The Big Intelligence Chill

Across the country, people are angry and frustrated at a government that seems to care more about itself than about the American people and their future.  Among the most troubling developments is the increased use of national security to provide political cover — both for politicians and for controversial legislation that cannot pass on its own.  

This “politicization” of national security is not only wrong, it makes it harder to protect the country.

The examples of this politicization are plentiful and increasingly problematic. Recently, President Obama signed into law the Defense Authorization bill, which included controversial hate crimes legislation that could not pass as a stand-alone bill. There are rumblings that another national security bill, the Defense Appropriations Act, may have D. C. voting rights or an increase in the national debt limit attached to it.

But these abuses are just the tip of the iceberg.  Our national security continues to suffer from the controversy surrounding congressional notification about interrogation techniques and the subsequent investigation to protect Speaker Nancy Pelosi.

Recall that earlier this year the Obama administration released classified legal memos related to the terrorist interrogation program despite the appeal of five former CIA directors and dubious justification. There were threats to go after those who worked in the program and the lawyers who wrote the memos. It soon became clear that if those who worked in the program were subject to prosecution, those in Congress who knew about it and did not try to stop it should be equally culpable.  The leading candidate for such culpability was, of course, Speaker Pelosi who, as the Ranking Member of the House Intelligence Committee and then as Minority Leader, had been briefed on the program.  When confronted with her own role, Pelosi responded by attacking the CIA, contending that “[t]hey mislead us all the time.”

House Democrats quickly launched an effort to prove their Speaker right.  They have initiated several “investigations” to buttress the Speaker’s claim that there is a regular pattern of the CIA intentionally lying to Congress and of failing to notify Congress in accordance with the law.  Before the investigations really got going, two Intelligence subcommittee chairs contended that they had found numerous other instances of the CIA lying.  None of these incidents was newly discovered, and in at least one instance, the Democrats’ claims had been flatly refuted by a thorough internal investigation.

Not only are such charges unproven and unfair, they are having a real and chilling impact where it matters most — on the front lines.  Younger CIA officers are taking careful note as some of their older colleagues consult with lawyers about potential liability. They all see that it is safer to avoid risks and not stick their necks out, knowing that whatever authority they have now may be second-guessed later.  

Our security suffers because of this political war between the intelligence community and the Democrats. And it will suffer more if the Democrats’ next big idea becomes law.  This one is about notifications to Congress on covert intelligence operations.

Some tension between the Executive and Legislative branches over sharing intelligence information is natural, constant, and predictable. The tendency of any administration is to limit the information that is shared with Congress to reduce the chance of leaks and of second-guessing policy decisions. On the other hand, Congress wants to know everything but does not want to be held accountable for any of the tough decisions that intelligence requires. To resolve this tension, there should be a clear standard that allows each branch to perform its constitutional duties without having vital national security programs used as a political football.

To deal with this, the National Security Act of 1947 requires that the Executive Branch notify Congress of covert intelligence operations so that Congress can execute its Constitutional oversight function. Unfortunately, the Act is not as clear as it could be in setting the standard for what information must be shared, with whom it must be shared, at what point in the process Congress must be informed, and what form the notification must take.  It requires that Congress be kept “fully and currently informed of the intelligence activities of the United States.”  But, such notification is “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters,” leaving the President with total discretion in deciding what to share.

It is interesting to note that the exceptions to notification in current law are because of the danger of unauthorized disclosure — just what happened after Congress was briefed in June about a potential anti-terrorism program. It was leaked within the days of the briefing in an attempt to shore up the Speaker. Clearly, something needs to change.

We were close to making that change in a bipartisan way in 2008 when Republicans and Democrats in the House were working together to clarify the law and develop a more objective standard that would make sense regardless of which party controlled Congress or the White House.  The agreed-to provision started with the basic requirement that that an Administration must share all information with the congressional intelligence committees. If a President wants to restrict the information to fewer members, he must provide his reasons to the top two leaders, and they can jointly decide to have the full committees briefed anyway.  Otherwise, the briefing will be restricted as the President requested.  Thus, the President’s constitutional authority to classify information is protected, as is the Congress’s authority to set its own rules.

This year, however, the Democrats on the House Intelligence Committee walked away from that effort and forced through a partisan, unworkable notification provision that would have little real affect. What changed in a year? Democrats who were interested in clarifying the notification process and standards under President George W. Bush are much less interested in doing so with President Barack Obama and Speaker Pelosi. This partisan provision is so flawed that President Obama had threatened to veto the Intelligence Authorization Bill if it is included.

Even the Democrats’ new, watered-down provision has gotten lost in the protect-Pelosi-at-all-costs effort. The House Intelligence Committee passed its bill on June 18, 2009. Four months later, the Speaker has not found enough time on the House Floor to consider the bill, yet there was time to debate and vote on a resolution to recognize the 2560th birthday of Confucius and there was time to congratulate the Syracuse University lacrosse team for winning the Division I Men’s Lacrosse Tournament.  The reality is the Speaker’s stalwarts are trying to assemble evidence from their “investigations” before they subject the Speaker to more criticism.
Using national security for political purposes has happened before. But we have never seen anything like the blatant, shameless use of the public’s natural support of our troops and other national security professionals to achieve partisan goals. No wonder the intelligence community is feeling the chill and the public is fed up.