Testimony of Ivan Eland, Director of Defense Policy Studies, Cato Institute

Before the Subcommittee on Government Efficiency,

Government Reform Committee, U.S. House of Representatives

July 18, 2001

As important as safeguarding sensitive intelligence information is to the Central Intelligence Agency (CIA), the intelligence community, and the Executive Branch, more paramount concerns exist in a constitutional republic. Reacting to European monarchs who ran foreign and military policy--often disastrously--with few constraints imposed by their subjects, the founders of the American nation enshrined in the U.S. Constitution a vital role for Congress--the arm of the people--in foreign and national security policy. James Madison, writing in The Federalist, No. 51, stated: "A dependence on the people is, no doubt, the primary control of government." But he also noted that experience showed that "auxiliary precautions," that is, checks and balances within the government, were needed to guard against the founders' greatest fear--the risky accumulation of power in one branch of government. In short, Madison wrote: "Ambition must be made to counteract ambition."¹

The checks and balances written into the Constitution--which go to the heart of the U.S. system of republican govemment--ensure that no branch of goveniment can dominate U.S. foreign and defense policy. For example, the Senate must approve treaties with foreign nations and confirm the Secretary of State, other high level State Department officials, and ambassadors. Furthermore, the Constitution says that the Congress has the power to declare war, provide for the common defense, raise armies, maintain a navy and make all laws "necessary and proper" to execute those powers. Thus, the Congress has vital oversight responsibilities for Executive Branch agencies involved in foreign affairs and national security, including the CIA and the intelligence conununity.

Secrecy Versus Accountability

Even in a constitutional republic, some secrecy in foreign affairs and defense is needed; but when secrecy and accountability clash, the presumption should be with accountability. Accountability should be especially preferred in the lower external threat environment of a post-Cold War world.

The constitutional checks and balances at the core of the U.S. Constitution should not be undermined lightly. Unlike most other government entities, the intelligence agencies get only limited scrutiny from the media, the public, conflicting interest groups, and the courts. Furthermore, bureaucracies in national security can abuse the security cloak to avoid doing what Congress wants them to do. U.S. government secrets are not the exclusive property of the Executive Branch; congressional committees are entitled to, and also have a duty to, examine them to ensure that the secretive intelligence community is acting in the interest of the people it is supposed to be defending. Although the intelligence community uses the excuse that Congress is a leaking sieve, the Executive Branch is widely recognized as the origin of most leaks of secrets. For all of those reasons, congressional oversight by more than just the small (compared to the 45 Executive Branch entities involved in intelligence) and too easily co-opted intelligence committees is vital.

In most cases, accountability does not run afoul of secrecy. In fact, according to Loch Johnson, an analyst who spent 13 years interviewing more than 500 intelligence officers, many intelligence officials--including former CIA directors---concluded that recent improvements in accountability have not undermined the effectiveness of intelligence.² Congressional staffs have the same security clearances possessed by Executive Branch personnel, and hearings closed to the public can be used if the information to be discussed is too sensitive for an open airing.

Even when accountability does clash with secrecy, the Congress must ask if the secrecy is warranted. Intelligence agencies develop a "culture" of secrecy that can sometimes be excessive. For example, for a short window of time after the Cold War ended, the amount of the U.S. annual intelligence budget was made public. Eventually, the intelligence bureaucracy reasserted itself and again covered it with a blanket of secrecy. Yet for many years, the actual value of the intelligence budget has been one of the worst kept secrets in Washington.

In recent decades, the trend has been to expand the circle of those responsible for overseeing intelligence activities. Formerly, the monitoring of CIA activities used to be confined to the chairman and ranking minority of the defense committees and one or two senior staff. In the 1970s, after congressional hearings exposing abuses in the intelligence community, the intelligence committees were formed. As the following examination of the House rules governing both the intelligence committee and congressional oversight of Executive Branch agencies will show, the number of committees that monitor intelligence and intelligence-related activities and have access to products from those activities has increased. That expansion of oversight is even more appropriate now that the worldwide communist menace has collapsed.

House Rules on Legislative Oversight

To help guide House committees in performing oversight, the rules of the House delineate "special oversight functions" for various committees. In that part of the rules (3(1)), the Permanent Select Committee on Intelligence "shall review and study on a continuing basis laws, programs, and activities of the intelligence community and shall review and study on an exclusive basis the sources and methods" of agencies of the intelligence community, including the CIA (emphasis added). The phrase "on an exclusive basis" is very telling. Because the exclusive purview of the House intelligence committee is restricted to sources and methods, by implication, other committees can study laws, programs, and activities of the intelligence community.

That interpretation fits well with two other passages in the House rules that specifically govern the Permanent Select Committee on Intelligence. Section 11(b)(3)states:

Nothing in this clause shall be construed as prohibiting or otherwise restricting the authority of any other committee to study and review an intelligence or intelligence-related activity to the extent that such activity directly affects a matter otherwise within the jurisdiction of that committee.

And according to Section 11(b)(4),

Nothing in this clause shall be construed as amending, limiting, or otherwise changing the authority of a standing committee to obtain full and prompt access to the product of the intelligence and intelligence-related activities of a department or agency of the Government relevant to a matter otherwise within the jurisdiction of that committee.

Thus, the House rules clearly state that other committees besides the intelligence committee can investigate intelligence and intelligence-related activities and obtain access to intelligence products, as long as they are related to a matter within the purview of those committees.

Those same House rules give the House Government Reform Committee broad oversight over the operation of Executive Branch agencies. Section 3(e) states:

The Committee on Government Reform shall review and study on a continuing basis the operation of Government activities at all levels with a view to determining their economy and efficiency.

Therefore, the House rules seem to give the Committee on Government Reform the authority to investigate intelligence and intelligence-related activities and obtain the products of such activity when it is reviewing any government activity for economy and efficiency (as long as it does not involve reviewing intelligence sources and methods).

Reinforcing the seemingly plain language of the previously cited passages of the House rules is the implied protection for other committees whose jurisdictions might overlap that of the House intelligence committee. By making the intelligence panel a select committee, instead of a standing committee, the House indicated that the panel did not have exclusive jurisdiction over most matters in intelligence (the Senate also made its intelligence panel a select committee). Furthermore, Section 11(a)(1) of the House rules provides that the intelligence committee will consist of at least one representative from other specified congressional committees. Although those committees are all security-related committees, the intent of the rules seems to be to preserve the right of other committees to examine intelligence and intelligence-related activities and products.

Further illustrating the prerogatives of other House committees is the right to have proposed legislation related to intelligence activities referred to them as long as it falls within their jurisdiction. The annual bill to authorize the funding of intelligence agencies is regularly and sequentially referred to other committees with jurisdiction. When other committees are interested in specific legislative provisions, the intelligence committee often includes them in legislation separate from the intelligence authorization act. In practice, the intelligence committees seek concurrence of other committees before reporting other legislation that could trigger a request for a referral. The other committees have leverage over the intelligence committee because they could hold up--through a request for referral or other delaying tactic--or oppose a bill if the intelligence committee does not get their prior concurrence.

So it has been very clear from the time of creation of the intelligence committees in the late 1970s that they did not have exclusive jurisdiction over intelligence and intelligence-related activities or access to intelligence products. The House rules seem fairly clear on that point. But if any dispute over internal House jurisdictions occurs, it should be between the intelligence committee and another committee, not between the CIA and the other committee. The CIA should allow congressional committees to interpret rules made by their own chamber.

The CIA Appears to Have No Basis for Its Refusal
to Testify Before the Government Reform Committee

The Government Reform Committee's effort to investigate cyber security seems to be well within its jurisdiction under the House rules to review government economy and efficiency. Furthermore, as long as the committee refrains from directly examining the CIA's sources and methods of intelligence (unlikely in an investigation of CIA's cyber security), it seems to have a compelling case under the rules for examining the agency's intelligence activities and products during its investigation. While conducting the investigation, the committee seems to have the implicit authority under the rules to compel the CIA to testify at an oversight hearing. Because the committee does not have control over the CIA's budget (as do the intelligence committees and the appropriations committees' subcommittees on defense), its ability to compel CIA testimony at hearings becomes even more vital for conducting adequate oversight of economy and efficiency.

The CIA's refusal to testify before the Government Reform Committee is made all the more mysterious by its recent testimony before the Joint Economic Committee on a similar subject. On June 21, 2001, Lawrence K. Gershwin, the National Intelligence Officer for Science and Technology from the CIA, gave the testimony, "Cyber Threat Trends and U.S. Network Security," at the Joint Economic Committee's hearing, "Wired World: Cyber Security and the U.S. Economy."³ Granted, that hearing was on the CIA'sassessment of the vulnerability of the nation's computer systems to hostile entry rather than on the vulnerability of CIA's computers to similar penetration, but the House rules treat non-intelligence committees' review of intelligence activities similar to their access to intelligence assessments (see sections 11(b)(3) and 11(b)(4) of the House rules quoted above). In short, other committees are not restricted from reviewing intelligence activities or obtaining intelligence products. To comply with the House rules, other committees' access to information about CIA's eyber security efforts for its own computers should be treated no differently by the agency than access to its assessment of foreign threats to U.S. computer systems.

Can the Intelligence Committees Alone Adequately Monitor the CIA?

After the abuses by the intelligence agencies in the early 1970s, the Congress correctly consolidated the fragmented oversight of those agencies into the Senate and House intelligence committees. But although their staffs are specialists in intelligence activities, the intelligence committees of both houses can sometimes get co-opted by the agencies they oversee or exhibit other self-restraints that can undermine their oversight. Some examples will illustrate the point. The intelligence committees:

• claim the right to hire their staff members over the security objections of the Director of Central Intelligence or the Secretary of Defense, but in practice it rarely occurs;

• are willing to restrict the scope of their requests for classified information or limit the manner in which it is handled;

• have a high turnover among the chairman and members, which limits the accumulation of experience that can compete with the vast institutional memory of the CIA and other agencies (on the other hand, the rotation of personnel may, in some respects, may make the panel less captive to the intelligence community);

• avoid investigating improprieties by individuals unless they are symptomatic of a system-wide problem or part of a bad policy at the agency involved. Even in that instance, the committees shy away from the problem if it is being considered by the agency;⁴

• make too little use of the U.S. General Accounting Office (GAO), the congressional investigative arm, especially for investigations of the CIA. Increased access to the CIA and other intelligence agencies by GAO and greater use of GAO by the committees could augment substantially the committees' ability to adequately monitor the activities of the intelligence community.

The first and second self-restraints by the committees allow the intelligence agencies to shield their activities from congressional inquiry under the guise of security considerations.

The best indicator of how much the Congress fears the cooptation of the intelligence committees by the spy agencies occurs during crises. During those periods, the Congress does not seem to seem to have much confidence in the intelligence committees. During the Iran-Contra affair in the late 1980s, the intelligence committees lost credibility and select committees were created to lead the congressional investigations. When covert action in Angola during the Reagan administration became controversial, the issue migrated from the intelligence committees to other committees and the full chambers of both houses.⁵

Because the intelligence committees can be co-opted by the agencies whose operations they oversee on a day-to-day basis, the constitutional check by Congress on the Executive Branch is enhanced when other more disinterested committees look at the CIA's work. For example, in determining the economy and efficiency of the CIA's activities, the Subcommittee on Government Efficiency of the Government Reform Committee--which looks at the issue government-wide--might better assess the agency's efforts than the intelligence committee, which would have less comparative information from other government entities on which to base its analysis.

Conclusion

The Subcommittee on Government Efficiency of the House Government Reform Committee seems to have clear authority under both the U.S. Constitution and the House rules to conduct oversight of intelligence and intelligence-related activities for economy and efficiency--its areas of jurisdiction--and to gain access to intelligence products. (Under the House rules, the only area where the subcommittee seems to be restricted is in the direct examination of the highly classified sources and methods of intelligence, which is reserved for the intelligence committee. But the subcommittee would be unlikely to need to examine such sources and methods in a review of CIA cyber security.) It is clear that the House (and the Congress as a whole) has never given the intelligence committee(s) sole oversight authority over intelligence activities, especially when other committees have legitimate jurisdiction.

Notes

1. Quoted in Loch K. Johnson, America's Secret Power: The CIA in a Democratic Society (New York: Oxford University Press, 1989), p. 6.

2. Ibid., pp. viii, 8.

3. Testimony by Lawrence K. Gershwin, National Intelligence Officer for Science and Technology, National Intelligence Council, Central Intelligence Agency, at the Joint Economic Committee hearing, "Wired World: Cyber Security and the U.S. Economy," June 21, 2001.

4. Select Committee on Intelligence, U.S. Senate, Legislative Oversight of Intelligence Activities: The U.S. Experience, 103rd Congress, Second Session, Senate Print 103-88, October 1994, p. 18.

5. Frederick M. Kaiser, "Congress and the Intelligence Conununity: Taking the Road Less Traveled," in Roger H. Davidson, ed., The Postreform Congress (New York: St. Martin's Press, 1992), pp. 294, 298.