war on the rocks

At a Crossroads, Part II: No More Shadows: The Future of Intelligence Oversight in Congress

May 16, 2018

In the 2012 James Bond film Skyfall, M (Judi Dench) and Gareth Mallory (Ralph Fiennes) debate how to respond to a leak that has led to the assassination of several MI6 intelligence agents. They are torn between a desire to ensure that MI6, Britain’s premier spy agency, remains a credible part of British democratic institutions and the need to avoid antiquation in the face of rapidly changing technology and spycraft. At one point, Mallory laments, “We can’t keep working in the shadows. There are no more shadows!”

Mallory and M’s conversation encapsulates the broader, real-life dilemma that the intelligence community and intelligence oversight face in the modern era. Today, carefully guarded covert operations, undercover identities, and secrets of spy tradecraft can be exposed in seconds. Intelligence agencies face unprecedented political accusations of bias from their commander-in-chief. The tide of politics crashes headlong against the buttoned-up traditions of analytical integrity and inviolable protection of sources and methods.

There are indeed fewer and fewer shadows in which to conduct, manage, and oversee traditional intelligence work. Nowhere in Congress has that fact been more acutely felt than on the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence, which oversee the organizations and activities of the U.S. intelligence community.

Over the years, congressional oversight of the intelligence community has wrestled with the balance between support and oversight, the extent of member and staff access to intelligence information, the challenge of transparency in a highly classified enterprise, and how to approach appropriating intelligence funding. The 9/11 Commission’s 2003 Final Report described congressional intelligence oversight as “dysfunctional” – lacking “power, influence, and sustained capability.” Committees in the House and Senate have different jurisdictions, different relationships with other national security committees, and different approaches to addressing intelligence community funding. Moreover, they do not have their own correlate appropriations subcomitttees the way the foreign affairs and defense committees do.

In part two of this series on national security oversight (read part one here), I argue that intelligence oversight is also at a crossroads. Existing challenges have been exacerbated significantly, but not exclusively, by the proclivities of the Trump administration, its openly adversarial relationship with the intelligence community, and congressional intelligence committees’ high-profile investigation of Russia’s interference in the 2016 presidential election. Intelligence oversight has also been challenged by the dizzying speed of modern media coupled with regular public leaks of massive amounts of digitized classified information, each of which increasingly intrudes on the shadows in which intelligence professionals are accustomed to operating.

Other factors – enormous growth of the intelligence enterprise since the 9/11 terrorist attacks, the technical complexity of many intelligence activities, and intelligence operations’ prominent role in broader foreign policy – have left congressional intelligence oversight disadvantaged and struggling to keep up. But Congress must evolve along with intelligence, improving its capacity to confront these challenges, organizing itself for the mission, and developing new tools for new problems.

A Unique Oversight Role, Challenged

In many ways, the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence share the same duties as all other oversight committees in Congress. They must ensure that the 17 agencies of the intelligence community have the personnel and resources to do their jobs, are following the law, and are implementing policies in an appropriate and strategic manner. The committees hold hearings, write letters, conduct investigations, and pass legislation. But they diverge from other committees in one critical regard: Most of their oversight work is done in the shadows, in classified form and outside of public view.

The significance of this difference cannot be overstated. Other committees are also at the vanguard of oversight in their jurisdictions, but their work is buttressed much more robustly by public watchdog groups, lobbyists, think tanks, journalists, and even concerned private citizens. Although transparency on the other national security committees is not perfect, the policies they are considering are usually openly debated and dissected.

For the intelligence community, however, congressional oversight committees are the last line of defense. Beyond a small number of inspectors general and occasional reviews by the Government Accountability Office, there are no other entities with the access and mandate to check executive branch excess or error.

Most years, Congress passes a rather banal unclassified Intelligence Authorization Act, but the real meat of oversight legislation is contained in a classified annex to the bill. The annex is technically not law, but it is treated as such by the intelligence agencies who receive it, and they cannot discuss its details publicly. The vast majority of members of Congress are never exposed to the annex or to the intelligence community’s workings more generally, so the burden falls on a small group of members and staffers to ask the right questions and sustain oversight initiatives.

Adding to the secrecy challenge, the already small intelligence committee staffs are divided and fractured: Only a subset of staff may have access to information on sensitive National Security Agency activities, while a different subset may be granted access to certain CIA information. This means that the congressional staff empowered to conduct oversight on any given issue often number in the single digits. And the defense appropriations subcommittees, which oversee the intelligence community’s budget, do similar work with even smaller staffs than the authorizing committees.

Further, intelligence oversight committees must often negotiate – not always successfully – for access to vital intelligence with the very agencies they are charged with overseeing. Congress has three general levels of access to information at escalating levels of classification: the general membership, the intelligence oversight committees, and the “Gang of Eight” consisting of the top Republican and Democratic lawmakers in the House and Senate and on the two intelligence committees along with their corresponding staffs. Yet, the executive branch often makes unilateral decisions about which groups to share what with — sometimes information is given to only the Gang of Eight plus appropriators, for example, or to committee members but not staff. No clear rules guide these determinations, and key oversight staff are often excluded.

A third challenge is staff capacity. I can attest that the members and staff on the intelligence committees approach their unique oversight role with great rigor, seriousness, and patriotism. Quality bipartisan oversight on taxpayers’ behalf goes on every day, though it rarely makes headlines. Yet the staff are snowed under by volume and complexity. Consider that intelligence committee staff must oversee and maintain requisite expertise on 17 separate agencies conducting intelligence collection and analysis through six major technical disciplines, while also maintaining specialized expertise to support oversight of research and acquisition programs and regional expertise to support oversight of intelligence strategies across high-priority countries and conflicts. As technological innovations in data analysis, artificial intelligence, cyber tools, and satellites grow ever more sophisticated, this complexity only increases.

According to the Congressional Research Service, intelligence committees have approximately the same number of staff now as they did in 1987. In that same period, five intelligence agencies have been created — not to mention the paradigm-shifting technological developments, particularly in space and cyberspace that have fundamentally changed and exponentially expanded technical intelligence collection. The intelligence community’s budget, at over $70 billion, is 18,421 times larger than that of the House Permanent Select Committee on Intelligence budget of $3.8 million. The inability of intelligence oversight committees to keep pace with the sprawling growth of intelligence agencies, personnel, and contractors is cause for concern, given the committees’ role as the last line of defense.

In addition to problems of capacity and resources, the environment for intelligence activities is dramatically more public and more partisan than when the committees were first formed. Congressional staff lack the necessary tools and support to face the chaotic environment created by the enormous scrutiny of the tweet-driven media and partisan political groups on serious matters such as the Russia investigation. For example, despite the swirl of press inquiries about this probe, neither House nor Senate intelligence committees maintain any dedicated staff for media relations. Moreover, the challenge of conducting such high-profile investigations while protecting classified information and privileged discussions can erode the integrity of the oversight. The stumbling of the House intelligence committee’s Russia inquiry as headed by its chairman, Devin Nunes, serves as a case in point.

In fact, investigations pose their own unique challenge to intelligence oversight. While investigations are typically viewed as special, occasional events, in practice, they have  become an ongoing feature of intelligence oversight – a shift that staffing should reflect. In the past ten years, intelligence committees have conducted multi-year, detailed investigations of pre-Iraq War intelligence, the CIA’s use of enhanced interrogation techniques, the 2012 Benghazi attacks, and Russia’s election interference.

The time needed to complete a thorough oversight investigation does not comport with ravenous expectations of the political and media environment. Intelligence committees have faced considerable pressure to accelerate these politically sensitive reviews to keep up with the fast-paced news cycle. Such press interest has gone hand-in-hand with frequent leaks of intelligence secrets through actors ranging from Edward Snowden to the Shadow Brokers. Without dedicated investigative staff, each major leak that requires investigation diverts attention from normal oversight activities.

Another challenge is the cross-jurisdictional nature of many sensitive intelligence activities. Military intelligence operations, electronic surveillance programs, embassy management of covert action programs, and cybersecurity all cross into multiple committee jurisdictions. Moreover, the jurisdictions of House and Senate intelligence committees are not aligned. Gaps and redundancies in committee jurisdictions can create opportunities for the executive branch to evade oversight or venue-shop and can cause confusion and inefficiencies for overseers. Take, for instance, overseas collection of imagery intelligence: The Armed Services Committees must make determinations about resources for airborne intelligence, surveillance, and reconnaissance platforms without any knowledge of how the intelligence community’s satellite programs might duplicate airborne collection. This breeds inefficiency and waste. While, on the House and Senate Appropriations Committees, a single subcommittee maintains oversight of both defense and intelligence enterprises, the subcommittee staffs are too small to effectively bridge this oversight gap.

Finally, oversight committees have always occupied the dual role of overseers of the intelligence community and explainers of its activities to the broader public. In recent months, the committees have been called upon like never before to serve as interpreters and even arbiters of attacks against the intelligence community from the president’s Twitter account and, sometimes, from the media. However, this education function is of enduring importance. In the last two decades, there have been frequent controversies over intelligence activities, budgets, and authorities, but the public has had few tools with which to make sense of these debates. The dangers of a wide gap between intelligence activities and public information was demonstrated by the reaction to Snowden’s leaks: Public opposition forced the termination of collection activities that the government had viewed as essential to counterterrorism efforts and that Congress had lawfully authorized and carefully (but secretly) scrutinized. The episode shows that the intelligence community can no longer continue to operate strictly in the shadows.

Opportunity in the Light

How can the intelligence committees improve their oversight capabilities in an age where government secrecy has become increasingly fluid and, in some cases, an active target for attack? I propose several concrete measures.

First, intelligence oversight committees should pay much more attention to programmatic and organizational concerns, particularly through ongoing hearings. By its nature, real oversight lacks glamor, especially when almost no one knows what you are doing. Intelligence committee members get little political or constituent credit for delving into, say, the finer details of compartmented space programs or the way the CIA organizes itself bureaucratically.

Yet, the most mundane aspects of intelligence work – how agencies are organized, how personnel are recruited and developed, how programs are administered and executed, and how resources are budgeted and allocated – are the most important for effective oversight. Based on my own experience and conversations with oversight staff, however, the committees rarely conduct hearings dedicated to oversight of these issues beyond routine budget hearings, and few committee members invest in familiarizing themselves with their details. It is worth remembering that the 9/11 Commission overwhelmingly impugned bureaucratic issues – stovepiped communications, divided management, poor prioritization – not tradecraft, as the leading culprits for that intelligence failure. Avoiding such problems in the future requires careful, sustained oversight of the intelligence community’s organizational structures, processes, and incentives.

Just as importantly, the committees should hold more hearings specifically dedicated to bureaucratic oversight, as opposed to specific threats or operations. A good place to start would be a sustained examination of the state of intelligence community integration after the reorganization brought by the Intelligence Reform and Terrorism Prevention Act of 2004. To my knowledge, this reform has received negligible attention from intelligence committees in the 14 years since its passage, despite the enduring importance of cross-agency collaboration and communication.

Second, as the House and Senate Russia investigations have painfully demonstrated, authorizing committees should maintain professional, nonpartisan investigative staff. Although the staff members handling high-profile investigations are highly competent, this work often comes on top of their daily support roles for their members and traditional oversight portfolios. Effective investigations require special expertise and rigorous attention. The committees should rebuild their bipartisan investigations teams and be resourced to do so with permanent, professional, nonpartisan investigative staffs who have the expertise to support future investigations.

Third, the intelligence committees must reshape their role as educators of the public. One way this can be done is by scheduling regular unclassified hearings that focus on the organization, personnel, diversity, and long-term resourcing needs of the intelligence community. House overseers have embraced public hearings far more than their Senate counterparts, but their open hearings have tended to focus on security threats rather than structural issues. Public hearings focused on the latter would do much to help the public understand the enduring national security importance of a robust, apolitical cadre of intelligence community personnel. In addition to public hearings, oversight committees should consider providing public notice of the general topics and, if appropriate, witnesses for their classified hearings, after consulting with the intelligence community on possible counterintelligence risks.

Fourth, the committees must create mechanisms to address cross-jurisdictional concerns in collaboration with other national security committees, the Armed Services and Judiciary Committees in particular. In my previous position, I witnessed regular competition and occasional suspicion among these committees on certain sensitive classified programs. Each panel has compelling reasons to think access should be expanded or limited. Shared defense and intelligence issues include oversight of special operations and the intelligence used to support them, targeted counterterrorism strikes, and military intelligence operations. Meanwhile, both the intelligence and judiciary committees are invested in electronic surveillance and other issues involving intelligence support to law enforcement.

I’m not arguing for eliminating jurisdictional lines, but committees must figure out how to collaborate. They can conduct more joint oversight hearings, work with the executive branch to create stronger cross-committee access for certain members and staff, or even consider cross-committee task forces for sustained oversight challenges. Some progress was made on the access front in the Obama administration, but more needs to be done to create predictable and agreed-upon bipartisan, cross-committee oversight tools.

Fifth, the committees must address staffing challenges. More staff, including professional investigative staff, is certainly part of the answer. Though Congress is often averse to spending money on itself, it cannot expect the oversight committees to fulfill their responsibilities by keeping staffing levels flat while the intelligence community has doubled its size. But in addition, as others have suggested, the House Permanent Select Committee on Intelligence should follow its Senate counterpart’s lead, enabling members to have cleared staff reporting directly to them and assigned to support their committee activities. These “designees” ensure that committee members have staff working to directly address their individual concerns and priorities as is the case with every other congressional committee. Intelligence oversight committees, which deal with increasingly sophisticated technical matters, would also benefit from the reestablishment of an independent technical support office, as proposed in Part I of this series.

Finally, Congress should negotiate or, if need be, legislate standard procedures for member and staff access to sensitive materials. Lawmakers should establish standard procedures based on the following principles. First, information should be shared on a need-to-know basis according to the responsibilities assigned each committee. Second, “Gang of Eight” notifications should be reserved for exceptional circumstances for the utmost sensitivity to national security. Third, at least for committees and the Gang of Eight, staff access should parallel member access. Fourth, for staff of oversight committees, the committees themselves should set access rules, rather than being subjected to arbitrary executive branch caps.

Conclusion

The last two decades have provided no shortage of cautionary tales about the risks of insufficient intelligence oversight. The 9/11 Commission found that “dysfunctional” oversight was a key contributor to the failure to prevent the 9/11 terror attacks. Intelligence committees failed to help Congress parse a distorted picture of Iraq’s weapons of mass destruction programs, leading to a decade-long war costing thousands of American lives and hundreds of billions of dollars. In some cases, the executive branch deliberately stymied congressional oversight of the CIA’s torture program. And Snowden’s illegal disclosure of a vast trove of information about electronic surveillance not only damaged ongoing intelligence operations, but also convinced many citizens that they had been misled about the scope and intent of these efforts. As the shadows recede, it’s obvious that challenges for effective intelligence oversight will only grow.

In Skyfall, when secretive intelligence operations are wrested from the shadows, people die. For once, real life is actually like the movies: Misguided intelligence operations, sloppy safeguarding of classified information, and bad policies put the lives of thousands of dedicated intelligence professionals at risk. Robust congressional oversight is the last line of defense against such outcomes. It is fitting, therefore, that later in the movie, Mallory, chairman of the parliament’s Intelligence and Security Committee, saves M from an assassin’s bullet. Despite institutional tensions and personal frustrations, legislative branch oversight remains the great shield of our democracy, and we must guard it vigilantly.

 

Tommy Ross is a senior associate at the Center for Strategic and International Studies.  He 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: Wikimedia Commons