Congress not told of covert action. Why?

Steven Aftergood has a post up at Secrecy News. Apparently, the U.S. intelligence community recently did a covert action without informing Congress, as they are legally mandated to do:

"The Committee was dismayed at a recent incident wherein the Intelligence Community failed to inform the Congress of a significant covert action activity. This failure to notify Congress constitutes a violation of the National Security Act of 1947."
"Despite agency explanations that the failure was inadvertent, the Committee is deeply troubled over the fact that such an oversight could occur, whether intentionally or inadvertently."
"The Committee firmly believes that scrupulous transparency between the Intelligence Community and this Committee is an absolute necessity on matters related to covert action."

At first glance it seems like this is fairly straightforward. The Intelligence Community (IC) did a covert action, they are legally required to inform Congress, and they didn't. However if you look at the text of the law that requires them to inform Congress it gets a little trickier, because Congress created some exceptions.

The National Security Act of 1947 says:

(c)(1) The President shall ensure that any [covert action] shall be reported 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).

Paragraphs 2 and 3 that they refer to say that in extraordinary circumstances, the President can decide to only inform the chairmen and minority leaders of the intelligence committees and of Congress, and if the President doesn't inform Congress of a covert action ahead of time, he better get on his horse and tell them as soon as possible and explain why he didn't tell him sooner.

The tricky part comes in the definition of "covert action." Here's the definition the law uses (emphasis added):

(e) As used in this title, the term "covert action" means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include -

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.

This means that if, say, the CIA undertakes what would normally be considered a covert action, for example, influencing a parliamentary election in a foreign country, but justifies doing so on the basis of improving diplomatic relations with the head of that country (this scenario happened in Nepal in the 1950s, as recalled by Duane Clarridge), the CIA could argue that they don't need to inform Congress because it does not fall under the definition of "covert action" due to its diplomatic motives. Whether they'd be correct or not would depend on your definition of "traditional diplomatic activities." If the CIA were to justify what would otherwise be covert action on the basis of counterintelligence activities it could get even more difficult to disagree with them because counterintelligence activities can be very wide-ranging, and counterintelligence should ideally permeate every aspect of intelligence activity.

I imagine that Congress added the escape clause for intelligence agencies for two reasons. First, they didn't want to be bombarded with notifications of what ambassador is spreading nasty rumors or other such trivialities. Second, because the Act was written in the context of the Cold War, activities such as counter-terrorism and counter-narcotics weren't very important - the target of the Intelligence Community was the Soviet Union. In contrast, now those activities are two of the core functions of the IC, and can also be justified as law enforcement actions, hiding them from Congress. This means Congress can be kept in the dark about a much larger portion of the IC's actions.

Perhaps it is time to amend that chunk of the National Security Act?