Friday, December 11, 2009

Sensitive Covert Actions: When Prior Notice to the Gang of Eight is Withheld

Although the statute requires that the President provide the Gang of Eight advance notice of
certain covert actions, it also recognizes the President’s constitutional authority to withhold such
prior notice altogether by imposing certain additional conditions on the President should the
decision be made to withhold. If prior notice is withheld, the President must “fully inform” the
congressional intelligence committees15 in a “timely fashion”16 after the commencement of the
covert action. The President also is required to provide a statement of the reasons for withholding
prior notice to the Gang of Eight.17 In other words, a decision by the executive branch to withhold
prior notice from the Gang of Eight would appear to effectively prevent the executive branch
from limiting an-after-the-fact notification to the Gang of Eight, even if the President had
determined initially that the covert action in question warranted Gang of Eight treatment. Rather,
barring prior notice to the Gang of Eight, the executive branch would then be required to inform
the full intelligence committees of the covert action in “timely fashion.” In doing so, Congress
appeared to envision a covert action, the initiation of which would require short-term period of
heightened operational security.

Endnotes

15 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (3).

16 Ibid. What constitutes “timely fashion” was the subject of intense debate between the congressional intelligence
committees and the executive branch during the consideration of the fiscal year 1991 Intelligence Authorization Act. At
that time, House and Senate intelligence committee conferees noted that the executive branch had asserted that the
President’s constitutional authorities “permit the President to withhold notice of covert actions from the committees for
as long as he deems necessary.” The conferees disputed the President’s assertion, claiming that the appropriate meaning
of “timely fashion” is “within a few days.” Specifically, conferees stated, “While the conferees recognize that they
cannot foreclose by statute the possibility that the President may assert a constitutional basis for withholding notice of
covert actions for periods longer than ‘a few days,’ they believe that the President’s stated intention to act under the
‘timely notice’ requirement of existing law to make a notification ‘within a few days’ is the appropriate manner to
proceed under this provision, and is consistent with what the conferees believe is its meaning and intent.” The
conference report included the text of a letter sent to the chairman of the House Intelligence Committee, in which
President George H.W. Bush stated: “In those rare instances where prior notice is not provided, I anticipate that notice
will be provided within a few days. Any withholding beyond this period will be based upon my assertion of authorities
granted this office by the Constitution...” See H.Conf.Rept. 102-166, 102nd Cong., 1st sess., pp. 27-28 (1991). Despite
President George H.W. Bush’s refusal to commit to either “timely” notification as defined by Congress, or any
notification at all, Robert M. Gates, President George H.W. Bush’s nominee as Director of Central Intelligence, said he
believed that non-notification should be withheld for no more than a few days at the most, and that he would
contemplate resignation if it extended beyond that time period. See Congressional Quarterly Almanac, 102nd Cong., 1st
sess., 1991, Vol. XLVII, p. 482.

17 Ibid.

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