Rep. Jane Harman has suggested in this NY Times article:
...the briefings [to the 'gang of eight'] did not comply with the National Security Act of 1947. That law requires the House and Senate Intelligence Committees to be "kept fully and currently informed" about the spy agencies' activities.
The article continues:
Ms. Harman wrote in her letter that the law allowed briefings to be limited to the eight leaders only in cases of covert action. The National Security Agency program does not qualify as a covert action, which the law says does not include activities whose "primary purpose is to acquire intelligence," she wrote.
Although she is actually for NSA spying, this insight could be more useful in prying open the door to get some light on this monster in the closet. Let's take a look at the law below.
For a quick brief of the National Security Act of 1947, read this from the State Department website.
Although I could not find summary and text on a Thomas search, I did find the text on Milnet.com.
Please note that the text linked above is as it has been amended over the course of years. This Act includes the creation of the National Security Council and the Central Intelligence Agency, as well as the formation of the Department of Defense, combining depts of army and navy, plus creation of air force. Therefore, there is a great deal of history to this Act.
I mention that specifically because the first section I want to quote lays some groundwork. This is one of the duties of the Director of Central Intelligence (DCI):
establish requirements and priorities for foreign intelligence information to be collected under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.. 1801 et seq.), and provide assistance to the Attorney General to ensure that information derived from electronic surveillance or physical searches under that Act is disseminated so it may be used efficiently and effectively for foreign intelligence purposes, except that the Director shall have no authority to direct, manage, or undertake electronic surveillance or physical search operations pursuant to that Act unless otherwise authorized by statute or Executive Order;
Here we establish that the DCI works with the Attorney General to disseminate intelligence collected under FISA, and also that the DCI must be authorized to gather intelligence under FISA and cannot do so on his own.
Now to demonstrate Jane Harman's point, we come to Title V - Accountability for Intelligence Activities. The very first section reads like this:
SEC. 501. [50 U.S.C. 413] (a)(1) The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this title.
(e)Nothing in this Act shall be construed as authority to withhold information from the congressional intelligence committees on the grounds that providing the information to the congressional intelligence committees would constitute the unauthorized disclosure of classified information or information relating to intelligence sources and methods.
In other words, the White House cannot claim it withheld info from the larger intelligence committees (vs gang of eight) because it was so sensitive that they could not risk knowledge of the program being leaked.
Section 502 goes on to specify that there are covert exceptions defined in 503(e):
As used in this title, the 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 -
(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;
Backing up just a bit, here is the phrase regarding limiting consultation to the 'gang of eight':
Sec.503(c)2 if the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and 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 President.
The conclusion: First off, by their own explanations, the White House is claiming that all that is going on is that they are listening in on limited phone calls from al-Quaida to the US. That seems to be an intelligence gathering activity and is therefore not considered covert by this Act.
Second, the President has to demonstrate and document the 'extraordinary circumstances affecting vital interests' in order to avoid briefing the full intelligence committees. Here is the legal hole, because they use the 9/11 changed everything talking point. Everything is extraordinary and vital in a post-9/11 world according to the White House.
A final note, I want to make sure that this piece of the Act is well-known:
Sec.501(a)2 Nothing in this title 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.
Here is the answer to the 'congress has been briefed a dozen times' meme. The Act does not in anyway require approval from congress; it does, however, seem to require that the President turn over everything he has to the intelligence committees, and it seems to indicate he has been in violation of this Act in not doing so already and restricting his 'briefings' to the exception in 503(c)2.