Michelle Malkin’s Bogus Legal Theory

Right-wing blogger Michelle Malkin, in a post titled “Jane Harman’s Bogus Attacks,” takes issue with Harman’s claim that briefings the Bush administration provided to Congress violated the law. Specifically, Harman argues that the administration briefings, which only included the leadership of the intelligence committees, failed to comply with the 1947 National Security Act, which requires the administration to keep the entire committee informed about intelligence activities.

Malkin cites an exception under the law [50 USC 413b(c)(2)]:

If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.

It sounds impressive but it’s not true. That exception Malkin cites only applies to “covert action.” And, 50 USC 413b(e) — titled “’covert action’ defined” — specifically says that “covert action” does not include “activities the primary purpose of which is to acquire intelligence” Alberto Gonzales has said repeatedly that the purpose of the program was to acquire “signals intelligence.”


Thus, the provision cited by Malkin is irrelevant. The applicable law is under section 413s, titled “Reporting of intelligence activities other than covert actions.” That provision requires the administration to:

[K]eep 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.

That’s the law the administration violated.

UPDATE: Michelle Malkin admits she was wrong:

145pm EST update and correction: As Think Progress notes, the exemption I cite applies to “covert action,” not NSA surveillance.

She’s sticking to her argument, however, and has switched to a different provision to prove her case. This time she notes that the briefings are required:

To the extent 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.

Of course, there is nothing suggesting that, in this case, briefing the committee would not show “due regard” for unauthorized disclosures. As Harman notes: “Both congressional intelligence committee are select committees, formed of Members who hold the highest security clearances and have a proven ability to safeguard classified information.”