CONGRESS, OVERSIGHT AND THE U.S. INTELLIGENCE COMMUNITY

• Collection: FOIA Collection
• Collection: Declassified Articles from Studies in Intelligence: The IC’s Journal for the Intelligence Professional
• Document Number (FOIA) /ESDN (CREST): 0000617230
• Document Page Count: 11
• Document Release Date: July 30, 2014
• Case Number: F-2013-02322
• Publication Date: June 1, 1981

Approved for Release: 2014/07/29 000617230TITLE: Congress, Oversight and the U.S.Intelligence CommunityAUTHOR:(b)(3)(c)VOLUME: 25 ISSUE: Summer YEAR: 1981Approved for Release: 2014/07/29 000617230A collection of articles on the historical, operational, doctrinal, and theoretical aspects of intelligence.All stfatements of fact, opinion or analysis expressed in Studies in Intelligence are those ofthe authors. They do not necessarily reflect official positions or views of the CentralIntelligence Agency or any other US Government entity, past or present. Nothing in thecontents should be construed as asserting Or implying US Government endorsement of anarticle's factual statements and interpretations.Approved for Release: 2014/07/29 0006172304'Approved for Release: 2014/07/29 000617230CONGRESS, OVERSIGHT AND THE U.S. INTELLIGENCECOMMUNITY(b)(3)(c)After the Central Intelligence Agency was created by the National Security Act of1947, congressional oversight over the Agency was exercised by senior members of theHouse and Senate Armed Services and Appropriations Committees. That oversightwas far from vigorous. The attitude of those senior Senators and Congressmen wassummed up in 1956 by then Senator Saltonstall of Massachusetts who said that: -It isnot a question of reluctance on the part of CIA officials to speak to us. Instead it is aquestion of our reluctance. . . to seek information and knowledge on subjects which Ipersonally, as a member of Congress and as a citizen, would rather not have, unless Ibelieved it to be my responsibility to have it because it might involve the lives of 7-.." -American citizens."'That attitude changed dramatically in 1975 following media reports of illegal andimproper activities by U.S. intelligence agencies. Those revelations caused both housesof Congress to examine the effectiveness of their oversight over the intelligenceagencies. Out of that effort came the creation of two select committees, the ChurchCommittee in the Senate and the Pike Committee in the House, tasked not only toinvestigate the allegations of wrongdoing but also to conduct a thorough review of theoperations, budgets and effectiveness of the intelligence agencies. It is safe to say that,at least since 1947, the intelligence community had not had such an intensecongressional investigation of its activities.Each of the select committees recommended to its respective house that apermanent oversight committee for intelligence be created. In 1976, the Senate actedto create such a committee and in 1977, the House followed suit. As a result, theCongress is now a major factor in the intelligence activities of this country.While serious Congressional interest in the activities of the intelligence com-munity first was stimulated by (and in turn stimulated) the news media, itsrelationship to the intelligence community has acquired a different cast with thecreation of the new permanent intelligence committees. Out of those years ofpsychological trauma for many in the intelligence business has come a new attitudeand a new working relationship on the part of intelligence professionals as well as theCongress. Adjustments in methods of operation?never easy in either the Federalbureaucracy or Capitol Hill?have been made to the benefit of both and to theultimate benefit of the American people.What are the fundamentals of Congressional oversight? According to the bi-partisan leadership of the House of Representatives, who commissioned a workshop onCongressional Oversight and Investigations:-Today the American people expect more effectiveness and efficiency ingovernment.' Congressional Record?April 9, 1956, p. S.5292, quoted in the -Final Report of the Select Committeeto Study Governmental Operations with respect to Intelligence Activities,- United States Senate, Book I,p. 149, S. Rept. 94-755.Approved for Release: 2014/07/29 000617230Approved for Release: 2014/07/29 000617230A new attitude and working relationship"They want the Congress to do a better job of identifying and dealing withproblems before they become crises. They want us to eliminate ineffective andwasteful programs and fraud in government. They want us to curb the abusesof governmental power and restrain overly burdensome regulations. They wantus to have the facts when we legislate and they want us to determine rationallyhow the national budget should be spent."We believe that a crucial step in reaching these objectives is to improvethe capability of the Congress to oversee the implementation of laws, policiesand programs of the Federal government.- 2Those concepts apply to all areas of government, including intelligence. How,then, does Congressional oversight work with respect to the intelligence community?While there are some differences in subcommittee structure between the House andSenate Select Committee on Intelligence, basically they exercise the same functions.For the purposes of this article, the House committee will be used as the model.As the statement above by the House Leadership indicated, the issue of efficiencyin spending the budget is of major concern in the operations of the nati-pia:sintelligence services. Also of keen interest is the question of the effectiveness or Qualityof the activities of those services. Then, there is the matter of "abuses" ofgovernmental power and the need to guard against the intelligence agencies commit-ting such abuses. Completing the list of major concerns is that of legislating rationallyin the area of intelligence.Effectiveness of IntelligenceAssessing the effectiveness of intelligence is one of the most difficult yetimportant tasks facing the oversight committees. One of the key factors leading to thecreation of the Central Intelligence Agency in 1947 was the perception that, had therebeen such a central intelligence function in 1941, the attack on Pearl Harbor wouldhave been anticipated. However, a review of events over the past thirty-four yearssuggests that anticipating events and providing effective and timely warning is moredifficult than was realized in 1947.One of the first steps taken by the House Permanent Select Committee onIntelligence was to examine' the state of the nation's Indications and Warning system.That study revealed that there existed no focal point within the intelligencecommunity for the Indications and Warning function. It spotlighted that weakness inthe intelligence system and insisted that the Director of Central Intelligence addressthe issue. As a result, a National Intelligence Officer for Warning was created?a firststep toward improving Indications and Warning effectiveness.The I&W case is illustrative of one of the several ways a Congressional oversightcommittee can act to improve the effectiveness of the intelligence community. In thatinstance, the committee spotted a problem and then urged responsible executivebranch officials to solve it.In another case, that of the fall of the Shah of Iran, the committee's post mortemfound that the failure of top policymakers to appreciate the fragility of the Shah'sposition was due only in part to inadequate intelligence collection and analysis. TheLetters of transmittal, Thomas P. O'Neill, Speaker, John J. Rhodes, Minority Leader, Jim Wright,Majority Leader, "Workshop On Congressional Oversight and Investigations," U.S. House of Representa-tives, Ninety-sixth Congress, First Session, October 22, 1979, House Document No. 96-217.Approved for Release: 2014/07/29 000617230Approved for Release: 2014/07/29 000617230A new attitude and working relationshipstudy concluded that the policymakers themselves were in part to blame. They did notask the intelligence people to assess the Shah's opposition. Quite the contrary, concernover offending the Shah by having either Embassy personnel or CIA officers contactopponents of the regime discouraged such contacts. A staff study of that crisisconcluded that: -long-standing U.S. attitudes toward the Shah inhibited intelligencecollection, dampened policymakers' appetite for analysis of the Shah's position, anddeafened policymakers to the warning implicit in available current intelligence.- 3The point this example brings home is that the effectiveness of intelligencedepends in large measure on the receptiveness of the policymakers to the intelligenceprovided and on their willingness to properly task the intelligence agencies.A third area which the committee has examined in assessing the effectiveness ofintelligence is that of the use and management of analytical personnel. Several stepshave been taken at the CIA in recent years to improve the quality of intelligence ana-lysts. Additional steps are planned. For example, scholars from the academic worldhave been brought into CIA to meld their knowledge and intellectual disciplines to theanalytic capabilities resident at Langley. Efforts are being made to ensure that analystsspend some years living and working in the countries they are to analyze:In, the caseof military intelligence, the committee has taken several steps over the last two yearsto help improve the quality of analysis. The Defense Intelligence School for some timehas been seeking legislation to allow it to confer a Masters degree in the area of foreignintelligence studies. Legislation so authorizing that degree was passed in 1980. Inanother case, the committee voted additional slots to help strengthen analysis incertain areas where it was felt that there was insufficient coverage.Of course, assignment of analytic personnel overseas can be thwarted byExecutive Branch action such as the MODE ' program, which restricts the number ofU.S. personnel in each Embassy. Action by the Congress to authorize additional slotscan be thwarted by a presidentially-directed hiring freeze.The most important factor in improving the quality of intelligence analysis is thatof management within the intelligence community itself. Senior intelligence officersneed to do a better job of utilizing the talent available. When the committee learnedthat for many years the U.S. intelligence community had underestimated the NorthKorean ground force order of battle by a factor of two, it asked the DCI for the num-ber of intelligence analysts the United States Government had working on that orderof battle. The DCI, it discovered, did not have that information and had nobureaucratic mechanism to assemble such data. The committee had to levy its owndata call on the CIA, DIA, 8th Army, USARPAC, etc. It discovered that a number ofanalysts were working on various aspects of the order of battle problem. No one,however, was coordinating those disparate efforts to ensure that adequate analyticresources were being devoted to the ground forces order of battle.The committee has taken the position that, although the nature of bureaucraticstructures of authority may limit the ability of the DCI to manage production by non-CIA centers of analysis, it does not seem unreasonable to expect the DCI, as thenation's senior intelligence officer, to be aware of analytic problems, to know whether3-Iran: Evaluation of U.S. Intelligence Performance Prior to November 1978,- Staff ReportSubcommittee on Evaluation, .Permanent Select Committee on Intelligence, U.S. House of Representatives,January 1979, p. 7. GPO #38-7454-Monitoring Overseas Direct Employment- which is an OMB reporting requirement on the numbersof permanent Embassy employees at each U.S. Embassy.Approved for Release: 2014/07/29 000617230Approved for Release: 2014/07/29 000617230A new attitude a-nd working relationshipor not the CIA has adequate resources to cover shortfalls they create and to alert theSecretaries of Defense, State, etc., of the need to employ their own assets whenever hefinds that the CIA cannot cover a vital subject. The committee has urged the DCI towork closely with senior intelligence officers in other agencies to better manage scarceanalytic talent. Some progress has been made in that regard.Abuses and OversightAll Congressional committees are charged with guarding against abuses of powerby government agencies. The two select committees on intelligence regularly receiveand investigate complaints from employees and from the public about alleged illegal,or improper activities by elements of the intelligence community. Further, ExecutiveOrder 12036 requires the Director of Central Intelligence and the heads of depart-ments and agencies involved in intelligence activities to "report in a timely fashion to"the two select committees "information relating to intelligence activities that areillegal or improper and corrective actions that are taken and planned.- 5 Over the lastthree years, no illegal activities on the part of the U.S. intelligence agencies have .beenreported.For the last several years, an extended debate has occurred on the pros and consof legislation spelling out in some detail what activities the intelligence agencies areallowed to undertake and what methods of operation are to be permitted. That debatehas involved both select committees, the Executive Branch, including the WhiteHouse and the Department of Justice, as well as a wide spectrum of the Americanpublic. Extensive guidelines have been developed within the Executive Branch underthe guidance of the Attorney General to cover those activities of the intelligenceservices which might involve a "U.S. person."During the 96th Congress, no consensus was developed to support an extensive listof legislative restrictions on intelligence activities. Agreement was reached, however,on language which for the first time put into law the obligation of the DCI and otherintelligence officials to keep the two select committees fully and currently informed ofall intelligence activities, as well as any illegalities.6 Compliance with the conceptembodied in that language will depend on the trust which exists between thecommittees on the one hand and the intelligence officials on the other. But, good faithimplementation of that law will enable the two committees to carry out theirresponsibilities for vigorous oversight and to guard against misuse of the nation'sintelligence activities.Cooperation with oversight committees' requests for information has varied fromagency to agency. Some respond quickly and completely. In the case of others,however, the process is much like pulling teeth. Committee Members and staff havefound a great deal of truth in the old adage that you must ask the right question if youwant the right answer.Closely connected with the willingness of officials in the intelligence services toshare sensitive information with the oversight committees is the question of howclosely those committees will hold that information. From the beginning, theChairman and Members of both select committees recognized that their attitudess Executive Order 12036, "United States Intelligence Activities," January 26, 1978, Sec. 3-403. 43 Fed.Reg. 3674.6 Public Law 96-450, October 14, 1980, "Intelligence Authorization Act for Fiscal Year 1981." Sec. 407.94 Stat. 1975.Approved for Release: 2014/07/29 000617230Approved for Release: 2014/07/29 000617230A new attitude and working relationshiptowards security would be a major factor in establishing a relationship of trust with theintelligence community. The resolutions adopted by each House of Congress establish-ing the select committees directed the committees to adopt in their rules regulations toprotect the confidentiality of classified information in their possession. The sameresolutions also eitablished procedures for the investigation and punishment of anyunauthorized disclosure of classified information by a Member or staff employee.Further, all prospective staff employees must meet the criteria established by theDCI for Executive Branch employees who will receive access to sensitive compart-mented intelligence. The committees have compartmented their staff's access tointelligence on a need-to-know basis. Strict controls have been implemented from theinception of both committees for the handling, storage, dissemination and destructionof classified information. Each staff employee must sign a non-disclosure agreementbefore being hired. Both select committees have put careful thought and much effortinto the security aspects of their operations. They have received the full cooperation,and the certification, of the various security offices within the intelligence communityin creating a secure environment on the Hill.Legislation on IntelligenceTraditionally, very little legislation has been passed affecting the U.S. intelligencecommunity. Over the past several years, however, a number of legislative measureshave been introduced and passed affecting, in one way or another, the way theintelligence agencies operate. For example, in response to Congressional concerns thatthe United States might become involved clandestinely in a war such as Laos orAngola without the knowledge of the Congress, the Foreign Assistance Act of 1974 wasamended by the so-called Hughes-Ryan Amendment to require that:"No funds appropriated under the authority of this or any other Act maybe expended by or on behalf of the Central Intelligence Agency for operationsin foreign countries, other than activities intended solely for obtainingnecessary intelligence, unless and until the President finds that each suchoperation is important to the national security of the United States and reports,in a timely fashion, a description and scope of such operation to theappropriate committees of tile Congress, including the Committee on ForeignRelations of the United States Senate and the Committee on Foreign Affairs ofthe United States House of Representatives."Thus, for the first time by law, the Congress became fully involved in reviewingthe covert action program of the CIA. Even though the Hughes-Ryan Amendment didnot give the "appropriate committees of the Congress" veto power over covert actions,the clear implication was, and was taken to be, that the Congress wanted a major re-duction in CIA's non-intelligence collection activities, i.e., paramilitary, propaganda,political action, etc.For their part, many in the White House and the CIA came to feel that even ifmajor covert actions were warranted and could be satisfactorily explained, therequirement to inform "appropriate" committee's?which by 1977 had expanded toeight, the House and Senate Appropriations and Armed Services Committees, Houseand Senate Select Committees on Intelligence and the Senate Foreign Relations andHouse Foreign Affairs Committees?posed too high a risk of public disclosure ofcovert action programs. By 1980, the Congress also had come to agree with that45Approved for Release: 2014/07/29 000617230Approved for Release: 2014/07/29 000617230A new attitude and working relationshipviewpoint. Both select committees recommended that only the two intelligencecommittees be informed of covert actions.'As a result of the covert action reporting requirements, the select committeeshave served as a kind of -murder board" before which the Central IntelligenceAgency must present the rationale behind each such program. Within the ExecutiveBranch, there can often be such enthusiasm for a covert action that the independenceof the review process can be questioned. Knowledge that each approved covert actionmust be defended before the two select committees encourages thorough reviewbefore a proposal is passed to the President for approval.Another area where legislation was needed concerns the "graymail" problem. Foryears, the Executive Branch had been reluctant to bring criminal charges againstindividuals in possession of classified information which might be revealed in thecourse of a trial. The implied threat of such revelations served as a kind of blackmail,or "graymail" as it came to be known.In 1980, both intelligence committees reported out, and the Congress passektheClassified Information Procedures Act,8 which established pretrial?trial and appellate"procedures for criminal cases involving classified information. The 'legislation allowspersons accused of criminal acts to defend themselves while providing the Govern-ment with procedures to protect classified information from being disclosedunnecessarily.The Congress?again through its intelligence committees?and the ExecutiveBranch also worked together to produce the Foreign Intelligence Surveillance Act of1978 9 which created a special court to authorize applications for orders approving theuse of electronic surveillance to obtain foreign intelligence within the United States.Prior to the enactment of that legislation, electronic surveillance within the UnitedStates for the purpose of collecting foreign intelligence had been authorized by theAttorney General on the basis of the inherent constitutional powers of the President.However, two consecutive Attorneys General, one in a Republican Administration andone in a Democratic Administration, argued the need for a legal basis for obtainingcourt ordered surveillances to protect intelligence officers and the Attorney Generalfrom being successfully sued by subjects of such surveillance.The select committees have also secured passage of legislation on a variety ofmatters to assist the intelligence community in functioning more effectively. Forexample, National Security Agency personnel assigned overseas are now authorizedcertain allowances and benefits comparable to those provided by the State Depart-ment to employees of the Foreign Service. The Department of Defense and theCentral Intelligence Agency have been authorized by law to pay death gratuities tothe surviving dependents of any intelligence employee who dies as a result of injuriesoutside the United States and "whose death resulted from hostile or terrorist activitiesor occurred in connection with an intelligence activity having a substantial element ofrisk."In short, the existence of two select committees on intelligence has provided afocal point for the Executive Branch whenever legislation has been needed for the in-telligence community.' Public Law 96-450?October 14, 1980, -Intelligence Authorization Act for Fiscal Year 1981.- 94 Stat.1975.'Public Law 96-456?October 15, 1080, -Classified Information Procedures Act.- 94 Stat. 2025.9 Public Law 95-511, -Foreign Intelligence Surveillance Act of 1978,- October 25, 1978. 92 Stat. 1783.Approved for Release: 2014/07/29 000617230Approved for Release: 2014/07/29 000617230A new attitude and working relationship SECRETProgram and Budget AuthorizationRule XLVIII of the U.S. House of Representatives sets forth the duties of the Per-manent Select Committee on Intelligence. One duty is to consider each yearauthorizations for:(A) The Central Intelligence Agency and Director of Central Intelligence;(B) The Defense Intelligence Agency;(C) The National Security Agency;(D) The intelligence and intelligence-related activities of other agenciesand subdivisions of the Department of Defense;(E) The intelligence and intelligence-related activities of the Departmentof State; and(F) The intelligence and intelligence-related activities of the FederalBureau of Investigation, including all activities of the Intelligence Division.What that language means is that every year when the President forwards toCongress his budget proposal for the coming fiscal year, the two select committees onintelligence review those portions of the budget request which fund the intelligenceand intelligence-related activities of the U.S. Government. In the course of extensiveCommittee hearings (usually more than 50 hours) and detailed staff study inpreparation for those hearings, each program is thoroughly examined and eachprogram manager is afforded every opportunity to fully justify his budget request.For the most part, the select committees have been supportive of the budgetrequests for intelligence. In fact, they have added manpower spaces in certain caseswhere the committee believed the budget request was too low.In other instances, the budget has been cut because the justification presented tothe committee did not adequately support the request or because of unnecessaryduplication between two or more programs. The House Permanent Select Committeeon Intelligence conducts an almost unique cross-program review of projects in both theNational Foreign Intelligence Program (NFIP) budget and the Intelligence-RelatedActivities budget of the Defense Department.The Intelligence-Related Activities (IRA) category is an aggregation of activitieswithin the budget of the Department of Defense which:"a. Respond to operational commanders' tasking for time sensitive infor-mation on foreign entities;-b. Respond to national intelligence community tasking of systems whoseprimary mission is support to operating forces;"c. Train personnel for intelligence duties;"d. Provide an intelligence reserve; or"e. Are devoted to research and development intelligence or relatedcapabilities."Specifically excluded are programs which are so closely integrated with aweapon system that their primary function is to provide immediate-usetargeting data." 1?DoD Budget Guidance Manual, 7110-1-M.Approved for Release: 2014/07/29 000617230Approved for Release: 2014/07/29 000617230A new attitude and working relationshipIn fiscal year 1981, the Defense Department began to refer to IRA as TIARA,Tactical Intelligence and Related Activities, but the definition remained the same.The distinction between an intelligence collection system which responds to anoperational (military) commander's tasking for time sensitive information and onewhich responds to someone else's tasking for time sensitive information often is hard tomake.. One system may be able to satisfy tasking from a variety of sources, includingoperational commanders. In many cases, operational commanders' requirementscannot be met by collection systems funded in the NFIP, so a separate capability hasto be provided. In other cases, however, the committee has found instances whereproposed collection capabilities in the TIARA account duplicated capabilities in theNFIP.The cross-program review by the House Select Committee is important becauseno truly effective review of the TIARA and NFIP accounts has been conducted withinthe Executive Branch. A mechanism exists for such a review but there is anunderstandable hesitancy for one element of the bureaucracy to buy trouble bypoaching on the turf of another element of the bureaucracy. From the point of vietv"ofthe committee, an effective cross-program review by responsible Executive Branchofficials is much to be desired and it regularly recommends improvement in that area.Another issue of concern to both select committees is the insufficient attention toout-year planning. Each of the last few years, the National Foreign IntelligenceProgram budget appeared to have been constructed with budget constraints playingthe deciding role in what went into the program and what did not. Consequently,decisions affecting very expensive technical systems or mixes of systems requiringmulti-year commitments of funds have been delayed year after year. The result hasbeen a thinning of collection capabilities and an escalation of costs when the decisionsare finally made to proceed with the necessary new systems. The committees continueto work with responsible intelligence community officials to develop better long-rangeplanning.LeaksPerhaps the most vexing and intractable problem the select committees havegrappled with has been that of the cascade of "leaks- of classified intelligenceinformation over the past several years by Executive Branch officials. Nothing angersa Member of either committee more than being lectured in a closed session of thecommittee by a senior intelligence official about the sensitivity of the informationbeing discussed and then finding the same information in the next day's newspaperattributed to -intelligence Officials- or "knowledgeable Administration sources.- Inspite of persistent efforts by both committees to have the most damaging leaksinvestigated, little, if anything, has been done to identify the leakers. This issue is cer-tain to continue to be a major concern of the two select committees. Some measure ofthat concern can be made by the fact that at the confirmation hearing for Mr. Caseyto be Director of Central Intelligence, both Senator Huddleston and Senator Moynihanexpressed their determination to continue to work to stop the leaking of classifiedinformation. Mr. Casey responded by stating that "the kind of purposeful leaks thathave occurred cannot be tolerated, and you cannot maintain an effective andsuccessful intelligence service if the people who are providing information feel it is notsecure,- raising the hope that strong efforts will be made in the future to deter suchleaks.48Approved for Release: 2014/07/29 000617230Approved for Release: 2014/07/29 000617230A new attitude and working relationshipA cigse vf orking relationship has developed between the intelligence communityand the select committees over the past several years. At his confirmation hearing,DCI Casey summed up the relationship well:-To carry out its assignment, the intelligence community needs bothpublic support and the full participation and cooperation of the Congress. I ampleased that after a period of turmoil the Executive and Legislative Brancheshave now institutionalized their arrangements in the Intelligence AuthorizationAct of 1981. I pledge care and diligence in protecting the legal rights ofAmerican citizens. I pledge also to work closely with Congress on this as well asin monitoring and improving the performance of the intelligence community.Particularly through the Intelligence Committee's study of U.S. intelligenceproducts, procedures and budgets, Congress will provide a valued independentsource of review to ensure we are achieving all that is humanly possible and theCongress will be in a position to provide any necessary legislation."The continuation of that relationship will help ensure that the intelligencecommunity receives the resources and the legislation it needs to meet its challengesand that it will have strong public support from the Congress.Approved for Release: 2014/07/29 000617230