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Dems: Well, Maybe Not All the 9/11 Commission Recs

The rumors on the Hill suggest that the Democrats plan to reject the 9/11 panel's recommendation for Congress to improve oversight of the nation's intelligence agencies.

Of all our recommendations, strengthening congressional oversight may be among the most difficult and important," the panel wrote. "So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need."

Although no political observer takes campaign promises at face value, the overwhelming mantra of Democratic candidates in this election was to implement ALL of the remaining 9/11 reforms.  Rejecting the most essential reform is a complete rejection of the spirit of the Democrats' campaign promise. Rigorous intelligence oversight is a vital change needed to improve our national security.  It is challenging to figure out which changes should be made, though some strongly argue that the tools already exist for oversight, just the intelligence committees are not picking them up and using them (pdf).

The main debate over restructuring intelligence oversight is over whether there should be greater centralization of Congressional jurisdiction, decentralization, or whether the fundamental structure and delegation of jurisdiction is sound.  It's clear that there needs to be plenty of expertise and more bi-partisanship, though not at the expense of legitimate, thoughtful oversight.

One of the alternatives considered by the 9/11 Commission is the creation of a Joint Senate/House intelligence committee modeled on the old Joint Committee on Atomic Energy (JCAE).  The JCAE was a powerful committee and has even been called "probably the most powerful Congressional committee in the history of the nation."  According to the chapter "Congressional Oversight of the [Nuclear] Bomb," in Stephen I. Schwartz's landmark book, Atomic Audit: The Costs and Consequences of U.S. Nuclear Weapons Since 1940:


To ensure a strong congressional role in overseeing the program [on atomic energy], the [Atomic Energy Act of 1946] created the JCAE, the only committee to be brought into being by an act of legislation (and thus held to have rights under that law) and the only joint committee to have full legislative powers.  Not only could the JCAE hold investigative hearings and undertake studies of issues, all bills, or other matters pertaining to atomic energy in both the House and the Senate had to be referred to the JCAE. 

In 1954 the JCAE gained the power to authorize funds for the Atomic Energy Commission.  Its joint nature was especially important, as it helped to minimize differences between the House and the Senate and bolstered its authority with the executive branch, which could not pit one committee against the other in an effort to either kill or delay undesirable legislation or achieve an agreeable compromise.
...
The [Atomic Energy Commission, then-the federal entity in charge of the U.S. nuclear weapons and energy complex] was explicitly required to keep the JCAE "fully and currently informed with respect to all od the Commission's activities," giving the JCAE "a unique capacity for legislative surveillance."

However, the JCAE often functioned as the Atomic Energy Commission's biggest promoter and protector from outside criticism.  Also, the JCAE, though it could be critical, often pumped funds into programs that the AEC or the Bureau of the Budget (the predecessor to the Office of Management and Budget) opposed.  The JCAE shaped the nuclear complex for decades, partially by putting it on steroids.  Schwartz elaborates: "For the most part, the programs that the committee had in mind exceeded the bounds of what the Executive 'deemed prudent or economical.'"

Yet such a radical centralization of Congressional jurisdiction--a la JCAE--might not be the best idea.  Earlier this year, Rep. Jeff Flake (R-Arizona) introduced a bill which would improve the sharing of classified information held by the intelligence committees with other committees with jurisdiction.  The rationale here is that the intelligence committees, which are viewed by many as currently ineffective, would no longer have such a monopoly on certain kinds of information, allowing at least effective committees with jurisdiction the ability to conduct oversight.  In fact, the JCAE was dismantled in 1977 partially because the rest of Congress was frustrated by its "stranglehold on nuclear policy matters."

Frank J. Smist Jr., in his book Congress Oversees the United States Intelligence Community 1947-1994, is not so keen on the idea of joint intelligence committee either, but has some proposals that should be considered:

The Senate and House must maintain separate intelligence committees.  Critics of the present structure frequently have proposed a single joint committee modeled after the old joint committee on atomic energy.  However, the two committees have functions that are not easily blended.  Under the Constitution, the Senate has sole authority to ratify treaties and alone exercises the "advise and consent" power with respect to presidential nominations.  In addition, a joint committee would be in an awkward position in terms of each chamber's consideration of intelligence budgets and intelligence legislation.  He believes the present system of separate committees is both adequate and necessary, but that system also needs some repairs.

The Senate Intelligence Committee was created in 1976. Unlike other Senate committees, the chairman and vice-chairman positions were structured so as to foster a close partnership between the two party leaders on the committee.  This system has worked well [POGO note--until recently]. In addition, the fact that the majority party has only one seat more than the minority party has tended to foster bipartisanship and consensus-building.  The committee's budget authorization responsibility, however, has not worked well.  The Senate Intelligence Committee has authority only over national foreign intelligence programs, while the Senate Armed Services Committee retains sole control of military intelligence, about 85 percent of the total intelligence budget.  The Senate needs to rethink how budget authorization responsibility is divided in the intelligence area.  To correct a serious deficiency in this area, the model of shared authority between the House Intelligence and Armed Services committees is worth examining and adopting.  Finally, the Senate committee needs to examine the term limits imposed on members who join the committee.
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  The House Intelligence Committee was created in 1977.  Unlike the Senate Intelligence Committee, the House committee was given budget authorization oversight for the entire intelligence community.  In fashioning budgets in the post-Cold War world, such a broad overview is extremely important.  But the House committee has serious deficiencies as well.  The House committee's biggest problem is that members may serve no longer than six years.

Then there is the issue highlighted earlier this year where Russ Tice, a National Security Agency whistleblower and member of the National Security Whistleblowers Coalition, was not able to speak with either intelligence committee, because the Executive branch claimed neither committee had security clearances high enough to be briefed.  Oy vey!

By: Nick Schwellenbach
Director of Investigations, POGO

Nick Schwellenbach At the time of publication, Nick Schwellenbach was Director of Investigations for the Project On Government Oversight.

Authors: Nick Schwellenbach

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