CIA AND THE CONGRESS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M01152R000400530010-4
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 32
• Document Creation Date: December 22, 2016
• Document Release Date: December 8, 2009
• Sequence Number: 10
• Publication Date: March 29, 1985
• Content Type: REPORT

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EXECUTIVE DEVELOPMENT PROGRAM ELECTIVE
CIA AND THE CONGRESS
1 - 3 April 1985
Room 1001, Chamber of Commerce Building
and
Capitol Hill
-r'oordinator
Training Assistant
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Monday, 1 April 1985
1330-1420 Congressional Relations Charles A. Briggs
and Oversight Director, Office of
Legislative Liaison
1430-1530 Congress and the Legislative Michaela Ruhler
Process Congressional
Quarterly, Inc.
1540-1630 Congressional Insights
Charles A. Briggs
Panelists
House Liaison Officer
Liaison Officer
TO BE ANNOUNCED
Panel Member
ormer .:ongressional
ADMINISTRATIVE - INTERNAL USE ONLY
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Tuesday, 2 April 1985
1330-1430 The National Foreign Keith R. Hall
Intelligence Program Budget: SSCI Sta
Senate Select Committee
on Intellience SSCI
1440-1530 The Appropriations Process: Daniel A. Childs
The DCI's Role in Presenting
the Agency Budget and the
Community Budget
1540-1630 How Congress Uses
CIA Comptroller
Intelligence uttice o. Legislative
Liaison
ADMINISTRATIVE - INTERNAL USE ONLY
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Wednesday, 3 April 1985
1245 BUS Departs Chamber of Commerce
Building for U.S. Capitol
1330-1430 House Permanent Select
Committee on Intelligence
(HPSCI)
Room H-405,
U.S. Capitol Building
1530-1630 The Senate Select Committee
on Intelligence (SSCI)
Room 219,
Hart Senate Office Building
The Honorable
Lee H. Hamilton
Chairman, Permanent
Select Committee
on Intelligence,
The United States
House of
Representatives
Thomas K. Latimer
Staff Director, HPSCI
The Honorable
Patrick J. Leahy
Vice Chairman,
Select Committee
on Intelligence,
United States
Senate
BUS Departs Hart Senate Office Building
for the Chamber of Commerce Building
ADMINISTRATIVE - INTERNAL USE ONLY
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"All statements of fact, opinion, or analysis expressed in Studies in
Intelligence are those of the authors. They do not necessarily reflect
official positions or views of the Central Intelligence Agency or any other
US Government entity, past or present. Nothing in the contents should be
construed as asserting or implying US Government endorsement of an
article's factual statements and interpretations."
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Roots, rules, reflections
CONGRESSIONAL OVERSIGI-IT OF INTELLIGENCE
Gary J. Schmitt
In the section of Democracy in America titled "Accidental Causes That
May Increase the Influence of the Executive Power," Tocqueville states:
If executive power is weaker in America than in France, the reason
for this lies perhaps more in circumstances than in the laws. It is
generally in its relations with foreign powers that the executive power
of a nation has the chance to display its skill and strength.... The
President of the United States possesses almost royal prerogatives
which he has no occasion to use ... the laws allow him to be strong.
But circumstances have made him weak.,
Tocqueville's statement comes as a surprise to most students of American
government. It is surprising because it suggests that at bottom the American
presidency is in some respects "imperial." Arthur Schlesinger, Jr., notwith-
standing, Tocqueville clearly sees within the formal office of the chief execu-
tive; the seeds of a ,powerful head of state.
Such a conception of the potential of the presidency is alien to most
students of the American constitutional system of separation of powers because
most have accepted without question an interpretation of separation of powers
most memorably expressed by Justice Louis Brandeis:
The doctrine of separation of powers was adopted by the Convention
of 1787, not to promote efficiency but to preclude the exercise of
arbitrary power. The purpose was not to avoid friction but, by means
of the inevitable friction incident to the distribution of governmental
powers among the three departments, to save the people from autoc-
racy.2
In short, separation of powers is an institutional tool that was employed by the
architects of the American constitutional system for restraining government's
power, but not for promoting its effective use.
This view of separation of powers is not without some powerful and
prestigious adherents; it can be found in Woodrow Wilson's Constitutional
Government, in Richard Neustadt's Presidential Power, and in James MacGr-
egor Burns' The Deadlock of Democracy. The American constitutional system
was designed for deadlock, not decision.
That this vision of the formal framework of the government has had such
a powerful hold on academics and politicians alike is not surprising given the
1 Alexis de Tocqueville, Democracy in Arnerica, ed. Mayer (New Yurkauubleday, Anchor Books, 1969),
vv. 125-26.
2 Myers o. Untied States, 272 U.S. 52, 293 (1926).
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pedagogic capacity of someone like Wilson and the regime's ever-present
democratic impulse to suspect instinctively any complexity as an impediment
to the immediate attainment of its desires. Its staying power notwithstanding,
the fact is history gives little support to this interpretation of the American
system of separation of powers. As one suspects of most such matters, the truth
is more complex.
To begin with, if stalemate and inertia had been the goal toward which
the framers were in single-minded pursuit, it is somewhat difficult to explain
their substantial expenditure of energy in shedding the Articles of Confeder-
ation. If ever there was a system of government designed for deadlock, that
was it. Moreover, if that had truly been their goal, then in forming the consti-
tution almost any division of power among any number of arbitrarily chosen
branches would have sufficed. But this is not what happened. The framers
were careful to define the powers of government and almost equally careful in
distributing them to the branches of government which had been specifically
constructed to house them. To a much larger degree than is commonly under-
stood, and in contrast to Neustadt's famous description of the government as
"separate institutions sharing powers," the architects of the American system
of separation of powers were driven by "the belief that kinds of power are best
exercised by particular kinds of bodies. -3
By the time of the Constitutional Convention, the general incompetence
of the Congress:of the Articles of Confederation and the capriciousness of the
various state assemblies. had 'changed many of the framers' minds about the
government's need for a vigorous and independent executive. Having earlier
reacted to the perceived abuses of king and governors alike with the establish-
ment of weak state executives and the disestablishment of an independent
executive authority on the national level, it was, according to James Wilson,
"high time that we ... chastise our prejudices; and that we . . . look upon the
different parts of government with a just and impartial eye.-4
The desire for a separate executive branch of the government was par-
tially fostered by the incapacities of Congress under the Articles of Confeder-
ation in the areas of national defense and foreign affairs. The letters of Wash-
ington, Hamilton, Jay, Morris and even Jefferson bear testimony to this con-
cerns For example, frustrated by the lack of energy and dispatch exhibited by
the national assembly in prosecuting the war, Colonel Hamilton concluded
that Congress had "kept the power too much into their own hands." After. all,
"Congress is," Hamilton continued, "properly a deliberative corps and it for-
gets itself when it attempts to play the executive."6
Congress' reputation fared little better in the area of foreign affairs. John
Jay, a member of Congress and eventually its Secretary for Foreign Affairs,
---s- ichar-1c -E:-Neusladr, res tdentiat-t owei: Tliz'Polttics of-L-eadership (New York:-Wiley and Sons; 1960).---
p. 33; Ann Stuart Diamond. "The Zenith of Separation of Powers Theory: The Federal Convention of 1787,"
Publius, (Summer 1978), p. 59.
James Wilson, Works, ed. McCloskey, (Cambridge: Harvard Univ. Press, 1967), Vol. 1, p. 293.
See Louis Fisher, "The Efficiency Side of Separated Powers," Journal of American Studies (August 1971).
" Alexander I lamilton, Papers, ed. Syrett (New York: Columbia Univ. Press, 1961), Vol. 2, p. 404.
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complained repeatedly about the assembly's impotence in this area of concern.
The plural composition of the Congress made timely action nearly impossible,
and always improbable. Vacillation, not decision, was the norm. This was
especially evident in those issues of most importance to states, as exemplified in
Congress' tortured and factionalized attempts to draft instructions for the ne-
gotiators of the peace treaty with Great Britain. Jay, like Hamilton, did not
blame particular members of the Congress for the delays or the failures. Con-
gress was just being a congress. In a letter written to Jefferson in 1787, just prior
to the Constitutional Convention, Jay suggests that the functional incapacities
then plaguing the government could only be overcome by the adoption of
separation of powers. As matters stood under the Articles of Confederation,
Congress was given both executive and legislative duties. According to Jay,
Congress is unequal to the first . . . but very fit for the second ... and
so much time is spent in deliberation that the season for action often
passes by before they decide on what should be done; nor is there
much more secrecy than expedition in their measures. These incon-
veniences arise not from personal disqualifications but from the na-
ture and construction of government.?
As Hamilton was to state succinctly elsewhere, there "is always more decision,
more dispatch, more secrecy, more responsibility where single men than when
bodies are concerned."8
Instructed by their experience, the Constitution's framers adopted and,
through-,the administrations of Washington, Adams and Jefferson, maintained
and executive office whose institutional logic was consonant not only with the
maxims of free government but also those of effective government.0 In general,
they recognized that the doctrine of separation of powers when effectively
implemented was not simply a tool to prevent power's abuse but a means to
assist its use. Brandeis' statement about the intention of the founders is only
half true. Charles Thach in his little read The Creation of the Presidency
completes the picture:
The adoption of the principle of separation of powers as interpreted
to mean the exercise of different functions of government by depart-
ments officered by entirely different individuals, also seemed insist-
ently demanded as a sine qua non of governmental efficiency. 10
Specifically, the framers came to understand a government's need for an in-
dependent and unitary executive whose powers and office were as carefully
molded as the checks they placed upon it. Through their implementation of
separation of powers, they hoped to meet the particular demands and neces-
7 John Jay, Correspondence and Papers, ed. Johnston, (New York: Putnam's, 1890-93), Vol. 3, p. 223.
Hamilton, Papers, Vol. 2, p. 245.
"See, in general, Abraham Sofaer, War, Forei n A atrs and Consfitutiorral Power. the.Ori ins Cann
bridge: Ballinger, 1976). Of the first eight years, Sofaer comments that the "framework for executive-con-
relations developed" during that time "differs more in degree than in kind from the present
gressional
framework." p. 127.
"Charles C. Thach, Jr., The Creation of the Presidency: 1775-1789 (Baltimore: Johns Hopkins Univ.
Press, 1929), p. 74.
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sities placed upon a nation by its being only one among (a possibly hostile)
many.
This functional aspect of the American system of separation of powers is
key to understanding Tocqueville's statement about the presidency. Seen from
this perspective, it is hardly surprising that as circumstances warrant and the
necessities of foreign affairs grow, the latent powers of the presidency would
be tapped.
Again, if separation of powers is properly understood, the fact that there
was a rather marked increase in the power of the executive office after the
Second World War does not of itself mean that some form of constitutional
usurpation had taken place. Quite the contrary, given America's expanded role
in the world, it was "natural" that such an increase should occur. What some
critics in the not-too-distant past dismissed as rationalizations for the de facto
dominance of the presidency in foreign affairs are in fact connected to that
office's de lure qualities. As Edward Corwin wrote in the wake of World War
I, "that organ which possesses unity and is capable of acting with greatest
expedition, secrecy and fullest knowledge-in short, with greatest efficiency-
has obtained the major participation. "I t
In general, through separation of powers the framers attempted to con-
struct a government which is both effective and safe. Its powers were to be
complete but also carefully hedged. So understood, it is natural that over the
two hundred years of the Constitution's existence that power and prestige
would ebb and flow from the various branches of the government. Its explicit
division of labor made it inevitable that at different times, and in different sets
of circumstances, the different branches would grow and recede in strength.
There is in this system a certain assumption made by the framers that
adjustments in the strength of the branches would coherently follow the dic-
tate of necessity. To a large extent, their Enlightenment belief tha necessity-
especially that of self-preservation-would be self-evident has been borne out.
In such instances as the Civil War and the World War II, power has accrued
quite readily to the executive office. However, in those instances outside the
circumstance of war, exercise of a strong executive power has proved more
difficult. In particular, since the end of World War II we have seen a shift
from an "imperial" to an "imperiled" presidency. The necessities of war are
clear and paramount; unfortunately, the necessities of peace and events lead-
ing to war are rarely so clear. As a result, what becomes crucial is the public's
understanding of the circumstances the nation faces in times short of war. It
is at these times that the dominance of the presidency is dependent not upon
the necessities themselves, but the public apprehension and consensus about
them.
It is the thesis of this essay that the key to understanding the history and
the prospects of congressional oversight of one of the President's more valued
ii Edward S. Corwin, The President's Control of Foreign Relations (Princeton: Princeton Univ. Press,
1917). P. 205. See also, Corwin, "The Progress of Constitutional Theory Between the Declaration of
Independence and the Meeting of the Philadelphia Convention," 30 American Historical Review (1925), pp.
511-36.
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prerogatives-the exercise of clandestine activities-is precisely that consen-
sus. While the independent, deliberative capacity of the Congress should not
be dismissed, neither should it be accorded undue weight. Congress is, to state
the obvious, a representative body, first and foremost.
The Cold War and Executive Prerogative
In 1947, the Cold War began and with it two decades of consensus over
the principles and necessities guiding American foreign policy. In March of
that year, President Truman, reacting to the crisis posed by communist sub-
version in Greece and Turkey declared that "it must be the policy of the
United States to support free peoples who are resisting attempted subjugation
by armed minorities or by outside pressure." Truman's Doctrine was given its
most famous, expanded and authoritative elucidation in George F. Kennan's
"The Sources of Soviet Conduct," which appeared in the July 1947 issue of
Foreign Affairs. Within four months in 1947, the theory and practice of Amer-
ican foreign policy coalesced, and the execution of the policy known as con-
tainment had begun.
As explained by Kennan, containment was a political and military strat-
egy to resist Soviet expansion. It was, according to Kennan, "the adroit and
vigilant application of counterforce at a series of constantly shifting geograph-
ical and political points, corresponding to the shifts and maneuvers of Soviet
policy." Containment, as explicated by Kennan and understood by most, was a
long-term strategem to be used by the United States and its allies in a world of
undeclared hostilities.12 The hot war had become cold, but it was war never-
theless.
The public consensus that formed around the policy of containment was
remarkable in its strength. While a Democratic administration gave contain-
ment birth, its most explicit applications were to be found in the Republican
administration of President Eisenhower. The Republican platform of 1952 not-
withstanding, Eisenhower rejected the policy of rolling back the Soviet Union's
imperium in favor of maintaining the status quo central to the doctrine of
containment in the case of Korea and, later, Hungary. Around containment a
bipartisan, national consensus coalesced. It was a consensus that would last for
some twenty years and four administrations-Truman's, Eisenhower's,
Kennedy's, and Johnson's.
This post-World War II consensus about foreign affairs was the dominant
factor in how Congressional oversight of intelligence was carried out. In an era
of undeclared hostilities it seemed only proper to most members of Congress
that the restraint they had shown toward the Executive Branch during the war
should carry over to this novel-but no less dangerous-age. Oversight of
intelligence was to be no exception.
As a former chairman of the Senate Appropriations Committee noted at
the ime, "[legislative interference wit}i -int lligenzce]wocrld-tend-to-impFnge-
upon the constitutional authority and responsibility of the President in the
1E "Mr. X? [George F. Kennan], "The Sources of Soviet Conduct," Foreign Affairs, July 1947; reprinted in
C. F. Kennan, American Diplomacy 1900-1950 (Chicago: U:.iiv. of Chicago Press, 1951).
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conduct of foreign affairs."" Or, as one scholar has put it a bit more pithily,
"[Congress') World War II motto was said to be 'Trust in God and General
Marshall.' In the Cold War atmosphere ... the attitude seems to have been
'Trust in God and Allen Dulles." 't.,
Formally, Congressional oversight did in fact exist. In the Senate and the
House of Representatives the Armed Services Committees and the Defense
Subcommittee of the Appropriations Committees had authorizing and appro-
priating jurisdiction for the intelligence community. Special subcommittees of
these four committees were formed to handle oversight, with the chairman of
the full committee assuming the chair of the subcommittee.
Substantively, however, oversight was de minimis.15 There were never
more than a few members of either house of Congress actually involved in
intelligence oversight. In fact, because of the leniency of Senate rules govern-
ing committee membership, there were Senators who held seats on both the
Armed Services and Appropriations intelligence subcommittees simultane-
ously. So great was the overlap that during a period in the 1960s, when Senator
Richard B. Russell of Georgia was chairman of both the Armed Services and
the Defense Appropriations Subcommittees, the two Senate intelligence sub-
committees often met and transacted their business as one.
Limited membership on the intelligence subcommittees was matched by
an even more limited number of committee staff to assist them in their delib-
erations. Often no more than the clerk and an assistant had access to the
subcommittee material. As one might expect, the number of subcommittee
hearings held were also limited. Indeed, there were several years where the
"joint" committee of the Senate met only once or twice. According to the CIA,
from 1967 to 1972 it averaged twenty-three annual appearances before congres-
sional committees. The greatest percentage of these appearances was before
committees other than the four intelligence subcommittees.
This pattern of oversight seems generally not to have been a product of
CIA or intelligence community reluctance to appear before the committees or
inform the Congress. The subcommittees were apparently regularly informed
of the most significant covert programs and routinely briefed on the intelli-
gence budget. The mechanism for oversight clearly existed; what was missing
was an interest in using it-or more properly speaking, a consensus that would
legitimize its use. Such major events as the creation of the National Security
Agency, the Defense Intelligence Agency and the merging of the State
Department's Office of Policy Coordination with the CIA's Office of Special
Operations (centralizing clandestine activities within the CIA) were carried out
by executive fiat. In short, while Congress appropriated millions of dollars for
"Statement of Sen. Carl Hayden, cited in Harry Howe Ransom. The Intelligence Establishment
----(Cambridge: Harvard Univ.-Press;-1970); p--I(il.---- -----
" Ransom, Establishment, p. 172.
13 At their most active, the House 'subcommittees' reportedly met with agency officials a half-dozen times
a year, spending as much (or as little) as fifteen to twenty hours in oversight. There was little, if any, record
keeping of formal reporting or staffing, with the exception of budget review.... The pattern in the Senate
was similar." Roy Godson, "Congress and Foreign Intelligence," eds. Lefever and Godson, The CIA and the
American Ethic, (Washington: Ethics and Public Policy Center, Georgetown University, 1979), p. 33.
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the intelligence agencies, their creation and operations were generally under-
stood, for nearly a quarter of a century, as lying within the realm of executive
prerogative.
The year 1947 saw the adoption of the policy of containment. The effect
of the consensus supporting that policy on congressional oversight of intelli-
gence is largely exemplified in the National Security Act of the same year. The
Act created the Central Intelligence Agency, yet one would search in vain
among the various committee reports accompanying the legislation for more
than a passing reference to its establishment.
Isolation and Congress as Semi-Sovereign
From 1947 to the late 1960s the consensus surrounding the policy of con-
tainment was solid. Under the pressure of the war in Vietnam that consensus
began to dissolve as criticism of our military intervention in Southeast Asia
necessarily brought with it questions about the wisdom and the utility ofthe
strategy of containment. This critique was carried on at two levels. On the
first, containment's apparent call to counter every thrust by the Soviet Union
left the US with little leeway to raise tactical and prudential questions neces-
sarily involved in any particular commitment of US power and prestige. A
second and more fundamental critique appeared later in the debate over Vi-
etnam. It held that U.S. intervention was not only tactically wrong but that
intervention per se was, in the words of the former Chairman of the Senate
Foreign Relations Committee, a manifestation of the "arrogance of power." In
short, not only was the consensus upholding the means of containment shat-
tered, so also was the public's resolve to achieve its end.
The Nixon Doctrine and strategy of detente was an attempt to salvage the
goal of containment while jettisoning its unacceptable means. In place of US
intervention and dependence on US military strength, a sophisticated array of
coalitions (China), surrogates (Iran), and incentives (Pepsi Cola) was to carry
the task of moderating Soviet behavior. Sophisticated or not, the Nixon Doc-
trine never stood a chance of gaining public acceptance on an order that
resembled the consensus surrounding containment. Left substantially unaddr-
essed was that larger critique of containment which concerned the legitimacy
of its ends. Indeed, the language used during this period-that of spheres,
superpowers, and balance of power-tended to cast the struggle between the
East and West in terms more appropriate to mechanics than to statecraft. The
Nixon Doctrine exacerbated the very forces of isolation that it had ostensibly
attempted to counter.
As the consensus in support of containment disappeared, so did confi-
dence in the institution most conspicuous in carrying it out. The isolationist
reaction to an active American role in the world implied a diminished role for
the President and the instrumentalities he wielded in support of it. One after
another, presidential prerogatives in foreign affairs were challenged. Presiden-
tial discretion in these matters was greatly curtailed as Congress passed numer-
ous pieces of legislation to make him more accountable to the legislative
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branch.16 A key element in the program to make the presidency less imperial
was the effort to reduce both the resources and autonomy of the intelligence
arm of the Chief Executive.
The impetus to rein in the presidency and American intelligence was
enhanced by a series of revelations and events. In 1971, the Pentagon Papers
were published; in 1972, the Watergate scandal began; in 1973, Agnew re-
signed; in August of 1974, Nixon resigned. One month later, a highly contro-
versial covert action program in Chile was disclosed. Three months later, dur-
ing Christmas week, the New York Times ran a front-page story on what it
called a "massive" domestic intelligence operation run by the CIA.
Immediately upon Congress' return from its holiday recess, both the
House and Senate created special committees to investigate the past and
present activities of the intelligence agencies. The two committees, most
widely known by the names of their respective chairmen, Senator Frank
Church and Representative Otis Pike, were, in the words of the former, after
the "rogue elephant." They were joined in that hunt by the President's own
special commission, known by the name of its chairman, Vice President Ro-
ckefeller. For the next year and a half, the nation was treated to a deluge of
reports from these three bodies concerning the past failures and abuses of the
intelligence community. Among other things, they found: questionable domes-
tic surveillance operations, assassination plans, intercepts of mail and cable
traffic, programs to infiltrate dissident domestic groups, drug experiments on
unwitting individuals, and efforts to topple foreign governments.
In their final reports both the Church Committee and the Pike Commit-
tee recommended a major change in the oversight process. Both called for
thecreation of select, permanent standing committees tasked specifically with
overseeing the intelligence community. In May of 1976, the Senate established
the Select Committee on Intelligence (SSCI) and, a year later, the House cre-
ated its Permanent Select Committee on Intelligence (HPSCI).
Given their inheritance, it is not surprising that the new intelligence com-
mittees initially focused on setting down new rules and creating restraints.
Because the debate about intelligence during the mid-1970s had been con-
cerned principally with examples of improper and/or illegal activities, it was
natural that the agenda for the House and Senate intelligence committees be
the imposition of restrictions on the intelligence community.
Three pieces of legislation, two of which eventually became law, domi-
nated the first few years of the new oversight process. The most important of
these, the Hughes-Ryan Amendment to the 1974 Foreign Assistance Act, had
been enacted into law before the establishment of the intelligence committees.
As with the creation of the committees, Hughes-Ryan was unprecedented. It
was the first law ever passed by Congress which called explicitly for congres-
sional oversight of an activity of a component of the American intelligence
community.
ISee, in general, Allen Schick, "Politics Through Law Congressional Limitations on Executive Discre-
tion," ad. King, Both Ends of the Avenue (Washington: AEI. 1983).
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President Ford signed Hughes-Ryan (P.L. 93-559) on 30 December 1974.
The amendment consisted of two key provisions. The first was that the CIA
could spend no monies on programs not related to the collection of intelligence
(that is, on covert action) until the xhad certified "that each such
operation is important to the national security of the United States." The
second key provision of Hughes-Ryan was that after the President had made
such a finding he was obligated to report it "in a timely fashion" to the "ap-
propriate" committees of the Congress.
The first requirement had the consequence that in the future all covert
activity would clearly be the responsibility of the President. Although the
claim was advanced that internal executive branch guidelines made that the
case already, Hughes-Ryan gave those regulations the force of law. Under
Hughes-Ryan, there would be no room for a repetition of ambiguously author-
ized attempts to assassinate the likes of Fidel Castro; presumably, there is for
presidents no longer any room, for better or worse, for "plausible denial." A
second consequence of the requirement for presidential certification of every
covert action as "important to the national security" is the implication that
presidents are to make covert action an exceptional rather than a characteristic
tool of American foreign policy.
The indirect effects of Hughes-Ryan, were small in comparison with its
direct effect on clandestine activities by its requirement that the "appropriate"
committees of Congress be notified prior to or upon initiation of any presiden-
tially approved covert action. Before passage of Hughes-Ryan, covert action
had been rather loosely monitored by the Congress. Typically, a handful of
senior committee chairmen were informed of major operations. The discretion
as to when or in what detail to brief the Congress lay mainly within the
domain of the executive branch. This discretion largely disappeared with the
passage of Hughes-Ryan. Reporting to the "appropriate" committees was un-
derstood to mean reporting to the full membership of the Senate and House
Armed Services Committees, the Senate and House Defense Subcommittees of
the Appropriations Committees, the House Foreign Affairs Committee and the
Senate Foreign Relations Committee. To these six bodies, both the House and
the Senate Intelligence Committees were added. In sum, under the prescrip-
tions of Hughes-Ryan a total of eight committees were to be informed of each
covert action.
The result was inevitable. As one scholar noted at the time, "Most [covert
actions] ... which have been brought to the attention of congressional com-
mittees pursuant to Hughes-Ryan have become public knowledge." Succinctly
stated, it had "all but ruled out effective covert operations."17
Formally, of course, Hughes-Ryan only required that the committees be
notified of covert operations. Unlike the War Powers Act, Hughes-Ryan made
no mention of a congressional power to veto a President's decision. But having
so many members of Congress in the know virtually guaranteed that proposed
covert programs were not going to stay covert for very long. The result was
that Hughes-Ryan gave any member of the eight committees a virtual veto
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SECRET the power of the timely
covert action through an that the executive
truly controversial hes-Ry discussed
over any not long after the enactment of Hui illing to s
leak. It was rams it was we watching.
ing in the main only Program"
was proposing statecraft gave way to poll-watching.
w come
in public. With regard to covert action, period to come gence in this action was not the only area Ins tells ce Surveillance Act A of 1978,
targeted.
Covert Under the Foreign
under ne restraints. 95-511), domestic, collection was af or-
FISA ~pI tc. of places or persons,
commonly known or terrorism i
A in the
FISH governs electronic surveillantevolved in espionage lace of work can
Uni or merican, believed to rson's domicile or p
before re a US make a case before a special
e
United States. Under FISH, unity must of a special
wiretapped, the intelligence reasons e fo anting to take that action'
standard the
court detailing its the tap.
secret co sue a warrant allowing essentially a criminal
by that case, the judge will ill issue ified in the Act
judge uses to rule on each case is spec probable cause to believe that the
l
Under FISH, there must exist p government,
standard. engaged in clandestine intelligence activities
question is knowingly justified. In short,
before issuance the g
or terrorism q of a warrant is sperson in a US person's phone to gather sensitive intelligence
or cannot tap
under FISA, unavailable.'s
which is otherwise t to pass a comprehensive
of the whole of American i egence. This particular
The era of restraint culminated in the attemp into law. The charter
i0n while Proposed, was never enacted s
charter for govern
set coofrne three
as of legif at Intelligence COmmittee and and ran ran for
rag complex la-
u was ee
p first first draf ted b ted Senate to establish a le ngth acti anvity o f American intelli-
hundred pages. It by the It attemp venal
to rule and restrain every unity Act of 1947 to se
lions and prohibitions
ante. From a few dozen islation, congressional oversight of intelligence
hundred legs in the National
dred pages of charter had evolved from the sublime to the absurd. sad charter rather
ac--Ryan, F1SA and the pTOp? ut the institutions of
Yet, the fact is Hughes distrust and cynicism abo
the prevailing a public both indignant about
Vietnam and oversight of intelligence mss
government curately reflected Watergate produced
. government. Congressional
what was not reflected in a serious or sustained Way `"'
and distrustful of its the intelligence agencies
nosed both. of course, rnpetence of tconcern about the col noted:
sin8 ton has bitingly
an equally pres ting
themselves. As Samuel Hun committees investigating
i In a different atmosphere ? ? ? so
the CIA might have been congressional corn s
curious as to why the and Castro . . . At the
miserably in its efforts to assassinate Lum mbaa bility of the Agency to
time, however] no one was interested in
I and politiCal.situation that
edv to the lets the Attorney
hive rem gr of FICA. The use
rs one could argue that F1SA was enacted as a positive
with regard to domestic electronic surveillance Before Dam
and agents
was then a target of electsuni
existed at the time c surveillance.
no US acitizen all but In order to get the
General reported that. with one exception,
VVlikr
of electronic surveillance for intelligence collection h officers
r ,yits content-
agencies back into the streets (or? in this R oils diflrn of
of courts, is the rxistrncr ?fslhext Iris }d1 Ls a
of the various intelligence a? lain, is br
was required. What this helm explain.
surd to J?dicirl ns'ic" -
FISA roscriDtions cons
complex and restrictive D
animus. SECRET
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do what it was told to do, but only in the immorality of what it was
told to do.19
The Collapse of Detents and a Sense of Relief
Congress never did pass an intelligence charter. The animus for doing so
gradually passed away. In some measure, this was caused simply by the pas-
sage of time and the fact that the intelligence community and the intelligence
committees got to know each other a little better. In place of the charter's
lengthy list of proscriptions and guidelines there was developing within the
oversight process a spirit of comity. This change was perhaps no better exem-
plified than by the Senate Intelligence Committee's decision in 1979 to drop its
Subcommittee on Investigations.
General maturation was not the principal reason for the change in spirit.
Much more important was the growing recognition that detente had collapsed.
A decade of its implementation had not produced a stable, balanced relation-
ship between the United States and the Soviet Union. Angola, Ethiopia, Af-
ghanistan-all supplied more than ample evidence that Moscow's expansion-
istbehavior had not been fundamentally modified by detente and the process
of "normalization." Indeed, if Soviet military expenditures, especially in the
area of strategic weapons, were any indication, then Soviet aggressiveness
could be expected to grow, not lessen. Faced with these facts and rudely
shocked by events in Iran, the American public began to reconsider issues of
national security. Given this change in the public's mood, it is not surprising
that it was reflected in the actions taken by their representatives-including
those charged with overseeing the intelligence community.
If the early years of congressional oversight had set as its agenda the
reining in of the American intelligence community, then the agenda of the
past four years has been, generally, to allow it to regain its former pace. This
program of relief has more or less typified the legislative record of the two
intelligence committees, with one obvious and important exception. Yet even
here, in the wake of the debate over Nicaragua, both the Senate and the House
have passed legislation exempting the operational files of the CIA from the
normal search and review requirements established under the Freedom of
Information Act.
The year 1980 appears to have been pivotal for this change of agenda. In
1980 Congresss passed the Classified Information Procedures Act (P.L. 96-456),
also known as the "greymail" act. This bill established new procedures for the
introduction and protection of classified information in trials. In the past,
threats by defendants to subpoena volumes of classified information and ex-
pose that information in legal proceedings had, it was claimed, forced the
government and the intelligence agencies to drop a prosecution. With passage
1? Samuel P. Huntington, American Politics: The Promise of Disharmony (Cambridge Harvard Univer-
sity Press, 1981). P. 191.
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of the act, blackmailing the government into dropping such cases became less
of a problem.20
The year 1980 also. saw the introduction of the Intelligence Identities Pro-
tection Act, enacted into law (P.L. 97-200) two years later. This legislation
made it a crime for any person to seek out and publicize the names of Amer-
ican intelligence agents. Despite the fact that the law applied to journalists as
well, itpassed both houses with overwhelming majorities.
The most important legislative event of 1980 was the passage of the Intel-
ligence Oversight Act (P.L. 96-450) which as Title V of the National Security
Act became law on 14 October. The act was noteworthy for two reasons. First,
it amended Hughes-Ryan. The key change was that the number of committees
to which the President was required to report covert operations was reduced
from eight to two: the intelligence committees of the House and Senate. Other
provisions were added which allowed the President to act, if circumstances
warranted, with greater dispatch and secrecy. The President could now limit
prior notice of covert action to the leadership of the House and Senate and the
ranking members of their intelligence committees. If he so desired, the Presi-
dent could dispense with prior notification altogether so long as he reported his
actions in a "timely fashion" and provided a "statement of the reasons" for
dispensing with the prior notice. The second noteworthy aspect of the Intelli-
gence Oversight Act lay in the fact that it made a matter of law the principle
behind Hughes-Ryan, the legitimacy of congressional oversight in these mat-
ters. While the act itself was unprecedented in that it codified that principle, it
nevertheless was understood to be a measure of some comfort to the intelli-
gence community.
The Oversight Act was, in quantity and quality, much different from two
charters introduced by the Senate Intelligence Committee. Even the more
moderate of the two documents was nearly 200 pages in length; what emerged
as law covered all of two pages.
The Intelligence Oversight Act established four basic obligations for in-
telligence officials. The first was that they keep the two intelligence commit-
tees "fully and currently informed of all intelligence activities." The second
outlined the revised notification provision concerning covert activities previ-
ously noted. The third prescription in the act was that the intelligence agencies
were to "furnish any information" deemed necessary by the oversight com-
mittees to carry out their responsibilities. The fourth, and final, obligation
concerns illegal or failed intelligence activity: both are to be reported to the
committees in a "timely fashion."
These obligations are themselves bound by provisions which recognize the
legal and constitutional duties of executive branch officials. For example, after
enumerating the various reporting requirements, the act directs the House and
the Senate committees to establish procedures, "in consultation with the
so As with FISA, there were mired motives behind passage of the Classified Information Procedures Act.
While the substantive thrust of the act was to grant some relief to the government in protecting classified
information, the act was also supported by some as a measure that might facilitate prosecution of active or
former intelligence officers charged with some wrongdoing
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Director of Central Intelligence," to protect the classified information that is to
be given. Equally important is the preamble to the specific mandates of the
act. There the need to protect classified information and information "relating
to intelligence sources and methods" is confirmed. Additionally, the preamble
acknowledges the "duties" conferred by the Constitution upon the executive
and legislative branches of the government.
When compared with the various proposed intelligence charters the In-
telligence Oversight Act of 1980 is, both in substance and tone, more moderate.
In place of congressional oversight's becoming dominated by legal particulars,
it became a matter more of comity between the branches. In general, passage
of the act was, for the intelligence community, a matter of relief.
The Committees and the Elements of Intelligence
The literature on congressional oversight and the committee system is,
with some notable exceptions, generally governed by models constructed from
"interest group" theories. According to these models, the essential role played
by Congress and the committees is that of facilitating the process by which the
various interests of the society are aggregated and adjusted. The principal
activity of the Congress and its parts, then, is to haggle over, bargain about and
divvy up the federal pie for the constituents back home. Congressmen are
understood to be principally brokers.
While not completely without merit, this view of Congress and the over-
sight process is hardly sufficient. As Arthur Maas has written: "Much of what
Congress and the President do cannot be described adequately by using these
models;" they are often "insufficient" and "misleading."21 This strikes one as
generally true with regard to congressional oversight in the area of foreign
affairs. While social and economic interests may well play some role in deci-
sions on such matters as the Panama Canal Treaty, SALT II, or a military
assistance bill for El Salvador, most members of a committee involved in the
legislative process will base their judgments on factors other than the subpoli-
tical. This seems to be particularly true for the process of congressional over-
sight of intelligence activities. Put crudely, since most of the oversight process
in this area takes place behind closed doors, there accrues to the Representa-
tive or Senator on an intelligence committee little of the traditionally under-
stood advantage of using his seat on the committee to serve the home district
or state.
A more straightforward model of Congress and congressional oversight is
one based on the proposition that Congress' principal function in this area is to
reflect and refine the views of the population. It should be both representative
and deliberative.
The Committees
Today the primary institutional forms through which that process is to
take place in the area of intelligence are the House Permanent Select Com-
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mittee on Intelligence and the Senate Select Committee on Intelligence.22 To
understand how they both might reflect and refine public opinion on intelli-
gence, a closer look is required.
Before examining the committees and how they do or do not fulfill those
functions, however, one is obliged to note the revolutionary nature of the now
generally accepted assumption that committees should be so engaged. Prior to
1976, there were no permanent, standing committees dedicated uniquely to
overseeing the intelligence community. Notwithstanding Congress' stature as
the most powerful legislative body in the world, it had never exercised its
oversight powers so directly before. In fact, this arrangement was revolution-
ary not only in the United States but in the rest of the world as well; no other
legislature had ever created such an entity.
Not that the idea of creating an intelligence committee was all that new.
As early as 1948, a motion was made to establish a joint committee to oversee
intelligence. Yet it, like the nearly one hundred-fifty similar proposals made
over the next quarter of a century, never had the slightest chance of passing.
Indeed, only two motions ever made it to the floor; both were soundly defeated
by margins of more than two to one.23
The first seriously considered proposal to establish an intelligence com-
mittee was put forward by the Rockefeller Commission in its final report. In
February of 1976, President Ford advanced the Commission's recommenda-
tion of a joint committee in a message to Congress. Ford's recommendation,
however, was made not much in advance of the Congress' own. In 1975, both
the House and the Senate had established temporary select committees to
investigate the perceived abuses of the intelligence community. By early 1976,
it was clear that both the Church Committee and the Pike Committee would
urge their respective chambers to create standing, permanent intelligence
committees.
The Church Committee's final report (S.Rept. 94-755) was issued in April
of 1976. As expected, it did call for the creation of a Senate committee specif-
ically charged with the oversight of intelligence. Within a month, on 19 May,
by a vote of 72 to 22, the Senate established, under S.Res. 400, the SSCI. With
the possible exception of a Tower-Stennis proposal to delete from the new
committee's jurisdiction the intelligence activities of the Department of De-
fense, no serious challenge to the new committee was raised. Even here, the
vote against deletion was by a margin of two to one.
The House, largely because of the turmoil surrounding its rejection of the
Pike Committee's final report and the subsequent publication of large seg-
s HPSCI maintains three subcommittees: Legislation; Program and Budget, and Oversight and Evalua-
tion. The SSCI has four subcommittees: Analysis and Production; Budget; Collection and Foreign Operations;
and Legislation and the Rights of Americans.
13 On 1I April 1956, Senate Concurrent Resolution 2, a resolution to establish a joint committee, was
defeated by a vote of 59 to 27. Among its list of 33 co-sponsors were Senators Mansfield. Jackson, and Ervin.
A decade later, on July 14, Senate Resolution 283, a resolution to establish a setxsrate Senate intelligenm-e
committer, was, on a point of order, defeated by a vote of 61 to 28 Only four senators who had previously
voted for the joint committee voted for the Senate committer also. Most notable among the four was Senator
Fulbright.
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ments of it in the Village Voice, took almost a year longer to establish an
intelligence committee of its own. On 14 July 1977, by a vote of 247 to 171, it
passed H.Res. 658 creating HPSCI.
While there are some important differences between H.Res. 658 and
S.Res. 400, the critical fact is that both committees are given by their respec-
tive charters legislative, investigative and authorizational authority for all of
the intelligence community. Each is to exercise exclusive jurisdiction over the
CIA and the Director of Central Intelligence; each shares jurisdiction over the
rest of the community (NSA, DIA, and the intelligence components of the
Department of Defense, State, Treasury, Justice and Energy) with the Armed
Services, Foreign Relations/Affairs and Judiciary Committees of both houses.
The resolutions mirror each other in other respects as well. A key point is
that both intelligence committees are "select" committees. Members are cho-
sen by the majority and minority leaders of the House and Senate. The ma-
jority and minority leaders also serve as ex officio, although nonvoting, mem-
bers of their respective committees. With regard to the professional staff, again
the resolutions are the same. All employees of the two intelligence committees
are required to sign secrecy agreements and be cleared in a manner "deter-
mined ... in consultation with the Director of Central Intelligence."
H.Res. 658 and S.Res. 400 also establish elaborate procedures for declas-
sifying information. While neither resolution finally gives up it chamber's right
to declassify information, the procedures, formally at least, make the exercise
of that right quite unlikely. The two resolutions also require the HPSCI and
the SSCI to maintain "crossover" members from the Armed Services, Foreign
Relations/Affairs, Judiciary and Appropriation Committees. The difference
between the charters here is that S.Res. 400 mandates that there be two "cross-
over" members from each of those committees and that the two be split be-
tween the majority and minority parties; H.Res. 658 requires only one "cross-
over" member from each of those committees and there is no mention of
bipartisanship.
The resolutions also speak of rotating to the greatest extent practicable"
a substantial portion of the committee membership each new congress. From
the HPSCI's total of fourteen, the number is four; from the SSCI's total of
fifteen, the number is five. Finally, both H.Res. 658 and S.Res. 400 establish
bounds on the length of time a senator or representative may remain on the
intelligence committee. For members of the HPSCI, the limit is six years; for
Similarities aside, there are significant differences between the two reso-
lutions.
One such difference is that under S.Res. 400 the SSCI's jurisdiction does
not extend to include tactical military intelligence. H.Res. 658's andate to the
HPSCI is broader and is understood to cover that facet of intelligence.
The most important difference between S.Res. 400 and H.Res. 658 is that
the former attempts to create a bipartisan committee while the latter makes no
such effort. Unlike the typical Senate committee, the ratio of majority to mi-
nority members on the SSCI is not distinctly disadvantageous to the minority.
reserved for members from the minority side of the aisle. Also, the next rank-
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ing member on the SSCI after the chairman is not, as is normally the case, a
member of the majority party. Under S.Res. 400, the next ranking member is
a member of the minority and is titled vice chairman. In the Chairman's
members of the SSCI, eight.24Of its fifteen members, the SSCI has seven seats
absence, he is acting chairman.
The Senate's decision to establish the SSCI on a bipartisan basis was pred-
icated in large measure by its judgment that if the intelligence agencies were
to regain their feet then future activities had to rest on the widest consensus
possible. The bipartisan makeup of the SSCI was designed to establish that
basis. As one of the authors of S. Res. 400 noted, the SSCI was meant to "reflect
the composition and philosophy of the entire Senate."2s
In this regard, the difference between the SSCI and the HPSCI could
hardly be greater. Of the latter's total membership of fourteen, nine are from
the majority. Implictly or explicitly, no mention is made of bipartisanship in
H. Res. 658.
Coming as it did a year after the passage of S.Res. 400, the House
resolution's omission of the earlier document's. bipartisan features stood out
clearly. As expected, their absence in H. Res. 658 was a matter of considerable
dispute. Representative John Rhodes, then Minority Leader, strongly objected
to the lack of "any provision establishing bipartisan membership" for the new
committee. Rhodes' objection did not go unchallenged. Representative Ri-
chard Bolling, Chairman of the Rules Committee, which had reported H.Res.
658, rejoined: "The gentleman ... knows that matters of intelligence ... in-
volve policy ... it is only reasonable for us to follow the mandate of the
American people in our election to the House of Representatives on policy
matters. "26
Elements of Intelligence
That the committees reflect the generally dominant views of the public
with regard to intelligence seems true enough from our earlier discussion.
What is far less clear is how the two intelligence committees refine those views,
a' With the end of the 98th Congress, both the SSCI and HPSCI face a significant turnover in membership
if the time limit on serving on the committees is neither changed nor ignored. Nine of the SSCI's 15 members
will have reached that limit at the end of this session, including the Chairman (Senator Barry Goldwater) and
the Vice Chairman (Senator Daniel Patrick Moynihan). On the House side, HPSCI stands to lose 7 of its 14
members, including the Chairman (Rep Edward P. Boland) and its ranking minority member (Rep. J.
Kenneth Robinson).
as Congressional Record (May 13, 1976), p. 57275. The desire to maintain as broad a base as possible on the
SSCI has been reinforced by the composition of its staff. Under the rules of the committee, the professional
staff works for the committee as a whole. However, since its earliest days, each member has had the power
to designate one individual to serve on the professional staff. As a result, most of the professional staff serve
at the pleasure of a particular senator. Not surprisingly, "committee" work often takes a back seat to the needs
and agendas of the individual members. The size of the professional staff is normally in the mid-20's
as Congressional Record (July 14,1977), p. H22942. In contrast to the composition of the SSCI professional
staff, HPSCI's professional staff is composed principally of "nonpartisan" appointments hired by and
reporting to the chairman. While the staff, like the SSCI's, is also under a mandate to work for the committer
as a whole, the hiring and firing practices of HPSCI make it clear that most of the staff works for the chairman.
The size of the professional staff is normally a little over ten.
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how they as committees affect the essential elements of American intelli-
gence-collection, analysis, and covert action.
Collection
Discerning the effect of oversight on the collection of intelligence is no
easy matter. There is a paucity of public sources upon which one can draw to
make one's case. This fact is itself significant. The lack of leaks and public
reports, suggests a general lack of interest in this element of intelligence on the
part of the two committees. With little at immediate stake politically, it is not
surprising that the intelligence committees have generally turned their atten-
tion elsewhere.
Two exceptions exist to this pattern of behavior. The first is that the
budget process has in the past generated discussion and review of individual
components of the collection process. Typically, however, this review is single-
member driven or produced by the need to trim the authorization package
back to an acceptable level. The second exception to the attention generally
given to collection by the committees is tied to major ongoing political debates
(SALT II) or to events in which American lives may have been lost due to what
is perceived to be poor collection (Beirut). While perhaps not unusual for the
Congress, there is much in the way that the two intelligence committees over-
see collection that is ad hoc in nature. ,
It is possible to argue, of course, that the reason why collection has not
been given more attention by the committees is that all is healthy. Yet this
appears dubious on its face. For example, it is well known that most of
America's intelligence collection effort is targeted at the Soviet Union; it is also
known that much of that effort, at least in terms of dollars spent, is technically-
based. Yet within the past decade, according to press accounts, three major
and essential collection platforms have been compromised through espionage:
ELINT, Boyce-Lee; IMINT, Kampiles; and COMINT, Prime. One would as-
sume that, given these events, a thorough and resounding debate on the state
of American collection capabilities vis a vis the Soviet Union would be in
order. There is no evidence that this has in fact occurred in either the SSCI or
the HPSCI.
If the committees have not thought it necessary to review the state of
intelligence collection on America's prime adversary, it is not surprising that.
there is little evidence that either committee has ever in a methodical manner
addressed the most fundamental question in the area of collection-which is,
what is it that we actually want collected. It is obvious but insufficient to say
-"intelligence." It is no longer clear exactly what is meant by that term. There
are, in fact, two types of intelligence being collected today, each distinct and
each with its own advocates in the intelligence community and on Capitol
Hill. The first type is the kind of specialized, sensitive information we tradi-
tionally associate with cloak and dagger; the second type is the kind of general,
macro-level information about countries and the world generated by the social
sciences. Within the American intelligence community these two conceptions
of intelligence compete with each other for resources and attention. In order
for the intelligence committees to resolve that competition in a reasonable
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manner, it would seem essential that at some point they engage in some form
of debate about the relative merits of each. That neither committee seems to
have undertaken such a debate is further evidence that its oversight in the area
of collection is unsystematic and largely event-driven.
This reactive approach persists even in the area of domestic collection
where constituent concerns about civil liberties sharpen a Senator or
Representative's political sensibilities. Under the terms of the Foreign Intelli-
gence Surveillance Act (FISA), the Attorney General is required to brief the
two committees fully twice a year on all electronic surveillances conducted in
the United States for purposes of intelligence collection. What is unique, and
helpful for the student of the oversight process, is FISA's requirement that the
SSCI and HPSCI report annually on the first few years of the act's implemen-
tation and include in that report an analysis of its functioning.
HPSCI has issued its fifth and final report. In none of HPSCI's reports has
it recommend any amendment to FISA. The clear impression is that the com-
mittee is satisfied with the act's implementation and operation. The SSCI has
also issued its fifth and final annual report. As with the HPSCI, the SSCI has
not recommended a single change to FISA.
In general, the issues raised in the annual reports have been quite minor,
ranging from "certain paperwork problems" to "inadvertent" irregularities
during the execution of an electronic surveillance. The most serious question
posed by the committees' reports has centered on FISA's utility as a legal basis
or model for authorizing physical search techniques. In none of the reports is
there more than a hint that the committee has reviewed the implementation of
the act with an eye to determining its effect on the collection of foreign intel-
ligence or counterintelligence and whether that collection was in any way
adequate. While both the SSCI and HPSCI, according to their reports, thought
it necessary to do more than take the word of executive branch officials with
regard to the act's requirement that dissemination among agencies of informa-
tion concerning US persons be minimized, they t ok at face value the state-
ment of FBI Director William that FISA "has not had a deleterious
effect on our counterintelligence effort."
It is difficult, after reading FISA and seeing the various complexities and
hurdles it constructs, not at least to wonder about its inhibiting effect on the
collection of intelligence. At first glance, it appears that whatever effect FISA
is having, it is not that. To date, out of the hundreds of applications made to
the special courts by the Department of Justice, not a single one has been
rejected. For many, this is a sign that the judges of the FISA court have
become a "rubber stamp" for the executive branch. But in theory, it is equally
possible that instead of executive initiative over whelming judicial restraint,
judicial restraint has infused itself into the collection process. The very exist-
ence of the court has probably compelled the Justice Department to "scrub"
its applications so thoroughly that only the clearest cases are put forward for
the FISA judge to review.
It would seem reasonable to expect the two intelligence committees to
sharply question this statistical anomaly. But neither has. Both committees
would undoubtedly be alarmed if a large percentage of FISA applications
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were were rejected by the court. That a similar concern has not arisen over the
fact that not a single FISA request has ever been turned down is telling.
In general, concerted congressional interest in collection has been episodic
and largely driven by political concerns of the moment. Even in those in-
stances when committee oversight is exercised on a more systematic basis, it
leaves much to be desired.27
Analysis
The effect congressional oversight has had on intelligence analysis is dif-
ficult to measure. Neither of the two intelligence committees can be said to
have ignored this area. For example, during reviews of the intelligence
community's budget, changes in either manpower or dollar levels are made to
strengthen or weaken specific analytic fields. Typically, these changes will
reflect the strong desires of a particular member. Some of the changes have
been substantial, others less so. Yet the total direct effect on the analytic ele-
ment of the community is far from clear.
Perhaps the most important impact of the new oversight process on anal-
ysis derives from the two committees having become themselves major "con-
sumers" of finished intelligence. With rare exception, the bulk of the analytic
product is now available to the SSCI and the HPSCI. Certainly, all National
Intelligence Estimates are.
It is easy to speculate that this constant committee perusal of the
community's product increases the likelihood of its politicization. Surely in an
area where policy is in dispute a President or his representative, the DCI, has
a strong incentive to ensure either by heavy-handed or subtle means that the
finished intelligence does not undermine the administration's stated position.
Any politicization that occurs, however, probably is much less dramatic.
As the committees have become consumers, Congress has begun to see the two
intelligence committees as its own independent repositories for sensitive infor-
mation. Given its expanded role in the conduct of foreign affairs, Congress will
undoubtedly use the committees to review, challenge or validate intelligence
assessments that underlie key executive branch policies. Two past examples of
this phenomenon are the SSCI's 1979 report, "Capabilities of the United States
to Monitor the SALT II Treaty," and the HPSCI's 1982 report, "U.S. Intelli-
67 A representative sample of committee oversight of FISA is the Senate Intelligence Committee's final
report "The Foreign Intelligence Surveillance Act of 1978: The First Five Years." U.S. Senate, Select
Committee on Intelligence, Report 98-660, Oct. 5, 1984. In the report's twenty-six pages, not a single
paragraph can be found which indicates that the committee made an independent assessment of the impact
FISA has had on domestic intelligence collection. On the other hand, numerous pages are dedicated to
reassuring the public that under FISA "Big Brother" is not listening. The single-mindedness of the oversight
process in this area of collection is exemplified by the first sentence of the report's final paragraph "The
Committee considers its oversight role to be an integral part of the system of checks and balances that is
necessary to protect constitutional rights."
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gence Performance on Central America."28
Such reviews have their effect. Like any set of bureaucrats, intelligence
analysts become set in their opinions and adopt "house" positions, Once these
positions have been established, individual reputations and institutional inter-
ests make it difficult for contrary views to be heard. Because the committees
offer a readership with a wide range of political views for these products,
assumptions are inevitably questioned and conclusions challenged. There is
much to be gained from a process in which analysts and agencies are required
to defend in a more exacting manner their "pet" positions.
On the other hand, there are dangers here. Not every analyst or agency
will rise to the challenge. When faced with the committees' wide range of
opinionated readers, it is equally possible that the analyst or agency will be
tempted to turn out a product that least offends the greatest number. This, of
course, only exacerbates the well-known problem within the analytic commu-
nity of consensus-produced estimates.
In general, it is unlikely that serious oversight of the analytic process is
possible if the committee's principal manner of proceeding is to challenge
areas of analysis on a seemingly random, case by case basis. At best, such case
studies raise the level of analytic reasoning in a particular area for some lim-
ited amount of time. More likely, they quicken bureaucratic instincts.
Yet, to date oversight has been carried out in precisely this manner. Both
committees have undertaken a handful of case studies on diverse topics.
Among the subjects reviewed have been the fall of the Shah, the oil crisis of
1973-74, the expulsion of the Marielitos, and Soviet oil production. As is sug-
gested by this sample, the committees characteristically examine an issue after
it has become a matter of public concern or dispute.
The most recent HPSCI case study was a sharp critique of analysis on
selected issues pertaining to El Salvador and Nicaragua. Despite its title, "U.S.
Intelligence Performance on Central America: Achievements and Selected In-
stances of Concern," the report left no question that the committee saw far too
few achievements and much about which to be concerned. Some of its specific
criticisms were that the community had at times overstated its findings in
regard to external support to the Salvadoran insurgents, that it seemed to have
little interest in or grasp of rightist violence in El Salvador, that it was overly
simplistic in its analysis of the conflict between the Miskito Indians and the
Sandinistas, and that it sacrificed its more reasoned judgment about the Nica-
raguan military buildup to rhetoric. What praise the report did hand out was
in reference to the community's analysis of the organization and activities of
the Salvadoran guerrillas and its "detection" of assistance to thee insurgents by
Cuba and other communist countries. Even so, the praise was faint since the
report's final judgment was that there were signs that the analytic "environ-
U U.S. Senate Select Committee on Intelligence, "Principal Findings of the Capabilities of the United
States to Monitor the SALT 11 Treaty," Committee Print, October 1979 U.S. House of Representatives,
Permanent Select Committee on Intelligence, Subcommittee on oversight and Evaluation, "U.S. Intelligence
Performance on Central America: Achievements and Selected Instances of Concern.- Committee Print,
September 22, 1982.
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went" was under pressure to reinforce policy rather than to inform it." Left
unsaid, but` clearly implied, was that the community's "achievements" were
the result of the administration's particular policy concerns.
Opponents of the Reagan Administration's policies in Central America
were quick to praise the report; supporters just as quickly denounced it. De-
bate was heated. Retired Admiral Bobby Ray Inman, who had become a
consultant to HPSCI after leaving the Deputy DCI position earlier in the year,
felt obligated to resign as a consultant to protest its publication. Whatever the
report's merits, it produced results which were sharply partisan. HPSCI's re-
port on Central America is markedly different from the SSCI's report on per-
haps the most important analytic effort of the last decade, the President's
Foreign Intelligence Advisory Board's (PFIAB) competitive examination of the
National Intelligence Estimate on Soviet strategic capabilities, the so-called
"A-B Team" experiment.29 HPSCI's report raises substantive concerns; in con-
trast, the SSCI's document is void of any substantive discussion of the findings
of the A-B Team effort.
The Senate report begins with the statement that its purpose is to assess
"whether the A-B experiment had proved to be a useful procedure in improv-
ing National Intelligence Estimates (NIEs) on a centrally important question."
Its conclusion was that review of NIEs by outside experts is generally useful. It
also concluded, that in this particular instance the review was "less valuable"
than it might have been.
Most of the reasons the SSCI report gives for this judgment are minor in
nature and essentially procedural in character. For example, it faults PFIAB's
B Team for reviewing more NIEs on Soviet strategic capabilities than had
originally been agreed upon with the DCI. The report also objects to the fact
that the experiment itself was leaked to the press and that the "agencies need-
lessly allowed analytic mismatches by sending relatively junior specialists into
the debating arena against prestigious and articulate B Team authorities."(!)
What the reader does not find in the SSCI report is any discussion of the
merits of the B Team's findings or any analysis of its arguements. The
document's drafters might claim that it was not the committee's intent to
resolve the debate between the community and the PFIAB. Nevertheless, it is
difficult, if not impossible, to discuss the usefulness of any analytic experiment
independent of some assessment of the arguments themselves.
The very different tenors of the two committee reports reflect, of course,
the difference in the committees' respective constitutions. The majority- dom-
inated HPSCI might naturally be expected to produce a critique with a par-
tisan edge; the bipartisan SSCI to shy away from divisive analytic disputes.
Obviously, neither is finally satisfactory.
a" U.S. Senate Select Committee on Intelligence, Subcommittrr on (;ollrction. Pn'iuction, and Oualits,
'The National intelligence Estimates A-B Tram Episialr Concerning Soviet Strategic Capabilil) and
Objectives," Committee Print. February 16. 1976.
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Covert Action
Covert action (sometimes referred to as "special activities") is defined by
the law as "operations in foreign countries, other than activities intended solely
for obtaining necessary intelligence." This definition, which tells you what
covert action is by telling you what it is not, obviously implies that under the
rubric of covert action lies a wide range of options. Covert action is a tool of
foreign policy which can be either carrot or stick, mundane or not. It may
simply consist in planting a news story in another nation's press or it may
encompass the training, arming and. employment of a paramilitary operation.
Covert action, in short, may be used to change a government's behavior or to
change a government altogether.
Formally, the reforms of the mid-1970s left the President's discretion to
use covert action intact, the only exception being the Clark Amendment of
1974 (P.L. 94-329) which prohibits clandestine assistance to the insurgents
fighting in Angola. The only other prohibition is a self-imposed one against
assassination. While the SSCI and HPSCI are to be informed and briefed on
every presidential finding, they have no advise and consent responsibility.
Nevertheless, in practice the two intelligence committees may exercise a
great deal of influence. The most direct formal control the committees have
over covert programs is through the budget process, as every covert operation
is subject to specific authorization by the committees. The second form of
control is much less direct, but nonetheless significant. The possibility that an
individual member might exercise a "legislative veto" by leaking a particular
program to the press can-and does-inhibit the options put forward by the
executive branch. In short, while a president, under the law, has at his disposal
wide discretion in employing a variety of "special activities," he has in fact a
more limited number of options. Only noncontroversial findings remain cov-
ert.
The Reagan Administration's reported covert support for the anti-
Sandinista insurgents is a case in point.3OAccording to press accounts, the Pres-
ident apparently signed the requisite funding in December of 1981.31 In short
order, the stories were out.32
In some sense this was only too predictable. The controversy' generated by
the State Department's White Paper on "Communist Interference in El Sal-
vador," published less than a year previously, clearly indicated a serious lack
of consensus regarding the strategic problems facing the US in Central Amer-
ica. Ironically, it was perhaps the very absence of a consensus that would
precipitate a decision to challenge the Moscow-Havana-Managua nexus with a
?i' "A Secret War for Nicaragua," Newsweek, No%. 8, 1982.
31 "Secret War," Newsweek, p. 44
""Reagan Backs Action Plan for Central America," The Washington Post, Feb 14, 1982. p Al; "U.S.
Approves Covert Plan in Nicaragua," The Washington Post, March 10, 1982, p. Al. As is typically the case.
the administration then attempted to get its side of the story out The result: ("according to senior
Administration officials") "U.S. Reportedly Spending Millions to Foster Moderates in Nicaragua," The Neu,
York Times, March II, 1982, p. Al. "U.S. Said to Plan Covert Actions iu Latin Region." The Neu, York Tinues,
March 14, 1982, p. Al.
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covert program.33According to Alexander Haig's account in Caveat, he was
"virtually alone" among the President's senior advisers in suggesting that the
US bring its "overwhelming" military power "to bear on Cuba in order to treat
the problem at its source." The other camp favored, according to Haig, "a
low-key treatment of El Salvador as a local problem and sought to cure it
through limited amounts of military and economic aid ... along with certain
covert measures."34 If true, it would seem to be a classic example of covert
action's being used as "a 'safe' option-something between diplomacy and
sending in the Marines-but in effect as a substitute for policy itself."35
More than a year and a half would pass before President Reagan would
make a nationally televised address before a joint session of the Congress on
the Administration's policy in Central America.
Predictably, in the absence of a policy publicly articulated by the Presi-
dent, the apparent tacit support initially given by the SSCI and the HPSCI
began to unravel. As noted previously, from a congressman's point of view the
normal political benefit of being a member of an intelligence committee is
small. The major problem he faces is the exposure of a sensitive, perhaps
embarrassing, and often misrepresented covert program. Not free under the
rules of secrecy established by each committee to defend his position or the
reasonableness of a particular program in any adequate manner, the member
is bound to feel politically exposed. For this reason the committees will tend to
act as a brake on covert programs.36
The two committees do not exercise this power in the same manner, as is
apparent in their respective handlings of the Nicaraguan program. The Senate
committee has addressed this issue in a fashion consonant with its composition
as a bipartisan body, one which is intended to "reflect the composition and
philosophy of the entire Senate." As reported by the press and the committee
itself, the SSCI forced the Administration over the spring and summer of 1983
0 "Early on in the crisis, it was decided that problems with Cuba and Central America should not become
'ptresldentia),' according to two senior Reagan advisors, who calculated that there was much political risk and
little potential gain in the military and political crises of the region.... A tide of protests ... poured in to
the White House over Central American Policy. Richard Wirthlin, the presidential pollster, reported a sharp
and sudden drop in presidential popularity." "Central America: The Dilemma," The Washington Post,
March 4, 1982, p. Al.
w Alexander M. Haig, Jr., Caveat (New York: Macmillan. 1984), pp. 128-29. "Some officials, led by
then-Secretary of State Alexander M. Haig, Jr., favored a naval quarantine of Cuba and Nicaragua, but the
Pentagon was leery. As the result of a National Security Council meeting on November 16, 1981, Reagan
approved a 10-point program including economic and military aid to friendly nations, U.S. eontingencs
planning and military preparedness-but no U.S. military action. One of the 10 points, according to NSC
records, was to 'work with foreign governments as appropriate' to conduct political and paramilitary
operations 'against the Cuban presence and Cuban?Sandinisla support infrastructure in Nicaragua and
elsewhere in Central America."' "U.S.-Backed Nicaraguan Rebel Army Swells to 7000 Men." The Wash-
ington Post, May 8, 1983, p. Al.
ad Malcolm Wallop,-U.S. Covert Action: Policy Toul or Policy Hedge?" Strategic Reosew, (Summer 1984),
p. 10.
n A useful history of this tendency can be found in "Report of the Select Committee on Intelligence,
United States Senate, January I. 1983 to December 31, 1984." U.S Senate Select Committee on Intelligence,
Report 98-665. October 10, 1984, see, "History of Nicaraguan Program," p Off. One result of the eontrovers)
generated by this program has been the further formalization of the reporting process of covert activities bn
the CIA to the two committees. On the nature and content of this new process, see "Covert Action Reporting
Procedures," ibid. pp 13-15.
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to rewrite the presidential finding authorizing covert activity in Nicaragua-37
While the Senate committee apparently agreed to continued support of the
paramilitary operation, it did so by reaching a consensus, a middle position,
between those willing to see the Sandinista regime overturned and those gen-
erally disinclined to support paramilitary actions at all. The result was a pro-
gram which foreswore the former but maintained the program as a means of
bringing pressure to bear on the Sandinista regime to end its "subversion in
neighboring countries."38 It was a compromise which produced a program still
large enough to be controversial in nature but probably not large enough to be
decisive.
The House Intelligence Committee, unburdened by the institutional
norms of bipartisanship, could act in a straightforward and decisive manner.
Partisan in its composition, HPSCI was a ready vehicle from which to chal-
lenge a program that lacked any semblance of majority support. Since 1983,
the HPSCI, in concert with the Democratic leadership, has voted repeatedly to
end any support to the Nicaraguan insurgents.
The one exception to this voting pattern was the HPSCI's reported ulti-
mate approval of $24 million for the paramilitary program for FY 84.39 This
exception can perhaps be explained by the fact that, while there was no public
mandate in support of the program, neither was there a clear mandate to end
it and suffer the consequences ending it might bring. Also, the House found
itself in a legislatively difficult position. Essentially, the House was willing to
hold up passage of the intelligence authorization bill over its position on the
Nicaraguan program. However, it had to be willing as well to frustrate adop-
tion of the Defense Appropriation Act, which contained the authorized appro-
priations for the program. Politically, holding up the former, given its rela-
tively small and secret numbers, over one highly visible issue is not nearly as
difficult as tying up all of Department of Defense appropriations over the same
issue. Finally, the House conferees broke and accepted the Senate position, but
with the additional-and later, as funds ran out, crucial-proviso that spend-
ing for the program be capped at $24 million.
For FY 85, the House appeared to face a similar legislative dilemma. If
the House conferees were to maintain their opposition to the program, they
did so at the risk of holding up a "catch-all" appropriations bill required to
finance most of the government for the next twelve months. The administra-
tion faced a dilemma as well; the first Tuesday in November was only a month
away. The White House obviously figured that the political cost of having to
shut down the government for an extended period-solely in order to save the
07 Ibid. P. 6. "U.S.-Backed Nicaraguan Rebel Army Swells to 7000 Men," The Washington Post, May 8.
1983, p. Al. "New Justification for U.S. Activity in Nicaragua Offered," The Washington Post, Sept. 21, 1983.
p. A29. "Shultz States New Case for Covert Aid to Rebels," The Washington Post, Sept. 22, 1983. P. A33.
"Panel Approves Nicaraguan Aid," The New York Times, Sept. 23, 1983, p. A4.
as "Aid to Nicaragua Rebels Backed." The New York Times. Sept. 21. 1983, Sec. A, p. 4
30 "See. 108. During fiscal year 1984, not more than $24 million of the funds available to the Central
Intelligence Agency ... may be obligated or expended for the purtxrse or which would ba%' the eflect of
supporting ... military or paramilitary operations in Nicaragua." P.L. 98.215
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program-was too high. The result: the House prevailed and aid to the Nica-
raguan insurgents was banned for five months.*?
HPSCI's opposition to the program, its later acquiescence, and its final
victory are examples of that committee's tactical flexibility. As the political
advantage or liability of its position becomes clear, the House committee is
able to shift its position accordingly. While the SSCI often reflects a broad but
somewhat flaccid unanimity, the HPSCI just as often reflects a narrower but
more partisan-edged consensus.
To state the obvious, covert programs today do not fare well when they
operate outside the pale of consensus. It is equally obvious that world events
may run in advance of a well-grounded and publicly articulated policy. A
nation's foreign environment may be outside its control; friends in battle may
overnight become one's enemies. As a result, the contingencies of foreign af-
fairs may easily outstrip the consensus that ordinarily must exist if a democ-
racy is to pursue a policy. Most of the time this does not pose much of a
problem. At other times, however, the stakes may be very large. Given the
general tendency in the current system of congressional oversight to pull cov-
ert action into directions on which there is little debate, the question arises as
to whether, in inhibiting imprudent risk-taking, it may also inhibit necessary
risk-taking.
Conclusion
. Congressional oversight of American intelligence has on the whole been
uneven in character. On the one hand, reports of a CIA program to support
the insurgency in Nicaragua have caused serious divisiveness between the in-
telligence community and the two intelligence committees and among com-
mittee members, and have shattered the calm that followed the stormy days of
the Church and Pike Committees. On the other, reports of a CIA program to
aid the insurgency in Afghanistan have elicited none of the same protest. In
fact, it is difficult to find a member of either the SSCI or HPSCI who has
publicly criticized the idea of giving assistance to the Mujahidin. What criti-
cism there is holds that not enough is being done.
To some degree the controversy generated by reports of a Nicaraguan
program is an exception to Congress' general bent in recent years to grant
relief and be supportive of the intelligence agencies. Perhaps no better evi-
dence is available to support this view than that while Congress was prohibit-
ing US support to the Nicaraguan insurgents it was at the same time passing
legislation relieving the CIA from some of the requirements of the Freedom of
Information Act and enacting an authorization bill for FY 85 which, according
to press accounts, continued the prior years' substantial increases in the
community's budget.41
The trend seems clear; however, it does not rest on a deeply held consen-
sus. As a result, the oversight system appears susceptible to sudden and some-
40 "Conferees Approve '85 Funds." The Washington Post, Oct. 11, 1984, p. Al.
4' P.L. 98-477. "Senate Balks at Raising Debt After Funding Bill is Enacted," The Washington Post, Oct.
12, 1984, p. Al.
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times disabling shocks. While it is true that events such as the Soviet invasion
of Afghanistan and the debacle in Iran changed public and elite attitudes
about the need to strengthen the various elements of ti-e national. security
establishment, there still lingers an underlying suspicion about those elements
in general, and intelligence in particular. Events, not a publicly articulated set
of strategic principles, have produced what little consensus there is; events can
strain and disrupt it just as quickly.
In hcory, the two houses of Congress were meant to be both represents
tive and deliberative. Through the committee system, Congress' division of
labor, both functions are to be carried out in a particular area of public policy.
It is not difficult to conclude that both the SSCI and I-IPSCI have managed the
former fairly well, although somewhat unevenly. As for deliberation, oversight
has left much to be desired. Over the past four years, public opinion has
generally been supportive of the need to enhance intelligence capabilities. The
two committees have reflected that outlook but have not made a serious effort
to refine this support by a sustained and thorough review of these capabilities.
The potential for the two committees to exercise more substantive over-
sight exists. First, both the SSCI and HPSCI are "select" committees; their
members are chosen by the leadership especially for this task. This presumably
means that the membership of both is a cut above the usual congressional
committee. Second, while the lack of the typical constituent payoff may at
times disincline a member from expending much effort on committee work,
that very lack of constituent responsibility may also free him to deliberate
more seriously about the matter at hand.
It has also been argued that a sounder oversight process might be achieved
by exchanging the two intelligence committees for a joint committee. Depend-
ing on just how the joint committee was constituted, this might well prove to
be the case. One could hypothesize that a single body, smaller than the com-
bined numbers of the two separate committees, would bear more responsibil-
ity and be more responsible in fulfilling this function. At minimum, creation of
a joint committee would be a sign that the pendulum of authority in foreign
affairs was swinging back toward the executive branch after a decade of ex-
panding congressional power. Whatever the merits of a joint committee, how-
ever, the irreducible fact will remain that a congressional committee is a con-
gressional committee is a congressional committee.
More critical to the future of oversight than any institutional change is the
public adoption of a new, coherent set of principles to guide American foreign
policy. The present period is marked by the abatement of time isolationist
impulse; however, no publicly accepted doctrine of foreign policy has arisen to
take its place.
For want of a majority-binding doctrine of foreign policy, it is hardly
surprising that oversigh.t_oLin.telligence-should-giveway-to ti-e-teiidency, under
separation of powers, to muddle along. However, separation of powers, prop-
erly understood, also provides a possible remedy. Through the establishment of
an independent, unitary executive, the system invites (though it does not guar-
antee) the exercise of presidential leadership. The presidency is, as "Theodore
Roosevelt pointed out, a "bully pulpit."
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Bully pulpit or not, only the presidency holds the potential for setting in
place a coherent foreign policy which might attract a solid, secure cunsenstis.42
Establishment of such a set of principles is key to defining the premises from
which those charged with oversight may best deliberate. Lacking a clear idea
of exactly what operative principles underlie American foreign policy today,
oversight naturally reflects that incoherence in its disposition of intelligence
issues. To those involved a decade ago in challenging the "imperial" presi-
dency it may seem ironic, but the invigoration of the current intelligence
oversight process is likely to require a vigorous and sustained assertion of pres-
idential leadership.
42 This, however, is nut to underestimate flit, elifficulty of building :uul sustaining such a consensus.
Consider, for example, Walter Lippman's appraisal of the viability of Kenn:ui's policy of containment given
American political culture. The Cold War: A Study in US Foreign Policy (New Turk, I tarp u r and Brothers,
1947), pp. 15ff.
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