Reforming Intelligence: Obstacles to Democratic Control and Effectiveness

One: Executive Privilege: Intelligence Oversight in the United States

one executive privilege Intelligence Oversight in the United States Steven C. Boraz T he institutions that have been created to control intelligence in the United States, as elsewhere, reside formally in executive , legislative, judicial, and internal controls as well as informally in public scrutiny of the intelligence community (IC). And although these structures and processes exist, they have been part of the U.S. oversight framework for a relatively short period of time and continue to evolve. This chapter will discuss these procedures, their origins, and the impact of recent changes in oversight stemming from the 9/11 Commission Report, President George W. Bush’s August 2004 executive orders (EOs), the Intelligence Reform and Terrorism Prevention Act of 2004 (referred to as the Intelligence Reform Act henceforth), and the creation of the Office of the Director of National Intelligence (ODNI) with John Negroponte at its helm, as well as briefly touching on changes ushered in from the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (henceforth referred to as the WMD Commission Report).1 The U.S. system is one in which the executive and legislative branches have large roles. Since legislative controls became a part of the system of overseeing and controlling intelligence in the United States in the mid-1970s, Congress has taken a continually increasing interest in intelligence and its role in national defense. In fact, the U.S. Congress has probably the most developed mechanisms for reviewing intelligence practices anywhere in the world. Despite the legislative role in intelligence oversight, control of the IC is more concentrated in the executive branch. To illustrate this point, I include a short case study of how executive guidance affects the IC.2 steven c. boraz establishing intelligence oversight While the army, the navy, and the State Department all operated intelligence organizations dating back decades, it was not until the National Security Act of 1947 that an ‘‘intelligence community’’ was established. However, in its original form, the act did not provide for legislative oversight. In fact, legislative oversight from 1947 through 1975 was left to the Armed Services Committee in the House of Representatives, a committee that had very little desire to oversee the IC.3 Significant change occurred in the mid-1970s amid national reporting of CIA and FBI intelligence operations against members of the antiwar movement within the United States, as well as the CIA’s attempts to destabilize or replace existing governments in the international realm. Coupling these developments with the Watergate scandal , Americans demanded greater accountability of their government. Congress responded and set about to investigate the numerous allegations of misconduct within the IC, as well as the executive branch’s role as overseers. One of the first actions Congress took was implementing the Hughes-Ryan Amendment in 1974, requiring the president to ‘‘find’’ that a covert action was important to the national security of the United States and mandating that the president report to Congress in a ‘‘timely fashion a description and scope of any operation with the appropriate Committee’’ in Congress as designated recipients of the finding.4 Congress now had its first role in establishing oversight, though this role would prove controversial for years to come, as the next chapter, on judicial oversight, highlights.5 Congress then established two special committees to investigate the abuses in the IC: the Church Committee in the Senate and the Pike Committee in the House. Both committees investigated a wide range of CIA activities, though Senator Frank Church tended to focus on the activities of the IC and Congressman Otis Pike focused more closely on intelligence failures. The Church Committee published its findings in fourteen reports in 1975 and 1976.6 Although the Pike Committee report was never officially released (much of it was leaked and found its way into the Village Voice), the findings of both committees led to the creation of the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI), both of which are discussed later in this chapter.The Church Commit28 executive privilege tee reports still represent the seminal event in establishing legislative oversight of the IC. As the Pike and Church Committees were working, the executive branch also sought to investigate intelligence wrongdoing, and President Gerald Ford established a commission on CIA activities, headed by Vice President Nelson Rockefeller. The Rockefeller Commission issued...