Sunday, January 15, 2006

Pelosi and Oversight

Nancy Pelosi, the Democratic leader of the House of Representatives, has a somewhat convoluted op-ed piece in the Sunday, January 15, edition of I call it convoluted because she seems to waffle back and forth about what “oversight” is. In one section she says:

“Congress is not an afterthought in assessing intelligence activities; federal law requires that it be kept informed of all such activities.”

This seems pretty clear, she insists that Congress be kept informed of all such activities. In the very next sentence though, things become less clear:

“But despite that clear statutory directive, the Bush administration consistently acts as though it alone owns intelligence information.”

You see the story has changed. Pelosi is not asking to be “kept informed of all such activities,” rather it seems that she wants access to the data. But here she has stated fact. There is a reason that the Bush administration acts like they own the intelligence information – that is because they do! Basically all of the intelligence gathering agencies – what I will term Intelligence Community (IC) for the rest of this essay – are owned by the Executive Branch, and therefore, the President and his administration. That fact alone gives him the right to decide who gets to see information gathered by the IC. It doesn’t get much simpler than that Congresswoman!

But, let’s talk about this for a minute. In intelligence gathering activities there is a reason that certain types of information are kept secret from all but a few people. Basically, release of that information could cause lives to be lost – either by letting the target of the activity know what is going on, or maybe even by revealing the source that is gathering the information. All of this revolves around the concept of “need to know” – only those who need to know should be given access to the information, whether it be raw data or finished material.

In 2004 Congress passed a law called the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458; S.2845) which is sometimes pointed to as the authority for the Congress to see all intelligence data. Specifically, Sec. 102A.(a)(1)(D) states that the Director of National Intelligence (DNI) shall provide national intelligence to various government authorities including “the Senate and House of Representatives and the committees thereof…” Of course, there are no caveats in this section of the law as to what “national intelligence” consists of, nor any specifics as to who it must be given.

Here we have another instance of Congress passing a law that may (or may not) circumscribe the constitutionally based powers of the President. In a letter from the Congressional Research Service (CRS) to Senator Dianne Feinstein, Alfred Cumming, Specialist in Intelligence and National Security Foreign Affairs, Defense and Trade Division, lays out the type of intelligence data that typically is not shared with Congress (footnotes removed – see the letter for the references):

Congressional Access to Intelligence Information Not Routinely Provided in Four Areas
The executive branch generally does not routinely share with Congress four general types of intelligence information:
  1. the identities of intelligence sources;

  2. the "methods" employed by the Intelligence Community in collecting and analyzing intelligence;

  3. "raw" intelligence, which can be unevaluated or "lightly" evaluated intelligence, which in the case of human intelligence sometimes is provided by a single source, but which also could consist of intelligence derived from multiple sources when signals and imagery collection methods are employed; and,

  4. certain written intelligence products tailored to the specific needs of the President and other high-level executive branch policymakers. Included in the last category is the President's Daily Brief (PDB), a written intelligence product which is briefed daily to the President, and which consists of six to eight relatively short articles or briefs covering a broad array of topics. The PDB emphasizes current intelligence and is viewed as highly sensitive, in part, because it can contain intelligence source and operational information. Its dissemination is thus limited to the President and a small number of presidentially-designated senior administration policymakers.

The letter points out two important reasons why some information is not shared with Congress. I summarize below:

  1. There is a need to protect the most sensitive information against “leaks” The bottom line is that the more people that know, the greater the chance information will be leaked and sources and methods compromised. Sources and methods need to be protected so that they can continue to be used.

  2. The second concern is over access to the actual “raw” intelligence. If that material somehow makes its way into the wrong hands, there is a possibility that sources and methods can be determined by analyzing the data. In addition, since “raw” data has not been analyzed, there is a concern that a lawmaker could try to enact legislation based on incorrect information.

Mr. Cumming points out that in general Congress has access to a tremendous amount of the intelligence that is gathered. First and foremost is Congress access to “Finished Intelligence.” According to Cumming:

Congress generally receives access to most finished intelligence products that are published for general circulation within the executive branch. A finished intelligence product is one in which an analyst evaluates, interprets, integrates and places into context raw intelligence.
Although congressional access is limited to such finished products, the volume of such products provided to Congress has increased over time. Between 1947, when the National Security Act establishing the CIA was enacted, and the mid-1970s, the executive branch shared relatively little intelligence with Congress, and access to it was quite limited. But after two special congressional investigative committees headed by former Sen. Frank Church and Rep. Otis Pike launched investigations of the Intelligence Community in the mid-1970s, the executive branch permitted the Community to increase the volume of intelligence information it provided to Congress.

And if you follow the letter to Feinstein further, it is pointed out that Congress is also exposed to intelligence data via briefings and thirteen other sources. Congresswoman’s Pelosi’s contention that Congress should have access to all intelligence (no pun intended), is dubious is best. More likely it has been shown that they receive more than enough intelligence data to facilitate their “oversight” function.

When speaking of the IC, Pelosi asserts:

“Congress oversees and pays for them -- and thus has a responsibility to ensure that they are effective and carried out in a manner consistent with the Constitution, our laws and our values.”

In some respects I can not argue with this statement. But the question still becomes how much does Congress have to know to exercise their oversight responsibilities? With the number of leaks that have been attributed to Congress over the years, it makes sense that any administration would seek to keep legislators from the material.

The issue comes back to “need to know.” Pelosi argues that Congress should be able to decide, even though they do not own the information, who within their bailiwick has “need to know.” She says:

“In the executive branch, decisions about who should have access to intelligence are made on a "need to know" basis. Congress must adopt a similar principle. The members of the intelligence committees are entrusted by their colleagues with the responsibility for making sure that intelligence practices are consistent with our laws and our values. Unless the entire committee has access to the same information, under tight confidentiality rules, Congress cannot respond legislatively to intelligence activity by the executive branch.”

As Cumming pointed out to Feinstein, the President owns the IC, and the product which the IC produces. The Executive Branch decides who has the right to know. Not Congress.

So there you have Pelosi’s arguments. She feels that Congress needs to have access to intelligence data so they can properly oversee IC activities. That sounds reasonable. She argues that Congress should have access to all intelligence data. That is a lot less sensible, not only for the reasons listed above, but also the ludicrous picture of Congressional leaders trying to keep up with the amount of intelligence gathered each day (How does Pelosi propose to handle this? Hire extra staff?). Finally she argues that Congress should have the right to determine “need to know” basis within their own ranks. This is the least reasonable of all her arguments. In the post NSA-leak world, where there exists a real possibility that one of the leakers was a ranking Democratic member of an Intelligence Committee, we should be deciding how to tighten controls over national secrets, not trying to figure out how to let more people know.

Note: Thanks to Harry Arthur for reminding me the difference between Senators and Congresspeople. Sheesh – I had a mind slip on that one.