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53–808 2009

CONGRESSIONAL NOTIFICATION: INTELLIGENCE 

COMMUNITY POLICIES, PRACTICES, AND PROCEDURES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

INTELLIGENCE COMMUNITY 

MANAGEMENT 

OF THE

PERMANENT SELECT 

COMMITTEE 

ON INTELLIGENCE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

Hearing held in Washington, DC, October 27, 2009 

( 

Printed for the use of the Committee 


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CONGRESSIONAL NOTIFICATION: INTELLIGENCE COMMUNITY POLICIES, PRACTICES, AND PROCEDURES 

TUESDAY, OCTOBER 27, 2009 

HOUSE OF REPRESENTATIVES,

PERMANENT SELECT COMMITTEE ON INTELLIGENCE,

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,

JOINT WITH THE SUBCOMMITTEE ON

INTELLIGENCE COMMUNITY MANAGEMENT,

Washington, DC. 

The subcommittee met, pursuant to call, at 10:05 a.m., in Room 

HVC–210, Capitol Visitor Center, the Honorable Jan Schakowsky, 

[chairwoman of the Subcommittee on Oversight] presiding. 

Present: Representatives Schakowsky, Eshoo, Holt, Schiff, 

Myrick, Thornberry, Miller, and Conaway. 

Chairwoman SCHAKOWSKY. I’ll call this meeting to order. 

Today we will examine how the Intelligence Community honors 

and implements its legal obligation to keep Congress informed 

about intelligence activities. This hearing is part of the full committee’s investigation into the Intelligence Community’s compliance 

with the National Security Act. This is a combined hearing of the 

Oversight and Investigation Subcommittee and the Intelligence 

Community Management Subcommittee, chaired by Congresswoman Eshoo. 

Under the National Security Act, the executive branch is required to keep the committee ‘‘fully and currently informed of the 

intelligence activities’’ of the United States, including any ‘‘significant anticipated intelligence activity’’ and covert actions. These requirements are critical. The executive branch’s intelligence activities are secret, and the American people rely on the congressional 

Intelligence Committees to scrutinize them. They rely on this committee to make sure that those activities are consistent with the 

Nation’s best interest and values. The committee is, in the truest 

sense, the people’s representative when it comes to secret intelligence activities. 

For the committee to perform these vital functions, the committee must receive—and the executive branch must provide— 

truthful, complete, and timely information. If this does not occur, 

Congress cannot adequately perform its constitutional obligation to 

authorize and appropriate money for intelligence activities. 

In recent years, various members of the committee from both 

sides of the aisle have expressed concerns that the Intelligence 

Community has failed to provide the committee with full and comVerDate Mar 15 2010 04:28 Dec 16, 2010 Jkt 053808 PO 00000 Frm 00003 Fmt 6633 Sfmt 6633 E:\HR\OC\A808.XXX A808

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plete information. Recent revelations have raised yet more questions about whether the Intelligence Community has violated the 

National Security Act. 

Last week, the Intelligence Community Management Subcommittee held a hearing focused on the National Security Act’s 

provisions that require the executive branch to keep the committee 

informed about intelligence activities. That hearing was an important step in the committee’s investigation. 

Today’s hearing represents another important step. For the National Security Act to be effective, the executive branch must properly implement and enforce it. We need to understand how the Intelligence Community carries out this obligation, whether its notification policies gave rise to past notification failures, and what it is 

now doing to make sure that the committee is kept fully and currently informed. 

In particular, I look forward to hearing about the ODNI’s current 

review of the Intelligence Community’s notification policies. 

To discuss these matters, we will hear from Robert S. Litt, the 

general counsel of the Office of the Director of National Intelligence. While Mr. Litt has only been on the job for several months 

now, he joined the ODNI after an already distinguished legal career which has included time as a senior Justice Department official and as a partner at one of Washington D.C.’s most prominent 

law firms. As demonstrated by his substantial work on the subject 

since joining the ODNI, I know he takes the issue of congressional 

oversight seriously and I welcome him here today. 

Chairwoman SCHAKOWSKY. At this point, I would like to recognize Ms. Eshoo, the Chair of the Intelligence Community Management Subcommittee, for any opening statement that she would like 

to make. 

Ms. ESHOO. Thank you, Madam Chairwoman, and good morning 

to everyone. Welcome. 

Mr. Litt, thank you for being willing to testify today on this joint 

session on congressional notification which is, of course, a very important topic, and it’s the reason that we’re here. 

Last week the Intelligence Community Management Subcommittee held a hearing examining the provisions in the National 

Security Act of 1947 that established how the executive branch 

keeps Congress informed of its intelligence activities. This hearing 

comes as a welcome follow-up to that one, so we can examine how 

the executive branch has implemented the provisions of the act and 

how they interpret the statute. 

As I said last week at our hearing, the executive branch’s obligation to keep the committee fully and currently informed is really 

a solemn obligation. Congress has a right to know and the executive branch has a duty to share the information necessary for Congress to authorize and appropriate funds and oversee the activities 

of the Federal Government, including intelligence activities, to ensure that taxpayer funds are spent wisely and that the policy is 

really a sound one. 

Last week, we heard that the relationship works best when the 

executive branch takes, in good faith, its obligation to share full 

and complete information about intelligence activities with the 

committee. In many cases, Congress provides the only outside overVerDate Mar 15 2010 04:28 Dec 16, 2010 Jkt 053808 PO 00000 Frm 00004 Fmt 6633 Sfmt 6633 E:\HR\OC\A808.XXX A808

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sight on intelligence activities, and thus its role is all the more crucial in checking executive excesses or strengthening its plans. 

We examined the statute and we focused on a number of phrases 

where the law is ambiguous. Some in the executive branch could 

use that lack of clarity to circumvent their obligations to inform 

Congress. We need to understand how the agencies interpret their 

obligation to keep the committee ‘‘fully and currently’’ informed, 

what kinds of intelligence activities they consider ‘‘significant,’’ and 

how they view the obligation to inform rather than merely notify— 

and there is a big difference between the two. I think all of the 

members of the committee have a pretty deep appreciation of that. 

I want to understand how the agencies interpret the phrase ‘‘significant.’’ 

Last week’s witnesses explained that the factors that make an 

intelligence activity significant are those that are approved at high 

levels of leadership or are particularly sensitive or are likely to 

have serious foreign policy implications. 

I would also like to understand whether the agencies are basing 

any of their decisions to inform Congress on whether an activity is 

operational. As we heard last week, that phrase is not in the statute and should not be used to decide what information should be 

shared with the Intelligence Committees. 

I hope, Mr. Litt, that you will shed light on how the Intelligence 

Community implements its obligation to keep the committees fully 

and currently informed. I am also looking forward to hearing about 

some of the changes that the Intelligence Community is considering to improve its congressional notification practices so that the 

failures of the past do not repeat themselves. 

So thank you, Madam Chairwoman. I am delighted that we’re 

having this joint hearing. 

Thank you, Mr. Litt, for testifying today. 

And to everyone that’s here in the audience, we’re glad to see you 

and look forward to working with all of you. 

Chairwoman SCHAKOWSKY. Now I would like to recognize Mr. 

Miller, the Ranking Member of the Oversight and Investigation 

Subcommittee, for any opening statement he would like to make. 

Mr. MILLER. Thank you, Madam Chairwoman. 

Mr. Litt, thank you for being here today. I believe this is the first 

time that you have had an opportunity to testify before this subcommittee, and as you might imagine, there are going to be quite 

a few questions that we’ll have for you today. 

We all believe that timely and accurate notifications are vital to 

the work of this committee. In the past Congress, we’ve seen the 

negative effects and tensions created between the Congress and the 

executive branch when the notification process breaks down. No 

single case better illustrates my point than the Peru Program. 

This intelligence program resulted in the deaths of two American 

citizens: Veronica and Charity Bowers. Their deaths directly affected friends and family members living in my district. The mishandling of this program is of great interest and of great concern 

to me. 

But beyond the ineptitude that led to the Bowers’ deaths, I am 

stunned by the ease with which some at the CIA kept this information from reaching the Congress. The CIA Inspector General has 


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issued a report that detailed at length how certain intelligence officers deliberately misled the committees of jurisdiction on this matter. We have heard from the IG about their report. We don’t need 

to rehash those specifics today. 

Hopefully, Mr. Litt, you can provide some reassurance that this 

kind of misconduct cannot happen again, and I’d like to hear what 

changes have been made to the congressional notification process, 

not just at CIA but in the IC, to prevent something like this from 

ever happening again. I hope that the lessons learned from Peru 

have been incorporated as best practices in your procedures. 

That being said, I want to make it clear that I don’t believe that 

the CIA or any element of the community lies all the time. These 

kinds of statements made by senior Members of Congress are 

unhelpful to our efforts on this committee to foster a sense of trust 

and cooperation between the executive branch and Congress. And 

frankly, such statements are not accurate. 

Moreover, I am also concerned about the level of partisanship 

that is attached to this issue. In our bill, a broadly supported bipartisan legislative proposal to fix the notification provisions of the 

National Security Act was scrapped by the Majority in favor of a 

narrowly supported partisan provision, a provision that actually 

drew a veto threat from the Obama administration. In this subcommittee’s efforts, the majority has allowed oversight of critical 

matters of bipartisanship interest, such as Peru, to flounder. 

Instead, the Majority has embarked on this vague and ill-conceived investigation of notification issues with little input or consultation with the Republican Members. Unfortunately, I don’t believe the Majority will complete this investigation anytime soon. I 

also don’t believe this investigation will realize positive results that 

will justify the time and resources that we will spend on it. 

In any case, Mr. Litt, I welcome your statements in this process, 

and I hope that you can highlight for me how the process has been 

improved. And I’ll save the rest of my time for questions after your 

presentation. 

Chairwoman SCHAKOWSKY. Let me just say to my Ranking Member, that, well, first I was about to associate myself with your remarks about halfway through. But I do want to say that we were 

to have a briefing this week on Peru, which is of great interest to 

me, as the Ranking Member well knows, from day one. The briefer 

that was supposed to come was unable to make it so we have rescheduled for the week of November 4. And I absolutely agree with 

you that we need to move forward. There is no effort to delay or 

slow down this investigation, and we will absolutely do it. 

I want to turn to Ms. Myrick, the Ranking Member of the Intelligence Community Management Subcommittee for any opening 

statement she’d like to make. 

Mrs. MYRICK. Thank you. I have no opening statement. I’ll wait 

to hear from Mr. Litt for questions. 

Chairwoman SCHAKOWSKY. Mr. Litt, it is the policy now of the 

Oversight and Investigations Subcommittee to swear all witnesses 

before they testify. And if you would stand and raise your right 

hand. 

[Witness sworn.] 


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Chairwoman SCHAKOWSKY. The record will reflect Mr. Litt answered in the affirmative. 

And now we’re ready for your opening remarks. Thank you. 

TESTIMONY OF ROBERT LITT, GENERAL COUNSEL, OFFICE OF 

DIRECTOR OF NATIONAL INTELLIGENCE 

Mr. LITT. Thank you, Madam Chairwoman Schakowsky, Madam 

Chairwoman Eshoo, Ranking Member Miller, Ranking Member 

Myrick, members of the committee. Thank you for your kind words 

and for inviting me here to testify before you today on the policies 

and procedures the Intelligence Community uses to help ensure 

that the congressional Intelligence Committees are kept fully and 

currently informed of intelligence activities. As Ranking Member 

Miller noted, this is my first time testifying before you, but I do 

look forward to many opportunities to work with the committee in 

the future. 

I believe that congressional oversight of intelligence activities is 

critical because of the importance of intelligence in protecting our 

national security, because of the power of the tools that are given 

to the Intelligence Community and their potential risks to privacy, 

civil liberties, and to foreign relations if they’re not used properly, 

and because much of what the Intelligence Community does necessarily has to be done in secret. This oversight is a valuable way 

of improving the quality of the intelligence and the effective and efficient—cost-efficient—operation of the Intelligence Community, because Members of Congress often bring a different and valuable 

perspective to some of the difficult issues that we in the Intelligence Community have to deal with. 

In addition, robust oversight can help assure the public and the 

Congress, give them confidence in the activities of the Intelligence 

Community. But the value of this oversight would obviously be limited if the Intelligence Committees were not aware of significant intelligence activities. 

So the Intelligence Community does take seriously its statutory 

obligation to keep the Intelligence Committees fully and currently 

informed of intelligence activities. I know this committee has met 

on numerous occasions with Director Blair and that he’s expressed 

this view to you. And I’ve heard him say this same thing in private, 

that he really does believe that it’s important to keep the committees fully informed, and I share that view. 

My written statement goes into more detail on the literally hundreds of occasions on which the Intelligence Community has provided information to the House and Senate Intelligence Committees, just since the beginning of this Congress, by way of written 

notification or briefings or hearings, among other ways. 

I think that this does show that the Intelligence Community is 

working hard to try to make sure that the Intelligence Committees 

do have timely and accurate and complete information to inform 

policy and to enable the committees to conduct oversight. The notification process is subject to continued supervision and oversight by 

the Office of the Director of National Intelligence in the exercise of 

its statutory responsibilities. 

For example, in January of 2006, the ODNI issued what’s called 

an Intelligence Community Policy Memorandum, which is entitled 


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‘‘Reporting of Intelligence Activities to Congress,’’ and this provides 

guidance to the Intelligence Community about the requirements of 

notification to the committees. 

Then in March of this year, Director Blair sent another memorandum to the heads of all of the elements of the Intelligence Community, both reaffirming this memorandum and directing that notification of significant intelligence activity should be provided to 

the committees within 14 days. 

Recently, he also discussed the importance of timely and complete congressional notification at a meeting of what is called his 

Executive Committee, the EXCOM, which is the heads of all of the 

16 elements of the Intelligence Community. 

And finally last summer, Director Blair directed that there be a 

comprehensive review of the congressional notification policies and 

procedures of each element of the Intelligence Community. This review had two purposes: first, to examine whether all elements of 

the community were currently in compliance with their obligations 

of congressional notification; and, second, whether they each had in 

place appropriate policies and procedures that would ensure that 

the committees going forward would be kept fully and currently informed. 

At the conclusion of this review a couple of weeks ago, the DNI 

sent a memorandum in which he strongly encouraged each element 

of the community to compare its current policies and procedures to 

a set of best practices that were derived from the results of this review and to make any necessary changes. And from my conversations with the various elements of the Intelligence Community, I 

know that they’re taking this seriously. They’re going back, they’re 

reviewing their procedures, and if appropriate, they are strengthening them. 

I can assure you that the DNI will continue to review compliance 

with the congressional notification requirements by the entire Intelligence Community, and, if necessary, will go back and look at 

the Intelligence Community Policy Memorandum and see whether 

that needs to be modified or strengthened or whether other procedures need to be put in place. 

In summary, intelligence oversight is critical to the successful operation of the Intelligence Community, but it can only be effective 

if the Intelligence Community views the Intelligence Committees 

as partners and keeps them fully and currently informed of all intelligence activities. And the DNI and the ODNI are working with 

the Intelligence Committees and the Intelligence Community to try 

to ensure that this happens. 

I appreciate having the opportunity to come before this joint 

hearing today, and I look forward to responding to your questions. 

However, as you know since the facts surrounding many of these 

issues are classified, I won’t be able to discuss specifics to any great 

degree in the open session, and I understand there’s a Closed Session planned for afterwards if we need to go into details. 

Thank you, Madam Chairwoman. 

[The statement of Mr. Litt follows:] 


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Chairwoman SCHAKOWSKY. So if you’re asked a question that is 

best responded to in the Closed Session, you will tell us. 

Thank you very much, Mr. Litt. 

Under the National Security Act, the committee must be kept 

‘‘fully and currently informed of any significant and significant anticipated intelligence activity.’’ The National Security Act defines 

the phrase ‘‘intelligence activities’’ to include covert actions. Accordingly, does the National Security Act require the executive branch 

to notify the committee of anticipated intelligence covert actions? 

Mr. LITT. I think the National Security Act makes a division in 

the procedures and the standards appropriate to covert actions and 

to other kinds of intelligence activities. As you know, section 502 

covers other intelligence activities, section 503 covers covert actions. 

And there’s a fairly specific standard in section 503 setting forth 

what the President is required to notify the committees of in the 

case of covert actions. It says that the President has to ensure that 

any finding with respect to covert action is reported to congressional intelligence activities as soon as possible after the finding is 

approved and before the covert action is initiated, except as provided in some of the other sections. 

And it further provides that the congressional Intelligence Committees have to be notified of any significant change in a previously 

approved covert action or any significant undertaking pursuant to 

a previously approved finding, also before the activities are carried 

out. 

And I think that that statutory language embodies the general 

command of section 501 and sets forth the manner in which the 

President is supposed to inform the committee of significant anticipated activities in the area of covert actions. 

Chairwoman SCHAKOWSKY. So the answer in short would be 

‘‘yes.’’ 

Mr. LITT. Yes, as set forth in section 503. 

Chairwoman SCHAKOWSKY. When assessing whether an intelligence activity is significant, what factors does the Intelligence 

Community take into consideration? 

Let me give some examples. If the President, Vice President or 

National Security Adviser have directed or approved an intelligence 

activity, should that be considered evidence of significance? 

Mr. LITT. Yes. That’s specified in the Intelligence Community 

Policy Memorandum that I mentioned. 

Chairwoman SCHAKOWSKY. And if an agency director, such as 

the NSA or CIA Director, has directed or approved a particular intelligence activity, should that be considered evidence of significance? 

Mr. LITT. While that factor isn’t specified, it’s obviously one of a 

number of factors that an element of the Intelligence Community, 

in exercising its judgment as to what is significant, it should take 

into account the level of approval, yes. 

Chairwoman SCHAKOWSKY. So not alone? If the NSA or CIA Director approves a particular intelligence activity, it’s of significance, 

but not—— 

Mr. LITT. I wouldn’t necessarily say that that would by itself, in 

all circumstances, require notification. 


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Chairwoman SCHAKOWSKY. But it’s considered evidence of significance. 

Mr. LITT. I would think it would be, yes, ma’am. 

Chairwoman SCHAKOWSKY. In DNI Blair’s October 13, 2009, 

memo to the IC, he noted that he’s concerned ‘‘that not all elements 

may be taking the appropriate steps to ensure that significant intelligence activity is identified in a timely manner and that Congress is notified in a timely fashion.’’ 

What I want to know is who is responsible for ensuring the Congress is properly notified of intelligence activities? 

Mr. LITT. When we went out and canvassed the elements of the 

Intelligence Community, generally speaking in each element of the 

Intelligence Community, their Office of Legislative Affairs has the 

primary responsibility for ensuring that congressional notification 

proceeds appropriately. 

In almost every case, I think the General Counsel’s Office also 

plays a role in helping assess whether a particular issue meets the 

standard that requires notification or not. 

Chairwoman SCHAKOWSKY. That’s you. 

Mr. LITT. In the ODNI, that’s me. In CIA, it’s their general counsel. 

But the primary responsibility rests with the Legislative Affairs 

Office. 

Chairwoman SCHAKOWSKY. My concern is that there isn’t a name 

necessarily attached that everyone is clear about. 

So at NSA, for example, who is responsible for ensuring that 

Congress is properly notified of the intelligence activities, or at 

CIA, et cetera? 

Mr. LITT. I can’t give you the names. I can tell you that one of 

the best practices that the DNI referenced in his most recent 

memorandum was that there should be a single point of contact for 

these purposes. Some of the agencies may have established their 

own individual points of contact. In the case of the DNI, ultimately 

it’s the head of our Legislative Affairs Office who has responsibility 

for it. 

So I don’t know the names of the individuals, but if they don’t 

have them, yes, ma’am, they should have them, a single individual 

who is charged with that. 

Chairwoman SCHAKOWSKY. I thank you. 

Chairman Eshoo. 

Ms. ESHOO. A couple of questions. 

To what extent do you make recommendations to the NSC to 

brief members of the Intelligence Committee, the full committee, or 

the Gang of Eight? 

Mr. LITT. Me personally, or the DNI? 

Ms. ESHOO. Either. 

Mr. LITT. I think that when—in general when those decisions are 

made—and they have not been common, at least since I have been 

on the job—— 

Ms. ESHOO. When did you start? 

Mr. LITT. I started at the end of June of this year. 

Ms. ESHOO. Neither have been common, or one or the other? 

Mr. LITT. Limited briefings of any sort. 


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When a decision is made as to what sort of briefing is made, the 

ODNI has a role to play in that. The Director is one I expect would 

be consulted on that issue, and I would hope that he would seek 

the judgment of his general counsel as to compliance with the law 

on that issue. 

Ms. ESHOO. I’m not so sure I understand your answer. Maybe 

you could walk me through the process of how it happens. 

Have you experienced that yet? 

Mr. LITT. I have not. 

Ms. ESHOO. That’s fair enough. 

Mr. LITT. But my understanding is that the decision—— 

Ms. ESHOO. Since June, there have not been any decisions to 

brief members, even of the full committee, on anything? 

Mr. LITT. No. The members of the full committee have been 

briefed on numerous matters. I’ve been actually present at some of 

those briefings. So there certainly have been plenty of decisions 

taken to—— 

Ms. ESHOO. But I’m asking about both. 

Mr. LITT. I’m sorry. I’ve lost the question. 

Ms. ESHOO. To what extent do you make recommendations to the 

NSC to brief members of the full committee or the Gang of Eight? 

Mr. LITT. Most of the decisions about notifying or briefing the 

full committee, to my knowledge, are not made at the level of the 

NSC. When an issue is of sufficient importance that the NSC gets 

involved, it is my understanding—although as I said, I haven’t participated in this process—that the decision of whether the briefing 

should be done at the level of the full committee or a more restricted briefing is a decision in which the DNI will play a role in 

the exercise of his responsibilities to protect sources. 

Ms. ESHOO. When you say ‘‘play a role,’’ are there others that 

play a role in that? 

Mr. LITT. Well, I would assume, for example, if it’s CIA information, that the CIA would play a role. If it’s a covert action, obviously, since the White House owns covert actions, they would play 

a role. And as I also said, I would hope that the DNI would consult 

his Office of General Counsel if such an issue came up, to get our 

view on what the law requires in that instance. 

Ms. ESHOO. As you know, Mr. Litt, this examination that the full 

committee is undertaking is, as the Chairman of the full committee 

has very wisely stated, broad, and that we will not only examine 

the history of the law, how it came about, and the history that’s 

been made ever since. 

Now, in recent history, we have had more than a real glitch, and 

this is what I would like to ask you about. And I think that there 

are probably some things that we can’t go into, obviously, in an 

open session. 

But my question to you is how can there be a program that was 

established in 2001 and the CIA Director being informed in 2009? 

What is broken, in your view, that would cause that to happen and 

the Congress not ever being informed? 

Mr. LITT. Well, to the extent the issue—are you asking me about 

the CIA Director being informed or the Congress being informed? 

Because my understanding is that other earlier CIA Directors may 


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have been informed, and that it was simply that the current CIA 

Director didn’t learn about this until several months after. 

Ms. ESHOO. That’s quite extraordinary, at least in my view, because he had been on the job for a while, and to have his own people not informing him I think should be a cause of concern for all 

of us, but certainly the Congress not ever being informed. 

What do you think is broken, or do you think anything is broken? 

Do you think that it’s a special case where, for whatever reasons 

you might want to share with us, that it really should have been 

that way, or do you think something is broken and, if so, what? 

And do you find there is a lack of clear direction relative to the language of the National Security Act? 

Mr. LITT. Whether something is of significant intelligence activity that requires notification and briefing of the committee is obviously—— 

Ms. ESHOO. What is ‘‘significant’’? Would you define that? 

Mr. LITT. It’s always going to involve the exercise of judgment. 

The policy memorandum that was issued in 2006 sets forth some 

criteria for what constitutes a significant action which includes 

such issues as whether there’s a potential loss of life, whether it’s 

going to have an impact on foreign policy decisions, a variety of criteria set forth in there, and some of the individual components of 

the Intelligence Community have their own supplemental memoranda that provide other standards. 

But anything that involves an exercise of judgment always leaves 

open the possibility that different people are going to have different 

judgments. 

It’s my understanding that both Director Blair and Director Panetta indicated that they might have exercised their judgment differently and briefed this matter at an earlier date. 

Ms. ESHOO. It’s not a question of finding out at a much later 

date, and then the parties that have responsibility then weigh in 

and say, ‘‘You know what? If I’d known about that, perhaps my 

judgment would have been different.’’ 

I don’t think that’s the way we should be operating. 

What I’m trying to find out with you—and maybe because you’re 

new and it’s really difficult for you to make a call on this—I mean 

that case says to me something is really broken. Something is really broken. 

Now, you mentioned, you know, that there are policy papers relative to definition for ‘‘significant.’’ I would like to ask that we receive those memorandums so that we can review them and see how 

the determinations are being made based on those memorandums. 

Let me just ask one more question. Do you think that there 

should be one person that’s primarily responsible for ensuring that 

Congress is properly notified of Intelligence Committees? I mean 

obviously there’s the ODNI, there’s NSA, CIA, and then the other 

intelligence agencies. 

Do you think that there should be one from each, or just one that 

is totally responsible for this? 

Mr. LITT. I think that each agency should have a single point of 

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nity are operating in accord with the law, and so it’s part of ODNI’s 

responsibility to do what we’re doing now. 

Ms. ESHOO. So for notification today, how does it work? Does the 

head of each one of those agencies meet with the ODNI, and he’s 

the one responsible; or he makes the call as to who should come 

and notify? 

Mr. LITT. No. Generally speaking, each individual component of 

the Intelligence Community is responsible for its own notifications. 

Ms. ESHOO. And they’re independent of anything else. Nothing is 

coordinated. 

Mr. LITT. In most instances, that’s right. Each agency is responsible for its own. 

Ms. ESHOO. Thank you. 

Chairwoman SCHAKOWSKY. Mr. Miller. 

Mr. MILLER. Mr. Litt, thanks for your commitment and stated 

commitment to Director Blair in keeping this committee fully informed with respect to intelligence activities and information needed to carry out policymaking responsibilities. But given this commitment, why has the administration continued to refuse to provide this committee with information regarding its planning with 

respect to Guantanamo Bay detainees? 

And in your answer, could you please say do you believe that 

Congress should receive information on this planning before or 

after a final decision is made? 

Mr. LITT. Well, I—let me begin by saying that I know that there 

have been—for example, there was a substantial report that was 

provided to this committee recently, going through all of the detainees and the information that we have about each of them. And 

I know the committee is notified, for example, as individuals are 

transferred from Guantanamo abroad. The fact is that the President has announced very publicly his intention to close the facility 

at Guantanamo. 

Mr. MILLER. He did that on the first day he was inaugurated. 

Mr. LITT. That is correct. And I’m confident that when a decision 

is made, that this committee is going to be briefed fully and consulted on it. But I don’t think that an obligation to inform—to keep 

the committee fully and currently informed of all intelligence activities is the same thing as requiring the committee to be kept 

fully and currently informed of all internal executive branch decisions. 

Mr. MILLER. You don’t think that anything in regard to the 

Gitmo detainees, that this committee has any jurisdiction over 

that? 

Mr. LITT. No, that’s not what I’m saying. 

Mr. MILLER. But that’s what the law says. Section 502 of the National Security Act requires the DNI and the heads of departments 

and agencies to furnish the congressional Intelligence Committees 

any information or material concerning intelligence activities, other 

than covert actions, which is within their custody or control. 

Now, Ranking Member Hoekstra has specifically requested information by letter regarding the planning for the relocation of Gitmo 

detainees which affects the collection of intelligence from them, and 

he hasn’t received any response. 


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So how do you square the refusal to provide the information with 

the law? 

Mr. LITT. Well, to the extent we’re talking about the collection 

of intelligence information, that’s obviously not something that I 

can discuss in an open session. But it is true, as I think Chairman 

Reyes noted last week, that the Guantanamo Bay facility is a DOD 

facility, it’s not an Intelligence Community facility. And the decisions on closing it are affecting the DOD facility. I think to the extent that there are significant intelligence activities that are affected, that this committee is entitled to be informed and will be 

informed. 

Mr. MILLER. I sit on the HASC as well. Has that committee been 

informed? 

Mr. LITT. That, I wouldn’t know. 

Mr. MILLER. Okay. I think the answer is ‘‘no.’’ 

Does the ODNI believe that State governments and communities 

should have some access to some appropriate version of intelligence 

information about the background and any potential threat posed 

by Gitmo detainees before they are potentially released to their 

towns? And if not, why doesn’t the ODNI believe that they have 

a right to know? 

Mr. LITT. It’s my understanding that the administration intends 

to work closely with Federal and State and local law enforcement 

officials, once a decision has been made, to ensure that the detainees are held securely and that there is no threat to individuals in 

the area. 

I would note that there are maybe several hundred terrorist-related defendants currently held in U.S. prisons without any of 

them ever having escaped. But it’s my understanding that there, 

in fact, is an intention to work with State and local law enforcement on the matter you raised. 

Mr. MILLER. Why do we keep State secrets? 

Mr. LITT. We keep State secrets because there are often matters 

where the protection of national security is paramount, where 

there could be significant danger to the Nation’s interest if certain 

information came out. 

Mr. MILLER. Do you concur with Mr. Schwartz of the Church 

Commission’s statement in regards to sharing, widely outside the 

Intelligence Community, information? 

Mr. LITT. I’m not sure what his statement is. I do know that this 

administration and, in fact, both administrations and the Congress 

since 9/11 have made efforts to ensure that information is shared 

more widely, as necessary to protect our Nation. 

I think that one of the things we learned was if there is too much 

stovepiping of information, it can end up damaging national security. So it’s important to try to share information as broadly and 

easily as you can, consistent with the needs of protecting national 

security information. 

Mr. MILLER. Do you think this is a true statement? CIA lies all 

the time to Congress. 

Mr. LITT. No. 

Mr. MILLER. Thank you. 

Chairwoman SCHAKOWSKY. Mrs. Myrick. 

Mrs. MYRICK. Thank you. 


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I grew up in a generation of ‘‘what is your need to know.’’ And 

so just following up on Mr. Miller’s questions about State secrets 

being secret, one of the concerns that I have is very recently there 

were press reports that said Ranking Member Bond over in the 

Senate Intelligence Committee was concerned about the leaks and 

things that had happened that you read about in the press, which 

we read about in the press before we know about it here in the 

committee. And it just really—that concerns me greatly and has. 

I’m new to the committee, so this is new to me. But the bottom 

line of it is how does that affect the administration, executive 

branch’s willingness to share information, sensitive information, 

and what can be done about that and where is it coming from? 

Where do the leaks come from, this kind of thing. Because those 

of us in the committee aren’t talking to any press that I know of. 

Mr. LITT. Well, I share your frustration. I know Director Blair 

does as well. He has made very clear that he wants to find ways 

to deal with the leaks; that they are, in fact, very damaging to national security, and frequently in very specific and identifiable 

ways. A leak comes out and you can see that as a result of that 

leak, a foreign nation or target changes behavior. And this is really 

something that’s of great concern to him. And he has asked me, as 

general counsel, and others within the ODNI, to work with the 

other elements of the Intelligence Community and the Department 

of Justice to try to find ways to tighten up, to see if it’s possible 

to more easily identify leakers—which frequently is a tremendous 

challenge—and to prevent these leaks from happening, or punish 

them when they do. 

Mrs. MYRICK. What is the punishment if they do? 

Mr. LITT. There’s a variety of criminal statutes. I don’t have the 

penalties in front me. 

Mrs. MYRICK. Do they lose their job or do they just get slapped 

on the hand? 

Mr. LITT. It can range from a slap on the hand, for something 

that merits a slap on the hand, through loss of job, through criminal prosecution and incarceration. 

Mrs. MYRICK. When Mr. Miller asked the question about State 

and local officials being notified of detainees from Guantanamo 

coming into their area, I maybe wasn’t listening closely. But did 

you say they would be notified after the decision had been made 

to place them there? They wouldn’t be in any way included beforehand to know that was going to happen? 

Mr. LITT. I don’t think that any final decision has been made yet 

on how and when people are going to be notified. I do know they 

are going to be appropriately consulted on the process to ensure 

there is no risk to national security or to local security from bringing people wherever—— 

Mrs. MYRICK. But you don’t know when in time that would take 

place? 

Mr. LITT. I don’t know that that decision has been made yet, 

ma’am. 

Mrs. MYRICK. And one of the other concerns are yes, there are 

people kept in State prisons, et cetera, all the time. But these 

aren’t your normal prisoners. And then my concern is, again, what 

happens to them after that? 


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I know this is going a little beyond what we’re talking about 

here, but when he asked the question, it just brought it back to 

mind again. 

Mr. LITT. Well, we do have some experience in holding people 

who aren’t normal prisoners as well. We hold people, like the blind 

sheik, and people like that. And I think the Bureau of Prisons is 

reasonably well set up in the super-max facilities and with the use 

of Special Administrative Measures. So I don’t think that there is 

any intention or any expectation on the part of the administration 

that they will take any steps that will endanger people in this 

country at all. 

Mrs. MYRICK. I appreciate that. 

Thank you, Madam Chair. 

Chairwoman SCHAKOWSKY. Thank you. 

Mr. SCHIFF. 

Mr. SCHIFF. I want to follow up on the last series of questions 

just to clarify them for the purposes of today’s hearing. 

The decision where to detain a Guantanamo detainee is a very 

important one, but it’s not necessarily per se an intelligence-related 

activity, correct? It may be a decision about incarceration or incapacitation, but not necessarily intelligence activity for the purposes 

of the sections we’re talking about today, correct? 

Mr. LITT. Yes. That is correct, sir. 

Mr. SCHIFF. I wanted to talk to you about the language of significant anticipated intelligence activity. 

Is there any indication from your research on this issue and how 

the various agencies within the Intelligence Community have dealt 

with this language, that any of the community has viewed that 

statutory requirement of reporting or notification on significant anticipated intelligence activities as somehow legislative surplusage, 

that it was superfluous; that the other language in the statute is 

actionable, but there was really no obligation to inform Congress 

of things that were only anticipated? 

Have you found any indication that any parts of the Intelligence 

Community have used that as their modus operandi? 

Mr. LITT. No, not at all. Quite the contrary. The policies make 

clear that anticipated intelligence activities need to be notified and 

briefed as well. 

Mr. SCHIFF. So as far as you know within the CIA and other 

agencies, there has always been an understanding in the Legal 

Counsel’s Office and in terms of the mechanism they have to report 

to Congress, that they are required to report anticipated intelligence activities as well as ongoing ones. 

Mr. LITT. So far as I know, that is correct. 

Mr. SCHIFF. And how do you interpret the term ‘‘anticipated’’? 

You wouldn’t conclude, would you, that something has to be operational before you are required to notify Congress about an anticipated significant intelligence activity, would you? 

Mr. LITT. I think that some of the controversy there about the 

use of the term ‘‘operational’’ with reference to the specific matter 

that was briefed at the end of June, you have to consider what 

‘‘operational’’ is opposed to. And I think the term ‘‘operational’’ 

there was used to differentiate it from something that’s just in 


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planning or not even at the stage of planning, but it’s a concept 

that people are working on. 

I think that anticipated—the term ‘‘anticipated’’ involves some 

level of definiteness that goes beyond merely, you know, we’re looking at a bunch of options and this is one possibility we’re considering. There has to be some level of commitment that this is going 

to happen before it rises to the level of something that’s ‘‘anticipated’’ as opposed to possible or theoretical. 

And I think the use of the term ‘‘operational’’ was meant to convey that concept that there is not an obligation—by the use of the 

term ‘‘anticipated’’ in the statute, that there’s not an obligation to 

brief every time somebody at the agency comes up with an idea, 

every time even that they explore the idea to some extent. It’s 

when it actually becomes an anticipated operation. 

Now having said that, as I said, I think both Director Blair and 

Director Panetta have said that with respect to that particular operation, they might have exercised their judgment differently. But 

there’s a difference between a mere possibility or a theory on the 

one hand and something that’s actually anticipated on the other. 

Mr. SCHIFF. You would agree, though, that if there are significant expenditures made in support of an intelligence activity, even 

if it’s not operational yet, even if there hasn’t been a decision made 

to necessarily go forward with the ultimate object, if you’re expending a significant amount of money on it, that would trigger the anticipated significant intelligence reporting requirement, wouldn’t it? 

Mr. LITT. I would think it would. Part of the oversight involves 

oversight of how funds are spent. 

Mr. SCHIFF. And if your risk of exposure of a potential operation 

via arrest or some other means, that would certainly trigger the requirement, wouldn’t it? 

Mr. LITT. I think that the policy memorandum talks about risk 

of exposure as one possibility. But you have to consider not only 

the degree of risk of exposure but the consequences of the exposure 

as well. But, yes, that certainly is a factor that would play in. 

Mr. SCHIFF. So what we’re talking about, then, if you’re sitting 

in a room ruminating about several potential directions you could 

go in, several potential operations, that might not trigger the requirement. But when you start taking steps, very concrete steps to 

determine whether you should go forward, even though the decision hasn’t been made yet, you can still trigger the anticipated significant intelligence activity reporting requirement, right? 

Mr. LITT. You could. It would depend upon the significant steps 

you’re talking about, yes. 

Mr. SCHIFF. Thank you. I yield back. 

Chairwoman SCHAKOWSKY. Mr. Thornberry. 

Mr. THORNBERRY. I appreciate you being here, Mr. Litt, and attempting to answer questions on a classified program in an unclassified way. It makes it pretty hard to have a real discussion about 

what is or is not broken, what should or should not be briefed, and 

where that threshold is. 

But it brings to my mind kind of the other half of the story that 

we don’t talk about as much, and that is the responsibility of Congress in these briefings to fulfill our role in a responsible sort of 

way. 


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We have had instances in recent years where programs have 

been briefed, and yet only when they become leaked in public do 

Members come out and say, Oh, I never knew that or I didn’t—I 

wasn’t for that, or so forth. 

So let me ask you. You talked about the process and the procedures. Has some attempt been made to go back and reconstruct 

who was in briefings and what was briefed and so forth, it’s been 

fairly confusing. Sometimes administration records don’t jibe exactly with the committee’s records. 

So since you’ve been there, are there written records of who is 

briefed on what and any concerns that they raise in those briefings? 

Mr. LITT. I think that throughout the various agencies, there are 

records of that that have a greater or lesser degree of formality and 

detail. I don’t think there is a consistent rule across the entire Intelligence Community for that. 

Mr. THORNBERRY. Do you think there should? 

Mr. LITT. I think it’s definitely something that should be considered, whether there ought to be more formality to that process. 

Mr. THORNBERRY. Would it be a good idea for the committee to 

keep better records of who was in what briefing and to see whether 

the committee’s records and the administration’s records jibe as far 

as who was briefed on what, how many times, and on what program? 

Mr. LITT. As a member of the executive branch, I would not presume to give advice to the Congress on what rules and procedures 

it should adopt, sir. 

Mr. THORNBERRY. Let me go back to the beginning in my mind 

a bit. 

The general proposition in section 501 is that the administration 

should keep Congress fully and currently informed. In your mind, 

are there any constitutional limits on the President from doing so? 

Mr. LITT. I think that this area is one of those where you have 

two constitutional authorities bumping up against one another. 

You have the Congress’ constitutional authority to exercise oversight and you have the President’s constitutional authority to protect national security information. 

And I think that the statute recognizes the President’s constitutional authority in this area explicitly in section 503. So I’m not 

sure I would categorize it as a constitutional limit. I would say that 

there are executive branch prerogatives that are affected here by 

the notification process. 

Mr. THORNBERRY. I’m trying to understand, as we talk about the 

way this works, what’s the difference between an executive prerogative and a constitutional power or authority that the President 

needs to protect. And let me get into one specific. 

In the statement of administration policy on the House authorization bill, it says the administration strongly objects to the provision, as Mr. Miller noted, in the House bill. 

Now, is that because it doesn’t work, or are there constitutional 

objections, or exactly what are your objections to what’s in the 

House bill now? 

Mr. LITT. I’m not going to purport to list all of the objections, because I’m not sure I could do that right now. I could give you one 


sroberts on DSK3CLS3C1PROD with HEARING
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example which is, for example, that the House bill required extensive disclosure of deliberative and legal advice within the executive 

branch. And I believe that it is the opinion of the administration 

that that requirement does trench on executive prerogatives that 

are accorded to the President. 

That’s one example. 

Mr. THORNBERRY. If I agree with you on that, is there—if there’s 

a presumption that the administration will share all intelligence 

collection and covert action information with Congress, does that 

cause you constitutional concerns? 

Mr. LITT. I’m not enough of a scholar on the exact limits of constitutional authority. We have OLC at the Department of Justice 

that is sort of the institutional repository of that. 

I would think that a requirement that everything be shared 

would probably arouse their opposition as something that would 

trench on constitutional concerns. 

Fundamentally, I think that this process, like many of those 

where the constitutional powers are in tension, this process is one 

that has to be worked out by cooperation between the two 

branches, and working out ways of ensuring that Congress gets the 

information it needs while ensuring that the President retains the 

ability to protect national security when it’s required. 

Chairwoman SCHAKOWSKY. Mr. Holt. 

Mr. HOLT. Thank you, Madam Chair. Thank you, Mr. Litt, for 

coming. 

I would like to explore several different points. I understand you 

to say that there have been no Gang of Eight-level briefings under 

this administration; is that correct? 

Mr. LITT. I don’t know. I don’t know what happened before I 

started. And since June, I can say that I am personally not aware 

of any. It’s conceivable that one happened and I wasn’t aware of 

it. That’s all I can say. 

Mr. HOLT. Let me make sure that I have your title correct. 

As the general counsel of the Office of the Director of National 

Intelligence, would there be—or under what circumstance could 

there be the so-called Gang of Eight, the restricted briefings, restricted only to eight members of the House and Senate, without 

your knowledge? 

Mr. LITT. Well, as I said earlier, I would hope that the Director 

would consult his legal counsel. I suppose that there might be a 

program that is so compartmented that they felt they did not want 

to bring the Office of General Counsel into it. My hope and expectation would be that that would not happen, that they would seek 

my legal advice. 

Mr. HOLT. Do you think in any of the subunits of the Central Intelligence Agency, or others, that there might be restricted briefings that the Director of National Intelligence would not be aware 

of? 

Mr. LITT. That should not happen. 

Mr. HOLT. Now, I know in the October memo from the Director 

of National Intelligence, it’s titled ‘‘A Follow-Up to Reporting Intelligence Matters to Congress,’’ he refers to the obligation to keep 

Congress fully and currently informed, lays out some recommendations for establishing and writing the obligation and ensuring that 


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personnel understand the duty and so forth. He finishes by saying, 

‘‘I strongly encourage you to compare your current procedures to 

those outlined above.’’ 

Mr. HOLT. That struck me as odd phrasing for the Director of 

National Intelligence. I encourage you to compare your current procedures. Do we need some attention to the legislation, or should the 

Director of National Intelligence be in the position to suggest to 

other agency heads this and that and the other thing. 

Mr. LITT. I think that the DNI does have more power than just 

to suggest. I think that the DNI does have the power to set policy 

for the Intelligence Community. And there’s an ICD process for 

doing that that involves consultation throughout the community. I 

think that before that is done, I think it was probably the appropriate judgment to say let’s see if the members of the Intelligence 

Community can do this on their own, without having to instruct 

them or order them to do it. I am hopeful that they will do that. 

Mr. HOLT. So you are not, as a member of the Office of the DNI, 

you are not suggesting that there needs to be different authority. 

Mr. LITT. In my view, there would be authority for the Director 

to issue policy in this area. 

Mr. HOLT. Now, let me ask your and the Director’s interpretation 

of the wording of the obligation to keep Congress fully and currently informed. In many cases that has, in practice, a rather perfunctory meaning. In fact, the language that is used within the Intelligence Community is ‘‘congressional notification.’’ It doesn’t say 

anything about fully and currently informing. I actually see a difference in meaning, but I wanted to ask whether you and the Director and the O/DNI Office think of this as informing or notifying 

or briefing or consulting. What is the obligation? 

Mr. LITT. Well, I think that with respect to the obligation to keep 

the committees fully and currently informed, that the obligation 

needs to be measured by the purposes for which the information is 

being provided. And by that I mean we have an obligation to get 

you the information that you need to provide oversight. And the 

scope of what we provide you needs to be adequate to permit you 

to provide oversight of the Intelligence Community. And that 

should be the measure of the obligation to inform. 

Mr. HOLT. It is more than to perfunctorily check off on a list that 

some words have been sent to Congress. 

Mr. LITT. I think in many cases it would be more than that, yes. 

Mr. HOLT. In what cases would it be only that. 

Mr. LITT. Well, if you are being notified that a new facility is 

being opened at a cost of X million dollars, which is something that 

might constitute an activity that requires notification, it might be 

that simply sending you a written notification of that would suffice 

in that instance. I could conceive of other instances where simple 

written notification would suffice. 

But again, as I said earlier, both Director Blair and I view this 

as a partnership, and we do have an obligation as well to provide 

additional information if a member or the committee feels that the 

notification is inadequate and wants more information. This needs 

to be a two-way street. We need to be responsive to further requests for information as well. 

Mr. HOLT. Thank you, Madam Chairs. 


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Chairwoman SCHAKOWSKY. Thank you Mr. Holt. Mr. Conaway. 

Mr. CONAWAY. Thank you Madam Chairman. 

Robert, welcome. In your testimony, while I appreciate 800 briefings and 500 written notifications and all that other kind of stuff, 

I am not persuaded that volume equates to quality. On the review 

of the compliance, or the review that was asked to be done that has 

just been finished that came up with the suggestion that the community look at the best practices, did the review find any exceptions to the policy where it wasn’t being followed? Can you talk to 

us about things that didn’t—or that wasn’t working? 

Mr. LITT. We didn’t find anything systemic. I think that when 

some of the agencies went back and looked at their records, they 

found a couple of matters where they had determined not to brief, 

and they relooked at it and decided it probably ought to be briefed. 

But those were few isolated issues. We didn’t find any systemic 

issues. 

Mr. CONAWAY. DNI has got its 2005–100–3, the CIA has got AR– 

72, the NSA has got Policy 1–33. In your written testimony you 

make some reference to not being in favor of a blanket policy where 

everybody is agreeing off the same phraseology, the same words. 

Do you want to expand on that a little bit why the DNI wouldn’t 

bring all those folks together, let’s have one policy that is written 

out. Again, you are going to have judgments as to what all that 

stuff means, but if you are hiding behind the differences between 

subtle changes in wording between 2005–100–3 and AR–72 as to 

confusion there, why wouldn’t a broader blanket that says it is one 

for everybody. 

Mr. LITT. I actually think that the way you articulate it is–the 

way I understand it is, which is that the DNI’s ICPM 2005–100– 

3 does apply across the Intelligence Community. The definitions in 

there are adhered to, according to my understanding, by every element of the community. 

Mr. CONAWAY. And they are the exact definitions that are used 

in AR–72 and Policy 1–33? Why wouldn’t those have been withdrawn so that it is clear CIA understands it, NSA understands it? 

And the follow-up question: Does NRO and NGA, all these other 

ones, have their own equivalent to AR–72 and Policy 1–33? 

Mr. LITT. Not all of the agencies have their own individual policies. But I think that CIA and NSA, for example, their policies go 

beyond the general level of what the DNI’s memorandum says and 

provide more specifics and also set out their specific procedures. 

Mr. CONAWAY. So the conflicts between the two would be resolved with the ODNI’s policy. 

Mr. LITT. That is right. The ODNI’s policy trumps to the extent 

it applies, yes, sir. 

Mr. CONAWAY. Looking for this one point of contact of having 

only one person responsible other than the Director of whatever, 

you mentioned Leg Affairs. Is the Leg Affairs team—they know everything that is going on in the agency—are they going to be the 

most informed group of everything that is happening? If they are 

the ones going to be held responsible for congressional notification, 

have they cleared the site? Does one of those folks sit with Leon 

Panetta at CIA all the time? If I am going to be held responsible 

for something as important as this, then does the Leg Affairs team 


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across the community, are they in on every single height—you 

know, sensitive meeting. 

Mr. LITT. No, that is obviously not the case. Although it is my 

understanding, for example, in the CIA they have Leg Affairs people who are assigned to each of the directorates to work with them. 

But saying that the Leg Affairs people are responsible for the notifications doesn’t absolve the head of the agency of his or her responsibility as well. 

Mr. CONAWAY. So it really should be the head of the agency’s 

focus and not the Leg Affairs. 

Mr. LITT. Well, the head of the agency has a lot of things to focus 

on. 

Mr. CONAWAY. I understand. 

Mr. LITT. One of the things that the DNI mentioned in the more 

recent memo was that the head of the agency on a periodic basis 

ought to sit down with all of his or her top people and canvas them 

and direct them to go back to their people, so that there is that 

kind of responsibility as well. 

Mr. CONAWAY. Was the DNI’s—and something Rush Holt 

brought up, a suggestion that they review. Shouldn’t there be more 

teeth in his statement, or is there an implied teeth in his statement that I am going to circle back in some fixed period of time 

to see that you have done the review for this best practice implementation, and if you haven’t implemented the best practices that 

the group thought, you need to have good reason as to why it 

doesn’t work in your agency? Is that implied or had it been stated? 

Mr. LITT. I think it is implicit that the DNI is going—— 

Mr. CONAWAY. Okay. We will look forward to at some point in 

time having that conversation with Dennis as to how he did in fact 

circle back against his own best practices to make sure that they 

are implemented. 

Thank you, Ms. Chairman, I yield back. 

Chairwoman SCHAKOWSKY. Thank you. If we could do another 

brief round and then go into closed session for those who want to 

ask any more questions. I wanted to just say that the reason that 

I think you are hearing on a bipartisan basis the need to be fully 

informed is that time after time we are learning from the television 

or newspapers about something that we were not briefed on; then 

someone comes in, the head of an agency, and does a mea culpa, 

it was really my responsibility. 

And so I want to get back to the issue that I raise and Mr. 

Conaway raised also. My concern is that if this is not a central part 

up front, not later. I don’t want to hear any more mea culpas, but 

that someone is assigned and that at every desk people know who 

that person is so that they can be contacted. I am fearful that it 

will never happen. That in fact what will happen is what we have 

heard, that there was a breakdown—I mean that word has been 

used before—that there was a breakdown somehow in communications. 

And so—and Mr. Holt also was talking about, I think this is not 

an area where there can be any fuzziness, where people have to 

know what the procedure is, who is in charge. And, yes, of course 

that head of a division, of an agency, finally the DNI himself is responsible. 


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So I think what some of us are looking for is what is the clarity 

in this process; what are the penalties for diverting from that; if 

there is a breakdown, what happens; and do you feel that we are 

moving in that direction? 

Mr. LITT. Well, I think early on in your question you put your 

finger on what I think the most important solution to this issue is, 

and that is getting it down to the desk level and getting everybody 

in the agency to treat this as a part of their responsibilities. 

And I know in preparation for this hearing I talked with some 

of the other agencies about what kind of training they do. And as 

you might expect, it varies somewhat across an agency. But, for example, CIA has training modules for everybody where they instruct 

them in congressional notification and they have a brochure on 

their Web page. 

Chairwoman SCHAKOWSKY. But where does the buck stop? Mr. 

Conaway raised the question about Leg Affairs. Well, if Leg Affairs 

is not him or herself informed of what is going on, how do we make 

sure that the breakdown doesn’t occur there. 

Mr. LITT. Ultimately, as I said, if you have an agency with thousands of people out there, the only way you can—no matter who 

the individual person who is responsible is—and as I said, the DNI 

has indicated that he thinks there should be one person responsible 

in each component of the community—but no matter who that person is, if the rest of the agency doesn’t have in mind at all times: 

‘‘Is this something that needs to be notified? If I have any doubt 

let me call this point of contact and discuss it with them, and if 

it is compartmented so that I don’t know if I can talk about it with 

this person, let me raise it with my supervisor and let’s talk about 

it.’’ If you don’t have that kind of culture, no kind of process that 

you set up is going to make this work. It has to be something that 

the people in the agency understand is A, part of their job and B, 

ultimately for their benefit and the benefit of their agency. 

Chairwoman SCHAKOWSKY. Well, then I would suggest that what 

Mr. Holt raised, this idea of encouraging is not sufficient for culture change; that there needs to be much stronger language and 

much stronger policies that follow, that just encourage people to review their policies. 

Mr. LITT. I can only tell you, Madam Chairwoman, that in the 

course of getting ready for this hearing, and the discussions I have 

had with the other agencies, it is my sense that they do recognize 

that there need to be additional steps taken, and they are working 

on beefing up their training programs, making their processes 

clearer and so on. And I am certainly hopeful that that, plus the 

commitment from the top, which people like Director Blair and Director Panetta have expressed, that that will help change the culture. 

Chairwoman SCHAKOWSKY. Thank you. Ms. Eshoo. 

Ms. ESHOO. Thank you. I have an appreciation for training programs and people at the variety of desks being in the loop and updating them on responsibilities and such. But I have to say that 

I think that what the committee is looking at goes far beyond that. 

I think what you are talking about, and Band-Aids are important 

when you have scratches so that you don’t, you know, bump what 


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27 

is sore or what you might have cut, but I think that this is far beyond that, I really do. 

We are looking at the language in the National Security Act. 

Does it provide the direction that the Intelligence Community 

needs in order to meet the obligations that both the executive 

branch and the legislative branch have? 

Now, I mean you said earlier that both the—that the DNI and 

the CIA Director might have rendered different judgments, and yet 

there is for the CIA a regulation that came out in March of 1996 

that is absolutely clear about reporting of intelligence activities to 

Congress. So it is not a matter of what someone feels like doing or 

going through multiple choice, it is set forward. And yet we are 

still experiencing things that should not be the way they are. 

I am not looking for the Congress, Mr. Litt, to have more power 

than the executive branch or vice versa. But when there is not, 

when it is not equal there is a problem, there really is a problem. 

And I think that just even looking at this regulation in all of our 

three-ring binders here, I don’t see how the 2001 to 2009 incident 

could have taken place given what is in the statute. 

On the accountability for intelligence activities and general congressional oversight provisions, you made mention earlier about 

the President having the responsibility for national security and 

that the Intelligence Committees have responsibility for oversight. 

But nowhere in this Title V does it say anywhere that the withholding of information to the Congress in any way, shape, or form 

is okay. 

And I think that for you to best understand at least where I am 

coming from is what I am so concerned about, and it is based on 

the experience that we have had, is because there is a lack of clarity, various interpretations of these terms, then bring about requirements on the part of the executive branch, that we are getting 

into multiple choice. Well, it was this, but it wasn’t that. So we 

have an obligation to report this, but we don’t have an obligation 

to report that. 

And I do think that there is a huge difference between notification and informing. If someone is informed, then there is a discussion. That is how information is shared. It is not a drive-by briefing 

where some information is just dropped off, and there is sloppy at 

best—and then it goes downhill from there—recordkeeping both on 

the part of the Congress and the executive branch. 

So I think that we have some real work to do on this. And while 

I appreciate your view about people being trained and people at 

desk jobs and whatever, I have had many desk jobs in my life so 

I am not diminishing the importance of those individuals, but I 

think that this is really at a higher level. And I don’t know what 

actions have ever been taken relative to violations. 

And the National Security Act doesn’t have any penalties in it. 

We know if something has gone wrong, but there aren’t any penalties. And I don’t know who has exercised any when something 

hasn’t gone right. 

In my first round of questions I asked for the memorandums that 

are being used for guidance. Are the standards the same across the 

IC in all of that? 

Mr. LITT. Generally—— 


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Ms. ESHOO. Or is it up to each agency to come up with whatever 

it is they come up with? 

Mr. LITT. Generally speaking, the Intelligence Committee Policy 

Memorandum issued by the DNI applies across the Intelligence 

Community. 

Ms. ESHOO. You said ‘‘generally.’’ Are there exceptions? 

Mr. LITT. No. 

Ms. ESHOO. So the standards are all the same, and the same 

memorandum applies to all agencies. 

Mr. LITT. As I said, at that level of generality, that memorandum 

applies across all agencies. Agencies are free to develop their own 

standards consistent with that memorandum if they think it is necessary to give more specific guidance to their community in their 

individual case, but they all have to be consistent. 

Ms. ESHOO. And this is all relative to informing Congress. 

Mr. LITT. Yes. 

Ms. ESHOO. Well, I think that we need to see all of that. I think 

we need to see what the interpretations are. 

Thank you, Madam Chair. And I am prepared to go to the closed 

session to deal with whatever needs to be dealt with there, but I 

appreciate the extra round. 

Chairwoman SCHAKOWSKY. Mr. Miller. 

Mr. MILLER. Mr. Litt, you said earlier that you were from the executive branch and you would not attempt to tell Congress how to 

do its job, and we appreciate that. Article I, Section 5, Clause 2 of 

the Constitution gives Congress the power to determine the rules 

of its proceedings. In your view does the rulemaking clause give 

Congress the authority to determine how to share classified information with and between its Members? And if not, on what basis 

and to what extent do you believe the President’s powers circumscribe the explicit constitutional authority? 

Mr. LITT. I am getting a little bit out of my comfort zone here 

on the legal interpretation, but I think my view on this is that this 

is one of those areas where each branch has the right to exercise 

its own powers, which is to say that—and the problem with that 

approach is that that frequently leads to collisions. 

So that, for example, if the Congress—and this is a purely hypothetical example—if the Congress imposed a rule that said you can 

do a limited briefing but we retain the right to tell everybody else 

in the membership or everybody else on the committee about it, 

and the Executive didn’t like that, the Executive might say, well, 

then okay, we are going to exercise our constitutional power to protect national security information and we are not going to brief 

you. At which point, the Congress might exercise its constitutional 

power of the purse and say, well, we are not going to fund these 

activities. And that is not a productive approach to governance, in 

my view. And that is why I said earlier, I think in response to Mr. 

Thornberry’s question, that these are the sorts of things that need 

to be worked out by a process of accommodation and compromise 

between the branches. 

Mr. MILLER. And I agree. I think given this respect, Congress 

and the executive branch need to work together to set out the 

framework for notification. What role does the President have in 

the process to determining what, if anything, should be briefed? 


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Mr. LITT. Ultimately the President is responsible for all of the 

national security apparatus. I think to a great extent that is delegated downward. I would be surprised if the President himself personally participates in a lot of these decisions. But ultimately it is 

his responsibility. 

Mr. MILLER. Notification to Congress is, as a practical matter, 

carried out with a degree of latitude—and we have just established 

that—and as a result of consultation and cooperation between the 

branches on how to handle sensitive matters. Do you think it helps 

such consultation and cooperation when Members of Congress say 

that the CIA lies all the time? 

Mr. LITT. I would hope that everybody would approach the consultation and notification process in the spirit of cooperation. 

Mr. MILLER. In a follow-up question to Mr. Schiff’s earlier round 

of questions as to what would trigger a notification, and I think everybody was trying to go down the route of when something is 

funded, and I think there was a comment ‘‘significant amount of 

dollars.’’ Can you explain what ‘‘significant’’ amount of money is? 

Mr. LITT. Well, that—I think your question, sir, highlights why 

I keep saying this is a matter of judgment. Because obviously a significant amount of money, there is no algorithm that you can plug 

in to determine what is significant. And what is a significant 

amount of money may differ depending upon what agency you are 

talking about. What is a significant amount of money for the National Reconnaissance Office may be different than what is a significant amount of money for the intelligence component of the Department of Energy or the State Department. So I don’t think you 

can quantify that with any number that would be meaningful 

across the entire Intelligence Community. 

Mr. MILLER. And I don’t think you can either, and I think that 

is why we are having the discussion that we are having today. 

One final question. Other than the CIA inspector general’s report 

on the Peru shootdown, are you aware of any substantiated instance in which it has been established that Congress was deliberately provided with false information with respect to intelligence 

activities? And other than the CIA inspector general’s report on the 

Peru shootdown, are you aware of any substantiated finding that 

the Intelligence Community systemically misleads or has misled 

Congress? 

Mr. LITT. I am not aware of any such finding. 

Ms. ESHOO. Madam Chairwoman, may I just do a quick followup? You are not aware because you are new? You are not aware 

because you haven’t done the research? You are just not aware, 

why? 

Mr. LITT. Well, I consider myself, even though I am new on the 

job, to be reasonably informed. 

Ms. ESHOO. Exactly. 

Mr. LITT. And I am not aware—as Ranking Member Miller put 

the question, I am not aware of anything that meets the specification of his question. 

Ms. ESHOO. Because you are new. 

Mr. LITT. No. I mean I suppose there is something out there, 

some inspector general’s report out there. But in preparation for 

this hearing, I asked about what sorts of reviews of congressional 


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notification processes have been conducted. And assuming that I 

was provided accurate information, I am not aware of anything. 

Ms. ESHOO. Thank you. 

Chairwoman SCHAKOWSKY. Mrs. Myrick. 

Mrs. MYRICK. Thank you. I wanted to follow up what I was asking before about the leaking of classified information and people 

being prosecuted. And I know you have to get back to me on this, 

but I would appreciate very much if you would let me know when 

was the last time someone was prosecuted for leaking classified information. And then was it a guilty plea, or did someone just throw 

in the towel, or did the defendant fight it? 

If you could let me know that, I would appreciate it very much. 

Thank you, Madam Chair. 

Chairwoman SCHAKOWSKY. If you could inform the whole committee of that. 

Mr. LITT. Of course. 

Chairwoman SCHAKOWSKY. Mr. Holt. 

Mr. HOLT. Thank you, Madam Chair. Just a very brief preamble. 

You should want this, everyone in the Intelligence Community 

should want the fullest possible consultation with Congress. These 

are serious matters. We want to get the best intelligence results, 

we want to avoid horrific mistakes. Historically over the decades, 

there have been horrific mistakes that have cost lives, cost national 

reputation, have diminished national security. So I would urge 

every leader in the Intelligence Community to actively seek this 

consultation, not perfunctory notification. 

Mr. LITT. And if I could just—— 

Mr. HOLT. And recognizing, if I may finish and then I’ll turn to 

you for a comment. You know, by oath and by the Constitution, although we are not Commander in Chief, we have an equal responsibility to provide for the common defense. And so if it comes to a 

push and a tug about how fully Congress will be informed, I think 

we stand on pretty—pretty solid constitutional grounds. 

Let me ask one specific question, and then if you could answer 

that question and then comment as you might on my comments. 

Has the Director undertaken a review of previous Gang of Eight 

briefings, previous restricted briefings from the preceding administration, revisited those to see if any of them now no longer need 

to be restricted? Has that review taken place? If not, is that review 

about to take place? 

Mr. LITT. It hasn’t taken place that I am aware of, and I am not 

aware of any plans to do it. In response to your broader comments 

at the beginning, I can only say that—— 

Mr. HOLT. Let me just jump in there. In keeping with my earlier 

comment, I would urge the Director most strongly to undertake 

such a review. Maybe it is a null set. Possibly there is nothing out 

there that hasn’t been fully briefed. If there is, he certainly should 

be looking at it. 

Yes, sir, go ahead, please. 

Mr. LITT. I was just going to say that I understand that Director 

Blair shares your views of the importance of the oversight process 

and a full consultation with Congress and, frankly, the value to the 

Intelligence Community of having Congress involved. I know he 

shares that and I know he is trying to make it happen. 


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Madam Chair, something that Mr. Holt just said refreshed my 

recollection on something. I am aware of one instance where there 

has been a limited briefing since I have been involved here. There 

was one. And in fact the Office of the General Counsel was consulted on it. 

Mr. HOLT. Thank you, Madam Chair. 

Chairwoman SCHAKOWSKY. Mr. Thornberry. 

Mr. THORNBERRY. Thank you. Mr. Litt, do you believe that the 

National Security Act of 1947 and those provisions we are talking 

about, 501, 2 and 3, need to be clarified to make a clearer standard 

that an administration and a Congress both have to live up to? 

Mr. LITT. I think that it is not—that it is an unrealistic expectation to think that we could create any standard that would not ultimately devolve to the exercise of judgment. 

Mr. THORNBERRY. And I am not disagreeing with that. There will 

be judgment. But I guess if I could ask you, do you think the statute itself needs to be clarified to help the exercises of judgment and 

to make it clearer about where the responsibility lies and so forth. 

Mr. LITT. I think that in my view the better approach, as I said, 

is in refocusing the Intelligence Community on the importance of 

complying with the statute as it is currently written. 

Mr. THORNBERRY. Now, if you read the statute, it provides for 

Gang of Eight limited notification procedures for covert action. It 

does not on other intelligence collection activities. And yet that 

happens sometimes. But if you read the statute it shouldn’t. Do you 

agree? 

Mr. LITT. Well, I think that the executive branch reads the preamble language of Section 502 which refers ‘‘to the extent consistent with the protection of sensitive intelligence sources and 

methods’’ as providing some ability to the Intelligence Community, 

not on whether to inform the committees but on how the committees are to be informed, and that a practice has grown up that has 

been more or less tolerated by both sides of more limited briefings 

on unusual occasions. That is, obviously, the exception rather than 

the norm. 

Mr. THORNBERRY. That is helpful to me. So there is that provision that says to the extent necessary to protect sources or methods 

or whatever. And so your view is that that provides a greater discretion for any Executive about whether to brief and to whom to 

brief all intelligence activities. 

Mr. LITT. As I said, I think that the—our view is that it doesn’t 

provide discretion on whether to brief, it provides discretion on perhaps how to brief and who to brief. But that if something rises to 

the level of a significant intelligence activity, it ought to be briefed. 

Mr. THORNBERRY. Well, I would just say a year ago, there was 

some bipartisan agreement of a change in the statute that would 

essentially put the presumption on any administration to fully brief 

Congress. And if there was, if any administration felt there was a 

need to limit who got briefed, it would be this matter of consultation back and forth with basically the decision resting between the 

Chair and the Ranking Member of the full committee on whether 

it would be limited to fewer Members of Congress or whether the 

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vide some clarification to me about—in going forward, rather than 

this different structure setup under 502 and 503. 

I hope someday we can get back to kind of looking at this in a 

simpler, easier way on a bipartisan basis. And obviously one 

needs—any Congress would need to work with your office, the administration, to make that happen. 

So I appreciate you being here and yield back. 

Chairwoman SCHAKOWSKY. Mr. Conaway. 

Mr. CONAWAY. Thank you, Madam Chairman. You mentioned the 

blind sheikh. I got great confidence in the Bureau of Prisons that 

wherever we hold these guys, whether in Guantanamo Bay or 

somewhere else, that none of them are going to escape. But wasn’t 

the sheikh’s lawyer convicted of material support for a terrorist organization by helping the sheikh run the organization from prison? 

Can you talk to us about that case? And also how does that impact 

bringing Guantanamo Bay detainees to the United States where 

they may in fact have a broader opportunity for visitors and other 

access that they currently don’t have in Guantanamo Bay? 

Mr. LITT. My knowledge of that case is derived from reading 

newspaper reports and the case reports of it, so I don’t have any— 

I can’t give you any more detailed information than that. 

It is my understanding that his lawyer was convicted of essentially passing coded messages. It is also my impression from reading the case—and I will tell you this is only my impression, I don’t 

have any inside information on this—but it is my impression that 

the monitoring systems that were in place picked up these conversations and enabled the prosecution in a manner that was sufficient so that if there had been any genuine risk to national security, it could have been taken care of. 

Now as I said, that is just my impression from reading the reports. I don’t know that for certain. I think that, by and large, the 

super max prisons and the Special Administrative Measures that 

can be put in are adequate to protect national security and to protect individuals and that whatever process is put into place for 

bringing these people here will ensure that the safety of Americans 

is not threatened. 

Mr. CONAWAY. Would you anticipate, though, that more people 

getting to have access to the detainees here in the United States 

is less preferable than a limited number of people getting access to 

them in Guantanamo Bay? 

Mr. LITT. Well, I am just not sure that more people would have 

access to them here than in Guantanamo Bay. 

Mr. CONAWAY. And that is based on? 

Mr. LITT. I mean—— 

Mr. CONAWAY. And that is a rhetorical question. The real issue 

about bringing those folks onto United States soil is Federal judges 

beginning to interpret their rights broader than even the administration would want them interpreted and, certainly, I and my colleagues would want them interpreted. And once they are here and 

you have got Federal judges involved, then you really can’t answer 

beyond that, because there are thousands of Federal judges that 

might have the sympathies that are different than others. 

So I thank you, Mr. Litt, I appreciate your very candid comments. Thank you, sir. I yield back. 


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Chairwoman SCHAKOWSKY. At this point we will recess the committee and close the open session and reconvene in our regular 

hearing room downstairs. And we will move right there. 

[Whereupon, at 11:38 a.m., the subcommittees proceeded in 

Closed Session.] 

Æ 


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