Scott Shane of the Times returns to an issue raised by Congressfolk Jane Harman, as reported on January 5 - did President Bush comply with the requirements of the National Security Act of 1947 when he restricted the briefings on the NSA warrantless eavesdropping to the House and Senate leadership and Intelligence committees leaders, shutting out the full committees?
From the Times:
WASHINGTON, Jan. 18 - A legal analysis by the nonpartisan Congressional Research Service concludes that the Bush administration's limited briefings for Congress on the National Security Agency's domestic eavesdropping without warrants are "inconsistent with the law."
The analysis was requested by Representative Jane Harman, the ranking Democrat on the House Intelligence Committee, who said in a Jan. 4 letter to President Bush that she believed the briefings should be open to all the members of the House and Senate Intelligence Committees.
Instead, the briefings have been limited to the Republican and Democratic leaders of the House and Senate and of the Intelligence Committees, the so-called Gang of Eight.
The Congressional Research Service memorandum, sent to the Intelligence Committee on Wednesday, explores the requirement in the National Security Act of 1947 that the committees be kept "fully and currently informed" of intelligence activities. It notes that the law specifically allows notification of "covert actions" to the Gang of Eight, but says the security agency's program does not appear to be a covert action program.
As a result, the memorandum says, limiting the briefings to just eight members of Congress "would appear to be inconsistent with the law."
The memorandum, written by Alfred Cumming, a national security specialist at the research service, does lay out several possible defenses for the administration's position. "The executive branch may assert that the mere discussion of the N.S.A. program generally could expose certain intelligence sources and methods to disclosure," it says.
I had previously excerpted the following caveat in the Act, so there certainly appears to be latitude for interpretation. It is also worth noting that Congress is normally expected to rise in defense of its institutional prerogatives.
From the Act, 413b (c) (2):
(2) If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.
Since the President has been reauthorizing this program every 45 days, he may also have presented a rationale to limit Congressional participation in the same finding. Absent a Congressional objection, I would bet that the Administration's position is easily defensible.
Rep. Harman wins a smile with this:
Of the Congressional Research Service analysis, Ms. Harman said, "It's a solid piece of work, and it confirms a view I've held for a long time."
"A long time"? That is a bit vague - right now it seems like a long time since my last cup of coffee. However, if Ms. Harman has been harboring secret concerns about the limited briefing audience for months or years, well, speak up! If your job is Congressional oversight, feel free to hop to it. Remember, if Cheney and the NSA briefers were psychic, a lot of this intel effort would not be necessary, now would it?
UPDATE: Oh, this is pretty funny. From the Times:
The memorandum, written by Alfred Cumming, a national security specialist at the research service...
From the estimable Cecil Turner we learn that Mr. Cumming donated $1,250 to the Kerry campaign in 2004. Not that there is anything wrong with that! But how did the Times miss it?
STILL MORE: The Anon Lib makes the good point that the portion of the statute excerpted above comes from the section covering covert actions, and it does not appear that the NSA program would qualify as such:
e) “Covert action” definedAs used in this subchapter, the term “covert action” means 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, but does not include—
(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;
(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or
(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.