Saturday, December 19, 2009

Senate Intelligence Committee Tightened Certain Covert Action Reporting Requirements

In its version of the FY2010 Intelligence Authorization Act, the Senate Intelligence Committee
left unchanged the Gang of Eight statutory structure, but approved several changes that would
tighten certain aspects of current covert action reporting requirements.

The Committee adopted language stating that there shall be no exception to the requirements of
Title V off the National Security Act to inform the intelligence committees of all covert actions.52
The Committee voted to require that all members of the intelligence committees be notified when
the executive branch does not provide information “in full” to all members.53 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 and report any change to a covert action,54
rather than any “significant” change, 55 as is currently required under statute.

Finally, the committee approved language that would require that the executive branch provide to
the intelligence committees any information or material regarding the legal authority under which
a covert action is or was conducted,56 and that funding for an intelligence activity would be
provided only if the intelligence committees had been fully and currently informed of that
activity, or had been notified when the executive branch did not provide information in full to all
members.57

In additional views accompanying the Committee’s report58 on the legislation, Senators John
Rockefeller and Olympia Snowe said they supported the Committee-adopted language because,
they wrote, it would improve the notification processes, while not eliminating the Gang of Eight
procedure, “which many of us believe can serve an important purpose for quick and timely
notifications on extraordinarily sensitive covert actions.”59

A small number of the committee members opposed the notification provision contained in the
bill that would require the executive branch to notify the full membership of the intelligence
committees when a covert action notification does not disclose all information regarding such an
activity to all members of the committees. In additional views, they stated that the adopted
provision would modify the current balance in the National Security Act with respect to the
congressional notification procedures and that such a provision “will unnecessarily increase the
tension between the Legislative and Executive branches over information access.”60

Endnotes

52 S. 1494, Intelligence Authorization Act For Fiscal Year 2010, Sec. 331.

53 Ibid, Sec. 332.

54 Ibid.

55 National Security Act of 1947 as amended, Sec. 503 (d).

56 Ibid, Sec. 333.

57 Ibid, Sec. 334.

58 S.Rept. 111-55, accompanying S. 1494, the Intelligence Authorization Act For Fiscal Year 2010 (111th Congress, 1st
Sess.), pp. 76-77.

59 Ibid, p. 76.

60 Ibid, p. 75.

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