Some awfully crazy schemes might well have been approved had everyone present [in the White House] not known and expected hard questions, debate, and criticism from the Hill. And when, on a few occasions, Congress was left in the dark, and such schemes did proceed, it was nearly always to the lasting regret of the presidents involved.105
Regardless of these compelling reasons for a lawmaker to assume the guardian role of a dedicated intelligence overseer, most observers agree that members of Congress continue to perform far below their potential when it comes to the supervision of the nation's spy agencies. As former Senator Gary Hart (D, Colorado), a member of the Church Committee in 1975, has emphasized: “Public interest and insistence is necessary for reform.”106 Intelligence oversight is a neglected responsibility on Capitol Hill and will remain so, until the citizens of the United States demand otherwise.
Notes
1 Author's interview with DCI James R. Schlesinger, Washington, DC (June 16, 1994).
2 Myers v. United States, 272 U.S. 52 293 (1926).
3 David M. Barrett, The CIA and Congress: The Untold Story from Truman to Kennedy (Lawrence: University Press of Kansas, 2005); for works that have found little meaningful accountability in these early days, see Harry Howe Ransom, The Intelligence Establishment (Cambridge, MA: Harvard University Press, 1970); and Jerrold L. Walden, “The CIA: A Study in the Arrogation of Administrative Power,” George Washington Law Review 39 (January 1975), pp. 66–101. For more current accounts that continue to find Congress lacking in the department of intelligence oversight, see: Kathleen Clark, “ ‘A New Era of Openness?’ Disclosing Intelligence to Congress under Obama,” Constitutional Commentary 26 (2010), pp. 1–20; Jennifer Kibbe, “Congressional Oversight of Intelligence: Is the Solution Part of the Problem?” Intelligence and National Security 25 (February 2010), pp. 24–49; Anne Joseph O’Connell, “The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post–9/11 World,” California Law Review 94 (December 2006), pp. 1655–1744; Amy B. Zegart, “The Domestic Politics of Irrational Intelligence Oversight,” Political Science Quarterly 126 (Spring 2011), pp. 1–27; and Amy B. Zegart with Julie Quinn, “Congressional Intelligence Oversight: The Electoral Disconnection,” Intelligence and National Security 25 (December 2010), pp. 744–66.
4 See the reporting of Seymour Hersh in the Times throughout the autumn and winter months of 1974, especially on December 22.
5 Church Committee, Select Committee on Intelligence Activities, U.S. Senate, 94th Cong., 1st Sess. (September 25, 1975), as well as two special reports: Alleged Assassination Plots Involving Foreign Leaders, Interim Rept., S. Rept. No. 94–465 (Washington, DC: Government Printing Office, November 20, 1975); and Covert Action in Chile, 1963–1973, Staff Report (Washington, DC: Government Printing Office, December 18, 1975). The leading works about the Committee are Loch K. Johnson, A Season of Inquiry (Lexington: University Press of Kentucky, 1985), republished as A Season of Inquiry Revisited: The Church Committee Confronts America's Spy Agencies (Lawrence: University Press of Kansas, 2015); Frederick A. O. Schwarz, Jr. and Aziz Z. Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror (New York: New Press, 2007); and Frank J. Smist, Jr., Congress Oversees the United States Intelligence Community, 1947–1989 (Knoxville, University of Tennessee Press, 1990).
6 Author's interview, Minneapolis, Minnesota (February 17, 2000). See, also, Walter F. Mondale, The Good Fight: A Life in Liberal Politics (New York: Simon & Schuster, 2010), Ch. 7.
7 Henry Steele Commager, “Intelligence: The Constitution Betrayed,” New York Review of Books (September 30, 1976), p. 32.
8 On the seven Boland Amendments, each more restrictive, see “Boland Amendments: A Review,” Congressional Quarterly Weekly Online (May 23, 1987), p. 1043; and Henry K. Kissinger, “A Matter of Balance,” Los Angeles Times (July 26, 1987), p. V1.
9 See Barrett, The CIA and Congress, p. 459.
10 Joel D. Aberbach, “What's Happened to the Watchful Eye?” Congress & the Presidency 29 (2002), pp. 20–3, quote at p. 20.
11 Stephen F. Knott, “The Great Republican Transformation on Oversight,” International Journal of Intelligence and Counterintelligence 13 (2002), pp. 49–63, quote at p. 57.
12 Marvin C. Ott, “Partisanship and the Decline of Intelligence Oversight,” International Journal of Intelligence and Counterintelligence 16 (2003), pp. 69–94, quote at p. 87.
13 These quotes are from Charles Babington, “Senate Intelligence Panel Frayed by Partisan Infighting,” Washington Post (March 12, 2006), p. A9.
14 L. Britt Snider, “Congressional Oversight of Intelligence after September 11,” in Jennifer E. Sims and Burton Gerber, eds., Transforming U.S. Intelligence (Washington, DC: Georgetown University Press, 2005), p. 245. See, also, Snider's The Agency and the Hill: CIA's Relationship with Congress, 1946–2004 (Washington, DC: Center for the Study of Intelligence, Central Intelligence Agency, 2008).
15 Bob Drogin, “Senator Says Spy Agencies are ‘in Denial,’ ” Los Angeles Times (May 4, 2004), p. A1.
16 Kean Commission (led by former Governor Thomas H. Kean, R, New Jersey), The 9/11 Commission: Final Report of the National Commission on Terrorist Attacks upon the United States (New York: Norton, 2004).
17 See, respectively, Loch K. Johnson, Secret Agencies: U.S. Intelligence in a Hostile World (New Haven, CT: Yale University Press, 1996), p. 96; and Zegart, “The Domestic Politics of Irrational Intelligence Oversight.”
18 Remarks, “Meet the Press,” NBC Television (November 21, 2004).
19 Kean Commission, The 9/11 Commission, p. 420.
20 Gregory F. Treveton, Intelligence in an Age of Terror (New York: Cambridge University Press, 2009), p. 232.
21 Bill Gertz, Breakdown (Washington, DC: Regnery, 2002), p. 113.
22 On the Snowden affair, see Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (New York: Metropolitan Books, 2014).
23 Quoted in Ken Dilanian, “NSA Weighed Ending Phone Program Before Leak,” Associated Press (March 30, 2015).
24 Quoted in Darren Samuelsohn, “Hill Draws Criticism over NSA Oversight,” Politico (March 2, 2014), p. 2.
25 Paul J. Quirk and William Bendix, “Secrecy and Negligence: How Congress Lost Control of Domestic Surveillance,” Issues in Governance Studies, Brookings Institution, Washington, DC (March 2, 2015), pp. 9, 13.
26 The formal name of the panel is the President's Review Group on Intelligence and Communications Technologies, which urged that as a “central aspect of liberty” privacy must be protected; Liberty and Security in a Changing World, U.S. Government Printing Office, Washington, DC (December 12, 2013), p. 47.
27 Jack Goldsmith, “United States of Secrets (Part One): The Program,” Transcript, Nightline, PBS Television (May 2015), p. 16.
28 See, respectively: Jennifer Steinhauer, “Senate Is Sharply Split Over Extension of NSA Phone Data Collection,” New York Times (May 22, 2015), p. A15; and unsigned editorial, “Rand Paul's Timely Takedown on the Patriot Act,” New York Times (May 22, 2015), p. A24.
29 Jonathan Weisman and Jennifer Steinhauer, “Patriot Act Faces Curbs Supported by Both Parties,” New York Times (May 1, 2015), p. A1.
30 Jennifer Steinhauer, “Senate to Try Again Next Week after Bill on Phone Records Is Blocked,” New York Times (May 24, 2015), p. A14.
31 Charlie Savage, “Surveillance Court Rules That NSA Can Resume Bulk Data Collection,” New York Times (July 1, 2015), p. A14.
32 Lawrence Wright, “The Al Qaeda Switchboard,” Comment, The New Yorker (January 13, 2014), p. 3.
33 For a chronology of the torture program, see Wilson Andrews and Alicia Parlapiano, “A History of the CIA's Secret Interrogation Program,” New York Times (December 9, 2014).
34 Jane Mayer, “Torture and the Truth,” The New Yorker (December 22, 2014).
35 Steven Aftergood, “CIA Torture Report: Oversight, but No Remedies Yet,” Secrecy News, 2014/83 (December 10,
2014), p. 2.
36 A high-ranking HPSCI member remembers urging the CIA, in a letter to the Agency's General Counsel (Scott Muller) in 2003, not to destroy the interrogation videotapes [see Jane Harman (D, California), “America's Spy Agencies Need an Upgrade,” Foreign Affairs (March/April 2015), p. 103].
37 Senator Dianne Feinstein, “Dianne Feinstein: The CIA ‘Cannot Shove the Laws Aside,’ ” Nightline, p. 2.
38 Feinstein, “Dianne Feinstein,” p. 1
39 Dianne Feinstein, remarks concerning the Committee Study of the Central Intelligence Agency's Detention and Interrogation Program, Senate Select Committee on Intelligence, U.S. Senate, 113th Cong., 2d Sess. (December 3, 2014; hereafter the Senate Torture Report), U,S. Senate floor (December 9, 2014).
40 Senator Chambliss retired from the Congress soon after the release of the torture report; he is now a member of the CIA's Advisory Board.
41 Senate Torture Report, Findings and Conclusions Section, p. 3. For a series of thoughtful essays on the Report, see Mark Phythian, editor, “An INS Special Forum: The US Senate Select Committee Report on the CIA's Detention and Interrogation Program,” Intelligence and National Security 31/1 (January 2016), pp. 8–27.
42 See Adam Goldman, “Military Prosecutor: Senate Report on CIA Interrogation Program is Accurate,” Washington Post (February 10, 2016), p. A1.
43 Remark to Eric Bradner, “John Brennan Defends CIA,” CNN Politics (December 12, 2014).
44 President Barack Obama, Statement, White House (December 9, 2014).
45 Feinstein, “Dianne Feinstein,” p. 4.
46 Quoted by Connie Bruck, “The Inside War,” The New Yorker (June 22, 2015), p. 45.
47 Quoted anonymously by Jeremy Herb in The Hill (March 6, 2014), p. 11.
48 Bruck, “The Inside War,” p. 46.
49 Bruck, “The Inside War,” p. 48.
50 See Mark Mazzetti and Matt Apuzzo, “CIA Officers Are Cleared in Senate Computer Search,” New York Times (January 15, 2015), p. A8.
51 Remarks to the Senate (December 9, 2014).
52 George J. Tenet, et al., “Ex-CIA Directors: Interrogations Saved Lives,” Wall Street Journal (December 10, 2014).
53 David Ignatius, “The Torture Report's One Glaring Weakness,” Washington Post (December 11, 2014). A senior CIA official has argued that when it came to keeping lawmakers informed about the interrogation program, their claim to have been misled is “farcical, not true.…I can tell you, I had difficulty getting on the calendars of senators I wanted to brief. Their ardor for the truth is greater now than it was then, in some cases”; interview with Robert Grenier, former CIA/CTC Director, 2004-2006, News Hour, PBS Television (December 9, 2014)].
54 Michael Glennon, Fletcher School of Law and Diplomacy, remarks, Levin Center Conference on Intelligence Accountability, U.S. Senate (October 20, 2015).
55 See Amy Zegart, “INS Special Forum,” p. 25. The denials of normative bias in the report were expressed during the Levin Center Conference by the leading Democratic staffer.
56 Dianne Feinstein, “NSA's Watchfulness Protects America,” Wall Street Journal (October 13, 2013). In a Senate hearing, Feinstein spoke in support of the NSA metadata collection, ruing “how little information” the United States had about Al Qaeda before the 9/11 attacks. “They will come after us,” she said, “and I think we need to prevent an attack wherever we can”; Mattathias Schwartz, “Who Can Control NSA Surveillance?” The New Yorker (January 23, 2015)].
57 Feinstein, “Dianne Feinstein,” p. 6.
58 Statement, U.S. Senate floor (December 9, 2014), cited by Professor Pfiffner in “INS Special Forum,” p. 23. McCain, a former GOP presidential nominee, said elsewhere that he “totally agree[d] with the report…”; quoted by Matt Sledge and Michael McAuliff, “CIA Torture Report Approved by Senate Intelligence Committee,” Huffington Post (October 13, 2012). Even D/CIA Brennan eventually ended up speaking out against the use of waterboarding in the future, declaring that “as long as I'm director of CIA, irrespective of what the president says, I'm not going to be the director of CIA that gives that order. They'll have to find another director”; John Brennan, public remarks, Brookings Institution, Washington, DC (July 13, 2016). Donald Trump, the 2016 Republican presidential nominee, said, though, that as the commander in chief he would use waterboarding against suspected terrorists and indeed “I'd bring back a hell of a lot worse than waterboarding”; quoted by Connie Bruck, “The Guantánamo Failure,” The New Yorker (August 1, 2016), p. 34.
59 Harry H. Ransom, “Secret Intelligence Agencies and Congress,” Society 123 (1975), pp. 33–6, quote at p. 38.
60 See, for example, Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight (Washington, DC: The Brookings Institution, 1990); Christopher J. Deering, “Alarms and Patrols: Legislative Oversight in Foreign and Defense Policy,” in Colton C. Campbell, Nicol C. Rae, and John F. Stack, Jr., Congress and the Politics of Foreign Policy (Upper Saddle River, NJ: Prentice-Hall, 2003), pp. 112–38; and Loch K. Johnson, “Presidents, Lawmakers, and Spies: Intelligence Accountability in the United States,” Presidential Studies Quarterly 34 (December 2004), pp. 828–37.
61 David Mayhew, The Electoral Connection (New Haven, CT: Yale University Press, 1974).
62 Matthew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked: Police Patrols and Fire Alarms,” American Journal of Political Science 28 (1984), pp. 165–79.
63 Quoted by Philip Shenon, “As New ‘Cop on the Beat,’ Congressman Starts Patrol,” New York Times (February 6, 2007), p. A18.
64 See Loch K. Johnson, John C. Kuzenski, and Erna Gellner, “The Study of Congressional Investigations: Research Strategies,” Congress & the Presidency 19 (Autumn 1992), pp. 138–56. On the relationship between media reporting on scandals and intelligence failures, on the one hand, and a “shock” (fire-fighting) reaction on Capitol Hill, on the other hand, see Loch K. Johnson, “Intelligence Shocks, Media Coverage, and Congressional Accountability, 1947–2012,” Journal of Intelligence History 13 (January 2014), pp. 1–21.
65 See Johnson, A Season of Inquiry Revisited; and Schwarz and Huq, Unchecked and Unbalanced.
66 U.S. Congress, Report of the Congressional Committees Investigating the Iran–Contra Affair, U.S. Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition and U.S. House of Representatives Select Committee to Investigate Covert Arms Transactions with Iran, S. Rept. 100–216 and House Rept. 100–433, 100th Cong., 1st Sess. (November 1987), chaired by Daniel K. Inouye (D, Hawaii) and Representative Lee H. Hamilton (D, Indiana).
67 Preparing for the 21st Century: An Appraisal of U.S. Intelligence, Report of the Commission on the Roles and Capabilities of the United States Intelligence Community (the Aspin–Brown Commission) (Washington, DC: Government Printing Office, March 1, 1996). For an account of the Commission's work, see Loch K. Johnson, The Threat on the Horizon: An Inside Account of America's Search for Security after the Cold War (New York: Oxford University Press, 2011).
68 Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001, Final Report, U.S. Senate Select Committee on Intelligence and U.S. House Permanent Select Committee on Intelligence, led respectively by Senator Bob Graham (D, Florida) and Representative Porter J. Goss (R, Florida), Washington, DC: December 2002; and the Kean Commission, The 9/11 Commission.
69 Intelligence Authorization Act for Fiscal Year 2005, Report 108–558, Permanent Select Committee on Intelligence (the Goss Committee), U.S. House of Representatives, 108th Cong., 2nd Sess. (June 21, 2004), pp. 23–7.
70 Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, led by Judge Laurence H. Silberman and former Senator Charles S. Robb (D, Virginia).
71 Report on the U.S. Intelligence Community's Prewar Intelligence Assessments on Iraq (the Roberts Report), Senate Select Committee on Intelligence (
the Roberts Committee), U.S. Senate, 108th Cong., 2nd Sess. (July 7, 2003).
72 Title VI, Sec. 601, 50 U.S.C. 421; Public law 97–200.
73 Title VII, Intelligence Authorization Act for FY 1999; see Snider, The Agency and the Hill, pp. 71–2.
74 See Alfred Cumming, “Sensitive Covert Action Notifications: Oversight Options For Congress,” CRS Report for Congress, Congressional Research Service (July 7, 2009), pp. 1–12.
75 Kathleen Clark, “ ‘A New Era of Openness?’ Disclosing Intelligence to Congress under Obama,” Constitutional Commentary 26 (2010), pp. 1–20, see p. 14.
76 Email communication to the author (May 28, 2010).
77 Clark, “ ‘A New Era,’ ” p. 13.
78 Cited by intelligence scholar Harry Howe Ransom, “Congress, Legitimacy and the Intelligence Community,” paper, Western Political Science Association, Annual Convention, San Francisco, California (April 20, 1976).
79 Quoted by Tom Braden, “What's Wrong with the CIA?” Saturday Review (April 5, 1975), p. 14.
80 While serving as D/CIA, Leon E. Panetta, said: “I do not want to just do a Gang of Four briefing – in other words, just inform the leaders of the party. My view is, and I said this at my confirmation hearings, I think it's very important to inform all the members of the Intelligence Committees about what's going on when we have to provide notification” [remarks during Q and A, Pacific Council on International Policy, California (May 18, 2009)].
81 Remark by constitutional scholar Raoul Berger, American Political Science Association, Annual Meeting, Chicago, Illinois (September 4, 1987; author's notes), in reference to the secret Nixon White House group known as “the plumbers” that attempted to stop leaks by using extralegal surveillance methods against political opponents – part of the Watergate conspiracy.The single significant leak from the congressional Intelligence Committees came from HPSCI member Robert G. Torricelli (D, New Jersey) in 1995. He was upset to learn in a top-secret CIA briefing that the Agency had an asset in Guatemala who was a suspected murderer, including likely involvement in the death of the husband of an American citizen. Torricelli wrote a letter to President Bill Clinton in protest; but he later admitted to leaking this information to the media, as well, in hopes of putting pressure on the Agency to fire the asset (Colonel Julio Roberto Alpirez in the Guatemalan army) along with any other foreign agents with a record of gross human rights violations. However sound his reasoning about the abhorrent colonel, Torricelli had violated important intelligence nondisclosure rules. Further, his actions raised doubts in the minds of some about the reliability of Congress in handling classified information. The HPSCI leadership roundly chastised the Congressman, but no further action was taken. The next year, Torricelli ran for a U.S. Senate seat representing New Jersey and won. He withdrew from a re-election race in 2002, however, under a cloud of controversy over campaign funding irregularities that had hounded him since his initial election to the Senate in 1996.
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