Saturday, December 12, 2009

Congress Signaled Its Intent That the Gang of Eight Would Decide When to Inform the Intelligence Committees

During the Senate’s 1980 debate of the Gang of Eight provision, congressional sponsors said their
intent was that the Gang of Eight would reserve the right to determine the appropriate time to
inform the full intelligence committees of the covert action of which they had been notified.18

The position of sponsors that the Gang of Eight would determine when to notify the full
intelligence committees underscores the point that while the statute provides the President this
limited notification option, it appears to be largely silent on what happens after the President
exercises this particular option. Sponsors thus made it clear that they expected the intelligence
committees to establish certain procedures to govern how the Gang of Eight was to notify the full
intelligence committees. Senator Walter Huddleston, Senate floor manager for the legislation,
said “... the intent is that the full oversight committees will be fully informed at such time the
eight leaders determine is appropriate. The committees will establish the procedures for the
discharge of this responsibility...”19

Senator Huddleston’s comments referred to Sec. 501(c) of Title V of the National Security Act
which stipulates that “The President and the congressional intelligence committees shall each
establish such procedures as may be necessary to carry out the provisions of this title.”

With regard to Sec. 501(c), Senate report language stated:
The authority for procedures established by the Select Committees is based on the current
practices of the committees in establishing their own rules. One or both committees may, for
example, adopt procedures under which designated members are assigned responsibility on
behalf of the committee to receive information in particular types of circumstances, such as
when all members cannot attend a meeting or when certain highly sensitive information is
involved.20

Congressional intent thus appeared to be that the collective membership of each intelligence
committee, rather than the Committee leadership, would develop such procedures.21 Moreover,
the rules that each committee have subsequently adopted, while they deal in detail as to how the
committees are to conduct their business, do not appear to address any procedures that might
guide Gang of Eight notifications generally. Rather, to the extent that any such procedures have
been adopted, those procedures appear to have been put into place at the executive branch’s
insistence, according to congressional participants.22

Endnotes

18 See Addendum B, copy of the Senate debate as recorded in the Congressional Record, 96th Congress, 2nd Session,
Volume 126—Part 20, September 17, 1980 to September 24, 1980. See p. 17693.

19 Ibid, p. 17693.

20 See addendum B, S.Rept. 96-730, 96th Cong, 2nd sess. See p. 13 of the report.

21 Ibid, p. 12.

22 Letter from Representative Jane Harman to President George W. Bush, January 4, 2006. Another example of the
informality which sometimes informs the intelligence notification process involves so-called Gang of Four
notifications. The Gang of Four consists of the chairmen of the congressional intelligence committees, the Vice
Chairman of the Senate Intelligence Committee and the Ranking Member of the House Intelligence Committee. The
executive branch frequently limits certain intelligence notifications to these four Members, sometimes including
committee staff directors, even though neither statute, or committee rules, appear to make provision for such
notifications.

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