[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]






CONGRESSIONAL NOTIFICATION: INTELLIGENCE COMMUNITY POLICIES, PRACTICES, 
                             AND PROCEDURES

=======================================================================

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                   INTELLIGENCE COMMUNITY MANAGEMENT

                                 of the

                       PERMANENT SELECT COMMITTEE
                            ON INTELLIGENCE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

            Hearing held in Washington, DC, October 27, 2009







                  Printed for the use of the Committee

                  U.S. GOVERNMENT PRINTING OFFICE

  53-808                  WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001






 
CONGRESSIONAL NOTIFICATION: INTELLIGENCE COMMUNITY POLICIES, PRACTICES, 
                             AND PROCEDURES

                              ----------                              


                       TUESDAY, OCTOBER 27, 2009

              House of Representatives,    
    Permanent Select Committee on Intelligence,    
          Subcommittee on Oversight and Investigations,    
                                 Joint With the Subcommittee on    
                             Intelligence Community Management,    
                                                    Washington, DC.

    The subcommittee met, pursuant to call, at 10:05 a.m., in 
Room HVC-210, Capitol Visitor Center, the Honorable Jan 
Schakowsky, [chairwoman of the Subcommittee on Oversight] 
presiding.
    Present: Representatives Schakowsky, Eshoo, Holt, Schiff, 
Myrick, Thornberry, Miller, and Conaway.
    Chairwoman Schakowsky. I'll call this meeting to order.
    Today we will examine how the Intelligence Community honors 
and implements its legal obligation to keep Congress informed 
about intelligence activities. This hearing is part of the full 
committee's investigation into the Intelligence Community's 
compliance with the National Security Act. This is a combined 
hearing of the Oversight and Investigation Subcommittee and the 
Intelligence Community Management Subcommittee, chaired by 
Congresswoman Eshoo.
    Under the National Security Act, the executive branch is 
required to keep the committee ``fully and currently informed 
of the intelligence activities'' of the United States, 
including any ``significant anticipated intelligence activity'' 
and covert actions. These requirements are critical. The 
executive branch's intelligence activities are secret, and the 
American people rely on the congressional Intelligence 
Committees to scrutinize them. They rely on this committee to 
make sure that those activities are consistent with the 
Nation's best interest and values. The committee is, in the 
truest sense, the people's representative when it comes to 
secret intelligence activities.
    For the committee to perform these vital functions, the 
committee must receive--and the executive branch must provide--
truthful, complete, and timely information. If this does not 
occur, Congress cannot adequately perform its constitutional 
obligation to authorize and appropriate money for intelligence 
activities.
    In recent years, various members of the committee from both 
sides of the aisle have expressed concerns that the 
Intelligence Community has failed to provide the committee with 
full and complete information. Recent revelations have raised 
yet more questions about whether the Intelligence Community has 
violated the National Security Act.
    Last week, the Intelligence Community Management 
Subcommittee held a hearing focused on the National Security 
Act's provisions that require the executive branch to keep the 
committee informed about intelligence activities. That hearing 
was an important step in the committee's investigation.
    Today's hearing represents another important step. For the 
National Security Act to be effective, the executive branch 
must properly implement and enforce it. We need to understand 
how the Intelligence Community carries out this obligation, 
whether its notification policies gave rise to past 
notification failures, and what it is now doing to make sure 
that the committee is kept fully and currently informed.
    In particular, I look forward to hearing about the ODNI's 
current review of the Intelligence Community's notification 
policies.
    To discuss these matters, we will hear from Robert S. Litt, 
the general counsel of the Office of the Director of National 
Intelligence. While Mr. Litt has only been on the job for 
several months now, he joined the ODNI after an already 
distinguished legal career which has included time as a senior 
Justice Department official and as a partner at one of 
Washington D.C.'s most prominent law firms. As demonstrated by 
his substantial work on the subject since joining the ODNI, I 
know he takes the issue of congressional oversight seriously 
and I welcome him here today.
    Chairwoman Schakowsky. At this point, I would like to 
recognize Ms. Eshoo, the Chair of the Intelligence Community 
Management Subcommittee, for any opening statement that she 
would like to make.
    Ms. Eshoo. Thank you, Madam Chairwoman, and good morning to 
everyone. Welcome.
    Mr. Litt, thank you for being willing to testify today on 
this joint session on congressional notification which is, of 
course, a very important topic, and it's the reason that we're 
here.
    Last week the Intelligence Community Management 
Subcommittee held a hearing examining the provisions in the 
National Security Act of 1947 that established how the 
executive branch keeps Congress informed of its intelligence 
activities. This hearing comes as a welcome follow-up to that 
one, so we can examine how the executive branch has implemented 
the provisions of the act and how they interpret the statute.
    As I said last week at our hearing, the executive branch's 
obligation to keep the committee fully and currently informed 
is really a solemn obligation. Congress has a right to know and 
the executive branch has a duty to share the information 
necessary for Congress to authorize and appropriate funds and 
oversee the activities of the Federal Government, including 
intelligence activities, to ensure that taxpayer funds are 
spent wisely and that the policy is really a sound one.
    Last week, we heard that the relationship works best when 
the executive branch takes, in good faith, its obligation to 
share full and complete information about intelligence 
activities with the committee. In many cases, Congress provides 
the only outside oversight on intelligence activities, and thus 
its role is all the more crucial in checking executive excesses 
or strengthening its plans.
    We examined the statute and we focused on a number of 
phrases where the law is ambiguous. Some in the executive 
branch could use that lack of clarity to circumvent their 
obligations to inform Congress. We need to understand how the 
agencies interpret their obligation to keep the committee 
``fully and currently'' informed, what kinds of intelligence 
activities they consider ``significant,'' and how they view the 
obligation to inform rather than merely notify--and there is a 
big difference between the two. I think all of the members of 
the committee have a pretty deep appreciation of that.
    I want to understand how the agencies interpret the phrase 
``significant.''
    Last week's witnesses explained that the factors that make 
an intelligence activity significant are those that are 
approved at high levels of leadership or are particularly 
sensitive or are likely to have serious foreign policy 
implications.
    I would also like to understand whether the agencies are 
basing any of their decisions to inform Congress on whether an 
activity is operational. As we heard last week, that phrase is 
not in the statute and should not be used to decide what 
information should be shared with the Intelligence Committees.
    I hope, Mr. Litt, that you will shed light on how the 
Intelligence Community implements its obligation to keep the 
committees fully and currently informed. I am also looking 
forward to hearing about some of the changes that the 
Intelligence Community is considering to improve its 
congressional notification practices so that the failures of 
the past do not repeat themselves.
    So thank you, Madam Chairwoman. I am delighted that we're 
having this joint hearing.
    Thank you, Mr. Litt, for testifying today.
    And to everyone that's here in the audience, we're glad to 
see you and look forward to working with all of you.
    Chairwoman Schakowsky. Now I would like to recognize Mr. 
Miller, the Ranking Member of the Oversight and Investigation 
Subcommittee, for any opening statement he would like to make.
    Mr. Miller. Thank you, Madam Chairwoman.
    Mr. Litt, thank you for being here today. I believe this is 
the first time that you have had an opportunity to testify 
before this subcommittee, and as you might imagine, there are 
going to be quite a few questions that we'll have for you 
today.
    We all believe that timely and accurate notifications are 
vital to the work of this committee. In the past Congress, 
we've seen the negative effects and tensions created between 
the Congress and the executive branch when the notification 
process breaks down. No single case better illustrates my point 
than the Peru Program.
    This intelligence program resulted in the deaths of two 
American citizens: Veronica and Charity Bowers. Their deaths 
directly affected friends and family members living in my 
district. The mishandling of this program is of great interest 
and of great concern to me.
    But beyond the ineptitude that led to the Bowers' deaths, I 
am stunned by the ease with which some at the CIA kept this 
information from reaching the Congress. The CIA Inspector 
General has issued a report that detailed at length how certain 
intelligence officers deliberately misled the committees of 
jurisdiction on this matter. We have heard from the IG about 
their report. We don't need to rehash those specifics today.
    Hopefully, Mr. Litt, you can provide some reassurance that 
this kind of misconduct cannot happen again, and I'd like to 
hear what changes have been made to the congressional 
notification process, not just at CIA but in the IC, to prevent 
something like this from ever happening again. I hope that the 
lessons learned from Peru have been incorporated as best 
practices in your procedures.
    That being said, I want to make it clear that I don't 
believe that the CIA or any element of the community lies all 
the time. These kinds of statements made by senior Members of 
Congress are unhelpful to our efforts on this committee to 
foster a sense of trust and cooperation between the executive 
branch and Congress. And frankly, such statements are not 
accurate.
    Moreover, I am also concerned about the level of 
partisanship that is attached to this issue. In our bill, a 
broadly supported bipartisan legislative proposal to fix the 
notification provisions of the National Security Act was 
scrapped by the Majority in favor of a narrowly supported 
partisan provision, a provision that actually drew a veto 
threat from the Obama administration. In this subcommittee's 
efforts, the majority has allowed oversight of critical matters 
of bipartisanship interest, such as Peru, to flounder.
    Instead, the Majority has embarked on this vague and ill-
conceived investigation of notification issues with little 
input or consultation with the Republican Members. 
Unfortunately, I don't believe the Majority will complete this 
investigation anytime soon. I also don't believe this 
investigation will realize positive results that will justify 
the time and resources that we will spend on it.
    In any case, Mr. Litt, I welcome your statements in this 
process, and I hope that you can highlight for me how the 
process has been improved. And I'll save the rest of my time 
for questions after your presentation.
    Chairwoman Schakowsky. Let me just say to my Ranking 
Member, that, well, first I was about to associate myself with 
your remarks about halfway through. But I do want to say that 
we were to have a briefing this week on Peru, which is of great 
interest to me, as the Ranking Member well knows, from day one. 
The briefer that was supposed to come was unable to make it so 
we have rescheduled for the week of November 4. And I 
absolutely agree with you that we need to move forward. There 
is no effort to delay or slow down this investigation, and we 
will absolutely do it.
    I want to turn to Ms. Myrick, the Ranking Member of the 
Intelligence Community Management Subcommittee for any opening 
statement she'd like to make.
    Mrs. Myrick. Thank you. I have no opening statement. I'll 
wait to hear from Mr. Litt for questions.
    Chairwoman Schakowsky. Mr. Litt, it is the policy now of 
the Oversight and Investigations Subcommittee to swear all 
witnesses before they testify. And if you would stand and raise 
your right hand.
    [Witness sworn.]
    Chairwoman Schakowsky. The record will reflect Mr. Litt 
answered in the affirmative.
    And now we're ready for your opening remarks. Thank you.

 TESTIMONY OF ROBERT LITT, GENERAL COUNSEL, OFFICE OF DIRECTOR 
                    OF NATIONAL INTELLIGENCE

    Mr. Litt. Thank you, Madam Chairwoman Schakowsky, Madam 
Chairwoman Eshoo, Ranking Member Miller, Ranking Member Myrick, 
members of the committee. Thank you for your kind words and for 
inviting me here to testify before you today on the policies 
and procedures the Intelligence Community uses to help ensure 
that the congressional Intelligence Committees are kept fully 
and currently informed of intelligence activities. As Ranking 
Member Miller noted, this is my first time testifying before 
you, but I do look forward to many opportunities to work with 
the committee in the future.
    I believe that congressional oversight of intelligence 
activities is critical because of the importance of 
intelligence in protecting our national security, because of 
the power of the tools that are given to the Intelligence 
Community and their potential risks to privacy, civil 
liberties, and to foreign relations if they're not used 
properly, and because much of what the Intelligence Community 
does necessarily has to be done in secret. This oversight is a 
valuable way of improving the quality of the intelligence and 
the effective and efficient--cost-efficient--operation of the 
Intelligence Community, because Members of Congress often bring 
a different and valuable perspective to some of the difficult 
issues that we in the Intelligence Community have to deal with.
    In addition, robust oversight can help assure the public 
and the Congress, give them confidence in the activities of the 
Intelligence Community. But the value of this oversight would 
obviously be limited if the Intelligence Committees were not 
aware of significant intelligence activities.
    So the Intelligence Community does take seriously its 
statutory obligation to keep the Intelligence Committees fully 
and currently informed of intelligence activities. I know this 
committee has met on numerous occasions with Director Blair and 
that he's expressed this view to you. And I've heard him say 
this same thing in private, that he really does believe that 
it's important to keep the committees fully informed, and I 
share that view.
    My written statement goes into more detail on the literally 
hundreds of occasions on which the Intelligence Community has 
provided information to the House and Senate Intelligence 
Committees, just since the beginning of this Congress, by way 
of written notification or briefings or hearings, among other 
ways.
    I think that this does show that the Intelligence Community 
is working hard to try to make sure that the Intelligence 
Committees do have timely and accurate and complete information 
to inform policy and to enable the committees to conduct 
oversight. The notification process is subject to continued 
supervision and oversight by the Office of the Director of 
National Intelligence in the exercise of its statutory 
responsibilities.
    For example, in January of 2006, the ODNI issued what's 
called an Intelligence Community Policy Memorandum, which is 
entitled ``Reporting of Intelligence Activities to Congress,'' 
and this provides guidance to the Intelligence Community about 
the requirements of notification to the committees.
    Then in March of this year, Director Blair sent another 
memorandum to the heads of all of the elements of the 
Intelligence Community, both reaffirming this memorandum and 
directing that notification of significant intelligence 
activity should be provided to the committees within 14 days.
    Recently, he also discussed the importance of timely and 
complete congressional notification at a meeting of what is 
called his Executive Committee, the EXCOM, which is the heads 
of all of the 16 elements of the Intelligence Community.
    And finally last summer, Director Blair directed that there 
be a comprehensive review of the congressional notification 
policies and procedures of each element of the Intelligence 
Community. This review had two purposes: first, to examine 
whether all elements of the community were currently in 
compliance with their obligations of congressional 
notification; and, second, whether they each had in place 
appropriate policies and procedures that would ensure that the 
committees going forward would be kept fully and currently 
informed.
    At the conclusion of this review a couple of weeks ago, the 
DNI sent a memorandum in which he strongly encouraged each 
element of the community to compare its current policies and 
procedures to a set of best practices that were derived from 
the results of this review and to make any necessary changes. 
And from my conversations with the various elements of the 
Intelligence Community, I know that they're taking this 
seriously. They're going back, they're reviewing their 
procedures, and if appropriate, they are strengthening them.
    I can assure you that the DNI will continue to review 
compliance with the congressional notification requirements by 
the entire Intelligence Community, and, if necessary, will go 
back and look at the Intelligence Community Policy Memorandum 
and see whether that needs to be modified or strengthened or 
whether other procedures need to be put in place.
    In summary, intelligence oversight is critical to the 
successful operation of the Intelligence Community, but it can 
only be effective if the Intelligence Community views the 
Intelligence Committees as partners and keeps them fully and 
currently informed of all intelligence activities. And the DNI 
and the ODNI are working with the Intelligence Committees and 
the Intelligence Community to try to ensure that this happens.
    I appreciate having the opportunity to come before this 
joint hearing today, and I look forward to responding to your 
questions. However, as you know since the facts surrounding 
many of these issues are classified, I won't be able to discuss 
specifics to any great degree in the open session, and I 
understand there's a Closed Session planned for afterwards if 
we need to go into details.
    Thank you, Madam Chairwoman.
    [The statement of Mr. Litt follows:]



    
    Chairwoman Schakowsky. So if you're asked a question that 
is best responded to in the Closed Session, you will tell us.
    Thank you very much, Mr. Litt.
    Under the National Security Act, the committee must be kept 
``fully and currently informed of any significant and 
significant anticipated intelligence activity.'' The National 
Security Act defines the phrase ``intelligence activities'' to 
include covert actions. Accordingly, does the National Security 
Act require the executive branch to notify the committee of 
anticipated intelligence covert actions?
    Mr. Litt. I think the National Security Act makes a 
division in the procedures and the standards appropriate to 
covert actions and to other kinds of intelligence activities. 
As you know, section 502 covers other intelligence activities, 
section 503 covers covert actions.
    And there's a fairly specific standard in section 503 
setting forth what the President is required to notify the 
committees of in the case of covert actions. It says that the 
President has to ensure that any finding with respect to covert 
action is reported to congressional intelligence activities as 
soon as possible after the finding is approved and before the 
covert action is initiated, except as provided in some of the 
other sections.
    And it further provides that the congressional Intelligence 
Committees have to be notified of any significant change in a 
previously approved covert action or any significant 
undertaking pursuant to a previously approved finding, also 
before the activities are carried out.
    And I think that that statutory language embodies the 
general command of section 501 and sets forth the manner in 
which the President is supposed to inform the committee of 
significant anticipated activities in the area of covert 
actions.
    Chairwoman Schakowsky. So the answer in short would be 
``yes.''
    Mr. Litt. Yes, as set forth in section 503.
    Chairwoman Schakowsky. When assessing whether an 
intelligence activity is significant, what factors does the 
Intelligence Community take into consideration?
    Let me give some examples. If the President, Vice President 
or National Security Adviser have directed or approved an 
intelligence activity, should that be considered evidence of 
significance?
    Mr. Litt. Yes. That's specified in the Intelligence 
Community Policy Memorandum that I mentioned.
    Chairwoman Schakowsky. And if an agency director, such as 
the NSA or CIA Director, has directed or approved a particular 
intelligence activity, should that be considered evidence of 
significance?
    Mr. Litt. While that factor isn't specified, it's obviously 
one of a number of factors that an element of the Intelligence 
Community, in exercising its judgment as to what is 
significant, it should take into account the level of approval, 
yes.
    Chairwoman Schakowsky. So not alone? If the NSA or CIA 
Director approves a particular intelligence activity, it's of 
significance, but not----
    Mr. Litt. I wouldn't necessarily say that that would by 
itself, in all circumstances, require notification.
    Chairwoman Schakowsky. But it's considered evidence of 
significance.
    Mr. Litt. I would think it would be, yes, ma'am.
    Chairwoman Schakowsky. In DNI Blair's October 13, 2009, 
memo to the IC, he noted that he's concerned ``that not all 
elements may be taking the appropriate steps to ensure that 
significant intelligence activity is identified in a timely 
manner and that Congress is notified in a timely fashion.''
    What I want to know is who is responsible for ensuring the 
Congress is properly notified of intelligence activities?
    Mr. Litt. When we went out and canvassed the elements of 
the Intelligence Community, generally speaking in each element 
of the Intelligence Community, their Office of Legislative 
Affairs has the primary responsibility for ensuring that 
congressional notification proceeds appropriately.
    In almost every case, I think the General Counsel's Office 
also plays a role in helping assess whether a particular issue 
meets the standard that requires notification or not.
    Chairwoman Schakowsky. That's you.
    Mr. Litt. In the ODNI, that's me. In CIA, it's their 
general counsel.
    But the primary responsibility rests with the Legislative 
Affairs Office.
    Chairwoman Schakowsky. My concern is that there isn't a 
name necessarily attached that everyone is clear about.
    So at NSA, for example, who is responsible for ensuring 
that Congress is properly notified of the intelligence 
activities, or at CIA, et cetera?
    Mr. Litt. I can't give you the names. I can tell you that 
one of the best practices that the DNI referenced in his most 
recent memorandum was that there should be a single point of 
contact for these purposes. Some of the agencies may have 
established their own individual points of contact. In the case 
of the DNI, ultimately it's the head of our Legislative Affairs 
Office who has responsibility for it.
    So I don't know the names of the individuals, but if they 
don't have them, yes, ma'am, they should have them, a single 
individual who is charged with that.
    Chairwoman Schakowsky. I thank you.
    Chairman Eshoo.
    Ms. Eshoo. A couple of questions.
    To what extent do you make recommendations to the NSC to 
brief members of the Intelligence Committee, the full 
committee, or the Gang of Eight?
    Mr. Litt. Me personally, or the DNI?
    Ms. Eshoo. Either.
    Mr. Litt. I think that when--in general when those 
decisions are made--and they have not been common, at least 
since I have been on the job----
    Ms. Eshoo. When did you start?
    Mr. Litt. I started at the end of June of this year.
    Ms. Eshoo. Neither have been common, or one or the other?
    Mr. Litt. Limited briefings of any sort.
    When a decision is made as to what sort of briefing is 
made, the ODNI has a role to play in that. The Director is one 
I expect would be consulted on that issue, and I would hope 
that he would seek the judgment of his general counsel as to 
compliance with the law on that issue.
    Ms. Eshoo. I'm not so sure I understand your answer. Maybe 
you could walk me through the process of how it happens.
    Have you experienced that yet?
    Mr. Litt. I have not.
    Ms. Eshoo. That's fair enough.
    Mr. Litt. But my understanding is that the decision----
    Ms. Eshoo. Since June, there have not been any decisions to 
brief members, even of the full committee, on anything?
    Mr. Litt. No. The members of the full committee have been 
briefed on numerous matters. I've been actually present at some 
of those briefings. So there certainly have been plenty of 
decisions taken to----
    Ms. Eshoo. But I'm asking about both.
    Mr. Litt. I'm sorry. I've lost the question.
    Ms. Eshoo. To what extent do you make recommendations to 
the NSC to brief members of the full committee or the Gang of 
Eight?
    Mr. Litt. Most of the decisions about notifying or briefing 
the full committee, to my knowledge, are not made at the level 
of the NSC. When an issue is of sufficient importance that the 
NSC gets involved, it is my understanding--although as I said, 
I haven't participated in this process--that the decision of 
whether the briefing should be done at the level of the full 
committee or a more restricted briefing is a decision in which 
the DNI will play a role in the exercise of his 
responsibilities to protect sources.
    Ms. Eshoo. When you say ``play a role,'' are there others 
that play a role in that?
    Mr. Litt. Well, I would assume, for example, if it's CIA 
information, that the CIA would play a role. If it's a covert 
action, obviously, since the White House owns covert actions, 
they would play a role. And as I also said, I would hope that 
the DNI would consult his Office of General Counsel if such an 
issue came up, to get our view on what the law requires in that 
instance.
    Ms. Eshoo. As you know, Mr. Litt, this examination that the 
full committee is undertaking is, as the Chairman of the full 
committee has very wisely stated, broad, and that we will not 
only examine the history of the law, how it came about, and the 
history that's been made ever since.
    Now, in recent history, we have had more than a real 
glitch, and this is what I would like to ask you about. And I 
think that there are probably some things that we can't go 
into, obviously, in an open session.
    But my question to you is how can there be a program that 
was established in 2001 and the CIA Director being informed in 
2009? What is broken, in your view, that would cause that to 
happen and the Congress not ever being informed?
    Mr. Litt. Well, to the extent the issue--are you asking me 
about the CIA Director being informed or the Congress being 
informed? Because my understanding is that other earlier CIA 
Directors may have been informed, and that it was simply that 
the current CIA Director didn't learn about this until several 
months after.
    Ms. Eshoo. That's quite extraordinary, at least in my view, 
because he had been on the job for a while, and to have his own 
people not informing him I think should be a cause of concern 
for all of us, but certainly the Congress not ever being 
informed.
    What do you think is broken, or do you think anything is 
broken? Do you think that it's a special case where, for 
whatever reasons you might want to share with us, that it 
really should have been that way, or do you think something is 
broken and, if so, what? And do you find there is a lack of 
clear direction relative to the language of the National 
Security Act?
    Mr. Litt. Whether something is of significant intelligence 
activity that requires notification and briefing of the 
committee is obviously----
    Ms. Eshoo. What is ``significant''? Would you define that?
    Mr. Litt. It's always going to involve the exercise of 
judgment.
    The policy memorandum that was issued in 2006 sets forth 
some criteria for what constitutes a significant action which 
includes such issues as whether there's a potential loss of 
life, whether it's going to have an impact on foreign policy 
decisions, a variety of criteria set forth in there, and some 
of the individual components of the Intelligence Community have 
their own supplemental memoranda that provide other standards.
    But anything that involves an exercise of judgment always 
leaves open the possibility that different people are going to 
have different judgments.
    It's my understanding that both Director Blair and Director 
Panetta indicated that they might have exercised their judgment 
differently and briefed this matter at an earlier date.
    Ms. Eshoo. It's not a question of finding out at a much 
later date, and then the parties that have responsibility then 
weigh in and say, ``You know what? If I'd known about that, 
perhaps my judgment would have been different.''
    I don't think that's the way we should be operating.
    What I'm trying to find out with you--and maybe because 
you're new and it's really difficult for you to make a call on 
this--I mean that case says to me something is really broken. 
Something is really broken.
    Now, you mentioned, you know, that there are policy papers 
relative to definition for ``significant.'' I would like to ask 
that we receive those memorandums so that we can review them 
and see how the determinations are being made based on those 
memorandums.
    Let me just ask one more question. Do you think that there 
should be one person that's primarily responsible for ensuring 
that Congress is properly notified of Intelligence Committees? 
I mean obviously there's the ODNI, there's NSA, CIA, and then 
the other intelligence agencies.
    Do you think that there should be one from each, or just 
one that is totally responsible for this?
    Mr. Litt. I think that each agency should have a single 
point of contact responsible for that. I also think it's part 
of ODNI's responsibility to ensure that all components of the 
Intelligence Community are operating in accord with the law, 
and so it's part of ODNI's responsibility to do what we're 
doing now.
    Ms. Eshoo. So for notification today, how does it work? 
Does the head of each one of those agencies meet with the ODNI, 
and he's the one responsible; or he makes the call as to who 
should come and notify?
    Mr. Litt. No. Generally speaking, each individual component 
of the Intelligence Community is responsible for its own 
notifications.
    Ms. Eshoo. And they're independent of anything else. 
Nothing is coordinated.
    Mr. Litt. In most instances, that's right. Each agency is 
responsible for its own.
    Ms. Eshoo. Thank you.
    Chairwoman Schakowsky. Mr. Miller.
    Mr. Miller. Mr. Litt, thanks for your commitment and stated 
commitment to Director Blair in keeping this committee fully 
informed with respect to intelligence activities and 
information needed to carry out policymaking responsibilities. 
But given this commitment, why has the administration continued 
to refuse to provide this committee with information regarding 
its planning with respect to Guantanamo Bay detainees?
    And in your answer, could you please say do you believe 
that Congress should receive information on this planning 
before or after a final decision is made?
    Mr. Litt. Well, I--let me begin by saying that I know that 
there have been--for example, there was a substantial report 
that was provided to this committee recently, going through all 
of the detainees and the information that we have about each of 
them. And I know the committee is notified, for example, as 
individuals are transferred from Guantanamo abroad. The fact is 
that the President has announced very publicly his intention to 
close the facility at Guantanamo.
    Mr. Miller. He did that on the first day he was 
inaugurated.
    Mr. Litt. That is correct. And I'm confident that when a 
decision is made, that this committee is going to be briefed 
fully and consulted on it. But I don't think that an obligation 
to inform--to keep the committee fully and currently informed 
of all intelligence activities is the same thing as requiring 
the committee to be kept fully and currently informed of all 
internal executive branch decisions.
    Mr. Miller. You don't think that anything in regard to the 
Gitmo detainees, that this committee has any jurisdiction over 
that?
    Mr. Litt. No, that's not what I'm saying.
    Mr. Miller. But that's what the law says. Section 502 of 
the National Security Act requires the DNI and the heads of 
departments and agencies to furnish the congressional 
Intelligence Committees any information or material concerning 
intelligence activities, other than covert actions, which is 
within their custody or control.
    Now, Ranking Member Hoekstra has specifically requested 
information by letter regarding the planning for the relocation 
of Gitmo detainees which affects the collection of intelligence 
from them, and he hasn't received any response.
    So how do you square the refusal to provide the information 
with the law?
    Mr. Litt. Well, to the extent we're talking about the 
collection of intelligence information, that's obviously not 
something that I can discuss in an open session. But it is 
true, as I think Chairman Reyes noted last week, that the 
Guantanamo Bay facility is a DOD facility, it's not an 
Intelligence Community facility. And the decisions on closing 
it are affecting the DOD facility. I think to the extent that 
there are significant intelligence activities that are 
affected, that this committee is entitled to be informed and 
will be informed.
    Mr. Miller. I sit on the HASC as well. Has that committee 
been informed?
    Mr. Litt. That, I wouldn't know.
    Mr. Miller. Okay. I think the answer is ``no.''
    Does the ODNI believe that State governments and 
communities should have some access to some appropriate version 
of intelligence information about the background and any 
potential threat posed by Gitmo detainees before they are 
potentially released to their towns? And if not, why doesn't 
the ODNI believe that they have a right to know?
    Mr. Litt. It's my understanding that the administration 
intends to work closely with Federal and State and local law 
enforcement officials, once a decision has been made, to ensure 
that the detainees are held securely and that there is no 
threat to individuals in the area.
    I would note that there are maybe several hundred 
terrorist-related defendants currently held in U.S. prisons 
without any of them ever having escaped. But it's my 
understanding that there, in fact, is an intention to work with 
State and local law enforcement on the matter you raised.
    Mr. Miller. Why do we keep State secrets?
    Mr. Litt. We keep State secrets because there are often 
matters where the protection of national security is paramount, 
where there could be significant danger to the Nation's 
interest if certain information came out.
    Mr. Miller. Do you concur with Mr. Schwartz of the Church 
Commission's statement in regards to sharing, widely outside 
the Intelligence Community, information?
    Mr. Litt. I'm not sure what his statement is. I do know 
that this administration and, in fact, both administrations and 
the Congress since 9/11 have made efforts to ensure that 
information is shared more widely, as necessary to protect our 
Nation.
    I think that one of the things we learned was if there is 
too much stovepiping of information, it can end up damaging 
national security. So it's important to try to share 
information as broadly and easily as you can, consistent with 
the needs of protecting national security information.
    Mr. Miller. Do you think this is a true statement? CIA lies 
all the time to Congress.
    Mr. Litt. No.
    Mr. Miller. Thank you.
    Chairwoman Schakowsky. Mrs. Myrick.
    Mrs. Myrick. Thank you.
    I grew up in a generation of ``what is your need to know.'' 
And so just following up on Mr. Miller's questions about State 
secrets being secret, one of the concerns that I have is very 
recently there were press reports that said Ranking Member Bond 
over in the Senate Intelligence Committee was concerned about 
the leaks and things that had happened that you read about in 
the press, which we read about in the press before we know 
about it here in the committee. And it just really--that 
concerns me greatly and has.
    I'm new to the committee, so this is new to me. But the 
bottom line of it is how does that affect the administration, 
executive branch's willingness to share information, sensitive 
information, and what can be done about that and where is it 
coming from? Where do the leaks come from, this kind of thing. 
Because those of us in the committee aren't talking to any 
press that I know of.
    Mr. Litt. Well, I share your frustration. I know Director 
Blair does as well. He has made very clear that he wants to 
find ways to deal with the leaks; that they are, in fact, very 
damaging to national security, and frequently in very specific 
and identifiable ways. A leak comes out and you can see that as 
a result of that leak, a foreign nation or target changes 
behavior. And this is really something that's of great concern 
to him. And he has asked me, as general counsel, and others 
within the ODNI, to work with the other elements of the 
Intelligence Community and the Department of Justice to try to 
find ways to tighten up, to see if it's possible to more easily 
identify leakers--which frequently is a tremendous challenge--
and to prevent these leaks from happening, or punish them when 
they do.
    Mrs. Myrick. What is the punishment if they do?
    Mr. Litt. There's a variety of criminal statutes. I don't 
have the penalties in front me.
    Mrs. Myrick. Do they lose their job or do they just get 
slapped on the hand?
    Mr. Litt. It can range from a slap on the hand, for 
something that merits a slap on the hand, through loss of job, 
through criminal prosecution and incarceration.
    Mrs. Myrick. When Mr. Miller asked the question about State 
and local officials being notified of detainees from Guantanamo 
coming into their area, I maybe wasn't listening closely. But 
did you say they would be notified after the decision had been 
made to place them there? They wouldn't be in any way included 
beforehand to know that was going to happen?
    Mr. Litt. I don't think that any final decision has been 
made yet on how and when people are going to be notified. I do 
know they are going to be appropriately consulted on the 
process to ensure there is no risk to national security or to 
local security from bringing people wherever----
    Mrs. Myrick. But you don't know when in time that would 
take place?
    Mr. Litt. I don't know that that decision has been made 
yet, ma'am.
    Mrs. Myrick. And one of the other concerns are yes, there 
are people kept in State prisons, et cetera, all the time. But 
these aren't your normal prisoners. And then my concern is, 
again, what happens to them after that?
    I know this is going a little beyond what we're talking 
about here, but when he asked the question, it just brought it 
back to mind again.
    Mr. Litt. Well, we do have some experience in holding 
people who aren't normal prisoners as well. We hold people, 
like the blind sheik, and people like that. And I think the 
Bureau of Prisons is reasonably well set up in the super-max 
facilities and with the use of Special Administrative Measures. 
So I don't think that there is any intention or any expectation 
on the part of the administration that they will take any steps 
that will endanger people in this country at all.
    Mrs. Myrick. I appreciate that.
    Thank you, Madam Chair.
    Chairwoman Schakowsky. Thank you.
    Mr. Schiff.
    Mr. Schiff. I want to follow up on the last series of 
questions just to clarify them for the purposes of today's 
hearing.
    The decision where to detain a Guantanamo detainee is a 
very important one, but it's not necessarily per se an 
intelligence-related activity, correct? It may be a decision 
about incarceration or incapacitation, but not necessarily 
intelligence activity for the purposes of the sections we're 
talking about today, correct?
    Mr. Litt. Yes. That is correct, sir.
    Mr. Schiff. I wanted to talk to you about the language of 
significant anticipated intelligence activity.
    Is there any indication from your research on this issue 
and how the various agencies within the Intelligence Community 
have dealt with this language, that any of the community has 
viewed that statutory requirement of reporting or notification 
on significant anticipated intelligence activities as somehow 
legislative surplusage, that it was superfluous; that the other 
language in the statute is actionable, but there was really no 
obligation to inform Congress of things that were only 
anticipated?
    Have you found any indication that any parts of the 
Intelligence Community have used that as their modus operandi?
    Mr. Litt. No, not at all. Quite the contrary. The policies 
make clear that anticipated intelligence activities need to be 
notified and briefed as well.
    Mr. Schiff. So as far as you know within the CIA and other 
agencies, there has always been an understanding in the Legal 
Counsel's Office and in terms of the mechanism they have to 
report to Congress, that they are required to report 
anticipated intelligence activities as well as ongoing ones.
    Mr. Litt. So far as I know, that is correct.
    Mr. Schiff. And how do you interpret the term 
``anticipated''? You wouldn't conclude, would you, that 
something has to be operational before you are required to 
notify Congress about an anticipated significant intelligence 
activity, would you?
    Mr. Litt. I think that some of the controversy there about 
the use of the term ``operational'' with reference to the 
specific matter that was briefed at the end of June, you have 
to consider what ``operational'' is opposed to. And I think the 
term ``operational'' there was used to differentiate it from 
something that's just in planning or not even at the stage of 
planning, but it's a concept that people are working on.
    I think that anticipated--the term ``anticipated'' involves 
some level of definiteness that goes beyond merely, you know, 
we're looking at a bunch of options and this is one possibility 
we're considering. There has to be some level of commitment 
that this is going to happen before it rises to the level of 
something that's ``anticipated'' as opposed to possible or 
theoretical.
    And I think the use of the term ``operational'' was meant 
to convey that concept that there is not an obligation--by the 
use of the term ``anticipated'' in the statute, that there's 
not an obligation to brief every time somebody at the agency 
comes up with an idea, every time even that they explore the 
idea to some extent. It's when it actually becomes an 
anticipated operation.
    Now having said that, as I said, I think both Director 
Blair and Director Panetta have said that with respect to that 
particular operation, they might have exercised their judgment 
differently. But there's a difference between a mere 
possibility or a theory on the one hand and something that's 
actually anticipated on the other.
    Mr. Schiff. You would agree, though, that if there are 
significant expenditures made in support of an intelligence 
activity, even if it's not operational yet, even if there 
hasn't been a decision made to necessarily go forward with the 
ultimate object, if you're expending a significant amount of 
money on it, that would trigger the anticipated significant 
intelligence reporting requirement, wouldn't it?
    Mr. Litt. I would think it would. Part of the oversight 
involves oversight of how funds are spent.
    Mr. Schiff. And if your risk of exposure of a potential 
operation via arrest or some other means, that would certainly 
trigger the requirement, wouldn't it?
    Mr. Litt. I think that the policy memorandum talks about 
risk of exposure as one possibility. But you have to consider 
not only the degree of risk of exposure but the consequences of 
the exposure as well. But, yes, that certainly is a factor that 
would play in.
    Mr. Schiff. So what we're talking about, then, if you're 
sitting in a room ruminating about several potential directions 
you could go in, several potential operations, that might not 
trigger the requirement. But when you start taking steps, very 
concrete steps to determine whether you should go forward, even 
though the decision hasn't been made yet, you can still trigger 
the anticipated significant intelligence activity reporting 
requirement, right?
    Mr. Litt. You could. It would depend upon the significant 
steps you're talking about, yes.
    Mr. Schiff. Thank you. I yield back.
    Chairwoman Schakowsky. Mr. Thornberry.
    Mr. Thornberry. I appreciate you being here, Mr. Litt, and 
attempting to answer questions on a classified program in an 
unclassified way. It makes it pretty hard to have a real 
discussion about what is or is not broken, what should or 
should not be briefed, and where that threshold is.
    But it brings to my mind kind of the other half of the 
story that we don't talk about as much, and that is the 
responsibility of Congress in these briefings to fulfill our 
role in a responsible sort of way.
    We have had instances in recent years where programs have 
been briefed, and yet only when they become leaked in public do 
Members come out and say, Oh, I never knew that or I didn't--I 
wasn't for that, or so forth.
    So let me ask you. You talked about the process and the 
procedures. Has some attempt been made to go back and 
reconstruct who was in briefings and what was briefed and so 
forth, it's been fairly confusing. Sometimes administration 
records don't jibe exactly with the committee's records.
    So since you've been there, are there written records of 
who is briefed on what and any concerns that they raise in 
those briefings?
    Mr. Litt. I think that throughout the various agencies, 
there are records of that that have a greater or lesser degree 
of formality and detail. I don't think there is a consistent 
rule across the entire Intelligence Community for that.
    Mr. Thornberry. Do you think there should?
    Mr. Litt. I think it's definitely something that should be 
considered, whether there ought to be more formality to that 
process.
    Mr. Thornberry. Would it be a good idea for the committee 
to keep better records of who was in what briefing and to see 
whether the committee's records and the administration's 
records jibe as far as who was briefed on what, how many times, 
and on what program?
    Mr. Litt. As a member of the executive branch, I would not 
presume to give advice to the Congress on what rules and 
procedures it should adopt, sir.
    Mr. Thornberry. Let me go back to the beginning in my mind 
a bit.
    The general proposition in section 501 is that the 
administration should keep Congress fully and currently 
informed. In your mind, are there any constitutional limits on 
the President from doing so?
    Mr. Litt. I think that this area is one of those where you 
have two constitutional authorities bumping up against one 
another. You have the Congress' constitutional authority to 
exercise oversight and you have the President's constitutional 
authority to protect national security information.
    And I think that the statute recognizes the President's 
constitutional authority in this area explicitly in section 
503. So I'm not sure I would categorize it as a constitutional 
limit. I would say that there are executive branch prerogatives 
that are affected here by the notification process.
    Mr. Thornberry. I'm trying to understand, as we talk about 
the way this works, what's the difference between an executive 
prerogative and a constitutional power or authority that the 
President needs to protect. And let me get into one specific.
    In the statement of administration policy on the House 
authorization bill, it says the administration strongly objects 
to the provision, as Mr. Miller noted, in the House bill.
    Now, is that because it doesn't work, or are there 
constitutional objections, or exactly what are your objections 
to what's in the House bill now?
    Mr. Litt. I'm not going to purport to list all of the 
objections, because I'm not sure I could do that right now. I 
could give you one example which is, for example, that the 
House bill required extensive disclosure of deliberative and 
legal advice within the executive branch. And I believe that it 
is the opinion of the administration that that requirement does 
trench on executive prerogatives that are accorded to the 
President.
    That's one example.
    Mr. Thornberry. If I agree with you on that, is there--if 
there's a presumption that the administration will share all 
intelligence collection and covert action information with 
Congress, does that cause you constitutional concerns?
    Mr. Litt. I'm not enough of a scholar on the exact limits 
of constitutional authority. We have OLC at the Department of 
Justice that is sort of the institutional repository of that.
    I would think that a requirement that everything be shared 
would probably arouse their opposition as something that would 
trench on constitutional concerns.
    Fundamentally, I think that this process, like many of 
those where the constitutional powers are in tension, this 
process is one that has to be worked out by cooperation between 
the two branches, and working out ways of ensuring that 
Congress gets the information it needs while ensuring that the 
President retains the ability to protect national security when 
it's required.
    Chairwoman Schakowsky. Mr. Holt.
    Mr. Holt. Thank you, Madam Chair. Thank you, Mr. Litt, for 
coming.
    I would like to explore several different points. I 
understand you to say that there have been no Gang of Eight-
level briefings under this administration; is that correct?
    Mr. Litt. I don't know. I don't know what happened before I 
started. And since June, I can say that I am personally not 
aware of any. It's conceivable that one happened and I wasn't 
aware of it. That's all I can say.
    Mr. Holt. Let me make sure that I have your title correct.
    As the general counsel of the Office of the Director of 
National Intelligence, would there be--or under what 
circumstance could there be the so-called Gang of Eight, the 
restricted briefings, restricted only to eight members of the 
House and Senate, without your knowledge?
    Mr. Litt. Well, as I said earlier, I would hope that the 
Director would consult his legal counsel. I suppose that there 
might be a program that is so compartmented that they felt they 
did not want to bring the Office of General Counsel into it. My 
hope and expectation would be that that would not happen, that 
they would seek my legal advice.
    Mr. Holt. Do you think in any of the subunits of the 
Central Intelligence Agency, or others, that there might be 
restricted briefings that the Director of National Intelligence 
would not be aware of?
    Mr. Litt. That should not happen.
    Mr. Holt. Now, I know in the October memo from the Director 
of National Intelligence, it's titled ``A Follow-Up to 
Reporting Intelligence Matters to Congress,'' he refers to the 
obligation to keep Congress fully and currently informed, lays 
out some recommendations for establishing and writing the 
obligation and ensuring that personnel understand the duty and 
so forth. He finishes by saying, ``I strongly encourage you to 
compare your current procedures to those outlined above.''
    Mr. Holt. That struck me as odd phrasing for the Director 
of National Intelligence. I encourage you to compare your 
current procedures. Do we need some attention to the 
legislation, or should the Director of National Intelligence be 
in the position to suggest to other agency heads this and that 
and the other thing.
    Mr. Litt. I think that the DNI does have more power than 
just to suggest. I think that the DNI does have the power to 
set policy for the Intelligence Community. And there's an ICD 
process for doing that that involves consultation throughout 
the community. I think that before that is done, I think it was 
probably the appropriate judgment to say let's see if the 
members of the Intelligence Community can do this on their own, 
without having to instruct them or order them to do it. I am 
hopeful that they will do that.
    Mr. Holt. So you are not, as a member of the Office of the 
DNI, you are not suggesting that there needs to be different 
authority.
    Mr. Litt. In my view, there would be authority for the 
Director to issue policy in this area.
    Mr. Holt. Now, let me ask your and the Director's 
interpretation of the wording of the obligation to keep 
Congress fully and currently informed. In many cases that has, 
in practice, a rather perfunctory meaning. In fact, the 
language that is used within the Intelligence Community is 
``congressional notification.'' It doesn't say anything about 
fully and currently informing. I actually see a difference in 
meaning, but I wanted to ask whether you and the Director and 
the O/DNI Office think of this as informing or notifying or 
briefing or consulting. What is the obligation?
    Mr. Litt. Well, I think that with respect to the obligation 
to keep the committees fully and currently informed, that the 
obligation needs to be measured by the purposes for which the 
information is being provided. And by that I mean we have an 
obligation to get you the information that you need to provide 
oversight. And the scope of what we provide you needs to be 
adequate to permit you to provide oversight of the Intelligence 
Community. And that should be the measure of the obligation to 
inform.
    Mr. Holt. It is more than to perfunctorily check off on a 
list that some words have been sent to Congress.
    Mr. Litt. I think in many cases it would be more than that, 
yes.
    Mr. Holt. In what cases would it be only that.
    Mr. Litt. Well, if you are being notified that a new 
facility is being opened at a cost of X million dollars, which 
is something that might constitute an activity that requires 
notification, it might be that simply sending you a written 
notification of that would suffice in that instance. I could 
conceive of other instances where simple written notification 
would suffice.
    But again, as I said earlier, both Director Blair and I 
view this as a partnership, and we do have an obligation as 
well to provide additional information if a member or the 
committee feels that the notification is inadequate and wants 
more information. This needs to be a two-way street. We need to 
be responsive to further requests for information as well.
    Mr. Holt. Thank you, Madam Chairs.
    Chairwoman Schakowsky. Thank you Mr. Holt. Mr. Conaway.
    Mr. Conaway. Thank you Madam Chairman.
    Robert, welcome. In your testimony, while I appreciate 800 
briefings and 500 written notifications and all that other kind 
of stuff, I am not persuaded that volume equates to quality. On 
the review of the compliance, or the review that was asked to 
be done that has just been finished that came up with the 
suggestion that the community look at the best practices, did 
the review find any exceptions to the policy where it wasn't 
being followed? Can you talk to us about things that didn't--or 
that wasn't working?
    Mr. Litt. We didn't find anything systemic. I think that 
when some of the agencies went back and looked at their 
records, they found a couple of matters where they had 
determined not to brief, and they relooked at it and decided it 
probably ought to be briefed. But those were few isolated 
issues. We didn't find any systemic issues.
    Mr. Conaway. DNI has got its 2005-100-3, the CIA has got 
AR-72, the NSA has got Policy 1-33. In your written testimony 
you make some reference to not being in favor of a blanket 
policy where everybody is agreeing off the same phraseology, 
the same words. Do you want to expand on that a little bit why 
the DNI wouldn't bring all those folks together, let's have one 
policy that is written out. Again, you are going to have 
judgments as to what all that stuff means, but if you are 
hiding behind the differences between subtle changes in wording 
between 2005-100-3 and AR-72 as to confusion there, why 
wouldn't a broader blanket that says it is one for everybody.
    Mr. Litt. I actually think that the way you articulate it 
is-the way I understand it is, which is that the DNI's ICPM 
2005-100-3 does apply across the Intelligence Community. The 
definitions in there are adhered to, according to my 
understanding, by every element of the community.
    Mr. Conaway. And they are the exact definitions that are 
used in AR-72 and Policy 1-33? Why wouldn't those have been 
withdrawn so that it is clear CIA understands it, NSA 
understands it? And the follow-up question: Does NRO and NGA, 
all these other ones, have their own equivalent to AR-72 and 
Policy 1-33?
    Mr. Litt. Not all of the agencies have their own individual 
policies. But I think that CIA and NSA, for example, their 
policies go beyond the general level of what the DNI's 
memorandum says and provide more specifics and also set out 
their specific procedures.
    Mr. Conaway. So the conflicts between the two would be 
resolved with the ODNI's policy.
    Mr. Litt. That is right. The ODNI's policy trumps to the 
extent it applies, yes, sir.
    Mr. Conaway. Looking for this one point of contact of 
having only one person responsible other than the Director of 
whatever, you mentioned Leg Affairs. Is the Leg Affairs team--
they know everything that is going on in the agency--are they 
going to be the most informed group of everything that is 
happening? If they are the ones going to be held responsible 
for congressional notification, have they cleared the site? 
Does one of those folks sit with Leon Panetta at CIA all the 
time? If I am going to be held responsible for something as 
important as this, then does the Leg Affairs team across the 
community, are they in on every single height--you know, 
sensitive meeting.
    Mr. Litt. No, that is obviously not the case. Although it 
is my understanding, for example, in the CIA they have Leg 
Affairs people who are assigned to each of the directorates to 
work with them. But saying that the Leg Affairs people are 
responsible for the notifications doesn't absolve the head of 
the agency of his or her responsibility as well.
    Mr. Conaway. So it really should be the head of the 
agency's focus and not the Leg Affairs.
    Mr. Litt. Well, the head of the agency has a lot of things 
to focus on.
    Mr. Conaway. I understand.
    Mr. Litt. One of the things that the DNI mentioned in the 
more recent memo was that the head of the agency on a periodic 
basis ought to sit down with all of his or her top people and 
canvas them and direct them to go back to their people, so that 
there is that kind of responsibility as well.
    Mr. Conaway. Was the DNI's--and something Rush Holt brought 
up, a suggestion that they review. Shouldn't there be more 
teeth in his statement, or is there an implied teeth in his 
statement that I am going to circle back in some fixed period 
of time to see that you have done the review for this best 
practice implementation, and if you haven't implemented the 
best practices that the group thought, you need to have good 
reason as to why it doesn't work in your agency? Is that 
implied or had it been stated?
    Mr. Litt. I think it is implicit that the DNI is going----
    Mr. Conaway. Okay. We will look forward to at some point in 
time having that conversation with Dennis as to how he did in 
fact circle back against his own best practices to make sure 
that they are implemented.
    Thank you, Ms. Chairman, I yield back.
    Chairwoman Schakowsky. Thank you. If we could do another 
brief round and then go into closed session for those who want 
to ask any more questions. I wanted to just say that the reason 
that I think you are hearing on a bipartisan basis the need to 
be fully informed is that time after time we are learning from 
the television or newspapers about something that we were not 
briefed on; then someone comes in, the head of an agency, and 
does a mea culpa, it was really my responsibility.
    And so I want to get back to the issue that I raise and Mr. 
Conaway raised also. My concern is that if this is not a 
central part up front, not later. I don't want to hear any more 
mea culpas, but that someone is assigned and that at every desk 
people know who that person is so that they can be contacted. I 
am fearful that it will never happen. That in fact what will 
happen is what we have heard, that there was a breakdown--I 
mean that word has been used before--that there was a breakdown 
somehow in communications.
    And so--and Mr. Holt also was talking about, I think this 
is not an area where there can be any fuzziness, where people 
have to know what the procedure is, who is in charge. And, yes, 
of course that head of a division, of an agency, finally the 
DNI himself is responsible.
    So I think what some of us are looking for is what is the 
clarity in this process; what are the penalties for diverting 
from that; if there is a breakdown, what happens; and do you 
feel that we are moving in that direction?
    Mr. Litt. Well, I think early on in your question you put 
your finger on what I think the most important solution to this 
issue is, and that is getting it down to the desk level and 
getting everybody in the agency to treat this as a part of 
their responsibilities.
    And I know in preparation for this hearing I talked with 
some of the other agencies about what kind of training they do. 
And as you might expect, it varies somewhat across an agency. 
But, for example, CIA has training modules for everybody where 
they instruct them in congressional notification and they have 
a brochure on their Web page.
    Chairwoman Schakowsky. But where does the buck stop? Mr. 
Conaway raised the question about Leg Affairs. Well, if Leg 
Affairs is not him or herself informed of what is going on, how 
do we make sure that the breakdown doesn't occur there.
    Mr. Litt. Ultimately, as I said, if you have an agency with 
thousands of people out there, the only way you can--no matter 
who the individual person who is responsible is--and as I said, 
the DNI has indicated that he thinks there should be one person 
responsible in each component of the community--but no matter 
who that person is, if the rest of the agency doesn't have in 
mind at all times: ``Is this something that needs to be 
notified? If I have any doubt let me call this point of contact 
and discuss it with them, and if it is compartmented so that I 
don't know if I can talk about it with this person, let me 
raise it with my supervisor and let's talk about it.'' If you 
don't have that kind of culture, no kind of process that you 
set up is going to make this work. It has to be something that 
the people in the agency understand is A, part of their job and 
B, ultimately for their benefit and the benefit of their 
agency.
    Chairwoman Schakowsky. Well, then I would suggest that what 
Mr. Holt raised, this idea of encouraging is not sufficient for 
culture change; that there needs to be much stronger language 
and much stronger policies that follow, that just encourage 
people to review their policies.
    Mr. Litt. I can only tell you, Madam Chairwoman, that in 
the course of getting ready for this hearing, and the 
discussions I have had with the other agencies, it is my sense 
that they do recognize that there need to be additional steps 
taken, and they are working on beefing up their training 
programs, making their processes clearer and so on. And I am 
certainly hopeful that that, plus the commitment from the top, 
which people like Director Blair and Director Panetta have 
expressed, that that will help change the culture.
    Chairwoman Schakowsky. Thank you. Ms. Eshoo.
    Ms. Eshoo. Thank you. I have an appreciation for training 
programs and people at the variety of desks being in the loop 
and updating them on responsibilities and such. But I have to 
say that I think that what the committee is looking at goes far 
beyond that. I think what you are talking about, and Band-Aids 
are important when you have scratches so that you don't, you 
know, bump what is sore or what you might have cut, but I think 
that this is far beyond that, I really do.
    We are looking at the language in the National Security 
Act. Does it provide the direction that the Intelligence 
Community needs in order to meet the obligations that both the 
executive branch and the legislative branch have?
    Now, I mean you said earlier that both the--that the DNI 
and the CIA Director might have rendered different judgments, 
and yet there is for the CIA a regulation that came out in 
March of 1996 that is absolutely clear about reporting of 
intelligence activities to Congress. So it is not a matter of 
what someone feels like doing or going through multiple choice, 
it is set forward. And yet we are still experiencing things 
that should not be the way they are.
    I am not looking for the Congress, Mr. Litt, to have more 
power than the executive branch or vice versa. But when there 
is not, when it is not equal there is a problem, there really 
is a problem. And I think that just even looking at this 
regulation in all of our three-ring binders here, I don't see 
how the 2001 to 2009 incident could have taken place given what 
is in the statute.
    On the accountability for intelligence activities and 
general congressional oversight provisions, you made mention 
earlier about the President having the responsibility for 
national security and that the Intelligence Committees have 
responsibility for oversight. But nowhere in this Title V does 
it say anywhere that the withholding of information to the 
Congress in any way, shape, or form is okay.
    And I think that for you to best understand at least where 
I am coming from is what I am so concerned about, and it is 
based on the experience that we have had, is because there is a 
lack of clarity, various interpretations of these terms, then 
bring about requirements on the part of the executive branch, 
that we are getting into multiple choice. Well, it was this, 
but it wasn't that. So we have an obligation to report this, 
but we don't have an obligation to report that.
    And I do think that there is a huge difference between 
notification and informing. If someone is informed, then there 
is a discussion. That is how information is shared. It is not a 
drive-by briefing where some information is just dropped off, 
and there is sloppy at best--and then it goes downhill from 
there--recordkeeping both on the part of the Congress and the 
executive branch.
    So I think that we have some real work to do on this. And 
while I appreciate your view about people being trained and 
people at desk jobs and whatever, I have had many desk jobs in 
my life so I am not diminishing the importance of those 
individuals, but I think that this is really at a higher level. 
And I don't know what actions have ever been taken relative to 
violations.
    And the National Security Act doesn't have any penalties in 
it. We know if something has gone wrong, but there aren't any 
penalties. And I don't know who has exercised any when 
something hasn't gone right.
    In my first round of questions I asked for the memorandums 
that are being used for guidance. Are the standards the same 
across the IC in all of that?
    Mr. Litt. Generally----
    Ms. Eshoo. Or is it up to each agency to come up with 
whatever it is they come up with?
    Mr. Litt. Generally speaking, the Intelligence Committee 
Policy Memorandum issued by the DNI applies across the 
Intelligence Community.
    Ms. Eshoo. You said ``generally.'' Are there exceptions?
    Mr. Litt. No.
    Ms. Eshoo. So the standards are all the same, and the same 
memorandum applies to all agencies.
    Mr. Litt. As I said, at that level of generality, that 
memorandum applies across all agencies. Agencies are free to 
develop their own standards consistent with that memorandum if 
they think it is necessary to give more specific guidance to 
their community in their individual case, but they all have to 
be consistent.
    Ms. Eshoo. And this is all relative to informing Congress.
    Mr. Litt. Yes.
    Ms. Eshoo. Well, I think that we need to see all of that. I 
think we need to see what the interpretations are.
    Thank you, Madam Chair. And I am prepared to go to the 
closed session to deal with whatever needs to be dealt with 
there, but I appreciate the extra round.
    Chairwoman Schakowsky. Mr. Miller.
    Mr. Miller. Mr. Litt, you said earlier that you were from 
the executive branch and you would not attempt to tell Congress 
how to do its job, and we appreciate that. Article I, Section 
5, Clause 2 of the Constitution gives Congress the power to 
determine the rules of its proceedings. In your view does the 
rulemaking clause give Congress the authority to determine how 
to share classified information with and between its Members? 
And if not, on what basis and to what extent do you believe the 
President's powers circumscribe the explicit constitutional 
authority?
    Mr. Litt. I am getting a little bit out of my comfort zone 
here on the legal interpretation, but I think my view on this 
is that this is one of those areas where each branch has the 
right to exercise its own powers, which is to say that--and the 
problem with that approach is that that frequently leads to 
collisions.
    So that, for example, if the Congress--and this is a purely 
hypothetical example--if the Congress imposed a rule that said 
you can do a limited briefing but we retain the right to tell 
everybody else in the membership or everybody else on the 
committee about it, and the Executive didn't like that, the 
Executive might say, well, then okay, we are going to exercise 
our constitutional power to protect national security 
information and we are not going to brief you. At which point, 
the Congress might exercise its constitutional power of the 
purse and say, well, we are not going to fund these activities. 
And that is not a productive approach to governance, in my 
view. And that is why I said earlier, I think in response to 
Mr. Thornberry's question, that these are the sorts of things 
that need to be worked out by a process of accommodation and 
compromise between the branches.
    Mr. Miller. And I agree. I think given this respect, 
Congress and the executive branch need to work together to set 
out the framework for notification. What role does the 
President have in the process to determining what, if anything, 
should be briefed?
    Mr. Litt. Ultimately the President is responsible for all 
of the national security apparatus. I think to a great extent 
that is delegated downward. I would be surprised if the 
President himself personally participates in a lot of these 
decisions. But ultimately it is his responsibility.
    Mr. Miller. Notification to Congress is, as a practical 
matter, carried out with a degree of latitude--and we have just 
established that--and as a result of consultation and 
cooperation between the branches on how to handle sensitive 
matters. Do you think it helps such consultation and 
cooperation when Members of Congress say that the CIA lies all 
the time?
    Mr. Litt. I would hope that everybody would approach the 
consultation and notification process in the spirit of 
cooperation.
    Mr. Miller. In a follow-up question to Mr. Schiff's earlier 
round of questions as to what would trigger a notification, and 
I think everybody was trying to go down the route of when 
something is funded, and I think there was a comment 
``significant amount of dollars.'' Can you explain what 
``significant'' amount of money is?
    Mr. Litt. Well, that--I think your question, sir, 
highlights why I keep saying this is a matter of judgment. 
Because obviously a significant amount of money, there is no 
algorithm that you can plug in to determine what is 
significant. And what is a significant amount of money may 
differ depending upon what agency you are talking about. What 
is a significant amount of money for the National 
Reconnaissance Office may be different than what is a 
significant amount of money for the intelligence component of 
the Department of Energy or the State Department. So I don't 
think you can quantify that with any number that would be 
meaningful across the entire Intelligence Community.
    Mr. Miller. And I don't think you can either, and I think 
that is why we are having the discussion that we are having 
today.
    One final question. Other than the CIA inspector general's 
report on the Peru shootdown, are you aware of any 
substantiated instance in which it has been established that 
Congress was deliberately provided with false information with 
respect to intelligence activities? And other than the CIA 
inspector general's report on the Peru shootdown, are you aware 
of any substantiated finding that the Intelligence Community 
systemically misleads or has misled Congress?
    Mr. Litt. I am not aware of any such finding.
    Ms. Eshoo. Madam Chairwoman, may I just do a quick follow-
up? You are not aware because you are new? You are not aware 
because you haven't done the research? You are just not aware, 
why?
    Mr. Litt. Well, I consider myself, even though I am new on 
the job, to be reasonably informed.
    Ms. Eshoo. Exactly.
    Mr. Litt. And I am not aware--as Ranking Member Miller put 
the question, I am not aware of anything that meets the 
specification of his question.
    Ms. Eshoo. Because you are new.
    Mr. Litt. No. I mean I suppose there is something out 
there, some inspector general's report out there. But in 
preparation for this hearing, I asked about what sorts of 
reviews of congressional notification processes have been 
conducted. And assuming that I was provided accurate 
information, I am not aware of anything.
    Ms. Eshoo. Thank you.
    Chairwoman Schakowsky. Mrs. Myrick.
    Mrs. Myrick. Thank you. I wanted to follow up what I was 
asking before about the leaking of classified information and 
people being prosecuted. And I know you have to get back to me 
on this, but I would appreciate very much if you would let me 
know when was the last time someone was prosecuted for leaking 
classified information. And then was it a guilty plea, or did 
someone just throw in the towel, or did the defendant fight it?
    If you could let me know that, I would appreciate it very 
much. Thank you, Madam Chair.
    Chairwoman Schakowsky. If you could inform the whole 
committee of that.
    Mr. Litt. Of course.
    Chairwoman Schakowsky. Mr. Holt.
    Mr. Holt. Thank you, Madam Chair. Just a very brief 
preamble. You should want this, everyone in the Intelligence 
Community should want the fullest possible consultation with 
Congress. These are serious matters. We want to get the best 
intelligence results, we want to avoid horrific mistakes. 
Historically over the decades, there have been horrific 
mistakes that have cost lives, cost national reputation, have 
diminished national security. So I would urge every leader in 
the Intelligence Community to actively seek this consultation, 
not perfunctory notification.
    Mr. Litt. And if I could just----
    Mr. Holt. And recognizing, if I may finish and then I'll 
turn to you for a comment. You know, by oath and by the 
Constitution, although we are not Commander in Chief, we have 
an equal responsibility to provide for the common defense. And 
so if it comes to a push and a tug about how fully Congress 
will be informed, I think we stand on pretty--pretty solid 
constitutional grounds.
    Let me ask one specific question, and then if you could 
answer that question and then comment as you might on my 
comments. Has the Director undertaken a review of previous Gang 
of Eight briefings, previous restricted briefings from the 
preceding administration, revisited those to see if any of them 
now no longer need to be restricted? Has that review taken 
place? If not, is that review about to take place?
    Mr. Litt. It hasn't taken place that I am aware of, and I 
am not aware of any plans to do it. In response to your broader 
comments at the beginning, I can only say that----
    Mr. Holt. Let me just jump in there. In keeping with my 
earlier comment, I would urge the Director most strongly to 
undertake such a review. Maybe it is a null set. Possibly there 
is nothing out there that hasn't been fully briefed. If there 
is, he certainly should be looking at it.
    Yes, sir, go ahead, please.
    Mr. Litt. I was just going to say that I understand that 
Director Blair shares your views of the importance of the 
oversight process and a full consultation with Congress and, 
frankly, the value to the Intelligence Community of having 
Congress involved. I know he shares that and I know he is 
trying to make it happen.
    Madam Chair, something that Mr. Holt just said refreshed my 
recollection on something. I am aware of one instance where 
there has been a limited briefing since I have been involved 
here. There was one. And in fact the Office of the General 
Counsel was consulted on it.
    Mr. Holt. Thank you, Madam Chair.
    Chairwoman Schakowsky. Mr. Thornberry.
    Mr. Thornberry. Thank you. Mr. Litt, do you believe that 
the National Security Act of 1947 and those provisions we are 
talking about, 501, 2 and 3, need to be clarified to make a 
clearer standard that an administration and a Congress both 
have to live up to?
    Mr. Litt. I think that it is not--that it is an unrealistic 
expectation to think that we could create any standard that 
would not ultimately devolve to the exercise of judgment.
    Mr. Thornberry. And I am not disagreeing with that. There 
will be judgment. But I guess if I could ask you, do you think 
the statute itself needs to be clarified to help the exercises 
of judgment and to make it clearer about where the 
responsibility lies and so forth.
    Mr. Litt. I think that in my view the better approach, as I 
said, is in refocusing the Intelligence Community on the 
importance of complying with the statute as it is currently 
written.
    Mr. Thornberry. Now, if you read the statute, it provides 
for Gang of Eight limited notification procedures for covert 
action. It does not on other intelligence collection 
activities. And yet that happens sometimes. But if you read the 
statute it shouldn't. Do you agree?
    Mr. Litt. Well, I think that the executive branch reads the 
preamble language of Section 502 which refers ``to the extent 
consistent with the protection of sensitive intelligence 
sources and methods'' as providing some ability to the 
Intelligence Community, not on whether to inform the committees 
but on how the committees are to be informed, and that a 
practice has grown up that has been more or less tolerated by 
both sides of more limited briefings on unusual occasions. That 
is, obviously, the exception rather than the norm.
    Mr. Thornberry. That is helpful to me. So there is that 
provision that says to the extent necessary to protect sources 
or methods or whatever. And so your view is that that provides 
a greater discretion for any Executive about whether to brief 
and to whom to brief all intelligence activities.
    Mr. Litt. As I said, I think that the--our view is that it 
doesn't provide discretion on whether to brief, it provides 
discretion on perhaps how to brief and who to brief. But that 
if something rises to the level of a significant intelligence 
activity, it ought to be briefed.
    Mr. Thornberry. Well, I would just say a year ago, there 
was some bipartisan agreement of a change in the statute that 
would essentially put the presumption on any administration to 
fully brief Congress. And if there was, if any administration 
felt there was a need to limit who got briefed, it would be 
this matter of consultation back and forth with basically the 
decision resting between the Chair and the Ranking Member of 
the full committee on whether it would be limited to fewer 
Members of Congress or whether the whole committee. It seemed 
to make sense to me. It seems to provide some clarification to 
me about--in going forward, rather than this different 
structure setup under 502 and 503.
    I hope someday we can get back to kind of looking at this 
in a simpler, easier way on a bipartisan basis. And obviously 
one needs--any Congress would need to work with your office, 
the administration, to make that happen.
    So I appreciate you being here and yield back.
    Chairwoman Schakowsky. Mr. Conaway.
    Mr. Conaway. Thank you, Madam Chairman. You mentioned the 
blind sheikh. I got great confidence in the Bureau of Prisons 
that wherever we hold these guys, whether in Guantanamo Bay or 
somewhere else, that none of them are going to escape. But 
wasn't the sheikh's lawyer convicted of material support for a 
terrorist organization by helping the sheikh run the 
organization from prison? Can you talk to us about that case? 
And also how does that impact bringing Guantanamo Bay detainees 
to the United States where they may in fact have a broader 
opportunity for visitors and other access that they currently 
don't have in Guantanamo Bay?
    Mr. Litt. My knowledge of that case is derived from reading 
newspaper reports and the case reports of it, so I don't have 
any--I can't give you any more detailed information than that.
    It is my understanding that his lawyer was convicted of 
essentially passing coded messages. It is also my impression 
from reading the case--and I will tell you this is only my 
impression, I don't have any inside information on this--but it 
is my impression that the monitoring systems that were in place 
picked up these conversations and enabled the prosecution in a 
manner that was sufficient so that if there had been any 
genuine risk to national security, it could have been taken 
care of.
    Now as I said, that is just my impression from reading the 
reports. I don't know that for certain. I think that, by and 
large, the super max prisons and the Special Administrative 
Measures that can be put in are adequate to protect national 
security and to protect individuals and that whatever process 
is put into place for bringing these people here will ensure 
that the safety of Americans is not threatened.
    Mr. Conaway. Would you anticipate, though, that more people 
getting to have access to the detainees here in the United 
States is less preferable than a limited number of people 
getting access to them in Guantanamo Bay?
    Mr. Litt. Well, I am just not sure that more people would 
have access to them here than in Guantanamo Bay.
    Mr. Conaway. And that is based on?
    Mr. Litt. I mean----
    Mr. Conaway. And that is a rhetorical question. The real 
issue about bringing those folks onto United States soil is 
Federal judges beginning to interpret their rights broader than 
even the administration would want them interpreted and, 
certainly, I and my colleagues would want them interpreted. And 
once they are here and you have got Federal judges involved, 
then you really can't answer beyond that, because there are 
thousands of Federal judges that might have the sympathies that 
are different than others.
    So I thank you, Mr. Litt, I appreciate your very candid 
comments. Thank you, sir. I yield back.
    Chairwoman Schakowsky. At this point we will recess the 
committee and close the open session and reconvene in our 
regular hearing room downstairs. And we will move right there.
    [Whereupon, at 11:38 a.m., the subcommittees proceeded in 
Closed Session.]

                                  
