As far as I can tell, the continuing resolution that was signed by President Trump yesterday contains a curious provision that permits his intelligence agencies to spend billions of dollars on essentially anything they want, without those activities being authorized by Congress, and with no requirement to inform Congress about what they are doing. This provision was added at the behest of the White House, over the objection of both the chairman and ranking member of the Senate intelligence committee. This seems like a bad idea.

First, some background. In 1985, Congress amended the National Security Act of 1947 to add Section 502, which provides that “funds available to an intelligence agency” may only be spent to do things if “those funds were specifically authorized by the Congress for use for such activities.” (Section 502 has since been redesignated as Section 504.) If an intelligence agency wants to shift appropriated funds to a different activity, it must at least notify the appropriate congressional committees of this fact. This was, according to the Congressional Research Service, in part because of a concern in Congress that the Reagan Administration had been up to things in Central America that Congress did not support or know about.

About a month ago, Congress passed a continuing resolution to keep the government operating; the bill, as is common, also had attached various sweeteners, including the “Missile Defeat and Defense Enhancements Appropriations Act.” (Scroll down to “Division B.”) That Act appropriates billions of dollars for ballistic-missile defense, and—crucially—is an actual appropriation, not part of the short-term continuing resolution (which is “Division D” in the law). Trump himself regarded this as a major victory; in a tweet, he bragged about the whole thing being a “4 billion dollar missile defense bill.”

Yesterday, President Trump signed H.R. 195, which will keep the federal government running until February 8, 2018. Buried in that law, however, is a provision (Section 148) that permits funds appropriated in the missile-defense bill to be “obligated and expended”—that is, spent—“notwithstanding Section 504(a)(1),” described above. In other words, the $4 billion allocated in the missile-defense bill may be expended on intelligence activities without those funds being specifically authorized by Congress. (This provision was first reported by Ryan Grim of the Intercept.)

By all accounts, this provision was added at the request of the White House. And it was done over vocal objections by both the chairman and ranking member of the Senate’s intelligence committee: Richard Burr argued that the provision “would authorize the intelligence community to spend funds notwithstanding the law that requires prior authorization”; Warner noted that it would permit the Trump Administration to “go off and take on covert activities, for example, with no ability for our committee, which spends the time and has oversight, to say 'time out,' or to say we actually disagree with that policy.” Nevertheless, Burr and Warner lost.

The question is why the White House wanted this provision in there. Some have argued that this is just a standard provision used in appropriations bills. The basic problem is that intelligence activities must be specifically authorized (that’s the point of Section 504), and sometimes that authorization lapses without a new one being passed. In that circumstance, to avoid all intelligence activity coming to an immediate halt, an appropriations bill will provide that all the activities it funds are “deemed” authorized until an actual intelligence-authorization bill is passed. The usual language is included in Grim’s original Intercept report.

But I don’t think this is what that provision does at all. For one thing, it applies only to the $4 billion appropriated in the missile-defense bill. Moreover, it makes no reference to a forthcoming intelligence-authorization bill, as would be common; rather, it seems to function as a blanket exemption for those funds from Section 504. It’s true, of course, that the intelligence committees could try to repeal this provision in some later bill. It’s also true that this provision will expire, absent further action, with the rest of the continuing resolution, early in February. But none of that explains why this provision was inserted in the first place, a mystery that is deepened because the White House is not explaining why it asked for it to be put there.

What, in other words, does the Trump Administration want to do with this $4 billion other than waste it on yet another missile-defense boondoggle? Do they have something in mind? Or is it just appealing to have an intelligence slush-fund that can be used on things Congress never has to find out about? As the Reagan-era experience demonstrates, it is always dangerous to have intelligence agencies operating that way. The danger is only heightened given the current occupant of the White House—imagine, for example, using some of those billions in missile defense to create a private spy network that reported directly to the CIA director and the White House, as at least some would like to do.

The members of the intelligence committees should insist that this provision be removed as part of any final appropriations deal in early February.

Tags: