Tuesday, December 22, 2009

Possible Gang of Eight Options for Sensitive Covert Action Notifications

The 111th Congress, in its assessment, could deem that the Gang of Eight notification procedure,
as currently provided for in statute and by practice, continues to strike a reasonable balance
between the twin objectives of operational security and congressional oversight. If, however,
changes are sought, Congress could consider the following options.

Alternative One
Congress could adopt the approach approved by the House Intelligence Committee during its
markup of the FY2010 Intelligence Authorization Act. This approach would eliminate the Gang
of Eight statutory provision, according to its sponsors, substituting instead a provision that its
sponsors said would require that the President brief all members of the congressional intelligence
committees, while implicitly providing for the possibility of more restricted briefings pursuant to
the written procedures that would be established by the congressional intelligence committees as
may be necessary to carry out the statute’s provisions.

Alternative Two
Congress could adopt the approach approved by the Senate Intelligence Committee during its
markup of the FY2010 Intelligence Authorization Act. Rather than eliminating the current Gang
of Eight statutory provision, the Senate language would make no exception to the requirement
that the intelligence committees be notified of all covert actions. The language also would require
that all members of the intelligence committees be notified when the executive branch did not
provide information “in full” to all members about a particular covert action. In such cases, the
Director of National Intelligence would be required to provide in writing to the committees in a
“timely manner” a statement explaining the reasons for withholding certain information from the
full membership and a description of the main features of the covert action in question. The
executive branch also would be required to include in reports to Congress on covert actions an
explanation of the significance of the covert action being considered and report any change to a
covert action, rather than any “significant” change, as is currently required under statute. Finally,
under the Senate Committee’s provisions, the executive branch would be required to provide any
information or material regarding the legal authority under which a covert action is or was
conducted, and funding for a particular covert action would be provided only if the intelligence
committees had been fully and currently informed of that activity, or had been notified if the
executive branch had not provided information in full to all members of the two intelligence
committees.

Alternative Three
Congress could adopt the provision supported by some members of the House Intelligence
Committee but ultimately rejected by a majority of the Committee membership that would have
authorized the Chairmen and Ranking Members of the intelligence committees to decide whether
to comply with a presidential request to limit access to certain intelligence information, including
covert actions. The 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.

Alternative Four
If Congress were to decide to preserve the Gang of Eight notification procedure, but were to
consider modifying the process, such modifications could include specifying explicitly in statute
that:
• Gang of Eight notifications are permitted only in situations involving covert
action, rather than in those situations involving non-covert action programs,
including sensitive intelligence collection programs;
• a Gang of Eight notification remain in place as long as sensitive operations are
underway. Once such operational sensitivities no longer prevail, however, the full
membership of the intelligence committees would be informed;
• Gang of Eight Members, rather than the executive branch, will decide when to
notify the full membership of the intelligence committees.
• the executive branch be required to provide a statement of the reasons, in writing,
for limiting notification to the Gang of Eight, and that the executive branch
provide a written statement to the congressional intelligence committees in a
timely fashion when it does not provide prior notice of a covert action to the
Gang of Eight.
• Pursuant to Sec. 501(c) of the National Security Act, which requires the
establishment of procedures as may be necessary to carry out the provisions of
the statute, Congress could require that the congressional intelligence committees
establish certain procedures that would govern Gang of Eight notifications, as the
sponsors of the Gang of Eight provision apparently originally intended. Such
procedures could include permitting Gang of Eight Members to take notes as
such briefings and establishing a process of more formal consultation between
Gang of Eight Members.64

Alternative Five
Congress statutorily could eliminate the Gang of Eight procedure and bring sensitive covert
actions notifications back within the intelligence committee structure by permitting the President
to limit initial briefings of such operations to the Chairmen and Ranking members of the two
intelligence committees, the so-called “Gang of Four” formulation. Under this change, committee
leadership could be permitted to consult with House and Senate leaders, and staff, and inform the
full intelligence committees when they determine it to be appropriate.

Alternative Six
Congress statutorily could require that the executive branch inform the full membership of the
intelligence committees of all covert actions, irrespective of their perceived sensitivity.

Conclusion: Striking a Balance
Striking the proper balance between effective oversight and security remains a challenge to
Congress and the executive. Doing so in cases involving particularly sensitive covert actions
presents a special challenge. Success turns on a number of factors, not the least of which is the
degree of comity and trust that defines the relationship between the legislative and executive
branches. More trust can lead to greater flexibility in notification procedures. When trust in the
relationship is lacking, however, the legislative branch may see a need to tighten and make more
precise the notification architecture, so as to assure what it views as being an appropriate flow of
information, thus enabling effective oversight.

Endnotes

64 Given the demands of timing and scheduling, according to former executive branch officials, in the interest of time,
Gang of Eight Members are sometimes notified by secure phone. If scheduling permits, briefings are provided to Gang
of Eight Members, often on an individual basis. It is unclear whether Gang of Eight Members ever have requested to be
briefed as a group, or whether certain time and scheduling constraints would make such a request practical.

No comments: