[House Report 109-528]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-528
======================================================================
REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF DEFENSE AND 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 RELATING TO THE TERMINATION OF THE DEPARTMENT OF JUSTICE'S
OFFICE OF PROFESSIONAL RESPONSIBILITY'S INVESTIGATION OF THE
INVOLVEMENT OF DEPARTMENT OF JUSTICE PERSONNEL IN THE CREATION AND
ADMINISTRATION OF THE NATIONAL SECURITY AGENCY'S WARRANTLESS
SURVEILLANCE PROGRAM, INCLUDING DOCUMENTS RELATING TO OFFICE OF
PROFESSIONAL RESPONSIBILITY'S REQUEST FOR AND DENIAL OF SECURITY
CLEARANCES
_______
June 26, 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. 845]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 845) requesting the President and directing
the Secretary of Defense and 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 relating
to the termination of the Department of Justice's Office of
Professional Responsibility's investigation of the involvement
of Department of Justice personnel in the creation and
administration of the National Security Agency's warrantless
surveillance program, including documents relating to Office of
Professional Responsibility's request for and denial of
security clearances, having considered the same, report
unfavorably thereon without amendment and recommend that the
resolution not be agreed to.
PURPOSE AND SUMMARY
House Resolution 845, introduced by Representative Hinchey,
on May 25, 2005, requests the President and directs the
Secretary of Defense and the Attorney General to transmit to
the House of Representatives documents relating to the
termination of the Department of Justice's Office of
Professional Responsibility's investigation of the involvement
of Department of Justice personnel in the creation and
administration of the National Security Agency's (NSA)
warrantless surveillance program, including documents relating
to Office of Professional Responsibility's request for, and
denial of, security clearances.
BACKGROUND
House Resolution 845 is a resolution of inquiry. Under the
rules and precedents of the House of Representatives, a
resolution of inquiry 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\
---------------------------------------------------------------------------
\1\ 7 Deschler's Precedents of the House of Representatives, ch.
24, Sec. 8.
---------------------------------------------------------------------------
A committee has a number of choices in considering 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.
On January 9, 2006, Representative Hinchey and three other
Members sent a letter to the Department of Justice's Counsel
for the Office of Professional Responsibility (OPR) to
investigate how the Terrorist Surveillance Program was
established and the involvement and objections of Department of
Justice (DOJ) officials regarding the program, and the overall
legality of the program. OPR is the office that investigates
attorney misconduct. In February and March 2006, OPR informed
Representative Hinchey that OPR was conducting an investigation
of the role of the Department of Justice attorneys in the
authorization and oversight of warrantless electronic
surveillance by the NSA and to determine if DOJ was in
compliance with the Foreign Intelligence Surveillance Act. On
May 10, 2006, OPR informed Representative Hinchey that on May
9, 2006, OPR was informed that the request for the necessary
clearances to investigate had been denied and thus the OPR
investigation was closed.
A security clearance does not entitle someone to access all
classified information, but rather only that information
related to the work that individual performs and is on a
``need-to-know'' basis. It is arguable that OPR employees did
not have a basis to investigate the NSA program, as OPR is
charged with investigating professional misconduct and not the
constitutionality of a Defense Department (DOD) program. The
Attorney General has emphasized this point.\2\
---------------------------------------------------------------------------
\2\ Linzer, Dafna, Charles Babington, Lawrence Reexamine Hayden;
CIA Pick's Involvement in Wiretap Programs Raises Questions, Washington
Times, May 18, 2006, at A05.
---------------------------------------------------------------------------
This conclusion is supported by OPR's mission statement,
which states, ``OPR reviews allegations of attorney misconduct
involving violation of any standard imposed by law, applicable
rules of professional conduct, or Departmental policy. When
warranted, OPR conducts full investigations of such
allegations, and reports its findings and conclusions to the
Attorney General and other appropriate Departmental
officials.'' \3\
---------------------------------------------------------------------------
\3\ U.S. Department of Justice, Office of Professional
Responsibility Process, (2006), available at http://www.usdoj.gov/opr/
proc-hdl.htm.
---------------------------------------------------------------------------
The Attorney General's conclusion is further supported by
the U.S. Department of Justice Office of Professional
Responsibility, Fiscal Year 2003 Annual Report that explained:
\4\
---------------------------------------------------------------------------
\4\ U.S. Department of Justice, Office of Professional
Responsibility, Fiscal Year 2003, available at http://www.usdoj.gov/
opr/annualreport2003.htm.
OPR has jurisdiction to investigate allegations of
professional misconduct made against Department of
Justice attorneys, investigators, or law enforcement
personnel where the allegations relate to the exercise
of an attorney's authority to investigate, litigate, or
provide legal advice. OPR also has authority to
investigate other matters when requested or authorized
to do so by the Attorney General or the Deputy Attorney
General.
Typical misconduct allegations that OPR investigates
include Brady, Giglio,\5\ and Federal Rule of Criminal
Procedure 16 discovery violations; improper conduct
before a grand jury; improper coercion or intimidation
of witnesses; improper use of peremptory strikes during
jury selection; improper questioning of witnesses;
improper introduction of evidence; misrepresentations
to the court and/or opposing counsel; improper closing
arguments; failure to diligently represent the
interests of the government; failure to comply with
court orders, including scheduling orders; and
unauthorized disclosure of information. In addition,
OPR examines cases in which courts have awarded Hyde
Amendment fees to the defendant based on a finding that
the government's conduct was frivolous, vexatious, or
in bad faith.
---------------------------------------------------------------------------
\5\ As a result of Brady and Giglio Supreme Court cases, the
government must disclose any evidence favorable to the defendant that
is material. Furthermore, the defendant's failure to request favorable
evidence does not leave the government free of this obligation.
The Inspector General for the Department of Defense (DOD
IG) directed Members of Congress to the NSA's own Inspector
General for such review, rather than the Department of
Justice's Office of Professional Responsibility. The DOD IG
explained in a letter to Representative Lofgren that ``the
Inspector General of NSA is already actively reviewing aspects
of that program.'' \6\ The Committee is reporting this
resolution adversely because it requests documents that may
contain highly sensitive national security and employee
personnel information. In addition, the request is misdirected
as clearances may not have been granted due to the fact that
DOJ's Office of Professional Responsibility is not charged with
examining DOD programs, or with assessing the legal validity of
this program.
---------------------------------------------------------------------------
\6\ Letter from Thomas F. Gimble, Acting Inspector General, United
States Department of Defense to Zoe Lofgren, Representative, United
States House of Representatives (Jan. 10, 2006) (available at http://
www.house.gov/list/press/ca16_lofgren/
pr_060111_DOJ_and_DOD_Respond.html).
---------------------------------------------------------------------------
HEARINGS
No hearings were held in the Committee on the Judiciary on
H. Res. 845.
COMMITTEE CONSIDERATION
On June 21, 2006, the Committee met in open session and
adversely reported the resolution H. Res. 845 by a voice vote,
a quorum being present.
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. 845.
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. 845 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. 845 is not a bill or joint
resolution that may be enacted into law.
SECTION-BY-SECTION ANALYSIS AND DISCUSSION
The House Resolution requests the President and directs the
Secretary of Defense and the Attorney General to transmit to
the House of Representatives not later than 14 days after the
date of adoption of this resolution documents relating to the
termination of the Department of Justice's Office of
Professional Responsibility's investigation of the involvement
of Department of Justice personnel in the creation and
administration of the NSA's warrantless surveillance program,
including documents relating to Office of Professional
Responsibility's request for and denial of security clearances.
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.
845 makes no changes to existing law.
DISSENTING VIEWS
We dissent from the adverse reporting of H. Res. 845.
After 9/11, the Nation's highest lawyers authorized
warrantless wiretapping on American soil, now unanimously
condemned by constitutional scholars and intelligence
professionals alike.
Repeatedly, the President and the Attorney General have
refused to say which lawyers actually approved the program and
through which process they did so. There are also reports that
officials as high as then-Acting Attorney General James Comey
refused to sanction the program due to constitutional and legal
concerns.
Shortly after the New York Times first reported on the
program, Representatives Hinchey, Lewis, Waxman and Woolsey,
requested the Justice Department's Office of Professional
Responsibility (OPR) conduct an investigation into who approved
warrantless wiretapping on American soil and why.
The Office of Professional Responsibility ``is responsible
for investigating allegations of misconduct involving
Department attorneys that relate to the exercise of their
authority to investigate, litigate or provide legal advice, as
well as allegations of misconduct by law enforcement personnel
when they are related to allegations of attorney misconduct
within the jurisdiction of OPR.'' \1\ With the objective of
``ensur[ing] that Department of Justice attorneys continue to
perform their duties in accordance with the high professional
standards expected of the Nation's principal law enforcement
agency.'' \2\
---------------------------------------------------------------------------
\1\ Office of Professional Responsibility, http://www.usdoj.gov/
opr.
\2\ Id.
---------------------------------------------------------------------------
Pursuant to the Congresspersons' request, the OPR began an
investigation into the Department of Justice's role in
``authorizing, approving and auditing certain surveillance
activities of the National Security Agency.'' \3\
---------------------------------------------------------------------------
\3\ Letter from H. Marshall Jarrett, Counsel, Office of
Professional Responsibility, to Maurice D. Hinchey, et. al, regarding
the termination of the investigation of warrantless wiretapping by the
NSA (Feb. 2, 2006).
---------------------------------------------------------------------------
Regretfully, OPR was unable to complete its task when
either the NSA or the Justice Department--it is still unclear--
denied its investigators access to the necessary information.
On May 10, 2006, the Office of Professional Responsibility
again wrote Congressman Hinchey stating, ``We have been unable
to make any meaningful progress in our investigation because
OPR has been denied security clearances for access to
information about the NSA program . . . without these
clearances, we cannot investigate this matter and therefore
have closed our investigation.''
The denial of OPR access to any documents related to the
Justice Department's approval of NSA wiretapping is a move
which, according to Michael Shaheen who headed the OPR from
1975 to 1997, simply did not occur for any reason in his time
at the Office. He stated, ``[my staff] never, ever was denied a
clearance.'' \4\
---------------------------------------------------------------------------
\4\ Shane Harris & Murray Waas, Justice Department Probe Foiled,
National Journal, May 27, 2006, at 53.
---------------------------------------------------------------------------
For decades, the determination of security clearance has
turned on whether the applicant was ``reliable, trustworthy, of
good conduct and character and of unswerving loyalty to the
United States.'' Clearly, there is no evidence that OPR
attorneys do not meet this standard. It appears that access may
have been denied for purely political purposes. That is why H.
Res. 845, which merely asks for documents relating to OPR's
denial is so important.
There are several levels of clearance, which have
increasing standards of eligibility corresponding with
increasing levels of sensitive information. The four main types
of security clearance are confidential, secret, top secret, and
sensitive compartmented information. It is also possible to be
granted security clearance information related to one subject
and denied certain information related to another subject, all
within the same department or agency.\5\
---------------------------------------------------------------------------
\5\ Derrick Dortch, Getting a Security Clearance, WASH. POST, June
25, 2004.
---------------------------------------------------------------------------
Currently, it remains unclear whether the attorneys were
denied the level of clearance required to investigate the DOJ's
participation in the NSA data-mining and wiretapping programs
or whether the attorneys were granted security clearance and
then denied access to this specific information.
Either way, it is difficult to understand why these
attorneys have been denied access to the information necessary
to effectively do their job. The Office of Professional
Responsibility is the branch of the Department of Justice that
is responsible for ensuring that its attorneys maintain the
high ethical and professional standards set forth by the
Nation's primary law enforcement agency.\6\ It is only natural
to assume that attorneys entrusted to preserve the integrity of
such an important Government agency and given the authority to
fully investigate allegations of misconduct \7\ would be highly
trustworthy, reliable and undoubtedly loyal to the United
States Government; and therefore worthy of this level of
clearance.
---------------------------------------------------------------------------
\6\ Office of Professional Responsibility, available at http://
www.usdoj.gov/opr/index.html.
\7\ Id.
---------------------------------------------------------------------------
Regardless of one's position with respect to the NSA's
eavesdropping program, we cannot understand how anyone could
support the Justice Department's refusal to be investigated by
a duly appointed and authorized office who is charged with
monitoring the ethics of the Nation's top lawyers. It is our
firm belief that the Justice Department shouldn't be permitted
to arbitrarily pick and choose which ethics investigations it
will decide to cooperate with.
John Conyers, Jr.
Rick Boucher.
Robert C. Scott.
Zoe Lofgren.
Maxine Waters.
William D. Delahunt.
Howard L. Berman.
Jerrold Nadler.
Sheila Jackson-Lee.
Robert Wexler.
Adam B. Schiff.
Chris Van Hollen.