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Crossposted from

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

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;

(Emphasis mine)

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.

(Emphasis mine)

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.

Originally posted to smokeymonkey on Thu Jan 05, 2006 at 09:33 PM PST.

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Comment Preferences

  •  Tips (4.00)
    I love reading legislation.  I think I should have been a lawyer.

    Keep your constitution close my friends, and read it daily.

    by smokeymonkey on Thu Jan 05, 2006 at 09:29:21 PM PST

  •  Very sharp analysis. (none)
    I want you on my staff in the unlikely event I'm a Senator come January.

    A Senator YOU can afford
    $1 contributions only.
    Masel for Senate
    1214 E. Mifflin St.
    Madison, WI 53703

    by ben masel on Thu Jan 05, 2006 at 09:56:34 PM PST

  •  International telecommunications Treaties? (none)
    This one just pops into my head, no research yet....

    I suspect that the admitted elements Bush ordered NSA operation violates both UN treaties to which the US is signatory, and some number of bilateral treaties.

    Non-US goverments might have jurisdictional problems prosecuting Bush (but remember Noriega?), but they'd have much less in bringing actions against corporate players with a presence in their country which actively co-operated when they should have known such snooping is illegal.

    A Senator YOU can afford
    $1 contributions only.
    Masel for Senate
    1214 E. Mifflin St.
    Madison, WI 53703

    by ben masel on Thu Jan 05, 2006 at 10:06:44 PM PST

  •  thanks for this (none)
    It's too late this evening for me to digest all this, but my first reaction is one of gratitude: to you, for putting the diary together, and to Rep. Harman (my Congresswoman), for taking this on. I'll re-read this in detail in the morning.

    I've been on the phone with several of Rep. Harman's staff members recently, airing my concerns about the NSA scandal. I wasn't told much more than that "a lot will come to light" as the wiretap story progresses, and obviously, this is a good first step. I'm looking forward to Rep. Harman's follow-through. This is promising.

    "[I]n all due respect to your profession [journalism], you do a very good job of protecting the leakers." -- George W. Bush on Oct 7, 2003

    by QuickSilver on Thu Jan 05, 2006 at 10:47:58 PM PST

  •  The Bush directive (none)
    The October 5, 2001 Bush directive on disclosures to Congress here.
    At the same time, we have an obligation to protect military operational security, intelligence sources and methods, and sensitive law enforcement investigations.
    The only Members of Congress whom you or your expressly designated officers may brief regarding classified or sensitive law enforcement information are the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders, and the Chairs and Ranking Members of the Intelligence Committees in the House and Senate.
    •  Critical (none)
      That is a critical piece of the pie!  Thanks for adding that link.  The backgrabbing non-sense of this administration is just crazy.  This is a perfect case for moving the Judiciary department and the Attorney General out of the executive branch.  This President either doesn't fucking care about laws or has some very clever people screwing them all.

      This executive order essentially makes the exceptions noted in Sec. 503(c)2 permanent for all discussions of the war on terror with congress.  That is simply unacceptable and clearly illegal.  Executive orders do NOT trump valid legislation that specifically renders executive powers.

      Keep your constitution close my friends, and read it daily.

      by smokeymonkey on Fri Jan 06, 2006 at 08:14:52 AM PST

      [ Parent ]

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