CQ TODAY PRINT EDITION
– INTELLIGENCE
May 14, 2009 – 9:08 p.m.
Pelosi Controversy Suggests Changes to Congressional Briefings Are Due
By Tim Starks, CQ Staff
The partisan feuding over what House Speaker Nancy Pelosi knew and didn’t do about harsh interrogation techniques used during the George W. Bush administration has prompted a debate over Congress’ authority to receive information on or halt classified executive branch programs.
Pelosi, D-Calif., said on Thursday that she was exploring whether congressional briefings needed to be strengthened, and the chairman of the House Select Intelligence Committee signaled that his panel would soon advance legislation on the subject.
But while Pelosi said that only Democratic control of Congress and the White House could stop the harsh methods from being used, Republicans countered that they have at times employed tools Pelosi did not employ herself to effectively object to classified programs and have fought to overhaul the briefing process.
Experts disagree on how much Pelosi could have done to shut down the harsh interrogation methods, but they concur that the congressional briefing process needs to be fixed. Congress has tried in recent years to pass legislation to overhaul congressional briefings, largely without success.
At issue is what Pelosi could have done once she learned that harsh interrogation techniques were being used. She said Thursday that a staffer had informed her in 2003 that Jane Harman of California, her successor as the panel’s top Democrat, and Porter Goss of Florida, then the top Republican, had been briefed on the use of harsh techniques and that Harman had drafted a letter opposing it. On Thursday, Pelosi said she had concurred with Harman’s opposition.
Subsequent legislative efforts to ban the harsh interrogation methods were defeated, either because the legislation did not pass or, on one occasion, because it was vetoed.
“No letter could change the policy,” Pelosi said. “It was clear we had to change the leadership in Congress and in the White House.”
Republicans, however, are casting doubt on Pelosi’s story. Senate Intelligence Vice Chairman Christopher S. Bond , R-Mo., said that GOP members, even in the minority, have used a number of tools to stand up to the executive branch that Democrats have failed to employ.
“We have been able to stop planned actions that were too risky, too unsound or unwise,” Bond said. He mentioned lawmakers’ ability to speak on the floor under the Speech or Debate Clause of the Constitution and their ability to use the appropriations process to withhold funding until the executive branch behaves according to Congress’ will.
“There were a whole range of actions, and she didn’t take them,” Bond said.
But Pelosi said that her hands were tied because she could not discuss the interrogation methods with others. The Bush administration conducted briefings on sensitive programs for the so-called “Gang of Four” (the top Democrats and Republicans on the Senate and House intelligence panels) or “Gang of Eight” (adding the top Democrats and Republicans in the Senate and the House). Lawmakers have complained that Bush abused this process, which is supposed to be limited only to covert actions.
“Like all members of Congress who are briefed on classified information, I have signed oaths, pledges not to disclose any of that information,” Pelosi said. “This is an oath I have taken very seriously, and I’ve always abided by it.”
Steve Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, said nondisclosure would have been an impediment to a range of potential remedies.
“There’s nothing she could have done without disclosing the information beyond the narrow circle that the executive branch had informed,” Aftergood said. “She would have had to alert other members of the Intelligence Committee and staff in order to devise a legislative solution. In order to exercise any kind of legislative muscle, she would have had to violate the terms of her briefing.”
GOP Dispute
But Republicans dispute this contention. For instance, when the top Republican on the House Intelligence Committee, Peter Hoekstra of Michigan, believed the full panel needed to be briefed on a 2007 Israeli airstrike in Syria, he inserted language into the fiscal 2008 intelligence authorization bill to block some funding until a full panel briefing occurred. The language was included even though most of the other members on the panel were not fully aware of the information Hoekstra was seeking.
Hoekstra also wrote an op-ed for the Wall Street Journal complaining about the lack of a full committee briefing on the matter, albeit in very general terms to avoid violating the classified information he had received in a more limited briefing.
Republicans also note that one of Pelosi’s top staffers, Mike Sheehy, was in the room during the 2002 briefing and could have, at Pelosi’s request, drafted bill language to block intelligence community funding in protest.
A legislative proposal in 2006 to give intelligence committee leaders broader discretion to disclose information received in “Gang of Eight” briefings to the full panel failed, but it is not clear that such language is necessary.
Sharing Information
Loch Johnson, a professor of political science at the University of Georgia who specializes in intelligence matters, said his former boss at the House Permanent Select Committee on Intelligence — Edward Boland, D-Mass. (1953-89) — routinely refused to allow only limited briefings or would share information he received in limited briefings with other panel members.
A Congressional Research Service analysis from 2006 found nothing that would prevent committee leaders from doing this as well.
“It may be argued that there apparently is no provision in law restricting whether and how the leaders of the committees share with the membership information pertaining to intelligence activities that the executive branch has provided to the chairmen and ranking members,” the CRS memo said. “Nor apparently is there any legal provision which sets forth any procedures that would govern the access of appropriately cleared committee staff to such classified information.”
Johnson said Pelosi could have raised “holy hell” by holding committee hearings and taking other steps. The question, Johnson said, is whether Pelosi would have needed to, assuming her version of the story is accurate.
“If she was told the possibility of harsh interrogations was only a possibility and off in the future somewhere, one can make the argument that there was no compelling argument to take further action,” Johnson said.
Versions of intelligence authorization legislation from fiscal 2006 to 2009 have included provisions on expanded briefings to congressional intelligence panels, many dating to the controversy over “Gang of Eight” briefings on the Bush administration’s warrantless surveillance program. But Congress did not enact intelligence authorization legislation in that time, ensuring the provisions did not become law.
If lawmakers want greater public scrutiny of an intelligence program, the two intelligence panels also have the capability to initiate a process to release classified information in their possession. Practically speaking, however, intelligence aides say using these powers is difficult, and the mere threat of their use helps compel executive branch cooperation.
Lawmakers could also read classified information into floor or committee records, as Democratic Sen. Mike Gravel of Alaska did to release the Pentagon Papers on the Vietnam War in 1971.
One way or the other, however, the debate over Pelosi and harsh interrogation methods points to a dysfunctional congressional briefing process, Johnson and Aftergood said.
“The two ingredients for effective oversight are, one, the executive branch has to cooperate and report, and, two, members of Congress have to have the willpower to demand access to information,” Johnson said, noting that there has been a “failure of willpower on Capitol Hill.”
House Intelligence Chairman Silvestre Reyes , D-Texas, said in a statement Thursday that his panel would soon work to overhaul congressional notification provisions.
“Our intent,” he said, “is to prevent future abuse of the ‘Gang of Eight’ process, to require that the president provide the intelligence committees any relevant legal documents, and to ensure that the voice of all intelligence committee members can be heard on important matters of national security.”
POST A COMMENT
Oops! The following errors must be addressed: