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Thread: Sensitive Covert Action Notifications - Gang of Eight may be history...

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    Council Member AnalyticType's Avatar
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    Exclamation Sensitive Covert Action Notifications - Gang of Eight may be history...

    The Congressional Research Service released a report 7 July 2009 regarding (what I perceive to be) a step backward in oversight procedures. LINK

    From the Exec Summary:

    Legislation enacted in 1980 gave the executive branch authority to limit advance notification of especially sensitive covert actions to eight Members of Congress—the “Gang of Eight”—when the President determines that it is essential to limit prior notice in order to meet extraordinary circumstances affecting U.S. vital interests. In such cases, the executive branch is permitted by statute to limit notification to the chairmen and ranking minority members of the two congressional intelligence committees, the Speaker and minority leader of the House, and Senate majority and minority leaders, rather than to notify the full intelligence committees, as is required in cases involving covert actions determined to be less sensitive.

    In approving this new procedure in 1980, during the Iran hostage crisis, Congress said it intended to preserve operational secrecy in those “rare” cases involving especially sensitive covert actions while providing the President with advance consultation with the leaders in Congress and the leadership of the intelligence committees who have special expertise and responsibility in intelligence matters. The intent appeared to some to be to provide the President, on a short-term basis, a greater degree of operational security as long as sensitive operations were underway. In 1991, in a further elaboration of its intent following the Iran-Contra Affair, Congressional report language stated that limiting notification to the Gang of Eight should occur only in situations involving covert actions of such extraordinary sensitivity or risk to life that knowledge of such activity should be restricted to as few individuals as possible.

    In its mark-up of the FY2010 Intelligence Authorization Act, the House Permanent Select Committee on Intelligence (HPSCI) eliminated the Gang of Eight statutory provision, adopting instead a statutory requirement that each of the intelligence committees establish written procedures to govern such notifications. According to Committee report language, the adopted provision vests the authority to limit such briefings with the committees, rather than the President. In approving the provision, the Committee rejected an amendment that would have authorized the Committee Chairman and Ranking Member to decide whether to comply with a presidential request to limit access to certain intelligence information, including covert actions. The rejected provision stipulated that if the Chairman and Ranking Member of each of the intelligence committees were unable to agree on whether or how to limit such access, access would be limited if the President so requested. (Emphasis added by AT)

    With Congress considering a possible change, this memorandum describes the statutory provision authorizing Gang of Eight notifications, reviews the legislative history of the provision, and examines both the impact of such notifications on congressional oversight as well as options that Congress might consider to possibly improve oversight.
    I recognise the need for oversight in our system of government -- checks and balances are good and appropriate. However, history has shown (over millenia) that this camel (a horse designed by committee) likely will run in the wrong direction more often than not.

    This development concerns me. What say you all?
    "At least we're getting the kind of experience we need for the next war." -- Allen Dulles

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    Council Member marct's Avatar
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    Default

    Hi AT,

    Quote Originally Posted by AnalyticType View Post
    I recognise the need for oversight in our system of government -- checks and balances are good and appropriate. However, history has shown (over millenia) that this camel (a horse designed by committee) likely will run in the wrong direction more often than not.

    This development concerns me. What say you all?
    Hmmmm. I'm smelling camel as well with a possible wiff of Star Chamber added in. I never really liked the Gang of Eight provision, but this appears to be even more restrictive and give greater power to the President.
    Sic Bisquitus Disintegrat...
    Marc W.D. Tyrrell, Ph.D.
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  3. #3
    Council Member AnalyticType's Avatar
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    Default Marc, a re-read may be in order

    Quote Originally Posted by marct View Post
    Hi AT,

    Hmmmm. I'm smelling camel as well with a possible wiff of Star Chamber added in. I never really liked the Gang of Eight provision, but this appears to be even more restrictive and give greater power to the President.
    This latest development appears to be giving too much authority to the committees that love to produce camels, rather than to the executive. There are some good people on the Senate and House select committees on intelligence...and there are some overblown egos as well. It's the latter group that concerns me. Hence the mention of camel syndrome...

    But more to the point, while oversight is built into our constitutional system for good reason, the more people who know a "secret" the faster it becomes public knowledge - at an exponential rate. The provision that was rejected, which would have reduced the "who needs to know" decisionmakers to the top two members of each committee (with the President having the ability to break a deadlock if necessary) was at least an acceptable middle ground. I suspect that the overblown egos in the House committee shot it down.

    I am a highly inquisitive person (a good trait for an analyst!), and would love to know aaaalll of the details of a lot of different covert actions. I recognise, however, that there are situations where the cards must be held tightly to the vest, perhaps in perpetuity. There is a remarkable amount of wisdom in the "need to know, right to know, right to disclose" strictures.

    Just my 2psi

    Victoria
    "At least we're getting the kind of experience we need for the next war." -- Allen Dulles

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    Default Context is everything

    In general, the USG overclassifies and has a poor system for declassification after the fact. In general, and in theory, congressional Oversight is a good thing. Most of the time, however, the Intel Committees really don't do their job. (This is my observation from over 20 years as an intel analyst at the national and theater levels both active duty and reserve.) Given this, the CIA - in particular - has a tendency to game the system telling Congress what Congress wants to hear. They don't lie nor do they mislead - generally - but they don't go out of their way to correct wrong interpretations to the advantage of the CIA.
    Real congressional oversight of intel - collection, analysis, and covert operations - requires that the intel committees have access to everything - they do have "a need to know." The problem is how do you insure that something that should remain secret stays secret if you have a whole bunch of people who know. Well, of course, the operators know what is going on and they are usually a larger number than the intel committees and they can keep the secrets. But we know that Congress is leaky - still, what is the track record on leaks from the intel committees? Seems to me that there are ways of ensuring that the committees have the info they need to do their oversight job and keep that info secure and make certain that the Congress has the power to turn off a stupid operation. A super majority for release of classified intel info on the committee that truly requires sufficient members of both parties to agree would, I think, do it.
    Remember, in the end, Congress is the most powerful branch in our system if - and only if - it can get its act together and maintain the necessary majorities. It has the power to remove a President, supreme court justices, its own members, can decide on the jurisdiction of the courts, etc. Clearly, if it so chooses, it can enable or hamstring our intel agencies.
    One last point, all of these controversies developed in periods of wars that were extremely controversial with plenty of blame to go around. As Congressional scholar Louis Fisher put it, the Constitution is an invitation to struggle among the 3 branches.

    Cheers

    JohnT

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    Council Member marct's Avatar
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    Default

    Hi Victoria,

    Quote Originally Posted by AnalyticType View Post
    This latest development appears to be giving too much authority to the committees that love to produce camels, rather than to the executive. There are some good people on the Senate and House select committees on intelligence...and there are some overblown egos as well. It's the latter group that concerns me. Hence the mention of camel syndrome...
    You may be right - at least on the surface it would appear that the Executive is loosing power. However, let me note that there are, I believe, two committees involved and if they each have their own rules, I would bet that those rules will contradict each other on some points . I also have a suspicion that by freeing the choice up this way, it is now more possible for the number in the need to know pool to be restricted to, say, the chair of each committee.

    Quote Originally Posted by AnalyticType View Post
    But more to the point, while oversight is built into our constitutional system for good reason, the more people who know a "secret" the faster it becomes public knowledge - at an exponential rate. The provision that was rejected, which would have reduced the "who needs to know" decisionmakers to the top two members of each committee (with the President having the ability to break a deadlock if necessary) was at least an acceptable middle ground. I suspect that the overblown egos in the House committee shot it down.
    Wouldn't surprise me at all. I'll be interested to see if they actually include any anti-leak provisions, but I doubt it.

    Quote Originally Posted by AnalyticType View Post
    I am a highly inquisitive person (a good trait for an analyst!), and would love to know aaaalll of the details of a lot of different covert actions. I recognise, however, that there are situations where the cards must be held tightly to the vest, perhaps in perpetuity. There is a remarkable amount of wisdom in the "need to know, right to know, right to disclose" strictures.
    I'm pretty inquisitive myself . I've always preferred the 50 years rule rather than "in perpetuity" myself. Then again, I think that politicians (or their memories) should be held accountable for their actions.

    Cheers,

    Marc
    Sic Bisquitus Disintegrat...
    Marc W.D. Tyrrell, Ph.D.
    Institute of Interdisciplinary Studies,
    Senior Research Fellow,
    The Canadian Centre for Intelligence and Security Studies, NPSIA
    Carleton University
    http://marctyrrell.com/

  6. #6
    Council Member AnalyticType's Avatar
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    Default yes...and no....

    Quote Originally Posted by marct View Post
    Hi Victoria,

    You may be right - at least on the surface it would appear that the Executive is loosing power. However, let me note that there are, I believe, two committees involved and if they each have their own rules, I would bet that those rules will contradict each other on some points . I also have a suspicion that by freeing the choice up this way, it is now more possible for the number in the need to know pool to be restricted to, say, the chair of each committee.
    While it does appear that the choice (among the members of the intell committees) regarding how many would be briefed has the possibility of being reduced, given the nature of the beast it is unlikely. I hope that I'm wrong! I don't see it as probable though.

    Quote Originally Posted by marct View Post
    Wouldn't surprise me at all. I'll be interested to see if they actually include any anti-leak provisions, but I doubt it.
    Those, like locks, rarely do more than to keep the honest people honest.

    Quote Originally Posted by marct View Post
    I'm pretty inquisitive myself . I've always preferred the 50 years rule rather than "in perpetuity" myself. Then again, I think that politicians (or their memories) should be held accountable for their actions.
    I agree wholeheartedly. As JTF mentioned, our Congress is the most powerful branch of our government. The inherent fractiousness within that body tends to prevent its ability to fully exercise that power. The current D:R ratio, however, may push the fulcrum a bit further to their advantage. Again, I hope I'm wrong. I just don't trust committees as a rule...they tend to have rather short success lists of well-designed horses...
    "At least we're getting the kind of experience we need for the next war." -- Allen Dulles

    A work of art worth drooling over: http://www.maxton.com/intimidator1/i...r1_page4.shtml

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    Council Member marct's Avatar
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    Default

    Hi Victoria,

    Quote Originally Posted by AnalyticType View Post
    Again, I hope I'm wrong. I just don't trust committees as a rule...they tend to have rather short success lists of well-designed horses...
    If you have access, take a look at The Gracchii Horse: A Study in Pre-Raphaelite Management. Public. Administration Review 29(1): 65-71.
    Sic Bisquitus Disintegrat...
    Marc W.D. Tyrrell, Ph.D.
    Institute of Interdisciplinary Studies,
    Senior Research Fellow,
    The Canadian Centre for Intelligence and Security Studies, NPSIA
    Carleton University
    http://marctyrrell.com/

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    Council Member zenpundit's Avatar
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    Default An ill-intentioned idea

    These proposed rules are designed to create a situation of arbitrary, conflict-ridden, uncertain yet expanded oversight of covert operations. More people would have knowledge of very sensitive operations ( we have to add staffers and key aides told by MoC against disclosure rules) with far less of the accountability for leaks by keeping notification to the "gang of eight". Much easier for any one member to kill any operation by leaking it with little fear of being caught. Even if caught, the chances of discipline by the House or Senate are minimal unless the member is highly unpopular with their own party leaders.

    The point behind this move is to deter the executive branch from using overt ops in the first place, which suits the objectives of members of Congress philosophically opposed to the IC and historic US foreign policy, but it does not actually *improve* oversight of the IC.

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    Council Member AnalyticType's Avatar
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    Default

    The point behind this move is to deter the executive branch from using overt ops in the first place, which suits the objectives of members of Congress philosophically opposed to the IC and historic US foreign policy, but it does not actually *improve* oversight of the IC.
    Concur
    "At least we're getting the kind of experience we need for the next war." -- Allen Dulles

    A work of art worth drooling over: http://www.maxton.com/intimidator1/i...r1_page4.shtml

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    Default Past need not be prologue

    but it usually is.

    That said, IMO, the rule ought to be that the Committees' as a whole should be briefed. Release of classified information should be on not less than 80% of the Committee Members concurring. Abstentions should be treated as non-concurrence. Staffers should be very limited in number, non-partisan professionals, who are subject to the same laws as Executive Branch employees. A member who releases classified information as an individual should be subject to prosecution in the same manner and under the same laws as the staffers. Congress certainly has the authority to pass such legislation for it defines duties as an Intel Committee member to be only those for which there is committee concurrance (80%). Do something like this and you protect the information and create real oversight.

    Will this happen? Of course not!

    Cheers

    JohnT

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    I am more comfortable with the intelligence committees being informed than I am with having the speaker and party leaders informed. I am inclined to think that some modicum of responsibility or conscience may come with the appointment to an intel committee. The same cannot be said of one whose vocation is to be a leader of a political faction in Congress. That is not to say the difference is significant - but I think it at least exists in some degree.

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    Council Member Uboat509's Avatar
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    Default

    If I believed for a second that this was born out of convictions that this was the right thing to do then I could at least respect it, even if I don't agree. Unfortunately, I firmly believe that this is nothing more than partisan political posturing. Par for the course.

    SFC W

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    Former Member George L. Singleton's Avatar
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    Default Don't tell if asked!

    I vote to adopt a bastardized version of the don't ask, don't tell policy, which the JCS and Presidents have worked with.

    This said, simply "don't tell if asked" beyond what you have known in the past to be reliable bipartisan Members and Senators who under old rules/procedures/law were supposed to "keep it under their hats."

    I seem to recall very many politicians on the hill, along with some of their unreliable staffers who are often as not too big for their britches, breaking the old law routinely and nothing was ever done about it.

    I write as a former House Whip staffer from the early 1960s who liked the late Congressman Mendell Rivers, D-SC on the House side and Senator John Stennis, D-Miss. on the Senate side when it came to intel and defense topics.

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    Council Member AnalyticType's Avatar
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    Default Point well made

    Quote Originally Posted by Schmedlap View Post
    I am more comfortable with the intelligence committees being informed than I am with having the speaker and party leaders informed. I am inclined to think that some modicum of responsibility or conscience may come with the appointment to an intel committee. The same cannot be said of one whose vocation is to be a leader of a political faction in Congress. That is not to say the difference is significant - but I think it at least exists in some degree.
    I was thinking smaller numbers involved reduced risk better, but your point is valid.
    "At least we're getting the kind of experience we need for the next war." -- Allen Dulles

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