I asked our friend Greg McNeal to send this along:
It appears that the Department of Justice is playing politics with the Times Square bombing plot by refusing to brief Senator Kit Bond (R-MO), the Vice Chairman of the Senate Select Committee on Intelligence. During a classified briefing on Thursday members of the intelligence community refused to answer one of Senator Bond’s questions, according to Bond: “We called the agency of the intelligence community that should have that information, and they advised us that the Department of Justice is running it and they told us they should not share it with the Intelligence Committee.” Bond further noted that the stonewalling was directed at him personally: “The Intelligence Community has been told they should not speak to the Vice Chairman of the Intelligence Committee — that’s me.” Bond suspects politics is behind it, which isn’t a stretch given his criticism of the administration’s handling of the Christmas Day Bomber, and his comments on Wednesday that Shazad is not entitled to Miranda rights (a bit of a misstatement as, barring some exception, Miranda would be required if prosecutors want to use the fruits of a custodial interrogation against Shazad).
In any case, someone may want to tell AG Holder that absent some reason to believe that Vice Chairman Bond will disclose intelligence without authorization, the intelligence community is legally obligated to keep Congress “fully” and “currently” informed. Specifically:
the Director of National Intelligence and the heads of all departments, agencies, and other entities of the United States Government involved in intelligence activities shall–
(1) keep the congressional intelligence committees fully and currently informed of all intelligence activities, other than a covert action (as defined in section 413b (e) of this title), which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government, including any significant anticipated intelligence activity and any significant intelligence failure.
(2) furnish the congressional intelligence committees any information or material concerning intelligence activities, other than covert actions, which is within their custody or control, and which is requested by either of the congressional intelligence committees in order to carry out its authorized responsibilities.
There’s no exception in the statute allowing for a Department of Justice veto of these responsibilities: the intelligence community shall keep Congress fully and currently informed. Moreover, given the fact that Shazad was on a watch list since 1999 the Senate Intelligence Committee is entitled to information about whether this plot could have been detected earlier, that’s squarely within its obligation to carry out “its authorized responsibilities.” So why is the Department of Justice instructing the intelligence community to not brief Senator Bond? More importantly, why is the Director of National Intelligence complying with such instructions, despite his legal obligation to keep Congress informed? It wasn’t that long ago that the mainstream media and Congressional Democrats were apoplectic over the fact that President Bush only briefed select members of Congress (the “gang of eight”) over our most secretive terrorism surveillance programs. Where is the outrage here when a President and his Justice Department are stonewalling over a plot that seems far less sensitive than a covert surveillance program?
– Greg McNeal teaches national security law at Pepperdine University and blogs at Law and Terrorism.