1998 Congressional HearingsIntelligence and Security
1998 Congressional Hearings
Statement of Views on S. 1003
(BY RICHARD K. BETTS, PROFESSOR OF POLITICAL SCIENCE, COLUMBIA UNIVERSITY) (PREPARED FOR TESTIMONY TO THE U.S. SENATE SELECT COMMITTEE ON INTELLIGENCE, SEPTEMBER 11, 1991) Thank you for the invitation to testify. I favor the provision of S. 1003 that would mandate Senate confirmation of principal officials in the Central Intelligence Agency (CIA), but I do not favor the provision in the current version that would limit appointments for those positions to individuals `with substantial prior experience and demonstrated ability' in intelligence work. My remarks will focus primarily on the issue of confirmation.
Senate confirmation is the norm for high-level positions in executive branch agencies. This reflects the essence of the American Constitution, its emphasis on checks and balances and shared powers between separated branches of government. Unless we are to question this most basic aspect of our political system, therefore, the reasoning in favor of S. 1003 does not need justification as much as do the arguments against confirmation of high CIA officials. The burden of proof should lie on the opposition to this measure.
I will discuss in turn three general arguments that might be cited in opposition to S. 1003:
(1) The special need to maintain secrecy means that intelligence is not one of the functions of government that should be subjected to open scrutiny in the manner that we normally expect; special standards must apply. Especially in regard to the position of CIA's Deputy Director for Operations (DDO), publicity and open discussion of the role itself should be minimized.
(2) Because of the unique sensitivity of intelligence functions, extraordinary measures should be taken to prevent the `politicization' of CIA; normal confirmation proceedings would encourage politicization.
(3) Legislating the requirement of confirmation prejudices current reconsideration of the basic organizational structure of CIA.
SECRECY AND PUBLICITY
The first of these objections, in my view, has been met and settled over the past fifteen years by the development of the institutionalized oversight process. It is possible to argue that we should not have moved in this direction, but most of the water is over the dam. For better or worse, the existence and functions of CIA's Operations Directorate have already been admitted in official government documents. Requiring confirmation of the Deputy Director would add nothing to the problem, if there is one. If we can assume that confirmation hearings would be in executive session, and that transcripts of hearings on the Director of Operations need not be published, the confirmation process itself should not aggravate the long-standing tensions between secrecy and democracy.
POLITICIZATION
The second objection deserves the most careful consideration, and I will devote most of my remarks to it. By the term `politicization' I mean the imposition of partisan or ideological criteria on intelligence work. To argue that a process of confirmation would politicize the positions in question, it seems to me, has the point backwards. Confirmation should do more to prevent politicization than to promote it, for two reasons.
First, the confirmation process can only check, not compel. That is, it can only block the executive from appointing a given individual, it cannot force the appointment of anyone with a particular viewpoint or loyalty preferred by Congress. And in practice, the legislative check is not used frivolously. While many may get an uncomfortable grilling before committees such as this one, it is extremely unusual for a presidential appointee in the executive branch to be rejected, and then rarely if ever on ideological grounds alone. (The situation may be tougher for judicial appointees, but probably because of the lifetime tenure attached to such positions.)
The second reason is that, under current practice, nothing at all stands in the way of politicization of these offices by the administration. Considering the difference between the power to appoint and the power to review the appointment, politicization comes from the executive more readily than from Congress. If a President or Director of Central Intelligence (DCI) wish to put unqualified political cronies in sensitive CIA positions, they can do so, as of now, without challenge. This has not happened often, but it has happened. The unfortunate case of Max Hugel's brief tenure as DDO in 1981 is the unavoidable example. How much more politicized could we get than to have as the person in charge of covert action a man whose principal qualification was campaign work for the President?
If the confirmation process has any political effect, it is usually to give appointees who rise from career services some protection from being muscled politically by the leaders of the administration. Consider the example of chiefs of staff of the military services. While the confirmation of these Generals and Admirals is usually perfunctory, Senators in the past have sometimes used the occasion to get the service chiefs' agreement that they would testify frankly about their own views if they conflicted with those of the Secretary of Defense. This may not have made Presidents or their civilian lieutenants in the Pentagon happy, but that was because it limited their ability to force a career professional to compromise his professional judgment according to the partisan agenda of the administration. If any of the chiefs do not serve the administration effectively the President can get rid of them, but he cannot use them easily for his own political purposes. The process of confirming members of the Joint Chiefs of Staff and establishing their accountability to Congress, in short, helps safeguard the military against politicization.
In contrast, there are some important positions in the executive branch that are not subject to confirmation, because they are not expected to be accountable to Congress. These, however, are usually the officials most politically identified with the administration's program, such as the White House Chief of Staff and Special Assistants. It is assumed that they are intimate political confidants of the President, involved in advising him on policy goals and political strategy for achieving them, so having them accountable to Congress would compromise their ability to serve the administration. At the same time, since they are essentially personal advisers or assistants, in principle, and are not responsible for administering large agencies or supervising the performance of expensive legislated programs, there is less need to subject them to oversight. The Assistant to the President for National Security Affairs has been exempt from confirmation on such grounds. Other positions which began in that mold, such as the Director of the Bureau of the Budget or the Chairman of the Council of Economic Advisers, later were made subject to confirmation when their roles had evolved beyond personal advice and staff assistance.
The point in short is that the high-level positions exempted from confirmation have usually been exempted so that Congress could not interfere with the President's political control of those appointments, because it was recognized that those positions are and should be politicized, and the President's discretion in dealing with them should not be compromised. Conceivably one could argue in opposition to S. 1003 that high CIA positions should fall in that category, but that would hardly be a persuasive or popular position in the wake of the Iran-Contra scandal. (Moreover, the positions named in S. 1003 are major administrative ones rather than purely advisory.) If the argument against politicization is on grounds that professionalism in intelligence should be safeguarded and loyalty to the law rather than to a political group should be the norm, then confirmation is the solution, not the problem. Which should be the model for the principal positions in CIA--the military service chiefs, or the White House Chief of Staff?
On the other hand, we should also recognize that in reality several of the CIA positions in question are inevitably entangled in policy, whether we prefer the principle of rigid separation of intelligence and policymaking or not. The Directorate of Intelligence produces estimates that are not policy documents, yet cannot help but have implications for policy and cannot help but be criticized politically if their conclusions are unwelcome. The Directorate of Operations, in turn, embodies the most sensitive and controversial instruments of U.S. policy abroad, most notably the capacity to execute missions that are illegal in the countries in which they are carried out, and for which the United States would not wish to admit responsibility in public.
With luck, the supervision of these units will never be contaminated by partisan political manipulation. But as the Founders understood, we would be foolish to trust in luck, and would do better to rely on institutional checks and balances. Past controversies over allegations of improper politicization of DDI analyses or DDO covert action projects did not occur because questioning or pressure from the legislative branch corrupted the objectivity or wisdom of these units' activities. They occurred because there appeared to be insufficient control of these activities by the executive, or too much of the wrong kind of control. Second-guessing by Congress may not always help, but it is more likely to limit political pressure on intelligence agencies than to cause it.
REORGANIZATION
This could be the most practical immediate reason to defer requirements for confirmation, if it is really probable that the positions named in S. 1003 might be abolished and replaced by others. The units in question, however, are the most basic
organizational entities in CIA, and most of them have existed for decades. Moreover, the main issue should take precedence--the issue of whether the high-level positions in CIA that are comparable to Under or Assistant secretaries in the State and Defense departments or chiefs of staff in the military services should be subject to confirmation. If that issue is settled by passage of S. 1003, it should not have to be a major legislative matter to approve a reorganization and redesignation of positions requiring confirmation if the reorganization goes so far as to change the identities of the principal directorates. The possibility of reorganization, in fact, is virtually constant in modern American government (indeed, one of the crosses the intelligence community had to bear from the late 1960s to the early '80s was the rash of major reorganizations that kept disrupting the pace of work). If the possibility of reorganization is an excuse for avoiding the issue of legislative confirmation of executive appointments, it could be a permanent excuse.LIMITATION OF QUALIFICATIONS FOR APPOINTMENT
It its current form S. 1003 stipulates that the appointments in question `shall be limited to persons with substantial prior experience and demonstrated ability in the field of foreign intelligence. * * *' This is not a good idea. First, it is not necessary in order to prevent abuses of appointment power; second, it would be a step backward by precluding the occasional choice of first-rate candidates who would be the best for the job.
On the first point, the logic of the confirmation process is that it provides a check on executive judgment, not that it threatens to substitute legislative appointment power for the authority of the executive. If appointees are subject to confirmation, then the Senate can assure itself that any nominee has satisfactory professional qualifications. That judgment can and should be made individually. If a majority of senators believe that only career professionals in the intelligence business should fill these positions, they can enforce that view anytime the question comes to a vote. There is no need to chisel the requirement in stone.
There is, on the other hand, a good reason not to chisel it in stone. Once in awhile there may be legitimate grounds for having a well-qualified outsider in one of these positions. The best example I can think of is Robert R. Bowie, who in the late 1970s was Director of the National Foreign Assessment Center (the temporary redesignation of the Deputy Director for Intelligence in that period). Bowie was not an intelligence professional, but he was superbly qualified for the job. He had wide-ranging high-level experience at the policy level during the occupation of Germany, as Director of Policy Planning in Eisenhower's State Department, and as State Department Counselor under Dean Rusk. That background enhanced his ability to understand how the policy level deals with intelligence analyses, and to make policymakers aware of critical analyses that they otherwise often ignore.
In addition Bowie was a law professor and director of the Center for International Affairs at Harvard, academic credentials quite relevant to the problems of marshalling good analysis in the service of government policymaking. (A similar example in a Republican administration would be Henry Rowen, a chairman of the National Intelligence Council under DCI Casey, after a distinguished career in the Defense Department, as President of the Rand Corporation, and at Stanford Business School. Chairman of the NIC, it is true, would not be subject to the provisions of S. 1003, but the principle I am getting at is the same.)
Cases like these would not be common, but in the uncommon instances when such an individual is available, he or she should not be barred by legislation from serving. If the President or DCI makes a bad call in appointing an outsider, let the confirmation process itself reveal the mistake. To sum up, the solution is not to prevent the nomination of anyone by statute, but to prevent unchecked appointments--to give the Senate a chance to review the nominations of both the Hugels and the Bowies, not to keep the executive from nominating either sort.
I would delete the section in S. 1003 on `Qualifications for Appointment.' If it is felt that the presumption in favor of appointing career professionals needs to be reinforced, perhaps a compromise would be to insert the word `normally' or some other such qualifier in the phrase `shall be limited' in section (b). The principle would be underlined, but a loophole would be left for special cases that might warrant it.
The reason to approve S. 1003's provision regarding confirmation and to disapprove the one stipulating professional qualifications is not that we should treat CIA just like any other agency. In important respects, obviously, the delicacy of CIA's missions is extraordinary and requires the greatest care in administration and oversight. Such sensitivity, however, does not mean either that the executive should be given more autonomy or less flexibility in staffing sensitive positions than it has with other bureaucracies. It is precisely because intelligence is an important and sensitive business that the classic rationales for checks and balances should apply. Loopholes can be left for special circumstances (such as appointment of non-professionals) if the legislative branch is guaranteed the chance to review the circumstances; loopholes are dangerous only where the executive could exploit them without the knowledge of Congress. By affirming the checks, it is more reasonable to preserve the flexibility, since the executive flexibility is harder to abuse than it is when the legislative check is absent.
Biographical Information Richard K. Betts
Richard K. Betts is Professor of Political Science and member of the Institute of War and Peace Studies at Columbia University. Born in 1947, he received his B.A., and Ph.D. in Government from Harvard University. He was a Senior Fellow at the Brookings Institution (1976-90) and adjunct Lecturer at the Johns Hopkins University's Nitze School of Advanced International Studies (1978-85 and 1988-90). He also served on the Harvard faculty as Lecturer (1975-76) and Visiting Professor of Government (1985-88).
Betts' first book, `Soldiers, Statesmen, and Cold War Crises' (first edition, Harvard University Press, 1977; second edition, Columbia University Press, 1991) won the Harold D. Lasswell Award for the best book on civil-military relations. He is also the author of `Surprise Attack' (Brookings Institution, 1982) and `Nuclear Blackmail and Nuclear Balance' (Brookings 1987); coauthor of `The Irony of Vietnam' (Brookings, 1979), which won the Woodrow Wilson Prize for the best book in political science, and `Nonproliferation and U.S. Foreign Policy' (Brookings, 1980); and editor of `Cruise Missiles: Technology, Strategy, Politics' (Brookings, 1991). His next book, to be published by Brookings in 1992, is on military readiness and U.S. strategy.
Betts has also published numerous articles on foreign policy, intelligence operations, conventional forces and strategy, nuclear weapons, arms trade, security issues in Asia, and other subjects in professional journals and edited volumes. He serves on the editorial boards of International Security, Orbis, The Journal of Strategic Studies, and Intelligence and National Security.
A former staff member of the Senate Select Committee on Intelligence, the National Security Council, and the Mondale Presidential Campaign, and consultant to the National Intelligence council and Central Intelligence Agency, Betts has lectured frequently at schools such as the National War College, Foreign Service Institute, and U.S. Military Academy. He is a member of the Council on Foreign Relations, International Institute for Strategic Studies, International Studies Association, and several other professional organizations. He is married to Adela M. Bolet, has two children, and lives in Teaneck, New Jersey.
August 1991.