[incarcerated]

Part 2


Loose Lips Sink Ships

As trite as this old saying may sound, it is painfully true. In the counterterrorism realm, leaks destroy counterterrorism cases and often allow terrorist suspects to escape and kill again. There have been several leaks of “sources and methods” by congressional sources over the past decade that have disclosed details of sensitive U.S. government programs designed to do things such as intercept al Qaeda satellite phone signals and track al Qaeda financing. A classified appendix to the report of the 2005 Robb-Silberman Commission on Intelligence Capabilities (which incidentally was leaked to the press) discussed several such leaks, noted the costs they impose on the American taxpayers and highlighted the damage they do to intelligence programs.

The fear that details of a sensitive program designed to assassinate al Qaeda operatives in foreign countries could be leaked was probably the reason for the Bush administration’s decision to withhold knowledge of the program from the U.S. Congress, even though amendments to the National Security Act of 1947 mandate the reporting of most covert intelligence programs to Congress. Given the imaginative legal guidance provided by Bush administration lawyers regarding subjects such as enhanced interrogation, it would not be surprising to find that White House lawyers focused on loopholes in the National Security Act reporting requirements.

The validity of such legal opinions may soon be tested. House Intelligence Committee Chairman Silvestre Reyes, D-Texas, recently said he was considering an investigation into the failure to report the program to Congress, and House Democrats have announced that they want to change the reporting requirements to make them even more inclusive.

Under the current version of the National Security Act, with very few exceptions, the administration is required to report the most sensitive covert activities to, at the very least, the so-called “gang of eight” that includes the chairmen and ranking minority members of the congressional intelligence committees, the speaker and minority leader of the House of Representatives and the majority and minority leaders of the Senate. In the wake of the program’s disclosure, some Democrats would like to expand this minimum reporting requirement to include the entire membership of the congressional intelligence committees, which would increase the absolute minimum number of people to be briefed from eight to 40. Some congressmen argue that presidents, prompted by the CIA, are too loose in their invocation of the “extraordinary circumstances” that allow them to report only to the gang of eight and not the full committees. Yet ironically, the existence of the covert CIA program stayed secret for over seven and a half years, and yet here we are writing about it less than a month after the congressional committees were briefed.

The addition of that many additional lips to briefings pertaining to covert actions is not the only thing that will cause great consternation at the CIA. While legally mandated, disclosing covert programs to Congress has been very problematic. The angst felt at Langley over potential increases in the number of people to be briefed will be compounded by the recent reports that Attorney General Eric Holder may appoint a special prosecutor to investigate CIA interrogations and ethics reporting.

In April we discussed how some of the early actions of the Obama administration were having a chilling effect on U.S. counterterrorism programs and personnel. Expanding the minimum reporting requirements under the National Security Act will serve to turn the thermostat down several additional notches, as did Panetta’s overt killing of the covert program. It is one thing to quietly kill a controversial program; it is quite another to repudiate the CIA in public. In addition to damaging the already low morale at the agency, Panetta has announced in a very public manner that the United States has taken one important tool entirely out of the counterterrorism toolbox: Al Qaeda no longer has to fear the possibility of clandestine American assassination teams.