nsa-clash.htm
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<TITLE>HPSCI Clashes with NSA On Oversight</TITLE>
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27 June 1999. See also the 1975 report by the Senate Select Committee on
Intelligence Activities, "The National Security Agency and Fourth Amendment
Rights": <A HREF="http://jya.com/nsa-4th.htm">http://jya.com/nsa-4th.htm</A>
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14 June 1999. See related law on congressional oversight of intelligence
activities:
<A HREF="http://jya.com/50usc413.txt">http://jya.com/50usc413.txt</A>
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25 May 1999
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Source:
<A HREF="http://www.access.gpo.gov/su_docs/aces/fr-cont.html">http://www.access.gpo.gov/su_docs/aces/fr-cont.html</A>
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See full report:
<A HREF="http://jya.com/hr106-130p1.txt">http://jya.com/hr106-130p1.txt</A>
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See related intelligence funding bill:
<A HREF="http://jya.com/hr1555-yak.txt">http://jya.com/hr1555-yak.txt</A>
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<PRE>
=======================================================================
[DOCID: f:hr130p1.106]
From the House Reports Online via GPO Access
[wais.access.gpo.gov]
106th Congress Rept. 106-130
1st Session HOUSE OF REPRESENTATIVES Part 1
=======================================================================
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2000
_______
May 7, 1999.--Ordered to be printed
_______
Mr. Goss, from the Permanent Select Committee on Intelligence,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1555]
[Excerpts]
National Security Agency
The Director of Central Intelligence (DCI) has stated to
the committee that recapitalization of SIGINT capabilities is
one of the top priorities for the Intelligence Community. The
recently retired, former Director of NSA suggested that a
significant amount of investment will be required in order to
revitalize the overall SIGINT system. The committee believes
that the DCI and the former Director of NSA are correct in
terms of priority and funding requirements. The committee
notes, however, that money and priority alone will not revive
NSA, nor the overall SIGINT system. In the last two Congresses,
the committee has been direct in its identification of process
and management problems that require attention. The committee
believes that NSA management has not yet stepped up to the
line. There have been some efforts at reform, but there are
still several areas where change is not only needed but is
critical for NSA's future.
The committee believes that NSA is in serious trouble. The
committee has devoted considerable attention to this issue in
the classified annex to this report. The committee believes
that NSA has very talented people dedicated to an exciting
mission, whose creativity can be unleashed and properly
directed, in concert with private industry, to build a bright
future. The committee looks forward to the opportunities for
change that present themselves with the introduction of a new
Director of NSA. The committee salutes the efforts by the
former Director, who we credit for starting some of the changes
that we have seen. But, there is much more to do. The committee
hopes that the new Director will find the specific points and
observations in the classified annex to this report of value as
he seeks to effect needed changes.
.....
Oversight Issues
The committee, in its oversight of the National Security
Agency, verbally requested access to documents in the files of
the Office of the General Counsel. While some material has been
provided to the committee, the General Counsel of the National
Security Agency has argued that there may be other documents to
which the government attorney-client privilege applies. The
committee finds this claim of privilege peculiar and urges the
Office of the General Counsel to review both the law of
attorney-client privilege as it applies to congressional
inquiries and the history of congressional oversight of U.S.
intelligence agencies. The committee would be extremely
displeased to conclude that a general counsel of an
intelligence agency was interfering with the legitimate and
constitutional rights of the committee to oversee the
intelligence activities of an executive branch agency through
an erroneous assertion of privilege. Under such circumstances,
the committee would fully exercise the many prerogatives at its
disposal to remedy the situation.
.....
ADDITIONAL VIEWS OF CHAIRMAN PORTER J. GOSS
Recently, and perhaps for the first time in the committee's
history, an Intelligence Community element of the United States
Government asserted a claim of attorney-client privilege as a
basis for withholding documents from the committee's review.
Similarly, various agencies within the Intelligence Community
have asserted, with disturbing frequency, a ``deliberative
process'' or ``pre-decisional'' argument as a basis for
attempting to keep requested documents from the committee's
scrutiny. These claims are unpersuasive and dubious.
As part of its regular oversight responsibilities and
preparatory to the committee's legislative action on this bill,
the committee was questioning the National Security Agency's
(NSA) application of current operational guidelines in light of
the enormous technological advances that have been made in the
past several years. The committee was seeking to ensure that
the NSA was carrying out its signals intelligence mission in
consonance with the law, relevant executive orders, guidelines,
and policy directives. At bottom, the committee sought to
assure itself that the NSA General Counsel's Office was
interpreting NSA's legal authorities correctly and that NSA was
not being arbitrary and capricious in its execution of its
mission.\1\
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\1\ In the <A HREF="http://jya.com/nsa-4th.htm">1970s it was learned that the NSA</A>, as well as other
elements of the United States intelligence community, engaged in
serious abuses of the privacy interests of U.S. persons. The
congressional hearings on these and other matters led directly to the
establishment of the Senate Select committee on Intelligence; see S.
Res. 400, 94th Congress; and the House Permanent Select Committee on
Intelligence (HPSCI); see H. Res. 658, 95th Congress. Additionally, as
a result of those inquiries, executive orders were issued and
guidelines and policy statements were promulgated defining the mission
of the NSA and its legal obligations and responsibilities pursuant to
the Constitution and other laws of the United States. See Legislative
Oversight of Intelligence Activities: The U.S. Experience, Senate
Select Committee on Intelligence, 103rd Cong., 2d Sess., at 2-6 (Comm.
Print)(October 1994).
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If the NSA General Counsel provided too narrow an
interpretation of the agency's authorities, it could hamper the
collection of significant national security and intelligence
information. If, on the other hand, in its effort to provide
timely intelligence to the nation's policy makers, the NSA
General Counsel construed the Agency's authorities too
permissively, then the privacy interests of the citizens of the
United States could be at risk. To that end, the committee
asked the NSA General Counsel to provide the committee with
legal memoranda, opinions rendered, and other documents in the
General Counsel's Office that established that the advice it
was providing to the NSA's technicians, operators, and
management was effective in helping the NSA achieve its mission
goals and objectives.
The committee's oral request for some of these documents
was met by the NSA General Counsel's claim of a ``government
attorney-client privilege.'' The claim was made on behalf of
the Director of the NSA, and the NSA, corporately. Shortly
thereafter, the committee was again advised by a representative
of the NSA--at a budget hearing concerning the NSA's fiscal
year 2000 budget request--that the agency was working on the
document request, but that some documents would not be made
available because of the operation of the attorney-client
privilege.
During additional conversations with employees of the NSA
General Counsel's Office, the Committee reminded the NSA
lawyers of the agency's statutory obligations under section 502
of the National Security Act of 1947, as amended. That statute
provides, in pertinent part, that the heads of all Intelligence
Community elements are obligated to furnish ``any information
or material concerning intelligence activities * * * which is
requested by either of the intelligence committees in order to
carry out its authorization responsibilities.'' 50 USC
Sec. 413a(2). These admonitions to the NSA about its
responsibilities under the law were met by the argument that
``common law privileges,'' i.e., the attorney-client privilege,
survive even mandatory and unambiguous statutory language in
the absence of express language to the contrary.
The NSA General Counsel's Office contended, therefore, that
its legal opinions, decisional memoranda, and policy guidance,
all of which govern the operations and mechanisms of that
federal agency, are free from scrutiny by Congress. This would
result in the envelopment of the executive in a cloak of
secrecy that would insulate the executive branch from effective
oversight. It would also undermine the intent of the 94th and
95th Congresses to establish stringent congressional oversight
of the Intelligence Community. This outcome would seriously
hobble the legislative oversight process contemplated by the
Constitution.
Congress has broad constitutional investigative powers. The
Constitution provides that ``Each House may determine the Rules
of its Proceedings.'' U.S. Const., art. I, Sec. 5, cl.2. Each
chamber delegates the authority to rule on objections to the
production of documents, such as claims of attorney-client
privilege, to its various committees. The rules of judicial
procedure are not applicable to congressional inquiries. United
States v. Fort, 443 F.2d 670, 679-80 (D.C. Cir. 1970). There is
no law that forbids a congressional committee from exercising
its discretion to reject claims of attorney-client privilege.
Long standing precedents grant legislative bodies prerogatives
and a level of discretion on such matters not commonly found in
adjudicatory bodies.
At common law, for instance, English courts were bound by
an assertion of attorney-client privilege; Parliament was not.
See Proceedings Against Ralph Bernstein and Joseph Bernstein
(``Contempt Report''), H.R. Rep. No. 462, 99th Cong., 2d Sess.
at 12-13 (1986)(contempt proceedings against Ferdinand Marcos'
lawyers for refusal to disclose to House subcommittee any legal
communications had with their client). American commentators
have long accepted the English common law custom as the
practice established and followed in the Congress and other
legislative bodies of the United States. See L. Cushing,
Elements of the Law and Practice of the United States of
America, 390 (1856 ed., reprinted 1971)(''A witness cannot
excuse himself from answering * * * because the matter was a
privileged communication to him, as where an attorney is called
upon to disclose the secrets of his client * * *'').
In fact, Congress has, from time to time, set aside
assertions by private lawyers and private witnesses that their
legal communications should be shielded from disclosure in a
Congressional hearing based on the attorney-client privilege.
See Contempt Report at 13; Attorney-Client Privilege: Memoranda
Opinions of American Law Division, Library of Congress:
Hearings before Subcomm. on Oversight and Investigations of the
House Comm. onEnergy and Commerce (``Attorney-Client Privilege
Memorandum Opinions''), 98th Cong., 1st Sess. (Committee Print)(1983);
Health Care Fraud/Medicare Secondary Payer Program: Hearing Before the
Permanent Subcomm. on Investigations of the Senate Comm. On
Governmental Affairs (``Health Care Fraud Hearings''), 101st Cong., 2d
Sess., at 1-11 (1990), aff'd sub nom., In the Matter of Provident Life
and Accident Insurance Co., CIV-1-90-219 (E.D. Tenn. June 13, 1990);
Attorney-Client Privilege and the Right of Congressional Access to
Documents for Oversight Purposes in the Case of the Supervision of the
Telephone Loan Program by the U.S. Department of Agriculture: Subcomm.
on Conservation, Credit, and Rural Development of the House Committee
on Agriculture (``Congressional Access Report''), 102d Cong., 1st
Sess., (Committee Print)(1991).
Furthermore, there is no clear principle in our
jurisprudence that a ``government attorney-client privilege''
has as broad a scope as its non-governmental counterpart. In
fact, the opinion rendered by the U.S. Court of Appeals for the
8th Circuit established the converse principle. See In re Grand
Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert.
denied sub nom. Office of the President v. Office of the
Independent Counsel, 117 S. Ct. 2482 (1997). See also In re
Bruce R. Lindsey (Grand Jury Testimony), 148 F.3d 1100 (D.C.
Cir. 1998). Moreover, memoranda and other documents that form
the basis of working law within an agency must be made
available to Congress when requested. See Afshar v. Department
of State, 702 F.2d 1125, 1139, 1141 (D.C. Cir. 1983); Schlefer
v. United States, 702 F.2d 277 (D.C. Cir. 1983); Briston v.
Department of State, 636 F.2d 600, 605 (D.C. Cir. 1980);
Bristol-Myers Co. v. Federal Trade Commission; 598 F.2d 18, 24
(D.C. Cir. 1978); Jordan v. Department of Justice, 591 F.2d
753, 774 (D.C. Cir. 1978) (en banc).
The documents for which the claim was asserted are
presumably key interpretive memoranda and opinions utilized by
agency officers to carry out their governmental duties in
conformity with the law. The committee's constitutional and
statutory authority to conduct oversight of the Intelligence
Community provides a compelling rationale for the rejection of
any claim that the government attorney-client privilege
protects any documents within the possession of an intelligence
community entity from disclosure to this committee. See U.S.
Const., art I, Sec. 5, cl. 2; 50 U.S.C. Sec. 413a(2). The fact
that the privilege was asserted by government lawyers, on
behalf of other government officials, vitiates the availability
of the asserted privilege.
The efforts of NSA, described above, and any other similar
effort by Intelligence Community elements, to shield its own
interpretations of their agency's legal obligations and
decisional memoranda from congressional review must be
rejected. Former Attorney General Cushing once aptly described
the realities of our system of governance. He stated:
[T]he relation of the departments to Congress is one
of the great elements of responsibility and legality in
their own action. They are created by law; most of
their duties are prescribed by law; Congress may at all
times call on them for information or explanations in
matters of official duty; and it may, if it sees fit,
interpose by legislation concerning them, when required
by the interests of the Government.--``Office and
Duties of Attorney General,'' 6 Opinion of the Attorney
General 326, 334 (1854)(emphasis added).
This is a concise statement of our governmental scheme. The
executive interprets and carries out the laws enacted by
Congress. Therefore, to the extent that an agency's documents
serve as interpretive guidance, or as research tools for agency
personnel, such documents constitute a body of working law
within that agency. See Taxation With Representation v.
Internal Revenue Service, 646 F.2d 666, 682 (D.C. Cir. 1981).
As such, they cannot be withheld from the committee. See
Afshar, 702 F.2d at 1139, 1141; Schlefer, 702 F.2d 277;
Briston, 636 F.2d at 605; Bristol-Myers Co., 598 F.2d at 24;
Jordan, 591 F.2d at 774. The committee ought, then, have access
to these legal interpretations to ensure proper execution of
the laws by the agencies within their legislative jurisdiction.
Additionally, hornbook law makes it plain that attorney-
client privilege cannot work to preclude examination of legal
opinions or files within a corporate entity by its overseers.
In the context of private corporations, the board of directors
is entitled to review all legal notes, files, opinions, and
memoranda produced as a result of legal discussions between the
chief executive officers and the corporation's lawyers. In our
system of government, by analogy, the legislative branch can be
viewed as a board of directors with oversight authority of the
executive, which is responsible for its actions to the board.
Despite the separation of executive and legislative powers
under the Constitution, the two political branches are without
doubt integral parts of the same corporate entity: the federal
government of the United States of America. See The Attorney
General's Refusal To Provide Congressional Access to
``Privileged'' Inslaw Documents: Hearing Before the Subcomm. on
Economic and Commercial Law of the House Comm. on the Judiciary
(``Inslaw Hearings''), 101st Cong. 2d Sess., at 103-04
(1990)(citing written testimony of General Counsel to the Clerk
of the House).
The lawyers within the Office of the NSA General Counsel,
indeed, the General Counsel himself, are paid their wages and
expenses from the public fisc. These funds are collected from
the people of the United States and authorized and appropriated
by the Congress for the conduct of government business in the
public interest. It is elementary, therefore, that legal advice
and counsel provided by federal government attorneys to federal
government officers are subject to oversight and scrutiny by
the Congress. See Contempt Report, supra; Attorney-Client
Privilege: Memorandum Opinion, supra; Health Care Fraud
Hearings, supra; Inslaw Hearings, supra; Congressional Access
Report, supra.
Underlying this legal foundation is sound public policy,
especially in the context of Intelligence Community oversight.
Congress clearly has manifested its intent to provide for open
government. When concerning itself with matters of national
security and the protection of sources and methods, however,
Congress has acknowledged a need for secrecy and the protection
of sensitive information from public disclosure in order to
keep the information from our nation's enemies. Accordingly,
the intelligence committees have been given a statutory
obligation and a fiduciary duty to conduct oversight of the
United States Government elements that must necessarily and
understandably carry out their official duties in secret. This
acknowledgment compels the committee to exercise its discretion
and reject completely the notion that agovernment attorney-
client privilege can allow an Intelligence Community element to
withhold information requested by the committee.
Similarly, any effort by Intelligence Community elements to
advance a so-called ``pre-decisional'' or ``deliberative
process'' privilege as a basis for withholding requested
information from congressional oversight ought to be rejected.
Any assertion that a document will not be provided to the
committee because it may be an ``internal'' agency document, or
otherwise ``uncoordinated'' is unacceptable. When an agency
offers these explanations for its refusal to produce documents
requested by Congress, it is improperly putting Congress in the
category of a ``citizen requester'' under the Freedom of
Information Act (FOIA) and trying to extend Exemption 5 of that
Act to Congress. See 5 U.S.C. Sec. 552.
Exemption 5 of FOIA permits withholding of information from
requesters on the basis that the documents do not indicate a
final disposition. Exemption 5 allows withholding from
requesters if documents are preliminarily and deliberative in
nature. It also permits withholding from requests under the Act
if such documents would disclose privileged communications,
such as between an attorney and his client. In the FOIA,
itself, however, Congress specifically provided that Exemption
5 ``is not authority to withhold information from Congress.'' 5
U.S.C. Sec. 552(d). The case of Murphy v. Department of the
Army, 612 F.2d 1151 (D.C. Cir. 1979), is illustrative of this
point.
In Murphy, the court permitted the government department to
withhold a memorandum produced by the department's General
Counsel's Office from a citizen FOIA requester as pre-
decisional and also likely covered by the attorney-client
privilege. Despite the fact that the memorandum at issue in the
Murphy case was exempt under the FOIA, the document was made
available to Congressman Carl D. Perkins. The plaintiff cited
the disclosure of the document to the Congressman as proof that
the exemption should not apply in his case. The court rejected
this argument, however, noting that the FOIA exemptions
provided no basis for withholding information from Congress
because of:
* * * the obvious purpose of the Congress to carve
out for itself a special right of access to privileged
information not shared by others * * *. Congress,
whether as a body, through committees, or otherwise,
must have the widest possible access to executive
branch information, if it is to perform its manifold
responsibilities effectively. If one consequence of the
facilitation of such access is that some information
will be disclosed to congressional authorities but not
to private persons, that is but an incidental
consequence of the need for informed and effective
lawmakers.--Id. at 1155-56, 1158.
Congressional authority to investigate is concomitant with
its authority to legislate. It is necessary, then, to have
unfettered access to executive branch information in order to
be able to make sound legislative judgments. It is exactly the
``uncoordinated,'' ``deliberative,'' ``internal,'' and ``pre-
decisional'' documents of an agency that Congress needs in most
cases. These documents can provide unique insights into the
full spectrum of thought on any given issue pending before an
agency and Congress. Without access to such documents, Congress
would be left only with the ``spin'' the executive branch
agency opted to provide to the legislative branch. This result,
without question, would only serve to undermine the legitimate
authority of Congress to conduct independent oversight.
Therefore, I would expect the committee to reject all efforts
to extend the FOIA Exemption 5 to congressional requests for
information.
Porter J. Goss.
.....
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