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Kathleen Clark on the “Right to Counsel” in Intelligence Oversight

Professor Kathleen Clark recently published this article regarding congressional oversight of intelligence. In brief, she argues that when leaders of the intelligence committees are given restricted briefings by the executive branch, they should be able to share the information with cleared committee staff members from whom they need to obtain “counsel” (by which she means expert, not necessarily legal, advice). She proposes that the committees proactively establish rules or policies to “clarify that the committee leadership can share information with staff where necessary to carry out its oversight responsibilities, including with respect to covert actions.”

I basically agree with this proposal, which is similar in approach to what I have suggested with regard to sharing information with other committee members:

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

It would make sense for such a rule to address both sharing of information with other committee members and with congressional staff.

I would suggest that the default rule for Gang of Four briefings on non-covert action matters should be that each member of the Gang of Four is free to discuss the information with designated committee staff for purposes of obtaining advice on legislative or oversight matters. If the executive branch wished to alter this rule for purposes of a particular briefing, it would have to provide a justification in advance of the briefing, which the intelligence committee leadership could then decide whether to accept or reject.

It should be noted that staff are not necessarily excluded from Gang of Four briefings; for example, selected staff members were included in the Gang of Four briefings on enhanced interrogations. Gang of Eight briefings on covert action, however, are statutorily limited to the Gang of Four plus the four congressional leaders. Therefore, one would not expect staff to be in attendance.

Because of the highly sensitive and time-limited nature of covert operations, I think that different arrangements may be needed with respect to briefings on such operations. The statute recognizes that the President may withhold prior notification entirely with respect to covert operations (as, for example, was the case with regard to the May 1, 2011 operation against Osama bin Laden).  It therefore may be wise or necessary for the intelligence committees to agree not to share information with staff without prior notice to the executive branch (in the same manner as I suggested with regard to sharing information with other committee members).

Finally, I think that it would be preferable to embody these procedures in House and Senate rules, rather than merely in committee rules. However, because of the difficult of amending the Senate’s rules in particular, Clark’s approach may be prove to be more feasible.

For further background, see Al Cummings’s reports on Gang of Eight and Gang of Four briefings.

 

 

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