A Perspective on Congress’s Oversight Function

Order Code RL32617

CRS Report for Congress

Received through the CRS Web

A Perspective on Congress’s Oversight Function

Updated December 23, 2004

Walter J. Oleszek

Senior Specialist in the Legislative Process

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

A Perspective on Congress’s Oversight Function

Summary

In the wake of the final report of the National Commission on Terrorist Attacks

Upon the United States (commonly called the 9/11 Commission), which declared that

Congress’s oversight of the intelligence community is “dysfunctional,” there is

heightened interest on Capitol Hill to strengthen legislative review of the intelligence

community. This report provides a general overview of the core characteristics of

congressional oversight and Congress’s changing relationship with the intelligence

community. This relationship will take on new importance with enactment of the

Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) that,

among other things, creates a Director of National Intelligence (DNI). The DNI will

be responsible for overseeing and coordinating the 15 federal agencies that compose

the intelligence community. This report also identifies a number of issues that make

oversight of intelligence agencies different from monitoring other federal entities.

The report ends with several summary observations.

This report will be updated only if events or new information warrant.

Contents

Several Core Characteristics of Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Multiple Overlaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Multiple Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Multiple Incentives and Disincentives . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Oversight of the Intelligence Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Constraints on the Conduct of

Intelligence Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Complexity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Dearth of Outside Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Summary Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A Perspective on Congress’s

Oversight Function

Twenty years ago a lead editorial in The Washington Post was titled “A Failing

of Oversight.” It highlighted “serious flaws” in Congress’s oversight of the Central

Intelligence Agency (CIA).1 In a replay of that theme, the National Commission on

Terrorist Attacks Upon the United States (commonly called the 9/11 Commission)

declared that congressional oversight of intelligence and counterterrorism is now

“dysfunctional.” Commission members urged Congress to strengthen its oversight

of intelligence and homeland security by considering the adoption of a number of

reforms (a Joint Committee on Intelligence, for example). They also stated that of

“all our recommendations [for revamping the intelligence and homeland security

structure], strengthening congressional oversight may be among the most difficult

and important.”2

Whether Congress’s general performance of oversight is dysfunctional acrossthe-board is an issue that people may disagree about, especially given the additional

resources (more professional staff), laws (the Inspector Generals acts, for example),

or budget procedures (stricter reprogramming requirements, for instance) the

legislative branch acquired to monitor and supervise executive agencies and

programs. Many individual lawmakers are also diligent and effective overseers.

Still, there is significant sentiment today that Congress needs to do much more to

improve its capacity to properly oversee the intelligence community — that is, to

review, monitor, and supervise the implementation of public policy.

Oversight has long been a topic of concern on Capitol Hill and in other quarters

as well. Viewed by many Members as tedious, thankless, and time-consuming,

oversight is often given relatively limited attention, despite its critical role in holding

federal agencies and officials accountable for their actions and decisions. As former

Representative Lee Hamilton, the vice chairman of the 9/11 Commission, pointed

out: “Members are very busy now, and they just don’t make oversight that high a

1

Editorial, “A Failing of Oversight,” Washington Post, Apr. 18, 1984, p. A26. The editorial

addressed the CIA’s involvement in the mining of Nicaraguan harbors, which occurred in

the period when the CIA was supporting the “Contras” — a rebel group fighting to

overthrow the leftist Sandinista government of Nicaragua.

2

The 9/11 Commission Report (New York: W. W. Norton & Co., 2004), p. 419. The

characterization of Congress’s oversight as “dysfunctional” is found on page 420. The

bipartisan National Commission on Terrorist Attacks Upon the United States was created

by P.L. 107-306. It issued its final report on July 22, 2004, and ended its operations on Aug.

28, 2004. It was, however, reported that “the panel’s ten members would ... open a small,

privately financed office in Washington that would continue to lobby on behalf of the

group’s recommendations.” See Philip Shenon, “9/11 Panel to Wrap Up Its 20-Month

Inquiry,” New York Times, Aug. 21, 2004, p. A8.

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priority. Most of them focus on constituent services and legislative work.”3 The

term lawmaker suggests where many House and Senate members prefer to focus their

activity.

Congress’s “watchdog” role is crucial for many reasons. Besides holding public

officials accountable, there is another important purpose that merits mention, given

the on-going public debate about restructuring the U.S. intelligence community.

Oversight shines the spotlight of public attention on many significant issues, allowing

the American people to make informed judgments about executive performance,

policy success or failure, and the conduct of the officeholders who serve in the

nationally elective branches. “The informing function of Congress,” wrote Woodrow

Wilson in his classic 1885 study of the legislative branch, “should be preferred even

to its legislative function.” As he emphasized:

Unless Congress have and use every means of acquainting itself with the acts and

dispositions of the administrative agents of the government, the country must be

helpless to learn how it is being served; and unless Congress both scrutinize

these things and sift them by every form of discussion, the country must remain

in embarrassing, crippling ignorance of the very affairs which it is most

important it should understand and direct.4

Another fundamental goal of oversight is to protect Congress’s policymaking

role and its place in our constitutional separation of powers system as the “first

branch” of government. The huge growth in the size and reach of the executive

branch — the “fourth branch” of government — has produced a policymaking rival

to the Congress. Administrators do more than simply “faithfully execute” our laws

according to the intent (which may be vague) of Congress. Federal agencies are

filled with knowledgeable career and noncareer experts who, among other things,

write rules and regulations that have the force of law; formulate policy initiatives for

the White House and Congress; interpret statutes in ways that may expand their

discretionary authority or, conversely, undercut legislative intent; and shape policy

development by the Congress, in part by “selling” their ideas to lawmakers and

committees via hearings, agency reports, and other means. The large influence of the

federal establishment highlights the critical role of oversight in checking unwarranted

administrative actions and asserting or reasserting Congress’s authority over

executive entities.

Oversight is also crucial to the lawmaking process. Only by investigating how

a statute is being administered can Congress discover deficiencies in the original

statute and make necessary adjustments and refinements.

The purposes of this report are to provide a summary of the core characteristics

of congressional oversight, present a brief overview of Congress’s relationship with

the intelligence community, identify several issues unique to legislative review of the

3

David Nather, “Congress as Watchdog: Asleep on the Job?,” CQ Weekly, vol. 62 (May 22,

2004), p. 1192. Hamilton is a former Democratic member of the U.S. House from Indiana.

He served from 1965 to 1999.

4

Woodrow Wilson, Congressional Government (Boston: Houghton Mifflin, 1885), p. 303.

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intelligence community, and, finally, offer a few summary observations. A definition

of oversight is appropriate at the outset, because it can influence perspectives on the

adequacy of the review function. Oversight has two basic meanings. First, it denotes

some form of “supervision,” “watchfulness,” or “review” of delegated authority to

executive branch entities and officials. Often reactive in nature (it may also be

proactive and prospective), oversight is, “properly speaking, an extension of the

legislative process.”5 Lawmaking implies an obligation to monitor statutory

implementation. How much monitoring is done by Congress is not easy to measure

quantitatively, because it is subsumed in many hearings, meetings, or informal

briefings whose purposes may be secondary to reviewing program and policy

administration.6

The second meaning of oversight implies a “failure to notice” — something that

is overlooked or omitted. A recurrent issue is the extent to which Congress

overlooks executive branch activities. Plainly, the view of the 9/11 Commission is

that Congress is inadequately organized or motivated to monitor intelligence and

homeland security matters in a systematic manner. The sense of the Commission is

that Congress has too many committees and subcommittees largely operating

independently of one another that collect information on intelligence and homeland

security issues. This decentralized and often compartmentalized structure collects

huge amounts of disparate information, but no single committee has the

responsibility to “connect the dots” and view the bigger picture.7 As the commission

asserted: “Unity of effort in executive management can be lost if it is fractured by

divided congressional oversight.”8 On the other hand, the more committees and

subcommittees that are engaged in oversight, the greater the chances that important

matters will not fall through the cracks or be overlooked by Congress. Competitive

and creative oversight can help to ensure that important issues are uncovered,

questions pursued to their conclusion, and alternative viewpoints raised to resolve

public problems.

5

David B. Truman, The Governmental Process, rev. ed. (New York: Knopf, 1971), p. 439.

6

Joel D. Aberbach, “What’s Happened to the Watchful Eye?” Congress & The Presidency,

vol. 29, spring 2002, pp. 3-23. UCLA Professor Aberbach found that oversight in the 1990s

“continues to be quite high and that the model developed in” [Aberbach’s book titled

Keeping a Watchful Eye: The Politics of Congressional Oversight, Washington: Brookings

Institution, 1990] remains effective in explaining committee behavior. (p. 3)

7

On October 9, 2004, the Senate adopted S.Res. 445, which made a number of changes in

oversight of homeland security and the intelligence community. For example, the resolution

renamed the Governmental Affairs Committee the Homeland Security and Governmental

Affairs Committee; eliminated term limits for members of the Senate Intelligence

Committee; created in the Senate Intelligence Committee a Subcommittee on Oversight; and

established in the Senate Committee on Appropriations a Subcommittee on Intelligence.

8

The 9/11 Commission Report, p. 420.

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Several Core Characteristics of Oversight

Oversight is an implicit constitutional obligation of the Congress. According

to historian Arthur Schlesinger, Jr., the framers believed it was not necessary to make

specific reference to “oversight” in the Constitution. “[I]t was not considered

necessary to make an explicit grant of such authority,” wrote Schlesinger. “The

power to make laws implied the power to see whether they were faithfully

executed.”9 Over the years Congress has bolstered its ability to carry out its

obligation to oversee the bureaucracy through various laws, amendments to the

House and Senate rulebooks, and periodic increases in staff and budgetary resources

for its committees, including oversight and investigation subcommittees. A brief

overview of several core characteristics of oversight highlights the forces and factors

that influence how this activity is carried out on Capitol Hill.

Multiple Overlaps. The traditional rules and practices of the House and

Senate make it virtually impossible to eliminate all committee overlaps in the

oversight area. (As noted, there are benefits associated with committee redundancy

and overlap, such as more “eyes and minds” monitoring administrative activity). The

Legislative Reorganization Act of 1946 formalized in law the oversight function of

Congress. That act required House and Senate committees to exercise “continuous

watchfulness” of the agencies and programs under their jurisdiction. Implicitly, the

1946 law divided oversight among three types of committees. Authorizing

committees were assigned “legislative oversight” — reviewing programs and

agencies under their jurisdiction; the appropriating committees conducted “fiscal

oversight” — scrutinizing agency spending; and the House and Senate governmental

affairs panels acquired wide-ranging “investigative oversight” — conducting probes

for waste, inefficiency, or corruption in the federal government. To varying degrees,

congressional committees conduct each type of oversight.

In addition, House and Senate rules provide certain authorizing committees with

oversight authority that stretches beyond their jurisdictional mandate. This authority

is called “special oversight” in the House and “comprehensive policy oversight” in

the Senate. Both of these 1970s additions to chamber rules are akin to the broad

review authority granted the House Government Reform Committee and the Senate

Governmental Affairs Committee. The House Education and Workforce Committee,

for instance, has the authority (House Rule X, clause 3) “to review, study, and

coordinate on a continuing basis laws, programs, and Government activities relating

to domestic educational programs and institutions and programs of student assistance

within the jurisdiction of other committees.” The Senate Foreign Relations

Committee, as an example, has the authority (Senate Rule XXV) to “study and

review, on a comprehensive basis, matters relating to the national security policy,

foreign policy, and international economic policy as it relates to the foreign policy

of the United States, and matters relating to food, hunger, and nutrition in foreign

countries, and report thereon from time to time.”

9

Arthur M. Schlesinger, Jr. and Roger Bruns, eds., Congress Investigates: A Documented

History, 1792-1974, vol. 1 (New York: Chelsea House, 1975), p. xix.

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Multiple Purposes. There are a plethora of goals or purposes associated with

congressional oversight. Three were noted above: holding agencies accountable,

informing the public, and protecting Congress’s policymaking role. Other objectives

include evaluating program administration and performance; eliminating waste,

fraud, and abuse; clarifying legislative intent; correcting executive abuses of

authority; ensuring that programs are being run in an efficient and cost-effective

manner; and eliminating unwanted or unnecessary programs. There are also a

number of political purposes associated with oversight, such as protecting favored

agencies and programs from public criticism; advocating particular policy

preferences; airing administrative failures or achievements; generating favorable

publicity for programs; responding to requests from special interests to influence

agency decisions; or winning electoral support from constituents or various groups.

Oversight, in brief, does not focus only on management and implementation issues.

It occurs in a political context where the relationship between Congress and

administrative entities can range from cooperation to conflict.

Multiple Incentives and Disincentives. Despite the importance of

oversight, “pass it and forget it” lawmaking sometimes occurs on Capitol Hill. This

is not to suggest that committees and subcommittees do not hold regular oversight

hearings and meetings, often aimed today at rooting out government waste and abuse.

Instead, analysts and others suggest that long-term “institutional changes have

contributed to the decline [of oversight], such as members’ shorter workweeks,

packed schedules, term limits on chairmanships and eroding salaries for investigative

staff members.”10 As further disincentives, oversight requires large investments of

time, energy, and staff resources to ferret out administrative inadequacies; the impact

of oversight on bureaucratic behavior is often murky; and there is the perception of

insufficient electoral, political, or institutional rewards for oversight work. Agencies

may also resist congressional probes, forcing committees and subcommittees to

persist over a number of years and to use coercive tools at the command of Congress,

including subpoenas and holding executive officials in contempt.

On the other hand, there are certain incentives that can stimulate oversight

activity. Among them are divided government (Congress — one or both chambers

— controlled by one party and the White House by the other); press and media

attention; peer recognition as an effective and diligent overseer; public dissatisfaction

with government performance; the scarcity of fiscal resources, which may encourage

Members and committees to scrutinize federal programs for waste and inefficiency;

and electoral support from constituents. Clearly, congressional influence over the

executive branch is substantial if committees and subcommittees choose to exercise

their review authority, especially in a sustained rather than sporadic manner.

Oversight of the Intelligence Community

Selected Background Information. Since the creation of the Central Intelligence

Agency (CIA) in 1947 and other components of the broader intelligence community,

including the National Security Agency and the Defense Intelligence Agency,

10

Nather, “Congress as Watchdog: Asleep on the Job?,” pp. 1191-1192.

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Congress has oscillated between relative passivity and aggressiveness in monitoring

the intelligence community. Passiveness was largely the order of the day from 1947

to the mid-1970s. The chairs of the House and Senate Armed Services and

Appropriations Committees ostensibly exercised oversight over the CIA through

special subcommittees, but it was minimal at best. The relevant committee chairs —

who had few staff resources and no secure space or place to keep classified materials

— often used informal meetings as their preferred form of oversight. For example,

Allen Dulles, the Director of the CIA (DCI), could have “an afternoon bourbon with

[Senate Armed Services Chairman] Richard Russell and a breakfast chat with [House

Armed Services Chairman] Carl Vinson [and that] satisfied the need for

accountability of activities ranging from the successful coup against President Jacobo

Arbenz Guzman of Guatemala in 1954 to the covert funding of international student

groups and foundations.”11

Leverett Saltonstall, a member of the Senate Armed Services Committee and the

Appropriations Subcommittee on Defense, expressed a widely shared attitude among

Members during this period. In 1956, he remarked that “it is not a question of

reluctance on the part of CIA officials to speak to us. Instead, it is a question of our

reluctance, if you will, to seek information and knowledge on subjects which I

personally, as a Member of Congress and as a citizen, would rather not have....”12

That same year Senator Richard Russell — who chaired either Armed Services or

Appropriations for much of the 1950s and 1960s and who headed the CIA

subcommittees on both panels from 1969-1971 — expressed a comparable view.

Voicing opposition to the creation of a joint intelligence committee, Russell said:

It is difficult for me to foresee that increased staff scrutiny of CIA operations

would result in either substantial savings or a significant increase in available

intelligence information.... If there is one agency of the government in which we

must take some matters on faith, without a constant examination of its methods

and sources, I believe this agency is the CIA.13

Added Representative Robert Ellsworth: “The political zeitgeist of the time was that

the CIA was wonderful.”14 Or as Representative Albin Norblad said in 1963 about

his membership on the CIA subcommittee of House Armed Services: “We met

annually — one time a year, for a period of 2 hours in which we accomplished

virtually nothing.”15 (Recent scholarship suggests that there may have been more

11

Anne Karalekas, “Intelligence Oversight: Has Anything Changed?” Washington Quarterly,

vol. 6 (summer 1983), p. 23.

12

Remarks of Senator Leverett Saltonstall, U.S. Senate, Congressional Record, vol. 102

(Apr. 19, 1956), p. 5924.

13

Frank Smist, Congress Oversees the United States Intelligence Community, 1947-1994,

2nd ed. (Knoxville, TN: University of Tennessee Press, 1994), p. 6.

14

Ibid., p. 5.

15

Louis Fisher, Presidential Spending Power (Princeton, NJ: Princeton University Press,

1975), p. 218.

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congressional oversight of the CIA during this “era of trust” than indicated by these

Members’ comments).16

A limited number of House and Senate chairs and ranking members received

secret periodic briefings on CIA operations and budget requests, but most Members

had little knowledge of these matters and voted to provide billions of dollars to the

intelligence community — hidden in different accounts of the Defense Department

and other federal entities — without any inkling as to their amounts or purposes. The

Cold War struggle against the communist challenge, which had broad national

support, contributed to Congress’s general unwillingness to question the foreign

intelligence activities of the CIA. (There were a few exceptions to this pattern of

deference, such as the Bay of Pigs debacle and the Vietnam War.) Basically, both

chambers deferred to the President and the CIA in nearly all matters involving

intelligence policy.

Congressional passivity in overseeing the intelligence community changed

significantly by the mid-1970s. A confluence of factors triggered Congress’s

willingness to assert its authority over the CIA. For example, the Vietnam War and

Watergate weakened confidence in the presidency and encouraged, in that oft-quoted

phrase, an “invitation to struggle” between the legislative and executive branches

over the direction of intelligence policy. Congress’s trust in the CIA eroded when,

contrary to earlier CIA statements, it learned in 1974 that the agency was involved

in covert actions to overthrow Chilean President Salvador Allende, who was killed

in a military coup. There were also revelations in leading national newspapers about

illegal and improper domestic spying activities (illegal wiretaps on dissident groups

during the Vietnam War, for instance) and even drug-testing on unwitting subjects

that aroused the ire of the public. The combination of these various factors prompted

major investigations by the House and Senate as well as by the Administration under

Vice President Nelson Rockefeller. These efforts led to the establishment of a

permanent Senate Select Committee on Intelligence in May 1976 and the House

Permanent Select Intelligence Committee in July 1977. The creation of the two

intelligence panels greatly expanded Congress’s ability to exercise continuous

oversight of the intelligence community’s activities, budget, and performance.

New laws were enacted that provided Congress with the statutory authority both

to acquire intelligence information — thus expanding its expertise in this policy

arena — and to be appraised of covert action initiatives. In 1974, in response to

disclosures of covert action programs to topple foreign governments, Congress

adopted the Hughes-Ryan amendment (named after Senator Harold Hughes and

Representative Leo Ryan) to the Foreign Assistance Act. This statutory provision

prohibited the use of appropriated funds for “operations in foreign countries, other

than activities intended solely for obtaining necessary intelligence unless and until

the President finds that each such operation is important to the national security of

the United States.” Further, the amendment obligated the President to report “in a

16

David M. Barrett, “An Early ‘Year of Intelligence’: CIA and Congress, 1958,”

International Journal of Intelligence, vol. 17 (2004), pp. 468-501. The phrase “era of trust”

is from Loch K. Johnson, Secret Agencies: U.S. Intelligence in a Hostile World (New

Haven, CONN.: Yale University Press, 1996), p. x.

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timely fashion, a description and scope of such operation” to the appropriate

committees of Congress, which came to include the appropriations, armed services,

and foreign affairs panels of each chamber.

In 1976, Congress passed legislation “prohibiting the CIA from operating in

Angola other than to gather intelligence. It also prohibited the CIA from conducting

military or paramilitary operations in Angola and denied any appropriated funds to

finance directly or indirectly any type of military assistance to Angola.”17 This was

the first time Congress terminated a covert operation. Four years later Congress

enacted the Intelligence Oversight Act, which required the President to “ensure that

the [House and Senate] intelligence committees are kept fully and currently informed

of the intelligence activities of the United States, including any significant anticipated

intelligence activity.”18 The heads of the intelligence agencies were also directed to

respond to inquiries from these two panels.

These various changes during the 1970s and 1980s required a new relationship

between the intelligence community and Congress. No longer could the CIA deal

only with a small number of senior lawmakers.19 Instead, the CIA now had to

provide information and analysis to a larger segment of the House and Senate

membership, and to accommodate permanent intelligence panels that had the

authority to exercise legislative and budget authority over the intelligence community

and to investigate the quality of intelligence provided to policymakers. Informally,

the intelligence committees and the intelligence community worked out a number of

other arrangements: legislative access to classified materials; the sharing and storing

of intelligence; security clearances for staff; and the like. Importantly, the creation

of the House and Senate intelligence committees “brought about an intense

educational period in which the committees learned how the intelligence community

was organized, how it performed its duties, and how intelligence people operated.”20

Congress’s resurgent role in national security affairs meant that appropriate

committees and Members expected to receive timely and reliable information and

analysis from the intelligence community. And the intelligence community did

provide large amounts of information to Capitol Hill via reports, briefings, or

hearings. Congress now received “virtually the same intelligence analysis [emphasis

in original] as the executive.”21 Virtually the same, however, did not mean all

17

Louis Fisher, “Congressional Checks on Military Initiatives,” Political Science Quarterly,

vol. 109 (winter 1994-1995), p. 757.

18

The quoted material on the Hughes-Ryan amendment and the 1980 Intelligence Oversight

Act are taken from U. S. Congress, Senate Select Committee on Intelligence, Legislative

Oversight of Intelligence Activities: The U.S. Experience, 103rd Cong., 2nd sess., Oct. 1994

(Washington: GPO, 1994), pp. 4, 42.

19

As a sign of growing CIA involvement with Congress, in 1966 CIA Director Richard

Helms established an office of congressional relations to respond to Member and staff

inquiries and to conduct briefings for various House and Senate committees.

20

Smist, Congress Oversees the United States Intelligence Community, p. 331.

21

Gregory F. Treverton, “Intelligence: Welcome to the American Government,” in Thomas

(continued...)

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analysis or information. As one intelligence official stated: “None of our customers

has a right to all of the intelligence that is produced, not even the Congress. We will

give it to them in due course if they need it. But they cannot see everything that is

produced. The President has the right, if not the responsibility, to control it.”22 The

Senate Select Intelligence Committee, however, noted that as a practical matter,

“instances in which committee access [to information] could not be arranged have

been extremely rare.”23

The closer relationship between Congress and the intelligence community did

not mean that it was always harmonious. A sharp conflict erupted in the mid-1980s

between the intelligence committees and DCI William Casey. The Senate

committee, for example, charged that Casey had not kept the panel fully and currently

informed about its covert activities in Central America. The CIA counter-charged

that committee members and staff failed to ask for pertinent information about their

secret operations. As Director Casey told the Senators: “If you don’t ask the right

questions, you won’t get the right answers.”24 Or as one Senator put it, explaining

that CIA briefers did not provide much detail about specific operations: “Only if you

ask precisely the right question will they give you precisely the right information.

And even though we’re given things like places, dates, money and the like,

Administration goals are often vague and usually evolve.”25

If the right questions are asked by lawmakers and intelligence officials find them

difficult to answer, this may send signals to the CIA that they need to rethink their

plans; on the other hand, if the right questions are not asked about covert plans, then

the CIA may later claim legislative support for secret activities that might go awry.

In 1984, Congress adopted the Boland Amendment (after Representative Edward

Boland, who chaired the Permanent Select Intelligence Committee) to prohibit

assistance of any kind to support the Contras in Nicaragua. Several agencies,

including the CIA, were specifically barred from providing assistance to the Contras.

The legislative-executive strife engendered by the “covert” war in Central America

led to joint hearings by the two intelligence committees into what was called the IranContra affair. This inquiry focused on the secret sale of arms to Iran with profits

from the sales used illegally to fund the U.S. backed Contra rebels in Nicaragua. The

episode embarrassed the Administration and pointed to the difficulties of controlling

covert operations. Yet the Iran-Contra affair also underscored that Congress did hold

certain public officials accountable for their misdeeds.

21

(...continued)

E. Mann, ed., A Question of Balance: The President and Congress in Foreign Policy

(Washington: Brookings Institution, 1990), p. 71.

22

L.Britt Snider, Sharing Secrets With Lawmakers: Congress as a User of Intelligence, An

Intelligence Monograph, Center for the Study of Intelligence, Feb. 1997, ch. II, p. 8.

23

Legislative Oversight of Intelligence Activities: The U.S. Experience, p. 10.

24

Doyle McManus, “Does Congress Oversee or Overlook CIA?,” Los Angeles Times, Apr.

19, 1984, p. 10.

25

Stephen Engelbert and Leslie Gelb, “Overseeing of C.I.A. by Congress Has Produced

Decade of Support,” New York Times, July 7, 1986, p. A10.

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Other issues aroused lawmakers’ concerns about the intelligence community

during the 1990s and beyond, such as alleged failures on the part of the CIA to

provide advance warning to lawmakers about the collapse of the Soviet Union or

accurate assessments of the military intentions of the Iraqi armed forces prior to the

1991 Persian Gulf war. In 1994, the discovery of a spy (Aldrich Ames) in the CIA

triggered investigations by the congressional intelligence committees. The Ames

episode tarnished the public reputation of the agency. Most recently, the intelligence

agency has been criticized for a number of failures, such as its judgment prior to the

Iraq war that Saddam Hussein possessed weapons of mass destruction.

Notwithstanding these controversies, the Congress-intelligence community

relationship generally has been characterized more by cooperation, trust, and

accommodation than by conflict or recrimination. Even more important is that

Congress, since the mid-1970s, shifted from being a minor to a significant player in

intelligence oversight.

Constraints on the Conduct of

Intelligence Oversight

Congress has a number of important tools through which it can scrutinize the

intelligence community. Among the most important are budget reviews conducted

by the two intelligence panels, the relevant appropriations subcommittees, and the

armed services panels; studies and reports by the congressional intelligence panels

on the timeliness and quality of intelligence collection and analysis; and pertinent

laws (requiring the DCI to provide intelligence support to the House and Senate and

its committees, for example, along with the CIA Inspector General reports). Of

course, the fact that Congress has the authority and obligation to hold the intelligence

community accountable does not necessarily mean that it is required to do so in a

sustained, systematic, or bipartisan manner.

The 9/11 Commission suggested that the intelligence panels require

strengthening, and it proposed a number of recommendations that might achieve this

objective, such as consolidating the intelligence appropriation and authorization

functions in the existing intelligence authorization committees. The commission also

stated that the select intelligence panels could be transformed into standing

committees with additional powers. Although the 108th Congress did not approve

these two specific recommendations, several of the commission’s reform proposals

were agreed to, as noted earlier, such as eliminating term limits for members who

serve on the Senate Select Intelligence Committee and creating in the Senate panel

a Subcommittee on Oversight.26 Despite various proposals for change, there are

several constraints that make the conduct of intelligence oversight challenging for

Congress.

Secrecy. Congress functions in a largely open environment; intelligence

activities and operations are necessarily secret. The tension that exists between the

26

Walter Pincus, “Senate Realigns Intelligence Procedures,” Washington Post, Dec. 23,

2004, p. A21.

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legislature’s emphasis on “need to share” information — with colleagues,

constituents, and many others — and the intelligence community’s culture of a

limited or compartmentalized “need to know” shapes Congress’s oversight of

intelligence agencies. The veil of secrecy that usually shrouds intelligence activity

means that Congress often finds itself in a “Catch 22” situation. CIA officials, for

example, may provide timely notice to appropriate congressional committees and

party leaders of planned covert actions, but lawmakers who possess this information

are subject to numerous internal rules and other restrictions that inhibit the disclosure

of sensitive material even to their colleagues, let alone the media or others.27 It is

somewhat paradoxical, though understandable, that the most open of our three

national branches of government must conduct most of its intelligence oversight in

secret.

The “closed door” oversight of intelligence raises numerous dilemmas that are

not easy to resolve. Two questions seem especially prominent. First, can Congress

function as an effective surrogate for the public in holding the intelligence

community accountable for its actions and decisions when these agencies must

function in a highly secret environment? Absent any constitutional “right to know”

on the public’s part, people may either “accept the reasons for secrecy and the

limitations that it imposes on public accountability” or they may doubt the “executive

branch’s willingness to be forthcoming with Congress” or “Congress’s readiness to

air disquieting information.”28

Second, the safety and security of the nation may depend on collecting and

analyzing intelligence gathered through overt and covert means and disseminating

it to appropriate decisionmakers. In a dangerous world, a challenge for Congress’s

intelligence committees is balancing their obligation to hold intelligence agencies

accountable for their performance without hindering or harming these agencies’

ability to carry out their national security responsibilities. Stated differently, how is

Congress “to conduct oversight in a policy area deemed of great importance by both

the executive and legislative branches but characterized by legitimate needs for

secrecy and security that exist in few other policy areas?”29

To be sure, the issue of secrecy raises a host of other concerns, such as storing

and securing classified information; providing access to confidential studies;

preventing “leaks” of materials; establishing guidelines for the use of classified

studies; and hiring competent staff who can acquire appropriate security clearances

from the executive branch.30 The secrecy of the work also limits public recognition

27

There are occasions when lawmakers do speak out about classified intelligence plans or

programs. See Douglas Jehl, “Debate on Secret Program Bursts Into Open,” New York

Times, Dec. 10, 2004, p. A29.

28

Mark M. Lowenthal, Intelligence: From Secrets to Policy, 2nd ed. (Washington: CQ Press,

2003), p. 163.

29

30

Smist, Congress Oversees the United States Intelligence Community, 1947-1994, p. 13.

Security investigations of congressional staff requiring clearances are conducted by the

executive branch, but not the adjudication or the determination of whether a person is

(continued...)

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for lawmakers, perhaps reducing the attractiveness of service on the intelligence

committees.31 A fundamental issue for lawmakers is how to balance their obligation

to represent the views and values of their constituents by speaking out on public

policies while being bound by an array of secrecy rules and regulations.

Complexity. Intelligence, like other policy domains, is a complex and

technically substantive area. “Over the decades,” said the 9/11 Commission, “the

agencies and the rules surrounding the intelligence community have accumulated to

a depth that practically defies public comprehension.”32 Comprehension is difficult

because there are numerous (15) intelligence agencies, all with their own culture,

rules and procedures, authority, and capabilities. Multiple intelligence agencies

compound the difficulty term-limited Members confront in becoming sufficiently

informed to credibly evaluate agency performance and personnel. To develop a

sophisticated understanding of intelligence methods, sources, or mandates — the

requirements of defense intelligence, tactical intelligence, strategic intelligence, and

so on — takes years of study and analysis. On the other hand, limitations of tenure

on the intelligence panels permit a wider number of lawmakers to understand

intelligence issues and to speak about them knowledgeably. Tenure limits also

reduce the chances that the committees will be coopted by the intelligence

community, although this contention has been the subject of increasing debate.

Dearth of Outside Assistance. Unless certain events or crises precipitate

their involvement, relatively few members of Congress focus intensively or

extensively on the intelligence community. Members and staff of the two

intelligence panels are the principal consumers of information and analysis generated

by the many components of the intelligence community; they are responsible to their

colleagues for evaluating its credibility and accuracy. This is a workload assignment

of significant proportions. The two committees receive little help from interest

groups, constituents, or the media in monitoring and evaluating intelligence agencies

simply because security concerns restrict the access of other participants. (Even

lawmakers who are not members of the intelligence panels confront various

restrictions in reviewing classified materials.) As a member of the House

Intelligence Committee said: “There is no outside organization [like the Government

Accountability Office] that is providing consistent oversight, and whistle-blowing is

not a respected tradition in the intelligence community. There is nobody else to

help.”33 By contrast, a significant incentive for congressional oversight in other

30

(...continued)

“trustworthy” and “loyal.” That decision is made by Congress for its employees.

31

Mark Lowenthal, former staff director of the House Permanent Select Intelligence

Committee, suggests five reasons why lawmakers want to serve on the intelligence panels:

(1) the chance to perform “public service” within the institution; (2) access to a secret body

of information; (3) the ability to shape intelligence policy; (4) the opportunity to attract

media attention; and (5) recognition among peers as a “favorite” of party leaders, who select

the members of the two panels. Lowenthal, Intelligence: From Secrets to Policy, p. 168.

32

The 9/11 Commission Report, p. 410.

33

Kevin Whitelaw and David E. Kaplan, “Don’t Ask, Don’t Tell,” U.S. News & World

(continued...)

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policy areas is public visibility, which often galvanizes the press, outside groups, and

others to make their own inquiries and investigations of agency and program

performance.

Summary Observations

There is no doubt that Congress has significant authority to oversee the

intelligence community. Control of the purse strings, enactment of laws, the conduct

of investigations, or the Senate’s confirmation role are among the principal levers of

power available to the legislative branch should it disagree with an administration’s

intelligence policies. The 9/11 Commission has urged that Congress needs to employ

these constitutional tools more assertively, and that its watchdog role requires a

stronger and more vigorous bark. The commission advocated a number of changes

which, in its judgment, would strengthen congressional oversight of intelligence and

homeland security. Several were adopted by the Senate when it agreed to S.Res. 445,

such as the aforementioned elimination of term limits for lawmakers who serve on

the intelligence panel. Still other commission proposals remain pending, such as

forming a joint intelligence committee or converting the select committees into

standing committees with authorizing and appropriating powers. In addition, the

9/11 Commission urged each chamber to create a permanent homeland security

committee. The Senate did rename the Governmental Affairs Committee the

Homeland Security and Governmental Affairs Committee. Speaker Dennis Hastert

stated that he supports transforming the temporary Select Homeland Security

Committee, which the House established on the opening day of the 108th Congress,

into a permanent committee for the 109th Congress.

The commission advised, too, that steps be taken by the White House and

Senate to accelerate the confirmation of national security appointees during the

change of administrations. Section 7601 of the new law (P.L. 108-458) revamping

the intelligence community contains “sense of the Senate” language stating (1) “the

President-elect should submit the nominations of candidates for high-level national

security positions, through the level of undersecretary of cabinet departments, to the

Senate by the date of the inauguration of the President-elect as President,” and urging

(2) “Senate committees to which these [national security] nominations are referred

should, to the fullest extent possible, complete their consideration of these

nominations, and, if such nominations are reported by the committees, the full Senate

should vote to confirm or reject these nominations, within 30 days of their

submission.” S.Res. 445 also assigns the Senate Select Intelligence Committee

“jurisdiction for reviewing, holding hearings, and reporting nominations of civilian

persons nominated by the President to fill all positions within the intelligence

community requiring the advice and consent of the Senate.”

33

(...continued)

Report, vol. 137 (Sept. 13, 2004), pp. 36-37. In the post-9/11 world, there is more public

debate about intelligence and national security affairs, and this change might provide the

intelligence panels with reasoned popular judgments useful in their deliberations.

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In the 108th Congress, lawmakers introduced a number of measures (H.R. 10 and

S. 2845, for example) to implement many of the recommendations of the 9/11

Commission. Various House and Senate committees, including a bipartisan Senate

working group, reviewed the commission’s proposals. A major overhaul of the

intelligence community occurred with enactment of P.L. 108-458, which created the

new position of Director of National Intelligence, the National Counterterrorism

Center, a Privacy and Civil Liberties Oversight Board, among other changes. As the

109th Congress approaches, various lawmakers are urging the new Congress to take

additional steps to strengthen oversight of intelligence and homeland security

operations.34 Commission members and other groups are also urging lawmakers to

improve their committee oversight structure when the 109th Congress convenes.

The recommendations have their advantages and disadvantages. Consolidating

oversight authority in a single committee pinpoints responsibility and accountability

and limits the problem of leaks. On the other hand, unlike the current arrangement

which permits multiple committees to review intelligence issues each from their

unique vantage point, consolidation might reduce oversight of the intelligence

community. Reorganizations sometimes exchange one set of problems for another,

or produce unintended and unwanted consequences.

Ultimately, Congress will decide how it can best pursue its oversight

responsibility. Much will depend on the context of the times, the willingness of

Members to watch and analyze the intelligence community, and Congress’s

relationship with the executive branch. This relationship may range from cooperative

to confrontational, but it is principally Congress that can ensure that intelligence

policies reflect the values of the American people, anticipate long-range trends, and

meet the challenges of a changed world. President Harry Truman underscored the

importance of intelligence in making right decisions for the nation in comments that

apply equally well to the legislative branch: “I think it is fairly obvious that by and

large a President’s [or Congress’s] performance ... is as effective as the information

he has and the information he gets.”35

34

Christopher Shays and Carolyn Maloney, “Congress, Reorganize Thyself,” Washington

Post, Dec. 22, 2004, p. A27.

35

Remarks of Senator Alan Cranston, U.S. Senate, Congressional Record, vol. 121 (Jan. 23,

1975), p. 1125.