The Trump administration may have broken federal law by not informing Congress about the operation taking out ISIS leader Abu Bakr al-Baghdadi.
FOX’s Chris Wallace pressed Vice President Mike Pence this morning on why the administration didn’t let House Speaker Nancy Pelosi know about the raid (video starts 9:53 in).
Pence dodged the question on why Pelosi wasn’t informed although he earlier gave mixed answers on when President Donald Trump authorized the attack by first saying Friday, then Saturday morning. House Intelligence Committee Chair Adam Schiff told ABC News he wasn’t informed about the operation before it happened although a couple of unnamed Republican Congress members told FOX they were involved but it isn’t known if it happened before or after al-Baghdadi was killed. NBC News reported North Carolina Senator Richard Burr and South Carolina Senator Lindsey Graham were told before the raid happened.
Federal law is pretty clear, although there appears to be a little leeway when it discusses covert operations (emphasis mine).
(c) Timing of reports; access to finding
(1) The President shall ensure that any finding approved pursuant to subsection (a) shall be reported in writing to the congressional intelligence committees as soon as possible after such approval and before the initiation of the covert action authorized by the finding, except as otherwise provided in paragraph (2) and paragraph (3).
(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.
(3) Whenever a finding is not reported pursuant to paragraph (1) or (2) of this section,1 the President shall fully inform the congressional intelligence committees in a timely fashion and shall provide a statement of the reasons for not giving prior notice.
The justification will be interesting because the President thanked multiple nations for their involvement in the raid when he announced the terrorist’s death. It’s doubtful Burr and Graham’s notification of the raid will cover federal law because of the requirement that “the chairmen and ranking minority members of the congressional intelligence committees” be briefed on the issue. The justification for preventing leaks will probably not hold any water because of Burr and Graham’s involvement. It’s also not like the Administration couldn’t have let congressional Democrats know right before the raid started. There is no specific timing requirement in federal law.
It should be pointed out the precedent for this sort of secretive behavior was set by the Obama Administration. The New York Times reported in 2015 the raid which killed Osama Bin Laden was so secret then-Attorney General Eric Holder was kept in the dark until a day before the raid. This occurred despite questions on whether Pakistan’s sovereignty was going to be violated by Navy SEALs going in to kill/capture Bin Laden. The Administration was also planning to not tell Congress about the plan but were given an out when CIA Director Leon Panetta followed the law and let some lawmakers know about it without approval from the White House. It still isn’t known if Congress was informed before the actual raid occurred.
Both Trump and Obama lucked out when both raids were completed without loss of American lives. One can only imagine what would have happened if military lives were lost. Tom Clancy’s Clear and Present Danger novel from 1989 is probably the best allegory where the sitting president declined to inform Congress about Operation RECIPROCITY which ended up in the loss of American lives. Clancy had the president essentially throw the upcoming election and let his opponent win. Of course, that’s fiction and it’s doubtful politicians convinced of their invincibility would throw an election. The thought of the worst-case scenario should still be something presidential administrations consider before undergoing an operation without information Congress.
No one is crying about al-Baghdadi’s death (except maybe some headline writers at The Washington Post), but federal law needs to be followed especially when it comes to keeping the executive from running amok.