Additional Views of Chairman Porter J. Goss. (An Attachment to House Report 106-130.) By: The House Permanent Select Committee on Intelligence. Re: Intelligence Authorization Act for Fiscal Year 2000. Date: May 7, 1999. Source: Library of Congress.

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

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. 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. 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.