Wednesday, December 9, 2009

Requirements for Notifications of Sensitive Covert Actions to Congress

Under current statute, the President generally is required keep the congressional intelligence
committees fully and currently informed of all covert actions1 and that any covert action2
“finding”3 shall be reported to the committees as soon as possible after such approval and before
the initiation of the covert action authorized by the finding.

If, however, the President determines that it is essential to limit access to a covert action finding
in order to “meet extraordinary circumstances affecting vital interests of the United States,”4 then
rather than providing advanced notification to the full congressional intelligence committees, as is
generally required, the President may limit such notification to the “Gang of Eight,” and any
other congressional leaders he may choose to inform. The statute defines the “Gang of Eight” as
being comprised of the chairmen and ranking members of the two congressional intelligence
committees and the House and Senate majority and minority leadership.5

In report language accompanying the 1980 enactment, Congress established its intent to preserve
the secrecy necessary for very sensitive covert actions, while providing the President with a
process for consulting in advance with congressional leaders, including the intelligence
committee chairmen and ranking minority members, “who have special expertise and
responsibility in intelligence matters.”6 Such consultation, according to Congress, would ensure
strong oversight, while at the same time, “share the President’s burden on difficult decisions
concerning significant activities.”7

In 1991, following the Iran-Contra Affair,8 Intelligence Conference Committee Conferees more
specifically stated that Gang of Eight notifications should be used only when “the President is
faced with a covert action of such extraordinary sensitivity or risk to life that knowledge of the
covert action should be restricted to as few individuals as possible.”9 Congressional Conferees
also indicated that they expected the executive branch to hold itself to the same standard by
similarly limiting knowledge of such sensitive covert actions within the executive.10

Endnotes

1 National Security Act as amended, Sec. 503 [50 U.S.C. 413b] (b) and (c).

2 A covert action is defined in statute as an activity or activities of the United States Government to influence political,
economic, or military conditions abroad, where it is intended that the role of the United States Government will not be
apparent or acknowledged publicly. See the National Security Act of 1947, Sec. 503(e), 50 U.S.C. 413b(e).

3 A Finding is a presidential determination that an activity is necessary to “support identifiable foreign policy
objectives” and “is important to he national security of the Untied States.” See Intelligence Authorization Act for
FY1991, P.L. 102-88, Title VI, Sec. 602 (a) (2), 50 U.S.C. 413b (a).

4 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (2). See Addendum A, Title V of the
National Security Act as amended. The authorization for Gang of Eight notification also permits the President to notify
“such other Member or Members of the congressional leadership as may be included by the President.”

5 Ibid.

6 Addendum A, S.Rept. 96-730, 96th Cong., 2nd sess. (1980), p. 10. This report accompanied S. 2284, from which Title
V of P.L. 96-450 is derived. Gang of Eight notification was included in a new Title V, Sec. 501, Sec. 501 (a) (1) added
to the National Security Act of 1947 as amended by Sec. 407 (a) (3) of P.L. 96-450.

7 Ibid.

8 The Iran-Contra affair was a secret initiative by the administration of President Ronald Reagan in the 1980s to
provide funds to the Nicaraguan Democratic Resistance from profits gained by selling arms to Iran. The purpose was at
least two-fold: to financially support the Nicaraguan Democratic Resistance and to secure the release of American
hostages held by pro-Iranian groups in Lebanon.

9 Joint Explanatory Statement of the Committee of Conference, accompanying Conf.Rept. 102-166, 102nd Congress, 1st
sess. (1991), p. 28. The Joint Explanatory Statement accompanied H.R. 1455, the FY1991 Intelligence Authorization
Act, which was subsequently signed into law (P.L. 102-88). The “risk to life” language is not repeated in statute.

10 Ibid.

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