Thursday, December 17, 2009

House Intelligence Committee Replaces Gang of Eight Procedure in FY2010 Intelligence Authorization Act

In marking up its version of the FY2010 Intelligence Authorization Act, the House Intelligence
Committee replaced the Gang of Eight statutory provision, adopting in its place a statutory
requirement that each of the intelligence committees establish written procedures as may be
necessary to govern such notifications.

The current Gang of Eight statutory provision stipulates:
If the President determines that it is essential to limit access to the finding to meet
extraordinary circumstances affecting vital interest of the United States, the finding may be
reported to the chairmen and ranking minority members of the congressional intelligence
committees, the Speaker and the minority leader of the House of Representatives, the
majority and minority leaders of the Senate, and such other member or members of the
congressional leadership as may be included by the President40

The substitute language approved by the House Intelligence Committee stipulates:
If, pursuant to the procedures established by each of the congressional intelligence
committees under Section 501(c), one of the congressional intelligence committees
determines that not all members of that committee are required to have access to a finding
under this subsection, the President may limit access to such findings or such notice as
provided in such procedures.41

According to Committee report language, the provision:
requires the President to brief all members of the congressional intelligence committees, but
implicitly provides for the possibility of more restricted briefings pursuant to the written
procedures established by the congressional intelligence committees, pursuant to the revised
Section 501 (c). This language vests the authority to limit the briefings with the committees,
rather than the President.42

The Report’s reference to a revision of Sec. 501 of the National Security Act pertained to the
Committee’s approval of statutory language requiring that the President and the congressional
intelligence committees each establish such “written” procedures as may be necessary to carry
out the statutes provisions.43 Current statute does require that any such procedures be in writing.

In approving the new provision, the committee rejected an amendment that would have
authorized the Committee’s Chairman and Ranking Member to decide whether to comply with a
presidential request to limit access to certain intelligence information, including covert actions.

The rejected amendment stipulated that if the Chairman and Ranking Member were unable to
agree on whether or how to limit such access, access to the information would be limited if so
requested by the President.44

According to the views of the Minority contained in the report, the provision adopted by the
Committee:

nowhere creates a statutory presumption that all Members of the Committee should be
briefed. Instead, it would require the Committee to unilaterally develop procedures for the
handling of reporting on sensitive matters, even though the President has significant
constitutional authorities in the area of national security that Courts have repeatedly said
must be considered with and balanced against the authorities of Congress. The provision
nowhere provides a mechanism for ensuring that decisions within the Committee are made
on a bipartisan basis or for reconciling any dispute between the branches with respect to such
reporting, which is a receipt for Constitutional gridlock that could be disastrous with respect
to such sensitive matters.45


Endnotes

40 Sec. 503 of the National Security Act [50 U.S.C. 413b] (c)(2).

41 See Intelligence Authorization Act for Fiscal Year 2010, H.R. 2701, Sec. 321 [111th Congress, 1st sess.].

42 See H.Rept. 111-186, accompanying the Intelligence Authorization Act for Fiscal Year 2010, pp. 21-22 [111th
Congress, 1st sess.].

43 See Intelligence Authorization Act for 2010, H.R. 2701, Sec. 321 (b).

44 See Intelligence Authorization Act For 2009, H.R. 5959, Sec. 502 (b). This language applied to reports of
intelligence activities other than covert action. The amendment offered to the FY2010 Intelligence Authorization Act
during the Committee’s markup was extended to include reporting of covert actions.

45 See H.Rept. 111-186, accompanying the Intelligence Authorization Act for Fiscal Year 2010, Minority Views, p. 3
[111th Congress, 1st sess.].

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