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The Bush Admin. Wasn't Required to Inform Congress of Secret CIA Program

1:39 PM, Jul 17, 2009 • By ADAM J. WHITE
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In inveighing against the Bush administration, Vice President Cheney, and allegations of a recently-terminated CIA program, liberal pundits have repeatedly mischaracterized the legal provision that, they say, renders the administration's alleged conduct illegal. They argue that the Bush administration violated federal law by failing to apprise Congress of a covert CIA program. But their argument, not the Bush Administration's actions, is at odds with the applicable federal statute.

The statute in question, 50 USC 413b, requires the administration to disclose many covert activities to Congress, but the same statute specifically allows the administration to withhold such information when disclosure would not be "consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters." Thus, even assuming that the alleged CIA program had reached the stage of development that might implicate the statute, the statue itself allows for nondisclosure.

Furthermore, the statute commits the disclosure/nondisclosure decision to the president, not Congress (to say nothing of left-wing activists). Under Section 413b(c), the president ensures that disclosure is made when possible; when immediate disclosure is impossible, the president should disclose the information "in timely fashion" and with appropriate justification for the delay.

This framework is straightforward and commonsensical, but various critics have done their best to rewrite the statute, eliminating the nondisclosure provision. Eugene Robinson, for example, suggested that the statute didn't include a nondisclosure provision ... and was promptly corrected by Liz Cheney.

Similarly, Harper's Scott Horton asserts that the federal statute "mandates the sharing of such information," and that nondisclosure reflects not a simple statutory point but, rather, "[t]he Cheney-Addington view" that "Congress has not right to such information" and that Congress's demand for such information is "an unconstitutional intrusion upon presidential authority." But by ignoring the statute's express nondisclosure provision, Horton creates a constitutional conflict where none need exist. It's true that other statutes pertaining to national security implicate questions of whether the Constitution's separation of powers prevents Congress from encroaching upon an area of exclusive presidential control. But here, Congress has disclaimed any entitlement to certain types of national-security information, and for good reason.

Horton, Robinson, and others have not hesitated to accuse the Bush administration of ignoring federal statutes that did not suit the administration's purposes. How ironic, then, that their ideological prejudices lead them to commit that very error themselves.