Intelligence: From Secrets to Policy (51 page)

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Authors: Mark M. Lowenthal

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The creation of the Select Intelligence Oversight Panel in the House also raised jurisdiction issues. As has been noted, the relationship between authorizers and appropriators is not always smooth, with the appropriators being more powerful and more protective of their prerogatives. (Some sense of the power of the Appropriations Committee can be derived from its nickname in the House: “the college of cardinals.”) Therefore, the appropriators are unlikely to be willing to give authorizers greater insight into their deliberations. The SIOP serves more as a conduit for a small number of authorizers (three of the thirteen SIOP members) to give the appropriators insights into the authorizers’ marks, which is still a step forward in terms of a more coherent congressional budget process.
 
HOW DOES CONGRESS JUDGE INTELLIGENCE? An important but little-discussed issue is how Congress views and judges intelligence, as opposed to the criteria used by the executive branch. No matter how much access Congress has to intelligence, it is not a client of the intelligence community in the same way that the executive branch is, even as congressional requests for specific analytic products have increased. Congress never achieves the same level of intimacy in this area and does not have the same requirements or demands for intelligence.
The budget is one major divide. No pattern has been set as to which branch wants to spend more or less. The Reagan administration favored spending more on intelligence than Congress did and was allowed to, up to a point, after which Congress began to resist. However, the Reagan administration did not want to buy the additional imagery satellites demanded by the Senate Intelligence Committee. During the Clinton administration, it was Congress, after the Republican takeover in 1995, that was willing to spend more than was requested. Congress takes the firm view that all budget requests from the executive are just that—requests. They are nonbinding suggestions for how much money should be spent. To put it succinctly, the executive has programs, Congress has money.
The second major divide is the intimacy of the relationship that each branch has with intelligence. Executive officials may have unrealistic expectations of intelligence, but over time they have far greater familiarity with it than do the majority of members. Thus, the possibility of even larger false expectations looms in Congress. Moreover, having provided the money, members may have higher expectations of intelligence performance. At the same time, members may be more suspicious of intelligence analysis, fearing that it has been written largely to support administration policies. Members and staff have rarely heard of intelligence that questions administration policies, even when such intelligence exists. Thus, the Congress-intelligence relationship is fertile ground for doubts, whether justified or not.
The relationship between Congress and the intelligence community has undergone a change in recent years. Both before and after the modern oversight system was created, the main requests Congress made of the intelligence community, other than testimony at hearings, were for briefings. Congress has had access to some intelligence products on a regular basis, but they were written for the executive branch. In the mid-1990s, Congress began to take a greater interest in the substance of intelligence analysis. Dissatisfaction among some members with an NIE about missile threats to the United States led Congress to create a commission headed by Rumsfeld, which came to different conclusions about the nature of the threat.
More significant, in the period prior to the onset of the war in Iraq (2003- ), members of the Senate Intelligence Committee requested that a new national intelligence estimate on Iraq’s WMD programs be written, so that senators could have the benefit of reading it before they considered voting on a resolution authorizing the president to use force against Iraq. This took the intelligence relationship with Congress into a new and difficult area. Although the National Security Act states that the National Intelligence Council “shall prepare national intelligence estimates for the Government,” it is also understood that the intelligence community is part of and works for the executive branch. Meanwhile, the intelligence community finds it difficult to refuse such a request for both professional and political reasons. The resulting NIE became controversial after the war started, when surveys of Iraq did not discover the programs that were said to exist. Many senators questioned the quality of the analysis and the underlying reasons for the apparently incorrect conclusions. A criticism lodged against the intelligence community was that it had rushed the NIE, although the Senate had imposed a three-week deadline. (This particular criticism was somewhat ironic, as NIEs are usually criticized for how long they take, from several months to a year in some cases.) Although the conclusions of the NIE were not borne out, the estimate probably had little effect on the Senate as, according to press accounts, only six senators read the NIE before voting. (This was known because Senators had to sign for the NIE given its high classification. The Senate voted 77-23 to “[a]uthorize the President to use the U.S. armed forces to . . . defend U.S. national security against the continuing threat posed by Iraq.”) The Senate Select Committee on Intelligence investigated the intelligence community’s performance on Iraqi WMD. Among its major findings were that many of the NIE’s key judgments were overstated or not supported by the underlying intelligence: that the uncertainties for some judgments were not explained; that some of these judgments were then used as the basis for further judgments; that an excessive reliance was placed on foreign liaison reporting; and, most significant, that a groupthink dynamic had led to a presumption that Iraq had an ongoing WMD program. The Senate committee announced in 2005 that it would begin a review of intelligence and capabilities on Iran. The committee sought to maintain the momentum it believed it had achieved with its Iraq WMD report and also sought to get a better sense of issues and capabilities on Iran before any major changes were made in U.S. policy.
Congress has continued to make further requests for intelligence analysis crafted for its needs. This will continue to run the risks evidenced in the Iraq NIE experience. The intelligence community is part of the executive branch and works for the president or the president’s senior cabinet officers. Intelligence managers will be hard put, however, to make choices between serving their usual policy makers and Congress. Although there may be grounds to respond to Congress only as time allows or after executive branch demands have been met, the consequences of such a course may be harsh. Congress’s most obvious retaliation would be the budget. There is also the question of priorities. In 2007, the House Intelligence Committee strongly requested that an NIE on global warming be written. DNI McConnell resisted initially and then agreed, even as he noted that this NIE would not take resources away from terrorism. McConnell was saying, in effect, that the intelligence community would respond to the committee’s request but that it was clearly not at the same level of priority as other issues.
The other NIE-related issue is that of publishing the KJs, which has been discussed previously. Should these demands continue and increase, the executive branch may have to reach some sort of agreement with Congress bounding these demands.
Another major divide is partisanship. Whether it is the majority or the minority, a substantial group in Congress always opposes the administration on the basis of party affiliation as well as policy. Partisanship inevitably spills over into intelligence, often in the form of concerns that the executive branch has cooked intelligence to support policy. Dissent about intelligence policy could arise within the executive, but it would not be based on partisanship.
 
EXTERNAL FACTORS. The intelligence oversight system does not take place in a vacuum. Among the many factors that come into play to affect oversight, the press is a major one. The lingering effects of Watergate, including the search for scoops and major scandals, have influenced reporting on intelligence. The press, as an institution, gets more mileage out of reporting things that have gone wrong than it does from bestowing kudos for those that are going right. The fact that intelligence correctly analyzes some major event is hardly news; after all, that is its job. Moreover, in the aftermath of the 1975-1976 investigations, the intelligence community found it impossible to return to its previous state of being largely ignored by the press. The greater coverage given to intelligence and the press’s emphasis on flaws and failures influence how some in Congress approach oversight.
Finally, even intelligence has partisans who appear in the guise of lobbyists. Some groups are made up of former intelligence community employees, and some advocate strong stances and spending on national security. Groups have been formed that oppose certain aspects of intelligence, usually covert action, as well as some aspects of espionage; that are concerned about U.S. policy in every region of the world; and that would prefer to see some portion of the funds devoted to intelligence spent elsewhere. In the aftermath of 9/11, a faction offamilies who lost relatives in that attack became a powerful lobby in favor of the legislation creating a DNI, an issue in which their inputs were understandably more emotional than analytical. Finally, there is a group made up of firms that derive large amounts of their income from the work they do for the intelligence community. All of these groups are legitimate within the U.S. political system and must be taken into account when considering how Congress oversees intelligence.
 
COMPETITION WITHIN THE CONGRESSIONAL AGENDA. A series of debates influencing intelligence oversight recur in every Congress, with varying degrees of strength. One is the debate between domestic and national security concerns, which is especially important when dealing with the budget. During the cold war, national security rarely suffered. In the post-cold war period, with national security concerns more difficult to define, the intelligence community had difficulty—until the terrorist attacks in 2001—maintaining level spending, let alone winning increases.
Another debate is that between civil liberties and national security. The debate is almost as old as the republic, dating back to the Alien and Sedition Acts of 1798. Other instances of civil liberties clashing with national security concerns predate the advent of the intelligence community: President Abraham Lincoln’s suspension of habeas corpus during the Civil War, the arrest of antiwar dissidents during World War 1, the mass arrests and detention of Japanese Americans during World War 11, and acts aimed at rooting out communist subversion during the cold war. In each case, political leaders cited national emergencies to place temporary limitations on civil liberties. This debate resumed in 2001 in the aftermath of the terrorist attacks, as the Bush administration sought increased powers for surveillance, nonjudicial trials (the proposed use of military tribunals), and other types of authority.
The precedents notwithstanding, the intelligence investigations of the mid-1970s revealed several instances in which intelligence agencies violated constitutional guarantees, laws, and their own charters. The violations included surveillance of dissident groups, illegal mail openings, illegal wiretaps of U.S. citizens, and improper use of the Internal Revenue Service. Some of these actions were known by the president at the time; some were not. The revelation of these activities underscored concerns about the ability of secret agencies to act without safeguards and the need for strong executive and congressional oversight. As noted, this is the area in which the Civil Liberties Protection board is supposed to be active.
A third perennial congressional debate focuses on the level and range of U.S. activism abroad. From World War I through the cold war, the Democrats were largely the interventionist party: and the Republicans, the noninterventionist party. During World War II and the cold war, an interventionist consensus formed, although a Republican faction remained noninterventionist. The damage that the Vietnam War inflicted on the cold war consensus fostered a shift in the positions of the two parties. The Democrats largely became the noninterventionist party and the Republicans became the interventionist party. In the post-cold war period, a renascent noninterventionist faction grew within the Republican Party. After September 2001, wide support emerged for both military and intelligence operations abroad, although this unraveled, largely as a result of Iraq. But as the effort in Iraq became protracted, the two parties appear to have largely resumed their post-Vietnam stances of noninterventionist Democrats and interventionist Republicans. Iraq, like Vietnam, will likely engender a set of“lessons” that will be applied—rightly or wrongly—to the next foreign policy debate.
Finally, the immigrant basis of the U.S. population is reflected in foreign policy debates. Every region of the world and virtually every nation are represented within the U.S. population. U.S. policies or actions around the world—reat, planned, or rumored—are likely to stir reactions from some segment of the population and perhaps even different reactions. Members of Congress having ethnic ties to a region or representing constituents who do are also likely to voice opinions.
CONCLUSION
 
The nature of congressional oversight of intelligence changed dramatically in 1975-1976. Although Congress may go through periods of greater or lesser activism, it is unlikely to return to the laissez-faire style of oversight. Congress has become a consistent player in shaping intelligence policy.
This seems novel in the case of intelligence only because it is relatively recent. Congress has played the same activist role in all other areas of policy since adoption of the Constitution, and its role is inherent in the checks and balances system that the framers set up. The willful division of power creates a system that is a constant “invitation to struggle.”

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