The NSA Eavesdropping Briefings - Too Exclusive To Be Legal?

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” defined

As 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;

(2) traditional diplomatic or military activities or routine support to such 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.

 

Comments

[Cecil Turner]

Okay, maybe I'm a cynic, but every time I see the term "nonpartisan," it makes me just a little suspicious. In this case, the logical place to check is with FEC spy. Imagine my surprise:

CUMMING, ALFRED
WASHINGTON, DC 20008
US GOVERNMENT/ANALYST

KERRY, JOHN F VIA JOHN KERRY FOR PRESIDENT INC
03/23/2004 500.00 25971237124
06/30/2004 250.00 24971355599
07/02/2004 250.00 25971305076
08/15/2004 250.00 24991236280
Total Contributions: 1250.00

[pollyusa]

Off Topic, but I thought you would be interested in this new account from Timothy M. Phelps of Newsday has a run down of his dealings with special prosecuter Fitzgerald.

I've always wondered what happened with these Newsday reporters.... they and Novak were the first reporters the DOJ were looking at and appartently so was Fitz.

In the Columbia Journal Review, Timothy M. Phelps of Newsday has a run down of his dealings with special prosecuter Fitzgerald.

According to Phelps, he and Royce were the first reporters contacted by Fitzgerald.

Roughly two months after he empaneled a grand jury in Washington in December 2003, Patrick Fitzgerald called Newsday saying he wanted to talk to us. So far as I know, we were the first reporters he contacted, with the possible exception of Novak, whose interactions with Fitzgerald are still unknown.
CJR January/Febuary 2006

You'll find a couple of other recent Plame articles here as well.

[Tom Bowler]

I this the first time a Democrat has actually brought up a point of law when arguing that the criminal terrorist Bush must be impeached?

[Tom Bowler]

Is this... I meant.

[clarice]

Very good analysis Tom, and as usual Cecil, good searching.

Should there be a test before someone can be called a journalist? And should that test include demonstrated proficiency in using Google?

[Harry Arthur]

TB, Is this the first time a Democrat has actually brought up a point of law when arguing that the criminal terrorist Bush must be impeached?

I'm not trying to be obtuse but your point?

Is this a criticism of the democrats or of Bush?

[Lew Clark]

I think, just to be safe and all legal and stuff, the administration should start posting detailed reports on all classified national security matters in the NYT, so that all interested parties would be sure to stay informed and current. Only problem is that, based on it's history, the NYT would get it wrong.

[Harry Arthur]

clarice, do you mean some government analysts might actually have agendas of their own?

Say it ain't so.

[Appalled Moderate]

Off topic, I have to say I really hate that FEC spy. I don't believe my political contributions are the public's business. Frankly, it just encourages me to give to lobbying organizations that reflect my views, so that my politics are not the currency of my boss, my work associates, my clients or my neighbors.

%^%$*& McCain-Feingold.

[epphan]

On Phelps, the more interesting point is near the end where he chastises his fellow “journalists” for selling out First Amendment principles in the name of partisan political positions. This, of course, will be lost on the “journalists” who don’t have enough sense to understand what they’ve done.

[cathyf]

%^%$*& McCain-Feingold.

I'll add my $!^&@# to yours, AM...

cathy :-)

[idontknow]

Since this method of finding information was new, why not establish new protocols for its implementation? Wouldn't that put the admin in the clear? Why keep reauthorizing every 45 days?

[Wonderland]

Cecil:

Shane described CRS, the entity, as nonpartisan, which it inarguably is.

Further, simply pointing out that the author of the memo liked Kerry over Bush doesn't get you anywhere. Legal briefs are written by people of all political persuasions. It's the actual arguments in the brief that matter, not the political party of the author.

[maryrose]

" If your job is congressional oversight, by all means , hop to it"
Yes why haven't these oh so concerned partisan dems hopped to it to ;
1. Change the law
2. Propose a way to track Al Oueda that works for them and for us
What, I can't hear you! Does that mean you are out of ideas or didn't you have any in the first place. Methinks it's probably the latter.
" Harboring concerns about the limited briefing audience, well then speak up"
Yes where were the comments or sense of outrage for quite some time. This is all CYA speech and again does nothing to rectify the situation or make us safer.

[epphan]

Wonderland:
In fact, Cecil didn't draw that conclusion. You did. And that is why it's important. And by the way, since it's being argued, it's not "inarguable" that CRS in nonpartisan.

[maryrose]

Wonderland:
Just because Scott shane says it doesn't make it so. His opinions have been discredited here quite a bit.

[maryrose]

Wonderland;
Though I like your name you obviously agree with the arguments as stated in the above report. I on the other hand do not. They are neither the ultimate authority nor the final arbiter.

[David Walser]

In this context the CRS is not nonpartisan. The "C" in CRS stands for "Congressional" and the CRS is partisan in the sense that it has an interest in one of the parties in any dispute between the Congress and the Administration. In other words, the CRS is no more nonpartisan than is the Department of Justice.

None of this means, of course, that the CRS cannot produce an excellent, objective, analysis -- as can the DOJ. Hmmm, did the media represent the DOJ letter to Congress on this issue as being produced by a nonpartisan organization?

[Anonymous Liberal]

Tom,

I think you've misinterpreted the statute by taking that provision out of context. 413b is titled "Presidential approval and reporting of covert actions." 413b(c)(2), by its own terms and the structure of the statute only applies to "covert actions." The statute defines "covert actions" as:

e) “Covert action” defined
As 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....

Covert actions are the type of things that, if exposed, the government intends to deny being involved with (instigating insurrection in foreign countries, etc.). It's similar to agents who operate under non-official cover. As soon as the NY Times exposed this program, Bush admitted that it existed and defended it. So this isn't a covert action, and 413b(c)(2) is inapplicable.

I know this is a rather minor point, but I think the Harman and the CRS are correct that, under the law, the full intellegence committees needed to be briefed about this program.

[Anonymous Liberal]

Hmmm, did the media represent the DOJ letter to Congress on this issue as being produced by a nonpartisan organization?

David, I see your point, but you can't really mean this. If the media described the DOJ as nonpartisan, that would totally inaccurate and misleading. The DOJ represents the views of the president, who is a republican.

If you want to argue that the CRS has some sort of institutional bias, fine, but that's not the same thing as partisanship. The CRS isn't Republican or Democrat.

And even the argument for institutional bias is pretty weak. I don't see too many Republican members of Congress standing up to the president right now. Clearly party loyalty is a more telling indicator of behavior than institutional affiliation.

[Wonderland]

AL, as usual, is correct. If you read the actual CRS report, it states plainly the various arguably legitimate bases on which the Administration can mount a defense to a charge that it did not comply with the Nat'l Security Act.

Second, as for David's point: taken. I was referring to partisanship based on political party. Of course, people can be "partisan" in other ways, like Congress v. Executive. I was attempting to rebut Cecil's implied point that the analysis was suspect because it came from a Kerry supporter.

Third, as to maryrose's and epphan's (similar) points, there can be no argument that the CRS is an "arm" or is otherwise "affiliated with" one or the other of the major political parties. I also recognize that the CRS is not the end all, be all of legal analysis. But if you're going to argue that the brief's conclusions are wrong, you ought to at least offer some colorable objections to its analysis.

And, fwiw, I don't "obviously agree" with the conclusions in the brief. Even though Tom relied on the wrong part of the law, after reading the brief, it seems like the Administration probably has some wiggle room, such that their actions weren't clearly illegal, but certainly didn't comply with the spirit of the law. I'm still undecided as to whether I think a technical violation occurred.

[Anonymous Liberal]

It's also worth noting that even in 413b(c)(2) was applicable, 413b(c)(3) would be as well, and that provision says:

Whenever a finding is not reported pursuant to paragraph (1) or (2) of this section, the President shall fully inform the congressional intelligence committees in a timely fashion and shall provide a statement of the reasons for not giving prior notice.

So even if Bush was entitled to brief only the gang of eight, now that the program has been exposed, he would still to report to the full committee.

But, again, this is irrelevant because this entire section doesn't apply to this situation.

[davod]

The problem, if you can call it that, is the media (any media). I did not read the CRS report. If, as is stated in the above comments, it did provide both points of view then the media picks what it wants and leaves the rest.

Just another reason to treat any story in the media as suspect. If you have sufficient interest you should always look for the source documents.

[maryrose]

Dick Cheney was on Neal Cavuto today and explained by what authority President Bush acted to keep us safe from terrorists. His explanation works for me. He also stated when asked that Gore's comments made him glad Gore lost the 2000 election. I couldn't agree more.

[boris]

I think you've misinterpreted the statute by taking that provision out of context.

Since your interpretations of what I write are so often different than my own interpretations of what I write, it is hardly surprising that your interpretations of anything are generally at odds with reality. As difficult as it normally is to pin you down to a coherent stand on anything, one might expect some respect for at least one interpretation different from the four or five you regularly employ to confuse an issue.

Really, not trying to be snarky, just an observation to take into account.

[boris]

Not that everything I write succeeds in presenting one and only one reasonable interpretation, still ...

Leave the alternate option open more often.

[Cecil Turner]

Shane described CRS, the entity, as nonpartisan, which it inarguably is.

"Inarguably"? If you say so. You could make the case that any organization is non-partisan, it's only when you add in the pesky people that it gets messy.

It's the actual arguments in the brief that matter, not the political party of the author.

Puh-leeze. Then why did Shane feel it necessary to clue us in that this guy was a representative of a "nonpartisan" organization? I don't care if the guy gives to Democratic campaigns . . . just don't try to tell me he's a disinterested observer. He isn't. He's a Democrat and a representative of Congress, which gives him two good reasons to claim the President overreached.

So even if Bush was entitled to brief only the gang of eight, now that the program has been exposed, he would still to report to the full committee.

Why not just refer 'em to the newspaper?

[Anonymous Liberal]

Since your interpretations of what I write are so often different than my own interpretations of what I write, it is hardly surprising that your interpretations of anything are generally at odds with reality.

Okay, Boris, please read the statute (there's a link to it in the post) and then provide an alternate interpretation that is less "at odds with reality". I'm all ears.

[boris]

Ok ok, "reality" was a zing.

There seems to have been an effort made to allow for secrecy. If one thinks the NSA program qualifies as something that should be secret, then a "liberal" interpretation might be in order. When liberals demand "strict" interpretations applied in a partisan fashion, sincerity is suspect.

[Anonymous Liberal]

Perhaps there is some other provision that allows for the kind of limited briefing the administration conducted. I don't know. I'm not familiar with all the statutes involved. My point was only that the particular provision Tom highlighted, 413b(c)(2), doesn't seem to be applicable.

[owl]

Shame about Harman. She was the last of the good Democrats and her party finally got to her. If you look, you'll see she is embarrassed. Someone ought to push on her.

[Tom Bowler]

Harry Arthur, I was aiming at the Democrats with the remark/question about this being the first time they actually referred to an apparently pertinent law. For the most part they've continued their usual routine, which is to simply misrepresent the facts of the situation. If you were to listen only to the left wingers on this topic, you'd have no idea that there were any international phone calls under surveillance, never mind that all of them were international calls to/from a suspected terrorist.

[JohnH]

regarding all these comments about whether the Bush Admin. followed the letter of the law in briefing members of Congress, see the letter quoted on the Weekly Standard's blog. Clinton/Gore were responsible for helping to sell arms to Iran in 2000 and didn't tell Congress about this action which clearly had national security implications:

Statement by Former Secretaries of State, Defense, Directors of Central Intelligence and National Security Advisors on the Sale of Russian Weapons to Iran, October 24, 2000
The following individuals, who include supporters of both Governor George W. Bush and Vice President Gore, believe strongly that:

``The President's most important job is safeguarding our nation's security and our ability to protect our interests, our citizens and our allies and friends. The military balance in regions of vital interest to America and her allies--including the Persian Gulf, which is a critical source of the world's energy supplies--is the essential underpinning for a strong foreign policy.

``This is why we are deeply disturbed by the agreement made between Vice President Gore and then Russian Premier Chernomyrdin in which America acquiesced in the sale by Russia to Iran of highly threatening military equipment such as modern submarines, fighter planes, and wake-homing torpedoes.

``We also find incomprehensible that this agreement was not fully disclosed even to those committees of Congress charged with receiving highly classified briefings--apparently at the request of the Russian Premier. But agreement to this request is even more disturbing since the Russian sales could have brought about sanctions against Russia in accordance with a 1992 U.S. law sponsored by Senator John McCain and then Senator Al Gore.''

George P. Shultz, former Secretary of State.
James A. Baker, III, former Secretary of State.
Zbigniew Brzezinski, former Assistant to the President for National Security Affairs.
Frank C. Carlucci, former Secretary of Defense and former Assistant to the President for National Security Affairs.
Lawrence S. Eagleburger, former Secretary of State.
Henry A. Kissinger, former Secretary of State and former Assistant to the President for National Security Affairs.
Donald H. Rumsfeld, former Secretary of Defense.
James R. Schlesinger, former Secretary of Defense and former Director of Central Intelligence.
Brent Scowcroft, former Assistant to the President for National Security Affairs.
Caspar W. Weinberger, former Secretary of Defense.
R. James Woolsey, Attorney and former Director of Central Intelligence.

http://www.weeklystandard.com/Weblogs/TWSFP/TWSFPView.asp

[Sue]

Cecil,

He might as well now. I suspect the numbers were being kept low in order to keep it out of the paper. One good thing about it...the suspect list is small...

[noah]

If the Administrations arguments re the legality of the NSA program are to prevail, then his briefing of the gang of 8 should (or could) be viewed as a good faith effort to keep the truly relevant parties informed of this top secret program which the Administration obviously recognized would be controversial if revealed. Also the gist of their argument is that informing congress infringes on presidential authority and endangers national security. Since it is probable that members of congress are among the leakers it looks like they miscalculated.

[BurkettHead]

Assuming, arguendo, that CRS is nonpartisan, it's still biased. After all, it's one & only client definitely has an interest in whether the Executive Branch properly briefed Congress on The Program.

[Anonymous Liberal]

never mind that all of them were international calls to/from a suspected terrorist.

How in the world can you make a statement like this with such certaintly? Unless you're the director of the program, I call bullshit. Isn't the whole point that we don't know whose calls are being intercepted because 1) the details of the program are top secret and 2) there is no judicial oversight? Isn't the whole point of having warrants (or any form of oversight) to make sure that in fact only suspected terrorists are being targetted? There have been press reports of some purely domestic calls being intercepted. And because this surveillance is done without warrants, we have nothing but the executive branch's word regarding who is being targeted. Even if you trust the president entirely, there's know way you can KNOW that only suspected terrorists have been targeted. The reason we have oversight is so we don't have to just take the President's word for it.

[dblaiseb]

AL,

The statute does explicitly exclude acquisition of the intelligence at 413b(e)(1) from the definition of covert actions.

However, there is the catch-all exception for dislosure of matters "to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters" in both 413a (other than covert actions) and 413b (covert actions). Historically, have the boundaries been located through consultation between the two branches, without judicial mediation? I don't know.

It seems that one can't avoid returning to the constitutional separation of powers issue regardless of the route one takes in analyzing this matter. Once congress throws the switch with AUMF (or a war declaration), it's difficult to see the limit of presidential power in prosecuting the war in a mere congressional statute.

Does it lie solely in the constitution itself, an amendment or executive forebearance? It is quite the question.

[noah]

The requirements in the law for judicial oversight are constitutionally incoherent.

[clarice]

I've been looking for the 42 page document that Gonzales sent to the Hill today, defending the program. The NYT cites to Findlaw.com but I haven't yet found it. If anyone does, please post it. Thanks.

[Wonderland]

Cecil, Burketthead:

Look, even if CSR is biased toward Congress's position and if the author is biased against Bush, the point remains that nobody has really mounted a colorable attack on the brief's analysis.

dblaiseb at 4:57pm makes the best effort so far, noting the "catch-all" exception, but fails to note that the CRS report dealt with exactly that clause on p9 of its brief. The CRS report noted that the legislative history clearly indicates that the language at issue only allows the Executive to withhold "certain sensitive aspects" of an intelligence program, not the existence of the intelligence program itself.

And this seems to make sense, since it's hard to imagine how the effectiveness of the program would have been detrimented if, in secret, the President informed the full Intelligence Committees simply that he had authorized a brand new intelligence gathering program run by the NSA that listened to int'l communications. My guess is that he didn't because (a) he knew he was on shaky ground when it came down to whether he had the legal authority to do so in the face of FISA and (b) it would have prompted the awkward question of why FISA wasn't adequate, a question that still has not yet been satisfactorily answered.

[kim]

Phelps should write more, and soon. It's sort of ironic. Newsday pulled them from the story because they'd become part of it, yet maybe that's what they should write about: their part in it, as he has just done. I see a way through the gloaming.
==============================

[dblaiseb]

clarice

http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf

That one?

[Patrick R. Sullivan]

Isn't Phelps the reporter suspected of having received the original leak of FBI info (probably from Howard Metzenbaum) about Anita Hill during the Clarence Thomas hearings?

Anyway, Pakistan newspapers are reporting the capture of 12 'foreign terrorists' along with computers and documents in the Swat area. Which is about 60 miles from where we killed several top Al Qaeda leaders last week.

Just a reminder of how valuable intelligence can be.

[topsecretk9]

Pat
yep! and thanks for the reminder.

Kim
OT
I am on the edge of my keyboard waiting to see what TM extrapolates from Phelps today, but on second blush where he writes

"But Royce and I told our editors at Newsday that we would become pariahs in Washington if we agreed to testify — that no other Washington reporter would ever do so. Newsday backed us up, and told Fitzgerald in mid-April that we would not help in any way. He threatened a subpoena that for some reason never came."

I wonder if this is the indication there was nothing covert to compromise? Nothing to subpoenar?

[dblaiseb]

Wonderland,

Note 3 on page 2 of the CRS report says with respect to the statutory "fully and currently informed" requirement:

Historic practice has been that in fully and currently informing the intelligence committees about intelligence activities, other than covert actions, the executive branch generally has communicated such information – almost always in classified form – to the Chairmen and Ranking Members of the intelligence committees, often in writing. Such communications then are made available to the rest of the committee membership.

Is the implication that tranmittal to other members by the committee leadership is a matter for the leaders?

[clarice]

dblaiseb, Thanks, but that's not it. I have the page it's on now, but my popup blocker seems to be stopping me from viewing the pdf file of Gonzales' filing.%^(

Patrick--thanks for the tip..I'll look up the story. If Zawahiri is in the area and not dead yet, I'll be surprised. In any event, I'm glad I' not his insurer.

[Wonderland]

dblaiseb:

"Is the implication that tranmittal to other members by the committee leadership is a matter for the leaders?"

Perhaps generally. But it's my strong impression that in this case the persons who were briefed were specifically prohibited from disclosing the info, even to other committee members. The secrecy about even the mere existence of the program, even with regard to the full Intelligence Committees -- who, let's face it, deal with super secretive stuff all the time -- just seems weird to me.

[Sue]

It never ceases to amaze me how the left can just tell when a report or a story is true. We on the right need this amazing ability.

[Wonderland]

Also, I scanned the Administration's new white paper on the legal justifications for the NSA program.

It unsurprisingly doesn't reveal anything new about the technical aspects of the program.

It also doesn't forward any novel legal arguments; it simply expands upon those laid out in the initial memo sent to Congress some weeks back.

They continue to basically argue that so long as the AUMF is in effect, the President has the unfettered and unfetterable authority to conduct warrantless surveillance targeting American citizens that he has determined are linked to Al Qaeda. (They seem to argue that such surveillance is limited to int'l communications, but it's hard to tell what legal basis there is to differentiate int'l calls involving AQ from purely domestic ones -- if anyone sees a distinguishing principle, pray tell.)

Of course, this is not surprising, since the President has also stated that the AUMF implicitly authorizes him to detain indefinitely and without charges American citizens suspected of terrorism even when they are arrested within the US (Padilla), and to "waive" the restrictions of the McCain torture ban if he determined nat'l security requires it (signing statement).

Congress needs to step up and seriously respond to this. The Administration's entire NSA legal argument is that Congress clearly authorized something (surveillance of US citizens in the US not in compliance with FISA) via the AUMF that every damn person in Congress knows clearly wasn't authorized via the AUMF. (The whole argument in the brief that Congress in 1978 couldn't bind Congress in 2001 is laughable, since they're really arguing that Congress in 1978 couldn't bind the President in 2006.)

Congress cannot let this President fundamentally alter the balance of powers between the branches, especially since this war is going to go on for generations.