Accountability and Oversight

Since 1947, the budget for intelligence has been classified by the Executive branch. Whether it should be publicly disclosed has been a topic actively considered for the last 20 years. The Church and Pike Committees, as well as the Rockefeller Commission, all recommended some level of disclosure. Since the end of the Cold War, the issue has been debated almost annually in the Congress.

Repeated often, the arguments for and against disclosure are abundantly clear. Those who favor disclosure contend that the public should be permitted to know the amount of federal spending devoted to the intelligence function and that this amount can be disclosed without providing useful information to potential U.S. adversaries. They point out that the budget for intelligence agencies has been disclosed repeatedly in the press-and once inadvertently by a congressional committee-without apparent harm.

Those who oppose disclosure contend that the overall number would be meaningless to the American public, and that, over time, trends could be discerned by potential adversaries that might allow them to draw conclusions about particular programs of activities. They worry that if the overall number is disclosed, there would be demands for further "peeling of the onion."

After weighing the arguments, the Commission concludes that the President should disclose to the public the overall figure for the intelligence budget. The Commission believes this can be done in manner that does not raise a significant security concern. While disclosure would necessarily convey limited information, it would let the American public know what is being spent on intelligence as a proportion of federal spending. This in itself is a worthwhile purpose, and may, to some degree, help restore the confidence of the American people in the intelligence function. A number of foreign governments, including the British and Australian, have disclosed their intelligence budgets to the public without adverse effect. The Commission believes it can be done here as well.

14-2. The Commission recommends that at the beginning of each congressional budget cycle, the President or a designee disclose the total amount of money appropriated for intelligence activities for the current fiscal year (to include NFIP, JMIP, and TIARA) and the total amount being requested for the next fiscal year. Such disclosures could either be made as part of the President's annual budget submission or, separately, in unclassified letters to the congressional intelligence committees. No further disclosures should be authorized.

Oversight of Intelligence by the Congress

The oversight committees of the Congress-the Select Committee on Intelligence in the Senate and the Permanent Select Committee on Intelligence in the House of Representatives-provide the only routine oversight of intelligence activities outside the Executive branch. As such, they bring a perspective to the oversight function that is not replicated by oversight bodies within the Executive branch. Inasmuch as both committees also authorize appropriations for intelligence activities and have subpoena power, they retain the practical leverage needed to make oversight effective.

In addition, the law specifically obligates the President to ensure that intelligence agencies keep the committees "fully and currently informed" of their activities, including all "significant anticipated intelligence activities" and all "significant intelligence failures," and make available any information requested by either of the two committees. The law does not define the categories of information to be reported, leaving intelligence agencies to ignore or misinterpret them at their own peril (which occasionally happens). The President also is obligated by law to notify the intelligence committees (or, in special cases, the congressional leadership) of all covert action "findings" once they have been approved by the President. The committees have no authority to disapprove these findings, but can prohibit the expenditure of funds for such activities in subsequent years. As a practical matter, therefore, their views on covert action programs are given considerable weight.

By most accounts, the committees provide rigorous and intensive oversight. They have grown increasingly knowledgeable and have remained appropriately skeptical. No other country comes close to providing the same degree of legislative oversight of their intelligence services.

An enormous amount of detailed information-some extraordinarily sensitive-is provided to the legislative overseers by the Intelligence Community. Hearings are held frequently; meetings with staff occur daily. Disputes over access have arisen from time to time and occasionally the oversight process has broken down (e.g. the Iran-contra affair), but, by and large, the system has worked well. Over time, the agencies have come to appreciate what the committees expect, and the committees have come to appreciate the security concerns of the agencies and been willing to accommodate them. Both committees have established secure environments for the discussion and storage of classified information and have maintained good track records in terms of protecting the information shared with them.

Some interviewed by the Commission believed that security would be further improved if the two oversight committees were combined into a single joint committee, thus reducing the number of members and staff with access to sensitive information. The Commission considered this idea but is not prepared to recommend it. Creating a single joint committee would not substantially reduce the number in Congress needing access to intelligence, but would reduce the degree of oversight. It would also eliminate the checks and balances inherent in having committees in each body separately consider intelligence funding. A joint committee would no longer handle nominations received by the Senate. Having separate committees has worked. The case for altering this arrangement has not been made.

The Commission did identify, however, one area where improvements might be made and another where the Commission has no recommendation but offers a word of caution. Members on both committees are appointed for fixed terms by their respective congressional leaders and currently cannot serve more than eight consecutive years on either committee. The original rationale for the policy was that if Members were assigned more or less permanently, they might be coopted by the Intelligence Community and oversight would suffer. Reformers also believed that allowing more Members of Congress to serve on the committees through a system of rotating assignments would increase the understanding of the intelligence mission in both Houses.

The reality has been, however, that because of the fixed tenure rule, Members often have to rotate off the committees at the very time they have begun to master the complex subject matter. Indeed, knowing their tenure is limited, some put their time in on other committees. As a consequence, in the view of many Commission witnesses, an unfortunate loss of expertise and continuity occurs, weakening the effectiveness of the committees.

14-3. The Commission recommends that the members of the House and Senate intelligence committees not be limited by fixed term or tenure. Appointments should be made in the same manner as appointments to other committees, with new members being assigned to fill spaces resulting form normal attrition, except that new members should continue to be appointed by the leadership of the House and Senate, rather than by their respective party structures. The respective Chairmen and Ranking Minority Members could be appointed for fixed terms to provide for rotation of the leadership responsibilities. If the House and Senate choose instead to maintain the current policy in order to allow more Members to serve, the Commission suggests that the maximum period of service on the committees be extended to a least ten years.

Despite a relationship between the oversight committees and the intelligence agencies that appears to work well in practice, many informed witnesses told the Commission that oversight by the Congress has become so burdensome and intrusive that it is having a negative effect on intelligence operations. Some suggested that the possibility that intelligence officers or their supervisors might one day be required to appear before the committees and have their judgments (perhaps made years before) questioned in the light of hindsight stifles risk-taking and encourages timidity. Intelligence officers also are seen as becoming increasingly leery of putting things on paper, thus creating problems for agency managers and reducing the ability of overseers to get to the heart of a problem at a later juncture. Finally, some argued that the public reports and statements of the oversight committees almost always are negative, thus distorting the public's perception of intelligence, creating an unfavorable impression among potential sources of cooperation, and undermining the morale of intelligence personnel.

The Commission had no means of reliably evaluating these concerns. Undoubtedly, oversight has its costs. Yet, congressional oversight in the intelligence area is not qualitatively different from congressional oversight in other domains. No government official likes to have his judgment questioned or his actions criticized. It is the nature of oversight that congressional reports are generally negative where Executive agencies are concerned.

That said, the Commission believes that intelligence oversight requires careful handling on the part of the Congress. Intelligence is an area of government activity where risk-taking and innovative thinking, within the confines of applicable law and policy, should be encouraged. It is an area that relies heavily on the professional judgment and candor of its employees. It also is an area highly dependent upon the cooperation of other governments and individuals. What the oversight committees do, especially in public, does have an effect beyond the circumstances of a particular inquiry or investigation. While the committees are naturally eager to demonstrate that their oversight is effective, they should take into account the possible negative consequences of their actions for the agencies they oversee. The Commission believes the committees ought to ensure a balanced picture is presented to the public, giving credit where deserved and defending intelligence agencies where their performance has been inaccurately portrayed or their integrity unfairly maligned. Intelligence agencies cannot credibly defend themselves.

The Commission makes no specific recommendation here, but emphasizes the need for the oversight committees to balance the various interests at stake in carrying out their crucial responsibilities.

Oversight Arrangements within the Executive Branch

Each element of the Intelligence Community falls within the purview of an Inspector General (IG), who typically carries out inspections, investigations, and audits of the intelligence activities under his or her purview. Large intelligence elements have their own IG; smaller ones come under the IG of their parent organization. Several intelligence components of the Department of Defense have their own IG and also are within the purview of the DoD IG. CIA is the only intelligence agency with an internal IG who is presidentially-appointed and Senate-confirmed and who is required by law to make reports directly to the oversight committees. The IGs who are internal to other intelligence components are appointed by the head of the component concerned.

The Department of Defense also has an Assistant to the Secretary of Defense for Intelligence Oversight, who conducts investigations and monitors the activities of IGs internal to DoD intelligence components, principally to ascertain compliance with the rules governing the collection and dissemination of information on Americans.

Within the Executive Office of the President, there is an Intelligence Oversight Board (IOB) with jurisdiction extending across the entire Intelligence Community. Currently, the IOB is constituted as a standing committee of the President's Foreign Intelligence Advisory Board (PFIAB). Four members of the PFIAB serve in a dual capacity as members of the IOB. The IOB reviews the activities of, and receives regular reports from, the agency IGs and other oversight offices. Periodically, it reviews covert action programs and conducts inquiries regarding possible violations of law or Presidential directives at the direction of the President, upon the request of the DCI, or upon its own motion. It reports to the President and refers apparent violations of law to the Attorney General.

The Commission did not delve deeply into the work of these oversight mechanisms. Nonetheless, it is clear at the agency level that wide disparities exist in terms of the resources devoted to the IG function and the impact the IG has on agency operations. Some recommended that each intelligence agency should have an independent statutory IG similar to the CIA. Others suggested, at a minimum, that intelligence agencies other than the CIA ought to bring in qualified persons from outside the agency to serve as IG, rather than relying on career employees to perform this role.

14-4. The Commission recommends that the Intelligence Oversight Board, which is already charged with monitoring the performance of IGs, conduct a review of the existing IG framework with the objective of ensuring the effectiveness of this important instrument of oversight. The Commission also recommends that the Intelligence Oversight Board be constituted with a greater degree of independence from the PFIAB because its functions are qualitatively different.

Footnotes