My attention has been called to Section 502 of the Intelligence Authorization Act of 2009 (H.R. 5959), which passed the House last year (but never became law). This provision would have amended the National Security Act of 1947 to provide a procedure governing situations where the President decides to disclose certain highly sensitive intelligence information only to the Chair and Ranking Member of the congressional intelligence committees.
Under this provision, intelligence information (other than information on covert action, which, as noted in my last post, is already covered by statute) would have to be shared with all members of the intelligence committees “unless the President requests that access to the information or material be limited after determining that limiting such access is essential to meet extraordinary circumstances affecting vital interests of the United States.” The request and the extraordinary circumstances justifying it would have to be detailed in writing to the Chair and Ranking Member.
Even when such a request was made, it would not be automatically binding on the committees. Instead, it would be up to the Chair and Ranking Member of each committee to “jointly determine whether and how to limit access to the information or material.” If they were unable to agree, however, the default position would be to limit access in accordance with the President’s request. Finally, “any information or material to which access is limited shall subsequently be made available to each member of the congressional intelligence committees at the earliest possible time and shall include a detailed statement of the reasons for not providing prior access.”
Of course, the fact of an unenacted statutory amendment does not prove what the current state of the law is, but it tends to confirm my view that Congress has not given and would not give the executive branch ultimate control over what Members can do with intelligence information that has been shared with them. Instead, the final decision must rest with each House of Congress, acting pursuant to its own rulemaking powers. Indeed, even if the statutory provision were passed, it would still be within the constitutional power of each House to change its own procedure by resolution of the body.
My understanding is that Section 502 had bipartisan support. Perhaps there will be another effort to enact this worthwhile clarification of the law.