United States Intelligence Community Oversight

United States Intelligence Community Oversight duties are shared by both the executive and legislative branches of the government. Oversight, in this case, is the supervision of intelligence agencies, and making them accountable for their actions. Generally oversight bodies look at the following general issues: following policymaker needs, the quality of analysis, operations, and legality of actions.^[1]

Executive oversight

Oversight in the executive branch usually focuses on covert action and espionage. The President heads oversight in the executive branch, and all covert actions must be approved by him or her (Refer to Intelligence Authorization Act and Hughes–Ryan Act). The President also has the power to appoint commissions, which can be used to assess intelligence topics (such as The National Commission on Terrorist Attacks or The Iraq Intelligence Commission).

Executive and Legislative give-and-take

Congress’s oversight responsibilities over the IC often overlap with the responsibilities and authorities of the executive branch. Given the natural competition that exists between the legislative and executive branches, this overlap creates tensions as both sides struggle to accomplish certain goals using their respective powers and authorities. Hence intelligence oversight can be one of the most challenging separation-of-powers issues in government.^[2]

Executive Branch

The White House sets the national security and foreign affairs agenda. Congress and the judicial branch have affirmed the executive branch’s lead role for conducting national security affairs numerous times. Furthermore, the White House can limit congressional influence in the domain of national security and intelligence.^[2]

Access to information

The White House has the power to control information classification, and even withhold access to information and operational details from certain members of Congress. In this way, the executive branch can directly control what Congress can or cannot see, indirectly influencing the legislative branch’s overall ability to make decisions. Thus, despite members of the Intelligence Committees and their staffs holding appropriate security clearances, they may sometimes only have a limited view into specific intelligence activities.^[2] Though the 1947 National Security Act states that Congress must be kept “fully informed” of significant intelligence activities, many Presidents have interpreted this clause to mean they only need to notify the “Gang of Eight” rather than the full membership of the congressional intelligence committees. The Gang of Eight consists of the Senate and House Majority and Minority Leaders, and the Chairs and ranking members of the House and Senate Intelligence Committees. Veto Power: The President also has the power to veto any legislation that Congress passes. For example, President Bush’s veto of the Intelligence Authorization Bill of 2009, which included language on coercive interrogation, indicates that this can be a very effective tool to control the ability of Congress to influence intelligence policy.^[2] Direct Authority: Leaders of the IC are appointed by the President to their positions, and the White House has the authority to hire and fire them. While some of these positions – such as the CIA Director– require Senate confirmation, many do not. As a result, the President is able to appoint trusted advisors to key positions in the IC.^[2]

Legislative Branch

Although the Constitution gives the executive branch preeminence in dealing with intelligence matters, Article I nevertheless provides Congress with an important oversight role. However, Congressional oversight into intelligence issues is a complex task, requiring a sophisticated understanding of the issues.^[2] The floor debate for the FISA Amendments Act of 2008 provided a clear example of the difficulties Congress faces when trying to modify intelligence legislation. Members, for reasons of classification or technical complexity, did not share a common understanding of the law, let alone how it should be adjusted.^[2]

Authorization and appropriation

Congress’s most important source of leverage is the power to authorize programs and appropriate funds. During the authorization and appropriations process, Congress can signal its intelligence and policy priorities through both the allocation of funds and the inclusion of non budget-related clauses in the authorization and appropriations bills.^[2] Nominations: Many of the IC’s top leaders, including the Director of National Intelligence and the CIA Director, are nominated by the President and confirmed by the Senate. This sometimes grueling process forces the White House to carefully select its nominees and provides an opportunity for Senate input on both the individuals and issues related to intelligence policy. In recent years, the Senate has withheld confirmation until the executive branch agreed to share additional information on key areas of congressional oversight of intelligence activities.^[2]

Congressional hearings

Congress invites—and, in some cases, compels—high-ranking members of the executive branch to appear before Congress to ask them targeted questions intended to create more transparent and effective IC operations. As noted previously, however, the power of this tool depends in large part on Congress's awareness of IC activities.^[2]

President's Foreign Intelligence Advisory Board

The President's Foreign Intelligence Advisory Board (PFIAB) is now known as President’s Intelligence Advisory Board (PIAB). Under the PIAB is the Intelligence Oversight Board (IOB), which is used to carry out investigations and initiate analysis activities for the President.^[3] The PIAB members are appointed by the President and are usually individuals with relevant experience. In 2008, current President Obama by Executive Order removed some oversight powers from the IOB, critics argue that the changes have weakened oversight capabilities. Previously, if the IOB learned of allegedly illegal or contrary to executive order intelligence activity, it notified both the president and the attorney general, now however, the IOB must refer matters to the Justice Department for a criminal investigation. In addition, the IOB lost the authority to oversee each intelligence agency's general counsel and inspector general.^[4] The main issue with the PIAB is concerns, since they are appointed by the president, there may be politicization of their recommendations.

Office of Inspector General

Under each cabinet position and intelligence agency, the Office of the Inspector General (OIG) and the General Counsel, have oversight responsibilities (see The Inspector General Act ^[5]).^[6] The OIG reports to the Secretary of the department or the director of their agency. The OIG “conducts independent investigations, audits, inspections, and special reviews…of personnel and programs to detect and deter waste, fraud, abuse, and misconduct, and to promote integrity, economy, efficiency, and effectiveness.” ^[7]

National Security Council

The National Security Council's (NSC) Office of Intelligence Programs (OIP) provides routine oversight and intelligence policy for the intelligence community. The Director of National Intelligence (DNI) also oversees and directs the implementation of the National Intelligence Program for the intelligence community.^[8] The oversight body in the Office of the DNI is the Joint Intelligence Community Council (JICC) which is chaired by the DNI; other members include the secretaries of State, Treasury, Defense, Energy, Homeland Security and the Attorney General.^[1] The effectiveness of the JICC is questioned for two reasons, one, Cabinet members likely do not have the time to devote to intelligence issues, and two, the JICC officers are more powerful than the DNI in that they have separate opportunities to speak to the president, which gives them supplementary means to challenge DNI decisions.^[1]

Other Executive oversight bodies

The Office of Management and Budget (OMB) also oversees agencies, the OMB “reviews intelligence budgets in light of presidential policies and priorities, clears proposed testimony, and approves draft intelligence legislation for submission to Congress.” ^[9]

The Department of Defense (DoD) has its own oversight body, the DoD Intelligence Oversight Program (IOP). The main objective of IOP is “to ensure that the DoD can conduct its intelligence and counterintelligence missions while protecting the statutory and constitutional rights of U.S. persons.” ^[10]

Legislative oversight

Congress justifies its oversight abilities using two main reasons; the first is the Necessary and Proper Clause of the US Constitution (since courts found that the clause includes the power to require reports from the executive on anything that can be legislated)^[1] and the second is the Power of the Purse. Congressional oversight focuses on the supervising of the budget, quality of analysis, legality of actions, and intelligence failures. The two principal committees that are charged with intelligence community oversight are the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence: Oversight Subcommittee.

Congressional oversight history

These congressional organizations emerged in the late 1970s, when the Church and Pike Committees investigated the CIA and other intelligence agencies in response to the Watergate scandal. Both committees found evidence of spying on American citizens, illegal wiretapping, and cover-ups. As a result, Senate Resolution 400 in 1976 and House Resolution 658 in 1977 established the intelligence.^[2]

Intelligence Committee membership

The intelligence committees are just one of members' committee assignments. Unlike other committees, positions on the intelligence committees are select assignments made by the leadership on each side in the House and Senate. The 9/11 Commission recommended changes to the intelligence committee structure in the Senate, whereby four of the members would be ‘dual-hatted’ on the Appropriations, Armed Services, Foreign Relations, and Judiciary committees. Commissioners thought this was important to ensure that the SSCI members included lawmakers familiar with the issues and interests that each of those four committees covers.^[2]

House Permanent Select Committee on Intelligence (HPSCI): 22 members sit on the Committee, although this number has fluctuated in the past. This includes at least one member each from the House Appropriations, Armed Services, Judiciary, and Foreign Affairs Committees.^[2]

Senate Select Committee on Intelligence (SSCI): 15 Senators sit on this committee, although this number also has fluctuated in the past. By rule, the majority party has eight members on the committee, regardless of the number of seats held by the majority in overall Senate. One seat from both the majority and minority party are reserved for standing committee members from Appropriations, Armed Services, Foreign Relations, and Judiciary. The Chairman and ranking member of the Armed Services Committees serve as ex officio members of the intelligence committees.^[2]

Budget process

The two main components of the budget process are that of appropriation (allocation of funds) and authorization (approving the use of funds for programs or activities).

The main authorizers of the intelligence budget are House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence, other committees that authorize funds include The House Armed Services Committee and Senate Armed Services Committee.

The House Appropriations Select Intelligence Oversight Panel (as of 2007)^[11] and the Senate Intelligence Appropriations Subcommittee (as of 2004)^[12] are responsible for allocating funds to the intelligence community budget. This allows each of these committees to have some control over the intelligence community actions and have access to examine size, shape, organization and programs of the agencies. However, despite the Senate approving a resolution in 2004 to create a Senate Intelligence Appropriations Subcommittee, none exists. Recently, Senator Kit Bond has introduced Senate Resolution 655^[13] in 2008 calling for the committee to be constituted. To date, no action by congress has been taken on the Bond resolution.

Other Legislative oversight methods

Congress has several other methods at its disposal for overseeing and controlling aspects of the intelligence community.

Hearings, investigations, and reports

Hearings are a means to request information from officials and experts. Hearings are usually adversarial in nature and try to ensure that the agencies comply with laws, and that administrative policies reflect the public interest. Oversight hearings inquire about the efficiency, financial system, and effectiveness of agency operations. Hearings may be closed to the public depending on the nature of the hearing. Following a hearing, questions for the record (QFRs or “kew-fers”) may be submitted to witnesses and agencies.^[14]

Congress is allowed to investigate almost all issues, most Congressional investigations produce a report. An example of a Congressional investigation, is the Senate investigation on pre-war intelligence which produced the Report on Pre-War Intelligence on Iraq. Another example is the joint House and Senate Intelligence Committees inquiry after 9/11; the report produced presented the findings, conclusions, a discussion, and a series of recommendations. The effectiveness of Congressional investigations is often criticized because Congress through its budgetary powers and oversight responsibilities has influence over the community, and therefore the question becomes can Congress be objective about its own actions.

The Government Accountability Office (GAO) also known as the investigative arm of Congress, helps Congress with oversight of federal programs and provides Congress with insight into ways to make government more efficient, effective, ethical and equitable (it also provides forecasts of long-term trends and challenges) by producing reports.^[15]

Treaties, nominations, and hostages

The Senate has the power to confirm (or reject) Presidential nominations for appointed posts, which plenty of important posts in the intelligence are, such as the DNI and the DCIA. In this way, the Senate has power to reject unfit persons and hope to guide the intelligence community to whatever way they feel best.

The Senate also has the power to ratify treaties; this is important to the intelligence community because one of its functions is monitoring treaty compliance, for example during Soviet arms control of the 1970s the ability to monitor the Soviets compliance was only within the intelligence community. The senate select committee was given the task of examining whether the intelligence community could accurately monitor treaty compliance. Sometimes they can hold decisions on treaties until provisions are met such as the buying of new satellites before ratifying the 1988 Intermediate-Range Nuclear Forces Treaty ^[1]

Hostages are one way that Congress can try to force the Executive branch into doing what Congress wants. Congress withholds making decisions or taking action on important things (such as approving nominations or ratifying treaties) to the executive branch in order to force the preferred action.^[1]

Issues in Legislative oversight

Redundancy

At the time the 9/11 report was issued, 17 congressional committees had some intelligence oversight duty, on at least one Intelligence community member. (including but not limited to the Senate: Appropriations, Armed Services, Budget, Energy and Natural Resources, Foreign Relations, Governmental Affairs, Judiciary Standing Committees, and the Senate Select Committee on Intelligence; House: House Appropriations, Armed Services, Budget, Energy and Commerce, International Relations, and Judiciary Standing Committees and the House Permanent Select Committee on Intelligence). The 9/11 Commission report stated that redundancy in congressional oversight, through the multiple responsible committees, hindered the oversight process and was not conducive to the goals of oversight. The commission recommended to reduce redundancy, and to unify the congressional oversight community, for example creating a standing joint House/Senate Intelligence committee.

At this point, congress has not fully implemented the commission's suggestions. However, in October 2004, the Senate enacted a series of internal changes; it ended its eight-year term limits for members of its Intelligence Committee; elevated its Intelligence Committee to category "A" status (generally Senators can serve on no more than two "A" committees); created an Oversight Subcommittee of the Intelligence Committee; and established an Intelligence Subcommittee of its Appropriations Committee.^[16] In 2007, the House changed intelligence appropriations responsibilities and created the Appropriations Select Intelligence Oversight Panel.

Some Congressional members wish to consolidate oversight in keeping with the 9/11 recommendations such as Representative Carolyn Maloney, (D-NY) who in 2004, proposed that the House shift the House Intelligence Committee status to a standing committee and giving it exclusive jurisdiction over the intelligence community. Conversely, others wish to diversify oversight responsibility to more committees such as, Representatives Jeff Flake (R-AZ) and Adam Schiff (D-CA) who in July 2006 introduced a bill that would require the House Intelligence Committee to disclose considerable classified information to at least eight other House committees.

Redundancy advocates argue that it reduces group think and favoritism; produces competition; and increases reliability by decreasing the chances of the system failing entirely. Consolidation advocates argue that consolidation would improve the accountability of both the intelligence community and Congress (for example, if multiple Committees failed to catch something it would be difficult to hold any one accountable) and it would reduce costs.

Secrecy

Members of Congress do not have security clearances.^[17] The Executive Branch, through E.O. 12333 as amended^[18] has chosen to control dissemination of information to only those with the proper clearance and need-to-know.

Because Members of Congress were elected to office, they do not have to submit to the background check procedures (Congressional Staff on the other hand must submit to background checks to handle classified materials).^[19] The House and the Senate limit dissemination of intelligence to members who are on the Intelligence Committees and many of their hearings are closed.^[1] Usually, the main concern is leaks of classified information. However, some argue that openness is a tenet of democracy and therefore operations and information must be openly available to the public. There are also concerns about whether Congress would be willing to make public alarming information.^[1]

Another secrecy issue is the intelligence budget. The Constitution in Article 1, Section 9, paragraph 7, requires accounts of all public money be published “from time to time.” Many Administrations have argued using the vagueness of the statement, that disclosing intelligence budget figures would harm National Security.

References

1. Lowenthal M. M.(2006). Intelligence From Secrets to Policy.
2. Rosenbach, Eric, and Aki J. Peritz (2009-07-21). Confrontation or Collaboration? Congress and the Intelligence Community. Belfer Center for Science and International Affairs, Harvard Kennedy School.
3. Executive Order: President's Intelligence Advisory Board and Intelligence Oversight Board Executive Order Press Release
4. President weakens espionage oversight Savage C. (March 14, 2008). The Boston Globe
5. INSPECTOR GENERAL ACT OF 1978
6. Inspector General Official Website faqs
7. Department of Justice Office of Inspector General
8. Office of the Director of National Intelligence
9. Intelligence Community Website
10. DoD IOP faqs Relationships with Other Government Organizations
11. GovTrack.us. H. Res. 35--110th Congress (2007)
12. "The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World" by Anne Joseph O’Connell. California Law Review; Dec 2006
13. THOMAS 110 S. Res. 655
14. Lowenthal M. M.(2006). Intelligence From Secrets to Policy.
15. Govt. Accountability Office Official website
16. "The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World" by Anne Joseph O’Connell. California Law Review; Dec2006
17. https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/books-and-monographs/sharing-secrets-with-lawmakers-congress-as-a-user-of-intelligence/3.htm
18. https://fas.org/irp/offdocs/eo/eo-12333-2008.pdf
19. Rules of the House of Representatives: Rule X. 11.(e)