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Tuesday, April 19, 2011

Sensitive Covert Action Notifications: Oversight Options for Congress

Alfred Cumming
Specialist in Intelligence and National Security

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.

Congress, in approving this new procedure in 1980, during the Iran hostage crisis, 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 congressional 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.

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 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.

Ultimately, the House accepted the Senate’s proposals, which the President signed into law as part of the FY2010 Intelligence Authorization Act (P.L. 111-259).

Both the House and Senate Intelligence Committees appeared not to make any further changes to the Gang of Eight notification procedure when both committees approved respective versions of the 2011 Intelligence Authorization Act (H.R. 754; S. 719).

This report describes the statutory provision authorizing Gang of Eight notifications, reviews the legislative history of the provision, and examines the impact of such notifications on congressional oversight. 

Date of Report: April 6, 2011
Number of Pages: 11
Order Number: R40691
Price: $29.95

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