Covert Action Notification Policy in Dispute

The intelligence authorization bill that is pending in the House of Representatives would generally require all members of the intelligence committees to be briefed on covert actions, not just the so-called “Gang of Eight,” unless the Committee itself decided to limit such briefings.

“The Committee understands well the need to protect intelligence information from unauthorized disclosure and the prerogatives of the executive branch with respect to the protection of classified information. However, these principles must be balanced against the constitutional requirement for congressional oversight,” the Committee wrote in its report.

The White House said it “strongly objects” to that provision and suggested the President would veto the bill to block it.  The revised notification procedures would undermine “a long tradition spanning decades of comity between the branches regarding intelligence matters,” the July 8 White House Statement of Administration Policy (pdf) said.

But a new report from the Congressional Research Service reminds readers that the “tradition” regarding covert action notification is not so long, and that it is subject to modification in response to changing circumstances.  It was first put in place in 1980, during the Iran hostage crisis.  In 1991, following the Iran-Contra Affair, it was elaborated in congressional report language.  Following the momentous challenges to congressional oversight in recent years, it would not be surprising if it were adjusted further.

A copy of the new CRS report was obtained by Secrecy News.  See “Sensitive Covert Action Notifications: Oversight Options for Congress,” July 7, 2009.

The CRS report mentions in passing an apparent discrepancy in the public record concerning covert action and the CIA detainee interrogation program.  In pre-confirmation responses to questions (pdf, p.9), DNI Dennis Blair told the Senate Intelligence Committee that neither the Terrorist Surveillance Program nor the CIA detention, interrogation and rendition programs were covert actions and that therefore neither should have been subject to limited “Gang of Eight” notification procedures.  But former CIA director Michael Hayden said in an April 16, 2009 news interview that the CIA interrogation program “began life as a covert action.”  CIA Director Leon Panetta, when asked about both programs (pdf, pp. 16-17) prior to his confirmation, said that the Terrorist Surveillance Program was not a covert action, but he was silent about the CIA program.  Both DNI Blair and DCIA Panetta prefaced their responses with a disclaimer that they were not yet privy to classified information on these matters, though presumably the contents would have been reviewed prior to submission to eliminate factual errors.  The discrepancy between their statements and that of former DCIA Hayden is unresolved.

No Responses to “Covert Action Notification Policy in Dispute”

  1. MicheleMoore-Happy1 July 9, 2009 at 11:10 PM #

    Steve – What are we truly worried about, what risks are we trying to protect?

    Select Intelligence Committee members would be briefed on the existence of the special access programs, not the details. Are we worried they will talk to the press? If the programs are wrong and illegal, isn’t it their responsibility to object? Where are the checks and balances? Is the current Gang of Eight process just meant to be a rubber stamp? Aren’t we trying to protect our nation from dangers within as well as from the outside? How can we as a nation be assured that special access classifications or any other classification will not be used to hide wrong doing?

    Isn’t that our BIG worry?

  2. Daniel July 10, 2009 at 11:53 AM #

    Michele, I think you were being serious, so feel free to mock me if I misjudged.

    “Select Intelligence Committee members would be briefed on the existence of the special access programs, not the details. Are we worried they will talk to the press?”

    Every person who’s given sensitive information is automatically a threat to security under the right circumstances. For some (such as the DCIA), that threat is minimal. He’s had a mindblowingly thorough background check followed by years proving his trustworthiness (you don’t last long in the CIA if you’re proven untrustworthy). However, I’m not convinced that the screening for committee members would be sufficient to maintain the quality with which the CIA guards its information.

    “If the programs are wrong and illegal, isn’t it their responsibility to object? Where are the checks and balances?… How can we as a nation be assured that special access classifications or any other classification will not be used to hide wrong doing?”

    Yes. However, the CIA is not a governing body. The checks and balances apply to the executive, legislative, and judicial branches. The CIA may become corrupt, but it’s the job of internal whistleblowers to point that out, just as they out double agents when they’re caught. Adding a committee isn’t going to be that impressive in added integrity.

    In short, the men and women serving in the CIA have the highest level of integrity. If we can’t trust them to be self-monitoring, we may as well give up now. The exact same allegations of wrong-doing and cover-up could be applied to a CIA with a committee as a CIA without one. By putting in a committee, we short-circuit the chain of command to the executive branch.

    As the video at http://www.newsy.com/videos/congress_dems_take_on_cia suggested, there’s a “possibility that the Democrats are exaggerating the issue for political gain.” That’s not to say they definitely are, but I think it’d be an interesting video for you to see anyway. They also say “it’s an important battle about transparency that the Democrats SHOULD fight.”

    So I think it would be an interesting video for you to see and get some more perspectives on the issue, even if it leads you to the exact same conclusion you went in with.

  3. a.k.a. July 10, 2009 at 3:23 PM #

    Daniel,

    I think what you are saying is exceedingly helpful and astute, but in the end still has an element of wishful thinking.

    When a current intelligence official says that this was a “sensitive” program that “should have been briefed to Congress,” one has to question the logic of the incentives as you have laid them out.

    http://www.washingtonpost.com/wp-dyn/content/article/2009/07/09/AR2009070903017_2.html?hpid=topnews

    The IC is heavily compartmentalized, and that easily lends itself to groupthink.

    Think of the IC as AIG. Would you have wanted to know the extent of toxic CDS exposure that AIG had taken on before the government was required to step in and bail it out, to the tune of $180 bn, and soon $190 bn more (going by their latest SEC filing)? Yes. Did AIG have any internal controls in place that made it likely the institution would call a spade a spade? No.

    Ask any analyst of white collar crime or institutional corruption (not implying, just analogizing) will say that the primary enemy of institutional integrity is unexamined discretion. The more opaque an operation is, the more discretion it has built in.

    Also, it strikes me as odd that one would favor members of the IC breaking their own code of silence — and breaking the law — over a legal process of informing the lawmakers of the country about sensitive activities — particularly if lawmakers are briefed only on the outlines of a program, not the operationally insecure details.

    If this is such a sensitive matter, the appropriate remedy is to notify the Gang of Eight in a “timely” way, and delay on notification of the remainder of the committee until operational security has lessened. A blanket policy of nondisclosure is what gets the IC into trouble to begin with.

  4. a.k.a. July 10, 2009 at 3:29 PM #

    Just to correct myself:

    “A blanket policy of nondisclosure” is not what exists. I misspoke. Rather, I mean to say the widespread conviction that disclosing to lawmakers is bad for operations.

    The compromise would be for the Obama Administration to drop its veto in exchange for a requirement that Congress subject its members and staff to stricter criminal enforcement if they leak.

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  1. With the C.I.A., Is Congress in the Loop? - The Opinionator Blog - NYTimes.com - July 9, 2009

    [...] for the “decades of comity,” Secrecy News points to “a new report from the Congressional Research Service,” which says that the arrangement is not that old, [...]

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