On the CIA’s Refusal to Cooperate with Congressional Inquiries

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As important as safeguarding sensitive intelligence informationis to the Central Intelligence Agency (CIA), the intelligencecommunity, and the Executive Branch, more paramount concerns existin a constitutional republic. Reacting to European monarchs who ranforeign and military policy--often disastrously--with fewconstraints imposed by their subjects, the founders of the Americannation enshrined in the U.S. Constitution a vital role forCongress-the arm of the people--in foreign and national securitypolicy. James Madison, writing in The Federalist, No. 51,stated: "A dependence on the people is, no doubt, the primarycontrol of government." But he also noted that experience showedthat "auxiliary precautions," that is, checks and balances withinthe government, were needed to guard against the founders' greatestfear-the risky accumulation of power in one branch of government.In short, Madison wrote: "Ambition must be made to counteractambition."[1]

The checks and balances written into the Constitution-which goto the heart of the U.S. system of republican government-ensurethat no branch of government can dominate U.S. foreign and defensepolicy. For example, the Senate must approve treaties with foreignnations and confirm the Secretary of State, other high level StateDepartment officials, and ambassadors. Furthermore, theConstitution says that the Congress has the power to declare war,provide for the common defense, raise armies, maintain a navy andmake all laws "necessary and proper" to execute those powers. Thus,the Congress has vital oversight responsibilities for ExecutiveBranch agencies involved in foreign affairs and national security,including the CIA and the intelligence community.

Secrecy Versus Accountability

Even in a constitutional republic, some secrecy in foreignaffairs and defense is needed; but when secrecy and accountabilityclash, the presumption should be with accountability.Accountability should be especially preferred in the lower externalthreat 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 othergovernment entities, the intelligence agencies get only limitedscrutiny from the media, the public, conflicting interest groups,and the courts. Furthermore, bureaucracies in national security canabuse the security cloak to avoid doing what Congress wants them todo. U.S. government secrets are not the exclusive property of theExecutive Branch; congressional committees are entitled to, andalso have a duty to, examine them to ensure that the secretiveintelligence community is acting in the interest of the people itis supposed to be defending. Although the intelligence communityuses the excuse that Congress is a leaking sieve, the ExecutiveBranch is widely recognized as the origin of most leaks of secrets.For all of those reasons, congressional oversight by more than justthe small (compared to the 45 Executive Branch entities involved inintelligence) and too easily co-opted intelligence committees isvital.

In most cases, accountability does not run afoul of secrecy. Infact, according to Loch Johnson, an analyst who spent 13 yearsinterviewing more than 500 intelligence officers, many intelligenceofficials--including former CIA directors-concluded that recentimprovements in accountability have not undermined theeffectiveness of intelligence.[2] Congressionalstaffs have the same security clearances possessed by ExecutiveBranch personnel, and hearings closed to the public can be used ifthe information to be discussed is too sensitive for an openairing.

Even when accountability does clash with secrecy, the Congressmust ask if the secrecy is warranted. Intelligence agencies developa "culture" of secrecy that can sometimes be excessive. Forexample, for a short window of time after the Cold War ended, theamount of the U.S. annual intelligence budget was made public.Eventually, the intelligence bureaucracy reasserted itself andagain covered it with a blanket of secrecy. Yet for many years, theactual value of the intelligence budget has been one of the worstkept secrets in Washington.

In recent decades, the trend has been to expand the circle ofthose responsible for overseeing intelligence activities. Formerly,the monitoring of CIA activities used to be confined to thechairman and ranking minority of the defense committees and one ortwo senior staff. In the 1970s, after congressional hearingsexposing abuses in the intelligence community, the intelligencecommittees were formed. As the following examination of the Houserules governing both the intelligence committee and congressionaloversight of Executive Branch agencies will show, the number ofcommittees that monitor intelligence and intelligence-relatedactivities and have access to products from those activities hasincreased. That expansion of oversight is even more appropriate nowthat the worldwide communist menace has collapsed.

House Rules on Legislative Oversight

To help guide House committees in performing oversight, therules of the House delineate "special oversight functions" forvarious committees. In that part of the rules (3 (l)), thePermanent Select Committee on Intelligence "shall review and studyon a continuing basis laws, programs, and activities ofthe intelligence community and shall review and study on anexclusive basis the sources and methods" of agencies of theintelligence community, including the CIA (emphasis added). Thephrase "on an exclusive basis" is very telling. Because theexclusive purview of the House intelligence committee is restrictedto sources and methods, by implication, other committees can studylaws, programs, and activities of the intelligence community.

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

Nothing in this clause shall be construed asprohibiting or otherwise restricting the authority of any othercommittee to study and review an intelligence orintelligence-related activity to the extent that such activitydirectly affects a matter otherwise within the jurisdiction of thatcommittee.

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

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

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

Those same House rules give the House Government ReformCommittee broad oversight over the operation of Executive Branchagencies. Section 3(e) states:

The Committee on Government Reform shall review andstudy on a continuing basis the operation of Government activitiesat all levels with a view to determining their economy andefficiency.

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

Reinforcing the seemingly plain language of the previously citedpassages of the House rules is the implied protection for othercommittees whose jurisdictions might overlap that of the Houseintelligence committee. By making the intelligence panel a selectcommittee, instead of a standing committee, the House indicatedthat the panel did not have exclusive jurisdiction over mostmatters in intelligence (the Senate also made its intelligencepanel a select committee). Furthermore, Section 11(a)(1) of theHouse rules provides that the intelligence committee will consistof at least one representative from other specified congressionalcommittees. Although those committees are all security-relatedcommittees, the intent of the rules seems to be to preserve theright of other committees to examine intelligence andintelligence-related activities and products.

Further illustrating the prerogatives of other House committeesis the right to have proposed legislation related to intelligenceactivities referred to them as long as it falls within theirjurisdiction. The annual bill to authorize the funding ofintelligence agencies is regularly and sequentially referred toother committees with jurisdiction. When other committees areinterested in specific legislative provisions, the intelligencecommittee often includes them in legislation separate from theintelligence authorization act. In practice, the intelligencecommittees seek concurrence of other committees before reportingother legislation that could trigger a request for a referral. Theother committees have leverage over the intelligence committeebecause they could hold up-through a request for referral or otherdelaying tactic-or oppose a bill if the intelligence committee doesnot get their prior concurrence.

So it has been very clear from the time of creation of theintelligence committees in the late 1970s that they did not haveexclusive jurisdiction over intelligence and intelligence-relatedactivities or access to intelligence products. The House rules seemfairly clear on that point. But if any dispute over internal Housejurisdictions occurs, it should be between the intelligencecommittee and another committee, not between the CIA and the othercommittee. The CIA should allow congressional committees tointerpret rules made by their own chamber.

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

The Government Reform Committee's effort to investigate cybersecurity seems to be well within its jurisdiction under the Houserules to review government economy and efficiency. Furthermore, aslong as the committee refrains from directly examining the CIA'ssources and methods of intelligence (unlikely in an investigationof CIA's cyber security), it seems to have a compelling case underthe rules for examining the agency's intelligence activities andproducts during its investigation. While conducting theinvestigation, the committee seems to have the implicit authorityunder the rules to compel the CIA to testify at an oversighthearing. Because the committee does not have control over the CIA'sbudget (as do the intelligence committees and the appropriationscommittees' subcommittees on defense), its ability to compel CIAtestimony at hearings becomes even more vital for conductingadequate oversight of economy and efficiency.

The CIA's refusal to testify before the Government ReformCommittee is made all the more mysterious by its recent testimonybefore the Joint Economic Committee on a similar subject. On June21, 2001, Lawrence K. Gershwin, the National Intelligence Officerfor Science and Technology from the CIA, gave the testimony, "CyberThreat Trends and U.S. Network Security," at the Joint EconomicCommittee's hearing, "Wired World: Cyber Security and the U.S.Economy."[3] Granted, that hearing was on theCIA's assessment of the vulnerability of the nation's computersystems to hostile entry rather than on the vulnerability of CIA'scomputers to similar penetration, but the House rules treatnon-intelligence committees' review of intelligence activitiessimilar to their access to intelligence assessments (see sections11(b)(3) and 11(b)(4) of the House rules quoted above). In short,other committees are not restricted from reviewing intelligenceactivities or obtaining intelligence products. To comply with theHouse rules, other committees' access to information about CIA'scyber security efforts for its own computers should be treated nodifferently by the agency than access to its assessment of foreignthreats to U.S. computer systems.

Can the Intelligence Committees Alone Adequately Monitorthe CIA?

After the abuses by the intelligence agencies in the early1970s, the Congress correctly consolidated the fragmented oversightof those agencies into the Senate and House intelligencecommittees. But although their staffs are specialists inintelligence activities, the intelligence committees of both housescan sometimes get co-opted by the agencies they oversee or exhibitother self-restraints that can undermine their oversight. Someexamples will illustrate the point. The intelligencecommittees:

  • claim the right to hire their staff members over the securityobjections of the Director of Central Intelligence or the Secretaryof Defense, but in practice it rarely occurs;
  • are willing to restrict the scope of their requests forclassified information or limit the manner in which it ishandled;
  • have a high turnover among the chairmen and members, whichlimits the accumulation of experience that can compete with thevast institutional memory of the CIA and other agencies (on theother hand, the rotation of personnel may, in some respects, maymake the panel less captive to the intelligence community);
  • avoid investigating improprieties by individuals unless theyare symptomatic of a system-wide problem or part of a bad policy atthe agency involved. Even in that instance, the committees shy awayfrom 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 forinvestigations of the CIA. Increased access to the CIA and otherintelligence agencies by GAO and greater use of GAO by thecommittees could augment substantially the committees' ability toadequately monitor the activities of the intelligencecommunity.

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

The best indicator of how much the Congress fears the cooptationof the intelligence committees by the spy agencies occurs duringcrises. During those periods, the Congress does not seem to havemuch confidence in the intelligence committees. During theIran-Contra affair in the late 1980s, the intelligence committeeslost credibility and select committees were created to lead thecongressional investigations. When covert action in Angola duringthe Reagan administration became controversial, the issue migratedfrom the intelligence committees to other committees and the fullchambers of both houses.[5]

Because the intelligence committees can be co-opted by theagencies whose operations they oversee on a day-to-day basis, theconstitutional check by Congress on the Executive Branch isenhanced when other more disinterested committees look at the CIA'swork. For example, in determining the economy and efficiency of theCIA's activities, the Subcommittee on Government Efficiency of theGovernment Reform Committee-which looks at the issuegovernment-wide-might better assess the agency's efforts than theintelligence committee, which would have less comparativeinformation from other government entities on which to base itsanalysis.

Conclusion

The Subcommittee on Government Efficiency of the HouseGovernment Reform Committee seems to have clear authority underboth the U.S. Constitution and the House rules to conduct oversightof intelligence and intelligence-related activities for economy andefficiency-its areas of jurisdiction-and to gain access tointelligence products. (Under the House rules, the only area wherethe subcommittee seems to be restricted is in the directexamination of the highly classified sources and methods ofintelligence, which is reserved for the intelligence committee. Butthe subcommittee would be unlikely to need to examine such sourcesand methods in a review of CIA cyber security.) It is clear thatthe House (and the Congress as a whole) has never given theintelligence committee(s) sole oversight authority overintelligence activities, especially when other committees havelegitimate jurisdiction.


Notes

[1] Quoted in Loch K. Johnson, America'sSecret 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, NationalIntelligence Officer for Science and Technology, NationalIntelligence Council, Central Intelligence Agency, at the JointEconomic Committee hearing, "Wired World: Cyber Security and theU.S. Economy," June 21, 2001.

[4] Select Committee on Intelligence, U.S.Senate, Legislative Oversight of Intelligence Activities: TheU.S. Experience, 103rd Congress, Second Session, Senate Print103-88, October 1994, p. 18.

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

Ivan Eland

Subcommittee on Government Efficiency
Committee on Government Reform
United States House of Representatives