Andrew C. McCarthy on National Review Online

With Speaker Pelosi caught in the web of her own deceit over what the CIA told her about “torture,” and the Obama administration in the middle of its latest 180-degree reversal over CIA interrogators (Attorney General Holder is now considering prosecutions despite Obama’s promise of no prosecutions), Democrats have trumped up a charge that the CIA, on the orders of Vice President Dick Cheney, failed to notify Congress that it was contemplating — not implementing, but essentially brainstorming about — plans to kill or capture top al-Qaeda figures.

This is their most ludicrous gambit in a long time — and that’s saying something. Given their eight years of complaints about President Bush’s failure to kill or capture Osama bin Laden, and given President Clinton’s indignant insistence (against the weight of the evidence) that he absolutely wanted the CIA to kill bin Laden, one is moved to ask: What did Democrats think the CIA was doing for the last eight years?

And if Democrats did not believe the CIA was considering plans to kill or capture bin Laden, why weren’t they screaming from the rafters about such a lapse?

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Of course the CIA has been trying to figure out how to take out top al-Qaeda leaders. One assumes — one hopes — they are also brainstorming about wiping out the Taliban, overthrowing the Iranian regime, undermining Kim Jong Il’s nuclear program, disrupting Syrian support of Hezbollah, and tackling all manner of threats to the United States. But there is no law that requires, or could practically require, the CIA to brief Congress every time some agency component considers the feasibility of some security initiative.

Gen. George Washington himself observed that “upon secrecy, success depends in most enterprises . . . and for want of it, they are generally defeated.” Washington thought it obvious that secrecy was the heart of good intelligence. That is a big part of why intelligence activities are executive in nature, a core part of what the Supreme Court long ago recognized as the “delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” Secrecy cannot be preserved in a system of national security by political committee, much less a system in which a sprawling, 17-agency intelligence community is forced to share all of its secrets, in real time, with 535 members of Congress.

Intelligence activities are not reliant on congressional authorization or supervision. Like all executive power under the Constitution, the president is checked in this area by Congress’s enumerated powers, particularly the power of the purse. As is its wont, Congress tries to leverage this authority to usurp presidential prerogatives — to make itself a partner in the actual running of intelligence activities, albeit a partner with no accountability (see Nancy Pelosi, supra).

Alexander Hamilton warned in Federalist No. 73 that this “propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments” would be a constant concern. That’s why presidents are expected to defend their turf and are armed with the capacity to do so. But it is also true that our country is best defended when the political branches work cooperatively: Presidents who explain themselves to Congress are less apt to make policy errors, and Congress is more inclined to offer support when administrations consult with it ahead of time.

So the president and Congress are locked in a tense, dynamic dance. Since no one wants needlessly to provoke a constitutional crisis, presidents have occasionally (and foolishly) agreed as a matter of comity to legislation that seemingly permits Congress to intrude on intelligence and military operations. Presidents conduct those operations in a practical manner that is respectful — but not subservient. The 1947 National Security Act is a good example. It requires that Congress be kept “fully and currently informed” of intelligence matters, including any “significant anticipated intelligence activity.” But it does not define what “fully and currently informed” means, nor at what point a contemplated plan of action becomes significant enough that the obligation to inform congressional leaders is triggered.

When everyone is being an adult and acting in good faith, this doesn’t present a problem. No one expects the CIA to alert congressional leadership every time some agent conjures up a potential operation or to waste Congress’s time with briefings to explain the agency’s current thinking on matters (like how to neutralize al-Qaeda) that everyone knows the agency is working on. After all, if Congress wants to inquire about such things, it can ask. At the same time, if the CIA is about to embark on an effort that could have significant policy or security consequences, it is in the interest of the president and the country that bipartisan congressional leadership be given a heads-up.

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