FBI Reporting Duties in the Petraeus Imbroglio [UPDATED]

By Jack Goldsmith
Saturday, November 10, 2012, 10:42 AM

In connection with the Petraeus matter, the NYT reports:

The Federal Bureau of Investigation did not inform the Senate and House Intelligence Committees about the inquiry until this week, according to Congressional officials, who noted that by law the panels — and especially their chairmen and ranking members — are supposed to be told about significant developments in the intelligence arena. The Senate committee plans to pursue the question of why it was not told, one official said.

I believe the possible legal duty in question comes from 50 USC § 413a, which provides in relevant part (emphases added):

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

(1)   keep the congressional intelligence committees fully and currently informed of all intelligence activities . . .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, including any significant anticipated intelligence activity and any significant intelligence failure.

I had assumed (without giving it much thought) that these duties applied to intelligence agencies under the umbrella of the DNI, and did not extend to the FBI.  But this is wrong to this degree:  Section 3.5(h) of EO 12,333 includes the “intelligence elements of the Federal Bureau of Investigation” within the “intelligence community.”  And more directly, the statute extends its reporting duties based on the function of the U.S. agency, not its place in the executive branch organization chart.  By its terms, the reporting duties under the statute appear to extend to the counterintelligence activities of the FBI.  And indeed, as a friend pointed out to me, in a 2009 Report (p. 63), the Senate Intelligence Committee stated that it “expects the FBI to increase its transparency and cooperation with Committee oversight,” and noted that “[i]n several instances the FBI has not kept the Committee ‘fully and currently’ informed of its intelligence activities . . . .”

Under this reading of the statute, and assuming the news reports are right (there is still a lot of uncertainty in what happened when, and why), the FBI might have had a duty to report its months-long investigation related to security breaches concerning the CIA Director quite a while ago, even though Petraeus apparently did not learn of the investigation until two weeks ago.  I should emphasize that this conclusion might be wrong for a lot of reasons.  We don’t know nearly enough about when and why the FBI began investigating Petraeus’s communications to draw firm conclusions.  And the FBI investigation might have been primarily a law enforcement matter until very recently – though it seems like any investigation into security breaches of the CIA Director’s computer system or communications by definition implicates counterintelligence.  Nonetheless, the interesting conclusion is that the FBI might have had a duty to inform Congress about the investigation even before it was ready to inform the CIA or the White House – an example of, among other things, how decentralized and uncoordinated congressional reporting duties intersect with, and alter, the traditional unitary executive.

UPDATE: More facts are starting to spill out.  This story from the Washington Post seems most relevant to the issue above:

The timing of the resignation has caused a controversy, with members of Congress and others questioning why the disclosure was not made until after Tuesday’s election.  Some have also complained that the FBI did not notify the White House and senior members of Congress earlier that the CIA director was under investigation.

The law enforcement officials did not provide an exact timeline for the investigation, but they said that the inquiry started at least several weeks ago. They said investigators thought they were dealing with a routine harassment case until they discovered the e-mails were traced to a private e-mail account belonging to Petraeus.

The initial concern was that someone had broken into the CIA director’s e-mail account, leading to concerns about potential security breaches, according to the officials. As the investigation proceeded and more e-mails emerged, along with Broadwell’s role, FBI investigators realized they had uncovered an affair between Petraeus and Broadwell, the officials said.

The investigators first interviewed Petraeus about two weeks ago, the officials said. Petraeus was told at the time that no criminal charges would be forthcoming and the idea of him resigning was not raised, the officials said.

One of the law enforcement officials said Justice Department officials were unclear on what steps to take next because they had determined that there had been no crime and no breach of security.

It was not until Tuesday that the Justice Department notified James Clapper, the director of national intelligence, that compromising material about Petraeus had been uncovered as part of an investigation, according to a senior intelligence official. Clapper then spoke with Petraeus and told him to resign.

“Director Clapper learned of the situation from the FBI on Tuesday evening around 5 p.m.,” the intelligence official said. “In subsequent conversations with Director Petraeus, Director Clapper advised Director Petraeus to resign.” . . .

The official also would not address why the DNI and others weren’t notified of the FBI investigation — and its link to Petraeus — earlier.

“This is a very personal matter, not a matter of intelligence,” the official said. “There are protocols for this. I would imagine things have to cross a certain threshold before they are reportable.”