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Profile: Congressional Research Service

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Congressional Research Service was a participant or observer in the following events:

White House chief of staff Andrew Card instructs government agencies to be watchful about safeguarding records that might contain any “information that could be misused to harm the security of our nation and the safety of our people.” Card’s order does not define terms, and agency heads are encouraged to define such cited information as broadly as possible. As a result, many government agencies begin refusing Freedom of Information Act (FOIA) requests under a broadly, and often crudely, applied rubric of “national security.” Card’s order precipitates a cascade of new designations for non-classified information that agencies do not want to release, including “For Official Use Only,” “Sensitive but Unclassified,” “Not for Public Dissemination,” and others. The Congressional Research Service will later estimate that some 50 to 60 new designations are created by various executive agencies to keep information away from the public. In addition, some agencies allow any official or employee, from the agency head to the lowliest clerk, to designate a document as off-limits; all 180,000 employees of the Department of Homeland Security, for example, can designate a document “For Official Use Only” and thus keep it out of public hands. Reporter and author Charlie Savage will write in 2007: “There is no system for tracking who stamped it, for what reason, and how long it should stay secret. There is no process for appealing a secrecy decision.” Websites containing reams of government information are purged and sometimes shut down entirely. Periodic reports containing information that someone deems sensitive, or perhaps merely embarrassing, are terminated. FOIA requests are routinely stalled. Even such innocuous documents as the Defense Department’s personnel directory, formerly available for sale at the Government Printing Office, is now deemed unsafe for public consumption. The Environmental Protection Agency stops publishing chemical plants’ plans for dealing with disasters, perhaps protecting the public from inquisitive terrorists but certainly easing the pressure on the plants to keep their disaster preparation plans current and effective. The Defense Department stops selling topographic charts, used by, among others, airlines for creating flight charts and biologists for mapping species distribution, for “fear” that “those intending harm” might use the charts to plot attacks on US targets. Even old press releases written specifically for public distribution are retroactively classified. (Andrew Card 3/19/2002; Savage 2007, pp. 101-103)

Henry Kissinger resigns as head of the new 9/11 Commission. (Fournier 12/13/2002; Fournier 12/13/2002) Two days earlier, the Bush administration argued that Kissinger was not required to disclose his private business clients. (Schmitt 12/12/2002) However, the Congressional Research Service insists that he does, and Kissinger resigns rather than reveal his clients. (MSNBC 12/13/2002; Eggen 12/14/2002)
Spilled Coffee - Kissinger had also been pressured to reveal his client list at a meeting with a group of victims’ relatives, in particular the “Jersey Girls.” One of the “Girls,” Lorie Van Auken, had even asked Kissinger whether he had “any clients named bin Laden?” Kissinger, who was pouring coffee at that moment, refused to answer, but spilled the coffee and fell off the sofa on which he was sitting. (Shenon 2008, pp. 12-3)
Business Ties - It is reported that Kissinger is (or has been) a consultant for Unocal, the oil corporation, and was involved in plans to build pipelines through Afghanistan (see September-October 1995). (Ottaway and Morgan 10/5/1998; Conason 12/3/2002) Kissinger claims he did no current work for any oil companies or Mideast clients, but several corporations with heavy investments in Saudi Arabia, such as ABB Group, a Swiss-Swedish engineering firm, and Boeing Corp., pay him consulting fees of at least $250,000 a year. A Boeing spokesman said its “long-standing” relationship with Kissinger involved advice on deals in East Asia, not Saudi Arabia. Boeing sold $7.2 billion worth of aircraft to Saudi Arabia in 1995. (Isikoff and Hosenball 12/15/2002)
Not Vetted - In a surprising break from usual procedures regarding high-profile presidential appointments, White House lawyers never vetted Kissinger for conflicts of interest. (Isikoff and Hosenball 12/15/2002) The Washington Post says that after the resignations of Kissinger and Mitchell, the commission “has lost time” and “is in disarray, which is no small trick given that it has yet to meet.” (Washington Post 12/14/2002)

The General Accounting Office (GAO), the nonpartisan investigative arm of Congress, declines to appeal a case attempting to force Vice President Cheney to disclose his Energy Task Force documents (see May 16, 2001, February 22, 2002, and December 9, 2002). This ends a potentially historic showdown between the Congressional watchdog agency and the executive branch. (Simon 2/8/2003) It is widely believed that the suit is dropped because of pressure from the Republican Party—the suit was filed when the Democrats controlled the Senate, and this decision comes shortly after the Republicans gained control of it. (Milbank 2/8/2003) The head of the GAO denies the lawsuit is dropped because of Republican threats to cut his office’s budget, but US Comptroller General David Walker, who led the case, says there was one such “thinly veiled threat” last year by a lawmaker he wouldn’t identify. (Cornwell 2/25/2003) Another account has Senator Ted Stevens (R-AK) and a number of other congresspeople making the threat to Walker. (Brand and Bolton 2/19/2003) The GAO has previously indicated that accepting defeat in this case would cripple its ability to oversee the executive branch. (Milbank 2/8/2003) A similar suit filed by Judicial Watch and the Sierra Club continues to move forward, but will ultimately be defeated by the Supreme Court (see May 10, 2005). (Milbank 2/8/2003)
Picking Its Battles - Walker explains that to continue the case “would require investment of significant time and resources over several years.” Later, he will say that he decided not to appeal the case for what reporter Charlie Savage will call “damage-control reasons.” Walker does not want to involve the GAO in what he fears will be perceived as a partisan conflict, and he does not want to risk further crippling the GAO’s ability to function by risking another negative ruling from a federal appeals court. “If the GAO was going to fight that legal battle,” Savage will write in explanation of Walker’s reasoning, “it was strategically unwise to use a case that involved records inside the White House itself instead of a less prominent part of the executive branch.” (Savage 2007, pp. 113)
Refusal to Appeal 'Stunning' - In 2004, former Nixon White House counsel John Dean will write that he finds the GAO’s decision not to appeal the ruling “stunning.” Walker says the GAO isn’t going to challenge the ruling because it does not materially affect the GAO’s ability to function because the “decision did not address the merits” of the GAO’s arguments. The ruling, Walker says, “has no effect on GAO’s statutory audit rights or the obligation of agencies to provide GAO with information.” Dean calls this line of reasoning “wishful thinking at its best.” Dean will ask a high-level GAO official about the reported threats from Congressional Republicans. The official will reply that the threats did not worry Walker and the GAO lawyers nearly as much as the possibility that, if the GAO were to pursue the lawsuit, then, Dean will write, “the Supreme Court could do again what it did in Bush v. Gore and make Walker v. Cheney the landmark ruling ending virtually all Congressional oversight.” But lawyers for the Congressional Research Service (CRS) say that the ruling as it stands places severe restrictions on Congressional oversight. As Dean puts it: “The GAO has lost not only standing to file a lawsuit but the leverage of the threat of filing such a lawsuit, should an executive department or agency stonewall the way Cheney did. The GAO must now simply take what the White House (and its many appendages…) volunteers. This has never before been the case. [The GAO] will see only what Bush and Cheney want it to see.” The CRS notes that the ruling “calls into question the ability of Congress to delegate investigative authority to its agents;” Dean will write that this “may be the true reason for the lawsuit and for Cheney’s actions.” (Dean 2004, pp. 80-81)
'Big Win' for Bush/Cheney - Constitutional scholar Thomas Mann of the Brookings Institution will call the ruling a “big win” for the Bush-Cheney administration, saying: “President Bush and Vice President Cheney have an extreme and relentless executive-centered conception of American government, and it plays out every day, and there are dozens of fronts in this effort to strengthen the presidency. Power naturally gravitates to the presidency in times of uncertainty. But people are going to question putting all of our trust in an unfetttered presidency.” Former Justice Department official Bruce Fein is more blunt. “Now they have a precedent that they can hold over Congress’s head,” he will say. “Like a loaded gun. Forever.” (Dubose and Bernstein 2006, pp. 14-15)

Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee, tells President Bush that his administration’s practice of only briefing a select few Congressional leaders on highly classified programs violates the National Security Act of 1947. Harman is referring to Bush’s practice of briefing the so-called “Gang of Eight,” comprised of the Speaker and Minority Leader of the House, the Majority and Minority Leaders of the Senate, and the chairmen and ranking members of the House and Senate Intelligence Committees, about the National Security Agency’s warrantless wiretapping program. Harman, a member of the Gang of Eight since 2003, says that she has found, she writes, “that the practice of briefing only certain Members of the intelligence committees violates the specific requirements of the National Security Act of 1947. The National Security Act requires that ‘The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States….‘…The Act makes clear that the requirement to keep the committees informed may not be evaded on the grounds that ‘providing the information to the congressional intelligence committees would constitute the unauthorized disclosure of classified information.’” Harman notes that the one exception to the president’s duty to keep all committee members informed, covert action that entails “extraordinary circumstances affecting vital interests of the United States” and thereby limits notification to the Gang of Eight, applies only “to covert actions, not intelligence collection activities.” Harman adds, “For all intelligence activities that are not covert actions, the Executive Branch’s duty is clear: the ‘heads of all…entities involved in intelligence activities shall…keep the congressional intelligence committees fully and currently informed of all intelligence activities.” Harman says that merely briefing the Gang of Eight does not provide “effective oversight,” especially in light of the restrictions on the lawmakers: “Members of the Gang of Eight cannot take notes, seek the advice of their counsel, or even discuss the issues raised with their committee colleagues.… As you know, both congressional intelligence committees are select committees, formed of Members who hold the highest security clearances and have a proven ability to safeguard classified information.” Harman concludes, “In my view, failure to provide briefings to the full congressional intelligence committees is a continuing violation of the National Security Act.” (US House of Representatives 1/4/2006) Two weeks later, the Congressional Research Service will issue a report on the requirements of the Act agreeing with Harman’s conclusion (see January 18, 2006).

President Bush’s rationale for authorizing warrantless surveillance against US citizens is of questionable legality and “may represent an exercise of presidential power at its lowest ebb,” according to a Congressional analysis. The Congressional Research Service (CRS), the independent and nonpartisan research bureau of the legislature, answers the question raised around the nation since the revelation of the secret program by the New York Times (see Early 2002): did Bush break the law when he ordered the National Security Agency to eavesdrop on US citizens without court orders or judicial oversight? The CRS report does not give a definitive yes or no answer to that question, but finds Bush’s legal rationale dubious at best. That rationale “does not seem to be as well-grounded” as administration lawyers have claimed, and the report finds that, despite assertions to the contrary by Bush and administration officials, Congress did not authorize warrantless wiretaps when it gave the executive branch the authority to wage war against al-Qaeda in the days after the 9/11 attacks. Unsurprisingly, Bush administration officials criticize the report. But some Republicans and Democrats find the report’s conclusions persuasive, and hold up the report as further evidence that Bush overextended his authority by authorizing the wiretaps. For instance, Republican Thomas Kean, the former chairman of the 9/11 commission (see January 27, 2003, says he doubts the program’s legality. Kean, who has not spoken publicly about the program until now, says the 9/11 commission was never told about the program, and he strongly doubts its legality. “We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances,” Kean says. (Congressional Research Service 1/5/2006 pdf file; Lichtblau and Shane 1/6/2006)

The Congressional Research Service (CRS) finds that the Bush administration broke the law when it refused to provide timely and complete briefings to the appropriate members of Congress on the National Security Agency’s domestic wiretapping program. The CRS’s legal analysis concludes that the administration’s limited briefings are “inconsistent with the law.” The CRS performed the analysis at the request of Representative Jane Harman (D-CA), the ranking Democrat on the House Intelligence Committee and a member of the so-called “Gang of Eight,” the eight members of Congress that Bush allows to receive limited information on the NSA program. Harman, who calls the CRS report “a solid piece of work,” wrote to Bush on January 4, 2006, to inform him that she believes the information should be provided to all the members of the House and Senate Intelligence Committees. The briefings, which are intentionally limited in scope, are provided only to eight members of Congress: the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the ranking members of the House and Senate Intelligence Committees. Harman says that an upcoming briefing, scheduled for February 6, should include all members of the intelligence committees. The briefings on the NSA program are held through the office of Vice President Dick Cheney. Though Harman is in agreement with the CRS that the briefings are legally inadequate, House Intelligence Committee chairman Peter Hoekstra (R-MI) has said he believes the briefings are adequate for Congressional oversight.
bullet The CRS finding is based on the requirements of the 1947 National Security Act, that mandates that all of the members of the House and Senate Intelligence Committees be “fully and currently informed” of intelligence activities. The Act says that “covert actions” can only be revealed to the “Gang of Eight,” but, the CRS finds, since the NSA’s domestic surveillance program does not appear to be covert, limiting the briefings to just eight members of Congress “would appear to be inconsistent with the law.” The memo gives several options for the administration to bring itself into compliance with the law, noting, for example, that “[t]he executive branch may assert that the mere discussion of the NSA program generally could expose certain intelligence sources and methods to disclosure.” (Shane 1/18/2006; Eggen 1/19/2006)

A memo from the nonpartisan Congressional Research Service (CRS) finds that President Bush appears to be in violation of the National Security Act of 1947 in his practice of briefing only select members of Congress on the National Security Agency’s warrantless wiretapping program. Bush has provided only limited briefings to the so-called “Gang of Eight,” the four Congressional leaders and the four ranking members of the House and Senate Intelligence Committees. But the 1947 law requires the US intelligence community to brief the full membership of both committees on the program. The memo is the result of a request by Representative Jane Harman (D-CA), who wrote Bush a letter saying that she believes he is required under the Act to brief both committees, and not just the Gang of Eight (see January 4, 2006). The White House claims that it has briefed Congressional leaders about the program over a dozen times, but refuses to provide details; the Congressional members so briefed are forbidden by law to discuss the content or nature of those classified briefings, even with their own staff members. “We believe that Congress was appropriately briefed,” says White House spokeswoman Dana Perino. The CRS agrees with Harman that the single exception to such full briefings under the law, covert actions taken under extraordinary threats to national security, is not applicable in this instance. Unless the White House contends the program is a covert action, the memo says, “limiting congressional notification of the NSA program to the Gang of Eight…would appear to be inconsistent with the law.” (US House of Representatives 1/4/2006; Congressional Research Service 1/18/2006 pdf file; Eggen 1/19/2006) The day after the CRS memo is released, Senate Democrats John D. Rockefeller (D-WV) and Harry Reid (D-NV), along with House Minority Leader Nancy Pelosi (D-CA) and Harman, the ranking member of the House Intelligence Committee, write to Vice President Dick Cheney demanding that the full committees be briefed on such intelligence matters in the future. (Leonnig 1/20/2006) On February 9, Bush will allow Attorney General Alberto Gonzales and former NSA chief Michael Hayden to brief the full House Intelligence Committee on the program (see February 8-17, 2006).

The Justice Department (DOJ) issues a 42-page “white paper” detailing its arguments that the National Security Agency’s warrantless wiretapping program (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, Early 2002, September 2002, Late 2003-Early 2004, April 19-20, 2004, June 9, 2005, June 9, 2005, December 15, 2005, December 17, 2005, December 19, 2005, December 24, 2005, January 5, 2006, January 18, 2006, January 18, 2006, January 23, 2006, and January 30, 2006) is legal. The DOJ reiterates two previous arguments (see December 19, 2005 and December 21-22, 2005)—that Congress implicitly authorized the program in 2001 when it authorized the Bush administration to begin military actions against al-Qaeda (see September 14-18, 2001), and that the president has the authority as commander in chief to conduct such a program—even though these arguments have been thoroughly refuted (see January 9, 2006) and overridden by the Supreme Court’s recent Hamdan v. Rumsfeld ruling (see December 15, 2005 and July 8, 2006). In its paper, the DOJ declares that if necessary, it will attack the legality of the Foreign Intelligence Surveillance Act (FISA) in order to stop that law from “imped[ing]” the president’s power to order domestic surveillance. In essence, according to columnist and civil liberties lawyer Glenn Greenwald, the DOJ is asserting that the president’s powers are limitless as long as he or she declares a given action necessary to battle terrorism. “Because the president has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al-Qaeda, FISA would impermissibly interfere with the president’s most solemn constitutional obligation—to defend the United States against foreign attack,” the DOJ claims. Neither Congress nor the court system has the right to limit or even review the president’s powers, according to the DOJ. Greenwald calls the DOJ’s argument “a naked theory of limitless presidential power.” In fact, Greenwald argues, the DOJ is asserting that FISA itself is unconstitutional, because no law can in any way limit the president’s power to conduct foreign policy or protect the nation’s security. The document is part of a larger Bush administration defense of the USA Patriot Act, and part of the administration’s push to convince Congress to reauthorize that legislation. Attorney General Alberto Gonzales sends the document to Congress. Justice Department official Steven Bradbury says, “When it comes to responding to external threats to the country… the government would like to have a single executive who could act nimbly and agilely.” (US Department of Justice 1/19/2006 pdf file; Glenn Greenwald 1/20/2006; Leonnig 1/20/2006)
Dubious Legality - The program has already been found to be of questionable legality by two reports recently released by the nonpartisan Congressional Research Service (see January 5, 2006 and January 18, 2006). And author James Bamford, a US intelligence expert who has written extensively about the NSA, says that the Justice Department’s arguments are specious in light of Congress’s clear intent in its 1978 passage of FISA to block warrantless wiretapping, and its demonstrated lack of intent to allow any such operations within US borders in the October 2001 legislation. “You could review the entire legislative history in the authorization to use military force and I guarantee you won’t find one word about electronic surveillance,” he says. “If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again.” (Leonnig 1/20/2006)
Self-Contradictory Justifications - In 2007, author and reporter Charlie Savage will write of the “shaky foundation” supporting the administration’s “two-pronged attacks on critics of the wiretapping program and the Patriot Act,” which some officials have claimed authorizes the program. “Beneath the simplistic rhetoric, the administration’s position was self-contradicting,” Savage will write. If Bush has the inherent presidential authority to order warrantless wiretapping, then he needs no authorization from the Patriot Act or any other legislation. But if Congress is endangering the nation by delaying in reauthorizing the Patriot Act and thusly not rendering the program legal, then the wiretapping program is illegal after all. The memo attempts to “paper… over” this problem by claiming that, while Bush has the inherent authority to do whatever he feels is necessary to protect the country, the Patriot Act’s extra police powers are still necessary in “contexts unrelated to terrorism.” Savage will write, “In other words, the administration’s own position, hidden in the fine print, was that the Patriot Act was superfluous and irrelevant to the war on terrorism—a somewhat absurd stance made necessary by their desire to say the wiretapping program was legal.” (Savage 2007, pp. 315)
Failure to Address Probable Beginning of Program Before Attacks - The Justice Department says nothing about the program apparently beginning well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

A Congressional Budget Office (CBO) estimate based on a Congressional Research Service Report states that total funding for Iraq and the Global War on Terror could reach $808 billion by 2016. The report also states problems with oversight in that the Department of Defense has not provided Congress with the individual costs of each operation. The report begins by stating the administration has not answered frequently asked questions such as:
bullet How much has Congress appropriated for each of the three missions since the 9/11 attacks—Operation Iraqi Freedom (OIF), Operation Enduring Freedom (OEF, Afghanistan and other “Global War on Terror” operations), and Operation Noble Eagle (enhanced security for defense bases) for defense, foreign operations, and related VA medical care?
bullet How much has the Pentagon obligated on average per month for each of the three missions each year?
bullet What do trends in costs tell us about likely spending levels in the future?
It continues by outlining major unknowns which Congress may wish to pursue for accountability in government:
bullet What is the estimated cost to reset—repair and replace war-worn equipment—and how might that funding affect the Pentagon’s regular or baseline budget?
bullet How are some types of war costs affected by policy and contracting decisions as well as operational needs and troop levels?
bullet How have deployed troop levels changed since the 9/11 attacks and how could Congress get accurate information on past and future troop levels?
bullet What is the average cost per deployed troop for OIF and OEF, and how might that cost affect future war costs?
bullet What are the estimates of future war costs? (Congressional Budget Office 9/22/2006, pp. 1-3 pdf file)

Authors and columnists Diane Farsetta and Sheldon Rampton show that the Pentagon’s recently revealed covert propaganda program using “independent military analysts” to promulgate Pentagon viewpoints about Iraq and the war on terror (see April 20, 2008 and Early 2002 and Beyond) is “not only unethical but illegal.”
Congress Prohibitions Since 1951 - According to every appropriations bill passed by Congress since 1951, “No part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by the Congress.”
Congressional Research Service Finds Government-Funded Propaganda Illegal - A March 2005 report by the Congressional Research Service defines “publicity or propaganda” as either “self-aggrandizement by public officials… purely partisan activity… covert propaganda.” Farsetta and Rampton explain, “By covert propaganda, GAO [the Government Accountability Office] means information which originates from the government but is unattributed and made to appear as though it came from a third party.” The GAO has determined that government-funded video news releases (VNRs) are illegal when an agency such as the Defense Department fails “to identify itself as the source of a prepackaged news story [and thusly] misleads the viewing public by encouraging the viewing audience to believe that the broadcasting news organization developed the information. The prepackaged news stories are purposefully designed to be indistinguishable from news segments broadcast to the public. When the television viewing public does not know that the stories they watched on television news programs about the government were in fact prepared by the government, the stories are, in this sense, no longer purely factual—the essential fact of attribution is missing.” Farsetta and Rampton argue that the supposedly “independent” commentary by the complicit analysts is little different from the VNRs. The GAO has also noted, “The publicity or propaganda restriction helps to mark the boundary between an agency making information available to the public and agencies creating news reports unbeknownst to the receiving audience.”
Justice Department Finds Propaganda Cannot be Funded by Government - And in 2005, the Justice Department’s Office of Legal Counsel (OLC) found that after the Bush administration had been caught paying pundits to write op-eds favorable of administration policies, “OLC determined in 1988 that a statutory prohibition on using appropriated funds for ‘publicity or propaganda’ precluded undisclosed agency funding of advocacy by third-party groups. We stated that ‘covert attempts to mold opinion through the undisclosed use of third parties’ would run afoul of restrictions on using appropriated funds for ‘propaganda.’” Farsetta and Rampton write: “The key passage here is the phrase, ‘covert attempts to mold opinion through the undisclosed use of third parties.’ As the [New York] Times report documented in detail, the Pentagon’s military analyst program did exactly that.” (PRWatch 4/28/2008)
Pentagon Says Program Legal - Former Pentagon spokesman Lawrence Di Rita says the program is simply a “mirror image” of the Pentagon’s program of embedding journalists with combat units in the field, and Pentagon spokespersons insist that the program was merely to ensure that the US citizenry was well informed about the war. (Barstow 4/21/2008)


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