IC21: The Intelligence Community in the
21st Century
Staff Study
Permanent Select Committee on Intelligence
House of Representatives
One Hundred Fourth Congress
XV. Congressional Oversight
Executive Summary
Findings
The current intelligence oversight system arose from a
view that intelligence had to be handled in a manner that
was extraordinary when compared to other functions of
government. Although that view may have been warranted in
the aftermath of the investigations in 1975-76, it is not
warranted any longer. Indeed, by continuing to view
intelligence in this manner, oversight and the work of the
Intelligence Community are likely made more difficult.
Advocacy for overseen agencies is legitimate and to some
extent necessary. This has not been an accepted stance
for the intelligence committees. We agree with the view
of former DCIs that intelligence is such a restricted
issue that Congress must be more active in building the
necessary political consensus.
The current oversight system has been largely effective,
and clearly has responded to those problems that prompted
the creation of the current committees.
There is no compelling reason to convert the current
system to a joint committee. Congress's record regarding
safeguarding highly classified information is not perfect,
but does not warrant this step. Creating a joint
committee would also require either the House or the
Senate to alter its current arrangements for intelligence
oversight, which has not had significant support in the
past. Finally, and most importantly, creating a joint
committee for intelligence would continue to heighten the
view that intelligence is something other than an accepted
function of government, which tends to increase rather
than complement oversight issues and problems.
Although the reasons for which the current committee was
made a select committee with tenure limits may have been
valid in 1977, these may no longer be compelling or valid.
There are equally compelling arguments in terms of the
general effect of these arrangements on oversight to
warrant reconsidering them.
Unauthorized disclosures of classified information by
Members or staff should trigger thorough investigations
relying on strict enforcement of the applicable Federal
statutes and House rules. Any individual who is
conclusively determined to be the source of such
unauthorized disclosures should be subject to the full
range of penalties prescribed by the law. The rules
promulgated by the Committee on Standards of Official
Conduct on July 12, 1995 should be strictly and
consistently enforced by HPSCI.
The current oversight structure puts intelligence -- as
both a government function and as an issue -- at a
distinct disadvantage. Unlike other national security
functions, congressional oversight of intelligence is
neither unified nor clearly delineated. The prime effect
of this arrangement is seen in the degree to which
intelligence programs are subjected to budget cuts largely
because of how they are dealt with (i.e., as part of the
defense authorization and appropriations process), rather
than on their own merits.
Recommendations
It is important that the House act to "normalize" the way
in which it oversees intelligence. By continuing to
handle intelligence as an extraordinary function, the
current oversight system predicates an approach that may
be overly adversarial and may actually make effective
oversight more difficult.
The House should give serious consideration to converting
HPSCI to a standing committee, with no limits on terms of
service for Members. This would help "normalize"
intelligence and greatly improve expertise and continuity
on the Committee.
The House should consider allowing HPSCI to have exclusive
jurisdiction over all aspects of intelligence that are
part of the larger intelligence architecture, while the
House National Security Committee (HNSC) has exclusive
jurisdiction over those aspects of intelligence solely
related to military intelligence needs but that are not
part of this larger architecture. Second, the House
should consider creating a separate appropriations
subcommittee exclusively for intelligence.
The House should seek to better protect Intelligence
Community equities by erecting legislative "firewalls"
between HPSCI and HNSC during the authorization phase;
similarly, efforts should be made to establish mechanisms
for better legislative consultation and coordination with
the House Appropriations Committee during the
appropriations phase.
Establish a semi-annual strategic intelligence review
meeting between the new Committee on Foreign Intelligence
and the House and Senate intelligence committees.
CONGRESSIONAL OVERSIGHT
The modern system of congressional oversight of intelligence
-- select committees in the House and in the Senate specifically
devoted to intelligence -- is almost twenty years old. Reviewing
the strengths and weaknesses of this system, as well as the
contribution that congressional oversight can and should make to
intelligence is appropriate as part of the larger IC21 study.
Issues regarding congressional oversight fall into two large
categories: the general nature of how Congress carries out
oversight and specific issues of organization and process related
to intelligence oversight. Although this report touches on some
generic issues of intelligence oversight, its findings and
recommendations are restricted to the way in which the House of
Representatives handles this function.
Background: Evolution of Congressional Oversight of Intelligence
It is important to recall how the current intelligence
oversight system came into being. The two select committees were
the direct result of the congressional (and executive)
investigations into U.S. intelligence activities in 1975-76. Both
Houses came to the conclusion that the past oversight system had
been inadequate in terms of both the vigor with which it was
carried out/1/ and the very limited number of Members who were privy
to intelligence-related information. That older system reflected
the gentleman's agreement nature of oversight that evolved during
the Cold War. It accepted the necessity of intelligence -- and
especially of intelligence activities (i.e., covert action), but
treated them in an extraordinary manner because of their highly
classified and extremely sensitive nature.
The House Permanent Select Committee on Intelligence (HPSCI)
was established on July 14, 1977 by H. Res. 658 of the 95th
Congress and is governed by Rule XLVIII of the Rules of the House.
The current system attempted to correct the main flaws in the older
system in two major ways. First, the House decided that a
committee with specific oversight over intelligence (albeit with
different jurisdictions in the House and Senate) was necessary to
ensure more vigorous and regular oversight. Second, in order to
broaden the oversight base, each committee has "cross-over" Members
from other committees that have an interest in intelligence or
intelligence related issues: Appropriations; International
Relations; Judiciary; and National Security.
However, and this is perhaps ironic, the House continued to
treat intelligence as something extraordinary, rather than as an
accepted function of government similar to any others that are
subject to oversight. This is reflected in two aspects of HPSCI.
First, it is a select committee rather than a standing committee.
Second, and derived from the first, are the rules limiting the
length of consecutive service on the Committee. These tenure rules
arose from the perception that the past intelligence overseers had
grown "too cozy" with the intelligence agencies, thus becoming less
vigorous in their oversight. Rotating the membership on a regular
basis, it was believed, would avoid this type of overly close and
potentially less critical relationship in the future.
The Nature of Oversight: Adversary vs. Advocate
Each committee charged with congressional oversight has a
dual responsibility. The most obvious is to oversee the various
agencies under its mandate, approve their budgets, investigate
known or suspected problems, and report back to the House on these
matters. Recognizing the impossibility of each Member being
conversant with (or intensely interested in) all issues, the
committee system delegates responsibility to the committees and
accepts their leadership in specific areas. Given the checks and
balances nature of the congressional-executive relationship, each
committee has, at some level, an adversarial role with its
Executive Branch opposites. The relationship need not be overtly
or continuously hostile, but there is inevitably a certain amount
of friction involved.
The responsibility for being the House's resident experts on
given programs and agencies also gives rise to a second role for
each oversight committee, that of advocacy for those agencies and
programs. It is only natural that those Members most interested in
and most conversant with agencies and programs will also, on
occasion, be their advocates. Increasingly constrained debates
over budget shares, disinterest or outright hostility from other
Members about agencies or programs for a wide variety of reasons,
all put oversight committees in this advocacy role as well.
Oversight, if carried out properly, should be a combination of
these two roles. An excessive concentration on either will damage
the ability of the committee to handle its issues effectively and
can undermine the credibility of that committee among its
colleagues.
However, it is not clear that this norm of oversight behavior
is widely accepted as proper for HPSCI. The fact that intelligence
continues to be handled as an extraordinary issue in terms of
oversight -- by virtue of a select committee and tenure limits --
suggests that it was at least expected at its origin that HPSCI
would largely eschew advocacy role and that this expected emphasis
on adversary rather than advocate has been tacitly accepted over
the last twenty years.
There remains a lingering uneasiness about intelligence and
its role in the U.S. government that will never be completely
resolved. At some level, the concept of secret agencies with
classified budgets runs counter to some deeply felt view of what
and how the U.S. government should behave. However, this less than
full acceptance may actually be heightened rather than pacified by
the current oversight system, which treats intelligence in a manner
different from other government activities.
Interestingly, several witnesses who appeared before HPSCI
during IC21 hearings made the same point: intelligence, unlike
virtually all other functions of government, has no natural
advocates in the public at large. Its direct effect on the lives
of most citizens is largely unfelt or unseen; its industrial base
is too rarefied to build a large constituency in many areas; it is
largely an "inside the Beltway" phenomenon in terms of location,
logistics, budget and concern. The only places where intelligence
can hope to find some base level of support are from its Executive
Branch masters and its congressional overseers./2/
By having HPSCI as a select committee, Congress is, in effect,
elevating intelligence. It is seen as an extraordinary issue
requiring congressional organizational responses that depart from
the norm. At some levels, this view of intelligence is accurate,
but this also adds to the mystique that too often surrounds
intelligence and often engenders wariness about it on the part of
some Members. By making HPSCI a standing committee, intelligence
would be treated like other "normal" functions of government.
Making intelligence a less extraordinary issue might actually have
positive effects, in that by being seen as less unique the very
raison of the IC might not be questioned as much.
The Propriety of Congressional Oversight of Intelligence
Not surprisingly, we believe that the modern oversight system
for intelligence residing in committees specifically devoted to
that task has worked well. The House and Senate committees have
achieved the two main goals of their founders in the 94th and 95th
Congresses, creating a system that is more vigorous and more
rigorous and is more broadly based than the previous system. All
oversight is imperfect and is always limited by the degree to which
the Executive Branch will be forthcoming with information. Given
the highly classified and often compartmented nature of
intelligence information, this may be a more exacting problem for
the intelligence committees. Nonetheless, we continue to believe
that the current system has largely been effective.
We also do not see that any alternative to having a distinct
committee oversee intelligence is preferable. Each oversight
committee finds itself with a full agenda. Returning oversight to
the House National Security Committee (HNSC) would act to the
detriment of both those Members charged with intelligence oversight
and the intelligence agencies themselves.
We also understand that there will always be some in the
intelligence agencies who will question, resent and perhaps resist
the idea of Congress having extensive oversight powers. This view
is not unique to intelligence. It is unlikely that there is any
Executive agency or department that does not harbor similar
sentiments at some time. Still, this feeling may run deeper in the
Intelligence Community. Sharing information with "outsiders," even
if they are elected officials, runs counter to the ethos of
intelligence as some understand it. We are also aware of repeated
complaints by intelligence agency heads about the amount of time
they must spend either before Congress or responding to Congress.
Again, this sentiment is not unique, and we are also not convinced
that the burden is any more onerous for intelligence agencies than
for any others.
Effective oversight and an informed Congress are now
considered among the expected norms of our system of government.
We believe that oversight, if carried out seriously and with a
modicum of support from intelligence agencies, not only helps
ensure greater Executive branch effectiveness and propriety, but
can also be a substantial force in rebuilding a sorely needed
consensus to support intelligence agencies, programs and
activities.
A Joint Committee
The issue of a joint congressional committee to oversee
intelligence has been proposed in virtually every Congress since
1976. The main arguments in favor of a joint committee are:
It would restrict the number of Members and staff
(currently 33 Members and 50 staff in the House and
Senate Committees) with access to highly classified
information, thus limiting the possibility of
unauthorized disclosures.
It would underscore the seriousness with which Congress
views intelligence, by handling it in this manner,
similar to how atomic energy (i.e., nuclear weapons
development and proliferation) issues were overseen from
1946-1977 by the Joint Committee on Atomic Energy.
The main arguments against a joint committee are:
Concern over restricting the number of Members and staff
with access to intelligence information implies that
Congress cannot be trusted with such information.
Although the record of Congress with regard to
safeguarding such information is not perfect, it remains
far better than Executive Branch agencies. Congress must
be vigilant in this regard, but this does not argue that
current number need to be further restricted.
By creating a joint committee, Congress would further
heighten the view that intelligence is an extraordinary,
rather than an accepted, function of government. No
other executive branch agencies or functions are overseen
by a joint committee, thus raising the issue of why
intelligence needs to be overseen in this manner.
The oversight scope of the two current intelligence
committees are not identical. Intelligence programs are
currently divided into three broad groups: NFIP: the
National Foreign Intelligence Program, which includes the
Director of Central Intelligence; CIA; and the national
foreign intelligence or counterintelligence programs of
the Defense Department, DIA, NSA, the Central Imagery
Office, NRO, Army, Navy and the Air Force, the
Departments of State, Treasury and Energy, the FBI and
DEA; JMIP: the Joint Military Intelligence Program,
covering intelligence for defense-wide or theater-level
consumers; and TIARA: Tactical Intelligence and Related
Activities, covering service unique and tactical
intelligence needs. HPSCI oversees all of these
intelligence programs, sharing oversight of TIARA with
the HNSC. The Senate Select Committee on Intelligence
(SSCI) oversees only the NFIP. To create a joint
committee, one House or the other would have to make
substantial changes in the scope of oversight accorded to
this new committee.
It is highly questionable that the establishment of a
joint committee would significantly reduce the number of
Members and staffers that currently have access to
classified information. No committee system will make
Congress "leak proof." Even with a joint committee,
there still would be a substantial number of Members and
staff with access to intelligence information across
several House Committees (Appropriations, National
Security, Judiciary, International Relations), as well as
their Senate counterparts.
The joint committee structure is not suitable to an
authorizing committee as it would complicate
Congressional efforts to conduct our necessary oversight
activities. By shrinking the number of Members familiar
with the Intelligence Community, an inevitable result
will be a diminution in Members' knowledge of the
complexities of intelligence oversight. Additionally, the
current system of two separate intelligence committees
provides a more effective system of Constitutional checks
and balances on Executive Branch activities.
Finding: There is no compelling reason to convert the current
system to a joint committee. As noted, Congress's record
regarding safeguarding highly classified information is not
perfect, but does not warrant this step. Creating a joint
committee would also require either the House or the Senate
to alter its current arrangements for intelligence oversight,
which has not had significant support in the past. Finally,
and most importantly, creating a joint committee for intelligence
would continue to heighten the view that intelligence is
something
other than an accepted function of government, which tends
to increase rather than complement oversight issues and problems.
Select Committee/Appointment and Tenure Limits
The reasons for these two aspects of the current oversight
structure are described above. Although specific provisions for a
standing intelligence committee could be established, changing
HPSCI into a standing committee would most likely (but not
necessarily) affect the process of assignment and lengths of
service.
The main arguments in favor of the current select committee
arrangement relating to assignment procedures are:
Intelligence activities are inherently different from
other areas of government; secrecy is a paramount
consideration on which depends the lives of agents
attempting to assist the United States. Further,
intelligence gathering deals with highly sensitive
sources and methods of collection and analysis. The
Speaker and Minority Leader already have special
statutory standing to be advised of covert actions;
allowing them to select Members of HPSCI is consistent
with this prerogative and serves to increase the
likelihood that only those with a demonstrated commitment
to preserving the secrecy of classified information will
be placed in oversight of intelligence agencies.
Given the sensitivity of the Committee's work, Members
who are unwilling to maintain the secrecy of classified
information, despite the secrecy oaths required by House
rules, should be removable without the necessity of
contentious caucus votes. Maintaining the select
committee status allows the Speaker to act with dispatch
to remove Members who do not maintain the secrecy of
classified materials. This approach underscores the view
that intelligence must be handled in an extraordinary
manner.
The main arguments in favor of the current select committee
arrangement relating to the length of member service are:
Limiting service on HPSCI, in accordance with the current
rule, to four terms (five for the chairman and ranking
member) reduces the likelihood that Members will become
"clients" of intelligence agencies, less rigorous in
their oversight, or that they will be able unfairly to
direct intelligence spending to their home districts. It
also increases the likelihood that Members will reflect
the diversity of public opinion regarding intelligence
issues.
Inasmuch as information available to HPSCI cannot be made
available to all Members, rotating service will permit a
larger percentage of Members to have some understanding
of intelligence issues. For example, there are
currently some 20 Members of the House who have
previously served on the HPSCI, including three former
chairmen. Such experience contributes to better informed
decisions on intelligence budgets as well as on national
security questions that require an appreciation for the
limits of available intelligence information.
Limiting length of service is consistent in spirit with
widespread popular support for "citizen legislators" and
with actions taken in the 104th Congress to limit the
tenures of committee and subcommittee chairmen as opposed
to the previous reliance on seniority.
There are three primary attributes that most observers would
acknowledge as differentiating select and standing committees: (1)
Speaker appointments vs. caucus/conference appointments; (2)
limited vs. permanent tenure; and (3) study and review authority
vs. permanent jurisdiction. The main arguments supporting the
establishment of a standing committee relating to assignment
procedures are as follows:
Intelligence is a normal function of government and is
integral to the conduct of foreign policy and military
operations. Creation of a standing intelligence
committee would recognize this reality and demonstrate to
the public the determination of Congress to provide
appropriate oversight of sizable Federal agencies.
HPSCI deals with policy questions not essentially
different from other committees and should, like them,
reflect the spectrum of views held by Members.
Noting the unique scope and responsibilities involved in
intelligence oversight, the Speaker should retain a
central role in appointing Members to the new standing
intelligence committee, as is the case under the select
committee arrangement (see Rule X, clause 6, paragraph
(f)). The Speaker should also retain the power he
currently has to remove Members. Members of the standing
intelligence committee should not, however, be removable
by a Speaker who may be pursuing a political agenda.
While these conditions would be unique among the House's
standing committees, it may be appropriate for the
committee's leadership to seek a waiver of the
requirement that membership be appointed by the House
from nominations made by party caucuses.
As is the case with the Budget Committee, there could be
a continuing requirement that some Members on the
standing intelligence committee also serve on other
specified committees with jurisdictions related to
intelligence (e.g., National Security, International
Relations, or Judiciary). A new standing intelligence
committee would have to grapple with the issue of
"crossover" Members from the National Security,
International Relations, Judiciary and Appropriations
Committees. These Committees were guaranteed seats on
HPSCI as part of their loss of some oversight
responsibilities.
In standing committees, other than the Budget Committee,
there are no limitations on length of service and
seniority is usually the basis for appointment as
chairman and ranking minority member. Effective with the
104th Congress, committee and subcommittee chairmen are
limited to no more than three consecutive terms of
service as committee leaders. Again noting the unique
scope and responsibilities involved in intelligence
oversight, it may be prudent for the Committee's
leadership to seek a waiver of this tenure requirement.
If HPSCI became a regular standing committee, then
membership on it would be counted against the number of
committee and subcommittees on which a Member could
serve. This could be a difficult decision given the
minimal amount of constituent interest likely to be found
in intelligence matters. Such a change would also mean
that members of "exclusive" committees, such as
Appropriations, could no longer serve on the standing
intelligence committee -- which could be a major loss in
terms of easing the authorization/appropriations process.
In addition, the overlap of Members from the "exclusive"
committees ensures that intelligence concerns and needs
receive sufficient attention from the National Security,
International Relations, Judiciary, and Appropriations
Committees.
Finally, there is the issue of HPSCI Members not getting
too comfortable or familiar with the Intelligence
Community. This view is a direct outgrowth of the
congressional investigations of the mid-1970s, which
concluded that the former intelligence overseers (in the
Senate Armed Services Committee and House Armed Services
Committee) had become lax, in part by virtue of being too
"cozy" with the Intelligence Community. Interestingly,
this is not seen as a being a problem vis-a-vis HNSC or
the Senate Armed Services Committee (SASC) and the
military, nor between Judiciary and the FBI.
The main arguments in favor of a standing committee
arrangement relating to the length of member service are:
Tenure limits under the current select committee process
make it less likely that Members will become overly
familiar with intelligence agencies, thus possibly
diminishing the rigor of oversight.
The current tenure limits have also been responsible to
some degree for the rapid change in HPSCI chairmen since
the initial tenure of Chairman Boland. Since he stepped
down in 1985, there have been six chairmen. This has
obvious costs in terms of continuity and, in effect,
makes the staff much more responsible for that important
and unseen facet of committee life. Some observers have
argued that the rapid rotation of HPSCI chairmen makes
consistent oversight more difficult.
Limiting service on the Committee to four terms (or five
for the chairman and ranking member) does not allow HPSCI
to benefit adequately from Members' experience in the
arcane world of intelligence, especially the complicated
relationships among the agencies, the role of the DCI,
and complex and separate budgeting procedures for
national and tactical programs. Members acquire
experience in intelligence behind closed doors at the
expense of other duties and this experience should be
fully utilized in overseeing intelligence activities. A
significant portion of a six or eight year term on the
Committee must be spent mastering intelligence, with less
time left to use that expertise. This, in turn, makes
Members of HPSCI much more dependent on the staff, who
provide the greatest available base of institutional
knowledge and continuity.
Removal of the tenure limits would also allow the
Committee to have a membership that is more consistently
conversant with intelligence issues. This has not been
an issue in the 104th Congress. However, in the 103rd
Congress, 11 of 19 Members were new to HPSCI. As
previously noted, this might also lead to greater
stability in the chairmanship, assuming some continuity
by one party.
Even though HPSCI is a relatively new committee, existing
term limits have already been overridden on several
occasions to permit appointment of experienced Members to
additional service on the Committee. The practice of
Members leaving the Committee and subsequently returning
in order to stay within restrictions has been criticized
by some as contrary to the spirit of the House rules,
although it has the benefit of providing Members who are
enthusiastic and knowledgeable.
More important changes would likely come in the
Committee's membership. Assuming that the tenure
limitations were abandoned, service on a standing
intelligence committee might become more attractive.
Currently, service on HPSCI has more overt drawbacks
than attractions: it likely offers no help vis-a-vis the
interests of the Members' districts; it detracts time and
attention from issues of direct interest to constituents;
and there is little Members can say about what they do on
HPSCI. None of these would be likely to change.
However, if service on the Committee offered a more
reasonable prospect of a subcommittee chairmanship or
Committee chairmanship over time, then this would be a
new and major attraction.
Finding: Although the reasons for which HPSCI was made a
select committee with tenure limits may have been valid in
1977,
these may no longer be compelling or valid. There are equally
compelling arguments in terms of the general effect of these
arrangements on oversight to warrant reconsidering them and to
proceed with the establishment of a standing intelligence
committee.
In doing so, significant efforts should be made to secure the
presence of "crossover" Members from the National Security,
International Relations, Judiciary and Appropriations Committees
within the standing committee's membership.
Unauthorized Disclosure: Members and Staff
The ability to safeguard highly classified information with
which it has been entrusted is an issue for several committees, not
just HPSCI. As noted, no committee can boast a perfect record in
this regard, although the record of any congressional committee is
far superior to the Executive Branch national security agencies.
This does not excuse leaks from Congress, but it should serve to
put in perspective the false complaints too often heard from
Executive Branch officials about their inability to trust Congress.
There are two views on the responsibility imposed on Congress
by the receipt of classified information. There is general
agreement that access to such information is necessary for Congress
to carry out effective oversight. Some argue that Congress is
responsible for engendering some degree of trust in how it handles
this information so that Executive agencies will be forthcoming.
Others reject this view, arguing that it is up to Executive
agencies to win the trust of Congress and that these agencies have
no choice but to provide Congress with the information it requires.
With the advent of the 104th Congress, Members of HPSCI now
take two oaths regarding the safeguarding of information, one as
Members of the House and one as Members of the Committee. Some
argued that there was some ambiguity in these oaths; we believe
that the letter and the ruling issued by the Committee on Standards
of Official Conduct on July 12, 1995 offered important
clarifications. That Committee noted first that HPSCI's Classified
Information Oath embraces "any classified information provided to
a Member by any person during the Member's term in office."
Second, the Committee on Standards of Official Conduct imposed upon
Members an affirmative duty to inquire whether sensitive
information in that Member's possession is indeed classified before
disclosing it to the public.
HPSCI staff undergo background investigations and are subject
to the Rules of the House (see Rule XLIII, clause 13) regarding
unauthorized disclosure of information. Some, primarily from the
Executive Branch, have argued that at least staff, and perhaps
Members, should be subject to the same security requirements as
Executive Branch officials, particularly, a requirement to submit
to comprehensive polygraph examinations on a regular basis. These
remain controversial tools within the Executive Branch; there is no
one standard for polygraphs nor is there a uniform policy among all
Executive Branch agencies.
Finding: Unauthorized disclosures of classified information
by HPSCI Members or staff should result in swift and sure
penalties against any individual who is conclusively determined
to be the source of such disclosures. The rules promulgated by
the Committee on Standards of Official Conduct on July 12, 1995
should be strictly enforced by HPSCI.
Jurisdiction
Select committees usually do not have exclusive jurisdiction
over an area of government. Standing committees usually do have
exclusive jurisdiction although there are considerable areas of
overlap among standing committees. Select committees usually do
not have the legislative authority to report legislation to the
floor. HPSCI already has authority to report legislation and this
would presumably not be altered if it became a standing committee.
One of the more difficult aspects of intelligence oversight is
the fact that budget authorization for and some degree of general
oversight of intelligence is divided between committees. This
shared jurisdiction between HPSCI and HNSC derives from two
factors.
First, HNSC (then called Armed Services) had been the
committee charged with intelligence oversight prior to 1977. The
decision to continue some shared jurisdiction, at least over the
TIARA portion of intelligence, allowed HNSC to preserve some of its
jurisdiction. Second, the decision reflected the view that, given
the importance of intelligence to military operations and the fact
that the classified portion of the intelligence budget is lodged
within the larger defense budget, this sharing was also
appropriate.
Nothing has happened to undercut these rationales, but it is
important also to look at the effects of this shared oversight on
intelligence. There are two major problems -- the effect on the
creation of the overall intelligence budget and the extraneous
pressures that are brought to bear on the intelligence budget.
HPSCI is charged with authorizing a global intelligence
architecture, i.e., the entire range of intelligence programs from
TIARA up through the national programs. This architecture is
supposed to be coherent and mutually supportive. This becomes
difficult, from the standpoint of HPSCI, when a significant portion
of this budget is, in effect, authorized twice and not always at
the same levels. Replicating the Senate intelligence oversight
system, wherein SSCI has no oversight functions regarding TIARA,
would be one solution, but it would undercut the goal of creating
a global intelligence architecture. The other solution would be to
cede exclusive oversight to HPSCI of those systems designed to
gather intelligence as part of this larger architecture, reserving
to HNSC those parts of TIARA that are exclusively related to
military intelligence needs but are not part of this larger
architecture.
The second issue derives from the fact that the intelligence
budget remains classified and is "hidden" within the larger defense
budget for both authorization and appropriation. HNSC divides the
budget into functional categories: procurement, research and
development, etc. None of these is a "logical" place to house the
intelligence budget. In actuality, the defense and intelligence
authorization processes move along parallel but unrelated tracks.
When the intelligence budget is completed, it is then hidden within
HNSC Subcommittee budgets. As these National Security functions
then move through the congressional budget process they inevitably
come under pressure for a variety of reasons. If, for example, the
dominant view becomes that the research and development budget is
too high -- and intelligence is hidden within that budget function
-- then intelligence must take its "fair share" of reductions for
reasons entirely extraneous to the merits of the intelligence
programs. Moreover, as the entire intelligence budget is hidden in
this manner, all programs are liable to such cuts, not just TIARA.
Making HPSCI a standing committee would not in and of itself
extend its exclusive jurisdiction over intelligence matters, and
specifically, the Central Intelligence Agency and the Director of
Central Intelligence. However, HNSC would retain oversight over
the Department of Defense (DoD), which conducts both national and
tactical intelligence operations. The State Department, including
the Bureau of Intelligence and Research, would continue to be
overseen by the House International Relations Committee, and there
would be additional overlap in other areas. HPSCI also has
concurrent jurisdiction in specified areas with the Judiciary
Committee and the Committee on Space and Science, and Technology.
With the reduced structure and personnel levels in DoD,
emphasis on equipping the military with the highest-technology
weapons and support systems, the emphasis on "support to the
warfighter" and "support to military operations," that has
permeated the defense and intelligence thought process, and the
overall drive to achieve a balanced budget, the accepted practice
of competing weapons and intelligence programs will not only likely
continue, but could well grow. Those who argue that this process is
justified, often point out that the majority of expenditures within
the intelligence budget are within defense and that the reliance of
newer systems on intelligence will properly balance out the
trade-offs.
Were we structuring intelligence to operate effectively to
support only tactical operations, these arguments might be more
compelling. But, it is increasingly clear that emphasis on
strategic or baseline intelligence -- intelligence regarding a
broader picture, not intelligence on strategic weapons systems --
is becoming more important to the policy maker and to the military
commander, as it will allow us to avoid confrontations, plan
operations, and respond to the unexpected issues that are
increasingly part of our foreign policy, in a manner that is less
reactive. If successful, such intelligence planning and operations
can reduce the risk to U.S. military forces.
Without adequate safeguards in the appropriations process,
however, intelligence programs will continue to be subjected to
those who have strong constituency interests in national security
and the defense industry. The FY96 intelligence budget is a
relevant case in point. For the first time in several years, HPSCI
passed an intelligence budget that represented an increase in
spending. The budget had bipartisan support and reflected the
Committee's approach of beginning the process of planning for the
future. Yet, during the appropriations process, when it was
determined that there were significant overages in specific
intelligence accounts, money was first taken out of intelligence to
pay for specific weapons systems rather than being considered
available to better fund other intelligence programs or operations.
Likewise, intelligence funding is being sacrificed by the Clinton
Administration in order to pay for non-intelligence military
operations in Bosnia. The continued process of raiding the
intelligence budget in order to pay bills within the military tends
to be short-sighted and will serve only to inhibit effective
intelligence operations in the future -- a fact that will
ultimately increase the risk to U.S. forces and national security.
Although many of the budget battles on intelligence programs
are fought within the authorization process and, as identified
elsewhere in IC21 staff studies, steps must be taken to "clean up"
the various budget accounts (especially, JMIP and TIARA) to help
coordination between the authorization committees, the wars are
actually won or lost in the appropriations process. Therefore,
designing safeguards within the House Appropriations Committee
could be central to successful intelligence operations and support
in the 21st century.
Currently, the intelligence budget is reviewed and acted upon
by the National Security Subcommittee of the House Appropriations
Committee, along with most of the rest of the defense budget. Such
a structure allows -- in fact, encourages -- trade-offs to be made
within the entirety of the defense budget, including intelligence.
One option to help protect necessary intelligence equities might be
a separate subcommittee on intelligence. Such a subcommittee would
be responsible for review of the NFIP and JMIP budgets, leaving the
TIARA budget review within the National Security Subcommittee.
This would help protect "national" and "defense-wide" intelligence
assets, while leaving those intelligence assets that are integral
to service operations to be considered with the forces for which
they are a part. (This assumes that there is a restructuring of
the JMIP and TIARA programs as discussed elsewhere in IC21
studies.) The result would be a better protected, more coherent
look at the intelligence budget, with trade-offs being made against
intelligence resources rather than with non-intelligence, defense
programs. The ability to focus trade-offs -- and, thus, planning
-- within intelligence, also provides the ability to better
understand the effects of such trade-offs more in terms of the
synergy of our overall intelligence capabilities.
Finding: The current oversight structure puts intelligence --
as both a government function and as an issue -- at a distinct
disadvantage. Unlike other national security
functions, congressional oversight of intelligence is
neither unified nor discreet. The prime effect of this
arrangement is seen in the degree to which intelligence
programs are subjected to budget cuts largely because
of how they are dealt with (i.e., as part of the
defense authorization and appropriations process),
rather than on their own merits. Therefore, serious
consideration ought to be given to establishing a
separate subcommittee on intelligence within the House
Appropriations Committee and to shift a number of the
current functions of the existing Appropriations
Subcommittee on HNSC to this new subcommittee.
Linkages Between HPSCI and the New Committee on Foreign Intelligence
In separate IC21 studies, it has been proposed to create a
new, high-level Committee on Foreign Intelligence (CFI) to enhance
oversight of the Intelligence Community as well as to better focus
the Community's collection and analytical capabilities. The new
CFI is to be composed of senior Executive Branch policy makers who
would advise the DCI on national intelligence priorities. Noting
the sensitivity and importance of the CFI's role, it may be prudent
to consider whether a regular oversight dialogue should be
established between the CFI and the intelligence committees. A
semi-annual strategic intelligence review meeting between the CFI
and the intelligence committees might improve the flow of
information and dialogue between the Executive and Legislative
Branches on significant intelligence matters.
Finding: Establish a semi-annual strategic intelligence
review meeting between the new Committee on Foreign Intelligence
and the intelligence committees.
Conclusion: Findings and Recommendations
Findings
The current intelligence oversight system arose from a
view that intelligence had to be handled in a manner that
was extraordinary when compared to other functions of
government. Although that view may have been warranted
in the aftermath of the investigations in 1975-76, it is
not warranted any longer. Indeed, by continuing to view
intelligence in this manner, oversight and the work of
the Intelligence Community are likely made more
difficult.
Advocacy for overseen agencies is legitimate and to some
extent necessary. This has not been an accepted stance
for the intelligence committees. We agree with the view
of former DCIs that intelligence is such a restricted
issue that Congress must be more active in building the
necessary political consensus.
The current oversight system has been largely effective,
and clearly has responded to those problems that prompted
the creation of the current committees.
There is no compelling reason to convert the current
system to a joint committee. As noted, Congress's record
regarding safeguarding highly classified information is
not perfect, but does not warrant this step. Creating a
joint committee would also require either the House or
the Senate to alter its current arrangements for
intelligence oversight, which has not had significant
support in the past. Finally, and most importantly,
creating a joint committee for intelligence would
continue to heighten the view that intelligence is
something other than an accepted function of government,
which tends to increase rather than complement oversight
issues and problems.
Although the reasons for which the current committee was
made a select committee with tenure limits may have been
valid in 1977, these may no longer be compelling or
valid. There are equally compelling arguments in terms
of the general effect of these arrangements on oversight
to warrant reconsidering them.
Unauthorized disclosures of classified information by
Members or staff should trigger thorough investigations
relying on strict enforcement of the applicable Federal
statutes and House rules. Any individual who is
conclusively determined to be the source of such
unauthorized disclosures should be subject to the full
range of penalties prescribed by the law. The rules
promulgated by the Committee on Standards of Official
Conduct on July 12, 1995 should be strictly and
consistently enforced by HPSCI.
The current oversight structure puts intelligence -- as
both a government function and as an issue -- at a
distinct disadvantage. Unlike other national security
functions, congressional oversight of intelligence is
neither unified nor clearly delineated. The prime effect
of this arrangement is seen in the degree to which
intelligence programs are subjected to budget cuts
largely because of how they are dealt with (i.e., as part
of the defense authorization and appropriations process),
rather than on their own merits.
Recommendations
It is important that the House act to "normalize" the way
in which it oversees intelligence. By continuing to
handle intelligence as an extraordinary function, the
current oversight system predicates an approach that may
be overly adversarial and may actually make effective
oversight more difficult.
The House should give serious consideration to converting
HPSCI to a standing committee, with no limits on terms of
service for Members. This would help "normalize"
intelligence and greatly improve expertise and continuity
on the Committee.
The House should consider allowing HPSCI to have
exclusive jurisdiction over all aspects of intelligence
that are part of the larger intelligence architecture,
while the HNSC has exclusive jurisdiction over those
aspects of intelligence solely related to military
intelligence needs but that are not part of this larger
architecture. Second, the House should consider creating
a separate appropriations subcommittee exclusively for
intelligence.
The House should seek to better protect Intelligence
Community equities by erecting legislative "firewalls"
between HPSCI and HNSC during the authorization phase;
similarly, efforts should be made to establish mechanisms
for better legislative consultation and coordination with
the House Appropriations Committee during the
appropriations phase.
Establish a semi-annual strategic intelligence review
meeting between the new Committee on Foreign Intelligence
(CFI) and the intelligence committees.
------------------------------
FOOTNOTES
/1/The most-oft cited example of the problem was the quote
from Senator Leverett Saltonstall, a member of the Armed Services
Committee, which was responsible for intelligence oversight.
When asked by Senator Mike Mansfield why there had only been two
committee meetings with the CIA in the past year, Senator
Saltonstall replied: "...it is not a question of reluctance on
the part of the 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, unless I believed it to
be my responsibility to have it because it might involve the
lives of American citizens." Congressional Record, April 9,
1956, p. 5924.
/2/Testimony of Richard Helms and James Schlesinger before
House Permanent Select Committee on Intelligence on May 22, 1995.