Leak of White Paper Boosts Intelligence Oversight

The unauthorized disclosure last week of a Justice Department White Paper on the legality of targeted killing of senior al Qaida operatives who are Americans had the collateral effect of strengthening congressional oversight of intelligence.

The leak not only fulfilled a stalemated congressional effort to provide information to the public, but it also catalyzed the long-sought disclosure of classified documents to the intelligence committees themselves.

Although the intelligence committees received the White Paper in June 2012, they proved powerless on their own to gain its broader public release, or to acquire their own copies of the underlying legal memoranda.

“I have been calling for the public release of the administration’s legal analysis on the use of lethal force–particularly against U.S. citizens–for more than a year,” said Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee in a February 5 statement. “That analysis is now public….”

In other words, what the chairman of the Senate Intelligence Committee was unable to accomplish for over a year was achieved by a resourceful reporter (Michael Isikoff of NBC) along with a cooperative source.  That is a peculiar fact that ought to prompt some soul-searching on the part of the Committee, which has been relentlessly critical of intelligence-related leaks.

But the disclosure did more than just make the White Paper available to the public and launch a substantial public debate on its contents.  It also enhanced the ability of the intelligence committees themselves to gain access to additional classified records on which oversight depends.

Specifically, it was the leak of the White Paper that enabled the belated disclosure of two classified Office of Legal Counsel memoranda to the intelligence committees last week.

The causal relationship between the leak and the release of the OLC memos was made explicit by White House press secretary Jay Carney at a February 7 press gaggle.

“I mean, there has always been some interest, obviously, but there has been heightened interest.  I think that what you’ve seen in the — because of the public disclosure of the white paper, is that that interest reached higher levels than in the past, and therefore this decision was made to make this extraordinary accommodation to provide classified Office of Legal Counsel advice,” Mr. Carney said.

This statement neatly illustrates the synergy that can exist among robust national security reporting, public awareness and effective intelligence oversight.

Yet the Senate Intelligence Committee in particular seems to have lost sight of the benefits for its own work of press attention and public engagement. The February 7 hearing on the nomination of John Brennan to be Director of CIA marked the end of a period of more than one year — dating from January 31, 2012 — without a public hearing. This may be an unprecedented hiatus in the history of the Senate Committee.  (The House Intelligence Committee has held public hearings more frequently.)  In light of last week’s events, the nearly exclusive emphasis on closed hearings should perhaps be reconsidered.