At a Crossroads, Part I: How Congress Can Find Its Way Back to Effective Defense Oversight
Last year, four American soldiers were killed in Niger while performing a joint patrol with host nation military forces. Key members of Congress, including members of the defense committees overseeing U.S. military operations, later acknowledged that they had no idea U.S. troops were present in Niger, though staff and at least some members were reportedly briefed on the effort. Senate Armed Services Committee member Lindsey Graham said, “We don’t know exactly where we’re at in the world, militarily, and what we’re doing.” According to the White House, the U.S. military currently has troops carrying out combat operations in at least 16 countries, yet Congress has neither specifically authorized nor closely scrutinized some of these operations.
The Niger case shows how challenging oversight can be for a stretched Congress and how any U.S. military action, no matter how obscure or seemingly routine, is tremendously risky and requires constant vigilance. Indeed, the case is indicative of a broader problem: Legislative branch oversight of America’s national security enterprise is under more stress than ever before. The atrophy of Congress’ oversight powers is often — and rightly — blamed on the usual suspects: intensifying partisanship, growing demands on members’ time, and the intensity of the instantaneous, frenetic news cycle. But there’s an equally responsible — and far more fixable — diagnosis: Congress has failed to invest in and prioritize good oversight, and it has not kept pace with its ever-evolving oversight challenges.
Over three articles, we will draw on our experience in senior positions in both Congress and the executive branch, as well as conversations with several current and former congressional staff, to examine challenges faced by congressional committees working in defense, foreign policy, and intelligence. Although national security oversight does occur at the individual member level and in other committees, Congress’ committees of jurisdiction command the dominant role in overseeing the national security enterprise, and thus will be our focus. We argue that what is needed is not simply more oversight, but rather new, more effective approaches to emerging oversight challenges.
Analyses of congressional oversight commonly target enormous external pressures, such as the deleterious impacts of politics and media. Meanwhile, internal issues — for which solutions are available and, given sufficient political will, achievable — are ignored. Our hope is to focus attention on, and identify feasible solutions to, these internal concerns, even within the context of hyper-partisanship and media obsession that currently envelops Congress.
What Is Oversight and Why Does It Matter?
Put simply, oversight is the process whereby Congress acts as a watchdog over the money it authorizes and appropriates to the government, holding it accountable for its expenditures. Good oversight includes providing policy guidance to executive branch agencies as they form their plans and budgets, as well as maintaining robust, sustained scrutiny of their implementation to ensure consistency with law, budgets, policy priorities, and management best practices. As President Woodrow Wilson once wrote:
It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees….Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct.
The consequences of the current atrophy of oversight powers can be felt across the spectrum of issues that come before Congress. Yet it is in the national security enterprise where these consequences have the highest stakes. Abuses of executive power, misguided policies, and sloppy implementation — left uncorrected by rigorous oversight — can risk military casualties, nuclear accidents, or unnecessary military engagements, to name a few. For example, analysts have pointed to insufficient oversight as a key contributing factor to the costly war in Vietnam, the Bush-era torture program, and the intelligence community’s stovepiping prior to the 9/11 terrorist attacks. Where margins for error are small, strong oversight becomes mission critical.
Congress isn’t failing across the board. We have seen what good congressional oversight looks like: halting executive abuses, re-vectoring failed national security policies, and forcing public debate on issues like torture, government surveillance, and the targeted killing of terrorists. But overall, the trend lines point in the wrong direction.
The realm of national security may be one of the last safe harbors for bipartisan cooperation, and even that domain is being threatened by creeping partisanship disguised as oversight — for example, congressional investigations of terrorist attacks in Benghazi, Libya, or the recent memo produced by House Permanent Select Committee on Intelligence Republicans on the Russia investigation. Further, Congress’ inability to exercise its power of the purse, including a chronic inability to fund the military in a predictable manner, has reached a point where some newer members of Congress have never taken part in the negotiations of a traditional budget cycle.
In this first article in the series, we examine oversight of the Department of Defense. Future articles will examine Congress’ oversight of foreign policy and intelligence.
Robust oversight of America’s defense is a gargantuan task. Congressional overseers must maintain a focus on today’s security challenges while preparing for tomorrow’s contingencies. They must operationalize these ideas into law and meaningfully monitor implementation of those laws, even while enabling the Pentagon to inject its unique expertise into the policy-making process. (Oversight should not be a one-way conversation, but a sustained dialogue. Congressional micromanagement or unidirectional efforts, such as cumbersome reporting requirements for the Pentagon, can create meaningless paperwork or staffing burdens without producing noticeable impact.)
Congress’ primary defense oversight committees include the authorizers — the House Armed Services Committee and the Senate Armed Services Committee — and the appropriators — the House and Senate Appropriations Committees Subcommittees on Defense. Authorizers have primary responsibility for providing policy and strategic direction to the Pentagon, while appropriators take the lead on setting budgets (albeit, with input from the authorizers).
Defense oversight is in better shape than some other areas of national security that we’ll consider in future articles. Annual authorization bills for the Defense Department, which have been passed for 56 consecutive years, allow for regular looks at core oversight questions. Still, when one pulls back the curtains, challenges abound.
Balance Troops to Tasks
Let’s start with how the defense committees are resourced. To its great detriment, Congress has squeezed its committees of the budgets they need to conduct effective oversight — the Congressional Research Service has found that that funding for committees has increased less than 1 percent per year in real dollars for the last 20 years. Yet the speed at which world events occur and the technological complexity of key defense programs have increased in ways never imagined two decades ago.
Committee staff positions in both the House and Senate — a key measure of oversight capacity — have fallen by over 25 percent since the 1970s. The two defense authorizing committees are among the largest congressional committees in terms of members, but their staffs total only around 100 people combined, including administrative personnel. Yet these 100 people are charged with overseeing nearly three million Defense Department personnel along with eight agencies of the intelligence community.
This imbalance requires individual staff to take on gargantuan portfolios that can be challenging to carefully and consistently scrutinize. For example, a single Senate Armed Services Committee majority staffer is currently responsible for the majority staff’s oversight of U.S. Central Command, U.S. Southern Command, counter-narcotics, domestic preparedness, and foreign policy in the Middle East and South and Central America.
Defense appropriation subcommittees, for their part, have fewer than a dozen staff each. While appropriations committees have traditionally had far fewer staff than their authorizing counterparts, appropriations staff still face challenges in effectively monitoring spending across the defense enterprise. Insufficient capacity can inhibit the professional staffs from conducting across-the-board oversight. Instead, they are often forced to pick a few programs or operations upon which to direct their intensive focus. This is fundamentally a spot-checking, triaged approach, not sustained oversight.
For example, when one of us, then serving at the Pentagon, briefed senior appropriations staff on a budget issue involving tens of millions of dollars annually and funding hundreds of engagements between U.S. military services and foreign counterparts, it came as a surprise to learn that the appropriators had no idea where the money in question could be found in the budget. This was not so much the result of poor staff work, but rather of portfolios so expansive that staff are often unable to dig deeply into relatively smaller programs.
Several current and former staff members with whom we spoke also lamented the committees’ inability to focus on core bureaucratic and programmatic defense matters. In particular, they cited a lack of capacity to conduct sustained, effective oversight of major system development and procurement programs. Committees may only have the staff resources to tackle a handful of underperforming major programs at a time, leaving others subject to sporadic, less in-depth analytical oversight. Staff attention is often directed toward the most high-profile acquisitions — such as the DDG-1000 Destroyer or the Army Ground Combat System — often leaving lower-visibility programs neglected.
In addition to workload challenges, members and staff are rarely able to sustain such focus over time. Given competing demands on overtaxed staff, programmatic “deep dives” frequently must give way to more pressing priorities or receive episodic attention in one or two bills. According to the Defense Department, the average defense acquisition program takes roughly seven years to move from “Milestone B” (initial engineering and manufacturing development) to Initial Operating Capability. Complex programs may take far longer. Yet the average tenure of a professional staff member on the Senate Armed Services Committee is only about 3.5 years. For those being overseen in the Pentagon, such turnover can lead to a sense of uneven micromanagement, and often fosters burdensome reporting requirements as staff seek to keep pace.
The inability to sustain focused oversight across the department’s acquisition portfolio ensures missed opportunities to correct cost overruns and redirect programs that show early signs of trouble. One recent study placed the aggregate price of Pentagon cost overruns at $484 billion — enough to fund annual operations of every federal government department aside from the Defense Department and the Department of Veterans Affairs. While the Pentagon has done an admirable job of increasing internal controls on acquisition efforts in recent years, there is clearly room for improvement in congressional oversight.
Congress must begin to resource its defense committees sufficiently — or at least provide committees more staffing flexibility to be able to ramp up as needed. This can be done for relatively little money. To put it in perspective, congressional negotiators just reached a deal to increase the Defense Department’s 2018 budget by $80 billion; just 1 percent of this increase would fund the operations of both the House and Senate Armed Services Committees for nearly three years. In concert with this agreement to lift budgetary caps, Congress should ensure that some additional funds are devoted to bolstering staff across its own committees and creating more flexibility to recruit, compensate, and retain staff according to oversight requirements. In addition, defense committees should examine how to get more out of fellowship programs that bring executive branch and non-governmental experts to Congress for short-duration appointments. Such programs could be used to substantially enhance committees’ technical expertise, but rarely are fully utilized.
Committees also need access to high-quality, nonpartisan technical expertise to support their examination of increasingly complex acquisitions. Congress once maintained an independent technical support arm exactly for such purposes; It would do well to reestablish this critical function. If planned carefully, the revived technical support arm could also help mitigate staff size, gaps in subject-matter expertise, and retention challenges.
Open the Doors
The defense committees also continue to fall short on another key oversight element: transparency. Overseers must weigh the legitimately sensitive and classified information that is part of their business with the democratic imperative to keep citizens informed of, and consenting to, defense policy decisions. Transparency is essential to avoiding the “embarrassing, crippling ignorance” of which Wilson warned. Yet for many years, a number of committee proceedings have been biased towards secrecy.
The Senate Armed Services Committee, for example, continues to keep its marathon mark-up hearing closed to the public, ostensibly due to concerns about classification, even while its House counterpart and the defense appropriation committee hold open mark-ups. With public concerns about the lack of government transparency heightened and the public’s confidence in Congress at all-time lows, opening the Senate markup would be a small but important signal on the integrity of the process. As Sen. Claire McCaskill, who has moved for years to open these mark-ups to the public, has argued, “The public deserves to be able to witness, understand and scrutinize the positions being advocated and the decisions being made by their elected leaders regarding the over half a trillion dollar defense budget.”
Far more important — and far more opaque — than mark-ups, however, is the conference process, where House and Senate versions of the defense authorization bill are reconciled into a final conference report. Virtually the entire conference agreement is negotiated privately between staffs of the committee leaders in each chamber. Committee members — including the actual conferees, whose role is almost entirely symbolic — often are left ignorant of how key issues have been settled until the last minute, when the completed conference agreement is delivered to them for signature. The executive branch, with a major stake in the outcomes, is largely a bystander as well.
During conference, amendments passed on the House and Senate floor can be jettisoned without explanation. For example, in 2013, Sen. Dianne Feinstein gained support from two-thirds of the Senate for an amendment to the bill clarifying that American citizens could not be subject to indefinite military detention. Yet the amendment was “mysteriously stripped” from the final bill by the conference committee despite its bipartisan support, with neither a conference committee process nor a vote. In other cases, entirely new legislative concepts are invented from whole cloth and provisions that may be odious to certain committee members are jammed into the final package, without members’ input or knowledge.
This obscurity is deeply problematic for democratic governance. It shields individual members from accountability for provisions in the final agreement to which they grant their consent. Moreover, the process has become so inscrutable that members of the public — and even the executive branch — have few avenues to impact outcomes.
A first step to make conference negotiations more transparent would be to allow conferees to see draft agreements at least three days before the conference agreement is completed, and for conferees to be able to offer amendments to that language when the change is cosponsored by at least one conferee of the opposite chamber. This would require conferees to assert their rights against the committee leaders’ preference for the path of least resistance, since leaders are unlikely to take on a more complex conference process without a clear demand from rank-and-file members.
Ultimately, this approach would require committee leaders to relinquish some of their power. And, yes, it is potentially messier. But it also would force leaders to think more strategically about how to address controversial provisions, justify actions to remove or alter provisions that carry clear majorities of support, and give rank-and-file members a more meaningful voice in the process.
New Challenges Require New Approaches
Perhaps the most daunting challenge facing defense overseers is conducting oversight of cross-jurisdictional issues. Although cross-jurisdictional problems have always existed, the nature of modern warfare and the emergence of multi-dimensional threats (such as malicious cyber activity or hybrid warfare) have increased their prevalence and complicated who has the lead in oversight. For example, 108 committees and subcommittees assert jurisdiction over some part of the Department of Homeland Security, while the diffuse jurisdictional responsibilities for cyber security have hamstrung oversight.
Each defense committee has jurisdiction over some intelligence activities, sharing this responsibility with intelligence committees. To complicate things further, over half of the intelligence community falls under the Defense Department umbrella. Organizations such as the National Security Agency and the National Geospatial Intelligence Agency are part of the intelligence community, for instance, but serve simultaneously as combat support agencies. It can be difficult to discern where the dividing line lies between combat support and contributing to national intelligence priorities.
Cyber security is a classic cross-jurisdictional conundrum, involving a sprawling set of issues touching on the jurisdictions of no less than eight oversight committees in each chamber. It is nearly impossible to consider cyber deterrence and the role of offensive cyber attacks in military operations without encroaching on business, homeland security, foreign policy, and criminal justice issues.
Moreover, military operations often depend on intelligence from non-defense intelligence agencies for support in selecting targets, understanding terrain, and analyzing expected adversary responses. Yet overseers often fall victim to the same problems they have sought to root out in the executive branch — stove-piping and territorialism.
So what can be done? When Osama bin Laden was killed by Special Operations Forces in Pakistan, the Senate Select Committee on Intelligence and the Senate Armed Services Committee’s Emerging Threats Subcommittee took the unusual step of holding a joint oversight hearing. Although the hearing was classified, one of us participated and can attest to its benefits: It was the first formal oversight proceeding that allowed members of the two committees to jointly discuss highly classified details of counter-terrorism operations, generating a deeper understanding of the operation and more informed oversight questions. While that measure, to our knowledge, has not been repeated since, it is an example of committees putting aside turf battles for greater oversight goals. Such joint oversight should be far more common. Although hearings alone won’t solve all problems, they are a tool for deepening understanding and driving accountability.
Cross-committee collaboration can take several forms. Joint hearings help oversee focus on a single episode or issue and have a conversation that is not constrained by artificial jurisdictional lines. Sustained challenges, such as cyber defense, could be met through informal, nimble task forces that span committees. Similarly, cross-committee agreements, developed in consultation with the executive branch, could facilitate shared oversight requiring access to compartmentalized intelligence. Alternatively, Congress could increase cross-placement of ex officio committee members — that is, non-voting members who are allowed to participate in committee proceedings — in certain circumstances.
For defense committees, immediate priorities should include cross-committee oversight mechanisms for air-and-space-borne intelligence assets, cyber security, and foreign security assistance. Cross-committee cooperation cuts against the well-defined jurisdictional grain in Congress, but these obstacles are more rooted in attitude than substance. The national security environment is rapidly evolving towards complex threats and responses that defy jurisdictional lines, and congressional committees can ill-afford to fall behind.
Don’t Know What You’ve Got ‘Til It’s Gone
Historically, Congress’ commitment and ability to oversee the defense enterprise have waxed and waned. Where oversight has waned, the consequences have often been disastrous: corruption and waste, costly conflicts, runaway spending, and intelligence failures, among others.
The defense committees are currently among Congress’ bright spots when it comes to oversight; yet, this reputation is relative, and at risk. Insufficient staffing and resourcing, questions about transparency, and an inability to institutionally adjust to emerging threats compound the challenges posed by partisanship and politics. An inflection point will arrive in the immediate future when Sen. John McCain — whose focus on oversight, accountability, and reform has been extraordinary — steps away from Congress, leaving fewer viable candidates poised to take up his oversight mantle.
Let us not forget what is at stake. Russia has made clear its intent to foment disruption across the U.S. political system. A range of terrorist organizations around the world seek the degradation and destruction of the country. And strategic competitors, like China, are eager to fill the breach as America’s image declines around the world. Meanwhile, the American public’s trust in government institutions is dangerously declining. With its unique charge in ensuring the country’s defense, it is vital that Congress recapture and reassert its oversight capabilities to ensure the country’s military effectiveness and democratic accountability.
Tressa Guenov served most recently as Acting Assistant Secretary of Defense for Legislative Affairs and was a professional staff member on the Senate Select Committee on Intelligence. She has also held numerous positions in the Senate, Pentagon, and State Department.
Tommy Ross served as Deputy Assistant Secretary of Defense for Security Cooperation at the Pentagon and was the senior defense and intelligence adviser to Senate Majority Leader Harry Reid. He has also held other senior positions in the House and Senate.
Image: Defense Department