A Most Important Development on CIA Interrogation, Electronic Surveillance, and Congressional Oversight

Marty Lederman

As reported by Scott Shane in the New York Times today, the Senate Intelligence Committee yesterday approved an Intelligence Authorization Act for the Fiscal Year 2008. The bill itself is very important, as is an accompanying Report.

I don't have time just now to provide adequate commentary on the many issues raised by this development, other than to identify and quote some of the more important details. Suffice it to say that if you are interested in any of the issues we have discussed in our 550-plus posts on torture, interrogation, OLC, electronic surveillance, executive power and congressional oversight, you should read the bill and the report very carefully. Note, however, that passage of the bill in its current form is still several very significant steps away, and it is by no means certain the President would sign this bill -- not, at least, without a signing statement signaling that he will refuse to abide by some of the bill's most important provisions (including requirements of disclosure to Congress).

CIA Interrogations

Unfortunately, perhaps the most important development was an amendment sponsored by Senators Whitehouse and Feinstein that the Committee rejected last week, by an 8-7 vote (Senator Bill Nelson of Florida having voted with all of the Republican Senators).

The amendment would have barred the use of appropriated funds for interrogation methods by the CIA or other U.S. agencies that are not explicitly authorized by the U.S. Army Field Manual on Human Intelligence Collector Operations, absent a determination by the President that a national exigency exists and that an individual has information about a specific and imminent threat. It read as follows:

Absent a determination by the President that there is an immediate national exigency, and that there are compelling reasons to believe that the individual has information about a specific and imminent threat related to that national exigency, none of the funds made available pursuant to this Act or pursuant to any authorization of appropriations in this Act may be used for the interrogation of an individual by the Central Intelligence Agency or any other department, agency, or entity of the United States in a manner that differs from treatment or techniques of interrogation explicitly authorized by, and listed in, the United States Army Field Manual on Human Intelligence Collector Operations.

In lieu of this amendment, the Committee by voice vote chose to include in the Committee Report (not in the bill) the following language regarding the CIA program:

The fiscal year 2008 intelligence authorization bill is the first passed by the Committee in which all members were briefed on the CIA’s detention and interrogation program. While the program has been briefed from its outset to the Committee’s Chairman and Vice Chairman, the Administration’s decision to withhold the program’s existence from the full Committee membership for five years was unfortunate in that it unnecessarily hindered congressional oversight of the program.

Significant legal issues about the CIA detention and interrogation program remain unresolved. The Department of Justice has not produced a review of aspects of the program since the Supreme Court’s Hamdan decision and the passage into law of the Detainee Treatment Act in 2005 and the Military Commissions Act of 2006. The Committee urges prompt completion of such a legal review as soon as possible, regardless of whether the program is currently being used. The Committee expects that such review will be provided to the Committee as a part of its ongoing oversight of the program.

The Committee recognizes that the program was born in the aftermath of the attacks of September 11, when follow-on attacks were expected. The Committee acknowledges that individuals detained in the program have provided valuable information that has led to the identification of terrorists and the disruption of terrorist plots. More than five years after the decision to start the program, however, the Committee believes that consideration should be given to whether it is the best means to obtain a full and reliable intelligence debriefing of a detainee. Both Congress and the Administration must continue to evaluate whether having a separate CIA detention program that operates under different interrogation rules than those applicable to military and law enforcement officers is necessary, lawful, and in the best interests of the United States.

Moreover, the Committee believes that the demonstrated value of the program should be weighed against both the complications it causes to any ultimate prosecution of these terrorists, and the damage the program does to the image of the United States abroad.

This is an important statement. I fear, however, that the Administration will construe Congress's failure to include the Whitehouse/Feinstein Amendment as a green (or at least yellow) light to continue the CIA program, consistent with whatever strained interpretation of Common Article 3 the Administration might come up with.

As for public disclosure of the CIA program and compliance with Common Article 3, section 310 of the bill would require the Director of National Intelligence to submit a classified report by September 1, 2007 to the congressional intelligence committees on all measures taken by the intelligence agecnies on compliance with detention and interrogation provisions of the Detainee Treatment Act and the Military Commissions Act. The secret report must include a description of any detention or interrogation methods "that have been determined to comply with the prohibitions of the Detainee Treatment Act and the Military Commissions Act or have been discontinued pursuant to them." The classified report must also include an appendix containing all guidelines on the application of the DTA and MCA to the detention or interrogation activities of the intelligence community, as well as all DOJ legal justifications about the meaning of the Acts with respect to detention or interrogation activities, if any, of any IC element.

I'm not certain how this provision is intended to comport with section 6 of the MCA itself, which requires the President to issue the government's interpretations of Common Article 3's prohibitions by Executive Order published in the Federal Register. I suspect it means that the Federal Register report will be very cryptic and uninformative, and that the public will not learn of what techniques our government is using and deeming not to be "cruel treatment and torture." I think this is very unfortunate, and for the most part unjustifiable. Just as the details of the Army Field Manual and published and open to public debate, so, too, should be the legal limitations that our government has identified regarding the CIA's analogous activities.

NSA Electronic Surveillance and FISA

At least two developments on this front.

First, the Committee voted 10-5 (Senators Hagel and Snowe joining the Democrats), to include section 319, which would require the Department of Justice to provide to the congressional intelligence and judiciary committees, within 45 days, copies of all decisions, orders, and opinions (and associated pleadings) issued by the Foreign Intelligence Surveillance Court (FISC) that involve significant construction or interpretation of FISA, as well as all such documents compiled over the past five years.

Second, by a vote of 9-6 (Dems plus Snowe), the Committee voted to include the following paragraphs in the Report (not in the bill). They basically amount to a statement that if the Administration does not disclose to Congress the President’s orders authorizing NSA's warrantless surveillance and DOJ's legal opinions on the legality of the program, the Committee will not so much as consider the Administration's proposed amendments to FISA. It's not clear how effective this threat will be as a practical matter, since there did not appear to be any serious prospect of enacting the Administration's FISA proposal in any event:

The Committee remains committed to giving careful consideration to the issues involved in the Administration’s legislative proposal to amend the Foreign Intelligence Surveillance Act and the proposal to provide liability protection to telecommunications companies who are alleged to have assisted the Intelligence Community in carrying out the President’s surveillance program.

The Committee’s review of the Administration’s proposals and possible alternatives cannot be completed, however, until it receives key documents at the heart of the surveillance program: the President’s orders authorizing the warrantless surveillance and the Department of Justice opinions on the legality of the program. The Administration’s refusal to satisfy these document requests span over a year and hampers the Committee’s ability to move forward on the legislation before it.

The Committee is also concerned about continued Administration requests to limit access by Committee staff to information related to the program. Limited staff access impedes congressional oversight as well as the Committee’s ability to consider legislation related to the Foreign Intelligence Surveillance Act. Access to the program should therefore be expanded to the Committee’s professional staff, including all Members’ designees.

Congressional Oversight

Sections 312, 313, and 320 of the bill would improve congressional oversight of important intelligence activities. All were passed 10-5 (Dems plus Hagel and Snowe). These provisions are likely to run into fierce White House resistence and/or constitutional objections, but they could be very significant if enacted, because, as Sentor Whitehouse notes in his statement, as a general matter "the secrecy these programs require to be effective insulates them from many ordinary channels of accountability."

For ease and the sake of time, I'lll simply quote here from the Committee Report with respect to these provisions; but you are advised to read the actual bill language.

Section 312. Improvement of notification of Congress regarding intelligence activities of the United States Government.

Section 312 amends the requirements for notifications to Congress under Sections 502 and 503 of the National Security Act of 1947 (50 U.S.C. 413a & 413b). First, Section 312 requires that, in the event that the DNI or the head of an Intelligence Community element does not provide to all members of the congressional intelligence committees the notification required by Section 502 (relating to intelligence activities other than covert actions) or Section 503 (relating to covert actions) of the National Security Act of 1947, the committees will be provided with a notification of this fact and will be provided with a description of the main features of the intelligence activity or covert action. The provision specifies that no restriction shall be placed on the access to this notification by any member of the committees. Second, Section 312 extends requirements in Section 502 of the National Security Act of 1947 on the form and contents of reports to the congressional intelligence committees on intelligence activities other than covert actions to the requirements for notifications to Congress under Section 503 of that Act (relating to covert actions). Third, the section requires that any change to a covert action finding under Section 503 of that Act must be reported to the committees, rather than the existing requirement to report any significant change.

Section 313. Additional limitation on availability of funds for intelligence and intelligence-related activities.

Section 313 adds to the requirements of Section 504 of the National Security Act of 1947 (50 U.S.C. 414), which specify that appropriated funds may be obligated or expended for an intelligence or intelligence-related activity only if the congressional intelligence committees have been “fully and currently informed” of that activity. Section 313 adds that, for intelligence activities or covert actions covered under Section 312, the committees should be considered to have been “fully and currently informed” only if a notification providing the main features of the activity or covert action has been provided as required by Section 313.

Section 320. Submittal to Congress of certain President’s Daily Briefs on Iraq.

Section 320 requires the DNI to submit to the congressional intelligence committees any President’s Daily Brief (PDB), or any portion of a PDB, of the Director of Central Intelligence (DCI) during the period beginning on January 20, 1997, and ending March 19, 2003, that refers to Iraq or otherwise addresses Iraq in any fashion.

Posted 7:02 AM by Marty Lederman [link]