National Security Intelligence

by Loch K. Johnson

  In the autumn of 1974, this neglect of adequate intelligence supervision would change, beginning with a spy scandal and accelerating into the most thorough investigation ever made of the U.S. intelligence agencies. Soon, 1975 would become known as the “Year of Intelligence.”

  The Era of Uneasy Partnership (1974–86)

  Belief in intelligence exceptionalism underwent radical revision in the United States when the New York Times reported in 1974 that the Agency had been engaged in domestic espionage.4 The Bay of Pigs, the U-2 shoot-down, and CIA student subsidies were one thing, but spying on American citizens – voters back home – quite another. In the context of this stunning revelation, concurrent Times reporting on Agency covert actions against the Allende regime in Chile – a democratically elected government – took on added weight and drew further criticism of the CIA's secret operations. Reacting with rare alacrity, Congress set up panels of inquiry in January of 1975: first the Church Committee in the Senate (led by Frank Church) and what eventually became the Pike Committee in the House (chaired by Otis Pike). Not to be left behind, the Ford Administration established a presidential investigative commission, led by and named after Vice President Nelson Rockefeller (R, New York).

  The Church Committee, on which the author served as assistant to the Chairman, dug deeper than the other panels, spending sixteen months on its investigation and issuing a set of public reports that stood over six feet high (as well as other reports another six feet high that remain classified).5 The Church Committee confirmed that the Times was correct about CIA surveillance within the United States, as well as covert action against the democratic government of Chile; but the panel found that the newspaper accounts had only scratched the surface of wrongdoing by America's intelligence organizations. The investigative findings demonstrated, for example, that the CIA had opened the mail to and from selected American citizens, which generated 1.5 million names stored in the Agency's computer bank (Operation CHAOS). Moreover, Army intelligence units had compiled dossiers on 100,000 U.S. citizens during the Vietnam war era; and the vast computer facilities of the NSA had monitored every cable sent overseas, or received from overseas, by Americans between 1947 and 1975 (Operation SHAMROCK), and had engaged as well in questionable wiretapping within the United States (Operation MINARET).

  Among the most chilling of the Church Committee findings emerged from the vaults of the FBI: Operation COINTELPRO. The Bureau had created files on over one million Americans and carried out more than 500,000 investigations of “subversives” from 1960 to 1974 – without a single court conviction. As Senator Walter Mondale (D, Minnesota), a member of the Church Committee, recalled: “No meeting was too small, no group too insignificant” to escape the FBI's attention.6 From 1956 to 1971, the Bureau carried out secret smear campaigns against thousands of groups and individuals, simply because they had expressed opposition to the war in Vietnam or criticized the slow pace of the civil rights movement. The Klu Klux Klan made the Bureau hit list as well – as did seemingly any group that failed to fit into J. Edgar Hoover's Norman Rockwell image of a loyal American. Target Number One for Hoover, though, was the civil rights leader Martin Luther King, Jr., the victim of many campaigns of lies and innuendo perpetrated by the Bureau, including a blackmail attempt in 1964 that sought to push Dr. King into suicide on the eve of his acceptance speech for a Nobel Peace Prize.

  Historian Henry Steele Commager correctly observed that “perhaps the most threatening of all the evidence that [stemmed] from the findings of the Church Committee” was “the indifference of the intelligence agencies to constitutional restraint.”7 As a result of the Times reporting and the congressional and the Rockefeller inquiries, lawmakers vowed to change this indifference through the institution of laws, regulations, and, above all, a new philosophy of meaningful and consistent legislative review of intelligence activities. It was time to say goodbye to the earlier era of benign neglect.

  The law works: that was the central conclusion reached by the Church Committee. Each of the security objectives sought by presidents and their aides during the Cold War could have been achieved without descending into the dark realms of COINTELPRO, CHAOS, SHAMROCK, MINARET, and other questionable operations adopted by the intelligence agencies. The United States could fight the totalitarian states without becoming one itself. Liberty and security had to be kept in balance if America were to stay true to its democratic values and traditions.

  The Times reporting and the investigations of 1975 led to a sea change in attitudes within the United States, and soon after within other democracies around the world as well, about the need for better supervision of the secret services. Even before the establishment of the Church and Pike Committees, Congress passed the Hughes–Ryan Act in late December 1974. This law was revolutionary in concept. It required the President to explicitly approve (“find” – therefore, the approval is called a “finding”) all important covert actions. By requiring a statement of purpose about the covert action, endorsed by the commander in chief, this first step effectively ended the doctrine of plausible deniability. Next, the finding had to be reported to Congress in a “timely manner.” Since 1976 and 1977, the reports have been presented orally in executive session to SSCI and HPSCI (as with the examples that began this chapter).

  The Hughes–Ryan law did not go so far as to require congressional approval of covert actions, but it did set up an opportunity for lawmakers to influence these operations. After a covert action briefing, nothing would stop members of SSCI and HPSCI (meeting separately for the briefings) from expressing their opposition – or even having a vote on the merits of the covert action. Neither the opinions nor the vote would be legally binding, but a Committee that was riled up over what members considered an ill-advised operation could only be ignored at political risk by the DCI (or, today, the D/CIA and the DNI) and by the President. The nature of the opposition would matter. If it were only a junior member or two, the President might choose to ignore the criticism. If the opponents included powerful members of SSCI and HPSCI – say, the chairs – that would be a different story and a president would probably want to reconsider going forward with the covert action. Backing away might be prudent, as well, for a president facing majority opposition in both Committees. So while Hughes–Ryan provided no formal legal authority for Congress to stop a covert action in its tracks, it did require reporting on these operations to legislative overseers, and that sets the stage for political opposition within the sheltered confines of the oversight committees (SSCI and HPSCI) to form against moving forward with the proposal.

  Further, if SSCI and HPSCI opposed a covert action, but a president ignored this “suggestion,” members of the two Committees could convene a secret session of Congress and vote up or down to shut off money for the operation – an extreme contingency, but exactly what Congress did with the Boland Amendments to stop covert action in Nicaragua during the 1980s. Constitutionally, an irate set of lawmakers could (but never have so far) even bring impeachment proceedings against a president considered out of control in his or her conduct of a particularly questionable covert action.

  Short of these more extreme responses, members of Congress could vote against replenishment of the CIA's Reserve for Contingency Fund, through which lawmakers annually provide seed money for covert actions so the White House can move swiftly if necessary in ordering the use of the “third option” in emergency situations. Just as one should think twice about pulling on the tail of a tiger, so does a president and a DNI think twice about entering into a dispute with a congressional committee. This sense of executive branch prudence gives to the Hughes–Ryan Act an added unwritten dimension of power, even if the law is devoid of explicit authority for lawmakers to approve or disapprove these decisions.

  One of the continuing problems of the findings process has been the occasional authorization from the President for so-called “generic” or “worldwide” findings – broad statements that endorse vague covert actions. For examp
le, without elaboration, the wording of the finding might say: “The President finds in favor of using lethal force against terrorists worldwide.” This would be an ambiguous prescription for unleashing assassins and drones against any number of targets abroad, including American citizens who may be preaching jihad against the West from Yemen (as in the case of Anwar al-Awlaki, killed by a U.S. drone in 2011) or other nations. Especially when assassination is involved, critics advocate the use of more specific findings for each target, so that lawmakers and others in the covert action decision loop can review the merits of each case.

  Other statues designed to define the boundaries of probity for the secret agencies would soon be passed in the wake of Hughes–Ryan, such as the important Foreign Intelligence Surveillance Act (FISA) in 1978, which banned warrantless national security wiretaps. Two years later, Congress enacted a far-reaching law to further tighten supervision over America's secret agencies. Although only two pages in length, this Intelligence Oversight Act of 1980 bore sharp teeth, requiring prior (not just timely) notice to SSCI and HPSCI, and on all (not just CIA) important intelligence operations – collection and counterintelligence, too, in addition to covert action.

  Beginning with the Hughes–Ryan Act and carrying on until the Iran–contra scandal of 1987, lawmakers, presidents, and DCIs attempted during this experimental Era of Uneasy Partnership to fashion a workable relationship between democratic openness, on the one hand, and effective espionage, on the other hand – that is, between liberty and security. The result was a dramatic increase in attention on Capitol Hill to intelligence activities. When it comes to intelligence supervision by lawmakers and their staff, the difference between pre-1974 and post-1974 is as stark as night is to day. The Iran–contra affair would demonstrate, however, that this New Oversight was far from foolproof.

  An Interlude of Distrust (1986–91)

  Efforts by the NSC staff and a few CIA officers during the Reagan years to bypass Congress and conduct covert actions against the Sandinista regime in Nicaragua – even though prohibited by the Boland Amendments – displayed a disquieting failure of the New Oversight that had been established in 1974–80.8 Even when SSCI and HPSCI leaders directly questioned NSC staffers, including National Security Advisers Robert C. McFarlane and Vice Admiral John M. Poindexter, about the rumored super-secret organization, “The Enterprise,” created by the NSC staff to carry out the covert actions, the lawmakers were deceived. The NSC's top staff simply lied to members of Congress about these illicit operations.

  Following their investigation into the scandal, lawmakers enacted new legislation to further tighten executive and legislative supervision over the secret agencies. The Inspector General (IG) Act of 1989 established a meaningful IG office at the Agency, confirmed by the Senate and with a mandate to keep the members of Congress regularly and fully informed of any improper activities at Langley. In addition, the Intelligence Oversight Act of 1991 clarified the meaning and the limits of covert action and required formal written approval by the President in a finding, not just a slippery verbal assent. With these measures, the government would make another attempt at making the experiment in intelligence accountability work.

  The Era of Partisan Advocacy (1991–2001)

  A product chiefly of redistricting decisions across the country that produced an abundance of safe congressional districts, along with a harsh take-no-prisoners form of political rhetoric advocated by a new GOP Speaker, Newt Gingrich (Georgia), the post-Iran–contra atmosphere in Washington proved poisonous to constructive bipartisan support for intelligence within SSCI and HPSCI. This sudden partisan divide on the oversight panels was a startling departure from the past.9 Except for some acrimony and split votes generated by disagreements over whether to allow CIA covert actions in Nicaragua during the Reagan years, the Committees had almost always registered unanimous votes as they decided on intelligence policies, with members from both parties guided by a sense that intelligence matters were especially sensitive and ought to be placed above the normal partisan fray in Washington.

  Yet in the period after the Republican takeover of the Hill in the 1990s, notes Aberbach, a new mood emerged, one that was “hostile not only to the intent and behavior of political appointees, but to the missions of many federal programs and agencies.”10 Both HPSCI and SSCI proved vulnerable to this rising partisan storm. Knott attributes the growing polarization, in part, to a Republican wariness toward President Bill Clinton's foreign policy, as well as to a “simple partisan payback for years of perceived Democratic hectoring of Republican presidents.”11 Acrimonious partisan politics swirled around the nomination of Robert M. Gates for DCI in 1991 – his second try, this time successful by the narrowest vote margin of any DCI nominee before or since. By 1997, the politics of intelligence had become as vituperative as any other policy domain. The candidacy of Anthony Lake, the incumbent Democratic National Security Adviser for DCI, in 1996 led to a deeply bitter struggle between Democrats and Republicans in Congress, with Lake finally withdrawing his name from consideration. The hearings, described by an observer as “vitriolic,” were punctuated by the most heated public exchanges across the aisle in SSCI's history.12

  In a continuation of the political in-fighting, SSCI – under the leadership of Senator Pat Roberts (R, Kansas) – would soon vote along party lines to reject a proposed investigation of the second Bush Administration's decision in the aftermath of the 9/11 attacks to bypass the procedures of the FISA and engage in the warrantless surveillance of the international communications of American citizens. The SSCI Vice Chairman, John D. Rockefeller IV (D, West Virginia), pronounced the panel “basically under the control of the White House, through its chairman [Roberts].” Chairman Roberts was equally adamant that the Committee's Democrats were merely trying to score points against President Bush.13 “Got’ya” oversight became the standard practice for both parties on each of the intelligence oversight panels.

  The Era of Mass Surveillance (2001–12)

  Partisan squabbling over intelligence continued to roil SSCI and HPSCI after the Al Qaeda attacks against the United States in 2001. Indeed, according to a keen observer of Congress, the bickering grew even more heated. “One could only marvel at the degree to which partisanship had come to infect the work of the two committees,” writes L. Britt Snider, former SSCI counsel (as well as a former CIA inspector general). “Once held up as models of how congressional committees should work,” he further observed, “they now seemed no different from the rest.”14 Added to this internal political stress on the Intelligence Committees was a new ambivalence among their members toward the nation's secret agencies, displayed when the lawmakers merged temporarily into a Joint Committee to probe the tragic 9/11 intelligence and policy failures. Some members of the Joint Committee scolded the intelligence agencies for their errors leading up to terrorist attacks against the United States. Even SSCI's chair, Senator Roberts, once an arch-defender of the CIA, bemoaned in 2004 that not a single official in the Intelligence Community had been “disciplined, let alone fired” for the mistakes related to 9/11, or for the faulty prognosis about WMD in Iraq. In dismay, he concluded that the “community is in denial over the full extent of the shortcomings of its work.”15

  Although Roberts had developed a new love–hate relationship with the nation's intelligence agencies, he abandoned none of his partisan disdain for lawmakers across the aisle. He issued a spate of intelligence reform proposals that were endorsed by all but one of the SSCI Republican members, but he never shared any of his plans with the Democratic members of the Committee. The Roberts initiatives – a quixotic scheme to disperse the elements of the CIA into the Intelligence Community's other agencies – perplexed Congress-watchers. Once viewed as an unalloyed advocate of the intelligence status quo, Roberts no longer fit the Procrustean bed. Yet he didn't stray too far away from his underlying devotion to the secret agencies. The SSCI Chairman could be counted on by the DCI to grant the funding he and other agency managers re
quested, even if Roberts wished to shift around the organizational boxes on the Intelligence Community's wiring diagram.

  While Roberts and a few other once reliable champions of the intelligence agencies occasionally displayed flashes of ambivalence and rebellion, for the most part SSCI and HPSCI members fell into an oversight stupor. They forgot the warnings of Madison and the wisdom of the Constitution. Oversight came to mean rallying behind the President and the Intelligence Community to support the fighting that ensued in Iraq, Afghanistan, and against global terrorism. This was an amplification of a trend visible even before 9/11. Prior to the terrorist attacks on the American homeland that day, SSCI had held only a couple of hearings on the subject of Al Qaeda. On the House side, the oversight record was just as dismal. Members of HPSCI held only two hearings on terrorism from 1998 to 2001 – the fewest of any conducted by a security or foreign affairs panel on Capitol Hill in the period leading up to the 9/11 attacks.16 In another measure of their relative inactivity, from 1976 to 1990 the two Intelligence Committees averaged fewer than two public hearings a year. Zegart found a low number of intelligence hearings in later sessions of Congress as well.17 Even when hearings are held, the attendance can be poor. Lawmakers on SSCI and HPSCI could easily hold more public hearings than they do presently, without jeopardizing national secrets. Moreover, attendance records for closed hearings could be published, so constituents could know whether their representatives were taking seriously the task of monitoring and improving America's secret agencies.

  “We really don't have, still don't have, meaningful congressional oversight [of the intelligence agencies],” observed a GOP leader, Senator John McCain (R, Arizona), in 2004.18 That same year, the 9/11 Commission concluded that “congressional oversight for intelligence – and counterterrorism – is now dysfunctional.”19 A former staff member of the Church Committee noted further in 2009 that, “unfortunately, the process of congressional oversight of intelligence, including covert action, so carefully crafted in the 1970s, is now regarded as something of a joke in Washington.”20