Table Of Content

Critics andDefenders A Review of Congressional Oversight James S. Van Wagenen Permanent, continuing, day-to-day Congress. First, it is important to Congressional oversight ofthe US dispel the popular notion that Intelligence Community (IC) Congressional oversight started with marked its 20th anniversary in May the establishment ofthe SSCI and 1996. Two decades earlier, Senate the HPSCI. That notion is not accu Resolution 400 established the Sen rate. Before their establishment, ate Select Committee on Intelligence however, oversight was certainly not (SSCI) following revelations of(cid:147)intel intense or much of(cid:146) an inconvenience ligence abuses.(cid:148) InJuly 1997, the to the agencies that carried out intel SSCI(cid:146)s House counterpart, the ligence activities. House Permanent Select Committee Intelligence (HPSCI), will cele on Some individuals within brate its 20th birthday. During this the Community have time, the IC(cid:146)s missions, responsibili The RevolutionaryWar Experience ties, capabilities, size, and argued.. that . managementhave experienced dra It is somewhat ironic that at the Congressional oversight matic changes. The Congressional beginning ofthe republic, intelli has been intrusive, oversight committees have played a gence operations were conducted by significant role in shaping these the forebearer oftoday(cid:146)s Congress(cid:151) meddling, short-sighited, changes and continue to do so. the Continental Congress. During and counterproductive... the RevolutionaryWar, the Second Some individuals within the Com Continental Congress not only func 9, munity have argued, with a certain tioned as the government ofthe amount ofjustification, that Con 13 rebellious colonies, but also gressional oversight has been planned, directed, and carried out intrusive, meddling, short-sighted, intelligence activities in support of and counterproductive; has involved the war effort. Secret committees of micromanagement on a grand scale; the Congress were formed for this and has served to drag the IC into purpose, and covert actions, use of the political cockpit ofpartisan poli secret writing, codes and ciphers, tics from which it had previously protection ofsources, compartmenta been immune. Others tend to view tion, propaganda, and deception all Congressional oversight as being, on were in the (cid:147)bag oftricks(cid:148) used by balance and after a somewhat rocky these (cid:147)legislative intelligence offic start in the late 1970s, a decided plus ers.(cid:148) (Thomas Paine, the author of for the Community by providing Common Sense, was fired from the loci for Congressional advocacy and staffofa secret committee for leak support for intelligence and by pro ing information on France(cid:146)s covert viding rigorous review and assistance to the colonies.) Agents questioning ofintelligence activities employed by the Continental Con and budgets. gress succeeded in obtaining covert aid for the war effort from France Perhaps, in looking back at what and Spain and, following the Battle James S. VanWagenen is the DIA Congressional oversight has and has ofSaratoga, the open entryofthose Chair at theJoint Military Intelli not been, we will be better able to countries into the war against the College. discern the future ofoversight by the British. gence 97 Report Documentation Page Form Approved OMB No. 0704-0188 Public reporting burden for the collection of information is estimated to average 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Washington Headquarters Services, Directorate for Information Operations and Reports, 1215 Jefferson Davis Highway, Suite 1204, Arlington VA 22202-4302. Respondents should be aware that notwithstanding any other provision of law, no person shall be subject to a penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number. 1. REPORT DATE 3. DATES COVERED 1997 2. REPORT TYPE 00-00-1997 to 00-00-1997 4. TITLE AND SUBTITLE 5a. CONTRACT NUMBER A Review of Congressional Oversight 5b. GRANT NUMBER 5c. PROGRAM ELEMENT NUMBER 6. AUTHOR(S) 5d. PROJECT NUMBER 5e. TASK NUMBER 5f. WORK UNIT NUMBER 7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES) 8. PERFORMING ORGANIZATION Center for the Study of Intelligence,Central Intelligence REPORT NUMBER Agency,Washington,DC,20505 9. SPONSORING/MONITORING AGENCY NAME(S) AND ADDRESS(ES) 10. SPONSOR/MONITOR’S ACRONYM(S) 11. SPONSOR/MONITOR’S REPORT NUMBER(S) 12. DISTRIBUTION/AVAILABILITY STATEMENT Approved for public release; distribution unlimited 13. SUPPLEMENTARY NOTES Studies in Intelligence, Volume 40, No. 5, Semiannual Edition, 1997, No. 1 14. ABSTRACT 15. SUBJECT TERMS 16. SECURITY CLASSIFICATION OF: 17. LIMITATION OF 18. NUMBER 19a. NAME OF ABSTRACT OF PAGES RESPONSIBLE PERSON a. REPORT b. ABSTRACT c. THIS PAGE Same as 6 unclassified unclassified unclassified Report (SAR) Standard Form 298 (Rev. 8-98) Prescribed by ANSI Std Z39-18 Oversight Other agents on the Congressional (cid:149) Funding negotiations (bribes) with discretion ofthePresident, on his payroll scoured European capitals for Napoleon Bonaparte to tryto get responsibility only,forallpur intelligence as well as indications and him to coerce Spain into cedingEast poses to which a secretservice warning ofimpending events such as andWest Florida to theUnited findshouldorcouldbeapplied the plan by King George III to send States. Later, when these (cid:147)negotia to thepublic benefit. Forspies, if German troops (lumped together by tions(cid:148) failed to bearfruit, the fund thegentlemanpleases.... the colonists as (cid:147)Hessians(cid:148)) to Amer was used to promote revolution in CicoanttoinpeunttadloCwonngtrheesrsebwealslioanl.erTtehdeto tShpeaiFn!otroidsaese,tahnedwtihsisdopmroimnpstuecdh a LCaotnegrr,essosmseusoppepcotseidtiPornesmiedemnbteJrasmeosf this plan, and ThomasJefferson territorial transaction. Polkwas using the secret fund for alluded to the use of(cid:147)Foreign Merce agents provocateurs in Mexico and naries(cid:148) as part ofhis indictment of (cid:149) Funding theLewis and Clarkand California for the purpose offoment King George contained in the Decla theZebulon Pike expeditions, which ing (cid:147)incidents(cid:148) designed to provoke ration ofIndependence. in partwere intelligence missions a war with Mexico and thus ensure with the goal ofenteringterritories that Texas and California would offoreign governmentswithwhich become part ofthe United States. A Establishing Secret Fund theUnited Stateswas atpeace, in Congressional demand was made a order to locate and map their that Polk surrender to the Congress fortifications. all accounts ofpayments from the At the conclusion ofthe war, and fund. Polk refused, stating: following a turbulent decade under (cid:149) PresidentJames Madison usedthe the weak and ineffectiveArticles of secret fund to enlistgangsters for The experience ofevery nation Confederation, the new United intelligence purposes. Thepirate earth hasdemonstratedthat on SefitlraestctetsPerdaedsGioedpoetrnegtd.etOWhanesehCoionfnsgttthieotnuftiraissotnitsand JfteoorasnGcoeLunatf.,fiAstpenyd,arnaednwdhiJssaocmmkeesntoinwmederusrefipingaghitdthe eitmebregceonmceisesabmsoalyutaerliyseneicneswshaircyh for thepublicsafety thepublic things he did was to request the Con Warof1812. or gress to appropriate for his use a goodto make expenditures, the subjectofwhich wouldbe (cid:147)secret fund,(cid:148) contained in the bud very defeatedbypublicity. In get ofthe Department ofState and EarlyAttempts at Oversight nation is theapplicationnoofsuch innocuously called the (cid:147)Contingency Fund for the Conduct ofForeign finds to be madepublic. In time Intercourse.(cid:148)~This fund was a pot of Fromotfitmheetroeptuibmleicd,urmienmgbtehreseoarfly ofwaror impendingdanger, the cmloanndeeystaivnaeilianbtleelltiogetnhceePpruerspiodseenst.for yiCenoagnrgsorfeesxspetnrideidtutroeosbmtaaidneafnraocmctohuent smiatkuaetiiotnneocfetshsearcyotuontermyplwoilylindi By the third year ofWashington(cid:146)s President(cid:146)s secret intelligence fund as vidualsfor thepurpose of presidency, the fund amounted to well effect oversight ofthe activ obtaining information or render as to 12 percent ofthe national budget. ities it was used to finance. In one ingother importantservices who Expenditure ofmoney from the debate over this issue, SenatorJohn couldnever beprevailedupon to fund was done on the signature of Forsyth, later to become Secretary of actifthey entertainedthe least the President, with no further State, declared: apprehension thattheir names or accounting required. (This practice theiragency wouldin any contin established the precedent for a simi The experience oftheArticles of gency be revealed. lar provision contained in the CIA Confederation havingshown the Act of 1949.) necessity ofsecretconfidential agencies inforeign countries, Period ofBenign Neglect The secret fund was used for numer very early in theprogress ofthe ous intelligence operations by our Federal Government, aflindwas President Polk(cid:146)s defiant stance early presidents, including: setapart, to be expendedat the regarding Congressional oversight 98 Oversight The Congress was determined to rein in the Nixon administration and effectivelystaved offsignificant over to ascertain the extent to extent to which the nation(cid:146)s intelli sight by the legislative branch for gence agencies had been involved in more than a century. It was not until which the nation(cid:146)s questionable, ifnot outright illegal, after WorldWar II and enactment of intelligence agencies had activities. the National SecurityAct of1947 that the Congress again tried to over been involved in A series oftroubling revelations see US intelligence activities. questionable, ifnot started to appear in the press con cerning intelligence activities. The outright illegal, activities. With the establishment ofthe CIA dam broke on 22 December 1974, as the nation(cid:146)s first permanent, staru 9~ when TheNew York Timespublished tory, and national intelligence entity, a lengthy article by each house ofthe Congress assigned Seymour Hersh detailing operations oversight responsibility this engaged in by the CIA over the years over new executive branch capability to its will, to seek information and that had been dubbed the (cid:147)family ramoiefntsdCtpIeeAecAp.t(cid:146)spirvIoenapnAardcritamouteatilhdoepnrSrseaicrDntvteiiefccleeel,snisgaCeewonacmSremueinbetcstsoeme pgkernreosssownlaaelndldgye,asoasnaasciumtbijezeemcntb,sewwrohouifclhdCoIn jiaaegntwavteioelnlmssvp.tit(cid:148) nsfgCootraovesiessgrauntsbsvliaeencraattdtieiofronosnrpaearintgodtngecrmgoapovmtevssretrn cies(cid:146) activities was limited largelaygteon rather nothave.... ments were reported for the first the chairmen and ranking minority time. In addition, the article dis members ofthose committees/sub Another member commented several cussed efforts by intelligence agencies committees. Staffcognizancewas years later that: to collect information on the politi generally restricted to one or two cal activities ofUS citizens. senior staffmembers ofeach ofthe Ihavefoundlittlehesitation oversight bodies whose principaljob on thepartofthe Congress to These revelations convinced many was to make certain that the needs of supportandtofinance our intel Senators and Representatives that the the intelligence agencies were ligence work with allitssecrecy. Congress itselfhad been too lax, included in the annual Defense trusting, and naive in carrying out its Department budget. Oversight such oversight responsibilities. (Many of (cid:149)atsheitDwiarse,ctwoarsotfypCiecnatlrlaylwIonrtkeelldigoeuntceby Tothpiineurseahdnadtniodsob-feotfthfheevCiaoecnwcgeropeftseosdvieomrnsoaidlguhtscon tbrhieesfoe-dcatollsedomfeammileymbjeewreslsohnadthbeeen gaCronendsgs,arewfsiestwhasselinatitwloehroimlneev.moblevermsenotftohfethCeon scCieIgnhAttuirbnyod1fi9oe4ls7l.ofwoCrionongvgetrrheesasciqruoeanarattlieorhniooosftfvoeatrrhie hWexiaigtshetlriygngacthoeavreprgeseridigohadttmptoahsneepylhste,ernebdueotdfittnhoetohpet for selective amnesiawhen asked if ans refer to it as an (cid:147)era oftrust(cid:148) or they had known about these While occasional proposals were put as the (cid:147)period ofbenign neglect.(cid:148) As activities.) forth during the 1950s and 1960s to the 1970s approached, however, omi ecsotnadbulcisthimnogrseelreoctbuisntteolvleirgseingchet by nous clouds started to appear. The first legislative response was mittees, none ofthese proposalcsowams eRnyaacntmAemnetnidnm1e9n7t4tooftthheeFHourgehiegns- ever seriouslyconsidered. Most mem GettingTough Assistance Act of 1961. This amend btehresvoifewCoenxgprreessssedtebnydeSdentaotaogrreLeevweitrh ment addressed the question ofCIA ett Saltonstall, who stated in 1956: Bunyptohpeuleaarrlyyearins Soofutthheea1s9t70Ass,iathaend coofvaeprptraocptriioantsedanfdunpdrsohfiobrittheedirthe use war con the unfoldingWatergate scandal duct unless and until the President Itis nota question ofreluctance brought the era ofminimal oversight (cid:147)finds(cid:148) that each such operation is on thepartofCIA officials to to a screeching halt. The Congress important to the national security speak to us. Instead, itis a ques was determined to rein in the Nixon and submits this Finding to the tion ofour reluctance, ifyou administration and to ascertain the appropriate Congressional 99 Oversight The first few ofthe years oversight committees new somewhat rocky were as committees(cid:151)a total ofsix commit they fought for turfwith These recommendations led to the tees. (This grew to eight committees establishment ofthe SSCI on 19 after the House and Senate intelli more established May 1976 and the HPSCI on 14 gence committees were established.) committees which had July 1977. The HPSCI was estab ... lished more than a year after the The followingyear, Congress actu previously been SSCI because the House ofRepresen ally terminated funding for a covert responsible for tatives was so disgusted with the program(cid:151)the secret military support leaking ofthe Pike committee report Congressional oversight of ofthe UNITA faction in theAngo that itwas not certain it wanted a Ian civil war. In early 1975, intelligence. permanent intelligence committee. additional disclosures surfaced regarding CIA domestic spying ~9 The first fewyears ofthe new over operations and the COINTEL pro sight committees were somewhat gram ofthe FBI to undermine the rocky as they fought for turfwith activities ofthe civil rights and anti- the intelligence agencies had made in more established committees, princi Vietnam war protest movements. pally theArmed Services and protecting national securityand Appropriations Committees, which These further revelations convinced about the significant capabilities they had previously been responsible for the Congress that it could not rely possessed. Congressional oversight ofintelli solelyon the presidentiallychartered gence. They also battled the Carter Rockefeller Commission to investi As shocked as these members were administration over the issue ofchar gate illegal abuses, both foreign and the abuses, they equally ter legislation for each ofthe domestic, committed by US intelli over were intelligence agencies. Essentially, this impressed by the abilities ofthe Intel gence agencies. Each house ofthe proposed legislation would have Congress proceeded to establish its ligence Community (IC) and did not defined in law precisely the mission own special investigating committee. want to advocate any action that ofeach intelligence agency and the In the Senate, this committee became would remedy the former but activities each could and could not known as the Church committee, destroy the latter. They did, how undertake. The executive branch named for its chairman, Senator ever, want to establish a mechanism opposed such definitive legislation, Frank Church ofIdaho. The House to ensure that henceforth the intelli and it eventually succeeded in pre committeewas the Pike committee, gence agencies would have effective venting its enactment. In 1978, after its chairman, Representative however, the oversight committees Congressional supervision, account Otis Pike ofNewYork. did enact the first IntelligenceAutho ability, and oversight. Consequently, rization Act, which gave them the both the Church and Pike commit During 1975 and the first halfof ultimate oversight hammer(cid:151)control 1976, the countrywas rocked byan tee final reports(cid:146) recommended the ofthe IC(cid:146)s purse strings. almost daily stream ofdisclosures establishment ofnew, follow-on, per from these committees documenting manent committees in their a pattern ofmisconduct by the respective houses ofCongress to pro Cooperation and Legislation nation(cid:146)s intelligence agencies. These vide continuing oversight and to disclosures concerned fairlywide consider such additional legislation In these earlyyears, the committees spread abuse ofthe civil rights of as might be deemed necessary. slowly distanced themselves from the American citizens; activities thatvio Church and Pike committees to lated applicable laws and executive (cid:145)The Pike committee neverpublished become Congressional advocates for branch policies; and clandestine oper an official final reportbecause its draft intelligence. The Soviet invasion of ations overseas that seemed to reportwas leaked to The Village Voice Afghanistan and the Iranian seizure of conflictwith US values. At the same newspaper before completing a secu American hostages in Tehran helped time, however, these investigations rity review, and the full House dis persuade the public and the Congress served to educate committee mem banded the committee in that too tight a rein on the intelli bers about the valuable contributions embarrassment. gence agencies could be disastrous. As 100 Oversight The spirit ofcooperation between the Congressional oversight committees and a result ofthis changed outlook, the the IC sorely tested release ofAmericans being held hos was proposals for intelligence charters tage in Lebanon. This Finding had died. Congressional oversight, follow during the first specifically ordered that the oversight ing the landslide victory ofRonald administration of committees not be notified. It was Reagan in the election of1980, then revealed that proceeds from the changed gears from trying to control President Ronald Reagan. arms sales were used to provide assis the intelligence agencies to seeking to tance to the Contras that appeared to 9, assist them in carrying out their violate the Boland amendments. Dur responsibilities. ing the course oftheir investigations, the committees learned that some Congressional oversight, which had was followed by the enactment in administration officials and IC per gone from benign neglect in the 1984 ofthe CIA Information Act, sonnel had considered the idea of 1950s, 1960s, and early 1970s to which exempted certain CIA opera using excess funds from the Iranian oversight based on suspicion, doubt, tional files from requirements ofthe arms sales to fund covert action pro and micromanagement in the late Freedom ofInformationAct. grams, thus completely avoiding the 1970s, entered an era ofcooperation Congressional oversight process. in the 1980s. In fairly rapid succes sion, the oversight committees either A special prosecutor was appointed Renewed Tension drafted or assisted other Congres to investigate violations ofapplicable sional committees with concurrent laws, and the oversight committees jurisdiction in drafting a series of The spirit ofcooperation between tried to enact legislation to force the legislative initiatives which, upon the Congressional oversight commit President to notify the committees of becoming law, proved to be ofgreat tees and the IC was sorely tested all covert actions within 48 hours. assistance to the IC. during the first administration of Several legislative attempts were President Ronald Reagan. The over made to achieve this, and, in 1990, First came the Foreign Intelligence sight committees, particularly the such a provision was included in the SurveillanceAct, which requires that HPSCI, became increasingly alarmed IntelligenceAuthorization Bill for a court order be obtained from a spe over the role US intelligence agencies fiscal year 1991. President Bush cial court established by theAct for were playing in the implementation vetoed the bill, principally because it all electronic surveillance for intelli ofthe administration(cid:146)s CentralAmer contained this provision. The com gence purposes within the United ican policy. The issue ofgreatest mittees were unable to secure aveto States. (In 1994, thisActwas concern was the CIA(cid:146)s support to the override, and they ended the dispute expanded to impose the same court Contra rebels in Nicaragua. Ulti by agreeing to accept notification (cid:147)in order procedure for physical surveil mately, a series offunding a timely fashion.(cid:148) But the issue lance for intelligence purposes.i Next restrictions were enacted (the Boland remains far from resolved, and some came the Classified Information Pro amendments) that put limits on aid future incident could easily revive it. cedureAct, which established to the Contras. statutoryprocedures for the handling ofclassified information in Federal The second Reagan administration Reorganization criminal proceedings. The Intelli produced the so-called Iran-Contra gence OversightAct of 1980 affair, which the oversight commit InJanuary 1990, the chairmen of amended the Hughes-Ryan Amend tees viewed as the most serious both intelligence oversight commit ment to require notice ofcovert breakdown ofthe trust between the tees introduced far-reaching bills to actions only to the two intelligence executive branch and the Congress reorganize the IC. During the first committees; the requirement to since the oversight committees were halfof 1992, the two committees notifysix other committees was elim established. In late 1986, the com held extensive public hearings on inated. In 1982, the Intelligence mittees learned that a covert action these proposals. By fall, and after sev Identities ProtectionAct becanle Finding had been approved eral months ofnegotiations with the law, making it a crime to reveal the 10 months earlier authorizing arms Bush administration, the committees identity ofintelligence agents. This sales to Iran in an effort to secure the attached (cid:147)The Intelligence 101 Oversight While the Congressional oversight committees are the harshest critics among OrganizationAct of 1992(cid:148) to the fis ofthe intelligence agencies, The Balance Sheet cal year 1992 Intelligence Authorization Act. This new legisla theyare also theirstrongest At this point, no other major legisla tion did not represent a radical defenders tive initiatives appear to be on the departure from the status quo. Essen horizon. The two oversight commit tially, it merely enshrined into law (cid:145)9 tees continue to exercise oversight what Director ofCentral Intelligence and to use their fiscal control to (DCI) Robert Gates had already The intelligence OrganizationAct of obtain the intelligence agencies(cid:146) com accomplished in restructuring the 1992 represented the first successful pliance when necessary. Year in and IC. It did, however, represent a sig year out, however, the committees effort by the Congress since the nificant change in the legal authorize and the appropriations framework for US intelligence activi National SecurityAct of 1947 to committees appropriate the bulk of ties. In amending the National enact organizational legislation for the budget requested by the DCI. SecurityAct of 1947, this new the IC. Changes made by the committees statute: really amount to nibbling at the mar gins. In addition, the oversight In the IntelligenceAuthorization Act committees have not been at all reluc (cid:149) Recognized the DCI as the statutory for fiscal year 1995, the oversight tant to increase funding for programs adviserto theNational Security committees included a provision and capabilities they perceive to be Council. mandating a Presidential Commis important. In several instances over sion to review the roles and missions theyears, the committees have actu (cid:149) Established theNational Intelligence ofUS intelligence agencies in the ally pushed the IC and the Cdeovuenlcoiplinasgtahnedhpiugbhelsitshaiuntghoirntietlylifor post(cid:151)Cold War era. This commis eaxdpmeinnissitvreaptiroongsraimnstoilnavroglevriangndtemcohrnei genceanalysis. sion, chaired by former Defense cal collection systems, HUMINT, Sectretary Les Aspin and, after his and certain covert action operations. death, by another former Defense (cid:149) GesatvaebltihsheiDngCpIriorreistpioenssifboirliUtSyfGoorvern Secretary, Harold Brown, met its Today, Congressional oversight is intelligence-gatheringandfor charge ofproducing a report to the accepted and recognized as a fact of cmoeonrtdinatingall HUMINT President and the Congress by 1 life. The top echelons ofthe IC are replete with former professional collection. March 1996. The Congressional staffers ofthe intelligence oversight committees will play a cen committees, and the committees (cid:149) Gave the DCI approval authorityfor tral role in transforming any ofthe themselves continue to draw staff the budgetsofthe intelligence Commission(cid:146)s recommendations expertise from the Community. agencies. into law in the event it is necessary While the Congressional oversight to amend or replace existing statutes, committees are among the harshest critics ofthe intelligence agencies, (cid:149) Defined the composition ofthe IC such as the National SecurityAct of they are also their strongest for thefirst time. 1947 and the CIAAct of 1949. defenders. 102