HOUSE OF REPRESENTATIVES
1st Session
Part 1
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2000
May 7, 1999.--Ordered to be printed
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\
\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 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 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, 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. on
Energy 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, 5, cl. 2; 50 U.S.C. 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 a
government 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. 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. 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.