TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

activities rather than the full membership of the congressional intelligencecommittees. The Gang of Eight consists of the Senate and House Majority andMinority Leaders, as well as the Chairs and ranking members of the Houseand Senate Intelligence Committees.The Act does not explicitly define “extraordinary circumstances.” Nevertheless,Congress intended that the Gang of Eight exception would apply only tospecific, time-sensitive covert actions, and not all intelligence activities.• The 1991 legislation notes, “This provision [should] be utilized whenthe President is faced with a covert action of such extraordinary sensitivityor risk to life that knowledge of the covert action should berestricted to as few individuals as possible”.• If the President finds there are “extraordinary circumstances” anddoes not immediately inform the committee or the Gang of Eightabout the covert action, the President must still ultimately report theactivity to the Congress in a “timely fashion” and explain the delay.Congress and the White House have also disagreed on the meaning of therequirement for reporting in a “timely fashion”. Congress has generally interpreted“timely fashion” to mean within two days, but past Presidents havewithheld information for a longer period. This disagreement has led to understandablefriction between the two branches.Hence, each branch of government has its own functions in determining USnational security. While the executive branch may be ‘first among equals’ inthis regard, both the judicial and the legislative play important roles in constrainingthe potential for tyranny Madison cautions against, so long as theyserve their appropriate roles. For only if policymakers choose to fulfill theirappropriate national security responsibilities will the government then havethe institutional legitimacy to confront those terrorist adversaries who wishto undermine the US.38 Trials by Fire: Counterterrorism and the Law

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