Intelligence Oversight In Congress: Perilous Times – Analysis

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Intelligence Oversight In Congress: Perilous Times – Analysis
By: Marvin C. Ott - EURASIA Review & Foreign Policy Research Institute - 4-18-19
Re: https://www.eurasiareview.com/180420...imes-analysis/

In an ever more complex, interconnected, and dangerous world, the value of high quality intelligence data and analysis for policymakers would seem obvious. The threats to U.S. security are implacable and multifaceted, including cyberattacks, hypersonic weapons, climate change, terrorist networks, and the theft of critical technologies—everything from North Korean nuclear/missile capabilities to Chinese penetration of European digital infrastructure. Understanding the scope and precise nature of these and other threats requires information and insight of a very high order—and some of that will depend on acquiring the secrets of other international actors.

During the Cold War, most of American intelligence collection and analysis focused, understandably, on the Soviet Union. In the late 1990s and particularly after the 9/11 attacks, the focus shifted to international jihadist/terrorist networks and their state supporters. With the U.S. invasion and occupation of both Afghanistan and Iraq (and to a limited extent, Syria), a major effort went into mapping the immediate threats to American forces. In these military theaters, CIA activities often evolved beyond traditional espionage and analysis to commando-type combat roles—essentially indistinguishable from military Special Forces.[1]

The 9/11 attacks and the U.S. response thrust the CIA into key, highly controversial roles—including “special renditions” of Al Qaeda suspects and the use of “enhanced interrogation” methods at CIA-maintained “black sites.” It is not possible to conduct such multifaceted, high-risk missions without incurring controversy and criticism. The analysis supporting counterterrorism operations earned its own share of criticism. The failure to “connect the dots” prior to 9/11, misjudgments concerning Iraq’s alleged WMD capabilities, and controversial intelligence assessments regarding Iran’s alleged nuclear ambitions all provided ample grist for critics. However, none of this produced any serious moves to curtail or reduce U.S. investments in the agencies and programs collectively referred to as the Intelligence Community (IC). On the contrary, intelligence personnel and budgets have been on a rocket ride upward for years. Today, the IC is a multidimensional behemoth comprising civil, military, scientific, space, paramilitary, and analytical components. U.S. “collection” capabilities run the gamut from traditional spy craft through myriad space-based platforms to a variety of ultra-sophisticated electronic/cyber technologies. America’s current annual intelligence budget (excluding tactical battlefield intelligence) is estimated at $60 billion—and counting.

Throughout the 72 years since the CIA was established, the primary “customers” for intelligence product have been found at the senior levels of the Executive Branch—and most particularly, in the White House. The “Presidential Daily Brief” (PDB) has long been the gold coin-of-the-realm. A succession of CIA Directors, and more recently Directors of National Intelligence, has jealously guarded the personal access to the president provided by the opportunity to conduct the PDB. When a CIA Director, like George Tenet, could create a close personal bond with the president (built on a shared love of basketball) that is as good as it gets in terms of IC influence and perceived value.

In practice, Congress has long occupied an ambivalent, and secondary, place as a “customer.” As a coequal branch of government and the source of IC funding, Congress had an incontestable claim to intelligence product—both as written reports and committee testimony and briefings. This did not prevent many, if not most, in the IC from viewing congressional demands for access to intelligence as unwelcome and even, somehow, illegitimate. Distrust of the Congress runs deep in the intelligence agencies—the assumptions being that Congress can never fully appreciate what intelligence professionals do, that Congress is unable to keep secrets, that congressional members and staff are looking for information that they can misuse for political purposes, and simply that Congress is just “not one of us.”

These attitudes highlight the fundamental difficulties in creating and conducting effective congressional oversight of the IC. But the difficulties go deeper than attitudes; there is a fundamental tension between the processes and values that animate political democracy and those of the cloistered world of intelligence. Consider the contrasts. Democracy requires an informed electorate and the relatively free flow of information. Intelligence agencies operate according to entirely different principles: secrecy, need-to-know, and compartmentation of classified information. Democracies are typically suspicious of concentrated power and tend to devolve significant authority downward and outward toward provincial/state and municipal authorities. Intelligence agencies, however, concentrate and centralize both authority and access to information. Democracies are rooted in the rule of law and that law in turn is based on broadly held values in the society. Intelligence, by contrast, often requires special exemptions under domestic law and regularly involves violating the laws of other countries. In most countries and at most times, intelligence has been practiced as a ruthless business that in the end recognizes only the law of success and survival with one measure of merit: did it work? Although not specifically enshrined in the Constitution, privacy has assumed the status over time as a basic right of citizens. However, when an individual becomes an employee of the CIA, he or she largely forfeits such rights vis-à-vis the IC. A condition of employment is a “full scope” polygraph designed to probe and lay bare the most private behavior and motivations. Finally, democracy at some fundamental level requires a degree of mutual trust among citizens and between citizens and government. Within the intelligence world, the price of security is vigilance and with vigilance comes an ingrained suspicion concerning the motives and activities of coworkers and counterparts.

All this adds up to a dilemma. Can a democracy maintain an effective, capable intelligence service without doing violence to the norms, processes, and institutions of democracy, itself? Furthermore, can an elected legislature effectively oversee and manage a modern, capable, intelligence apparatus? The problem is particularly acute in parliamentary systems where the fusing of legislature and executive creates a fundamental structural impediment to independent legislative oversight. For the U.S., however, with its almost unique separation of powers, legislative oversight is feasible—at least in principle.[2]

Feasible does not mean workable. There are obvious and difficult questions whether a highly politicized institution (Congress) dedicated to free debate and wide-open public access could ever be a reliable custodian of the nation’s most sensitive secrets—much less serve as an effective overseer and critic.

It is worth noting that congressional oversight is particularly important in the case of intelligence given the clandestine nature of the enterprise. The press and other myriad watchdog organizations cannot provide the kind of public scrutiny of the IC that they can for, say the Department of Energy or the State Department.

A detailed review of the tortured history of congressional oversight of intelligence is beyond the scope of this essay. Suffice to say, that history began with an extended, initial period (1947 through the 1970s) of relaxed old-boy understandings between senior members of the Senate, notably Richard Russell (D-GA), and various CIA Directors. In that era, Congress asked few questions and Directors volunteered little—except their budget requirements. However, by the late 1970s, the landscape that sustained that clubby world had changed dramatically. The catalysts came in the form of a series of high profile controversies including a Vietnam War CIA operation using targeted assassinations (Phoenix Program), the CIA role in Chile and the death of President Allende, and the broader rending of the political fabric occasioned by the Vietnam War and the Watergate scandal. All this led Congress, for the first time, to get serious about congressional oversight of the CIA and other secret programs. Two special purpose vehicles, the Church Committee (Senate) and the Pike Committee (House) produced legislation creating two new oversight Committees: the Senate Select Committee on Intelligence (SSCI)[3] and the House Permanent Select Committee on Intelligence (HPSCI). The Committees were empowered by their authorizing statutes to obtain any necessary information from the intelligence agencies, including the most sensitive and closely held secrets. As a practical matter, both committees agreed to avoid asking for the identity of specific agents and to stay away from liaison relationships that the CIA had with other foreign intelligence entities.

It was one thing to establish committees; it was quite another to figure out how to operate them effectively. Among the intelligence agencies, the initial inclination, understandably, was to see this new congressional initiative as unwelcome and even threatening. Everyone knew that, despite the formal authorities of the select committees, there were myriad ways the IC could frustrate oversight—through obfuscation, concealment, delay, and even deception. The SSCI, for example, had a staff of about thirty. They were tasked with overseeing an IC where just the three most important agencies (CIA, NSA, and DIA) had tens of thousands of employees and controlled trillions of pieces of discrete data. The committee staff could not possibly be productive without a degree of cooperation on the part of the agencies. But such cooperation had to be earned. After an initial two- or three-year period of “getting to know you,” the SSCI and the IC—perhaps against the odds—settled into a productive working relationship. That achievement rested on a number of deliberate initiatives by the leadership of the SSCI:

The committee Chairman (Sen. David Boren D-OK) and Vice Chairman (Sen. William Cohen R-ME) determined to conduct the committee’s business in a strictly nonpartisan, even apolitical, manner.
The SSCI staff was selected for professional expertise, not political loyalty. In practice, this meant that most of the staff comprised former employees of the IC, itself. The staff was knowledgeable and experienced and, as such, gradually gained the respect of their IC counterparts.
The committee put in place procedures and facilities for receiving and handling classified information that met IC standards in full.
As for the IC, itself, it was critical that senior leaders determined early on that it would be a fool’s errand to adopt a hostile, non-cooperative, posture toward oversight. In fact, the oversight committees could be important conduits for bringing intelligence insights to bear on legislation. Equally important, when the CIA or another agency appeared in the press as a target of criticism, the committees could act as their defender—by authoritatively rebutting the latest conspiracy theory or alleged scandal.
None of this was easy. A productive relationship between congressional oversight and the IC is by its very nature, tenuous and fragile. And, in fact, as the tenure of Sen. Boren and Sen. Cohen on the SSCI came to an end (1989-91), the effectiveness of the committee rapidly eroded. Under a succession of Chairmen D. DeConcini (D-AZ), A. Specter (R-PA), and R. Shelby (R/AL), all the safeguards built by Boren and Cohen fell away. The committee staff was hired with political loyalty and service, not professional competence, in mind. Members of the committee arrayed themselves as political partisans (with majority and minority staffs) producing a deeply divided (and often paralyzed) committee as a result. Chairmen showed an increasing proclivity to use intelligence products as weapons in their various political battles. Sen. Shelby conducted a long-running (and utterly pointless) personal feud with CIA Director George Tenet.

The costs of such dysfunction were real, even catastrophic. A hypothetical, but quite plausible scenario will make the point. The investigations following the 9/11 attacks revealed that separate pieces of intelligence existed within the IC, that, if pulled together (“connect the dots”) might well have provided the warning needed to thwart the attack. If the SSCI had been functioning as it did in the 1980s, the committee staff may have picked up bits and pieces from their own regular contacts and inquiries at the FBI, the CIA, the FAA, etc. The staff director would have tasked the staff to run these rumors and reports to ground—in a word, connect the dots. And with access to all components of the IC, they could have done just that. It is not a stretch to say that the SSCI of Boren’s day would probably have detected the 9/11 plot before it could be carried out.

When Sen. D. Feinstein (D-CA) assumed the leadership of the SSCI in 2009, she inherited a broken institution. Her efforts to rebuild the committee were derailed as she became mired in a bitter, long-running, struggle with the CIA over the issue of whether its interrogation of some 9/11 suspects amounted to “torture” (including waterboarding). The ultimate result was condemnatory SSCI report, endorsed by Democrats and rejected by Republicans that left the CIA in a defensive crouch trying to protect its operatives against possible criminal prosecution. The net result was poisonous for both the SSCI and the CIA.

In 2015, Sen. R. Burr (R-NC) became chairman of the SSCI and two years later Sen. M. Warner (D-VA) joined him as Ranking Minority Member. They have made the first sustained effort in over 25 years to rebuild the SSCI on a non-(or less) partisan, more professional basis. The HPSCI, however, went in a very different direction. It became deeply divided along partisan political lines with the majority led by Chairman D. Nunes (R-CA) who saw his (and the committee’s) role as defending President Trump irrespective of fact or merit. The minority was led by Rep. A. Schiff (D-CA) who positioned the Democrats as critics of Trump and Nunes, particularly concerning Russian attempts to manipulate the 2016 election. The 2018 congressional elections flipped the roles of Nunes and Schiff, and now the Democrats have focused the oversight efforts of the HPSCI on the White House and Russia.

The election of Donald Trump as President in 2016 has completely upended the established relationship between the IC and the White House/Executive Branch. It began immediately after the inauguration when the newly elected president used CIA sacred ground (where fallen agents are memorialized) for a political rant replete with factual falsehoods. It quickly became evident that Mr. Trump had neither the patience nor the interest to read IC product. He could barely sit still for even the most summary oral briefing. The president’s statements and actions repeatedly demonstrated that he was getting most of his “intelligence” from hours of watching Fox network entertainment programming.

If there was ever any doubt concerning Mr. Trump’s disregard, even hostility, regarding the work of the intelligence agencies, it was dispelled when the leadership of the IC testified before Congress in late January. That testimony graphically underlined differences between the intelligence professionals and the president concerning such high profile issues as North Korean nuclear/missile programs, the “defeat” of ISIS, and Iran’s compliance with its nuclear treaty obligations. Mr. Trump reacted by publicly rejecting their conclusions, berating their performance and declaring the IC leadership “needs to go back to school.”

The assault on the IC has not been confined to the White House. The Attorney General, William Barr, while recently testifying before a Senate subcommittee, volunteered the startling observation that the Trump campaign had been the victim of “spying” by intelligence agencies—perhaps with “predicate,” perhaps not. This gratuitous attack left the AG sounding like a conspiracy maven on the dark web. In fact, the “predicate” for the FBI investigation of possible Russian involvement with the Trump campaign has long been on the public record in fulsome detail.

For the IC, all this is a dramatic—and traumatic—turn of events. When Sean Hannity has far more influence on the president’s worldview than the DNI, we have crossed into an incomprehensible twilight zone. At the same time, the congressional oversight committees (and others) have emerged as receptive, sympathetic consumers of intelligence—eliciting information and analysis that the White House does not want to hear. The emerging roles of the two oversight committees are rather different from one another. The SSCI is attempting to maintain a Boren-era nonpartisanship—treating IC product as valuable support for legislation and policy, but not as a political weapon. The HPSCI, deeply riven by partisan rancor, is quite different. Rep. Schiff seems determined to shine a light into myriad dark corners that the White House wants to keep dark—and to support a legislative agenda in stark contrast to that of the administration. This, in turn, has made Schiff a primary Republican target—the embodiment of alleged political overreach.

The practical outcome of all of this remains very much in doubt with the Mueller Report the immediate issue in play.[4] Intelligence oversight has long been a crippled enterprise—with real attendant costs. Now, the doubts and uncertainties are extending to the entire spectrum of American intelligence capabilities and programs. If the White House has no interest in (or is actively hostile toward) the output of the IC, how can the vast sums being spent on intelligence programs be justified? Is the near term future one where intelligence products are tailored for other Executive agencies as well as congressional consumers—and the broader public? The appetite in Congress for such products potentially extends well beyond the Intelligence oversight committees. IC analysis of North Korean programs, for example, will be in high demand in the Foreign Affairs and Armed Services/Defense committees. Analysis of the impacts of climate change on U.S. national security interests (e.g., in the Arctic) will have a “market” in the public sphere if the IC can find a way to make its product available in unclassified forms. The same point would apply to analysis of the changing constellation of power and conflict within Syria, Libya, the Persian Gulf, and Yemen. This would put the IC into a role—public education—that it has played only very sparingly.

At a minimum, we seem to have reached a point where the long-established verities surrounding the IC, as well as its congressional overseers, are in question. The IC can—for a time—pretend that nothing has changed. But, in fact, everything has changed. Consequently, it is time to reconsider the fundamentals, including the relationship between the Intelligence Community, the Congress, and the broader public.

*About the author: Marvin C. Ott is a Senior Fellow at the Foreign Policy Research Institute and a Senior Scholar at the Woodrow Wilson International Center for Scholars.

[1] CIA paramilitary operations are well documented. The first U.S. forces into Afghanistan after the 9/11 attacks were CIA commandos, not military Special Forces—much to the irritation of the Secretary of Defense, Donald Rumsfeld. CIA paramilitaries have routinely manned outposts along the Afghanistan/Pakistan border jointly with Special Forces. The current CIA website offers career opportunities as “Paramilitary Operations/Special Skills officer” with a starting salary up $103,639 or higher, plus a “one-time hiring bonus of up to 21 percent of base pay.”

[2] Paradoxically, perhaps, the Constitutional separation of powers enables congressional oversight providing Congress with independent authority as a coequal branch of government—fully empowered to examine and judge Executive policies and actions. The capacity to act on those judgments ultimately rests on the power of the purse—to provide or withhold funding. For example, by law, the CIA must brief “covert actions” to the Intelligence Committees in advance of their final approval by the President. If the Committees express strong reservations, those programs are almost always aborted or greatly modified. In the extreme case, Congress can withhold funding.

[3] This analysis focuses on the SSCI because the writer served as Deputy Staff Director of that Committee and can therefore discuss it with greater familiarity. In addition, the SSCI, under Boren and Cohen, was clearly more consequential than the HPSCI. All of the authorizing language that became law during that period came from the SSCI.

[4] Reference to the Mueller Report—and congressional demands to see it unredacted—highlight the issue of congressional power vis-à-vis classified Executive branch information. The particular claim of the Intelligence Committees is two-fold. The right to unfettered access to Executive Branch information is enshrined in the authorizing language that established the Committees. Furthermore, under the terms of the Patriot Act and the National Security Act, the Committees are fully empowered to receive all the intelligence that went into the Mueller Report. That requirement extends to grand jury deliberations. The Patriot Act provides that the Justice Department “must share” such secret deliberations with the Intelligence Committees. See, the analysis of Vicki Divoll, former general counsel to the SSCI: http://www.nytimes.com/2019/04/08/op...t-intelligence.