Jane Harman (Gang of 8)in Jan 2006- NSA Program doesn't Qualify as "Covert Action"

WASHINGTON D.C. ---- Rep. Jane Harman (D-Venice), Ranking Member on the House Permanent Select Committee on Intelligence, today sent the following letter to President Bush:

January 4, 2006

The President of the United States
The White House
Washington, DC 20500

Dear Mr. President:

On December 17, 2005, six members of the House Permanent Select Committee on Intelligence requested a briefing for the full Committee concerning certain publicly-reported activities of the National Security Agency. As you know, since 2003, I have been a member of the so-called Gang of Eight – which includes the Speaker and Minority Leader of the House, the Majority and Minority Leaders of the Senate and the Chairmen and Ranking Members of the congressional intelligence committees. As a member of the Gang of Eight, I have received periodic briefings on highly classified programs. However, with respect to the NSA program that you have disclosed, I have reviewed the law and now believe that the practice of briefing only certain Members of the intelligence committees violates the specific requirements of the National Security Act of 1947.

The National Security Act requires that “The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States . . . .” 50 U.S.C. § 413(a)(1). The Act makes clear that the requirement to keep the committees informed may not be evaded on the grounds that “providing the information to the congressional intelligence committees would constitute the unauthorized disclosure of classified information.” 50 U.S.C. § 413(e).

The Act provides for one exception to the President’s duty to keep all committee Members fully and currently informed of intelligence activities. In the context of a covert action, the President may, if he concludes that “it is essential . . . to meet extraordinary circumstances affecting vital interests of the United States,” limit notification to the Gang of Eight. 50 U.S.C. § 413b(c)(2). That procedure applies by the terms of the statute to covert actions, not intelligence collection activities.

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The NSA program does not qualify as a “covert action.” That term is defined in the National Security Act as “activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent.” 50 U.S.C. § 413b(e). Covert actions, pursuant to the statute, do not include “activities the primary purpose of which is to acquire intelligence . . . .” 50 U.S.C. § 413b(e)(1).

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http://www.house.gov/harman/press/releases/2006/0104PR_nsaprogram.html

NBC's Andrea Mitchell explained Pelosi's "personal animus" to Harmon on Matthews' show Sunday.

Pelosi believes Harman "hasn't been tough enough on the Bush administration, on intelligence issues, that she wasn’t, that she was too moderate, too centrist, even though she is the most credible Democrat on all of these issues and has a national following and it is a really nasty fight among two powerful congresswomen," said Mitchell.

"Pelosi has nursed a well-publicized grudge against her fellow California Democrat because she believes Harman has not been a tough enough critic of President Bush on security matters, while using her ties to the influential American Israel Public Affairs Committee to lobby for the chairmanship," Shailagh Murray and Juliet Eilperin reported for the Post last week.

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http://www.rawstory.com/news/2006/Why_Pelosi_so_tough_on_Harman_1113.html

to criticize Junior after 9/11. I remember it distinctly because it was such a relief.

Having said that, I'm not a fan.

there was talk of a falling out between Pelosi & Harman over the Intel Chairmanship.

Any classified aspects of the program can be handled during a closed hearing in our Committee spaces.

Our Ranking Member has had an opportunity to ask and hear the answers to some of the following questions, as a member of the Gang of Eight. But she is prohibited from sharing this information with us and joins us in the view that all of these questions need to be answered on the record:
1  What is the purpose of the program?
2 When did the program begin? When was it first authorized by the President?
3  How is the program operated and controlled?
4 Who are the targets of the collection and how were they identified? Who makes the decision as to which communications to target and collect? What criteria are applied in making their determinations?
5 What are the rules for the handling, retention, maintenance, minimization and dissemination of collection under the program? 
6 Does the program involve data mining or actual monitoring of communications, or both?
7 What actionable intelligence has been obtained and what has been its value in disrupting terrorist plots?
8 Why did the Administration not obtain FISA warrants to conduct this activity?
9 Are FISA's 72-hour emergency provisions insufficient to conduct this activity? If so, why? What specific provisions would need to be altered in order to make FISA sufficient?
10 In the absence of any authority which the Authorization for the Use of Military Force (AUMF) may grant, would a change to FISA be necessary to authorize the program?
11 Has information obtained through the program been used as part of the basis for FISA or conventional warrants?
12 When the President requested that Congress amend FISA as part of the Patriot Act in 2001, why did he not also request that FISA be amended so as to authorize the NSA program?
13 If the President intended the AUMF to authorize warrantless surveillance of United States Persons, why did he not make that clear to Congress at the time it considered the AUMF, or subsequently?
14 Are there other activities the Administration believes are justified by the AUMF resolution that it has not briefed to Congress? For example, are officials conducting physical searches in the United States without a warrant?
15 Why has it been necessary to seek such frequent Presidential re-authorizations? How many re-authorizations have there been?
16 What were the concerns that led the program to be reevaluated in 2004? How were these concerns resolved?
17 Since the NSA program is not a "covert action," under what understanding has the President restricted notice of this program to the Gang of Eight?
18 How many staff employees at the National Security Agency have been briefed into the program? How many staff employees elsewhere in the intelligence community have been briefed into the program? How many contractors in the intelligence community have been briefed? How many employees of the Justice Department and FBI have been briefed? What was the total number of people briefed into the program as of December 15, 2005?
19 To what extent has the disclosure of the program compromised intelligence sources and methods?

We believe that these questions, and others that you and the Majority may have, should be addressed by senior Administration witnesses - including Deputy Director of National Intelligence Michael Hayden, Attorney General Alberto Gonzales and National Security Advisor Steven Hadley - as soon as Congress returns from recess. The American people expect us to engage in rigorous oversight over intelligence programs, and a full committee hearing is the first step in such oversight.

Sincerely,

Jane Harman
Alcee L Hastings
Silvestre Reyes
Leonard L. Boswell
Robert E. (Bud) Cramer, Jr.
Anna G. Eshoo
Rush D. Holt
C.A. Dutch Ruppersberger
John F. Tierney

http://www.house.gov/list/press/ca36_harman/pr_060125_nsa.shtml