United States Intelligence Community Oversight

United States Intelligence Community Oversight duties are shared by both the executive and legislative branches of the government. Oversight, in this case, is the supervision of intelligence agencies, and making them accountable for their actions. Generally oversight bodies look at the the following general issues: following policymaker needs, the quality of analysis, operations, and legality of actions. [ Lowenthal M.M.(2006). Intelligence From Secrets to Policy. ]

Executive Oversight

Oversight in the executive branch usually focuses on covert action and espionage. The President heads oversight in the executive branch, and all covert actions must be approved by him or her (Refer to Intelligence Authorization Act and Hughes-Ryan Act). The President also has the power to appoint commissions, which can be used to assess intelligence topics (such as The National Commission on Terrorist Attacks or The Iraq Intelligence Commission).

President’s Foreign Intelligence Advisory Board

The President's Foreign Intelligence Advisory Board (PFIAB) is now known as President’s Intelligence Advisory Board (PIAB). Under the PIAB is the Intelligence Oversight Board (IOB), which is used to carry out investigations and initiate analysis activities for the President. [ [http://www.whitehouse.gov/news/releases/2008/02/20080229-5.html Executive Order: President's Intelligence Advisory Board and Intelligence Oversight Board] Executive Order Press Release] The PIAB members are appointed by the President and are usually individuals with relevant experience. In 2008, current President Bush by Executive Order removed some oversight powers from the IOB, critics argue that the changes have weakened oversight capabilities. Previously, if the IOB learned of allegedly illegal or contrary to executive order intelligence activity, it notified both the president and the attorney general, now however, the IOB must refer matters to the Justice Department for a criminal investigation. In addition, the IOB lost the authority to oversee each intelligence agency's general counsel and inspector general. [ [http://www.boston.com/news/nation/washington/articles/2008/03/14/president_weakens_espionage_oversight/?page=1 President weakens espionage oversight] Savage C. (March 14, 2008). The Boston Globe. The main issue with the PIAB is concerns, since they are appointed by the president, there may be politicization of their recommendations.

Office Of Inspector General

Under each cabinet position and intelligence agency, the Office of the Inspector General (OIG) and the General Counsel, have oversight responsibilities (see The Inspector General Act [ [http://www.access.gpo.gov/uscode/title5a/5a_2_.htmlINSPECTOR GENERAL ACT OF 1978] ] ). [ [http://www.ignet.gov/igs/faq1.html] Inspector General Official Website faqs] The OIG reports to the Secretary of the department or the director of their agency. The OIG “conducts independent investigations, audits, inspections, and special reviews…of personnel and programs to detect and deter waste, fraud, abuse, and misconduct, and to promote integrity, economy, efficiency, and effectiveness.” [ [http://www.usdoj.gov/oig/] Department of Justice Office of Inspector General ]

The National Security Council

The National Security Council's (NSC) Office of Intelligence Programs (OIP) provides routine oversight and intelligence policy for the intelligence community. The Director of National Intelligence (DNI) also oversees and directs the implementation of the National Intelligence Program for the intelligence community. [ [http://www.odni.gov/aboutODNI/who.htm] Office of the Director of National Intelligence ] The oversight body in the Office of the DNI is the Joint Intelligence Community Council (JICC) which is chaired by the DNI; other members include the secretaries of State, Treasury, Defense, Energy, Homeland Security and the Attorney General. [ Lowenthal M.M.(2006). Intelligence From Secrets to Policy. ] The effectiveness of the JICC is questioned for two reasons, one, Cabinet members likely do not have the time to devote to intelligence issues, and two, the JICC officers are more powerful that the DNI in that they have separate opportunities to speak to the president, which gives them supplementary means to challenge DNI decisions. [ Lowenthal M.M.(2006). Intelligence From Secrets to Policy. ]

Other Executive Oversight Bodies

The Office of Management and Budget (OMB) also oversees agencies, the OMB “reviews intelligence budgets in light of presidential policies and priorities, clears proposed testimony, and approves draft intelligence legislation for submission to Congress.” [ [http://www.intelligence.gov/1-relationships.shtml] Intelligence Community Website]

The Department of Defense (DoD) has its own oversight body, the DoD Intelligence Oversight Program (IOP). The IOP has main objective is “to ensure that the DoD can conduct its intelligence and counterintelligence missions while protecting the statutory and constitutional rights of U.S. persons.” [ [http://hqinet001.hqmc.usmc.mil/ig/Div_Intell_Oversight/ATFP%20FAQ.htm#Q1._What_is_Intelligence_Oversight_and_what_is_the_purpose_of_the_Department_of_Defense_Intelligence_Oversight_program__] DoD IOP faqs Relationships with Other Government Organizations] ]

Legislative Oversight

Congress justifies its oversight abilities using two main reasons; the first is the Necessary and Proper Clause of the US Constitution (since courts found that the clause includes the power to require reports from the executive on anything that can be legislated) [ Lowenthal M.M.(2006). Intelligence From Secrets to Policy. ] and the second is the Power of the Purse. Congressional oversight focuses on the supervising of the budget, quality of analysis, legality of actions, and intelligence failures. The two principal committees that are charged with intelligence community oversight are the House Permanent Select Committee on Intelligence and the . Intelligence actions, budgetary spending, and intelligence failures must be disclosed to these committees, due to the Intelligence Oversight Act, Hughes-Ryan Act, and Executive Order 12333. [ [http://www.archives.gov/federal-register/codification/executive-order/12333.html] Text of EO 12333; Lowenthal M.M.(2006). Intelligence From Secrets to Policy.]

Budget process

The two main components of the budget process are that of appropriation (allocation of funds) and authorization (approving the use of funds for programs or activities).

The main authorizers of the intelligence budget are House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence, other committees that authorize funds include The House Armed Services Committee and Senate Armed Services Committee.

The House Appropriations Select Intelligence Oversight Panel (as of 2007) [ [http://www.govtrack.us/congress/bill.xpd?bill=hr110-35&tab=summary] GovTrack.us. H. Res. 35--110th Congress (2007)] and the Senate Intelligence Appropriations Subcommittee (as of 2004) [The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World By Anne Joseph O’Connell. California Law Review; Dec2006 ] are responsible for allocating funds to the intelligence community budget. This allows each of these committees to have some control over the intelligence community actions and have access to examine size, shape, organization and programs of the agencies.

Other Legislative Oversight Methods

Congress has several other methods at its disposal for overseeing and controlling aspects of the intelligence community.

Hearings, Investigations, And Reports

Hearings are a means to request information from officials and experts. Hearings are usually adversarial in nature and try to ensure that the agencies comply with laws, and that administrative policies reflect the public interest. Oversight hearings inquire about the efficiency, financial system, and effectiveness of agency operations. Hearings may be closed to the public depending on the nature of the hearing. Following a hearing, questions for the record (QFRs or “kew-fers”) may be submitted to witnesses and agencies. [ Lowenthal M.M.(2006). Intelligence From Secrets to Policy. ]

Congress is allowed to investigate almost all issues, most Congressional investigations produce a report. An example of a Congressional investigation, is the Senate investigation on pre-war intelligence which produced the Report on Pre-War Intelligence on Iraq. Another example is the joint House and Senate Intelligence Committees inquiry after 9/11; the report produced presented the findings, conclusions, a discussion, and a series of recommendations. The effectiveness of Congressional investigations is often criticized because Congress through its budgetary powers and oversight responsibilities has influence over the community, and therefore the question becomes can Congress be objective about its own actions.

The Government Accountability Office (GAO) also known as the investigative arm of Congress, helps Congress with oversight of federal programs and provides Congress with insight into ways to make government more efficient, effective, ethical and equitable (it also provides forecasts of long-term trends and challenges) by producing reports. [ [http://www.gao.gov/] Govt. Accountability Office Official website]

Treaties, Nominations, And Hostages

The Senate has the power to confirm (or reject) Presidential nominations for appointed posts, which plenty of important posts in the intelligence are, such as the DNI and the DCIA. In this way, the Senate has power to reject unfit persons and hope to guide the intelligence community to whatever way they feel best.

The Senate also has the power to ratify treaties; this is important to the intelligence community because one of its functions is monitoring treaty compliance, for example during Soviet arms control of the 1970s the ability to monitor the Soviets compliance was only within the intelligence community. The senate select committee was given the task of examining whether the intelligence community could accurately monitor treaty compliance. Sometimes they can hold decisions on treaties until provisions are met such as the buying of new satellites before ratifying the 1988 Intermediate Nuclear Forces Treaty [ Lowenthal M.M.(2006). Intelligence From Secrets to Policy. ]

Hostages are one way that Congress can try to force the Executive branch into doing what Congress wants. Congress withholds making decisions or taking action on important things (such as approving nominations or ratifying treaties) to the executive branch in order to force the preferred action. [ Lowenthal M.M.(2006). Intelligence From Secrets to Policy. ]

Issues in Legislative Oversight

Redundancy

At the time the 9/11 report was issued, 17 congressional committees had some intelligence oversight duty, on at least one Intelligence community member. (including but not limited to the Senate: Appropriations, Armed Services, Budget, Energy and Natural Resources, Foreign Relations, Governmental Affairs, Judiciary Standing Committees, and the Senate Select Committee on Intelligence; House: House Appropriations, Armed Services, Budget, Energy and Commerce, International Relations, and Judiciary Standing Committees and the House Permanent Select Committee on Intelligence). The 9/11 Commission report stated that redundancy in congressional oversight, through the multiple responsible committees, hindered the oversight process and was not conducive to the goals of oversight. The commission recommended to reduce redundancy, and to unify the congressional oversight community, for example creating a standing joint House/Senate Intelligence committee.

At this point, congress has not fully implemented the commission’s suggestions. However, in October 2004, the Senate enacted a series of internal changes; it ended its eight-year term limits for members of its Intelligence Committee; elevated its Intelligence Committee to category "A" status (generally Senators can serve on no more than two "A" committees); created an Oversight Subcommittee of the Intelligence Committee; and established an Intelligence Subcommittee of its Appropriations Committee. [The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World By Anne Joseph O’Connell. California Law Review; Dec2006 ] In 2007, the House changed intelligence appropriations responsibilities and created the Appropriations Select Intelligence Oversight Panel.

Some Congressional members wish to consolidate oversight in keeping with the 9/11 recommendations such as Representative Carolyn Maloney, (D-NY) who in 2004, proposed that the House shift the House Intelligence Committee status to a standing committee and giving it exclusive jurisdiction over the intelligence community. Conversely, others wish to diversify oversight responsibility to more committees such as, Representatives Jeff Flake (R-AZ) and Adam Schiff (D-CA) who in July 2006 introduced a bill that would require the House Intelligence Committee to disclose considerable classified information to at least eight other House committees.

Redundancy advocates argue that it reduces group think and favoritism; produces competition; and increases reliability by decreasing the chances of the system failing entirely. Consolidation advocates argue that consolidation would improve the accountability of both the intelligence community and Congress (for example, if multiple Committees failed to catch something it would be difficult to hold any one accountable) and it would reduce costs.

Secrecy

Members of Congress have TOP SECRET security clearances because they were elected to office, they do not have to submit to the background check procedures (Congressional Staff on the other hand must submit to background checks to handle classified materials). The House and the Senate limit dissemination of intelligence to members who are on the Intelligence committees and many of their hearings are closed. Usually, the main concern is leaks of classified information. However, some argue that openness is a tenet of democracy and therefore operations and information must be openly available to the public. There are also concerns about whether Congress would be willing to make public alarming information. [ Lowenthal M.M.(2006). Intelligence From Secrets to Policy. ]

Another secrecy issue is the intelligence budget. The Constitution in Article 1, Section 9, paragraph 7, requires accounts of all public money be published “from time to time.” Many Administrations have argued using the vagueness of the statement, that disclosing intelligence budget figures would harm National Security.

References