Bill Leonard: Congress Is Responsible for CIA Not Informing Them

Bill Leonard makes an important point about the HPSCI investigation into whether or not the CIA is adequately informing Congress.

No matter the seriousness of the challenge, some politicians, members of the media, pundits, et. al. insist on reducing issues of grave importance to a "left vs. right" or "tough vs. soft on terrorism" didacticism. This week’s announcement by the House Permanent Select Committee on Intelligence (HPSCI) that it has opened an investigation into whether the Bush administration violated the law by not notifying Congress of certain classified intelligence programs, to include an alleged program to assassinate key al-Qaeda leaders, is the latest example.

In many regards, the substance of the program is irrelevant. However, if the latest fuss is, in fact, about an alleged covert program to assassinate key al-Qaeda leaders in the aftermath of the attacks of September 11, 2001, once again you do have to wonder from whom the "covert" nature of the program was intended to keep its existence secret. Clearly not the al-Qaeda leaders who knew they would be hunted down, as Bush himself said, "dead or alive." That’s why so many of them have chosen to live the rest of their lives holed up in a cave somewhere.

What is relevant is that much of the controversy is of Congress’ own doing. In an interview with the Washington Post, Director of National Intelligence Dennis Blair said agency officials may not have been required to notify Congress about the program, though he believes they should have done so."It was a judgment call," Blair said in the Post interview. "We believe in erring on the side of working with the Hill as a partner."

Blair is absolutely right, it is a "judgment call" but only because Congress made it one by giving the executive a loophole through which anyone could drive a Mack truck, even one loaded with numerous CIA assassination teams. As I wrote about earlier, while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” the statute goes on to state that such briefings should be done “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.” Imagine a law setting the speed limit on highways which requires drivers to travel 55 MPH "to the extent consistent with due regard" to other issues drivers regarded more important in their sole, unilateral judgment. While that my sound a lot like the Capital Beltway, it is also a law without meaning.

Now, I actually think the inclusion of the shootdown of an American missionary’s plane in Peru in the investigation will go some way to blunt any claims of partisanship here, because it should get Crazy Pete Hoekstra aboard as a willing participant. When Crazy Pete puts aside his partisan hat, he’s actually a much fiercer champion of Congress’ need to be informed than Democrats have traditionally been. 

That said, given Obama’s veto threat of the requirement that the Administration brief the full committee, it would take real bipartisan effort to amend the National Security Act to take out the Mack truck sized loophole Leonard describes.

  1. alabama says:

    What constituency would vote for a representative who insists on keeping the CIA, the NSA, and the DIA accountable?

    Or to put it another way, what accounting of funds and programs is made available to the voting public in the first place? I’ve never seen a budget for any of these agencies, let alone a Table of Organization or an Agenda. And if I don’t know what they’re doing or spending, how can I demand that my Congressman or Senator act in one way or another? And, if a representative isn’t pressured by his or her voting constituency, to whom will he or she finally listen, other than to the folks who fund his or her campaigns (who may have no interest at all in holding the agencies accountable), or to the agencies themselves?

    Torture is graphic, it’s horrible, and it catches our attention. The rest is quite invisible, not to say unintelligible….

  2. TarheelDem says:

    Imagine a law setting the speed limit on highways which requires drivers to travel 55 MPH “to the extent consistent with due regard” to other issues drivers regarded more important in their sole, unilateral judgment.

    Such laws have existed. Until the 1970s, South Carolina had a “prima facie” speed limit law that worked much like this. The fact that it was changed and South Carolina began to crack down on speeding under a new “absolute” speed limit law was the result of some high-profile highway accidents.

  3. plunger says:

    As evidenced by its classification and depicted above, it’s patently obvious that we are presently being lied to when they claim that the scope of the assassination operation was limited to leaders of Al Qaeda. It’s simply illogical on its face. There is virtually no possibility that the scope of the program was limited as it’s being portrayed. None.

    If Cheney and his ilk define the term loosely to mean “all of the opponents of our agenda,” only then would the portrayal of the scope come closed to being accurate – to include domestic assassination of US Nationals.

    The word games and semantics are exploited in the extreme. That’s how the CIA managed to weasel around revealing their program. They’d simply evade questions the way they always do. It should be a requirement for the CIA to reveal their programs to Congress without being asked.

  4. BoxTurtle says:

    Congress is responsable for not caring if they were informed or not. They knew they were were being lied to, they knew they were being left out of the loop, but until they became “offically” aware of this via Panetta they were fine with it.

    Boxturtle (And the few congresscritters who WERE informed are now probably wishing they weren’t)

    • alabama says:

      I’m not a great fan of congressmen, and I’ll bet they’re fine with a lot of things that ought to bother them. But one question I ought to ask myself more often: what, in theory, is a representative not responsible for? If a representative is responsible for everything, then something tells me that they’re going to ignore things that need their attention…..

  5. BoxTurtle says:

    something tells me that they’re going to ignore things that need their attention

    Me too. It’s called “history”.

    I seem to remember as a high schooler mumbly-something years ago having to do a paper on what a representative does. I remember losing 5 points for refering to them as “jerks of all trades”, but it was never clear if that was for the thought or the pun.

    Boxturtle (Even then, I knew)

  6. PJEvans says:

    while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,”

    If the president is supposed to make sure that Congress is informed about these things, then isn’t the president also responsible when they aren’t?

    • emptywheel says:

      That’s bureaucratic language, I’m fairly certain. That is, the proper way for someone to refer to the NSA is “as amended,” to reflect that it has been amended but that is still named NSA of 1947. Or at least, the same convention is true of the EO on classification. You’re supposed to say “EO 12958 as amended,” because the bulk of the EO is still operative, even though EO 13292 amended it to (among other things) create the Fourth Branch.

      • lysias says:

        So was that language in the original act of 1947? Did Truman want it? Do we have the (Republican) Congress of 1947 to thank for it?

    • Garrett says:

      The Cornell Legal Information Institute’s version of the U.S. code is an outstanding resource. The goto version of the code, for anyone without access to the legal publisher’s products.

      But Cornell only has the most recent version of the code, with “most recent” constrained by the details of the official codification and publishing process.

      Wikipedia can show version history: an article as it appeared in 2004; a highlight of the differences between one version and another.

      Infoworld magazine once made a very funny animation from the change over time of the Wikipedia article on heavy metal umlauts. Revision wars. Vandalism being inserted and edited out. People struggling with how to get a proper umlaut to show up.

      A public resource able to show change in the U.S. Code over time wouldn’t be so amusing. But it would be very useful. Or necessary.

      • emptywheel says:


        Even just being able to see the evolution of FISA is instructive. It’s hard to do in a way that allows for good compare and contrast, though.

        • Garrett says:

          It’s hard to do

          It really is. Time is always the hardest dimension. It works different from the other three, or importantly, from the other n. Everything else can be handled with geometry. Damn fundamental complications from physics, to someone who wants the computers to do words.

          • bmaz says:

            This is one of many places where the actual books, in actual law libraries, are superior. Each title (chapter) of a given code or set of statutes has its own volume and each separate statute and sub-provision has the history and sometimes legislative notes and discussion, all with annotations to germane cases, and then a supplement with the most up to date revisions and annotations usually provided every two months.

            • Garrett says:

              Yes, the books are still superior. I have worked for the companies that make the books. Specifically, on the publishing systems that let them make the books and the online versions from a single data source.

              I think the supplement process, and currency through lookups, long established ways of doing things, but clumsy solutions to the time problem, no longer make sense.

              • bobschacht says:

                Yes, the books are still superior.

                The U.S. Code online (see my link @ 18) is searchable. It is true that a short learning curve is required, but once you know how to use it, it can be really helpful.

                Bob in HI

                • Garrett says:

                  I appreciate from the government that that site can be easily scraped by robots.

                  It miffs me that they take out all their nice structure and content tagging, before they deliver it. Richer tagged versions are available but expensive.

                  I love the joke about “Statutes at Large”.

                  Hey, Office of the Law Revision Counsel. About title 3, “The President”: It has gone missing.

      • PJEvans says:

        I’d love to see on-line legal codes with the various revisions marked and annotated – at least as far as what was changed and when. Like the way the text in voter pamphlets is done, with the strike-outs and italics for added material, maybe.
        (CA’s various codes are online and searchable. The county boundary descriptions, frex, in the legislative code, where some of the material is extremely recent, and some clearly goes back to the original codification.)

  7. readerOfTeaLeaves says:

    it would take real bipartisan effort to amend the National Security Act to take out the Mack truck sized loophole Leonard describes.

    Given what appears to be the increasing role of black money in all of this mess, any Congresscritter who thinks they can take a ‘pass’ on dealing with this problem is a craven, blind fool.

    If only to figure out what’s gone wrong with the economy, Congress needs to address this.

    And BTW, anyone interested in a bit of very, very black humor should open another browser window and run this video of Laura Flanders interviewing Matt Taibbi on GRIT-tv last week. There’s a darkly funny moment where Taibbi kind of shakes his head at the lunacy of apparently a fairly recent incident where Goldman Sachs called for law enforcement assistance because one of their employees (possibly Russian) was at an airport with a laptop that GS believed ‘had software that could manipulate markets’. So… hmmmmm… how did Goldman Sachs know their employee had ’software that could manipulate markets’…?

    Gosh, what a head-scratcher, eh?

    Robert Johnson and Michael Lux are also guests.
    So how much of Congressional foot-dragging is fear of not wanting to piss off intel? And how much can be attributed to not wanting to piss off financial interests…? Unfortunately, the two seem to be far too blurred together at this point.

    So, one can see why Congress would want to study the scuffles on their shoes and say, ‘la-la-la’…

  8. R.H. Green says:

    “…National Security Act of 1947…requires the President to make sure the intelligence committees are ‘kept fully and currenty informed…’; briefings should be done…with regard to protection from unauthorized disclosures of classified info…”.

    It appears to me that a problem arises from the wording of the statute, in the word, “unauthorized”, in reference to disclosures. This empowers the President to act as an authority over what is to be disclosed, and how. Without this word the statute acknowledges the problem of inadvertant disclosure of sensitive information, but does not remove congress from responsibility for protecting secret information and entrusting the secuity to the presidential adult, as if the kids can’t be trusted. This attitude of exclusivity has come up in the DOJ’s attempts to control the handling of classified material in the al Harramain case.

  9. Palli says:

    Congress is a group of elected (and several selected individuals) that change periodically. To blame one group of individuals for neglect, inaction or indifference should not deny present or future groups of Congressional individuals from the opportunity to do the right thing.

    …and Individuals like Cheney who did the wrong thing should not be tacitly condoned (when out of office) as acceptable precedent for present and future individual’s actions.

  10. Leen says:

    Bill Leonard seems quite experienced at flippin the script. Shoving the responsibility of informing the congress off onto congress.

    The Bush administration one of the most dysfunctional in our history