NEW LIGHT ON INTELLIGENCE NOTIFICATIONS TO CONGRESS

NEW LIGHT ON INTELLIGENCE NOTIFICATIONS TO CONGRESS

The White House has threatened to veto the FY2010 intelligence bill if it amends the National Security Act to permit expanded notification of sensitive intelligence activities to more members of the intelligence committees, as the House Intelligence Committee proposed.  (“Covert Action Notification Policy in Dispute,” Secrecy News, July 9, 2009).  However, based on the findings of a new report from the Congressional Research Service, the controversial amendment may not be necessary in order to achieve the intended result.

The new CRS report (pdf) explains the role of the “Gang of Four,” meaning the chairmen and ranking members of the House and Senate Intelligence Committees, who are to be informed of particularly sensitive intelligence activities.  (When the Bush Administration first notified Congress of its warrantless surveillance program, it limited the disclosure to the “Gang of Four.”)

The “Gang of Four,” the CRS explains, is distinct from the “Gang of Eight,” which includes the leaders of the intelligence committees as well as the majority and minority leaders of the House and Senate.  The Gang of Eight is notified regarding sensitive covert action programs.  The Gang of Four is notified in cases of certain non-covert action intelligence programs, mainly sensitive intelligence collection programs.  The Gang of Eight has a basis in statute.  The Gang of Four does not.

Both notification arrangements have been criticized for unduly restricting the ability of congressional leaders to consult colleagues and staff.  Rep. Jane Harman, for example, complained in 2006 that members of the Gang of Eight who are granted official notifications of covert actions “cannot take notes, seek the advice of their counsel, or even discuss the issues raised with their committee colleagues.”  It is these sort of restrictions that the proposed House amendment aimed to revise.

But remarkably, the idea that such internal disclosures are barred seems to be more a matter of convention than a binding requirement, the CRS report concluded.

“There arguably is no provision in statute that restricts whether and how the Chairman and Ranking Members of the intelligence committees share with committee members information pertaining to intelligence activities that the executive branch has provided only to the committee leadership, either through Gang of Four or Gang of Eight notifications.  Nor apparently is there any statutory provision which sets forth any procedures that would govern the access of appropriately cleared committee staff to such classified information.”

And as a matter of fact, “there have been instances when intelligence committee leadership has decided to inform the full membership of the intelligence committees of certain Gang of Four notifications,” the CRS found.

A copy of the CRS report was obtained by Secrecy News.  See “‘Gang of Four’ Congressional Intelligence Notifications,” July 14, 2009.

SOME MORE FROM CRS

Other noteworthy new Congressional Research Service reports that have not previously been made available online include (both pdf):

“Afghanistan: U.S. Foreign Assistance,” July 8, 2009.

“Chemical Facility Security: Reauthorization, Policy Issues, and Options for Congress,” July 13, 2009.

CLASSIFIED INTELLIGENCE LEAKS, 2001-2008

Between September 2001 and February 2008, the Federal Bureau of Investigation initiated and closed the investigation of 85 reported leaks of classified intelligence information, “all of which concerned unauthorized disclosures of classified information to the media,” FBI Director Robert S. Mueller III told the Senate Intelligence Committee in a written response to questions (pdf) dated February 4, 2008.

“None of these cases reached prosecution,” he said.  As of February 2008, “21 such cases are [still] under investigation.”

This information appeared in questions for the record that were appended to “Current and Projected National Security Threats to the United States” (pdf), a hearing before the Senate Intelligence Committee that was held January 11, 2007.  The complete hearing volume was finally published last month, and the newly published questions for the record are excerpted here.

The Senate Intelligence Committee has renewed its practice of including questions for the record (QFRs) in published hearing volumes, for which one may be thankful, even when the answers are classified or are not provided by the agenices at all. Some additional QFRs, also newly published last month, appear in “Statutory Authorities of the Director of National Intelligence” (pdf), Senate Intelligence Committee, February 14, 2008.

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