49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–385 

REQUESTING THE PRESIDENT TO PROVIDE TO THE HOUSE OF REPRESENTATIVES CERTAIN DOCUMENTS IN HIS POSSESSION RELATING 

TO ELECTRONIC SURVEILLANCE WITHOUT SEARCH WARRANTS ON INDIVIDUALS IN THE UNITED STATES 

MARCH 7, 2006.—Referred to the House Calendar and ordered to be printed 

Mr. HOEKSTRA, from the Permanent Select Committee on 

Intelligence, submitted the following 

ADVERSE REPORT 

together with 

ADDITIONAL VIEWS 

[To accompany H. Res. 641] 

The Permanent Select Committee on Intelligence, to whom was 

referred the resolution (H. Res. 641) requesting the President to 

provide to the House of Representatives certain documents in his 

possession relating to electronic surveillance without search warrants on individuals in the United States, having considered the 

same, report unfavorably thereon without amendment and recommend that the resolution not be agreed to. 

COMMITTEE STATEMENT AND VIEWS

A. Purpose and summary 

H. Res. 641 is a resolution of inquiry requesting the President to 

provide to the House of Representatives not later than 14 days 

after its adoption ‘‘all documents in the possession of the President, 

including telephone and electronic mail records, logs, calendars, 

minutes, memoranda, and advisory legal opinions on, and identities 

of all individuals subject to, electronic surveillance without search 

warrants by the National Security Agency within the United States 

since September 11, 2001.’’ 

B. Background 

A resolution of inquiry may be adopted by the House as a means 

of obtaining documents from the Executive Branch for investigative 

purposes. Clause 7 of rule XIII of the House of Representatives provides for specific procedures regarding resolutions of inquiry in the 

House, including that a motion to discharge a committee from its 


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1 ‘‘Radio Address by the President to the Nation,’’ December 17, 2005. 2The President also noted that ‘‘our enemies have learned information they should not have, 

and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our 

country.’’ Id. 3 Id. 

4See generally Fisher, ‘‘House Resolutions of Inquiry,’’ Congressional Research Service Report 

for Congress RL31909 (May 12, 2003). 

consideration shall be privileged if not reported to the House within 14 legislative days after its introduction. H. Res. 641 was introduced on December 18, 2005. Including recess days, the Committee 

adversely reports H. Res. 641 to the House within 14 legislative 

days of its introduction in the House. 

The resolution seeks documents that relate to ‘‘electronic surveillance without search warrants by the National Security Agency 

within the United States since September 11, 2001’’. On December 

17, 2005, the President disclosed that he had ‘‘authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with 

known links to al Qaeda and related terrorist organizations’’ 1 following the unauthorized disclosure of a sensitive and highly classified national security program to and by the news media.2 The 

President also noted, ‘‘Leaders in Congress [had] been briefed more 

than a dozen times on this authorization and the activities conducted under it.’’ 3

Subsequently, the Executive Branch has provided additional information with respect to the legal authority supporting the program in an unclassified format to the House, to the Committee and 

to the public. On December 19, 2005, Attorney General Alberto 

Gonzales and Principal Deputy Director of National Intelligence 

General Michael Hayden conducted a briefing for members of the 

news media. On December 22, 2005, Assistant Attorney General 

William Moschella provided a letter to the bipartisan leadership of 

the Congressional intelligence committees summarizing the legal 

authority supporting the NSA activities described by the President. 

On January 19, 2006, the Attorney General transmitted a more detailed legal analysis to bipartisan House and Senate leadership and 

leadership of the Congressional intelligence committees. 

In addition, Attorney General Gonzales and Principal Deputy Director of National Intelligence Hayden conducted a classified briefing for the full membership of the Permanent Select Committee on 

Intelligence on February 8, 2006 with respect to certain operational 

details of the program and relevant legal authorities. 

Under the precedents of the House, a Committee may choose to 

adversely report a resolution of inquiry when the Executive Branch 

has already provided information on the relevant subject matter or 

it concludes that the resolution would compete with other investigations that are regarded as more appropriate.4 Both considerations are relevant with respect to H. Res. 641. First, the Executive 

Branch conducted numerous briefings for Members of Congress on 

the program prior to its public disclosure and has subsequently 

briefed and answered questions from the full Permanent Select 

Committee on Intelligence with respect to operational details and 

legal authorities that are the subject of the Resolution of Inquiry. 

Second, the Committee has already undertaken a broader examination of issues relating to potential reform and modernization of the 


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Foreign Intelligence Surveillance Act (‘‘FISA’’) that it believes will 

provide a fuller opportunity to consider the entire range of relevant 

issues rather than considering a single discrete program in isolation. 

The Committee intends to go forward with multiple steps in its 

inquiry. First, the Chairman and Ranking Member have transmitted a letter to the Attorney General asking for clarification of 

a number of discrete issues relating to the current state of practice 

and procedure under FISA. The letter is not directed only to issues 

relating to the program described by the President, but more 

broadly at the everyday functioning of FISA as a whole. 

Second, the Committee will conduct a classified briefing with officials from the Justice Department and the Federal Bureau of Investigation to allow members to directly ask questions about the 

FISA process and how it is operating in practice. 

Third, the Chairman is working with the Executive Branch in an 

effort to arrange for additional members of the Committee to visit 

the National Security Agency to meet with personnel operating the 

program. 

Fourth, the Committee expects to hold a public hearing on general issues relating to the FISA process and FISA modernization in 

the near future. There has been widespread misunderstanding and 

misinformation circulating about FISA. It is important that the 

public have an opportunity to understand, to the extent possible in 

an open session, what is myth and what is reality. 

These will be comprehensive efforts to review not just issues relating to the program described by the President, but also equally 

or more pressing issues relating to FISA that may be hindering our 

nation’s ability to conduct foreign intelligence and effectively fight 

the war on terror. 

The Committee also notes that the resolution would have requested the President to provide highly sensitive materials relating 

to intelligence sources and methods, including the identities of the 

specific targets of surveillance, to the House without restricting the 

information to the Permanent Select Committee on Intelligence or 

expressly permitting it to be submitted in a classified format. Information on specific intelligence targets is so sensitive that the Committee ordinarily does not receive or request it, even for routine operations. 

Because the resolution would likely be counterproductive to the 

more comprehensive efforts underway to review these issues, the 

Committee adversely reports H. Res. 641 to the House. 

HEARINGS

The Committee held no hearings on H. Res. 641. 

COMMITTEE CONSIDERATION AND VOTES

On March 2, 2006, the Committee met in open session and ordered H. Res. 641 adversely reported, without amendment. The 

Committee took the following votes: 

1. Ms. Harman offered an amendment in the nature of a substitute, which requested that the President provide to the House of 

Representatives ‘‘all legal advisory opinions and finished intelligence reports related to electronic surveillance conducted in the 

United States without a warrant by the National Security Agency 


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on or after September 11, 2001’’. It was not agreed to by a record 

vote of 8 ayes to 10 noes: 

Voting aye: Ms. Harman, Mr. Reyes, Mr. Boswell, Mr. 

Cramer, Ms. Eshoo, Mr. Holt, Mr. Ruppersberger, Mr. Tierney. 

Voting no: Mr. Hoekstra (Chairman), Mr. LaHood, Mr. Everett, Ms. Wilson, Ms. Davis, Mr. Thornberry, Mr. McHugh, Mr. 

Tiahrt, Mr. Rogers, Mr. Renzi. 

2. Mr. Hoekstra offered a motion to report H. Res. 641 adversely 

to the House, which was agreed to by voice vote. 

SECTION-BY-SECTION ANALYSIS

The resolution requests the President to transmit to the House 

of Representatives not later than 14 days after its enactment all 

documents in his possession relating to ‘‘electronic surveillance 

without search warrants by the National Security Agency within 

the United States since September 11, 2001.’’ The resolution would 

apply (but is not limited) to ‘‘telephone and electronic mail records, 

logs, calendars, minutes, memoranda, and advisory legal opinions 

on, and identities of all individuals subject to’’ such electronic surveillance. 

The Committee adopted no amendments. 

OVERSIGHT FINDINGS AND RECOMMENDATIONS

In accordance with clause 3(c)(1) of rule XIII of the House of Representatives, the Committee reports that the findings and recommendations of the Committee, based on oversight activities 

under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the House of Representatives is inapplicable because this resolution does not provide new budgetary 

authority or increased tax expenditures. 

GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause (3)(c)(4) of rule XIII of the House of 

Representatives, the Committee’s performance goals and objectives 

are reflected in the descriptive portions of this report. 

UNFUNDED MANDATE STATEMENT

H. Res. 641 provides no federal mandates. 


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ADDITIONAL VIEWS 

H. Res. 641, introduced by Representative Barbara Lee of California, would have required the Administration to provide Congress 

with documents relating to warrantless electronic surveillance of 

U.S. persons by the National Security Agency since September 11, 

2001. In addition to seeking documents, the Resolution called for 

‘‘identities of all individuals’’ subject to the surveillance. 

With the consent of Representative Lee, Ranking Member Harman offered an amendment in the nature of a substitute to limit 

the request to ‘‘legal advisory opinions and finished intelligence 

products.’’

We are disappointed that Committee Republicans voted to reject 

the Harman Substitute to the Lee Resolution. The Harman Substitute would have facilitated greater oversight over the President’s 

NSA Program. As we have repeatedly said, treatment should follow 

diagnosis. Before considering changes to the FISA process, the 

Committee must understand whether the current FISA process is 

inadequate. To date, the Committee has received no evidence that 

FISA is inadequate. 

Contrary to the arguments set forth in this Report, the Harman 

Substitute to the Lee Resolution would have imposed very minimal 

burdens on the Administration and would not have risked exposure 

of any sensitive intelligence sources and methods. Resolutions of 

Inquiry have been used numerous times to obtain information regarding national security activities of the United States Government, and there is precedent for HPSCI retaining control over all 

classified records turned over to Congress under Resolutions of Inquiry. (See House Resolutions of Inquiry, CRS Study, May 12, 

2003, p. 25). 


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At the mark-up, Chairman Hoekstra stated his intention to request ‘‘legal advisory opinions and finished intelligence products’’ from the Administration in a letter-request. If the Administration 

does not comply with the Committee’s request for these documents, 

we strongly urge the Chairman to use the Committee’s subpoena 

power to compel their production. 

JANE HARMAN, Ranking 

Democrat. ALCEE L. HASTINGS. SILVESTRE REYES. LEONARD L. BOSWELL. BUD CRAMER. 

ANNA G. ESHOO. 

RUSH HOLT. 

C.A. DUTCH RUPPERSBERGER. 

JOHN F. TIERNEY. 

Æ 


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