Sensitive Covert Action Notifications:
Oversight Options for Congress
Alfred Cumming
Specialist in Intelligence and National Security
July 30, 2009
Congressional Research Service
7-5700
www.crs.gov
R40691
CRS Report for Congress
P
repared for Members and Committees of Congress
Sensitive Covert Action Notifications: Oversight Options for Congress
Summary
Legislation enacted in 1980 gave the executive branch authority to limit advance notification of
especially sensitive covert actions to eight Members of Congress—the “Gang of Eight”—when
the President determines that it is essential to limit prior notice in order to meet extraordinary
circumstances affecting U.S. vital interests. In such cases, the executive branch is permitted by
statute to limit notification to the chairmen and ranking minority members of the two
congressional intelligence committees, the Speaker and minority leader of the House, and Senate
majority and minority leaders, rather than to notify the full intelligence committees, as is required
in cases involving covert actions determined to be less sensitive.
In approving this new procedure in 1980, during the Iran hostage crisis, Congress said it intended
to preserve operational secrecy in those “rare” cases involving especially sensitive covert actions
while providing the President with advance consultation with the leaders in Congress and the
leadership of the intelligence committees who have special expertise and responsibility in
intelligence matters. The intent appeared to some to be to provide the President, on a short-term
basis, a greater degree of operational security as long as sensitive operations were underway. In
1991, in a further elaboration of its intent following the Iran-Contra Affair, Congressional report
language stated that limiting notification to the Gang of Eight should occur only in situations
involving covert actions of such extraordinary sensitivity or risk to life that knowledge of such
activity should be restricted to as few individuals as possible.
In its mark-up of H.R. 2701, the FY2010 Intelligence Authorization Act, the House Permanent
Select Committee on Intelligence (HPSCI) replaced the Gang of Eight statutory provision,
adopting in its place a statutory requirement that each of the intelligence committees establish
written procedures as may be necessary to govern such notifications. According to Committee
report language, the adopted provision vests the authority to limit such briefings with the
committees, rather than the President.
The Senate Intelligence Committee, in its version of the FY2010 Intelligence Authorization Act,
left unchanged the Gang of Eight statutory structure, but approved several changes that would
tighten certain aspects of current covert action reporting requirements.
On July 8, 2009, the executive branch issued a Statement of Administration Policy (SAP) in
which it stated that it strongly objected to the House Committee’s action to replace the Gang of
Eight statutory provision, and that the President’s senior advisors would recommend that the
President veto the FY2010 Intelligence Authorization Act if the Committee’s language was
retained in the final bill. The White House has not yet issued an SAP regarding the Senate
Intelligence Committee’s version of the FY2010 Intelligence Authorization Act.
With Congress considering a possible change, this report describes the statutory provision
authorizing Gang of Eight notifications, reviews the legislative history of the provision, and
examines both the impact of such notifications on congressional oversight as well as options that
Congress might consider to possibly improve oversight.
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Sensitive Covert Action Notifications: Oversight Options for Congress
Contents
Requirements for Notifications of Sensitive Covert Actions to Congress ..................................... 1
Additional Gang of Eight Requirements ...................................................................................... 2
When Prior Notice to the Gang of Eight is Withheld.................................................................... 2
Congress Signaled Its Intent That the Gang of Eight Would Decide When To Inform the
Intelligence Committees........................................................................................................... 3
Congress Approved Gang of Eight Notifications in 1980, Following the Iran Hostage
Rescue Attempt ........................................................................................................................ 4
Authority of Gang of Eight to Affect Covert Action..................................................................... 5
Impact on Congressional Intelligence Oversight .......................................................................... 6
Directors of National Intelligence and Central Intelligence Agency Critical of Gang of
Eight Notifications For Non-Covert Actions ............................................................................. 7
House Intelligence Committee Replaces Gang of Eight Procedure in FY2010 Intelligence
Authorization Act..................................................................................................................... 8
The House Intelligence Committee Adopted Several Other Covert Action-Related
Measures as Part of FY2010 Intelligence Bill ........................................................................... 9
Senate Intelligence Committee Tightened Covert Action Reporting Requirements ..................... 10
Executive Branch Threatens Veto Of House Version of 2010 Intelligence Authorization
Act......................................................................................................................................... 11
Gang of Eight Notifications: The Historic Record ..................................................................... 11
Possible Gang of Eight Options................................................................................................. 12
Alternative One................................................................................................................... 12
Alternative Two .................................................................................................................. 12
Alternative Three ................................................................................................................ 13
Alternative Four.................................................................................................................. 13
Alternative Five .................................................................................................................. 14
Alternative Six .................................................................................................................... 14
Conclusion: Striking a Balance.................................................................................................. 14
Contacts
Author Contact Information ...................................................................................................... 14
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Sensitive Covert Action Notifications: Oversight Options for Congress
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 actions1 and that any covert action2
“finding” 3 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,”4 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.5
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.”6 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.”7
In 1991, following the Iran-Contra Affair,8 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
1 National Security Act as amended, Sec. 503 [50 U.S.C. 413b] (b) and (c).
2 A covert action is defined in statute as an activity or activities of the United States Government to influence political,
economic, or military conditions abroad, where it is intended that the role of the United States Government will not be
apparent or acknowledged publicly. See the National Security Act of 1947, Sec. 503(e), 50 U.S.C. 413b(e).
3 A Finding is a presidential determination that an activity is necessary to “support identifiable foreign policy
objectives” and “is important to he national security of the Untied States.” See Intelligence Authorization Act for
FY1991, P.L. 102-88, Title VI, Sec. 602 (a) (2), 50 U.S.C. 413b (a).
4 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (2). See Addendum A, Title V of the
National Security Act as amended. The authorization for Gang of Eight notification also permits the President to notify
“such other Member or Members of the congressional leadership as may be included by the President.”
5 Ibid.
6 Addendum A, S.Rept. 96-730, 96th Cong., 2nd sess. (1980), p. 10. This report accompanied S. 2284, from which Title
V of P.L. 96-450 is derived. Gang of Eight notification was included in a new Title V, Sec. 501, Sec. 501 (a) (1) added
to the National Security Act of 1947 as amended by Sec. 407 (a) (3) of P.L. 96-450.
7 Ibid.
8 The Iran-Contra affair was a secret initiative by the administration of President Ronald Reagan in the 1980s to
provide funds to the Nicaraguan Democratic Resistance from profits gained by selling arms to Iran. The purpose was at
least two-fold: to financially support the Nicaraguan Democratic Resistance and to secure the release of American
hostages held by pro-Iranian groups in Lebanon.
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covert action should be restricted to as few individuals as possible.”9 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.10
Additional Gang of Eight Requirements
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.11 The two intelligence committee chairmen,
both Gang of Eight Members, also must be provided signed copies of the covert action finding in
question.12 Third, the President is required to provide the Gang of Eight advance notice of the
covert action in question.13 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.14
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 committees15 in a “timely fashion”16 after the commencement of the
9 Joint Explanatory Statement of the Committee of Conference, accompanying Conf.Rept. 102-166, 102nd Congress, 1st
sess. (1991), p. 28. The Joint Explanatory Statement accompanied H.R. 1455, the FY1991 Intelligence Authorization
Act, which was subsequently signed into law (P.L. 102-88). The “risk to life” language is not repeated in statute.
10 Ibid.
11 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (4). The statute does not explicitly specify
whether such a statement should be in writing, nor specifically to whom such a statement should be provided.
12 Ibid.
13 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (2). The President must comply with these
last two requirements—providing signed copies of the covert action and providing advance notification—when
notifying the full committees of covert action operations that are determined to be less sensitive than “Gang of Eight”
covert actions. Sec. 503 [50 U.S.C. 413b] (a) (1) requires a written finding unless immediate action by the U.S. is
required and time does not permit preparation of a written finding. In the latter situation, a contemporaneous written
record must be immediately reduced to a written finding as soon as possible within 48 hours.
14 Ibid, (d).
15 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (3).
16 Ibid. What constitutes “timely fashion” was the subject of intense debate between the congressional intelligence
committees and the executive branch during the consideration of the fiscal year 1991 Intelligence Authorization Act. At
that time, House and Senate intelligence committee conferees noted that the executive branch had asserted that the
President’s constitutional authorities “permit the President to withhold notice of covert actions from the committees for
as long as he deems necessary.” The conferees disputed the President’s assertion, claiming that the appropriate meaning
of “timely fashion” is “within a few days.” Specifically, conferees stated, “While the conferees recognize that they
cannot foreclose by statute the possibility that the President may assert a constitutional basis for withholding notice of
covert actions for periods longer than ‘a few days,’ they believe that the President’s stated intention to act under the
‘timely notice’ requirement of existing law to make a notification ‘within a few days’ is the appropriate manner to
proceed under this provision, and is consistent with what the conferees believe is its meaning and intent.” The
(continued...)
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covert action. The President also is required to provide a statement of the reasons for withholding
prior notice to the Gang of Eight.17 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 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.18
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...”19
Senator Huddleston’s comments referred to Sec. 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.”
(...continued)
conference report included the text of a letter sent to the chairman of the House Intelligence Committee, in which
President George H.W. Bush stated: “In those rare instances where prior notice is not provided, I anticipate that notice
will be provided within a few days. Any withholding beyond this period will be based upon my assertion of authorities
granted this office by the Constitution...” See H.Conf.Rept. 102-166, 102nd Cong., 1st sess., pp. 27-28 (1991). Despite
President George H.W. Bush’s refusal to commit to either “timely” notification as defined by Congress, or any
notification at all, Robert M. Gates, President George H.W. Bush’s nominee as Director of Central Intelligence, said he
believed that non-notification should be withheld for no more than a few days at the most, and that he would
contemplate resignation if it extended beyond that time period. See Congressional Quarterly Almanac, 102nd Cong., 1st
sess., 1991, Vol. XLVII, p. 482.
17 Ibid.
18 See Addendum B, copy of the Senate debate as recorded in the Congressional Record, 96th Congress, 2nd Session,
Volume 126—Part 20, September 17, 1980 to September 24, 1980. See p. 17693.
19 Ibid, p. 17693.
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With regard to Sec. 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.20
Congressional intent thus appeared to be that the collective membership of each intelligence
committee, rather than the Committee leadership, would develop such procedures.21 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.22
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, 23 following a failed covert operation to rescue American embassy hostages in Iran.24
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
20 See addendum B, S.Rept. 96-730, 96th Cong, 2nd sess. See p. 13 of the report.
21 Ibid, p. 12.
22 Letter from Representative Jane Harman to President George W. Bush, January 4, 2006. Another example of the
informality which sometimes informs the intelligence notification process involves so-called Gang of Four
notifications. The Gang of Four consists of the chairmen of the congressional intelligence committees, the Vice
Chairman of the Senate Intelligence Committee and the Ranking Member of the House Intelligence Committee. The
executive branch frequently limits certain intelligence notifications to these four Members, sometimes including
committee staff directors, even though neither statute, or committee rules, appear to make provision for such
notifications.
23 Congressional Quarterly Almanac, Vol. XXXVI, 1980, p. 66.
24 There actually were two separate operations — both of which constituted covert actions, since neither was
undertaken to collect intelligence — to rescue U.S. embassy personnel after Iranian “students” overran the U.S.
Embassy in Tehran on Nov. 4, 1979. The failed operation involved an attempted airborne rescue of U.S. hostages
which was aborted when three of the rescue helicopters experienced mechanical difficulties. A subsequent collision of
one of the helicopters and a refueling plane left seven American rescuers dead. An earlier effort resulted in the
successful extrication of six Americans who had been working at the U.S. embassy but had avoided capture by taking
refuge in the residences of the Canadian ambassador and deputy chief of mission.
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Administration’s decision to withhold prior notification,25 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].”26 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.27
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.28
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.29
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.
25 At the time, the Hughes-Ryan Amendment of 1974 requiring that the executive branch report on Central Intelligence
Agency covert operations to as many as eight congressional committees, including the intelligence committees, was
still the law.
26 See L. Britt Snider, The Agency and the Hill, CIA’s Relationship With Congress, 1946-2004, (Washington, D.C.:
Center For the Study of Intelligence, Central Intelligence Agency, 2008), p. 283.
27 Ibid.
28 National Security Act of 1947 as amended, Sec. 501[50 U.S.C. 413] (a) (2).
29 L. Britt Snider, The Agency and the Hill, CIA’s Relationship With Congress, 1946-2004, (Washington, D.C.: Center
For the Study of Intelligence, Central Intelligence Agency, 2008), p. 311. See also Mike Soraghan, “Reyes Backs
Pelosi On Intel Briefings,” The Hill, May 1, 2009. House Intelligence Committee Ranking Member Peter Hoekstra
reportedly stated that Members of Congress are able to challenge policies they disagree with. “This is nuts, this saying,
‘I couldn’t do anything,’” Hoekstra told the Hill, adding that he at least once complained to then President Bush and got
a policy changed, according to the newspaper.
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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.30 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.31
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 raise with their committee
colleagues.32 Second, they contend that Gang of Eight notifications have been “overused.”33
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.34 And
fourth, they contend that the “limited information provided Congress was so overly restricted that
it prevented members of Congress from conducting meaningful oversight.”35
30 See Congressional Quarterly transcript of press conference given by Representative Peter Hoekstra, December 21,
2005.
31 See Tim Starks, “Pelosi Controversy Suggests Changes to Congressional Briefings Are Due,” Congressional
Quarterly, May 14, 2009.
32 See letter from Representative Jane Harman to President George W. Bush, January 4, 2006, regarding the National
Security Agency (NSA) electronic communications surveillance program, often referred to as the Terrorist Surveillance
Program, or TSP.
33 See Tim Starks, “Pelosi Controversy Suggests Changes to Congressional Briefings Are Due,” Congressional
Quarterly, May 14, 2009.
34 Press release from Senator John D. (Jay) Rockefeller, December 19, 2005, commenting on the Terrorist Surveillance
Program initiated by the George W. Bush Administration. As discussed earlier in this memorandum, under Sec.
501(a)(2), nothing in Title V “shall be construed as requiring the approval of the congressional intelligence committees
as a condition precedent to the initiation of any significant anticipated intelligence activity.
35 Ibid.
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Directors of National Intelligence and Central
Intelligence Agency Critical of Gang of Eight
Notifications For Non-Covert Actions
During their respective Senate confirmation hearings, Director of National Intelligence (DNI)
Dennis Blair and CIA Director Leon Panetta criticized the use of the Gang of Eight notification
procedure to notify Congress of the National Security Agency’s (NSA) electronic
communications surveillance program—often referred to as the Terrorist Surveillance Program,
or TSP—and the CIA’s detention, interrogation and rendition program. DNI Blair said both
programs “... involved sensitive collection activities rather than covert actions. The “Gang of 8”
notice is available ... only where notice of covert action is concerned, and its use in these
programs was not expressly allowed.”36 Director Panetta said “the NSA surveillance program was
not a covert action program, and, therefore, limiting notification to the “gang of eight” was
inappropriate.”37 DNI Blair said that, because of the restrictive nature of Gang of Eight
notifications in these two instances, “the intelligence committees were prevented from carrying
out their oversight responsibilities.”38 Director Panetta, expressing similar sentiments, said that
such limited notifications “restrict the ability of the intelligence committees to conduct
oversight.”39
36 See “Additional Pre-hearing Questions for Dennis C. Blair upon nomination to be Director of National Intelligence,”
Question/Answer 4(C), at http://intelligence.senate.gov/090122/blairresponses.pdf.
37 See “Additional Pre-hearing Questions for the Record For the Honorable Leon E. Panetta upon his selection to be the
Director of The Central Intelligence Agency,” Question/Answer 23 at
http://intelligence.senate.gov/090205/answers.pdf. In his response, Director Panetta did not address whether the CIA’s
detention, interrogation and rendition program was an intelligence collection program, or a covert action program.
Former CIA Director Michael Hayden, has said that the program “... began life as a covert action ... ” See Australian
Broadcasting Corporation, AM, April 17, 2009.
Before the notification briefings were subsequently expanded to include more Members, the executive treated both
programs as particularly sensitive collection programs insofar as notification was concerned, in that it limited its initial
notification to the Gang of Four. See letter from Representative Jane Harman to President George W. Bush, December
21, 2005, in which she makes reference to the Administration’s use of the Gang of Four notification process, used
initially to notify Congress. The Bush Administration also employed the Gang of Four notification procedure to notify
Congress of the CIA’s detention, interrogation and rendition program. See “Members Briefings on Enhanced
Interrogation Techniques (EITs),” released by the CIA on May 6, 2009. A listing of the briefings can be found at
http://www.humanevents.com/downloads-pdfs/EIT%20Briefings.pdf.
38 See “Additional Pre-hearing Questions for Dennis C. Blair upon nomination to be Director of National Intelligence,”
Question/Answer 4(C), at http://intelligence.senate.gov/090122/blairresponses.pdf.
39 See “Additional Pre-hearing Questions for the Record For the Honorable Leon E. Panetta upon his selection to be the
Director of The Central Intelligence Agency,” Question/Answer 23 at
http://intelligence.senate.gov/090205/answers.pdf.
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House Intelligence Committee Replaces Gang of
Eight Procedure in FY2010 Intelligence
Authorization Act
In marking up its version of the FY2010 Intelligence Authorization Act, the House Intelligence
Committee replaced the Gang of Eight statutory provision, adopting in its place a statutory
requirement that each of the intelligence committees establish written procedures as may be
necessary to govern such notifications.
The current Gang of Eight statutory provision stipulates:
If the President determines that it is essential to limit access to the finding to meet
extraordinary circumstances affecting vital interest of the United States, the finding may be
reported to the chairmen and ranking minority members of the congressional intelligence
committees, the Speaker and the minority leader of the House of Representatives, the
majority and minority leaders of the Senate, and such other member or members of the
congressional leadership as may be included by the President40
The substitute language approved by the House Intelligence Committee stipulates:
If, pursuant to the procedures established by each of the congressional intelligence
committees under Section 501(c), one of the congressional intelligence committees
determines that not all members of that committee are required to have access to a finding
under this subsection, the President may limit access to such findings or such notice as
provided in such procedures.41
According to Committee report language, the provision:
requires the President to brief all members of the congressional intelligence committees, but
implicitly provides for the possibility of more restricted briefings pursuant to the written
procedures established by the congressional intelligence committees, pursuant to the revised
Section 501 (c). This language vests the authority to limit the briefings with the committees,
rather than the President.42
The Report’s reference to a revision of Sec. 501 of the National Security Act pertained to the
Committee’s approval of statutory language requiring that the President and the congressional
intelligence committees each establish such “written” procedures as may be necessary to carry
out the statutes provisions.43 Current statute does require that any such procedures be in writing.
In approving the new provision, the committee rejected an amendment that would have
authorized the Committee’s Chairman and Ranking Member to decide whether to comply with a
presidential request to limit access to certain intelligence information, including covert actions.
40 Sec. 503 of the National Security Act [50 U.S.C. 413b] (c)(2).
41 See Intelligence Authorization Act for Fiscal Year 2010, H.R. 2701, Sec. 321 [111th Congress, 1st sess.].
42 See H.Rept. 111-186, accompanying the Intelligence Authorization Act for Fiscal Year 2010, pp. 21-22 [111th
Congress, 1st sess.].
43 See Intelligence Authorization Act for 2010, H.R. 2701, Sec. 321 (b).
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The rejected amendment stipulated that if the Chairman and Ranking Member were unable to
agree on whether or how to limit such access, access to the information would be limited if so
requested by the President.44
According to the views of the Minority contained in the report, the provision adopted by the
Committee:
nowhere creates a statutory presumption that all Members of the Committee should be
briefed. Instead, it would require the Committee to unilaterally develop procedures for the
handling of reporting on sensitive matters, even though the President has significant
constitutional authorities in the area of national security that Courts have repeatedly said
must be considered with and balanced against the authorities of Congress. The provision
nowhere provides a mechanism for ensuring that decisions within the Committee are made
on a bipartisan basis or for reconciling any dispute between the branches with respect to such
reporting, which is a receipt for Constitutional gridlock that could be disastrous with respect
to such sensitive matters.45
The House Intelligence Committee Adopted Several
Other Covert Action-Related Measures as Part of
FY2010 Intelligence Bill
The House Intelligence Committee adopted several additional statutory changes with regard to
covert action notifications. One such change would require that the information or material
concerning covert actions include any information or material relating to the legal authority under
which a covert action is being or was conducted, and any information or material relating to legal
issues upon which guidance was sought in carrying out or planning the covert action, including
dissenting legal views.46
Another change would require that the President provide Members who are not notified of a
particular covert action, pursuant to the procedures established by the each of the committees,
with general information on the content of the covert action.47
The Committee also adopted a provision that would permit a member who objects to a particular
covert action that has been notified to submit an objection to the Director of National Intelligence.
The DNI is required to notify the President of the objection no later than 48 hours after the
objection has been submitted.48
Finally, the committee approved covert action-related provisions that would:
44 See Intelligence Authorization Act For 2009, H.R. 5959, Sec. 502 (b). This language applied to reports of
intelligence activities other than covert action. The amendment offered to the FY2010 Intelligence Authorization Act
during the Committee’s markup was extended to include reporting of covert actions.
45 See H.Rept. 111-186, accompanying the Intelligence Authorization Act for Fiscal Year 2010, Minority Views, p. 3
[111th Congress, 1st sess.].
46 See H.R. 2701, Intelligence Authorization Act for Fiscal Year 2010, Sec. 321 (d).
47 Ibid, (g) (2).
48 Ibid, (g) (1).
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• require that the CIA inspector general audit each covert action every three
years;49
• require that the President maintain a record of the Members of Congress notified
of a covert action and to provide such record within 30 days after the notification
is provided;50 and
• define the current statutory phrase “significant undertaking” to mean an activity
involving the potential for loss of life; requiring an expansion of existing
authorities, including authorities relating to research, development, or operations;
resulting in the expenditure of significant funds or other resources; requiring
notification under section 504; giving rise to a significant risk of disclosing
intelligence sources or methods; or possibly causing serious damage to the
diplomatic relations if the activity were to be disclosed without authorization.51
Senate Intelligence Committee Tightened Covert
Action Reporting Requirements
In its version of the FY2010 Intelligence Authorization Act, the Senate Intelligence Committee
left unchanged the Gang of Eight statutory structure, but approved several changes that would
tighten certain aspects of current covert action reporting requirements.
The Committee adopted language stating that there shall be no exception to the requirements of
Title V off the National Security Act to inform the intelligence committees of all covert actions.52
The Committee voted to require that all members of the intelligence committees be notified when
the executive branch does not provide information “in full” to all members.53 In such cases, the
Director of National Intelligence would be required to provide in writing to the committees in a
“timely manner” a statement explaining the reasons for withholding certain information from the
full membership and a description of the main features of the covert action in question. The
executive branch also would be required to include in reports to Congress on covert actions an
explanation of the significance of the covert action and report any change to a covert action,54
rather than any “significant” change, 55 as is currently required under statute.
Finally, the committee approved language that would require that the executive branch provide to
the intelligence committees any information or material regarding the legal authority under which
a covert action is or was conducted,56 and that funding for an intelligence activity would be
provided only if the intelligence committees had been fully and currently informed of that
49 Ibid, Sec. 411.
50 Ibid, (g) (3).
51 Ibid, (d) (2).
52 S. 1494, Intelligence Authorization Act For Fiscal Year 2010, Sec. 331.
53 Ibid, Sec. 332.
54 Ibid.
55 National Security Act of 1947 as amended, Sec. 503 (d).
56 Ibid, Sec. 333.
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activity, or had been notified when the executive branch did not provide information in full to all
members.57
In additional views accompanying the Committee’s report58 on the legislation, Senators John
Rockefeller and Olympia Snowe said they supported the Committee-adopted language because,
they wrote, it would improve the notification processes, while not eliminating the Gang of Eight
procedure, “which many of us believe can serve an important purpose for quick and timely
notifications on extraordinarily sensitive covert actions.”59
A small number of the committee members opposed the notification provision contained in the
bill that would require the executive branch to notify the full membership of the intelligence
committees when a covert action notification does not disclose all information regarding such an
activity to all members of the committees. In additional views, they stated that the adopted
provision would modify the current balance in the National Security Act with respect to the
congressional notification procedures and that such a provision “will unnecessarily increase the
tension between the Legislative and Executive branches over information access.”60
Executive Branch Threatens Veto Of House Version
of 2010 Intelligence Authorization Act
On July 8, 2009, the executive branch issued a Statement of Administration Policy (SAP) 61 in
which it stated that it strongly objected to the House Committee’s action to replace the Gang of
Eight statutory provision, and that the President’s senior advisors would recommend that the
President veto the FY2010 Intelligence Authorization Act if the Committee’s language was
retained in the final bill. According to the executive branch’s statement, the Committee’s new
statutory language “... would run afoul of tradition by restricting an important established means
by which the President protects the most sensitive intelligence activities that are carried out in the
Nation’s vital national security interests... ”62
The executive branch has not yet issued an SAP with regard to the Senate intelligence
authorization bill.
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
57 Ibid, Sec. 334.
58 S.Rept. 111-55, accompanying S. 1494, the Intelligence Authorization Act For Fiscal Year 2010 (111th Congress, 1st
Sess.), pp. 76-77.
59 Ibid, p. 76.
60 Ibid, p. 75.
61 See Statement of Administration Policy on H.R. 2701, the Intelligence Authorization Act for Fiscal Year 2010, July
8, 2009.
62 Ibid.
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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?
Possible Gang of Eight Options
The 111th Congress, in its assessment, could deem that the Gang of Eight notification procedure,
as currently provided for in statute and by practice, continues to strike a reasonable balance
between the twin objectives of operational security and congressional oversight. If, however,
changes are sought, Congress could consider the following options.
Alternative One
Congress could adopt the approach approved by the House Intelligence Committee during its
markup of the FY2010 Intelligence Authorization Act. This approach would eliminate the Gang
of Eight statutory provision, according to its sponsors, substituting instead a provision that its
sponsors said would require that the President brief all members of the congressional intelligence
committees, while implicitly providing for the possibility of more restricted briefings pursuant to
the written procedures that would be established by the congressional intelligence committees as
may be necessary to carry out the statute’s provisions.
Alternative Two
Congress could adopt the approach approved by the Senate Intelligence Committee during its
markup of the FY2010 Intelligence Authorization Act. Rather than eliminating the current Gang
of Eight statutory provision, the Senate language would make no exception to the requirement
that the intelligence committees be notified of all covert actions. The language also would
require that all members of the intelligence committees be notified when the executive branch did
not provide information “in full” to all members about a particular covert action. In such cases,
the Director of National Intelligence would be required to provide in writing to the committees in
a “timely manner” a statement explaining the reasons for withholding certain information from
the full membership and a description of the main features of the covert action in question. The
executive branch also would be required to include in reports to Congress on covert actions an
explanation of the significance of the covert action being considered and report any change to a
covert action, rather than any “significant” change, as is currently required under statute. Finally,
under the Senate Committee’s provisions, the executive branch would be required to provide any
information or material regarding the legal authority under which a covert action is or was
conducted, and funding for a particular covert action would be provided only if the intelligence
committees had been fully and currently informed of that activity, or had been notified if the
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executive branch had not provided information in full to all members of the two intelligence
committees.
Alternative Three
Congress could adopt the provision supported by some members of the House Intelligence
Committee but ultimately rejected by a majority of the Committee membership that would have
authorized the Chairmen and Ranking Members of the intelligence committees to decide whether
to comply with a presidential request to limit access to certain intelligence information, including
covert actions. The amendment stipulated that if the Chairman and Ranking Member were unable
to agree on whether or how to limit such access, access to the information would be limited, if so
requested by the President.
Alternative Four
If Congress were to decide to preserve the Gang of Eight notification procedure, but were to
consider modifying the process, such modifications could include specifying explicitly in statute
that:
• Gang of Eight notifications are permitted only in situations involving covert
action, rather than in those situations involving non-covert action programs,
including sensitive intelligence collection programs;
• a Gang of Eight notification remain in place as long as sensitive operations are
underway. Once such operational sensitivities no longer prevail, however, the full
membership of the intelligence committees would be informed;
• Gang of Eight Members, rather than the executive branch, will decide when to
notify the full membership of the intelligence committees.
• the executive branch be required to provide a statement of the reasons, in writing,
for limiting notification to the Gang of Eight, and that the executive branch
provide a written statement to the congressional intelligence committees in a
timely fashion when it does not provide prior notice of a covert action to the
Gang of Eight.
• Pursuant to Sec. 501(c) of the National Security Act, which requires the
establishment of procedures as may be necessary to carry out the provisions of
the statute, Congress could require that the congressional intelligence committees
establish certain procedures that would govern Gang of Eight notifications, as the
sponsors of the Gang of Eight provision apparently originally intended. Such
procedures could include permitting Gang of Eight Members to take notes as
such briefings and establishing a process of more formal consultation between
Gang of Eight Members.63
63 Given the demands of timing and scheduling, according to former executive branch officials, in the interest of time,
Gang of Eight Members are sometimes notified by secure phone. If scheduling permits, briefings are provided to Gang
of Eight Members, often on an individual basis. It is unclear whether Gang of Eight Members ever have requested to be
briefed as a group, or whether certain time and scheduling constraints would make such a request practical.
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Alternative Five
Congress statutorily could eliminate the Gang of Eight procedure and bring sensitive covert
actions notifications back within the intelligence committee structure by permitting the President
to limit initial briefings of such operations to the Chairmen and Ranking members of the two
intelligence committees, the so-called “Gang of Four” formulation. Under this change, committee
leadership could be permitted to consult with House and Senate leaders, and staff, and inform the
full intelligence committees when they determine it to be appropriate.
Alternative Six
Congress statutorily could require that the executive branch inform the full membership of the
intelligence committees of all covert actions, irrespective of their perceived sensitivity.
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.
Author Contact Information
Alfred Cumming
Specialist in Intelligence and National Security
acumming@crs.loc.gov, 7-7739
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