The other issue raised by secrecy is Congress’s effectiveness in acting as a surrogate for the public. The U.S. government ostensibly operates on the principle of openness: Its operations and decisions should be known to the public. (The Constitution does not mention the public’s right to know, however. The Constitution safeguards freedom of speech and of the press, which are not the same as a right to information.) In the case of intelligence, the principle of openness does not apply. Some people accept the reasons for secrecy and the limitations that it imposes on public accountability. Others have concerns about the role of Congress as the public’s surrogate in executive oversight. Their reasons vary, from doubts about the executive branch’s willingness to be forthcoming with Congress to concerns about Congress’s readiness to air disquieting information.
INTELLIGENCE BUDGET DISCLOSURE: TOP OR BOTTOM?
One of the curiosities of the debate over intelligence budget disclosure was the term used for the number most at issue. The overall spending total for intelligence was alternatively described as the “top line number” or the “bottom line number.” It sometimes sounded as if people on the same side-those in favor of or opposed to disclosure—were at odds with themselves
CONGRESS AND THE INTELLIGENCE BUDGET. A recurring issue for Congress has been whether to reveal some aspects of the intelligence budget. Article I, Section 9, paragraph 7 of the Constitution requires that accounts of all public money be published “from time to time.” This phrase is vague, which allowed each successive administration to argue that its refusal to disclose the details of intelligence spending was permissible. Critics contended that this interpretation vitiated the constitutional requirement to publish some account at some point. Most advocates of publication were not asking for a detailed publication of the entire budget but wanted to know at least the total spent on intelligence annually.
(See
box,
“lntelligence Budget Disrlosure: Top
or
Bottom?”)
The argument over publishing some part of intelligence spending came to a head in 1997, when DCI George Tenet revealed that overall intelligence spending for fiscal 1998 was $26.6 billion. He provided the number in response to a Freedom of Information Act suit, acting to end the suit and to limit the information that the intelligence community revealed. Tenet later refused to divulge the amount requested or appropriated for fiscal 1999, arguing that to do so would harm national security interests and intelligence sources and methods. Various attempts to make publishing the overall intelligence budget mandatory failed over disagreements between the House and Senate until July 2007, when Congress passed a requirement to do so as part of a bill implementing the recommendations of the 9/11 Commission. The law required the DNI to disclose the aggregate amount appropriated in the National Intelligence Program (NIP), beginning one month after the end of fiscal year 2007, meaning October 30, 2007. On that date the DNI’s office released the aggregate appropriation for the NIP for fiscal year 2007 ($43.5 billion). The DNI’s statement added that no additional budget data would be released, including specific breakdowns by agency or by program, as these disclosures would harm national security. The law requiring the disclosures allows the president, beginning with fiscal year 2009 (October 1, 2008), to delay or waive release of the NIP figure if the president informs the intelligence committees that disclosure would damage national security. Thus, the debate over disclosing the intelligence budget may still be where it was after Tenet’s data release. Thus, it is instructive to review the arguments that both sides raise in the debate. Proponents of disclosure cite, first and foremost, the constitutional requirement for publication. They also argue that disclosure of this one number poses no threat to national security, because it reveals nothing about spending choices within the intelligence community.
Proponents of continued secrecy tend not to cite the “time to time” language of the Constitution, which is a weak argument at best. Instead, they argue that Congress is privy to the information and acts on behalf of the public. They also say that disclosure of the overall amount could be the beginning of demands for more detailed disclosure. Noting how little this one number reveals (and implicitly accepting their opponents’ argument that its disclosure would not jeopardize security), they contend that the initial disclosure would inexorably lead to pressure for more detailed disclosures about specific agency budgets or programs and that these disclosures would have security implications.
DCI Tenet’s disclosure revealed that many public estimates of the size of the intelligence budget were fairly accurate, as was the estimate that the intelligence budget is roughly one tenth the size of the defense budget. As disclosure proponents had long argued, national security did not unravel. However, as disclosure opponents maintained, many who had advocated disclosure were dissatisfied because the figure provided so little information.
Disclosing the overall number entails political risks for U.S. intelligence. Relating spending to outputs is more difficult for intelligence than it is for virtually any other government activity. How much intelligence should $43.5 billion (or any other figure) buy? Should output be assessed by the number of reports produced? The number of covert actions undertaken? The number of spies recruited? Moreover, the overall number—which does not strike many as a small sum—leads some people to question intelligence community performance. Statements along the lines of “How could they miss that coup (or lose that spy) when they have $43.5 billion?” would ensue. Such sentiments would add little to a meaningful debate about intelligence because these types of questions reveal a lack of appreciation for how intelligence functions. The budget is not neatly divided into specific issues (for example, terrorism or China). Rather, it funds activities (collection, analysis, systems administration, and so on), which are then allocated by senior managers into the areas where they are deemed to be most needed. Moreover, the intelligence community does not have the luxury of concentrating on just a few issues and disregarding the others, or putting them on hold until resources are available or the issues grow critical. The intelligence agencies devote resources to a very large array of issues at any one time. Therefore, the overall budget figure offers virtually no insight into how well intelligence should be able to perform on any given issue or overall.
Finally, just as the budget is Congress’s main means of control over the intelligence community, it is also the locus of Congress’s responsibility for how well intelligence performs. Congress ultimately decides which satellites are built, how many are built, and how many analysts and clandestine officers the intelligence community can afford to have on its payroll. Although this was self-evident, it did not become an issue until after the 2001 terrorist attacks. Some people observed that Congress bore some responsibility for intelligence performance because of the steep decline in resources devoted to intelligence after the fall of the Soviet Union in 1991. Budgets were cut and, according to DCI Tenet, the equivalent of twenty-three thousand positions were lost over the decade of the 1990s, affecting performance and capabilities. This apparently became a controversial issue within the joint inquiry, as some members wanted to take note of this responsibility and others refused. Ultimately, the joint inquiry’s report did not address the issue. Given that the Joint Inquiry was actually a combination of the House and Senate Intelligence Committees, some critics felt they had not been forthright in addressing their own responsibilities.
REGULATING THE INTELLIGENCE COMMUNITY. Since the end of World War 11, Congress has passed only two major pieces of intelligence legislation: the National Security Act of 1947 and the Intelligence Reform and Terrorism Prevention Act of 2004. Thus. the structure of the intelligence community was remarkably stable throughout the cold war and the immediate post-cold war period. Only as a result of the terrorist attacks and the war in Iraq was there sufficient political impetus to foster major changes. (See chap. 14.) Four presidents have issued extensive EOs on intelligence—Gerald R. Ford in 1976, Jimmy Carter in 1978, Ronald Reagan in 1981, and George W. Bush in 2004.
President George Washington issued the first
executive order
under his presumed authority, setting a precedent. Each president since also has done so. No specific constitutional power grants a president this authority. The authority to write EOs stems from the president’s obligation, under Article II, Section 3, to “take Care that the laws be faithfully executed.” EOs are legal documents but may not conflict with a law or a judicial decision. Thus, they sometimes tend to operate in areas where there are neither legislation nor judicial decisions. The major advantage of EOs is that they give presidents the flexibility to make changes in the intelligence community to meet changing needs or to reflect their own preferences about how the intelligence community should be managed or its functions limited. The major disadvantages of EOs are that they are impermanent, subject to change by each president (or even by the same president): they are not statutes and therefore are more difficult to enforce; and they give Congress a limited role. (As a rule, the executive branch has made Congress privy to drafts of executive orders in advance of their promulgation and has given Congress opportunities to comment on them.)
Despite the difficulty that Congress and the executive branch have experienced in making legislative changes, they offer the advantages of being permanent, of being statutes in law and therefore more enforceable, and of allowing Congress a major and proper role. However, legislation is more likely to raise major disputes between Congress and the executive branch and thus is more difficult to enact. Congress is also more likely to harbor several points of view on major intelligence issues than is the executive branch, where the major issues tend to be agency-parochial in nature. This divergence of views within Congress was evident during the debate on the 2004 intelligence reform bill.
Given the more permanent nature of legislation, some people question whether certain regulations should not be made statutory largely because the actions they cover are embarrassing or inappropriate. However, if legislation lists proscribed activities, does it implicitly permit those activities that are not listed? No one wants to or is likely able to come up with a comprehensive list of activities that should either be explicitly permitted or banned. Moreover, some activities will likely enter into a gray zone of interpretation. The debate over torture—or, more correctly—what constitutes torture, is a good example. Few people would advocate the use of torture. Moreover, torture is specifically banned in the Constitution. The Eighth Amendment bans “cruel and unusual punishment.” But few people would be comfortable going over a list of techniques and then choosing which ones should be specifically permitted in legislation.
The parameters of congressional oversight are usually not dealt with in legislation. All congressional committees are created as part of the rules of the House and Senate. The same is true for jurisdiction and membership. The National Security Act does specify types of intelligence information that have to be shared with Congress, such as that relating to covert action, but the law is written as a requirement levied on the executive. During the debate over the 2004 legislation some suggested combining the two intelligence committees into one joint committee, an old issue, for reasons of security and to reduce the time executive officials have to spend testifying, often on the same subject, before more than one committee. As has been the case in the past, congressional organization was not legislated and was left to the respective chambers.
THE ISSUE OF CO-OPTION. As eager as Congress is to be kept informed about all aspects of policy. a cost is incurred when it accepts information. Unless members raise questions about what they are told, they are, in effect, co-opted. Their silence betokens consent, as the maxim of English law says. They are free to dissent later on, but the administration will be quick to point out that they did not raise any questions at the time they were briefed. Having been informed before the fact tends to undercut Congress’s freedom of action after the fact.
This dynamic is not unique to intelligence, but intelligence makes it somewhat more pointed. The nature of the information, which is both secret and usually limited to certain members, makes co-option more easily accomplished and has more serious consequences. It also puts additional pressure on the members of the intelligence committees, who are privy to the information and are acting on behalf of their entire body.
Congress has no easy way to avoid the inherent exchange of foreknowledge and consent. It is unlikely to revert to the trusting attitude expressed by Senator Saltonstall. Nor can Congress be expected to raise serious questions about every issue just to establish a record that allows it to dissent later on.
WHAT PRICE OVERSIGHT FAILURES? Even when the intelligence oversight system is working well, most members and congressional staff have difficulty running the system so as to avoid all lapses. Most members and staff involved in the process understand the difference between small lapses and large ones. Some of the larger lapses for which Congress has taken the intelligence community to task are
• Failure to inform the Senate Intelligence Committee that CIA operatives were directly involved in mining Corinto, a Nicaraguan port, during the contra war. The CIA let it appear that the contras had carried this out on their own. When the truth became known, not only did Vice Chairman Daniel Patrick Moynihan, D-N.Y., resign—although he later changed his mind—but Chairman Barry Goldwater, R-Ariz., also reprimanded DCI William J. Casey (1981-1987) in harsh and public terms.
• Failure to inform Congress on a timely basis when agents in Moscow began to disappear, which was later presumed to be the result of the espionage of CIA agent Aldrich Ames. (The assessment as to who caused the losses may have changed as a result of the damage assessment from the Robert Hanssen spy case.) The House Intelligence Committee issued a public report critical of the CIA, with which the CIA agreed.