Congressional sources complained last week that the White House prevented the Central Intelligence Agency and the Federal Bureau of Investigation from briefing the Senate Select Committee on Intelligence. After Sen. Orrin Hatch, R-Utah, spilled the beans that the United States intercepted some electronic terrorist communications after the attacks, members of Congress said their intelligence briefings became even less informative. With regard to classified information, what can Congress know, and when can it know it?
Explainer hates to do this, but the answer really is "We don't know." The Supreme Court has never definitely ruled on what national security secrets Congress has a right to know and what secrets the president has a right to hide. Congress has long asserted its right to all intelligence information, based on its constitutional role in developing national defense and foreign policy as well as its duty to provide oversight of the executive branch. On the other hand, presidents usually claim that executive privilege and the constitutional position of commander in chief give the president the right to determine whether information should be kept from Congress for national security reasons.
The Constitution's mention of government secrecy says Congress can keep confidential deliberations that "may in their Judgment require Secrecy." But the Supreme Court has said that the president has the right to classify and control information for national security purposes. The court has also, however, declared that access to information is inherent in Congress' power to legislate. And it's never explained what happens when those two rights collide.
The executive and legislative branches do share information, though, with the executive branch saying that it assists Congress only as a matter of "comity" and Congress citing legislative mandates. Laws acknowledge the executive branch's right to classify national security information, but Congress always reserves for itself the right to know that information.
In practice, the intelligence committees in the House and the Senate (established by a frustrated Congress in the 1970s) approve the budgets and conduct oversight for intelligence agencies. Intelligence committee hearings are generally closed to the public, and members of the congressional leadership (the speaker and minority leader of the House and the majority and minority leaders in the Senate) are ex officio members. Classified intelligence reports are routinely provided to the intelligence committees and to other committees that deal with national security. (Though Explainer notes that this CIA monograph observes that most intelligence reports handed over to Congress are "read by no one.")
Other members of Congress generally must settle for intelligence briefings instead of classified documents. And while intelligence committee members are treated to information about the sources and methods used to obtain intelligence, other members receive mostly facts and analytical conclusions.
Occasionally, the executive branch gives very sensitive information only to the chairmen and ranking members of the intelligence committees. In fact, Congress' oversight laws grant the president that right (though, again, the Supreme Court hasn't ruled on the statute). If the president wants to, he can restrict national security information to the chairmen, ranking members, and the congressional leadership.
Explainer factoid: When William Rehnquist was assistant attorney general under President Richard Nixon, he concluded that "The president has the authority to withhold from Congress information in the field of foreign relations or national security if, in his judgment, disclosure would be incompatible with the public interest." Would he arrive at the same conclusion in his capacity as chief justice of the United States?
Explainer thanks this memo fromGeorgeWashingtonUniversity's Center for National Security Studies, this monograph from the CIA's Center for the Study of Intelligence, and this transcript from a Senate Select Committee on Intelligence hearing. (You'll need Adobe Acrobat to read it.)