***updated below with Rep. Hoekstra’s letter to Harman…see also update and correction posted at 145pm EST***

At HuffPuff, Rep. Jane Harman says that the Bush administration violated the The 1947 National Security Act by withholding information from the full congressional oversight committees about the NSA’s surveillance program:

As I stated in a letter I sent the president yesterday, the President is required to keep the congressional intelligence committees “fully and currently” informed of all intelligence activities. The 1947 National Security Act only permits the President to limit the briefings to the so-called Gang of 8 for “covert action” programs. Covert action is defined as “activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent.” The NSA program is not a covert action.

After carefully reviewing the statue, I now believe the practice of briefing only certain Members of the intelligence committees violates the specific requirements of the law.

Whatchootalkinabout, Jane? Under 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.

Take a look at the first four words again: “If the president determines…” Those four words mean President Bush, not Rep. Harman, is authorized to decide whether the risk of a second 9/11 attack is an “extraordinary [circumstance] affecting vital interests of the United States.” Those four words mean President Bush, not Rep. Harman, is authorized to decide whether to limit disclosure of the NSA program to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, and the majority and minority leaders of the Senate.

Rep. Harman was among those briefed on the NSA project during the past four years. If she felt that the President Bush was committing a felony by failing to brief all members of the congressional intelligence committees, why didn’t she tell anyone until now? Via the NYTimes (for what it’s worth):

In a sign of growing partisan division over domestic eavesdropping, the Republican chairman of the House Intelligence Committee [Rep. Peter Hoekstra*] on Thursday defended the Bush administration’s limited briefings for Congress on the secret program…

In a letter to Ms. Harman, Mr. Hoekstra said the briefings were in compliance with the National Security Act of 1947, which says the committees should be informed of intelligence activities, though “with due regard for” the need to protect secrets.

“The committee has been informed, in good faith by the president of the United States,” through briefings he and Ms. Harman attended, Mr. Hoekstra wrote.

He said he was “surprised and somewhat bewildered” by Ms. Harman’s letter because she had not previously complained about the briefings. Mr. Hoekstra told Ms. Harman that he found her letter to the president “completely incongruent” with her previous position.

“In the past,” he said, “you have been fully supportive of this program and the practice by which we have overseen it.

*Hoekstra is a member of the U.S. House of Representatives, not the U.S. Senate, as the NYTimes headline wrongly reports here.

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Here is Rep. Hoekstra’s letter to Harman. (Click for full-size PDF file):

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

Think Progress emphasizes this provision regarding “Reporting of intelligence activities other than covert actions:”

[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.

What Think Progress ignores is the paragraph immediately preceding that section:

(a) In general

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, the Director of Central Intelligence and the heads of all departments, agencies, and other entities of the United States Government involved in intelligence activities shall—

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Related:

Stephen Bainbridge: Media Bias? NYT Headline Refuted by Own Story
Bryan Preston: Who Got to Rep. Jane Harman?
Tom Maguire: Scott Shane, Call Your Office

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