[House Report 109-528]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-528
======================================================================
 
REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF DEFENSE AND 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 RELATING TO THE TERMINATION OF THE DEPARTMENT OF JUSTICE'S 
     OFFICE OF PROFESSIONAL RESPONSIBILITY'S INVESTIGATION OF THE 
  INVOLVEMENT OF DEPARTMENT OF JUSTICE PERSONNEL IN THE CREATION AND 
     ADMINISTRATION OF THE NATIONAL SECURITY AGENCY'S WARRANTLESS 
    SURVEILLANCE PROGRAM, INCLUDING DOCUMENTS RELATING TO OFFICE OF 
   PROFESSIONAL RESPONSIBILITY'S REQUEST FOR AND DENIAL OF SECURITY 
                               CLEARANCES

                                _______
                                

   June 26, 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. 845]

  The Committee on the Judiciary, to whom was referred the 
resolution (H. Res. 845) requesting the President and directing 
the Secretary of Defense and 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 relating 
to the termination of the Department of Justice's Office of 
Professional Responsibility's investigation of the involvement 
of Department of Justice personnel in the creation and 
administration of the National Security Agency's warrantless 
surveillance program, including documents relating to Office of 
Professional Responsibility's request for and denial of 
security clearances, having considered the same, report 
unfavorably thereon without amendment and recommend that the 
resolution not be agreed to.

                          PURPOSE AND SUMMARY

    House Resolution 845, introduced by Representative Hinchey, 
on May 25, 2005, requests the President and directs the 
Secretary of Defense and the Attorney General to transmit to 
the House of Representatives documents relating to the 
termination of the Department of Justice's Office of 
Professional Responsibility's investigation of the involvement 
of Department of Justice personnel in the creation and 
administration of the National Security Agency's (NSA) 
warrantless surveillance program, including documents relating 
to Office of Professional Responsibility's request for, and 
denial of, security clearances.

                               BACKGROUND

    House Resolution 845 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 committee has a number of choices in considering 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.
    On January 9, 2006, Representative Hinchey and three other 
Members sent a letter to the Department of Justice's Counsel 
for the Office of Professional Responsibility (OPR) to 
investigate how the Terrorist Surveillance Program was 
established and the involvement and objections of Department of 
Justice (DOJ) officials regarding the program, and the overall 
legality of the program. OPR is the office that investigates 
attorney misconduct. In February and March 2006, OPR informed 
Representative Hinchey that OPR was conducting an investigation 
of the role of the Department of Justice attorneys in the 
authorization and oversight of warrantless electronic 
surveillance by the NSA and to determine if DOJ was in 
compliance with the Foreign Intelligence Surveillance Act. On 
May 10, 2006, OPR informed Representative Hinchey that on May 
9, 2006, OPR was informed that the request for the necessary 
clearances to investigate had been denied and thus the OPR 
investigation was closed.
    A security clearance does not entitle someone to access all 
classified information, but rather only that information 
related to the work that individual performs and is on a 
``need-to-know'' basis. It is arguable that OPR employees did 
not have a basis to investigate the NSA program, as OPR is 
charged with investigating professional misconduct and not the 
constitutionality of a Defense Department (DOD) program. The 
Attorney General has emphasized this point.\2\
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    \2\ Linzer, Dafna, Charles Babington, Lawrence Reexamine Hayden; 
CIA Pick's Involvement in Wiretap Programs Raises Questions, Washington 
Times, May 18, 2006, at A05.
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    This conclusion is supported by OPR's mission statement, 
which states, ``OPR reviews allegations of attorney misconduct 
involving violation of any standard imposed by law, applicable 
rules of professional conduct, or Departmental policy. When 
warranted, OPR conducts full investigations of such 
allegations, and reports its findings and conclusions to the 
Attorney General and other appropriate Departmental 
officials.'' \3\
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    \3\ U.S. Department of Justice, Office of Professional 
Responsibility Process, (2006), available at http://www.usdoj.gov/opr/
proc-hdl.htm.
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    The Attorney General's conclusion is further supported by 
the U.S. Department of Justice Office of Professional 
Responsibility, Fiscal Year 2003 Annual Report that explained: 
\4\
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    \4\ U.S. Department of Justice, Office of Professional 
Responsibility, Fiscal Year 2003, available at http://www.usdoj.gov/
opr/annualreport2003.htm.

          OPR has jurisdiction to investigate allegations of 
        professional misconduct made against Department of 
        Justice attorneys, investigators, or law enforcement 
        personnel where the allegations relate to the exercise 
        of an attorney's authority to investigate, litigate, or 
        provide legal advice. OPR also has authority to 
        investigate other matters when requested or authorized 
        to do so by the Attorney General or the Deputy Attorney 
        General.
          Typical misconduct allegations that OPR investigates 
        include Brady, Giglio,\5\ and Federal Rule of Criminal 
        Procedure 16 discovery violations; improper conduct 
        before a grand jury; improper coercion or intimidation 
        of witnesses; improper use of peremptory strikes during 
        jury selection; improper questioning of witnesses; 
        improper introduction of evidence; misrepresentations 
        to the court and/or opposing counsel; improper closing 
        arguments; failure to diligently represent the 
        interests of the government; failure to comply with 
        court orders, including scheduling orders; and 
        unauthorized disclosure of information. In addition, 
        OPR examines cases in which courts have awarded Hyde 
        Amendment fees to the defendant based on a finding that 
        the government's conduct was frivolous, vexatious, or 
        in bad faith.
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    \5\ As a result of Brady and Giglio Supreme Court cases, the 
government must disclose any evidence favorable to the defendant that 
is material. Furthermore, the defendant's failure to request favorable 
evidence does not leave the government free of this obligation.

    The Inspector General for the Department of Defense (DOD 
IG) directed Members of Congress to the NSA's own Inspector 
General for such review, rather than the Department of 
Justice's Office of Professional Responsibility. The DOD IG 
explained in a letter to Representative Lofgren that ``the 
Inspector General of NSA is already actively reviewing aspects 
of that program.'' \6\ The Committee is reporting this 
resolution adversely because it requests documents that may 
contain highly sensitive national security and employee 
personnel information. In addition, the request is misdirected 
as clearances may not have been granted due to the fact that 
DOJ's Office of Professional Responsibility is not charged with 
examining DOD programs, or with assessing the legal validity of 
this program.
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    \6\ Letter from Thomas F. Gimble, Acting Inspector General, United 
States Department of Defense to Zoe Lofgren, Representative, United 
States House of Representatives (Jan. 10, 2006) (available at http://
www.house.gov/list/press/ca16_lofgren/
pr_060111_DOJ_and_DOD_Respond.html).
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                                HEARINGS

    No hearings were held in the Committee on the Judiciary on 
H. Res. 845.

                        COMMITTEE CONSIDERATION

    On June 21, 2006, the Committee met in open session and 
adversely reported the resolution H. Res. 845 by a 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. 845.

                      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. 845 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. 845 is not a bill or joint 
resolution that may be enacted into law.

               SECTION-BY-SECTION ANALYSIS AND DISCUSSION

    The House Resolution requests the President and directs the 
Secretary of Defense and the Attorney General to transmit to 
the House of Representatives not later than 14 days after the 
date of adoption of this resolution documents relating to the 
termination of the Department of Justice's Office of 
Professional Responsibility's investigation of the involvement 
of Department of Justice personnel in the creation and 
administration of the NSA's warrantless surveillance program, 
including documents relating to Office of Professional 
Responsibility's request for and denial of security clearances.

      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. 
845 makes no changes to existing law.

                            DISSENTING VIEWS

    We dissent from the adverse reporting of H. Res. 845.
    After 9/11, the Nation's highest lawyers authorized 
warrantless wiretapping on American soil, now unanimously 
condemned by constitutional scholars and intelligence 
professionals alike.
    Repeatedly, the President and the Attorney General have 
refused to say which lawyers actually approved the program and 
through which process they did so. There are also reports that 
officials as high as then-Acting Attorney General James Comey 
refused to sanction the program due to constitutional and legal 
concerns.
    Shortly after the New York Times first reported on the 
program, Representatives Hinchey, Lewis, Waxman and Woolsey, 
requested the Justice Department's Office of Professional 
Responsibility (OPR) conduct an investigation into who approved 
warrantless wiretapping on American soil and why.
    The Office of Professional Responsibility ``is responsible 
for investigating allegations of misconduct involving 
Department attorneys that relate to the exercise of their 
authority to investigate, litigate or provide legal advice, as 
well as allegations of misconduct by law enforcement personnel 
when they are related to allegations of attorney misconduct 
within the jurisdiction of OPR.'' \1\ With the objective of 
``ensur[ing] that Department of Justice attorneys continue to 
perform their duties in accordance with the high professional 
standards expected of the Nation's principal law enforcement 
agency.'' \2\
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    \1\ Office of Professional Responsibility, http://www.usdoj.gov/
opr.
    \2\ Id.
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    Pursuant to the Congresspersons' request, the OPR began an 
investigation into the Department of Justice's role in 
``authorizing, approving and auditing certain surveillance 
activities of the National Security Agency.'' \3\
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    \3\ Letter from H. Marshall Jarrett, Counsel, Office of 
Professional Responsibility, to Maurice D. Hinchey, et. al, regarding 
the termination of the investigation of warrantless wiretapping by the 
NSA (Feb. 2, 2006).
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    Regretfully, OPR was unable to complete its task when 
either the NSA or the Justice Department--it is still unclear--
denied its investigators access to the necessary information. 
On May 10, 2006, the Office of Professional Responsibility 
again wrote Congressman Hinchey stating, ``We have been unable 
to make any meaningful progress in our investigation because 
OPR has been denied security clearances for access to 
information about the NSA program . . . without these 
clearances, we cannot investigate this matter and therefore 
have closed our investigation.''
    The denial of OPR access to any documents related to the 
Justice Department's approval of NSA wiretapping is a move 
which, according to Michael Shaheen who headed the OPR from 
1975 to 1997, simply did not occur for any reason in his time 
at the Office. He stated, ``[my staff] never, ever was denied a 
clearance.'' \4\
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    \4\ Shane Harris & Murray Waas, Justice Department Probe Foiled, 
National Journal, May 27, 2006, at 53.
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    For decades, the determination of security clearance has 
turned on whether the applicant was ``reliable, trustworthy, of 
good conduct and character and of unswerving loyalty to the 
United States.'' Clearly, there is no evidence that OPR 
attorneys do not meet this standard. It appears that access may 
have been denied for purely political purposes. That is why H. 
Res. 845, which merely asks for documents relating to OPR's 
denial is so important.
    There are several levels of clearance, which have 
increasing standards of eligibility corresponding with 
increasing levels of sensitive information. The four main types 
of security clearance are confidential, secret, top secret, and 
sensitive compartmented information. It is also possible to be 
granted security clearance information related to one subject 
and denied certain information related to another subject, all 
within the same department or agency.\5\
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    \5\ Derrick Dortch, Getting a Security Clearance, WASH. POST, June 
25, 2004.
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    Currently, it remains unclear whether the attorneys were 
denied the level of clearance required to investigate the DOJ's 
participation in the NSA data-mining and wiretapping programs 
or whether the attorneys were granted security clearance and 
then denied access to this specific information.
    Either way, it is difficult to understand why these 
attorneys have been denied access to the information necessary 
to effectively do their job. The Office of Professional 
Responsibility is the branch of the Department of Justice that 
is responsible for ensuring that its attorneys maintain the 
high ethical and professional standards set forth by the 
Nation's primary law enforcement agency.\6\ It is only natural 
to assume that attorneys entrusted to preserve the integrity of 
such an important Government agency and given the authority to 
fully investigate allegations of misconduct \7\ would be highly 
trustworthy, reliable and undoubtedly loyal to the United 
States Government; and therefore worthy of this level of 
clearance.
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    \6\ Office of Professional Responsibility, available at http://
www.usdoj.gov/opr/index.html.
    \7\ Id.
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    Regardless of one's position with respect to the NSA's 
eavesdropping program, we cannot understand how anyone could 
support the Justice Department's refusal to be investigated by 
a duly appointed and authorized office who is charged with 
monitoring the ethics of the Nation's top lawyers. It is our 
firm belief that the Justice Department shouldn't be permitted 
to arbitrarily pick and choose which ethics investigations it 
will decide to cooperate with.

                                   John Conyers, Jr.
                                   Rick Boucher.
                                   Robert C. Scott.
                                   Zoe Lofgren.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Sheila Jackson-Lee.
                                   Robert Wexler.
                                   Adam B. Schiff.
                                   Chris Van Hollen.

                                  
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