[House Report 109-383]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-383

======================================================================
 
REQUESTING THE PRESIDENT AND DIRECTING THE ATTORNEY GENERAL TO TRANSMIT 
 TO THE HOUSE OF REPRESENTATIVES NOT LATER THAN 14 DAYS AFTER THE DATE 
OF THE ADOPTION OF THIS RESOLUTION DOCUMENTS IN THE POSSESSION OF THOSE 
 OFFICIALS RELATING TO THE AUTHORIZATION OF ELECTRONIC SURVEILLANCE OF 
     CITIZENS OF THE UNITED STATES WITHOUT COURT APPROVED WARRANTS

                                _______
                                

   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. 644]

    The Committee on the Judiciary, to whom was referred the 
resolution (H. Res. 644) requesting the President and directing 
the Attorney General to transmit to the House of 
Representatives not later than 14 days after the date of the 
adoption of this resolution documents in the possession of 
those officials relating to the authorization of electronic 
surveillance of citizens of the United States without court 
approved warrants, having considered the same, report 
unfavorably thereon without amendment and recommend that the 
resolution not be agreed to.

                          PURPOSE AND SUMMARY

    House Resolution 644, introduced by Representative John 
Conyers (D-MI) on December 22, 2005, requests the President and 
directs the Attorney General to transmit to the House of 
Representatives, not later than 14 days after the date of 
adoption of this resolution, documents in the possession of 
those officials relating to the authorization of electronic 
surveillance of citizens of the United States without court 
approved warrants. The resolution then sets forth a list of 
nine types of documents that are requested.

                               BACKGROUND

    House Resolution 644 is a resolution of inquiry. Under the 
rules and precedents of the House of Representatives, a 
resolution of inquiry allows the House to request information 
from the President of the United States or to direct the head 
of one of the executive departments to provide such 
information. More specifically, according to Deschler's 
Precedents, it is a ``simple resolution making a direct request 
or demand of the President or the head of an executive 
department to furnish the House of Representatives with 
specific factual information in the possession of the executive 
branch. The practice is nearly as old as the Republic, and is 
based on principles of comity between the executive and 
legislative branches rather than on any specific provision of 
the Constitution that a Federal court may be called upon to 
enforce.'' \1\
---------------------------------------------------------------------------
    \1\ 7 Deschler's Precedents of the House of Representatives, ch. 
24, Sec. 8.
---------------------------------------------------------------------------
    A resolution of inquiry is privileged and thus may be 
considered at any time after it is properly reported or 
discharged from the committee to which it is referred.\2\ 
Clause 7 of rule XIII of the Rules of the House of 
Representatives provides that if the committee to which the 
resolution is referred does not act on the resolution within 14 
legislative days, a privileged motion to discharge that 
committee is accorded privileged consideration on the House 
floor. In calculating the days available for committee 
consideration, the day of introduction and the day of discharge 
are not counted.\3\
---------------------------------------------------------------------------
    \2\ 7 Deschler's Precedents of the House of Representatives, ch. 
24, Sec. 8.
    \3\ William Holmes Brown, House Practice: A Guide to the Rules, 
Precedents and Procedures of the House 819 (2003).
---------------------------------------------------------------------------
    A committee has a number of choices in disposing of a 
resolution of inquiry. It may vote on the resolution without 
amendment, or it may amend it. It may report the resolution 
favorably, adversely, or with no recommendation. A committee 
that adversely reports a resolution of inquiry does not 
necessarily oppose the resolution under consideration. In the 
past, resolutions of inquiry have frequently been reported 
adversely for various reasons. Two common ones are that an 
administration is in substantial compliance with the request 
made by the resolution or that there is an ongoing competing 
investigation. There is also past precedent for a resolution of 
inquiry to be adversely reported because the nature of the 
information requested was highly sensitive.\4\ Upon its 
introduction on December 22, 2005, H. Res. 644 was referred to 
the Committee on the Judiciary. On February 15, 2006 H.Res. 644 
was ordered reported adversely by the Committee, which was 
within the 14 legislative day period.
---------------------------------------------------------------------------
    \4\ H.R. Rep. No. 1079, 92nd Cong., 2nd Sess., (1972).
---------------------------------------------------------------------------
    House Resolution 644 directs the Attorney General to 
transmit to the House of Representatives documents related to 
opinions of the legality of the surveillance and documents that 
are of a highly sensitive nature. Furthermore, Congress has 
received and continues to receive information responsive to the 
request for information contained in the resolution.

The war on terror

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

The leak of the highly classified terrorist surveillance program (TSP)

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

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

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

Documents and information pertaining to TSP already presented to 
        Congress and to the public

    H. Res. 644 requests internal documents that are related to 
a highly sensitive national security program. The following 
summary highlights efforts by the Department of Justice and the 
Administration to provide information about TSP to Congress and 
the public. These efforts include providing documents, 
conducting classified briefings, and presenting hearing 
testimony relating to these issues.
            (1) December 17, 2005 Radio Address by the President\8\
---------------------------------------------------------------------------
    \8\ Radio Address of the President to the Nation, Dec. 17, 2005, 
http://www.whitehouse.gov/news/releases/ 2005/12/20051217.html (last 
visited February 2, 2006)
---------------------------------------------------------------------------
    The day following the publication of the New York Times 
story, the President gave a radio address and acknowledged the 
existence of the program. He stated: ``To fight the war on 
terror, I am using authority vested in me by Congress, 
including the Joint Authorization for Use of Military Force, 
which passed overwhelmingly in the first week after September 
the 11th. I'm also using constitutional authority vested in me 
as Commander-in-Chief.'' \9\ The President stated that the TSP 
began ``[i]n the weeks following the terrorist attacks on our 
nation,'' when ``[he] authorized the National Security Agency, 
consistent with U.S. law and the Constitution, to intercept the 
international communications of people with known links to al-
Qaeda and related terrorist organizations.'' \10\
---------------------------------------------------------------------------
    \9\ Id.
    \10\ Id.
---------------------------------------------------------------------------
    The President explained that these intercepts were related 
to the war on terrorism and that ``[b]efore we intercept these 
communications, the government must have information that 
establishes a clear link to these terrorist networks.'' He also 
explained that the program was a ``highly classified program'' 
and ``crucial to our national security.'' \11\
---------------------------------------------------------------------------
    \11\ Id.
---------------------------------------------------------------------------
    He reminded the public that as the ``9/11 Commission 
pointed out, it was clear that terrorists inside the United 
States were communicating with terrorists abroad before the 
September the 11th attacks, and the Commission criticized our 
nation's inability to uncover links between terrorists here at 
home and terrorists abroad. Two of the terrorist hijackers who 
flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al 
Mihdhar, communicated while they were in theStates to other 
members of al-Qaeda who were overseas. But we didn't know they were 
here, until it was too late.'' \12\
---------------------------------------------------------------------------
    \12\ Id.
---------------------------------------------------------------------------
    The President stated that ``[t]he authorization [he] gave 
the National Security Agency after September the 11th helped 
address that problem in a way that is fully consistent with 
[his] constitutional responsibilities and authorities.'' He 
stated that ``the activities [he] authorized are reviewed 
approximately every 45 days. Each review is based on a fresh 
intelligence assessment of terrorist threats to the continuity 
of our government and the threat of catastrophic damage to our 
homeland. During each assessment, previous activities under the 
authorization are reviewed. The review includes approval by our 
nation's top legal officials, including the Attorney General 
and the Counsel to the President. [He has] reauthorized this 
program more than 30 times since the September the 11th 
attacks, and [he] intend[s] to do so for as long as our nation 
faces a continuing threat from al-Qaeda and related groups.'' 
\13\
---------------------------------------------------------------------------
    \13\ Id.
---------------------------------------------------------------------------
    The President explained that a review process of the NSA's 
activities exists that includes thorough review by the Justice 
Department and NSA's top legal officials, including NSA's 
general counsel and inspector general. He also pointed out that 
the leadership and the Intelligence Committee chairs and 
ranking members ``have been briefed more than a dozen times on 
this authorization and the activities conducted under it.'' 
\14\
---------------------------------------------------------------------------
    \14\ Id.
---------------------------------------------------------------------------
    The President concluded that ``[t]he American people expect 
[him] to do everything in [his] power under our laws and 
Constitution to protect them and their civil liberties.'' He 
promised that that ``is exactly what [he] will continue to do, 
so long as [he's] the President of the United States.'' \15\
---------------------------------------------------------------------------
    \15\ Id.
---------------------------------------------------------------------------
            (2) December 18, 2005 Broadcast Television Interview of the 
                    Vice President of the United States
    On December 18, 2005, the Vice President discussed the TSP, 
and other issues in a network television interview. The Vice 
President explained the legal authority of the program and 
stated that it was ``consistent with the President's 
constitutional authority as Commander-in-Chief. It's consistent 
with the resolution that passed by the Congress after 9/11. And 
it has been reviewed repeatedly by the Justice Department . . . 
.'' \16\
---------------------------------------------------------------------------
    \16\ Interview by ABC News with Richard Cheney, Vice President, 
United States (December 18, 2005), available at http://
www.whitehouse.gov/news/releases/2005/12/20051218-4.html.
---------------------------------------------------------------------------
            (3) December 19, 2005 Press Briefing by Attorney General 
                    Alberto Gonzales and General Michael Hayden, 
                    Principal Deputy Director for National Intelligence
    On December 19, 2005, the White House held a press briefing 
with Attorney General Alberto Gonzales and General Hayden, the 
Principal Deputy Director for National Intelligence, to brief 
the press and the public on the legal issues surrounding the 
authorization of the TSP. At the briefing, the Attorney General 
and General Hayden explained the legal bases of the program and 
provided details on unclassified aspects of the program. The 
Attorney General emphasized that the targeted phone calls were 
not domestic but rather ``intercepts of contents of 
communications where one of the--one party to the communication 
is outside the United States.'' He went on to state:

    [W]e also believe the President has the inherent authority 
under the Constitution, as Commander-in-Chief, to engage in 
this kind of activity. Signals intelligence has been a 
fundamental aspect of waging war since the Civil War, where we 
intercepted telegraphs, obviously, during the world war, as we 
intercepted telegrams in and out of the United States. Signals 
intelligence is very important for the United States government 
to know what the enemy is doing, to know what the enemy is 
about to do. It is a fundamental incident of war, as Justice 
O'Connor talked about in the Hamdi decision. We believe that--
and those two authorities exist to allow, permit the United 
States government to engage in this kind of surveillance.\17\
---------------------------------------------------------------------------
    \17\ Alberto Gonzales, U.S. Attorney General, NSA Terrorist 
Surveillance Program, Press Briefing before the White House Press Corp 
(Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/
2005/12/20051219-1.html.
---------------------------------------------------------------------------
    General Hayden added that the program ``is less intrusive 
[than FISA]. It deals only with international calls. It is 
generally for far shorter periods of time. And it is not 
designed to collect reams of intelligence, but to detect and 
warn and prevent [future] attacks.'' \18\
---------------------------------------------------------------------------
    \18\ General Michael Hayden, U.S. Principal Deputy Director for 
National Intelligence, NSA Terrorist Surveillance Program, Press 
Briefing before the White House Press Corp (Dec. 19, 2005), available 
at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html.
---------------------------------------------------------------------------
            (4) December 22, 2005 Department of Justice Letter to the 
                    Chairmen and Ranking Members of the House and 
                    Senate Intelligence Committees
    The Department of Justice sent a letter to the Chairmen and 
Ranking Members of the House and Senate Committees on 
Intelligence on December 22, 2006, 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 Sates, as all Federal appellate 
courts, including at least four circuits to have addressed the 
issue, have concluded.'' \21\ The Attorney General also 
emphasized that the TSP is consistent with the Foreign 
Intelligence Surveillance Act because Congress provided 
authority in the Authorization of the Use of Military Force 
(Pub. L. No. 107-40) that ``the President has the authority 
under the Constitution to take action to deter and prevent acts 
of international terrorism against the United States.'' \22\
---------------------------------------------------------------------------
    \19\ Letter from William A. Moschella, U.S. Assistant Attorney 
General, Department of Justice, to Chairmen Pete Hoekstra and Pat 
Roberts, Ranking Member Jane Harman and Vice Chairman John D. 
Rockefeller IV, House and Senate Intelligence Committees, available at 
http://www.epic.org/privacy/terrorism/fisa/nsaletter122205.pdf.
    \20\ Id.
    \21\ Id.
    \22\ Id.
---------------------------------------------------------------------------
            (5) January 11, 2006, Presidential Discussion of the Global 
                    War on Terror at the Kentucky International 
                    Convention Center, Louisville, Kentucky
    On January 11, 2006, the President participated in a 
discussion on the Global War on Terror at the Kentucky 
International Convention Center in Louisville, Kentucky at 
which he provided additional legal justification for the 
establishment of the TSP.\23\
---------------------------------------------------------------------------
    \23\ A transcript of these remarks can be found at http://
www.whitehouse.gov/news/releases/2006/01/20060111-7.html.
---------------------------------------------------------------------------
            (6) January 19, 2006 Department of Justice White Paper on 
                    Legal Authorities Supporting the Activities of the 
                    National Security Agency Described by the President
    On January 19, 2006, the Department of Justice sent a 42-
page legal analysis explaining the ``legal authorities 
supporting the activities of the National Security Agency 
described by the President.'' Addressed to Senate Majority 
Leader Frist and signed by Attorney General Alberto Gonzales, 
the cover letter stated:

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

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

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

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

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, the Administration 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. 644 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. 108-215, 108th Cong., 1st Sess. (2004).
    \36\ H.R. Rept. 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. 644. 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. 644 
adversely.

                                HEARINGS

    No hearings were held in the Committee on the Judiciary on 
H. Res. 644.

                        COMMITTEE CONSIDERATION

    On February 15, 2006, the Committee met in open session and 
adversely reported the resolution H. Res. 644 by voice vote, 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 notes that there 
were no recorded votes during the Committee consideration of H. 
Res. 644.

                      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. 644 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. 644 is not a bill or joint 
resolution that may be enacted into law.

               SECTION-BY-SECTION ANALYSIS AND DISCUSSION

    The Resolution requests the President and directs the 
Attorney General to transmit to the House of Representatives, 
not later than 14 days after the date of adoption of this 
resolution, documents in the possession of those officials 
relating to the authorization of electronic surveillance of 
citizens of the United States without court approved warrants. 
The resolution then sets forth a list of nine types of 
documents that are requested.

      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. 
644 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.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
House Resolution 644, Requesting the President and directing 
the Attorney General to transmit to the House of 
Representatives not later than 14 days after the date of the 
adoption of this resolution documents in the possession of 
those officials relating to the authorization of electronic 
surveillance of citizens of the United States with court 
approved warrants, 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.
    [The resolution, H. Res. 644, follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes himself for a 
very quick 5 minutes to explain the resolution.
    Many of the arguments that have been given both pro and con 
with the previous resolution apply to this resolution. However, 
I would note that unlike the previous resolution, that at least 
attempted to provide some protection for national security 
information, H. Res. 644 contains no safeguards that would 
protect the classified information requested. For that reason 
and for all of the other reasons, I would urge approval of the 
motion to report adversely.
    I yield back the balance of my time and recognize the 
gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Michigan.
    Mr. Conyers. Mr. Chairman, I concur that to go into 
hearings on this matter would be duplicative and, for reasons 
of my own, I urge that we set aside the discussion to the 
greatest extent possible. I call upon my colleagues to join 
with me in this consideration.
    I yield back the balance of my time.
    Chairman Sensenbrenner. Are there any----
    Mr. Watt. Would the gentleman yield? Ranking Member?
    Mr. Conyers. Of course.
    Mr. Watt. Is the gentleman recommending one way or another 
on how we should vote on this, or is he just recommending that 
we not speak on it?
    Mr. Conyers. I am recommending that we do not speak on 
this, but it is my intention to have--that this be disposed of 
by voice vote and therefore that there may not be a record 
therefrom.
    Chairman Sensenbrenner. Without objection, Members may 
place opening statements in the record at this point.
    Are there amendments----
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Just long enough to say that I liked the earlier 
resolution a lot better, but we've got to get these records. It 
seems to me that if we had passed the other resolution, there 
would be a whole different discussion. No discussion, perhaps, 
wouldn't even be any necessity to take this up. But it seems to 
me we need the records in the House of Representatives to do 
our responsibilities, and we can clean up this resolution after 
it passes out of here or amended it after it passes out of 
here. But we need a resolution that gets these documents to the 
House of Representatives for us to exercise our responsibility 
if we're going to do it. And for that reason, I intend to vote 
for this resolution despite its shortcomings.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Watt. Yes.
    Ms. Jackson Lee. May I just associate myself with the 
distinguished gentleman from North Carolina. I think all of us 
have focused on the importance of oversight. I, too, believe 
643 stands as a very strong resolution, but 644 requires our 
attention, one, as I indicated before, and I hope subsequently 
to add these materials to the record, but in any event, the 
question of inherent powers is so crucial as relates to 
domestic spying, which is the question that we're asking today, 
and the complete ignoring of FISA and established statutory law 
that's been reviewed by the Supreme Court, that I would also 
suggest that this is a resolution that deserves our 
consideration. I will be voting for it.
    Mr. Watt. Reclaiming my time, let me just be clear. If we 
won't exercise the responsibility in this Committee, the 
Judiciary Committee, as the prior resolution says, I think 
that's the appropriate place to do it, and with the protections 
that were provided in the prior resolution. But in the absence 
of our willingness to do it responsibly in this Committee, 
where it should be done, these documents ought to come to the 
House of Representatives so somebody who has the guts will do 
it.
    Mr. Delahunt. Would the gentleman yield?
    Mr. Watt. Mr. Delahunt.
    Mr. Delahunt. Yes, I just wanted to make an observation 
that I think it's remarkable that what we have seen here today 
occur. For conservatives to put their trust in the executive 
branch and not to verify is a remarkable watershed in the 
conservative movement. And I guess the last member of the 
genuine conservative movement in this country is sitting two 
down from my right. But I just find it absolutely incredible 
that we come down to this, where Republicans say, okay, to Big 
Government, we'll trust you, and we won't even verify.
    And with that, I yield back.
    Mr. Weiner. Mr. Chairman?
    Mr. Watt. I yield to Mr. Weiner.
    Mr. Weiner. Just to try to clarify the record here, if I 
can just ask the Chairman to yield to a question.
    Is there a commitment on your part to have hearings on this 
particular issue, or only to have the Attorney General come in 
as part of the due course of oversight? Are we going to have 
hearings dedicated to this question, Mr. Chairman?
    Chairman Sensenbrenner. The time belongs to the gentleman 
from North Carolina.
    Mr. Watt. I yield to the Chairman.
    Chairman Sensenbrenner. The Attorney General will come in 
and he will testify and answer questions on whatever he wishes 
to testify on and whichever questions the Members wish to ask 
him on. I would expect, if I'm listening properly, that most of 
the questions that will be directed to him will be on this 
issue.
    Mr. Weiner. No, Mr. Chairman, I think you misunderstood my 
question. My question was, as the Chairman are you committed to 
convening a hearing on this particular subject? It does seem to 
be----
    Chairman Sensenbrenner. You know, the answer to the 
question is no because I don't know if I can get the Attorney 
General more than once.
    Mr. Weiner. Well, let me ask you, if I can just continue. 
Is there a commitment to have a hearing on this subject, and if 
the Attorney General says to the Judiciary Committee take a 
hike, I'm not going to come and answer any more questions or 
I'm not going to come in on this subject, that we would then 
get some other views? I mean, if our concern is we're not going 
to schedule a hearing because the agency that we oversee----
    Chairman Sensenbrenner. If the gentleman from North 
Carolina will yield----
    Mr. Watt. I will.
    Chairman Sensenbrenner. The Chair is not in a position to 
answer that question until we see what response comes on or 
before the 2nd of March to the 51 questions that I have posed 
to the Attorney General. As the gentleman knows, when the 
former Attorney General tried to evade the oversight questions 
that Mr. Conyers and I asked on the PATRIOT Act----
    Mr. Watt. I ask unanimous consent for 1 additional minute.
    Chairman Sensenbrenner. Without objection--you know, we 
told him to re-do it until the questions were answered, and we 
finally got the answer. Now, I did have to trip the subpoena in 
the interim. But I want to get the answers to these questions. 
You know I'm kind of a tiger on that, but give me a break.
    Mr. Weiner. Mr. Chairman, yeah, but you're having a 
pussycat moment here. [Laughter.]
    The question is----
    Chairman Sensenbrenner. If the gentleman will yield, tigers 
are pussycats, too.
    Mr. Watt. I ask unanimous consent for 1 additional minute 
and yield to the Chairman and then to Mr. Weiner.
    Mr. Weiner. No, what I'm trying to--first of all, I can't 
imagine that, just given what the Attorney General's answer has 
been to questions up to now, that we're going to be completely, 
100 percent satisfied. I can't imagine he's going to solve, in 
the context of this, why not? What is the downside? And I 
haven't heard it from my colleagues there; maybe you can tell 
me. What is the downside of saying we're going to have a 
hearing in X amount of days, we're going to address these 
things, we're going to get the Attorney General, we're going to 
have a panel of people on all sides.
    Chairman Sensenbrenner. Will the gentleman from North 
Carolina yield?
    Mr. Watt. Yes, sir, I will.
    Chairman Sensenbrenner. You know, I think that taking a 
case to trial without discovery might be malpractice, and we're 
going to be doing the discovery first.
    Mr. Weiner. Mr. Chairman, I'm not saying don't do the 
discovery. I'm not saying don't get the answer to the 51 
questions. I'm not saying don't do that. I'm saying that is 
there a commitment at the very least on your part to have 
hearings on----
    Chairman Sensenbrenner. Well, if the gentleman will yield--
--
    Mr. Weiner. Sure.
    Chairman Sensenbrenner. --I've answered that question. And 
that is, is that the AG will be up here, it will not be a 
specified hearing. On the other hand, you know, I'm going to be 
pretty darned insistent that there be answers that are 
relevant, in point, and truthful to the 51 questions that have 
been posed. And if it takes the Justice Department several 
tries to get the answer down, we might not like what it is, but 
at least it will be responsive to the question. So be it. And 
that's what Mr. Conyers and I did on the PATRIOT Act and that's 
what I intend to do on this letter, too.
    Mr. Weiner. Well, Mr. Chairman, as grateful as I am on 
behalf of the Committee for extending those 51 questions, that 
is simply not a substitute for good oversight hearings.
    I yield back.
    Mr. Watt. I ask unanimous consent for 1 additional minute 
and yield to Mr. Conyers.
    Mr. Conyers. Mr. Chairman, I just have to insist upon the 
point made by the gentleman from New York. This subject matter 
requires hearings on the subject matter. To bring the Attorney 
General to this Committee to talk about all of the matters 
under his jurisdiction would be absolutely insufficient.
    And I thank the gentleman for yielding.
    Mr. Watt. Can I just reclaim my time long enough to say 
that both of these resolutions, in my opinion, really deal with 
the discovery stage as much as the 51 questions deal with the 
discovery stage. We need the documents to have an informed 
hearing, in my opinion. That's part of the discovery phase, if 
you're putting it in trial-context terms. To be able to 
exercise our responsibility in a responsible way, we need to 
know what the Administration has done. And both of these 
resolutions, the earlier one really more than this one is 
directed at that.
    I yield back.
    Chairman Sensenbrenner. The gentleman's time has expired. 
Are there amendments?
    Ms. Waters. Yes. Yes.
    Chairman Sensenbrenner. Does the gentlewoman from 
California have an amendment?
    Ms. Waters. No amendment. I move to strike the last word.
    Chairman Sensenbrenner. For what purpose----
    Mr. Gohmert. I was going to move to strike the last word 
also.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Gohmert, is recognized for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    With all the metaphorical speaking about trials, you're 
back in my bailiwick, my days as a judge and chief justice. And 
I want a hearing on this, but what we're talking about here in 
these two requests, a judge would look at these requests as 
discovery requests and say they're overly broad, and that would 
allow Respondent to object that they're overly broad, break it 
down more carefully.
    So the way I'm viewing this and the reason I voted aye on 
the first one and will vote with the Chairman on this is that 
those 51 answers will allow us to determine more succinctly 
what exactly we want to request. Because I think the 
Administration could object this is covering areas you may not 
have a right to get into. And once it's broken down and we see 
what they have, we get the answers to the 51, then we can go 
back and make additional requests, refine those requests more 
directly so that we don't get bogged down in a year or two of 
litigation or dispute between us and the Administration over 
what we have a right to see.
    Mr. Watt. Would the gentleman yield just for a second?
    Mr. Gohmert. We do want a trial, and this judge is going to 
support getting to the metaphorical trial, but first we do need 
to do proper discovery in proper form so we don't shoot for the 
end result.
    Yes, I will yield.
    Mr. Watt. I thank the gentleman for yielding. I think we've 
taken this metaphorical trial further than it really needs to 
be and further than is appropriate. The great thing about the 
legislative body is that in a trial i never asked a question 
that I didn't already know the answer to. This time, I need the 
facts regardless of what the answer is, regardless of how it 
cuts, whose ox it gores--I don't care. It's our responsibility 
to the public to ask the questions regardless of whether they 
are objected to or not. So our responsibility is really way 
beyond a trial. We're not trying anybody. We're just trying to 
get the facts.
    Mr. Gohmert. Would the gentleman yield back? I agree with 
you, but by asking first questions first, then we can refine 
our questions and hopefully avoid any kind of dispute over what 
is reachable by this body in its oversight obligations.
    Mr. Delahunt. Would my friend yield for a minute.
    Mr. Gohmert. Yes, I yield to the gentleman from 
Massachusetts.
    Mr. Delahunt. You know, I think what the gentleman from New 
York was driving towards as far as multiple hearings are 
concerned, let's not just focus in on the response of the 
Attorney General, but there should be a full exposition, if you 
will, of all of the potential constitutionals that could be 
implicated in this issue. We hear from Mr. Lungren about 
inherent powers of the executive. We talk about FISA. We talk 
about these relationships. We can have hearings on that and 
listen to experts while we are waiting, if you will, for the 
conclusion of the discovery phase. I just think this is too 
important an issue constitutionally to not address it 
aggressively.
    Mr. Gohmert. Reclaiming my time. I agree with you, but if 
you have the hearings before you get the initial answers, then 
you're not going to be able to key in and ask the right 
questions in sufficient specificity. So for that reason, I will 
support the Chairman----
    Mr. Delahunt. Could I ask the gentleman to yield on that 
point?
    Mr. Gohmert. Yes.
    Mr. Delahunt. I'm not even saying we should not wait for 
this. I don't think anyone is suggesting don't get all the 
information we can. But it seems to me I can't think of an 
issue that has presented itself in recent memory that hasn't 
more lent itself to classic oversight of this Committee, 
whether you're conservative on this issue, like I am, or a 
raving liberal, like many of you guys apparently are, trusting 
Government at every turn.
    All I'm asking from the Chairman is say the easiest thing, 
say Of course we're going to have hearings on this, we're the 
Judiciary Committee. This is an issue that people are talking 
about in coffee shops all around the country, that talks about 
the very questions of balance of power that many of you have 
said you're concerned about. Just say yes--I mean, sometimes I 
think you're just reflexively saying no to us just because we 
raise it. But this is an example of what we should be doing 
here, is saying Of course, Congressmen, we're going to have 
hearings on this. This is such an important issue. So many 
people care about it.
    And I disagree with some of my colleagues. As I said in my 
remarks earlier, I want to do more spying, I want to increase 
our intelligence budget, I want to have the ability to track 
these things as best we can. And if FISA is somehow falling 
down, I'm going to be one of the people who's going to vote to 
fix it up.
    Why not have the hearings? And no one, not a single person 
has said on that side why not have hearings. Even you seem to 
imply you want to have hearings.
    Mr. Gohmert. I just want to do it in the proper order, and 
I think----
    Chairman Sensenbrenner. The time of the gentleman has 
expired. Are there amendments?
    Ms. Waters. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman from California is 
recognized for 5 minutes.
    Ms. Waters. Thank you very much.
    Now, first of all, I understand that most of the Members of 
this Committee have not seen the 51 questions. They just put 
them before me and I tried to scan them, as they scan our 
conversations that we're having all over the country, and I 
note that those things that I'm interested in are not even 
covered in the 51 questions.
    For example, I talked about this Echelon Program. Do you 
realize, Members, that not only is your country spying on you 
in this program, they allow Canada, Great Britain, Australia, 
and New Zealand to spy on you in this program. When they scan 
and they hear the key words, the system enables one country to 
eavesdrop on communications within another country without, 
they say, violating its privacy laws and, at the same time, 
transmit to that country's intelligence agencies messages that 
are of interest to them. One does not have to speculate long or 
engage in much imagination to see how synergistic FISA and 
Echelon can be. This document says.
    So I want to know more about this program, where we're 
being spied on not only by our own country but by other 
countries, and I want to know about these telecommunications 
companies who get a call from God knows who and then they allow 
this technology to be used to spy and place citizens under 
surveillance without any warrants, without anything. All of 
these companies--AT&T, MCI, Sprint, all of them cooperate with 
warrantless surveillance, the executives say. You've seen this 
information. My God, how scared can you be? How can anybody 
whip you in line to such a degree that you would not want to 
protect the Constitution of the United States?
    I want to tell you, the President of the United States, my 
mother and nobody else could put the fear of God in me to the 
point where I wouldn't do my job on this issue. My God, how can 
you look yourselves in the eye at night knowing that it has 
been exposed that the Constitution is being violated, that the 
President is breaking the law, that the FISA Court is being 
ignored, and not do something about it? I mean, what do you 
come to work for? Why are you elected to office?
    This is outrageous and ridiculous, and I know that you 
don't want to hear it, but we're going to have to talk about 
it. I hope that every Member on this side of the aisle will go 
to the floor ad nauseam until we force you to get the courage 
to do what you need to be doing and not allow anybody to make 
you shut up on this issue. This is outrageous.
    And Mr. Chairman, no, your 51 questions are not good 
enough. We did not participate at all in helping to organize 
these. You disrespected us totally. You not only did not ask us 
to participate--and I don't know about the Members who are 
sitting over there with those stupid grins on their faces; you 
look absolutely spineless on this issue and you ought to be 
ashamed.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Michigan.
    Mr. Conyers. Mr. Chairman, I would like to recommend that 
unless there are other speakers, that we move to a final vote 
on this. I will indicate that I am going to support the 
gentlewoman from New York's resolution and that we end our 
debate on this matter.
    Chairman Sensenbrenner. Are there amendments? If there are 
no amendments, a reporting quorum is present. The question 
occurs on the motion to report H. Res. 644 adversely. All in 
favor of reporting adversely, say aye? Opposed, no?
    The ayes appear to have it.
    Mr. Conyers. Mr. Chairman, I ask for a record vote.
    Chairman Sensenbrenner. A record vote is requested. Those 
in favor of reporting the resolution adversely will as your 
names are called answer aye, opposed, no. The clerk will call 
the roll.
    Before the clerk calls the roll, we have one more bill 
which I believe is noncontroversial, the Financial Services 
Regulatory Relief Act, where the sequential expires during the 
recess. We need to have a reporting quorum here to report that 
out. The Chair knows of no amendments.
    The clerk will now call the roll on----
    Mr. Conyers. Mr. Chairman, I ask unanimous consent to 
withdraw my request for a record vote.
    Chairman Sensenbrenner. The request is withdrawn. Does 
anybody else wish a recorded vote?
    Hearing none, the ayes have it. Without objection, the 
staff is directed to make 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.
    [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

    I dissent from the negative reporting of H. Res. 644, that 
would have simply requested that the President and the Attorney 
General provide Congress with documents that relate to 
warrantless wiretapping. This Committee should have exercised 
its constitutionally mandated oversight role and examined the 
original legal theories behind this unprecedented wiretapping 
program, the scope of program, and how it was approved. As more 
fully discussed in the dissenting views of H. Res. 643, I 
believe the Judiciary Committee is abdicating its role to 
ensure that the executive acts within the constitution.

                                   John Conyers, Jr.

                                  
