No matter the seriousness of the challenge, some politicians, members of the media, pundits, et. al. insist on reducing issues of grave importance to a "left vs. right" or "tough vs. soft on terrorism" didacticism. This week's announcement by the House Permanent Select Committee on Intelligence (HPSCI) that it has opened an investigation into whether the Bush administration violated the law by not notifying Congress of certain classified intelligence programs, to include an alleged program to assassinate key al-Qaeda leaders, is the latest example.
In many regards, the substance of the program is irrelevant. However, if the latest fuss is, in fact, about an alleged covert program to assassinate key al-Qaeda leaders in the aftermath of the attacks of September 11, 2001, once again you do have to wonder from whom the "covert" nature of the program was intended to keep its existence secret. Clearly not the al-Qaeda leaders who knew they would be hunted down, as Bush himself said, "dead or alive." That's why so many of them have chosen to live the rest of their lives holed up in a cave somewhere.
What is relevant is that much of the controversy is of Congress' own doing. In an interview with the Washington Post, Director of National Intelligence Dennis Blair said agency officials may not have been required to notify Congress about the program, though he believes they should have done so."It was a judgment call," Blair said in the Post interview. "We believe in erring on the side of working with the Hill as a partner."
Blair is absolutely right, it is a "judgment call" but only because Congress made it one by giving the executive a loophole through which anyone could drive a Mack truck, even one loaded with numerous CIA assassination teams. As I wrote about earlier, while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” the statute goes on to state that such briefings should be done “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.” Imagine a law setting the speed limit on highways which requires drivers to travel 55 MPH "to the extent consistent with due regard" to other issues drivers regarded more important in their sole, unilateral judgment. While that may sound a lot like the Capital Beltway, it is also a law without meaning.
The above reference to "due regard" for protection of classified information is but one of many examples of Congress' reflexive deference to assertions of unilateral authority by the executive. Such authority to withhold information has never been explicitly conferred upon the President by either the Constitution or the Congress. Recent history is replete with examples of the executive abusing this authority, either through malice or incompetence. To allow the use of such unilateral authority to thwart oversight by the two co-equal branches of government, the Congress and the courts, is the antithesis of our constitutional form of government and its system of checks and balances.
Clearly, some of what our intelligence services do on behalf of our nation must be kept secret, not only from enemies but also, at times, from the American people. However, such secrecy does not have to run counter to our representative form of government. Our elected leaders in Congress serve as our proxy and one of their more critical roles is to exercise oversight over what the executive does in our name.
Ensuring timely and full Congressional notification not only preserves the basic checks and balance principles of the U.S. Constitution, but it can also enhance national security as well. So far this decade, much blood and treasure, belonging to Americans and other nations alike, have been squandered as a direct result of faulty decisions by our national leaders. Excessive government secrecy has significantly contributed to flawed national security policies. While Congressional oversight does not guarantee more competent and effective national security decisions, full and timely notification of Congress at least gives Americans a fighting chance that the full capabilities of our government are being applied to issues of critical importance to our nation and the world.
Instead of just admiring the problem, Congress must take action now. At the very least, they should remove from the governing statute the "judgment" that Blair referred to in his interview and no longer allow any administration to use the "due regard" for the protection of classified information as an excuse not to notify Congress of significant intelligence activities. While classification remains a critical national security tool, it has all too often been abused by the executive. Congress should never "institutionalize" the ability of any administration to abuse secrecy and as a result undermine our constitutional form of government.
Updated: Fixed a few (hopefully all) typos -- h/t behindthefall at emptywheel.
In many regards, the substance of the program is irrelevant. However, if the latest fuss is, in fact, about an alleged covert program to assassinate key al-Qaeda leaders in the aftermath of the attacks of September 11, 2001, once again you do have to wonder from whom the "covert" nature of the program was intended to keep its existence secret. Clearly not the al-Qaeda leaders who knew they would be hunted down, as Bush himself said, "dead or alive." That's why so many of them have chosen to live the rest of their lives holed up in a cave somewhere.
What is relevant is that much of the controversy is of Congress' own doing. In an interview with the Washington Post, Director of National Intelligence Dennis Blair said agency officials may not have been required to notify Congress about the program, though he believes they should have done so."It was a judgment call," Blair said in the Post interview. "We believe in erring on the side of working with the Hill as a partner."
Blair is absolutely right, it is a "judgment call" but only because Congress made it one by giving the executive a loophole through which anyone could drive a Mack truck, even one loaded with numerous CIA assassination teams. As I wrote about earlier, while the National Security Act of 1947, as amended, requires the President to make sure the intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” the statute goes on to state that such briefings should be done “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.” Imagine a law setting the speed limit on highways which requires drivers to travel 55 MPH "to the extent consistent with due regard" to other issues drivers regarded more important in their sole, unilateral judgment. While that may sound a lot like the Capital Beltway, it is also a law without meaning.
The above reference to "due regard" for protection of classified information is but one of many examples of Congress' reflexive deference to assertions of unilateral authority by the executive. Such authority to withhold information has never been explicitly conferred upon the President by either the Constitution or the Congress. Recent history is replete with examples of the executive abusing this authority, either through malice or incompetence. To allow the use of such unilateral authority to thwart oversight by the two co-equal branches of government, the Congress and the courts, is the antithesis of our constitutional form of government and its system of checks and balances.
Clearly, some of what our intelligence services do on behalf of our nation must be kept secret, not only from enemies but also, at times, from the American people. However, such secrecy does not have to run counter to our representative form of government. Our elected leaders in Congress serve as our proxy and one of their more critical roles is to exercise oversight over what the executive does in our name.
Ensuring timely and full Congressional notification not only preserves the basic checks and balance principles of the U.S. Constitution, but it can also enhance national security as well. So far this decade, much blood and treasure, belonging to Americans and other nations alike, have been squandered as a direct result of faulty decisions by our national leaders. Excessive government secrecy has significantly contributed to flawed national security policies. While Congressional oversight does not guarantee more competent and effective national security decisions, full and timely notification of Congress at least gives Americans a fighting chance that the full capabilities of our government are being applied to issues of critical importance to our nation and the world.
Instead of just admiring the problem, Congress must take action now. At the very least, they should remove from the governing statute the "judgment" that Blair referred to in his interview and no longer allow any administration to use the "due regard" for the protection of classified information as an excuse not to notify Congress of significant intelligence activities. While classification remains a critical national security tool, it has all too often been abused by the executive. Congress should never "institutionalize" the ability of any administration to abuse secrecy and as a result undermine our constitutional form of government.
Updated: Fixed a few (hopefully all) typos -- h/t behindthefall at emptywheel.
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