Tuesday, December 15, 2009

The Impact of Sensitive Covert Action Notifications on Congressional Intelligence Oversight

The impact of Gang of Eight notifications on the effectiveness of congressional intelligence
oversight continues to be debated.

Supporters of the Gang of Eight process contend that such notifications continue to serve their
original purpose, which, they assert, is to protect operational security of particularly sensitive
covert actions that involve vital U.S. interests while still involving Congress in oversight. Further,
they point out that although Members receiving these notifications may be constrained in sharing
detailed information about the notifications with other intelligence committee members and staff,
these same Members can raise concerns directly with the President and the congressional
leadership and thereby seek to have any concerns addressed.30 Supporters also argue that
Members receiving these restricted briefings have at their disposal a number of legislative
remedies if they decide to oppose a particular covert action program, including the capability to
use the appropriations process to withhold funding until the executive branch behaves according
to Congress’s will.31

Critics counter with the following points. First, they say, Gang of Eight notifications do not
provide for effective congressional oversight because participating Members “cannot take notes,
seek the advice of their counsel, or even discuss the issues raise with their committee
colleagues.32 Second, they contend that Gang of Eight notifications have been “overused.”33
Third, they assert that, in certain instances, the executive branch did not provide an opportunity to
Gang of Eight Members to approve or disapprove of the program being briefed to them.34 And
fourth, they contend that the “limited information provided Congress was so overly restricted that
it prevented members of Congress from conducting meaningful oversight.”35

Endnotes

30 See Congressional Quarterly transcript of press conference given by Representative Peter Hoekstra, December 21,
2005.

31 See Tim Starks, “Pelosi Controversy Suggests Changes to Congressional Briefings Are Due,” Congressional
Quarterly, May 14, 2009.

32 See letter from Representative Jane Harman to President George W. Bush, January 4, 2006, regarding the National
Security Agency (NSA) electronic communications surveillance program, often referred to as the Terrorist Surveillance
Program, or TSP.

33 See Tim Starks, “Pelosi Controversy Suggests Changes to Congressional Briefings Are Due,” Congressional
Quarterly, May 14, 2009.

34 Press release from Senator John D. (Jay) Rockefeller, December 19, 2005, commenting on the Terrorist Surveillance
Program initiated by the George W. Bush Administration. As discussed earlier in this memorandum, under Sec.
501(a)(2), nothing in Title V “shall be construed as requiring the approval of the congressional intelligence committees
as a condition precedent to the initiation of any significant anticipated intelligence activity.

35 Ibid.

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