Covert Action Notification Policy in Dispute

By July 9, 2009

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.

Categories: Secrecy