Governments often curtail individual liberties when faced with national or global emergencies. Unsurprisingly, one result of the COVID-19 pandemic is that governments around the world are expanding the authority of their chief executive. Melissa Hooper’s excellent essay provides a useful overview of the public-facing policies many governments are enacting to expand governmental authority. To be sure, emergency consolidations of power can occur publicly, such as when a legislature statutorily empowers the executive. The United Kingdom, the Philippines, and Hungary have recently followed this model.
But what about the classified and covert policies that governments, including the U.S. administration, might adopt? And what about the so-called whole-of-government approach to fighting the pandemic, when the whole includes multiple intelligence agencies?
Expansion of executive authority often occurs in private, without any involvement of a legislature—including in democratic systems of government. In particular, U.S. presidents, especially in times of national emergency, have used the Intelligence Community (IC) to quietly expand executive authority without approval from Congress or the courts.
The past few weeks have left signs that this is the direction the Trump administration may go. A series of developments suggest the IC will play a nontrivial role in fighting the pandemic. By January and February, U.S. intelligence agencies reportedly developed classified analyses and issued several warnings about the global spread of COVID-19. The White House reportedly ordered the Department of Health and Human Services to conduct COVID-19 meetings in a classified setting. The CIA was tasked with assessing the spread of pandemic in China and elsewhere. And the administration is keen to exploit individuals’ cellphone data to address the public health threat.
All of that and then came the president’s Friday night firing of Michael Atkinson, the Inspector General of the IC. Atkinson’s removal means the IC is now without a revered watchdog as it potentially accumulates and exercises new powers in confronting COVID-19. Even if a new IG were appointed, the retribution against Atkinson sends a chill within the IC.
But before Atkinson’s removal, there was already a need for Congress to ensure it can effectively oversee the president’s use of the IC in response to the pandemic. An opportunity for Congress to do so is just over the horizon. Legislators are beginning to outline the elements of a fourth massive federal relief package to further mitigate the effects of COVID-19. In drafting this bill, Congress should consider adding language that will bolster Congress’s oversight of the IC during a national emergency.
History’s lessons
The Bush Administration’s response to the 9/11 attacks provides a useful example of how a president can quietly expand his authority through classified IC operations. Just weeks after the 9/11 attacks, President Bush directed the National Security Agency (NSA) to collect large amounts of meta-data on American citizens. The legality of this program was questionable at best. But perhaps even more concerning, the congressional intelligence committees were never informed about the program. These committees, along with Congress and the rest of the nation, only learned about the program after it was leaked to the New York Times.
Similarly, in 2002, the CIA authorized its “enhanced interrogation techniques” program. Like the NSA’s surveillance program, this program was withheld from Congress. Instead, the Bush White House briefed just four members of Congress who were not permitted to discuss the program with anyone, including fellow members of the intelligence committees. President Bush utilized a statutory loophole to hide IC programs that greatly expanded the president’s power. This loophole still exists today.
Under federal law, the President is required to keep the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI) “fully and currently informed of … intelligence activities.” While this language appears expansive, a significant carveout exists in Sections 502 and 503 of the National Security Act. Section 502 requires notification only to the extent consistent with protecting “sensitive intelligence sources and methods.”
Furthermore, under Section 503, the president is legally permitted to withhold covert operations from the congressional intelligence committees. Instead, the President is statutorily permitted to inform just eight congressional leaders, known as the Gang of Eight, about covert operations. But in practice, presidents have interpreted Section 503 expansively and have used it to withhold both covert operations, such as the CIA’s enhanced interrogation techniques program and non-covert programs such as the NSA’s surveillance of the American public. Gang of Eight notifications undermine congressional oversight by enabling the president to withhold significant and controversial IC programs from the congressional committees charged with overseeing the IC. If President Trump authorizes a new IC program in response to COVID-19, it’s possible that neither Congress nor the intelligence committees will be aware of its existence.
Both Republican and Democrat-led Congresses have sought to restrict the president’s authority to withhold IC programs from the intelligence committees. In 2005, the Republican-led Senate introduced the FY 2006 Intelligence Authorization Act, which would have required the executive branch to provide the intelligence committees with “any intelligence assessment, report, estimate, legal opinion, or other intelligence information” they requested within 15 days. In drafting the FY 2007 Intelligence Authorization Act, the Senate (then led by the Democrats) copied this exact language. In a Statement of Administration Policy (SAP), President Bush threatened to veto the bill, in part, because of this requirement.
In 2009, during HPSCI’s mark-up of the FY2010 Intelligence Authorization Act, the committee (led by the Democrats) fully eliminated the option for limited notifications just to the Gang of Eight. This was met with swift resistance from the White House. On July 8, 2009, the Obama administration released a SAP stating, “If the final bill presented to the President contains [the Gang of Eight] provision, the President’s senior advisors would recommend a veto” (emphasis in the original). Ultimately, this provision was abandoned and the Gang of Eight carve-out remains in place.
Next Steps
Now is the time for Congress to either reduce or eliminate Gang of Eight notifications. Presidents Bush and Obama both dissuaded Congress from improving congressional oversight by threatening to use their veto power. And of course, President Trump retains this power. What is different is that Congress is now considering further emergency legislation to reduce the economic impact of COVID-19. Given that the President is highly unlikely to veto this legislation, Congress has a unique opportunity to reassert its oversight over the IC.
Though it may seem counterintuitive, the White House should support increasing Congress’ oversight role. Such oversight can enable the president to utilize new surveillance tools to better contain the COVID-19 pandemic. Governments such as South Korea and China have effectively reduced the spread of the virus in part, by tracking the public’s movement using cell phone data. The Trump administration has attempted to acquire this data from companies such as Facebook and Google. But privacy concerns have limited companies’ willingness to share data with the federal government. Corporations may be less resistant to sharing their data if Congress, through increased oversight over the IC, is better able to monitor the use of such data. More broadly, robust congressional oversight may encourage Americans to voluntarily share their location data with the government. By pairing the use of new surveillance tools with increased congressional oversight, the White House can help assuage privacy concerns, garner buy-in from the private sector, and ultimately reduce the threat of COVID-19 through new IC programs.
One final note, I must emphasize that there is no evidence that the Trump administration has acted unlawfully in responding to COVID-19. Increasing congressional oversight of the IC is not a policy aimed at President Trump in his individual capacity. Instead, this is a policy that should (and has previously) received bipartisan support from within Congress. I recognize that there may be some concern that if Congress takes affirmative steps to ensure congressional oversight of the IC, it may politicize the next stimulus package. Nevertheless, national emergencies present an opportunity for the executive to aggrandize his power. The Trump administration has indicated that it will utilize the IC to combat COVID-19. Congress, in a bipartisan fashion, should protect its ability to oversee these operations.