Sam Stein at the Huffington Post took a look at this recently:
As documented by the Congressional Research Service, the President is required to ensure "that the congressional intelligence committees are kept 'fully and currently informed' of U.S. intelligence activities, including any 'significant anticipated intelligence activity.'" The basis of this is the 1991 Intelligence Authorization Act, which places a statutory obligation on the President to not just keep relevant committees "fully and currently informed" but to disclose "any significant anticipated intelligence activity."
"The requirement to report significant anticipated activities means, in practice, that the committees should be advised of important new program initiatives and specific activities that have major foreign policy implications," reads language accompanying the FY 1991 Intelligence Authorization Act.
The congressional research memo he mentions breaks the briefings the President is responsible for into two categories; intelligence and "covert action" defined so:
The term covert action is defined in statute to mean "... an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly..." See the National Security Act of 1947, Sec. 503 [50 U.S.C. 413b] (e). (p3 footnote 8)
The footnote goes on to discuss how this definition was first included in statute in the 1991 Intelligence authorization act, and indirectly gets across the point that this was a Congressional response to Iran/Contra. Important to note, because Bush's activities here are certainly more than an echo of Iran/Contra, and by failing to properly brief the full committees, Bush was certainly flouting the intent of this legislation, though I will leave it to lawyers to figure out if he actually violated this law. Nonetheless, the definition above clearly does not include either the TSP or the Enhanced Interrogation Program, as neither even remotely qualifies as efforts to influence conditions abroad and were instead, obviously efforts to gather intelligence.
The distinction is important, as on page 5 the CRS piece quotes the parts of the statutes that allow a lesser briefing to the G8 for covert actions under certain circumstances. So for other "intelligence" matters, the law requires that the full committees be briefed, and even provided additional information they may require:
[...]the Director of Central Intelligence and the heads of all departments, agencies, and other entities of the United States Government involved in intelligence activities shall - (1) keep the congressional intelligence committees fully and currently informed of all intelligence activities, other than a covert action (as defined in section 413b(e) of this title), which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government, including any significant anticipated intelligence activity and any significant intelligence failure;[...]
This has been an issue before, during the fallout of the revelation of the illegal TSP mass wiretapping program, AG Gonzales tried to defend the program by claiming that the Gang-Of-Eight Congresspeople who were briefed on the program had assented to it. Numerous "G8" Democrats contested this, (including Pelosi) claiming they had objected. Jane Harman would go on to say in a speech:
[...]When the program was established, the administration provided what I would call "drive-by Power Point presentations" for the so-called "Gang of Eight" in Congress. I became a member of that Gang of Eight in early 2003 as ranking member on intelligence and so, I participated in those presentations after the first year of the program. Those of us in the room, usually the Situation Room in the White House, had no opportunity to consult with our staff, outside lawyers or even keep our own notes. After the president was forced to acknowledge the program's existence, I fought to get the full intelligence committees briefed.[...]
Republican Heather Wilson also objected to this practice back in February 2006:
Senior administration officials also say they were within the law when Bush and Vice President Cheney chose to brief only Congress' so-called "Gang of Eight" - the leaders of the House and Senate and its intelligence committees.
While the Gang of Eight can be notified, Wilson believes "that is not oversight," Hannahs said.
She's absolutely right, and to the point that I don't actually see what the point of Gang-of-Eight briefings is supposed to be. Legally, no one who receives such a briefing can realistically do anything with the information they receive there. Arguably, they could try and pass laws or defund programs they object to, but with only a handful of other members who know that they know, what are the odds they would be successful, lacking any ability to explain why they might be trying to stop some practice legislatively?
The key here is to remember that individually, members of Congress have no actual power or authority. Other than the protections of the Speech and Debate clause, they are ordinary citizens from a legal perspective. Their power only comes as a whole, and to a lesser but significant extent, in Committees. Congressional Committees can issue subpoenas, hold hearings, compel testimony under oath, issue authoritative reports and report suitable legislation to the full chambers. Members, even the Speaker or Senate Majority Leader cannot do any of these things. The full committees have staff, lawyers with security clearances, and can keep records, notes and demand documents. As Harman noted, she couldn't even take her own hand written notes out of those briefings.
An example of this difference between individual members and "congress" can be found in the part of US law which makes it a crime to lie to Congress, U.S. Code : Title 18 : Section 1001, in particular section (c), which says:
(c) With respect to any matter within the jurisdiction of the
legislative branch, subsection (a) [the bit criminalizing lying] shall apply only to -
(1) administrative matters, (...blah blah...)
(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.
The limitation is such that you can lie to any individual member of Congress, but if you are speaking to a committee or other formal part of Congress, then you are required to be truthful. The idea here is to not make people afraid to send angry letters to their member for fear of prosecution.
I highly suspect that the "Gang of Eight" doesn't meet the definition under article (2) and thus the Administration was actually free to lie in these briefings if they wanted. I don't know if they actually did lie in the G8 briefings (and the lack of transcripts makes it impossible to ever know), but I can believe having this extra bit of leeway probably appealed to the administration.
The effect magnifies when you consider that the full Committees would then have a lot more ability to halt anything they didn't approve of. Since the Intel Committees control the secret Intelligence budgets, they would be free to defund programs they didn't approve of without divulging classified info. They would also have a better chance of having the entire Congress approve changes in law that they might not be able to explain.
As a bonus, telling the G8 has the nice side effect of implicating your political adversaries in your criminal conduct in a manner which leaves them no legal way to stop you. Hence the secret and useless sternly worded letters objecting to what they heard from Rockefeller and Harman. I have a low enough opinion of Cheney to imagine he was quite amused by those toothless and obsequious letters.
So now Pelosi may end up in some trouble. So be it. But when it comes time to fix all this, Congress would be wise to consider abolishing these Gang Of Eight briefings, or giving the Gang members some formal committee-like ability to react to the information they receive. "Oversight" has two key ingredients: 1) information and 2) the ability to act on that information. The Gang briefings are sorely lacking in that second criteria, and this needs fixing. |
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