Blind Oversight
How partisanship and political blood sport have weakened Congress's hold over intelligence.
Saturday, July 11, 2009
by Shane Harris
"The Senate of the United States and the House of the United States is not doing its job. And because you're not doing the job, the country is not as safe as it ought to be." That was the frank, finger-wagging admonition that former Rep. Lee Hamilton delivered to the Senate Intelligence Committee two years ago. Hamilton, the venerable Democrat from Indiana, once served as House Intelligence Committee chairman and helped lead the commission that investigated the 9/11 terrorist attacks. That panel concluded that congressional oversight of the intelligence community had degenerated into a disorganized, partisan turf war, imperiling the nation's security.
The senators had invited Hamilton to assess how well they were doing their jobs, and he was unsparing: If the committee members really wanted to do something to improve the conduct of American intelligence, to make it sharper, more efficient, and better at predicting crises -- just as the 9/11 commission had said it must -- they should start by accepting their own failures, and then try to correct them.
"This is not a trivial matter," Hamilton declared. "You're not dealing with the jurisdiction of the Education Committee, where it doesn't make very much difference, frankly, who has the control of it. You're dealing here with the national security of the United States, and the Senate and the House ought to have the deep-down feeling that we've got to get this thing right."
It was hardly the first time that someone had lectured the members like this. In a span of 10 years -- from 1991 to 2001 -- there were no fewer than 12 major bipartisan reports about intelligence reform that offered the same advice: Start with Congress. By the dawn of the 21st century, the oversight committees, which were established expressly for the purpose of monitoring and improving intelligence operations, had failed to perform even their most basic functions. Members tended to question each other more than the organizations they were supposed to watch. The committees were conducting fewer meaningful investigations into intelligence failures, and they had become notorious for their inability to produce annual authorization bills with any regularity. A general sense of professionalism among members and their staffs -- the idea that they were chosen to perform the kind of special duty that Hamilton was talking about -- had withered.
"Not a single congressional reform got implemented before 9/11, and Congress isn't doing much better today," according to Amy Zegart, an intelligence historian and a professor at UCLA, who also testified before the Senate committee in 2007. When the members asked Hamilton and fellow Commissioner Tim Roemer, also a former Democratic representative from Indiana, what grade they would give Congress for its effort to implement the 9/11 commission's recommendations to improve oversight, they said D-plus. That was a slightly more generous assessment than the panel's final report, published three years earlier: "Congressional oversight for intelligence -- and counter-terrorism -- is now dysfunctional."
To be sure, some members of the intelligence community would prefer to keep it that way. The more time lawmakers spend attacking each other, the less attention they pay to the agencies. Partisanship is usually cited as the No. 1 reason intelligence oversight has become so ineffective, and that ineffectiveness plays right into the hands of an executive branch that, more often than not, prefers Congress to keep its nose out of national security affairs.
The whole concept of "oversight" is a relatively modern phenomenon, and one that the CIA in particular had the pleasure of avoiding for the first three decades of its existence. The House and Senate established their Intelligence committees in the mid-1970s after explosive revelations of systematic abuses of power by the intelligence agencies, including wiretapping and surveillance of political activists, civil-rights leaders, and even two Supreme Court justices. A pair of special panels led by Sen. Frank Church, D-Idaho, and Rep. Otis Pike, D-N.Y., laid bare these scandals for the American public. Congress responded by instituting a legislative check on the president's intelligence powers. The arrangement was unique in the world: No country had ever given lawmakers investigatory powers over its spy agencies.
The initial reason for creating the committees "was simply just to improve congressional awareness of what the intelligence agencies were doing," said Britt Snider, who served as counsel for the Church Committee in 1975 and '76 and helped draft the Senate resolution that created that chamber's oversight panel. "The original focus was really on protecting the rights of Americans," he explained. "It was on ensuring that intelligence activities were carried out in accordance with laws, regulations, and treaty obligations."
Establishing such powerful bodies was hardly a natural move. "A lot of people... thought this would never work," Snider said. "How could Congress oversee intelligence activities without revealing them? I mean, this is, after all, a political institution. Members of Congress are used to making political hay out of virtually anything that comes down the pike."
But the abuses of the previous decades were so severe, and they so directly assaulted the constitutional framework of checks and balances, that reformers saw the committees as the best chance to counter an executive branch run amok. At least in theory, that's still true today. The committees are the "only really substantive check," Snider said. "They are the ones who have access to the programs of the intelligence community, to their personnel, to their documents. Nobody else has that -- only the Intelligence committees." When members choose not to embrace that authority, the balance of power shifts back toward the agencies. "The public is left basically with only the assurances of the executive branch to go on," he said.
Snider made his remarks three years ago at a panel discussion on the broken system of intelligence oversight that was hosted by the Center for American Progress. But they are just as relevant today and speak to a basic, unsettled dilemma: Although the committees' members like to remind the public how seriously they take their role as watchdogs, their actions, or inaction, undermine those assurances. The committees still have not asked, and answered, any of the tough questions on some of the most controversial intelligence programs in recent memory: the National Security Agency's warrantless surveillance of phone calls and e-mails; the detention and interrogation of suspected terrorists; and the "rendition" of suspects to other countries where legal restrictions on harsh interrogation techniques are less stringent than in the United States. "[Members] do say, and I have heard the [Senate] chairman say, how seriously they take their responsibility as surrogates for the public," Snider said. "But when you look at this list of things that they have not weighed in on, one has to wonder."
Halcyon Days
It was not always so. Intelligence historians tend to agree that in the period immediately following the House and Senate committees' creation, bipartisanship and professionalism generally prevailed, and this encouraged more-aggressive oversight. In the early 1980s, members delved into the details of covert operations that were designed to influence events abroad while concealing U.S. involvement. "The interest there was in saying whether these kinds of activities undertaken by the agency primarily were consistent with U.S. foreign policy, consistent with our values as Americans, our notions of sovereignty, and so forth," Snider said. Even if lawmakers' attempts to more thoroughly understand a once-murky world weren't always successful -- the Reagan White House deliberately hid key details of the Iran-Contra affair and some of the CIA's most aggressive Cold War operations in Nicaragua from lawmakers -- committee members took their jobs seriously and endeavored not to let partisan differences impede them.
That bonhomie carried over into the latter days of the Reagan administration and on into the mid-1990s. Some historians cite the tenure of Democrat David Boren of Oklahoma, the Senate Intelligence Committee's longest-serving chairman, as a halcyon period. "It worked because we operated on a bipartisan basis," Snider said. "It was a pleasure to come to work every day. I don't know that it is a pleasure to come to work every day now, but it was then." The committee staff was not divided into majority and minority camps, and particular duties or investigations were based on each member's interest. "There was complete transparency between the majority and minority in terms of how the committee was being run. We didn't play games with each other," Snider said.
John Moseman, a former staff director on the Senate committee, who recounted the history of oversight with Snider at the Center for American Progress panel discussion in 2006, noted, "It was not perfect. But... I think those members did set the right tone... and it permeated the staff. It was a unitary staff. I frankly didn't know people's politics, nor did I particularly care."
When Moseman worked on the committee from the late 1980s to the early '90s, some staffers had been around since the panels' inception. "They had a depth and breadth of knowledge about intelligence that I think is sorely lacking today. They were not [held] captive by the agencies they oversaw." The committee members saw themselves as a sounding board, or a political council of elders, for the intelligence community. They could help career intelligence officers understand what would play well, and what wouldn't. They also offered a level of strategic advice. What they tended not to do, Moseman said, was play politics.
"There was not a lot of appetite for 'gotcha' hearings," Moseman said. "When mistakes happened, there wasn't a lot of happiness about that... but there was not a tendency to have show trials, to do a lot of open hearings, to belittle the men and women of the intelligence community that were taking risks."
To be sure, this period was not without rancor. "The Intelligence Committee probably really never has had a golden age," said Charles Battaglia, a former Senate committee staff director. "There [has] always been some degree of partisanship on the committees. I would say that it has ranged from very little to a great deal. And I am afraid we are into the great deal part right now."
The Dawn Of Partisanship
When did the tide turn? Historians differ on the exact point at which this feeling of goodwill -- however real or idealized -- began to tilt toward the unabashed partisanship that characterizes the committees today. Some cite the 1991 confirmation of Robert Gates as CIA director: His hearings evolved from a run-of-the-mill process into a dramatic examination of the agency's recent sordid history, fueled by Democrats still smarting over the Reagan administration's covert actions in Central America.
Gates had initially been nominated four years earlier, in 1987, but he withdrew amid lingering questions about his role in the Iran-Contra affair when he was a senior CIA official. An independent counsel found no evidence to warrant an indictment of Gates, but in 1991, charges that he had "politicized" intelligence during his tenure "took center stage" at the hearings, writes John Prados, an intelligence historian, in Safe for Democracy: The Secret Wars of the CIA.
"Committee staff and members were flummoxed by the appearance of a succession of analysts who gave chapter and verse on many Gates interventions in intelligence analysis," Prados says. Gates rebutted critics by saying that he had only meant to challenge analysts' assumptions, to push back in an effort to obtain a richer final product. President George H.W. Bush intervened on his nominee's behalf, "invoking party discipline to ensure that members backed" Gates. Chairman Boren, apparently unwilling to let the nomination go down along party lines, "staged his own covert operation," Prados recounts, "acting impartially in the camera's eye while laboring in secret to build support for the nominee."
Behind the scenes, the confirmation was a partisan showdown. Gates was eventually approved with the support of some Democrats, but the hearings would be remembered as "the most extensive examination of U.S. intelligence since the Church and Pike investigations," Prados writes. "Work at [CIA headquarters] ground to a halt as CIA officers watched every minute on television, much like Americans riveted by the O.J. Simpson murder trial did.... This episode became the first time in a decade where partisanship reigned" on the Senate committee.
Once Gates was confirmed, his efforts to keep members fully apprised of intelligence activities, in an attempt to avoid creating any more political fodder, took on an almost comic aspect. When the director came to the Hill to brief the Senate committee, Moseman recalled, "he'd have a big, thick notebook with him. He would kind of go through page after page of issues. I am not even sure how that book was put together; probably an all-points-bulletin call went out to the agency and papers flowed into the director's office."
In 1996, the CIA developed a more systematic approach to informing Congress about significant intelligence activities, Moseman said. Up until then, "there was no formal process whereby people in the CIA, in the various directorates, thought through what activities or events" Congress should know about. Moseman called this side of the oversight process "a bit haphazard."
It should also be noted that Congress itself had no formal, routine means for determining what was happening in the agencies. Although members had all of the tools they needed to conduct oversight, they didn't use them effectively. As the late 1990s approached, the committees took on an overtly partisan flavor. It's at that point, many historians say, that Congress finally turned the corner and abandoned any semblance of legitimate, bipartisan oversight.
Turning Sour
"I saw a dramatic change, or at least a changing point in the Senate committee, after the '94 election," Moseman said. Republicans took control of both chambers of Congress for the first time in 40 years, and seven GOP House members won election to the Senate. "The Senate majority leader at that time put a number of them on the Senate Intelligence Committee," Moseman said, referring to Bob Dole, R-Kan. "These are thoughtful people, by and large, but... they had a natural tendency to think of things in terms of the minority fighting against the majority.... They have had to fight hard for any degree of respect or actually have any sense of power in the House. And in my humble opinion, they brought some of the same characteristics" with them to the Senate.
Moseman and others see the mid-1990s as the beginning of a final purge of longtime committee staffers. Within a few years, most of the veteran professional staff members had retired or were replaced. Partisan tensions increased in sync with the rest of Congress. "Once largely immune to the tides of chamber politics (Nicaragua excepted), the two Intelligence committees proved vulnerable to this rising storm as members drifted to their separate party camps, casting votes and often verbal stones against one another," writes Loch Johnson, an intelligence historian and a former congressional staffer, in his essay "Governing in the Absence of Angels: On the Practice of Intelligence Accountability in the U.S. Congress."
In the late 1990s, politics trumped oversight. Richard Shelby, R-Ala., a vocal critic of the Clinton administration, took over as Senate Intelligence Committee chairman in 1997. (He had been elected as a Democrat but changed parties after the Republican sweep in 1994.) Although the senator displayed an aggressive and arguably healthy skepticism of the intelligence agencies, he was criticized for using his position as chairman to launch politically motivated investigations that had little to do with intelligence. Some historians single out the 1997 confirmation hearings of Anthony Lake to be CIA director as the most potent example of this kind of political overreach by the committee. Shelby broke with long-standing tradition by demanding that the raw files compiled by the FBI during Lake's background security check be made available to all GOP Senate members. In the past, only summaries had been prepared, and they were given only to committee members, according to historian Marvin Ott, a former professional committee staffer. "No prior chairman would have even considered tossing the committee's most sensitive business (not to mention highly personal data on a nominee) into the lap of a party caucus," Ott writes in an intelligence journal article titled "Partisanship and the Decline of Intelligence Oversight."
Lake wasn't exactly the most popular nominee among career intelligence officers; he had said in a television interview that he wasn't convinced that Alger Hiss had been a spy for the Soviets. He might have doomed his candidacy with those remarks. But Republicans also criticized Lake's resignation from the National Security Council in 1970 to protest President Nixon's bombing of Cambodia, as well some stock sales Lake had made after he joined the NSC and other personal matters. Historian Johnson writes that Lake's nomination devolved into "a partisan donnybrook, with Lake finally withdrawing his name from consideration. The hearings, characterized as 'vitriolic' by a former [committee] staffer, were no doubt the most heated public exchanges among members in the committee's history."
Historically collegial relations between the Senate Intelligence Committee and two other important panels also broke down during this period. The Armed Services and Appropriations committees hold sway over the intelligence community's budget, and Boren enjoyed "close working and personal relationships" with Sen. Sam Nunn, D-Ga., who chaired Armed Services and "largely kept [his] hands off the intelligence authorization" process, Ott writes in his journal article. That cooperation was "crucial," Ott observes, "because the far more powerful Armed Services and Appropriations committees can, if they choose, effectively override the [Intelligence Committee] and dictate outcomes."
But when Republicans took over the committee, those ties began to break down and then "largely disappeared under Shelby," Ott recounts. "The growth of partisanship diminished the [Intelligence Committee's] reputation and standing within the Senate as a whole. As a consequence, the intelligence agencies know they are dealing not only with a far more partisan [committee] but a far weaker one as well."
Shelby and his House counterpart, Porter Goss, R-Fla., took oversight personally, perhaps excessively so. After Shelby was "snubbed" in 1998 by CIA Director George Tenet, "who failed to invite Shelby to the christening when the CIA's headquarters building took on the name 'George H.W. Bush Center for Intelligence,' " Johnson writes, "he turned to oversight with a vengeance." In the wake of the 9/11 attacks, Shelby personally assailed Tenet for the agency's performance on counter-terrorism. Goss rode President Clinton hard as well, and he took advantage of floor speeches and press interviews to assert that the president had neglected the intelligence community to the nation's peril. Although it was certainly a legitimate function of oversight to criticize presidential policies, Goss changed his tone once a Republican was in the White House. He evolved into an "advocate" for the intelligence community, Johnson says, "as the Clinton administration departed stage left and the [George W.] Bush administration entered stage right."
After Pat Roberts took over the Senate Intelligence Committee in 2003, the Kansas Republican became a favorite target of Democrats and liberals for loyally supporting the Bush White House. Roberts delayed the release of a committee report detailing how senior policy makers used intelligence in the run-up to the Iraq war, prompting a typically outraged response from the editorial board of The New York Times: "Is there any aspect of President Bush's miserable record on intelligence that [Roberts] is not willing to excuse and help to cover up?" The committee report was expected to address whether administration officials pressured intelligence analysts to shape their conclusions in a way more favorable to the president's case for war -- that Iraqi President Saddam Hussein was amassing an arsenal of weapons of mass destruction that he might give to terrorists.
This ill will has spilled over into the public domain. In a more recent development, members of both Intelligence committees are using their positions to assail each other over their respective parties' approach to national security. "We never had members attack each other in the press," Snider lamented. "We never had members attack each other on the floor of the Senate. There were disagreements; we just worked them all out. And to see it reach levels that we have seen in the last couple of years is really painful for me to watch, but I am hoping that things will change. I have been waiting a long time now for the ship to right itself, and maybe it will."
No End In Sight
Today, Snider's optimism looks like wishful thinking. Now that Democrats are back in power, the appetite for political retribution, fueled in some cases by genuine outrage over the practices of the Bush administration, has only intensified, and the partisan tensions are as thick as they've ever been.
It's doubtful that House Speaker Nancy Pelosi -- a former ranking member of the House Intelligence Committee -- or other members who have called for a "truth commission" on Bush-era intelligence programs would consider such public investigations "show trials." But, clearly, that's just what the Obama administration is afraid a public inquiry would become. No matter how high-minded and bipartisan the approach, White House officials think that any hearing would end up looking like a political witch hunt, and President Obama himself has tried to block the proceedings.
As New Yorker writer Jane Mayer recounts in an article published in June, Obama "vetoed the idea [of a truth commission], fearing that it would look vindictive and, possibly, inflame his predecessor." CIA Director Leon Panetta told the magazine, "It was the president who basically said, 'If I do this, it will look like I'm trying to go after [Dick] Cheney and Bush.' " Panetta said he had once supported an independent commission headed by an elder statesman, such as former Supreme Court Justice Sandra Day O'Connor or Lee Hamilton. But after Obama concluded that such a panel was unwise, "everybody kind of backed away from it."
In May, Pelosi came under fire for what she knew, and when, about the CIA's harsh interrogations of suspected terrorists, which the Obama administration has determined amounted to torture. Pelosi said she was told that the notorious waterboard wasn't being used on Qaeda detainees -- although it was -- and that the CIA lies "all the time" to members of the oversight committees. Her emphatic accusation, delivered in the course of an awkward press conference in which she read repeatedly from a prepared statement, was designed to take the heat off Democratic overseers and put it back on the Bush administration. But, if anything, it served to aggravate the partisan warfare over intelligence. House Minority Leader John Boehner, R-Ohio, has demanded that Pelosi provide evidence to back up her accusations and has even called for a congressional investigation into her claims.
Pelosi's comments may have amounted to an ill-advised attempt to strike back at Republicans. On the other hand, she may have provided some of the best recent evidence to support what Hamilton and so many other experts have been saying: Oversight is broken. When the speaker accused the CIA of misleading Congress, she "seemed to suggest that intelligence oversight had become both hapless and hopeless in the Bush administration," Zegart, the UCLA professor and intelligence historian, said. Pelosi said that officials "didn't tell us everything that they were doing. And the fact is that anything we would say doesn't matter anyway. We had to change the majority in Congress, we had to get a new president to change the policy. And that's what we have done."
To that, Zegart responded, "When the only workable intelligence oversight mechanism is ousting partisan opponents, we are all in trouble."