A group of reputable open government and civil liberties advocates wrote a letter to the House leadership last week recommending a series of reforms to the House Permanent Select Committee on Intelligence (HPSCI) and to intelligence oversight in general. Some of these recommendations, especially those focused on HPSCI transparency, make good sense. But many of the others miss the mark.
For example, the report recommended that, “all Members must be allowed one staff member with Top Secret/Special Compartmented Information (TS/SCI) clearance…” Currently, SCI clearance is normally limited to staff on relevant committees. If this recommendation were carried out, it would notionally provide non-intelligence committee Members with more access and understanding of intelligence.
However, putting aside the fact that SCI stands for Sensitive Compartmented Information, it is important to realize that the clearance levels of staff are largely not at the discretion of congressional leadership or the result of procedural rules. Rather, they are the result of negotiations between Congress and the Executive Branch over what staff may or may not access. The limited number of staff with SCI clearance reflects an Executive Branch concern that providing too much access would create a security vulnerability (a concern that is quite legitimate given the unique relationship many staffers have with various interest groups, including the public, the media, and foreign officials).
The letter also recommended that HPSCI, “ensure the executive branch provides all requested information.” This seems to imply that HPSCI members are currently just tickled pink whenever the Executive Branch refuses to provide requested information. That is certainly not the case.
As these examples demonstrate, the problem with many of the recommendations in this letter is that they fail to appreciate the power the Executive Branch has over the functioning of congressional intelligence oversight.
The rules and procedures that currently govern sharing with Congress—and that establish the intelligence committees as the gateways through which information is shared—attempt to achieve a balance between Congress’s oversight prerogatives and the executive’s security prerogatives. They are the result of decades of formal negotiations and informal gentlemen’s agreements between the two branches.
What the congressional intelligence committees share with the rest of Congress and the public depends upon what the Executive Branch is willing to shares with the intelligence committees. And, the more those committees share, the less the Executive Branch might be inclined share with the committees. This is the basic paradox of intelligence oversight.
As I wrote earlier this month, the first priority of the new leadership of the intelligence committees should be to reestablish trust in oversight. To do so, they need to increase transparency to bolster their credibility. My thinking here is quite consistent with some of the recommendations put forward by these open government groups last week. But it occurred to me, upon reading their letter, that my own analysis was incomplete because Congress cannot do oversight reform on its own.
Reform of congressional intelligence oversight depends upon the willingness of both the Congress and the Executive Branch to support reform. It requires that congressional intelligence committees operate with greater transparency and that intelligence officials allow those committees to operate with great transparency.