On a Need to Know Basis: Congressional Oversight of the Intelligence Community

Matthew Dotzler, MPP, Staff Writer, Brief Policy Perspectives

IC Oversight Graphic

New World, Old Problems

Since September 2001, the United States has faced a new and dangerous world. America’s enemies struck US soil and the American people found a renewed drive to improve national security. Congress and the President set the Intelligence Community (IC) free to make the world more secure. America was attacked and it needed every tool available to defend itself from future assault. In making this choice though, Congress opened the door to a new era of IC programs that pushed the line of legality and morality. The US soon faced abuses of power by some of its most powerful agencies.[1] These abuses, which include the politicization of intelligence, torture, and unlawful wiretapping of American citizens, could have been stopped had Congress acted on its duty to conduct oversight of the IC and the executive.

21st Century Abuses

The IC was designed to gather critical information and defend the security of the nation. When Congress fails to exercise their power of oversight the IC is unleashed and, in their drive to collect information, civil liberties can be threatened.[2] Following the US invasion of Afghanistan national security was a primary concern for the US government. Saddam Hussein’s Iraq became a target of US interest, especially when the Bush administration began receiving information that Saddam’s government was possibly tied to the Bin Laden and the 9/11 attacks. The possibility that Iraq was capable of building and using Weapons of Mass Destruction (WMDs) posed a serious threat to US interests. The IC was divided on whether the information it was receiving was, in fact, reliable.[3] The Bush administration was committed to intervening in Iraq, even though there was uncertainty about the information. The findings of agencies in the IC quickly became politicized and were used to support a war against the Saddam regime. Much later, in a 2008 report, Congress found that an analytic failure had occurred. This suggests that Congressional oversight of the IC failed to conduct due diligence to receive information and to analyze and create policy of their own. Thus, the executive went unchecked and acted on questionable intelligence while Congress voted overwhelmingly to authorize the use of military force in Iraq.

A second example of Congress failing to conduct oversight came to light in 2014. Perhaps one of the most shocking revelations for the American public was when allegations arose that the IC was using torture to gain information about the wars in Iraq and Afghanistan. Congress did not appear to be aware of these CIA allegations until documents detailing the torture were leaked years later. Congress and its oversight committees immediately opened investigations. In the end, it found that waterboarding and other advanced interrogation methods were used against detainees and little actionable intelligence was gained as a result.

The question must be asked: how did Congress not know what was happening? Funds are appropriated to intelligence agencies with little oversight on how the money is spent. Even if Congressional oversight committees had called hearings during the war to question the IC’s covert operations, it is unlikely that the information about torture programs would have been divulged to committee members, even if they thought to ask. Congress has been reluctant to expand its oversight powers and to delve into the how of intelligence programs truly operate. So long as members continue to fail in their questioning how information is collected and remain unwilling to shine a light into the shadows, then scandals will continue to occur.

Failing congressional oversight was famously highlighted when former CIA contractor Edward Snowden leaked a major NSA surveillance program to the world. The 2013 leaks revealed to the public that their government had been collecting the phone records of millions of Americans. Expectedly, the leaks led to calls  for reform and furthered distrust between the American people and its government. Congress and its oversight committees were forced to once again to act. Congress passed the USA Freedom Act (HR 2048) to end mass surveillance of American citizens. The damage to trust in the IC and the government, however, was already done. Whether or not Congressional oversight committees were aware of the program, they had allowed a relapse of policy and practice.

Oversight Needed

As the system exists now, Congress and its oversight committees are effective only as reactionary bodies. The events of the past 17 years demonstrate how little Congress actually knows about IC activities. Congress is unable or unwilling to discourage programs that are illegal, dangerous, or ineffective. This can be remedied, at least in part, by using appropriation and actively seeking answers from the IC. As Nat Hentoff from the Cato institute argues, Congress should stop passing blanket budgets for the IC. The Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence need to be aware of how the money is being spent and what programs are occurring. Many of the mistakes made in the last 20 years were avoidable, and, if oversight of the IC does not change, more will occur. It is in the US’ interest for Congress to pursue a policy of more active oversight in order to ensure the nation is secure, even from itself.

 

Footnotes – Print Sources

[1] Johnson, Loch K., and James J. Wirtz. Intelligence: The Secret World of Spies: An Anthology. Oxford: Oxford University Press, 2015.

[2] Lowenthal, Mark M. 2017. “10.” Essay. In Intelligence: from Secrets to Policy, 7th ed Pg. 324

[3] Fingar, Thomas. 2011. Reducing Uncertainty: Intelligence Analysis and National Security. Stanford, CA: Stanford Security Studies.

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