Paper no. 1091	16-08-2004
9/11 REPORT--PART V: CONGRESSIONAL OVERSIGHT OVERDONE by B.Raman Till the 1970s, the Congressional oversight of the US intelligence community was restricted to Senate confirmation of Presidential nominations to important posts such as the Director of the Central Intelligence Agency (CIA) and examination and approval of the budgetary allocations of different agencies. 2. The 1970s and the  1980s saw a number of enquiries into the functioning of the intelligence community. These were triggered off , inter alia, by:  Allegations of the misuse of the agencies by the then President Richard Nixon and his staff  in an attempt to cover up his involvement in the Watergate scandal.  The unsatisfactory  performance of the agencies in Vietnam and Iran. The Iran-Contra scandal. 3. As a result of these enquiries, there has been a steady increase in the powers of oversight assumed by the two Houses of the Congress. Each House now has its own permanent intelligence oversight committee and a number of other committees and sub-committees too interact closely with senior officers of the intelligence agencies during the course of their work. 4.Among the expanded areas now covered by Congressional oversight are:  Senate confirmation of Presidential nominations to important posts in the intelligence community in respect of which Senate confirmation is obligatory. Examination and approval of annual budgetary allocations. Periodic review of the performance of the intelligence agencies. Enquiries into instances of intelligence failure. Briefings on important developments in different parts of the world having a bearing on the conduct of US foreign policy and on the USA's national security. 5. The intelligence oversight committees and their staff frequently call for detailed notes from the intelligence agencies  on the matters under examination and senior officers of the agencies are often called upon to testify before the committees and sub-committees. 6. Over the years, there has been a feeling among serving and retired officers of the community that Congressional oversight has become too intrusive and too time-consuming, thereby reducing the time available for the officers to do their basic function of collection, analysis and dissemination of intelligence. 7. An expert, who testified before the 9/11 Commission, pointed out that during the first year of the existence of the Homeland Security Department, its senior officers had to testify before different Congressional committees and sub-committees  on 88 occasions. That is, roughly one out of every four days was spent by the senior officers testifying before the Congress. This did not include the time spent by them in office, preparing themselves for the Congressional testimony. 8. Even after all this over-intrusive and over-done oversight, the Congressional Committees failed to put their finger on the deficiencies in the performance of the agencies as well as of the national security managers outside the community such as the National Security Adviser and her staff in the National Security Council Secretariat (NSCS) in relation to Iraq and Al Qaeda. 9. All the wisdom that has come out of the Congress vis-a-vis 9/11 struck it after the catastrophe and not before it. How to rectify this state of affairs? This was one of the questions considered by the 9/11 Commission. 10. Its conclusions:  "Dissatisfaction with Congressional oversight remains widespread." "Congressional oversight for intelligence and counter-terrorism is now dysfunctional." "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. The United States needs a strong, stable and capable Congressional committee structure to give America's national intelligence agencies oversight, support and leadership." "The other reforms we have suggested---for a National Counter-Terrorism Center and a National Intelligence Director--will not work, if Congressional oversight does not change too." 11. Its recommendations:  Either a joint committee for intelligence oversight on the model of the Joint Atomic Energy Committee instead of each House having its own committee Or, if each House considered it necessary to continue to have its own committee, the two committees should have combined authorising and appropriation powers. That is, the budgetary examination and allocations, which occupy a considerable portion of the time of the committees and the senior officers of the community, should be considered in a joint session of the two committees. " Whichever of these two forms are chosen, the goal should be a structure---codified by resolution with powers expressly granted and carefully limited---allowing a relatively small group of members of Congress, given time and reason to master the subject and the agencies, to conduct oversight of the intelligence establishment and be clearly accountable for their work. The staff of this committee should be non-partisan and work for the entire committee and not for individual members." The intelligence oversight committee should have a sub-committee specifically dedicated to the oversight of the performance of the agencies and freed from the time-consuming responsibility of examining budgetary demands. The majority party's representation on the committee should never exceed the minority's representation by more than one, whatever be the total strength of each party in the Congress. The committees should be small --- with not more than seven to nine members---" so that each member feels a greater sense of responsibility  and accountability for the quality of the committee's work." Members should serve indefinitely on the  committees so that they accumulate expertise. There should be no fixed tenure. Four of the members of the intelligence  committees should also be members of one of the following four committes---Armed Services, Judiciary, Foreign Affairs and Defence Appropriations. "In this way, the other major Congressional interests can be brought together in the intelligence oversight committee's work." 12. The other major deficiency in the present Congressional oversight system, which came to notice during the enquiry by the Commission, is the long time-gap in filling up vacancies in top posts in the intelligence community due to the long time taken by the FBI and other agencies for the security-vetting of the nominees under consideration by the President and often the equally long time taken by the Senate for confirming the Presidential nominees, where Senate confirmation is obligatory. 13. The Commission says: "The new administration---like others before it---did not have its team on the job  until at least six months after it took office." 14. To reduce such delays in future, the Commission has recommended as follows:  A President-elect should submit lists of possible nominees to national security management positions immediately after his election so that the security vetting could be completed before he assumes office on January 20. There should be a single agency responsible for security-vetting. The President should send to the Senate his list of nominations for national security management positions immediately after assuming office. The Senate should complete the confirmation or rejection process within 30 days of the receipt of the nominations. 15. The Commission also says: " The outgoing administration should also provide the President-elect, as soon as possible after election day, with a classified, compartmented list that catalogues specific, operational threats to national security; major military or covert operations; and pending decisions on the possible use of force. Such a document could provide both notice and a checklist, inviting a President-elect to enquire and learn more." 16. Among the major handicaps suffered by the US intelligence community are:  Too many people breathing down the neck of senior officers in the name of oversight, thereby coming in the way of their focussing on their work. Delays in appointments to senior posts not only when a new President is elected, but also during the tenure of the same President, when a post falls vacant. Too many enquiry commissions appointed by the President and the Congress to enquire into the same instance of unsatisfactory performance. Lack of accountability of anyone outside the intelligence community in the Executive for national security failures. 17. The Commission has not paid adequate attention to these aspects. While reasonable oversight is welcome and necessary, excessive oversight could be counter-productive. (To be concluded)  (The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, and, presently, Director, Institute For Topical Studies, Chennai, and Distinguished Fellow and Convenor, Observer Research Foundation (ORF), Chennai Chapter. E-Mail: corde@vsnl.com )
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