- The Washington Times - Sunday, May 21, 2006

The recent outcry of congressional criticism about another leaked National Security Agency program was far more of a political “show” for the Hayden CIA confirmation hearings than anything else.

The facts are that — like the president’s “Terrorist Surveillance Program” — key congressional leaders from both parties were briefed several years ago about the NSA program, and some decided to complain about it, but only after it became public. In a smart political countermove — and just before the Hayden confirmation hearings began last week — the White House authorized briefings on the program for the entire membership of the two intelligence committees.

If this seems to you more like a Kabuki dance than a serious matter of national security, you would be right.

Here’s the relevant background: By law — the president is required to keep the Intelligence Committees “fully and currently informed” on intelligence matters. And, for more sensitive activities, he can limit the briefings to the two Intelligence Committee chairmen and the ranking minority members (that’s four), plus the majority and minority leaders of each house of Congress (another four).

Four and four is eight, hence the Washington insider phrase “gang of eight.” The “gang” part of it is a term from post-Maoist China, oddly enough — where there was a “Gang of Four” — Mao’s wife and three others, who were held responsible for the failure of the Cultural Revolution. It is the “held responsible” part that is troubling for some Members of Congress.

To be fair, the briefings offer a great way for the executive branch to “cover” itself, as they say around town. When these key members of Congress are briefed, the administration can say, “we briefed Congress.” And that’s what the president and other senior officials have said, for example, about the various NSA programs.

But imagine you are a minority member of the “gang” (from either house) and are briefed about something that could be a political problem for the administration if made public — i.e., the NSA programs. Can you keep the details secret from your colleagues? Do you hope the activity is disclosed so you can criticize it, but you’re not sure how sincere your criticism will be taken since you “knew” about it?

If the story gets out anyway, your colleagues complain you should have told them. And, to deflect this criticism, you complain publicly about how the president should have briefed all members of Congress. By the way, can we imagine how long a supersensitive intelligence activity would remain a secret if every member of Congress were briefed on it?

Fortunately, this kind of political posturing doesn’t happen very often. However, there isn’t a formalized way to express or record individual reactions or objections to a briefed “gang of eight” activity or operation. Recognizing this, the chairman of the Senate Intelligence Committee, Pat Roberts of Kansas, said recently that if the Democratic Vice Chairman Jay Rockefeller of West Virginia had real concerns about the NSA intercept program, he should have used the “tools” he had as vice chairman and requested committee or legislative action — and that “feigning helplessness is not one of those tools.” True, but perhaps there should also be a very precise record of these briefings so there can be no “20/20 hindsight” and political finger-pointing if these activities are later compromised.

However, this suggestion would not be taken very seriously — because both sides will insist on being able to talk about how much or little was covered in a particular briefing or whether and to what extent they objected. After all, the essence of a political dispute depends on being able to spin the facts and to be able to say later: “I told you so” or “I objected” or the Washington classic heard again and again — “I didn’t know” — even if it didn’t happen quite that way.

Nevertheless, if there truly is interest in “fixing” this problem so there can be absolutely no doubt about “who knew what, to what extent and when they knew it” and whether they objected or not, and, if so, whether they objected seriously or “just for the record,” it would be easily enough done. But, some doubt Congress would be interested, because members want it both ways: To know all about sensitive intelligence activities, yet to be able to criticize if the activities become public.

That’s not all that’s playing here: In the Senate especially, there’s jurisdictional tension between the Judiciary Committee and the Intelligence Committee with regard to NSA programs, because of the legal issues involved with intelligence collection. And, Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, was once chairman of the Senate Select Intelligence Committee (SSCI), and is keenly interested in these issues.

However, when the SSCI was formed, the idea was to have overlapping members in certain key committees, including Judiciary, so those committees were — technically at least — “on notice” of those matters briefed to the SSCI. And, as senators tend to have big egos, there is always a “slight” perceived when one knows something another doesn’t. This has clearly played a key role in the whole NSA matter, and has now expanded to include the Hayden CIA nomination — which is primarily a matter for the SSCI.

Bottom line? Especially in an election year, don’t expect much out of Congress about keeping themselves “fully and currently informed” on intelligence matters — sometimes that isn’t what they want at all. And, far more important to a few is to be perceived as “relevant” on the issue and getting “face time” on the Sunday talk shows — the stuff this town runs on.

Daniel Gallington is a senior fellow at the Potomac Institute for Policy Studies. He served as bipartisan general counsel to the Senate Intelligence Committee and was deputy counsel for intelligence policy at the Justice Department.

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