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Gang of Eight Members Want a Bigger Gang

Michelle Richardson,
Legislative Counsel, ACLU Washington Legislative Office
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April 1, 2010

The “gang of eight” is a group of members of Congress with a pretty sweet name that includes the leaders, both Democrat and Republican, of the Senate and House, as well as the chairmen and ranking members of the House and Senate Intelligence Committees. The “gang” is briefed on covert intelligence matters by the administration when the president “determines it is essential to limit access” to classified or national security information in “extraordinary circumstances.” The “gang” is also sworn to secrecy to not disclose this information to anyone, even other members of Congress.

Right now, there’s a transparency issue boiling between Congress and the administration. The House and Senate recently passed their intelligence authorization bills, and both chambers included a very important provision: a check on the president’s authority to single-handedly decide to only inform the “gang of eight” about important intelligence activities. In short, the bill’s language would make the gang of eight a bigger gang to include the rest of the committee.

Frustratingly, President Obama is threatening to veto the legislation if requires the briefing of the other committee members.

It’s important to remember the purpose of the intelligence committees. In the 1970’s, the Church Committee investigated grave abuses of power in the name of national security. One of its core findings was that the complete lack of congressional oversight created fertile ground for executive overreach. It recommended that special committees in Congress be created to keep the intelligence and national security community within the confines of the law.

Thirty years later, the full intelligence committees can barely do their jobs. The executive branch takes advantage of this by withholding critical information from the full committees, often informing just the gang of eight as a way for the executive branch to hide its wrongdoing by isolating a small handful of members. This workaround allows the president to dump secrets on the gang of eight, and prevent them from conferring with their colleagues.

The House and Senate intelligence authorization bills make an important change in the underlying reporting statute. If a member of the gang of eight is briefed, and he or she objects to excluding the rest of the committee from the briefing, the executive branch must come in and brief the rest of the members of the committee on “general information regarding” the programs (House bill) or the “main features” of the intelligence activities (Senate bill). (See H.R. 2701 and S. 1494)

When it comes down to it, House Intelligence Committee Chairmen Rep. Silvestre Reyes (D-Texas) and Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) aren’t asking for the moon. They are only asking that their committees be looped in so that they can properly do their jobs. The intelligence committees must be able to make fully informed decisions about some of the most important constitutional and human rights issues of our day. (Actually, all members of congress should be fully informed since they all vote on authorizing these programs — but that’s a fight for another day!)

Again, this very modest change is now under a veto threat from the Obama administration.

Obama is asking that Congress doesn’t exercise its constitutional authority to conduct oversight out of a “long tradition of comity” (no kidding — here’s the veto threat letter). Look at how that “tradition” has worked out over the last decade.

Let’s take a quick walk through history and think about when these wider briefings could have made a difference. The CIA’s use of torture? What if Rep. Jane Harman (D-Calif.) was able to share her concerns with her colleagues? And what about warrantless wiretapping? Imagine if Sen. Jay Rockefeller (D-W.V.) wrote a letter and didn’t have to lock it in a drawer. Even the smallest amount of extra sunshine and oversight from Congress on these dark spots in history would have made a huge difference. Can you imagine Congress delaying oversight or putting limits on these authorities if the entire intelligence committees were informed?

Doesn’t it seem like the executive branch has claimed that it can pretty much do whatever it wants when it comes to terrorism? And hasn’t Congress, at times, rushed in to validate that position by passing laws authorizing the very intrusive program that had been operating secretly and illegally? To make matters worse, these executive powers, whether legal or not, continue to operate in ever more secrecy due to:

The *only* true and reliable backstop left is congressional oversight.

On the campaign trail, President Obama, pledged openness and government transparency, declaring “no more secrecy.” To see his administration threatening a veto on something that would help that goal is disheartening to say the least. If we’ve learned anything over the last decade, it’s that the executive branch — no matter who is president — cannot be trusted to check itself.

(Cross-posted to Daily Kos and Huffington Post.)

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