Sensitive Covert Action Notifications: Oversight Options for Congress
Released: 2013-04-10T00:00:00

Requirements for Notifications of Sensitive Covert Actions to Congress

Under current statute, the President generally is required keep the congressional intelligence committees fully and currently informed of all covert actions and that any covert action "finding" shall be reported to the committees as soon as possible after such approval and before the initiation of the covert action authorized by the finding.

If, however, the President determines that it is essential to limit access to a covert action finding in order to "meet extraordinary circumstances affecting vital interests of the United States," then rather than providing advanced notification to the full congressional intelligence committees, as is generally required, the President may limit such notification to the "Gang of Eight," and any other congressional leaders he may choose to inform. The statute defines the "Gang of Eight" as being comprised of the chairmen and ranking Members of the two congressional intelligence committees and the House and Senate majority and minority leadership.

In addition to having to determine that vital interests are implicated, the President must comply with four additional statutory conditions in notifying the Gang of Eight. First, the President is required to provide a statement setting out the reasons for limiting notification to the Gang of Eight, rather than the full intelligence committees. The two intelligence committee chairmen, both Gang of Eight Members, also must be provided signed copies of the covert action finding in question. Third, the President is required to provide the Gang of Eight advance notice of the covert action in question. And, lastly, Gang of Eight Members must be notified of any significant changes in a previously approved covert action, or any significant undertaking pursuant to a previously approved finding.

In report language accompanying the 1980 enactment, Congress established its intent to preserve the secrecy necessary for very sensitive covert actions, while providing the President with a process for consulting in advance with congressional leaders, including the intelligence committee chairmen and ranking minority Members, "who have special expertise and responsibility in intelligence matters." Such consultation, according to Congress, would ensure strong oversight, while at the same time, "share the President's burden on difficult decisions concerning significant activities."

In 1991, following the Iran-Contra Affair, Intelligence Conference Committee Conferees more specifically stated that Gang of Eight notifications should be used only when "the President is faced with a covert action of such extraordinary sensitivity or risk to life that knowledge of the covert action should be restricted to as few individuals as possible." Congressional Conferees also indicated that they expected the executive branch to hold itself to the same standard by similarly limiting knowledge of such sensitive covert actions within the executive.

Changes to Gang of Eight Provisions

Congress approved several changes to the Gang of Eight notification procedures as part of the FY2010 Intelligence Authorization Act ( P.L. 111-259 ). First, it required that a written statement now be provided outlining the reasons for a presidential decision to limit notification of a covert action or significant change or undertaking in a previously approved finding. Previously, such a statement was required, but there was no explicit requirement that it be written. Second, the President is now required no later than 180 days after such a statement of reasons for limiting access is submitted, to ensure that all members of the congressional intelligence committees are provided access to the finding or notification, or a statement of reasons, submitted to all committee members, as to why it remains essential to continue to limited notification. Finally, Congress required that the President now ensure that the Gang of Eight be notified in writing of any significant change in a previously approved covert action, and stipulated further that the president, in determining whether an activity constitutes a significant undertaking, shall consider whether the activity:

involved significant risk of loss of life; requires an expansion of existing authorities, including authorities relating to research, development, or operations; results in the expenditure of significant funds or other resources; requires notification under Section 504 [50 USCS §414]; gives rise to a significant risk of disclosing intelligence sources or methods; presents a reasonably foreseeable risk of serious damage to the diplomatic relations of the United States if such activity were disclosed without authorization.

The unclassified version of the FY2011 Intelligence Authorization Act ( P.L. 112-72 ), enacted June 8, 2011, contained no further changes to the Gang of Eight notification procedure.

When Prior Notice to the Gang of Eight is Withheld

Although the statute requires that the President provide the Gang of Eight advance notice of certain covert actions, it also recognizes the President's constitutional authority to withhold such prior notice altogether by imposing certain additional conditions on the President should the decision be made to withhold. If prior notice is withheld, the President must "fully inform" the congressional intelligence committees in a "timely fashion" after the commencement of the covert action. The President also is required to provide a statement of the reasons for withholding prior notice to the Gang of Eight. In other words, a decision by the executive branch to withhold prior notice from the Gang of Eight would appear to effectively prevent the executive branch from limiting an-after-the-fact notification to the Gang of Eight, even if the President had determined initially that the covert action in question warranted Gang of Eight treatment. Rather, barring prior notice to the Gang of Eight, the executive branch would then be required to inform the full intelligence committees of the covert action in "timely fashion." In doing so, Congress appeared to envision a covert action, the initiation of which would require a short-term period of heightened operational security.

Congress Signaled Its Intent That the Gang of Eight Would Decide When To Inform the Intelligence Committees

During the Senate's 1980 debate of the Gang of Eight provision, congressional sponsors said their intent was that the Gang of Eight would reserve the right to determine the appropriate time to inform the full intelligence committees of the covert action of which they had been notified.

The position of sponsors that the Gang of Eight would determine when to notify the full intelligence committees underscores the point that while the statute provides the President this limited notification option, it appears to be largely silent on what happens after the President exercises this particular option. Sponsors thus made it clear that they expected the intelligence committees to establish certain procedures to govern how the Gang of Eight was to notify the full intelligence committees. Senator Walter Huddleston, Senate floor manager for the legislation, said "the intent is that the full oversight committees will be fully informed at such time the eight leaders determine is appropriate. The committees will establish the procedures for the discharge of this responsibility."

Senator Huddleston's comments referred to Section 501(c) of Title V of the National Security Act which stipulates that "The President and the congressional intelligence committees shall each establish such procedures as may be necessary to carry out the provisions of this title."

With regard to Section 501(c), Senate report language stated:

The authority for procedures established by the Select Committees is based on the current practices of the committees in establishing their own rules. One or both committees may, for example, adopt procedures under which designated members are assigned responsibility on behalf of the committee to receive information in particular types of circumstances, such as when all members cannot attend a meeting or when certain highly sensitive information is involved.

Congressional intent thus appeared to be that the collective membership of each intelligence committee, rather than the committee leadership, would develop such procedures. Moreover, the rules that each committee have subsequently adopted, while they deal in detail as to how the committees are to conduct their business, do not appear to address any procedures that might guide Gang of Eight notifications generally. Rather, to the extent that any such procedures have been adopted, those procedures appear to have been put into place at the executive branch's insistence, according to congressional participants.

Congress Approved Gang of Eight Notifications in 1980, Following the Iran Hostage Rescue Attempt

Congress approved the Gang of Eight notification provision in 1980 as part of a broader package of statutory intelligence oversight measures generally aimed at tightening intelligence oversight while also providing the Central Intelligence Agency (CIA) greater leeway to carry out covert operations, following a failed covert operation to rescue American embassy hostages in Iran.

Congressional approval came after President Jimmy Carter decided not to notify the intelligence committees of the operation in advance because of concerns over operational security and the risk of disclosure. Director of Central Intelligence Stansfield Turner briefed the congressional intelligence committees only after the operations had been conducted. Although most members reportedly expressed their understanding of the demands for secrecy and thus the Administration's decision to withhold prior notification, Senate Intelligence Committee Chairman Birch Bayh expressed concern that the executive branch's action reflected a distrust of the committees. He suggested that future administrations could address disclosure concerns by notifying a more limited number of Members "so that at least somebody in the oversight mechanism would know.... If oversight is to function better, you first need it to function [at all]." Such sentiments appear to have contributed to the subsequent decision by Congress to permit the executive branch to notify the Gang of Eight in such cases.

Authority of Gang of Eight to Affect Covert Action

Even with statutory arrangements governing covert action, including Gang of Eight covert actions, Congress does not have the authority under statute to veto outright a covert action. Indeed, former Senator Howard Baker successfully pushed the inclusion in the 1980 legislative package of a provision making clear that Congress did not have approval authority over the initiation of any particular covert action.

Nonetheless, the Gang of Eight Members, as do the intelligence committees, arguably have the authority to influence whether and how such covert actions are conducted over time. For example, Members could express opposition to the initiation of a particular covert action. Some observers assert that in the absence of Members' agreement to the initiation of the covert action involved, barring such agreement, an administration would have to think carefully before proceeding with such a covert action as planned.

The Gang of Eight over time could also influence funding for such operations. Initial funding for a covert action generally comes from the CIA's Reserve for Contingency Fund, for which Congress provides an annual appropriation. Once appropriated, the CIA can fund a covert action using money from this fund, without having to seek congressional approval. But the executive branch generally must seek additional funds to replenish the reserve on an annual basis. If the Gang of Eight, including the two committee chairmen and ranking Members, were to agree not to continue funding for a certain covert action, they arguably could impress on the membership of the two committees not to replenish the reserve fund, providing they informed the committees of the covert action, a decision which the congressional sponsors said they intended to be left to the discretion of the Gang of Eight in any case.

Thus, the Gang of Eight could influence the intelligence committees to increase, decrease or eliminate authorized funding of a particular covert action. Some observers point out, however, that the leaders' overall effectiveness in influencing a particular covert action turns at least as much on their capability to conduct effective oversight of covert action as it does on their legal authority.

Impact on Congressional Intelligence Oversight

The impact of Gang of Eight notifications on the effectiveness of congressional intelligence oversight continues to be debated.

Supporters of the Gang of Eight process contend that such notifications continue to serve their original purpose, which, they assert, is to protect operational security of particularly sensitive covert actions that involve vital U.S. interests while still involving Congress in oversight. Further, they point out that although Members receiving these notifications may be constrained in sharing detailed information about the notifications with other intelligence committee members and staff, these same Members can raise concerns directly with the President and the congressional leadership and thereby seek to have any concerns addressed. Supporters also argue that Members receiving these restricted briefings have at their disposal a number of legislative remedies if they decide to oppose a particular covert action program, including the capability to use the appropriations process to withhold funding until the executive branch behaves according to Congress's will.

Critics counter with the following points. First, they say, Gang of Eight notifications do not provide for effective congressional oversight because participating Members "cannot take notes, seek the advice of their counsel, or even discuss the issues raised with their committee colleagues." Second, they contend that Gang of Eight notifications have been "overused." Third, they assert that, in certain instances, the executive branch did not provide an opportunity to Gang of Eight Members to approve or disapprove of the program being briefed to them. And fourth, they contend that the "limited information provided Congress was so overly restricted that it prevented members of Congress from conducting meaningful oversight."

Gang of Eight Notifications: The Historic Record

Notwithstanding the continuing debate over the merits of such notifications, what remains less clear is the historic record of compliance with Gang of Eight provisions set out in statute. Questions include: have such notifications generally been limited to covert actions, ones that conform to congressional intent that such covert actions be highly sensitive and involve the risk to life? When prior notification is limited to the Gang of Eight, has the executive branch provided an explanatory statement as to why it limited notification to the Gang of Eight? If the Gang of Eight is not provided prior notice, has the executive branch then informed the intelligence committees at a later date and provided a reason why prior notification was not provided? Has the Gang of Eight, once notified, ever then made a determination to notify the intelligence committees, a prerogative envisioned by its congressional sponsors? Have the congressional intelligence committees, at any time since they were established, attempted to develop procedures to guide Gang of Eight notifications, as envisioned by the sponsors of the Gang of Eight provision?

Conclusion: Striking a Balance

Striking the proper balance between effective oversight and security remains a challenge to Congress and the executive. Doing so in cases involving particularly sensitive covert actions presents a special challenge. Success turns on a number of factors, not the least of which is the degree of comity and trust that defines the relationship between the legislative and executive branches. More trust can lead to greater flexibility in notification procedures. When trust in the relationship is lacking, however, the legislative branch may see a need to tighten and make more precise the notification architecture, so as to assure what it views as being an appropriate flow of information, thus enabling effective oversight.