Intelligence: From Secrets to Policy (48 page)

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Authors: Mark M. Lowenthal

BOOK: Intelligence: From Secrets to Policy
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One of the tools available to senators that some find objectionable is the ability to put a “hold” on any pending Senate matter, effectively suspending action until the hold is lifted. Since all Senate business requires unanimous consent (or a UCR, a unanimous consent request), a hold undercuts this requirement. One aspect of the senatorial hold that some find objectionable is the fact that a hold can be placed anonymously. Holds are usually lifted after the senator’s specific concerns are met. Holds can be placed on nominations. In 2007, Sen. Ron Wyden, D-Ore., put an indefinite hold on the nomination of John Rizzo to be CIA general counsel. At issue was the advice that Rizzo, a career-long CIA attorney who had served as acting general counsel for long periods, had given concerning interrogation techniques for terrorist suspects. Facing strong Democratic opposition, Rizzo requested that his nomination be withdrawn.
 
TREATIES. Advising and consenting to an act of treaty ratification is also a power of the Senate. Unlike nominations, which require a majority vote of the senators present, treaties require a two-thirds vote of those present. Intelligence became a significant issue in treaties during the era of U.S.-Soviet arms control in the 1970s. The ability to monitor adherence to treaty provisions was and is an intelligence function. U.S. policy makers also called on the intelligence community to give monitoring judgments on treaty provisions—that is, to adjudge the likelihood that significant cheating would be detected. The Senate Select Committee on Intelligence, created in 1976, was later given responsibility for evaluating the intelligence community’s ability to monitor arms control treaties. The committee gave the Senate another lever with which to influence intelligence policy. In 1988, for example, the Senate Select Committee on Intelligence, on evaluating the Intermediate Nuclear Forces (INF) Treaty and concerned about the upcoming Strategic Arms Reduction Treaty (START). demanded the purchase of additional imagery satellites. The Reagan administration, w hich had not been averse to spending money on intelligence, argued that the additional satellites were unnecessary. However, the chair of the Senate committee, David L. Boren, D-Okla., made it clear that purchase of the satellites was a price of Senate consent to the treaties.
 
REPORTING REQUIREMENTS. The separation of powers between the executive branch and the legislative branch puts a premium on information. The executive tends to forward information that is supportive of its policies: Congress tends to seek fuller information to make decisions based on more than just the views that the executive volunteers. One of the ways Congress has sought to institutionalize its broad access to information is to levy reporting requirements on the executive branch. Congress often mandates that the executive report on a regular basis (often annually) on specific issues, such as human rights practices in foreign nations, the arms control impact of new weapons systems, or, during the cold war, Soviet compliance with arms control and other treaties.
Reporting requirements, which grew dramatically in the aftermath of the Vietnam War, raise several issues. Does Congress require so many reports that it cannot make effective use of them? Do the reports place an unnecessary burden on the executive branch? Would the executive branch forward the same information if there were no reporting requirements? To give some sense of the scope of activity involved, in 2002 the House Intelligence Committee said it had asked for eighty-four reports in the past year, most of which were either late or incomplete.
An important but less visible adjunct to reporting requirements is congressionally directed actions, or CDAs. CDAs are most often studies that the intelligence community is tasked to conduct by Congress, most often via the intelligence authorization act. CDAs are but one more opportunity for Congress to get the information it desires from the executive branch. As a rule, the offices responsible for producing the CDAs find them bothersome and intrusive. CDAs can be a dangerous tool in that they are cost-free for members of Congress and their staff. They have to do no more than levy the requirement. But CDAs do impose time-consuming costs on the executive agencies to which they are sent. In some years the number of CDAs has been onerous. CDAs, like other reporting requirements, also raise questions about their utility and the degree to which Congress uses them for substantive reasons.
 
INVESTIGATIONS AND REPORTS. One of Congress’s functions is to investigate, which it may do on virtually any issue. The modern intelligence oversight system evolved from the congressional investigations of intelligence in the 1970s. Investigations tend to result in reports that summarize findings and offer recommendations for change, thus serving as effective tools in exposing shortcomings or abuses and in helping craft new policy directions. Every year the two intelligence committees report publicly on issues that have come before them. These reports may be brief because of security concerns, but they assure the rest of Congress and the public that effective oversight is being carried out, and they create policy documents that the executive must consider.
just as the executive branch has come to rely more on outside commissions for intelligence issues, Congress has increasingly created investigations of its own. After the September 11 attacks. Congress conducted a joint inquiry, which consisted of the House and Senate Intelligence Committees. The Senate committee also undertook a long study of intelligence on Iraqi WMD. The dynamics of these investigations are different from those created in the executive. First, by definition, Congress is a partisan place, made up of a party that supports the president on most issues and one that opposes the president. This can always affect an investigation. Second, Congress has some responsibility for the performance of intelligence by virtue of its control of the budget and its oversight. Thus. Congress’s ability to be objective about its own role comes into question.
Each ot these levers—hearings, reports, QFRs, CDAs, investigations—are part of the larger struggle over information that is central both to oversight and to friction between Congress and the executive. Essentially, Congress needs and wants information and the executive wants to limit the information that it provides, especially information that may not be supportive of preferred executive-branch policies. As with so much else, beyond barebones agreements on information that must be shared (budget justifications, treaty texts, background information on nominees), the remainder falls into a gray zone of debate. Therefore, struggles over information are constant in the oversight relationship. For example, in the 109th and 110th Congresses (2005-2008), issues related to policies to combat terrorism have been regular information battlegrounds. Members of Congress have sought information (usually internal administration papers) on wiretapping and interrogation techniques. These struggles for information become especially important when the issue at hand is vague or may be breaking new ground, perhaps apart from legislation, as has been the case in these two issues. Congress can issue subpoenas, but both branches usually seek to avoid taking the matter to court, in part because this involves yet a third branch of government in the decision. Congress can also deny funding or hold up action of legislation or nominees.
 
HOSTAGES. If the executive branch balks on some issue, Congress may seek means of forcing it to agree. One way is to take hostages—that is, to withhold action on issues that are important to the executive until the desired action is taken. This type of behavior is not unique to Congress; intelligence agencies use it as a bargaining tactic in formulating national intelligence estimates (NIEs) and other interagency products.
During the debate on the INF Treaty, the demands of the Senate Select Committee on Intelligence for new imagery satellites was one case of hostage taking. In 1993 Congress threatened to withhold action on the intelligence authorization bill until the CIA provided information on a Clinton administration DOD nominee, Morton A. Halperin. Halperin, who had publicly criticized U.S. covert actions in the 1970s and 1980s, eventually withdrew his nomination for the newly created post of assistant secretary of defense for democracy and peacekeeping. In 2001, the intelligence committees “fenced” (put a hold on) certain funds for intelligence to prod the Bush administration into nominating a new CIA inspector general. Critics argue that hostage taking is a blunt and unwieldy tool; supporters argue that it is used only when other means of reaching agreement with the executive have failed.
 
PRIOR NOTICE OF COVERT ACTION. One of Congress’s main concerns is that it receives prior notice of presidential actions. Most members understand that prior notice is not the same as prior congressional approval, which is required for few executive decisions. Covert action is one of the areas that have been contentious. As a rule, Congress receives advance notice of covert action in a process that has been largely institutionalized, but successive administrations have refused to make prior notice a legal requirement. A congressional demand for at least forty-eight hours’ notice led to the first veto of an intelligence authorization bill, by President George H.W. Bush in 1990. In 2008, the House Intelligence Committee threatened to fence money for all covert actions unless they are briefed on each of them.
ISSUES IN CONGRESSIONAL OVERSIGHT
 
Oversight of intelligence raises a number of issues that are part of the “invitation to struggle,” as the separation of powers has often been called.
 
HOW MUCH OVERSIGHT IS ENOUGH? From 1947 to 1975—the first twenty-eight years of the modern intelligence community’s existence—the atmosphere of the cold war promoted fairly lax and distant congressional oversight. A remark by Sen. Leverett Saltonstall, R-Mass. (1945-1967), a member of the Senate Armed Services Committee, characterized that viewpoint: “There are things that my government does that I would rather not know about.” This attitude was partly responsible for some of the abuses that investigations uncovered in the 1970s.
Working out the parameters of the intelligence oversight system has not been easy. Successive administrations, regardless of party affiliation, have tended to resist what they have seen as unwarranted intrusions.
There is no objective way to determine the proper level of oversight. Committees review each line item on the budget. They do so to make informed judgments on how to allocate funds, which is Congress’s responsibility. Reviewing specific covert actions may seem intrusive to some, but it represents an important political step. If Congress allows the operation to proceed unquestioned, the executive branch can claim political support should problems arise later. Similarly, serious questions raised by Congress are a signal to rethink the operation, even if the ultimate decision is to go ahead as planned.
Does rigorous oversight require just detailed knowledge of intelligence programs, or does it require something more, such as information on alternative intelligence policies and programs? Congress has, on occasion, taken issue with the direction of intelligence policy and acted either to block the administration, such as the Boland amendments that prohibited military support to the contras, or to demand changes, such as the purchase of the arms control-related satellites.
 
SECRECY AND THE OVERSIGHT PROCESS. The high level of security that intelligence requires imposes costs on congressional oversight. Members of Congress have security clearances (through top secret) by virtue of having been elected to office. Members must have clearances to carry out their duties. Only the executive branch can grant security clearances, but there is no basis for its granting or denying clearances to members of Congress, as this would violate the separation of powers. At the same time, member clearances do not mean full access to the entire range of intelligence activities. Congressional staff members who require clearances receive them from the executive branch after meeting the usual background checks and demonstrating a need to know. Congressional staffers are not polygraphed as a prerequisite for clearances.
Although all members are deemed to be cleared, both the House and Senate limit the dissemination of intelligence among members who are not on the intelligence committees. Although this limitation replicates the acceptance of responsibility that all congressional committees have, in the case of intelligence it entails additional burdens for the panels, as their information cannot be easily shared. Thus, the intelligence committees require special offices for the storage of sensitive material and must hold many of their hearings in closed session. Both houses have also created different levels of notification for members about intelligence activities, depending on the sensitivity of the information. Intelligence officials may brief only the leadership (known as the
Gang of 4),
or the leaders and the chairmen and ranking members of the intelligence committees (known as the
Gang of 8),
or some additional committee chairmen as well, or the full intelligence committees.
Despite these precautions and the internal rules intended to punish members or staff who give out information surreptitiously, Congress as an institution has the undeserved reputation of being a fount of leaks. This image is propagated mainly by the executive branch, which believes that it is much more rigorous in handling classified information. In reality, most leaks of intelligence and other national security information come from the executive branch, not from Congress. (In 1999 DCI George Tenet admitted before a congressional committee that the number of leaks from executive officials was higher than at any time in his memory.) This is not to suggest that Congress has a perfect record on safeguarding intelligence material, but it is far better than that of the CIA, State, DOD, or the staff of the NSC. The reason is not superior behavior on the part of Congress so much as it is relative levers of power. Leaks occur for a variety of reasons: to show off some special knowledge, to settle scores, or to promote or stop a policy. Other than showing off, members of Congress and their staffs have much better means than leaks to settle scores or affect policy. They control spending, which is the easiest way to create or terminate a policy or program. Even minority members and staff can use the legislative process, hearings, and the press to dissent from policies or attempt to slow them down. Officials in the executive branch do not have the same leverage and therefore resort to leaks more frequently. However, the perception of Congress as a major leaker persists.

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