A Step Forward for Oversight of Intelligence

Tomorrow, the House is expected to pass its first intelligence oversight bill in six years, ending a contentious inter-branch battle over who gets to know what about covert action. For months, Speaker Nancy Pelosi refused to budge on the subject of notifications. Under the National Security Act, the President is required to notify the chairs and ranking members of the intelligence committees and the majority leaders and minority leaders of both chambers when he issues covert action findings.

Pelosi believed that the Bush Administration had abused the language of the law to circumvent oversight by both limiting notification of a range of intelligence capabilities and refusing to allow other members of relevant committees access to information about sensitive and controversial programs.

Under the language agreed to by the White House, the President must provide other members of the committee with "general information" about the subject of his covert action notification. If the President were to inform the Gang of Eight that he signed a covert action finding to overthrow the government of Canada, he would be required to tell others at least something about the finding. The content of the notification is left to the executive branch, something that the White House insisted was necessary in order to safeguard national security information.  The type of information provided to other members of the committee must be "consistent with the reasons for limiting with the finding in the first place," according to the text. 

Though the change seems modest, Congress gains a lever. In the past, there was no way for the Gang of Eight to build momentum for or against any particular presidential decision. Now, partial discussions can be legally initiated, which, if the particular program is controversial, will put pressure on the executive branch to provide more information about it.

Typically, covert action findings are reserved for highly sensitive, highly risky operations, like the decision to water-board terrorism suspects. The Bush Administration initially revealed information about its Terrorist Surveillance Program only to the Gang of Eight under the premise that the law requires notification to be made "with due regard for the protection of intelligence sources and methods." (The administration at first concealed the program from Congress altogether.) The Obama Administration has not used the covert action finding notification process to limit information about ongoing intelligence capabilities and techniques, according to sources in Congress and the administration.

The bill contains several other oversight provisions, including a limited mechanism for the Government Accountability Office, Congress's investigative arm, to audit intelligence agencies.  It does not address, because it cannot address, the covert activities of the Pentagon's special missions units, who operate under a law that does not require prior or even (in some cases) post-facto notification of Congress. These units, part of the military's Joint Special Operations Command, are subject to much less oversight than the CIA would be for the same covert action.
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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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