In a striking new example of secret lawmaking, a classified provision in the consolidated appropriations bill passed by Congress last week prohibited the transfer of CIA drone operations to the Department of Defense.
“This is outrageous,” said Sen. John McCain of the secret legislative move, “and it should not have happened.”
The secret provision was first reported in the Washington Post. “The provision represents an unusually direct intervention by lawmakers into the way covert operations are run, impeding an administration plan aimed at returning the CIA’s focus to traditional intelligence gathering and possibly bringing more transparency to drone strikes,” wrote Greg Miller in the Post. (“Lawmakers seek to stymie plan to shift control of drone campaign from CIA to Pentagon,” January 15.)
The term “secret law” is most often used to refer to executive branch actions that mandate national policy without public notice, or that reinterpret existing statutes in dubious or counterintuitive ways that are not disclosed to the public. But in this case, an important national policy measure was literally written into law by Congress in secret.
In his January 16 floor statement, Sen. McCain had this to say:
“…Tucked away in the classified portion of this bill is a policy rider that has serious national security implications and is a prime example of the appropriators overstepping their bounds. This provision will halt the transfer of the U.S. drone counterterrorism operations from the CIA to the Department of Defense. In doing so, it summarily changes a very important policy that guides how we do certain counterterrorism operations abroad from a direction that the President has specifically prescribed. And how did most of us become aware of this major policy change? By reading this morning’s Washington Post; that is how.”
“This is outrageous, and it should not have happened. While there may be differing opinions on who should control drone counterterrorism operations, we should be able to debate these differences in the committees of jurisdiction and eventually on the Senate floor. The fact that a major national security policy decision is going to be authorized in this bill without debate or authorization is unacceptable and should not be the way we legislate on such important national security issues.”
But it is the way that this Congress legislates. And though Senator McCain voted against the measure, the full Senate approved it, 72-26, and the President signed it into law on January 17.