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The new Intelligence Authorization Bill– not all good news

Admiral Dennis Blair, Director of National Intelligence

Admiral Dennis Blair, Director of National Intelligence

The Washington Post is reporting on the new Intelligence Authorization Bill that has just cleared the House Intelligence Committee. According to the Post:

The House intelligence committee late Thursday approved measures to strengthen oversight of the National Security Agency and the overall intelligence community, including by making the jobs of NSA director and general counsel subject to Senate confirmation.

The committee also voted to include provisions that would establish independent inspectors general at the NSA and at the Office of the Director of National Intelligence who could not be fired by the heads of those agencies. The latter position would have expanded authority to investigate all 16 intelligence agencies under the director’s oversight.

The panel’s intelligence authorization bill, which was approved on a party-line voice vote and now goes to the House floor, would also establish the new position of NSA associate director for compliance and training so that the agency has a senior-level official focusing solely on ensuring that personnel comply with laws and court orders.

The bill also would end the statutory authority of the executive branch to limit briefings on classified, covert action to the “Gang of Eight,” the chairmen and ranking members of the House and Senate intelligence committees and the House and Senate senior leadership.

Together these measures, Democrats say, represent an attempt to make the intelligence agencies more accountable to Congress. In recent years, controversies including disclosures of the NSA’s warrantless surveillance program and the CIA’s use of harsh interrogation techniques have led to calls for greater oversight.

The Post notes that:

The bill also includes a provision by Rep. Rush D. Holt (D-N.J.) requiring the videotaping of CIA interrogations of detainees arrested in Iraq, Afghanistan and elsewhere. The classified recordings would be available to intelligence personnel, who could examine them for potential intelligence missed during the initial interrogation, aides to Holt said.

A couple of comments.

First, I like the idea of independent Inspectors General. I think that model makes a lot of sense. And it seems to be logical that the Inspector General at the ODNI would have authority over all of the intelligence community.

Second, I think it makes sense to have the Director of NSA– the largest intelligence agency in the United States subject to Senate confirmation.

Third, I worry about making the General Counsel at NSA subject to Senate confirmation. I think this has the potential to bring about the same kind of politicization of legal positions that we saw at the Justice Department in the previous Administration. Indeed, I agree with Stewart Baker. The Post notes:

Stewart A. Baker, who served as NSA general counsel from 1992 to 1994, said that requiring confirmation would “undercut a long tradition of nonpartisanship” in the job. Baker was appointed by a Republican, President George H.W. Bush, and retained by a Democrat, President Bill Clinton. “This is effectively a proposal to politicize the job,” he said.

Fourth, I also worry about changing the provision in that law that allows the president to limit the briefing on covert actions to the “Big Eight.” I will check the specific language of the bill, but if this means that the president must brief the entire committees, it could have the unintended consequence of leading presidents to postpone briefings until later dates. As present, the law requires that the president notify in a “timely fashion.” If the president has to brief more members, the president may simply decide to wait longer to brief. Moreover, if the “Big Eight” don’t have the integrity to challenge the president on the wisdom of certain covert actions, I am not sure that expanding it to the whole committees will help much.

Fifth, I find Rush Holt’s addition interesting. I guess it makes sense– but, of course, it seems to presuppose that the CIA should be doing the interrogating in the first place– and not the military or the FBI. Indeed, evidence seems to indicate that we got in trouble before when the CIA contractors did the interrogating.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.