Intelligence: From Secrets to Policy (50 page)

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Authors: Mark M. Lowenthal

BOOK: Intelligence: From Secrets to Policy
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More recently, Congress has raised the issue of the destruction of tapes made during the interrogations of two senior al Qaeda members. According to a statement by DCIA General Hayden, the tapes were made to ensure that the interrogations were being conducted properly. The existence of the tapes was known to some members of Congress and executive branch officials. Several officials in both branches of government expressed the view that the tapes should not be destroyed. However, in 2005, NCS director Jose Rodriguez ordered the tapes destroyed, informing his superiors at the CIA after the fact. Several members of Congress said they had not known about the existence of the tapes; others knew about the tapes but not about their destruction. The tapes’ controversy raises a series of issues, including internal controls at the CIA, the explicitness (or lack thereof) of the various recommendations not to destroy the tapes, and notification of Congress. Congress is to be notified of “significant intelligence activity,” but it is unclear, as yet, whether destruction of the tapes constitutes such an activity, as defined in legislation. It is also unclear that Congress will want to be in a position where it asks for approval rights before various types of intelligence can be destroyed—which also might raise new separation of powers issues.
Congress does have at hand some levers to enforce its oversight. It can reduce the intelligence budget, delay nominations, or, in the case of a serious lapse, demand the resignation of the official involved, although that decision is ultimately up to the official and the president. If the lapse is serious enough and can be traced back to the president, impeachment might be an option. In the two cases cited above, Congress did not impose any of these penalties. As this book went to press, the investigation into the destruction of the tapes was in an early stage; Rodriguez had already retired.
But even without inflicting concrete penalties, Congress can enforce its oversight. The loss of officials’ credibility before their major committees is serious in and of itself. As hackneyed as it sounds, much of Washington runs on the basis of trust and the value of one’s word. Once credibility and trust are lost, as happened to Casey in the Corinto affair, they are difficult to regain.
INTERNAL DYNAMICS OF CONGRESSIONAL OVERSIGHT
 
Even though oversight is inherent in the entire congressional process, the way Congress organizes itself to handle intelligence oversight is somewhat peculiar.
WHY SERVE ON AN INTELLIGENCE OVERSIGHT COMMITTEE? Members of Congress take office with specific areas of interest, derived from either the nature of their district or state or their personal interests. Most members, at least early in their legislative careers, tend to focus on issues that are most likely to enhance their careers. For most members, intelligence is unlikely to fit any of these criteria. Therefore, why would members spend a portion of their limited time on intelligence?
At first blush, the disadvantages are more apparent than the advantages. Intelligence is, for most members, a distraction from their other duties and from those issues likely to be of greatest interest to their constituents. Few districts have a direct interest in intelligence. The main ones are those in the immediate Washington, D.C., area, where the major agencies are located, and those districts where major collection systems are manufactured. But these are a small fraction of the 435 House districts in the fifty states.
Once involved in intelligence issues, members cannot discuss much of what they are doing or what they have accomplished. Co-option is also a danger. Should something go wrong in intelligence, committee members will be asked why they did not know about it in advance. If they did know in advance, they will be asked why they did not do something about it. If they did not know, they will be asked why not. These are all difficult questions to answer.
Finally, the intelligence budget is remarkably free of pork, that is, projects to benefit a member’s district or state that are earmarked for funding. Therefore, members on the committees have few opportunities to help their constituents.
With all of those disadvantages, why serve? Because some advantages accrue from membership. First, service on the intelligence committees allows members to perform public service within Congress, to serve on a committee where they have few, if any, direct interests. Second, their service gives members a rare opportunity to have access to a closed and often interesting body of information. Third, it gives members a role in shaping intelligence policy and, because of the relatively small size of the two committees (in the 110th Congress—2007-2009—twenty members on the House Intelligence Committee and fifteen on the Senate Intelligence Committee), perhaps a greater role than they would have on many of the other, larger oversight committees. Fourth, it may offer opportunities for national press coverage on high-profile issues about which few people are conversant. Fifth, because members of the two intelligence committees are selected by the majority and minority leadership of the House and Senate, being chosen is a sign of favor that can be important to a member’s career. (Select committees usually have limited life spans, especially in the House. The House Intelligence Committee is called “permanent select” to denote its continued existence, even though it remains “select.”)
There are also some different sensitivities involved in selecting members for the intelligence committees because of the issues they oversee. The party leadership in both Houses wants to be sure that members are selected who will not only take their oversight role seriously and will be careful not to disclose classified information but who reflect that Congress is a serious steward when it handles intelligence. This sensitivity became apparent in late 2006, as Nancy Pelosi, D.-Calif., who would be the Speaker of the House in the 110th Congress in January 2007, considered who to select as chairman of the House Intelligence Committee. The ranking Democrat on the committee was Rep. Jane Harman, D.-Calif., with whom Pelosi had had a strained relationship. If Pelosi by-passed Harman, next in line was Rep. Alcee Hastings, D.-Fla. Pelosi found herself caught between the fact that Hastings is an African American, an important constituency in the Democratic caucus and party, and also the fact that Hastings had been impeached by the House in 1988 (when it was controlled by Democrats) and removed from office by the Democratically controlled Senate the following year because of alleged bribery. (Pelosi had been among the 413 representatives who voted to impeach Hastings. Hastings was removed from office but acquitted in a federal trial because his alleged co-conspirator refused to testify.) Pelosi eventually decided to by-pass Hastings as chairman as well, finally selecting Rep. Silvestre Reyes, D-Tex., instead. Hastings was designated as vice chairman.
 
THE ISSUE OF TERM LIMITS. Service on the House and Senate Intelligence Committees. unlike other committees, was initially limited. Congress adopted term limits for committee membership based on the view that the pre-1975 oversight system had failed, in part, because the few members involved became too cozy with the agencies they were overseeing.
The major advantage of term limits is the distance that they promote between the overseers and the overseen. Limited terms also make it possible for more members of the House and Senate to serve on the intelligence committees, thus adding to the knowledgeable body necessary for informed debate.
Term limits also carry disadvantages. Few members come to Congress with much knowledge of, and virtually no experience with, intelligence. Because it can be arcane and complex, requiring some time to master, members are likely to spend some portion of their tenure on the committee simply learning about intelligence. Once they have become knowledgeable and effective, they are nearing the end of their term. Term limits also make service on the intelligence committees less attractive, because they reduce the likelihood that a member can become chairman through seniority.
In 1996 Larry Combest, R.-Tex., who was then chairman of the House Intelligence Committee, testified that he thought it was time to consider longer tenure on the committee, which would be to Congress’s advantage. Members on the House committee, however, are still limited to eight years’ service. In 2004, the leaders of the Senate Intelligence Committee, Pat Roberts, R-Kan., and John D. Rockefeller IV, D-W. Va., also spoke out in favor of revising the limits, which had been dropped for the Senate panel.
 
BIPARTISAN OR PARTISAN COMMITTEES? The Senate and House Intelligence Committees are distinctly different in composition. Typically, the ratio of seats between the parties on committees roughly reflects the ratio of seats in each chamber as a whole. The Senate Intelligence Committee has always been exempt from this practice, with the majority party having just one more seat than the minority. Moreover, the ranking minority member is always the vice chairman of the Senate committee. The Senate leadership took these steps in 1976 to minimize the role of partisanship in intelligence. When the House Intelligence Committee was formed in 1977, the House Democratic leadership rejected the Senate model, insisting that membership on the committee be determined by the parties’ ratio in the House, which reflected the will of the people as expressed in the last election.
A bipartisan committee offers opportunities for a more coherent policy, because the committee is removed—as far as is possible—from partisanship. A committee united on policy and not divided by party may also have more influence with the executive branch. In the case of the Corinto mining, Chairman Goldwater and Vice Chairman Moynihan agreed that the intelligence community was guilty of a significant and unacceptable breach. Thus, DCI Casey had no political refuge for not keeping the committee informed. Despite the continuation of this bipartisan structure on the Senate committee, the Democratic minority showed signs of restiveness in the 108th Congress (2003-2005) and the 109th Congress. A formal division of the committee’s budget was made in 2004 (60 percent for the Republican majority; 40 percent for the Democratic minority). In early 2005, Democratic members sought ways to limit the powers of the committee’s staff director in the areas of hiring and staff assignments. Although their goal was greater bipartisan control, the issue was discussed and decided on partisan terms.
Partisanship runs counter to the preferred myth that U.S. national security policy is bipartisan or nonpartisan. A partisan committee has the potential to be more dynamic than a bipartisan committee, where political compromise is more at a premium. In many ways, the compromise that a bipartisan committee engenders is equivalent to the lowest-common-denominator dynamic that one sees in intelligence community estimates.
In its own accidental way, Congress may have achieved the right balance, with a bipartisan inlelligence committee in one chamber and a partisan committee in the other.
 
COMMITTEE TURF. All congressional committees guard their areas of jurisdiction jealously. For example, in 1976 when the Senate was considering the creation of an intelligence committee, the Senate Armed Services Committee resisted, seeking to preserve its jurisdiction over the DCI and the CIA. Dividing issues or agencies cleanly and clearly between or among committees is not always possible, in which cases the jurisdiction is shared and certain bills get referred to more than one committee. But jurisdiction equates to power.
There is also a more subtle aspect to congressional jurisdiction. Committees tend to become protectors of the agencies they oversee, at least when the jurisdiction or authority of these agencies is under question or attack. There is no inconsistency or hypocrisy involved in the committees serving as agencies’ “best friends and severest critics.” Committee members believe that they have a better and more complete understanding of the agencies they oversee. Also, if the agencies they oversee lose power, then the committees also lose power.
This dynamic, which is inherent in the committee system that dominates Congress, was in evidence during the drafting of and debate over the 2004 intelligence legislation. The Senate was initially more responsive to calls to accept the recommendations of the 9/11 Commission, but jurisdiction over the legislation went to the Senate Governmental Affairs Committee (SGAC), not the Senate Intelligence Committee. This could be rationalized in terms of jurisdiction, as the SGAC oversees government organization. However, in the past, bills of this sort had gone to the intelligence committee. Thus, the Senate leadership did not display much confidence in the intelligence committee for reasons that are not entirely clear. (Some believe the Senate leadership and perhaps the administration were concerned about the possible outcome as the Senate Intelligence chairman, Pat Roberts, had independently issued his own plan for intelligence reorganization that was widely seen as too radical.) In the House, the House Intelligence Committee was given jurisdiction. But friction arose with the House Armed Services Committee when Chairman Duncan Hunter. R-Calif., raised questions about the military’s access to intelligence and the chain of command. There was a certain disingenuous aspect to this debate. Hunter made public a letter from Gen. Richard Meyers, chairman of the Joint Chiefs of Staff, stating concerns of the type that Hunter voiced, but Secretary of Defense Donald H. Rumsfeld said he had no advance knowledge of the general’s action. Sen. John W. Warner. R-Va., chairman of the Senate Armed Services Committee, was supportive of Hunter but let him do most of the arguing. In the end, a DNI was created, but the secretary of defense lost little if any authority over the intelligence budget or over defense intelligence agencies. As a result, the two armed services committees had not lost any jurisdiction either.

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