Blog — Senate

June 23, 2014

The House Should Slow Down on a Flawed Intelligence Authorization Bill

By Daniel Schuman

David Grannis, Senate Select Committee on Intelligence (SSCI) Chief of Staff and Senator Feinstein, SSCI Chairman

On Friday, House leaders placed the Senate's Intelligence Authorization bill on a fast track that would avoid substantive consideration by the full House, including the ability of representatives to offer amendments. The bill, introduced by Senate Intelligence Committee Chair and surveillance-enthusiast Sen. Dianne Feinstein (D-CA), was passed by the Senate on June 11 and does not reflect the deep concerns many have regarding the behavior of the intelligence community. A floor vote should be deferred until the House has a full opportunity to work its will, including a rigorous debate on the legislation and the opportunity to consider amendments on the House floor.

Friday afternoon's Whip Notice contained a notice by the Office of the Majority Leader that the Intelligence Authorization bill would be considered for "suspension" as early as Tuesday. Generally speaking, only non-controversial bills are put on suspension. For suspension bills, just 40 minutes of debate is allowed, with no opportunity for amendment unless an amendment is included in the motion to suspend. Because of these limits on debate, motions to suspend require a two-thirds affirmative vote to pass. The Intelligence Authorization bill should not be considered under suspension; the usual process likely was bypassed after House leaders grew alarmed by successful votes to put limits on the NSA through floor amendments to the Defense Appropriations Act.

What is there to hide? Included in the lengthy bill are what at first blush appear to be new disclosure requirements imposed on the Department of Justice's Office of Legal Counsel. The OLC writes authoritative legal opinions that permit or preclude the executive branch from acting. For example, the office has issued memos allowing torture, drone strikes, and warrantless surveillance. As far as we can tell, two-fifths of its opinions over the last dozen years are secret, with many secret from Congress as well as the American people. Considering these opinions often function as law and yet are placed beyond review, it is imperative that Congress and the public have access to the laws the executive branch is inventing.

What the OLC provision in the Intelligence Authorization should do is simple. It should provide a list of all OLC opinions to every member of Congress and to the public, excluding ongoing covert actions. The opinions themselves should be available upon demand to every Member of Congress and cleared staff, except for ongoing covert actions that should be provided only to the committees of jurisdiction. Non-cleared staff should have access to unclassified opinion summaries. The vast majority of opinions should be published to the public, subject to greater limitations arising from properly classified information. For opinions too sensitive or too redacted to publish to the public, the OLC should release unclassified summaries of the legal analysis.

The Intelligence Authorization bill does none of this. Instead, section 322 of the bill creates significant complications without commensurate benefits to Congress or the public.

To start, it requires the director of national intelligence and the attorney general to jointly create a process to decide which "significant" OLC memos provided to an element of the intelligence community should be released to the public. The OLC already has a process, flawed as it may be; adding the DNI to the process creates another choke point. Section 322 establishes a five factor disclosure test that does not include the public's interest in knowing what the government is doing, but does allow the AG and DNI to create new factors. There is no definition of what constitutes a "significant opinion," leaving it up to interpretation.

The administration currently has a policy instituting a presumption in favor of release of documents to the public. The draft legislation also includes that presumption, but with significant caveats. First, it applies only to "significant" opinions. Second, publication may take place only when "practicable," although it is unclear what that could mean. (Is it hard to publish online? Maybe no one is around to conduct the review.) Finally, it permits publication only when "consistent with national security and other confidentiality considerations." Beyond properly classified information, it is unclear what other national security considerations could properly be involved to withhold information. There also is no way of knowing the scope of the "confidentiality considerations" included in this rule, but it certainly could swallow any presumption of disclosure.

The draft bill also allows the OLC to withhold from publication, among other things, opinions that would "conflict with preserving internal Executive branch deliberative process or protecting other information properly subject to privilege." In litigation, the administration has taken the posture that all OLC opinions are subject to privilege, so this provision makes the legislation virtually meaningless.

While there is some good in the proposal—the "appropriate" committees of jurisdiction would be able to receive classified OLC opinions that, but for the classification, would be publishable to the public— the weaknesses make these disclosure provisions farcical. It provides the illusion of transparency, but actually gives the national security apparatus even greater control over the flow of information to Congress and the public.

This is but one of many troublesome provisions in the Intelligence Authorization bill, which is filled with vague language and Trojan horse provisions. For example, the immediately preceding provision, section 321, concerns significant interpretations of law by intelligence agency general counsels, but is even more flawed. Despite some good provisions, such as those concerning whistleblowers in Title VI, the legislation is not ready to become law. The House must do its job of properly vetting the bill.

 

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