[Congressional Record Volume 155, Number 168 (Tuesday, November 10, 2009)]
[Senate]
[Pages S11339-S11340]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF DAVID GOMPERT

  Mr. FEINGOLD. Madam President, I voted to confirm David Gompert to be 
Deputy DNI during the Senate Select Committee on Intelligence's, SSCI, 
consideration of his nomination. He is highly qualified, and the 
responses he provided to questions from members of this committee have 
generally demonstrated a strong grasp of many of the issues he will 
face. However, one issue--the statutory obligations to notify the full 
committee of intelligence activities--requires further comment. I voted 
against the confirmation of Robert Litt to be the ODNI's general 
counsel and that of Stephen Preston to be CIA's general counsel because 
of their misinterpretation of the National Security Act. Specifically, 
they misread the ``Gang of Eight'' provision, which is included only in 
section 503 of the act covering covert action, to apply to section 502, 
which covers all other intelligence activities. When I asked Mr. 
Gompert about this, he acknowledged that the provision is not in 
section 502 but nonetheless cited the views of the general counsel.

[[Page S11340]]

  I have no reason to believe that, as a matter of policy, Mr. Gompert 
won't elect to notify the full SSCI, regardless of the statutory 
interpretations of the general counsel. Nonetheless, this confirmation 
process should serve to remind Mr. Gompert and other leaders of the 
intelligence community that those clear statutory obligations apply to 
them, regardless of the general counsels' misinterpretation of the law 
and regardless of the practices of the previous administration. These 
obligations are consistent with basic notions of statutory 
interpretation. They are also consistent with recent testimony before 
the House Permanent Select Committee on Intelligence by two experts on 
congressional notifications, both of whom worked on the Church 
Committee. Frederick ``Fritz'' Schwarz testified that the ``Gang of 
Eight'' provision ``should be read as limited to covert action'' and 
noted CIA Director Panetta's testimony at his confirmation hearing 
supporting this view. Britt Snider's testimony traced the entire 
history of the provision, describing amendments passed in 1991 and 
noting that he was general counsel of the Senate Select Committee on 
Intelligence at the time of the amendments and was ``heavily involved 
in their development.''

       Another important change brought about by the 1991 
     amendments limited the ``gang of 8'' option to covert 
     actions, rather than making it available to notify the 
     committees of any intelligence activity that was particularly 
     sensitive. This was done for several reasons. First, the gang 
     of 8 option had, to that point, only been used for covert 
     action. Sensitive collection programs had been briefed to the 
     committees as a whole. The view on the two intelligence 
     committees was that if an agency was instituting a new, 
     ongoing program to collect intelligence, they all needed to 
     know about it, regardless of its sensitivity. This was what 
     the committees were set up to do. They had to authorize the 
     funding for these programs. How could they not know of them? 
     Again, the [George H.W.] Bush Administration did not resist 
     the change . . . There have been no major changes to the 
     congressional notification requirements since the 1991 
     Amendments. But I think it is fair to say that practice under 
     the law has changed over time. It changed, for example, in 
     the late 1990s when the CIA began to disclose more 
     information to the committees about its collection 
     operations, especially those that were experiencing problems. 
     (Emphasis added.)

  Both the plain language of the statute and its history are thus 
clear. Moreover, the practice of violating the statute in this manner 
is not longstanding; it was limited to the George W. Bush 
administration. It is therefore particularly dangerous for the current 
administration and any current leaders of the intelligence community to 
associate themselves with this misinterpretation of the law.

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