The Intelligence Oversight Mess
Americans recently learned that the CIA dreamed up a plan to use "hit teams" of assassins to wipe out terrorist leaders and gather intelligence about them. More than that, congressional overseers of intelligence were deliberately kept in the dark, per orders from Vice President Richard Cheney.
The White House - the executive branch - should have learned its lesson long ago. And not just about schemes to create hit teams. Bush administration defenders are wrong to argue that this is a mere political charge over a plan that never left the drawing board. Far from some empty dispute over technicalities, today's controversy over whether the Central Intelligence Agency kept the oversight committees in Congress fully and currently informed regarding this significant, planned CIA operation is not new. Indeed, this struggle has been at the heart of efforts to implement a system of legislative monitoring of intelligence activities since the creation of the oversight system in the 1970s.
In fact, the specific questions of what activities have to be divulged and when Congress is to be informed of them - as well as who has to be told - are precisely the core issues. That there is a controversy at all is the result of the Bush administration's misguided notion that the way to work with overseers was to keep them away from the most questionable intelligence activities. A review of the struggle over congressional briefings yields significant insights.
Congress Out of the Loop
Congress established its oversight committees in the wake of investigations of U.S. intelligence, carried out in 1975 by special panels of both houses. Legislators angered by haphazard CIA operations in Angola created the requirement to report CIA activities during that season of inquiry by amending the foreign aid bill. The law provided that committees of both the House and Senate, with jurisdiction over foreign affairs or intelligence, be informed of operations that were to be justified by a "presidential finding" or notification. The White House and CIA believed the system, which in practice requiring briefing eight committees with 163 members, too cumbersome. Under the Carter administration, they replaced the legislation with provisions to inform the congressional oversight committees alone. Importantly, activities other than covert operations were to be routinely briefed to Congress.
What information was to be provided and when remained undefined. At the time of the Iran hostage crisis the Carter administration avoided telling Congress of the planned U.S. rescue mission (that ended tragically at Desert One) until after it had failed. A furious Congress at that time widened the range of activities requiring notification to include planned actions. The Reagan administration then resorted to "retroactive" presidential findings - and even the "mental" finding that Reagan had intended to issue but never did - to justify its actions in the Iran-Contra affair. That, plus Bill Casey's stretching of conventional findings in his secret wars - especially that in Nicaragua - led to the most extensive reform of the oversight system. A whole series of thresholds, including timing, expense size, duration, and so on, became criteria for congressional notification.
The "rules," however, were informal understandings between Congress and the White House. In 1989, during the first Bush administration, Congress moved to formalize the notification criteria in legislation. The package included a provision that no covert operation under any circumstances could be withheld from Congress for more than 48 hours. Seeking to head off such a statute, President George H. W. Bush gave Congress written assurances of "timely" notification, though he reserved the right to keep operations secret if necessary. Congress then inserted language formalizing the notification system in the 1991 intelligence authorization bill. Although the White House and Congress agreed to the terms, the first Bush killed the legislation by pocket veto, ostensibly because Congress had sought to include the many activities carried out by the CIA in conjunction with other countries.
Clinton and Bush
The existing informal system remained in effect, although at some point the White House sought to allay congressional fears by promising that sensitive operations would be revealed to a "Gang of Four," consisting of the senior members of each political party who sat on the intelligence committees. A few years later, the Clinton administration failed to notify Congress of arms traffic to Bosnia, a case in which the CIA had had an ambiguous, shadowy role. The episode figured importantly in the collapse of the 1997 nomination of Anthony Lake, President Bill Clinton's national security advisor, as CIA director. Congressional frustration at manipulations of intelligence oversight there became manifest.
All of this was perfectly evident to George J. Tenet, who eventually emerged as the next CIA chieftain, bridging the Clinton and second Bush administrations. Tenet had been a staffer, then staff director of the Senate Intelligence Committee during the struggles over refining the notification system, and National Security Council staff director for intelligence during the fight over the Lake nomination. Having worked both sides of the policy street in Washington, Tenet ought to have been supremely sensitive to this issue.
Instead, Director Tenet blew no whistles as President George W. Bush collaborated in a wholesale evasion of the oversight system. The effort to construe a variety of intelligence-gathering activities (not limited to the National Security Agency intercept program) as too sensitive for routine notification, the similar restriction of aspects of the manipulated Iraq intelligence, the games played with CIA interrogation programs, the agency's acceptance of a vice-presidential order to cut Congress out of another program - all of these happened on Tenet's watch. The only thing done with respect to informing Congress was to widen the circle of political responsibility with a "Gang of Eight," to include the party leaders in each house of Congress, in briefings whose comprehensiveness and veracity is in dispute today.
Agency defenders have advanced an assortment of reasons why all this is a tempest in a teapot. Connecting the dispute with Speaker Nancy Pelosi's recent dustup over whether she was accurately briefed on CIA interrogation programs is the most distracting argument. But casting this in political terms is misleading. The Pelosi brouhaha is anotherinstance of the executive branch playing fast and loose with oversight strictures.
The claim that a targeted assassination program using hit teams, during a war, is no different than killing people with missiles from Predator drones has a patina of plausibility but is fundamentally wrong. Leaving aside the (real) question of whether the Predator attacks are themselves legal - U.S. regulations have officially proscribed assassinations and there is a legal question over whether a state of war can exist with a non-state actor like al-Qaeda - a reliance on hit teams is automatically highly sensitive.
A comparison has been made to Israeli hit teams killing Palestinian terrorists after their attack on the 1972 Olympics in Munich. But defenders of this program err. The Mossad, which had full license to act and no prohibitions on murder, was nevertheless forced to call off this project after its team assassinated an innocent man in Norway. The technique is inherently problematical.
The CIA should have known better. During the Phoenix program in Vietnam, the U.S. government claimed that enemies were killed in combat and not murdered, that it was not a true assassination program but one for neutralization, that it had been carefully reviewed from a legal standpoint, and so forth. This controversy helped lead to the very congressional investigations that led to the present oversight system. The Bush administration resisted briefing this program precisely because it wanted to avoid raising those old ghosts.
The CIA argues that the hit team concept was not a "real" program because it was an on-again, off-again thing: deactivated in 2004, revived the following year, stood down again, and recently slated for a more active status. Nor was it an expensive program, since only $1 million was spent on it. But these arguments are specious. As far back as the 1960s, the U.S. government decided that any covert operation costing more than $25,000 required review under interagency procedures for approving these activities. An operation large enough to demand approval outside the CIA is significant enough to brief to Congress. Moreover - to bring the Pelosi controversy back into this - her claim that she was being briefed on concepts for interrogation at a minimum means that the CIA did brief programs that were not "real" on other occasions - during the very timeframe when this project is supposed to have been active. Again, the conclusion must be that the CIA did not brief the hit team concept in order to avoid raising the ghosts of Phoenix.
Time to Codify
There are two real questions lurking behind the smoke and mirrors. The first is that the CIA accepted an action order from the vice president, who is not in its chain of command. Under the conventionally understood system, the CIA works only for the president. A vice president has no authority to issue orders. If George W. Bush delegated that authority, he never told the American people. Such an act would certainly have been worthy of public comment.
The second is that the White House and executive authorities arrogated to themselves the right to decide which anticipated intelligence activities had to be revealed to Congress. As the late Senator Barry Goldwater, conservative Republican to a fault, famously declaimed at the time of the Iran-Contra affair, "This was no way to run a railroad."
Bush administration abuses and a CIA director's weakness demonstrate that intelligence oversight is too important to be left to individuals. It's time to codify requirements for congressional notification, putting back into law something that was briefly there decades ago. This should not be a matter of an executive order from President Barack Obama, though that could be a temporary measure pending the passage of legislation. Executive order restraints can be changed at the stroke of a pen. The United States needs a statute that puts in precise writing what intelligence activities the Congress must be informed of. That is the way to avoid travesties like the hit-team affair.
© 2009 Foreign Policy In Focus