Watching the Watchers: The Challenge of Intelligence Oversight

Friday, June 1, 2007

A Presentation by Tim Roemer at Harvard Law School

April 12, 2007

Summary of Presentation

How the most open branch of the U.S. Government, Congress, oversees the most closed element of the Executive branch, the Intelligence Community, is one of the greatest challenges facing the 110th Congress. Armed with timely and accurate intelligence we can prevent and win wars. Without good intelligence, our nation’s decisions will be flawed.

Our goal must be to greatly improve this central national security capacity but without oversight accountability, intelligence reform can create a dangerous imbalance within our republic. While the new Congress has made some progress in strengthening oversight, the relationship between Capitol Hill and the Intelligence Community is still out of balance and in need of calibration.

A History of Imbalance
Historically, Congress has cycled through periods of tougher and weaker oversight. America’s modern, standing, and civilian intelligence capability did not exist until our entrance and success in World War II. With the advent of the National Security Act of 1947, Congress created our first meaningful civilian intelligence community. But from 1947 to the mid-1970s, Congressional oversight of the intelligence community was haphazard and inconsistent.

Specialized oversight committees simply did not exist for the intelligence community until abuses at the CIA inspired Congress to create an ad hoc mechanism, the Church Committee, to assert its prerogative. That Committee wielded powerful investigative powers, digging into the years of illegalities and irregularities and recommending reforms. Among those reforms was the creation of intelligence authorizing committees in both the House and Senate.

After a decade of relative quiet, in the late 1980s Congress once again cranked up the scrutiny when the Iran-Contra scandal hit the pages of the nation’s newspapers. This time, a rogue intelligence operation run out of the Executive Office of the President was used to do an end-run around the statutory, Congressional oversight process; in effect shielding the operation with the claim of executive privilege.

In the 1990s, with the end of the Cold War, Congress was generally kept abreast of intelligence activities, but the reduction in strategic conflict led to an Intelligence Community without a compass after the collapse of the Soviet threat. In contrast to the 1970s when the problem was a renegade intelligence community, by the late 1990s, the problem was a rudderless intelligence community unable to understand and analyze an increasingly hostile threat environment.

The surprise attack of September 11, 2001 showed dramatically what can happen when America’s leaders are unable to comprehend a strategic threat and the Intelligence Community is too dependent on signals (electronic) intelligence at the expense of human intelligence.

In the run-up to the Iraq war, once again, the intelligence community failed to provide accurate analysis of the biological, chemical, nuclear, and political threats. The flawed intelligence in Iraq and the missing human intelligence in Iran and North Korea leave us exposed and vulnerable.

Structural Barriers to Oversight
While partisan politics will always play a determining role in the quantity and quality of oversight, other significant factors come into play. One of the structural barriers to oversight is Congress’s enormous workload. Each House of Congress is required to conduct authorization and appropriation oversight for every aspect of the U.S. government. The intelligence budget is expanding rapidly as are the community’s missions and programs. At the same time, members of the intelligence committees are very busy, belong to several other committees and must take considerable time to understand the details of the covert programs.

Another barrier is secrecy. The most important oversight concerns are often the most highly classified, making it difficult for Congress to properly examine them. Often, sensitive operations are revealed only to the “gang of eight,” the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders and the Chairman and Ranking Members of the two Intelligence authorizing committees. The impact of such notifications on effective oversight can be chilling.

A third barrier is the limitations of Congressional oversight itself. Specifically, oversight acts as a brake, not a steering wheel. The power of the purse, the predominant Constitutional power used as leverage in oversight, is not a power that can provide 20/20 vision or effective leadership. Rather, the power to authorize and appropriate budgets is a negative power, to deny, to trim, to criticize, and to investigate. Absent effective executive leadership, Congressional oversight is simply incapable of doing much more than punishing policies or behavior the Committee deems unacceptable. Yet it is imperative in order to implement the checks and balances envisioned in the Constitution.

Recent and Future Reforms
There are numerous weaknesses in our system and we know how to fix them. The 9/11 Commission recommended both the creation of the DNI but also the strengthening of Congressional oversight. A strong DNI is required to change the culture between the FBI and CIA, demanding and coordinating the necessary sharing of intelligence of foreign and domestic threats. Consequently, Congress must perform aggressive and consistent oversight on the performance and effectiveness of the DNI.

Immediately upon inauguration in January 2007, Speaker of the House Nancy Pelosi took a step in the right direction when she and her colleagues created a special intelligence panel of the House Appropriations Subcommittee on Defense. This panel, created to allow a dedicated group of U.S. Representatives to examine the budget of the Intelligence Community, does much to reduce the ability of the IC to play the authorizing committee against the appropriations committee or even to completely circumvent Congress altogether.

While this constitutes progress, it is not sufficient. More must be done in both the House and the Senate. The 9/11 Commission gave Congress two different options for strengthening oversight commensurate with the increased powers of the Director for National Intelligence. First, Congress could create a single committee based on the model of the Joint Committee on Atomic Energy. This would combine authorizing and oversight powers of the House and Senate in one Committee. Alternatively, it could create a single committee in each house, combining both authorizing and appropriating powers.

Either of these solutions, when backed by competent and serious member participation, can balance the constitutional scales when it comes to oversight. The Joint Committee on Atomic Energy demonstrated how well a Congressional committee can rise to the challenge of a new threat, cloaked in secrecy, and conduct oversight essential to American national security.

Conclusion
Effective and continuous Congressional oversight is essential to the well-being of the nation. The benefits of Congressional diligence should be obvious. Senator Harry Truman, who led an under-funded and ad-hoc committee to investigate waste and fraud in the war effort during World War II dubbed the “Truman Committee,” saved America $15 billion in 1945 dollars.

Truman’s Committee saved our soldiers lives, saved billions of dollars, happened during a time when one party controlled both Congress and the White House, and raised Senator Truman’s profile enough to win him his party’s nomination to be vice president. Intelligence oversight during a time of war is perhaps even more important and can yield the nation and our legislators similar rewards. It is time to step up to the challenge.

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