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Congress About to Gain More Oversight of Covert Intelligence Actions

September 28, 2010 - by Donny Shaw

Chalk one up for enhanced congressional oversight of secret intelligence programs. In the Intelligence Authorization Act for fiscal year 2010 that was passed under unanimous consent in the Senate on Monday night and is expected to go through the House of Representatives on Wednesday, there’s a provision that would number of lawmakers who have to be informed about covert intelligence operations that the CIA is engaged in.

Whereas previously the law only required the President to inform a select “Gang of Eight” about covert CIA actions, they’ll now have to inform, to an extent, all 37 members of the House and Senate Intelligence Committees. I say “to an extent” because this is certainly not going to require full disclosure. It’s a compromise. The version Rep. Nancy Pelosi [D, CA-8] wanted would have required disclosure to the full committees at the same level as is required currently to the Gang of Eight. In the version that was passed by the Senate, the provision has been scaled back a bit, via a substitute amendment from Sen. Dianne Feinstein [D, CA] and Sen. Kit Bond [R, MO], to allow quite a bit of presidential discretion. Here’s how the Sen. Bond explained the changes on the Senate floor last night:

The most significant changes in the substitute reflect the compromise reached by Speaker Pelosi with the Senate and the administration on the issues of congressional notification and the relationship between the intelligence community and the Government Accountability Office.

This new version of the congressional notification provision revives language similar to the first fiscal year 2010 intelligence authorization bill that passed the Senate by unanimous consent last year. This language provides that the executive branch will be required to provide a “general description” to all of the members of the congressional intelligence committees regarding a covert action finding or congressional notification that has been limited to the “Gang of Eight.” This provision is limited to a description that is consistent with the reasons for not yet fully informing all the members of the intelligence committees, so the provision is somewhat weaker than our original language.
Another change to the congressional notification provision is the insertion of a requirement that the decision to limit access to “Gang of Eight” findings and notifications be reviewed within the executive branch every 180 days. If the President determines that such limitations are no longer necessary, then all the members of the congressional intelligence committees will be provided access to such findings and notifications.
These limitations are often revisited periodically by the executive branch, so this time period should not cause difficulty for the administration. We have seen in the past the benefits that come from bringing the full committees into the loop as soon as possible. Moreover, operational sensitivities can change over time. By requiring a periodic review, this provision ensures that highly sensitive matters will remain protected as long as necessary, while also promoting a full cooperative relationship between the two branches.

The White House, which opposed the Pelosi version, says it’s fine with this compromise and will not veto it.

Atlantic blogger Marc Ambinder, who’s sort of a national security and intelligence specialist, thinks the additional oversight gained by Congress in the compromise version is significant. “Congress gains a lever,” he says. “In the past, there was no way for the Gang of Eight to build momentum for or against any particular presidential decision. Now, partial discussions can be legally initiated, which, if the particular program is controversial, will put pressure on the executive branch to provide more information about it.”

Pictured above is CIA director Leon Panetta delivering testimony to the Senate Intelligence Committee in February.

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