Trump Administration Says Intelligence Provision Isn't Meant to Circumvent Congress

By Byron Tau Features Dow Jones Newswires

Senior administration officials said a legislative provision granting the Trump administration broad latitude to fund intelligence programs wasn't devised as a way for the White House to bypass Congress, in response concerns from senators about its purpose.

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According to officials on Capitol Hill and in the administration, the intelligence provision was inserted at the request of the administration into a stopgap spending bill signed by the president this week, because Congress hadn't passed a broader intelligence authorization for the current fiscal year.

But the measure caused enough bipartisan alarm in the Senate that two senators responsible for intelligence oversight made a last-ditch plea to remove it, arguing it could hinder congressional supervision of intelligence programs and give too much discretion to the administration to create spy programs or shift spying activities to private contractors.

The measure had "nothing in the slightest" to do with shifting intelligence resources to private intelligence gathering or off-the books spy programs, a senior administration official said.

The provision enables the Trump administration to spend as much as $4 billion slated for missile defense money instead on intelligence programs that haven't been explicitly authorized by Congress.

That measure waives a longstanding legal requirement that the legislature be notified of such activity and give its approval. Typically, Congress must explicitly approve of intelligence activity in its annual review of intelligence programs. But Monday's three-week spending bill enables the administration to spend any chunk of the $4 billion on programs "notwithstanding" longstanding notification and spending laws put into place by Congress under the National Security Act.

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The waiver applies to missile defense money the administration requested last year in response to rising tensions on the Korean Peninsula. Administration officials say it is their understanding the waiver is permanent until explicitly repealed by Congress -- or until the $4 billion runs out.

"A broad-based grant of authority really is problematic," said Mieke Eoyang, vice president for the national security program at the centrist think tank Third Way and a former Democratic staffer on Capitol Hill. "It could be nothing. It could be just standard language on 'authorized, not appropriated.' It could be more pernicious than that. ... I understand why the authorizing committee was concerned."

Administration officials say the funds will be spent on ground-based interceptor missiles meant to counter escalating threats on the Korean Peninsula, as well as to fund repairs to two guided-missile destroyers damaged in collisions last year, according to a senior administration official. They say there is no intention to shift those funds to intelligence programs that haven't been specifically authorized, nor to pay private contractors.

Typically, Congress first authorizes programs, then in a separate process appropriates money for them. However, in recent years, Congress has failed to pass many of authorizing bills, including on intelligence.

The House passed a fiscal year 2018 intelligence authorization bill in July but the Senate hasn't taken it up. Capitol Hill and administration officials said the waiver was needed to ensure the missile defense funds could be spent without delay in the absence of an intelligence bill.

But critics of the waiver -- including the bipartisan leadership of the Senate Intelligence Committee -- say that the way the law was written erodes congressional supervision of intelligence programs and should have been more narrowly tailored to apply only to the $4 billion in missile defense spending.

Intelligence Committee Chairman Richard Burr (R., N.C.) and Vice Chairman Mark Warner (D., Va.) came to the Senate floor Monday to try to replace the provision. That attempt failed when Appropriations Committee Chairman Thad Cochran (R., Miss.) objected, depriving them of the unanimous consent needed to make a last-minute change to the bill.

"Effectively, the intelligence community could expend funds as it sees fit," Mr. Burr said on the Senate floor, calling the measure "troublesome."

Congressional appropriators on Capitol Hill -- who inserted the waiver and defended it on the Senate floor -- say there was no intention to erode the intelligence committee's prerogatives.

"The appropriations committee maintains this language does not affect the intelligence committee's important authorization role," a spokesman for Mr. Cochran said.

After losing the battle on the floor this week, Mr. Burr said he would work to make sure such language exempting intelligence programs from Congress's explicit authorization wouldn't pass again.

"I intend to make sure the waiver is not part of any legislation in the future," he told reporters on Tuesday.

Write to Byron Tau at byron.tau@wsj.com

(END) Dow Jones Newswires

January 24, 2018 13:22 ET (18:22 GMT)