Congressional Oversight of Intelligence (Is The Solution Part of The Problem)

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Congressional Oversight of Intelligence: Is the Solution Part of the Problem?

Jennifer Kibbe Available online: 10 Mar 2010
To cite this article: Jennifer Kibbe (2010): Congressional Oversight of Intelligence: Is the Solution Part of the Problem?, Intelligence and National Security, 25:1, 24-49 To link to this article: http://dx.doi.org/10.1080/02684521003588104
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Intelligence and National Security Vol. 25, No. 1, 2449, February 2010
Congressional Oversight of Intelligence: Is the Solution Part of the Problem?

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JENNIFER KIBBE
ABSTRACT After presenting evidence that the current system of congressional oversight of intelligence is failing, this article analyzes how the system has been undermined by a toxic combination of problems: the intelligence committees inherent informational disadvantage in relation to the executive branch, the jurisdictional morass in which the committees must operate and their own internecine partisanship. The article discusses a range of specic changes that could be made, but concludes that the critical ingredient in strengthening the oversight system is to emphasize the development of strong, nonpartisan committee leadership.
Introduction The congressional intelligence committees have come under considerable re in the last few years for not conducting robust investigations into major intelligence failures (the pre-Iraq war intelligence) and for being too acquiescent in the Bush administrations controversial policies regarding interrogations, secret prisons and warrantless wiretapping. The calls for reform of congressional oversight have echoed from all corners of the debate. But the issue of congressional oversight of intelligence is complex, combining as it does the political and structural complexities of Congress with the difculty of monitoring something of strategic signicance that, by denition, operates in the shadows. Consequently, attempts to reform congressional oversight are inherently difcult. As just one measure of the difculty, members of Congress introduced over 200 bills between 1947 and 1975 aimed at expanding their supervision of the intelligence community. Of those, exactly one was adopted.1 One of the most prominent voices calling for reform recently has been The National Commission on Terrorist Attacks Upon the United States (9/11 Commission). The commissioners also noted,
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Harry Howe Ransom, Congress and the Intelligence Agencies, Proceedings of the Academy of Political Science 32/1 (1975) p.162.
ISSN 0268-4527 Print/ISSN 1743-9019 Online/10/010024-26 2010 Taylor & Francis DOI: 10.1080/02684521003588104
Congressional Oversight of Intelligence
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however, that of their 42 recommendations, those strengthening congressional oversight may be among the most difcult and important.2 Despite the difculty involved, however, something must be done. The last seven years have shown that intelligence is more crucial than ever to national security, but as the executive branch and the intelligence community try to maximize the utility of intelligence in meeting national security needs, it is imperative that the congressional overseers meet their obligations as well. The importance of legislative oversight of the executive branch in general has long been recognized. Quite as important as legislation, noted Woodrow Wilson, is vigilant oversight of administration.3 In the intelligence arena, however, congressional oversight is at an added premium. The rst, most obvious reason is the inherent secrecy of the subject. In other areas, such as the environment or banking, the media plays a valuable role in helping Congress monitor the actions of the federal government on behalf of the public. In the largely classied world of intelligence, in all but a few exceptional cases, the media is effectively precluded from playing that supporting role, thus enhancing the importance of legislative oversight. A second less recognized but equally important reason that oversight is so critical to the intelligence enterprise is that, because . . . the intelligence community is constrained in its ability to convince the American public that it can be trusted and deserves their support, Congress also plays an important role in explaining and representing the intelligence community to the public.4 A third reason legislative oversight is so important is that, done well, it helps to improve the intelligence product, whether that means collection, analysis or covert action. When administration and intelligence ofcials know that they will have to explain a funding choice or particular operation to Congress, it has the effect of adding a layer to their own internal vetting. This article explains the major problems with the congressional oversight system, analyzes why it is so hard to reform, and examines what constructive steps might be taken to improve the situation. Symptoms of a Problem Evidence that congressional oversight of intelligence is not working well is not hard to nd. One of the intelligence committees main responsibilities is to pass an intelligence authorization bill every year, the main vehicle through which Congress makes its will known to the intelligence community regarding all aspects of intelligence, including strategy, priorities and budget levels. For the past four years (FY2006FY2009), however, the Senate Select
National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (New York: W.W. Norton 2004) p.419. 3 Woodrow Wilson, Congressional Government (Boston: Houghton Mifin 1885) p.297. 4 Suzanne E. Spaulding, Building Checks and Balances for National Security Policy: The Role of Congress, Advance: The Journal of the American Constitution Society Issue Groups 2/2 (2008) p.76.
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Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI) have been unable to pass an authorization bill, the rst times that this has happened since the committees were created in the mid-1970s. The bills have been the victims of partisan wrangling over controversial issues, including interrogation policy and warrantless wiretapping. However important the particular issue at hand may be to either side, though, the ultimate cost of not passing an authorization bill is that the intelligence committees cede having a formal say on any intelligence issue. As Rep. Pete Hoekstra (R-MI) explained, not passing an authorization bill means that Congress is not able to be a full participant in that dialogue, and the executive branch can disregard us . . . . So we are irrelevant in that dialogue, and we cant have an impact.5 Another important aspect of legislative oversight is holding hearings and conducting investigations into intelligence matters. At a time when the United States suffered two major intelligence failures, the 9/11 attacks and the nonexistent weapons of mass destruction (WMD) in Iraq, a robust oversight process would have led to investigations of both. While SSCI and HPSCI did form a Joint Committee to investigate 9/11, it spent so much time putting out brushres over its rst staff director (who eventually resigned) and alleged leaks that it ran out of time and ended up having to call for the creation of a special commission to continue its work (what became the 9/11 Commission).6 As for the Iraq WMD question, HPSCI did not conduct any investigation and SSCI, after months of partisan bickering, managed to agree on a two-phase investigation, the rst into the intelligence communitys analysis of the issue and the second into the administrations use of the intelligence, although the second report was not issued until June 2008. In addition to the lack of investigation of these episodes after the fact, the intelligence committees lack of oversight before the problems arose is also cause for concern. Regarding 9/11 for instance, the responsibility for raising questions about what threats the US faced during the 1990s, whether terrorism was a more serious issue than was generally thought and whether the intelligence community and executive branch were planning appropriately to meet it lay partly with the congressional committees. On Iraqs WMD, not only can one criticize the committees for a reluctance to investigate the episode, but there is also fair criticism to be raised that they had particular responsibility for evaluating the intelligence before the war. The Senate intelligence committee did commission the October 2002 National Intelligence Estimate (NIE) on Iraq, but once it was completed, only six senators and a handful of representatives read the entire 92-page document (it is unknown how many of those were among the 39 members of the two intelligence committees), as opposed to the 5-page executive
5 Rep. Pete Hoekstra, Intelligence Reform and Oversight: The View From Congress, Council on Foreign Relations Meeting, 26 June 2008. 6 Loch K. Johnson, Presidents, Lawmakers, and Spies: Intelligence Accountability in the United States, Presidential Studies Quarterly 34/4 (2004) p.832.
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summary, which eliminated most of the caveats and dissents included in the full report.7 Congress failure to conduct rigorous oversight investigations goes beyond these two cases, however. The intelligence committees have been largely mum, at least in open hearings, on many of the controversial policies that the Bush administration pursued, including warrantless wiretapping, alleged torture and interrogation, and rendition and the CIAs secret prisons. On precisely those issues where one would expect the intelligence committees to lead investigations after these programs came to light, they have been mute, allowing other committees to ll the void, as the Senate Judiciary Committee has done on the warrantless wiretapping issue. One nal indication of the weakened authority of the intelligence committees can be found in the fact that, once the Senate nally decided to attempt to reform the intelligence community, in the wake of the 9/11 Commissions report, the leadership put the Government Affairs Committee in charge rather than SSCI. That they would pass over SSCI, the more logical choice, whose staff and members had far more experience with intelligence issues, because they thought it was too paralyzed by partisanship was a signal that few could miss. In the words of one knowledgeable observer, that choice, which led to the 2004 intelligence reform bill the key development in the committees history represented the low point in the history of the committees.8 Problems with the Current System of Oversight The most inuential model in the literature on legislative oversight divides oversight activity into two metaphorical categories: police patrols and re alarms.9 Patrol oversight is proactive, direct and centralized Congress takes the initiative to examine a sample of executive branch operations, with the goal of nding and xing violations and, through that action, deterring others. Fire alarm oversight, on the other hand, is indirect and decentralized. Congress establishes a system of rules, procedures and informal practices that enable individuals and interest groups to monitor executive agencies actions and sound an alarm to which Congress responds when they nd a violation. McCubbins and Schwartz argue that re alarm oversight predominates because it is more cost-effective for re-election-seeking members of Congress.10 Aberbach agrees about the motivation driving oversight but counters that, in fact,
7 Dana Priest, Congressional oversight of Intelligence criticized, Washington Post, 27 April 2004, p.A1. 8 L. Britt Snider, former SSCI General Counsel and CIA Inspector General, author telephone interview, 11 August 2009. 9 Mathew D. McCubbins and Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols versus Fire Alarms, American Journal of Political Science 28/1 (1984) pp.165 79. 10 Ibid., p.168.
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police patrolling has increased noticeably since the early 1970s, as the changing political environment has created more incentives for members to devote time to it.11 The publics frustration with the increased size and complexity of government, combined with diminishing resources, have led lawmakers to spend more time on oversight activities rather than creating new legislation. Aberbach also points to Congress institutional decentralization and its heightened rivalry with the president as factors behind what he sees as the increased prominence of police patrolling.12 The question at issue here is why congressional oversight of intelligence in particular is relatively weak, whichever type it is. This research shows that intelligence oversight can be partly explained by the same motivations that the literature posits for oversight in general, but that some elements of it are unique. As detailed below, this research highlights three central reasons for the weakness of intelligence oversight: the complexity of committee jurisdiction over intelligence; the legislative branchs informational disadvantage vis-a -vis the executive; and the rise in partisanship on the committees. While the focus here is on detailing how these factors impede effective oversight, rather than explaining the reasons underlying each one, both committee jurisdiction and partisanship can be partly explained by the re-election seeking behavior proposed by McCubbins and Schwartz and by Aberbach. The evidence shows that neither factor, however, can be completely ascribed to that motivation, nor can the informational disadvantage element, thus rening, for the intelligence context, the broader literatures explanation of the factors that lead to more or less oversight. Moreover, one way in which intelligence oversight differs from oversight in most other arenas is that, because of the fundamental secrecy of the subject, the oversight style envisioned by McCubbins and Schwartz, of third party watchdogs keeping an eye on intelligence agencies for Congress and warning it of possible violations by setting off alarm bells, is not very feasible. Rather, alarms are largely limited to intelligence failures (Iraqs WMD) or scandals (Iran-contra, Aldrich Ames).13 While the resulting oversight hearings can allow lawmakers the opportunity to boost their image with constituents, intelligence failures, in particular, have also raised difcult questions about the competence and dedication of congressional overseers, a negative ramication that does not t the purported rationale for lawmakers behavior.
Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight (Washington, DC: Brookings Institution 1990). 12 Ibid., p.1913. 13 Loch K. Johnson, A Shock Theory of Congressional Accountability for Intelligence in Loch K. Johnson (ed.) Handbook of Intelligence Studies (New York: Routledge 2007) pp.34360.
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Jurisdictional Complexity The rst major problem with the current system of oversight is a structural one of gerrymandered jurisdictional lines. The two intelligence committees are ostensibly the main congressional intelligence oversight bodies, exercising a type of veto over intelligence programs through their control of the authorization process. However, there are numerous qualiers of this overall arrangement that serve to undermine the overall goal of rigorous oversight. First, the intelligence committees have exclusive authorizing jurisdiction over only a small portion of the overall intelligence community, which now comprises 16 different components, including arms of the Justice, State, Treasury, Homeland Security and Energy Departments and numerous agencies within the Department of Defense (DoD). While the intelligence committees have sole authority over the Central Intelligence Agency (CIA) and the Director of National Intelligence (DNI), they share authorization jurisdiction for the other intelligence agencies with the relevant standing committees. This fragmentation causes a series of problems, beginning with the risk that individual programs can get lost, either accidentally or on purpose, in the slipstream between committees. Committee members either may not want the responsibility of overseeing a potentially risky program, in case they get blamed by the public for it later, or they may just assume that another committee is looking into it. In the late 1990s, for example, the Federal Bureau of Investigations (FBI) counterterrorism reform actions went unreviewed by any congressional committee, largely because the intelligence committees thought the judiciary committees would handle it, while the judiciary committees considered it an intelligence issue.14 This fragmented jurisdiction also means that no one committee has a complete view of the intelligence community to be able to judge priorities and weigh programs against each other in a time of increased need and limited resources. It also increases the cost of oversight to the intelligence community by requiring more ofcials to testify at more hearings and submit more reports.15 Second, in addition to the intelligence committees having to share jurisdiction with other standing committees, they are ultimately subordinate to the armed services committees; because the intelligence budget has always been hidden within the defense budget as a national security matter, the latter must sign off on intelligence authorization bills before the bills go to the full House and Senate for votes. In one indication that their powerful
Amy Zegart, Prepared Statement, US Congress, 110th Congress, 1st session, Senate, Select Committee on Intelligence, Congressional Oversight of Intelligence Activities, S. Hrg. 110 794, 13 November 2007, p.47 (hereafter Senate Hearing 110794). 15 Eric Lichtblau, Complaints signal tension between FBI and Congress, New York Times, 15 August 2005, p.A13; Anne Joseph OConnell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, California Law Review 94 (2006) pp.16934.
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role is not necessarily accompanied by due oversight, however, longtime Armed Services Committee member Sen. John McCain (R-AZ) reportedly told the 9/11 Commission that if his panel spent ten minutes considering the intelligence budget, it had been a good year.16 A third limitation of the intelligence committees oversight power stems from the congressional convention of dividing authorization and appropriation authority. While the arrangement is based on the sound principle that there should be one body overseeing the entire budget to make sure that each programs appropriation makes sense as part of an overall set of national priorities, and while all authorizers are, to some extent, at the mercy of appropriators, this structural feature extracts a higher price in terms of rigorous intelligence oversight than it does on other issues. The appropriations for most intelligence activities are included as a classied section of the defense appropriations bill, meaning that the real control over the intelligence purse lies with the defense subcommittees of the House and Senate Appropriations Committees. Although that control brings with it a recognized oversight responsibility, the structure of the system precludes the defense subcommittees from conducting stringent intelligence oversight. First, the $75 billion intelligence budget comprises around 10 to 12 percent of the defense budget.17 Thus, almost by denition, members of the defense subcommittees give it very little attention because there are so many other big defense spending issues that claim their time. In addition, there is a signicant difference in the number of staff assigned to intelligence issues on the appropriations defense subcommittees compared to the intelligence committees. In August 2009, SSCI had 45 staffers to work on the intelligence budget, to pull it apart and ask tough questions about the priorities, programs and operations embodied in it. In comparison, the Senate Appropriations Defense Subcommittee had just ve staffers who handled intelligence issues, and that was in addition to their responsibilities for some other parts of the defense budget as well. On the House side, the ratio was only slightly better: HPSCI had 35 staffers to focus on intelligence issues, while the appropriations defense subcommittee had ve. While the latter number represents a signicant improvement as a result of a growing recognition of the problem (in 20034, the House Appropriations Defense Subcommittee had exactly one person covering intelligence),18 the comparison with the intelligence committees staff remains stark. Additionally, it is, by and large, the intelligence committee members and staff who are briefed about intelligence matters and who, therefore, can reasonably be said to be
Jonathan Weisman, Democrats reject key 9/11 panel suggestion, Washington Post, 30 November 2006, p.A07. 17 The 1012 percent depends on which of many possible gures one uses for the defense budget. Steven Aftergood, DNI announces $75 billion intelligence budget, Secrecy News, 16 September 2009, 5http://www.fas.org/blog/secrecy/2009/09/75_billion_budget.html4 (5 November 2009). 18 Author telephone interview with former senior HPSCI staffer, 31 July 2009.
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the best informed and prepared to make decisions about the intelligence budget. Given the tangible differences in the committees ability to conduct oversight, particularly on an issue like intelligence that is widely recognized to involve complex and arcane issues, one might expect the authorizers decisions and recommendations to carry relatively more weight. In actual practice, however, the power balance is reversed. Lawmakers on the intelligence panels have long lamented their inferior position relative to the defense appropriators. Lee Hamilton, for example, who chaired HPSCI in 198587, has described being frequently, continually bypassed . . . by the appropriators.19 Although specic examples are rarely made public, a few have surfaced in the public record. In 1992, with the pressure to cut budgets after the Cold War, HPSCI recommended cutting the intelligence budget by ve percent, warning that further cuts would risk severe damage to the ability of the community to provide the intelligence necessary to policy makers. That warning notwithstanding, the appropriators ended up doubling the cuts in a way that then-HPSCI member Larry Combest (R-TX) said a majority of our members Republican and Democrat believe was draconian and haphazard.20 The more common complaint about the appropriators inuence, however, involves their granting more funds than have been authorized (so-called appropriated but not authorized or A not A funds). Section 504 of the National Security Act provides that funds appropriated for intelligence purposes may be obligated or expended only if those funds were specically authorized by the Congress for use for such activities.21 The fact that lawmakers never dened what constitutes authorization, however, has left a loophole. Defense appropriations bills have long included language stating that any funds appropriated for intelligence activities are deemed to be specically authorized by the Congress for purposes of section 504 of the National Security Act of 1947 . . . .22 In other words, whatever is appropriated for intelligence is deemed authorized under Section 504, no matter what the authorization bill says. It is true that if the appropriations bill is signed into law before the intelligence authorization bill (as has usually been the case for the last 20 years), that phrase will also include, until the enactment of an intelligence authorization act. Thus, if the amounts appropriated for intelligence dont comport with those authorized, ofcially the latter trumps the former but, in practical terms, the appropriators still clearly have the upper hand in the relationship. According to a former senior HPSCI staffer, the system that has been in place since the mid-1990s for dealing with the A not A issue is that there is a premium put on close negotiation between the authorizers and
Lee Hamilton, Senate Hearing 110794, p.28. Rep. Larry Combest, Congressional Record, 3 August 1993, p.H5678. 21 50 USC 414(a)(1). 22 See, for example, Section 8152 of Public Law 10339, Department of Defense Appropriations Act, 1994, 11 November 1993.
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the appropriators in an effort to erase any discrepancies between the two bills. The negotiations have been based, however, on the implied understanding that if any differences remain, the appropriators position will win out. As the staffer characterized it, its a matter of the appropriators playing the power card.23 Senator Christopher Kit Bond (R-MO), the vice chairman of SSCI, recounted an A not A example in a November 2007 SSCI hearing. According to Bond, the Clinton administration proposed a new collection program in 2000 that SSCI opposed on the basis of its analysis that the program would cost considerably more than was estimated and that the utility of the data to be collected would not justify the cost. Throughout the next six years, SSCI continued to oppose the program, on a bipartisan basis, and was joined in its opposition by outside panels of policy experts, technical collection experts, the outside technical advisory board of the agency in charge of the program and the rst DNI, John Negroponte. Despite the consistent and widespread opposition, the defense appropriations subcommittee repeatedly funded the program until the plug was nally pulled for good in 2007, after approximately $10 billion had been sunk into it.24 Another facet of the A not A problem stems from the increasing use of emergency supplemental legislation, for which there is no accompanying authorizing legislation and, consequently, no authorization oversight review. Moreover, because they are, by nature, emergency actions, there is an element of time pressure that undermines any effort by the appropriators to conduct their own oversight or to consult with the authorizers. Although there were instances of supplemental appropriations affecting intelligence funding before 9/11, it became recognized as a notable problem for oversight as the Bush administration increasingly resorted to supplemental appropriations as a way to fund the wars in Iraq and Afghanistan. In an effort to make the supplementals more attractive, the administration included intelligence funding which carried with it the politically persuasive ghting terrorism justication. The House intelligence committee registered its concern about the practice in 2003, particularly the fact that even core mission programs were being funded via supplemental appropriations, which was proving an impediment to long-term strategic planning.25 Despite HPSCIs warning, the next year nine members of the committee called attention to the issue again noting, as an example, that the presidents budget request that year had
Author interview, former HPSCI senior staffer, 13 August 2009, Washington, DC. Sen. Christopher Bond, Opening Statement, Senate Hearing 110794, p.9. Although Sen. Bond did not identify the classied program, longtime intelligence analysts have speculated that he was referring to the MISTY stealth satellite program. See Steven Aftergood, Intelligence oversight deected by appropriators, Secrecy News, Federation of American Scientists Project on Government Secrecy, 26 November 2007. 25 US Congress, 108th Congress, 1st session, House of Representatives, Permanent Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2004, H. Rept. 108163, 18 June 2003, p.22.
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covered just 20 percent of the CIAs Counterterrorism Center funding requirements, leaving 80 percent for a supplemental. They further noted that senior intelligence ofcials had informed the committee that receiving their funds in bits and pieces makes it impossible to plan, forcing them to rob Peter to pay Paul until the additional funds arrive potentially jeopardizing key counterterrorism operations.26 The nal factor exacerbating the appropriations defense subcommittees disproportionate inuence on intelligence funding and its deleterious effect on intelligence oversight is that the intelligence agencies know full well which committees control their funding and have grown adept at cultivating the key staff and members of the appropriations subcommittees. The executive branch has also been known to play them off against the intelligence committees so as to diffuse oversight and defray congressional attempts to alter the agencies funding and priorities.27 As former HPSCI chair Lee Hamilton, put it, the intelligence community knows [the structural set-up] and exploits it and the administration knows it and exploits it.28 Access to Information The second category of problems undermining congressional oversight of intelligence stems from the inherent disadvantage of the intelligence committees in gaining access to the information necessary to conduct oversight properly. This problem manifests itself in a variety of ways, none of which were created by the Bush administration but many of which were exacerbated during its two terms. The rst, and most overt, indication of Congress informational disadvantage is that, by virtue of the intelligence agencies being part of the executive branch, the latter starts out the game in essence owning all intelligence information. Although it has a statutory obligation to keep Congress (via the two intelligence committees) fully and currently informed of all intelligence activities . . . including any signicant anticipated intelligence activity,29 the executive has never interpreted that to mean it has to turn over all intelligence information to Congress. For their part, the intelligence committees in principle claim the right of unrestricted access to all intelligence information but they have never sought it.30 The conicts have arisen over just where the line should be drawn and whether the executive branch is giving the committees enough
Minority views, US Congress, 108th Congress, 2nd session, House of Representatives, Permanent Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2005, H. Rept. 108558, 21 June 2004, p.69. 27 Denis McDonough, Mara Rudman and Peter Rundlet, No Mere Oversight: Congressional Oversight of Intelligence is Broken, Center for American Progress, June 2006, p.17. 28 Lee Hamilton, author telephone interview, 3 July 2006. 29 50 USC 413 (a)(1). 30 L. Britt Snider, Sharing Secrets With Lawmakers, Center for the Study of Intelligence, CIA, February 1997, pp.178.
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information to conduct adequate oversight. This issue was thrown into sharp relief in June 2009 by CIA Director Leon Panettas notication of the committees about an already-ended assassination program.31 While it remains unclear just when the CIA should have informed Congress, the bottom line is that members can only ask questions about programs of which they are aware. Moreover, classied information, which by all accounts increased signicantly under the Bush administration, can impede congressional oversight even when it is shared with the committees.32 In a November 2007 hearing, Sen. Sheldon Whitehouse (D-RI) complained that this practice had sometimes approached absurd levels. He described information as wildly over-classied. I have read things on the front page of the New York Times, come into this committee and read them in deeply classied documents.33 In such cases, committee members are prevented from discussing the information because they received it in a classied form, even though it has become public knowledge. It also robs members of one of their oversight tools in the sense that they can, sometimes, make a difference by just going public with something, by just raising hell with something, by just being a thorn in somebodys side. Because you cant go public, it takes a majority of this committee to get any action going, and I dont think the intelligence community is unaware of that fact.34 The executive branch can also keep information from the committees by not providing required reports, denying them reports and information that they request or, most egregiously, by lying, as happened during the Irancontra hearings. Reporting requirements are the focus of a continuing struggle between the committees and the intelligence community; the community cites the costs involved in producing the large number of annual and one-time reports required by the committees, and the committees argue in response that such reports are one way for committee members to get the information they need out of a reticent intelligence community. The communitys record in producing such reports, however, has not been stellar. A SSCI analysis found that between 1 December 2001 and 1 May 2002, the intelligence community was required to submit a total of 84 reports to the committees. Of that number, 18 were late, 8 were incomplete and 51 were not submitted at all. Overall, only seven were completed by the deadline, for an overall record of eight percent
Panetta told the committees that he had just learned of the program, which had begun soon after September 11, 2001, and that he had already formally ended it. The program encountered several difculties and was repeatedly shelved, although never ended, by several of Panettas predecessors, apparently without ever becoming operational. David Ignatius, The CIAs hit team miss, Washington Post, 22 July 2009; Mark Mazzetti and Scott Shane, CIA had plan to assassinate Qaeda leaders, New York Times, 14 July 2009, p.A1. 32 For information on the extent of the classication of information, see Secrecy Report Card 2008, by OpenTheGovernment.org. 33 Sen. Sheldon Whitehouse, Senate Hearing 110794, p.35. 34 Ibid.
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compliance.35 Traditionally, once the committees call enough attention to missing reports, as SSCI did with that analysis, the intelligence communitys completion percentage spikes for a while, but it inevitably falls off again. As for the intelligence community not producing specically requested information, the problem worsened so severely during the Bush years that in late 2007, Sen. Jay Rockefeller (D-WV), then the vice chair of SSCI, described it as the greatest impediment to effective congressional oversight.36 In mid-2008, for example, HPSCI complained that the Bush administration had ignored months of its requests for a brieng on Syrias nuclear program, despite the fact that foreign governments had already been briefed on it.37 Another way in which the intelligence committees are handicapped in terms of acquiring information is through a particular convention known as the Gang of Eight. The National Security Act provides that, in the case of a covert action, if the president deems it necessary in extraordinary circumstances, he can meet his obligation to keep the committees fully and currently informed by notifying just the leadership of each chamber and the leadership of the two intelligence committees, the so-called Gang of Eight, as well as any other members of the congressional leadership he wishes to include.38 According to a former senior HPSCI staffer, it is extremely rare that these briengs dont include the leadership of the appropriations committees and their defense subcommittees, which accounts for why reports sometimes vary about the numbers of people who have received particular briengs.39 Members of Congress are under signicant restrictions at Gang of Eight briengs; no staff can attend and members are precluded from taking notes or disclosing the information to anyone, including other members of the committees or legal counsel. Although these rules have developed over time at the instigation of the executive and are not codied anywhere, members have complied for so long that it is now entrenched practice and hard to reverse. There is also a lesser-known variation known as the Gang of Four brieng, where notication is limited to the chairs and ranking members of the intelligence committees. A holdover from the period before the creation of the intelligence committees, once the Gang of Eight was created for highly sensitive covert actions, the executive began using the Gang of Four for sensitive non-covert action intelligence activities. Although it has no basis in
US Congress, 107th Congress, 2nd session, Senate, Select Committee on Intelligence, To Authorize Appropriations for Fiscal Year 2003 for Intelligence, S. Rpt. 107149, 13 May 2002, p.7. 36 Sen. John Rockefeller, Opening Statement, Senate Hearing 110794, p.4. 37 US Congress, 110th Congress, 2nd session, House of Representatives, Permanent Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2009, H. Rept. 110665, 21 May 2008, p.36. 38 50 USC 413b(c)(2). 39 Author interview, former senior HPSCI staffer, 13 August 2009.
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statute, the leadership of the intelligence committees has generally accepted the practice. The rules of Gang of Four briengs are somewhat more lenient, most notably with committee staff directors sometimes allowed to attend and notes not strictly prohibited.40 These limited briengs present a paradox for Congress. The Gang of Eight arrangement was accepted by the committees as a compromise after the Carter administration had failed to notify them of the Iranian hostage rescue attempt until after it was over. The committees at rst wanted language requiring that the executive notify them in advance of any covert operation. The intelligence agencies and the White House balked, arguing that there were some operations that required the utmost secrecy and that divulging details to all members of the two committees would pose an undue risk. The two sides eventually compromised with the Gang of Eight provision, with Congress calculating that that was at least better than the executive having no obligation to notify anyone on the Hill.41 As SSCI Chairman Birch Bayh put it at the time, If oversight is to function better, you rst need it to function [at all].42 The question is whether that original bargain was a sound one. One problem with the limited briengs stems from how they usually transpire. They tend to be conducted on an urgent basis with individual legislators, who are given no advance notice to enable them to prepare for the issue at hand. Moreover, due to scheduling difculties, the members of the Gang of Eight (or Four or however many) often receive their briengs at different times, even up to a month or two apart. As situations evolve, they can receive different information from other members who have technically received the same brieng.43 As a result of all of these factors, members are very restricted in their ability to understand and question what they are briefed on.44 A larger, related problem stems from the informal rules that the executive branch has imposed on the legislators, most notably in Gang of Eight briengs, including the prohibitions against staffers attending the briengs and note-taking. The members of Congress being briefed are at a signicant disadvantage because, as a result of the wide variety of issues they have to deal with and the overwhelming demands on their time, few are well-versed in the intricacies of intelligence activities. As former SSCI General Counsel and CIA Inspector General Britt Snider explains, these operations are always portrayed in the most benign way possible. If youre not attuned to the pitfalls, you wont know the right questions to ask.45 Without the
40 Alfred Cumming, Gang of Four Congressional Intelligence Notications, Congressional Research Service, R40698, 14 July 2009. 41 Presumably, a similar logic underlies their acceptance of the informal Gang of Four. 42 L. Britt Snider, The Agency and the Hill: CIAs Relationship with Congress, 19462004 (Washington, DC: Center for the Study of Intelligence, CIA 2008) p.283. 43 Author interview, senior HPSCI staffer, 13 August 2009. 44 Bob Graham, former SSCI chair, author telephone interview, 8 August 2009. 45 L. Britt Snider, author telephone interview, 11 August 2009.
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availability of staff expertise or the ability to take notes on complicated briengs, members trying to conduct oversight are effectively hamstrung. At the other end of the spectrum, a former CIA ofcial who has conducted such briengs notes that the briengs can also be quite vague. The former briefer described the briengs on one of the pre-9/11 intiatives to kill Osama Bin Laden as lasting about two minutes over the phone and being virtually meaningless . . . there was no oversight of any kind.46 Another important issue in weighing the impact of limited briengs on the effectiveness of oversight is whether members have reasonable recourse if they object. These limited briengs are, it should be noted, notications and just as is the case when the executive noties the full committees, the legislators have the right to raise questions and concerns but they do not have the right to veto or stop the intended action. The problem is, if they have serious objections to a policy or action raised in a Gang of Eight brieng, their recourse to other legislative tools to do what they think is best is cut off. As Vicki Divoll notes, [t]he framers of the Constitution gave aggregate, not individual, powers to the legislative branch.47 The powers Congress has are wielded either by the two houses as entire bodies or by their committees and subcommittees. Yes, individual members can raise objections at the briengs or write letters of protest to the president, but the chances of them being effective are minimal. If all of the Gang of Eight were to vehemently oppose an activity, an administration would have to think seriously about proceeding against their advice but, again, it is rarely the case that they are briefed together or that they know enough at the time of the brieng, without staff, to raise signicant objections. Furthermore, the classied nature of the information precludes them from leveraging their arguments by trying to convince other members of the committee, much less other members of Congress, the media or the public. It also precludes them from being able to wield Congresss most signicant power, the power of the purse. It is difcult to convince the necessary committee majorities to cut off funding for a program when you cannot describe the risks that you feel it presents. Although there is no formal legal penalty if a legislator chooses to challenge the executive by spreading briefed information in an effort to oppose a particular policy (each chamber does have its own internal penalties), they would be risking the trust that undergirds the entire oversight system. Once that trust is eroded, you reduce [the executives] willingness to share the information you need . . . . You can battle them on it but the bottom line is that the committees are dependent on the executive.48 The controversy regarding limited briengs has been dramatically highlighted recently; rst, when the Bush administrations warrantless wiretapping program came to light in December 2005, again in early 2008 with the disclosure that the CIA had destroyed videotapes of detainee
46 47
Author telephone interview, former intelligence ofcial, 29 July 2009. Vicki Divoll, Congresss torture bubble, New York Times, 12 May 2009, p.A31. 48 Author interview, former senior SSCI staffer, 31 July 2009.
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interrogations, and then in early 2009 with the volatile issue of whether the Gang of Eight, including Speaker Nancy Pelosi (D-CA), was duly briefed in 2002 on enhanced interrogation techniques. The administration defended itself from the public furor each time by asserting that it had notied Congress via the limited briengs, thus implying that Congress had approved the program.49 The Democratic members involved, under re for apparently having approved the administrations actions, desperately tried to explain the impact of the restrictions they had been under. In expressing his frustration over the situation in November 2007, Sen. Rockefeller said, You better believe that when I was one of four being briefed on certain programs and they were appearing on television all the time saying, oh, the Congress has been briefed, and Id love to discuss some of those briengs to you and I wont do it, but they were supercial, they were inconsequential.50 A nal problem with the limited briengs is the increasing degree to which they have been used, particularly the informal Gang of Four briengs. Given the secrecy involved, it is difcult to determine objectively their increased frequency and whether they have been used more widely than they should have been (that is, for situations not involving extraordinary circumstances). Incoming CIA Director Leon Panetta captured the overwhelming consensus of opinion, however, when he said during his conrmation hearing that the process was overused by the previous White House and, therefore, abused.51 Panetta signaled his intent to keep the committees more fully informed but, aside from his well-publicized notication regarding some form of an assassination program, it is too early to tell how well the intelligence community is keeping his promise. Partisanship The third major factor that scholars have identied as having undermined the intelligence committees effectiveness is their increasing partisanship.52 When the committees were rst created in the mid-1970s, it was done with a careful eye to ensuring that they be run in a nonpartisan way, particularly on the Senate side. They were established as select committees whose members are selected by the party leadership, rather than the party caucuses, as is the case with standing committees. The original goal was for the leadership to appoint more moderate members who would run the committees in a nonpartisan way. On the Senate committee, there is just a one-vote
At time of writing, it is as yet unclear which were Gang of Four or Eight, and whether they were appropriately such. 50 Sen. Rockefeller, Senate Hearing 110794, p.26. 51 Statement for the Record of Leon Panetta Before the Select Committee on Intelligence, United States Senate, 5 February 2009, p.4. 52 Marvin C. Ott, Partisanship and the Decline of Intelligence Oversight, International Journal of Intelligence and Counterintelligence 16/1 (2003) pp.6994; Matthew B. Walker, Reforming Congressional Oversight of U.S. Intelligence, International Journal of Intelligence and Counterintelligence 19/4 (2006) pp.70220; Snider, The Agency and the Hill.
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difference between the parties, regardless of their relative strength in the parent body, and the senior member of the opposition party is ofcially the vice chair, rather than the ranking minority member, chairing the committee in the absence of the chair. In addition, eight of the members must also serve on the related standing committees: two each on Appropriations, Armed Services, Foreign Relations and Judiciary. Finally, the committee originally had a single, nonpartisan staff, rather than separate majority and minority staffs, and made it a priority to hire people with a strong knowledge of, or background in, intelligence. In keeping with the Houses generally more partisan history, HPSCI departed from some of these efforts at nonpartisanship. Each partys representation reects its proportion in the overall House, there is a ranking member rather than a vice chair, and it was established with separate majority and minority staffs. Overall, both intelligence committees were notable for their general lack of partisanship through their rst 15 years of existence. Much of the credit for that and, in fact, for establishing the committees credibility with both the intelligence community and other committees on the Hill, has gone to the early chairmen of the committees. Scholars are unanimous that chairs like Sen. David Boren (D-OK) and Rep. Edward Boland (D-MA) played crucial roles in fullling Congress original goal of bipartisanship, at least to the extent possible in a body that is political by denition.53 Eventually, however, partisanship began to creep into the committees. While the Reagan administrations support of the contras rst injected partisan wrangling, it did not cause lasting damage. The rst real turning point on the Senate side was during the nomination hearings for Robert Gates to be George H.W. Bushs Director of Central Intelligence (DCI) in 1991. Gates was dogged by suspicion that he had lied to Congress about his knowledge of the Iran-contra affair and charges from within the CIA that he had politicized intelligence analysis regarding the Soviet Union. As the threat to Gates nomination mounted, the White House informed Republican members of the committee that the President would go to the mat for Gates, and wanted his nomination conrmed at all costs.54 This marked the rst time an administration had demanded party unity on the committee, and the Republicans responded. Predictably, their approach triggered a similar response on the part of some of the Democrats, leading to the rst notable partisan clash in SSCIs history. Although Gates was conrmed in the end, largely through the efforts of Chairman Boren (a Democrat), an invisible line had been crossed.55 The change was slow and subtle but it was
See, for example, Snider, The Agency and the Hill; Loch Johnson, Ostriches, Cheerleaders, Skeptics, and Guardians: Role Selection by Congressional Intelligence Overseers, SAIS Review 28/1 (2008) pp.93108. 54 Ott, Partisanship and the Decline of Intelligence Oversight, p.82. 55 Johnson, Presidents, Lawmakers, and Spies, p.831; Melvin A. Goodman, Failure of Intelligence: The Decline and Fall of the CIA (New York: Rowman & Littleeld 2008) pp.2878.
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no longer unprecedented to view issues before the committee through a partisan lens and, gradually, as new staff needed to be hired, it was not out of the question to consider party allegiance as equal to or even more important than intelligence background. Another turning point in the increasing partisanship on SSCI came with another nomination, that of National Security Adviser Anthony Lake to be DCI in 1997. Sen. Richard Shelby (R-AL) had just recently taken over as chair and he made clear from the outset that he was aiming for Lake, a function of both his generally hostile attitude toward the Clinton administration and of the latters failing to notify Congress regarding the CIAs role in arms trafc to Bosnia.56 George Tenet, who at the time was the Deputy Director of the CIA, recounts in his memoir that soon after Lakes nomination was announced, Shelby told him, George, if you have any dirt on Tony Lake, Id sure like to have it.57 The Lake hearings have been described as the most bitter public exchanges among lawmakers in the Committees history and SSCI has never really recovered from them .58 For the GOP majority, the committee came to be viewed as a club to wield against the Clinton administration.59 The situation improved somewhat when control of the Senate switched back to the Democrats in May 2001 when Republican Jim Jeffords (VT) switched his afliation to Independent, as new chair Bob Grahams (D-FL) approach was decidedly less partisan. In late 2003 and 2004, however, relations on the committee again became strained when policy and politics collided. During this period, there was increasing controversy over the war in Iraq and the integrity of the underlying intelligence. At the same time, there was a tight presidential campaign in which the Iraq intelligence question was playing a role. The administrations use of intelligence in the run-up to a war would certainly seem to be a valid topic for congressional oversight, but it was impossible to separate that from its potential for scoring political points. Thus, as the (back in the minority) Democrats on the committee pushed for an investigation, the Republicans pushed back. The inghting became so bad that Senate Majority Leader Bill Frist (R-TN) stepped in to separate the two, forbidding the committee from continuing its investigation for a time. Eventually, the committee reached a compromise; it would conduct the investigation in phases, with the phase concerning the administrations use of intelligence not due until after the election.60 On the House side, even though HPSCI was not as consciously structured to be nonpartisan as its Senate counterpart, it actually did not succumb to
Gregory C. McCarthy, GOP Oversight of Intelligence in the Clinton Era, International Journal of Intelligence and Counterintelligence 15/1 (2002) pp.3438; John Prados, Safe for Democracy (Chicago: Ivan R. Dee 2006) p.619. 57 Quoted in Snider, The Agency and the Hill, p.86. 58 Johnson, Presidents, Lawmakers, and Spies, p.831. 59 Ott, Partisanship and the Decline of Intelligence Oversight, p.84. 60 Snider, The Agency and the Hill, p.89.
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the lure of partisanship until considerably later than SSCI. This was due in part to the long-term initial chairmanship of Rep. Boland (197784), who set a tone of professionalism and nonpartisanship. Other factors that also played a role in the delayed onset of partisanship on the House side are that Boland was succeeded by a series of six chairmen, all of whom were nonconfrontational and none of whom served for more than two years, and that HPSCI did not have to deal with the nomination conrmations that had proved so divisive on the Senate side. Partisanship began to play more of a role on HPSCI under the chairmanship of Porter Goss (R-FL), who served from 1997 until 2004. Goss did not start out as a particularly partisan chair but his behavior underwent a marked change in late 2003. As the alleged weapons of mass destruction in Iraq failed to materialize and Democrats on the committee pushed for an investigation of the intelligence failure, Goss managed to preclude HPSCI from undertaking any investigation at all. In early 2004, he began making uncharacteristically partisan public statements, attacking both John Kerrys national security record and directing all blame for the intelligence mistakes in Iraq at the intelligence community rather than the administration.61 Because Goss had already announced he was going to retire from Congress after the 2004 election, and because speculation was rampant that George Tenet was not going to last much longer as DCI, most observers interpreted Goss change of tone as a play for Tenets job. After the nadir of 2004, partisanship on both committees receded somewhat, although by no means signicantly. Each revelation of a controversial Bush intelligence program re-stirred the pot, particularly the 2009 question of whether or not Speaker Pelosi had known about and acquiesced in the enhanced interrogation techniques. The rise in partisanship has impeded the committees effectiveness in several ways. First, they have not been able to accomplish as much when they cant agree on what to investigate or what to include in legislation. The most serious manifestation of this, of course, has been Congress failure to pass an intelligence authorization bill since December 2004. But it has also affected much of the other oversight work the committees should have been doing. Moreover, other committees have been more than happy to ll the void created by their inaction, which further erodes the intelligence committees authority over the long term. Overall: The purpose of oversight also became skewed. Rather than a constructive collaboration to tackle genuine, long-term problems, oversight became a means of shifting political blame, as the circumstances required, either to the incumbent administration or away from it.62
61 62
Ibid. Ibid., p.90.
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Another cost of the rising politicization has been its effect on the committees delicate relationship with the intelligence community. One of the greatest hurdles legislators faced when they rst created the oversight committees was the intelligence communitys fear that politicians most important priority is political advantage rather than the national interest and, therefore, that they inherently could not be trusted with sensitive information. That was gradually overcome through the careful, nonpartisan approach taken by the early chairmen and members on the committees and their excellent track record in keeping secrets.63 But the partisanship that has recently stymied the committees reinforces the worst stereotypes about members of Congress, undermining the intelligence communitys respect for the oversight enterprise. Once intelligence ofcials start to have doubts about the motives of congressional overseers who are asking for information, they are that much less likely to provide it. As Marvin Ott, a former SSCI staffer, characterizes the problem, once Congress loses that trust, [t]he reaction in the community is predictable: Oversight is no longer an asset, its now a problem; its something to be stonewalled, to be slow-rolled, to be manipulated if you can, and the sort of collaborative, mutual efforts to solve practical problems facing intelligence in the country, that goes away.64
Recent Changes As its major recommendation to x what it called the dysfunctional system of congressional intelligence oversight, the 9/11 Commission suggested that Congress adopt one of two solutions: either combine the intelligence committees into one (smaller) joint authorization committee, modeled after the defunct Joint Committee on Atomic Energy (JCAE), or consolidate the authorization and appropriation functions in each chambers intelligence committee. The joint committee proposal has been widely criticized because it is hard to see how oversight will be strengthened with fewer eyes devoted to the problem. While the second option is still raised by some, it is generally viewed as a nonstarter simply because the appropriations committees will not give up their pieces of the pie. In their follow-up work with the 9/11 Discourse Project, the 9/11 Commissioners suggested a third alternative: that each house should create a separate appropriations subcommittee on intelligence. While not vesting the intelligence committees themselves with appropriating power, this option
Loch K. Johnson, Governing in the Absence of Angels: On the Practice of Intelligence Accountability in the U.S. Congress, Woodrow Wilson Center Congress Project, 9 May 2003, p.18. 64 Matt Korade, Intelligence oversight gets a fresh look as panel takes up authorization bill, CQ Politics, 29 April 2008, 5http://www.cqpolitics.com/wmspage.cfm?docIDhsnews0000027126634(15 October 2008).
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would ensure that members and staff focused on intelligence were overseeing intelligence appropriations.65 The Commission on the Prevention of WMD Proliferation and Terrorism endorsed this recommendation in its World at Risk report in December 2008 and signicantly strengthened it by specifying that the new subcommittees should have responsibility for both parts of the intelligence budget, the National Intelligence Program (NIP) and the Military Intelligence Program (MIP).66 Although they have not implemented the 9/11 Commissions original recommendations, both chambers have made some changes in their intelligence oversight arrangements. The House made the most signicant change when newly-elected Speaker Pelosi established an advisory Select Intelligence Oversight Panel (SIOP) on the Appropriations Committee as part of her rst 100 days agenda. The new subcommittee has 13 members with an eight-to-ve interparty ratio, including three representatives of HPSCI and the chair and ranking member of the defense subcommittee. Designed as a hybrid panel that would increase the interplay and communication between HPSCI and the Appropriations Committee but not encroach on the latters turf too much, SIOP is authorized to study and make recommendations to the Appropriations Subcommittee on Defense on the annual intelligence appropriations bill. The defense subcommittee, however, retains its authority to report the bill to the full committee.67 While the panel has, to date, worked better than many expected and has increased the cross-pollination among the committees, it remains unclear just how much authority SIOP has independent of the defense subcommittee, given that the powerful chair of the appropriations defense subcommittee, is a member. On the Senate side, attempts at reform have come in spurts. Senate Resolution 445, adopted in October 2004, ended the eight-year limit for senators serving on the intelligence committee (HPSCI retains its limit of not more than four Congresses, although the chair and ranking members are exempt). Originally adopted as protection against members being co-opted by the intelligence agencies, term limitations are now widely seen as having the greater cost of preventing committee members from developing the requisite expertise in a highly sophisticated subject area. Resolution 445 also reduced the size of the committee from 17 to 15 and elevated the committee
65 9/11 Public Discourse Project, Report on the Status of 9/11 Commission Recommendations:Part II: Reforming the Institutions of Government, 20 October 2005, p.8. 66 Commission on the Prevention of WMD Proliferation and Terrorism, World at Risk: The Report of the Commission on the Prevention of WMD Proliferation and Terrorism (New York: Vintage 2008) p.90. The NIP funds those agencies that provide intelligence to support national policy makers, and the MIP supports military operations and activities. Most past reform proposals do not specify which parts of the budget they would apply to, possibly anticipating pushback from the defense appropriations subcommittees over the MIP. 67 Frederick M. Kaiser, Congressional Oversight of Intelligence: Current Structure and Alternatives, CRS Report RL32525, Congressional Research Service, 16 September 2008, p.18.
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to category A assignment status (under Senate rules, senators usually can serve on only two A committees).68 Resolution 445 also created a new intelligence subcommittee within the Appropriations Committee that would be in charge of appropriations for the NIP intelligence budget and would, therefore, be considerably stronger than the Houses SIOP (although weaker than that proposed by the World at Risk report).69 Although technically created by the resolution, however, that subcommittee still does not exist. Unsurprisingly, it has been strongly opposed by those who would lose turf to its creation, namely, the members of the appropriations defense subcommittee. In addition, the appropriators in general dont like being told how to organize their committee and resent the implicit criticism that they have not done a good job of appropriating intelligence funds.70 In September 2008, Senators Rockefeller and Bond cosponsored a resolution reminding the Senate of Resolution 445 and (again) creating the intelligence subcommittee. In introducing the measure, Bond characterized it as a less disruptive alternative to the bolder options recommended by the 9/11 Commission.71 On cue, the then-chair and ranking member of the Appropriations Committee strongly opposed the subcommittee, stating that they did not understand how it would do anything but minimize the free exchange of ideas and hamper the debate which exists in the current system.72 That resolution never made it to a vote, but SSCI included yet another call for the subcommittees creation in its version of the 2010 intelligence authorization bill. All too predictably, though, that section was removed from the bill before its passage by the full Senate in September 2009. The bottom line is that no one in a position to force the issue on the powerful appropriators has yet been willing to do so. Given the difculties of achieving any structural change, then-SSCI Chair Rockefeller took a different tack in 2007 by proposing a Memorandum of Agreement (MOA) between SSCI, the Appropriations Committee and its Defense Subcommittee. The MOA, which was signed by all of the chairs and ranking minority members of the three committees except, notably, for the
Paul S. Rundquist and Christopher M. Davis, S.Res. 445: Senate Committee Reorganization for Homeland Security and Intelligence Matters, CRS Report RS21955, Congressional Research Service, 14 October 2004, p.2. 69 The intelligence budget is broken into two categories: the National Intelligence Program (NIP), which supports those agencies that provide intelligence to support national policy makers; and the Military Intelligence Program (MIP), which supports military operations and activities. Under Resolution 445, appropriations for the MIP would remain the purview of the defense subcommittee. 70 David Grannis, Majority Staff Director, Senate Select Committee on Intelligence, author telephone interview, 7 August 2009. 71 Sen. Christopher Bond, US Congress, 110th Congress, 2nd session, Senate, Senate Resolution 655 To Improve Congressional Oversight of the Intelligence Activities of the United States, Congressional Record, vol. 154, 11 September 2008, pp.S8419. 72 Sen. Thad Cochran and Sen. Robert Byrd, letter to Sen. Harry Reid and Sen. Mitch McConnell, 5 April 2008 (Cochran and Byrd responded to the idea when it was rst proposed in March 2008 by Reid and McConnell).
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vice chair of SSCI, Sen. Bond, was an attempt to improve coordination and transparency between the three panels. Like Pelosis SIOP, it was an effort to strengthen oversight without tripping the jurisdictional mineeld. The MOA provided that: the staff of each committee be notied and allowed to attend the intelligence hearings of the other; each SSCI member who is also an appropriator be allowed to bring his or her intelligence staff members to Appropriations Committees hearings and markups; all senators and cleared staff of one committee be allowed to review the bill, report, and classied annex of the other before action is taken; and the chairmen and ranking members of each committee be given the opportunity to appear before the other panel to present their views prior to the markup of either the intelligence authorization or appropriations bills.73 There are varying assessments of the MOAs effectiveness. On the one hand, Rockefeller, its author, contends that the agreement has made great strides toward bringing our committees together in a unity of effort that was lacking before.74 Vice Chair Bond, on the other hand, argues that the MOA has been ineffective on each of its four points.75 Other observers tend to split the difference; while it has provided the basis for some improvement in communication between the two committees, there has been little follow-up to ensure its enforcement and its impact has been marginal at best. Possible Solutions The history of congressional intelligence oversight and the dismal track record of attempts to reform it suggest that an important preliminary step to any future reform attempts involves educating members of Congress, policy makers and the public about the nature of intelligence itself. Intelligence is a complex issue and few who are not members of the intelligence community understand it well. Since 9/11 and the war in Iraq placed intelligence issues front and center of the national debate, many more people talk about intelligence as if they understand it, but the conventional expectation is still that if the intelligence agencies are doing it right, then there will be no surprises and no attacks. That belies a fundamental misinterpretation of just how much intelligence can do. As Richard Betts has argued, intelligence failures can never be completely prevented.76 The continued prominence of that expectation, however, means that when there are events that were not predicted or attacks that were not prevented, everyone assumes that mistakes were made and that someone must be to blame. That reaction often both reinforces partisanship on the committee and lends an adversarial tone to the committees relationship with the intelligence community, both of which complicate the oversight task. Some of this education could be
Sen. Rockefeller, Senate Hearing 110794, p.3. Ibid. 75 Sen. Christopher Bond, Senate Hearing 110794, p.8. 76 Richard K. Betts, Analysis, War and Decision: Why Intelligence Failures are Inevitable, World Politics 31/1 (1978) pp.6189.
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provided in the form of training for members of the intelligence committees and even policy makers in the White House.77 Another necessary form, however, is for committee members and intelligence ofcials to raise public awareness of the complexities of intelligence by highlighting the issue in public comments and to the media. Leadership Congress will not be able to fulll its oversight obligation effectively until the authorization committees have more authority with both the intelligence community and the rest of Congress itself. The single most important step in achieving this centers on strengthening the leadership of the committees. That step begins with the leadership of each chamber recognizing the importance of returning to the original design and appointing intelligence committee chairs who are moderate, responsible, dedicated and committed to the notion of nonpartisan oversight. Two recent historical overviews of congressional oversight present persuasive arguments for the crucial role played in the process by the intelligence chairs.78 Easier to achieve than structural or statutory changes, more effective leadership could also play a critical role in either accomplishing structural or legislative change or, at the very least, strengthening oversight in their absence. One of the most important elements of making oversight more effective is good relationships among the chairs (and staff directors) of the committees involved. In describing how he dealt with HPSCI being bypassed by the appropriators, Lee Hamilton explained, I dealt with it by very, very close contact, consultation, with the chairman of the Appropriations Committee and the chairman of the Defense Subcommittee. And I tried to persuade them of the value of the committee recommendations.79 Strong, nonpartisan leadership on the intelligence committees will also go some way toward reasserting their authority in relation to the executive branch. While the committees will always be at an informational disadvantage, they have gradually given ground on the issue over the years; as the executive branch has reduced its openness to the committees, the legislators have largely acquiesced, reluctant to push back. Reclaiming some of that lost ground requires committee chairs who can assert positions without being able to be dismissed as merely pressing a partisan issue. Structural changes In terms of structural alterations, any attempt to signicantly strengthen the intelligence committees roles will entail encroaching on some other
Bob Graham with Jeff Nussbaum, Intelligence Matters (Lawrence, KS: University Press of Kansas 2008) p.266. 78 Johnson, Ostriches, Cheerleaders, Skeptics, and Guardians; Snider, The Agency and the Hill. 79 Sen. Hamilton, Senate Hearing 110794, p.28.
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committees jurisdiction. Senator Pat Roberts (R-KS) neatly summed up the difculty that poses: The No. 1 issue for any chairman of any committee is that you dont give up your turf under any circumstances not a spadeful.80 Moreover, the armed services and appropriations committees have had some control over the issue since the CIA was created in 1947.81 Thus, now that many want to strengthen the intelligence committees by consolidating jurisdiction under them, it is no surprise that these other committees are reluctant, to put it mildly, to give up any of their authority. From an oversight perspective, the soundest option is to create intelligence subcommittees on the appropriations committees, an alternative that has already been formally adopted by a majority of the Senate yet still does not exist. If anything, creating its analog in the House would be even more difcult, given the power of that chambers defense appropriators. If strengthening congressional intelligence oversight is ever to even have a chance of working, reformers have to build political support for the idea, and the key to drumming up political support is education about the necessity of conducting robust intelligence oversight and how important reforming jurisdiction is in achieving that goal. Just as revelations about the executives abuses of its intelligence powers in the 1970s eventually led to the creation of the intelligence committees (which necessarily entailed powerful committees ceding some jurisdiction), it is possible that the revelations concerning the Bush administrations most controversial programs and the weaknesses of legislative oversight that those have exposed will provide the necessary impetus to allow some further changes. Limited Briengs If nothing else, the mid-2009 controversy surrounding the briengs on enhanced interrogation techniques threw a spotlight on the problems with the Gang of Eight (or Four) briengs. In response, both intelligence committees proposed stricter rules for such limited briengs in their 2010 intelligence authorization bills. Most knowledgeable observers agree that there is a role for a limited brieng arrangement, but contend that the guidelines governing its use need to be tightened so that they are used more judiciously. A rst step, one included in both houses 2010 bills, is to require the executive to notify the other members of the committee whenever there is a limited brieng. As it stands now, the other members of the committees have no way of knowing how often such briengs are being used. Other commonly mentioned principles for tightening the rules include that the extraordinary circumstances that allow for Gang of Eight briengs on covert actions be more explicitly dened to be limited to situations involving only the gravest situations, such as risk to life and that they should only be used for a limited duration. The use of limited briengs for a multi-year
Helen Fessenden, Sept. 11 Commissions proposals spur urgency, caution in congress, CQ Weekly, 24 July 2004, p.1815. 81 Snider, The Agency and the Hill, p.40.
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operation such as the warrantless wiretapping program, for example, is widely seen as having been an abuse of the system. Another important necessary step that has tended to be masked by the focus on the Gang of Eight is that the provisions for Gang of Four briengs need to be codied and made similarly explicit. It is also imperative that senior committee staff (namely, the staff directors and legal counsels) be allowed to attend. As explained above, their presence is a critical part of the legislators ability to oversee and, moreover, there is no good reason to preclude them since they have the necessary security clearances and deal with top secret material all the time. According to a senior HPSCI staffer, by the summer of 2009, the situation had improved somewhat in response to escalating members protests and staff directors were sometimes being allowed to attend,82 but it needs to become the rule rather than the exception. Finally, as the CIAs error-riddled attempt to document who received what briengs on interrogation techniques showed in 2009, there is a dire need for more accurate record-keeping.83 Such records could be classied, but both sides should have the opportunity to sign off on or record their objection to the notes, and copies should be kept at the committees secure facilities as well as at the CIA. Engagement One nal area that requires attention is that of member engagement. As many scholars and practitioners have noted, conducting oversight of something as complex as intelligence requires a considerable time commitment, but getting members to make that commitment is difcult given that, as former senator Bob Graham put it, [t]here are no turkeys to be handed out that you can talk about.84 There is, in other words, very little in the way of the tangible payoffs to take back to ones constituents that other committees provide to induce member engagement. So, what can be done? First, all the more reason for the leadership to select the chairs and members of the committees carefully, with an eye towards their commitment to intelligence and oversight. Second, in the vein of creating incentives for members, Loch Johnson recommends increasing recognition for those who perform well as overseers, in terms of increased perks dispensed by the leadership, media coverage of oversight activities and perhaps public interest groups awarding an Overseer of the Year award to raise public awareness.85 A third approach to the problem is to increase the transparency and accountability of the committees themselves. There has been a disturbing
Author interview, senior HPSCI staffer, 13 August 2009, Washington, DC. Pamela Hess, Congressman, CIA dispute brieng list accuracy, USA Today, 19 May 2009, 5http://content.usatoday.net/dist/custom/gci/InsidePage.aspx?cIdhometownlife&sParam 30791081.story4 (accessed 11 August 2009). 84 Bob Graham, author interview, 8 August 2009. 85 Johnson, Ostriches, Cheerleaders, Skeptics, and Guardians, p.5.
83 82
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trend toward holding hearings in closed session, even the markups regarding the unclassied legislative parts of the annual authorization bills (as opposed to the classied budgetary gures). As a result, even other members of Congress, not to mention the public, are unaware of whats included in the public part of the bill until it is led. [T]he result is often, inevitably, either little or no public or congressional debate, or debate that is based more on emotion than on facts.86 Moreover, there is no public record of which members attended closed hearings and briengs, meaning that they are not held accountable in any way for not attending. And not attending becomes a problem, according to former SSCI staff director Charles Battaglia. While most members usually attend almost all intelligence hearings their rst one or two years, after that attendance can drop precipitously, as the details involved get too arcane and technical and oversight turns out to be not as sexy as they thought it would be.87 One way to increase members accountability in closed hearings is to require a public attendance record. Conclusion It is no secret by now that reforming congressional oversight of intelligence is extremely difcult. The current system has been undermined by a toxic combination of problems: the intelligence committees inherent informational disadvantage in relation to the executive branch, the jurisdictional morass in which the committees must operate, and their own internecine partisanship. While there are tangible changes that could be made with varying probabilities of success, the critical ingredient in strengthening the oversight system is to emphasize the development of strong, nonpartisan committee leadership. Another important element in achieving oversight reform will be recognizing the importance of educating all parties, from the public to the policy makers, about the inherent limitations of intelligence and the crucial role that strong congressional oversight should play in doing it well.
86 87
Spaulding, Building Checks and Balances, p.77. Charles Battaglia, former SSCI Staff Director, author telephone interview, 5 August 2009.

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Intelligence and National Security