HomeLeading The News NSA surveillance program may have skirted 1991 law on congressional notification, say Democrats
Leading The News
NSA surveillance program may have skirted 1991 law on congressional notification, say Democrats
By Helen Fessenden
Posted: 06/05/07 07:26 PM [ET]
The Bush administration may have sidestepped a key 1991 law regarding congressional notification of intelligence activities when it chose to alert just a handful of lawmakers of its warrantless surveillance program following the Sept. 11, 2001, attacks, according to Democratic sources.
From 2002 until 2006, only a tiny club was aware of the top-secret program: the chairmen and ranking members of the intelligence committees, as well as the Republican and Democratic leaders of the House and Senate, known informally as the “gang of eight.”
Under the 1991 law, however, the administration may limit notification to that group only in highly sensitive cases involving covert activities, not domestic or foreign intelligence gathering — which the warrantless surveillance program entailed. Otherwise, the administration must provide classified briefings to the full intelligence panels.
Congress passed the 1991 legislation to amend the National Security Act as part of an effort to tighten notification procedures in the wake of the Iran-Contra scandal. The law remains in effect today.
By definition, covert activities are conducted abroad to advance U.S. foreign-policy objectives without disclosing the role of the U.S. government. By contrast, the warrantless surveillance program was conducted the National Security Agency (NSA) to collect foreign intelligence that sometimes involved domestic communications. In those cases, the administration did not seek authorization from the Foreign Intelligence Surveillance Court, which had served since its inception in 1978 as the exclusive body that reviews requests for foreign-intelligence gathering on U.S. soil.
The administration argues that President Bush has the authority to order warrantless surveillance under the 2001 use-of-force resolution on Afghanistan as well as through his inherent constitutional powers as commander in chief. The White House placed the program back under review of the Foreign Intelligence Surveillance Court in January, but it since has proposed legislation that effectively would revive elements of the program while providing legal immunity to telecommunications firms involved.
Some in the original gang of eight, such as former House Intelligence Committee ranking member Jane Harman (D-Calif.) and Senate Intelligence Committee Chairman Jay Rockefeller (D-W.Va.), have said the information they received at the time was vague and included very little on the legal justification of the program, which remains at the heart of a fierce debate.
“The group-of-eight briefings were about operational details, not the legality of the program,” Harman said. “I wish I had asked more questions, but we weren’t allowed by committee rules to disclose the existence of the program. I still think there aren’t even five people who really understand what it’s about.”
After media reports disclosed the program’s existence in late 2005, notification was expanded to the full intelligence committees in early 2006.
In both chambers, Democrats and some Republicans on the intelligence and judiciary panels are stepping up pressure on the administration for more information on the origins and legal justification of the program. Both judiciary committees have asked for documents that outlined the administration’s legal justification for the program, but have not received any yet, according to committee aides.
Meanwhile, the House Intelligence Committee has scheduled a closed hearing on the program’s classified aspects for June 14, tentatively followed by an open hearing on legislative proposals on June 21. In both cases, the panel has asked key administration witnesses from the Department of Justice, the FBI, the NSA and the office of the director of national intelligence to testify. There is no final word yet on the witness list, according to a spokeswoman for House Intelligence Chairman Silvestre Reyes (D-Texas).
The Senate Intelligence Committee also has demanded more information. In its declassified report for the fiscal 2008 intelligence authorization bill, released Thursday, the panel called on the Justice Department to provide the intelligence and judiciary panels the “decisions, orders or opinions” of the court that cover “significant construction or interpretation of the Foreign Intelligence Surveillance Act,” as well as orders and “associated pleadings” that previously have not been included in the semi-annual FISA reports sent to the panel.
The committee has said it will not consider any new surveillance law proposals by the administration until these conditions are met.
Under an “additional views” section in the report, four committee Republicans — ranking member Kit Bond (Mo.), Saxby Chambliss (Ga.), Orrin Hatch (Utah) and Richard Burr (N.C.) — opposed that provision, arguing that expanding the FISA reporting requirement is “simply unnecessary.”
But Democrat Russ Feingold (Wis.) called the break in notification precedent an “abuse.” He argued in the report that the administration “violated the National Security Act, which allows restricted notification to the ‘gang of eight’ only in limited cases involving covert action.”
A Democratic staff aide explained: “If there are incredibly time-sensitive operational issues associated with covert actions, the gang of eight is adequate. But that exemption doesn’t apply to anything other than covert actions. And it certainly doesn’t intend for long-term intelligence-gathering programs to be limited to just two committee members.”
The panel’s Democrats, joined by Republicans Olympia Snowe (Maine) and Chuck Hagel (Neb.), also voted for a provision mandating that if the administration did decide to restrict covert action notification to the gang of eight, it would still have to provide other members with a summary of the covert action.
That provision was also criticized in the minority’s additional views. But Bond told The Hill yesterday in a statement that he would want fuller disclosure — if possible.
“The decision to limit this program to the ‘gang of eight’ is not without historical precedent,” Bond said. “There have been other examples where certain programs, investigations or operations have been briefed to less than the full membership of the committee at the request of this and prior administrations. While the Constitution gives the president the right to limit disclosure, I prefer the full committee to be briefed if at all possible.”
The Office of the Director of National Intelligence did not return a call from The Hill by press time.
