surveillance of 
telephone conversations and electronic communications of 
persons in the United States.

      CHANGES IN EXISTING LAW MADE BY THE RESOLUTION, AS REPORTED

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that H. Res. 
643 makes no changes to existing law.

                           Markup Transcript



                            BUSINESS MEETING

                      WEDNESDAY, FEBRUARY 16, 2006

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr., (Chairman of the Committee) 
presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    Pursuant to notice, I now call up H. Res. 643, directing 
the Attorney General to submit to the House of Representatives 
all documents in possession of the Attorney General relating to 
warrantless electronic surveillance of telephone conversations 
and electronic communications of persons in the United States 
conducted by the National Security Agency for purposes of 
markup and move that it be reported adversely to the House. 
Without objection, the resolution will be considered as read 
and open for amendment at any point, and the chair recognizes 
himself for 5 minutes to speak on the resolution.
    H. Res. 643 is a resolution of inquiry relating to the 
President's legal authority to establish an NSA terrorist 
surveillance program. This program, the operational details of 
which remain classified, permits the NSA to monitor 
communications of suspected terrorists overseas with persons in 
the United States. Under Clause 7 of Rule 13 of the House 
Rules, the Committee must report this resolution within 14 
legislative days after its introduction or a privileged motion 
to discharge the Committee from consideration would be in order 
on the House floor.
    On December 22, Ranking Member Conyers introduced the 
resolution, as he states in his press release, to allow 
Congress to obtain the necessary information so that we can 
learn precisely what the legal basis was for this great 
expansion of executive power.
    Since the New York Times publicly disclosed this highly 
classified program, the Administration has and continues to 
provide information about its legality. The Administration has 
conducted press conferences, public briefings, Congressional 
briefings, both classified and unclassified, sent officials to 
testify at Congressional hearings, and submitted responses to 
several letters by Members of Congress explaining the legal 
authority for establishing the program.
    Whether or not Members agree with the Administration's 
responses to the inquiries, this does not change the fact that 
the Administration has substantially complied with the stated 
purpose of this resolution of inquiry. Furthermore, there is 
broad recognition that this program is highly classified in 
nature and disclosure of its operational details could harm our 
nation's efforts in the war on terror.
    This Committee has adversely reported previous resolutions 
of inquiry because the information they requested could harm 
national security. Compounding the problem, due to the 
classified nature of this program, the unauthorized leak of its 
existence is now under criminal investigation. There is also 
precedent that supports the adverse reporting of a resolution 
that could interfere with a competing investigation. This 
resolution requests all the documents related to the terrorist 
surveillance program and that these are the same documents that 
may be required in the criminal investigation.
    Accordingly, I move that the Committee report the 
resolution adversely. As with previous resolutions, this one 
should be reported adversely because the Administration has 
already substantially complied with the request, the 
information requested is related to a highly classified 
program, and there is an ongoing criminal investigation on the 
leak of the existence of this program. I urge the Members to 
support the motion to report adversely and recognize the 
gentleman from Michigan, Mr. Conyers.
    [The resolution, H. Res. 643, follows:]

    
    
    Mr. Conyers. Thank you, Mr. Chairman and colleagues. I am 
urging the Members here today to carefully consider the 
resolution of inquiry which has been cosponsored by 44 Members 
of Congress, including every single Democrat on this Committee.
    Let me make it clear that we are requesting materials only. 
This is a resolution not calling for a hearing, not calling for 
subpoenaing anyone. It is merely a request for documents that--
it is a strategy by which the Chairman has used many, many 
times. I have a list of such incidents in which that has gone 
on.
    We are asking the Attorney General to submit all documents 
in his possession relating to warrantless electronic 
surveillance of telephone conversations and electronic 
communications of persons in the United States conducted by the 
National Security Agency subject to necessary redactions or 
requirements for handling classified documents. Every Member of 
this Committee is cleared to handle secret material, but we are 
not asking that the Attorney General do anything but send to us 
materials that would give us additional information. We have 
requested hearings. We have asked for information. And we would 
like now to have this officially voted.
    The request would include any and all opinions regarding 
warrantless electronic surveillance of telephone conversations 
and electronic communications of persons in this country as 
well as other records which would allow us to better understand 
the size, scope, and nature of the program.
    The second thing I would like to explain is why we are 
asking for the information. We are not asking for this 
information in a conclusory fashion. We are not saying that the 
President broke the law or has acted contrary to the 
Constitution. In fact, this resolution could produce documents 
that rebut those allegations.
    What is clear is that assuming what has been reported is 
true, many constitutional and legal experts, some Democrats, 
some Republicans, have indicated that this secret domestic 
surveillance program raises substantial questions about whether 
the program is legal and whether it is constitutional, and the 
people that I am counting on are people, many of whom have been 
before this Committee: Lawrence Tribe, William Sessions, former 
Director of the FBI under three Presidents, William Alstyne, a 
law professor of distinction, and Bruce Fein, a Deputy 
Associate Attorney General in the Reagan administration, 
Jonathan Turley, who was here in the Clinton impeachment.
    So the question before us is not whether you agree or 
disagree with these individuals, but whether you think their 
judgments are sufficient, serious reasons to further warrant 
inquiry by this Committee. I am trying to get us off the dime 
in the House of Representatives.
    I would also add that the Congressional Research Service 
has weighed in on this and that the Department of Justice, even 
though it had a briefing on Monday, indicated that many of the 
legal questions are close calls.
    The third point I would like to make is if you agree that 
this warrants further inquiry, the question then is what kind 
of action should this Committee take? Now, I commend the 
Chairman----
    Chairman Sensenbrenner. The gentleman's time has expired, 
and without objection, he will be given two additional minutes.
    Mr. Conyers. I thank you, Mr. Chairman. I commend the 
Chairman for sending a letter to the Attorney General asking 
questions about the program. Many of us have questions of our 
own to ask, and I hope that the Chairman will forward them to 
the Attorney General and ask that they be considered, as well.
    Questions alone, however, are not sufficient. They can be 
danced around, ignored. We all know what can happen. This 
Committee has always taken the very practical approach that the 
best way to find out what people were thinking at the time they 
made decisions is to get the documents they wrote at the time 
reflecting those thoughts. In fact, on a number of matters, 
including everything from biometric passports, judicial 
sentencing practices, the Civil Rights Commission, Legal 
Services Commission, the Chairman's first step has been to 
obtain and preserve relevant documents.
    The Washington Post has written that the executive branch 
treats the Congress as an annoying impediment to the real work 
of Government. It provides information to Congress grudgingly, 
if at all. It handles letters from lawmakers as if they are 
junk mail, routinely tossing them aside without responding.
    It is time that the House of Representatives, starting with 
the Committee that controls constitutional questions, begins to 
serve as a genuine check and balance on the Administration. It 
is not partisan. To me, it is a constitutional issue and I urge 
my colleagues on both sides of the aisle to help us before it 
is too late, and I thank you.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Are there amendments?
    Mr. Lungren. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Lungren.
    Mr. Lungren. Mr. Chairman, I ask to strike the requisite 
number of words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Lungren. Mr. Chairman, as one who has worked on this 
Committee with Members of both sides on our oversight of the 
PATRIOT Act and the FISA courts, I rise in support of the 
Chairman's motion.
    When the FISA law was enacted during the Carter 
administration, the Attorney General at that time made it very 
clear that the enactment of the FISA court did not in any way 
impinge on the President's inherent constitutional authority as 
Commander in Chief in the area of gathering information with 
respect to foreign enemies, and that is what we are talking 
about here. Someone may argue that perhaps it would have been a 
better business practice for the President to have come to the 
Congress in larger numbers, that is, talked with more Members 
than he did, but that is not the constitutional question.
    I never question the motivation of Members bringing actions 
to the floor, but I must say, when I observed a hearing by 
Members of the other side recently on this very subject, it 
appears to me that the conclusions have already been reached. 
As a matter of fact, I even heard Members of the other side 
specifically advising people in the Justice Department and 
other branches of the executive branch not to follow the 
President's orders and informing them that if they did so, they 
were breaking the law. Such conclusionary statements not only 
confuse the issue, but I think put people at peril who are 
following lawful orders of the President.
    It seems to me rather straightforward to say that if the 
President has the authority as Commander-in-Chief and with 
respect to the grant of authority to use force against those 
who perpetrated 9/11, as well as individuals, organizations, or 
countries that support them, and was told to use force for the 
purpose of preventing such attacks, that force includes the 
Administration of lethal force. And it seems to me that if the 
President has the authority to command the death of those who 
are terrorists, he certainly has the right to listen to them 
before he has troops attempt to ferret them out and kill them. 
The fancy way of saying that is gathering intelligence of a 
foreign enemy is a legal incident to the power to conduct war.
    The President made a decision to do this and to inform the 
Congress by way of talking to the leadership in the House and 
the Senate and the leadership on the House Intelligence 
Committee and the Senate Intelligence Committee. That was a 
decision of the President. Others may think he should have 
talked to more.
    But I would just reflect on my previous service here and my 
current service here and the time in between. We have not 
exactly covered ourselves with glory in terms of punishing 
Members of the House or the Senate who leak, particularly when 
they serve on the Intelligence Committee. And a President of 
the United States given the authority under the Constitution 
and pursuant to the authority given to him by the Congress to 
direct force against those who perpetrated 9/11 and to prevent 
future such attacks, that President has to weigh very, very 
carefully when you have a program like this as to whether or 
not he increases the chances that leaks might take place and 
destroy such a program. That is not an illegal act by the 
President. That is an act by a President under his authority as 
Commander in Chief.
    Whether you like it or not, the American people elected 
this President fully knowing he was running for Presidency and 
would be Commander in Chief. And there is no evidence 
whatsoever that this President has done other than what he has 
said, that is, attempted to eavesdrop on communications between 
those people identified as al-Qaeda operatives or affiliates 
with individuals in the United States or individuals in the 
United States with those other kinds of people. There is no 
evidence whatsoever that the President has directed this 
against political enemies.
    If you will recall the words of Justice White in dealing 
with this question a number of years ago----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Lungren. I ask unanimous consent that I get two 
additional minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Lungren. Justice White suggested that in this area, the 
President has primary responsibility and suggested that when he 
exercised it in this fashion, he should maintain personal 
oversight and engage the active participation of the Attorney 
General. Every bit of evidence we have is the President has 
done that. The Attorney General has actively looked over this. 
They have attorneys reviewing this on an ongoing basis. The 
President has reviewed it personally every 30 days, all 
consistent with the suggestions made by Justice White when he 
reviewed this kind of question before the Supreme Court.
    The President went further and briefed Members of Congress, 
and I have heard Members of Congress say, well, how could that 
be fair? We didn't have our staff with us. If the problem is 
that our leadership in the House and the Senate, or our 
leadership on the Intelligence Committees don't feel that they 
are capable of asking the proper questions, of understanding 
this, then we ought to get different leadership. That is the 
burden of leadership. And if people believe that that is too 
much to do as the Ranking Members and the chairmen of the 
Intelligence Committees, let us get other people. This idea 
that we blame our inactivity on the fact that we don't have 
staff present is absolutely silly.
    There is no evidence whatsoever that at these briefings 
anybody objected while they were at these briefings to what was 
going on.
    And so if you look at the totality of evidence that has 
been presented, the information that has been presented, the 
setting in which this has taken place, it is apparent that the 
Administration has answered the question----
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Lungren. And I would suggest that we support the 
Chairman's motion.
    Chairman Sensenbrenner. Are there amendments?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, I fully support this resolution 
of inquiry. Last December 16, the New York Times first reported 
that the National Security Agency was conducting warrantless 
wiretapping on American soil at the secret request of the 
President. The program turned the giant ear of the Federal 
Government inwards to listen to domestic communications. 
Despite the Administration's claim that only members of al-
Qaeda, individuals affiliated with it, or persons working with 
terrorists are being monitored, news reports suggested perhaps 
thousands of innocent Americans are being spied upon.
    Warrantless domestic surveillance is illegal. There is a 
court precisely empowered to review applications for domestic 
surveillance to gather foreign intelligence. The Foreign 
Intelligence Surveillance Act, FISA, requires judicial approval 
of all electronic surveillance in this country and 
investigations to prevent, quote, ``international terrorism or 
sabotage'' or to, quote, ``monitor foreign spies.''
    When President Bush decided to bypass the FISA court and 
ordered the domestic surveillance without court approval, he 
broke the law. The law makes it a crime for government 
officials to, ``engage in electronic surveillance under the 
color of law except as authorized by statute.'' FISA makes this 
crime punishable, ``by a fine of not more than $10,000 or 
imprisonment for not more than 5 years, or both.''
    The President took an oath to preserve, protect, and defend 
the Constitution of the United States and to take care that the 
laws be faithfully executed. When the President acts outside 
the limits set by the Constitution and contrary to the law, he 
engages in a criminal conspiracy against the United States, 
against the separation of powers, one of the chief pillars 
supporting our liberties, and against those liberties.
    This is a direct challenge to us. It is our responsibility 
as Members of the House of Representatives to protect American 
liberties by investigating the President's usurpations of power 
and to determine whether they constitute high crimes and 
misdemeanors in the constitutional sense. It would be a 
terrible dereliction of duty if we were to disregard this 
responsibility.
    The legal arguments the Administration makes in defense of 
this program are frivolous. FISA specifies that it is, quote, 
``the exclusive means by which electronic surveillance may be 
conducted except as authorized by a statute,'' close quote. The 
President argues that the authorization for the use of force, 
AUMF resolution, is the statute that does that, that contains 
that authorization. He relies on Hamdi v. Rumsfeld to find that 
his warrantless domestic surveillance program is constitutional 
because it is a fundamental incident to the use of force 
allowed by the statute.
    But there is no limit to this baseless interpretation. 
Under this interpretation of the resolution, the President 
could suspend the writ of habeas corpus, torture detainees, put 
people in concentration camps, authorize breaking and entering 
without a warrant, or for that matter, authorize murder in the 
streets of the capital if he thinks doing so would be helpful 
in defeating terrorism.
    In Hamdi, Justice O'Connor, to the contrary, points out 
that, quote, ``a state of war is not a blank check for the 
President when it comes to the rights of the nation's 
citizens,'' close quote.
    We are all familiar with the basic rule of statutory 
construction that a specific law cannot be set aside by a 
general law, but only by a law that specifically and explicitly 
repeals or modifies it. Congress has clearly spoken on the 
question of domestic electronic surveillance in FISA and this 
specific and carefully-drawn statute cannot be superceded by an 
assertive interpretation of the AUMF which contains not a 
single page, not even a hint that Congress intended to repeal 
FISA or to repeal its exclusivity. In fact, there is 
legislative history that Congress refused to expand FISA to 
give the President this kind of authority. The argument that 
the AUMF resolution permits warrantless domestic spying is, 
therefore, frivolous.
    The President also claims that he enjoys inherent 
constitutional authority regardless of FISA to conduct 
warrantless domestic surveillance because we are at war. He 
claims that as long as he is acting to protect national 
security, his inherent authority trumps the law. Devoid of any 
limiting principle, this claim asserts the monarchial doctrine 
that with respect to war powers, Congress can place no limits 
on unlimited executive power. This logic could be applied to 
any action, unlawful surveillance today, perhaps murder 
tomorrow. President Bush's monarchial abuses, if left 
unchecked, will, as Justice Robert Jackson said, lie around 
like a loaded gun and be utilized by any future incumbent who 
claims a need.
    Finally, the question arises as to why the President 
believes it necessary to proceed without getting warrants from 
the FISA court. If the Administration is telling us the truth 
and they are wiretapping only conversations between people in 
this country and suspected al-Qaeda agents abroad, there would 
be no difficulty whatever in promptly getting FISA warrants 
whenever necessary.
    Logic therefore compels the conclusion that, as press 
reports suggest, the Administration is lying to us and, in 
fact, is going well beyond what they have stated into conduct--
--
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. I ask for unanimous consent for two additional 
minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Nadler. Thank you. Logic, therefore, compels the 
conclusion that, as press reports suggest, the Administration 
is lying to us and, in fact, is going well beyond what they 
have stated into conduct for which they could not get FISA 
warrants.
    It may be that if we are told the truth, we would amend 
FISA to permit what they are doing. Or it may be that if we are 
told the truth, we would find that my conclusions are mistaken. 
Or it may be that if we were told the truth, because of the 
shocking and dangerous nature of what would be revealed, we 
would never amend the law to permit such conduct to continue.
    We must, Mr. Chairman, know the facts. We must see the 
documents to know what the story is, and that, Mr. Chairman, is 
why I support this resolution of inquiry.
    I thank you. I yield back.
    Chairman Sensenbrenner. Are there amendments?
    Mr. Inglis. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from South Carolina, 
Mr. Inglis.
    Mr. Inglis. Thank you, Mr. Chairman. I am going to vote in 
support of the Chairman's motion because I think that 
particularly with the letter that the Chairman sent here 
recently on February 8, it corrects the over-broad nature of 
the underlying resolution of inquiry.
    Mr. Chairman, I think the letter of February 8 is an 
excellent letter. It really does ask the right questions and I 
congratulate the staff and the Chairman on asking those 
questions and putting a reasonable date for a response. March 2 
is a fairly quick response. It is appropriate that it is that 
quick. If we get the answers to all of these questions, of 
course, that will be after an awful lot of work on the 
Administration's part, but I think that it will lead us to a 
better understanding of the program.
    I would take the----
    Mr. Conyers. Would the gentleman yield on that point just a 
moment?
    Mr. Inglis. Certainly.
    Mr. Conyers. All I want to do is, what about the other two 
dozen Members of Judiciary who have questions as well as the 
Chairman?
    Mr. Inglis. Reclaiming my time, I think it would be 
appropriate to work in a cooperative way to find an opportunity 
to ask those additional questions, and I would say particularly 
that the last question in the Chairman's letter is the one that 
I would call attention to the Administration for a special 
response, and that is the Chairman asked what amendments to 
FISA might be needed, and I think that it would be helpful for 
the Administration to consider the addition of some judicial 
oversight at some point in this process, perhaps with that 45-
day trigger or maybe even moving the trigger up faster than 45 
days and having judicial oversight after the fact if it can't 
be done before the wiretaps are authorized.
    I understand the technological issues with having a judge 
oversee the issuance of the wiretaps before they are conducted, 
but perhaps if they were reviewed very quickly afterwards to 
determine whether the wiretap was appropriate or not, it might 
help to guard the program from excesses.
    Mr. Delahunt. Would the gentleman yield?
    Mr. Inglis. I would be happy to yield to the gentleman.
    Mr. Delahunt. I appreciate the tone and the constructive 
nature of your observation, but I would also point out that 
there is a provision that allows--the so-called emergency 
exigent circumstances provision--that allows exactly what the 
gentleman suggests, that up to 72 hours afterward, after the 
surveillance itself is conducted, the Attorney General can 
certify as to the emergency and therefore go and present to the 
FISA court.
    That is what is perplexing to me and to others, that I have 
yet to hear a case that has any substance to it or any data to 
indicate that FISA as it currently exists does not meet the 
needs of a program that if it is just discretely focused on al-
Qaeda and so-called affiliated organizations, what is the 
problem? That is my concern, or that is one of my multiple 
concerns, and I thank the gentleman for yielding.
    Mr. Inglis. I am happy to yield, and reclaiming my time, I 
would just conclude by saying, Mr. Chairman, again, I want to 
associate myself with the letter. I think it is an excellent 
letter and I look forward to the responses. I hope the 
Administration will be forthcoming, as I am sure they will be, 
in answering the questions, particularly that last one about 
suggestions, and perhaps also hear what Mr. Delahunt just had 
to say. Perhaps there isn't a need for a change in the 
underlying law. On the other hand, maybe this program could be 
improved by either being closer to the underlying law, or if 
the underlying law needs to be changed, let us look at that.
    I yield back.
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee, is recognized for 5 minutes.
    Ms. Jackson Lee. I thank you, Mr. Chairman. One would 
applaud the tone that is in this hearing room this morning. I 
wouldn't doubt the sincerity of the Chairman or of my 
colleagues on the other side of the aisle.
    But I would argue that the importance of H. Res. 643 may be 
more important than any one of us could eloquently articulate. 
From my perspective, there is nothing more blasphemous than the 
imploding of the Constitution, and particularly the sanctity of 
the views and values of the American people that they live in a 
democracy.
    And I believe the reason for H. Res. 643 is to answer my 
good friend, that leadership is not Congress. Congress is a 
myriad of individuals who have responsibilities to almost a 
million Americans. And the Judiciary Committee as a whole has 
an enormous responsibility not only to the vastness of America, 
but to our colleagues as the protectors and arbiters and 
interpreters of the Constitution because we are the Judiciary 
Committee. I think it falls upon us sometimes dastardly deeds. 
I did not want to sit here some years ago dealing with the 
articles of impeachment, but it was this majority that thought 
it was warranted on behalf of this Judiciary Committee, our 
duty to find the truth and our duty, of course, to the American 
people.
    And so I would argue that this resolution and one that will 
follow couldn't be more important in this Committee's 
protective role of the Constitution and the American people.
    Mr. Chairman, might I offer to you the delegate vote of the 
American Bar Association. I ask unanimous consent that it may 
be submitted into the record.
    Chairman Sensenbrenner. Objection.
    Ms. Jackson Lee. But I would suggest to you then from it, 
and I would hope that at some point it might be admitted, but I 
would say to you that a bipartisan group of lawyers have found 
that the Administration did not comply with FISA and urged them 
overwhelmingly to comply, and they have said in words, we join 
with you in the conviction that terrorism must be fought with 
the utmost vigor, but we also believe we must ensure that this 
fight is conducted in a manner reflective of the highest 
American values. The bipartisan ABA task force that proposed 
the policy included a former FBI Director and a former General 
Counsel of the CIA.
    The Washington Times noted that though Attorney General 
Gonzales made a good effort, his defense was anemic.
    And so I think it is important to note that the President 
has secretly authorized the National Security Agency to 
eavesdrop on Americans and others inside the United States to 
allegedly search for evidence of terrorist activities, but he 
is being condemned by vast voices across America who are not 
partisan. It is noted that he did this without the court-
approved warrants ordinarily required for domestic spying, and 
I believe that my colleague, Mr. Delahunt, made it very clear 
in his dialogue that, in fact, after the fact, after the 
action, you still have the ability to go into the court and get 
an after-the-fact warrant. How in the word can the hands of the 
Attorney General or the Administration be tied in light of this 
flexibility?
    Due to the highly classified nature of this program, the 
details have not been revealed. Officials familiar with it, 
however, say that NSA has eavesdropped without warrants on up 
to 500 people in the United States at any given time. Why can't 
the Members of Congress in classified briefings know who those 
individuals are? Some reports indicate that the total number of 
people monitored domestically have reached into the thousands, 
while others indicated that significantly more people have been 
spied upon than others.
    I would argue that, really, the American people are owed 
the understanding, not that we relate the names as Members of 
Congress receiving it in a classified manner, but whether these 
individuals were involved in anything other than the acts that 
might perpetrate a terrorist act. Martin Luther King was owed 
the understanding of why he was being spied on, and the 
misrepresentations that he was engaged in communist activities, 
we have been through this before. It is imperative that we 
follow through on this resolution.
    I oppose--I do not oppose the monitoring of telephone calls 
and e-mail messages when it is necessary for national security 
reasons, Mr. Chairman. I am, however, opposed to engaging in 
such monitoring without a warrant because we have a Foreign 
Intelligence Surveillance Court that was established for the 
sole purpose of issuing such warrants when they are justified 
and it has worked, 19,000 warrants issued and maybe five 
denied.
    The day after----
    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Ms. Jackson Lee. I ask unanimous consent for 2 minutes.
    Chairman Sensenbrenner. Without objection.
    Ms. Jackson Lee. The day after this monitoring became 
public, President Bush admitted that he had authorized it and 
claimed that he had the authority to do so. According to the 
President, the order was fully consistent with his 
constitutional responsibilities and authorities, and I 
respectfully disagree with the President and so does the ABA.
    The law establishes well-defined procedures for 
eavesdropping on U.S. persons and President Bush failed to 
follow these procedures. The starting point for understanding 
the surveillance law is the fourth amendment to the 
Constitution, which states clearly that American privacy may 
not be invaded without a warrant based on probable cause. Don't 
fool the American people. Don't cause them to be fearful of 
their own Constitution.
    The United States Supreme Court has held that this 
protection applies to Government eavesdropping. Consequently, 
all electronic surveillance by the Government in the United 
States is illegal unless it falls under one of a small number 
of precise exceptions specifically carved out in the law. After 
9/11, Congress approved an authorization to use military force 
against those responsible for the attacks in order to authorize 
the President to conduct foreign military operations, such as 
the invasion of Afghanistan, but that resolution contains no, 
no language changing, overriding, or repealing any laws by 
Congress, particularly FISA. And FISA contains explicit 
language describing the President's powers during time of war 
and provides that the President through the Attorney General 
may authorize electronic surveillance without a court order 
under this title to acquire foreign intelligence information 
for a period not to exceed 15 days following a declaration of 
war by the Congress.
    Therefore, the President did not operate under authority. 
This resolution will give us the basis, the facts, and the 
ability to go forward and secure the American people in the 
justified manner within the Constitution. And consequently, 
even assuming that the use of force resolution places us on a 
war footing, warrantless surveillance would have been legal for 
only 15 days after the resolution was passed on September 18, 
2001.
    The FISA law takes account of the need for emergency 
surveillance. The need for quick action cannot be used as a 
rationale for going outside the law. FISA allows wiretapping 
without court order in emergency. The court simply must be 
notified within 72 hours. Mr. President, why not? Mr. Attorney 
General, why not? Why not utilize the law as it is? Why not 
show to the world that we are a democracy and a republic and we 
believe in the Bill of Rights and the Constitution and the 
rights of all Americans?
    The Government is aware of this emergency power and has 
used it repeatedly. If President Bush found these provisions 
inadequate----
    Chairman Sensenbrenner. The time of the gentlewoman has 
once again expired.
    Ms. Jackson Lee. --he could have used something else. I ask 
my colleagues to support resolution----
    Chairman Sensenbrenner. Are there amendments? The 
gentlewoman from California, Ms. Lofgren.
    Ms. Lofgren. Thank you, Mr. Chairman. I will be brief since 
I am losing my voice. I would ask unanimous consent to submit 
my full statement for the record.
    Chairman Sensenbrenner. Without objection.
    [The prepared statement of Ms. Lofgren follows:]
 Prepared Statement of the Honorable Zoe Lofgren, a Representative in 
                 Congress from the State of California
    I cosponsored this resolution, and I think we need to do more than 
just consider it today, we need to pass it. But the fact is that simply 
passing this resolution will not satisfy the Judiciary Committee's 
responsibility to conduct true oversight over the reported NSA domestic 
surveillance program and the Justice Department's role in it. We need 
to hold hearings to find out the facts.
    Nearly two months ago Congressman Boucher and I, along with 15 of 
our colleagues on the Judiciary Committee, called upon the Chairman for 
investigation and hearings into the NSA domestic surveillance program 
authorized by the President. We have still not received a response to 
our request. The informal briefing held earlier this week also does 
little to satisfy this Committee's need for answers. The two days 
notice given on a Saturday for this briefing ensured that almost no 
Members would be able to actually attend and ask the Justice Department 
critical questions about this program. We need to hold investigative 
hearings, and today's markup of this resolution does nothing to answer 
our request for hearings, now almost two months old.
    If Americans are conspiring with al Qaeda agents, I want our 
intelligence and law enforcement agencies to know about it--with 
warrants obtained under the FISA Court. If existing laws like FISA are 
insufficient to conduct counter-terror intelligence activities, then 
Congress should have the opportunity to amend those laws within 
recognized processes under the rule of law. That is what is at stake 
here--serious questions about whether or not this program follows the 
law, and serious questions about whether anything in the existing FISA 
law even needs to be changed.
    The Attorney General's testimony in the Senate last week left 
questions about whether this program violates the 4th Amendment. His 
testimony was contradictory and obscure on whether or not a probable 
cause standard was being applied. His testimony also raised serious 
questions about whether information collected unlawfully was then 
secretly or inadvertently used by criminal prosecutors, again 
potentially violating the 4th Amendment. The Attorney General failed to 
provide assurances that physical searches were not being performed 
under this program, and that purely domestic calls were not being 
intercepted. And the Attorney General declined to answer when asked 
what other activities were authorized by the President in reliance 
solely upon his claimed powers as Commander in Chief. All of these are 
serious questions that deserve answers that investigative hearings in 
this Committee could provide.
    The need for hearings in this Committee is further underscored by 
the reluctance of the Executive Branch to investigate this program. 
Nearly two months ago I and 38 of my colleagues wrote to the Inspector 
Generals at the Defense Department and the Justice Department seeking 
investigations into this program. Both of them declined to investigate, 
with the feeblest of excuses.
    The Defense Department's Inspector General told us that he would 
defer to NSA's Inspector General, even though press reports tell us 
NSA's Inspector General is not looking at the legality of the program 
and is not doing any new review of this program. The Justice 
Department's Inspector General told us he lacked jurisdiction because 
the matter involved the Attorney General's provision of legal advice--
even though the issue here is not the Attorney General's credentialing 
as a lawyer but whether or not his official actions comply with the 
law. We also asked GAO to investigate, but GAO told us that it lacked 
the power to investigate if the President designated this as a foreign 
intelligence matter. The bottom line is that we received no responses 
to our request for investigations, apart from refusals to actually 
investigate.
    There is a pattern of a reluctance to investigate emerging here, 
and I do not believe the Judiciary Committee should contribute to that 
pattern. This Committee should finally begin the investigative hearings 
into this program we called for nearly two months ago.

    Ms. Lofgren. I would just add to my written statement that 
we have focused on the rights of individuals in the press about 
this whole issue, but I think there is a broader question for 
the Congress which really has to do with the relationship 
between the executive and legislative branches.
    I think it is important, and I am a cosponsor of this 
resolution. I think this is one way to do it. But if this 
resolution does not pass, and I am aware that these matters are 
often decided on a party line vote, we must take some action 
because it would be a severe mistake for the majority to assume 
that because they are in control of the House and Senate and 
there is a Member of their own party in the White House that 
this is something not worthy of their attention. This really 
goes to the fundamental question of whether the legislative and 
judicial branches will have authority over the actions of the 
executive.
    We don't really even know exactly what has happened in this 
NSA matter. I have written with my colleagues to the Attorney 
General, to the NSA. I am not getting any information back. I 
do think it would be important for this Committee to find out, 
in a classified setting if necessary, exactly what is 
happening, whether it does, in fact, comply or not comply with 
the FISA statute. We don't even know that for sure. And if it 
does not, we need to come to some kind of decision to either 
conform the statute to the activity or have the executive 
conform the activity to the existing statute. We cannot simply 
ignore activity that is beyond the scope of what was envisioned 
by the statute and the judiciary.
    And so I would urge my colleagues on the other side of the 
aisle, if you vote against this today, come up with some 
strategy for us to work together. This is one of those times 
when we ought to be working together for the benefit of the 
very structure of our Government.
    Mr. Lungren. Would the gentlelady yield?
    Ms. Lofgren. I would yield to the gentleman.
    Mr. Lungren. I guess my question would be, is one of your 
underlying premises that if it is outside of FISA, it is 
therefore illegal for the President to act, or do you agree 
with Griffin Bell's testimony before the Congress at the time 
the FISA law was passed that while we passed this law to create 
a structure for these kinds of activities, it does not and 
cannot impinge on the inherent constitutional authority of the 
President in this area?
    Ms. Lofgren. I believe that the--first of all, let me, 
reclaiming my time, note that unless there is somebody on the 
Intelligence Committee who knows more than I do, probably none 
of us really is aware of exactly what this program is. I have 
been trying to find out, and if someone does know, I would like 
to find that out.
    Number two, there are a set of facts that could lead one to 
the conclusion that this activity does comply with FISA. You 
know, I would like to find that because I don't think--the last 
thing the country needs right now is a constitutional crisis.
    Number three, I do think that there are constraints on the 
actions of the executive when there is a specific statute. 
There are things that the Congress cannot constrain the 
President on. The communications I have had to the executive 
branch, I think have been measured because I think we have an 
obligation to find out first what is going on and to reassure 
ourselves for the country that our system of Government is 
really being adhered to, and I don't think a single one of us 
can say that with assuredly here today.
    So I am hopeful, even if we don't adopt this today, that we 
come up with a strategy to ensure not only the Congress, but 
the country and our heirs that we will leave our system of 
Government as strong as we found it, and I yield back the 
balance of my time.
    Chairman Sensenbrenner. Are there amendments? The gentleman 
from Florida, Mr. Wexler.
    Mr. Wexler. Thank you, Mr. Chairman. I will try not to take 
the full 5 minutes. I have listened very respectfully to the 
majority's arguments about the need for aggressive techniques 
to fight terrorism. I have listened to the Administration's 
arguments that in the same light, the President's statements at 
the State of the Union Address were on point. I agree with 
them. I couldn't agree with them more wholeheartedly.
    The American President and our Administration should be 
relentless in pursuing people who are talking to al-Qaeda. We 
should survey them. We should spy upon them. We should do 
whatever is necessary, whatever is required to get the 
information regarding what anybody is doing with al-Qaeda or 
anybody is doing--what anybody is doing that threatens the 
United States.
    That is not the issue, however, that is presented to this 
Committee. What is presented to this Committee is to the extent 
that the President and the Administration has avoided the FISA 
court, whether it be justifiable or not, I would argue not but 
some will argue that it is. What were the reasons for doing so, 
and should then this Congress engage in a debate as to whether 
or not, based on what we found out, we ought to change the law?
    Compiled with this is the assertion that the President 
makes which unfortunately does not comport with the truth, and 
that is that only people dealing with al-Qaeda have been the 
targets of this program. At the hearing that Mr. Conyers held 
on a Friday morning that unfortunately only Democrats were as 
part of, and I would respectfully suggest to my good friends 
and fellow Floridians, Mr. Keller and Mr. Feeney, what we found 
out at that hearing from testimony from a gentleman named Mr. 
Hirsch, who is a part of a group called the Truth Project, 
fellow Floridians, who their alleged crime apparently is that a 
group of grandmothers and some business people and I think 
maybe one former Korean war veteran had the audacity to meet at 
a Quaker church in Florida and talk about peace. As a result of 
these grandmothers meeting and talking about peace, they were 
then listed as a credible threat to the United States of 
America and were subjected to all this spying.
    Now, with all due respect to the President, I specifically 
asked Mr. Hirsch, well, did anybody in your group ever visit 
Afghanistan? Did anybody in your group ever visit Pakistan? Did 
you ever visit Iraq? Did anybody engage in training programs in 
any of those countries? And the testimony on the record was, to 
his knowledge, no one has ever visited those countries. No one 
has ever had anything to do with anybody from those countries. 
No one has certainly ever trained. And from his point of view, 
no one in the group had ever even left the country, except 
maybe the one guy who was a Korean War veteran and had left 
during the Korean War to fight for our country.
    The point of this whole analysis is that if the President 
is simply conducting surveillance on people having to do with 
al-Qaeda or reasonably expected in circumstances dealing with 
al-Qaeda, there wouldn't be one objection on this side of the 
aisle, and I don't think there would be a single objection from 
any American.
    But the point is, the President has gone outside of FISA. 
And whether you agree that it is illegal that he did it or 
disagree, the Congress of the United States and the American 
people have a right to know why the President of the United 
States is conducting surveillance on what appears to be 
ordinary Americans. We have a right to know that information 
and this Congress has then a right and obligation to debate it 
and come up with a sound and just policy that protects the 
Constitution, and this H. Res. 643 is the only legitimate 
mechanism at this point that this Committee has discussed that 
allows us to begin that process and that is why I support it.
    Mr. Lungren. Would the gentleman yield?
    Mr. Wexler. Thank you, Mr. Chairman.
    Mr. Lungren. Would the gentleman yield?
    Mr. Wexler. Sure.
    Mr. Lungren. I just ask this as a hypothetical. Let us 
suppose, and this is a pure hypothetical, that through actions 
conducted in Afghanistan or Iraq with identified al-Qaeda 
operatives, we discover that they have a list of 25 phone 
numbers of people in the United States. At that point in time, 
we don't have probable cause of a court nature to say that 
those people are necessarily identified. Would the gentleman 
say it would be inappropriate to eavesdrop on conversations 
between----
    Chairman Sensenbrenner. The gentleman's time has expired, 
and without objection will be given two additional minutes.
    Mr. Lungren. Would the gentleman suggest it would be 
improper for such a program to allow us to eavesdrop on 
conversations between that al-Qaeda operative and one of these 
individuals, even if that individual, based on everything we 
know--I mean, we don't have any evidence that they're doing 
anything other than that fact. Would that be inappropriate, or 
would the gentleman consider that to be an appropriate 
mechanism of attempting to figure out in the first instance 
whether is intelligence to be gathered between an al-Qaeda 
operative and someone in the United States?
    Mr. Wexler. To respond to the gentleman's inquiry, in my 
view, it would be entirely appropriate to then engage in 
surveillance and spying and whatever information gathering is 
necessary, and based on what I understand the record of the 
FISA court to be in terms of the 13,000-plus warrants of 
surveillance that have been granted, there is no reason to 
believe that the FISA court would not give the President or the 
Administration every power based on the probable cause of the 
scenario you laid out.
    Mr. Lungren. Would the gentleman further yield? If, in 
fact, the numbers that we have are so numerous such that it 
would be impractical to come in each and every instance as an 
individual piece of evidence before the court, would the 
gentleman consider the proposal made by Attorney General Levy 
some time ago which suggested that whatever authority we have 
would allow a court to approve an overall program? His 
suggestion was an overall program as opposed to individual 
wiretaps.
    Mr. Wexler. Well, again in response, at first glance, that 
sounds troubling to me, so what we're basically saying----
    Mr. Lungren. I am talking about----
    Mr. Wexler. --we're not going to apply the Constitution and 
the protections of the Constitution to individuals. We're just 
going to create a program for the whole country and hope that 
people are covered by it? The whole point is to apply the facts 
of each individual circumstance and determine whether there is 
probable cause.
    Mr. Nadler. Would the gentleman yield?
    Mr. Wexler. Of course.
    Mr. Nadler. I would point out to the gentleman from 
California that the Administration says there are no more than 
about 500 of these wiretaps at any time, so you're not talking 
about vast numbers. I would yield back.
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Feeney. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney.
    Mr. Feeney. I would move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Feeney. This Committee has some important oversight 
responsibilities and I take those duties seriously. I think 
every other Member does, as well. But some in the minority have 
focused totally on FISA as though it is the exclusive power the 
President has when it comes to surveillance in international 
terrorist or international war situations.
    In fact, I hope that our friends on the other side have 
read the 51 questions that our Chairman has sent to the 
Attorney General of the United States. These are very serious 
questions. These are exactly the questions that legitimately 
the minority and the majority want to have answered. I think it 
is an appropriate forum.
    The suggestion that FISA is the exclusive power that the 
President of the United States has to protect us by use of 
surveillance during a time of war, I think is foolhardy.
    Mr. Nadler. Would the gentleman yield?
    Mr. Feeney. Not until I am done, Mr. Nadler.
    President Jimmy Carter's Attorney General, shortly after 
the passage of FISA, had this to say about FISA. FISA 
recognizes no inherent power of the President to conduct 
electronic surveillance, and I want to interpolate here to say 
that this does not take away the power of the President under 
the Constitution. So Mr. Griffin Bell's position is that not 
just under FISA powers, but there are preexisting 
constitutional powers that FISA does not affect.
    In addition to that, since Mr. Carter was President, we 
have the passage of the authorization of military force, which 
has additional powers added, so there are at least three 
separate sets of powers that the President has, FISA being just 
one of them, his inherent constitutional powers and the 
authorization to use military force.
    What the Chairman's letter does is to ask the 
Administration with respect to all of the cases that involve 
international or domestic surveillance for terrorism or to 
prosecute the war on terror, under which powers does the 
Administration consider itself proceeding under? I think those 
are the legitimate questions that we need to ask. If we get a 
response to this and are unsatisfied with the response, I think 
individually or collectively, this Committee can pursue the 
issue further.
    But the Chairman has asked on behalf of the United States 
Congress every reasonable question at this point that can be 
asked. I congratulate the Chairman. I think rather than doing 
the grandstanding and fear-mongering out there that we're all 
being spied upon under some inherent Presidential power, we 
ought to wait until we have given 2 weeks now for the President 
of the United States through his Attorney General to respond to 
these very important questions, and again, I want to 
congratulate the Chairman----
    Mr. Nadler. Now will the gentleman yield?
    Mr. Feeney. I will be happy to yield to Mr. Nadler.
    Mr. Nadler. Thank you. The FISA Act--we are confusing three 
things here. No one doubts that the President has inherent 
constitutional power to spy abroad. No one doubts that. The 
FISA Act says that with respect to electronic surveillance in 
the United States or against American persons, that is anybody 
who is physically here, FISA is the exclusive source of 
authority.
    Mr. Feeney. Well, Mr. Nadler, number one, I think that is 
inaccurate, Mr. Nadler, but even if, reclaiming my time, even 
if you are accurate about that, Congress has no ability through 
legislation to restrict the inherent powers of the executive of 
the United States. We don't have the power----
    Mr. Nadler. Would the gentleman yield on that point?
    Mr. Feeney. --said that, which it doesn't, it wouldn't be 
effective.
    Mr. Nadler. Would the gentleman yield on that point?
    Mr. Feeney. I will yield back.
    Mr. Nadler. Thank you. What we are talking about is 
surveillance allegedly directed at someone here who is 
communicating with some alleged terrorist abroad. If it is 
directed at the terrorist abroad and happens to overhear a 
conversation here, nobody has any question about that. We are 
talking about directed at someone in the United States. There, 
I would submit, and I think the case law accurately shows that 
there is no inherent power. And the AUMF, which simply gives 
the President the power to repel or to punish the people who 
attacked us on September 11, cannot by implication repeal a 
specific statute. If we wanted to repeal or set aside that 
specific statute, you have to say so because the statutory 
construction rule that you can never repeal something specific 
or modify it by a general term.
    Mr. Feeney. Well, look, the gentleman may be right, he may 
be wrong about this, but here is the point. The Chairman of 
this Committee on behalf of all of us has asked in 51 very 
specific questions the Administration through the Attorney 
General to answer by what authority is the Administration 
prosecuting the war on terror on this surveillance, and I 
personally am prepared to give the Administration 2 weeks to 
answer----
    Mr. Schiff. Would the gentleman yield?
    Mr. Feeney. Mr. Chairman, I will yield back the balance of 
my time.
    Mr. Schiff. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff.
    Mr. Schiff. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. I would like to respond to some of the 
arguments that have been made by the opposition on this. I 
strongly support the resolution. My gentleman from Florida 
started out by saying he takes his oversight responsibility 
seriously. With all due respect, I don't think this Committee 
has taken its oversight responsibility seriously.
    We have had little or no hearings to oversee the executive 
in this Committee. We have fought bitterly to protect our 
jurisdiction vis-a-vis other Committees of the Congress, but 
when it comes to overseeing the executive, we have, I think, 
been very unequal as a co-equal branch of Government. We are 
now proposing basically interrogatories to the Administration 
rather than calling witnesses before this Committee. Those 
interrogatories don't give individual Members the opportunity 
to ask questions we would like to ask and ask follow-up 
questions we would like to ask.
    In considering the minutiae of hearings that we have had in 
this Committee, the failure to have a hearing on something 
which on its face is one of the most serious issues of 
Presidential power and potential overstep of Presidential power 
is really incomprehensible to me.
    The argument has been made by my colleague from California 
on the other side of the aisle that, well, this practice was 
disclosed to some of the Members of the Congress and maybe it 
would have been a better business practice to disclose it to 
more Members of the Congress. Well, that seems to presuppose 
that if you take a practice which, let's assume for argument, 
is a violation of FISA, is without authority, but you disclose 
it, it no longer is a violation of the law. That, I don't think 
is correct. It doesn't really matter how many Members of 
Congress were disclosed--this program was disclosed to. If it 
violated FISA or title III and the President didn't have the 
constitutional authority inherently, it's still a violation of 
law. That argument doesn't make the problem go away.
    It's also been argued that, well, FISA, according to 
Griffin Bell and others, couldn't limit the President's 
inherent constitutional authority. Well, that's true, but is 
this an area where the President's inherent constitutional 
authority allows the President to act as this program has 
provided? Well, we don't know because we don't know really 
anything about how that program has been used, how broad it's 
been.
    My colleague from California posits, well, what if we had a 
list in Afghanistan of al-Qaeda members trying to call the 
United States? Well, what, my colleague from California, if we 
had a purely domestic call between you and I that was 
wiretapped by the President and the President claimed that FISA 
and title III, title III also couldn't limit the President's 
inherent constitutional authority, that he had some reason to 
believe that you and I were involved in a terrorist act or we 
had a contact with someone or we were leaking classified 
information or who knows what?
    There is no limiting principle to the arguments that you 
make. The only limiting principle really is the vigor with 
which the Congress is willing to do its oversight. That is the 
only real limiting principle. FISA is very clear on its terms. 
The only thing we could do to make it more clear is to pass 
another law that says, when the Congress says exclusive, it 
really means exclusive. But when we say exclusive, it does mean 
exclusive.
    And so the further argument has been made by the 
Administration, well, even the debate about this has been 
harmful to the national security, and this I find the most 
disturbing of all because I think it betrays some of the 
duplicity that's gone on in the whole discussion of the PATRIOT 
bill and FISA and the NSA program. We have debated the PATRIOT 
bill in this Committee for hours and hours. I have supported 
the PATRIOT bill. I've been at odds with many of the people in 
my party supporting different versions of the PATRIOT bill.
    But now I find that the Administration's real position on 
the PATRIOT bill is it doesn't really matter what we do, 
because the Administration can do what it likes regardless of 
the PATRIOT bill and regardless of FISA. And, in fact, in the 
Senate--and this is the question that I don't think is in the 
interrogatories that I would like to ask--in the Senate, when 
one of the Republican Members said to the Administration 
witness, we can change FISA if you find the probable cause 
standard too high, we can change it, and the Administration's 
response, we don't need to change FISA. FISA is working just 
fine, thank you very much.
    The real answer, the truthful answer would have been, 
Senator, we don't need you to change FISA because we don't 
consider ourselves limited by FISA. We're doing what we want 
anyway. That would have been the more candid answer.
    Now, what is this national security argument that we can't 
debate this, we can't amend FISA, we can't have a discussion in 
Congress about FISA because it gives aid and comfort to the 
enemy somehow? Are we so naive to assume that our enemies don't 
think that we eavesdrop on them? It doesn't matter to al-Qaeda 
whether we go to a FISA court or not, but it does matter to the 
United States. It matters to us----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Schiff. I would request an additional 2 minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Schiff. I appreciate the Chairman's fairness on this. 
It does matter to all of us whether we uphold our own 
Constitution, whether we have checks and balances. As my 
colleague from Florida on this side of the aisle pointed out, 
this is not about whether we bug al-Qaeda. We do bug al-Qaeda. 
We will bug al-Qaeda. We should bug al-Qaeda. The question is 
whether we have any checks and balances, whether there's any 
review of who we're eavesdropping on and what the standard is 
that should be applied. Is there anyone that can scrutinize the 
work of the executive?
    I think our system works better, I think our system works 
more efficiently and I think that we protect our own rights 
when we do our job of oversight, and that doesn't mean sending 
a bunch of questions to be answered by a bunch of lawyers in 
the White House. When you send interrogatories, you get lawyers 
sending back answers. It doesn't tend to elucidate, it tends to 
obscure.
    And I wish, given the seriousness of this issue, that I 
wasn't reading headlines like this in the Washington Post: 
``Congressional Probe of NSA Spying is in Doubt, White House 
Sways Some GOP Lawmakers.''
    We are a co-equal branch of Government. It is time that we 
started acting that way.
    Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Florida seek recognition?
    Mr. Keller. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes, and will the gentleman yield briefly?
    Mr. Keller. I will yield.
    Chairman Sensenbrenner. I ask unanimous consent to put in 
the record a list of oversight that this Committee has done on 
the war on terror from October 2001 through November 2005, 
which includes hearings, letters, briefings both classified and 
unclassified. It's pretty comprehensive, and anybody that says 
that there has been no oversight done by this Committee just 
doesn't know what's been going on here. I ask unanimous consent 
to put this in the record and thank the gentleman for yielding.
    [The information of Chairman Sensenbrenner follows:]

    
    
    Mr. Keller. I thank the gentleman. Reclaiming my time, I 
just have three points to make regarding this issue and I am 
just going to try to give as much straight talk as I can on it.
    The first point is we are talking about, as General Hayden 
from the NSA has said, all calls consist of one party outside 
the U.S. and there are reasonable grounds to believe that one 
part is an agent of al-Qaeda or a related terrorist group. What 
that means, as he has given analogy, if someone, for example, 
Bin Laden himself sneaks across our porous Mexican-U.S. border 
into San Diego and he makes a call from San Diego, California 
to Orlando, Florida, there is not authority given to NSA to 
wiretap that without a warrant, and he's said that on national 
TV.
    Second, the issue of constitutional authority versus the 
authority to use military force. I'm not on the Supreme Court, 
obviously, but I'm personally not convinced that we have 
authority under the authorization to use military force, just 
in the interest of straight talk. I think there is a good faith 
argument that the President does have constitutional authority 
under article II, that that authority rises above any law 
passed by Congress. There is a FISA appellate court In re 
Sealed Case where they said, quote, ``We take for granted that 
the President does have that authority, and assuming that this 
is so, FISA could not encroach the President's constitutional 
authority.''
    In fact, four Democratic Presidents have asserted, either 
through themselves or their attorney generals, that they, too, 
believe that they have authority under the Constitution to do 
warrantless searches. Those Presidents or their attorney 
generals are FDR, Truman, Clinton, and Carter.
    Now, if that being the case, it brings me to my third 
point. Why don't we just go before the FISA court 72 hours 
afterwards, as is frequently argued? It's my understanding that 
there are certain exigent circumstances or hot pursuit 
situations that they could not practically go before the FISA 
court for 72 hours, and you then ask, well, why is that, and 
they say, well, to tell you that answer, we would have to tell 
you how the program works and we can't do that. And so that is 
essentially where we are.
    I think the Senate has done oversight hearings. I think 
Chairman Sensenbrenner has sent some very detailed questions 
that must be answered by March 2 that he has posted on the 
Judiciary Committee website for all to see. And I think we 
should give the Administration a good faith opportunity to 
respond to those questions, and that's where----
    Mr. Nadler. Would the gentleman yield for a moment?
    Mr. Keller. I will yield back.
    Mr. Nadler. I would simply point out, firstly, that those 
citations you cite, the In re Sealed Case case and the 
attorneys general, were referring to warrantless wiretaps 
abroad, overseas, not in the United States, and that is the key 
difference. Everyone agrees that the President has inherent 
authority overseas, that is to say, outside the United States.
    Mr. Keller. Well, reclaiming my time, then, I would just 
point out what General--and I'm just taking him at his word--
has testified that in all of these cases where you have a 
warrantless search, there is at least one party overseas.
    Mr. Nadler. Would the gentleman yield again?
    Mr. Keller. I will.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. Could I have unanimous consent to give the 
gentleman two additional minutes?
    Chairman Sensenbrenner. Without objection.
    Mr. Nadler. Thank you. We are talking about, again, 
directing a wiretap surveillance at someone in the United 
States, allegedly talking to someone overseas. If it's directed 
at the person overseas, there's no question. So the fact that 
one person is overseas is not relevant from this point of view.
    But the second thing, I would simply observe that given the 
credibility doubts that many people have about the 
Administration in this respect arising from the fact that it is 
not clear at all why they need the authority to go beyond FISA 
if all they are doing is what they say they're doing, so maybe 
they're doing something else, simply asking for interrogatories 
is not sufficient. That's why we need to see the documents.
    Mr. Keller. Let me reclaim my time and then yield back.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Thank you, Mr. Chairman. First of all, in 
response to one of the things that was just--I move to strike 
the last word. I'm sorry.
    Mr. Chairman, I just want to, in response to one of the 
last things that was said, when the prior Presidents claimed 
that inherent right, they were claiming it in the absence of 
any controlling statute. Since those claims have been made, 
there is now a criminal statute prohibiting exactly what they 
claimed to have and we need to determine whether or not the 
President's claim that he can violate a specific criminal law 
prohibiting what he's saying he can do.
    Now, if the Administration has reasonable wiretaps that 
need to be done, they can be done under FISA now. He can get a 
warrant and do that. In fact, if he's in a hurry, he can get 
the warrant after he's done it. So we are not talking about 
whether or not he can do reasonable wiretaps. We are talking 
about whether or not he has to comply with the criminal law.
    Now, frankly, Mr. Chairman, I think one of the problems, we 
don't know what he is doing. We know what has leaked out so 
far, but there is nothing definitive that suggests that all the 
calls that are being made are international calls. Some may be 
domestic. We had a briefing yesterday, the Judiciary Committee 
and staff had a Committee briefing yesterday where it was not 
clear whether or not domestic-to-domestic calls were also part 
of this plan.
    I asked the question whether or not what is being done 
would qualify for a FISA warrant and the answer I got wasn't 
yes or no. I don't know what the answer was, but it certainly 
wasn't yes or no. It was clearly evasive. There were assertions 
and assumptions and innuendo that would clearly not rule out 
more than what has leaked out so far. There's more to this than 
we know. We'd just like to know what's going on.
    One of the problems is if you accept the reasoning that the 
President is not confined by the criminal law, there is no 
limitation to that power. There are no checks and balances. In 
fact, there was no anticipation that there would be any checks 
and balances. Certainly, there's no suggestion that this would 
be revealed to a court in an attempt to get a warrant. You just 
do it and hope it doesn't get out. You could--this isn't a 
covert operation. This is a program. You briefed a handful of 
Members of Congress under the threat of criminal prosecution. 
If they told anybody, including their staff, that's not how you 
comply with the criminal law.
    The question of whether it's legal or not, Mr. Chairman, I 
was watching C-SPAN last night and saw another Committee 
hearing that dealt somewhat with this issue and the suggestion 
was made that there were NSA officials who were relieved that 
the President was reelected because they doubted that what they 
were doing was legal and if a new President Kerry had come in 
and found out what had been going on, they might have to go to 
prison. And so they were relieved that the President was 
reelected.
    We ought to ask these people, who are these people and why 
did they think they might have to go to prison for what they 
were doing? Do we care that there are people who think they're 
breaking the law and do it anyway? Why don't we have a hearing, 
do some investigation, and do something other than have the 
Chairman on behalf of somebody, the gentleman said on behalf of 
the Committee. I wasn't consulted on the questions. I'm advised 
that no Democrats had input into the questions. So the 
questions have been propounded on behalf of the Republicans on 
the Committee. That's not an investigation.
    We need to get the facts. We need to determine what is 
going on and why these people think they were breaking the law. 
I don't think that's asking too much of this Committee and I 
would, therefore, support the resolution and oppose the 
negative recommendation.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Scott. Yes.
    Ms. Jackson Lee. I thank the gentleman. Let me just very 
briefly say that I think the debate is at the tone that it 
should be because we are discussing the Constitution. To my 
colleagues on the other side of the aisle, and I have not heard 
this question asked to the Chairman but I will just ask it for 
the record, I'm not sure if the materials that are going to be 
requested by the Chairman comes to the entire Committee, comes 
to one staff person. Will we have access to them?
    I think the key element to H. Res. 643 by the Ranking 
Member, Mr. Conyers, why it has such value, such importance, 
is, one, because, as I said earlier, and for me it's personal, 
having investigated the treatment of Dr. Martin Luther King as 
a member----
    Chairman Sensenbrenner. Will the gentleman yield? The 
responses to the questions that were asked in my letter will 
come to the Committee and will be made public unless they are 
classified, and there are separate provisions under the House 
rule to deal with that.
    Ms. Jackson Lee. I thank the Chairman. May I just finish my 
sentence and simply say that our oversight is so pivotal in 
this, Mr. Chairman, and I----
    Chairman Sensenbrenner. The time of the gentleman from 
Virginia has expired.
    Mr. Scott. One additional minute, Mr. Chairman?
    Chairman Sensenbrenner. Without objection.
    Ms. Jackson Lee. I thank you very much. The reason why this 
is so important, because I have heard repeatedly that we are 
referring again to the inherent powers of the President. It is 
clear in our constitutional structure that we are equal 
branches of Government. It also is clear in some materials that 
I am going to offer in the record at a later time that there is 
question to the complete blanket suggestion that there are 
inherent powers that cannot be questioned. It was deemed 
impossible to cover aspect and eventuality of Government.
    Presidents have claimed for themselves certain powers that 
they feel come with the authority granted to them in article 
II. They have also claimed powers implied by article II that 
the Supreme Court has stepped in when it felt that the 
President has overstepped its mark. So, therefore, there are 
checks and balances. The Supreme Court can oversee this idea of 
inherent powers, and so it is the responsibility of Congress as 
an equal branch of Government to be able to check the inherent 
powers that a President argues for, and I believe they have 
overstepped their bounds.
    Chairman Sensenbrenner. The time of the gentleman from 
Virginia has once again expired.
    Mr. Scott. Can I have 30 additional seconds?
    Chairman Sensenbrenner. The gentlewoman from California.
    Ms. Waters. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California seek recognition?
    Ms. Waters. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. Thank you very much, Mr. Chairman. I would like 
to add my voice to those Members who are trying to impress upon 
you the importance of oversight on this issue.
    To tell you the truth, I have frankly been surprised that 
you have not taken a more aggressive role. I consider you to be 
one of the credible civil libertarians and that I don't expect 
you to take a back seat to the Senate or anybody else in 
probing this issue or these kinds of issues. I sit here as a 
Member of Congress watching the news nightly, watching what the 
Senate is doing, and feeling as if I'm an outsider with no real 
role or participation in what is going on.
    Now, first of all, we are elected by the people and we're 
not elected to watch the Senate do the work of this country. 
We're participants in this. We have a role in this. This is the 
people's House. I don't expect, again, to be on the outside of 
this discussion.
    The only way we can be involved in this discussion is 
through our Committee work. That's why we serve on these 
Committees. And I expect the Chairman not to tell us that we 
can't have a hearing, that he's going to send some questions 
over to the White House or to NSA or anybody. I expect those 
questions to be placed before the relevant individuals in this 
Committee with all of us participating.
    It may be that some Members of our caucus were told that 
somehow, there was a program that would allow the President of 
the United States to break the law. I don't know. And listening 
to one of the Members of my own caucus talk about the fact, 
since it was classified information, they didn't feel that they 
could say anything, is just unacceptable. It's not good enough.
    And I don't think we can go back to our constituents 
telling them, well, our Chairman won't let us. He is going to 
send some questions. Well, the Senate is going to do the job. I 
want to do the job. I want us to do the job.
    I wanted to amend this resolution today, but I don't think 
that it's practical to do so, but let me tell you why. FISA and 
the rest of cyberspace, and I'm going to read from a report by 
an individual, FISA should also be viewed in the context of 
Echelon program. Echelon is a secret intergovernmental project 
of the United States, Canada, Great Britain, Australia, and New 
Zealand that maintains a series of powerful facilities around 
the world to intercept electronic communication, some believe 
all such transmissions. The data is downloaded and stored and 
each Echelon country is notified and receives copies of 
messages that contain key words which such country has included 
in a dictionary.
    Now, I got interested in this key word business by reading 
in the newspaper that we have scanning that's going on, and 
this means everybody is being scanned. And when the key words 
pop up in a conversation, then the technology will allow them 
to direct the surveillance to where those key words are coming 
from.
    Now, this is America, Mr. Chairman, and I don't expect that 
my conversations or my neighbor's conversations or any 
citizen's conversations will be routinely scanned and screened 
with the help of the telecommunications companies that we pay 
to provide us service and that we are subject to be under 
surveillance simply because we use a particular word. In this 
Congress, I hope that I can talk with my colleagues about al-
Qaeda. I hope that I can talk with interested constituents 
about terrorism and what is going on without then being a 
victim of this kind of scanning that will cause my 
conversations to be listened to.
    And so I guess what I'm saying to you, Mr. Chairman, is I 
really do expect more from you than this. I expect that you 
should be feeling the same way that I feel, that you don't want 
to be on the outside of this discussion. You are the Chairman 
of this Committee. And again, the Senate should have no more 
power to investigate than we do. And when you talk about simply 
using questions to go to the President rather than doing your 
job of opening up this Committee so that we can have those 
kinds of investigations, then I'm going to have to think that 
you are not who I thought you were.
    Mr. Chairman, you can talk all you want to to somebody else 
while I'm talking to you. I want you to----
    Chairman Sensenbrenner. Well, the time of the gentlewoman 
has expired. Without objection, she will be given as much more 
time as she needs.
    Ms. Waters. I respectfully request another additional 
minute so I can tell you----
    Chairman Sensenbrenner. Without objection.
    Ms. Waters. --that I don't care if you talk to someone else 
while I'm talking to you. I think the reason you're doing that 
is because I'm shaming you about the inability to get the job 
done here. Now, you can have back the time and give it to 
whomever you want to give it to.
    Mr. Delahunt. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts seek recognition?
    Mr. Delahunt. I move to strike the last word.
    Chairman Sensenbrenner. You may have the time.
    Mr. Delahunt. You know, to pursue the theme of my friend 
from California, I would inquire of the chair that once we 
receive these answers to these 51 questions, is it the 
intention of the chair to call for additional hearings in terms 
of the issue that we've been discussing here today?
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Delahunt. Of course.
    Chairman Sensenbrenner. It is the intention of the chair to 
have Attorney General Gonzales up on a general oversight 
hearing, and as you know, at these hearings, Members may ask 
whatever questions of the Attorney General the spirit moves 
them to ask.
    Mr. Delahunt. I thank the chair for the answer. I would go 
beyond that, and I would make this request of the chair. A 
former colleague of ours on this Committee who currently serves 
in the Senate, Lindsey Graham, described this particular issue 
as a Marbury v. Madison moment, and I concur and I agree with 
Senator Graham.
    This is a profound constitutional issue. Not only does it 
implicate individual's civil liberty, but it does go to the 
separation of powers and the relationship between the branches.
    I haven't had an opportunity to read the 51 questions. I'm 
sure that they're good questions.
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Delahunt. I yield.
    Chairman Sensenbrenner. I'd just point out to the gentleman 
from Massachusetts that question number 50 propounded the 
questions that a group of organizations that included the Arab 
American Anti-Discrimination Committee and the ACLU requested 
in a letter dated January 30 to Mr. Conyers and myself. We 
included those questions of the Attorney General, and there 
were four of them. So the questions that were asked in the 
letter were wide-ranging and I think we have to wait until the 
Justice Department responds to make a determination on where to 
go next, and I won't presuppose any response that they have.
    Let me say that, as Mr. Conyers and I did in the questions 
that we asked on the PATRIOT Act, if the response is irrelevant 
or non-responsive or evasive, I intend on being the crabby 
professor that I can be and telling the student to redo it, 
because if the first letter gets a grade of incomplete, we 
would like to have a complete answer so that this Committee can 
grade it each to ourselves.
    Mr. Delahunt. Well, again, I thank the chair for that 
amplification. At the same time, I think it was Mr. Feeney who 
indicated that these questions were propounded on behalf of the 
Committee, and I think it was Zoe Lofgren who indicated that--
or maybe it was Bobby Scott that it was propounded by the 
chair, presumably on behalf of the Republican Members of the 
Committee, not the Democratic Members. It's my understanding, 
and I could be wrong that there was no consultation with 
Democratic Members. I know that there would be individuals on 
this side of the aisle that could propound a series of 
questions that would go beyond the 51.
    But having said all that, I think it's important that the 
American people know that Democrats were not consulted in the 
51 questions that were put to the Attorney General. But I do 
acknowledge that in the past the Chair has held Department of 
Justice's allegorical feet to the fire and I am confident that 
he will do the same.
    But that is not sufficient, in my judgment. This is such an 
issue of such consequence that we deserve to have multiple 
hearings, not just from representatives of the Administration 
but, for example, Mr. Lungren from California has raised an 
array of constitutional issues. They deserve a hearing. They 
deserve to be heard. He alludes to Attorney General Bell. I 
would like to have Griffin Bell before this Committee, as I'd 
like to have the Deputy Attorney General Comey who, according 
to reports, refused to sign off on this particular program--the 
second in command of the Department of Justice. The second in 
the command because----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Delahunt. May I have an additional minute?
    Chairman Sensenbrenner. Without objection.
    Mr. Delahunt. But I am confident, Mr. Chairman, that none 
of us wants to have as our legacy that, for all intents and 
purposes, as Ms. Waters indicated, didn't do our job. The 
Senator Judiciary Committee has done some hearings. I don't 
want to describe them as extensive. The Intelligence 
Committees. But this is our one hearing, and--I agree, they 
only did one 2- or 3-day hearing. There should be multiple 
hearings. This is not, in my judgment, about partisan politics. 
I know that there are Members that serve on this Committee on 
the other side of the aisle that share my reservations and 
share the concerns. This is constitutional and it is about the 
institution.
    And again, we don't want to have a legacy that we sat here 
as props while----
    Chairman Sensenbrenner. The time of the gentleman has once 
again expired.
    The gentleman from New York, Mr. Weiner.
    Mr. Weiner. Thank you, Mr. Chairman.
    Mr. Chairman, I consider myself in the pro-spying caucus of 
the Democratic Party. I think we should be spying a lot. It's 
inexpensive, it's something we didn't do enough leading up to 
September 11, it prevents us the necessity of having to send 
the young men and women of our country to fight for war in 
error. But I kind of have--that's my philosophical position. 
I'm trying to figure out if there are any conservatives left on 
this Committee that have a philosophy of their own.
    I never thought I'd say this, but I long for the days of 
Bob Barr. At least he understood that when you're a 
conservative, you're suspicious of the idea that the Federal 
Government is encroaching further and further into our lives. 
And they're suspicious, and that suspicion always led them to 
be concerned about the metaphorical black helicopter but also 
the creeping line.
    And what happened to the tradition that we were starting to 
carve out under Chairman Sensenbrenner of fighting for our 
jurisdiction? You know, if there is one change that we have had 
in recent years in this Committee, is every single day we are 
scratching and clawing to make sure other Committees don't take 
our jurisdiction, making sure, God forbid, we allow the United 
States Senate to be the straw that stirs the drink.
    And now look at you. You're like, Oh, we can't ask for 
information because we sent them a letter.
    Have you seen how they answer these letters? Did you see 
the Attorney General in front of the Senate? It was a shame for 
legislatures everywhere. And now you're saying, well, let's 
just wait for a letter.
    The resolutions we are considering today say give us all 
the information; we're big boys and girls, we can figure out 
how to deal with it. Why is it that that is--I've heard no 
explanation about why that would be a bad thing for this 
Committee in its deliberation. If you think--whether it's 2 
days, Mr. Chairman, 22 days or 32 days, you are not going to 
get the equivalent of a letter from the Attorney General saying 
butt out. You just haven't been following the news. That's what 
it is going to be.
    We have to start acting like we mean it around here. If 
you're concerned about fighting for our jurisdiction, let's go 
ahead and do it. If you want the United States Senate--and a 
couple of my colleagues said, well, the Senate had hearings. Is 
that going to be our measure for our job here, watching the 
United States Senate do their work? I mean, honestly, if we 
didn't get it, if we needed further evidence of the 
fecklessness of that body, look at that hearing that they had.
    Chairman Sensenbrenner. The Chair will remind the gentleman 
from New York of the rules about impugning the integrity of the 
other body even when it's warranted.
    Mr. Weiner. Mr. Chairman, I thank you. I apologize, 
although I would dispute ``feckless'' because I think it is 
arguably a point of fact, no longer an opinion.
    And let me just say this. Let me just say this to some of 
my colleagues. I've heard some fascinating arguments against 
this. One is the gentleman from California, Mr. Lungren, sets 
up the ground ball FISA argument. You got phone numbers in a 
terrorist camp, a whole list of phone numbers--yeah, that's a 
ground ball. That's as easy as it comes. That's exactly what 
FISA was created for. I doubt very much that that's the case 
study here, because that's an easy one. We can all resolve that 
one. There are many junior high school civics students who 
would say clearly there's probable cause there.
    I've heard the gentleman from Florida, Mr. Feeney, say, Oh, 
but we have a letter. Don't go ahead and ask them for 
information, because we've got this letter, we've got make sure 
they answer our letter.
    Well, what happened to us? This is the Judiciary Committee 
of the House of Representatives. Don't we have some right and 
some authority?
    And then finally, in the best argument for the passage of 
these resolutions was Mr. Keller. He said he has some 
legitimate concerns. He's not quite sure himself. He says there 
are some gray areas.
    Exactly. Let's get the information in front of us and draw 
some conclusions. And I'll tell you where I'm probably going to 
come down is I'm probably going to come down in saying, yeah, 
let's give the President the authority he--we want to make sure 
that there aren't obstacles in the way to doing a legitimate 
intelligence gathering exercise. I think there's broad 
consensus in this country and in this Committee that that's----
    How are we going to do it? Are we going to do it by waiting 
for 30 days for a take-a-hike letter from the Attorney General, 
or are we going to do it by having him come here and probably 
not even swear him in and then when we do we watch him bob and 
weave and say I've got no idea, how would I know, I'm just the 
Attorney General?
    No. We use the powers that we have in this body to say give 
us the information. We're going to go through it. It's not just 
going to be one group of Members of Congress that are locked in 
a steel room in the Capitol. We on the Judiciary Committee see 
broad constitutional questions here. We're ready to tackle 
them. We have divergent views, but we have one thing in common, 
and that we are deadly serious about the jurisdiction of this 
Committee and making sure we do everything we can to make sure 
the security of our citizens is ensured.
    And one of the ways you do it is with a resolution like 
this. We should pass it in bipartisan fashion. The 
conservatives and the people who pretend to be conservatives 
should both vote for it.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The gentlewoman from California, Ms. Sanchez.
    Ms. Sanchez. Thank you, Mr. Chairman and Ranking Member 
Conyers.
    I, too, would like to encourage all the Members of this 
Committee to vote for the present resolution. And I want to be 
clear, I'm not arguing that domestic surveillance doesn't have 
a place in our fight against terrorism. If domestic 
surveillance will help us prevent an attack or capture 
terrorists, we should do it, but within the bounds of the law 
and within the bounds of our Constitution. And Congress 
shouldn't be setting the precedent of surrendering its role of 
being a check on the executive branch to ensure that the 
executive branch doesn't overstep the law or violate the 
Constitution.
    That is what this resolution is about, protecting the 
constitutional rights of American citizens. If this resolution 
is defeated, we take another step in the dangerous direction of 
ceding congressional oversight.
    The President, a handful of officials in his 
Administration, and some of my vocal Republican colleagues on 
the Committee think that the NSA's secret and warrantless 
electronic surveillance of Americans is legal. They have tried 
to convince us that the authorization for the use of military 
force in Iraq and Afghanistan and the President's authority as 
commander in chief during a time of war grants him the power to 
conduct such warrantless surveillance. And I vehemently 
disagree with this conclusion. Frankly, so do most experts on 
intelligence and the Constitution, both Republican and 
Democrat. Many of these experts agree that there is no legal 
authority at all for warrantless surveillance because the 
fourth amendment protects us against unreasonable searches and 
seizures. Furthermore, the Foreign Intelligence Surveillance 
Act unequivocally requires judicial approval of all electronic 
surveillance in this country.
    If there is so much disagreement about the legality of NSA 
surveillance, then let the Attorney General appear before this 
Committee to answer our questions. At a minimum, the AG should 
comply with the terms of this resolution and give us the 
documents related to NSA's domestic surveillance program.
    I think it's very interesting that all of a sudden the 
Judiciary Committee is willing to surrender its substantial 
oversight role. Since I've been on this Committee, we have 
aggressively guarded our jurisdiction and oversight authority. 
We've gone toe-to-toe with the Justice Department and other 
House Committees over telecommunications antitrust 
jurisdiction, immigration, and even the regulation of steroid 
use by professional athletes. I don't know about anybody else 
on this Committee, but I think the American people are a little 
more interested in protecting their privacy rights than whether 
or not Rafael Palmeiro is suspended for an additional 10 days. 
But that's just my opinion.
    With this resolution, we reaffirm our jurisdiction to 
investigate constitutional violations. And shockingly, this 
Committee is choosing not to investigate the constitutionality 
of warrantless surveillance of everyday Americans. Let me 
repeat that. This Committee is choosing to punt and to not 
investigate warrantless surveillance of everyday Americans. I 
find this unacceptable. And what is worse is that it sets a 
dangerous precedent to allow the Administration to circumvent 
congressional oversight.
    I think the American people deserve more from their Members 
of Congress. This Committee needs to pass this resolution, and 
I encourage all of my colleagues to vote yes. I yield back the 
remainder of my time.
    Chairman Sensenbrenner. The gentleman from Maryland, Mr. 
Van Hollen.
    Mr. Van Hollen. Thank you, Mr. Chairman. I move to strike 
the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Van Hollen. Thank you. And Mr. Chairman, I'm pleased 
we're here debating this issue today. I agree with my 
colleague, Mr. Feeney, on the other side of the aisle that 
oversight is important. I would remind my colleagues, however, 
that the only reason we're having this important discussion 
today is because Mr. Conyers introduced a resolution which, if 
we don't deal with it somehow today, will go to the floor of 
the House.
    That's why we're having this discussion. It's the first 
discussion that this Committee has had on this very important 
issue--which I agree with my other colleagues who said this is 
an issue that raises important questions about the 
Constitution, raises important questions about separation of 
powers, rule of law, and a range of national security 
questions. And we've had a give-and-take here on some very 
important issues just this morning, which of course raises the 
question about why we have not yet had a hearing and why we're 
not going to have a hearing around this total issue.
    Now, a number of us back in mid-December, when we learned 
about this issue in the New York Times--despite all the 
oversight that's been done in the United States Congress, we 
learned about this issue in the New York Times --we asked the 
Chairman if we would hold a hearing. Well, we didn't have a 
hearing, we didn't even get the room. But Mr. Conyers did 
organize a hearing in the basement of this building, where we 
took some important testimony, including testimony from Bruce 
Fein, an attorney in the Justice Department in the Reagan 
administration. There was important testimony there.
    Now, I'm glad, Mr. Chairman, that you're setting these 
questions. I've looked at the questions. I think there are lots 
of good questions. I think there could be additional questions. 
But I think we'd all have to agree that if we want to get to 
the bottom of this, just going back and forth with questions is 
not enough. I mean, the original opinion came out from the 
Attorney General's Office as to why they thought this was 
legal; we read it. They then expanded it. We got a 41-page 
opinion which, although it was longer, it didn't get any 
better. And I think all of us who have read that opinion know 
what the answers to these questions are going to be.
    But you wouldn't want to have a witness where you can only 
do written back-and-forth. You need to have cross-examination. 
Anyone who has looked at the way you get to the bottom of 
things, you've got to have cross-examination. You need more 
than just the Attorney General in front of this Committee. We 
need the Attorney General, we need others that our colleagues 
have mentioned, including James Comey, the Deputy Attorney 
General who refused to sign off on this. We need scholars on 
both sides. Because I think what will happen is, when we begin 
to hear the testimony, we'll understand that the overriding 
weight of legal opinion in this country on all sides is that 
the President does not have the authority.
    But that's a debate that we should have. We've begun to 
have it this morning only because of this resolution, only 
because of a resolution which forced the Chairman's hand, which 
forced us all to be here. This Committee shouldn't take any 
credit for saying this is part of our oversight, this 
discussion today. This is purely as a result of a procedural 
motion that was filed by Mr. Conyers.
    And it shouldn't be that way. We should be taking the lead. 
I strongly believe our Founding Fathers believed when they 
created our system of Government and created the Congress as a 
separate branch, that they expected Republicans and Democrats 
alike in this body to live up to their obligations to make sure 
we have oversight over the executive branch.
    Now, another Committee in this body held over 40 hours of 
hearings on the Clinton Christmas card list. And yet, we 
haven't had 1 hour of hearings in the House Judiciary Committee 
on one of the most important constitutional separation of 
powers that's been raised. And as I understand it, we're not 
even planning on having a hearing targeted to this issue 
generally. We're going to have our regular hearing over the 
Department of Justice. The Attorney General will be here. We're 
not going to have any other witnesses, not going to call any 
other people on either side of this issue. That is not 
fulfilling our constitutional obligation.
    I think it's a dereliction of duty that we haven't had a 
hearing yet. It certainly is a dereliction of duty to this 
Committee and this House if we don't have a full hearing on 
this issue so that we can explore all sides and answer 
questions for the betterment of the American people. And I urge 
you, Mr. Chairman, to uphold the integrity of this Committee 
and do that.
    Chairman Sensenbrenner. The time of the gentleman has 
expired. The gentleman from California, Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman. And I'll be brief.
    First of all, with all due respect, I understand that 
President Clinton's Christmas list was a much larger group than 
any amount of people that we're looking for in al-Qaeda.
    Having said that, I want to thank Mr. Conyers for bringing 
his resolutions. I know that I personally will be voting 
against them, but not because it's inappropriate to ask the 
questions but because I believe that we as a Committee have an 
obligation to deal with the constitutional question that's been 
alluded to by many Members on both sides of the aisle. I look 
forward to this Committee determining to its own satisfaction 
whether or not the President has that constitutional authority.
    But just as the question of whether or not somebody can 
burn a flag or any number of other actions that one can quickly 
realize what the action is, we don't need any more facts about 
whether or not the President ordered, on a limited or even 
slightly less than limited basis, the eavesdropping on 
conversations that were believed to include an al-Qaeda 
representative in a foreign country. We do need to decide 
whether or not there's a constitutional ability.
    And I might just close by saying that I do not believe that 
the FISA Court or any legislation done by this body limits the 
President's constitutional authority. And I would hope that we 
would all refrain from talking about laws as though laws 
changed the Constitution. Only a constitutional amendment 
changes inherent constitutional authority of the President.
    What that, I yield back.
    Mr. Franks. Will the gentleman yield for a question?
    Chairman Sensenbrenner. The gentleman has yielded back. The 
gentleman from Arizona, Mr. Franks.
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Chairman, as always, I think it's just very important 
to remind ourselves why we're all here. And the context of this 
debate is ultimately about the protection of both the 
Constitution and the United States of America. And sometimes I 
think it's important to realize that the causal reason that 
we're having this discussion is because we are in a war on 
terror.
    After 9/11, many of the same people that are speaking in 
favor of the motion on the floor here today said that somehow 
the President didn't do his job in paying attention to what 
terrorists were doing. And now, in my judgment, he has gone to 
great lengths to try to do his job. In fact, I believe that if 
the President failed to be listening where it was possible to 
al-Qaeda or al-Qaeda-related terrorists communicating inside 
the United States, he would be derelict if he failed to do 
that.
    Now, the FISA Court has concluded twice that the President 
has the constitutional power for this limited scope of 
terrorist surveillance. I think that probably the best 
statement of the day was by a gentleman on our side of the 
aisle here, when he said if the President has been given or the 
President has the constitutional authority and the 
responsibility from all of us to hunt down, to ferret out, and 
to kill terrorists, then perhaps we should all conclude that he 
has the right to listen to them on the phone before he 
proceeds.
    And I'm just convinced that one of the reasons that the 
Chairman has gone forward with this letter is because he 
understands that not only does he have to move forward in a 
process that gives clear direction in what he's trying to 
ascertain from the Administration, but he also understands that 
there is a danger, when he brings these things before the 
Committee, of leaks, and that puts him in an incredibly 
difficult position because he not only has to measure his 
responsibility for oversight, but he also has to measure the 
impact that that will have on the overall war on terror.
    Now, I guess it's easy for us to all talk about how serious 
terrorism is, but sometimes I think we forget it so callously. 
If terrorists have their ultimate end, we will see some type of 
nuclear yield weapon detonated in this country, perhaps in this 
city. And it will decapitate the forces of freedom. And I 
cannot understand why we don't focus on that more clearly, 
because in the final analysis, our responsibility is to protect 
this Nation. In the final analysis, if the President does not 
have the ability to surveil terrorists in time of war, in this 
situation, then the Constitution and the Republic is in grave 
danger.
    I think the Chairman has acted in good faith and with 
wisdom, and therefore I will----
    Chairman Watt. Will the gentleman yield on that point?
    Mr. Franks. I will yield back to the Chairman.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Mr. Chairman, I will try not to take the full 5 
minutes, but I can't promise you that.
    First of all, I want to say that I do not envy the 
Chairman's position here. I know that he is a person who 
strongly believes in the jurisdiction of this Committee and 
strongly believes in the Constitution. I also know that there 
are substantial pressures to protect the President and the 
Administration here because it's a Republican President and 
Administration.
    I want to applaud the Chairman for the 50 or so questions 
that he has submitted to the Administration. I especially want 
to thank him for including some questions from the various 
groups. The thing that's troubling about that as I heard it, 
though, was it now appears that those groups may have a higher 
standing there than the Members of this Committee, on our side, 
as least.
    I have reviewed the resolution. It appears to be a very 
reasonably worded proposed resolution--and requests the 
documents, not answers to a set of questions. It requests the 
information that I think this Committee, under the safeguards 
proposed in the resolution--which on page 2, starting on line 
8, says ``subject to necessary redactions or requirements for 
handling classified documents,'' so, I mean, there's a lot of 
stuff that the Administration could still keep from this 
Committee--but I think this Committee has some oversight 
jurisdiction here and we can't responsibly do it unless we have 
the information to look at what this Administration has been 
doing. This resolution will allow us to do that.
    Now, that's what I have to say on the resolution. But let 
me go one step beyond that and tell you where I am out in the 
political context, because I think you're going to find this 
very interesting. There is a growing chorus in my congressional 
district and in the Progressive community that we should start 
toward impeachment proceedings against this President. I have 
been against all those odds even as a Progressive member, 
saying we can't do this willy-nilly, this is irresponsible. It 
is against the backdrop that I recall Representative Bobby 
Scott and myself sitting here in this Committee during 
impeachment, and while all the cameras were rolling and all the 
hoopla was going on, Representative Scott and I were sitting 
here quietly talking to each other about whether we would apply 
the same standard that we were applying in that case if this 
were a Republican president.
    So I've been saying to those people who have been out there 
talking about this that impeachment is something that we 
shouldn't be playing with because we don't need an ongoing 
impeachment every 4 years every time we disagree with a 
decision that has been made by a president. The standard is so 
much higher. But if we don't have a means for understanding 
what the President is doing and this Administration is doing, 
if they're just saying trust me, or if they're saying I don't 
really much care what you think, I'm going to do whatever I 
want to do regardless of the constitutional standard, I think 
we are put in a very, very difficult position.
    I ask unanimous consent for 2 additional minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Watt. To exercise the kind of judgment, aside from all 
the politics that is playing out on these extremely important 
things that are coming before us. And right now, what I see on 
this Committee appears to be a partisan divide on whether we 
are going to aggressively and affirmatively exercise our 
oversight responsibilities.
    With all respect to whoever it was over there who said the 
President has authority beyond FISA, fine. But this Committee 
has responsibility beyond FISA also. This is not only about 
whether FISA was complied with. This is the Judiciary Committee 
of the people of the United States House of Representatives, 
and we've got some constitutional responsibilities, too. And if 
we don't have the information we need to evaluate what is being 
done, quietly, privately, redacted, no classified leaks, 
subject to whatever limitations you all want to put, I think we 
can't do what we are obligated to do constitutionally.
    It is for those reasons I support this proposed resolution.
    Chairman Sensenbrenner. The gentleman's time has expired. 
Are there amendments? If there are no amendments, a reporting 
quorum is present.
    The question occurs on the motion to report House 
Resolution 643 adversely. All in favor of reporting adversely 
will say aye? Opposed, no?
    Chairman Sensenbrenner. The noes appear to have it. The 
gentleman from Michigan, Mr. Conyers, asks for a recorded vote. 
Those in favor of reporting the bill adversely will as your 
names are called answer aye, those opposed, no, and the clerk 
will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith of Texas. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Lungren?
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mr. Franks?
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye. Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    Mr. Berman. No.
    The Clerk. Mr. Berman, no. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no. Mr. Delahunt?
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt, no. Mr. Wexler?
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Van Hollen?
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    Members who wish to cast or change their votes? The 
gentleman from Indiana, Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Chairman Sensenbrenner. The gentleman from Arizona, Mr. 
Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Gohmert?
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their vote? The gentleman from Illinois, 
Mr. Hyde?
    The gentleman from Illinois, Mr. Hyde?
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their vote? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 21 ayes and 16 nays.
    Chairman Sensenbrenner. And the motion to report adversely 
is agreed to. Without objection, the staff is directed to make 
any technical and conforming changes, and all Members will be 
given 2 days as provided by the House rules in which to submit 
additional, dissenting, supplemental, or minority views.
    Pursuant to notice, I now call up House----
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan.
    Mr. Conyers. I ask unanimous consent to include materials 
from the Congressional Research Service, American Bar, 14 
constitutional scholars, Professor Tribe, and Attorney Bruce 
Fein in the record.
    Chairman Sensenbrenner. Without objection.
    Mr. Conyers. Thank you.
    [The material referred to follows:]

    
    
    [The prepared statement of Mr. Flake follows:]

  Prepared Statement of the Honorable Jeff Flake, a Representative in 
                   Congress from the State of Arizona

    I am voting to report, unfavorably, Ranking Member Conyer's 
resolution seeking all documents related to the President's National 
Security Agency (NSA) domestic wiretapping program. I do not believe 
Congress needs ``all'' documents related to this program. However, I am 
concerned about recent revelations regarding domestic wiretapping.
    The President has claimed that the Authorization of Use of Military 
Force Resolution (AUMF) authorizes NSA domestic surveillance. This 
seems to me to be a stretch. As a member of the House International 
Relations Committee, which reported that Resolution, I can attest that 
we did not authorize such a program. The AUMF does not mention FISA or 
domestic surveillance. The Resolution's title clearly authorizes 
``military'' force. It makes one wonder what other programs, 
unauthorized by Congress, may also be in operation.
    As a member of the House Judiciary Committee, I find it 
disconcerting that we worked to reauthorize the Patriot Act while being 
kept in the dark about the existence of the wiretapping program. I and 
the other members of the Subcommittee on Crime, Terrorism, and Homeland 
Security worked in good faith to craft a bill that protected civil 
liberties while providing for the powers the President sought. If the 
President wanted to go beyond the powers he currently has with FISA, he 
should have sought clear congressional authorization. The argument that 
seeking such explicit authorization would have tipped the terrorists 
off is not compelling. Surely the terrorists know that surveillance is 
already possible under FISA.
    The administration's claims that an ``inherent commander-in-chief 
power'' lets the President act unilaterally. This claim runs contrary 
to the argument that this program is authorized by the AUMF. If the 
President can act on his own, certainly he would not need to cite the 
AUMF. In addition, the Department of Justice would not have needed to 
brief the Chief Judge of the FISA court on the existence of this 
program.
    The Constitution states that ``[t]he President shall be Commander 
in Chief of the Army and Navy of the United States, and of the militia 
when called into actual service of the United States.'' Nowhere does 
the Constitution state that the President has exclusive powers 
governing military affairs. The Constitution states that Congress has 
the power ``to make rules for the government and regulation of the land 
and naval forces.''
    The President cannot choose to ignore the FISA statute. He must 
provide Congress with the information necessary to afford him the 
powers he needs. Since it appears that is up to the House and Senate 
Judiciary Committees to craft any FISA changes that will grant the 
President the flexibility he seeks, members of this Committee must be 
briefed on the details of the program in a secure environment.
    I do not agree that, at this time, we should force the President to 
release all information on the program. The President should recognize 
that we are willing to work with him, and appreciate that we need the 
information on this program to perform our oversight responsibility.
    Let me reiterate that I believe that the NSA ought to have the 
ability to monitor communications between known or suspected terrorists 
overseas and U.S. citizens. I simply believe that it can, and should be 
done within our constitutional framework.

    [The prepared statement of Ms. Jackson Lee follows:]

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress from the State of Texas

    President Bush secretly authorized the National Security Agency 
(NSA) to eavesdrop on Americans and others inside the United States to 
search for evidence of terrorist activity, and he did this without the 
court-approved warrants ordinarily required for domestic spying. Due to 
the highly classified nature of this program, the details have not been 
revealed. Officials familiar with it, however, say that NSA has 
eavesdropped without warrants on up to 500 people in the United States 
at any given time. Some reports indicate that the total number of 
people monitored domestically has reached into the thousands, while 
others indicated that significantly more people have been spied upon.
    I do not oppose the monitoring of telephone calls and e-mail 
messages when it is necessary for national security reasons. I am 
opposed, however, to engaging in such monitoring without a warrant. We 
have a Foreign Intelligence Surveillance Court that was established for 
the sole purpose of issuing such warrants when they are justified.
    The day after this monitoring became public, President Bush 
admitted that he had authorized it and claimed that he had the 
authority to do so. According to the President, the order was fully 
consistent with his constitutional responsibilities and authorities. I 
respectfully disagree with the President. The law establishes well-
defined procedures for eavesdropping on U.S. persons, and President 
Bush failed to follow those procedures.
    The starting point for understanding surveillance law is the Fourth 
Amendment to the Constitution, which states clearly that Americans' 
privacy may not be invaded without a warrant based on probable cause. 
The United States Supreme Court has held that this protection applies 
to government eavesdropping. Consequently, all electronic surveillance 
by the government in the United States is illegal unless it falls under 
one of a small number of precise exceptions specifically carved out in 
the law.
    After 9/11, Congress approved an Authorization to Use Military 
Force against those responsible for the attacks in order to authorize 
the president to conduct foreign military operations such as the 
invasion of Afghanistan, but that resolution contains no language 
changing, overriding, or repealing any laws passed by Congress.
    The Foreign Intelligence Surveillance Act (FISA) contains explicit 
language describing the president's powers during time of war and 
provides that the President, through the Attorney General, may 
authorize electronic surveillance without a court order under this 
title to acquire foreign intelligence information for a period not to 
exceed fifteen days following a declaration of war by the Congress. 
Consequently, even assuming that the use-of-force resolution places us 
on a war footing, warrantless surveillance would have been legal for 
only 15 days after the resolution was passed on September 18, 2001.
    The FISA law takes account of the need for emergency surveillance. 
The need for quick action cannot be used as a rationale for going 
outside the law. FISA allows wiretapping without a court order in an 
emergency; the court simply must be notified within 72 hours. The 
government is aware of this emergency power and has used it repeatedly. 
If President Bush found these provisions inadequate, he should have 
taken his case to Congress and asked for the law to be changed, not 
simply ignored it.
    Congress needs to know more about this situation. I have 
cosponsored H. Res. 643, which directs the Attorney General to submit 
to the House of Representatives all documents in the possession of the 
Attorney General relating to warrantless electronic surveillance of 
telephone conversations and electronic communications of persons in the 
United States conducted by the National Security Agency.
    I urge you to vote for this resolution. Thank you.

    [Intervening business.]
    The business before the Committee having been completed for 
today, without objection the Committee stands adjourned.
    [Whereupon, at 12:25 p.m., the Committee was adjourned.]

                            DISSENTING VIEWS

    We strongly dissent from the adverse reporting of H. Res. 
643. This resolution would have simply required the Judiciary 
Committee to conduct its constitutionally mandated oversight 
role by obtaining those documents that reflect how the highest 
lawyers in the United States government could approve a program 
that has nearly unanimous, bipartisan legal opposition.
    On December 16, 2005, we learned that the U.S. has been 
conducting warrantless surveillance of U.S. persons on U.S. 
soil, an unprecedented program that is not provided for in law. 
Since then, the President and his Justice Department have been 
on a publicity tour, trying to justify a program that is not 
only most likely illegal, but according to Administration 
sources, is also ineffective.
    We all have grave legal and policy concerns, concerns which 
led every other Committee of jurisdiction to hold at least 
cursory hearings. As a result, we introduced this resolution to 
obtain the basic information necessary to understand more than 
the 42-page legal justification the Justice Department is now 
distributing. To understand the intelligence, criminal and 
constitutional implications of this program we need to know how 
this program works, who approved of it, and why.

    A. H. RES. 643 WOULD HAVE PROVIDED INSIGHT INTO WHY THE JUSTICE 
DEPARTMENT APPROVED A PROGRAM THAT MANY EXPERTS AND SCHOLARS BELIEVE IS 
                                ILLEGAL

    H. Res. 643 requests the Attorney General to submit all 
documents in his possession relating to warrantless electronic 
surveillance of telephone conversations and electronic 
communications of persons in the United States conducted by the 
National Security Agency, subject to necessary redactions or 
requirements for handling classified documents. This request 
would have included any and all opinions regarding warrantless 
electronic surveillance of telephone conversations and 
electronic communications of persons in the United States, as 
well as other records which would allow us to better understand 
the size, scope, and nature of the program.
    This is a measured and reasonable step. As a resolution of 
inquiry, this legislation is simply a voluntary request for 
information. It would have been within the discretion of the 
Attorney General to decide what information to share with 
Congress. Further, the request explicitly asked the Attorney 
General to redact any sensitive information and provide 
instructions for handling classified documents. In all, the 
legislation is quite a modest request considering the weight of 
issues implicated by warrantless wiretapping on American soil.

       B. WARRANTLESS SPYING ON AMERICAN CITIZENS RAISES SERIOUS 
   CONSTITUTIONAL QUESTIONS WHICH CANNOT BE ANSWERED WITHOUT FURTHER 
                              INFORMATION

    We are not asking for this information in a conclusory 
fashion. We are not saying that the President broke the law or 
has acted contrary to the Constitution. In fact, this 
resolution may well produce documents that rebut those 
allegations. What is clear is that, assuming what has been 
reported is true, many Constitutional and legal experts--
Republicans and Democrats--have indicated that this secret 
domestic surveillance program raises substantial questions 
about whether the program is legal and whether it is 
constitutional.
    These include the Nation's most preeminent legal and 
intelligence authorities:
    (1) Harvard Professor Laurence H. Tribe;
    (2) Fourteen of the nations preeminent legal scholars, 
including William S. Sessions, the former Director of the FBI 
under Presidents Ronald Reagan, George H.W. Bush and Bill 
Clinton, and William W. Van Alstyne, a Law Professor at William 
and Mary who was a witness called by this Committee's 
Republican Members during the impeachment of President Clinton;
    (3) Bruce Fein, a former Deputy Associate Attorney General 
in the Reagan Administration,
    (4) Jonathan Turley, a Constitutional scholar and another 
witness called by the Republicans on this Committee during the 
Clinton impeachment,
    (5) the non-partisan Congressional Research Service, and
    (6) the American Bar Association.
    The question before the Committee was not whether we agreed 
with these individuals, but whether we think their judgments 
are sufficiently serious to warrant further inquiry by this 
Committee. We are immensely disappointed that 22 out of 23 
Republican members disregarded this weight of legal opinion.

  C. THIS COMMITTEE IS ABDICATING ITS OVERSIGHT ROLE BY IGNORING MOST 
 LIKELY ILLEGAL AND UNCONSTITUTIONAL ACTS BY ITS OWN JUSTICE DEPARTMENT

    On December 18, 2005, every Democratic member of this 
Committee wrote the Chairman and requested that he hold 
hearings on the NSA spying program. To date, no hearing has 
been held, and the letter has not been answered. In fact, the 
House Judiciary Committee is the only committee of jurisdiction 
that hasn't held some sort of hearing or inquiry into the 
matter.
    Chairman Sensenbrenner arranged a briefing for Committee 
members and their staff on Monday, February 13, 2006. However, 
notice did not go out until Saturday the 11th, too late for 
members to change their schedules to attend. Mr. Scott was the 
only Representative available for the briefing, and we have 
asked for another briefing with reasonable notice.
    Chairman Sensenbrenner did however send a letter to 
Attorney General Alberto Gonzales on February 8, with 51 
questions relating to the NSA scandal. The majority claims that 
letter is a substitute for this resolution of inquiry.
    The Chairman's letter, while lengthy, seeks little new 
information if any at all. The first 38 questions ask the 
Justice Department whether it thinks the wiretapping program is 
legal. It is already clear from the Justice Department's 
publicly distributed white paper that it does.\1\
---------------------------------------------------------------------------
    \1\ Department of Justice, LEGAL AUTHORITIES SUPPORTING THE 
ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT, 
Jan. 19, 2006.
---------------------------------------------------------------------------
    There are also a number of questions that are clearly 
irrelevant to the spying program and are asked for partisan 
purposes. For example, a number of questions ask about whether 
previous Administrations engaged in similar behavior or 
believed they had the authority to do so.
    The Chairman's letter and briefing do not answer a number 
of important questions that must be answered before a legal 
determination can be made. To decide whether this program is 
reasonable under the 4th Amendment--as the Administration 
claimed in its briefing--members must know the particulars of 
the program.

                             D. CONCLUSION

    A letter alone--which can be ignored or danced around--is 
not sufficient. This Committee has always taken the common 
sense approach that the best way to find out what people were 
thinking at the time they made decisions, is to get the 
documents they wrote at that time reflecting those thoughts. In 
fact, on a number of matters--including biometric passports, 
judicial sentencing practices, the Civil Rights Commission, and 
Legal Service Commission--the Chairman's first step has been to 
obtain and preserve relevant documents.
    The Washington Post has written, that the Executive Branch 
treats Congress ``as an annoying impediment to the real work of 
government. It provides information to Congress grudgingly, if 
at all. It handles letters from lawmakers like junk mail, 
routinely tossing them aside without responding.''
    It's time that Congress begins to serve as a genuine check 
and balance on the Administration. This is not a partisan 
issue, but a constitutional issue that this Committee is 
obligated to act independently and fairly on.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Rick Boucher.
                                   Jerrold Nadler.
                                   Bobby Scott.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   Bill Delahunt.
                                   Robert Wexler.
                                   Anthony D. Weiner.
                                   Linda T. Sanchez.
                                   Chris Van Hollen.
                                   Debbie Wasserman Schultz.

                                  
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