The disclosure of a SEAL Team 6 mission into North Korea in 2019 has heightened interest in when the executive branch must tell congressional oversight committees about important military and intelligence operations.
The Trump administration did not inform Congress of what happened. But in 2021, the Biden administration decided to brief top congressional officials. The difference in approach raises the question of whether the Trump team improperly or illegally withheld the information.
President Trump, who had authorized the incursion by the SEAL team, addressed the matter publicly for the first time on Friday when asked about it by reporters in the Oval Office. “I could look but I know nothing about it,” Mr. Trump said. “I don’t know anything about it. I’m hearing about it for the first time.”
The rules for informing Congress about a high-stakes military or intelligence mission can be an ambiguous patchwork of statutes and informal norms, according to interviews with current and former officials in the executive and legislative branches. Already, there is a recurring tension between the president’s power to protect state secrets and Congress’s power of oversight.
Here is a closer look.
What happened?
A high-stakes commando mission went awry.
In 2019, a SEAL Team 6 unit slipped ashore into North Korean territory for a nighttime mission to plant a surveillance device. But the troops were unexpectedly interrupted by a boat. Fearing they had been discovered by security forces, they shot and killed everyone aboard the vessel; the North Koreans on the boat turned out to be unarmed civilians.
The New York Times reported on the previously secret episode this week.
Should there have been a War Powers Resolution notice?
The best-known rule for notifying Congress about combat-related military activity is a requirement in the War Powers Resolution of 1973, which lawmakers enacted at the end of the Vietnam War by overriding President Richard M. Nixon’s veto.
One section says that the executive branch must notify Congress within 48 hours whenever U.S. armed forces are involved in “an attack or hostilities, whether in an offensive or defensive capacity,” or when they are deployed into foreign territory while equipped for battle.
Typically, presidents write that they are submitting such notices “consistent with” the statute rather than “pursuant to” it, signaling that the compliance in that instance should not be interpreted as executive branch acquiescence that the law is constitutionally binding. Presidents sometimes submit classified letters instead of making public notices.
Should the armed services committees have been told?
In 2013, Congress enacted a law that requires the secretary of defense to file written notices to the committees within 48 hours of any “sensitive military operation.” At the time, the U.S. military was increasingly engaged in counterterrorism drone strikes in places like Yemen, away from conventional battlefields like Iraq.
Lawmakers originally defined “sensitive military operation” as “a lethal operation or capture operation conducted by the armed forces outside the United States and outside a theater of major hostilities.”
In 2018, after it came to light that Marines had been involved in a serious gun battle in Tunisia a year earlier and that Congress had not been told, lawmakers expanded that definition to include, among other things, any “operation conducted by the armed forces in self-defense.”
Congress also required the executive branch to produce reports about military activities. Several are notable.
As part of a December 2017 law, it created a requirement for annual reports on civilian casualties caused as a result of United States military operations. The law allowed the executive branch to put some such information into a classified annex. In August 2018, it expanded that requirement to include information about “each specific mission, strike, engagement, raid or incident” in which U.S. troops killed civilians.
The August 2018 law also required the Pentagon to provide a report listing “any instance in which a member of the armed forces has engaged or been engaged by enemy forces” or “used self-defense” in a country other than Afghanistan, Iraq or Syria since December 2013. The Trump administration did not complete that report until after the North Korea incident.
Should the intelligence committees have been told?
That turns in part on whether the operation was undertaken under military legal authorities, found in Title 10 of the United States Code, or under intelligence authorities, found in Title 50.
A major difference is that Title 50 allows so-called covert operations, in which the United States government intends to conceal its role and deny any involvement if something comes to light. Typically those are conducted by the C.I.A., but sometimes military forces are temporarily put under C.I.A. control to carry out covert activities.
If the government is going to carry out a covert activity, Title 50 generally requires presidents to first make a written “finding” and inform the intelligence committees within 48 hours. Another part of the statute requires notice of “any significant undertaking pursuant to a previously approved finding,” but does not specify a deadline.
Other provisions in Title 50 require the executive branch to provide reports to the intelligence committees that keep them “fully and currently informed” about all intelligence activities — whether covert or not, and including any “significant failures” — no matter which agency or department conducts them.
Still, some ambiguity is built into this statute, in a nod to the fact that presidents may sometimes see a danger in telling too many people, increasing the risk of leaks.
Title 50 acknowledges that briefings on “exceptionally sensitive matters” may be delayed and allows a president to notify only the Gang of Eight — the top Republican and Democrat in the House and in the Senate, and the top two leaders of each intelligence committee — rather than the entire panels.
Charlie Savage writes about national security and legal policy for The Times.
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