Apart from its constitutional mandate, a major factor driving Congress in all matters of oversight is the desire to be treated by the executive as an equal branch of government. This is not always easy to achieve, as the executive branch ultimately speaks with one voice, that of the president, while Congress has 535 members. The significant difference leads some people to question whether Congress’s constitutional authority works in reality.
Moreover, in the area of national security, Congress has often given presidents a fair amount of leeway to carry out their responsibilities as commander in chief. This is not to suggest that partisan debates do not arise over national security or even intelligence issues, such as the 1960 allegations about a missile gap or the 1970s allegations about a strategic window of vulnerability (see chap. 2). To the contrary, debate has become more partisan in the post-cold war period.
Congress has several levers that it can use to carry out its oversight functions.
BUDGET. Control over the budget for the entire federal government is the most fundamental lever of congressional oversight. Article I, Section 9, paragraph 7, of the Constitution states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
The congressional budget process is complex and duplicative. It is composed of two major activities:
authorization
and
appropriation.
Authorization consists of approving specific programs and activities. [See chap. 3 for the programs that make up the National Intelligence Program (NIP) and the Military Intelligence Program (MIP).] Authorizing committees also suggest dollar amounts for the programs. The House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence are the primary authorizers of the intelligence budget. The House and Senate Armed Services Committees authorize some defense-related intelligence programs. Appropriation consists of allocating specific dollar amounts to authorized programs. The defense subcommittees of the House and Senate Appropriations Committees perform this function for intelligence.
CONGRESSIONAL HUMOR: AUTHORIZERS VERSUS APPROPRIATORS
The tension between those who sit on authorizing committees and those who sit on appropriations committees is pithily characterized by a joke often heard on Capitol Hill:
“Authorizes think they are gods; appropriators know they are gods.”
Technically, Congress may not appropriate money for a program that it has not first authorized. If authorizing legislation does not pass before a congressional session ends, the appropriations bills contain language stating that they also serve as authorizing legislation until such legislation is passed. (President George H. W. Bush once vetoed an intelligence authorization bill because Congress had included a requirement that the president give Congress forty-eight hours’ prior notice of covert actions. Congress subsequently passed a refashioned authorization bill omitting that language. The congressional staffer responsible for managing this piece of legislation was George J. Tenet, who was the staff director of the Senate Intelligence Committee and later would serve as DCI.)
Some tension usually can be felt between the authorizers and the appropriators. Authorization and appropriations bills sometimes vary widely. For example, authorizers may approve a program but find that it is not given significant funds—or any funds—by the appropriators. This is called
hollow budget authority.
Or appropriators may vote money for programs or activities that have not been authorized. These funds are called
appropriated but not authorized
(or “A not A”). In both cases, the appropriators are calling the tune and taking action that disregards the authorizers.
(See
box,
“Congressional
Humor:
Authorizers Versus Appropriutors.”)
When funds are appropriated but not authorized, the agency receives the money but may not spend it until Congress passes a bill to authorize spending. Sometimes, however, an agency submits a reprogramming request to Congress, asking permission to spend the money, and Congress can informally approve it. If Congress does not pass a new authorization bill or approve a reprogramming request, the money reverts to the Treasury at the end of the fiscal year.
After the 9/11 Commission (National Commission on Terrorist Attacks upon the United States) issued its report, some discussion emerged about combining intelligence authorization and appropriations into one committee in each chamber. Such a change would end some of the potential budget disconnects. It also would remove intelligence budgets from the defense appropriations process. However, Congress did not act on the proposal. In 2007. House Speaker Nancy Pelosi, D-Calif., made enactment of this recommendation one of her first priorities. The House created the Special Intelligence Oversight Panel as an improved link between the authorizers, the House Intelligence Committee, and the appropriators. The new panel has three members from the House Intelligence Committee and ten from House Appropriations, including the chairman and ranking member of the Defense Appropriations Subcommittee. The chairman of the new panel is a member of the House Intelligence Committee. The panel’s main role is to help the appropriators deal with the intelligence budget, which it does primarily by preparing a report for the Defense Appropriations subcommittee in which the panel makes funding recommendations. Assuming that the appropriators agree, this then becomes part of the basis for the classified part of the defense appropriations bill dealing with intelligence. This is not exactly the system recommended by the 9/11 Commission (a joint intelligence authorization/ appropriations committee). Jurisdiction is the main source of power for any congressional committee and the new panel was therefore a compromise. It has struck some observers as being redundant, because there is already a provision that the House Intelligence committee include members of the Appropriations committee, which it has. This older structure did not give the authorizers the insight or clout they desired with Appropriations. The new panel may improve this.
The Senate, in its version of the 2004 intelligence legislation, included a provision making public the budget figure for intelligence. The Senate also expected to create an appropriations subcommittee specifically for intelligence. When the unclassified budget provision was removed from the final bill, the issue of a separate Senate appropriations subcommittee for intelligence became problematic. Even if the intelligence budget figure approved by the subcommittee were kept secret, it could easily be derived by totaling up all other appropriations and subtracting that amount from the total. The remainder would be the intelligence appropriation. Thus, for the sake of secrecy, it remains more convenient to have the intelligence appropriation subsumed in the defense appropriation, which in turn makes a separate intelligence subcommittee unnecessary.
The centrality of the budget to oversight should be obvious. In reviewing the president’s budget submission and crafting alternatives or variations, Congress gets to examine the size and shape of each agency, the details of each program, and the plans for spending money over the next year. No other activity offers the same degree of access or insight. Moreover, given the constitutional requirement for congressional approval of all expenditures, in no other place does Congress have as much leverage as in the budget process.
Critics of the annual budget process argue that it not only gives Congress insights and power but also subjects the executive to frequent fluctuations in funding levels, given that they can vary widely from year to year. Every executive agency dreams of having multiyear appropriations or
no year appropriations—
that is, money that does not have to be spent by the end of the fiscal year. Although some funds are allocated in these ways, Congress resists doing so on a large scale, because such a move would fundamentally undercut its power of the purse. (Appropriated funds that are not spent at the end of a fiscal year are returned to the Treasury. Each agency keeps careful watch over its spending to ensure that it spends all allocated funds by the end of the fiscal year. The Office of Management and Budget (OMB) also monitors agencies’ spending rates throughout the fiscal year to ensure that they are not spending either too quickly or too slowly.)
Congress has, in recent years, used supplemental appropriations bills with increasing frequency for intelligence. Basically,
supplemental appropriations
make available to agencies funds over and above the amount originally planned. In the case of an unforeseen emergency the requirement for a supplemental bill is easily understood. But when supplementals are used on a recurring basis—perhaps annually—they become problematic. Supplemental appropriations are single-year infusions of money. Although no guarantee is made for the size of any appropriation from year to year, supplementals are seen as being riskier in terms of the likelihood that they will be used again. Thus, if a crucial activity is being funded by supplemental appropriations, it may be necessary in the following year either to terminate the activity for lack of funds or to curtail some other activity in the budget (called “taking it out of hide”). Clearly, agencies would prefer to have the supplemental funds included in the base—that is, added to their regular budget, so they can plan more effectively for the ensuing years. Congress has been unwilling to do this, largely as a means of controlling growth, despite the effect that repeatedly passing supplementals has had on programs. The use of supplementals has become so regular that both Congress and executive agencies plan for them at the beginning of a budget cycle.
The budget gives Congress power over intelligence. In the 1980s, for example, Congress used the intelligence budget to restrict Reagan administration policy in Nicaragua, passing a series of amendments, sponsored by the chairman of the House Permanent Select Committee on Intelligence, Edward P. Boland, D-Mass., that denied combat-support funds for the contras. Efforts to circumvent these restrictions led to the Iran-contra scandal.
HEARINGS. Hearings are essential to the oversight process as a means of requesting information from responsible officials and obtaining alternative views from outside experts. Hearings can be open to the public or closed, depending on the subject under discussion. Given the nature of intelligence, a majority of the hearings of the two intelligence committees are closed.
Hearings are not necessarily hostile, but they are adversarial; they are not objective discussions of policy. Each administration uses hearings as a forurn for advancing its specific policy choices and as opportunities to sell policy to Congress and to interested segments of the public. Congress understands this and is a skeptical recipient of information from the executive branch, regardless of party affiliation. Intelligence officials are somewhat exempt from selling policy, in that they often give Congress the intelligence community’s views on an issue without supporting or attacking a given policy. They gain some protection from congressional recriminations because of the line separating policy and intelligence, unless they are perceived as having crossed that line. Again, this was a concern for some members in the case of Iraqi WMD. (Executive branch policy makers may perceive the intelligence community’s congressional testimony as unsupportive or as undermining policy, even if that was not the intelligence community’s intent.) However, when intelligence officials testify about intelligence poticies—capabitities. budgets, programs, intelligence-related controversies—they are also in a sales mode vis-à-vis Congress.
Hearings are often followed by questions for the record (QFRs or “kew-fers”) submitted to the witnesses and their agencies by members or their staffs to follow up on issues that surfaced during the hearings. Although QFRs give the executive an opportunity to make their case again or to add new supportive information, the requests are often viewed as punitive homework assignments. QFRs can also be used by Congress as a tool (or weapon) in a struggle with an agency that seems unwilling to offer information or is stubborn about certain policies.
NOMINATION. The ability to confirm or reject nominations is a profound political power, which resides in the Senate. Nominations for the DCI were not controversial until 1977, when President Jimmy Carter’s nominee, Theodore Sorensen, withdrew his nomination after appearing before the Senate Select Committee on Intelligence and responding to a number of issues that had been discussed publicly about him. The issues included Sorensen’s World War Il status as a conscientious objector, which raised questions about his willingness to use covert action: and the possible misuse of classified documents in his memoirs as well as his defense of Daniel Ellsberg, who leaked to the press the classified Pentagon Papers (a DOD study of the Vietnam War), which raised concerns about his ability to protect intelligence sources and methods.
Since 1977 the Senate has held several other controversial DCI nominee hearings. Robert M. Gates withdrew his first nomination in 1987 as the Iran-contra scandal unfolded. His second nomination, in 1991, featured a detailed investigation of charges that Gates had politicized intelligence to please policy makers. In 1997, Anthony Lake withdrew his nomination at the onset of what promised to be a grueling and perhaps unsuccessful series of hearings.
Critics of the nomination process—not just of intelligence positions but across the board—charge that it has become increasingly political and personal, delving into issues that are not germane to a nominee’s fitness for office. Defenders of the process respond that it is a political process, that the Senate is not supposed to be a rubber stamp, and that careful scrutiny of a nominee may preclude embarrassments later on. Regardless of which view is correct, the nomination process has become so formidable that it has convinced some potential nominees to decline office.