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53–774 2009

LEGAL PERSPECTIVES ON 

CONGRESSIONAL NOTIFICATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

INTELLIGENCE COMMUNITY 

MANAGEMENT 

OF THE

PERMANENT SELECT 

COMMITTEE 

ON INTELLIGENCE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

Hearing held in Washington, DC, October 22, 2009 

( 

Printed for the use of the Committee 


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LEGAL PERSPECTIVES ON CONGRESSIONAL 

NOTIFICATION 

THURSDAY, OCTOBER 22, 2009 

HOUSE OF REPRESENTATIVES, PERMANENT SELECT COMMITTEE ON INTELLIGENCE, SUBCOMMITTEE ON INTELLIGENCE COMMUNITY MANAGEMENT, Washington, DC. 

The subcommittee met, pursuant to call, at 10:06 a.m., in Room 

HVC–340, Capitol Visitor Center, the Hon. Anna G. Eshoo (chairwoman of the subcommittee) presiding. 

Present: Representatives Eshoo, Hastings, Holt, Ruppersberger, 

Schakowsky, Murphy, Reyes (ex officio), Thornberry, Rogers, 

Myrick, King, Hoekstra (ex officio). 

Chairwoman ESHOO. Good morning, everyone. I call this hearing 

to order. The Ranking Member has joined us. Members will be 

coming in. I want to welcome everyone that is here today; most especially, our panel of witnesses who we are very grateful to for 

sharing their views with us. 

Today’s hearing very importantly examines the provisions in the 

National Security Act of 1947 that established how the President 

keeps Congress informed of intelligence activities. It is part of the 

full committee’s investigation into whether the Intelligence Community has met its obligation to keep Congress ‘‘fully and currently’’—and that term comes from the National Security Act—informed of intelligence activities. 

The obligation is a solemn one. Intelligence activities necessarily 

take place in secret, the details known only to those who execute 

and plan them. They are not subject to the scrutiny of public debate, competing interest groups, or taxpayers. The only people outside the executive branch who may examine these activities are 

members of the congressional Intelligence Committees. We act as 

the stewards of the public trust, a check on a system that sometimes acts without the benefit of independent perspectives. 

Congress cannot fulfill its constitutional role without access to information. Congress has a duty to learn, and the executive branch 

has a duty to share, the information that is necessary for Congress 

to authorize, to appropriate funds, and oversee the activities of the 

Federal Government, including intelligence activities. 

The manner in which the branches have shared information has 

evolved in the decades since World War II. From 1947 until the 

mid-1970s, the Intelligence Community briefed Congress primarily 

through informal meetings with a handful of senior committee 

chairmen. The Church and Pike Commissions helped usher in reforms that led to the creation of the Intelligence Committees and 


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required that the President report to Congress when initiating a 

covert action. 

The Iran-Contra affair and revelations about other U.S. government activities in Latin America spurred Congress to create the 

current standard in 1991; that the President must keep Congress 

‘‘fully and currently informed’’ of all ‘‘significant’’ and ‘‘significant 

anticipated’’ intelligence activities. 

But even the statutory regime is flawed. Members of this committee have been repeatedly frustrated by the lack of prompt, thorough notification of intelligence activities. Public revelations of intelligence activities after 2001 have also raised serious questions 

about the commitment of the executive branch to meeting not just 

the letter of the law, but its intent as well. 

Some have argued that there is no obligation to notify Congress 

if an activity is not ‘‘operational,’’ a term not found in the statute. 

There have been disputes about what ‘‘significant’’ actually means 

in this context. We need to understand why there are no penalties 

in the National Security Act itself and what Congress’ remedies are 

if the executive branch does not comply with its obligation to keep 

Congress informed. 

I hope each one of our witnesses today can help us answer these 

questions and gain a deeper understanding of Congress’ oversight 

role, the history of Congress and the Intelligence agencies, and the 

meaning of the statute itself. 

Before I welcome our panelists and introduce them individually, 

I would like to recognize what I think is really a wonderful and 

outstanding Ranking Member of this subcommittee, Ms. Myrick, 

for any statement she may wish to make. 

Mrs. MYRICK. Thank you, Madam Chairwoman. Welcome to our 

witnesses, all. Today, we are talking about congressional notification. There is one thing that is of great concern to me that I wanted to mention. This is the ninth-month anniversary of President 

Obama’s decision to close the Guantanamo Bay detention facility. 

And so I can’t think of a better time to discuss the lack of notification to Congress about the plans for this facility and the terrorist 

prisoners there. 

The decision was rushed and the President didn’t have a plan 

when he started out on this. And in the time since he has made 

this choice, the administration has refused to brief this committee 

on how it will implement the decision or to discuss the threats 

posed by moving detainees to the United States. 

The public hearing is very timely. It gives Congress a rare opportunity to discuss before the American people both the threat posed 

by the closure of GTMO and the refusal of the administration to 

keep Congress fully and currently informed on this national security issue, which I happen to believe is a huge one. 

I ask all of our witnesses today to comment on why you think 

it is important that a national security policy that could mean moving terrorist suspects into American communities must be conducted with full transparency, full congressional notification, and 

with tough congressional oversight. 

There were reports that could include moving Guantanamo detainees to California, North Carolina—my State—Kansas, or Michigan. There are other reports that some of these places may or may 


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not still be under consideration, but the reality is, unfortunately, 

no one knows which of these reports is true because the administration has not notified Congress of its plans for Guantanamo Bay, 

and it has not offered that transparency to the American people. 

So I welcome this hearing this morning and I believe it is a 

chance to move beyond discussing just the issue of notification as 

an academic one and to examine it as an issue that has real-life 

consequences. 

With that, I again welcome witnesses and look forward to your 

testimony. And, thank you, Madam Chairwoman. 

Chairwoman ESHOO. Thank you. I would like to remind my colleagues that the subject of today’s hearing is the ‘‘Congressional 

Notification of Intelligence Activities.’’ We have asked our witnesses to testify to the history and relevance of provisions in the 

National Security Act of 1947 that require congressional notification generally, as well as those that address covert actions and regular collection activities. 

I think the members of this committee know very well that the 

detention facility at Guantanamo Bay is not under the jurisdiction 

of the Intelligence Committee and is really outside the scope of this 

hearing. Obviously, members can choose to say whatever they want 

to say, but I think, with all due respect to not only the construct 

of this hearing and its very purpose and the witnesses that we 

have called who are experts in the area of not only the history and 

the relevance of the provisions in the National Security Act and 

congressional notification, that that is what this hearing was set up 

to examine, and that is what we will do. 

I now would like to recognize the distinguished Chairman of the 

full Intelligence Committee of the House, Mr. Reyes of Texas. 

Mr. Chairman. 

Mr. REYES. Thank you for convening this very important hearing. 

This is one of several hearings on congressional notification that 

the Intelligence Committee will conduct, both open and closed. This 

is an open hearing today. These hearings are part of a full committee investigation into the symptoms that make up the broader 

issue of the timely and accurate notification to Congress of intelligence activities. 

I have asked the subcommittee to look into the state of the law 

on notifications. I thank you, Madam Chairwoman, for working 

hard in looking into all these different aspects. 

Obviously, this is a serious issue that we want to look at and we 

want to get as many different perspectives as possible and feasible. 

In other aspects of the committee’s investigation, we will be looking 

into specific instances in which the community may have fallen 

short of its obligations. 

Today, though, Chairwoman Eshoo has assembled for us two distinguished and expert witnesses, to which I add my welcome and 

thank you for agreeing to be here this morning. Just looking and 

reading your bios, I really appreciate the experience that you bring 

to this hearing today. 

I also welcome you, sir. Thank you for agreeing to be here. 

I guess you can say that from your perspective and your experience, you had ringside seats to the debates that actually led to the 

key provisions of the law that we will be discussing both today and 


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in this process, trying to fix something that hasn’t worked, at least 

to the satisfaction of keeping Congress fully and functionally informed. 

As I think all of us know and appreciate, this is a serious subject, 

one that goes to the heart of what is this committee’s obligation to 

conduct a thorough oversight of intelligence activities of the United 

States. 

I appreciate that we work in a political body and that sometimes 

more provincial issues can take center stage. There are things we 

can control and things that we can’t. I hope that we remain focused 

today on the larger question of what the requirements are for notification in the realm of intelligence activities. I know we will have 

opportunities later to discuss specific instances as they may apply 

broadly across our country, but today is not the day for that. 

I think it is imperative that we get different perspectives and we 

have as complete an understanding as possible so the committee 

can move forward and do its very serious work. 

So, again, welcome to all of you. Thank you for being here. 

Madam Chairwoman, thank you for convening this very important hearing. I regret that I won’t be able to stay because I am in 

another hearing myself, but I look forward to your recommendations. 

Chairwoman ESHOO. Thank you, Mr. Chairman. This subcommittee is really devoted to producing a sound report to the full 

committee, the completion of our work that you charged us with. 

So thank you for being here this morning. 

With that, I would like to recognize the distinguished Ranking 

Member of the full committee, Mr. Hoekstra. 

Mr. HOEKSTRA. Thank you. I appreciate the time. And I appreciate the direction that the Chairwoman has set, that this is about 

intelligence and it is about the National Security Act. It is exactly 

for that specific reason that we do want to talk about GTMO and 

the Guantanamo facility, because we know that where the prisoners and the detainees are housed at GTMO, whether they are 

housed in GTMO or somewhere in the United States, will affect our 

ability to gather intelligence from these individuals. 

We, I think, all recognize that many of these individuals that are 

in GTMO have been identified as high-value targets. And this is 

also the responsibility of the committee because we have received 

information through the committee and have been notified through 

the committee of significant information regarding these individuals, their detention, that may or may not impact where these individuals should be located, and information that should be available 

to the people in the State and the communities where these individuals may be moved to. 

We go back to January 22, as the Ranking Member indicated, the 

Obama administration decided to move these individuals or to close 

the GTMO facility. Since that time, there has been a total lack of 

transparency on its efforts to close the detention facility, although 

it will have a significant impact on intelligence. Despite signing 

that executive order for the facility to be closed in one year, the 

President has still failed to provide any plan on how this administration will do so. 


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The Obama administration is scrambling to find a place to move 

Guantanamo detainees. It refuses to meet with this committee to 

discuss known security risks, legal issues associated with moving 

them to America and elsewhere around the world. The Obama administration is also refusing to provide any information to State 

and local officials on the security profiles we have built on the detainees or to talk about relevant security precautions that must be 

taken before relocating prisoners to my home State, Michigan, or 

anywhere else in the United States. 

It is clear that President Obama and Secretary Gates are trying 

to shut down congressional oversight. They are willing to disregard 

the requirements of the law to keep the congressional Intelligence 

Oversight Committees fully and currently informed about national 

security matters. 

The Obama administration officials clearly do not want to answer any tough questions about what so far has been one of the 

most disastrous policy decisions made by this President. Even 

though President Obama and his officials know full well there are 

extremely dangerous terrorist suspects in Guantanamo that cannot 

be safely transferred, they still plan to move them, including bringing some to the United States. 

The consequences of the President’s decision and whether it is 

necessary or wise to close Guantanamo Bay are legitimate and 

timely topics that should be the subject of robust congressional 

oversight and debate. 

I am glad that Dave Munson is here. He is here as a representative from Standish, Michigan, because the Obama administration is 

thinking of relocating GTMO detainees to a soon-to-be-closed prison 

there. Mr. Munson organized a grassroots effort to oppose this 

move and has been asking tough questions of local, State, and Federal officials. Mr. Munson and I agree that although Michigan and 

Standish are facing tough economic times, our State does not need 

an al Qaeda stimulus. 

Worried residents of Michigan want to know more about plans to 

move GTMO detainees to our State. Residents of other States are 

also asking questions. I have asked questions and sent letters. I 

have asked the Obama administration for permission to provide information on the detainees to Michigan officials and to allow me to 

lead a delegation of State lawmakers for an oversight visit to the 

GTMO facility. All of our requests have been denied. Along with 

them, the American people, the people of my home State, and even 

Dave Munson, were denied much-needed transparency on this serious security issue. 

So often we talk about the lack of transparency and the requirements of the National Security Act as how they impact us here in 

Washington and the relationship between the executive branch and 

Congress. Today, we add another dimension to that discussion and 

to that debate: what happens when there is a lack of transparency, 

a lack of accountability, and a lack of following the law of keeping 

people and Congress and others fully informed on national security 

issues? 

Today we add the local dimension. A small community that is 

facing tough economic times, and what happens when they are 

promised things from Washington, DC—at least certain people may 


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be—but the community, State legislators, and the congressional 

delegation is refused access to that information that should be fully 

shared and open as that discussion and those decisions are being 

made. 

I am glad that Dave is here today to provide that additional dimension to that debate. It clearly relates to intelligence and it 

clearly relates to local issues and it clearly relates to statutory requirements to keep us fully and currently informed. 

Thank you, Madam Chairwoman. 

Chairwoman ESHOO. The chairman of the full committee is recognized. 

Mr. REYES. I just want to make sure that the record is clear that 

we have jurisdiction in this committee and rules in the House that 

we have to abide by. The issues that the Ranking Member just 

raised are the jurisdiction of the Armed Services Committee. There 

are a number of us that are on the Intelligence Committee—that 

are also members of both committees. But it is very important that 

we understand that those jurisdictions have to be respected. 

I know that he and I have worked hard to protect the jurisdiction 

of this committee. I know that Chairman Skelton and Ranking 

Member McKeon worked very hard to protect the jurisdiction of 

this committee, and we ought to respect that. 

Hearing the comments of the Ranking Member, this is something 

that individually we have to be responsible in how we approach the 

jurisdiction and the topics that this committee looks at. I could 

make the same kind of argument and bring somebody here from 

the border to address the violence that is currently going on in 

Mexico and somehow stretch that into the national security issue, 

but that is not what this is about. 

This shouldn’t be about a personal issue that you want to look 

at. This is about the bigger issue of how do we move forward in 

making a case for and fixing a system that hasn’t served us well 

in the Congress. And that is why you two gentlemen are so critical 

to this, because, as I said, you have held ringside seats when these 

issues were being discussed, when these issues were being formulated. 

I am anxious to hear your perspective so that we can get back 

to how we can work as a coequal branch of government with the 

executive branch so we can get our respective jobs done. 

I just wanted to make sure that the record was clear on that 

issue, and thank you for the time. 

Mr. HOEKSTRA. Mr. Chairman. 

Chairwoman ESHOO. Thank you. Mr. Hoekstra, do you want to 

yield? 

Go ahead. 

Mr. HOEKSTRA. Thank you. Mr. Munson here is going to provide 

us with a front-row seat as to what happens when the requirements are not met. This is very much an intelligence issue. Many 

of these people that are housed in GTMO are individuals that we 

continue to gather intelligence from. So it is the responsibility of 

this committee. 

We receive information on these detainees on a regular basis in 

our committee that we are briefed on. And to say that this is just 

solely the jurisdiction of the Armed Services Committee is totally 


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inaccurate. We get information on a regular basis as to who these 

folks are, how they may or may not be assisting us in our ability 

to comprehend the plans, intentions, and capabilities of al Qaeda 

and radical jihadists, and recognizing that if we move these individuals to another location, our ability to gather that intelligence 

may be compromised or may be limited, but we do know it will be 

changed. 

It is very much an intelligence issue, and also an intelligence 

issue as to how this impacts a local community. 

Chairwoman ESHOO. I would like to start the hearing. 

Mr. HOEKSTRA. I am just asking for the same amount of time to 

respond to the Chairman’s critique of the statement that I have. If 

you want to shut this down, we know you have the capability and 

authority to make that happen. I believe that would be a very unfortunate step to take. 

Chairwoman ESHOO. I am not going to take any unfortunate 

steps today, Mr. Hoekstra. This hearing is clearly to examine the 

National Security Act. All of the members know that. This was a 

charge of the Chairman of the full committee to the full committee 

of members and what each subcommittee would do relative to the 

overall investigation and examination. 

So I am very pleased that it is public. I think all the members 

of this subcommittee know what my preference is, and that is that 

we have as many public hearings so that the people of our country 

are well instructed. The statute does not address the right of locals 

to be informed about intelligence activities. It is certainly your prerogative to raise something that is in your State and a concern. We 

welcome the Minority witness from Standish, Michigan. We are 

very pleased to see you. But we are going to stick with the reason 

why we called this hearing today. 

As I said in the beginning of my remarks, when we talk about 

the obligation to keep Congress fully and currently informed of intelligence activities, that that is an obligation that is really a solemn one. 

So with that, I would like to once again welcome our panelists 

and I would like to introduce the Honorable L. Britt Snider, who 

is sitting in the middle of the table. That is in fine print there on 

the card. He served as the first statutory Inspector General of the 

Central Intelligence Agency from 1998 to 2001. Prior to that, he 

served as the General Counsel to the Senate Select Committee on 

Intelligence. He is the author of ‘‘The agency and the Hill: CIA’s 

Relationship to Congress, 1946 to 2004.’’ 

If any member of the committee has not gotten that book, I 

would suggest that you do. Now it may not be the fastest moving 

page-turner, but it is so highly instructive and you will come away 

enriched, I believe, to learn the history, to understand the history 

that he has set forth so factually from after World War II up to 

the present moment. So thank you for your brilliant work. He is 

currently a visiting scholar for the CIA’s Center for the Study of 

Intelligence. 

Seated next to him is Mr. Fritz A.O. Schwarz, Jr., who has 

served as the General Counsel to the Church Committee. He is the 

coauthor of ‘‘Unchecked and Unbalanced: Presidential Power in a 

Time of Terror.’’ He is currently the General Counsel to the BrenVerDate Mar 15 2010 04:23 Dec 16, 2010 Jkt 053774 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 E:\HR\OC\A774.XXX A774

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nan Center for Justice at the NYU School of Law. He is also a senior partner at Cravath, Swain and Moore in New York. We welcome you and we thank you for your brilliant work. I am also reading your book. I would recommend it to all the members of this 

committee. 

Of course, we welcome Mr. David Munson, who is a private citizen from Standish, Michigan. Thank you for traveling to Washington, DC to be here with us. 

STATEMENTS OF L. BRITT SNIDER, FORMER INSPECTOR GENERAL, CHURCH COMMITTEE; FRITZ A.O. SCHWARZ, JR. 

FORMER CHIEF COUNSEL, CHURCH COMMITTEE; AND 

DAVID E. MUNSON, PRIVATE CITIZEN, STANDISH, MICHIGAN 

Chairwoman ESHOO. With that, we will begin with Mr. Snider. 

You are recognized and we look forward to your testimony. 

STATEMENT OF L. BRITT SNIDER 

Mr. SNIDER. Thank you, Madam Chairwoman. I would correct 

one thing. I was actually the second statutory IG at the CIA. Fred 

Hitz was my predecessor. 

It is indeed a pleasure to be here with you today. I have been 

asked to provide a brief historical perspective on the congressional 

notification issue and limit my remarks to 10 minutes, which I am 

going to try to do, but it will require me to skip over fairly large 

portions of my prepared statement, so please bear with me while 

I go through this. 

There was nothing that required intelligence agencies to keep 

Congress informed of their activities until the mid-1970s. Before 

that, what was shared with Congress was a matter of what a DCI 

believed Congress needed to know in terms of securing his appropriation each year, or what the DCI believed Congress needed to 

know in order to explain something that had found its way into the 

press. 

Having said this, I found no instance in my research where a 

DCI ever refused a request from a chairman of one of his subcommittees during this early period. And as you all will recall, at 

that point, the subcommittees of the Armed Services Committees 

and Appropriations Committee on each side did oversight of the 

CIA. In fact, the DCIs took great pains to court their overseers during this early period. But they didn’t ask very much of the agency 

at that point. All of them, I think, wondered if they were being told 

the whole story. 

In fact, I came across instance after instance where they asked 

the DCI that question, whether they were being given the entire 

story. But they thought that the CIA was carrying out an important mission and they thought an overly inquisitive Congress could 

only detract from that mission. By the mid-1970s it had become 

painfully clear that the existing arrangements were inadequate. 

The CIA subcommittees simply had not known of the alleged improprieties and illegalities that began coming to light during this 

period in wave after wave of press disclosures. I am referring to 

collecting political activities of U.S. citizens, interfering in the elections of democratic countries, building an infrastructure at the CIA 

to carry out political assassinations, conducting drug experiments 


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on unwitting subjects within the United States, these kinds of 

things. The CIA subcommittees were not aware of any of these activities and really didn’t know enough to ask about them. 

The congressional committees that were set up to investigate 

these activities, the Church Committee in the Senate and the Pike 

Committee here in the House, both recommended at the end of 

their work that permanent committees be established, dedicated to 

the oversight of the CIA and the rest of the intelligence Community. Of course, the Senate acted first, in May of 1976, to create the 

SSCI. The House took a bit longer, creating HPSCI in August of 

1977. 

I think if there were one thing Congress intended when they created these committees, it was to improve the awareness of Congress as an institution with respect to U.S. intelligence activities. 

In fact, one need to only look at the language of S. Res. 400 that 

created the Senate Intelligence Committee, which included among 

other things, ‘‘sense of the Senate’’ language that the heads of all 

intelligence agencies should keep the new committee fully and currently informed of their activities, including any significant anticipated activities—words that have become very familiar to all of us. 

The resolution went on to say it was the sense of the Senate that 

intelligence agencies should provide any documentation that was 

requested by the committees. Also, it went on to say that the agencies should report any violation of law or executive branch regulation that they became aware of. These words were not legally binding upon the agencies, but they were the first expressions by either 

House of Congress in terms of what they expected intelligence 

agencies to do vis-a-vis the oversight committees they were creating. 

Two years later, the Carter administration issued an executive 

order on intelligence which did make these obligations in the Senate resolution binding upon the intelligence agencies. Two years 

after that, Congress passed the Intelligence Oversight Act of 1980, 

incorporating them into statutory law that would now be binding 

on future administrations, not just the Carter administration. 

The 1980 act also did several other things. It pared the number 

of committees to receive notice of covert actions under the old 

Hughes-Ryan amendment from eight committees to two—the two 

Intelligence Committees. It also gave the President the option of 

providing notice, where particularly sensitive intelligence activities 

were concerned, to a group of eight congressional leaders, the socalled Gang of Eight, rather than the committees as a whole. This 

option originally was to be available whether the intelligence activity involved sensitive collection or covert action. 

In addition, where covert actions were concerned, the new law 

specifically recognized that there may be occasions where the President cannot provide prior notice either to the Gang of Eight or to 

the full committees, and that when that occurred, notice would be 

provided the committees ‘‘in a timely fashion,’’ together with an explanation of why prior notice could not have been given. 

The 1980 act was amended in 1991, both to take into account 

what had happened during the Iran-Contra scandal during the late 

1980s, as well as to take into account the practice under the statute to that point. 


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The basic obligations of intelligence agencies vis-a-vis the committees remained the same, but several important adjustments 

were made in the notification process. One of these was to limit the 

Gang of Eight option to covert actions only, rather than making it 

available to notify the committees of any intelligence activity that 

was particularly sensitive. 

While the timely fashion formulation was retained, where prior 

notice of the covert action had not been given, the committee said 

in report language they expected the notice to be provided, without 

exception, within a few days of the President’s approving a covert 

action finding. 

There have been no major changes to the notification requirements since 1991, although, as I point out in my prepared statement, there have been some changes in the practice under the statute. 

Allow me to close now with just two observations and something 

of an eye to the future. Ever since the obligation to keep the oversight committees fully and currently informed first appeared in the 

law, there has been, as a practical matter, a degree of latitude in 

terms of how this should be done. From the very beginning, in fact, 

the heads of intelligence agencies would brief particularly sensitive 

intelligence activities, first with the leaders of the two oversight 

committees and perhaps their key staff, before providing notice to 

the committees as a whole. The purpose of these consultations 

would be to discuss how the sensitive matter at issue would be 

handled within the committee; when would the full committee be 

briefed, whether there were certain details that could be left out 

that were not crucial to the committee’s ability to weigh the operation in question, whether documentary materials would be retained by the committee or kept within the executive branch, how 

many staff would be cleared, and so forth. The kind of things you 

might do to limit the security risk while still accommodating the 

needs of the committees. 

There is nothing in the law that precludes this kind of consultation and, in fact, over the years I think it has been very useful to 

have had these discussions. I don’t see them as a substitute for notice to the full committees, but rather as a way of getting there in 

a way that satisfies, to the extent we can, the interest of both 

branches. 

The last observation I would make deals with the notice to the 

Gang of Eight and, from the standpoint of the Congress, it has 

never worked very well. The problem in my view has not been with 

notice to the Gang of Eight per se, but rather with how it has been 

implemented. It is weighed too heavily, I think, in favor of the executive branch. It does not sufficiently take into account congressional needs. 

I don’t think the Congress, when Congress provided this option, 

intended it to be that way, but I think that is the way it has 

evolved and been implemented. The statute itself simply says that 

in especially sensitive cases the President has the option of providing notice of covert actions to a smaller group. It doesn’t say 

what this smaller group may do with the information. But the executive branch has told them. In fact, it has told them they can’t 


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do anything with the information. And over the years, the Gang of 

Eight has acquiesced in what the executive branch has told them. 

I think, personally, this has been a mistake, because when it has 

happened, it has effectively marginalized congressional oversight. 

It has meant that eight congressional leaders can only react to 

what they hear, without the advice of their professional staffs, 

without the advice of knowledgeable colleagues. And I think this is 

difficult for them to do, coming at it cold, having it presented to 

them in the most benign way possible. 

If they decide they have a problem, they have to be able to articulate on the spot what that problem is in a convincing way. If 

they later decide they have a concern, then they have to take it 

upon themselves to go back and raise it with the administration. 

Again, they are going to have to rely on their own memory, because 

they weren’t allowed to take notes at the briefings and there is no 

record of what they were told that they have access to. 

And so just very few, I think, congressional leaders are going to 

be willing or able to do this. But rest assured, if whatever program 

they have been briefed about subsequently goes south, their buyin will be touted by the administration very prominently. 

I just simply don’t think this is fair to the members involved. If 

the Gang of Eight option is to be kept, and I think an argument 

can be made that it should, then I think something needs to be 

done to restore the balance; something that better recognizes and 

accommodates the needs of the eight congressional leaders. 

I personally think it can be done by each committee adopting 

procedures without amending the statute itself. But it would be desirable, I think, that these procedures be developed with the administration’s participation and with their concurrence if this is 

going to work. I think this is possible if both branches operate in 

good faith. 

Madam Chairwoman, I continue to hope that it will happen. 

Thank you. 

Chairwoman ESHOO. Thank you, Mr. Snider, for your excellent 

testimony and, really, for all the contributions you have made to 

the well-being of our country. Again, we are honored to have you 

here. 

[The statement of Mr. Snider follows:] 


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

STATEMENT OF FREDERICK A.O. SCHWARZ, JR. 

Mr. SCHWARZ. Thank you, Madam Chair. Before the Church 

Committee and the Pike Committee, you could characterize Congress’ role in overseeing the Intelligence Community as being ‘‘don’t 

ask, don’t tell.’’ That was harmful to the Intelligence Community 

and to the United States. 

The wonderful, longtime general counsel of the CIA, Lawrence 

Houston, said that the lack of congressional oversight caused problems for the CIA because ‘‘We became a little cocky about what we 

could do.’’ The same thing could be said in spades for the FBI and 

could be said for the NSA. 

Now the Church Committee laid out a whole lot of wrongdoing. 

Britt mentioned some of it. There is a chapter in my book that does 

more. I know at least one member here has a lot of the reports in 

his office. But I am not going to summarize all that wrongdoing. 

But I want to give a conclusion, which is that all of that improper, 

overreaching conduct harmful to the United States was directly enabled by lack of congressional notification and oversight. I think 

that fact is important in your thinking about today what is important for you to do. 

Now on the technicalities of the current National Security Act, 

it seems to me that CIA Director Leon Panetta was correct in saying that the Gang of Eight notification should be limited to covert 

action. It should not cover, it should not have covered items like 

torture or wireless wiretapping which were, under the recent administration, used the Gang of Eight device and prevented, I think 

to the great harm of this country, adequate oversight of those actions, which have hurt us. 

Now I also think that, assuming the Gang of Eight is kept, you 

can’t have a process in which staff people are not allowed to participate. You shouldn’t have a process in which each member is 

called in on their own instead of the group having a chance to deliberate. Also, I think the law should be clarified so that it is made 

clear that with respect to covert action itself, the Gang of Eight, 

if it is kept, should be limited to emergency, immediate covert actions, and should not cover long-term ongoing covert actions which, 

because they are long-term and ongoing, deserve the attention of 

this full committee, the full committee. 

And to make a point about the committees in both the Senate 

and the House, they have had an exemplary record with respect to 

handling sensitive matters well. In fact, of course, it is true that 

there are far more breaches of security that come from the executive branch than come from the Congress. I don’t think there have 

been any breaches of security that have come from the Congress 

after those committees were created. That was the hope. And you 

have all carried that out well. 

And so the idea that it is dangerous to give information to the 

full committee is just not correct. And it is dangerous not to give 

the information to the full committee because important matters 

affecting our national security deserve discussion, deserve analysis. 

I think another principle that is important is the Constitution. 

The Constitution provides that this body, the Congress, shall have 


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the lion’s share of power. It is the Constitution that in Article I describes the Congress. As a scholar that I quote in my longer testimony says, ‘‘You could have had a fully functioning government if 

the Constitution had ended at the end of Article I.’’ 

Congress has enormous powers in the national security field. You 

have power over war. You have power to define and punish offenses against the law of nations—that would cover laws against 

torture, which you passed; you have powers to make rules for the 

government and regulation of the land and naval forces. Now, that 

is 1787 speech for the military and the security agencies—the land 

and naval forces. You have power to make rules for the government 

and regulation of those bodies. 

And if you look at the Youngstown case which I refer to in my 

written testimony, Congress, if it has acted, has the greater power. 

But this isn’t a question only of the Constitution and where power 

lies, even though it does lie with you. It is a question of the national interest. 

I think that is the most important point about this discussion; 

which is, the national interest is well-served if there is responsible, 

informed dialogue between the executive branch and the Congress. 

The national interest is ill-served if there are policies devised in secret and with only a small cadre of executive branch officials within 

the branch considering them. 

I use in my paper, my written testimony, the torture subject as 

sort of a case study. And it is a classic case study of the way—forget about what you think about that, ultimately. All of us probably 

have strong views on one side or another. But it is clear, I believe, 

that you should not have a decision like that made without any debate or discussion. If Congress is only brought into the process by 

a system that gives the Congress, this committee, insufficient information, using a stinted process, which is the way the Gang of Eight 

is now working—it is a stinted process—there are a number of 

harms that ensue. 

First, the likelihood of unwise decisions increases. The Founding 

Fathers, James Madison, when he wrote his wonderful 51st Federalist, understood human nature. And human nature is such that 

men, he said—we would say men and women—are not angels. And 

since we are not angels, the import of that lesson is that decisions 

are better made if they are made with full information and after 

discussion and debate. 

I believe that is the most important thing that you should consider as you determine how to either rewrite the National Security 

Act or talk about the issue with the executive branch. 

The executive branch also is not well-served by decisions being 

made without adequate information. They tend to blow up in their 

face. 

Of course, the final point I will make is when you have a system 

like the Gang of Eight—Britt referred to this at the very end of his 

testimony—usually things that were covered by secrecy come out. 

They don’t come out because of this committee. They come out because of the press, they come out because executive branch people 

leak things. But they usually come out. 

As Britt, coming from North Carolina, used this ‘‘go south,’’ as 

apparently something bad—I am not sure he really meant that— 


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but when they ‘‘go south’’, inevitably there are going to be unseemly debates between the executive branch and the Congress 

over who was told what. And you shouldn’t operate in a system 

where it is unclear who has been told what. You should operate in 

a system where the Congress, and the Congress’ chosen on your 

issues—to make that mean this committee—should be fully and 

currently informed. 

Thank you. 

Chairwoman ESHOO. Thank you very much for your outstanding 

testimony, Mr. Schwarz. 

[The statement of Mr. Schwarz follows:] 


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

STATEMENT OF DAVID E. MUNSON 

Mr. MUNSON. Madam Chairwoman, I am thrilled to be here 

today and to talk to you about the situation in my hometown. I 

come from a county of 15,000 people, a city of 1,500, and I am a 

business owner there. I sell less than $200,000, or around $200,000 

worth of goods in a restaurant. I have five employees. Fifty percent 

of my sales are food. And life is tough. It is very hard. We are having a very hard way to go. 

The Governor decided to close the prisons—not just ours, but 

seven others—and the situation is such that there has been a lot 

of information coming to certain individuals in the town from the 

Federal Government or representatives of the Federal Government, 

and the people of the town have not been included in that when 

they come to town. They see city councilmen, county commissioners, other people in town. It is a selected few they talk to. And 

specifically DOD, Homeland Security, Representative Bart Stupak, 

Department of Corrections in Michigan—which is not your issue. 

But we are having a hard time dealing with being number one 

on the list for the Guantanamo people. I mean this is what we are 

being told all the time. We are having a hard time dealing with 

that because we are not getting information from the Federal Government to the people in my area. 

The last statement I saw was that ‘‘After we make the decision, 

you will have 45 days to deal with it.’’ And that was by our Representative, Bart Stupak. 

Now I would think that they would come and tell us, inform us 

as to what they want to do before they make the decision to take 

our prison and do something with it, that they would include the 

people in town. 

We are just a small town, we are small people. We are trying to 

survive. This does not look like a win-win situation for us. Three 

hundred-thirty people have been transferred out of the prison to 

close the prison and it appears as though this whole scenario, with 

budget problems in Michigan, which every State has got budget 

problems, but this whole scenario with Standish Max was put together to bring these people here, to have a place to bring these 

people. 

We would like to strongly object to what is going on; the lack of 

transparency I guess it is called, the lack of information. If we 

could have a town hall meeting and we could have the Federal 

Government come and present their option to us, we might be interested in it. But at this point, people are scared to death. They 

don’t want Guantanamo North to be Standish Max. We don’t want 

to be a jihad ward when Guantanamo is closed, because Standish 

Max does not have the protection that Guantanamo has. We don’t 

have the infrastructure. We have 12 officers in our county and one 

police officer in our city. We couldn’t handle anything close to what 

this kind of move would do to our community. 

And so we would ask that if you have any power to do something 

with that, if you could get the Federal Government to come and let 

us know what their plans are—not after they have made their deciVerDate Mar 15 2010 04:23 Dec 16, 2010 Jkt 053774 PO 00000 Frm 00034 Fmt 6633 Sfmt 6602 E:\HR\OC\A774.XXX A774

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sion, but before they do. Some of the people in our—our mayor is 

on speed dial with a gentleman at DOD called Phillip Carter. We 

can’t get him to answer e-mails, we can’t get him to answer phone 

calls. 

The mayor pro tempore is talking to him, some of the county 

commissioners. That all came out in a referendum they just passed 

on the 19th where they were going to accept Federal detainees, and 

instead they changed the wording to Federal prisoners. But during 

the city council meeting, the mayor did say he had talked to these 

people. The county commissioner said he had been talking to them, 

too. So why aren’t the people in town? 

We had a hundred people at our city council meeting. One person 

was in favor of it. Ninety-nine percent were against. We had a nonquorum city council meeting where some of the councilmen just discussed it with us. There were over a hundred people there. And 2 

people were in favor of it, and 98, to give you a number, were 

against it. 

Everything I read, everything I hear is that the local community 

is in favor of this. Even the township supervisors are not in favor 

of this. But a few people that they have wired in keep going to the 

press and saying that this is what everybody in the area is in favor 

of. And we are not. 

So I thank Mr. Hoekstra for giving me some time to come and 

tell you that this is a very big issue in our town, even though I 

know it is not a big issue here. But the lack of transparency is very 

big. 

Mr. Munson’s statement follows. 


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Chairwoman ESHOO. Mr. Munson, thank you again for traveling 

across the country to raise an issue that you care, obviously, a 

great deal about. I would not characterize any member of this committee as to not caring about the issue, which is enormously complex, relative to Guantanamo Bay, to the detainees, and how that 

is all going to be handled. 

You have huge problems in the State of Michigan. States are 

struggling. You have characterized, obviously, the pain that is 

being felt in a small town and also the confusion because there is 

not, from what I hear from you, very good communication. 

I pledge to work with—and I think other members of this subcommittee—to work with the Michigan delegation to help clear 

some of that out. As I understand it, the facility that is in your 

community was a State prison, not a Federal facility. To you, that 

is neither here nor there, because you are worried. You can always 

debate how people can think, but you can’t tell them they are 

wrong for how they feel. 

So we welcome your coming to Washington to share your views. 

As you know, as you can tell, this hearing is not set up to discuss 

Guantanamo. 

We nonetheless welcome you. We thank you for your observations. And I commit, and I am sure other Members do, to work 

with the Michigan delegation first, that people in the community 

get very clear information. So while you obviously don’t share the 

credentials that the other gentlemen at the table have, nonetheless 

we are glad that you are here. But we are not going to be spending—at least many of us here are not going to be spending time 

examining what you just said, because the hearing is not about 

Guantanamo, and I think that you appreciate that. That is no reflection on you. You are a gentleman and a fine citizen. 

So let me start with the questions. Mr. Snider, in your testimony 

you discuss the administration’s obligation to brief the committees 

‘‘of significant anticipated intelligence activities.’’ I think the key 

word here is ‘‘significant.’’ Members of Congress obviously don’t 

have the time to be briefed on every single intelligence activity, 

and we are not, so there must be some process for deciding which 

are the most important ones. Some activities are routine; some, as 

exposed, are highly controversial, as we have learned. The statute 

focuses on significant intelligence activities. 

What factors, both Mr. Snider and Mr. Schwarz, should we look 

at to determine whether an activity is significant? That is my first 

question. And should we be looking at the level of the official who 

approved the activity, the impact or national interest if the activity 

were revealed? I think that should be taken into consideration, but 

you may want to comment on it. And the amount of money that 

is spent on the activity. And should we define—and this is, I guess, 

the top of my question, even though I am stating it last. Should 

we define what ‘‘significant’’ means in the statute, and how would 

that work? 

Mr. SNIDER. All right. Let me see if I can answer all of that. 

I think there are a number of factors that agencies consider. 

And, by the way, I would just point out it is the responsibility 

under the law of the head of the intelligence agency involved to 

make that decision, whether, in fact, Congress needs to be notified 


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because it has a significant anticipated—or significant intelligence—— 

Chairwoman ESHOO. Can I just interrupt here? If in my view, or 

I should say in my experience, if it is left to the individual, does 

that not start to become multiple choice and chip away at really 

what is significant and that it be defined? I think this is where we 

somehow have come off the rails, so to speak, because it seems to 

be a choice which then bumps up against being fully and currently 

informed. 

Mr. SNIDER. My personal view is, I think, resting that responsibility with the agency head is the appropriate place to put it, because if someone is going to make a determination that Congress 

does not need to be informed because the activity is, quote, not significant, it seems to me that person ought to be the agency head. 

He should be accountable for that decision, whether Congress is informed or not. 

And in terms of the factors that they might consider, whether the 

activity they are contemplating is new in terms of its target or in 

terms of its methodology. Some of the other factors you alluded to, 

the amount of resources, personnel involved; the likely impact that 

what they are contemplating will have on the agency’s mission; the 

likelihood that it might be disclosed and criticized; what risks do 

you run. 

So I think there are any number of factors that agencies do 

weigh in terms of whether Congress needs to be told about something new that they are planning to do. 

I don’t think I would include activities that are just percolating, 

ideas that are percolating down in the agencies themselves that 

have not at least achieved the status of management approval or 

recognition or whatever. I think that is reaching too low, but otherwise I think the system works reasonably well based on my experience when I was working in it. 

Chairwoman ESHOO. Mr. Schwarz. 

Mr. SCHWARZ. I had had—first thing in hearing your question I 

wanted to comment on a little bit was the word ‘‘brief.’’ I mean, 

that does bide on when the administration should come forward. 

But I think Congress needs to watch out about thinking that it is 

just a passive recipient of the briefing when the briefing comes, because, as you know, you have the opportunity and the right to explore on your own part and inquire as well as be briefed. 

I am not sure you are going to define ‘‘significant’’ in a law way, 

but I wrote down four factors. One would be how is it handled 

within the administration itself, within the executive branch itself. 

If the executive branch tries to have something decided by only a 

tiny group of people, that almost is by definition something that is 

significant. 

So then I think another example where something clearly would 

be significant is where it goes against existing law. I mean, under 

the theory of John Yoo and also the former Vice President, the 

White House could disobey the law as English kings could in the 

1600s. But if they are doing something which goes against the law, 

even if they incorrectly think they have the right to do that, that 

surely is something that the Congress should be brought in on. 


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And then what is the potential harm to the Nation if the matter 

is disclosed? That is a reason to increase the likelihood that this 

committee is involved, because it is a recognition something is important. And your record is exemplary on not disclosing things. 

And then finally, cost is a factor, but there are many very important things which don’t cost very much. I think the torture program didn’t cost very much, but it is a torture program, and they 

should have used that word honestly. It doesn’t cost very much, but 

it hurt the Nation enormously. 

Chairwoman ESHOO. Thank you. 

I just have one more question, and then I want to get to the 

Ranking Member, and there are so many Members here to participate. 

Can either one of you instruct us as to—because you know the 

history of this so well—why there were not any penalties built into 

the statute if there were violations of it? 

When I read it, that is one of the things that, in reading it, that 

stood out. 

Mr. SCHWARZ. I think probably the first answer is nobody 

thought of that, because they thought it was such a great thing to 

have a permanent committee and so forth. 

The best penalty for governmental failures is criticism, it seems 

to me. I am not sure that penalties that—which say if the head of 

the CIA doesn’t tell you, they have got to hide in the corner or 

something like that. I think if someone fails to do what they should 

do, and what they should do on the Constitution, the best penalty 

is disclosure and disagreement. It is my gut on it. 

Chairwoman ESHOO. Mr. Snider. 

Mr. SNIDER. I would just say on one point while the statute itself 

doesn’t contain any criminal penalties, you have had agency employees disciplined by their own agency for failing to abide by the 

congressional notification requirements. 

Chairwoman ESHOO. Can you give us some examples of that; not 

the names, but what happened to them? 

Mr. SNIDER. It happened in connection with the Guatemala case 

back in 1994. 

Chairwoman ESHOO. But what happened to individuals? Did 

they lose their jobs, or what happened? 

Mr. SNIDER. I can’t recall. I think they just received reprimands, 

I am not sure. I do remember—it has happened in the past. It is 

not as if agencies don’t take this seriously. I just point that out. 

Chairwoman ESHOO. Yes. I am not suggesting that they don’t 

take it seriously. It needs to be, but it just stood out to me that 

there wasn’t, and I thought you might know some of the history 

here. Thank you. 

With that I would like to recognize our wonderful Ranking Member Mrs. Myrick. 

Mrs. MYRICK. Thank you, Madam Chairwoman. 

Mr. Snider, and I am quoting something that was recently said, 

in recent press reports Senator Bond, who is the Ranking Member 

of the Senate Intelligence Committee, indicated his view that a 

growing number of disclosures of highly secret programs, tactics 

and other information had caused irreparable damage to the U.S. 

Intelligence Community. 


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How does this problem affect the willingness of the executive 

branch to share information with Congress? What can be done 

about it? 

And there is a second part of that that is just a personal gripe 

of mine, and that is I am new to the committee, but a lot of what 

we are told simply I have read about in the press before I am told 

here on the committee, and it is very aggravating. And so, you 

know, I don’t know how and where; it obviously doesn’t come from 

us, because we don’t have it, but yet this is becoming more and 

more of an issue on a lot of sensitive issues that that committee 

deals with, in my opinion. 

Mr. SNIDER. Well, I should point out to you that I am retired. I 

left the government 8 years ago. 

Mrs. MYRICK. Smart. 

Mr. SNIDER. So in terms of my experience, my experience is fairly 

dated. I can tell you when I was in the government and in the CIA 

for the last 4 years of my career, there was an incredible amount 

of information shared with the two committees back in the 1990s. 

I presume that is still continuing. 

Mrs. MYRICK. I am not saying we don’t get information, but, I 

mean, there have been several incidences within the last year actually of things, and probably before that. I wasn’t on the committee; 

I am just new to the committee this year. But you will see it in 

The Washington Post or The New York Times or something, and 

we haven’t been notified. 

Mr. SNIDER. Well, I presume you would complain under those circumstances if you think you should have been notified. I think 

there are always slip-ups, and then there are things that aren’t 

slip-ups, but are more intentional. But I don’t have—I am not able 

to really give you an explanation of why they didn’t tell you. 

Mrs. MYRICK. Some of this is leaks, and I understand you just 

referred to that, and I understand that. 

Mr. Schwarz, do you have a comment? 

Mr. SCHWARZ. The one thought I had in listening to you and 

Britt, if you feel you have not appropriately been informed, Congress is entitled to hold a hearing, and in this case you would hold 

it in executive session about why you weren’t informed. That is 

within your prerogative to do. And I think that is the sort of republican remedy for a wrong, using the ‘‘republican’’ as James Madison 

did, when you are worried about you want to go to things that are 

republican, like getting the information. 

Mrs. MYRICK. But it is so after the fact. 

Mr. SCHWARZ. Yes, but still, I mean, if you hold a hearing, and 

it turns out there was wrongdoing, that is going to make it less 

likely that there is wrongdoing the next time. 

Mrs. MYRICK. Happen again. 

Mr. SCHWARZ. Yeah. 

Mrs. MYRICK. Thank you. 

Mr. Munson, I just wanted to say to you that I completely understand where you are coming from, because North Carolina is one 

of the States that has been mentioned as a place to put these detainees as well. And our people in North Carolina have the same 

concerns that you do of not getting any information, or not being 

notified, or not being told. And then there is a concern of what 


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would happen if the people are released, and you know what can 

come from that. 

I also appreciate your being here today. 

Mr. MUNSON. Thank you, ma’am. 

Mrs. MYRICK. I yield back, Madam Chairwoman. 

Chairwoman ESHOO. Thank you. 

Mr. Holt. Wonderful participant, member of this committee, very 

thoughtful, everyone knows that. And he is a rocket scientist. 

Mr. HOLT. Thank you, Madam Chair, and I thank the witnesses 

for their testimony today and even more for their long record of 

good citizenship and public service. 

The witnesses have laid out clearly that congressional oversight 

is not only required constitutionally and legally, but that it is also 

beneficial from a practical point of view and from the point of view 

of organizational structure and management. 

One would hope that the Intelligence Community and the national security community at large would seek the consultation, the 

oversight and notification of Congress, but evidently not. So we 

have to talk about how we are going to accomplish that. 

It is, I must say, offensive to me and to some of us, I believe, 

when people say that, well, this must be restricted for the sake of 

national security. I mean, Congress has as much responsibility to 

provide for the common defense. Our oath of office is clear and unmistakable on this, and as the witnesses have commented, I think 

the history is pretty clear that leaks, the breaches of classified material, of the confidentiality do not seem to be coming from the legislative branch. I am sure national security reporters could certify 

to this, and I have actually suggested several times that they do 

that, but that is another matter. 

So because of the frequent lack of cooperation of the Intelligence 

Community, I would say that under the best of circumstances we 

are hampered, critically hampered, in doing our job. Some days I 

go so far as to say that under the best of circumstances, we cannot 

conduct the oversight that it is our responsibility to perform. Every 

other committee in Congress has outside interest groups, active citizen groups and others helping to perform that oversight, whether 

it is the Sierra Club or the American Trucking Association or the 

National Education Association or whatever. We don’t have that 

benefit, nor is there a culture of whistleblowing in the Intelligence 

Community, so we depend on this information. 

Now, earlier the Chair commented on the significance of the 

word ‘‘significant.’’ I would actually highlight a different word as 

the most significant one, which is ‘‘informed.’’ In fact, the law that 

requires fully and currently informed Congress has been turned 

into congressional notification. And I would appreciate a comment 

on whether you think that is—should be and is—the intended 

meaning of the phrase that Congress should be kept fully and currently informed, whether it is notification or consultation. 

If there is another round of questions, I will talk about what besides covert action should be covered, because we do specify covert 

action; maybe we could specify other things. I would like to talk 

about the gray area between Title 10 and Title 50 in the U.S. Code 

where there is a lot of activity that is taking place that may or may 

not be intelligence, but it seems very much like intelligence to me 


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and should be included in notification to the intelligence committees. 

Before I give up the microphone, I just also wanted to make sure 

that in this discussion everyone is aware that there has been a significant change here in the House of Representatives in the last 

couple of years in response to the recommendations of the 9/11 

Commission. We have created the Select Intelligence Oversight 

Panel, composed of some members of this committee and some appropriators to take advantage of the power of the purse, to provide 

better coordination between authorizing and appropriating and to 

enhance oversight. And that panel, which I have the honor of 

chairing, is coordinating with this committee in this general oversight effort that the Chair of this committee mentioned in his opening remarks. 

So I guess I have used up all of my time. If there is a comment 

about this notification, consultation informing matter, I would welcome that. 

Mr. SCHWARZ. It is wonderfully refreshing to see a man who is 

a scientist by training to be so very, very precise and sharp with 

words, which I first saw when I met you wearing my environmental hat. But there is a difference between being notified and 

being informed, and being informed is what the experience that led 

to these committees calls for. I mean, that is what the Church 

Committee really found out, that not being informed means there 

are more likely to be things that are illegal, unfair, embarrassing, 

bad for the country. I thought that was a very, very important 

point of emphasis. Notification is a partial tool toward informed, 

but the obligation of the executives should be to keep this committee informed. I think that was very terrific. 

Mr. SNIDER. I would simply agree with that. When I think of notifications, I think of formal notices of new programs or new operations or something like that. I think of being informed, including 

consultation, before something is done, having a back and forth; 

not just being told this is what is happening, but rather have a 

give and take with the committees. So I think being informed is 

broader than simply notification. 

Mr. HOLT. And notification can become perfunctory. 

Mr. SNIDER. Yes. 

Mr. HOLT. Thank you, Madam Chair. 

Chairwoman ESHOO. Thank you, Mr. Holt. 

The Chair is pleased to recognize Mr. Hoekstra. 

Mr. HOEKSTRA. Thank you. 

Mr. Munson, you are in a unique kind of position because you 

can kind of relate to where certain Members of Congress may feel 

at a time when the Gang of Eight has been briefed on an issue, 

but the rest of Congress has not been briefed on. When I take a 

look at what is going on in Standish, in Michigan, you are at a position where you believe that other people have been given information that you may not have been—that may not have been shared 

with other people in the community; is that right? 

Mr. MUNSON. That is correct, from the Federal Government, yes. 

Mr. HOEKSTRA. And the information is primarily information 

that may have been coming from a Phil Carter in the Department 

of Defense, and perhaps some of that information is—or he had 


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shared certain kinds of information perhaps with the mayor, the 

city manager, that stays very close hold. 

Mr. MUNSON. Yes, they seem to be on speed dial together. 

Mr. HOEKSTRA. And that is information that you have asked for 

and other people in the community have asked for? 

Mr. MUNSON. We have asked them a lot of questions, and we are 

not getting many answers, and they are making decisions that the 

people in the community don’t like. We raised over 400, almost 500, 

signatures from people from the time they posted their 4 o’clock 

meeting on Friday, and they had it at 4 o’clock on Monday, just by 

going to the churches and explaining the Guantanamo issue to 

bring it up for this resolution that they had, and these people freely signed these petitions and wanted more information. 

Mr. HOEKSTRA. And you are also aware that a number of State 

legislators have had and requested this same kind of information 

from the Federal Government? 

Mr. MUNSON. Yes. Tim Moore, our representative in the 97th district; Joe Haveman, the representative in your old district has 

asked for it, and there is nothing forthcoming. Mike Bishop has 

even asked for it. He is senate majority leader. 

Mr. HOEKSTRA. And I believe that this week the State—or the 

State senate judiciary committee held a hearing where they 

brought in the Michigan Corrections Department, and the Michigan Department of Corrections has indicated that they have had no 

discussion with the Federal Government or with the Department of 

Defense on this issue as well. 

Mr. MUNSON. They seem to be totally in the dark. 

Mr. HOEKSTRA. It is much of the same kind of information. We 

have got a number of requests in from our office and from this committee because it is an issue this committee has responsibility for. 

We are responsible for the military intelligence programs and falls 

well within our jurisdiction. Had requests into the Department of 

Defense and the individuals responsible for this program, supposedly the individuals that are making and having the discussions 

with local officials, and say, hey, just share with us maybe what 

you shared with the city manager in Standish. And they seem to 

be very, very reluctant. To date they have been totally unwilling 

to share that kind of information with us. 

Mr. MUNSON. People in my area are scared to death. They don’t 

know what is going on. They feel like they are being pushed—this 

issue is being pushed on them, and they are scared, they are just 

frightened. 

Mr. HOEKSTRA. And it is really no different that maybe perhaps 

some of the frustrations that Members of Congress may feel when 

there are classified programs where the information is very, very 

close hold; then it is kind of like they are frustrated as well that 

they can’t get access to more information. 

I am also assuming that you have read press reports about what 

Department of Defense has been telling the folks locally about 

what the impact may be; is that correct? 

Mr. MUNSON. There have been some reports, but there really has 

not been any facts or any real information, just small reports they 

were here, or they were there, or they said this, or they said that. 


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Mr. HOEKSTRA. But there have been discussions about how many 

jobs it might bring into the district. I think those were press reports, right? 

Mr. MUNSON. Right. They were talking about 1,000 jobs, 500 

from DOD and 500 from Homeland Security. 

Mr. HOEKSTRA. So, I mean, again, you are in the same position 

sometimes that Members of Congress are in in that we may read 

about something in the press before the information has been 

shared with us in a formal way. 

Mr. MUNSON. They said at city council meeting, it finally came 

out, that this was whispered across the table at the prison when 

DOD and Homeland Security were there, and everybody in the 

county ran with it, we are going to get 1,000 more jobs. And that 

is what drove all of this speculation on how the prison was going 

to be used. We just asked the Federal Government to come tell us 

what they are going to do. 

Mr. HOEKSTRA. I think you have asked the Federal Government 

for information. Just give us the background of who these people 

are and what they have done; give us your experience with housing 

them in Guantanamo; have there been any special challenges that 

you have incurred with housing them, just so that you would have 

a better understanding. 

But I very much appreciate your being here and recognizing that 

sometimes what you have gone through are some of same experiences that we go through here in Congress when we can’t get the 

information that we need to make the kinds of decisions that we 

need to make. 

Thank you very much. 

Mr. MUNSON. Thank you. 

Chairwoman ESHOO. We have been notified that votes will begin 

11:30. What I would like to do is to come back. There are Members 

who haven’t had the opportunity to ask questions of the witnesses. 

But we still have some more time now, because the bells haven’t 

gone off. Before I recognize Ms. Schakowsky, let me ask you this, 

Mr. Munson: Is this correct or not correct, and I come from local 

government, that this was a local government discussion that Mr. 

Hoekstra just had with you? It reminds me of my days on the 

board of supervisors in San Mateo County in California, which I 

cherish. There is a huge upset in the community for all the obvious 

reasons. And, of course, Guantanamo adds a whole another layer 

of issues to that. 

From what I have read in press reports, you were for this to 

begin with, and then you changed your mind after speaking to Mr. 

Hoekstra; is that correct? 

Mr. MUNSON. I was coming to Washington to lobby for it and 

when I talked to Mr. Hoekstra, and he said—— 

Chairwoman ESHOO. And you are entitled to change your mind. 

I just wanted it know if that was the case. 

Mr. MUNSON. Well, the reason I changed my mind is because I 

was picketing outside the prison to keep it open, and when he said 

that these people would be at risk, I see 20, 30 people driving in 

and out of there in their cars a day, and, yes, if this was an issue, 

these people would be at risk. So I changed my mind. 


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Chairwoman ESHOO. I just wanted to establish that. Yeah, thank 

you. Good. Everyone is entitled to change their minds. 

Ms. Schakowsky. 

Ms. SCHAKOWSKY. Thank you, Madam Chairwoman. I appreciate 

this hearing. 

I have to say I am somewhat surprised that the Ranking Member feels that we ought to be talking about something else, because 

on a bipartisan basis, as Mrs. Myrick indicated, we have over the 

last—this is just my—I am finishing my third year on the committee—time and again read in the newspaper or seen on television 

something that clearly should have been reported to us, where we 

should have been informed, where the Intelligence Community 

comes back and says, mea culpa, we should have told you, and situations where we have been misled. We have been told information 

that actually is either not complete or actually inaccurate. So now 

I am looking, and I can’t see it anymore. Mr. Snider, it absolutely 

happens, and has happened with too great of frequency in our committee. 

Next Tuesday we will continue this discussion, this subcommittee, and mine, the oversight and investigation committee, is 

going to go further. We are going to examine how the Intelligence 

Community implements the laws we are discussing today. 

I wanted to ask you, Mr. Holt asked about the word ‘‘inform’’ and 

Ms. Eshoo about the word ‘‘significant.’’ I want to ask about anticipated activities and how you think that we can define, or if we 

need to define, ‘‘anticipated committees’’ and perhaps refine that. 

Mr. Schwarz, I guess you mentioned to some extent that it 

shouldn’t be conversations, but what should it be? 

Mr. SCHWARZ. How to define ‘‘anticipated’’? 

Chairwoman ESHOO. Speak up. 

Mr. SCHWARZ. I would suppose that Congress plays a particularly 

valuable role when the issue is something that is anticipated, because then you can give your wisdom, bring your perspectives, 

which include being more in touch with the local communities. So 

I would say anticipated should not be seen as sort of a secondary 

issue for Congress, but a major issue for Congress. You can really 

make a difference when it is anticipated. 

Ms. SCHAKOWSKY. Does the National Security Act require the executive branch, Mr. Snider, in your view, to notify the committee 

of anticipated covert actions? 

Mr. SNIDER. Yes, it does require prior notice of covert actions. It 

also recognizes there may be circumstances where the President is 

unable to provide prior notice, and he then would provide notice in 

a timely fashion. Congress recognized the possibility that the President may have to act on an emergency basis to protect the country’s interests, and there just simply wasn’t time to brief the committees. But that was the only circumstance that was contemplated 

when that language was written. 

Ms. SCHAKOWSKY. The Director of National Intelligence Office 

unclassified January 2006 policy memorandum, which defines how 

the Intelligence Community must notify Congress about intelligence activities. The policy memorandum does not appear to require the consideration of a specific amount of money. I realize it 


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may not be the only factor when assessing a program’s significance. 

Should it? I ask either one of you. 

Mr. SNIDER. I am not familiar with what you are referring to, but 

I would certainly say it would be one of the factors to be considered 

in whether something is significant or not is how much money it 

was going to cost. I don’t know whether that was a purposeful 

omission or what. I just haven’t seen what you are referring to. 

Ms. SCHAKOWSKY. Mr. Schwarz, do you think there ought to be 

a threshold or some way to describe the amount of resources, 

money put into it? 

Mr. SCHWARZ. Well, I mean, as I said in answer to the Chair’s 

question at the very beginning, there are lots of important things 

that don’t cost very much money. I guess anything that costs a lot 

of money is important, but there are things that don’t cost—— 

Ms. SCHAKOWSKY. I agree with that, but regardless of those other 

factors, do you think that it is important that money be and funding be a part of that, and should there be more specificity? 

Mr. SCHWARZ. Perhaps. I haven’t thought that through enough to 

be very helpful to you. I think as long as you don’t imply from 

doing that that the things that cost less are not important. You 

have got to watch out people reading implications into things you 

write. 

Ms. SCHAKOWSKY. That is good advice. 

Thank you, and I yield back. 

Chairwoman ESHOO. I think—thank you. I think what we will do 

is we will go over. Is it time to vote? 

Mr. HOLT. We are 5 minutes into it. 

Chairwoman ESHOO. Should we take one more? Why don’t we 

move to Mr. Thornberry. And then when Mr. Thornberry completes 

his questioning, we will take a break, with your patience, and take 

the three votes and come back, because I know Members still have 

questions. 

Mr. HOEKSTRA. I have a note that says the first vote will be held 

open for approximately 30 minutes to accommodate the Afghan 

briefing. You guys will be able to figure that out better than what 

I can. 

Chairwoman ESHOO. All right. Whey don’t we keep going? We 

will ask our staff to keep us in the loop on the clock being held 

open, but we will take advantage of the time that another briefing 

is stretching the time on the first vote. 

Mr. Thornberry, you are recognized. Thank you for your contributions to the subcommittee and your patience this morning. 

Mr. THORNBERRY. Well, thank you, Madam Chair. I appreciate it. 

And, Mr. Munson, thank you for being here. 

As I listen to the other testimony, one of the themes that comes 

through is freer information flow results in better discussions, and 

that is what you are trying to get at where the rubber meets the 

road. And I appreciate very much you being here. 

Let me ask you all your reaction, because I have had an amendment to the National Security Act that basically says the presumption is that the administration shares everything with the Intelligence Committee. If the President wants to restrict it to some 

group less than the full Intelligence Committee, he needs to ask to 

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mittee will jointly decide whether to agree with the President’s request to restrict it to a smaller number. If they agree to restrict 

it or agree not to restrict it, then they decide who among the committee will be notified, but it would be Congress’s decision. If the 

Chair and the Ranking Member disagree, it would be restricted as 

the President requests. 

But part of the point is, Mr. Snider, I think it gets to your point 

where it requires consultation and discussion back and forth about 

how that notification or information will go. The other advantage, 

it seems to me, is it requires the Chair and the Ranking Member 

work together, which sometimes has been difficult. 

Anyway, let me just get your reaction to that presumption, Congress gets everything unless the President says to restrict it, and 

the Chair and Ranking Member decide on that request. 

Mr. SNIDER. So this would take the place of the Gang of Eight? 

Mr. THORNBERRY. Yes. 

Mr. SNIDER. And would it also take the place of fully and currently informing the committee as a whole? 

Mr. THORNBERRY. It would actually put the presumption for fully 

and currently informing the committee of everything, unless the 

President has a specific request, and then the Chair and Ranking 

Member have to act on that request jointly. 

Mr. SNIDER. Well, I haven’t thought about it, but as you point 

out, I do like the idea of consultation between the executive branch 

and the committees in terms of how something sensitive should be 

handled, and this would seem to provide for it. Now, it seems to 

me you are leaving a lot of power in the hands of the two leaders 

of your committee to agree. 

Mr. THORNBERRY. Certainly. 

Mr. SNIDER. And if they couldn’t agree, obviously you would have 

a committee that was not told. 

Mr. THORNBERRY. It would be the President’s restriction would 

take effect, that is true. 

Mr. Schwarz. 

Mr. SCHWARZ. Well, I think the idea of more consultation is a 

good one. Historically with the Church Committee it was notable 

that there never was a difference between the six Democratic Members and the five Republican Members on getting information. 

There were sometimes some differences on how to construe it or 

what to do about it. But John Tower, who was the Vice Chair, was 

extremely vigorous in pushing for getting information. 

So I think this is truly a bipartisan issue where the interest of 

the Congress as an institution are—— 

Mr. THORNBERRY. Well, as a matter of fact, what I outlined was 

jointly agreed to by the Majority and Minority on this committee 

last year, but for some reason it was not supported bipartisanly 

this year. But it was a bipartisan agreement to do just like I outlined last year. 

Let me ask one other thing, because we are limited on time. 

What do you do in a situation where Members of Congress are informed, but they deny that they were ever informed? We have had 

a long—several instances, whether it is the terrorist surveillance 

program or the enhanced interrogation program, where Members of 

Congress say, no, they never told me. And you look at the record, 


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and there were 15 briefings on one, 40 on the other. You get a 

prominent Member in political trouble, and she says, oh, they lie 

to us all the time. 

How you do deal with that where in a way it is political cover 

for Members in leadership or perhaps on the committee to deny 

that they were ever briefed, where, in fact, they were? 

Mr. SNIDER. I have long thought that all ‘‘Gang of Eight’’ briefings should be transcribed. There should be a transcript so there 

is no question of what the Members were told. And it would be 

available to the Members who were briefed. You know, it could be 

done. I don’t know why it isn’t done. That would take care of the 

problem, it seems to me. 

Mr. SCHWARZ. I think I love his transcribed idea, and you can 

keep those transcripts, as you know, totally secure. I think that is 

a great idea. It is almost inevitable that when you have these informal briefings, that there are going to be differences about what 

was said. I don’t think it is a fault of either side. I think it is almost inevitable if you have this system that it is going to lead later 

on to disagreements about what was said, particularly about, I 

would think, the adequacy of what was said. 

Mr. THORNBERRY. Thank you. 

Chairwoman ESHOO. Thank you. 

Mr. THORNBERRY. This is a very interesting discussion that I 

think we are going to—really deserves a lot more examination. But 

I can’t help but think that the tighter the noose is around secrecy, 

that the less—that what is diminished are the things that we are 

talking about and the outcomes that we have experienced. I mean, 

the Gang of Eight and the way it has operated, it is not so much 

their fault, the Members that happen to be a part of it, but it 

hasn’t, in my view, served us well. There are no records kept whatsoever, nothing. And yet we know that there is a safe, there needs 

to be, and some of the Nation’s top jewels in terms of secrets are 

kept there. 

Now, if this is such sensitive information, why wouldn’t there be 

a documentation of the time, the date, the place, the participants 

and the content of a meeting? I mean, that just, to me, really defies 

common sense. And then the outcomes as a result of this, unfortunately for the country, have turned into highly partisan debates 

and views that are held, and fingers are pointed, and fault and 

blame are assessed. And all of it is on the front pages of the newspaper, which, you know, in the last analysis, I don’t think that is 

where that should be. 

At any rate, how are we doing on time? 

VOICE. Four minutes left. 

Chairwoman ESHOO. I think we ought to go and take the vote. 

You all get to take a break. 

Are they going to keep it open? 

Mrs. MYRICK. They said they were going to hold it open. 

Chairwoman ESHOO. Three hundred eighty people haven’t voted. 

I think we can take Mr. Rogers. 

Mr. ROGERS. I think this Gang of Eight idea is just an awful idea 

anyway. I think the Ranking Member has been good about it. I 

think it is a bipartisan effort. It is just not a good way to conduct 

oversight of 16 agencies. 


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And to Mr. Schwarz’s point, I do believe that we have the responsibility to go ask questions as well. We cannot be passive observers 

in what is a very dynamic and, by culture, secretive organization. 

It is up to us to extract that information. 

I have to say I have never felt, when I have gone and asked 

questions, that I have been lied to, even about programs that have 

been briefed to the Gang of Eight that by showing up and asking 

questions you can get information on. I have never been told I can’t 

get it, which is kind of an interesting dilemma. So I think we can 

fix this problem relatively simply by making sure that the law is 

clear about what they must and what they must not—I want to get 

into more of that. 

Mr. Munson, thanks for being here. I do think this is a great 

irony that here is an example that will impact a community more 

than anything that I can think of, especially in a community like 

Standish where you can’t get access to the full information. And I 

just want to ask you a few questions, things that I would want to 

know. 

Have they briefed you as a community about the risks of bringing this many terrorists and housing them in one facility in your 

town? 

Mr. MUNSON. We have asked that question. These guys are rock 

stars of the jihad movement, and we got no answers. 

Mr. ROGERS. So they have given you no answer. 

Did they inform you that there have been prison breaks and attacks on these prisons in Yemen trying to free terrorists? Did they 

tell you about this? 

Mr. MUNSON. We have heard about it from the experts that came 

to our town hall meetings. 

Mr. ROGERS. But the Federal Government has not briefed—— 

Mr. MUNSON. The Federal Government has not—— 

Mr. ROGERS. A quick yes or no, if I can, just based on time, if 

you don’t mind. How about Iraq? Did they tell you about the prison 

break and the attack on the prison in Iraq? 

Mr. MUNSON. No. 

Mr. ROGERS. Morocco? Beirut? 

Mr. MUNSON. No. 

Mr. ROGERS. Philippines? 

Mr. MUNSON. No. 

Mr. ROGERS. Singapore? 

Mr. MUNSON. No. 

Mr. ROGERS. How about this year a British prison where a group 

of terrorists were planning a pretty aggressive attack, including 

outside help? 

Mr. MUNSON. The government has told us nothing. 

Mr. ROGERS. So here is a great example of why this is more than 

just a prison, isn’t it? 

Mr. MUNSON. Yes. 

Mr. ROGERS. This isn’t just a prison where somebody gets convicted, they have the will to live, they go and serve their time, and 

they hopefully get rehabilitated, certainly debatable, but go back to 

their community, correct? 

Mr. MUNSON. Correct. 

Mr. ROGERS. This is not that. 


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Mr. MUNSON. No. 

Mr. ROGERS. And so here is somebody who has a business in this 

community who could stand to gain by 1,000 jobs if that, in fact, 

were real. 

Mr. MUNSON. Real. 

Mr. ROGERS. And you have the courage to stand up and say, I 

am not sure this is good for the community, but, gee, I would sure 

like the information to make an informed decision. 

Mr. MUNSON. The information would be really nice. 

Mr. ROGERS. You are just asking for some information that might 

help you make a better decision. 

Mr. MUNSON. Yes, sir, we all are. 

Mr. ROGERS. And they have not told what risk these prisoners 

pose to even prison guards and the experiences they have had at 

Guantanamo Bay, have they? 

Mr. MUNSON. Haven’t heard a thing from the government. 

Mr. ROGERS. I can understand your frustration, and now I think 

and I hope at least the public can understand sometimes our frustration when we are expected to make a decision that might alter 

our communities, our national security. You don’t get the right 

amount of information, so it impacts Congress as much as it impacts a local community in the great State of Michigan and a great 

town like Standish. 

Mr. MUNSON. Thank you. Yes, sir. 

Mr. ROGERS. Would you be open-minded if they were to give you 

all of the information in a forum that was acceptable to the community where you could ask questions, tough questions, about the 

British prison break, and the Yemen, and Iraq, and Singapore and 

what it means to be a target for these kinds of operations? 

Mr. MUNSON. We have been asking for them to come to our community and give it to us, and there are no answers. Nobody answers the e-mails or phone calls. 

Mr. ROGERS. Did your local community vote by city council on 

this issue? 

Mr. MUNSON. City council voted by resolution to allow Federal 

prisoners. They take the words ‘‘Federal detainees’’ out of it. 

Mr. ROGERS. And did they give any indication that they had received information that the community was not receiving in order 

to make that vote? 

Mr. MUNSON. They had conversations with people from the government, DOD, Homeland Security and these meetings that they 

have had at the prison across the table. That is where the 1,000 

jobs came from. But the community knows nothing about it. It is 

driving this need to bring these people here. 

Mr. ROGERS. I appreciate you having the courage to be here and 

the courage to forego any profit that you might make by having 

1,000 jobs plop down in your community. I think that takes courage and certainly foresight of the dangers that might arise by 

bringing this many of the world’s worst into one community. 

I see I am out of time. I wish I had time to talk about Gang of 

Eight. I do think we have to work out legislatively so it is very 

clear. I think it is not so clear. It wasn’t clear to us. When I read 

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nity reads it, it is not clear to them. I think this is something that 

we can probably work out in a bipartisan way. 

Chairwoman ESHOO. And that is exactly the purpose of this 

hearing. 

Mr. Munson, just before we break, let me ask you this: Has the 

Michigan congressional delegation on a bipartisan basis come together to request that whomever has responsibility for this in the 

executive branch to meet with the locals? Are you aware of that? 

Or maybe I should be asking Mr. Hoekstra and Mr. Rogers. They 

are both from Michigan. But again, this sounds exactly like something that I would have dealt with when I was in local government, 

and that does not diminish its importance. But is there a bipartisan team from the Michigan delegation that has requested—not 

just Mr. Hoekstra, because I know he has got some candidacy involved in this. 

Mr. HOEKSTRA. Excuse me, ma’am, you are questioning my motives. 

Chairwoman ESHOO. No, I am not. 

Mr. HOEKSTRA. Yes, you are. That is totally inappropriate. 

Chairwoman ESHOO. I am asking is there a bipartisan team from 

the Michigan congressional delegation that has requested assistance in the form of a team to come and make some kind of presentation and answer the questions to the good people in Standish? 

That is all I am asking. Do you know if there is, Mr. Munson? 

Mr. MUNSON. A lot of people, a lot of Representatives have said 

things, but there has been no team put together to do that. 

Chairwoman ESHOO. Okay. Thank you. 

All right. We will resume after we finish voting. Thank you. 

[Recess.] 

Chairwoman ESHOO. Thank you for your patience and waiting 

for us to go across the street to cast our votes and return. With 

that, I am pleased to recognize Mr. Hastings, a highly respected 

and valued member not only of this subcommittee, but of the full 

committee. 

Mr. Hastings. 

Mr. HASTINGS. Thank you very much, Madam Chair. Thank you 

for holding this hearing. 

Mr. Snider and Mr. Schwarz, both of you have cast an awful lot 

of clarity on a subject that I think cries out for clarity and language in a statute that cries out for specificity. 

Madam Chair, I regret very much that Mr. Munson is not here, 

and I would reference it just because we do have a record and 

maybe Mr. Hoekstra would hear my comments through this. I 

would be telling Mr. Munson. If he were her, that I have proposed 

legislation that fixes not only his problem, but all these 

Congresspeople with this ‘‘not in my backyard’’ business. All that 

is playing pure, unadulterated politics when the deal goes down, 

and that is whether it is Hoekstra, Democrats, or anybody else. 

But the legislation that I have proposed that I think all of this 

committee ought look at deals with the policy of detention, not the 

place. And that is what we don’t have here at this level. We don’t 

have the policy. 

Now, my scrivening may not be all that is needed, but the simple 

fact of the matter is we could do something about detention policy, 


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and it wouldn’t matter whether a person were held in Guantanamo, Bagram, or outside my house, if we have a policy that deals 

with this matter. 

So I hope those words find Mr. Munson well, wherever he is, and 

I will tell Mr. Hoekstra again about my legislation. 

Madam Chair, let me give my bona fides to the gentlemen at the 

table. I think personally that the Gang of Eight first ought to 

change its name to ‘‘come see two’’ people. The reason I say that, 

anytime you mention a gang, it has a negative connotation. And 

that is in there just for whatever it is worth. 

But as a member of this committee, I personally am opposed to 

the statutory provisions that have allowed this nuanced group of 

people to get together, that can’t do anything, can’t tell us, and 

then, in the final analysis, we are ill-informed. 

One of the things I know is this: We ostensibly hold the power 

of the purse and authorize and appropriate. But when we are notified of covert actions, we are responsible for the cost. When we are 

not notified of covert actions, we are responsible for the cost. And 

among the constituency—and a part of our constituency is the larger body of Congresspersons—we are thought to have this information that we don’t have. 

So if you look at this statute—and I am sure you two gentlemen 

especially have read it and both of you would know this to be 

true—if you read any statute, each time you read it, you can reference matters that you could change or see. Let me give you two 

good examples. 

Under ‘‘see two people’’, the President determines if it is essential to limit access. And then it goes on. The second-to-the-last sentence, it identifies those persons, and then says, ‘‘and the minority 

leader of the House, the majority and minority leaders of the Senate, and such other Member or Members of the congressional leadership as may be included by the President.’’ So it isn’t as exclusive 

as it sounds. 

And then in D, ‘‘The President shall ensure that the Intelligence 

Committee,’’ and then it has an ‘‘or,’’ and if I were changing this 

statute, I would say ‘‘and/or.’’ And I tend to come down where you 

are, Mr. Snider, and that is that I can make a case for the Gang 

of Eight, but here is what experience has taught me, not just in 

the Intelligence Committee but as a citizen of this country. 

There has been a bending and swaying of the pendulum between 

the executive and the legislative branch and indeed the judicial 

branch of government that kind of goes ignored sometimes, but is 

necessary. But the pendulum swings back and forth. And I am not 

talking about ideologically, I am talking about power. 

And what has happened in more recent vintage since President 

Nixon, not just as it relates to intelligence, but Presidents generally have arrogated unto themselves more and more power, not 

just in the intelligence arena, but generally, and have been less 

and less transparent, and that includes Clinton, Bush, and the new 

administration in my judgment. 

There are ways to be transparent. And if I have any question at 

all, it would be what you think could be done, and I hear you with 

reference to it being worked out between the administration and 

the committees. I thoroughly agree with that. But there needs to 


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be yet another kind of mechanism to make that happen. And I 

don’t know how to do that. Otherwise, we are at the mercy of the 

executive branch and it leaves us in the wilderness repeatedly. And 

I for one am about changing the statute to balance the powers. 

If I have said anything that is deserving of comment, I would appreciate it. 

Mr. SNIDER. Well, I simply agree with virtually everything you 

said. I think you are on target. I have already elaborated on my 

views on the Gang of Eight. I won’t repeat all of that. 

I think the balance—we don’t have the balance that we need 

right now. Something needs to be done. I think this is the time to 

do it. 

Mr. SCHWARZ. I think the best—on the constitutional side, Congress has the power. And they shouldn’t let it slip between their 

fingers. You have the power. Presidents of both parties consistently 

and increasingly have tried to take the power. You have the power 

of the purse. 

I think in making the record for change that results in you being 

more realistically fully and currently informed, the best way to do 

that is not to argue the abstractions of where the power lies under 

the Constitution, but by showing with concrete examples how the 

current system has led to more harmful decisions that hurt the 

country. And I think making a record on that gets the public on 

your side and is the most convincing way to arrive at change. 

Mr. HASTINGS. Thank you both. Thank you, Madam Chair. 

Chairwoman ESHOO. Mr. Hastings, we have time, if you have 

any follow-up questions. I would be glad to allot you any time you 

want to use. I know that there were a couple of members that said 

they would come back. So if there is something where you want to 

follow up. 

While you are thinking about it, I just want to say to our witnesses that you have given us very practical advice today. It really 

is what we need. There are many frustrations that have surfaced 

here today with the members, that comments have made on both 

sides of the aisle on this whole issue of the Congress being informed. 

We talk about briefings, and yet when I hear the description of 

some of them, especially ‘‘Gang of Eight,’’ they sound like drive-by 

briefings. This really does not comport with the solemnness of the 

responsibilities that both the executive branch and the legislative 

branch have in this particular area. 

As Mr. Holt said earlier, and I think I said in my opening statement, we don’t deal with the push-and-pull of many constituencies 

here. That is not what this committee does. Most of what we do 

is done behind closed doors, by necessity. 

But I think what troubles so many of us, and this has been cumulative—it is not fault or blame—I think it is cumulative, where 

the executive branch really holds so much more sway today in this 

area, and the Congress less and less. I am not interested in the 

Congress having more power just to have the power, but I do think 

that it needs to be shared. And I think when there is equality between the two, if I might use that expression, then the respect and 

the good will will be forthcoming and that we will enjoy more of 


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that. And when we do, there will be, I think, a better, a stronger 

bond between the two, which I think the work really calls for. 

Mr. Hastings, I asked if you wanted more time. I don’t think you 

need it. Thank you for coming back. 

I am happy to recognize Mr. Holt and to thank him for coming 

back for a second round of questions. 

Mr. HOLT. Well, it was certainly an easy decision to come back 

after this brief recess because this is a critically important issue. 

It gets to the heart of the role of Congress in protecting our national security to provide for the common defense. It is a very rich 

subject, legally and constitutionally. Really, nothing could be more 

important. 

Let me pursue a little bit more the specification of what should 

be briefed. It is now specified in the law that covert action is something that requires special attention, as well it should. I sometimes 

wonder, though, whether by specifying things, it makes it easy to 

neglect other things. 

So I wanted to explore a little bit how far you think we should 

go in specifying what needs to be briefed. I will leave it that general and ask both witnesses for comments. 

Mr. SNIDER. I guess I am skeptical of trying to be more specific 

than ‘‘fully and currently’’ for the very reason you just mentioned, 

that I think when you start trying to be too specific, then you are 

going to leave out things that, if you just thought about them, you 

would have included. 

I think there is always going to be an element of judgment in 

terms of exactly what needs to be briefed to the committees and 

how far that needs to go that the agencies will first make and then 

presumably they will discuss it with the committees and get their 

sense of the situation. That is the way things should work, I think. 

Mr. HOLT. Let me broaden the question a little bit, if I may, before you take it on, Mr. Schwarz. Similarly, by specifying who 

should be briefed, say the Gang of Eight, does it make it easier to 

neglect briefing a larger group? You may not know enough about 

the internal functioning of Congress—and this is worth remembering—this is, I think beyond argument, that the congressional 

authorizing committees, this committee and the corresponding Senate committee, are not very good at notifying other Members of 

their bodies about things that they should know. That is part of 

our responsibility. I don’t think our record is very good in that. 

Mr. SCHWARZ. When the question of specificity first was put on 

the table, or examples, I tried to think of some things that would 

be particularly important to be briefed on or to inquire into. But 

I agree with Britt, and I think you said it too, it can be dangerous 

to in the law specify certain things, because the implication is then, 

well, if it is not covered, we don’t have to. 

So it might be that you could do more by way of legislative history or, where you are going through confirmation hearings, going 

over those kinds of questions. I at least think you ought to be cautious in making a list in the statute of things to be—that have to 

be informed. 

Mr. SNIDER. Going to your second question, if I may, if you go 

back and look at the legislative history of the Gang of Eight option 

when it was put into the statute—and there is not a lot of it, but 


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from what there is, it seems pretty clear to me that Congress intended that the full committees would be briefed on what the Gang 

of Eight had been briefed on when the sensitivity or whatever had 

caused the Gang of Eight briefing in the first place had passed. It 

seems to me that still should be the operating principle. 

There should be a point where Gang of Eight briefings, whatever 

the subject matter was, will be provided to the full committee. I 

think that is one of the things I mentioned earlier that could be 

written into procedures that the committee adopts, both on each 

side. 

So you make that just standing operating procedure rather than 

having to have the Gang of Eight think about doing it. 

Mr. SCHWARZ. That is consistent with the little footnote I have 

on page 5 of my testimony, that even with covert action, if there 

is retained any special Gang of Eight, it should only be for something that is immediate emergency and it should not cover ongoing 

covert action programs at all. There is no reason why they should 

be briefed to just the Gang of Eight. 

There is an analogy, historical analogy to Abraham Lincoln and 

how he handled emergency powers in a way that contrasts with 

certainly what was done over the last 8 years and what has been 

done often. 

The Civil War started. Troops were coming south through Baltimore. They had to walk from one train to another to change trains 

to come down to defend Washington, DC, and 16 were killed by a 

mob in Baltimore. And then the mayor of Baltimore said, I am 

going to tear down the bridges so no more troops can come from 

the North to get to the South to protect Washington, DC. 

Lincoln then suspended habeas corpus, arrested the mayor and 

maybe some other people, and held them. It is clear that only Congress has the right to suspend habeas corpus. On the other hand, 

Congress was not in session. So Lincoln said to the Congress, 

‘‘Here’s what I did and here’s why I did it. And if you think I 

shouldn’t, please punish me. If you think I did right, please ratify 

what I did.’’ 

It seems to me that is a good historical principle, for there is a 

difference between how, in the short term, matters of importance— 

that was not about secrecy. He acted openly in arresting the mayor 

of Baltimore. I think it illustrates powerfully the difference between short-term emergency action by a President; like in the short 

term telling your committee about something where they are about 

to fly into Iran to rescue some hostages, for example. But that is 

very different than keeping the thing secret from the whole committee or the whole Nation. 

Maybe that is a wandering. 

Mr. HOLT. That is helpful. Maybe we don’t need a congressional 

committee to establish for the record that Abraham Lincoln was a 

wise leader. But it certainly is a useful precedent. 

May I continue? 

Chairwoman ESHOO. I know Mr. Snider has a one o’clock. I just 

have one more question. But certainly make use of the time to ask 

another question. 

Mr. HOLT. Thank you. I had suggested earlier that I would begin 

to explore the gray area between the U.S. Code Title 10 activities 


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and Title 50 activities. There is a lot going on in the world these 

days. There is a lot that one could imagine that is going on in the 

world these days, whether it be remote killings or assassinations 

or intelligence collection that falls—or other kinds of actions that 

fall somewhere between Title 10 and Title 50, depending on who 

does them and how they are done. 

It has become the practice here on the Hill not to brief some of 

those activities. It is not clear whether some of those activities are 

briefed to anyone. But, in any case, they are often not briefed to 

the Intelligence Committees when I think a reasonable person 

would say there are intelligence activities or there are significant 

intelligence components of the activities. 

Is there anything that you can tell us about the history of this, 

whether this has been examined, and can you give us any guidance 

for the current day? 

Mr. SNIDER. This has been a longstanding issue. I dealt with it 

very often when I was general counsel of the Senate Intelligence 

Committee 15 years ago. The basic problem is that you have military intelligence people doing things overseas. They could be gathering intelligence, could be covert actions. Could be things that 

they are doing ostensibly as part of a military operation to prepare 

the battlefield, or however you want to call it. 

From the standpoint of the Committee, they look like activities 

within the Intelligence Committee’s jurisdiction, but because they 

are considered by at least the Defense Department to be part of a 

military operation, they say jurisdiction belongs to the Armed Services Committee. And, as you point out, sometimes the Armed Services Committees get notice and sometimes they don’t, of what is 

being done in preparation for a military operation or is part of a 

military operation. But I think that is where the problem comes, 

in that area. 

If it is not being done as part of a military operation or preparing 

for it, then I think it is clearly a covert action or intelligence gathering by the military that is under the jurisdiction of this committee. It would require Presidential finding if it were a covert action. 

Mr. SCHWARZ. I am not sure I have anything to add to Britt on 

that. 

Mr. HOLT. Do you see any language that is necessary, legislative 

language, that would be helpful in clarifying this? 

Mr. SNIDER. We struggled with this. The definition of covert action—you probably remember in the statute—we struggled with 

this for about a year with the Armed Services Committee in the 

Senate, and finally excluded traditional military operations from 

the definition of covert action. And then we went into report language for several pages in terms of what was a traditional military 

operation. 

That is the only place I know where we tried to resolve this issue 

back in 1991, 1992. That is all I can point you to. The fact that 

it still is an issue just shows me it hasn’t been resolved. 

Mr. SCHWARZ. I did the Church Committee, and then after that 

was over and the committee was established, I went back to the 

practice of law and did city government and lots of other things. 

I do know that when the Senate at least was setting up its PermaVerDate Mar 15 2010 04:23 Dec 16, 2010 Jkt 053774 PO 00000 Frm 00057 Fmt 6633 Sfmt 6602 E:\HR\OC\A774.XXX A774

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nent Select Committee on Intelligence, some of the barons—I think 

they were called—of the other committees tried to get in the way 

of it happening. And did they possibly even affect questions like the 

budget authority of the Intelligence Committees? They may have. 

So these, in a way, intramural rivalries, have been important for 

a long time. 

Mr. HOLT. This has to do with the Church Committee. I believe 

it was the case, and maybe you could quickly summarize, Mr. 

Schwarz, I believe that the Church Committee expanded its scope 

as it followed threads that it uncovered as the investigation got underway. I think there may well be some lessons for us as we undertake what we are doing here. 

So far, it is a less focused investigation than what the Church 

Committee was designed to do. But in fact it seems to me that the 

Church Committee didn’t really stick to its focus; that it broadened 

considerably as it followed threads. 

So I am wondering whether there are any lessons for us. 

Mr. SCHWARZ. A, your factual premise is true. You start out 

thinking you know some things, but you find out there is a lot you 

don’t know. I think a lesson is to make sure you press to get information and, most importantly, documents, because that is where so 

often the stories really lie. And they open doors, they open your 

minds up. 

I know that was vital to our running an effective investigation 

and vital to finding other, as I think you put it, threads to look at. 

Maybe they were bigger than threads. That is one important thing. 

I think also necessary for successful investigations or committees 

is that you establish reliability on being able to keep secrets. The 

Church Committee definitely did that. There was only one leak 

from the committee, which was the gender of a woman who happened to be a ‘‘friend’’ of both President Kennedy and the head of 

the Mafia in Chicago. And that was relevant to who knew what 

about Castro. 

Chairwoman ESHOO. And you have that in your extended remarks. 

Mr. HOLT. Just quickly. I don’t mean to interrupt. You had more 

to say on that subject? 

Mr. SCHWARZ. Not really. 

Mr. HOLT. On the matter of classification, how much of the proceedings of the Church Committee remains classified and do you 

believe that some of it should—should there be more that should 

be released and should we go about trying to get that released? 

Mr. SCHWARZ. There is more that should be released—not on the 

domestic side, because they never tried to stop us from doing anything on the domestic side, the FBI particularly. On the foreign 

side, we had the assassinations report, which is probably the best 

study of covert action because it really gets into how it is authorized, how does it go right, how does it go wrong. 

But then there was the assassination of the CIA station chief in 

Athens. They tried to—Kissinger and others tried to tar the two 

committees with involvement in that, which was totally false. 

Bush, as CIA director, had to withdraw an accusation he made. 

But it did, on the foreign side, it slowed down release. 


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So there are still classified elements of the final report dealing 

with foreign intelligence that have not come out. And, my goodness 

gracious, they are more than 30 years old now, and why shouldn’t 

those come out? 

Mr. HOLT. And they are stored at the Archives now? 

Mr. SCHWARZ. I am not sure where they are. 

Mr. HOLT. Thank you very much. Your testimony has been very 

helpful to me. 

Chairwoman ESHOO. Thank you, Mr. Holt. I just want to ask this 

question quickly and then we will close. And thank you for giving 

us more than half a day of the best of what you know. Your testimony has been incredibly enlightening for the subcommittee. We 

are very grateful to you. 

My last question is: In determining whether a particular intelligence activity should be briefed to Congress, does it matter 

whether that activity is ‘‘operational?’’ 

Let me give you an example of why I am asking this question. 

It is not the only example, but it is a recent one. Everyone has read 

about the situation this last June when the CIA director came and 

he did what he was supposed to do. He was informed by his own 

people, I believe on June 23, that there had been a program set up 

and running since 2001, and they informed him of that in 2009. 

And he came, as I said, following the law, the next day, and informed us. 

There was then a debate that spilled out that the agency had 

really not done anything that could be considered to fly in the face 

of the National Security Act because it wasn’t ‘‘operational.’’ 

First of all, I never thought that stuff should be discussed, but 

then it poured out all over. So I ask it not only by the most recent 

experience, but as we move forward and we examine what we need 

to fix, if there needs to be a rewrite, if there are additions or subtractions, how would you advise us on this issue of ‘‘operational?’’ 

Mr. SNIDER. I have never heard that distinction before. In fact, 

I don’t think it is a valid distinction. 

Ms. ESHOO. I think that is the answer. 

Mr. SNIDER. I don’t think that is what you should be focusing on. 

It doesn’t matter. That is not the test, from my standpoint. 

I am sorry I have to leave. I have a meeting that I have been 

trying to set up for weeks. 

Chairwoman ESHOO. We know that. Thank you so much, Mr. 

Snider, both for today and all of what you have done for our country and your service to it and your great writings. Thank you. 

Mr. SCHWARZ. It was nice. I hadn’t seen Britt since the last day 

of the Church Committee. 

Ms. ESHOO. Glad we could bring you together. 

Mr. SCHWARZ. There is a logical flaw with not giving you information about something because it is not yet operational. The logical flaw is, suddenly it may become operational; then it is an 

emergency, and then they would say because it is an emergency, 

we can only tell the Gang of Eight or something. 

Another flaw with not telling you things that are hatched—I 

mean baked but not yet hatched—is Congress contributes to wisdom, too, and they can help guide the administration on would it 

be a smart thing to go down this road or not. 


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I could give you, in the case of the efforts to assassinate people, 

there was, on the one hand, an ongoing operational effort in the 

CIA to kill various foreign leaders. When Kennedy came into office, 

his national security head, McGeorge Bundy, called in the head of 

covert action for the CIA and said, I would like you to create a 

standby capacity to assassinate foreign leaders. 

Now the interesting thing was that the guy who Bundy spoke to 

was deeply involved in the ongoing effort to assassinate foreign 

leaders. So there was this sort of standby capacity that also was 

the same thing as what they were already doing. 

I think that just illustrates—that particular example illustrates 

how much better it would be not to say Congress is always going 

to be right when it puts its wisdom—brings its wisdom to bear, but 

these are important decisions that matter to the country. And having them discussed in a wider circle is going to make it more likely 

the decision is right and less likely it is wrong. 

Chairwoman ESHOO. Thank you very, very much, again, not only 

for the wisdom that you have shared with us this morning but your 

service to our country over so many years. And major, major contributions. I think today has been so enlightening. And you can see 

from both sides of the aisle the burning interest in this. 

I think at the end of the day, on a bipartisan basis, each one of 

us understands what an enormous stake we have in this, what a 

solemn responsibility exists not only with the House Intelligence 

Committee, but the power that must be protected in the Congress 

in order to exercise, as you referred to, the wisdom and what that 

can bring about throughout the system. Because, at the end of the 

day, having responsibility for national security is the top responsibility for Members of Congress. And this committee and the work 

that it does with the Intelligence Community, where so many, really hundreds of thousands of individuals, work every day to protect 

our country, we have the responsibility to make this stronger and 

better. 

We know that some things have gone off the tracks. I look forward to more hearings. And we would like to ask you, Mr. 

Schwarz, as we did the others, that you be on standby—not the 

type of standby you just described during the Kennedy administration, but on standby to assist us in this all-important work as we 

take this examination on, and hopefully from this subcommittee 

produce a product that the rest of our colleagues will find worthy 

and the Congress will find worthy if we so choose to make the 

changes that are necessary. 

Mr. SCHWARZ. I was really honored to be here and happy to help. 

Chairwoman ESHOO. You honored us with your presence. I would 

like to thank the staffs from the both sides of the aisle; the Minority staff for the work that they did to help prepare their members 

for today and bringing Mr. Munson from Michigan. I think it was 

a big day for him. As he said, a real honor. I think he learned 

something as he listened to our discussion of the National Security 

Act. 

I think on that note, too, that I hope that some of us will reach 

out to members of the Michigan delegation on a bipartisan basis 

to see how we may be able to assist them; that jurisdiction of 

where prisons are to be sited does not rest with this committee, but 


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that doesn’t mean that that jurisdiction should stop us from reaching out and being helpful. I will certainly do that. 

And to our wonderful staff, exceptional staff on the Majority side, 

especially Mieke, who has done so much to put this together, thank 

you. 

With that, the committee is adjourned. Thank you. 

[Whereupon, at 1:04 p.m., the subcommittee was adjourned.] 


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