- Congress and the American Experiment in Holding Intelligence Agencies Accountable
This article examines the problem of maintaining control—accountability—over the secret intelligence organizations of the U.S. government: seventeen major agencies with histories of independence from one another, as well as (until recently) from close supervision by overseers in Congress, the judiciary, and even the executive branch. It focuses especially on the difficulties faced by lawmakers who seek to ensure the spy agencies stay within the white lines of the law and propriety. Ever since the nation’s beginnings and all the way until 1975, government officials have treated intelligence as an exceptional case placed outside the normal framework of constitutional checks-and-balances. This special status came to an end, however, when official investigations revealed the involvement of intelligence services in illegal activities at home and questionable operations abroad. These revelations led to the establishment of new rules in the late 1970s that were designed to rein in the hidden side of government.
The new rules have been under great pressure since the 9/11 terrorist attacks against the U.S. homeland and the ongoing threats presented by global jihadists. As incidents of terrorism rose in frequency around the world, a philosophical and political struggle gripped Washington, pitting those who seek to relax restrictions on and reviews of intelligence activities—the security school of thought (which highly values secrecy and efficiency in combating America’s foes)—against those who prize America’s experiment in bringing democracy into the darkened corridors of government—the civil liberties school (which values privacy and transparency, but is certainly mindful that security is important, too). The objective here is to explore Congress’s struggle [End Page 494] to achieve a workable balance between security and liberty, both vital objectives in a democratic society.
This search for a sensible equilibrium that honors each school of thought has produced novel achievements in modern governance, yet the experiment remains a work-in-progress with serious disagreements and limitations remaining in play. First, this article looks briefly at the state of intelligence accountability in the United States before 1975. During this long stretch of time, from the signing of the Constitution in 1787 to the middle of the Cold War, Congress was content to maintain a largely hands-off approach to espionage activities, relying on intelligence officers to carry out their work without many guidelines in an uncertain and often dangerous world—the norm followed in all other countries, too. Then, in the wake of the Watergate affair (1973), the souring of the Vietnam War (1968–1973), and a shocking domestic spying scandal (1974), lawmakers decided the time had come to extend constitutional principles into the shadowy domains of the executive branch. The Congress would try to apply the Constitution’s normal checks-and-balances to the once sacrosanct secret agencies—a profoundly new direction in governance for the United States and one unprecedented in world history.
intelligence and democracy
In a sequence of arduous, spirited, and productive meetings in Philadelphia over a three-and-a-half-month period in 1787, the framers sought to create a government in which the people would rule—a revolutionary idea in a world that, at the time, knew only monarchies and dictatorships.1 Among the fifty-seven founders, perhaps no one surpassed James Madison when it came to deep thinking about the future of the American polity. At the core of his antipower philosophy was the conviction that “power, lodged as it must be in the hands of men, is ever liable to abuse.”2 Today, these words are etched in the marble on the wall of the Madison Wing in the Library of Congress. In The Federalist No. 51, written in defense of the new Constitution, Madison explained the importance of the safeguards crafted in Philadelphia: “If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government to be administered by men over men, the great difficult lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is...