Spy Watching by Loch K. Johnson
Time To Purge The Dick Cheney Model of Intelligence Agency Accountability
From Chapter 12 “The Ongoing Quest for Security and Liberty”
“…the quality and consistency of intelligence accountability falls far short of the aspirations advanced by reformers at the time of the Church Committee inquiry.”
Topic of Inquiry of last chapter of Spy Watching: “why the advocates of an improved state of accountability for America’s spy agencies have come up short in their objectives, and what might be done to advance a more reliable and acceptable union of liberty and security.”
We can have security and liberty in a “society that honors freedom, privacy, and individuality.”
Our intelligence agencies have “mushroomed into an enormous bureaucratic apparatus (the world’s largest), accompanied by relatively modest efforts to keep track of these organizations and their activities.”
We looked at our intelligence operations as having a special status apart from checks and balances required of the rest of government. COINTELPRO and other abuses indicated this was misguided.
There have been steps forward in oversight – Intelligence Oversight Act of 1980 – followed by backsliding.
After 9/11 “the second Bush Administration cast aside several of the most important new safeguards against mass surveillance and other espionage excesses.”
“Strong accountability has seldom occurred since 1975 unless accompanied by major media coverage that ratcheted up the pressure on overseers to investigate controversial intelligence scandals or failures.”
“periodically” intel agencies “have chosen to resist serious outside supervision through misleading or belated briefings and other methods of evasion.”
Problems in accountability
Poor quality of intelligence briefings to intelligence committees with, at times, efforts to mislead.
“lackluster commitment of many lawmakers” to oversight
lack of American people’s support of lawmakers oversight responsibilities
“unacceptable restrictions that intelligence agencies often put on intelligence briefings:
- “can’t take notes”
- “can’t take docs”
- “must have a minder”
- must use “a sensitive compartmented information facility”'
How To Get Successful Intelligence Accountability
1. Sharing Information
Executive Branch acceptance: “constitutional principles extolled by the nation’s founders apply to the veiled agencies of government, too, not just to the more open departments…”
“…lawmakers only know about intelligence activities to the extent that the president and the attorney general, plus the DNI, the D/CIA, and other intelligence agency managers, keep them informed.” - “this basic requirement is often absent” – with “evasiveness and stonewalling” in its stead along with refusal to testify before relevant committees, lying, misleading and all manner of obstructionism.
“Open lines of communication between intelligence overseers and the nation’s spy leaders – especially, the DNI, D/CIA, D/FBI, and D/NSA – are of utmost importance for effective accountability."
No substitute is discussing issues “one-on-one with the chairs and ranking minority members” on intelligence committees – “the Gang of Four, a board fabricated by the executive branch to limit the number of witting lawmakers.”
“Some forms of secrecy are obviously justified – even vital – such as protecting the identities of CIA officers and their assets overseas, or the blueprints of DoD weapons systems on the drawing board. Nonetheless, at the core of democratic theory is the requirement of an informed citizenry, which in turn depends on openness in government – not stamping everything in sight SECRET, TOP SECRET, or above.”
“Moreover, virtually every study on secrecy (such as the one carried out by the Moynihan Commission in 1996-1997) has concluded that far too much information – some 85 percent – is unnecessarily classified by intelligence and military bureaucrats in the first place.”
“Public hearings on some intelligence topics are possible, helpful, and certainly in the spirit of democracy.”
“…both Presidents George W. Bush and Barack Obama have tried to turn the Gang of Eight rule – meant to apply only in emergencies – into the normal reporting requirement, informing only eight lawmakers (if that many) instead of the required full memberships of “ the Senate and House Intelligence committees.
2. Willingness of Members of Congress To Engage in Meaningful Examination of Spy Programs
“Congress is informed to the degree that Congress wants to be informed.”
Most lawmakers prefer to be intelligence cheerleaders instead of intelligence overseers – the Daddy Knows Best Attitude in matters dealing with foreign policy and security policy. “…the legislative branch” has “lost its ‘will to lead.’”
Strengthening Intelligence Accountability
Who Should Be Informed?
What works best - All important intelligence activities should be reviewed 37 members of intelligence committees and their staffs as prescribed by the Intelligence oversight Act of 1980.
What Information Should Be Reported?
“all information provided to the executive branch” - “with the exception of President’s Daily Brief”
There is a “92 percent delinquency rate” in the Intelligence Community’s prescribed by law reporting to Congress.
Who is Responsible for Reporting to Intelligence Overseers in Congress?
“…the president and the CIA are responsible for reporting to the Hill on covert actions, and the president, the CIA, and other intelligence agencies on spy initiatives (depending on which “int” or mission is involved).”
When Should Intelligence Agencies Report to Congress?
“With the 1980 Oversight Act, the revolutionary standard, and – in an example of breathtaking assertiveness by proponents of intelligence accountability – it would be not just for covert actions but for all important intelligence activities.. This legal requirement is essential for genuine accountability; however, it has often been ignored by officials in the executive branch who at the same time, speaking from the other side of their mouths, profess allegiance to the rule of law.”
“Here was true accountability: reporting to thirty-seven (or so)members of Congress and senior staff, on every important intelligence activity, by every agency in the intelligence community, and in advance.”
Our Congressional Intelligence Oversight Committees have the following oversight tools – if they will use them:
- power of subpoena
- budgetary control
- contempt of Congress citations
- “release of classified information (with proper adherence to the procedures of the Senate)"
What Thwarts Adequate Congressional Oversight of Intelligence Activities?
“…Congress as an intelligence overseer typically acts with one arm tied behind its back or, more accurately, with at least one arm – and sometimes two- busily engaged in other institutional and reelection obligations. These arms are unavailable for the heavy lifting that comes with tracking the spy agencies.”
Congressional Intelligence Committee members often identify “more with the intelligence agencies they supervise than with their roles as detached and objective guardians of the public weal.”
In Search of Liberty and Security
“My study of the Church Committee published in 1986 ended with an expression of concern that intelligence accountability might be too demanding for lawmakers.”
Purpose of Intelligence Accountability
“The purpose of intelligence accountability is to help ensure that America’s secret agencies obey the law, spend the taxpayers; money prudently, and operate effectively as possible to warn of dangers to the United States and its allies. When accountability is lax, the pursuit of these important goals suffers.”
Ongoing Obstacles to Meaningful Intelligence Accountability
To Accomplish ”clearer lines on the Hill for intelligence accountability”
“Everything ultimately reduces down to the twin missing links in intelligence accountability: the will of executive branch officials to provide SSCI and HPSCI with full information about significant intelligence activities, and the will of lawmakers to study and weigh the merits of these initiatives, helping to correct missteps when necessary.”
Organizational Improvements on Capitol Hill
“fold almost all intelligence matters (including budget authorizations) into the SSCI and HPSCI baskets).”
“full responsibility for FISA court oversight could be lodged in SSCI and HPSCI with greater jurisdictional clarity"
Repairing the Authorization and Appropriations Bridge
Focusing and Redoubling Oversight Activities
“…it would be valuable for both SSCI and HPSCI to have dedicated oversight Subcommittees."
Improving Resources for Oversight
Double the staff on the intelligence committees and increase it on the Government Accountability Office
Intelligence Committees should enact charters for each of the intelligence agencies and then “knit them together into one whole.” Agency managers need to understand what society expects of them.
More public hearings by intelligence committees to help “inform a national debate” on intelligence subjects.
“…Congress must address more clearly the question of when it can declassify intelligence documents on its own…”
“Perhaps SSCI and HPSCI, acting together or separately, ought to have authority to declassify documents from the intelligence agencies (not just their own documents).”
“My own approach would be to support authority for SSCI and HPSCI to release intelligence documents themselves when a two-thirds approval of those present and voting in the committee deemed this action useful to the public interest – even when the document had come from the executive branch.”
Development of Intelligence Oversight Algorithms
“The intelligence oversight committees might benefit from bringing in RAND or McKinsey consultants to help them develop a sophisticated set of intelligence oversight algorithms for each of the primary intelligence missions: collection and analysis, covert action, and counterintelligence.”
“…the approach holds promise for channeling limited accountability resources into key areas of intelligence that carry the greatest risk for error and embarrassment to the United States.” 461
The Judicial Side of Intelligence Accountability
“…the FISA Court must have a less partisan membership process.” – “new appointments should alternate between selections made by the most senior justice on the Supreme Court nominated by a Republican president…and the most senior justice on the Supreme Court nominated by a Democratic president…”
“Sensible, too, would be the establishment of a separate Terrorist Targeting Court (or TTC) along the lines of the FISA Court, but dedicated to a review of presidential requests for the targeted killing by drone(or other method) of specific Americans abroad suspected of engaging in terrorist activities against the United States"
“Moreover, the judicial branch will have to improve its FISA Court procedures for the review of warrant requests for intelligence collection operations, with less of an inclination to defer automatically to executive branch attorneys"
Oversight Help from the Media and Academy
“Along with the fundamental requirement of oversight cooperation between Congress and the executive branch, the injection of some degree of democracy into the hidden side of government will depend on ongoing, diligent media probes into spy activities.”
Academia has a role in educating the public about intelligence activities.
Improvement in Whistle-blowing and Warrant Procedures
Whistle-blowers must “have a chance to make their case in a responsible manner, without having to go to jail or abandon their country.” The establishment in Intelligence Committees of a Dissent Channel “whereby whistle-blowers can send messages anonymously to an IG or some other investigator” including intelligence committees “would be a useful step as well.”
Citizens Intelligence Advisory Board
Permanent and independent intelligence commission
“…lawmakers in every democracy simply lack the time and expertise to manage intelligence accountability by themselves, under the current conditions that place such a premium on fund-raising for reelection.”
“…creation of a ‘congressional intelligence office,’” – “’permanent, nonpartisan watchdog modeled after the Government Accountability Office and the Congressional Budget Office.’” – “It’s job would be to augment SSCI and HPSCI by providing ‘security and vigilance regarding the substantive use and misuses of intelligence, including politicization.’"
“It is incumbent upon all Americans to take a more active role in demanding the protection of this nation’s fundamental constitutional freedoms, electing only those presidents, senators, and representatives who vow to take intelligence accountability seriously.”