Informing Congress on Interrogation

I’m not sure I entirely agree with Kevin’s last post re the Wall Street Journal, but I’m going to let that go in favor of taking up another issue that comes from an earlier WSJ editorial, Pelosi’s Self-Torture.  (WSJ, editorial, May 15, 2009.)  

In the middle of that editorial (with which I otherwise largely agree), the Journal notes that Pelosi has called for more members of Congress to be informed of these things, and, it appears, about “covert” activities more generally:

 Speaker Pelosi said one other thing that deserves attention by people still hoping to save Washington from itself. She suggested that we “must review” the National Security Act of 1947 with an eye toward giving “larger numbers of Congress” access to classified briefings. This in the interest of “proper oversight.”

The 1947 act – the National Security Act of 1947 that established the CIA – or anyway the reporting requirement, is codified as part of 50 USC 413b., “Presidential approval and reporting of covert actions,” under Subchapter III, Accountability for Intelligence Activities.  (Thanks to the Cornell law site for the link.)  The section, which traces back to the Hughes-Ryan amendment and other modifications arising out of the 1970s Church hearings, mandates that prior to authorizing any “covert action,” the President must first make a series of specific findings and, in addition, inform Congress of the action. (I’m having trouble getting the actual language of the statute to post properly, but anyway you can go to the Cornell link to read it.)

Speaker Pelosi is urging that more Congressional members be involved in the process of informing Congress under the statute. The WSJ slams that idea:

Is she serious? The mess that now engulfs her and other Democrats can be solved by giving more Congressfolk access to the nation’s most sensitive secrets? Only a Member of Congress could conclude that you can enhance political accountability by making it more diffuse.

This is a matter on which I have long parted company from the Journal’s editorial view, starting with a short (alas entirely ignored) piece in the New York Times Magazine in 2006, and in more detail in a Policy Review essay, Law and Terror, afterwards.  These pieces put me in the company of Ben Wittes and Jack Goldsmith, among a sizable group, who believe that a (the?) fundamental problem of domestic counterterrorism policy in the Bush administration was that, in order to preserve the maximum space for presidential action, the administration refused to go to Congress and work with it – a Republican Congress, no less – to come up with a shared policy.  What lives by executive discretion dies by executive discretion – or else by Justice Kennedy, unconstrained by the strongest of the Youngstown categories.  The policy of the United States in something so momentous and long-running as counterterrorism always needed to be a joint effort of the two political branches, speaking in concert.   

Speaker Pelosi is right, in my view, and so is the idea that Congress should be forced to be entirely and unambiguously intertwined with security policy.  Forcing that to happen, whatever it and the Executive can agree upon, is perhaps the single most important structural national security lesson of the Bush administration. The problem is not that Speaker Pelosi was informed and is now twisting in the wind – a larger and bipartisan group of senior Congressional leaders should be there with her. So many, in fact, that it becomes the case that whatever the interrogation or covert policies of the executive are, whether under Bush or Obama, they are the policies of the United States political branches of government. The executive cannot go it alone on the basis of an assertion of purely discretionary executive power; it needs to make the tough decisions by forcing Congress to sign aboard, offer up its own policy, or at a minimum be informed and given an opportunity to dissent.  What is the lesson of the Congressional efforts to promote prosecutions, or truth commissions, or any of these other measures, at least if you are an executive – whether Bush or Obama?  Hang together or hang separately.  

There needs to a dozen of the most senior Congressional leaders of both parties, at least, briefed on all these matters of covert action.  Twenty is even better.  I understand the Journal’s concern about secrecy and leakage.  But the CIA and the executive leak whatever they feel like, apparently, when they feel like it.  The loss of secrecy is offset by the legitimacy and, less politely, the plain understanding that Congress is not able to kibbitz and cavil after the fact if enough of its own members are as much hostage to fortune as the administration is.  But as Jack Goldsmith pointed out, this only happens if the executive forces it on the legislature; otherwise the legislature will always duck accountability in advance, seeking naturally to minimize accountability for itself while preserving its ability to go after others.  The only way to prevent this political destructive dynamic is to force the two political branches to work in concert.

Very well.  If that’s so – and I understand that many people disagree on all sides of this debate, so if you propose to disagree in the comments, please do so politely, no rants, and no ad hominem attacks – there are some legal peculiarities in all of this.  

One is that I do not understand precisely how 50 USC 413b. covers the question of interrogations at all.  Certainly I think it should, and perhaps I don’t understand fully the workings of the statute or its interpretation (I welcome expert input her – Dan Marcus, Steve Vladeck, someone want to weigh in here?), but I do not see how the interrogations are covered by the statutory definition of “covert action.”  The term is defined for the first time as a matter of legislation in 50 USC 413b.(e) (see Cornell link above):

[T]he term “covert action” means 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, but does not include — … activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities …

Assume that Guantanamo or the black sites abroad satisfy the “abroad” requirement; would the interrogations, even using enhanced harsh techniques, not constitute acquiring intelligence, and so be exempt under the definition?  You could argue, I suppose, that the application of the EITs constituted some form of “use of force” that, even without explicit statement in the statute (the so-called Fifth Function”) have always been understood to fall within the reporting requirements.  I am not suggesting that reporting would not be a good idea – on the contrary, I think probably the definition should expanded to make clear that activities are affirmatively included.  Good that the reporting was done, to the extent it was, and even if there was not some clear requirement that it take place.  But the statutory basis is not clear to me, and I’d welcome some expert elucidation on this point.  For example, are there other reporting statutes at work here, to which Speaker Pelosi also refers?

The other question I had referred to a conversation I had recently with an experienced national security journalist – who pointed out to me that over time, the number of people briefed as a general matter under this statutory section seemed to have shrunk down to four.  Is that the case?  If so, I don’t understand how exactly that happens consonant with the statute.  Again, I welcome expert comment from people knowledgeable about the day to day workings of the process – I have never worked in government, so much of this is mysterious to me.