[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
CONGRESSIONAL NOTIFICATION: INTELLIGENCE COMMUNITY POLICIES, PRACTICES,
AND PROCEDURES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
INTELLIGENCE COMMUNITY MANAGEMENT
of the
PERMANENT SELECT COMMITTEE
ON INTELLIGENCE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
Hearing held in Washington, DC, October 27, 2009
Printed for the use of the Committee
U.S. GOVERNMENT PRINTING OFFICE
53-808 WASHINGTON : 2009
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CONGRESSIONAL NOTIFICATION: INTELLIGENCE COMMUNITY POLICIES, PRACTICES,
AND PROCEDURES
----------
TUESDAY, OCTOBER 27, 2009
House of Representatives,
Permanent Select Committee on Intelligence,
Subcommittee on Oversight and Investigations,
Joint With the Subcommittee on
Intelligence Community Management,
Washington, DC.
The subcommittee met, pursuant to call, at 10:05 a.m., in
Room HVC-210, Capitol Visitor Center, the Honorable Jan
Schakowsky, [chairwoman of the Subcommittee on Oversight]
presiding.
Present: Representatives Schakowsky, Eshoo, Holt, Schiff,
Myrick, Thornberry, Miller, and Conaway.
Chairwoman Schakowsky. I'll call this meeting to order.
Today we will examine how the Intelligence Community honors
and implements its legal obligation to keep Congress informed
about intelligence activities. This hearing is part of the full
committee's investigation into the Intelligence Community's
compliance with the National Security Act. This is a combined
hearing of the Oversight and Investigation Subcommittee and the
Intelligence Community Management Subcommittee, chaired by
Congresswoman Eshoo.
Under the National Security Act, the executive branch is
required to keep the committee ``fully and currently informed
of the intelligence activities'' of the United States,
including any ``significant anticipated intelligence activity''
and covert actions. These requirements are critical. The
executive branch's intelligence activities are secret, and the
American people rely on the congressional Intelligence
Committees to scrutinize them. They rely on this committee to
make sure that those activities are consistent with the
Nation's best interest and values. The committee is, in the
truest sense, the people's representative when it comes to
secret intelligence activities.
For the committee to perform these vital functions, the
committee must receive--and the executive branch must provide--
truthful, complete, and timely information. If this does not
occur, Congress cannot adequately perform its constitutional
obligation to authorize and appropriate money for intelligence
activities.
In recent years, various members of the committee from both
sides of the aisle have expressed concerns that the
Intelligence Community has failed to provide the committee with
full and complete information. Recent revelations have raised
yet more questions about whether the Intelligence Community has
violated the National Security Act.
Last week, the Intelligence Community Management
Subcommittee held a hearing focused on the National Security
Act's provisions that require the executive branch to keep the
committee informed about intelligence activities. That hearing
was an important step in the committee's investigation.
Today's hearing represents another important step. For the
National Security Act to be effective, the executive branch
must properly implement and enforce it. We need to understand
how the Intelligence Community carries out this obligation,
whether its notification policies gave rise to past
notification failures, and what it is now doing to make sure
that the committee is kept fully and currently informed.
In particular, I look forward to hearing about the ODNI's
current review of the Intelligence Community's notification
policies.
To discuss these matters, we will hear from Robert S. Litt,
the general counsel of the Office of the Director of National
Intelligence. While Mr. Litt has only been on the job for
several months now, he joined the ODNI after an already
distinguished legal career which has included time as a senior
Justice Department official and as a partner at one of
Washington D.C.'s most prominent law firms. As demonstrated by
his substantial work on the subject since joining the ODNI, I
know he takes the issue of congressional oversight seriously
and I welcome him here today.
Chairwoman Schakowsky. At this point, I would like to
recognize Ms. Eshoo, the Chair of the Intelligence Community
Management Subcommittee, for any opening statement that she
would like to make.
Ms. Eshoo. Thank you, Madam Chairwoman, and good morning to
everyone. Welcome.
Mr. Litt, thank you for being willing to testify today on
this joint session on congressional notification which is, of
course, a very important topic, and it's the reason that we're
here.
Last week the Intelligence Community Management
Subcommittee held a hearing examining the provisions in the
National Security Act of 1947 that established how the
executive branch keeps Congress informed of its intelligence
activities. This hearing comes as a welcome follow-up to that
one, so we can examine how the executive branch has implemented
the provisions of the act and how they interpret the statute.
As I said last week at our hearing, the executive branch's
obligation to keep the committee fully and currently informed
is really a solemn obligation. Congress has a right to know and
the executive branch has a duty to share the information
necessary for Congress to authorize and appropriate funds and
oversee the activities of the Federal Government, including
intelligence activities, to ensure that taxpayer funds are
spent wisely and that the policy is really a sound one.
Last week, we heard that the relationship works best when
the executive branch takes, in good faith, its obligation to
share full and complete information about intelligence
activities with the committee. In many cases, Congress provides
the only outside oversight on intelligence activities, and thus
its role is all the more crucial in checking executive excesses
or strengthening its plans.
We examined the statute and we focused on a number of
phrases where the law is ambiguous. Some in the executive
branch could use that lack of clarity to circumvent their
obligations to inform Congress. We need to understand how the
agencies interpret their obligation to keep the committee
``fully and currently'' informed, what kinds of intelligence
activities they consider ``significant,'' and how they view the
obligation to inform rather than merely notify--and there is a
big difference between the two. I think all of the members of
the committee have a pretty deep appreciation of that.
I want to understand how the agencies interpret the phrase
``significant.''
Last week's witnesses explained that the factors that make
an intelligence activity significant are those that are
approved at high levels of leadership or are particularly
sensitive or are likely to have serious foreign policy
implications.
I would also like to understand whether the agencies are
basing any of their decisions to inform Congress on whether an
activity is operational. As we heard last week, that phrase is
not in the statute and should not be used to decide what
information should be shared with the Intelligence Committees.
I hope, Mr. Litt, that you will shed light on how the
Intelligence Community implements its obligation to keep the
committees fully and currently informed. I am also looking
forward to hearing about some of the changes that the
Intelligence Community is considering to improve its
congressional notification practices so that the failures of
the past do not repeat themselves.
So thank you, Madam Chairwoman. I am delighted that we're
having this joint hearing.
Thank you, Mr. Litt, for testifying today.
And to everyone that's here in the audience, we're glad to
see you and look forward to working with all of you.
Chairwoman Schakowsky. Now I would like to recognize Mr.
Miller, the Ranking Member of the Oversight and Investigation
Subcommittee, for any opening statement he would like to make.
Mr. Miller. Thank you, Madam Chairwoman.
Mr. Litt, thank you for being here today. I believe this is
the first time that you have had an opportunity to testify
before this subcommittee, and as you might imagine, there are
going to be quite a few questions that we'll have for you
today.
We all believe that timely and accurate notifications are
vital to the work of this committee. In the past Congress,
we've seen the negative effects and tensions created between
the Congress and the executive branch when the notification
process breaks down. No single case better illustrates my point
than the Peru Program.
This intelligence program resulted in the deaths of two
American citizens: Veronica and Charity Bowers. Their deaths
directly affected friends and family members living in my
district. The mishandling of this program is of great interest
and of great concern to me.
But beyond the ineptitude that led to the Bowers' deaths, I
am stunned by the ease with which some at the CIA kept this
information from reaching the Congress. The CIA Inspector
General has issued a report that detailed at length how certain
intelligence officers deliberately misled the committees of
jurisdiction on this matter. We have heard from the IG about
their report. We don't need to rehash those specifics today.
Hopefully, Mr. Litt, you can provide some reassurance that
this kind of misconduct cannot happen again, and I'd like to
hear what changes have been made to the congressional
notification process, not just at CIA but in the IC, to prevent
something like this from ever happening again. I hope that the
lessons learned from Peru have been incorporated as best
practices in your procedures.
That being said, I want to make it clear that I don't
believe that the CIA or any element of the community lies all
the time. These kinds of statements made by senior Members of
Congress are unhelpful to our efforts on this committee to
foster a sense of trust and cooperation between the executive
branch and Congress. And frankly, such statements are not
accurate.
Moreover, I am also concerned about the level of
partisanship that is attached to this issue. In our bill, a
broadly supported bipartisan legislative proposal to fix the
notification provisions of the National Security Act was
scrapped by the Majority in favor of a narrowly supported
partisan provision, a provision that actually drew a veto
threat from the Obama administration. In this subcommittee's
efforts, the majority has allowed oversight of critical matters
of bipartisanship interest, such as Peru, to flounder.
Instead, the Majority has embarked on this vague and ill-
conceived investigation of notification issues with little
input or consultation with the Republican Members.
Unfortunately, I don't believe the Majority will complete this
investigation anytime soon. I also don't believe this
investigation will realize positive results that will justify
the time and resources that we will spend on it.
In any case, Mr. Litt, I welcome your statements in this
process, and I hope that you can highlight for me how the
process has been improved. And I'll save the rest of my time
for questions after your presentation.
Chairwoman Schakowsky. Let me just say to my Ranking
Member, that, well, first I was about to associate myself with
your remarks about halfway through. But I do want to say that
we were to have a briefing this week on Peru, which is of great
interest to me, as the Ranking Member well knows, from day one.
The briefer that was supposed to come was unable to make it so
we have rescheduled for the week of November 4. And I
absolutely agree with you that we need to move forward. There
is no effort to delay or slow down this investigation, and we
will absolutely do it.
I want to turn to Ms. Myrick, the Ranking Member of the
Intelligence Community Management Subcommittee for any opening
statement she'd like to make.
Mrs. Myrick. Thank you. I have no opening statement. I'll
wait to hear from Mr. Litt for questions.
Chairwoman Schakowsky. Mr. Litt, it is the policy now of
the Oversight and Investigations Subcommittee to swear all
witnesses before they testify. And if you would stand and raise
your right hand.
[Witness sworn.]
Chairwoman Schakowsky. The record will reflect Mr. Litt
answered in the affirmative.
And now we're ready for your opening remarks. Thank you.
TESTIMONY OF ROBERT LITT, GENERAL COUNSEL, OFFICE OF DIRECTOR
OF NATIONAL INTELLIGENCE
Mr. Litt. Thank you, Madam Chairwoman Schakowsky, Madam
Chairwoman Eshoo, Ranking Member Miller, Ranking Member Myrick,
members of the committee. Thank you for your kind words and for
inviting me here to testify before you today on the policies
and procedures the Intelligence Community uses to help ensure
that the congressional Intelligence Committees are kept fully
and currently informed of intelligence activities. As Ranking
Member Miller noted, this is my first time testifying before
you, but I do look forward to many opportunities to work with
the committee in the future.
I believe that congressional oversight of intelligence
activities is critical because of the importance of
intelligence in protecting our national security, because of
the power of the tools that are given to the Intelligence
Community and their potential risks to privacy, civil
liberties, and to foreign relations if they're not used
properly, and because much of what the Intelligence Community
does necessarily has to be done in secret. This oversight is a
valuable way of improving the quality of the intelligence and
the effective and efficient--cost-efficient--operation of the
Intelligence Community, because Members of Congress often bring
a different and valuable perspective to some of the difficult
issues that we in the Intelligence Community have to deal with.
In addition, robust oversight can help assure the public
and the Congress, give them confidence in the activities of the
Intelligence Community. But the value of this oversight would
obviously be limited if the Intelligence Committees were not
aware of significant intelligence activities.
So the Intelligence Community does take seriously its
statutory obligation to keep the Intelligence Committees fully
and currently informed of intelligence activities. I know this
committee has met on numerous occasions with Director Blair and
that he's expressed this view to you. And I've heard him say
this same thing in private, that he really does believe that
it's important to keep the committees fully informed, and I
share that view.
My written statement goes into more detail on the literally
hundreds of occasions on which the Intelligence Community has
provided information to the House and Senate Intelligence
Committees, just since the beginning of this Congress, by way
of written notification or briefings or hearings, among other
ways.
I think that this does show that the Intelligence Community
is working hard to try to make sure that the Intelligence
Committees do have timely and accurate and complete information
to inform policy and to enable the committees to conduct
oversight. The notification process is subject to continued
supervision and oversight by the Office of the Director of
National Intelligence in the exercise of its statutory
responsibilities.
For example, in January of 2006, the ODNI issued what's
called an Intelligence Community Policy Memorandum, which is
entitled ``Reporting of Intelligence Activities to Congress,''
and this provides guidance to the Intelligence Community about
the requirements of notification to the committees.
Then in March of this year, Director Blair sent another
memorandum to the heads of all of the elements of the
Intelligence Community, both reaffirming this memorandum and
directing that notification of significant intelligence
activity should be provided to the committees within 14 days.
Recently, he also discussed the importance of timely and
complete congressional notification at a meeting of what is
called his Executive Committee, the EXCOM, which is the heads
of all of the 16 elements of the Intelligence Community.
And finally last summer, Director Blair directed that there
be a comprehensive review of the congressional notification
policies and procedures of each element of the Intelligence
Community. This review had two purposes: first, to examine
whether all elements of the community were currently in
compliance with their obligations of congressional
notification; and, second, whether they each had in place
appropriate policies and procedures that would ensure that the
committees going forward would be kept fully and currently
informed.
At the conclusion of this review a couple of weeks ago, the
DNI sent a memorandum in which he strongly encouraged each
element of the community to compare its current policies and
procedures to a set of best practices that were derived from
the results of this review and to make any necessary changes.
And from my conversations with the various elements of the
Intelligence Community, I know that they're taking this
seriously. They're going back, they're reviewing their
procedures, and if appropriate, they are strengthening them.
I can assure you that the DNI will continue to review
compliance with the congressional notification requirements by
the entire Intelligence Community, and, if necessary, will go
back and look at the Intelligence Community Policy Memorandum
and see whether that needs to be modified or strengthened or
whether other procedures need to be put in place.
In summary, intelligence oversight is critical to the
successful operation of the Intelligence Community, but it can
only be effective if the Intelligence Community views the
Intelligence Committees as partners and keeps them fully and
currently informed of all intelligence activities. And the DNI
and the ODNI are working with the Intelligence Committees and
the Intelligence Community to try to ensure that this happens.
I appreciate having the opportunity to come before this
joint hearing today, and I look forward to responding to your
questions. However, as you know since the facts surrounding
many of these issues are classified, I won't be able to discuss
specifics to any great degree in the open session, and I
understand there's a Closed Session planned for afterwards if
we need to go into details.
Thank you, Madam Chairwoman.
[The statement of Mr. Litt follows:]
Chairwoman Schakowsky. So if you're asked a question that
is best responded to in the Closed Session, you will tell us.
Thank you very much, Mr. Litt.
Under the National Security Act, the committee must be kept
``fully and currently informed of any significant and
significant anticipated intelligence activity.'' The National
Security Act defines the phrase ``intelligence activities'' to
include covert actions. Accordingly, does the National Security
Act require the executive branch to notify the committee of
anticipated intelligence covert actions?
Mr. Litt. I think the National Security Act makes a
division in the procedures and the standards appropriate to
covert actions and to other kinds of intelligence activities.
As you know, section 502 covers other intelligence activities,
section 503 covers covert actions.
And there's a fairly specific standard in section 503
setting forth what the President is required to notify the
committees of in the case of covert actions. It says that the
President has to ensure that any finding with respect to covert
action is reported to congressional intelligence activities as
soon as possible after the finding is approved and before the
covert action is initiated, except as provided in some of the
other sections.
And it further provides that the congressional Intelligence
Committees have to be notified of any significant change in a
previously approved covert action or any significant
undertaking pursuant to a previously approved finding, also
before the activities are carried out.
And I think that that statutory language embodies the
general command of section 501 and sets forth the manner in
which the President is supposed to inform the committee of
significant anticipated activities in the area of covert
actions.
Chairwoman Schakowsky. So the answer in short would be
``yes.''
Mr. Litt. Yes, as set forth in section 503.
Chairwoman Schakowsky. When assessing whether an
intelligence activity is significant, what factors does the
Intelligence Community take into consideration?
Let me give some examples. If the President, Vice President
or National Security Adviser have directed or approved an
intelligence activity, should that be considered evidence of
significance?
Mr. Litt. Yes. That's specified in the Intelligence
Community Policy Memorandum that I mentioned.
Chairwoman Schakowsky. And if an agency director, such as
the NSA or CIA Director, has directed or approved a particular
intelligence activity, should that be considered evidence of
significance?
Mr. Litt. While that factor isn't specified, it's obviously
one of a number of factors that an element of the Intelligence
Community, in exercising its judgment as to what is
significant, it should take into account the level of approval,
yes.
Chairwoman Schakowsky. So not alone? If the NSA or CIA
Director approves a particular intelligence activity, it's of
significance, but not----
Mr. Litt. I wouldn't necessarily say that that would by
itself, in all circumstances, require notification.
Chairwoman Schakowsky. But it's considered evidence of
significance.
Mr. Litt. I would think it would be, yes, ma'am.
Chairwoman Schakowsky. In DNI Blair's October 13, 2009,
memo to the IC, he noted that he's concerned ``that not all
elements may be taking the appropriate steps to ensure that
significant intelligence activity is identified in a timely
manner and that Congress is notified in a timely fashion.''
What I want to know is who is responsible for ensuring the
Congress is properly notified of intelligence activities?
Mr. Litt. When we went out and canvassed the elements of
the Intelligence Community, generally speaking in each element
of the Intelligence Community, their Office of Legislative
Affairs has the primary responsibility for ensuring that
congressional notification proceeds appropriately.
In almost every case, I think the General Counsel's Office
also plays a role in helping assess whether a particular issue
meets the standard that requires notification or not.
Chairwoman Schakowsky. That's you.
Mr. Litt. In the ODNI, that's me. In CIA, it's their
general counsel.
But the primary responsibility rests with the Legislative
Affairs Office.
Chairwoman Schakowsky. My concern is that there isn't a
name necessarily attached that everyone is clear about.
So at NSA, for example, who is responsible for ensuring
that Congress is properly notified of the intelligence
activities, or at CIA, et cetera?
Mr. Litt. I can't give you the names. I can tell you that
one of the best practices that the DNI referenced in his most
recent memorandum was that there should be a single point of
contact for these purposes. Some of the agencies may have
established their own individual points of contact. In the case
of the DNI, ultimately it's the head of our Legislative Affairs
Office who has responsibility for it.
So I don't know the names of the individuals, but if they
don't have them, yes, ma'am, they should have them, a single
individual who is charged with that.
Chairwoman Schakowsky. I thank you.
Chairman Eshoo.
Ms. Eshoo. A couple of questions.
To what extent do you make recommendations to the NSC to
brief members of the Intelligence Committee, the full
committee, or the Gang of Eight?
Mr. Litt. Me personally, or the DNI?
Ms. Eshoo. Either.
Mr. Litt. I think that when--in general when those
decisions are made--and they have not been common, at least
since I have been on the job----
Ms. Eshoo. When did you start?
Mr. Litt. I started at the end of June of this year.
Ms. Eshoo. Neither have been common, or one or the other?
Mr. Litt. Limited briefings of any sort.
When a decision is made as to what sort of briefing is
made, the ODNI has a role to play in that. The Director is one
I expect would be consulted on that issue, and I would hope
that he would seek the judgment of his general counsel as to
compliance with the law on that issue.
Ms. Eshoo. I'm not so sure I understand your answer. Maybe
you could walk me through the process of how it happens.
Have you experienced that yet?
Mr. Litt. I have not.
Ms. Eshoo. That's fair enough.
Mr. Litt. But my understanding is that the decision----
Ms. Eshoo. Since June, there have not been any decisions to
brief members, even of the full committee, on anything?
Mr. Litt. No. The members of the full committee have been
briefed on numerous matters. I've been actually present at some
of those briefings. So there certainly have been plenty of
decisions taken to----
Ms. Eshoo. But I'm asking about both.
Mr. Litt. I'm sorry. I've lost the question.
Ms. Eshoo. To what extent do you make recommendations to
the NSC to brief members of the full committee or the Gang of
Eight?
Mr. Litt. Most of the decisions about notifying or briefing
the full committee, to my knowledge, are not made at the level
of the NSC. When an issue is of sufficient importance that the
NSC gets involved, it is my understanding--although as I said,
I haven't participated in this process--that the decision of
whether the briefing should be done at the level of the full
committee or a more restricted briefing is a decision in which
the DNI will play a role in the exercise of his
responsibilities to protect sources.
Ms. Eshoo. When you say ``play a role,'' are there others
that play a role in that?
Mr. Litt. Well, I would assume, for example, if it's CIA
information, that the CIA would play a role. If it's a covert
action, obviously, since the White House owns covert actions,
they would play a role. And as I also said, I would hope that
the DNI would consult his Office of General Counsel if such an
issue came up, to get our view on what the law requires in that
instance.
Ms. Eshoo. As you know, Mr. Litt, this examination that the
full committee is undertaking is, as the Chairman of the full
committee has very wisely stated, broad, and that we will not
only examine the history of the law, how it came about, and the
history that's been made ever since.
Now, in recent history, we have had more than a real
glitch, and this is what I would like to ask you about. And I
think that there are probably some things that we can't go
into, obviously, in an open session.
But my question to you is how can there be a program that
was established in 2001 and the CIA Director being informed in
2009? What is broken, in your view, that would cause that to
happen and the Congress not ever being informed?
Mr. Litt. Well, to the extent the issue--are you asking me
about the CIA Director being informed or the Congress being
informed? Because my understanding is that other earlier CIA
Directors may have been informed, and that it was simply that
the current CIA Director didn't learn about this until several
months after.
Ms. Eshoo. That's quite extraordinary, at least in my view,
because he had been on the job for a while, and to have his own
people not informing him I think should be a cause of concern
for all of us, but certainly the Congress not ever being
informed.
What do you think is broken, or do you think anything is
broken? Do you think that it's a special case where, for
whatever reasons you might want to share with us, that it
really should have been that way, or do you think something is
broken and, if so, what? And do you find there is a lack of
clear direction relative to the language of the National
Security Act?
Mr. Litt. Whether something is of significant intelligence
activity that requires notification and briefing of the
committee is obviously----
Ms. Eshoo. What is ``significant''? Would you define that?
Mr. Litt. It's always going to involve the exercise of
judgment.
The policy memorandum that was issued in 2006 sets forth
some criteria for what constitutes a significant action which
includes such issues as whether there's a potential loss of
life, whether it's going to have an impact on foreign policy
decisions, a variety of criteria set forth in there, and some
of the individual components of the Intelligence Community have
their own supplemental memoranda that provide other standards.
But anything that involves an exercise of judgment always
leaves open the possibility that different people are going to
have different judgments.
It's my understanding that both Director Blair and Director
Panetta indicated that they might have exercised their judgment
differently and briefed this matter at an earlier date.
Ms. Eshoo. It's not a question of finding out at a much
later date, and then the parties that have responsibility then
weigh in and say, ``You know what? If I'd known about that,
perhaps my judgment would have been different.''
I don't think that's the way we should be operating.
What I'm trying to find out with you--and maybe because
you're new and it's really difficult for you to make a call on
this--I mean that case says to me something is really broken.
Something is really broken.
Now, you mentioned, you know, that there are policy papers
relative to definition for ``significant.'' I would like to ask
that we receive those memorandums so that we can review them
and see how the determinations are being made based on those
memorandums.
Let me just ask one more question. Do you think that there
should be one person that's primarily responsible for ensuring
that Congress is properly notified of Intelligence Committees?
I mean obviously there's the ODNI, there's NSA, CIA, and then
the other intelligence agencies.
Do you think that there should be one from each, or just
one that is totally responsible for this?
Mr. Litt. I think that each agency should have a single
point of contact responsible for that. I also think it's part
of ODNI's responsibility to ensure that all components of the
Intelligence Community are operating in accord with the law,
and so it's part of ODNI's responsibility to do what we're
doing now.
Ms. Eshoo. So for notification today, how does it work?
Does the head of each one of those agencies meet with the ODNI,
and he's the one responsible; or he makes the call as to who
should come and notify?
Mr. Litt. No. Generally speaking, each individual component
of the Intelligence Community is responsible for its own
notifications.
Ms. Eshoo. And they're independent of anything else.
Nothing is coordinated.
Mr. Litt. In most instances, that's right. Each agency is
responsible for its own.
Ms. Eshoo. Thank you.
Chairwoman Schakowsky. Mr. Miller.
Mr. Miller. Mr. Litt, thanks for your commitment and stated
commitment to Director Blair in keeping this committee fully
informed with respect to intelligence activities and
information needed to carry out policymaking responsibilities.
But given this commitment, why has the administration continued
to refuse to provide this committee with information regarding
its planning with respect to Guantanamo Bay detainees?
And in your answer, could you please say do you believe
that Congress should receive information on this planning
before or after a final decision is made?
Mr. Litt. Well, I--let me begin by saying that I know that
there have been--for example, there was a substantial report
that was provided to this committee recently, going through all
of the detainees and the information that we have about each of
them. And I know the committee is notified, for example, as
individuals are transferred from Guantanamo abroad. The fact is
that the President has announced very publicly his intention to
close the facility at Guantanamo.
Mr. Miller. He did that on the first day he was
inaugurated.
Mr. Litt. That is correct. And I'm confident that when a
decision is made, that this committee is going to be briefed
fully and consulted on it. But I don't think that an obligation
to inform--to keep the committee fully and currently informed
of all intelligence activities is the same thing as requiring
the committee to be kept fully and currently informed of all
internal executive branch decisions.
Mr. Miller. You don't think that anything in regard to the
Gitmo detainees, that this committee has any jurisdiction over
that?
Mr. Litt. No, that's not what I'm saying.
Mr. Miller. But that's what the law says. Section 502 of
the National Security Act requires the DNI and the heads of
departments and agencies to furnish the congressional
Intelligence Committees any information or material concerning
intelligence activities, other than covert actions, which is
within their custody or control.
Now, Ranking Member Hoekstra has specifically requested
information by letter regarding the planning for the relocation
of Gitmo detainees which affects the collection of intelligence
from them, and he hasn't received any response.
So how do you square the refusal to provide the information
with the law?
Mr. Litt. Well, to the extent we're talking about the
collection of intelligence information, that's obviously not
something that I can discuss in an open session. But it is
true, as I think Chairman Reyes noted last week, that the
Guantanamo Bay facility is a DOD facility, it's not an
Intelligence Community facility. And the decisions on closing
it are affecting the DOD facility. I think to the extent that
there are significant intelligence activities that are
affected, that this committee is entitled to be informed and
will be informed.
Mr. Miller. I sit on the HASC as well. Has that committee
been informed?
Mr. Litt. That, I wouldn't know.
Mr. Miller. Okay. I think the answer is ``no.''
Does the ODNI believe that State governments and
communities should have some access to some appropriate version
of intelligence information about the background and any
potential threat posed by Gitmo detainees before they are
potentially released to their towns? And if not, why doesn't
the ODNI believe that they have a right to know?
Mr. Litt. It's my understanding that the administration
intends to work closely with Federal and State and local law
enforcement officials, once a decision has been made, to ensure
that the detainees are held securely and that there is no
threat to individuals in the area.
I would note that there are maybe several hundred
terrorist-related defendants currently held in U.S. prisons
without any of them ever having escaped. But it's my
understanding that there, in fact, is an intention to work with
State and local law enforcement on the matter you raised.
Mr. Miller. Why do we keep State secrets?
Mr. Litt. We keep State secrets because there are often
matters where the protection of national security is paramount,
where there could be significant danger to the Nation's
interest if certain information came out.
Mr. Miller. Do you concur with Mr. Schwartz of the Church
Commission's statement in regards to sharing, widely outside
the Intelligence Community, information?
Mr. Litt. I'm not sure what his statement is. I do know
that this administration and, in fact, both administrations and
the Congress since 9/11 have made efforts to ensure that
information is shared more widely, as necessary to protect our
Nation.
I think that one of the things we learned was if there is
too much stovepiping of information, it can end up damaging
national security. So it's important to try to share
information as broadly and easily as you can, consistent with
the needs of protecting national security information.
Mr. Miller. Do you think this is a true statement? CIA lies
all the time to Congress.
Mr. Litt. No.
Mr. Miller. Thank you.
Chairwoman Schakowsky. Mrs. Myrick.
Mrs. Myrick. Thank you.
I grew up in a generation of ``what is your need to know.''
And so just following up on Mr. Miller's questions about State
secrets being secret, one of the concerns that I have is very
recently there were press reports that said Ranking Member Bond
over in the Senate Intelligence Committee was concerned about
the leaks and things that had happened that you read about in
the press, which we read about in the press before we know
about it here in the committee. And it just really--that
concerns me greatly and has.
I'm new to the committee, so this is new to me. But the
bottom line of it is how does that affect the administration,
executive branch's willingness to share information, sensitive
information, and what can be done about that and where is it
coming from? Where do the leaks come from, this kind of thing.
Because those of us in the committee aren't talking to any
press that I know of.
Mr. Litt. Well, I share your frustration. I know Director
Blair does as well. He has made very clear that he wants to
find ways to deal with the leaks; that they are, in fact, very
damaging to national security, and frequently in very specific
and identifiable ways. A leak comes out and you can see that as
a result of that leak, a foreign nation or target changes
behavior. And this is really something that's of great concern
to him. And he has asked me, as general counsel, and others
within the ODNI, to work with the other elements of the
Intelligence Community and the Department of Justice to try to
find ways to tighten up, to see if it's possible to more easily
identify leakers--which frequently is a tremendous challenge--
and to prevent these leaks from happening, or punish them when
they do.
Mrs. Myrick. What is the punishment if they do?
Mr. Litt. There's a variety of criminal statutes. I don't
have the penalties in front me.
Mrs. Myrick. Do they lose their job or do they just get
slapped on the hand?
Mr. Litt. It can range from a slap on the hand, for
something that merits a slap on the hand, through loss of job,
through criminal prosecution and incarceration.
Mrs. Myrick. When Mr. Miller asked the question about State
and local officials being notified of detainees from Guantanamo
coming into their area, I maybe wasn't listening closely. But
did you say they would be notified after the decision had been
made to place them there? They wouldn't be in any way included
beforehand to know that was going to happen?
Mr. Litt. I don't think that any final decision has been
made yet on how and when people are going to be notified. I do
know they are going to be appropriately consulted on the
process to ensure there is no risk to national security or to
local security from bringing people wherever----
Mrs. Myrick. But you don't know when in time that would
take place?
Mr. Litt. I don't know that that decision has been made
yet, ma'am.
Mrs. Myrick. And one of the other concerns are yes, there
are people kept in State prisons, et cetera, all the time. But
these aren't your normal prisoners. And then my concern is,
again, what happens to them after that?
I know this is going a little beyond what we're talking
about here, but when he asked the question, it just brought it
back to mind again.
Mr. Litt. Well, we do have some experience in holding
people who aren't normal prisoners as well. We hold people,
like the blind sheik, and people like that. And I think the
Bureau of Prisons is reasonably well set up in the super-max
facilities and with the use of Special Administrative Measures.
So I don't think that there is any intention or any expectation
on the part of the administration that they will take any steps
that will endanger people in this country at all.
Mrs. Myrick. I appreciate that.
Thank you, Madam Chair.
Chairwoman Schakowsky. Thank you.
Mr. Schiff.
Mr. Schiff. I want to follow up on the last series of
questions just to clarify them for the purposes of today's
hearing.
The decision where to detain a Guantanamo detainee is a
very important one, but it's not necessarily per se an
intelligence-related activity, correct? It may be a decision
about incarceration or incapacitation, but not necessarily
intelligence activity for the purposes of the sections we're
talking about today, correct?
Mr. Litt. Yes. That is correct, sir.
Mr. Schiff. I wanted to talk to you about the language of
significant anticipated intelligence activity.
Is there any indication from your research on this issue
and how the various agencies within the Intelligence Community
have dealt with this language, that any of the community has
viewed that statutory requirement of reporting or notification
on significant anticipated intelligence activities as somehow
legislative surplusage, that it was superfluous; that the other
language in the statute is actionable, but there was really no
obligation to inform Congress of things that were only
anticipated?
Have you found any indication that any parts of the
Intelligence Community have used that as their modus operandi?
Mr. Litt. No, not at all. Quite the contrary. The policies
make clear that anticipated intelligence activities need to be
notified and briefed as well.
Mr. Schiff. So as far as you know within the CIA and other
agencies, there has always been an understanding in the Legal
Counsel's Office and in terms of the mechanism they have to
report to Congress, that they are required to report
anticipated intelligence activities as well as ongoing ones.
Mr. Litt. So far as I know, that is correct.
Mr. Schiff. And how do you interpret the term
``anticipated''? You wouldn't conclude, would you, that
something has to be operational before you are required to
notify Congress about an anticipated significant intelligence
activity, would you?
Mr. Litt. I think that some of the controversy there about
the use of the term ``operational'' with reference to the
specific matter that was briefed at the end of June, you have
to consider what ``operational'' is opposed to. And I think the
term ``operational'' there was used to differentiate it from
something that's just in planning or not even at the stage of
planning, but it's a concept that people are working on.
I think that anticipated--the term ``anticipated'' involves
some level of definiteness that goes beyond merely, you know,
we're looking at a bunch of options and this is one possibility
we're considering. There has to be some level of commitment
that this is going to happen before it rises to the level of
something that's ``anticipated'' as opposed to possible or
theoretical.
And I think the use of the term ``operational'' was meant
to convey that concept that there is not an obligation--by the
use of the term ``anticipated'' in the statute, that there's
not an obligation to brief every time somebody at the agency
comes up with an idea, every time even that they explore the
idea to some extent. It's when it actually becomes an
anticipated operation.
Now having said that, as I said, I think both Director
Blair and Director Panetta have said that with respect to that
particular operation, they might have exercised their judgment
differently. But there's a difference between a mere
possibility or a theory on the one hand and something that's
actually anticipated on the other.
Mr. Schiff. You would agree, though, that if there are
significant expenditures made in support of an intelligence
activity, even if it's not operational yet, even if there
hasn't been a decision made to necessarily go forward with the
ultimate object, if you're expending a significant amount of
money on it, that would trigger the anticipated significant
intelligence reporting requirement, wouldn't it?
Mr. Litt. I would think it would. Part of the oversight
involves oversight of how funds are spent.
Mr. Schiff. And if your risk of exposure of a potential
operation via arrest or some other means, that would certainly
trigger the requirement, wouldn't it?
Mr. Litt. I think that the policy memorandum talks about
risk of exposure as one possibility. But you have to consider
not only the degree of risk of exposure but the consequences of
the exposure as well. But, yes, that certainly is a factor that
would play in.
Mr. Schiff. So what we're talking about, then, if you're
sitting in a room ruminating about several potential directions
you could go in, several potential operations, that might not
trigger the requirement. But when you start taking steps, very
concrete steps to determine whether you should go forward, even
though the decision hasn't been made yet, you can still trigger
the anticipated significant intelligence activity reporting
requirement, right?
Mr. Litt. You could. It would depend upon the significant
steps you're talking about, yes.
Mr. Schiff. Thank you. I yield back.
Chairwoman Schakowsky. Mr. Thornberry.
Mr. Thornberry. I appreciate you being here, Mr. Litt, and
attempting to answer questions on a classified program in an
unclassified way. It makes it pretty hard to have a real
discussion about what is or is not broken, what should or
should not be briefed, and where that threshold is.
But it brings to my mind kind of the other half of the
story that we don't talk about as much, and that is the
responsibility of Congress in these briefings to fulfill our
role in a responsible sort of way.
We have had instances in recent years where programs have
been briefed, and yet only when they become leaked in public do
Members come out and say, Oh, I never knew that or I didn't--I
wasn't for that, or so forth.
So let me ask you. You talked about the process and the
procedures. Has some attempt been made to go back and
reconstruct who was in briefings and what was briefed and so
forth, it's been fairly confusing. Sometimes administration
records don't jibe exactly with the committee's records.
So since you've been there, are there written records of
who is briefed on what and any concerns that they raise in
those briefings?
Mr. Litt. I think that throughout the various agencies,
there are records of that that have a greater or lesser degree
of formality and detail. I don't think there is a consistent
rule across the entire Intelligence Community for that.
Mr. Thornberry. Do you think there should?
Mr. Litt. I think it's definitely something that should be
considered, whether there ought to be more formality to that
process.
Mr. Thornberry. Would it be a good idea for the committee
to keep better records of who was in what briefing and to see
whether the committee's records and the administration's
records jibe as far as who was briefed on what, how many times,
and on what program?
Mr. Litt. As a member of the executive branch, I would not
presume to give advice to the Congress on what rules and
procedures it should adopt, sir.
Mr. Thornberry. Let me go back to the beginning in my mind
a bit.
The general proposition in section 501 is that the
administration should keep Congress fully and currently
informed. In your mind, are there any constitutional limits on
the President from doing so?
Mr. Litt. I think that this area is one of those where you
have two constitutional authorities bumping up against one
another. You have the Congress' constitutional authority to
exercise oversight and you have the President's constitutional
authority to protect national security information.
And I think that the statute recognizes the President's
constitutional authority in this area explicitly in section
503. So I'm not sure I would categorize it as a constitutional
limit. I would say that there are executive branch prerogatives
that are affected here by the notification process.
Mr. Thornberry. I'm trying to understand, as we talk about
the way this works, what's the difference between an executive
prerogative and a constitutional power or authority that the
President needs to protect. And let me get into one specific.
In the statement of administration policy on the House
authorization bill, it says the administration strongly objects
to the provision, as Mr. Miller noted, in the House bill.
Now, is that because it doesn't work, or are there
constitutional objections, or exactly what are your objections
to what's in the House bill now?
Mr. Litt. I'm not going to purport to list all of the
objections, because I'm not sure I could do that right now. I
could give you one example which is, for example, that the
House bill required extensive disclosure of deliberative and
legal advice within the executive branch. And I believe that it
is the opinion of the administration that that requirement does
trench on executive prerogatives that are accorded to the
President.
That's one example.
Mr. Thornberry. If I agree with you on that, is there--if
there's a presumption that the administration will share all
intelligence collection and covert action information with
Congress, does that cause you constitutional concerns?
Mr. Litt. I'm not enough of a scholar on the exact limits
of constitutional authority. We have OLC at the Department of
Justice that is sort of the institutional repository of that.
I would think that a requirement that everything be shared
would probably arouse their opposition as something that would
trench on constitutional concerns.
Fundamentally, I think that this process, like many of
those where the constitutional powers are in tension, this
process is one that has to be worked out by cooperation between
the two branches, and working out ways of ensuring that
Congress gets the information it needs while ensuring that the
President retains the ability to protect national security when
it's required.
Chairwoman Schakowsky. Mr. Holt.
Mr. Holt. Thank you, Madam Chair. Thank you, Mr. Litt, for
coming.
I would like to explore several different points. I
understand you to say that there have been no Gang of Eight-
level briefings under this administration; is that correct?
Mr. Litt. I don't know. I don't know what happened before I
started. And since June, I can say that I am personally not
aware of any. It's conceivable that one happened and I wasn't
aware of it. That's all I can say.
Mr. Holt. Let me make sure that I have your title correct.
As the general counsel of the Office of the Director of
National Intelligence, would there be--or under what
circumstance could there be the so-called Gang of Eight, the
restricted briefings, restricted only to eight members of the
House and Senate, without your knowledge?
Mr. Litt. Well, as I said earlier, I would hope that the
Director would consult his legal counsel. I suppose that there
might be a program that is so compartmented that they felt they
did not want to bring the Office of General Counsel into it. My
hope and expectation would be that that would not happen, that
they would seek my legal advice.
Mr. Holt. Do you think in any of the subunits of the
Central Intelligence Agency, or others, that there might be
restricted briefings that the Director of National Intelligence
would not be aware of?
Mr. Litt. That should not happen.
Mr. Holt. Now, I know in the October memo from the Director
of National Intelligence, it's titled ``A Follow-Up to
Reporting Intelligence Matters to Congress,'' he refers to the
obligation to keep Congress fully and currently informed, lays
out some recommendations for establishing and writing the
obligation and ensuring that personnel understand the duty and
so forth. He finishes by saying, ``I strongly encourage you to
compare your current procedures to those outlined above.''
Mr. Holt. That struck me as odd phrasing for the Director
of National Intelligence. I encourage you to compare your
current procedures. Do we need some attention to the
legislation, or should the Director of National Intelligence be
in the position to suggest to other agency heads this and that
and the other thing.
Mr. Litt. I think that the DNI does have more power than
just to suggest. I think that the DNI does have the power to
set policy for the Intelligence Community. And there's an ICD
process for doing that that involves consultation throughout
the community. I think that before that is done, I think it was
probably the appropriate judgment to say let's see if the
members of the Intelligence Community can do this on their own,
without having to instruct them or order them to do it. I am
hopeful that they will do that.
Mr. Holt. So you are not, as a member of the Office of the
DNI, you are not suggesting that there needs to be different
authority.
Mr. Litt. In my view, there would be authority for the
Director to issue policy in this area.
Mr. Holt. Now, let me ask your and the Director's
interpretation of the wording of the obligation to keep
Congress fully and currently informed. In many cases that has,
in practice, a rather perfunctory meaning. In fact, the
language that is used within the Intelligence Community is
``congressional notification.'' It doesn't say anything about
fully and currently informing. I actually see a difference in
meaning, but I wanted to ask whether you and the Director and
the O/DNI Office think of this as informing or notifying or
briefing or consulting. What is the obligation?
Mr. Litt. Well, I think that with respect to the obligation
to keep the committees fully and currently informed, that the
obligation needs to be measured by the purposes for which the
information is being provided. And by that I mean we have an
obligation to get you the information that you need to provide
oversight. And the scope of what we provide you needs to be
adequate to permit you to provide oversight of the Intelligence
Community. And that should be the measure of the obligation to
inform.
Mr. Holt. It is more than to perfunctorily check off on a
list that some words have been sent to Congress.
Mr. Litt. I think in many cases it would be more than that,
yes.
Mr. Holt. In what cases would it be only that.
Mr. Litt. Well, if you are being notified that a new
facility is being opened at a cost of X million dollars, which
is something that might constitute an activity that requires
notification, it might be that simply sending you a written
notification of that would suffice in that instance. I could
conceive of other instances where simple written notification
would suffice.
But again, as I said earlier, both Director Blair and I
view this as a partnership, and we do have an obligation as
well to provide additional information if a member or the
committee feels that the notification is inadequate and wants
more information. This needs to be a two-way street. We need to
be responsive to further requests for information as well.
Mr. Holt. Thank you, Madam Chairs.
Chairwoman Schakowsky. Thank you Mr. Holt. Mr. Conaway.
Mr. Conaway. Thank you Madam Chairman.
Robert, welcome. In your testimony, while I appreciate 800
briefings and 500 written notifications and all that other kind
of stuff, I am not persuaded that volume equates to quality. On
the review of the compliance, or the review that was asked to
be done that has just been finished that came up with the
suggestion that the community look at the best practices, did
the review find any exceptions to the policy where it wasn't
being followed? Can you talk to us about things that didn't--or
that wasn't working?
Mr. Litt. We didn't find anything systemic. I think that
when some of the agencies went back and looked at their
records, they found a couple of matters where they had
determined not to brief, and they relooked at it and decided it
probably ought to be briefed. But those were few isolated
issues. We didn't find any systemic issues.
Mr. Conaway. DNI has got its 2005-100-3, the CIA has got
AR-72, the NSA has got Policy 1-33. In your written testimony
you make some reference to not being in favor of a blanket
policy where everybody is agreeing off the same phraseology,
the same words. Do you want to expand on that a little bit why
the DNI wouldn't bring all those folks together, let's have one
policy that is written out. Again, you are going to have
judgments as to what all that stuff means, but if you are
hiding behind the differences between subtle changes in wording
between 2005-100-3 and AR-72 as to confusion there, why
wouldn't a broader blanket that says it is one for everybody.
Mr. Litt. I actually think that the way you articulate it
is-the way I understand it is, which is that the DNI's ICPM
2005-100-3 does apply across the Intelligence Community. The
definitions in there are adhered to, according to my
understanding, by every element of the community.
Mr. Conaway. And they are the exact definitions that are
used in AR-72 and Policy 1-33? Why wouldn't those have been
withdrawn so that it is clear CIA understands it, NSA
understands it? And the follow-up question: Does NRO and NGA,
all these other ones, have their own equivalent to AR-72 and
Policy 1-33?
Mr. Litt. Not all of the agencies have their own individual
policies. But I think that CIA and NSA, for example, their
policies go beyond the general level of what the DNI's
memorandum says and provide more specifics and also set out
their specific procedures.
Mr. Conaway. So the conflicts between the two would be
resolved with the ODNI's policy.
Mr. Litt. That is right. The ODNI's policy trumps to the
extent it applies, yes, sir.
Mr. Conaway. Looking for this one point of contact of
having only one person responsible other than the Director of
whatever, you mentioned Leg Affairs. Is the Leg Affairs team--
they know everything that is going on in the agency--are they
going to be the most informed group of everything that is
happening? If they are the ones going to be held responsible
for congressional notification, have they cleared the site?
Does one of those folks sit with Leon Panetta at CIA all the
time? If I am going to be held responsible for something as
important as this, then does the Leg Affairs team across the
community, are they in on every single height--you know,
sensitive meeting.
Mr. Litt. No, that is obviously not the case. Although it
is my understanding, for example, in the CIA they have Leg
Affairs people who are assigned to each of the directorates to
work with them. But saying that the Leg Affairs people are
responsible for the notifications doesn't absolve the head of
the agency of his or her responsibility as well.
Mr. Conaway. So it really should be the head of the
agency's focus and not the Leg Affairs.
Mr. Litt. Well, the head of the agency has a lot of things
to focus on.
Mr. Conaway. I understand.
Mr. Litt. One of the things that the DNI mentioned in the
more recent memo was that the head of the agency on a periodic
basis ought to sit down with all of his or her top people and
canvas them and direct them to go back to their people, so that
there is that kind of responsibility as well.
Mr. Conaway. Was the DNI's--and something Rush Holt brought
up, a suggestion that they review. Shouldn't there be more
teeth in his statement, or is there an implied teeth in his
statement that I am going to circle back in some fixed period
of time to see that you have done the review for this best
practice implementation, and if you haven't implemented the
best practices that the group thought, you need to have good
reason as to why it doesn't work in your agency? Is that
implied or had it been stated?
Mr. Litt. I think it is implicit that the DNI is going----
Mr. Conaway. Okay. We will look forward to at some point in
time having that conversation with Dennis as to how he did in
fact circle back against his own best practices to make sure
that they are implemented.
Thank you, Ms. Chairman, I yield back.
Chairwoman Schakowsky. Thank you. If we could do another
brief round and then go into closed session for those who want
to ask any more questions. I wanted to just say that the reason
that I think you are hearing on a bipartisan basis the need to
be fully informed is that time after time we are learning from
the television or newspapers about something that we were not
briefed on; then someone comes in, the head of an agency, and
does a mea culpa, it was really my responsibility.
And so I want to get back to the issue that I raise and Mr.
Conaway raised also. My concern is that if this is not a
central part up front, not later. I don't want to hear any more
mea culpas, but that someone is assigned and that at every desk
people know who that person is so that they can be contacted. I
am fearful that it will never happen. That in fact what will
happen is what we have heard, that there was a breakdown--I
mean that word has been used before--that there was a breakdown
somehow in communications.
And so--and Mr. Holt also was talking about, I think this
is not an area where there can be any fuzziness, where people
have to know what the procedure is, who is in charge. And, yes,
of course that head of a division, of an agency, finally the
DNI himself is responsible.
So I think what some of us are looking for is what is the
clarity in this process; what are the penalties for diverting
from that; if there is a breakdown, what happens; and do you
feel that we are moving in that direction?
Mr. Litt. Well, I think early on in your question you put
your finger on what I think the most important solution to this
issue is, and that is getting it down to the desk level and
getting everybody in the agency to treat this as a part of
their responsibilities.
And I know in preparation for this hearing I talked with
some of the other agencies about what kind of training they do.
And as you might expect, it varies somewhat across an agency.
But, for example, CIA has training modules for everybody where
they instruct them in congressional notification and they have
a brochure on their Web page.
Chairwoman Schakowsky. But where does the buck stop? Mr.
Conaway raised the question about Leg Affairs. Well, if Leg
Affairs is not him or herself informed of what is going on, how
do we make sure that the breakdown doesn't occur there.
Mr. Litt. Ultimately, as I said, if you have an agency with
thousands of people out there, the only way you can--no matter
who the individual person who is responsible is--and as I said,
the DNI has indicated that he thinks there should be one person
responsible in each component of the community--but no matter
who that person is, if the rest of the agency doesn't have in
mind at all times: ``Is this something that needs to be
notified? If I have any doubt let me call this point of contact
and discuss it with them, and if it is compartmented so that I
don't know if I can talk about it with this person, let me
raise it with my supervisor and let's talk about it.'' If you
don't have that kind of culture, no kind of process that you
set up is going to make this work. It has to be something that
the people in the agency understand is A, part of their job and
B, ultimately for their benefit and the benefit of their
agency.
Chairwoman Schakowsky. Well, then I would suggest that what
Mr. Holt raised, this idea of encouraging is not sufficient for
culture change; that there needs to be much stronger language
and much stronger policies that follow, that just encourage
people to review their policies.
Mr. Litt. I can only tell you, Madam Chairwoman, that in
the course of getting ready for this hearing, and the
discussions I have had with the other agencies, it is my sense
that they do recognize that there need to be additional steps
taken, and they are working on beefing up their training
programs, making their processes clearer and so on. And I am
certainly hopeful that that, plus the commitment from the top,
which people like Director Blair and Director Panetta have
expressed, that that will help change the culture.
Chairwoman Schakowsky. Thank you. Ms. Eshoo.
Ms. Eshoo. Thank you. I have an appreciation for training
programs and people at the variety of desks being in the loop
and updating them on responsibilities and such. But I have to
say that I think that what the committee is looking at goes far
beyond that. I think what you are talking about, and Band-Aids
are important when you have scratches so that you don't, you
know, bump what is sore or what you might have cut, but I think
that this is far beyond that, I really do.
We are looking at the language in the National Security
Act. Does it provide the direction that the Intelligence
Community needs in order to meet the obligations that both the
executive branch and the legislative branch have?
Now, I mean you said earlier that both the--that the DNI
and the CIA Director might have rendered different judgments,
and yet there is for the CIA a regulation that came out in
March of 1996 that is absolutely clear about reporting of
intelligence activities to Congress. So it is not a matter of
what someone feels like doing or going through multiple choice,
it is set forward. And yet we are still experiencing things
that should not be the way they are.
I am not looking for the Congress, Mr. Litt, to have more
power than the executive branch or vice versa. But when there
is not, when it is not equal there is a problem, there really
is a problem. And I think that just even looking at this
regulation in all of our three-ring binders here, I don't see
how the 2001 to 2009 incident could have taken place given what
is in the statute.
On the accountability for intelligence activities and
general congressional oversight provisions, you made mention
earlier about the President having the responsibility for
national security and that the Intelligence Committees have
responsibility for oversight. But nowhere in this Title V does
it say anywhere that the withholding of information to the
Congress in any way, shape, or form is okay.
And I think that for you to best understand at least where
I am coming from is what I am so concerned about, and it is
based on the experience that we have had, is because there is a
lack of clarity, various interpretations of these terms, then
bring about requirements on the part of the executive branch,
that we are getting into multiple choice. Well, it was this,
but it wasn't that. So we have an obligation to report this,
but we don't have an obligation to report that.
And I do think that there is a huge difference between
notification and informing. If someone is informed, then there
is a discussion. That is how information is shared. It is not a
drive-by briefing where some information is just dropped off,
and there is sloppy at best--and then it goes downhill from
there--recordkeeping both on the part of the Congress and the
executive branch.
So I think that we have some real work to do on this. And
while I appreciate your view about people being trained and
people at desk jobs and whatever, I have had many desk jobs in
my life so I am not diminishing the importance of those
individuals, but I think that this is really at a higher level.
And I don't know what actions have ever been taken relative to
violations.
And the National Security Act doesn't have any penalties in
it. We know if something has gone wrong, but there aren't any
penalties. And I don't know who has exercised any when
something hasn't gone right.
In my first round of questions I asked for the memorandums
that are being used for guidance. Are the standards the same
across the IC in all of that?
Mr. Litt. Generally----
Ms. Eshoo. Or is it up to each agency to come up with
whatever it is they come up with?
Mr. Litt. Generally speaking, the Intelligence Committee
Policy Memorandum issued by the DNI applies across the
Intelligence Community.
Ms. Eshoo. You said ``generally.'' Are there exceptions?
Mr. Litt. No.
Ms. Eshoo. So the standards are all the same, and the same
memorandum applies to all agencies.
Mr. Litt. As I said, at that level of generality, that
memorandum applies across all agencies. Agencies are free to
develop their own standards consistent with that memorandum if
they think it is necessary to give more specific guidance to
their community in their individual case, but they all have to
be consistent.
Ms. Eshoo. And this is all relative to informing Congress.
Mr. Litt. Yes.
Ms. Eshoo. Well, I think that we need to see all of that. I
think we need to see what the interpretations are.
Thank you, Madam Chair. And I am prepared to go to the
closed session to deal with whatever needs to be dealt with
there, but I appreciate the extra round.
Chairwoman Schakowsky. Mr. Miller.
Mr. Miller. Mr. Litt, you said earlier that you were from
the executive branch and you would not attempt to tell Congress
how to do its job, and we appreciate that. Article I, Section
5, Clause 2 of the Constitution gives Congress the power to
determine the rules of its proceedings. In your view does the
rulemaking clause give Congress the authority to determine how
to share classified information with and between its Members?
And if not, on what basis and to what extent do you believe the
President's powers circumscribe the explicit constitutional
authority?
Mr. Litt. I am getting a little bit out of my comfort zone
here on the legal interpretation, but I think my view on this
is that this is one of those areas where each branch has the
right to exercise its own powers, which is to say that--and the
problem with that approach is that that frequently leads to
collisions.
So that, for example, if the Congress--and this is a purely
hypothetical example--if the Congress imposed a rule that said
you can do a limited briefing but we retain the right to tell
everybody else in the membership or everybody else on the
committee about it, and the Executive didn't like that, the
Executive might say, well, then okay, we are going to exercise
our constitutional power to protect national security
information and we are not going to brief you. At which point,
the Congress might exercise its constitutional power of the
purse and say, well, we are not going to fund these activities.
And that is not a productive approach to governance, in my
view. And that is why I said earlier, I think in response to
Mr. Thornberry's question, that these are the sorts of things
that need to be worked out by a process of accommodation and
compromise between the branches.
Mr. Miller. And I agree. I think given this respect,
Congress and the executive branch need to work together to set
out the framework for notification. What role does the
President have in the process to determining what, if anything,
should be briefed?
Mr. Litt. Ultimately the President is responsible for all
of the national security apparatus. I think to a great extent
that is delegated downward. I would be surprised if the
President himself personally participates in a lot of these
decisions. But ultimately it is his responsibility.
Mr. Miller. Notification to Congress is, as a practical
matter, carried out with a degree of latitude--and we have just
established that--and as a result of consultation and
cooperation between the branches on how to handle sensitive
matters. Do you think it helps such consultation and
cooperation when Members of Congress say that the CIA lies all
the time?
Mr. Litt. I would hope that everybody would approach the
consultation and notification process in the spirit of
cooperation.
Mr. Miller. In a follow-up question to Mr. Schiff's earlier
round of questions as to what would trigger a notification, and
I think everybody was trying to go down the route of when
something is funded, and I think there was a comment
``significant amount of dollars.'' Can you explain what
``significant'' amount of money is?
Mr. Litt. Well, that--I think your question, sir,
highlights why I keep saying this is a matter of judgment.
Because obviously a significant amount of money, there is no
algorithm that you can plug in to determine what is
significant. And what is a significant amount of money may
differ depending upon what agency you are talking about. What
is a significant amount of money for the National
Reconnaissance Office may be different than what is a
significant amount of money for the intelligence component of
the Department of Energy or the State Department. So I don't
think you can quantify that with any number that would be
meaningful across the entire Intelligence Community.
Mr. Miller. And I don't think you can either, and I think
that is why we are having the discussion that we are having
today.
One final question. Other than the CIA inspector general's
report on the Peru shootdown, are you aware of any
substantiated instance in which it has been established that
Congress was deliberately provided with false information with
respect to intelligence activities? And other than the CIA
inspector general's report on the Peru shootdown, are you aware
of any substantiated finding that the Intelligence Community
systemically misleads or has misled Congress?
Mr. Litt. I am not aware of any such finding.
Ms. Eshoo. Madam Chairwoman, may I just do a quick follow-
up? You are not aware because you are new? You are not aware
because you haven't done the research? You are just not aware,
why?
Mr. Litt. Well, I consider myself, even though I am new on
the job, to be reasonably informed.
Ms. Eshoo. Exactly.
Mr. Litt. And I am not aware--as Ranking Member Miller put
the question, I am not aware of anything that meets the
specification of his question.
Ms. Eshoo. Because you are new.
Mr. Litt. No. I mean I suppose there is something out
there, some inspector general's report out there. But in
preparation for this hearing, I asked about what sorts of
reviews of congressional notification processes have been
conducted. And assuming that I was provided accurate
information, I am not aware of anything.
Ms. Eshoo. Thank you.
Chairwoman Schakowsky. Mrs. Myrick.
Mrs. Myrick. Thank you. I wanted to follow up what I was
asking before about the leaking of classified information and
people being prosecuted. And I know you have to get back to me
on this, but I would appreciate very much if you would let me
know when was the last time someone was prosecuted for leaking
classified information. And then was it a guilty plea, or did
someone just throw in the towel, or did the defendant fight it?
If you could let me know that, I would appreciate it very
much. Thank you, Madam Chair.
Chairwoman Schakowsky. If you could inform the whole
committee of that.
Mr. Litt. Of course.
Chairwoman Schakowsky. Mr. Holt.
Mr. Holt. Thank you, Madam Chair. Just a very brief
preamble. You should want this, everyone in the Intelligence
Community should want the fullest possible consultation with
Congress. These are serious matters. We want to get the best
intelligence results, we want to avoid horrific mistakes.
Historically over the decades, there have been horrific
mistakes that have cost lives, cost national reputation, have
diminished national security. So I would urge every leader in
the Intelligence Community to actively seek this consultation,
not perfunctory notification.
Mr. Litt. And if I could just----
Mr. Holt. And recognizing, if I may finish and then I'll
turn to you for a comment. You know, by oath and by the
Constitution, although we are not Commander in Chief, we have
an equal responsibility to provide for the common defense. And
so if it comes to a push and a tug about how fully Congress
will be informed, I think we stand on pretty--pretty solid
constitutional grounds.
Let me ask one specific question, and then if you could
answer that question and then comment as you might on my
comments. Has the Director undertaken a review of previous Gang
of Eight briefings, previous restricted briefings from the
preceding administration, revisited those to see if any of them
now no longer need to be restricted? Has that review taken
place? If not, is that review about to take place?
Mr. Litt. It hasn't taken place that I am aware of, and I
am not aware of any plans to do it. In response to your broader
comments at the beginning, I can only say that----
Mr. Holt. Let me just jump in there. In keeping with my
earlier comment, I would urge the Director most strongly to
undertake such a review. Maybe it is a null set. Possibly there
is nothing out there that hasn't been fully briefed. If there
is, he certainly should be looking at it.
Yes, sir, go ahead, please.
Mr. Litt. I was just going to say that I understand that
Director Blair shares your views of the importance of the
oversight process and a full consultation with Congress and,
frankly, the value to the Intelligence Community of having
Congress involved. I know he shares that and I know he is
trying to make it happen.
Madam Chair, something that Mr. Holt just said refreshed my
recollection on something. I am aware of one instance where
there has been a limited briefing since I have been involved
here. There was one. And in fact the Office of the General
Counsel was consulted on it.
Mr. Holt. Thank you, Madam Chair.
Chairwoman Schakowsky. Mr. Thornberry.
Mr. Thornberry. Thank you. Mr. Litt, do you believe that
the National Security Act of 1947 and those provisions we are
talking about, 501, 2 and 3, need to be clarified to make a
clearer standard that an administration and a Congress both
have to live up to?
Mr. Litt. I think that it is not--that it is an unrealistic
expectation to think that we could create any standard that
would not ultimately devolve to the exercise of judgment.
Mr. Thornberry. And I am not disagreeing with that. There
will be judgment. But I guess if I could ask you, do you think
the statute itself needs to be clarified to help the exercises
of judgment and to make it clearer about where the
responsibility lies and so forth.
Mr. Litt. I think that in my view the better approach, as I
said, is in refocusing the Intelligence Community on the
importance of complying with the statute as it is currently
written.
Mr. Thornberry. Now, if you read the statute, it provides
for Gang of Eight limited notification procedures for covert
action. It does not on other intelligence collection
activities. And yet that happens sometimes. But if you read the
statute it shouldn't. Do you agree?
Mr. Litt. Well, I think that the executive branch reads the
preamble language of Section 502 which refers ``to the extent
consistent with the protection of sensitive intelligence
sources and methods'' as providing some ability to the
Intelligence Community, not on whether to inform the committees
but on how the committees are to be informed, and that a
practice has grown up that has been more or less tolerated by
both sides of more limited briefings on unusual occasions. That
is, obviously, the exception rather than the norm.
Mr. Thornberry. That is helpful to me. So there is that
provision that says to the extent necessary to protect sources
or methods or whatever. And so your view is that that provides
a greater discretion for any Executive about whether to brief
and to whom to brief all intelligence activities.
Mr. Litt. As I said, I think that the--our view is that it
doesn't provide discretion on whether to brief, it provides
discretion on perhaps how to brief and who to brief. But that
if something rises to the level of a significant intelligence
activity, it ought to be briefed.
Mr. Thornberry. Well, I would just say a year ago, there
was some bipartisan agreement of a change in the statute that
would essentially put the presumption on any administration to
fully brief Congress. And if there was, if any administration
felt there was a need to limit who got briefed, it would be
this matter of consultation back and forth with basically the
decision resting between the Chair and the Ranking Member of
the full committee on whether it would be limited to fewer
Members of Congress or whether the whole committee. It seemed
to make sense to me. It seems to provide some clarification to
me about--in going forward, rather than this different
structure setup under 502 and 503.
I hope someday we can get back to kind of looking at this
in a simpler, easier way on a bipartisan basis. And obviously
one needs--any Congress would need to work with your office,
the administration, to make that happen.
So I appreciate you being here and yield back.
Chairwoman Schakowsky. Mr. Conaway.
Mr. Conaway. Thank you, Madam Chairman. You mentioned the
blind sheikh. I got great confidence in the Bureau of Prisons
that wherever we hold these guys, whether in Guantanamo Bay or
somewhere else, that none of them are going to escape. But
wasn't the sheikh's lawyer convicted of material support for a
terrorist organization by helping the sheikh run the
organization from prison? Can you talk to us about that case?
And also how does that impact bringing Guantanamo Bay detainees
to the United States where they may in fact have a broader
opportunity for visitors and other access that they currently
don't have in Guantanamo Bay?
Mr. Litt. My knowledge of that case is derived from reading
newspaper reports and the case reports of it, so I don't have
any--I can't give you any more detailed information than that.
It is my understanding that his lawyer was convicted of
essentially passing coded messages. It is also my impression
from reading the case--and I will tell you this is only my
impression, I don't have any inside information on this--but it
is my impression that the monitoring systems that were in place
picked up these conversations and enabled the prosecution in a
manner that was sufficient so that if there had been any
genuine risk to national security, it could have been taken
care of.
Now as I said, that is just my impression from reading the
reports. I don't know that for certain. I think that, by and
large, the super max prisons and the Special Administrative
Measures that can be put in are adequate to protect national
security and to protect individuals and that whatever process
is put into place for bringing these people here will ensure
that the safety of Americans is not threatened.
Mr. Conaway. Would you anticipate, though, that more people
getting to have access to the detainees here in the United
States is less preferable than a limited number of people
getting access to them in Guantanamo Bay?
Mr. Litt. Well, I am just not sure that more people would
have access to them here than in Guantanamo Bay.
Mr. Conaway. And that is based on?
Mr. Litt. I mean----
Mr. Conaway. And that is a rhetorical question. The real
issue about bringing those folks onto United States soil is
Federal judges beginning to interpret their rights broader than
even the administration would want them interpreted and,
certainly, I and my colleagues would want them interpreted. And
once they are here and you have got Federal judges involved,
then you really can't answer beyond that, because there are
thousands of Federal judges that might have the sympathies that
are different than others.
So I thank you, Mr. Litt, I appreciate your very candid
comments. Thank you, sir. I yield back.
Chairwoman Schakowsky. At this point we will recess the
committee and close the open session and reconvene in our
regular hearing room downstairs. And we will move right there.
[Whereupon, at 11:38 a.m., the subcommittees proceeded in
Closed Session.]