27 June 1999. See also the 1975 report by the Senate Select Committee on Intelligence Activities, "The National Security Agency and Fourth Amendment Rights": http://cryptome.org/jya/nsa-4th.htm

14 June 1999. See related law on congressional oversight of intelligence activities: http://cryptome.org/jya/50usc413.txt

25 May 1999

Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

See full report: http://cryptome.org/jya/hr106-130p1.txt

See related intelligence funding bill: http://cryptome.org/jya/hr1555-yak.txt


[DOCID: f:hr130p1.106]
From the House Reports Online via GPO Access

106th Congress                                            Rept. 106-130
  1st Session           HOUSE OF REPRESENTATIVES              Part 1   



                  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]


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.



    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 
    \1\ In the 1970s it was learned that the NSA, 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).
    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 
    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 
    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 
    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 

                                                    Porter J. Goss.