Obama White House Just As Reluctant as Bush White House to Share Intelligence With Congress, Says Former CIA Director Who Served Under Both
Speaking at a forum on intelligence reform in Washington Tuesday, Hayden said he had similiar experiences when the issue of briefing Congress on an intelligence matter came up in the Bush White House and the Obama White House.
“I was President Obama’s DCIA (Director of the Central Intelligence Agency) for three weeks,” Hayden said. “And I will tell you, in that 21-day period, I had the same kind of conversation I had with his [Obama’s] predecessor about a sensitive matter, and whether or not I should brief it to the Hill, and I was pushing one way and his NSC [National Security Council] and staff were pushing the other.”
Hayden said that the intelligence community was driven by an instinct to brief Congress as broadly as possible and as deeply as possible, but tended to be held back by the White House.
"Within the limits of sources and methods, because you are always sensitive about how big a group you brief, but put that caveat aside: The overwhelming instinct of the intelligence agencies is to brief the Hill, brief them broadly and to brief them deeply," he said. "To us an airman's metaphor, since I spent most of my life in the Air Force: If you want these people to be there at the crash, you got to put them on the manifest. There are no upsides to trying to hide the ball."
Hayden mentioned that Obama has threatened to veto the Intelligence Authorization Bill of 2010, which would fund the activities of the CIA and the 15 other U.S. intelligence agencies, because it contains provisions mandating that the administration brief the entire membership of both the House and Senate intelligence committees.
Currently, federal law mandates that only the so-called Gang of Eight--the Republican and Democratic leadership in both chambers of Congress and the chairman and ranking members of both intelligence committees--be briefed on covert programs.
“And I will add that President Obama has threatened to veto the current intelligence authorization bill, if it still contains language that takes out of his control who on the Hill is briefed,” said Hayden.
In fact, Obama has threatened to veto the bill twice: once in July of 2009 after it passed the House and again on March 15, 2010 after it passed the Senate.
Each time, the administration said that forcing it to brief the full House and Senate intelligence committees would restrict Obama’s ability to protect sensitive national security secrets – secrets that might leak out of Congress.
“The Administration strongly objects to section 321, which would replace the current “Gang of 8” notification procedures on covert activities,” reads a July “Statement of Administration Policy.” The statement was released by the House Intelligence Committee Chairman Silvestre Reyes (D-Texas.)
“Section 321 would run afoul of tradition by restricting an important established means by which the President protects the most sensitive intelligence activities that are carried out in the Nation's vital national security interests,” says the statement.
That document also explains that the Obama administration, like the Bush administration before it, thought that intelligence disclosures were a matter of constitutionally protected executive privilege, forcing the executive branch to reveal legal advice given by administration lawyers regarding the legality of secret programs.
“In addition, the section raises serious constitutional concerns by amending sections 501-503 of the National Security Act of 1947 in ways that would raise significant executive privilege concerns by purporting to require the disclosure of internal Executive branch legal advice and deliberations,” reads the statement. “Administrations of both political parties have long recognized the importance of protecting the confidentiality of the Executive Branch's legal advice and deliberations.”
“If the final bill presented to the President contains this provision, the President's senior advisors would recommend a veto,” reads the statement.
In a March 15, 2010 letter, Director of Management and Budget Peter Orszag wrote Rep. Reyes, along with Sens. Kit Bond (R-Mo.) and Dianne Feinstein (D-Calif.) and Rep. Pete Hoekstra (R-Mich.) saying that the administration still “strongly opposes” taking away the president’s discretion on matters of intelligence-sharing.
“The Administration strongly objects to these provisions, which would replace the current ‘Gang of 8’ notification procedures on covert activities,” Orszag wrote. “This new requirement would undermine the President's authority and responsibility to protect sensitive national security information.”
The requirement contained in both versions of the bill would force the administration to brief all members of both House and Senate intelligence committees any time a Gang of Eight briefing takes place. Currently, a Gang of Eight briefing is only conducted on covert programs, which are considered to be of the utmost secrecy, as the Bush administration did with its terrorist interrogation program.
The provision also includes a requirement to brief members of the intelligence committees on the legal justifications for such covert actions. In his letter to Congress’ top intelligence committee members, Orszag said that the Obama administration would only summarize its legal reasoning for Congress, and not provide them with the full legal briefs.
“Finally, with respect to the requirement to provide ‘the legal authority under which [an] intelligence activity is being or was conducted,’ we wish to make clear that we would construe the provision only to require that the Executive Branch provide the committee with an explanation of the legal basis for the activity; it would not require disclosure of any privileged information,” said Orszag in his letter.