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What the Presence of Congressional Staff Tells Us About the Interrogation Briefings

            Documents released by the CIA in the past few days indicate that congressional staff attended the key briefings given Congress with regard to “enhanced interrogation techniques” used on terrorist detainees.  In particular, a September 4, 2002 briefing to Porter Goss and Nancy Pelosi, then the Chairman and Ranking Member of the House Permanent Select Committee on Intelligence, was attended by Tim Sample and Michael Sheehy, and a February 5, 2003 briefing to Goss and Jane Harman (who had then replaced Pelosi as HPSCI Ranking Member), was attended by Patrick Murray, “Louise” Healey (referring, I assume, to Christine Healey, whose real first name is apparently classified), and Sheehy. 

            This is interesting for several reasons.  First, the fact that congressional staff participated in the briefings may tell us something about the legal authority under which the briefings were conducted.  There is only one legal provision which explicitly authorizes intelligence briefings limited to the Chairman and Ranking Member of the House and Senate Intelligence Committees.  This provision, which governs covert action findings, states: “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.”  50 U.S.C. § 413b (c) (2). 

            If the Bush Administration had been relying on this provision, it seems unlikely that it would have permitted staff to attend the briefings.  After all, the statute specifically identifies the persons to whom the President may choose to report the finding, and all of them are members of the House and Senate.  It would seem difficult for the administration to have justified excluding congressional leadership, which is specifically mentioned in the statute, while at the same time including HPSCI staff, which is not.

            It seems more likely, therefore, that the briefings were conducted pursuant to an informal practice that has developed over a number of years.  This practice was described by L. Britt Snider in a 1997 article entitled “Sharing Secrets with Lawmakers:  Congress as a User of Intelligence:  Occasionally, even in the intelligence committees, an analytical judgment or conclusion will be based on very sensitive information that analysts feel uncomfortable imparting to a large audience. Agencies typically deal with such situations by briefing the chairman and the ranking minority member separately, or perhaps the majority and minority staff directors acting in their stead. When the full committee is subsequently briefed, the analyst usually states that certain extremely sensitive information has been conveyed separately to the chairman and the ranking minority member.”

            Since that time, it appears that the practice of limiting briefings to the Chairman and Ranking Member (or their staff representatives) has become broader and more routine.  According to a January 2009 CRS Report, the executive branch now generally limits briefings on “operational intelligence” in this fashion, despite the absence of any statutory authority to do so.

            The fact that the executive branch without statutory authority limits who may attend briefings, however, cannot in itself impose any restriction on what may be done with the information received in those briefings.  (This also may be true, but less obviously so, for limited briefings authorized by statute).  I presume that the executive branch would claim there is at least an informal understanding that the information provided in limited briefings will not be shared with other members of the intelligence committees; perhaps there are even written protocols to that effect.  But while such agreements might be “enforced” by the executive branch cutting off future briefings, they would not seem to be legally binding or enforceable in any sense.

            Furthermore, it might be difficult to square any such non-disclosure agreement with the rules that govern HPSCI.  Nothing in either the House or committee rules explicitly authorizes, much less requires, the Chairman or Ranking Member to keep information secret from other members of HPSCI.  On the contrary, HPSCI Rule 14(b) provides that “[a]ll Members of the Committee shall at all times have access to all classified papers and other material received by the Committee from any source.”    In addition, House Rule X (11) (g) authorizes HPSCI to “disclose publicly any information in its possession after a determination by the select committee that the public interest would be served by such disclosure.”  If the Chairman and Ranking Member could not disclose information to other members, there would be no way for the committee to make this determination.

            It seems likely, therefore, that Goss, Pelosi and Harman were legally entitled (a) to disclose information received in the restricted EIT briefings to other members of HPSCI and/or (b) to introduce a HPSCI resolution authorizing the disclosure of the information to other members for purposes of making a finding under House Rule X (11) (g).  Of course, they might not have been aware of their legal rights in this regard if they had been dependent solely on the executive branch for advice and assistance.  But because they had staff to advise them, they had the opportunity to learn their rights if they were so inclined.

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