House votes to revise intelligence disclosure rules for president

Tuesday, March 2, 2010

The House last week voted to revise the "Gang of Eight" system, under which the president discloses the most sensitive intelligence operations and covert activities to only a handful of Senate and House leaders and not the full membership of the both chambers' intelligence committees.

The law already requires the president to keep Congress fully informed of intelligence activities, particularly when U.S. participation is hidden. He also must inform the intelligence committees in a timely fashion when he signs a finding for a covert action before it gets underway, except in special situations.

Burned by the way, in their opinion, the Bush administration originally limited revelation of its post-Sept. 11, 2001, electronic interception program and later its harsh terrorist interrogation methods, members of the Democratic-led House Permanent Committee on Intelligence approved language last summer that would have done away with the Gang of Eight system. Under that system, disclosure is made only to the speaker and minority leader of the House, the majority and minority leaders of the Senate, and the chairmen and ranking minority members of the Senate and House intelligence committees.

In the past, the normal procedure for the eight has been that they do not take notes from the briefing and cannot discuss any details with others -- including other lawmakers and their staffs.

Last June, in reaction, the House intelligence panel approved an amendment to the law that would have allowed each intelligence committee to establish its own rules on how it would handle such sensitive notifications. The approach drew an immediate White House veto threat.

On Thursday, the House, as part of the fiscal 2010 intelligence authorization bill, approved a new plan that had been negotiated with the administration. Under it, the president would have to notify both committees that there has been a Gang of Eight disclosure and provide the other members with "general information on the content of the finding or notice." He would continue to be required to find it "essential to limit access . . . to meet extraordinary circumstances affecting vital interests of the United States."

Another added element would permit any one of the Gang of Eight to break his or her silence and register opposition to the proposed intelligence operation with the director of national intelligence. That action would have to take place within 48 hours. The DNI would then report in writing to the president his response to the objection. A copy would also go to the lawmaker.

A further modification is directly related to last year's controversy over what was disclosed in September 2002 about the waterboarding of the al-Qaeda terrorist known as Abu Zubaida to Nancy Pelosi (D-Calif.), then the ranking minority member of the House intelligence panel. Pelosi, now the speaker of the House, denied she was told of the torture-like process. Under the proposed law, the president would be required to record the date of a Gang of Eight briefing. After 30 days, the president would also be required to provide that information in writing to the committee of the lawmaker who was briefed.

House passage may not end the controversy over how a president should inform Congress of particularly sensitive intelligence activities. The Senate Select Committee on Intelligence has proposed its own changes, while essentially keeping the Gang of Eight idea. Its version of the 2010 authorization bill, passed by the Senate last September, also requires that both intelligence committees be notified of all intelligence activities and when a covert action is undertaken. When the details of such an action are limited to the Gang of Eight, it requires the director of national intelligence to explain in writing "in a timely manner" the main features of the action and the reasons it is being withheld from the other members.

Another new provision in the Senate bill would withhold funding of any intelligence activity that has not been fully disclosed to the two committees or to the Gang of Eight. The administration has not taken a public position on the Senate approach or the new House language, but the two bills appear close enough to make settlement easy to achieve.

One thing to remember, however: Congress has not passed an intelligence authorization bill for four years. In that period, the bills carried language opposed by the Bush White House. President Obama's promise of change could come to pass if Congress approves the fiscal 2010 intelligence authorization bill and he signs it.

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