49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–383 

REQUESTING THE PRESIDENT AND DIRECTING THE ATTORNEY GENERAL 

TO TRANSMIT TO THE HOUSE OF REPRESENTATIVES NOT LATER THAN 

14 DAYS AFTER THE DATE OF THE ADOPTION OF THIS RESOLUTION 

DOCUMENTS IN THE POSSESSION OF THOSE OFFICIALS RELATING TO 

THE AUTHORIZATION OF ELECTRONIC SURVEILLANCE OF CITIZENS OF 

THE UNITED STATES WITHOUT COURT APPROVED WARRANTS 

MARCH 2, 2006.—Referred to the House Calendar and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

ADVERSE REPORT 

together with 

DISSENTING VIEWS 

[To accompany H. Res. 644] 

The Committee on the Judiciary, to whom was referred the resolution (H. Res. 644) requesting the President and directing the Attorney General to transmit to the House of Representatives not 

later than 14 days after the date of the adoption of this resolution 

documents in the possession of those officials relating to the authorization of electronic surveillance of citizens of the United States 

without court approved warrants, having considered the same, report unfavorably thereon without amendment and recommend that 

the resolution not be agreed to. 

PURPOSE AND SUMMARY

House Resolution 644, introduced by Representative John Conyers (D–MI) on December 22, 2005, requests the President and directs the Attorney General to transmit to the House of Representatives, not later than 14 days after the date of adoption of this resolution, documents in the possession of those officials relating to the 

authorization of electronic surveillance of citizens of the United 

States without court approved warrants. The resolution then sets 

forth a list of nine types of documents that are requested. 

BACKGROUND

House Resolution 644 is a resolution of inquiry. Under the rules 

and precedents of the House of Representatives, a resolution of inVerDate Aug 31 2005 10:45 Mar 03, 2006 Jkt 049006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\HR383.XXX HR383

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1 7 Deschler’s Precedents of the House of Representatives, ch. 24, § 8. 2 7 Deschler’s Precedents of the House of Representatives, ch. 24, § 8. 3William Holmes Brown, House Practice: A Guide to the Rules, Precedents and Procedures 

of the House 819 (2003). 4 H.R. Rep. No. 1079, 92nd Cong., 2nd Sess., (1972). 

quiry allows the House to request information from the President 

of the United States or to direct the head of one of the executive 

departments to provide such information. More specifically, according to Deschler’s Precedents, it is a ‘‘simple resolution making a direct request or demand of the President or the head of an executive 

department to furnish the House of Representatives with specific 

factual information in the possession of the executive branch. The 

practice is nearly as old as the Republic, and is based on principles 

of comity between the executive and legislative branches rather 

than on any specific provision of the Constitution that a Federal 

court may be called upon to enforce.’’ 1

A resolution of inquiry is privileged and thus may be considered 

at any time after it is properly reported or discharged from the 

committee to which it is referred.2 Clause 7 of rule XIII of the 

Rules of the House of Representatives provides that if the committee to which the resolution is referred does not act on the resolution within 14 legislative days, a privileged motion to discharge 

that committee is accorded privileged consideration on the House 

floor. In calculating the days available for committee consideration, 

the day of introduction and the day of discharge are not counted.3

A committee has a number of choices in disposing of a resolution 

of inquiry. It may vote on the resolution without amendment, or it 

may amend it. It may report the resolution favorably, adversely, or 

with no recommendation. A committee that adversely reports a resolution of inquiry does not necessarily oppose the resolution under 

consideration. In the past, resolutions of inquiry have frequently 

been reported adversely for various reasons. Two common ones are 

that an administration is in substantial compliance with the request made by the resolution or that there is an ongoing competing 

investigation. There is also past precedent for a resolution of inquiry to be adversely reported because the nature of the information requested was highly sensitive.4 Upon its introduction on December 22, 2005, H. Res. 644 was referred to the Committee on the 

Judiciary. On February 15, 2006 H.Res. 644 was ordered reported 

adversely by the Committee, which was within the 14 legislative 

day period. 

House Resolution 644 directs the Attorney General to transmit 

to the House of Representatives documents related to opinions of 

the legality of the surveillance and documents that are of a highly 

sensitive nature. Furthermore, Congress has received and continues to receive information responsive to the request for information contained in the resolution. 

The war on terror 

Osama Bin Laden, the head of the terrorist organization alQaeda, declared war on the United States in 1996. America ignored 

that declaration until the morning of September 11, 2001, when 

members of the terrorist organization attacked the United States 

by crashing four hijacked civilian airliners into the World Trade 

Center, the Pentagon, and a Pennsylvania field, killing over 3,000 


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5Pub. L. No. 107–40. 6 Justice Dept. to probe leak of spy program, the Associated Press, Dec. 30, 2005, available 

at http://msnbc.msn.com/id/10651154/from/RL.1/. 7David Johnston, Officials interviews in widening inquiry into eavesdropping article, N.Y. 

Times, February 13, 2006. Dan Eggen, Eavesdropping Inquiry Begins Officials Question if Secret Material Leaked Illegally, the Washington Post, Dec. 31, 2005. 

people and injuring over 2,000. In response to this act of war by 

a terrorist organization—rather than a nation state—Congress 

passed the Authorization for Use of Military Force (AUMF) on September 14, 2001, which the President signed into law on September 

18, 2001.5

The leak of the highly classified terrorist surveillance program 

(TSP) 

On December 16, 2005, the New York Times reported that President Bush ordered the National Security Agency (NSA) to conduct 

warrantless wiretaps on calls placed or received in the United 

States, to or from a foreign country. One of the New York Times 

reporters who broke the story, James Risen, also included an account of the NSA program in a book already submitted for publication. When explaining the decision to delay publication of the story 

for nearly a year, New York Times executive Bill Keller stated 

after its publication that: ‘‘[I]n the course of subsequent reporting 

we satisfied ourselves that we could write about this program—

withholding a number of technical details—in a way that would not 

expose any intelligence-gathering methods or capabilities that are 

not already on the public record.’’ The date of publication coincided 

with the date upon which the Senate voted on a motion to end debate on H.R. 3199, the ‘‘USA PATRIOT Improvement and Reauthorization Act of 2005.’’ The New York Times article has subsequently spurned a debate as to whether the President went beyond 

his Executive powers when he authorized the NSA Terrorist Surveillance Program (TSP). 

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

On December 30, 2005, the Justice Department opened a criminal investigation into the unauthorized disclosure of the existence 

of this highly classified program. MSNBC.com reported that, 

‘‘White House spokesman Trent Duffy said Justice undertook the 

action on its own, and the president was informed of it on Friday. 

‘The leaking of classified information is a serious issue. The fact is 

that al-Qaeda’s playbook is not printed on Page One and when 

America’s is, it has serious ramifications,’ Duffy told reporters in 

Crawford, Texas, where Bush was spending the holidays.’’ 6 Several 

additional reports confirm the existence of an ongoing criminal investigation into this matter.7

Documents and information pertaining to TSP already presented to 

Congress and to the public 

H. Res. 644 requests internal documents that are related to a 

highly sensitive national security program. The following summary 

highlights efforts by the Department of Justice and the Administration to provide information about TSP to Congress and the public. These efforts include providing documents, conducting classified 


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8 Radio Address of the President to the Nation, Dec. 17, 2005, http://www.whitehouse.gov/ 

news/releases/ 2005/12/20051217.html (last visited February 2, 2006) 9 Id. 

10 Id. 11 Id. 12 Id. 13 Id. 

briefings, and presenting hearing testimony relating to these 

issues. 

(1) December 17, 2005 Radio Address by the President8

The day following the publication of the New York Times story, 

the President gave a radio address and acknowledged the existence 

of the program. He stated: ‘‘To fight the war on terror, I am using 

authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the 

first week after September the 11th. I’m also using constitutional 

authority vested in me as Commander-in-Chief.’’ 9 The President 

stated that the TSP began ‘‘[i]n the weeks following the terrorist 

attacks on our nation,’’ when ‘‘[he] authorized the National Security 

Agency, consistent with U.S. law and the Constitution, to intercept 

the international communications of people with known links to alQaeda and related terrorist organizations.’’ 10

The President explained that these intercepts were related to the 

war on terrorism and that ‘‘[b]efore we intercept these communications, the government must have information that establishes a 

clear link to these terrorist networks.’’ He also explained that the 

program was a ‘‘highly classified program’’ and ‘‘crucial to our national security.’’ 11

He reminded the public that as the ‘‘9/11 Commission pointed 

out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th 

attacks, and the Commission criticized our nation’s inability to uncover links between terrorists here at home and terrorists abroad. 

Two of the terrorist hijackers who flew a jet into the Pentagon, 

Nawaf al Hamzi and Khalid al Mihdhar, communicated while they 

were in the States to other members of al-Qaeda who were overseas. But we didn’t know they were here, until it was too late.’’ 12

The President stated that ‘‘[t]he authorization [he] gave the National Security Agency after September the 11th helped address 

that problem in a way that is fully consistent with [his] constitutional responsibilities and authorities.’’ He stated that ‘‘the activities [he] authorized are reviewed approximately every 45 days. 

Each review is based on a fresh intelligence assessment of terrorist 

threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review 

includes approval by our nation’s top legal officials, including the 

Attorney General and the Counsel to the President. [He has] reauthorized this program more than 30 times since the September the 

11th attacks, and [he] intend[s] to do so for as long as our nation 

faces a continuing threat from al-Qaeda and related groups.’’ 13

The President explained that a review process of the NSA’s activities exists that includes thorough review by the Justice Department and NSA’s top legal officials, including NSA’s general counsel 

and inspector general. He also pointed out that the leadership and 


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14 Id. 15 Id. 16 Interview by ABC News with Richard Cheney, Vice President, United States (December 18, 

2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051218–4.html. 17 Alberto Gonzales, U.S. Attorney General, NSA Terrorist Surveillance Program, Press Briefing before the White House Press Corp (Dec. 19, 2005), available at http://www.whitehouse.gov/ 

news/releases/2005/12/20051219–1.html. 

the Intelligence Committee chairs and ranking members ‘‘have 

been briefed more than a dozen times on this authorization and the 

activities conducted under it.’’ 14

The President concluded that ‘‘[t]he American people expect 

[him] to do everything in [his] power under our laws and Constitution to protect them and their civil liberties.’’ He promised that 

that ‘‘is exactly what [he] will continue to do, so long as [he’s] the 

President of the United States.’’ 15

(2) December 18, 2005 Broadcast Television Interview of the 

Vice President of the United States 

On December 18, 2005, the Vice President discussed the TSP, 

and other issues in a network television interview. The Vice President explained the legal authority of the program and stated that 

it was ‘‘consistent with the President’s constitutional authority as 

Commander-in-Chief. It’s consistent with the resolution that 

passed by the Congress after 9/11. And it has been reviewed repeatedly by the Justice Department . . . .’’ 16

(3) December 19, 2005 Press Briefing by Attorney General 

Alberto Gonzales and General Michael Hayden, Principal 

Deputy Director for National Intelligence 

On December 19, 2005, the White House held a press briefing 

with Attorney General Alberto Gonzales and General Hayden, the 

Principal Deputy Director for National Intelligence, to brief the 

press and the public on the legal issues surrounding the authorization of the TSP. At the briefing, the Attorney General and General 

Hayden explained the legal bases of the program and provided details on unclassified aspects of the program. The Attorney General 

emphasized that the targeted phone calls were not domestic but 

rather ‘‘intercepts of contents of communications where one of 

the—one party to the communication is outside the United States.’’ He went on to state: 

[W]e also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity. Signals intelligence has been 

a fundamental aspect of waging war since the Civil War, 

where we intercepted telegraphs, obviously, during the 

world war, as we intercepted telegrams in and out of the 

United States. Signals intelligence is very important for 

the United States government to know what the enemy is 

doing, to know what the enemy is about to do. It is a fundamental incident of war, as Justice O’Connor talked 

about in the Hamdi decision. We believe that—and those 

two authorities exist to allow, permit the United States 

government to engage in this kind of surveillance.17

General Hayden added that the program ‘‘is less intrusive [than 

FISA]. It deals only with international calls. It is generally for far 

shorter periods of time. And it is not designed to collect reams of 


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18General Michael Hayden, U.S. Principal Deputy Director for National Intelligence, NSA 

Terrorist Surveillance Program, Press Briefing before the White House Press Corp (Dec. 19, 

2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219–1.html. 19Letter from William A. Moschella, U.S. Assistant Attorney General, Department of Justice, 

to Chairmen Pete Hoekstra and Pat Roberts, Ranking Member Jane Harman and Vice Chairman John D. Rockefeller IV, House and Senate Intelligence Committees, available at http:// 

www.epic.org/privacy/terrorism/fisa/nsaletter122205.pdf. 20 Id. 21 Id. 22 Id. 23 A transcript of these remarks can be found at http://www.whitehouse.gov/news/releases/ 

2006/01/20060111–7.html. 

intelligence, but to detect and warn and prevent [future] attacks.’’ 18

(4) December 22, 2005 Department of Justice Letter to the 

Chairmen and Ranking Members of the House and Senate Intelligence Committees 

The Department of Justice sent a letter to the Chairmen and 

Ranking Members of the House and Senate Committees on Intelligence on December 22, 2006, to provide ‘‘an additional brief summary of the legal authority supporting the NSA activities described 

by the President.’’ 19 In summary, the letter states that ‘‘[u]nder 

Article II of the Constitution, including in his capacity as Commander-in-Chief, the President has the responsibility to protect the 

Nation from further attacks, and the Constitution gives him all 

necessary authority to fulfill that duty.’’ 20 In the letter, the Attorney General further states that ‘‘this constitutional authority includes authority to order warrantless foreign intelligence surveillance within the United Sates, as all Federal appellate courts, including at least four circuits to have addressed the issue, have concluded.’’ 21 The Attorney General also emphasized that the TSP is 

consistent with the Foreign Intelligence Surveillance Act because 

Congress provided authority in the Authorization of the Use of 

Military Force (Pub. L. No. 107–40) that ‘‘the President has the authority under the Constitution to take action to deter and prevent 

acts of international terrorism against the United States.’’ 22

(5) January 11, 2006, Presidential Discussion of the Global 

War on Terror at the Kentucky International Convention 

Center, Louisville, Kentucky 

On January 11, 2006, the President participated in a discussion 

on the Global War on Terror at the Kentucky International Convention Center in Louisville, Kentucky at which he provided additional legal justification for the establishment of the TSP.23

(6) January 19, 2006 Department of Justice White Paper on 

Legal Authorities Supporting the Activities of the National Security Agency Described by the President 

On January 19, 2006, the Department of Justice sent a 42-page 

legal analysis explaining the ‘‘legal authorities supporting the activities of the National Security Agency described by the President.’’ Addressed to Senate Majority Leader Frist and signed by Attorney General Alberto Gonzales, the cover letter stated: 

As I have previously explained, these NSA activities are 

lawful in all respects. They represent a vital effort by the 

President to ensure that we have in place an early warnVerDate Aug 31 2005 09:37 Mar 03, 2006 Jkt 049006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6969 E:\HR\OC\HR383.XXX HR383

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24Letter from Alberto Gonzales, U.S. Attorney General, Department of Justice, to Senator Bill 

Frist, Majority Leader, U.S. Senate (January 19, 2006), available at http://permanent.access.gpo.gov/lps66493/ White%20Paper%20on%20NSA%20Legal%20Authorities.pdf. 25General Michael Hayden, U.S. Principal Deputy Director for National Intelligence, What 

American Intelligence and Especially the NSA Have Been Doing to Defend the Nation, Remarks 

before the National Press Club (January 23, 2006), available at http://www.dni.gov/releaselletterl012306.html. 

ing system to detect and prevent another catastrophic terrorist attack on America. In the ongoing armed conflict 

with al-Qaeda and its allies, the President has the primary 

duty under the Constitution to protect the American people. The Constitution gives the President the full authority 

necessary to carry out that the solemn duty, and he has 

made clear that he will use all authority available to him, 

consistent with the law, to protect the Nation. The President’s authority to approve these NSA activities is confirmed and supplemented by Congress in the Authorization for Use of Military Force (AUMF), enacted on September 18, 2001. As discussed in depth in the attached 

paper, the President’s use of his constitutional authority, 

as supplemented by statute in the AUMF, is consistent 

with the Foreign Intelligence Surveillance Act and is also 

fully protective of the civil liberties guaranteed by the 

Fourth Amendment.24

(7) January 23, 2006 Press Conference by Former NSA Director General Hayden 

On January 23, 2006, General Hayden held a press conference in 

which he provided unclassified details concerning the TSP. He emphasized that the TSP only intercepted suspected enemy electronic 

signals when there was ‘‘reason to believe that one or both communicants are affiliated with al-Qaeda.’’ 25

In explaining what NSA is not doing, General Hayden discussed 

the volume of misinformation in the public record concerning the 

NSA and stressed that the NSA is acutely aware of the balance between security and civil liberties. He stated that: 

The great urban legend out there then was something 

called ‘Echelon,’ and the false accusation that NSA was 

using its capabilities to advance American corporate interests: signals intelligence for General Motors, or something 

like that. 

You know, with these kinds of charges, the turf back 

then feels a bit familiar now. How could we prove a negative, that we weren’t doing certain things, without revealing the appropriate things we were doing that kept America safe? You see, NSA had—NSA has—an existential 

problem. In order to protect American lives and liberties, 

it has to be two things: powerful in its capabilities and secretive in its methods. And we exist in a political culture 

that distrusts two things most of all: power and secrecy. 

Modern communications didn’t make this any easier. 

Gone were the days when signals of interest—that’s what 

NSA calls the things that they want to copy—gone were 

the days when signals of interest went along some dedicated microwave link between Strategic Rocket Force’s 


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26 Id. 

headquarters in Moscow and some ICBM in western Siberia. 

By the late ’90s, what NSA calls targeted communications—things like al-Qaeda communications—coexisted out 

there in a great global web with your phone calls and my 

e-mails. NSA needed the power to pick out the ones, and 

the discipline to leave the others alone. So, this question 

of security and liberty wasn’t a new one for us in September of 2001. We’ve always had this question: How do 

we balance the legitimate need for foreign intelligence 

with our responsibility to protect individual privacy rights? 

It’s a question drilled into every employee of NSA from day 

one, and it shapes every decision about how NSA operates. 

September 11th didn’t change that.26

(8) January 24, 2006 Remarks by Attorney General Gonzales 

at the Georgetown University Law Center Concerning the 

Legal Basis of the TSP 

On January 24, 2006, the Attorney General publicly outlined the 

Administration’s view of its legal authority to conduct wartime 

electronic surveillance: 

Some contend that even if the President has constitutional authority to engage in the surveillance of our enemy 

in a time of war, that authority has been constrained by 

Congress with the passage in 1978 of the Foreign Intelligence Surveillance Act. Generally, FISA requires the government to obtain an order from a special FISA court before conducting electronic surveillance. It is clear from the 

legislative history of FISA that there were concerns among 

Members of Congress about the constitutionality of FISA 

itself. 

For purposes of this discussion, because I cannot discuss 

operational details, I’m going to assume here that intercepts of al-Qaeda communications under the terrorist surveillance program fall within the definition of ‘‘electronic 

surveillance’’ in FISA. 

The FISA Court of Review, the special court of appeals 

charged with hearing appeals of decisions by the FISA 

court, stated in 2002 that, quote, ‘‘[w]e take for granted 

that the President does have that [inherent] authority’’

and, ‘‘assuming that is so, FISA could not encroach on the 

President’s constitutional power.’’ We do not have to decide 

whether, when we are at war and there is a vital need for 

the terrorist surveillance program, FISA unconstitutionally 

encroaches—or places an unconstitutional constraint 

upon—the President’s Article II powers. We can avoid that 

tough question because Congress gave the President the 

Force Resolution, and that statute removes any possible 

tension between what Congress said in 1978 in FISA and 

the President’s constitutional authority today. 

Let me explain by focusing on certain aspects of FISA 

that have attracted a lot of attention and generated a lot 

of confusion in the last few weeks. 


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First, FISA, of course, allows Congress to respond to new 

threats through separate legislation. FISA bars persons 

from intentionally ‘‘engag[ing] . . . in electronic surveillance under color of law except as authorized by statute.’’ For the reasons I have already discussed, the Force Resolution provides the relevant statutory authorization for the 

terrorist surveillance program. Hamdi makes it clear that 

the broad language in the Resolution can satisfy a requirement for specific statutory authorization set forth in another law. 

Hamdi involved a statutory prohibition on all detention 

of U.S. citizens except as authorized ‘‘pursuant to an Act 

of Congress.’’ Even though the detention of a U.S. citizen 

involves a deprivation of liberty, and even though the 

Force Resolution says nothing on its face about detention 

of U.S. citizens, a majority of the members of the Court 

nevertheless concluded that the Resolution satisfied the 

statutory requirement. The same is true, I submit, for the 

prohibition on warrantless electronic surveillance in FISA. 

You may have heard about the provision of FISA that allows the President to conduct warrantless surveillance for 

15 days following a declaration of war. That provision 

shows that Congress knew that warrantless surveillance 

would be essential in wartime. But no one could reasonably suggest that all such critical military surveillance in 

a time of war would end after only 15 days. 

Instead, the legislative history of this provision makes it 

clear that Congress elected NOT TO DECIDE how surveillance might need to be conducted in the event of a particular armed conflict. Congress expected that it would revisit the issue in light of events and likely would enact a 

special authorization during that 15–day period. That is 

exactly what happened three days after the attacks of 9/ 

11, when Congress passed the Force Resolution, permitting 

the President to exercise ‘‘all necessary and appropriate’’

incidents of military force. 

Thus, it is simply not the case that Congress in 1978 anticipated all the ways that the President might need to act 

in times of armed conflict to protect the United States. 

FISA, by its own terms, was not intended to be the last 

word on these critical issues. 

Second, some people have argued that, by their terms, 

Title III and FISA are the ‘‘exclusive means’’ for conducting electronic surveillance. It is true that the law says 

that Title III and FISA are ‘‘the exclusive means by which 

electronic surveillance . . . may be conducted.’’ But, as I 

have said before, FISA itself says elsewhere that the government cannot engage in electronic surveillance ‘‘except 

as authorized by statute.’’ It is noteworthy that, FISA did 

not say ‘‘the government cannot engage in electronic surveillance ‘except as authorized by FISA and Title III.’ ’’ No, 

it said, except as authorized by statute—any statute. And, 

in this case, that other statute is the Force Resolution. 

Even if some might think that’s not the only way to read 

the statute, in accordance with long recognized canons of 


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construction, FISA must be interpreted in harmony with 

the Force Resolution to allow the President, as Commander in Chief during time of armed conflict, to take the 

actions necessary to protect the country from another catastrophic attack. So long as such an interpretation is ‘‘fairly 

possible,’’ the Supreme Court has made clear that it must 

be adopted, in order to avoid the serious constitutional 

issues that would otherwise be raised. 

Third, I keep hearing, ‘‘Why not FISA? Why didn’t the 

President get orders from the FISA court approving these 

NSA intercepts of al-Qaeda communications?’’

We have to remember that we’re talking about a wartime foreign intelligence program. It is an ‘‘early warning 

system’’ with only one purpose: To detect and prevent the 

next attack on the United States from foreign agents hiding in our midst. It is imperative for national security that 

we can detect RELIABLY, IMMEDIATELY, and WITHOUT DELAY whenever communications associated with 

al-Qaeda enter or leave the United States. That may be 

the only way to alert us to the presence of an al-Qaeda 

agent in our country and to the existence of an unfolding 

plot. 

Consistent with the wartime intelligence nature of this 

program, the optimal way to achieve the necessary speed 

and agility is to leave the decisions about particular intercepts to the judgment of professional intelligence officers, 

based on the best available intelligence information. They 

can make that call quickly. If, however, those same intelligence officers had to navigate through the FISA process 

for each of these intercepts, that would necessarily introduce a significant factor of DELAY, and there would be 

critical holes in our early warning system. 

Some have pointed to the provision in FISA that allows 

for so-called ‘‘emergency authorizations’’ of surveillance for 

72 hours without a court order. There’s a serious misconception about these emergency authorizations. People 

should know that we do not approve emergency authorizations without knowing that we will receive court approval 

within 72 hours. FISA requires the Attorney General to 

determine IN ADVANCE that a FISA application for that 

particular intercept will be fully supported and will be approved by the court before an emergency authorization 

may be granted. That review process can take precious 

time. 

Thus, to initiate surveillance under a FISA emergency 

authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence 

officers would have to get the sign-off of lawyers at the 

NSA that all provisions of FISA have been satisfied, then 

lawyers in the Department of Justice would have to be 

similarly satisfied, and finally as Attorney General, I 

would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to 

follow up with a full FISA application within the 72 hours. 


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27 Alberto Gonzales, U.S. Attorney General, Department of Justice, Remarks at the Georgetown University Law Center (January 24, 2006) available at http://www.usdoj.gov/ag/speeches/ 

2006/aglspeechl0601241.html. 28George W. Bush, President of the United States, Remarks at the National Security Agency 

(January 25, 2006), available at http://www.whitehouse.gov/news/releases/2006/01/20060125–

1.html. 

A typical FISA application involves a substantial process 

in its own right: the work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the 

National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of 

course, the approval of an Article III judge. 

We all agree that there should be appropriate checks 

and balances on our branches of government. The FISA 

process makes perfect sense in almost all cases of foreign 

intelligence monitoring in the United States. Although 

technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the War on Terror, and 

one that we are using to its fullest and will continue to use 

against al-Qaeda and other foreign threats. But as the 

President has explained, the terrorist surveillance program 

operated by the NSA requires the maximum in speed and 

agility, since even a very short delay may make the difference between success and failure in preventing the next 

attack. And we cannot afford to fail.27

(9) January 25, 2006 Presidential Visit and Speech at the 

National Security Agency 

In a speech delivered during a visit to the National Security 

Agency on January 25, 2006, the President stated ‘‘ . . . I authorized a terrorist surveillance program to detect and intercept alQaeda communications involving someone here in the United 

States. This is a targeted program to intercept communications in 

which intelligence professionals have reason to believe that at least 

one person is a member or agent of al-Qaeda or a related terrorist 

organization. The program applies only to international communications. In other words, one end of the communication must be 

outside the United States.’’ 28

He went on to explain: 

We know that two of the hijackers who struck the Pentagon were inside the United States communicating with 

al-Qaeda operatives overseas. But we didn’t realize they 

were here plotting the attack until it was too late. 

Here’s what General Mike Hayden said—he was the 

former director here at NSA. He’s now the Deputy Director 

of the National Intelligence—Deputy Director of National 

Intelligence—and here’s what he said earlier this week: 

‘‘Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of 

the 9/11 al-Qaeda operatives in the United States, and we 

would have identified them as such.’’

The 9/11 Commission made clear, in this era of new dangers we must be able to connect the dots before the terrorists strike so we can stop new attacks. And this NSA proVerDate Aug 31 2005 09:37 Mar 03, 2006 Jkt 049006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6969 E:\HR\OC\HR383.XXX HR383

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29 Id. 

gram is doing just that. General Hayden has confirmed 

that America has gained information from this program 

that would not otherwise have been available. This information has helped prevent attacks and save American 

lives. This terrorist surveillance program includes multiple 

safeguards to protect civil liberties, and it is fully consistent with our nation’s laws and Constitution. Federal 

courts have consistently ruled that a President has authority under the Constitution to conduct foreign intelligence 

surveillance against our enemies.29

(10) January 26, 2006 Department of Justice Briefing to the 

Senate Judiciary Committee 

The Department of Justice provided the Senate Judiciary Committee a briefing prior to the scheduled February 6, 2006 hearing. 

(11) February 1, 2006 Department of Justice briefing to the 

Senate Select Committee on Intelligence 

On February 1, 2006, the Administration provided a classified 

briefing to the Senate Select Committee on Intelligence. 

(12) February 3, 2006 Department of Justice response to January 24, 2006 Letter from Senate Judiciary Chairman 

Arlen Specter 

On January 24, 2006, Senator Specter, Chairman of the Senate 

Committee on the Judiciary, sent a letter to the Department of 

Justice that contained 15 questions in advance of the panel’s February 6, 2006, hearing requesting the Department to explain the 

legal authority for the program. The Attorney General responded 

in writing on February 3, 2006, answering each question. 

(13) February 3, 2006 Department of Justice Response to January 24, 2006 Letter from Senate Judiciary Democrat 

Members 

On January 27, 2006, Democratic Members of the Senate Judiciary Committee sent a letter to the Department of Justice regarding 

the TSP. On February 3, 2006, the Department of Justice sent a 

letter notifying the Senators that the Department had received the 

letter and was in the process of responding. 

(14) February 3, 2006 Department of Justice Response to January 30, 2006 Letter from Senator Feinstein 

On January 30, 2006, Senator Feinstein sent the Department of 

Justice a letter regarding the TSP. On February 3, 2006, the Department of Justice sent a letter notifying the Senator that the Department was working on a response. 

(15) February 3, 2006 Department of Justice response to January 30, 2006 Letter from Senator Feingold 

On January 30, 2006, Senator Feingold sent a letter to the Department of Justice about the TSP. On February 3, 2006, the Department of Justice responded to the Senator’s letter notifying the 

Senator that the Department was working on a response. 


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(16) February 3, 2006 Department of Justice Response to January 31, 2006 Letter from Senator DeWine 

On January 31, 2006, Senator DeWine sent a letter questioning 

the Department of Justice about the TSP. On February 3, 2006, the 

Department of Justice responded to Senator DeWine notifying the 

Senator that the Department was working on a response. 

(17) February 6, 2006 Senate Judiciary Hearing: ‘‘Wartime 

Executive Power and the NSA’s Surveillance’’ 

The Attorney General testified before the Senate Judiciary Committee on February 6, 2006 from 9:30 a.m. to shortly after 5:30 

p.m. The Attorney General provided detailed information pertaining to the legal authority and scope of the program. 

(18) February 8, 2006 hearing before the House Permanent 

Select Committee on Intelligence 

On February 8, 2006, Attorney General Gonzales and General 

Hayden testified in a closed classified hearing before the House 

Permanent Select Committee on Intelligence answering questions 

about the TSP. 

(19) February 8, 2006 Departments of Justice and Defense 

Briefing to the House Armed Services Committee 

On February 8, 2006, the Departments of Justice and Defense 

presented a classified briefing to the House Committee on Armed 

Services regarding the National Security Agency Terrorism Surveillance Program. 

(20) February 9, 2006 Hearing Before the Senate Select Committee on Intelligence 

On February 9, 2006, Attorney General Gonzales and former 

NSA Director General Hayden testified in a closed classified hearing before the Senate Select Committee on Intelligence answering 

questions about the National Security Agency Terrorism Surveillance Program. 

(21) February 9, 2006 Department of Justice Response to the 

February 8, 2006 Letter from House Judiciary Committee 

Chairman F. James Sensenbrenner, Jr. 

On February 8, 2006, Judiciary Committee Chairman Sensenbrenner, Jr., sent a 14–page letter to the Department of Justice 

with 51 questions regarding the legal authority, the review process, 

and scope of the TSP. On February 9, 2006, the Department of Justice sent a letter notifying the Chairman that the Department had 

received the letter and was in the process of answering the questions. 

(22) February 13, 2006 Department of Justice Briefing to the 

House Committees on Judiciary and Appropriations 

On February 13, 2006, the Department of Justice presented a 

briefing to the House Committees on Judiciary and Appropriations 

on the legal authority of the program. 


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30WMD Commission p. 354 citing National Intelligence Council (NIC), Title Classified (NIE 

98–04) (1998–99). 31Meet the Press Interview with Pete Hoekstra, House of Representatives Committee on Intelligence Chairman (Feb. 12, 2006), available at http://www.msnbc.msn.com/id/1127264/. 

Sensitive documents requested 

The United States is engaged in a war against terrorism and this 

resolution calls for integral information, much of which is of a highly sensitive and classified nature. 

As the Weapons of Mass Destruction Commission explained as it 

discussed the threats from other countries: ‘‘. . . for several reasons, penetrating these targets has also become more difficult than 

ever before. For example, authorized and unauthorized disclosures 

of U.S. sources and methods have significantly impaired the effectiveness of our collection systems. Put simply, our adversaries have 

learned much about what we can see and hear, and have predictably taken steps to thwart our efforts.’’ 30

Echoing this concern, on a February 12, 2006 television appearance, Representative Hoekstra, Chairman of the House Intelligence 

Committee stated: ‘‘Does anyone really believe that after 50 days 

of having the program on the front page of our newspapers, across 

talk shows across America, that al-Qaeda has not changed the way 

that it communicates?’’ 31

CONCLUSION

The Committee is reporting this resolution adversely for several 

reasons. First, as the Committee on Armed Services concluded in 

H.R. Rep. No. 92–1003, because of the highly sensitive nature of 

the information requested, the public revelation of such information would not be compatible with national security interests. The 

United States is at war against a diffuse and shifting international 

terrorist threat and the information requested is directly related to 

a classified program aimed at preventing future terrorist attacks. 

The information requested concerns signals intelligence and communications surveillance upon al-Qaeda. The disclosure of this information could disrupt the efforts of our military and Intelligence 

Community to prevent another attack upon the United States. 

While this resolution contains language intended to protect classified information, past disclosures have led to leaks of valuable information. In addition, the Committee is concerned that even unclassified briefings have aided the country’s enemies as the Administration has been required to explain in an accessible public forum 

strategies and operational details of operations aimed at preventing 

terrorist attacks. Furthermore, the Administration has already 

demonstrated a willingness to provide information sought by the 

resolution. Therefore, the Committee is following the precedents established in H.R. Rep. Nos. 109–230, 108–658, and 92–1003, which 

concluded that the sensitive nature of the information requested 

was reason for adversely reporting a resolution of inquiry. 

Second, H. Res. 644 has the potential to jeopardize the ongoing 

criminal investigation of the leak. Due to the classified nature of 

the NSA program, the Department of Justice has opened a criminal 

investigation of the leak of the program to the New York Times. 

A competing investigation is a common reason that committees 

have opposed resolutions of inquiry in the past. This Committee 


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32 H.R. Rept. 109–230, 109th Cong., 1st Sess. (2005). 33 H.R. Rept. 108–658, 108th Cong., 2nd Sess. (2004). 34 H.R. Rept. 108–413, Part 3, 108th Cong., 2nd Sess. (2004). 35 H.R. Rept. 108–215, 108th Cong., 1st Sess. (2004). 36 H.R. Rept. 96–778, 96th Cong., 2nd Sess. (1980). 

has previously reported resolutions of inquiry adversely for this 

very reason. On July 29, 2005, this Committee adversely reported 

House Resolution 420, in part, due to an ongoing grand jury investigation.32 On September 7, 2004, the Committee adversely reported House Resolution 700, as this resolution of inquiry requested documents related to several ongoing investigations, 

among other things.33 On February 27, 2004, this Committee adversely reported House Resolution 499,34 a resolution of inquiry, 

due to an ongoing grand jury investigation and, on July 17, 2003, 

adversely reported House Resolution 287,35 a resolution of inquiry, 

due to an ongoing competing investigation of the Inspector General 

of the Department of Justice. The Committee has also reported a 

resolution of inquiry adversely to avoid jeopardizing a competing 

investigation into the Abscam case.36

Finally, the Administration has substantially complied with information requested thereby diminishing the need to risk the disclosure of national security classified information. Congress has 

and continues to receive responsive information pertinent to the information requested in H. Res. 644. Prior to the New York Times 

article, the Administration had provided classified briefings to 

Members of Congress throughout the course of the program’s implementation. After the leak of the program, the Department of 

Justice sent a white paper to Congress detailing the legal authority 

for the President to establish the program. Furthermore, the Administration has provided testimony in open and closed hearings to 

Congress explaining the legal authority for the program, as well as 

classified and unclassified briefings regarding the program, its 

scope, and the Administration’s authority. In addition, the Administration has held public forums and press conferences to inform 

the public about the TSP. Finally, the Administration has answered and is still answering several letters sent by various Members of Congress. These documents, speeches, testimony, and press 

conferences have detailed the Administration’s legal reasoning for 

the President to authorize the TSP. 

Accordingly, because the resolution could jeopardize national security and an ongoing criminal investigation; and because the Administration has substantially complied with the intent of the resolution, the Committee reported H. Res. 644 adversely. 

HEARINGS

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

Res. 644. 

COMMITTEE CONSIDERATION

On February 15, 2006, the Committee met in open session and 

adversely reported the resolution H. Res. 644 by voice vote, a 

quorum being present. 


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VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that there were no 

recorded votes during the Committee consideration of H. Res. 644. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

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

budgetary authority or increased tax expenditures. 

COMMITTEE COST ESTIMATE

In compliance with clause 3(d)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee estimates the costs of implementing the resolution would be minimal. The Congressional 

Budget Office did not provide a cost estimate for the resolution. 

PERFORMANCE GOALS AND OBJECTIVES

H. Res. 644 does not authorize funding. Therefore, clause 3(c)(4) 

of rule XIII of the Rules of the House of Representatives is inapplicable. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds that the rule does not 

apply because H. Res. 644 is not a bill or joint resolution that may 

be enacted into law. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The Resolution requests the President and directs the Attorney 

General to transmit to the House of Representatives, not later than 

14 days after the date of adoption of this resolution, documents in 

the possession of those officials relating to the authorization of electronic surveillance of citizens of the United States without court 

approved warrants. The resolution then sets forth a list of nine 

types of documents that are requested. 

CHANGES IN EXISTING LAW MADE BY THE RESOLUTION, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that H. Res. 644 

makes no changes to existing law. 


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MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, FEBRUARY 16, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:06 a.m., in Room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr., (Chairman of the Committee) presiding. 

[Intervening business.] 

Chairman SENSENBRENNER. Pursuant to notice, I now call up 

House Resolution 644, Requesting the President and directing the 

Attorney General to transmit to the House of Representatives not 

later than 14 days after the date of the adoption of this resolution 

documents in the possession of those officials relating to the authorization of electronic surveillance of citizens of the United States 

with court approved warrants, for purposes of markup and move 

that it be reported adversely to the House. 

Without objection, the resolution will be considered as read and 

open for amendment at any point. 

[The resolution, H. Res. 644, follows:] 


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Chairman SENSENBRENNER. The Chair recognizes himself for a 

very quick 5 minutes to explain the resolution. 

Many of the arguments that have been given both pro and con 

with the previous resolution apply to this resolution. However, I 

would note that unlike the previous resolution, that at least attempted to provide some protection for national security information, H. Res. 644 contains no safeguards that would protect the 

classified information requested. For that reason and for all of the 

other reasons, I would urge approval of the motion to report adversely. 

I yield back the balance of my time and recognize the gentleman 

from Michigan, Mr. Conyers. 

Mr. CONYERS. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Michigan. 

Mr. CONYERS. Mr. Chairman, I concur that to go into hearings 

on this matter would be duplicative and, for reasons of my own, I 

urge that we set aside the discussion to the greatest extent possible. I call upon my colleagues to join with me in this consideration. 

I yield back the balance of my time. 

Chairman SENSENBRENNER. Are there any—— Mr. WATT. Would the gentleman yield? Ranking Member? 

Mr. CONYERS. Of course. 

Mr. WATT. Is the gentleman recommending one way or another 

on how we should vote on this, or is he just recommending that we 

not speak on it? 

Mr. CONYERS. I am recommending that we do not speak on this, 

but it is my intention to have—that this be disposed of by voice 

vote and therefore that there may not be a record therefrom. 

Chairman SENSENBRENNER. Without objection, Members may 

place opening statements in the record at this point. 

Are there amendments——

Mr. WATT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from North Carolina. 

Mr. WATT. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WATT. Just long enough to say that I liked the earlier resolution a lot better, but we’ve got to get these records. It seems to me 

that if we had passed the other resolution, there would be a whole 

different discussion. No discussion, perhaps, wouldn’t even be any 

necessity to take this up. But it seems to me we need the records 

in the House of Representatives to do our responsibilities, and we 

can clean up this resolution after it passes out of here or amended 

it after it passes out of here. But we need a resolution that gets 

these documents to the House of Representatives for us to exercise 

our responsibility if we’re going to do it. And for that reason, I intend to vote for this resolution despite its shortcomings. 

Ms. JACKSON LEE. Would the gentleman yield? 

Mr. WATT. Yes. 

Ms. JACKSON LEE. May I just associate myself with the distinguished gentleman from North Carolina. I think all of us have focused on the importance of oversight. I, too, believe 643 stands as 

a very strong resolution, but 644 requires our attention, one, as I 

indicated before, and I hope subsequently to add these materials to 


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the record, but in any event, the question of inherent powers is so 

crucial as relates to domestic spying, which is the question that 

we’re asking today, and the complete ignoring of FISA and established statutory law that’s been reviewed by the Supreme Court, 

that I would also suggest that this is a resolution that deserves our 

consideration. I will be voting for it. 

Mr. WATT. Reclaiming my time, let me just be clear. If we won’t 

exercise the responsibility in this Committee, the Judiciary Committee, as the prior resolution says, I think that’s the appropriate 

place to do it, and with the protections that were provided in the 

prior resolution. But in the absence of our willingness to do it responsibly in this Committee, where it should be done, these documents ought to come to the House of Representatives so somebody 

who has the guts will do it. 

Mr. DELAHUNT. Would the gentleman yield? 

Mr. WATT. Mr. Delahunt. 

Mr. DELAHUNT. Yes, I just wanted to make an observation that 

I think it’s remarkable that what we have seen here today occur. 

For conservatives to put their trust in the executive branch and not 

to verify is a remarkable watershed in the conservative movement. 

And I guess the last member of the genuine conservative movement in this country is sitting two down from my right. But I just 

find it absolutely incredible that we come down to this, where Republicans say, okay, to Big Government, we’ll trust you, and we 

won’t even verify. 

And with that, I yield back. 

Mr. WEINER. Mr. Chairman? 

Mr. WATT. I yield to Mr. Weiner. 

Mr. WEINER. Just to try to clarify the record here, if I can just 

ask the Chairman to yield to a question. 

Is there a commitment on your part to have hearings on this particular issue, or only to have the Attorney General come in as part 

of the due course of oversight? Are we going to have hearings dedicated to this question, Mr. Chairman? 

Chairman SENSENBRENNER. The time belongs to the gentleman 

from North Carolina. 

Mr. WATT. I yield to the Chairman. 

Chairman SENSENBRENNER. The Attorney General will come in 

and he will testify and answer questions on whatever he wishes to 

testify on and whichever questions the Members wish to ask him 

on. I would expect, if I’m listening properly, that most of the questions that will be directed to him will be on this issue. 

Mr. WEINER. No, Mr. Chairman, I think you misunderstood my 

question. My question was, as the Chairman are you committed to 

convening a hearing on this particular subject? It does seem to 

be——

Chairman SENSENBRENNER. You know, the answer to the question is no because I don’t know if I can get the Attorney General 

more than once. 

Mr. WEINER. Well, let me ask you, if I can just continue. Is there 

a commitment to have a hearing on this subject, and if the Attorney General says to the Judiciary Committee take a hike, I’m not 

going to come and answer any more questions or I’m not going to 

come in on this subject, that we would then get some other views? 


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I mean, if our concern is we’re not going to schedule a hearing because the agency that we oversee——

Chairman SENSENBRENNER. If the gentleman from North Carolina will yield——

Mr. WATT. I will. 

Chairman SENSENBRENNER. The Chair is not in a position to answer that question until we see what response comes on or before 

the 2nd of March to the 51 questions that I have posed to the Attorney General. As the gentleman knows, when the former Attorney General tried to evade the oversight questions that Mr. Conyers and I asked on the PATRIOT Act——

Mr. WATT. I ask unanimous consent for 1 additional minute. 

Chairman SENSENBRENNER. Without objection—you know, we 

told him to re-do it until the questions were answered, and we finally got the answer. Now, I did have to trip the subpoena in the 

interim. But I want to get the answers to these questions. You 

know I’m kind of a tiger on that, but give me a break. 

Mr. WEINER. Mr. Chairman, yeah, but you’re having a pussycat 

moment here. [Laughter.] 

The question is——

Chairman SENSENBRENNER. If the gentleman will yield, tigers 

are pussycats, too. 

Mr. WATT. I ask unanimous consent for 1 additional minute and 

yield to the Chairman and then to Mr. Weiner. 

Mr. WEINER. No, what I’m trying to—first of all, I can’t imagine 

that, just given what the Attorney General’s answer has been to 

questions up to now, that we’re going to be completely, 100 percent 

satisfied. I can’t imagine he’s going to solve, in the context of this, 

why not? What is the downside? And I haven’t heard it from my 

colleagues there; maybe you can tell me. What is the downside of 

saying we’re going to have a hearing in X amount of days, we’re 

going to address these things, we’re going to get the Attorney General, we’re going to have a panel of people on all sides. 

Chairman SENSENBRENNER. Will the gentleman from North 

Carolina yield? 

Mr. WATT. Yes, sir, I will. 

Chairman SENSENBRENNER. You know, I think that taking a case 

to trial without discovery might be malpractice, and we’re going to 

be doing the discovery first. 

Mr. WEINER. Mr. Chairman, I’m not saying don’t do the discovery. I’m not saying don’t get the answer to the 51 questions. I’m 

not saying don’t do that. I’m saying that is there a commitment at 

the very least on your part to have hearings on——

Chairman SENSENBRENNER. Well, if the gentleman will yield——

Mr. WEINER. Sure. 

Chairman SENSENBRENNER. —I’ve answered that question. And 

that is, is that the AG will be up here, it will not be a specified 

hearing. On the other hand, you know, I’m going to be pretty 

darned insistent that there be answers that are relevant, in point, 

and truthful to the 51 questions that have been posed. And if it 

takes the Justice Department several tries to get the answer down, 

we might not like what it is, but at least it will be responsive to 

the question. So be it. And that’s what Mr. Conyers and I did on 

the PATRIOT Act and that’s what I intend to do on this letter, too. 


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Mr. WEINER. Well, Mr. Chairman, as grateful as I am on behalf 

of the Committee for extending those 51 questions, that is simply 

not a substitute for good oversight hearings. 

I yield back. 

Mr. WATT. I ask unanimous consent for 1 additional minute and 

yield to Mr. Conyers. 

Mr. CONYERS. Mr. Chairman, I just have to insist upon the point 

made by the gentleman from New York. This subject matter requires hearings on the subject matter. To bring the Attorney General to this Committee to talk about all of the matters under his 

jurisdiction would be absolutely insufficient. 

And I thank the gentleman for yielding. 

Mr. WATT. Can I just reclaim my time long enough to say that 

both of these resolutions, in my opinion, really deal with the discovery stage as much as the 51 questions deal with the discovery 

stage. We need the documents to have an informed hearing, in my 

opinion. That’s part of the discovery phase, if you’re putting it in 

trial-context terms. To be able to exercise our responsibility in a responsible way, we need to know what the Administration has done. 

And both of these resolutions, the earlier one really more than this 

one is directed at that. 

I yield back. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Are there amendments? 

Ms. WATERS. Yes. Yes. 

Chairman SENSENBRENNER. Does the gentlewoman from California have an amendment? 

Ms. WATERS. No amendment. I move to strike the last word. 

Chairman SENSENBRENNER. For what purpose——

Mr. GOHMERT. I was going to move to strike the last word also. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert, is recognized for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

With all the metaphorical speaking about trials, you’re back in 

my bailiwick, my days as a judge and chief justice. And I want a 

hearing on this, but what we’re talking about here in these two requests, a judge would look at these requests as discovery requests 

and say they’re overly broad, and that would allow Respondent to 

object that they’re overly broad, break it down more carefully. 

So the way I’m viewing this and the reason I voted aye on the 

first one and will vote with the Chairman on this is that those 51 

answers will allow us to determine more succinctly what exactly we 

want to request. Because I think the Administration could object 

this is covering areas you may not have a right to get into. And 

once it’s broken down and we see what they have, we get the answers to the 51, then we can go back and make additional requests, 

refine those requests more directly so that we don’t get bogged 

down in a year or two of litigation or dispute between us and the 

Administration over what we have a right to see. 

Mr. WATT. Would the gentleman yield just for a second? 

Mr. GOHMERT. We do want a trial, and this judge is going to support getting to the metaphorical trial, but first we do need to do 

proper discovery in proper form so we don’t shoot for the end result. 

Yes, I will yield. 


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Mr. WATT. I thank the gentleman for yielding. I think we’ve 

taken this metaphorical trial further than it really needs to be and 

further than is appropriate. The great thing about the legislative 

body is that in a trial i never asked a question that I didn’t already 

know the answer to. This time, I need the facts regardless of what 

the answer is, regardless of how it cuts, whose ox it gores—I don’t 

care. It’s our responsibility to the public to ask the questions regardless of whether they are objected to or not. So our responsibility is really way beyond a trial. We’re not trying anybody. We’re 

just trying to get the facts. 

Mr. GOHMERT. Would the gentleman yield back? I agree with 

you, but by asking first questions first, then we can refine our 

questions and hopefully avoid any kind of dispute over what is 

reachable by this body in its oversight obligations. 

Mr. DELAHUNT. Would my friend yield for a minute. 

Mr. GOHMERT. Yes, I yield to the gentleman from Massachusetts. 

Mr. DELAHUNT. You know, I think what the gentleman from New 

York was driving towards as far as multiple hearings are concerned, let’s not just focus in on the response of the Attorney General, but there should be a full exposition, if you will, of all of the 

potential constitutionals that could be implicated in this issue. We 

hear from Mr. Lungren about inherent powers of the executive. We 

talk about FISA. We talk about these relationships. We can have 

hearings on that and listen to experts while we are waiting, if you 

will, for the conclusion of the discovery phase. I just think this is 

too important an issue constitutionally to not address it aggressively. 

Mr. GOHMERT. Reclaiming my time. I agree with you, but if you 

have the hearings before you get the initial answers, then you’re 

not going to be able to key in and ask the right questions in sufficient specificity. So for that reason, I will support the Chairman——

Mr. DELAHUNT. Could I ask the gentleman to yield on that point? 

Mr. GOHMERT. Yes. 

Mr. DELAHUNT. I’m not even saying we should not wait for this. 

I don’t think anyone is suggesting don’t get all the information we 

can. But it seems to me I can’t think of an issue that has presented 

itself in recent memory that hasn’t more lent itself to classic oversight of this Committee, whether you’re conservative on this issue, 

like I am, or a raving liberal, like many of you guys apparently are, 

trusting Government at every turn. 

All I’m asking from the Chairman is say the easiest thing, say 

Of course we’re going to have hearings on this, we’re the Judiciary 

Committee. This is an issue that people are talking about in coffee 

shops all around the country, that talks about the very questions 

of balance of power that many of you have said you’re concerned 

about. Just say yes—I mean, sometimes I think you’re just reflexively saying no to us just because we raise it. But this is an example of what we should be doing here, is saying Of course, Congressmen, we’re going to have hearings on this. This is such an important issue. So many people care about it. 

And I disagree with some of my colleagues. As I said in my remarks earlier, I want to do more spying, I want to increase our intelligence budget, I want to have the ability to track these things 


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as best we can. And if FISA is somehow falling down, I’m going to 

be one of the people who’s going to vote to fix it up. 

Why not have the hearings? And no one, not a single person has 

said on that side why not have hearings. Even you seem to imply 

you want to have hearings. 

Mr. GOHMERT. I just want to do it in the proper order, and I 

think——

Chairman SENSENBRENNER. The time of the gentleman has expired. Are there amendments? 

Ms. WATERS. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman from California is 

recognized for 5 minutes. 

Ms. WATERS. Thank you very much. 

Now, first of all, I understand that most of the Members of this 

Committee have not seen the 51 questions. They just put them before me and I tried to scan them, as they scan our conversations 

that we’re having all over the country, and I note that those things 

that I’m interested in are not even covered in the 51 questions. 

For example, I talked about this Echelon Program. Do you realize, Members, that not only is your country spying on you in this 

program, they allow Canada, Great Britain, Australia, and New 

Zealand to spy on you in this program. When they scan and they 

hear the key words, the system enables one country to eavesdrop 

on communications within another country without, they say, violating its privacy laws and, at the same time, transmit to that 

country’s intelligence agencies messages that are of interest to 

them. One does not have to speculate long or engage in much 

imagination to see how synergistic FISA and Echelon can be. This 

document says. 

So I want to know more about this program, where we’re being 

spied on not only by our own country but by other countries, and 

I want to know about these telecommunications companies who get 

a call from God knows who and then they allow this technology to 

be used to spy and place citizens under surveillance without any 

warrants, without anything. All of these companies—AT&T, MCI, 

Sprint, all of them cooperate with warrantless surveillance, the executives say. You’ve seen this information. My God, how scared can 

you be? How can anybody whip you in line to such a degree that 

you would not want to protect the Constitution of the United 

States? 

I want to tell you, the President of the United States, my mother 

and nobody else could put the fear of God in me to the point where 

I wouldn’t do my job on this issue. My God, how can you look yourselves in the eye at night knowing that it has been exposed that 

the Constitution is being violated, that the President is breaking 

the law, that the FISA Court is being ignored, and not do something about it? I mean, what do you come to work for? Why are 

you elected to office? 

This is outrageous and ridiculous, and I know that you don’t 

want to hear it, but we’re going to have to talk about it. I hope that 

every Member on this side of the aisle will go to the floor ad nauseam until we force you to get the courage to do what you need to 

be doing and not allow anybody to make you shut up on this issue. 

This is outrageous. 


hsrobinson on PROD1PC72 with HEARING
27 

And Mr. Chairman, no, your 51 questions are not good enough. 

We did not participate at all in helping to organize these. You 

disrespected us totally. You not only did not ask us to participate— and I don’t know about the Members who are sitting over there 

with those stupid grins on their faces; you look absolutely spineless 

on this issue and you ought to be ashamed. 

I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from Michigan. 

Mr. CONYERS. Mr. Chairman, I would like to recommend that unless there are other speakers, that we move to a final vote on this. 

I will indicate that I am going to support the gentlewoman from 

New York’s resolution and that we end our debate on this matter. 

Chairman SENSENBRENNER. Are there amendments? If there are 

no amendments, a reporting quorum is present. The question occurs on the motion to report H. Res. 644 adversely. All in favor of 

reporting adversely, say aye? Opposed, no? 

The ayes appear to have it. 

Mr. CONYERS. Mr. Chairman, I ask for a record vote. 

Chairman SENSENBRENNER. A record vote is requested. Those in 

favor of reporting the resolution adversely will as your names are 

called answer aye, opposed, no. The clerk will call the roll. 

Before the clerk calls the roll, we have one more bill which I believe is noncontroversial, the Financial Services Regulatory Relief 

Act, where the sequential expires during the recess. We need to 

have a reporting quorum here to report that out. The Chair knows 

of no amendments. 

The clerk will now call the roll on——

Mr. CONYERS. Mr. Chairman, I ask unanimous consent to withdraw my request for a record vote. 

Chairman SENSENBRENNER. The request is withdrawn. Does anybody else wish a recorded vote? 

Hearing none, the ayes have it. Without objection, the staff is directed to make technical and conforming changes, and all Members 

will be given 2 days as provided by the House rules in which to 

submit additional, dissenting, supplemental, or minority views. 

[Intervening business.] 

The business before the Committee having been completed for 

today, without objection the Committee stands adjourned. 

[Whereupon, at 12:25 p.m., the Committee was adjourned.] 


hsrobinson on PROD1PC72 with HEARING
(28) 

DISSENTING VIEWS 

I dissent from the negative reporting of H. Res. 644, that would 

have simply requested that the President and the Attorney General 

provide Congress with documents that relate to warrantless wiretapping. This Committee should have exercised its constitutionally 

mandated oversight role and examined the original legal theories 

behind this unprecedented wiretapping program, the scope of program, and how it was approved. As more fully discussed in the dissenting views of H. Res. 643, I believe the Judiciary Committee is 

abdicating its role to ensure that the executive acts within the constitution. 

JOHN CONYERS, JR. 

Æ 


hsrobinson on PROD1PC72 with HEARING