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

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Congressional Oversight ofIntelligence: Is the Solution Part of the

Problem?

JENNIFER KIBBE

ABSTRACT After presenting evidence that the current system of congressionaloversight of intelligence is failing, this article analyzes how the system has beenundermined by a toxic combination of problems: the intelligence committees’ inherentinformational disadvantage in relation to the executive branch, the jurisdictionalmorass in which the committees must operate and their own internecine partisanship.The article discusses a range of specific changes that could be made, but concludes thatthe critical ingredient in strengthening the oversight system is to emphasize thedevelopment of strong, nonpartisan committee leadership.

Introduction

The congressional intelligence committees have come under considerable firein the last few years for not conducting robust investigations into majorintelligence failures (the pre-Iraq war intelligence) and for being tooacquiescent in the Bush administration’s controversial policies regardinginterrogations, secret prisons and warrantless wiretapping. The calls forreform of congressional oversight have echoed from all corners of thedebate. But the issue of congressional oversight of intelligence is complex,combining as it does the political and structural complexities of Congresswith the difficulty of monitoring something of strategic significance that, bydefinition, operates in the shadows. Consequently, attempts to reformcongressional oversight are inherently difficult. As just one measure of thedifficulty, members of Congress introduced over 200 bills between 1947 and1975 aimed at expanding their supervision of the intelligence community. Ofthose, exactly one was adopted.1 One of the most prominent voices callingfor reform recently has been The National Commission on Terrorist AttacksUpon the United States (9/11 Commission). The commissioners also noted,

1Harry Howe Ransom, ‘Congress and the Intelligence Agencies’, Proceedings of the Academyof Political Science 32/1 (1975) p.162.

Intelligence and National SecurityVol. 25, No. 1, 24–49, February 2010

ISSN 0268-4527 Print/ISSN 1743-9019 Online/10/010024-26 ª 2010 Taylor & Francis

DOI: 10.1080/02684521003588104

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however, that of their 42 recommendations, those ‘strengthening congres-sional oversight may be among the most difficult and important’.2

Despite the difficulty involved, however, something must be done. The lastseven years have shown that intelligence is more crucial than ever to nationalsecurity, but as the executive branch and the intelligence community try tomaximize the utility of intelligence in meeting national security needs, it isimperative that the congressional overseers meet their obligations aswell. The importance of legislative oversight of the executive branch ingeneral has long been recognized. ‘Quite as important as legislation’,noted Woodrow Wilson, ‘is vigilant oversight of administration’.3 In theintelligence arena, however, congressional oversight is at an added premium.The first, most obvious reason is the inherent secrecy of the subject. In otherareas, such as the environment or banking, the media plays a valuable role inhelping Congress monitor the actions of the federal government on behalf ofthe public. In the largely classified world of intelligence, in all but a fewexceptional cases, the media is effectively precluded from playing thatsupporting role, thus enhancing the importance of legislative oversight.

A second less recognized but equally important reason that oversight is socritical to the intelligence enterprise is that, because ‘ . . . the intelligencecommunity is constrained in its ability to convince the American public thatit can be trusted and deserves their support’, Congress also plays animportant role in explaining and representing the intelligence community tothe public.4

A third reason legislative oversight is so important is that, done well, ithelps to improve the intelligence product, whether that means collection,analysis or covert action. When administration and intelligence officialsknow that they will have to explain a funding choice or particular operationto Congress, it has the effect of adding a layer to their own internal vetting.

This article explains the major problems with the congressional oversightsystem, analyzes why it is so hard to reform, and examines what constructivesteps might be taken to improve the situation.

Symptoms of a Problem

Evidence that congressional oversight of intelligence is not working well isnot hard to find. One of the intelligence committees’ main responsibilities isto pass an intelligence authorization bill every year, the main vehicle throughwhich Congress makes its will known to the intelligence communityregarding all aspects of intelligence, including strategy, priorities and budgetlevels. For the past four years (FY2006–FY2009), however, the Senate Select

2National Commission on Terrorist Attacks Upon the United States, The 9/11 CommissionReport (New York: W.W. Norton 2004) p.419.3Woodrow Wilson, Congressional Government (Boston: Houghton Mifflin 1885) p.297.4Suzanne E. Spaulding, ‘Building Checks and Balances for National Security Policy: The Roleof Congress’, Advance: The Journal of the American Constitution Society Issue Groups 2/2(2008) p.76.

Congressional Oversight of Intelligence 25

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Committee on Intelligence (SSCI) and the House Permanent SelectCommittee on Intelligence (HPSCI) have been unable to pass an authoriza-tion bill, the first times that this has happened since the committees werecreated in the mid-1970s. The bills have been the victims of partisanwrangling over controversial issues, including interrogation policy andwarrantless wiretapping. However important the particular issue at handmay be to either side, though, the ultimate cost of not passing anauthorization bill is that the intelligence committees cede having a formalsay on any intelligence issue. As Rep. Pete Hoekstra (R-MI) explained, notpassing an authorization bill means that Congress is ‘not able to be a fullparticipant in that dialogue, and the executive branch can disregard us . . . .So we are irrelevant in that dialogue, and we can’t have an impact’.5

Another important aspect of legislative oversight is holding hearings andconducting investigations into intelligence matters. At a time when theUnited States suffered two major intelligence failures, the 9/11 attacks andthe nonexistent weapons of mass destruction (WMD) in Iraq, a robustoversight process would have led to investigations of both. While SSCI andHPSCI did form a Joint Committee to investigate 9/11, it spent so much timeputting out brushfires over its first staff director (who eventually resigned)and alleged leaks that it ran out of time and ended up having to call for thecreation of a special commission to continue its work (what became the 9/11Commission).6 As for the Iraq WMD question, HPSCI did not conduct anyinvestigation and SSCI, after months of partisan bickering, managed to agreeon a two-phase investigation, the first into the intelligence community’sanalysis of the issue and the second into the administration’s use of theintelligence, although the second report was not issued until June 2008.

In addition to the lack of investigation of these episodes after the fact, theintelligence committees’ lack of oversight before the problems arose is alsocause for concern. Regarding 9/11 for instance, the responsibility for raisingquestions about what threats the US faced during the 1990s, whetherterrorism was a more serious issue than was generally thought and whetherthe intelligence community and executive branch were planning appro-priately to meet it lay partly with the congressional committees. On Iraq’sWMD, not only can one criticize the committees for a reluctance toinvestigate the episode, but there is also fair criticism to be raised that theyhad particular responsibility for evaluating the intelligence before the war.The Senate intelligence committee did commission the October 2002National Intelligence Estimate (NIE) on Iraq, but once it was completed,only six senators and a handful of representatives read the entire 92-pagedocument (it is unknown how many of those were among the 39 members ofthe two intelligence committees), as opposed to the 5-page executive

5Rep. Pete Hoekstra, ‘Intelligence Reform and Oversight: The View From Congress’, Councilon Foreign Relations Meeting, 26 June 2008.6Loch K. Johnson, ‘Presidents, Lawmakers, and Spies: Intelligence Accountability in theUnited States’, Presidential Studies Quarterly 34/4 (2004) p.832.

26 Intelligence and National Security

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summary, which eliminated most of the caveats and dissents included in thefull report.7

Congress’ failure to conduct rigorous oversight investigations goes beyondthese two cases, however. The intelligence committees have been largelymum, at least in open hearings, on many of the controversial policies that theBush administration pursued, including warrantless wiretapping, allegedtorture and interrogation, and rendition and the CIA’s secret prisons. Onprecisely those issues where one would expect the intelligence committees tolead investigations after these programs came to light, they have been mute,allowing other committees to fill the void, as the Senate Judiciary Committeehas done on the warrantless wiretapping issue.

One final indication of the weakened authority of the intelligencecommittees can be found in the fact that, once the Senate finally decidedto attempt to reform the intelligence community, in the wake of the 9/11Commission’s report, the leadership put the Government Affairs Committeein charge rather than SSCI. That they would pass over SSCI, the more logicalchoice, whose staff and members had far more experience with intelligenceissues, because they thought it was too paralyzed by partisanship was asignal that few could miss. In the words of one knowledgeable observer, thatchoice, which led to the 2004 intelligence reform bill – the ‘key’ developmentin the committees’ history – ‘represented the low point in the history of thecommittees’.8

Problems with the Current System of Oversight

The most influential model in the literature on legislative oversight dividesoversight activity into two metaphorical categories: ‘police patrols’ and‘fire alarms’.9 Patrol oversight is proactive, direct and centralized –Congress takes the initiative to examine a sample of executive branchoperations, with the goal of finding and fixing violations and, throughthat action, deterring others. Fire alarm oversight, on the other hand, isindirect and decentralized. Congress establishes a system of rules,procedures and informal practices that enable individuals and interestgroups to monitor executive agencies’ actions and sound an ‘alarm’ towhich Congress responds when they find a violation. McCubbins andSchwartz argue that fire alarm oversight predominates because it is morecost-effective for re-election-seeking members of Congress.10 Aberbachagrees about the motivation driving oversight but counters that, in fact,

7Dana Priest, ‘Congressional oversight of Intelligence criticized’, Washington Post, 27 April2004, p.A1.8L. Britt Snider, former SSCI General Counsel and CIA Inspector General, author telephoneinterview, 11 August 2009.9Mathew D. McCubbins and Thomas Schwartz, ‘Congressional Oversight Overlooked:Police Patrols versus Fire Alarms’, American Journal of Political Science 28/1 (1984) pp.165–79.10Ibid., p.168.


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police patrolling has increased noticeably since the early 1970s, as thechanging political environment has created more incentives for membersto devote time to it.11 The public’s frustration with the increased sizeand complexity of government, combined with diminishing resources,have led lawmakers to spend more time on oversight activities ratherthan creating new legislation. Aberbach also points to Congress’institutional decentralization and its heightened rivalry with the presidentas factors behind what he sees as the increased prominence of policepatrolling.12

The question at issue here is why congressional oversight of intelligencein particular is relatively weak, whichever type it is. This research showsthat intelligence oversight can be partly explained by the samemotivations that the literature posits for oversight in general, but thatsome elements of it are unique. As detailed below, this research highlightsthree central reasons for the weakness of intelligence oversight: thecomplexity of committee jurisdiction over intelligence; the legislativebranch’s informational disadvantage vis-a-vis the executive; and the rise inpartisanship on the committees. While the focus here is on detailing howthese factors impede effective oversight, rather than explaining the reasonsunderlying each one, both committee jurisdiction and partisanship can bepartly explained by the re-election seeking behavior proposed byMcCubbins and Schwartz and by Aberbach. The evidence shows thatneither factor, however, can be completely ascribed to that motivation,nor can the informational disadvantage element, thus refining, for theintelligence context, the broader literature’s explanation of the factorsthat lead to more or less oversight.

Moreover, one way in which intelligence oversight differs from oversightin most other arenas is that, because of the fundamental secrecy of thesubject, the oversight style envisioned by McCubbins and Schwartz, of thirdparty watchdogs keeping an eye on intelligence agencies for Congress andwarning it of possible violations by setting off alarm bells, is not veryfeasible. Rather, alarms are largely limited to intelligence failures (Iraq’sWMD) or scandals (Iran-contra, Aldrich Ames).13 While the resultingoversight hearings can allow lawmakers the opportunity to boost their imagewith constituents, intelligence failures, in particular, have also raised difficultquestions about the competence and dedication of congressional overseers, anegative ramification that does not fit the purported rationale for law-makers’ behavior.

11Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight(Washington, DC: Brookings Institution 1990).12Ibid., p.191–3.13Loch K. Johnson, ‘A Shock Theory of Congressional Accountability for Intelligence’ inLoch K. Johnson (ed.) Handbook of Intelligence Studies (New York: Routledge 2007)pp.343–60.


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Jurisdictional Complexity

The first major problem with the current system of oversight is a structuralone of gerrymandered jurisdictional lines. The two intelligence committeesare ostensibly the main congressional intelligence oversight bodies, exercis-ing a type of veto over intelligence programs through their control of theauthorization process. However, there are numerous qualifiers of this overallarrangement that serve to undermine the overall goal of rigorous oversight.First, the intelligence committees have exclusive authorizing jurisdictionover only a small portion of the overall intelligence community, which nowcomprises 16 different components, including arms of the Justice, State,Treasury, Homeland Security and Energy Departments and numerousagencies within the Department of Defense (DoD). While the intelligencecommittees have sole authority over the Central Intelligence Agency (CIA)and the Director of National Intelligence (DNI), they share authorizationjurisdiction for the other intelligence agencies with the relevant standingcommittees.

This fragmentation causes a series of problems, beginning with the riskthat individual programs can get lost, either accidentally or on purpose, inthe slipstream between committees. Committee members either may notwant the responsibility of overseeing a potentially risky program, in casethey get blamed by the public for it later, or they may just assume thatanother committee is looking into it. In the late 1990s, for example, theFederal Bureau of Investigation’s (FBI) counterterrorism reform actions wentunreviewed by any congressional committee, largely because the intelligencecommittees thought the judiciary committees would handle it, while thejudiciary committees considered it an intelligence issue.14

This fragmented jurisdiction also means that no one committee has acomplete view of the intelligence community to be able to judge prioritiesand weigh programs against each other in a time of increased need andlimited resources. It also increases the cost of oversight to the intelligencecommunity by requiring more officials to testify at more hearings and submitmore reports.15

Second, in addition to the intelligence committees having to sharejurisdiction with other standing committees, they are ultimately subordinateto the armed services committees; because the intelligence budget has alwaysbeen hidden within the defense budget as a national security matter, thelatter must sign off on intelligence authorization bills before the bills go tothe full House and Senate for votes. In one indication that their powerful

14Amy Zegart, Prepared Statement, US Congress, 110th Congress, 1st session, Senate, SelectCommittee on Intelligence, Congressional Oversight of Intelligence Activities, S. Hrg. 110–794, 13 November 2007, p.47 (hereafter Senate Hearing 110–794).15Eric Lichtblau, ‘Complaints signal tension between FBI and Congress’, New York Times, 15August 2005, p.A13; Anne Joseph O’Connell, ‘The Architecture of Smart Intelligence:Structuring and Overseeing Agencies in the Post-9/11 World’, California Law Review 94(2006) pp.1693–4.


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role is not necessarily accompanied by due oversight, however, longtimeArmed Services Committee member Sen. John McCain (R-AZ) reportedlytold the 9/11 Commission that if his panel spent ten minutes considering theintelligence budget, it had been a good year.16

A third limitation of the intelligence committees’ oversight power stemsfrom the congressional convention of dividing authorization and appropria-tion authority. While the arrangement is based on the sound principle thatthere should be one body overseeing the entire budget to make sure that eachprogram’s appropriation makes sense as part of an overall set of nationalpriorities, and while all authorizers are, to some extent, at the mercy ofappropriators, this structural feature extracts a higher price in terms ofrigorous intelligence oversight than it does on other issues.

The appropriations for most intelligence activities are included as aclassified section of the defense appropriations bill, meaning that the realcontrol over the intelligence purse lies with the defense subcommittees of theHouse and Senate Appropriations Committees. Although that control bringswith it a recognized oversight responsibility, the structure of the systemprecludes the defense subcommittees from conducting stringent intelligenceoversight. First, the $75 billion intelligence budget comprises around 10 to12 percent of the defense budget.17 Thus, almost by definition, members ofthe defense subcommittees give it very little attention because there are somany other big defense spending issues that claim their time.

In addition, there is a significant difference in the number of staff assignedto intelligence issues on the appropriations defense subcommittees comparedto the intelligence committees. In August 2009, SSCI had 45 staffers to workon the intelligence budget, to pull it apart and ask tough questions about thepriorities, programs and operations embodied in it. In comparison, theSenate Appropriations Defense Subcommittee had just five staffers whohandled intelligence issues, and that was in addition to their responsibilitiesfor some other parts of the defense budget as well. On the House side, theratio was only slightly better: HPSCI had 35 staffers to focus on intelligenceissues, while the appropriations defense subcommittee had five. While thelatter number represents a significant improvement as a result of a growingrecognition of the problem (in 2003–4, the House Appropriations DefenseSubcommittee had exactly one person covering intelligence),18 the compar-ison with the intelligence committees’ staff remains stark. Additionally, it is,by and large, the intelligence committee members and staff who are briefedabout intelligence matters and who, therefore, can reasonably be said to be

16Jonathan Weisman, ‘Democrats reject key 9/11 panel suggestion’, Washington Post, 30November 2006, p.A07.17The 10–12 percent depends on which of many possible figures one uses for the defensebudget. Steven Aftergood, ‘DNI announces $75 billion intelligence budget’, Secrecy News, 16September 2009, 5http://www.fas.org/blog/secrecy/2009/09/75_billion_budget.html4 (5November 2009).18Author telephone interview with former senior HPSCI staffer, 31 July 2009.


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http://www.fas.org/blog/secrecy/2009/09/75_billion_budget.html

the best informed and prepared to make decisions about the intelligencebudget.

Given the tangible differences in the committees’ ability to conductoversight, particularly on an issue like intelligence that is widely recognizedto involve complex and arcane issues, one might expect the authorizers’decisions and recommendations to carry relatively more weight. In actualpractice, however, the power balance is reversed. Lawmakers on theintelligence panels have long lamented their inferior position relative to thedefense appropriators. Lee Hamilton, for example, who chaired HPSCI in1985–87, has described being ‘frequently, continually bypassed . . . ’ by theappropriators.19 Although specific examples are rarely made public, a fewhave surfaced in the public record. In 1992, with the pressure to cut budgetsafter the Cold War, HPSCI recommended cutting the intelligence budget byfive percent, warning that further cuts would ‘risk severe damage to theability of the community to provide’ the intelligence necessary to policymakers. That warning notwithstanding, the appropriators ended updoubling 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’ influence,however, involves their granting more funds than have been authorized(so-called ‘appropriated but not authorized’ or ‘A not A’ funds). Section 504of the National Security Act provides that funds appropriated forintelligence purposes may be obligated or expended only if ‘those fundswere specifically authorized by the Congress for use for such activities’.21

The fact that lawmakers never defined what constitutes ‘authorization’,however, has left a loophole. Defense appropriations bills have long includedlanguage stating that any funds appropriated for intelligence activities ‘aredeemed to be specifically authorized by the Congress for purposes of section504 of the National Security Act of 1947 . . . ’.22 In other words, whatever isappropriated for intelligence is deemed authorized under Section 504, nomatter what the authorization bill says.

It is true that if the appropriations bill is signed into law before theintelligence authorization bill (as has usually been the case for the last 20years), that phrase will also include, ‘until the enactment of’ an intelligenceauthorization act. Thus, if the amounts appropriated for intelligence don’tcomport with those authorized, officially the latter trumps the former but, inpractical terms, the appropriators still clearly have the upper hand in therelationship. According to a former senior HPSCI staffer, the system that hasbeen in place since the mid-1990s for dealing with the ‘A not A’ issue is thatthere is ‘a premium put on close negotiation’ between the authorizers and

19Lee Hamilton, Senate Hearing 110–794, p.28.20Rep. Larry Combest, Congressional Record, 3 August 1993, p.H5678.2150 USC 414(a)(1).22See, for example, Section 8152 of Public Law 103–39, Department of DefenseAppropriations Act, 1994, 11 November 1993.


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the appropriators in an effort to erase any discrepancies between the twobills. The negotiations have been based, however, on the implied under-standing that if any differences remain, the appropriators’ position will winout. As the staffer characterized it, it’s a matter of the appropriators ‘playingthe 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 collectionprogram in 2000 that SSCI opposed on the basis of its analysis that theprogram would cost considerably more than was estimated and thatthe utility of the data to be collected would not justify the cost. Throughoutthe next six years, SSCI continued to oppose the program, on a bipartisanbasis, and was joined in its opposition by outside panels of policy experts,technical collection experts, the outside technical advisory board of theagency in charge of the program and the first DNI, John Negroponte.Despite the consistent and widespread opposition, the defense appropria-tions subcommittee repeatedly funded the program until the plug wasfinally pulled for good in 2007, after approximately $10 billion had beensunk into it.24

Another facet of the ‘A not A’ problem stems from the increasing use ofemergency supplemental legislation, for which there is no accompanyingauthorizing legislation and, consequently, no authorization oversight review.Moreover, because they are, by nature, emergency actions, there is anelement of time pressure that undermines any effort by the appropriators toconduct their own oversight or to consult with the authorizers. Althoughthere were instances of supplemental appropriations affecting intelligencefunding before 9/11, it became recognized as a notable problem for oversightas the Bush administration increasingly resorted to supplemental appropria-tions as a way to fund the wars in Iraq and Afghanistan. In an effort to makethe supplementals more attractive, the administration included intelligencefunding which carried with it the politically persuasive ‘fighting terrorism’justification. The House intelligence committee registered its concern aboutthe practice in 2003, particularly the fact that even core mission programswere being funded via supplemental appropriations, which was proving animpediment to long-term strategic planning.25 Despite HPSCI’s warning, thenext year nine members of the committee called attention to the issue againnoting, as an example, that the president’s budget request that year had

23Author interview, former HPSCI senior staffer, 13 August 2009, Washington, DC.24Sen. Christopher Bond, Opening Statement, Senate Hearing 110–794, p.9. Although Sen.Bond did not identify the classified program, longtime intelligence analysts have speculatedthat he was referring to the MISTY stealth satellite program. See Steven Aftergood,‘Intelligence oversight deflected by appropriators’, Secrecy News, Federation of AmericanScientists Project on Government Secrecy, 26 November 2007.25US Congress, 108th Congress, 1st session, House of Representatives, Permanent SelectCommittee on Intelligence, Intelligence Authorization Act for Fiscal Year 2004, H. Rept.108–163, 18 June 2003, p.22.


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covered just 20 percent of the CIA’s Counterterrorism Center fundingrequirements, leaving 80 percent for a supplemental. They further noted thatsenior intelligence officials had informed the committee that receiving theirfunds in bits and pieces ‘makes it impossible to plan, forcing them to ‘‘robPeter to pay Paul’’ until the additional funds arrive – potentially jeopardizingkey counterterrorism operations’.26

The final factor exacerbating the appropriations defense subcommittees’disproportionate influence on intelligence funding and its deleterious effecton intelligence oversight is that the intelligence agencies know full wellwhich committees control their funding and have grown adept at cultivatingthe key staff and members of the appropriations subcommittees. Theexecutive branch has also been known to play them off against theintelligence committees so as to diffuse oversight and defray congressionalattempts to alter the agencies’ funding and priorities.27 As former HPSCIchair Lee Hamilton, put it, ‘the intelligence community knows [thestructural set-up] and exploits it and the administration knows it andexploits it’.28

Access to Information

The second category of problems undermining congressional oversight ofintelligence stems from the inherent disadvantage of the intelligencecommittees in gaining access to the information necessary to conductoversight properly. This problem manifests itself in a variety of ways, noneof which were created by the Bush administration but many of which wereexacerbated during its two terms. The first, and most overt, indication ofCongress’ informational disadvantage is that, by virtue of the intelligenceagencies being part of the executive branch, the latter starts out the gamein essence ‘owning’ all intelligence information. Although it has a statutoryobligation to keep Congress (via the two intelligence committees) ‘fully andcurrently informed of all intelligence activities . . . including any significantanticipated intelligence activity’,29 the executive has never interpreted thatto mean it has to turn over all intelligence information to Congress. Fortheir part, the intelligence committees in principle claim the right ofunrestricted access to all intelligence information but they have neversought it.30 The conflicts have arisen over just where the line should bedrawn and whether the executive branch is giving the committees enough

26Minority views, US Congress, 108th Congress, 2nd session, House of Representatives,Permanent Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year2005, H. Rept. 108–558, 21 June 2004, p.69.27Denis McDonough, Mara Rudman and Peter Rundlet, ‘No Mere Oversight: CongressionalOversight of Intelligence is Broken’, Center for American Progress, June 2006, p.17.28Lee Hamilton, author telephone interview, 3 July 2006.2950 USC 413 (a)(1).30L. Britt Snider, ‘Sharing Secrets With Lawmakers’, Center for the Study of Intelligence, CIA,February 1997, pp.17–8.


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information to conduct adequate oversight. This issue was thrown intosharp relief in June 2009 by CIA Director Leon Panetta’s notification ofthe committees about an already-ended assassination program.31 While itremains unclear just when the CIA should have informed Congress, thebottom line is that members can only ask questions about programs ofwhich they are aware.

Moreover, classified information, which by all accounts increasedsignificantly under the Bush administration, can impede congressionaloversight even when it is shared with the committees.32 In a November 2007hearing, Sen. Sheldon Whitehouse (D-RI) complained that this practice hadsometimes approached absurd levels. He described information as ‘wildlyover-classified. I have read things on the front page of the New York Times,come into this committee and read them in deeply classified documents’.33

In such cases, committee members are prevented from discussing theinformation because they received it in a classified form, even though it hasbecome public knowledge. It also robs members of one of their oversighttools in the sense that they can, sometimes, make a difference ‘by just goingpublic with something, by just raising hell with something, by just being athorn in somebody’s side. Because you can’t go public, it takes a majority ofthis committee to get any action going, and I don’t think the intelligencecommunity is unaware of that fact’.34

The executive branch can also keep information from the committees bynot providing required reports, denying them reports and information thatthey request or, most egregiously, by lying, as happened during the Iran-contra hearings. Reporting requirements are the focus of a continuingstruggle between the committees and the intelligence community; thecommunity cites the costs involved in producing the large number ofannual and one-time reports required by the committees, and thecommittees argue in response that such reports are one way for committeemembers to get the information they need out of a reticent intelligencecommunity. The community’s record in producing such reports, however,has not been stellar. A SSCI analysis found that between 1 December 2001and 1 May 2002, the intelligence community was required to submit atotal of 84 reports to the committees. Of that number, 18 were late, 8 wereincomplete and 51 were not submitted at all. Overall, only seven werecompleted by the deadline, for an overall record of eight percent

31Panetta told the committees that he had just learned of the program, which had begun soonafter September 11, 2001, and that he had already formally ended it. The programencountered several difficulties and was repeatedly shelved, although never ended, by severalof Panetta’s predecessors, apparently without ever becoming operational. David Ignatius,‘The CIA’s ‘‘hit team’’ miss’, Washington Post, 22 July 2009; Mark Mazzetti and ScottShane, ‘CIA had plan to assassinate Qaeda leaders’, New York Times, 14 July 2009, p.A1.32For information on the extent of the classification of information, see Secrecy Report Card2008, by OpenTheGovernment.org.33Sen. Sheldon Whitehouse, Senate Hearing 110–794, p.35.34Ibid.


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compliance.35 Traditionally, once the committees call enough attention tomissing reports, as SSCI did with that analysis, the intelligence commu-nity’s completion percentage spikes for a while, but it inevitably falls offagain.

As for the intelligence community not producing specifically requestedinformation, the problem worsened so severely during the Bush years that inlate 2007, Sen. Jay Rockefeller (D-WV), then the vice chair of SSCI,described it as ‘the greatest impediment to effective congressional over-sight’.36 In mid-2008, for example, HPSCI complained that the Bushadministration had ignored months of its requests for a briefing on Syria’snuclear program, despite the fact that foreign governments had already beenbriefed on it.37

Another way in which the intelligence committees are handicapped interms of acquiring information is through a particular convention known asthe ‘Gang of Eight’. The National Security Act provides that, in the case of acovert action, if the president deems it necessary in ‘extraordinarycircumstances’, he can meet his obligation to keep the committees ‘fullyand currently informed’ by notifying just the leadership of each chamber andthe leadership of the two intelligence committees, the so-called Gang ofEight, as well as any other members of the congressional leadership hewishes to include.38 According to a former senior HPSCI staffer, it is‘extremely rare’ that these briefings don’t include the leadership of theappropriations committees and their defense subcommittees, which accountsfor why reports sometimes vary about the numbers of people who havereceived particular briefings.39 Members of Congress are under significantrestrictions at Gang of Eight briefings; no staff can attend and members areprecluded from taking notes or disclosing the information to anyone,including other members of the committees or legal counsel. Although theserules have developed over time at the instigation of the executive and are notcodified anywhere, members have complied for so long that it is nowentrenched practice and hard to reverse.

There is also a lesser-known variation known as the Gang of Four briefing,where notification is limited to the chairs and ranking members of theintelligence committees. A holdover from the period before the creation ofthe intelligence committees, once the Gang of Eight was created for highlysensitive covert actions, the executive began using the Gang of Four forsensitive non-covert action intelligence activities. Although it has no basis in

35US Congress, 107th Congress, 2nd session, Senate, Select Committee on Intelligence, ToAuthorize Appropriations for Fiscal Year 2003 for Intelligence, S. Rpt. 107–149, 13 May2002, p.7.36Sen. John Rockefeller, Opening Statement, Senate Hearing 110–794, p.4.37US Congress, 110th Congress, 2nd session, House of Representatives, Permanent SelectCommittee on Intelligence, Intelligence Authorization Act for Fiscal Year 2009, H. Rept.110–665, 21 May 2008, p.36.3850 USC 413b(c)(2).39Author interview, former senior HPSCI staffer, 13 August 2009.


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statute, the leadership of the intelligence committees has generally acceptedthe practice. The rules of Gang of Four briefings are somewhat more lenient,most notably with committee staff directors sometimes allowed to attendand notes not strictly prohibited.40

These limited briefings present a paradox for Congress. The Gang of Eightarrangement was accepted by the committees as a compromise after theCarter administration had failed to notify them of the Iranian hostage rescueattempt until after it was over. The committees at first wanted languagerequiring that the executive notify them in advance of any covert operation.The intelligence agencies and the White House balked, arguing that therewere some operations that required the utmost secrecy and that divulgingdetails to all members of the two committees would pose an undue risk. Thetwo sides eventually compromised with the Gang of Eight provision, withCongress calculating that that was at least better than the executive havingno obligation to notify anyone on the Hill.41 As SSCI Chairman Birch Bayhput it at the time, ‘If oversight is to function better, you first need it tofunction [at all]’.42

The question is whether that original bargain was a sound one. Oneproblem with the limited briefings 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 athand. Moreover, due to scheduling difficulties, the members of the Gang ofEight (or Four or however many) often receive their briefings at differenttimes, even up to a month or two apart. As situations evolve, they canreceive different information from other members who have technicallyreceived the same briefing.43 As a result of all of these factors, members are‘very restricted in their ability to understand and question’ what they arebriefed on.44

A larger, related problem stems from the informal rules that the executivebranch has imposed on the legislators, most notably in Gang of Eightbriefings, including the prohibitions against staffers attending the briefingsand note-taking. The members of Congress being briefed are at a significantdisadvantage because, as a result of the wide variety of issues they have todeal with and the overwhelming demands on their time, few are well-versedin the intricacies of intelligence activities. As former SSCI General Counseland CIA Inspector General Britt Snider explains, ‘these operations arealways portrayed in the most benign way possible. If you’re not attuned tothe pitfalls’, you won’t know the right questions to ask.45 Without the

40Alfred Cumming, ‘Gang of Four’ Congressional Intelligence Notifications, CongressionalResearch Service, R40698, 14 July 2009.41Presumably, a similar logic underlies their acceptance of the informal Gang of Four.42L. Britt Snider, The Agency and the Hill: CIA’s Relationship with Congress, 1946–2004(Washington, DC: Center for the Study of Intelligence, CIA 2008) p.283.43Author interview, senior HPSCI staffer, 13 August 2009.44Bob Graham, former SSCI chair, author telephone interview, 8 August 2009.45L. Britt Snider, author telephone interview, 11 August 2009.


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availability of staff expertise or the ability to take notes on complicatedbriefings, members trying to conduct oversight are effectively hamstrung.

At the other end of the spectrum, a former CIA official who has conductedsuch briefings notes that the briefings can also be quite vague. The formerbriefer described the briefings on one of the pre-9/11 intiatives to kill OsamaBin 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 briefings on theeffectiveness of oversight is whether members have reasonable recourse ifthey object. These limited briefings are, it should be noted, notifications andjust as is the case when the executive notifies the full committees, thelegislators have the right to raise questions and concerns but they do nothave the right to veto or stop the intended action. The problem is, if theyhave serious objections to a policy or action raised in a Gang of Eightbriefing, their recourse to other legislative tools to do what they think is bestis cut off. As Vicki Divoll notes, ‘[t]he framers of the Constitution gaveaggregate, not individual, powers to the legislative branch’.47 The powersCongress has are wielded either by the two houses as entire bodies or bytheir committees and subcommittees. Yes, individual members can raiseobjections at the briefings or write letters of protest to the president, but thechances of them being effective are minimal. If all of the Gang of Eight wereto vehemently oppose an activity, an administration would have to thinkseriously about proceeding against their advice but, again, it is rarely thecase that they are briefed together or that they know enough at the time ofthe briefing, without staff, to raise significant objections. Furthermore, theclassified nature of the information precludes them from leveraging theirarguments by trying to convince other members of the committee, much lessother members of Congress, the media or the public. It also precludes themfrom being able to wield Congress’s most significant power, the power of thepurse. It is difficult to convince the necessary committee majorities to cut offfunding for a program when you cannot describe the risks that you feel itpresents.

Although there is no formal legal penalty if a legislator chooses tochallenge the executive by spreading briefed information in an effort tooppose a particular policy (each chamber does have its own internalpenalties), they would be risking the trust that undergirds the entireoversight system. Once that trust is eroded, ‘you reduce [the executive’s]willingness to share the information you need . . . . You can battle them on itbut the bottom line is that the committees are dependent on the executive’.48

The controversy regarding limited briefings has been dramaticallyhighlighted recently; first, when the Bush administration’s warrantlesswiretapping program came to light in December 2005, again in early 2008with the disclosure that the CIA had destroyed videotapes of detainee

46Author telephone interview, former intelligence official, 29 July 2009.47Vicki Divoll, ‘Congress’s torture bubble’, New York Times, 12 May 2009, p.A31.48Author interview, former senior SSCI staffer, 31 July 2009.


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interrogations, and then in early 2009 with the volatile issue of whether theGang of Eight, including Speaker Nancy Pelosi (D-CA), was duly briefed in2002 on ‘enhanced interrogation techniques’. The administration defendeditself from the public furor each time by asserting that it had notifiedCongress via the limited briefings, thus implying that Congress had approvedthe program.49 The Democratic members involved, under fire for apparentlyhaving approved the administration’s actions, desperately tried to explainthe impact of the restrictions they had been under. In expressing hisfrustration over the situation in November 2007, Sen. Rockefeller said, ‘Youbetter believe that when I was one of four being briefed on certain programsand they were appearing on television all the time saying, oh, the Congresshas been briefed, and I’d love to discuss some of those briefings to you and Iwon’t do it, but they were superficial, they were inconsequential.’50

A final problem with the limited briefings is the increasing degree to whichthey have been used, particularly the informal Gang of Four briefings. Giventhe secrecy involved, it is difficult to determine objectively their increasedfrequency and whether they have been used more widely than they shouldhave been (that is, for situations not involving ‘extraordinary circum-stances’). Incoming CIA Director Leon Panetta captured the overwhelmingconsensus of opinion, however, when he said during his confirmationhearing that the process was ‘overused by the previous White House and,therefore, abused’.51 Panetta signaled his intent to keep the committees morefully informed but, aside from his well-publicized notification regardingsome form of an assassination program, it is too early to tell how well theintelligence community is keeping his promise.

Partisanship

The third major factor that scholars have identified as having underminedthe intelligence committees’ effectiveness is their increasing partisanship.52

When the committees were first created in the mid-1970s, it was done with acareful eye to ensuring that they be run in a nonpartisan way, particularly onthe Senate side. They were established as select committees whose membersare selected by the party leadership, rather than the party caucuses, as is thecase with standing committees. The original goal was for the leadership toappoint more moderate members who would run the committees in anonpartisan way. On the Senate committee, there is just a one-vote

49At time of writing, it is as yet unclear which were Gang of Four or Eight, and whether theywere appropriately such.50Sen. Rockefeller, Senate Hearing 110–794, p.26.51Statement for the Record of Leon Panetta Before the Select Committee on Intelligence,United States Senate, 5 February 2009, p.4.52Marvin C. Ott, ‘Partisanship and the Decline of Intelligence Oversight’, InternationalJournal of Intelligence and Counterintelligence 16/1 (2003) pp.69–94; Matthew B. Walker,‘Reforming Congressional Oversight of U.S. Intelligence’, International Journal ofIntelligence and Counterintelligence 19/4 (2006) pp.702–20; Snider, The Agency and the Hill.


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difference between the parties, regardless of their relative strength in theparent body, and the senior member of the opposition party is officially thevice chair, rather than the ranking minority member, chairing the committeein the absence of the chair. In addition, eight of the members must also serveon the related standing committees: two each on Appropriations, ArmedServices, Foreign Relations and Judiciary. Finally, the committee originallyhad a single, nonpartisan staff, rather than separate majority and minoritystaffs, and made it a priority to hire people with a strong knowledge of, orbackground in, intelligence.

In keeping with the House’s generally more partisan history, HPSCIdeparted from some of these efforts at nonpartisanship. Each party’srepresentation reflects its proportion in the overall House, there is a rankingmember rather than a vice chair, and it was established with separatemajority and minority staffs.

Overall, both intelligence committees were notable for their general lackof partisanship through their first 15 years of existence. Much of the creditfor that and, in fact, for establishing the committees’ credibility with boththe intelligence community and other committees on the Hill, has gone to theearly chairmen of the committees. Scholars are unanimous that chairs likeSen. David Boren (D-OK) and Rep. Edward Boland (D-MA) played crucialroles in fulfilling Congress’ original goal of bipartisanship, at least to theextent possible in a body that is political by definition.53

Eventually, however, partisanship began to creep into the committees.While the Reagan administration’s support of the contras first injectedpartisan wrangling, it did not cause lasting damage. The first real turningpoint on the Senate side was during the nomination hearings for RobertGates to be George H.W. Bush’s Director of Central Intelligence (DCI) in1991. Gates was dogged by suspicion that he had lied to Congress about hisknowledge of the Iran-contra affair and charges from within the CIA that hehad politicized intelligence analysis regarding the Soviet Union. As the threatto Gates’ nomination mounted, the White House informed Republicanmembers of the committee that ‘the President would ‘‘go to the mat’’ forGates, and wanted his nomination confirmed at all costs’.54 This marked thefirst time an administration had demanded party unity on the committee,and the Republicans responded. Predictably, their approach triggered asimilar response on the part of some of the Democrats, leading to the firstnotable partisan clash in SSCI’s history. Although Gates was confirmed inthe end, largely through the efforts of Chairman Boren (a Democrat), aninvisible line had been crossed.55 The change was slow and subtle but it was

53See, for example, Snider, The Agency and the Hill; Loch Johnson, ‘Ostriches, Cheerleaders,Skeptics, and Guardians: Role Selection by Congressional Intelligence Overseers’, SAISReview 28/1 (2008) pp.93–108.54Ott, ‘Partisanship and the Decline of Intelligence Oversight’, p.82.55Johnson, ‘Presidents, Lawmakers, and Spies’, p.831; Melvin A. Goodman, Failure ofIntelligence: The Decline and Fall of the CIA (New York: Rowman & Littlefield 2008)pp.287–8.


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no longer unprecedented to view issues before the committee through apartisan lens and, gradually, as new staff needed to be hired, it was not outof the question to consider party allegiance as equal to or even moreimportant than intelligence background.

Another turning point in the increasing partisanship on SSCI came withanother nomination, that of National Security Adviser Anthony Lake to beDCI in 1997. Sen. Richard Shelby (R-AL) had just recently taken over aschair and he made clear from the outset that he was aiming for Lake, afunction of both his generally hostile attitude toward the Clintonadministration and of the latter’s failing to notify Congress regarding theCIA’s role in arms traffic to Bosnia.56 George Tenet, who at the time was theDeputy Director of the CIA, recounts in his memoir that soon after Lake’snomination was announced, Shelby told him, ‘George, if you have any dirton Tony Lake, I’d sure like to have it’.57

The Lake hearings have been described as ‘the most bitter publicexchanges among lawmakers in the Committee’s history’ and SSCI hasnever really recovered from them .58 ‘For the GOP majority, the committeecame to be viewed as a club to wield against the Clinton administration’.59

The situation improved somewhat when control of the Senate switched backto the Democrats in May 2001 when Republican Jim Jeffords (VT) switchedhis affiliation to Independent, as new chair Bob Graham’s (D-FL) approachwas decidedly less partisan.

In late 2003 and 2004, however, relations on the committee again becamestrained when policy and politics collided. During this period, there wasincreasing controversy over the war in Iraq and the integrity of theunderlying intelligence. At the same time, there was a tight presidentialcampaign in which the Iraq intelligence question was playing a role. Theadministration’s use of intelligence in the run-up to a war would certainlyseem to be a valid topic for congressional oversight, but it was impossible toseparate that from its potential for scoring political points. Thus, as the(back in the minority) Democrats on the committee pushed for aninvestigation, the Republicans pushed back. The infighting became so badthat 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 theinvestigation in phases, with the phase concerning the administration’s useof intelligence not due until after the election.60

On the House side, even though HPSCI was not as consciously structuredto be nonpartisan as its Senate counterpart, it actually did not succumb to

56Gregory C. McCarthy, ‘GOP Oversight of Intelligence in the Clinton Era’, InternationalJournal of Intelligence and Counterintelligence 15/1 (2002) pp.34–38; John Prados, Safe forDemocracy (Chicago: Ivan R. Dee 2006) p.619.57Quoted in Snider, The Agency and the Hill, p.86.58Johnson, ‘Presidents, Lawmakers, and Spies’, p.831.59Ott, ‘Partisanship and the Decline of Intelligence Oversight’, p.84.60Snider, The Agency and the Hill, p.89.


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the lure of partisanship until considerably later than SSCI. This was due inpart to the long-term initial chairmanship of Rep. Boland (1977–84), whoset a tone of professionalism and nonpartisanship. Other factors that alsoplayed a role in the delayed onset of partisanship on the House side are thatBoland was succeeded by a series of six chairmen, all of whom were non-confrontational and none of whom served for more than two years, and thatHPSCI did not have to deal with the nomination confirmations that hadproved so divisive on the Senate side.

Partisanship began to play more of a role on HPSCI under thechairmanship of Porter Goss (R-FL), who served from 1997 until 2004.Goss did not start out as a particularly partisan chair but his behaviorunderwent a marked change in late 2003. As the alleged weapons of massdestruction in Iraq failed to materialize and Democrats on the committeepushed for an investigation of the intelligence failure, Goss managed topreclude HPSCI from undertaking any investigation at all. In early 2004, hebegan making ‘uncharacteristically partisan public statements’, attackingboth John Kerry’s national security record and directing all blame for theintelligence mistakes in Iraq at the intelligence community rather than theadministration.61 Because Goss had already announced he was going toretire from Congress after the 2004 election, and because speculation wasrampant that George Tenet was not going to last much longer as DCI, mostobservers interpreted Goss’ change of tone as a play for Tenet’s job.

After the nadir of 2004, partisanship on both committees recededsomewhat, although by no means significantly. Each revelation of acontroversial Bush intelligence program re-stirred the pot, particularly the2009 question of whether or not Speaker Pelosi had known about andacquiesced in the enhanced interrogation techniques.

The rise in partisanship has impeded the committees’ effectiveness inseveral ways. First, they have not been able to accomplish as much whenthey can’t agree on what to investigate or what to include in legislation. Themost serious manifestation of this, of course, has been Congress’ failure topass an intelligence authorization bill since December 2004. But it has alsoaffected much of the other oversight work the committees should have beendoing. Moreover, other committees have been more than happy to fill thevoid created by their inaction, which further erodes the intelligencecommittees’ authority over the long term. Overall:

The purpose of oversight also became skewed. Rather than aconstructive collaboration to tackle genuine, long-term problems,oversight became a means of shifting political blame, as thecircumstances required, either to the incumbent administration oraway from it.62

61Ibid.62Ibid., p.90.


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Another cost of the rising politicization has been its effect on thecommittees’ delicate relationship with the intelligence community. One ofthe greatest hurdles legislators faced when they first created the oversightcommittees was the intelligence community’s fear that politicians’ mostimportant priority is political advantage rather than the national interestand, therefore, that they inherently could not be trusted with sensitiveinformation. That was gradually overcome through the careful, nonpartisanapproach taken by the early chairmen and members on the committees andtheir excellent track record in keeping secrets.63 But the partisanship that hasrecently stymied the committees reinforces the worst stereotypes aboutmembers of Congress, undermining the intelligence community’s respect forthe oversight enterprise. Once intelligence officials start to have doubtsabout the motives of congressional overseers who are asking for informa-tion, they are that much less likely to provide it. As Marvin Ott, a formerSSCI staffer, characterizes the problem, once Congress loses that trust,

[t]he reaction in the community is predictable: Oversight is no longeran asset, it’s now a problem; it’s something to be stonewalled, to beslow-rolled, to be manipulated if you can, and the sort of collaborative,mutual efforts to solve practical problems facing intelligence in thecountry, that goes away.64

Recent Changes

As its major recommendation to fix what it called the ‘dysfunctional’ systemof congressional intelligence oversight, the 9/11 Commission suggested thatCongress adopt one of two solutions: either combine the intelligencecommittees into one (smaller) joint authorization committee, modeled afterthe defunct Joint Committee on Atomic Energy (JCAE), or consolidate theauthorization and appropriation functions in each chamber’s intelligencecommittee. The joint committee proposal has been widely criticized becauseit is hard to see how oversight will be strengthened with fewer eyes devotedto the problem. While the second option is still raised by some, it is generallyviewed as a nonstarter simply because the appropriations committees willnot give up their pieces of the pie.

In their follow-up work with the 9/11 Discourse Project, the 9/11Commissioners suggested a third alternative: that each house should create aseparate appropriations subcommittee on intelligence. While not vesting theintelligence committees themselves with appropriating power, this option

63Loch K. Johnson, ‘Governing in the Absence of Angels: On the Practice of IntelligenceAccountability in the U.S. Congress’, Woodrow Wilson Center Congress Project, 9 May2003, p.18.64Matt Korade, ‘Intelligence oversight gets a fresh look as panel takes up authorization bill’,CQ Politics, 29 April 2008, 5http://www.cqpolitics.com/wmspage.cfm?docID¼hsnews-0000027126634(15 October 2008).


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would ensure that members and staff focused on intelligence were overseeingintelligence appropriations.65 The Commission on the Prevention of WMDProliferation and Terrorism endorsed this recommendation in its World atRisk report in December 2008 and significantly strengthened it by specifyingthat the new subcommittees should have responsibility for both parts of theintelligence budget, the National Intelligence Program (NIP) and theMilitary Intelligence Program (MIP).66

Although they have not implemented the 9/11 Commission’s originalrecommendations, both chambers have made some changes in theirintelligence oversight arrangements. The House made the most significantchange when newly-elected Speaker Pelosi established an advisory SelectIntelligence Oversight Panel (SIOP) on the Appropriations Committee aspart of her first 100 days’ agenda. The new subcommittee has 13 memberswith an eight-to-five interparty ratio, including three representatives ofHPSCI and the chair and ranking member of the defense subcommittee.Designed as a hybrid panel that would increase the interplay andcommunication between HPSCI and the Appropriations Committee butnot encroach on the latter’s turf too much, SIOP is authorized to study andmake recommendations to the Appropriations Subcommittee on Defense onthe annual intelligence appropriations bill. The defense subcommittee,however, retains its authority to report the bill to the full committee.67 Whilethe panel has, to date, worked better than many expected and has increasedthe cross-pollination among the committees, it remains unclear just howmuch authority SIOP has independent of the defense subcommittee, giventhat the powerful chair of the appropriations defense subcommittee, is amember.

On the Senate side, attempts at reform have come in spurts. SenateResolution 445, adopted in October 2004, ended the eight-year limit forsenators serving on the intelligence committee (HPSCI retains its limit of notmore than four Congresses, although the chair and ranking members areexempt). Originally adopted as protection against members’ being co-optedby the intelligence agencies, term limitations are now widely seen as havingthe greater cost of preventing committee members from developing therequisite expertise in a highly sophisticated subject area. Resolution 445 alsoreduced the size of the committee from 17 to 15 and elevated the committee

659/11 Public Discourse Project, Report on the Status of 9/11 Commission Recommenda-tions:Part II: Reforming the Institutions of Government, 20 October 2005, p.8.66Commission on the Prevention of WMD Proliferation and Terrorism, World at Risk: TheReport of the Commission on the Prevention of WMD Proliferation and Terrorism (NewYork: Vintage 2008) p.90. The NIP funds those agencies that provide intelligence to supportnational policy makers, and the MIP supports military operations and activities. Most pastreform proposals do not specify which parts of the budget they would apply to, possiblyanticipating pushback from the defense appropriations subcommittees over the MIP.67Frederick M. Kaiser, Congressional Oversight of Intelligence: Current Structure andAlternatives, 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 canserve on only two ‘A’ committees).68

Resolution 445 also created a new intelligence subcommittee within theAppropriations Committee that would be in charge of appropriations forthe NIP intelligence budget and would, therefore, be considerably strongerthan the House’s SIOP (although weaker than that proposed by the World atRisk report).69 Although technically created by the resolution, however, thatsubcommittee still does not exist. Unsurprisingly, it has been stronglyopposed by those who would lose turf to its creation, namely, the membersof the appropriations defense subcommittee. In addition, the appropriatorsin general don’t like being told how to organize their committee and resentthe implicit criticism that they have not done a good job of appropriatingintelligence funds.70 In September 2008, Senators Rockefeller and Bond co-sponsored a resolution reminding the Senate of Resolution 445 and (again)creating the intelligence subcommittee. In introducing the measure, Bondcharacterized it as a ‘less disruptive’ alternative to the ‘bolder’ optionsrecommended by the 9/11 Commission.71 On cue, the then-chair andranking member of the Appropriations Committee strongly opposed thesubcommittee, stating that they did not understand how it ‘would doanything but minimize the free exchange of ideas and hamper the debatewhich exists in the current system’.72 That resolution never made it to a vote,but SSCI included yet another call for the subcommittee’s creation in itsversion of the 2010 intelligence authorization bill. All too predictably,though, that section was removed from the bill before its passage by the fullSenate in September 2009. The bottom line is that no one in a position toforce the issue on the powerful appropriators has yet been willing to do so.

Given the difficulties of achieving any structural change, then-SSCI ChairRockefeller took a different tack in 2007 by proposing a Memorandum ofAgreement (MOA) between SSCI, the Appropriations Committee and itsDefense Subcommittee. The MOA, which was signed by all of the chairs andranking minority members of the three committees except, notably, for the

68Paul S. Rundquist and Christopher M. Davis, S.Res. 445: Senate Committee Reorganiza-tion for Homeland Security and Intelligence Matters, CRS Report RS21955, CongressionalResearch Service, 14 October 2004, p.2.69The intelligence budget is broken into two categories: the National Intelligence Program(NIP), which supports those agencies that provide intelligence to support national policymakers; and the Military Intelligence Program (MIP), which supports military operations andactivities. Under Resolution 445, appropriations for the MIP would remain the purview of thedefense subcommittee.70David Grannis, Majority Staff Director, Senate Select Committee on Intelligence, authortelephone interview, 7 August 2009.71Sen. Christopher Bond, US Congress, 110th Congress, 2nd session, Senate, ‘SenateResolution 655 – To Improve Congressional Oversight of the Intelligence Activities of theUnited States’, Congressional Record, vol. 154, 11 September 2008, pp.S8419.72Sen. Thad Cochran and Sen. Robert Byrd, letter to Sen. Harry Reid and Sen. MitchMcConnell, 5 April 2008 (Cochran and Byrd responded to the idea when it was first proposedin March 2008 by Reid and McConnell).


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vice chair of SSCI, Sen. Bond, was an attempt to improve coordination andtransparency between the three panels. Like Pelosi’s SIOP, it was an effort tostrengthen oversight without tripping the jurisdictional minefield. The MOAprovided that: the staff of each committee be notified and allowed to attendthe intelligence hearings of the other; each SSCI member who is also anappropriator be allowed to bring his or her intelligence staff members toAppropriations Committees hearings and markups; all senators and clearedstaff of one committee be allowed to review the bill, report, and classifiedannex of the other before action is taken; and the chairmen and rankingmembers of each committee be given the opportunity to appear before theother panel to present their views prior to the markup of either theintelligence authorization or appropriations bills.73

There are varying assessments of the MOA’s effectiveness. On the onehand, Rockefeller, its author, contends that the agreement ‘has made greatstrides toward bringing our committees together in a unity of effort that waslacking before’.74 Vice Chair Bond, on the other hand, argues that the MOAhas been ineffective on each of its four points.75 Other observers tend to splitthe difference; while it has provided the basis for some improvement incommunication between the two committees, there has been little follow-upto ensure its enforcement and its impact has been marginal at best.

Possible Solutions

The history of congressional intelligence oversight and the dismal trackrecord of attempts to reform it suggest that an important preliminary step toany future reform attempts involves educating members of Congress, policymakers and the public about the nature of intelligence itself. Intelligence is acomplex issue and few who are not members of the intelligence communityunderstand it well. Since 9/11 and the war in Iraq placed intelligence issuesfront and center of the national debate, many more people talk aboutintelligence as if they understand it, but the conventional expectation is stillthat if the intelligence agencies are ‘doing it right’, then there will be nosurprises and no attacks. That belies a fundamental misinterpretation of justhow much intelligence can do. As Richard Betts has argued, intelligencefailures can never be completely prevented.76 The continued prominence ofthat expectation, however, means that when there are events that were notpredicted or attacks that were not prevented, everyone assumes thatmistakes were made and that someone must be to blame. That reactionoften both reinforces partisanship on the committee and lends an adversarialtone to the committees’ relationship with the intelligence community, bothof which complicate the oversight task. Some of this education could be

73Sen. Rockefeller, Senate Hearing 110–794, p.3.74Ibid.75Sen. Christopher Bond, Senate Hearing 110–794, p.8.76Richard K. Betts, ‘Analysis, War and Decision: Why Intelligence Failures are Inevitable’,World Politics 31/1 (1978) pp.61–89.


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provided in the form of training for members of the intelligence committeesand even policy makers in the White House.77 Another necessary form,however, is for committee members and intelligence officials to raise publicawareness of the complexities of intelligence by highlighting the issue inpublic comments and to the media.

Leadership

Congress will not be able to fulfill its oversight obligation effectively until theauthorization committees have more authority with both the intelligencecommunity and the rest of Congress itself. The single most important step inachieving this centers on strengthening the leadership of the committees.That step begins with the leadership of each chamber recognizing theimportance of returning to the original design and appointing intelligencecommittee chairs who are moderate, responsible, dedicated and committedto the notion of nonpartisan oversight. Two recent historical overviews ofcongressional oversight present persuasive arguments for the crucial roleplayed in the process by the intelligence chairs.78 Easier to achieve thanstructural or statutory changes, more effective leadership could also play acritical role in either accomplishing structural or legislative change or, at thevery least, strengthening oversight in their absence. One of the mostimportant elements of making oversight more effective is good relationshipsamong the chairs (and staff directors) of the committees involved. Indescribing 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 thechairman of the Defense Subcommittee. And I tried to persuade them of thevalue of the committee recommendations’.79

Strong, nonpartisan leadership on the intelligence committees will also gosome way toward reasserting their authority in relation to the executivebranch. While the committees will always be at an informational dis-advantage, they have gradually given ground on the issue over the years; asthe executive branch has reduced its openness to the committees, thelegislators have largely acquiesced, reluctant to push back. Reclaiming someof that lost ground requires committee chairs who can assert positionswithout being able to be dismissed as merely pressing a partisan issue.

Structural changes

In terms of structural alterations, any attempt to significantly strengthen theintelligence committees’ roles will entail encroaching on some other

77Bob Graham with Jeff Nussbaum, Intelligence Matters (Lawrence, KS: University Press ofKansas 2008) p.266.78Johnson, ‘Ostriches, Cheerleaders, Skeptics, and Guardians’; Snider, The Agency and theHill.79Sen. Hamilton, Senate Hearing 110–794, p.28.


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committee’s jurisdiction. Senator Pat Roberts (R-KS) neatly summed up thedifficulty that poses: ‘The No. 1 issue for any chairman of any committee isthat you don’t give up your turf under any circumstances – not a spadeful’.80

Moreover, the armed services and appropriations committees have had somecontrol over the issue since the CIA was created in 1947.81 Thus, now thatmany want to strengthen the intelligence committees by consolidatingjurisdiction under them, it is no surprise that these other committees arereluctant, to put it mildly, to give up any of their authority.

From an oversight perspective, the soundest option is to create intelligencesubcommittees on the appropriations committees, an alternative that hasalready been formally adopted by a majority of the Senate yet still does notexist. If anything, creating its analog in the House would be even moredifficult, given the power of that chamber’s defense appropriators. Ifstrengthening congressional intelligence oversight is ever to even have achance of working, reformers have to build political support for the idea,and the key to drumming up political support is education about thenecessity of conducting robust intelligence oversight and how importantreforming jurisdiction is in achieving that goal. Just as revelations about theexecutive’s abuses of its intelligence powers in the 1970s eventually led tothe creation of the intelligence committees (which necessarily entailedpowerful committees ceding some jurisdiction), it is possible that therevelations concerning the Bush administration’s most controversialprograms and the weaknesses of legislative oversight that those haveexposed will provide the necessary impetus to allow some further changes.

Limited Briefings

If nothing else, the mid-2009 controversy surrounding the briefings onenhanced interrogation techniques threw a spotlight on the problems withthe Gang of Eight (or Four) briefings. In response, both intelligencecommittees proposed stricter rules for such limited briefings in their 2010intelligence authorization bills. Most knowledgeable observers agree thatthere is a role for a limited briefing arrangement, but contend that theguidelines governing its use need to be tightened so that they are used morejudiciously. A first step, one included in both houses’ 2010 bills, is to requirethe executive to notify the other members of the committee whenever there isa limited briefing. As it stands now, the other members of the committeeshave no way of knowing how often such briefings are being used. Othercommonly mentioned principles for tightening the rules include that the‘extraordinary circumstances’ that allow for Gang of Eight briefings oncovert actions be more explicitly defined to be limited to situations involvingonly the gravest situations, such as risk to life and that they should only beused for a limited duration. The use of limited briefings for a multi-year

80Helen Fessenden, ‘Sept. 11 Commission’s proposals spur urgency, caution in congress’, CQWeekly, 24 July 2004, p.1815.81Snider, The Agency and the Hill, p.40.


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operation such as the warrantless wiretapping program, for example, iswidely seen as having been an abuse of the system. Another importantnecessary step that has tended to be masked by the focus on the Gang ofEight is that the provisions for Gang of Four briefings need to be codified andmade similarly explicit.

It is also imperative that senior committee staff (namely, the staff directorsand legal counsels) be allowed to attend. As explained above, their presenceis a critical part of the legislators’ ability to oversee and, moreover, there isno good reason to preclude them since they have the necessary securityclearances and deal with top secret material all the time. According to asenior HPSCI staffer, by the summer of 2009, the situation had improvedsomewhat in response to escalating members’ protests and staff directorswere sometimes being allowed to attend,82 but it needs to become the rulerather than the exception. Finally, as the CIA’s error-riddled attempt todocument who received what briefings on interrogation techniques showedin 2009, there is a dire need for more accurate record-keeping.83 Suchrecords could be classified, but both sides should have the opportunity tosign off on or record their objection to the notes, and copies should be keptat the committees’ secure facilities as well as at the CIA.

Engagement

One final area that requires attention is that of member engagement. Asmany scholars and practitioners have noted, conducting oversight ofsomething as complex as intelligence requires a considerable time commit-ment, but getting members to make that commitment is difficult given that,as former senator Bob Graham put it, ‘[t]here are no turkeys to be handedout that you can talk about’.84 There is, in other words, very little in the wayof the tangible payoffs to take back to one’s constituents that othercommittees provide to induce member engagement. So, what can be done?First, all the more reason for the leadership to select the chairs and membersof the committees carefully, with an eye towards their commitment tointelligence and oversight. Second, in the vein of creating incentives formembers, Loch Johnson recommends increasing recognition for thosewho perform well as overseers, in terms of increased perks dispensed bythe leadership, media coverage of oversight activities and perhaps publicinterest groups awarding an ‘Overseer of the Year’ award to raise publicawareness.85

A third approach to the problem is to increase the transparency andaccountability of the committees themselves. There has been a disturbing

82Author interview, senior HPSCI staffer, 13 August 2009, Washington, DC.83Pamela Hess, ‘Congressman, CIA dispute briefing list accuracy’, USA Today, 19 May 2009,5http://content.usatoday.net/dist/custom/gci/InsidePage.aspx?cId¼hometownlife&sParam¼30791081.story4 (accessed 11 August 2009).84Bob Graham, author interview, 8 August 2009.85Johnson, ‘Ostriches, Cheerleaders, Skeptics, and Guardians’, p.5.


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trend toward holding hearings in closed session, even the markups regardingthe unclassified legislative parts of the annual authorization bills (as opposedto the classified budgetary figures). As a result, even other members ofCongress, not to mention the public, are unaware of what’s included in thepublic part of the bill until it is filed. ‘[T]he result is often, inevitably, eitherlittle or no public or congressional debate, or debate that is based more onemotion than on facts’.86 Moreover, there is no public record of whichmembers attended closed hearings and briefings, meaning that they are notheld accountable in any way for not attending. And not attending becomes aproblem, according to former SSCI staff director Charles Battaglia. Whilemost members usually attend almost all intelligence hearings their first oneor two years, after that attendance can drop precipitously, as the detailsinvolved get ‘too arcane and technical’ and oversight turns out to be ‘not assexy 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 intelligenceis extremely difficult. The current system has been undermined by a toxiccombination of problems: the intelligence committees’ inherent informa-tional disadvantage in relation to the executive branch, the jurisdictionalmorass in which the committees must operate, and their own internecinepartisanship. While there are tangible changes that could be made withvarying probabilities of success, the critical ingredient in strengthening theoversight system is to emphasize the development of strong, nonpartisancommittee leadership. Another important element in achieving oversightreform will be recognizing the importance of educating all parties, from thepublic to the policy makers, about the inherent limitations of intelligenceand the crucial role that strong congressional oversight should play in doingit well.

86Spaulding, ‘Building Checks and Balances’, p.77.87Charles Battaglia, former SSCI Staff Director, author telephone interview, 5 August 2009.


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Documents

Congressional Oversight of Intelligence (is the Solution Part of the Problem)