Ostriches, Cheerleaders, Skeptics, and Guardians: Role Selection
by Congressional Intelligence Overseers
Johnson, Loch K., 1942-
SAIS Review, Volume 28, Number 1, Winter-Spring 2008, pp. 93-108 (Article)
Published by The Johns Hopkins University Press
DOI: 10.1353/sais.2008.0015
For additional information about this article
http://muse.jhu.edu/journals/sais/summary/v028/28.1johnson.html
Access Provided by your local institution at 11/23/12 6:57AM GMT
SAIS Review vol.Intelligence
XXVIII no. 1 (Winter–Spring
Role Selection by Congressional
Overseers 2008)
93
Ostriches, Cheerleaders, Skeptics,
and Guardians: Role Selection
by Congressional Intelligence
Overseers
Loch K. Johnson
Since 1975, members of Congress have displayed four general responses to the call for greater
intelligence accountability. Some have taken the approach of ‘ostriches,’ content to bury
their heads in the sand and continue the earlier era of trust, when lawmakers deferred to
the decisions of the executive branch within the domains of intelligence and defense. Others,
indeed a majority, have chosen to become unabashed boosters for intelligence—‘cheerleaders’
who view their job primarily as one of explaining the value of intelligence to the American
people and supporting intelligence missions with strong funding and encouragement. Taking the opposite approach, another group of lawmakers, the—‘skeptics’—have consistently
found fault with America’s attempts to spy on adversaries or overthrow regimes that fail
to serve U.S. interests. Finally, some members of Congress have been ‘guardians,’ striking
a balance between serving as partners of the intelligence agencies on Capitol Hill, and,
through a persistent examination of budgets and operations, demanding competence and
law-abiding behavior from these agencies. Ultimately, it is the guardians that should serve
as models for the future.
“I
f men were angels,” wrote James Madison in Federalist Paper No. 51, “no
government would be necessary.” Affirming the necessity of governance, Madison advised that “ambition must be made to counteract ambition.”1 Madison advocated the establishment of a liberal democracy, and
saw the ballot box as the most important safeguard against the abuse of
power. However, Madison also stressed the importance of auxiliary precautions between election cycles. This phrase has come to encompass an array
of checks-and-balances exercised by the three branches of government—from
impeachment proceedings and judicial review to investigations, hearings,
Loch K. Johnson is the Regents Professor of Public and International Affairs at the
University of Georgia and author of over 100 articles, as well as the author or editor
of many books on U.S. national security, most recently Seven Sins of American Foreign
Policy (Longman, 2007), Handbook of Intelligence Studies (Routledge, 2007), and Strategic
Intelligence, 5 vols. (Praeger, 2007). He has served as designee to the chair of the
Senate Select Committee on Intelligence (1975-76), as the first staff director of the
House Subcommittee on Intelligence Oversight (1977-79), and as special assistant to
Chairman Les Aspin on the Aspin-Brown Commission on Intelligence (1995-1996).
Born in Auckland, New Zealand, Professor Johnson received his Ph.D. in political
science from the University of California, Riverside.
© 2008 by The Johns Hopkins University Press
93
94
SAIS Review Winter–Spring 2008
budget reviews, and day-to-day case work on Capitol Hill. This scrutiny of
government programs is known today as accountability or oversight.
In the modern era, Lee H. Hamilton, a former House member (DIndiana) and the current director of the Woodrow Wilson Center makes
the following argument in favor of legislative oversight: “Congress must
do more than write the laws; it must make sure that the administration is
carrying out those laws the way Congress intended.” Moreover, lawmakers “can help protect the country from the imperial presidency and from
bureaucratic arrogance . . . . [and] help keep federal bureaucracies on their
toes.”2 Former U.S. Senator Wyche Fowler (D-Georgia) observes simply that
“oversight keeps bureaucrats from doing something stupid.”3 More formally,
Joel D. Aberbach has defined legislative oversight as a “review of the actions
of federal departments, agencies, and commissions, and of the programs and
policies they administer, including review that takes place during program
and policy implementation as well as afterward.” He views these activities
as “a significant facet of congressional efforts to control administration and
policy.”4 Although Aberbach is sanguine about the effectiveness of oversight,
many other scholars who have studied this topic are decidedly less optimistic. The consensus is that members of Congress have been sluggish in the
conduct of their oversight responsibilities. John Bibby, for example, referred
to oversight in the 1960s as “the neglected function.”5 In 1974, an internal
congressional study concluded unanimously that the legislative branch was
“just barely making a scratch on the oversight of the executive branch in any
one year.”6 At about the same time, Morris Ogul found oversight intermittent, rather than comprehensive and systematic.7
Looking specifically at intelligence accountability from 1947–1970,
Harry Howe Ransom dismissed the devotion of Congress to this task as
“sporadic, spotty, and essentially uncritical.”8 Even with various reforms to
improve oversight during the next decade, a study of intelligence accountability during the late 1970s found that only a few lawmakers on the new
House intelligence committee spent much time on this task.9 Another decade later, an intelligence scholar concluded in the same vein that ‘oversight’
was “an aptly chosen figure of speech.”10
Intelligence as a Special Exception
In most nations, intelligence agencies are treated as exceptions, distinct
from the rest of the government. They are cloaked in secrecy and given leeway to get the job done, even if that means breaking laws overseas and engaging in unsavory activities that would be deemed inappropriate for other
government agencies. From the beginning, the United States embraced this
laissez faire philosophy for intelligence operations. The Founders understood
well the dangers the new Republic faced from abroad and were willing to
grant broad discretionary powers to America’s intelligence officers.11 As the
nation matured and its intelligence service expanded in the aftermath of
World War II, this hands-off philosophy continued.
Role Selection by Congressional Intelligence Overseers
95
The Cold War pitted the United States against the Soviet Union and
required a strong American intelligence shield; in the nuclear age, a nation
might not survive another surprise attack like Pearl Harbor. The nation’s
secret agencies had to be as effective as anything the Soviet Union could field
and unencumbered by normal government restraints. This is not to say that
the CIA was without supervision, even in this warlike climate. Most of its
activities were approved by the White House and reported, in broad outline
at least, to oversight subcommittees in the House and Senate. The approvals
were highly discretionary, however, allowing the Director of Central Intelligence (DCI)—the nation’s chief spymaster—broad scope to fill in the details.
Reporting to Congress was sketchy, perfunctory, and often unwanted.12
In 1975, the philosophy of intelligence exceptionalism underwent
a dramatic reversal. The stimulus was a series of articles appearing in the
New York Times from October through December of 1974, charging that
the CIA had allegedly abused
its power by spying inside
the United States.13 In the In 1975, the philosophy of intelmidst of these allegations, ligence exceptionalism underwent
Congress enacted the first
major law to institute tighter a dramatic reversal.
supervision over the CIA: the
Hughes-Ryan Act, passed in December.14 This statute aimed at strengthening executive and legislative control over covert action, an aggressive form of
intelligence in which the CIA attempts to manipulate events abroad through
propaganda, and political, economic, and paramilitary operations.
In January 1975–76, government investigators examined the charges
of domestic spying and uncovered a startling number of intelligence transgressions, in what is now remembered as the ‘Year of Intelligence.’ The
investigation uncovered assassination plots against foreign leaders, illegal
mail openings, wiretaps, and international cable interceptions; intelligence
files on over a million American citizens; improper drug experiments and
the unlawful sequestering of prohibited lethal chemical and biological
materials; a master spy plan to conduct surveillance against Vietnam War
dissenters in the United States; intelligence infiltration of a range of groups
in American society, from universities to religious and media organizations;
the incitement of violence against African-American groups; and covert
actions abroad aimed not just at autocracies but democratically elected
regimes as well (such as the Allende regime in Chile).15
A counterintelligence program run by the Federal Bureau of Investigation (FBI), code named ‘Cointelpro,’ stunned members of the Senate investigative panel (the Church Committee, led by Frank Church, D-Idaho). Bureau documents revealed that FBI agents had conducted smear campaigns
against individuals across the country from 1956–71, simply because they
had expressed opposition to the war in Vietnam or criticized the slow pace
of the civil rights movement. The attacks were aimed at people in all walks
of life and various political persuasions, an expansive hatred that embraced
black leaders, white supremacists, and war dissenters alike. The Klan, the
96
SAIS Review Winter–Spring 2008
women’s liberation movement, socialists, the New Left, anti-war and civil
rights activists—all became enemies of the Republic whom the FBI set out
to destroy. The effects of this catalog of improprieties were profound. From
1975 onwards, America’s support for an unbound intelligence capability
would have to compete with another principle that had long guided the
rest of the government: liberty—the safeguarding of the American people
against the power of their own government, not just foreign governments.
With respect to the intelligence agencies, the nation’s leaders began an unprecedented experiment in trying to balance security and liberty. The Ford
Administration conducted its own investigation of intelligence (the Rockefeller Commission), establishing an Intelligence Oversight Board in the
White House and prohibiting assassination plots. In 1976, senators created
a permanent Senate Select Committee on Intelligence (SSCI, pronounced
‘sissy’) and, a year later, the other chamber followed suit with a House Permanent Select Committee on Intelligence (HPSCI, pronounced ‘hipsee’).
The scope of intelligence oversight continued to expand. In 1978,
lawmakers brought the judicial branch more directly into the realm of
intelligence oversight by establishing a Foreign Intelligence Surveillance
Act (FISA) court to review national security wiretap requests from the executive branch. In 1980, Congress passed the Intelligence Oversight Act, a
major statute that further tightened legislative supervision over the secret
agencies.16
Each step along the pathway of intelligence reform was driven by debate, intense negotiations between the executive and legislative branches,
and sometimes bitter quarreling. Yet, lawmakers managed to establish
the precedent of a serious, ongoing review of intelligence programs and
budgets within the confines of SSCI, HPSCI, and the Appropriations subcommittees dealing with intelligence (and, on some issues, the Judiciary
and Armed Services committees). Congressional staff experts poured over
budgets, organized hearings, and, less formally, met with intelligence officers in a continual exploration of their operations. Members of Congress
asked questions at hearings (with varying degrees of enthusiasm), visited
the secret agencies, and traveled abroad to review operations in the field.
As Treverton has observed, the intelligence agencies had become a part of
the regular government and faced the full panoply of congressional oversight procedures.17 How well this commitment to intelligence oversight has
prospered is examined next.
Contemporary Intelligence Oversight
The sixteen intelligence agencies in the United States spend some $44 billion a year of taxpayer money.18 Yet the American people know little about
the activities of this secret side of government. Only those in charge of
the “purse strings”—the elected representatives on Capitol Hill—are able
to monitor the secret agencies and their budgets. Lawmakers have an obligation to supervise the nation’s intelligence activities and, when possible
without jeopardizing sensitive sources and methods, to keep the public
informed about their value.
Role Selection by Congressional Intelligence Overseers
97
Despite the importance of this work and the startling revelations of
domestic spying in 1975, the contemporary practice of intelligence accountability on Capitol Hill has been largely desultory. The number of intelligence
oversight hearings has declined in recent years, for example, and lawmaker
attendance at hearings has been off-and-on. Members of Congress have been
drawn instead to fund-raising events and legislative activities on the Hill
that give them more public visibility (such as bill-passing and high-profile
public hearings on the war in Iraq). Only during times of crisis—domestic
spy scandals, catastrophic world events, secret CIA assassination plots—have
lawmakers engaged in major probes into intelligence scandals or failures.19
Reform-minded members of the Church Committee had anticipated a much
higher level of intelligence accountability than has turned out to be the case;
they had hoped that, through extensive hearings (mostly closed-door), budget reviews, and agency visitations, lawmakers could help the intelligence
agencies avoid mistakes and scandals before they happened, rather than just
investigate them after the fact.20
Eighty-nine lawmakers have served on SSCI and 102 lawmakers have
served on its counterpart in the House of Representatives, HPSCI.21 Among
these individuals, the committee chairs—11 on SSCI and 10 on HPSCI—have
been particularly influential in determining the vigor of committee oversight. Within congressional committees, the chairs are well-known to be first
among equals. “Oversight is driven by the chairman,” comments a senior
SSCI staffer.22 Two-thirds of the senior staffers interviewed by Aberbach
also said that the chairs of congressional panels exercised major influence
in oversight decisions.23
From time to time, however, the ranking minority member on one of
the oversight committees, or even a junior member (whether Democrat or
Republican), has been able to display strong leadership and contribute to
the committee’s responsibilities for intelligence accountability. During the
early days of HPSCI, for example, minority member J. Kenneth Robinson (RVirginia) spent more time than any of his colleagues poring over intelligence
budget proposals. As a result, he excelled in closed hearings on funding. He
would point to sections in authorization bills that had weak justifications,
and would wield a scalpel as he proceeded through mark-ups.24
During this period, HPSCI junior members Les Aspin (D-Wisconsin)
and Roman Mazzoli (D-Kentucky), though mindful of the importance of
the intelligence agencies and willing to praise intelligence witnesses and
programs when warranted, became the committee’s most vocal critics of
questionable secret operations. Supportive of the many worthwhile intelligence operations that came before them for review, Aspin and Mazzoli were
also indefatigable in their willingness to cross-examine intelligence officials
who appeared before HPSCI in executive-session hearings. Some members
would ask two or three questions of witnesses; Aspin and Mazzoli posed at
least twice that number, and often their questions were far more probing
about the details of operations. Vigilant but fair, they achieved a balance
between criticism and support.25
98
SAIS Review Winter–Spring 2008
Approaches to Intelligence Oversight
Lawmakers have displayed four general approaches to their supervisory
tasks while serving on the House and Senate intelligence oversight committees. These four categories should be viewed as dynamic “centers of gravity,”
with movement between them, rather than sharply delineated roles.
The Ostrich
The first type of intelligence overseer is the ‘ostrich,’ a lawmaker who embraces a philosophy of benign neglect toward the intelligence agencies. This
view characterized almost all members of Congress before the domestic
spy scandal of 1974–75 (see Figure 1). A classic illustration of the ostrich is
Senator Barry Goldwater (R-Arizona), who rose to the chairmanship of SSCI
in 1981. He had previously served as a member of the Church Committee
that investigated the spy scandals in 1975. Ironically, in 1976 Goldwater
had voted against the creation of the SSCI, the very committee he would
come to lead. He also opposed most of the other reforms recommended by
the Church Committee, including closer judicial scrutiny of wiretapping
operations inside the United States and more extensive congressional hearings on CIA covert actions.
Goldwater was content with the system of oversight that existed before 1975: an occasional review of secret activities by a few subcommittees
on intelligence housed within the Armed Services and the Appropriations
Committees.26 These panels were passive for the most part. They did nothing to halt the rampant domestic spying revealed in 1974, the plots carried
out by the Central Intelligence Agency (CIA) to assassinate selected foreign
heads of state, or the many other controversial spy activities uncovered by
the Church Committee. Indeed, according to a recent study, Representative
(and later President) Gerald R. Ford (R-Michigan) served on the House intelligence oversight subcommittee in the days prior to HPSCI and never heard
anything about the CIA’s domestic spying or assassination plots.27
The Cheerleader
The second type of intelligence overseer is the ‘cheerleader.’ Here, the member of Congress has removed his or her head from the sand, but only for the
purpose of cheering more loudly on behalf of the intelligence agencies. The
cheerleader is interested primarily in the advocacy of spies and their activities, the support of intelligence budgets (along with the automatic granting of supplements when requested), and the advancement of clandestine
operations at home and abroad against suspected U.S. enemies.
During hearings, the cheerleader specializes in “softball” pitches—easy
questions designed for hitting over the center field fence by witnesses from
the CIA and the other intelligence agencies. 28 In press conferences, the
cheerleader acts as a defense attorney for America’s spies, hinting at their
behind-the-scenes, “if you only knew” successes; lauding the heroism of
intelligence officers and agents; castigating journalists for printing leaked
secrets that imperil the nation; and warning of threats at home and abroad
Role Selection by Congressional Intelligence Overseers
99
Figure 1. A Typology of Roles Assumed by
Intelligence Overseers in the U.S. Congress
Responsibility for Intelligence Support
Low
High
Responsibility
for
Intelligence
Evaluation
Low
High
1
The Ostrich
3
The Skeptic
2
The Cheerleader
4
The Guardian
that could lead to another 9/11 if the intelligence agencies were hamstrung
in any way. Although such statements by cheerleaders are often true, they
are one-sided and lack a critical eye.
An example of a cheerleader is Representative Edward P. Boland (DMassachusetts) when he became the first chair of HPSCI in 1977. Boland
had witnessed firsthand how a 1975 House investigative committee led by
Otis Pike (D-New York) prepared a shrill final report widely discredited
for its ideological anti-CIA bias. Appalled by the Pike Committee episode,
a majority of House members refused to create an intelligence oversight
committee of their own when the Senate established SSCI in 1976; it took
another year of debate before representatives voted to establish HPSCI. To
give the House a more balanced perspective on the value of intelligence,
Boland made a concerted effort from 1977–1982 to cooperate with intelligence officials. He often swallowed personal skepticism about some
covert operations and expressed his support for the government’s secret
bureaucracy, determined to show that HSPCI could be a partner in the
world of espionage. His committee would not be a reckless reincarnation
of the Pike Committee, whose undisciplined manner had drawn fire from
executive branch officials and members of the House alike. The Pike panel
ended its inquiry in a state of disarray, with its top-secret report leaked in
1976 to a New York City newspaper, Village Voice.29 Boland was determined
to demonstrate that HPSCI was not Son of Pike.
The Skeptic
A third role type is the ‘skeptic.’ This approach is similarly one-sided, but
at the opposite extreme. For the skeptic, nothing the intelligence agencies
undertake is likely to be worthy. The secret agencies are inherently immoral:
opening and reading other people’s mail, eavesdropping on telephone
conversations, stealing documents, and perhaps even killing people. The
skeptic also accuses the agencies of incompetence, pointing to the CIA’s
inability to dispatch any foreign leader on its assassination hit list (despite
many attempts), the erroneous reports regarding unconventional weaponry
in Iraq, and the failure to anticipate the fall of the Soviet Union and the
9/11 attacks.30
100
SAIS Review Winter–Spring 2008
For the most extreme skeptic, there is but one solution: shut down
the CIA and the other secret agencies. For example, in 1996 a well-respected
member of SSCI, Senator Daniel Patrick Moynihan (D-New York), dismayed
by the CIA’s inability to anticipate the collapse of the Soviet empire, called
for the Agency’s abolition.31 Representative Robert Torricelli (D-New Jersey)
became such a zealous skeptic of the CIA in 1995 that he resorted to an
inappropriate tactic: as a member of HPSCI, he disclosed to the New York
Times classified information regarding the Agency’s employment of a notably disreputable army colonel in Guatemala.32 Few thoughtful observers of
intelligence embrace the role of skeptic, on grounds that the intelligence
agencies, whatever their flaws, are necessary for providing information and
insight on world affairs to the president and other decision-makers.
The Guardian
The fourth type of intelligence overseer is the ‘guardian.’ This role conforms
best with the hopes of reformers in 1975. Senator Frank Church, among
others, favored a Congress that would conduct an ongoing serious review
of the nation’s secret operations. Rather than simply responding to crises,
his hope was to prevent spy scandals and intelligence failures in the first
place. Representative Lee Hamilton, HPSCI chair from 1985–87, has argued
that the ideal intelligence overseers are both “partners and critics” of the
secret agencies.33 Another HPSCI member, Norm Dicks (D-Washington),
told an intelligence studies scholar in an interview that “overseeing the
intelligence community is like being a good parent: you have to encourage
and discipline.”34
As agency “partners,” lawmakers must educate the American people on
the virtues of having an intelligence capability. Moreover, when the secret
agencies legitimately need a friend in court, lawmakers are in a position to
defend them against unreasonable charges, such as a failure to anticipate
surprise calamities that no one could have reasonably foreseen. Without
defenders on Capitol Hill, the secret agencies are at a major disadvantage
in gaining public support for their secret activities and sizeable budgets.
Lawmakers can provide citizens with some assurance that the secrecy and
the money for intelligence are being used properly toward the defense of
the United States. When mistakes are made and scandals occur, citizens
then expect their representatives to take steps that will prevent them from
happening again—or, better yet, that will reduce the number of mistakes
and scandals in advance through serious hearings, field investigations, and
budget reviews.
As effective overseers, lawmakers must also be critics, searching for,
acknowledging, and correcting program flaws. This role requires the ability,
above all, to be objective and to speak out against questionable activities
(in closed hearings, when operations are too sensitive for public review).
Lee Hamilton has come as close to this ideal as any member of SSCI or
HPSCI. When he was head of HPSCI, he regularly convened committee
meetings, paid close attention to memos and reports from his staff and
the intelligence agencies, followed up on media allegations of intelligence
Role Selection by Congressional Intelligence Overseers 101
wrongdoing or mistakes, and spent time reviewing budgets and talking to
intelligence professionals.
Even Hamilton faltered, however, during the Iran-contra scandal in
the mid-1980s. When staffers on the National Security Council (NSC) assured him that they were not involved in illegal operations, Hamilton, along
with other SSCI and HPSCI leaders, took their words at face value—always
a mistake for overseers of serious intent. When Al-Siraa, a Lebanese weekly,
subsequently revealed the scandal, it was clear that National Security Adviser
Robert C. McFarlane and his deputy, Lt. Col. Oliver L. North had misled
Hamilton about their involvement.35
The Dynamic Nature of Intelligence Accountability
During their tenures, individual members of SSCI and HPSCI have
sometimes exhibited more than one approach to intelligence supervision.
In addition, even those lawmakers who may fall into just one of the four
centers of gravity depicted in Figure 1 can often be some distance apart
within that center. For example, some cheerleaders and skeptics may be
mild in their advocacy, while others may be zealous; conversely, some ostriches occasionally offer a cheer for the CIA. As for guardians, some may
be better than others at maintaining an even keel between offering praise
and finding fault.
The migration of lawmakers between oversight roles is shown in Figure
2. Representative Boland may have felt it necessary to be a strong partner of
the intelligence agencies in 1977–80 to offset the bad impression created by
the Pike Committee’s strident criticism of the CIA. As the 1980s progressed,
however, Boland began to drift away from the posture of cheerleading to
assume a more balanced stance as guardian in 1981. By 1982, Boland had
become increasingly skeptical of then-Director of Central Intelligence (DCI)
William J. Casey and his use of covert action to advance the contras against
the Sandinista Marxist regime in Nicaragua. Boland, along with the majority in a Democrat-controlled Congress, concluded that the mining of
Nicaraguan harbors and the blowing up of power lines (along with other
extreme paramilitary operations) were excessive responses to the minimal
threat posed by the Sandinistas. Between 1982 and 1985, Boland introduced
and guided to passage seven successive amendments bearing his name, each
further restraining the use of covert action in Nicaragua. Finally, the CIA
was prohibited from conducting most forms of covert action against the
Sandinistas. (The Boland Amendments continued to allow the Agency to
pursue more benign propaganda operations against the Marxist regime.)
By the time his tenure had come to an end in 1985, Boland’s relations
with DCI Casey had substantially deteriorated, as the HPSCI Chairman
metamorphosed from cheerleader to guardian to full-fledged skeptic. In
terms of Figures 1 and 2, he began in cell two, traveled to cell four for a
brief period, and then settled in cell three. In Boland’s case, the stimuli for
these changes were twofold: first, what he perceived as the Reagan Administration’s overwrought response to events in Central America; second, a new,
102
SAIS Review Winter–Spring 2008
Figure 2. Illustrations of Role Migration
and Stability Among Intelligence Overseers
Ostrich
Goldwater (1981-83)
Shelby (1997-98)
Cheerleader
Boland (1977–80)
Goldwater (1985)
DeConcini (1993)
Graham (2001)
Skeptic
Guardian
Goldwater (1984)
Boland (1982–85)
Shelby (1999–04)
DeConcini (1994–95) Graham (2002–04)
Boland (1981)
Aspin (1977–82)
Mazzoli (1977–82)
Robinson (1977–82)
Hamilton (1985–87)
aggressive, and arrogant DCI who did nothing to hide his disdain toward
the notion of congressional intelligence oversight. Policy (paramilitary
operations in Nicaragua) and personality (Casey’s irascibility) dramatically
transformed Chairman Boland’s approach to intelligence accountability
from the posture of cheerleader to that of skeptic.
Senator Goldwater went on a similar, though more extensive, odyssey within the SSCI. With his head in the ground during the first few years
(1981–83) of his SSCI chairmanship, Goldwater initially played the role of
ostrich, deferring to DCI Casey and the intelligence agencies. He reasoned
that the intelligence bureaucrats should be trusted to do a good job under
trying circumstances of the Cold War. During the debate on the War Powers Resolution and efforts by Congress to restore its war powers in 1973,
Goldwater opposed the Resolution, arguing that the President knew best
when it came to matters of war-making.36 When Boland began introducing
his restrictive amendments against covert action in Nicaragua, Goldwater
(his Senate counterpart) declared that the laws proposed by the HPSCI
chair were “unconstitutional.”37 “It’s another example of Congress trying to
take away the constitutional power of the President to be Commander-inChief and to formulate foreign policy,” he added.38 Like Vice President Dick
Cheney today, in the 1970s and 1980s Goldwater was a leading proponent
of the so-called unitary theory of presidential supremacy.39
Then, in 1984, William Casey managed to do the seemingly impossible:
the DCI single-handedly turned the intelligence community’s most reliable
ostrich into one of its most vocal skeptics. The catalyst in this dramatic
transformation was Casey’s misleading testimony during his appearance
before Goldwater’s Committee. When asked by a SSCI member whether
the CIA was mining harbors in Nicaragua, the DCI said no. Only later was
it discovered that Casey was relying on a technical point: the CIA was not
mining harbors, it was mining piers within harbors. This attempt to toy with
the SSCI angered Goldwater, his institutional pride temporarily trumping
feelings of blind deference toward the intelligence community. He fired off
Role Selection by Congressional Intelligence Overseers 103
a letter to one of the best venting venues in the nation’s capital: the Washington Post. The letter, castigating Casey for his attempts at legerdemain on
Capitol Hill, said in part: “It gets down to one, little, simple phrase: I am
pissed off!”40
As Goldwater’s ire over Casey receded, however, the Chairman drifted
into a cheerleading role for the remainder of his tenure through 1985. This
approach to oversight better suited his long-standing deference to the executive branch in the conduct of foreign and security policy. Yet, never again
on SSCI did Barry Goldwater find it prudent to keep his head in the sand.
As least as a cheerleader, he kept up with current intelligence initiatives,
leaving open the possibility that (once again) he just might discover some
activities worthy of serious questioning. Herein lies the slim advantage of
having a cheerleader as overseer, rather than an ostrich.
Two more examples of the dynamic nature of oversight roles come
from more recent times, just before and after the 9/11 terrorist attacks
against the United States. Richard C. Shelby (R-Alabama) led SSCI from
1997 until 2001. Initially, he oscillated between the roles of ostrich and
cheerleader, apparently seeing few flaws in intelligence work between 1997
and 1998. This sanguine outlook would soon begin to change. In 1998,
after India tested a nuclear bomb that the CIA forecast would not happen,
Shelby asked DCI George J. Tenet (1997–2004) in a telephone conversation
about the intelligence failure. “Senator, we were clueless,” replied Tenet, a
troubling response that initiated doubts in Shelby’s mind about the DCI’s
competence.41
Subsequently, on April 26, 1999, Tenet failed to invite the SSCI Chairman to the christening of the new George H.W. Bush Center for Intelligence
(named by Congress after the only DCI to become president). This snub,
perceived or real, upset Shelby. Finally, after the 9/11 attacks, Shelby concluded that Tenet had failed to warn the nation sufficiently of the Al Qaeda
terrorist peril and needed to go.42 Thereafter, Shelby grew ever more critical
of Tenet and the intelligence agencies during the rest of his time on SSCI
(where he remained for an additional three years as the ranking minority
member). A perceived failure (9/11), combined with a sense of personal affront, had again transformed a cheerleader into a skeptic.
The next SSCI chairman (2001–2002), Bob Graham (D-Florida) likewise moved from cheerleader on the Senate Committee (in 2001) to skeptic
(from 2002–2004) as a result of confrontations with DCI Tenet. In this case,
Graham’s pique stemmed from procedural slaps in the face, some of which
the Chairman (ala Shelby) took as a personal affront.43 In 2002, Graham
became co-chair, along with HPSCI leader Porter J. Goss (R-Florida), of a
special Joint Committee that temporarily combined SSCI and HPSCI to
investigate the 9/11 intelligence failure. Once hearings opened, Graham
and Tenet began to clash over the Committee’s authority and procedures.
When Graham asked Tenet to be brief in his introductory remarks before
the panel, the DCI instead carried on at length and, according to a newspaper report, in a “somewhat defiant tone.”44 Tenet also refused to declassify some intelligence documents that Graham thought important for the
104
SAIS Review Winter–Spring 2008
public record. Further, the DCI frequently caused havoc in the proceedings
by denying SSCI access to basic intelligence documents related to the 9/11
attacks, refusing at the last minute to allow scheduled intelligence officers
to testify before the Committee and even canceling his own appearance
scheduled for a closed hearing.
As the DCI “stonewalled” and “slow-rolled” the joint committee (in
D.C. vernacular—that is, evaded responsiveness), Graham began a transition from cheerleader to skeptic. After Tenet’s continued disruptions and
disrespect, Graham exploded and accused the intelligence chief of “obstructionism” and “unacceptable” behavior.45
In another example, former intelligence chief R. James Woolsey (1993–
1995), whose personality could shift mercurially from charming to churlish,
managed a similar feat with SSCI Chair (1993–1995) Dennis DeConcini (DArizona) to the detriment of the intelligence agencies.46 Again, a DCI’s style,
coupled with basic disagreements over operations and reporting procedures
between the spymaster and lawmakers, alienated an oversight committee
chair and turned him from advocate to staunch critic.
Wanted: More Guardians
The government of the United States is built on a foundation of shared
powers among the three branches: the executive, the legislative, and the judicial. In addition to making laws, a primary duty of the legislative branch
is to keep watch over the sprawling bureaucracy that lies at the feet of the
president. An especially difficult assignment is to maintain vigilance over
the hidden side of this terrain: the nation’s secret agencies. Before 1975,
lawmakers largely overlooked their responsibility to supervise intelligence
operations, because the job was viewed as time-consuming as well as daunting in the expertise required. Moreover, intelligence oversight provided little
opportunity for credit-claiming back home since most intelligence operations are too sensitive to discuss in public.
Ever since the advent of the new, post-1975 era of intelligence oversight, members of Congress have continued to feel these tugs that shift their
attention away from supervising the nation’s secret security operations.
The time and study required to become an effective supervisor in this hidden domain, plus the lack of credit back home for engaging in intelligence
oversight activities, combines to be an unattractive formula for lawmakers
worried about being re-elected. They usually conclude that their time is
better spent raising campaign contributions and pursuing legislative goals
that are more closely covered in the newspapers and on television.
Yet, what if there are future intelligence failures that lead to even more
drastic attacks against the United States than 9/11? What if lawmakers
could have prevented these failures through a more robust review of intelligence procedures, information-sharing arrangements among the agencies,
and the quality of their intelligence collection methods? What member of
Congress will want to explain to constituents why he or she was too busy
fund-raising or drafting laws to ensure, through hearings and budget reviews, the readiness of America’s intelligence agencies?
Role Selection by Congressional Intelligence Overseers 105
Admittedly, being a dedicated intelligence overseer is a job that carries some risk. When intelligence operations go wrong, lawmakers might
have to share the blame. During the Cold War, most members of Congress
thought it best simply to let the spies go their own way in the back alleys
of the world, fighting a secret war against global communism. The 1975
revelation of domestic spying against American citizens—the very people it
had been created to protect—discredited this philosophy of legislative trust
and benign neglect toward the nation’s espionage agencies. This spy scandal
stimulated a desire among many lawmakers to become more concerned
about intelligence accountability.
In the years since 1975, however, members of Congress have displayed
varying levels of commitment to the job of intelligence supervision. They
have played the roles of ostrich, cheerleader, skeptic, and guardian – with
ostriches and cheerleaders predominant. Sometimes lawmakers on the
congressional oversight committees in the House and Senate have migrated
from one role to another. This can occur because members of Congress have
been personally affronted or irritated in their relationships with DCIs, or
because lawmakers have been shocked into reaction by a serious intelligence
failure or scandal. Further, one of the main catalysts for the mobility has
been a sense of injured institutional pride, with members of Congress perceiving that intelligence officials have failed to treat Congress with proper
institutional respect.
Scholars need to conduct further investigation into the motivation
behind the oversight roles of members of Congress, as well as how these
roles may change over time. Especially important will be efforts to fathom
why more lawmakers have failed to act as guardians. This model was widely
accepted by reformers in 1975 as the ideal, because it balanced support for
intelligence with a determination, through persistent program review, to
avoid future agency failures and scandals. How can members of Congress
be encouraged to spend more time on serious program evaluation? What
incentives can be introduced into the culture of Capitol Hill to make accountability a more valued pursuit?
Some initiatives to encourage better intelligence oversight could
include greater recognition of members of Congress who perform with
distinction as overseers. This recognition could take the form of increased
perks (improved office space and parking opportunities, along with increased travel and staff support) dispensed by party leaders to lawmakers
known for their oversight tenacity and fairness. Closer media coverage of
oversight activities would help, too, as well as the awarding of an “Overseer
of the Year” proclamation from civic groups to acknowledge the hard work
of lawmakers who devote time and energy to oversight hearings and budget
reviews.47 Certainly academic researchers, teachers, and journalists could pay
more attention to this neglected subject.
One might think that enough oversight incentives already exist. The
quality of intelligence accountability will determine the degree of protection
afforded to the American people against more domestic spy scandals, such
as the Bush Administration’s bypassing of established warrant procedures
106
SAIS Review Winter–Spring 2008
for telephone wiretaps in 2005.48 Another powerful incentive should be the
desire to improve America’s intelligence posture and, thereby, help to ward
off future terrorist attacks against the United States, or to avoid additional
faulty conclusions about unconventional weapons abroad, which drew the
United States into war with Iraq in 2003.
Regardless of the good reasons for being a dedicated intelligence
overseer, most observers agree that members of Congress are performing far
below their potential when it comes to the supervision of the secret agencies.
Oversight remains a neglected stepchild on Capitol Hill.
Since the Democrats regained control
of Congress in 2007, more attention has
[M]embers of Congress been paid to intelligence accountability. The
are performing far be- new SSCI Chairman, Jay Rockefeller (D-West
Virginia) has displayed promise as a guardlow their potential . . . ian. He supports intelligence as a vital shield
[in] the supervision of against dangers that threaten the nation;
but, at the same time, he has persistently
the secret agencies.
raised concerns with the White House about
possible ongoing eavesdropping violations
by the National Security Agency (NSA). His counterpart in the House,
Silvestre Reyes (D-Texas), has also shown signs of more energetic oversight
leadership on HPSCI.
Nonetheless, for most lawmakers, intelligence accountability remains
a distant concern. Correcting this condition is a worthy challenge for educators, journalists, members of Congress, civic groups, and indeed all publicminded citizens. And, as always, the vote is available as a powerful tool to rid
the legislative branch of members who fail to understand the importance of
maintaining accountability over the nation’s vast intelligence apparatus.
Notes
The author would like to express his appreciation to Leena S. Johnson for her critique and
editing of an earlier draft of this essay.
1 Madison, James. “Federalist Paper No. 51.” February 8, 1788, reprinted in The Federalist.
New York: Modern Library, 1937: 337.
2 Hamilton, Lee H., and Jordan Tama. A Creative Tension: The Foreign Policy Roles of the President
and the Congress. Washington, D.C.: Woodrow Wilson Center Press, 2002: 56.
3 Author’s interview, Washington, D.C., May 9, 2003.
4 Aberbach, Joel D. Keeping a Watchful Eye: The Politics of Congressional Oversight. Washington,
D.C: The Brookings Institution, 1990: 2.
5 Bibby, John. “Congress’ Neglected Function.” In The Republican Papers, edited by Melvin R.
Laird, 477–88. New York: Anchor, 1968.
6 United States House of Representatives. Committee Reform Amendments of 1974. Committee on Committees (the Bolling Committee). H.Rept. 93–916, 93rd Cong., 2d Sess. (1974):
62.
7 Ogul, Morris S. Congress Oversees the Bureaucracy: Studies in Legislative Supervision. Pittsburgh:
University of Pittsburgh Press, 1976: 183–86.
8 Ransom, Harry Howe. “Secret Intelligence Agencies and Congress.” Society 123 (March/
April 1975): 36.
9 Johnson, Loch K. “Congress and the CIA: Monitoring the Dark Side of Government.”
Legislative Studies Quarterly 5 (November 1980): 477–99.
Role Selection by Congressional Intelligence Overseers 107
Jackson, William H., Jr. Book review. Intelligence and National Security 5 (July, 1990):
253–54.
11 Knott, Stephen F. Secret and Sanctioned: Covert Operations and the American Presidency. New
York: Oxford University Press, 1996.
12 United States Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the Church Committee). Sen. Rept. No. 94–755 (November 20, 1975); Barrett,
David M. The CIA and Congress. Lawrence: University Press of Kansas, 2005.
13 For an example of the Times reporting on intelligence abuses in 1974, see Hersh, Seymour
M. “Underground for the C.I.A. in New York: An Ex-Agent Tells of Spying on Students,”
New York Times, December 29, 1974: A1.
14 Sec. 662 of the Foreign Assistance Act of 1994 (22 U.S.C. 2422).
15 U.S. Senate, op.cit. For accounts of the investigations, see Johnson, Loch K. A Season of
Inquiry: The Senate Intelligence Investigation. Lexington: University of Kentucky, 1986; Johnson, Loch K. “Congressional Supervision of America’s Secret Agencies: The Experience
and Legacy of the Church Committee.” Public Administration Review 64 (January/February
2004): 3–14; Schwarz, Frederick A.O. Jr. “Intelligence Oversight: The Church Committee.”
In Strategic Intelligence, Vol. 5: Intelligence and Accountability, edited by Loch K. Johnson. Westport, CT: Praeger, 2007: 19–46; Schwarz, Frederick A.O. Jr. and Aziz Z. Huq. Unchecked and
Unbalanced: Presidential Power in a Time of Terror. New York: New Press, 2007; and Smist, Frank
Jr., Congress Oversees the United States Intelligence Community. 2nd ed. Knoxville: University of
Tennessee Press, 1994.
16 Johnson, Loch K. “Legislative Reform of Intelligence Policy.” Polity 17 (Spring 1985):
549–73.
17 Treverton, Gregory F. “Intelligence: Welcome to the American Government.” In A Question of Balance: The President, Congress and Foreign Policy, edited by Thomas E. Mann, 70-108.
Washington, D.C.: Brookings Institution, 1990.
18 This $44 billion figure has been widely cited in the media. For an example, see Mazzetti,
Mark. “Spymaster Tells Secret Size of Spy Force.” New York Times, April 21, 2006: A18.
19 On this “shock theory” of intelligence accountability, see Johnson, Loch K. “A Shock
Theory of Congressional Accountability for Intelligence.” In Handbook of Intelligence Studies,
edited by Loch K. Johnson, 343–360. New York: Routledge, 2007.
20 See U.S. Senate, Church Comm., op.cit., Final Report, Book I: Foreign and MilitaryIntelligence.
Washington, D.C.: U.S. Government Printing Office, 1976; Book II: Intelligence Activities and
The Rights of Americans. Washington, D.C.: U.S. Government Printing Office, 1976; Book III:
Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans. Washington, D.C.: U.S. Government Printing Office, 1976; and Interim Report: Alleged Assassination
Plots Involving Foreign Leaders. Washington, D.C.: U.S. Government Printing Office, 1975. The
Church Committee also published seven volumes of hearing testimony. (The author served
as Frank Church’s designee during this investigation.)
21 For these numbers, I have drawn upon a graduate seminar paper written by Marie Milward at the University of Georgia, as well as research conducted by my graduate assistant,
Lawrence J. Lamanna. Each searched through membership lists in all editions of the Congressional Directory since 1976. I am grateful to these outstanding Ph.D. candidates for sharing
their research findings.
22 Author’s interview. Washington, D.C. February 6, 2003.
23 Aberbach, op.cit.: 123.
24 This point is based on the author’s personal observations while staff director of the HPSCI
Subcommittee on Oversight during its start-up (1977–80).
25 For a more detailed examination of their approaches to oversight, see Johnson, Loch K.
Secret Agencies: U.S. Intelligence in a Hostile World. New Haven: Yale University Press, 1996:
89–94.
26 See Barrett, David M. “Congressional Oversight of the CIA in the Early Cold War, 1947–
1963.” In Intelligence and Accountability: Safeguards Against the Abuse of Secret Power, vol. V,
Strategic Intelligence, edited by Loch K. Johnson, 1–18. Westport, CT: Praeger, 2007; Johnson,
Loch K. America’s Secret Power: The CIA in a Democratic Society. New York: Oxford University
Press, 1987; and Ransom, Harry Howe. The Intelligence Establishment. Cambridge: Harvard
University Press, 1970.
10 108
SAIS Review Winter–Spring 2008
Weiner, Tim. Legacy of Ashes: The History of the CIA. New York: Doubleday, 2007: 337.
On the frequency and seriousness with which intelligence officers are questioned by
lawmakers in public hearings, see Johnson, Loch K. “Playing Ball with the CIA: Congress
Supervises Strategic Intelligence.” In Congress, the Executive, and the Making of American Foreign
Policy, edited by Paul E. Peterson, 49–73. Norman: University of Oklahoma Press, 1994.
29 “The CIA Report the President Doesn’t Want You to Read: The Pike Papers.” Village Voice,
February 16 and 23, 1976.
30 For chronicles of these failures, see Weiner, op.cit.; Zegart, Amy. Spying Blind: The CIA, the
FBI, and the Origins of 9/11. Princeton: Princeton University Press, 2007.
31 Moynihan, Daniel Patrick. “Do We Still Need the C.I.A.? The State Dept. Can Do The
Job.” New York Times, May 19, 1991: E17.
32 For an account of the Torricelli case, see Lowenthal, Mark M. Intelligence: From Secrets to
Policy, 3d ed. Washington, D.C.: CQ Press, 2006: 271–272.
33 Quoted by Davies, F. “GOP-Controlled Senate Expected to Give Less Scrutiny to War on
Terror.” Miami Herald, November 7, 2002: A1.
34 Interviewed by Cynthia Nolan, Washington, D.C., October 15, 2003; “More Perfect Oversight: Intelligence Oversight and Reform.” In Strategic Intelligence, op.cit., edited by Loch K.
Johnson, 115–140, quote at 126–127.
35 See 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, Report of the Congressional Committees Investigating the Iran-Contra Affair.
S. Rept. No. 100–216 and H. Rept. No. 100–433, 100th Cong., 1st Sess. Washington, D.C.:
U.S. Government Printing Office, November 1987.
36 See Congressional Record, 119 (1973): 24532; and Holt, Pat. The War Powers Resolution: The
Role of Congress in U.S. Armed Intervention. Washington, D.C.: American Enterprise for Public
Policy Research, 1978.
37 Quoted in “U.S. Aid to Nicaraguan Rebels—Lawmakers Speak Out.” U.S. News & World
Report, May 2, 1983: 29.
38 Ibid.
39 The unitary theory of the presidency embraces the idea that the president should be allpowerful in foreign and security policy, especially when the nation faces a security crisis.
For a proponent of this view, see Yoo, John. War by Other Means: An Insider’s Account of the
War on Terror. New York: Atlantic Monthly Press, 2006.
40 The letter was dated April 9, 1984. See Letters to the Editor. Washington Post, April 11,
1984: A17.
41 Risen, James. State of War: The Secret History of the CIA and the Bush Administration. New York:
Free Press, 2006: 9.
42 Shelby, Richard C. “September 11 and the Imperative of Reform in the U.S. Intelligence
Community: Additional Views of Senator Richard C. Shelby, Vice Chairman, Senate Select
Committee on Intelligence.” Joint Inquiry Report (December 10, 2002): 135.
43 For Graham’s memoir, see Graham, Bob, and Jeff Nussbaum. Intelligence Matters. New
York: Random House, 2004.
44 Guggenheim, K. “Tenet Defends CIA’s Pre-9/11 Efforts.” Washington Post, October 17,
2002: A1.
45 Lewis, Neil A. “Senator Insists C.I.A. Is Harboring Iraq Reports.” New York Times, October
4, 2002: A12.
46 Historian Ernest R. May attributes Woolsey’s problems on Capitol Hill to his siding with
the congressional Armed Services Committees in favor of spending on reconnaissance satellites, rather than supporting an emphasis on human-agent intelligence preferred by the SSCI
leadership. See May, Ernest R. “The Twenty-first Century Challenge for U.S. Intelligence.”
In Transforming U.S. Intelligence, edited by Jennifer E. Sims and Burton Gerber, 3–13, with
reference to Woolsey at 6–7. Washington, D.C.: Georgetown University Press, 2005.
47 Front-page stories on oversight in leading newspapers are rare, but, when they occur,
they help boost the public’s appreciation of this important government function; see, for
example, Eric Schmitt and David Rohde. “2 Reports Assail State Dept. Role on Iraq Security:
Oversight is Faulted.” New York Times, October 23, 2007: A1.
48 See Risen, James and Eric Lichtblau. “Bush Lets U.S. Spy on Callers Without Courts.” New
York Times, December 16, 2005: A1.
27 28