Intelligence: From Secrets to Policy (46 page)

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Authors: Mark M. Lowenthal

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The executive branch has tended to focus its oversight on issues related to espionage and covert action, although analytical issues (Team A-Team B, the September 11 terrorist attacks) are occasionally investigated. Espionage oversight is inclined to concentrate on lapses, such as the Aldrich Ames spy case or allegations of Chinese espionage. For example, in 1999 PFIAB issued a scathing report on Department of Energy security practices related to Chinese espionage. As with all other activities, executive branch organizations divide responsibility for overseeing covert action. The president is responsible for approving all covert actions, but the day-to-day responsibility for managing them resides with the director of the Central Intelligence Agency (CIA) and the National Clandestine Service (NCS), formerly the Directorate of Operations (DO).
One oversight issue relating to covert action centers on the operating concept of plausible deniability. In the case of large-scale paramilitary operations—such as the Bay of Pigs or the contras in Nicaragua—deniability is somewhat implausible. But many covert actions are much smaller in scale, making it possible to deny plausibly any U.S. role. Some critics of covert action argue that plausible deniability undermines accountability by giving operators an increased sense of license. Because the president will deny any connection to their activities, they operate under less constraint. The critics raise a point worth considering but overlook the professionalism of most officers.
Another oversight issue relating to covert action has to do with broad presidential findings, sometimes called global findings, versus narrow ones. Global findings tend to be drafted to deal with transnational issues, such as terrorism or narcotics. The broader the finding, and thus the less specificity it contains, the greater is the scope for the intelligence community to define the operations involved. Although not suggesting that the president should precisely define covert actions, a broad finding does run a greater risk of disconnecting policy preferences from operations.
Policy makers must also be concerned about the objectivity of the intelligence community when it is asked to assess or draw up a covert action. Once again, intelligence officers who feel a need to demonstrate their capabilities may not be able to assess in a cold-eyed manner the feasibility or utility of a proposed action.
Similar concerns may arise when assessing the relative success of an ongoing covert action. Have policy makers and intelligence officials agreed on the signs of success? Are these signs evident? If not, what are the accepted timelines for terminating the action? What are the plans for terminating it?
Finally, can intelligence analysts offer objective assessments of the situation in a country where their colleagues are carrying out a major covert action, particularly a paramilitary one? This issue may be of heightened concern in view of the closer partnership forged between the then-DO and Directorate of Intelligence in the mid-1990s.
The propriety of intelligence activities is also an aspect of oversight. Are the actions being conducted in accordance with law and executive orders (EOs)? All intelligence agencies have inspectors general and general counsels. In addition, the President’s Intelligence Oversight Board (PIOB), a subset of PFIAB, can investigate. However, the PIOB is a reactive body, with no power to initiate probes or to subpoena. It is dependent on referrals from executive branch officials. Nonetheless, the PIOB has carried out some useful classified investigations. However, the PIOB fell into disuse during the George W. Bush administration. Members were not appointed until 2003, two years after the administration took office. According to press accounts, the PIOB did not take any actions on various potential violations that were reported to it—mostly in connection with the war on terrorism—until 2006. The PIOB is supposed to forward such reports to the attorney general.
A recent addition to executive oversight has been the Privacy and Civil Liberties Oversight Board, which had been recommended by the 9/11 Commission report and was created legislatively in 2004. The board, more popularly known as the Civil Liberties Protection Board, is chartered to ensure that concerns about privacy and civil liberties are considered when laws, regulations, and policies to combat terrorism are developed. The board has both an advisory and oversight function. The board is part of the executive office of the president, who selects its members. The chairman and vice chairman are subject to Senate approval. The Bush administration’s commitment to the board came into question because members were not selected until March 2006. Once it was appointed, the board spent most of its first year getting organized and acquainting itself with the agencies with which it needs to deal. According to the board’s first annual report, it will emphasize issues concerning U.S.
persons,
a legal term meaning U.S. citizens or legal permanent resident aliens, or issues occurring on U.S. soil. The specific areas of concentration include intelligence information sharing, terrorist surveillance, and watch lists and data mining.
The controversies that engulfed intelligence after 2001, primarily the September 11 attacks and Iraq’s alleged possession of weapons of mass destruction (WMDs), led to an increased use of outside commissions to provide assessments of intelligence. In the United States, great political pressure was brought to bear on President George W. Bush to appoint a commission to investigate intelligence performance before September 11, after Congress’s joint inquiry reported to little satisfaction on anyone’s part. Similarly, after the Iraq controversy, Bush appointed a WMD commission. The prime ministers of Britain and Australia also appointed commissions to look into intelligence on Iraq. Britain’s Butler Report concluded that few reliable sources were available on Iraqi WMD programs, especially human resources. Lord Butler and his colleagues found that the intelligence assessments made good use of the intelligence they did have, although much of it was inferential. As was the case in the United States, analysts did not have complete knowledge of the background of key human resources. The report also found that there was no politicization of intelligence. Australia’s Flood Report made similar findings, noting the paucity of information—much of which came to Australia from the United States or Britain, and the failure to examine the political context in Iraq as well as the technical issue of WMDs—a criticism that some have made regarding U.S. intelligence, including director of the CIA (DCIA) Gen. Michael Hayden during his 2006 confirmation hearings. The Flood Report doubted, however, that better intelligence processes would have led to the correct conclusion about the state of Iraqi WMDs. The report also noted that there was no evidence of politicized intelligence.
A fitting conclusion to this issue, which will likely haunt the intelligence agencies in all three countries for years to come, is the report of Charles A. Duelfer, who headed the Iraq Survey Group (ISG) for the DCI. The ISG spent two years in Iraq examining the state of Iraqi WMDs after the occupation of Baghdad. Duelfer had been a senior member of the United Nations Special Commission (UNSCOM), charged with overseeing the disarmament of Iraq after the 1991 Persian Gulf War, until it was ejected by Iraqi leader Saddam Hussein in 1998. Duelfer concluded that Saddam was determined to obtain WMDs but would wait until United Nations sanctions had been lifted. But to achieve that goal, Saddam wanted to preserve the capacity to reconstitute WMDs, especially missiles and chemical weapons, as quickly as possible once the sanctions were gone. Finally, Saddam sought to create a state of strategic ambiguity, seeking to convince Iran that Iraq had WMDs as a means of deterring Iran while Iraq remained weak. If Duelfer’s assessments are correct, then one could argue that the intelligence agencies were accurate in their assessment of Saddam’s intentions but not the state of his inventory and that they correctly picked up the signs that he was transmitting that he had WMDs. They were not able to see through them, however.
The increased use of these commissions raises several issues. First, the commissions are, almost by definition, political in nature. A government is either trying to gain some political advantage or bowing to political pressure in creating a commission. Second, given that commissions are created by a sitting government, the issue of a commission’s objectivity always arises. This is usually addressed by appointing a range of commissioners whose political views or backgrounds are diverse. But this raises a third issue. How much expertise do they bring to the subject? Intelligence, like any other profession, has its own vocabulary and its own practices, some of which are difficult for an outsider to comprehend or to learn with much facility over the course of an investigation. If too many former intelligence professionals are appointed, the commission will appear to be biased. But if most of the commissioners have little or no intelligence experience, their ability to investigate in a meaningful and perceptive manner may suffer. Finally, the political circumstances that create the commission increase the likelihood that a significant group in the body politic will be dissatisfied with the result, charging either a whitewash or a lynching.
One final area of executive branch oversight has become more controversial in recent years. This is the role played by inspectors general, particularly the CIA inspector general (IG). Every cabinet department, every major agency, and several small ones have an IG. All lGs essentially have the same function: to ensure that their department or agency is operating within legal guidelines, effectively carrying out its mission and not engaging in activities that are unlawful, wasteful, or criminal. The CIA has had an IG since 1952; the position was given a statutory basis in 1989. The CIA IG must be confirmed by the Senate, making this IG one of the few intelligence officials below the level of agency director that requires Senate confirmation. The CIA IG reports to the director of the CIA, but the director has limited authority to constrain or limit the IG. If the director acts to limit the IG’s activities, for reasons of national security, the director must inform the two intelligence oversight committees about why. Only the president can remove the CIA IG and, again, the president must also inform the intelligence committees of the reasons for doing so. Thus, to the extent possible, Congress tried to give the CIA IG a fair amount of independence.
As noted elsewhere, in December 2002, Congress ordered the CIA IG, John Helgerson, to prepare an “accountability report” on the CIA’s performance before 9/11. The completed report, which went to DCIA Porter Goss in June 2005, found that the CIA and its officers “did not discharge their responsibilities in a satisfactory manner.” The report also found systemic problems in how the CIA addressed the terrorism issue and criticized specifically the performance of DCI George Tenet. Deputy Director for Operations James Pavitt, and the then-chief of the Counterterrorist Center J. Cofer Black. These individuals were particularly faulted for not devoting enough resources to the terrorism issue and for inadequate follow-through, points that Tenet has refuted. The report recommended that DCIA Goss convene accountability review boards to assess their performance, a step before any disciplinary action can be taken. However, Goss declined to do so, saying this would wrongly single out individuals for what were larger problems and would send the wrong signal at a time when he was urging officers to take risks. Needless to say, Goss’s decision was criticized by members of Congress and others.
The report remained classified until August 2007, when DCIA Hayden, who had replaced Goss in May 2006, released it as required by new legislation. Hayden made it clear that he opposed the release of the report. His statement also seemed to praise those cited in the report and to question the utility of the IG’s hindsight. Hayden wrote, “The summary, like the complete report, is a very human document. In it, one group of agency officers—dedicated to their task—looks back to examine and judge the actions of another group of agency officers—dedicated to their task, the task of understanding and combating al-Qai’da.”
This might have ended the issue, but in October 2007, Hayden ordered a review of the CIA IG’s office, voicing concerns about its fairness and impartiality when it reviewed the terrorist detention and interrogation programs. Congressional reaction was predictably negative, with some accusing Hayden of setting the review in motion as a way of forcing Helgerson to curtail his activities. According to press accounts, officers involved in these programs felt they were prosecuted rather than investigated. Former CIA general counsel Jeffrey Smith also noted the dissonance involved for officers who are told by the general counsel that a program is legal and then find themselves being investigated for conducting that program. Smith also noted the difference between operational decisions made under pressure and the hindsight of an IG review. Smith’s comments capture the problem with IG and other
ex post facto
reviews, especially on fast-moving or highly important and sensitive issues.
As could be expected, Hayden’s review aroused concerns in Congress that an oversight mechanism was being stifled. In early 2008, Hayden informed CIA employees that the CIA IG had agreed to the appointment of a special ombudsman to oversee his work, as well as a “quality control officer” who would ensure that “exculpatory and relevant mitigating information” was also included in IG reports, as well as more rapidly conducted investigations.
CONGRESSIONAL OVERSIGHT
 
Congress approaches intelligence oversight—and all oversight issues, whether national security or domestic—from a different but equally legitimate perspective from that of the executive branch.
The concept of congressional oversight is established in the Constitution. Article I, Section 8, paragraph 18, states, “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Courts have found that the Necessary and Proper Clause includes the power to require reports from the executive on any subject that can be legislated. The essence of congressional oversight is the ability to gain access to information, usually held by the executive, which is relevant to the functioning of the government.

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