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48–096 PDF 2009

S. HRG. 110-794

CONGRESSIONAL OVERSIGHT OF INTELLIGENCE

ACTIVITIES

HEARING

BEFORE THE

SELECT COMMITTEE ON INTELLIGENCE

OF THE

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

NOVEMBER 13, 2007

Printed for the use of the Select Committee on Intelligence

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/senate

(II)

SELECT COMMITTEE ON INTELLIGENCE

[Established by S. Res. 400, 94th Cong., 2d Sess.]

JOHN D. ROCKEFELLER IV, West Virginia, Chairman

CHRISTOPHER BOND, Missouri, Vice Chairman

DIANNE FEINSTEIN, California

RON WYDEN, Oregon

EVAN BAYH, Indiana

BARBARA A. MIKULSKI, Maryland

RUSSELL D. FEINGOLD, Wisconsin

BILL NELSON, Florida

SHELDON WHITEHOUSE, Rhode Island

JOHN WARNER, Virginia

CHUCK HAGEL, Nebraska

SAXBY CHAMBLISS, Georgia

ORRIN G. HATCH, Utah

OLYMPIA J. SNOWE, Maine

RICHARD BURR, North Carolina

HARRY REID, Nevada, Ex Officio

MITCH McCONNELL, Kentucky, Ex Officio

CARL LEVIN, Michigan, Ex Officio

JOHN McCAIN, Arizona, Ex Officio

ANDREW W. JOHNSON, Staff Director

LOUIS B. TUCKER, Minority Staff Director

KATHLEEN P. MCGHEE, Chief Clerk

(III)

CONTENTS

NOVEMBER 13, 2007

OPENING STATEMENTS

Rockefeller, Hon. John D., IV, Chairman, a U.S. Senator from Virginia ........... 1

Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from Missouri ....... 6

WITNESSES

Hamilton, Hon. Lee H., former Vice Chairman of the 9/11 Commission and

former Member, U.S. House of Representatives ................................................ 11

prepared statement .......................................................................................... 15

Roemer, Hon. Timothy, former Vice Chairman of the 9/11 Commission and

former Member, U.S. House of Representatives ................................................ 17

prepared statement .......................................................................................... 20

Zegart, Amy B., Associate Professor, Department of Public Policy, School

of Public Affairs, University of California, Los Angeles ................................... 41

prepared statement .......................................................................................... 45

Saturno, James V., Specialist, Congress and the Legislative Process, Congressional Research Service, Library of Congress .................................................... 48

prepared statement .......................................................................................... 51

SUBMISSION FOR THE RECORD

Families of September 11, prepared statement .................................................... 10

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CONGRESSIONAL OVERSIGHT OF

INTELLIGENCE ACTIVITIES

TUESDAY, NOVEMBER 13, 2007

U.S. SENATE, SELECT COMMITTEE ON INTELLIGENCE, Washington, DC.

The Committee met, pursuant to notice, at 2:37 p.m., in room

SH–216, Hart Senate Office Building, the Honorable Jay Rockefeller, Chairman of the Committee, presiding.

Committee Members Present: Senators Rockefeller, Feinstein,

Wyden, Feingold, Whitehouse, Bond, Snowe and Burr.

OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV,

CHAIRMAN, A U.S. SENATOR FROM WEST VIRGINIA

Chairman ROCKEFELLER. The meeting will come to order. The

Senate Intelligence Committee meets in open session, which is actually required under the rules if we have nothing which is classified, so that’s why we’re here. But we have a very serious purpose,

which is to examine how to optimize what you all talked about in

the 9/11 Commission, and that is congressional oversight of the

United States Government’s intelligence activities.

To help in this undertaking we’re going to hear from panels of

expert witnesses. Our first panel will be two members of the 9/11

Commission—a rather distinguished gentleman by the name of

Congressman Lee Hamilton, and another rather distinguished gentleman, the former Congressman Tim Roemer. Both are former

Congressmen.

Our second panel witnesses will be Professor Amy Zegart from

UCLA and Mr. James Saturno of the Congressional Research Service.

The Senate and House Intelligence Committees were created

over 30 years ago as the congressional authorizers of the U.S. intelligence community budget and sensitive classified programs. In

this role, the Senate Intelligence Committee is charged with carefully evaluating the legal foundation and operational effectiveness

of a wide array of intelligence collection and analytic efforts that

are linchpins to America’s economic, diplomatic and security

wellbeing.

The Intelligence Committee is unlike any other Senate committee. Our secure workspaces are windowless. Everything is enclosed in lead. We are guarded by the Capitol Police. Much of our

oversight efforts take place in hearings, most of which are necVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
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essarily held in closed session. Because the Committee deals with

the nation’s most sensitive secrets on a daily basis, we must conduct our work with great care to make sure that the public interest

is served without compromising details that could give our adversaries an advantage.

In the aftermath of 9/11, the intelligence community’s performance in the months leading up to the attacks came under considerable scrutiny. The sobering findings of this difficult but necessary

retrospective investigation were published in the Joint Congressional Inquiry Report of 2002 and the 9/11 Commission Report of

2004.

Two weeks before the 9/11 Commission issued its report, the

Senate Intelligence Committee released a sweeping and devastating report on the flawed collection, analysis and use of intelligence preceding the invasion of Iraq. Together these efforts provided the push that led by the year’s end to the passage of landmark legislation reforming the intelligence community to a certain

extent.

The focus on reform was not limited to the intelligence community, however. The effectiveness of Congress in overseeing these intelligence activities was brought into question as well and specifically by the 9/11 Commission, very pointedly and very properly.

Were there ways that the legislative branch could improve its

own efforts at ensuring that our counterterrorism efforts and other

critical intelligence programs were responsive and effective to the

threats that are facing our Nation?

The Senate passed Senate Resolution 445 in October of 2004

which set forth a blueprint of reforms designed to strengthen the

Senate Intelligence Committee and eliminate artificial hindrances

to carrying out oversight, such as doing away with the 8-year limitation, which had a long and sordid history, placed on Senators

serving on the Committee. We now serve at the will and pleasure

of our two leaders.

Additional steps have been taken since the passage of Senate

Resolution 445 to further improve the Intelligence Committee’s

oversight efforts. In February of this year, as the new Chairman

of the Committee, I signed a memorandum of agreement, or MOA,

with the Chairmen and Ranking Members of the Senate Appropriations Committee and the Appropriations Subcommittee on Defense,

which is a bunch of words, except when you look at what I just

said. And that improves the coordination and the transparency in

how our Committees authorize and appropriate intelligence activities, which is a primary concern that was voiced by you on the 9/

11 Commission.

It’s not us doing authorizing but it’s—and I’ll explain further—

it’s an integration which has been working of these two Committees.

In order to improve the flow of information between the Committees under the MOU—memorandum of understanding—staff of the

two Committees are notified of and allowed to attend the intelligence hearings of the other. In order to provide optimum staff

support to Members, each member of the Intelligence Committee

who also serves as an appropriator can bring his or her Intelligence

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Committee staff members during Appropriations Committee hearings and markups.

In order to improve coordination between the two committees in

their respective reviews of intelligence activities, all Senators and

cleared staff of one committee are permitted under the MOA—

memorandum of agreement—to review and report on any classified

annex of the other committee before action is taken. So that gives

us an insight into what the authorizers are doing, and it gives us

a chance, the Vice Chairman and I, in order to intervene before

they do markup. Before they do markup, we can go over there and

talk loud.

Moreover, the Chairmen and Ranking Members, as I’ve indicated, of each committee have the opportunity to appear before the

other to present their respective views prior to the markup, which

I’ve indicated.

While there are other ideas for coordinating the oversight efforts

of the two committees, which we will explore at today’s hearing, I

believe this memorandum of agreement, little known to the outside

world, has made great strides toward bringing our committees together in a unity of effort that was lacking before. If not perfect,

it is better.

Strengthening congressional oversight, however, is more than

changing boxes and lines on an organizational diagram. It is first

and foremost about marshaling the resources at the Committee’s

disposal to ask the hard questions and do the necessary digging

and conduct the sort of objective and unflinching evaluation needed

to understand where change within the intelligence community in

fact is required.

In this regard, the Vice Chairman and I established study

groups—we decided to go out on our own on this—within the Committee to get ahead of the curve and to examine the intelligence

community’s posture toward high-priority issues such as Iran, terrorist safe havens—wherever they might be—China, and many,

many other subjects. It’s all done on a bipartisan basis. They all

work together. They’re, you know, furiously working, and then they

give us their reports and it’s very, very helpful to us.

These efforts augment the invaluable work done by our core

budget and issue staff monitors as well as the evaluations completed by our technical advisory group—something which most people don’t know about but which is a group of five or six absolutely

brilliant people entirely outside of Government who just have extraordinarily smart thoughts and things to say and say them very

freely and openly to us.

We’ve also held two to three Committee oversight hearings a

week since January, covering a multitude of topics, including Iraq,

Iran, Afghanistan, Pakistan, North Korea, covert action,

cybersecurity, terrorist ideology, human intelligence collection,

technical collection systems and detention and interrogation programs.

In fact, the Committee has held over 60 oversight hearings and

meetings in 2007, while at the same time reporting out a bipartisan bill on reforming FISA by a vote of 13 to 2, and the first authorization bill to pass the Senate in 3 years—and that’s not necessarily big news to the outside world, but that’s huge news to us,

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absolutely huge. And it’s not done yet. It’s not agreed to yet by the

entire Congress or the President, but I think it will be.

So the operation tempo of the Intelligence Committee has indeed

been very high in 2007 thanks to the Vice Chairman and all of our

Members, but there’s always room for improvement and that is

why we’re holding our hearing today.

Before turning to Vice Chairman Bond for his opening remarks,

I want to vent a bit to highlight what I consider to be the greatest

impediment to effective congressional oversight.

For 7 years, I have witnessed firsthand how the Intelligence

Committee has been continually frustrated in its efforts to understand and evaluate sensitive intelligence activities by an administration that responds to legislative oversight requests with indifference, if at all, and with usually outright disdain.

For 5 years after 9/11, the administration refused to brief the full

membership of the oversight committees on the existence of NSA’s

warrantless surveillance program and the CIA’s secret prison system and interrogation techniques, the two programs the administration publicly touts as indispensable tools in the war against terrorism. Oh, they said that the ‘‘gang of eight,’’ so to speak, or the

top leadership in the Intelligence Committees were briefed, but

having attended all of those briefings, I can say that that is one

of—the way you advertise movies; it’s just a bit of an overstatement.

Those few congressional officials who were briefed were prevented from disclosing any details or having any conversations to

any other Intelligence Committee members. I, for example, had

Vice Chairman Bond and I had been receiving those, I could have

not talked to him, nor could I talk to my chief of staff. I did write

two letters of protest about the programs under review to the Vice

President, one of which is public and one is not. But to discuss it

with anybody? No—not with Dianne Feinstein, Senator Wyden, not

with Senator Bond. I mean, it just didn’t make any sense at all.

It was a way of controlling what we had access to—giving us insufficient briefings about huge topics in which they had been potentially breaking the law and then preventing it from going any further in discourse.

Now, these few congressional officials who were briefed, as I said,

were muzzled. The end result was that the Intelligence Committees

were bypassed for 5 years at a critical time when oversight into

controversial legal and operational questions was needed in the

most urgent fashion. It was an amazing asymmetric way of thinking.

You know, you can get endorsement, you can get support from

the Intelligence Committee, but you have to tell them what you’re

doing, and you can’t withhold information from them, and you can’t

lie to them, and we faced a bit of that.

In retrospect, the administration’s unwillingness to deal with

Congress as a full partner after 9/11 in authorizing and funding

these programs was shortsighted and in turn created the compounded problems that we are dealing with this day.

In my capacity, first as Vice Chairman and now as Chairman of

the Senate Intelligence Committee, I am in an ongoing, pitched

battle with an administration that myopically views congressional

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oversight as being at odds with protecting national security. In recent months, I have unsuccessfully urged the White House to give

all members of the Intelligence Committee access to a number of

so-called gang-of-eight programs—those are so-called very secret

ones, like the NSA surveillance and the CIA detention programs,

which I’ve mentioned that before.

These programs are known—and just think about this: These

programs are known to hundreds if not thousands of executive

branch employees but cannot be shared with the Intelligence Committees, the Senate or the House—cannot be shared, will not be

shared, and that’s just the way it is. Only eight members of the

legislative branch are trustworthy enough to know about them. Is

that a proper standing of the public interest? I think not.

For years, the White House and the intelligence community have

repeatedly withheld information and documents, even unclassified

documents, from the Committee that we have asked for. For instance, I have pressed the administration for years without success

to turn over the Committee legal reviews concerning the lawfulness

of the CIA’s secret detention program interrogation techniques. We

were successful in getting that done, but it was not a happy exchange.

Just last week officials uniquely knowledgeable about the CIA

program were prevented from meeting with the Committee staff to

answer questions—not with the Committee members, but with the

staff. They were here; they were ready. The meeting was set; the

staff was set and then they were told to go to the airport and leave.

It doesn’t make this Chairman very happy. And it’s something

that I think that the 9/11 Commission understands but the American people need to understand very fully—that this is not just

about how we get along with the authorizers; this is about a fundamental withholding of information which is, under the 1947 law,

ours to understand. It legally is ours to understand, and they have

ignored it. Maybe they ignored it in the previous administration. I

don’t know; I wasn’t on this Committee then.

So while we discuss today ways of further improving congressional oversight, I’d like to hear the views of each of our witnesses

on the harm done to this statutorily mandated oversight when the

executive branch decided it would rather bypass or ignore Congress

in carrying out controversial intelligence programs.

From my vantage point, the notion that congressional oversight

is impeded simply because an authorizing committee may have a

different view on spending priorities than an appropriation committee, I won’t say it’s simplistic; I just think it misses the larger

point. We can work things out with the authorizers; we can work

nothing out—we can work absolutely nothing out with the administration unless they choose to let it be worked out.

Intelligence does not belong, evidently, to the Intelligence Committee. It belongs to those who, for political or policy reasons, decide that it will be given to us or not. And I am profoundly frustrated by this.

And so, I mean, in closing, effective oversight is never going to

be fully realized as long as the administration views the Congress

as little more than a speed bump when it wants to carry out intelVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
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ligence activities unfettered by what Congress might have to say

about some of those programs.

I now recognize the Vice Chairman.

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE

CHAIRMAN, A U.S. SENATOR FROM MISSOURI

Vice Chairman BOND. Thank you very much, Mr. Chairman, for

holding this hearing today. You have received requests from our

members to hold this hearing, and I appreciate you scheduling it.

With respect to the points that you made, I was pleased to work

with you so that we were able to have the Committee briefed on

those critical programs such as the terrorist surveillance program

and detention and interrogation techniques, which you discussed.

And I think that goes a long way.

But you will recall that during the debate on the 9/11 bill in

March, you and I supported the sense of the Senate provision calling on the Committee and the Senate Homeland Security and Government Affairs Committee to conduct hearings on intelligence reform, specifically on congressional reform of fiscal oversight of intelligence, which is why I believe we’re here today. Even though

the Senate has adopted some of the 9/11 Commission’s recommendations on congressional reform, this most important area,

in my view, has not been addressed.

The 9/11 Commission stated that, of all our recommendations,

strengthening congressional oversight may be among the most difficult and important, further stating that congressional oversight of

intelligence and counterterrorism is now dysfunctional. The recommendation of the Commission to deal with that dysfunction was

to consolidate authorization and appropriations in a single committee.

I understand Senators Burr, Bayh, Snowe and Hagel and Feingold from this Committee, along with other Members, introduced a

resolution on the Senate floor this morning to do exactly that, and

I commend them for bringing greater attention to the issue. The

traditional authorization and appropriations process, while not perfect, serves the Nation’s needs adequately in most instances.

So what’s different about the oversight of intelligence within today’s national security framework? How does it differ from the

past?

Well, throughout the cold war, there were two superpowers dominating the international arena. The primary function of national

intelligence was to provide strategic warning of Soviet intentions or

actions. The risk of miscalculation on either side could have resulted in a cataclysmic war involving nuclear weapons. Both the

United States and the Soviets understood the conflicts; therefore

the Soviets sought their political objectives through intimidation

and coercion rather than actual war.

That threat and, with it, the former purpose of national intelligence changed with the dissolution of the Soviet Union and the

rise of a new and potentially more ominous threat. The Soviets did

not seek violent confrontation as primary objectives, but our new

adversaries seek violent confrontation and death as a primary

means to their goals.

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The conversion of Islamist extremism with the spread of weapons

of mass destruction technologies has dramatically shifted the burden and the need for national intelligence requirements at this

point in our history. A failure of intelligence over the next decade

and beyond, similar to that of 9/11, could result not in several thousand deaths but potentially several million.

Surprise attacks by large-scale military forces of hostile nations

can easily be detected by national technical capabilities, but a

small suicidal cohort armed with a weapon of mass destruction is

extremely hard to detect. This necessitates a fundamental shift in

the purpose, organization, training and operations of our national

intelligence capabilities.

With that shift comes an increased demand for rigorous and consistent intelligence oversight by Congress. The question before us

today is whether or not today’s traditional bifurcated Senate oversight process is suitable to achieve the goals of oversight.

Some would like to say that the change has already occurred, so

we should call it a day. Well, as one of three appropriators for intelligence who also sits on the Committee along with Senators

Feinstein and Mikulski, I can tell you that if the change has occurred, I haven’t seen it. On the contrary, in my experience I’ve

seen more evidence of a need for a better synthesis between the

two.

For example, this Committee is currently conferencing our 2008

Intelligence Authorization Act with the House and we’re looking at

a number of issues where our bill is disjointed from the 2008 Defense Appropriations Act. As recently as a few hours ago, my staff

was receiving calls from intelligence officials worried about a number of potential ‘‘A not A’’—appropriated but not authorized—

issues. That’s not a showstopper in most fields, but when it comes

to national security and intelligence, it usually does not make a

whole lot of sense.

We have almost 50 professional staff on this Committee who

spend all their time doing nothing but intelligence oversight day in

and day out. And, as the Chairman so adequately said, we’ve had

over 60 hearings. We spend a lot of time going in depth into all

these issues.

On the other hand, the Defense Appropriations Committee has

fewer than a half dozen staff who write the intelligence appropriation portion of the defense appropriation bill, and that’s less than

one-tenth of the overall money in the bill.

Our Committee has held scores of intelligence oversight hearings, the Defense Appropriations Subcommittee has held notably

few. I think the disparity is clear. What I’m saying is this oversight, their power, on the budget is now disjointed.

Let me be fair to my other committee, the Defense Appropriations Subcommittee. That committee does outstanding work, and I

commend Chairman Inouye and Ranking Member Stevens for the

attention and the time they’ve put into defense matters.

But that is my point. That committee is consumed with defense

matters—and they are major—not intelligence matters. The committee is wrapped up in nearly half-trillion-dollar appropriations

bills, with less than one-tenth of it comprising the national intelligence program that we in the SSCI oversee. As SAC/D is curVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
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rently constructed, it can’t give intelligence the attention it deserves.

Mr. Chairman, we discussed this issue at the beginning of this

Congress and you believed, as you indicated, that the best path

was to sign a memorandum of agreement with the chairmen and

ranking members of the Appropriations Committee promising better coordination. I expressed to you my disagreement because I believed the MOA was weak and would not effect real change.

I had hoped we would move together, but when I returned from

an overseas trip and I found that an MOA had been signed—and

Senate counsel advises me it’s invalid, but I don’t think it would

work anyhow. But since you brought it up, let’s look at how difficult the issue has been by showing how ineffective the MOA has

been.

The MOA has four points. The first says the staff of each committee will be notified and allowed to attend the intelligence hearings of the other. I canvassed our staff and one of them once was

invited to one meeting. My staff was never even notified of them,

and I’m on that committee. Strike one.

Second, it states that the members, the overlapping members,

could bring one staffer with us to the SAC/D markups. Well, we’ve

always been able to do that, yet the marks were decided well beforehand, so by the time we got there, the pie had already been

sliced. Strike two.

Third, we’re supposed to be able to review the SAC/D mark before markup. We were shown it right beforehand, with no opportunity to provide SSCI influence to it. Strike three.

Fourth and finally, the Chairman and Vice Chairman were supposed to appear before SAC/D to make our case for our marks and

the SAC/D’s Chairman and the ranking member were supposed to

appear before our Committee to do the same thing. It didn’t happen.

Strike four.

I have been looking at better integrating intelligence expertise in

the appropriations process for some time, and regrettably I thought

MOA would fail, as it has. I also don’t think even if it were followed religiously it would address all of the concerns that your

commission raised, and that’s why I did not support it.

So has anything really changed since the 9/11 Commission recommendation over the past few years? Well, this year our Intelligence Committee included in particular four major oversight initiatives. Each of these represents a substantial departure from

business as usual.

One, stop funding of cold war technology collection capability.

Two, move to cheaper technical collection capability so more sensors can be deployed and provide more data to policymakers and

the military.

Three, realign the management of a collection program that has

failed for more than a decade to deliver a capability integral to its

mission. This represents the third consecutive year the Committee

has identified severe technical and managerial difficulties in the

program, some of which going back a decade.

Four, undertake an innovative technology demonstration program.

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The first three of these initiatives were ideas the Chairman and

I jointly supported and were recommended by staff. The fourth was

an amendment offered by Senator Mikulski and me that was

adopted on a bipartisan vote.

Each of these issues was fully briefed to the SSCI members and

approved by a vote of Committee members; on the Appropriations

Committee, however, that did not happen. Senators Mikulski, Feinstein and I are members of the Defense Appropriations Committee,

yet none of these four issues was brought before the SAC/D so that

members could be briefed on them, debate and vote on them. In

fact, the SAC/D marked up the nearly half a trillion dollar Department of Defense bill in about 20 minutes in an open session. That’s

far less time than we spent just debating one of the issues I discussed.

If anyone thinks it’s a new problem, it’s not. In 2000, the previous administration proposed a new collection program. Our Intelligence Committee analysis indicated the program would cost substantially more than estimated and the utility of data collected did

not justify the cost. Chairman Shelby and Vice Chairman Bryan at

the time opposed the program. Subsequently Chairman Roberts

and Vice Chairman Graham opposed the program. Chairman

Rockefeller and I have supported program termination as well.

We’ve been recommending termination of the program on a bipartisan basis for years. If you think the fight was just an intercommittee squabble, nothing could be further from the truth. Every

outside technical review conducted on the merits of the program by

the administration’s outside experts recommended killing the program.

In 2001, the Scowcroft panel recommended termination in

NSPD–5. In 2004, an independent panel of technical collection experts appointed by the Bush administration recommended terminating the program. The outside technical advisory board of the

agency in charge of the program recommended terminating it consistently. The first Director of National Intelligence, John

Negroponte, recommended killing it.

Chairman Rockefeller, when you were Vice Chairman and now

as Chairman, you’ve been a consistent, vocal and articulate advocate for the program’s termination. It took until recent time to end

a program that at least should have been terminated a number of

years ago, and unfortunately, all told, the loss to the taxpayers is

astronomical—in the billions of dollars.

I could go on, but suffice it to say that the same institutional and

structural problems that have existed for years still impede our effective oversight.

I’d like to hear what our witnesses say that Congress should do

about it. I’m not backing any particular option yet. I’ve seen the

9/11 recommendations and the panel that Speaker Pelosi put together on the House side to address this issue and I’ve heard a

number of others, a few of which I’m looking at closely, but I think

there are good options from which to choose. They need to be discussed.

Well, I think we can do better for the American people and for

our job, Mr. Chairman. That’s why I’m pleased you called this

hearing so we can hear from our really distinguished expert witVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
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nesses and then at our business meeting next week we can discuss

their ideas among others. I thank you, Mr. Chairman. I look forward to hearing from our witnesses.

Chairman ROCKEFELLER. Thank you very much, Chairman Bond.

Vice Chairman BOND. Oh, let me ask unanimous consent. There’s

a short statement from the families of 9/11 that I ask be included

in the record of today’s hearing.

Chairman ROCKEFELLER. Without objection.

[The information referred to follows:]

STATEMENT OF FAMILIES OF SEPTEMBER 11

To be submitted for the record for the November 13, 2007 public hearing of the

Senate Select Committee on Intelligence

More than 6 years after 9/11, the U.S. Congress can be applauded for the many

changes it has enacted to ensure terrorists cannot attack our homeland again. Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004, reforming the intelligence community and creating the Office of the Director of National

Intelligence, while implementing dozens of other 9/11 Commission recommendations. This past summer, Congress passed the Implementing Recommendations of

the 9/11 Commission Act of 2007, providing for improved aviation security, creating

a commission to study the prevention of Weapons of Mass Destruction terrorism and

increasing information sharing among Federal, state and local law enforcement.

These were much needed measures that are making an impact in the prevention

of future attacks.

Families of September 11, an organization of more than 2,500 victims’ family

members, survivors and concern citizens, dedicated to making sure what happened

on 9/11 never happens again, is proud to have worked with Congress over the past

6 years to lend our support to their efforts. However, as big an impact as Congress’

work has had, more needs to be done, and done now.

The 9/11 Commission Report states ‘‘[o]f all our recommendations, strengthening

congressional oversight may be among the most difficult and important.’’ The report

outlines the pressing need for the overhaul of the current congressional intelligence

oversight structure. ‘‘Under the terms of existing rules and resolutions, the House

and Senate intelligence committees lack the power, influence, and sustained capability’’ to adequately oversee our nation’s intelligence community.

Families of September 11 understands what is at stake, and fully supports the

9/11 Commission’s call for either a ‘‘joint committee for intelligence’’ or the creation

of ‘‘House and Senate committees with combined authorizing and appropriations

powers’’.

This type of congressional overhaul is not easy. Some members stand to lose

power. Change is uncomfortable, inertia takes over.

But the consequences are too important to allow inertia to stave off needed structural reforms in Congress. Since 9/11, the intelligence community has been restructured to meet the new threat, but Congress has not.

Now is the time for Congress to heed to the warnings and advice of the 9/11 Commission, to shine a spotlight on its own structure and evaluate its strengths and

weaknesses in its ability to oversee our intelligence community.

Families of September 11 is glad the Senate Select Committee on Intelligence is

holding today’s hearing, and welcomes an opportunity to share our unique perspective on the importance of reforming congressional oversight. Unfortunately, our

membership knows all too well the possible consequences of inaction—in human

terms—when bureaucratic self interest stymies oversight of the essential government function of intelligence collection and analysis. Due to the secretive nature of

intelligence, American citizens can do little more than trust that our government

is doing its job in both the executive and legislative branches. To do its job, properly

and effectively, Congress must have all the tools necessary to do its job. The 9/11

Commission made clear that was—and is not now—the case.

This year, Congress passed legislation that enacted virtually all of what were the

report’s as yet unimplemented recommendations. Is it really possible that the 9/11

Commission was right on everything except the changes needed within Congress

itself? Please take the difficult step of re-organizing to meet the current threat, so

that Americans can begin to trust Congress again.

Thank you for the opportunity to submit this statement for the record. Signed,

Board members and founders of Families of September 11

Donald Goodrich, Chairman of the Board

11

Nancy Aronson, Treasurer Elinor Stout, Secretary Tim Barr, Board member Paul

Bea, Board member Paul Chicos, Board member David Edwards, Board member

Carle Lemack, Founder

Chairman ROCKEFELLER. And also without objection, we’re going

to keep the record open so that any Senator who wishes to include

a statement in the hearing record can do that. Also without objection, the written opening statements of all witnesses will be included in the hearing record in full.

It’s now my honor to call on a most distinguished American, Lee

Hamilton.

STATEMENT OF HON. LEE H. HAMILTON, FORMER VICE

CHAIRMAN OF THE 9/11 COMMISSION AND FORMER MEMBER

OF THE U.S. HOUSE OF REPRESENTATIVES

Mr. HAMILTON. Thank you very much, Mr. Chairman, Mr. Vice

Chairman, distinguished members of the Select Committee on Intelligence. Thank you for the honor to appear before you today. I

testify on behalf of Governor Thomas Kean. He’s not able to be

with us today, but he joins me in the statement that I’m about to

present.

He and I both commend the Chairman and the Vice Chairman,

of course, for holding this hearing. The importance of congressional

oversight simply cannot be overstated. Senator Bond just has entered into the record the statement of the families of September 11.

I was very pleased to see that statement. We’ve worked closely

with them over a period of years and they are supporting, I think,

the basic thrust of our testimony and we’re very happy to have

their support.

Public Law 110–53 expresses the sense of the Senate that the Select Committee on Intelligence should report by December 21 of

this year on its recommendations for improving intelligence oversight. Therefore, this hearing is timely and we welcome the opportunity to present the perspective of the Chairman and the Vice

Chairman of the commission. Tim Roemer is here as well. He was

an absolutely outstanding member of the 9/11 Commission, and I’m

pleased, of course, to testify with him.

Senator Bond mentioned that we wrote several years ago that,

of all of our recommendations, strengthening congressional oversight may be among the most difficult and the most important.

Carrying out effective oversight of intelligence is very, very hard to

do. If you’re the Chairman of a committee that works in the unclassified world, you get a lot of help—a lot of reporters who bring

issues to your attention, trade associations write reports, citizens

speak up, watchdog groups do studies; you get the Congressional

Research Service, you have the General Accounting Office—on and

on and on, all kinds of help.

Not so in the classified world. The world of intelligence is vast.

It is closed and it is complicated. It is comprised of 16 agencies

with well over 100,000 employees, as then-Director Negroponte indicated. The budget is $43.5 billion a year announced last week,

even bigger if the spending for military intelligence is included. If

you’re on the outside world of intelligence, you know nothing about

it other than what the executive branch decides to tell you.

The Intelligence Committees are completely on their own. They

serve as the proxy for the American people on intelligence. They

12

provide the sole check and balance on a huge and important Government activity. If they don’t provide the independent oversight,

it simply doesn’t get done. It’s an awesome responsibility. In short,

this is why we believe the Intelligence Committees need to be powerful and active. They need to carry out the robust oversight our

system of Government requires. They need to look into every nook

and cranny of the intelligence community’s business. They need to

ensure that laws are obeyed. They need to ensure that the American people are safe and that their freedoms are protected.

The Founders understood the importance, of course, of checks

and balances on Executive power. That’s why they gave you the

power of the purse. The single most important step to strengthen

the power of the Intelligence Committees is to give them the power

of the purse. Without it, you will be marginalized. The intelligence

community will not ignore you, but they will work around you, and

in a crunch they will go to the Appropriations Committee.

Within the Congress, the two bodies with the jurisdiction, time,

expertise to carry out a careful review of the budget and activities

of the intelligence community are the Senate and House Committees. Senator Bond mentioned a moment ago the 50 or so staff

members you have here and the handful of staff members you have

on Appropriations in the Senate.

When we were preparing the recommendations for the 9/11 Commission, Governor Kean and I came up here and asked Members

of the Senate caucuses, Republican and Democrat, House and Senate, how good a job you were doing on oversight. The word ‘‘dysfunctional’’ was used by you over and over again, and we put it in

the report. Two Senators said to me, looking back on the preceding

fiscal year, that they had spent about five or 10 minutes overlooking the intelligence budget in the Appropriations Committee

for the entire year. Now I believe it’s gotten better than that, but

that’s why we use the word dysfunctional.

All of us have to live by the golden rule, and the golden rule is

that he who controls the gold makes the rules. Leaders of the intelligence community also understand the golden rule. They work

hard to get the answer they want from the people who control their

dollars. They take advantage of the fact that the defense appropriators are mightily distracted from intelligence oversight because of

their other responsibilities. You’ve also referred to that in your

opening statement.

I want to be very clear here. The Appropriations Committee performs the best oversight work it can. The difficulty is that that subcommittee is simply overburdened. It has responsibility for a $500

billion-plus defense budget, it’s fighting three wars—terrorism,

Iraq, Afghanistan—it has hundreds and hundreds of complex

issues before it. It also has a responsibility for an intelligence budget about one-tenth the size of the defense budget.

I can appreciate that the Appropriations Committee has brought

on additional expert staff on intelligence issues. I was pleased to

hear the Chairman talk about the integration of the Appropriations

and the Senate Intelligence Committees and the work that has

been done to improve the system.

I like to hear about the focus on the key issues. You’re going to

be judged on a handful of issues, the big ones that confront AmerVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
13

ican national security. Whether or not it’s seen whether you do

your job or the Senate does its job or the House does its job is really going to depend on a handful of issues, the big, big intelligence

issues that this country confronts—we all know what they are—

with regard to our national security.

So I appreciate the efforts that are being made in both houses

in the Intelligence and the Appropriations Committees to improve

coordination and transparency. They’re useful steps, but they are

not a substitute for fundamental reform.

As the 9/11 Commission recommended 3 years ago, the Congress

should either create a joint committee for intelligence—with budget

power, of course—or create House and Senate committees with

combined authorization and appropriation powers.

It was a disappointment to us, but it came as no surprise, that

the Congress did not act on the commission’s recommendations. It’s

much easier for the Congress to reform the executive branch than

it is to reform its own institutions. Committee powers in the Congress are carefully balanced. They are jealously protected. Changing jurisdiction means redistributing power. Few things are more

difficult to change in Washington than committee jurisdictions.

I served in the Congress. I was involved in several efforts at congressional reform. Some failed; none of them achieved more than

partial success. And so I have a lot of sympathy with those who

take up the challenge of reform.

The approach that Governor Kean and I have taken since the

commission issued its report is pragmatic. Our preference is for a

single committee with authorization and appropriation powers. We

believe that’s the best approach. We can also count votes and, so

far as I know, we don’t see them.

We believe that there are other constructive approaches. The

same law that calls on this Committee to make recommendations

on congressional oversight also requires the declassification of the

overall intelligence budget. Last October 30, the Director of National Intelligence publicly released information on the overall intelligence budget. That was a recommendation of the commission

and we applaud the Director’s statement. A public number for the

intelligence budget means it no longer has to be hidden inside the

defense budget. A public number opens the way for the creation of

a separate Appropriations subcommittee on intelligence.

I understand full well that a separate Appropriations subcommittee on intelligence may not be the preference of this Committee. It was not the recommendation of the commission. But

ways have to be found to bring greater focus and additional resources to the oversight of intelligence appropriations. Governor

Kean and I will support reforms and structures that increase the

opportunity and likelihood of robust congressional oversight of the

intelligence community.

Let me give you some practical examples as to why oversight of

the intelligence community is more important than ever and why

congressional oversight must be reformed and strengthened.

First, the United States will without a doubt intervene again

somewhere with military force. It may be the most important foreign policy question of the coming decades. Decisions whether to intervene and how to intervene will ride largely on what the intelVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
14

ligence tells us. It is vitally important that the intelligence community get it right. Oversight is vitally important to help the community get it right.

Second, the Congress since 9/11 has provided broad authorities

to the executive branch to conduct investigations and collect data.

Enhanced collection capabilities and data mining pose high risks to

civil liberties and to privacy. To safeguard our liberties, the Congress must conduct robust oversight over the exercise of the authorities it has granted.

Third, the success of reform also needs congressional oversight.

Reform in the intelligence community, the most far reaching since

1947, is not easy to implement. Reform is a long and hard road.

Crises distract, attention wavers, senior officials are pulled in 100

different directions. The executive cannot carry out reform on its

own. Support and guidance from the Congress are necessary to sustain reform. Sustained oversight is necessary.

Chairman Rockefeller requested comment from us with regard to

this very difficult question of access to information. That’s not a

new problem in the Congress. That goes back 30, maybe 40 years,

when the committees have been fighting for more information from

the intelligence community. When I was Chairman of the Intelligence Committee in the House, we fought that battle every single

week. It has not been resolved.

I don’t know the answer to that except the only way to get the

attention of the executive is to withhold the money. You’ll get their

attention quick when that money is withheld.

The checks and balances in the Constitution are there for the

Senators and the Members to exercise, if they will do it. If you

want access to information and the executive branch won’t give it

to you—don’t give them the money. You’ll get the information.

To conclude, let me just say that, under our Constitution, Congress cannot play its proper role unless its oversight committees

are powerful and active. I was immensely pleased to hear a moment ago that you have had over 60, I think it was, oversight hearings during this year thus far. That shows a vitality and activity

that I think is just extraordinary on the part of this Committee and

you are to be commended for it.

Strong oversight provides the checks and balances our Constitution requires. Strong oversight by the Congress protects our liberties.

It makes our policies better. Strong oversight, I believe, keeps

our country safe and secure.

Thank you very much. After Congressman Roemer testifies, I’ll

be glad to help answer questions.

15

[The prepared statement of Governor Kean and Mr. Hamilton

follows:]

OPENING STATEMENT OF THE HON. LEE H. HAMILTON, FORMER VICE

CHAIR OF THE 9/11 COMMISSION, ON BEHALF OF HIMSELF AND THE

HON. THOMAS H. KEAN, FORMER CHAIR OF THE 9/11 COMMISSION, BEFORE THE SELECT COMMITTEE ON INTELLIGENCE, U.S. SENATE

November 13, 2007

Mr. Chairman, Mr. Vice Chairman, distinguished members of the Select Committee on Intelligence: Thank you for the honor to appear before you today on the

topic of congressional oversight of intelligence.

My testimony today is also on behalf of Governor Thomas H. Kean, the former

Chair of the 9/11 Commission. He is not able to be present today. He joins me in

this statement.

Gov. Kean and I commend the Chairman and Vice Chairman for holding this

hearing. The importance of congressional oversight of intelligence cannot be overstated.

Public Law 110–53 expresses the sense of the Senate that the Select Committee

on Intelligence should report by December 21, 2007 on its recommendations for improving intelligence oversight. Therefore, today’s hearing is especially timely. I welcome the opportunity to present the perspective of the 9/11 Commission’s Chair and

Vice Chair.

STRENGTHENING OVERSIGHT

As the Commission wrote in its final report 3 years ago, ‘‘Of all our recommendations, strengthening congressional oversight may be among the most difficult and

important.’’

Carrying out effective oversight of intelligence is very hard to do.

If you are the Chairman of a Committee that works in the unclassified world, you

get a lot of help. There are lots of reporters who bring issues to your attention.

Trade associations write reports. Citizens speak up. Watchdog groups do studies.

You can get the Congressional Research Service to analyze an issue. You can get

the Government Accountability Office to investigate.

Not so in the classified world. The world of intelligence is vast, and it is closed. It is comprised of 16 agencies with well over 100,000 employees. Its budget is $43.5

billion a year, and even bigger if spending by the military services is included. If

you are outside the world of intelligence, you know nothing about it other than what

the Executive branch decides to tell you.

The intelligence committees are completely on their own. They serve as the proxy

for the American people on intelligence. They provide the sole check and balance

on a huge and important government activity. If they don’t provide the oversight,

it doesn’t get done. It is an awesome responsibility.

In short, this is why we believe the intelligence committees need to be powerful

and active. They need to carry out the robust oversight our system of government

requires: • They need to look into every nook and cranny of the intelligence community’s

business. • They need to ensure that laws are obeyed. • They need to ensure that the American people are safe and that our freedoms

are protected.

WHAT NEEDS TO BE DONE?

The Founders understood the importance of checks and balances on Executive

power. That is why they gave the power of the purse to the Congress.

The single most important step to strengthen the power of the intelligence committees is to give them the power of the purse. Without it, they will be

marginalized.

The intelligence community will not ignore you, but they will work around you.

In a crunch, they will go to the Appropriations Committee.

Within the Congress, the two bodies with the jurisdiction, time and expertise to

carry out a careful review of the budget and activities of the Intelligence Community

are the Senate and House intelligence committees.

Yet all of us have to live by the Golden Rule: That is, he who controls the Gold

makes the Rules.

16

The leaders of the Intelligence Community also understand the Golden Rule. They

work hard to get the answer they want from the people who control their dollars.

They take advantage of the fact that the Defense Appropriators are mightily distracted from intelligence oversight because of their other responsibilities.

WHY SHOULD THE INTELLIGENCE COMMITTEE CONTROL

APPROPRIATIONS?

I want to be very clear here: The Appropriations Committee performs the best

oversight work it can. The difficulty here is that the Committee is overburdened.

The Defense Subcommittee of Appropriations has responsibility for a $500 billionplus Defense budget. It has responsibility for three wars: terrorism, Afghanistan

and Iraq, as well as hundreds of other complex issues. It also has responsibility for

an intelligence budget about 1/10th the size of the defense budget.

Now I appreciate that the Appropriations Committee has brought on additional

expert staff on intelligence issues. I appreciate that the Intelligence and Appropriations committees are making efforts to improve coordination and transparency.

These are useful steps, but they are no substitute for fundamental reform.

As the 9/11 Commission recommended 3 years ago, the Congress should either

create a joint committee for intelligence, or create House and Senate Committees

with combined authorization and appropriations powers.

WHY IS REFORM DIFFICULT?

It was a disappointment, but came as no surprise to us that the Congress did not

act on the Commission’s recommendations. It is much easier for the Congress to reform the Executive branch than it is to reform its own institutions.

Committee powers in the Congress are carefully balanced. They are jealously protected. Changing jurisdiction means redistributing power. Few things are more difficult to change in Washington than committee jurisdiction.

During the time I served in the Congress, I was involved in several efforts at Congressional reform. Some failed. None achieved more than partial success. Therefore,

I have great sympathy with those who take up the challenge of reform.

WHAT IS THE NEXT STEP?

The approach that Governor Kean and I have taken since the Commission issued

its report is a pragmatic one.

Our preference, as the report stated, is for a single Committee with authorization

and appropriation powers. We believe that is the best approach. We can also count

votes. So far, we don’t see them.

We believe there are other constructive approaches. The same law (PL 110–53)

that calls on this Committee to make recommendations on congressional oversight

also requires the declassification of the overall intelligence budget.

On October 30, 2007 the Director of National Intelligence publicly released information on the overall intelligence budget. That was the recommendation of the

Commission, and we applaud the Director’s statement.

A public number for the intelligence budget means it no longer has to be hidden

inside the defense budget. A public number opens the way for the creation a separate appropriations subcommittee on intelligence.

I understand full well that a separate appropriations subcommittee on intelligence

may not be the preference of this Committee. It was not the recommendation of the

Commission.

Yet ways must be found to bring greater focus and additional resources to the

oversight of intelligence appropriations. Governor Kean and I will support reforms

and structures that increase the opportunity and likelihood of robust congressional

oversight of the intelligence community.

WHY OVERSIGHT IS MORE IMPORTANT THAN EVER

Let me give some practical examples as to why oversight of the intelligence community is more important than ever, and why congressional oversight must be reformed and strengthened.

First, the United States will, without a doubt, intervene again somewhere with

military force. Decisions whether to intervene and how to intervene will ride largely

on what our intelligence tells us. It is vitally important that the intelligence community get it right. Oversight is vitally important to help the community get it right.

17

Second, the Congress since 9/11 has provided broad authorities to the Executive

branch to conduct investigations and collect data. Enhanced collection capabilities

and data mining pose high risks to civil liberties and to privacy. To safeguard our

liberties, the Congress must conduct robust oversight over the exercise of the authorities it has granted.

Third, the success of reform also needs congressional oversight. Reform in the intelligence community, the most far-reaching since 1947, is not easy to implement.

Reform is a long and hard road: Crises distract. Attention wavers. Senior officials

are pulled in a hundred different directions. The Executive cannot carry out reform

on its own. Support and guidance from the Congress are necessary to sustain reform. Sustained oversight is essential.

CONCLUSION

Under our Constitution, Congress cannot play its proper role unless its oversight

committees are powerful and active.

Strong oversight provides the checks and balances our Constitution requires.

Strong oversight by the Congress protects our liberties and makes our policies better.

Strong oversight keeps our country safe and free.

I appreciate your time and attention, and look forward to your questions.

Chairman ROCKEFELLER. Thank you very much, Congressman

Hamilton.

Congressman Roemer, we welcome you.

STATEMENT OF HON. TIMOTHY ROEMER, FORMER MEMBER,

9/11 COMMISSION, AND FORMER MEMBER OF THE U.S. HOUSE

OF REPRESENTATIVES

Mr. ROEMER. Thank you, Mr. Chairman.

I’m going to ask unanimous consent that my entire statement be

entered into the record, and I want to speak from the heart as a

former Senate staffer, where I had my first job in the U.S. Senate,

as a former Member of Congress, where I often fought with the executive branch for information, as a former member of the Intelligence Committee, where I will talk a little bit about some of the

experiences and the frustrations we had on that committee getting

information and answers as, Mr. Chairman, you have eloquently

stated in your opening comments.

Mr. Vice Chairman, nice to be with you. I applaud your efforts

to recognize Senator Burr and Senator Bayh’s bipartisan bill, because at the end of the day, that’s the only way that we can successfully approach and solve this problem of gaining, rebuilding, reforming congressional oversight to counter the Executive power and

will on that side.

When I told my 7-year-old daughter, Grace, that I was coming

up here to testify before Members of the Senate, she said, ‘‘Daddy,

are you in trouble?’’ I think I knew the answer to that. Yes, I was

walking into trouble. I’m a former staff member who did appropriations work for a United States Senator from the State of Arizona,

Senator DeConcini, and I knew very well the battle that takes

place between authorizers and appropriators.

I remember when I decided to run for Congress and go back

home to Indiana and they gave me a going away party. Running

against an incumbent, we won. And I remember being greeted coming back, and they had a coming back to Washington party and

they said: ‘‘Mr. Roemer, you just went from being an appropriator

to being a lowly House authorizer. We welcome back the intellectually challenged to Washington, D.C.’’

18

There is no doubt that this is a battle going on here in the Senate and over in the House.

I want to talk about 9/11. I want to talk about the three most

compelling reasons why we need these reforms, and I want to talk

about some of the options that we have before the U.S. Senate and

the U.S. House.

The 9/11 attacks exposed a great many flaws in our defenses on

that horrific day where we lost 3,000 people. Turf wars, cultures

preventing information sharing and a lack of unity led to some of

the problems on 9/11.

Terrorism thrives on this division. They take advantage of it

with dynamic action and entrepreneurial activity. And they can

strike with airplanes as weapons and kill hundreds and thousands

of Americans. Imagine if they get a dirty bomb or a nuclear weapon.

Recognizing these flaws, the U.S. Senate and the U.S. House

took action. They recognized that we needed to unify the executive

branch in order to confront some of these difficulties and problems.

You created a strong DNI; you created a strong National

Counterterrorism Center. You created a Department of Homeland

Security; I’m not so sure how strong that one is, but the effort was

to centralize power.

Now it’s time to focus on a unified and robust congressional oversight structure. You’ve done that for the executive, now we need

the countervailing balance, that power, on the legislative side, as

Madison talked about, the first branch of Government. Let’s make

it a first-class and first-rate power to compete with the executive

branch.

So I applaud this Committee’s willingness to look at this difficult

problem, to take on turf and money and internecine warfare.

What are the three most compelling cases for reform? First, as

Senator Bond I think very eloquently stated, there is a growing

budget and growing fiscal responsibility to do this right. George

Tenet released and declassified the budget in 1997 for intelligence

spending and back 10 years ago it was roughly $27 billion for the

taxpayer. Mike McConnell just released this figure the other day;

he said it was $43.5 billion. Now you have 50 staffers on the Intelligence Committee to peruse, to look into that budget, to try to ask

the tough questions about renditions, covert operations, special access programs.

The Defense Subcommittee doesn’t have 20 and they don’t have

10; I think they have roughly a half a dozen people. And they have

responsibility not for the $40 billion, but for about a $500 billion

defense budget—including supplementals that come through that

committee—so those staffers and those Members, as good a job as

they can possibly do, are overtaxed and overburdened. And I think

Congress needs to recognize that and address that.

Furthermore, in intelligence we have some of the most sensitive

collection technologies, the most sophisticated spy architectures,

the most extensive covert programs and renditions and special access programs. Those need vibrant oversight.

Two, the world has changed dramatically since 9/11. The cold

war structure that was meant to deal primarily with armies and

nation states around the world is not necessarily the primary

19

threat to America today. It’s rogue states; it’s remote villages. It’s

the Internet, where al-Qa’ida recruits day in and day out. AlQa’ida, as I said before, can use airplanes to strike this Nation in

a moment, in an instant, and try to kill hundreds of people.

We still may have legacy budgets and legacy architectures from

that cold war. We need to spend less time on the tactical side and

more time on the long-term strategic planning to try to make sure

our intelligence budgets are right and they’re not just right for tomorrow, we get them right for the next five to 10 years.

Thirdly, very compelling reason for this reform is the critical nature today of intelligence. Intelligence has always concerned matters of life and death. Now we know that they also concern matters

of going to war, of winning wars and of staying out of wars. And

we also know that intelligence is compelling in that it will give us

information on Iran and what we might do next and what options

are out there to make the critically right and important decisions.

We have assaults from a bloodthirsty enemy that creates a climate of fear in and out of our Government today, so it’s very important that we get these intelligence budgets right. It’s very important that we get the right kind of people before these committees. And my experience on the Intelligence Committee tells me

that oftentimes when you serve on the authorizing committee that

the intelligence community understands that and can game the

system. They can circumvent that authorizing committee that has

spent months doing budget oversight, that has spent years doing

language capabilities and requirements and how needed that is for

our rebuilding of our human resources and our human capacities,

and they go to two or three people on the Appropriations Committee and get around months or years or work on the authorizing

committee.

Those 60 and 70 hearings, Mr. Chairman, that you pour your

heart and soul into to find out what we need to do to get that intelligence community going in the right direction after mistakes, are

sometimes absolutely ignored and circumvented and the intelligence community knows the game and they know how to play it.

There is an old saying that if that play keeps working three yards

up the middle in a cloud of dust, they’re going to keep running the

same play.

What options do we have, Mr. Chairman and members of the

Committee, going forward? I think, Senator Rockefeller, you outlined some ideas that are positive steps, progress: the memorandum of agreement, the creation of the Technical Advisory

Group, the subcommittee that has empowered audit and investigative capability. I hope that is empowered even more with more staff

and more capabilities.

And the Speaker of the House led the way in creating a House

oversight panel on appropriations that I think is working very well.

I talked to several of those Members over the course of the last several weeks and they say it’s working better with more staff doing

oversight, with more Members doing oversight, with increased

cross-pollination between the authorization and the appropriations

committees and much progress is being made. I hope that that continues and that the Senate and the House will go further in how

to address the problems before them.

20

As the distinguished former Member of Congress, Congressman

Hamilton stated, the 9/11 Commission has recommended two different options. And I have to say what an honor it is to be here

in this room where the 9/11 families gathered so often with their

pictures of their family members, where the committee held its

hearings, where our distinguished Vice Chair who’s led Indiana

and is looked up to by so many Americans for his role in Congress

and his post-roles since Congress, that I’m very honored to be before all you Members of the U.S. Senate.

We recommended either combining the authorization and appropriations committees, no term limits, try to empower those members with increased knowledge and experience, as we don’t put

term limits on other committees, or create a joint committee on intelligence, similar to the Joint Atomic Energy Committee that

worked in secret, that worked in a bipartisan fashion and worked

effectively with the executive branch.

In conclusion, let me just say going back to my days in graduate

school, we were forced to read over and over and over again Woodrow Wilson’s book, the classic that he wrote in 1885 called ‘‘Congressional Government.’’ And he made two important observations.

One, he stated, ‘‘Quite as important as lawmaking is vigilant oversight of administration’’—vigilant, vigorous work from our staff and

our Members prying into what the executive branch is doing when

they’re doing more and more sensitive things that could possibly

violate Americans’ rights and liberties.

And second he made the observation that, ‘‘The informing function of Congress is to be preferred even to its legislative function,

even to legislating and creating new laws, that Congress be empowered to do its job of overseeing the President, whatever party

he or she may be, whatever views they represent.’’ That is the fundamental responsibility of what you do every day when you come

to work, I think, to make sure that we feel that the exceptional nature of intelligence warrants this exceptional approach from Congress to create this powerful type of committee.

With that, Mr. Chairman, Mr. Vice Chairman, distinguished

members, Mr. Hamilton and 9/11 families, I thank you.

[The prepared statement of Mr. Roemer follows:]

STATEMENT OF HON. TIMOTHY ROEMER

Reforming Congressional Oversight of Intelligence

Testimony Before the Senate Select Committee on Intelligence

13 November 2007

Of all our recommendations, strengthening congressional oversight may be among

the most difficult and important. So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security

they want and need.

–The 9/11 Commission Report

Mr. Chairman, Senator Bond, Members of the Committee, I am honored to be

here today. The honor is particularly great given the presence of my former colleague and fellow Hoosier, Lee Hamilton.

The 9/11 attacks revealed a great many flaws in the conduct of America’s defense,

many of which stemmed from a lack of unity across the institutions designed to protect us. Terrorism, we learned, thrives on division: turf wars between foreign and

domestic intelligence agencies hampered information sharing; the Central Intelligence Agency and Department of Defense sparred over control of the intelligence

21

budget; at the state and local level, first responders lacked compatible equipment

and a sufficiently unified incident command system.

Recognizing these flaws, Congress responded by attempting to enforce unity of effort throughout the government. It created the Directorate of National Intelligence

and the National Counterterrorism Center to centralize control of the intelligence

community and the nation’s counterterrorism efforts. Domestically, it created the

Department of Homeland Security to coordinate infrastructure protection and ensure a seamless transition between Federal and local security programs.

I commend Congress for taking these important steps, as outlined by the 9/11

Commission, toward unity in the executive branch. Now it is time for Congress to

focus on itself and on what the Commission labeled as one of its most important

recommendations: a unified intelligence oversight structure in the Congress.

The 9/11 Commission recommended a more coordinated—and therefore more robust—Congressional oversight structure because we recognized the critical role that

the legislative branch plays in the conduct of America’s national security. We acknowledged that countering the threat of terrorism necessitated a shift of authority

to the government. The intelligence capabilities behind such enhanced authorities

are more powerful and penetrating than at any time in American history. And yet,

for the government to sustain the powers necessary to win the war on terrorism,

it must maintain the public’s trust that it will wield them appropriately.

To do that, Americans must be reasonably assured that the Congress is fulfilling

its constitutionally mandated role as a check on the executive. Reforming the structure and nature of Congressional oversight remains the best way to ensure Congress

does so in the most effective manner possible.

I applaud this committee for its willingness to examine such a difficult and complex issue.

THE CASE FOR MORE AND BETTER OVERSIGHT

I would contend that the Commission’s suggestions on oversight reform stand on

their own merits apart from current events. But a growing intelligence budget, a

more dangerous world and a growing reliance on intelligence for important policy

choices have made reform all the more imperative.

A Growing Budget

Last month, the Director of National Intelligence revealed that the budget for the

United States National Intelligence Program stood at $43.5 billion dollars. Hidden

within those billions of dollars are the paychecks for a growing number of talented

personnel and the price tags for some of the most sophisticated collection technologies and most sensitive programs in American history. With wars in Iraq and

Afghanistan, a global fight against al-Qaeda and the need to maintain and improve

our traditional collection activities, the prospect of either declining or stalled growth

in the intelligence budget seems remote in the near term.

The sharp growth in the intelligence budget also strains the existing and already

taxed oversight structures in Congress. In addition to overseeing a growing intelligence budget, the Defense Appropriations Subcommittees in both the House and

Senate—the bodies responsible for appropriating the intelligence budget—have to

contend with the responsibility to oversee an even faster growing defense budget.

Put simply, we need more oversight of intelligence because there is so much more

intelligence to oversee.

The World Has Changed

Congress cannot remedy all of the problems of oversight by simply doing more of

the same in part because the intelligence community of today little resembles the

one which Congress first designed its oversight structures to monitor. In years past,

no single official enjoyed central command of the many intelligence agencies. The

intelligence budget represented the priorities of agencies more than the community

as a whole.

Much work still remains to be done to ensure the intelligence community moves

in unison. Today it is nonetheless more of a unified entity than before. The 2004

Intelligence Reform and Terrorism Prevention Act, as well as subsequent legislation,

have placed broad authority over the community’s budget and personnel into the

hands of a single official. Faced with an intelligence community more unified in asserting its own priorities, the voice of Congress remains splintered across four committees in two chambers.

The world that the intelligence community is charged with providing information

on has changed drastically, as well. The end of the cold war brought with it rogue

states and non state actors willing to challenge the world’s remaining superpower.

The most critical information no longer resides exclusively in military bases or in

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European embassies, but also in remote villages, on the internet and in the world’s

forgotten corners. It is of the utmost importance that the intelligence committees

seek to do more long term planning to better match resources with changes in the

global security environment. Unfortunately, the twin pressures of authorizing each

year’s multibillion dollar intelligence budget and attending to the numerous foreign

policy ‘‘hotspots’’ consume most of Congressional overseers’ time. This leaves precious little time to devote to the development of a strategic outlook.

The Critical Nature of Intelligence

Intelligence, as a supplement to American foreign and national security policy,

has always concerned matters of life and death. It can win wars, lose wars or prevent them altogether. In today’s increasingly uncertain world—particularly one in

which preemption features prominently in America’s defense policy—it is especially

crucial. We are not simply collecting more intelligence, but asking more of it, as

well. In 2003, our decision to use military force in Iraq hinged on it. Both today and

tomorrow, intelligence will play a crucial if not deciding role in the important decisions we must make about our policy toward Iran. Given the great numbers of lives

at stake, in a scenario of either military action or inaction against Iran, Congressional oversight to ensure the accuracy of Iranian WMD intelligence—or intelligence

on any other nation’s WMD capability for that matter—will in no small way influence the course of American history.

It is also undeniable, regardless of one’s views on the many controversial intelligence programs undertaken since 9/11, that the intelligence community is using

more aggressive tools to collect information than ever before. The assault on America and its allies from a swift and ruthless enemy has understandably created a climate of fear both inside and outside of government. The mixture of threats, fear and

enhanced executive power can prompt the intelligence community to push right up

to the line of legal and ethical acceptability. This climate can just as easily push

it far across. Congress’ increased attention is required to ensure that the latter does

not happen.

OPTIONS

In the face of such challenges, Congress has undertaken some reforms to address

past difficulties and to address the fluid national and international environment.

• The House has taken a constructive step forward in the creation of the House

Appropriations Select Intelligence Oversight Panel.

• The Senate reduced the number of spaces on the Intelligence authorization

committee from 17 to 15.

• The Senate Select Committee on Intelligence has signed a memorandum of understanding with the Senate’s Defense Appropriations Subcommittee pledging to

share information more freely and coordinate better on budget priorities.

These changes are praiseworthy. But the revolutionary changes in the world and

in government demand a solution from Congress that is more than the sum of a

few individual reforms. The 9/11 Commission recommended two options that would

reform oversight in proportion to the different world in which it must now operate.

Combine Authorization and Appropriations Powers in Each Chamber

First, Congress could grant joint authorization and appropriation authority to a

single committee in each chamber.

The necessarily secret nature of intelligence denies intelligence committees the

ability to oversee the community in ways that are routine for other committees.

Classification means only a small number of outside experts, nongovernmental organizations or members of the private sector are able to help Congress independently

evaluate the intelligence community’s management and activities. Similarly, it prevents Congress from leveraging public pressure against executive branch actions of

which it disapproves.

In the realm of intelligence, Congress is forced to check and balance the executive

with one hand tied behind its back. Devoid of the full range of tools available to

other authorizers, the intelligence committees must rely heavily on the power of the

purse to assert their will. By combining authorization and appropriation powers into

a single committee in each chamber, Congress could speak to the executive branch

on intelligence matters in a more unified voice using the language that most commands its attention.

A Joint Committee on Intelligence

A second option would be to combine the authorizing bodies from each chamber

into a single committee modeled on the Joint Committee on Atomic Energy. The

Joint Atomic Energy Committee serves as a particularly apt framework because its

consolidated jurisdiction over authorization in the House and Senate allowed ConVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
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gress to oversee a powerful new capability, with speed, secrecy and the confidence

of the executive branch.

Either new structure would require a range of other powers and changes, codified

by resolution, in order to function as intended. It should reduce the number of seats

available, both to encourage greater accountability in the legislative branch and

greater trust from the executive branch. Membership should be drawn from the Defense Appropriations Subcommittee, as well as the Judiciary, Foreign Affairs and

Armed Services Committees, in order to reflect the views of intelligence’s many constituencies. Membership should also not be constrained by term limits to allow

Members to develop the expertise necessary to oversee a dense and complex collection of agencies.

Critics note that both of the Commission’s proposed reforms represent an exception to the general practice of Congressional oversight. We feel that the exceptional

nature of intelligence warrants an exceptional approach from Congress.

CONCLUSION

Woodrow Wilson, as many of you may recall from your government classes, wrote

a classic book in 1885 called Congressional Government. He made two particularly

perceptive insights regarding oversight. First, he stated that ‘‘quite as important as

lawmaking is vigilant oversight of administration.’’ His second observation was that

the ‘‘informing function of Congress is to be preferred even to its legislative function.’’ Absent vigilant oversight, the informing function is weakened and, as Wilson

concluded, both Congress and ‘‘the country remain in embarrassing, crippling ignorance of the very affairs which it should understand and direct.’’

If Congress is to be the ‘‘First Branch’’ of government, then focusing on greater

efficiency and accountability in the intelligence community is worth doing the right

way.

I thank you for the opportunity to speak on this important matter and look forward to your questions.

Chairman ROCKEFELLER. Thank you very much, Congressman

Roemer. You spoke from the heart with a lot of erudition.

Mr. ROEMER. Thank you, sir.

Chairman ROCKEFELLER. You just memorized that Woodrow Wilson book.

Mr. ROEMER. It’s a terrific book; I think I had to for graduate

school.

Chairman ROCKEFELLER. OK. Let’s just cut to the nub of this.

Actually it was very interesting to me.

The Vice Chairman and I never look at each other’s statements

before we open meetings. And we have a very good record, I think,

I believe, on working in a bipartisan fashion. And I think it’s been

noticed in the intelligence community.

But let’s get down to some of the practical considerations, and

I’m really seeking your guidance on this. I gave a statement in

which I talked about the appropriations matter, which to be honest

was sort of fulminated over a particular not-to-be-talked-about

matter. Having said that, the concept of having the Intelligence

Committee doing both the authorizing and the appropriations is

deeply attractive to me, is deeply attractive to me. Where I run

into trouble is not on the philosophy of it or on the righteousness

of it, because we have so much more expertise than they have, as

the Vice Chairman so eloquently put—I mean so much more; it is

our obsession.

The question comes, when this was put to the Senate, this idea,

it got 23 votes, and Congressman Hamilton referred to that, you

know, when he said, ‘‘I can count.’’ And so that brings me to a conundrum. In other words, one part of me says, OK, so you get 23

votes. So you persist. That’s what life is about. That’s the way both

the Vice Chairman and I were able—incidentally, they don’t just

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game us, Congressman Roemer; we can also game them, and I’ve

gotten pretty good at that. And it’s an interesting process and not

all that difficult.

But if we push this concept and we get 23 votes—but that was

before. Now, we come back at them again. There is no particular

weakening of the Appropriations Committee that I’ve noticed, but

I may be entirely wrong; I mean, I’m not on it and I wouldn’t be

on it. I wouldn’t be on it; that’s not interesting to me. This is interesting to me. But if you push the vote again and you again get 23

votes, you get 25 votes, you get 27 votes, you get 20 votes, can it

be said that, in fact, your position has weakened, and that other

efforts to cooperate with them, if that is possible, are also weakened because the vote failed by a large margin?

Now, the Appropriations Committee is a very mysterious and

amazing presence among all of us. And everything always comes

down to that because they have the money and it’s hard to get

around. But if you get 23 votes for something, you can either come

back and try it again and try it and try it again, or you can also

look at some of the things that I suggested, what I think Vice

Chairman Bond pointed out very well that hadn’t necessarily

worked, although I think in many cases that’s simply because the

effort was not made because maybe we were doing too many hearings and also the appropriators are very skillful in the way they

time what they do.

But speak to me in plain terms about the strategy of getting the

Congress or getting the American people to understand that unless

we do both of these processes—we do the authorizing and we do

the appropriating—I am all for that, and you can put me right on

the Burr bill. Don’t do it quite yet, please.

[Laughter.]

Chairman ROCKEFELLER. But I need to know the answer to that

question, because if you fail, then you fail again, you’re weaker. If

you’re weaker, then other things that you’re trying to do to try and

supplement or to move in further directions, to go around a corner

or to come up from underneath behind them or something of that

sort, are also weakened.

And I am perplexed by such and would seek your wisdom.

Mr. HAMILTON. The new factor is the publication of the intelligence budget.

Now, in the past, the defense appropriators have always said no,

no, we can’t disclose that figure and therefore we can’t have a subcommittee to deal with just the intelligence budget. That is by the

boards now. Everybody now knows what the intelligence budget is

and you can bypass, if you would, the traditional opposition of the

defense appropriators, at least on that point. So that’s an important point.

Secondly, the mere fact that you negotiate a memorandum of

agreement and that the House, as Tim was testifying a moment

ago, has changed their way of handling the budget and all of the

discussion indicates that the Senate recognizes you’re not doing the

job or you wouldn’t be thinking about all these reforms. There must

be then a feeling in the Senate that we’re not doing as good a job

as we ought to be doing on intelligence oversight. If there isn’t that

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feeling, you wouldn’t be making reforms. But you are making reforms.

The third point would be look at what tactical moves should you

make as the Chairman of the Committee in order to garner more

votes above the 23 for this authorizing and appropriating. I don’t

know that I can be very helpful. You have to make those judgments

yourself after talking with your colleagues about it.

To me, the strong point simply is that the Senate of the United

States and the House of the United States is not doing its job. And

because you’re not doing the job, the country is not as safe as it

ought to be, because one of my premises is that robust oversight

is necessary for a stronger intelligence community. I don’t think

the intelligence community agrees with that.

They may rhetorically agree with it, but deep down I don’t think

they really agree to it. But you and I, I think, would agree to it.

And you just have to keep pushing to go as far as you can to get

necessary changes.

Now, this is not a trivial matter. You’re not dealing with the jurisdiction of the Education Committee, where it doesn’t make very

much difference, frankly, who has the control of it. You’re dealing

here with the national security of the United States, and the Senate and the House ought to have the deep down feeling that we’ve

got to get this thing right.

So that’s about all I can say. I applaud, Mr. Chairman, your efforts within the world you have to operate in, but I think we’re on

the right side of this issue in terms of the effectiveness of the Senate or the House in conducting its responsibilities and you just

have to keep pressing that issue.

And the appropriators, look, have to be persuaded here that they

haven’t been doing their job on intelligence, not because they don’t

want to. I’m sure they do want to. They’re just simply overloaded. You cannot take a $500 billion budget—that doesn’t include the

supplementals, I don’t think it does—and do an effective job of

oversight on that kind of a budget, even with the staff they have.

They just have so many questions. With all of that responsibility,

they cannot do an effective oversight of intelligence.

And if I’m right about the importance of intelligence in American

foreign policy in the future—intervention being the key question—

your responsibility is to get the very best intelligence you can possibly get. I think that’s what you have to work toward.

Chairman ROCKEFELLER. I apologize to my colleagues, but the

declassifying of the top line I don’t think was a huge matter to the

Appropriations Committee. It was not a huge matter. It was not a

big deal because it doesn’t——

Mr. HAMILTON. Well, it’s a big deal in terms of jurisdiction

because——

Chairman ROCKEFELLER. Yeah, but it doesn’t tell you anything.

Mr. HAMILTON. What’s that?

Chairman ROCKEFELLER. It doesn’t tell you anything.

Mr. HAMILTON. No, I don’t think it tells any secrets.

Chairman ROCKEFELLER. Right. And then the second matter is—

I mean, I can’t escape it. I mean, we can pass a law if we could

ever get the votes. I’d vote for it. But I don’t think you answered

my question.

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Mr. ROEMER. Mr. Chairman?

Chairman ROCKEFELLER. I don’t think you answered my question

because you said we have responsibility for the national security.

You better believe that we understand that. You better believe that

when I was one of four being briefed on certain programs and they

were appearing on television all the time saying: Oh, the Congress

has been briefed, and I’d love to discuss some of those briefings to

you and I won’t do it, but they were superficial, they were inconsequential.

And so it’s a question of us reforming ourselves and then me, as

Chairman, working with our Committee members and Vice Chairman Bond trying to get that 23 up and educating the Appropriations Committee.

But it’s also a little bit the responsibility of the executive branch

of Government, and I just don’t think you can pass that over. I just

don’t think you can say well, they’re all the same. There’s never

been anything like this—never in the way of shut-out of information—willful, gleeful—stemming from the Vice President’s office

and David Addington and other things of that sort.

And I’ve gone on too long. I’m very angry about it. I’m very angry

about it, and I think it’s a very, very big factor.

Mr. HAMILTON. You have a right to be angry about not getting

access to information. You can’t do the job unless there is trust between the executive and the legislative branch.

Chairman ROCKEFELLER. And there is not.

Mr. HAMILTON. Trust is the coin of the realm, and no matter

what kind of institutional structure you put into place, no matter

what kind of organization you make, if you don’t have that underlying trust, the system’s not going to work very well. And part of

underlying trust is whether or not they’re willing to share information with you. I’m 100 percent with you on that.

OK, they don’t share information. What do you about it? You’ve

only got one tool: ‘‘If you don’t give us this information, you’re not

going to get the money.’’ That’s it.

Mr. ROEMER. Mr. Chairman?

Chairman ROCKEFELLER. Please. And I apologize to my colleagues in genuine, genuine terms.

Mr. ROEMER. Mr. Chairman, I want to just underscore and associate myself with Mr. Hamilton’s remarks.

Answering what you said might be a strategy to go at this in the

next round after you get 23 or 24 or 25 votes on something like

this, first of all, I think that I completely share your frustration

about the example that you used about the gang of eight.

I was never one of the gang of eight, but part of the rules on the

Intelligence Committee is when you get briefed into a special access program oftentimes you’re in there with no staff, no other

Members, you cannot take notes, you cannot go out of the room and

go to Senator Feinstein or Senator Snowe or Senator Whitehouse

or anybody else and say, ‘‘I’ve got an idea for an amendment;

there’s a cost overrun that I’m concerned about.’’ You can’t do any

of that.

These are extraordinary restrictions so there is extraordinary action and robust congressional oversight that needs to be considered

for that. You can use the press in other hearings. When you find

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that oversight and that abuse on budgets on the Education Committee, we can expose that with sunlight. You cannot do that on

the Intelligence Committee.

Secondly, what Congressman Hamilton I think emphasized

was—what was that saying in the Tom Cruise movie—show me the

money. That’s absolutely the way to get their attention.

And the way for you to argue this with the appropriators is for

each and every staffer that has oversight on the defense appropriations committee, they’re responsible for about $100 billion. Who can

do that real well? Who has the time and the energy and the resources to oversee both the defense and the intelligence budgets

combined with supplementals to do that effectively for our taxpayers? And we just saw in the New York Times the cost of architectures when they go over budget to the American taxpayer.

And third, you know, just saluting Senator Burr, who has left,

I think when you have the time to begin to focus on a particular

bill and amendment and you can talk to your colleagues on the

floor rather than just a surprise amendment—here’s a 9/11 recommendation; you know, by the way, it’s to consolidate committees

and so forth and you’re taking on power—that’s very difficult.

But when you have a bill, a bipartisan bill with respected, respectable, good, thoughtful people on it and this one does—and if

you joined, Mr. Chairman, it really gives it added impetus and momentum with Mr. Bond—then you begin to work your colleagues

and you have a few weeks or months to try to show that you can

get that vote up into the 30s or 40s or maybe prevail.

So I think given the time and the resources, I think you’ve got

a vehicle now to go forward and a more effective way to do this.

Chairman ROCKEFELLER. I thank you, sir, and I apologize to my

colleagues and the Vice Chairman.

Vice Chairman BOND. Thank you, Mr. Chairman and Congressman Hamilton and Congressman Roemer. We really appreciate

your very thoughtful and very important testimony, and I was

going to ask you a couple of questions. If I have any time left, I

will do that. I certainly want to follow the 5-minute rule.

But I want to point out that there’s some things that have

changed. Number one, we’ve had experience under the new structure of the Director of National Intelligence. I didn’t vote for that,

the initial bill, because I didn’t think it gave the DNI enough

power. And we’re going to hold hearings and we’re going to work

with him because we’re finding they don’t.

Also I think we have seen that there is still a real gap between

authorization and appropriations that is costing money and inhibiting our effective oversight. I outlined in my opening statement

where we blew a lot of money, and I think we were not nearly as

effective as we could have been.

Now, I should say by way of aside, what I mentioned earlier—

and that is that I’ve worked very closely with the Chairman, with

the director of national security and we have greatly expanded in

this year the access to all members of the committee and most of

the staff to these most sensitive programs, and I am strongly committed to expanding that.

But I think you made the point that if you don’t show me the

money, you’re not going to get the bill. You’re not going to get the

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resources you need. And this is—I think your testimony, the experiences that we’ve had, the fact that we’ve had time to look at it,

I think this is a game-changing mode. And I like Congressman

Hamilton’s idea.

We don’t necessarily have to go so far as to take away from the

Appropriations Committee the appropriating authority. But what

we do need to have is a statutory responsibility that our recommendations of this Committee, implemented through our staff

experts on budget—and we’ve got excellent budget people on this

authorizing committee—should be in a position to take the initial

allocation for the national intelligence program, working with our

Committee, lay it out, and have overlapping members of this Committee and the SAC/D with additional committee members and

Chairman and Ranking Member, if appropriate, serve on a subcommittee and bring that up to the full committee.

I have no doubt that, within the committee structure of the Appropriations Committee, if you brought a well-thought-out, wellstaffed national intelligence program, it would be very rare when

the full committee—unless there was an overwhelmingly good reason—would overrule it.

But our good ideas haven’t even had a chance. I’ll take the opportunity in the limited sunlight of a closed appropriation hearing. If

we have our staff working with the full members of the SAC/D

along with authorizers, I think we can make the case. If they beat

us on one or two, they’re going to have to have a good reason.

So I thank you, and I think you’ve given us a game-changing scenario.

I just thought I’d ask the two of you if, in your experiences when

you served on the House Permanent Select Committee on Intelligence, you were shut out from recommendations from the Appropriations Committee or were not permitted—you did not have opportunities to make changes in the appropriations measures that

your committee, authorizing committee, thought were very important.

Did you have any such experiences?

Mr. HAMILTON. Well, of course we did, Senator Bond. And you

have to work in the environment and in the context and under the

rules that you have.

And when I was Chair of the Intelligence Committee, we were

frequently, continually bypassed. How did I deal with that? Well,

I dealt with it by very, very close contact, consultation, with the

Chairman of the Appropriations Committee and the Chairman of

the Defense Subcommittee. And I tried to persuade them of the

value of the Committee recommendations. In other words, I tried

to use what influence I had as an authorizer with the appropriators.

The intelligence community wasn’t going to pay any particular

attention to me, even though I was Chairman of the Committee,

because they knew they didn’t have to. And they didn’t.

How did I deal with it? Well, I went to the Chairman and the

ranking members of the appropriating committees and dealt

through them.

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I want to comment on one thing that I think you alluded to, this

question of who do you inform on the Intelligence Committee. It

used to bother me a great deal.

Bill Casey was the Director of the CIA when I was the Intelligence Chairman, and we had a very good working relationship.

He was a very able director. But he would continually come to me,

almost on a daily—not daily, but weekly basis and say, ‘‘Lee, I’ve

got some information here that I’m perfectly willing to share with

you, but I don’t want you to share it with anybody else on the Committee.’’

And I told Bill Casey, I said, ‘‘Bill, that just puts me in an awful

spot as Chairman, and I’m not comfortable with it.’’ And so I said

my general rule is going to be that unless you can share it with

members of the Committee don’t bring it to me. And that’s basically the rule we adopted.

Now, I’m not sure I was right about that. That’s kind of an agonizing situation to be in, but that’s the choice I made at the time.

Bill Casey would come back and say, ‘‘Well, you’re denying yourself information that you ought to have as Chairman.’’ But what

good is the information if I can’t do anything with it? And you’re

often in that spot if you’re in the gang of eight today or in some

other roles and you’re given information that is terribly important.

What good does it do to have the information if you can’t do anything with it?

That’s a dilemma that I think you must confront. It’s a difficult

one. That’s the way I resolved it. I’m not sure that’s the right way.

Mr. ROEMER. Senator, I thought, first of all, you made a very

good point about the DNI authorities. And the Senate bill is different from the House bill. I think the Senate bill is strengthening

and defining those authorities more clearly and giving the DNI

more power. The House bill doesn’t go quite as far as the Senate

bill does.

One of the things we said on the 9/11 Commission is when you

create this very powerful and strong executive branch entity, the

Director of National Intelligence, you best create a very strong entity to oversee it and create robust and vigorous congressional oversight. You’re going to be looking to strengthen this body over here.

You better make sure that, you know, our body—the congressional

body here can continue to oversee those authorities.

To your point about staffing and authority and the House panel,

I thought the Speaker and the Members on the House side took

some very good steps about increasing staff on the House side on

this appropriations panel. I think it went from one and a half to

five or six, and they’re trying to get to seven, eight or nine people.

They’re also spending much more time doing oversight on that

appropriations panel. The members that I talked to are very pleasantly surprised. They think they are making a significant difference.

They’re also pleased with their relationship with the Defense

Subcommittee and their work between the intelligence panel, the

subcommittee panel and the full defense appropriations. Their recommendations are generally being accepted by the defense appropriations full committee.

30

So the working relationship is good. The staff in increased. The

amount of oversight is increasing, and then there are three members of that panel that are on the authorizing committee on the

House side, and they’re increasing the power of the authorizing

committee.

So those are positive steps going forward. I think Congressman

Hamilton and I would still say that the single committee, the approach that you’re taking and Senator Bayh and Senator Burr, is

the preferred approach.

Vice Chairman BOND. Thank you very much, Mr. Chairman.

Chairman ROCKEFELLER. Thank you, Mr. Vice Chairman.

Senator Wyden?

Senator WYDEN. Thank you, Mr. Chairman.

One question for each of you that deals with concrete examples

of what I think needs to be done for effective oversight.

I noted that in your 9/11 Commission report, Chairman Hamilton, you said that the FBI had little appreciation for the role of

intelligence analysis, and the FBI’s information systems were woefully inadequate.

So, recently we had FBI senior officials up here and I said part

of effective oversight means you go back and see what’s been done

to correct what your commission found. And so I had to go round

and round with them, but finally we managed to pry out of these

senior FBI officials that only two of the 24 senior intelligence analyst positions created by the Congress had been filled and that a

very substantial portion of these analysts and agents at this point

do not have access to the Internet at their desk.

So we’ve got a problem you found. We, doing our job in the oversight area, ask about it again. I’m planning to bulldog this until

it gets corrected.

What’s your sense about the next move?

Mr. HAMILTON. The first observation would be if the principal

role of the FBI is shifted from law enforcement to counterterrorism

or domestic intelligence, the role of the analyst becomes critical, to

the point where what the analyst does should drive the whole FBI.

Now, as you’ll recognize, what I just said goes against the whole

culture of the FBI because, in the FBI, the special agent in charge

is the king. He’s the king of the hill. So you have to improve the

quality, the expertise of the analyst if they’re going to carry out

this function of counterterrorism.

I’m not persuaded that that’s happening in the FBI today. In

other words, the law enforcement culture is so deeply ingrained it’s

hard to change, and I recognize Director Mueller’s making a heroic

effort here.

Now part of that is the systems that you have identified. They

do not yet have the tools to get the information they need to be an

effective analyst. And my sense of that, Senator Wyden, is that the

FBI has just had huge management problems and they’ve not dealt

with them effectively. I think they’re dealing with them better than

they did. You know the systems—the problems they’ve had with

their IT system.

So you’re going to ‘‘bird dog’’ it. That’s terrific. That’s exactly

what needs to be done. Somebody has to focus on the role of the

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analyst in the FBI and to make sure that the analyst has the information he or she needs in order to fight the war on terror.

And my belief is that’s more of a management problem today

than anything else for the FBI.

Senator WYDEN. Let me see if I can get one other question in.

I want to ask my longtime friend, Tim Roemer.

I think, Mr. Roemer, you’re probably aware of the news reports

indicating that the Director of the CIA has now ordered an internal

investigation of the CIA inspector general. And I found this very

troubling and going right to the heart, again, of the ability to do

effective oversight.

The inspectors general, of course, are a key source of information

for the Congress, number one. Number two, when the administration fights—as Chairman Rockefeller has just noted—to keep Congress in the dark, the inspector general, in effect, is the only independent oversight force out there. In other words, there isn’t anybody else.

So I have asked Director McConnell to order General Hayden to

suspend this internal investigation. I think it is a chilling development. I’ve been very pleased by the comments I’ve seen of the Vice

Chairman on this. I know the Chairman has been concerned about

this.

What is your assessment of something like this, which I believe

is without precedent and in my view probably the inspector general

of the CIA is just about as important as any inspector general

that’s out there? I’d be interested in your reaction to this.

Mr. ROEMER. Well, Senator, great to see you, and I applaud your

good work on the Intelligence Committee.

Going back to your question on the FBI, the IG at the FBI—a

man by the name of Glenn Fine—has done some exceptionally important work in overseeing some of the cultural problems, some of

the management difficulties, some of the budget issues. And he has

firmly focused the spotlight on those problems and exposed those

problems, oftentimes to the chagrin of the FBI.

Back to your bird-dogging question, you know, how do we get

more IGs to be in positions at the CIA, at the DIA, at NSA, at the

various 15 other intelligence agencies in addition to the CIA? How

do we make sure they’re empowered with that same kind of lineitem authority and authority to go after issues and expose those

issues?

I think the Senate bill, if I’m not mistaken, in the authorization

process is looking at possibly confirming some of those people, having some more oversight over who goes into those positions. That

might be a good role to begin with.

And it all comes back, I think, Senator—and you perform this

role exceedingly well—it comes back to bird-dogging these issues

and not letting up on them. Lee will be one of the first to tell you

on the 9/11 Commission we had very, very long, heated debates

about what to do with the FBI. Do we let them go along the reform

path that they’ve gone on with Mr. Mueller, who’s a very, very capable and decent guy? Do we carve out a new national security

role, or do we stand up a brand new MI5 agency? And many of us

decided that standing up yet another new agency in addition to

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DNI and Department of Homeland Security was probably not the

right way to go at this time.

So we said it was up to Congress to oversee this carve-out within

FBI, that they and the President had to make sure that these reforms took place, and if they didn’t oversee them with strong oversight, these information management systems, this e-mail system

difficulty, the problems with the analysts will probably continue.

So I would continue to have exposure to these problems. I would

build support like the Burr-Bond-Feingold-Bayh bill. And I would

continue to try to get the changes and use money to do it at the

end of the day—shift money from one account to the other on the

appropriations subcommittee if you can’t find any other way to do

it.

Mr. HAMILTON. Senator Wyden, every department head in government is nervous about the inspector general. And if a department head could investigate the inspector general, you will dramatically weaken the inspector general.

Senator WYDEN. Lee Hamilton knocks it out of the park once

more. That’s why I’m asking Director McConnell—and I see the

Vice Chairman has come into the room as well. I was very appreciative of the Vice Chairman’s comments when we learned that

General Hayden was investigating the inspector general, Mr.

Helgerson.

And the Vice Chairman’s comments on this very much echo mine

and yours, so there’s bipartisan interest in it.

I thank you both for your public service.

Thank you, Mr. Chairman.

Chairman ROCKEFELLER. Thank you very much, Senator Wyden.

Senator Feinstein, to be followed by Senator Whitehouse, to be

followed by Senator Snowe, unless Senator Burr comes back.

Senator FEINSTEIN. Thank you very much, Mr. Chairman.

And thank you, gentlemen, for coming back and back and back

and giving us the benefit of your expertise.

I want to just share with you what my experience and views

are—that we are engaged in a system that by its very nature resists oversight. The administration feels they own the intelligence.

We are the interlopers there. They would like to tell us as little as

they possibly can. We are hamstrung, limited in staff, can’t take

notes home, can’t take classified material home, can’t really do

much homework at all in the traditional sense.

We spend two afternoons a week—the 60 hearings you’ve held

about—hot spot briefings, not oversight.

How do we do oversight? Well, let me suggest a way. One of

them is, I believe we ought to have subcommittees. We ought to

have a subcommittee on human intelligence which involves the

CIA, the DIA, whatever it may be; on satellite intelligence; on the

budget, and on special issues, whether those special issues are the

culture of the FBI, whether it’s rendition, whether it’s covert action. And those subcommittees can hold their own meetings, be

staffed separately, go out and take a look.

We’ve got sixteen intelligence agencies, tens of billions of dollars.

It is very difficult to do the kind of oversight on the premises—noticing, asking, investigating, writing—when you spend 2 days a

week on hot spot briefings or various reports the Committee may

33

be doing, or specific legislation the Committee might be considering.

So I think more than anything else, if there were subcommittees

that were literally empowered—now, I sit on all the crossover committees and have for a long time—Judiciary, Defense and this

Committee. The defense intelligence budget, the black budget, is a

very short budget. It’s very difficult to zero in there.

That, in my view, supplements the need to have the Budget

Committee, which isn’t just during the time the budget is being put

together but is year around, that is talking with the DNI. The DNI

is supposed to be able to do more than move the deck chairs on the

Titanic. He can’t do that under his present authority. Does he need

the authority expanded? How should it be expanded? How should

this budget best be controlled and contained?

You know, the FIA program left many of us with a lot of scar

tissue after many, many years of trying to do what had to be done.

And this Committee took a position; the Defense Subcommittee had

a different position. And I think it was Senator Bond that just

went into this, and he’s right: It’s very hard.

Now, if you had a group that was just on FIA as part of the satellite program day in, day out, year in, year out, that was intimately familiar with it, had all the notes, all the staff work, all the

investigation done, knew where the points of failure were, we could

have gotten to it a long time ago.

So my view is the tension between the administration and the

Congress—one owns; the other controls the purse strings.

Lee, as you’ve said, theoretically we control the purse strings.

When push comes to shove, that budget’s going to get passed.

So the work has to be done a long time before it gets passed. We

have to have the time to share with all of our colleagues what we

have found out that’s between the budget lines. And we’re not set

up now to do that.

So I have come to the conclusion, rightly or wrongly, that if I

ever were in a position to make those changes, those are the

changes I would make. And I would see that those committees reported regularly to the whole, that there be hard questions asked,

that people be limited—this is another thing that happens. When

people come and testify before you, they go on and on and on. And

we’re all under a time burden so, you know, if it’s quick and if you

can have that discussion around a table and go back and forth, you

get something out of it. Otherwise, they are very practiced on how

to move down a very wordy path, and it’s difficult to break through

that.

That’s all I wanted to say.

If you have any comment, I’d love to hear it.

Mr. HAMILTON. I think it’s probably not our role to try to tell you

how best to organize the Committee to do your work. What you say

about subcommittees and their ability to specialize certainly makes

a lot of sense.

I think the toughest job that you have in exercising oversight is

to establish what your priorities are. I said in my testimony that

the intelligence field is vast. And the intelligence community will

brief you to death. They will come up with more reasons to brief

34

you than you can imagine. They will brief you and brief you and

brief you.

And there may be appropriate briefings, but if you spend your

whole time listening to briefings, you’re probably not doing any

thinking about what the priorities should be.

I think you have to sit down and say OK, we can’t cover the

whole universe. But we’ve got to identify five, six, 10 problems that

we think are most important, and then you set the agenda. Don’t

let the intelligence community set your agenda. You set the agenda, and you tell them you come up here and tell us about this and

not about that.

Now, when you do that there are some risks involved because

you may not select the right priorities. But I don’t know any other

way you can do it. You have to drive the agenda and not let the

intelligence community drive your agenda.

Mr. ROEMER. Senator?

Senator FEINSTEIN. Yes.

Mr. ROEMER. I agree with what Congressman Hamilton has outlined and associate myself with your frustrations as a member of

the committee.

Oftentimes I think I felt sometimes on the Committee that you’re

drowning in budget hearings and then you’re mesmerized by hot

spot briefings. And it’s one or the other. The Director will come up

and tell you about what the latest threat is in North Africa or what

the latest threat might be in the Middle East or some of the challenges going on in Southeast Asia.

I think one of the areas to really focus on is to try to look—as

Lee has said, establish priorities. I think one of those priorities

should be to try to look more strategically at where the intelligence

budget and agencies need to be rather than tactically going day to

day. I think we get consumed on the tactics and not looking at the

long-term strategy.

We tried to do this oftentimes in bipartisan ways on the Committee. We tried to establish a language reserve corps to build the

membership of Arabic and Urdu and foreign speakers in the intelligence community, and oftentimes we put money into that budget

on the authorizing side, and lo and behold, it would never make it

into the appropriations process.

So I think, you know, looking strategically, establishing a priority to make a difference on rebuilding human intelligence and

working in a bipartisan, bicameral way to see it through.

Senator FEINSTEIN. Thank you.

Thank you, Mr. Chairman.

Mr. HAMILTON. Senator Feinstein, I’m sorry to take a little additional time, but I think at the end of the day you have to ask yourself how are we going to really be judged on this Committee? And

how you’re going to be judged in my view is how you perform with

regard to Iran, Iraq, terrorism, nuclear proliferation, North Korea.

That’s what’s important. That’s where the national security interest lies at the moment.

What kind of a job is the intelligence community—I don’t know

that I’ve listed them all, there may be some others—doing with regard to those big national security questions? That’s what’s really

important to the American people.

35

Senator FEINSTEIN. That’s a good point.

Chairman ROCKEFELLER. Before going to Senator Whitehouse, I

just want to point out to the distinguished Chairman of the 9/11

Commission that the intelligence community never comes up here

to brief us on what they want to brief us about. They come up and

they brief us only on what we want to be briefed about, and there

is no exception to that.

Mr. HAMILTON. I applaud that.

Chairman ROCKEFELLER. The Senator from Rhode Island, Senator Whitehouse.

Senator WHITEHOUSE. Thank you, Chairman.

Thank you, gentlemen, for coming yet again before us. I appreciate it.

I’d like to talk with you for a minute about classification. We

deal with classified information all the time. You are very familiar

with dealing with classified information. It puts us at a very considerable institutional disadvantage.

The executive branch classifies and to a large extent declassifies

at will. In fact, many executive officials who we deal with just say

something publicly and that’s not a leak, that’s not a security

breach, that’s a declassification. If we were to do it, there’d be FBI

agents crawling around and looking at us and seeing if we’d committed treason. That’s a very considerable disadvantage to be at.

The classification function—or the classification system—I think

impedes oversight.

Congressman Roemer, you mentioned a quote from Woodrow Wilson. I don’t have the words in mind exactly, but I think you said

the informing function is to be preferred over even the lawmaking

function? Well, if something’s classified, I may know it but I can’t

inform, so that function is totally disabled to the extent that that

piece remains classified.

And it also takes away a piece that exists in our regular oversight function which is that one Senator can usually make a difference by just going public with something, by just raising hell

with something, by just being a thorn in somebody’s side. Because

you can’t go public, it takes a majority of this Committee to get any

action going, and I don’t think that the intelligence community is

unaware of that fact.

I recognize that there is a significant security value to classifying

national security information. On the other hand, there’s a balance

between that and the accountability value that oversight creates.

And the judge in that balance is exclusively at this stage, it seems

to me to be, the executive branch, which makes it, again, very, very

one-sided.

And my experience is that things are wildly over-classified. I

have read things on the front page of the New York Times, come

into this Committee and read them in deeply classified documents.

You know, thanks a bunch. That’s really not very helpful. I already

knew that.

We have just been shown various legal opinions, and there are

elements of them that I would like to talk about and I’ve asked the

administration to allow me to talk about them. They are legal theories. You could take that legal theory and you could put it in any

law journal in the country and it would have absolutely no meanVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
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ing to anybody. It’s totally without classification merit, and yet it

is classified to the full depth of the underlying document out of

which it comes.

So once again, we are disabled. And I do not think that the administration is unaware of this imbalance and is unaware of the

authority that this imbalance gives us with respect to this whole

issue of classification.

What structural recommendations might you have to enable us

to fight back through this? Because the day-to-day tide of just, you

know, they classify, they classify, now you start—it’s weeks trying

to fight your way back to get three little phrases unclassified. It’s

a real uphill struggle, and I think it impedes—I feel it as a huge

imposition on my ability to be an effective Senator and effective

member of this Committee.

Mr. HAMILTON. Well, you’ve learned a lot more about the classification system early on than I did. It took me a long time to figure

out how you get jacked around because of the classification system.

He who controls information has the power in government. And

the executive branch knows they control the classification process,

that the Congress can’t do very much about it, and it is an enormous tool in their hands.

I think we classify way too much information, and we declassify

way too little. It’s a serious problem. We are stacking up warehouses full of classified information day after day after day, and it’s

hugely expensive to classify all that information.

Now, one of the problems is the incentives. Certain officers in the

U.S. Government are given the authority to declassify—Secretary

of State. Well, the Secretary of State doesn’t sit around and say

this document is secret and this document is not secret. She delegates that responsibility. She delegates it way down the line, and

the incentives work so that it is safe to classify when in doubt. And

so they sit there and they stamp everything classified. And we just

keep piling it up.

Senator WHITEHOUSE. If I might add, Congressman Hamilton,

unless and until it becomes useful——

Mr. HAMILTON. To them.

Senator WHITEHOUSE.—to the administration’s rhetoric——

Mr. HAMILTON. That’s correct.

Senator WHITEHOUSE.—to declassify their side of the argument,

while leaving your side of the argument classified.

Mr. HAMILTON. That’s right. And you’re put at a huge disadvantage because of that.

I don’t know—there is a way. I think I remember that there is

a way for the Congress to declassify information, but as I recall,

it has never been used. It takes a——

Senator WHITEHOUSE. Act of Congress?

Mr. HAMILTON.—very complex process. It takes a vote, I think,

in both houses and it just has never been used.

I think the whole area of classification needs examination and a

new framework has to be developed to deal with it or you are going

to be continually at this disadvantage. I don’t have any doubt in

my mind the executive branch—not just this administration, but

any administration—uses it to their advantage time and time

37

again, puts you at a disadvantage, and there’s not very much you

can do about it.

Mr. ROEMER. Senator, I just want to say that on the 9/11 Commission, we made two very, very strong recommendations to your

point.

One was that there is a gross over-classification of information

and second, there’s an underutilization of open sources, and we recommended addressing both, that working with Congress and working with other entities in the executive branch and IGs that there

be a way of declassifying this information and doing it in an orderly fashion, in a regular fashion, viewing that information and

getting it out.

And then the second part was that there’s a lot of open-source

information that we get access to that we don’t utilize appropriately enough and quickly enough in the intelligence community.

Senator WHITEHOUSE. Thank you, Mr. Chairman.

Chairman ROCKEFELLER. Thank you, Senator Whitehouse.

Senator Snowe?

Senator SNOWE. Thank you, Mr. Chairman.

I want to welcome both of you here today and appreciate your

commitment and dedication and perseverance and persistence in

advocating your views and following up as you have so consistently

before this Committee and others since your service—yeoman service—on the 9/11 Commission. So we really appreciate that.

I know you identify with all of our frustrations in trying to

change the institutions. You know, it faces many challenges and

impediments, without question. And frankly, it was disappointing

that we only received 23 votes on the question of consolidating the

intelligence in both the authorizing and Appropriations Committee.

I mean, it’s just—I was one of the 23 because I believe that both

the House and Senate are underestimating the challenges that we

face.

And also our ability to effect change within the intelligence community is through, as you have indicated time and again, through

the appropriations process. I mean, we saw that underscored in the

hearing that was held here recently regarding FBI reform which is,

you know, proceeding at a snail’s pace. They’re resisting efforts to

elevate intelligence analysts to the level of special agents, as we’ve

learned and what Senator Wyden referred to as well in the number

of agents.

So we still have some critical challenges and we see, based on

the NIE that was released in July, that we have a persistent evolving terrorist threat facing the homeland. Al-Qa’ida has regenerated

key elements of attacking our homeland and their capabilities. So

we’re facing some enormous challenges.

I know, Congressman Hamilton, you mentioned in your op-ed

piece with co-chair Tom Kean in the Washington Post several

months ago that we still lack a sense of urgency in the face of

grave danger, and you also indicated that we still lack focus. Could

you describe what you mean by a lack of sense of urgency?

Mr. HAMILTON. I think a lot of things have been done in the government with regard to protecting the homeland that are helpful

and good.

38

I believe and I know Tom Kean believes that we’re safer today

than we were at 9/11. The amount of money that we’ve spent, the

procedures we’ve put in place, there may be a question of cost effectiveness in some of those, but overall a lot of good things have been

done.

All of us are aware of agencies and departments that are expending very large efforts and resources to protect the American people.

Having said all of that, I think both Tom Kean and I felt that

there is a lack of urgency, and by that I think we meant largely,

as you visit these various offices and agencies and you hear what

they’re doing and how much they’re doing, you kind of get a sense

of business as usual. And we believed, as we stated, that the threat

of terrorism is genuine, is real, that they’re plotting out there to

get us and there’s been no diminishment in that intent. We have

questions, of course, about their capabilities.

You and I would understand, I mean, Government is dealing

with so many problems that kind of press upon you and distract

you, the inbox is always full for everybody. Tom and I are trying

to say look, this threat is genuine, it’s real, and it is urgent and

it is not a matter for business as usual. I think that’s what our attitude was.

Mr. ROEMER. Senator, I’d just add on to that by saying that, as

you noted in your comments, al-Qa’ida is changing every day.

They’re recruiting on the Internet; they’re going into the remotest

places on the Earth to gain a bigger and quicker following. They

can strike with airplanes or other weapons and cause horrific damage to our country, either here or abroad. They’re entrepreneurial.

They are adapting the forces of globalization to their cause.

And that sense of urgency does not seem to be reflected in some

of the activities that we’re engaged in to take on that very rapidly

changing threat.

Senator SNOWE. No, I agree.

I think it’s like we’ve sort of resorted and reverted back to the

times where you just sort of protect your jurisdiction and you consolidate all the bureaucratic resistance. And we’re facing it time

and again.

You know, one of my recommendations was to create a Department of Homeland Security inspector general, you know, department-wide. And of course that’s met with great resistance by the

department and the administration. Again, we’re just facing the

same bureaucratic hurdles and inertia that overtakes our ability to

effect change. And it’s what you’ve indicated.

And what’s even more disturbing is that your commission made

this one of the top recommendations. It was one of the most significant recommendations among all the recommendations, and we can

only manage to get 23 votes for it in the U.S. Senate. It really is

disturbing because I think the more disparate these functions become—as you say, dysfunctional and diffused—the less likely that

we have the capacity to oversee those areas in which it’s so important, because we can’t leverage that change because of the appropriations process.

And that is the bottom line. That is the reality. And unfortunately we’re going to have to find ways in which to overcome that

because I think that still has to be the driving force and the ambiVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
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tion, is to change the process so that we can fuse these two responsibilities.

In 2005 you gave, on this recommendation you gave a grade of

D on congressional oversight. Would you still agree that it’s a D?

Mr. HAMILTON. What’s that?

Senator SNOWE. In 2005, Congress was given a D.

Mr. ROEMER. We gave them a D in 2005.

Mr. HAMILTON. To whom?

Mr. ROEMER. To the Congress.

Senator SNOWE. On intelligence oversight.

Mr. ROEMER. You know, as we noted, Senator, I think that a D

at that time reflected very little progress and no positive steps forward.

I think, not speaking for Congressman Hamilton but as I acknowledged in my opening statement, there have been some steps

forward. The House has created this intelligence panel. There have

been steps forward on the Senate side with an investigative and

audit subcommittee.

But I still think that it’s—in my opinion, it would still be a Dplus. It’s something that is not going hard enough. And when Congress is pointing its finger everywhere to the executive branch—the

FBI’s not doing enough, the CIA needs to rebuild human intelligence, the Department of Homeland Security is not working well

enough—and they fail to do the one requirement in their book,

that’s not a good reflection on Congress.

Mr. HAMILTON. I agree.

Senator SNOWE. Says it all. Thank you.

Thank you both for your service. Thank you.

Mr. HAMILTON. Thank you.

Chairman ROCKEFELLER. Thank you, Senator Snowe.

Senator Feingold?

Senator FEINGOLD. Thank you, Mr. Chairman, for holding the

hearing.

It really is a pleasure to hear from these two very distinguished

witnesses on really the most important issue of our time, so I appreciate everything you’ve done.

As the 9/11 Commission concluded and as our witnesses have reiterated today, intelligence reform, which is so critical to protecting

our country, depends on effective congressional oversight. I supported the commission’s recommendation to give appropriations authority over the intelligence budget to the Intelligence Committees

when it was first proposed in 2004, and I continue to support it

today.

In recent years, however, it has become overwhelmingly clear

that the greatest impediment to effective congressional oversight of

intelligence is this administration’s consistent and really almost

unbending contempt for Congress’s constitutional role in this area.

A full account of the administration’s actions begins, of course,

with its secret violations of the laws passed by Congress, specifically the Foreign Intelligence Surveillance Act, and despite the outcry prompted by its illegal, warrantless wiretapping program, the

administration still won’t commit to abide by the laws of this country, issuing so-called signing statements as statutes become law

40

and refusing to rule out future assertions of the President’s supposed authority to disregard FISA.

Recently the administration has even stated in writing that it intends to simply ignore Congress’s budgetary oversight of a classified intelligence program. The administration has also repeatedly

refused to brief this Committee on important intelligence matters

as is required by law. The country is by now familiar with the administration’s failure to inform the Committee about the

warrantless wiretapping program for 5 years before the program

was revealed and acknowledged and then for months thereafter.

But this problem continues. We know that the administration

continues to abuse the so-called gang of eight provision by hiding

important intelligence matters from the full Committee. What we

don’t know is the full extent of this abuse.

The list of reports and other information sought by the Committee and denied by the administration is extensive and much of

it classified. The administration’s efforts to deny Congress information even extends to the third branch of government, the FISA

court, whose interpretations of the law Congress needs to conduct

oversight and to consider new legislation. Imagine if the administration sought to keep from Congress Supreme Court decisions related to the legality and constitutionality of the laws passed by

Congress and of the Government’s actions. In the area of intelligence surveillance, it is the FISA court that makes these decisions, and the administration’s attempts to hide them from Congress, even as it demands that new FISA legislation be passed, is

unacceptable.

The public record of the administration’s contempt for congressional oversight of intelligence is lengthy. The administration’s

threat to veto the current intelligence authorization bill is based almost completely on Congress’s efforts to improve oversight. The administration opposes efforts to obtain intelligence-related documents generally and with regard to detention and interrogation. It

opposes congressional efforts to learn about how the administration

is interpreting the Detainee Treatment Act and it opposes a Senate

confirmation of important leadership positions in the intelligence

community.

And this list is only a partial indication of this administration’s

contempt for Congress’s constitutional responsibility to conduct

oversight of intelligence. The administration’s actions not only violate our constitutional principles and our system of checks and balances, they have undermined our national security.

As our distinguished witnesses have stated clearly and consistently, congressional oversight is critical if we’re to have an effective

intelligence community that defends our national interests as well

as our laws, our Constitution, and our principles as a Nation.

Now you both said, I understand, that Congress should use the

power of the purse to compel information from the administration.

What would you advise Congress to do if the administration still

refuses to provide the information and simply ignores Congress’s

efforts to exert its power of the purse?

Mr. HAMILTON. I’d withhold the money.

Senator FEINGOLD. Mr. Roemer?

Mr. ROEMER. I agree with Mr. Hamilton, Senator.

41

I think, as you stated, the executive branch is the greatest impediment to Congress’s role in oversight. I would say that the battle is not so much with waterboarding per se or wiretapping per

se or Abu Ghurayb per se or secret prisons per se or American

rights per se. It is for Congress to strengthen its ability to discover

these things and debate these things where appropriate because of

their difficulty overseeing them and getting access to these programs with the executive branch.

It’s incumbent upon Congress to exert its power and authority

here. There are actions you can take like creating this Committee

with dual appropriations and authorizing capabilities that will then

have the power to say to the executive branch, the money’s not

coming with your request. We’re not having you run around the authorizes. We have the information. We know what we need, and we

have the power of the purse to withhold the money. And it’s done

within one committee.

Senator FEINGOLD. Mr. Chairman, I think that’s an excellent

note to conclude on. Thank you.

Chairman ROCKEFELLER. Thank you very much, Senator Feingold.

And I want to thank both of you very much. It’s been a long

afternoon for you, but I think a very instructive one for us because,

as you did in your reports, you’ve thrown us a challenge. The challenges aren’t easy to solve, and yet you’re very firm, and that in

and of itself is a part of helping us to do a better job because we

respect you and your commission so much.

Mr. ROEMER. Thank you, Mr. Chairman.

Chairman ROCKEFELLER. Now we’ve also totally alienated the

two gentlemen who are going to follow you in the second panel, but

we’re going to get right to them.

So we thank you.

Mr. ROEMER. Thank you.

Vice Chairman BOND. Thank you very much, gentlemen. It’s

been very informative and very helpful.

Chairman ROCKEFELLER. The Chairman of the Intelligence Committee apologizes for referring to the next panel as two men. In

fact, Professor Amy Zegart from UCLA and Mr. James Saturno

from the Congressional Research Service, I personally apologize to

you for not—I don’t ultimately apologize for taking so long on the

first panel because it was very basic stuff and you understood that.

But I hate putting you at a situation where not only do you not

have the full committee before you, but you have the best part of

it before you, and we want very much to hear what you say, so you

proceed.

Dr. Zegart, why don’t we start with you?

STATEMENT OF AMY B. ZEGART, ASSOCIATE PROFESSOR,

DEPARTMENT OF PUBLIC POLICY, SCHOOL OF PUBLIC

AFFAIRS, UNIVERSITY OF CALIFORNIA, LOS ANGELES

Dr. ZEGART. Thank you, Mr. Chairman, Mr. Vice Chairman.

Chairman ROCKEFELLER. And pull that right up real close.

Dr. ZEGART. There we go. I’m a Z, so I’m used to waiting for a

while to go, so not a problem for me.

42

Mr. Chairman, Mr. Vice Chairman, distinguished Committee, it’s

an honor to be here today to talk about this very important issue

of congressional oversight of U.S. intelligence. Let me just thank

you two in particular and the rest of the Committee not only for

holding this hearing but for holding it in open session. I fully appreciate that security considerations often require closed sessions,

but there is no more powerful force for change than an engaged

American public.

As you know, I’m an associate professor at UCLA. For more than

a decade, I’ve been researching organizational deficiencies in U.S.

intelligence agencies. I’ve also been a consumer of intelligence on

the National Security Council staff and I worked in the private sector, which has its own adaptation challenges, as a strategic consultant at McKinsey & Company.

Mr. Chairman, when I last appeared before this Committee it

was August of 2004. The 9/11 Commission had just finished its report and intelligence reform was in the air. It’s now 3 years later,

6 years after the worst terrorist attacks in our Nation’s history,

and intelligence reform is progressing in a halting and disappointing fashion.

Congressional oversight, as we’ve heard this afternoon, is vital to

American national security, but it is broken and it has been broken

for years. Unless substantial changes are made to the current system, intelligence reforms will fail.

My remarks this afternoon will cover briefly—which is hard for

a professor but I will try to be brief—three points: why oversight

matters, enduring problems and what we can do about them.

The bottom line is that these organizational weaknesses in oversight and possible remedies to address them have been well known

for quite a long time, and so the challenge we face now lies not so

much in inventing new ideas but in implementing the ones that we

already know.

Mr. Chairman, as this Committee has discussed this afternoon,

U.S. intelligence agencies have never been more important. The

spread of weapons of mass destruction, the information revolution,

the rise of transnational terrorist groups have created an unprecedented asymmetric threat environment. For the first time in history, great power does not bring security. It is the weak who

threaten the strong, and it is intelligence, not sheer military might,

which provides our first and last line of defense in a way that it

has never been before.

Oversight is crucial to our intelligence system because it guards

against two dangers. The first is that our intelligence agencies will

become too powerful, violating the laws and liberties and values

that we Americans hold dear. The second danger is that intelligence agencies will become too weak, too weak to protect American lives and American vital interests.

Good oversight ensures that our agencies get the resources they

need, provides strategic guidance to deploy those resources more effectively, and proactively evaluates what’s working and what isn’t

before disaster strikes so that our intelligence agencies can adjust

and improve. And I want to applaud this Committee for the FBI

oversight hearings that occurred just a couple weeks ago. That is

43

a prime example, an extraordinary example, of exactly that kind of

proactive oversight function.

Today, U.S. intelligence agencies are confronting substantial

challenges in both areas, but the executive branch cannot and must

not and should not go it alone. Ensuring that our agencies are powerful enough but not too powerful requires vigorous and bipartisan

oversight by Congress.

Let me turn briefly to enduring problems.

Congressional oversight of intelligence has always been problematic. For the first 30 years of the CIA’s existence, oversight consisted of a few senior legislators not wanting to ask questions because they didn’t want to hear the answers. Between 1947 and

1974, there were more than 150 legislative proposals to reform this

system and all of them failed, most of them by overwhelming votes.

It took revelations that intelligence agencies were assassinating

foreign leaders and spying on Americans before Congress established the select committees. These Committees, as you know, have

been a substantial improvement, but deficiencies have persisted.

My research found that between 1991 and 2001, there were 12

major unclassified studies that examined U.S. intelligence and

counterterrorism capabilities. They issued more than 500 recommendations for reform. Most of these reports found congressional oversight to be a big part of the problem. Recommendations—and this is before 9/11 in the decade preceding 9/11—recommendations included: streamlining the splintered and overlapping committee jurisdictions in intelligence and homeland security;

combining authorizing and appropriations powers in a range of national security committees, including intelligence; and eliminating

term limits on the Intelligence Committees to enhance member expertise.

None of these recommendations was adopted before 9/11. In fact,

the only organization in our intelligence system that failed to implement a single reform from all these reports wasn’t the CIA,

wasn’t the National Security Agency or the FBI; it was the U.S.

Congress.

Despite the 9/11 Commission’s warning that congressional oversight was dysfunctional and vital, two key problems remain—too

much fragmentation and not enough expertise. As you know well,

oversight is fragmented and uncoordinated against a number of

committees. I know Congressman Hamilton and Governor Kean

wrote in the Washington Post that the Department of Homeland

Security still reports to 86 different subcommittees and committees. A system that is splintered is naturally prone to error and inefficiency. Individual programs, even crucial ones, can and do fall

between the cracks because oversight can always be seen as somebody else’s job.

This is exactly what I found in the late 1990s when no congressional committee undertook a serious examination of the FBI’s

struggling counterterrorism reform efforts. Why did this happen?

In large part, because the Intelligence Committee thought it was

a Judiciary Committee issue, and the Judiciary Committee thought

it belonged in Intelligence. Fragmented jurisdictions also make it

unlikely that any one panel will have an integrated view of an

agency’s activities or the trade-offs involved. Multiple committees

44

are also more likely to give contradictory guidance and overload

managers with too many uncoordinated hearings and reporting requirements. And of course, as we’ve heard this afternoon, savvy executive branch officials can and do play the committees off one another.

This split between the intelligence authorization and appropriations committees has allowed executive branch agency officials to

game the system. The press has public reported about how this

Committee in recent years has repeatedly tried to kill expensive

and, in the view of the Committee, unnecessary and ineffective satellite programs only to have other committees reverse those decisions after pressure from the Pentagon and other allies. One intelligence official called this kind of bureaucratic maneuvering the

two-parent approach: If mom says no, go to dad. Separating authorizations from appropriations is a long-standing and revered congressional practice, but this division in intelligence has become increasingly unworkable.

Let me talk briefly about expertise.

As you know, intelligence activities are highly complex and technical and shrouded in secrecy more than any other activity of our

Government. This is unique among policy issues. In intelligence,

there is no natural public constituency, no set of interest groups,

no public interest groups that have a capability of gathering independent information, of alerting the public or holding officials’ feet

to the fire. These factors make the intelligence oversight learning

curve especially high, members’ oversight experience especially valuable, and staff capabilities essential. Unless overseers know what

to ask, they will not get the information they need to make intelligence agencies effective.

The Senate took the very important step in the 108th Congress

of ending term limits for this Committee, but experience gaps between this Committee and other committees remain striking in

terms of continuous service to the Committee.

And notably, the House Intelligence Committee still has term

limits for its members, even though the 9/11 Commission and a

number of other blue ribbon studies during the 1990s recommended abolishing them.

Staff capabilities are also critical and in need of augmentation.

The Government Accountability Office currently lacks full authority to investigate all components of the intelligence community,

particularly the CIA. Some have suggested bolstering oversight

committee staff capabilities by creating a new congressional support agency with nonpartisan cleared staff that could provide additional classified and unclassified analyses to Congress. And the inspector general system offers an underutilized mechanism to provide information. The Senate’s 2008 authorization bill includes important improvements to the inspector general system along these

lines, and it is essential that these improvements be enacted.

What can we do? All reforms, as we’ve discussed today, necessarily involve tradeoffs, but the history of intelligence reform I

believe suggests two guiding principles for reform. The first, as I

mentioned at the beginning, is to focus on implementation rather

than developing new ideas. For 60 years, turf and politics have

stacked the deck against robust intelligence oversight. The 9/11

45

Commission noted that few things are more difficult than rearranging congressional committee jurisdictions. And, as this Committee knows well, overseeing intelligence is a hard and largely

thankless task because it takes precious time away from issues

that constituents back home care about more. Very few voters care

about the nitty gritty aspects of the FBI’s analyst program, as this

Committee examined a couple weeks ago. No intelligence reform

ever won a landslide election. But turf and politics must be overcome.

Mr. Chairman, I was struck that the Implementing the 9/11

Commission Recommendations Act, passed last summer, tackled

just about every aspect of the 9/11 Commission report except congressional oversight reform. Congress can do better. American lives

depend on it. This hearing is a crucial step forward, but continued

success requires continued leadership and a relentless focus on implementation.

The second guiding principle is to be careful to pick the lowhanging fruit. Dramatic improvements I believe do require dramatic changes. Nevertheless, some important improvements can be

accomplished without new legislation, without turf wars, without

dramatic rule modifications. This low-hanging fruit involves some

of the steps that this Committee has already taken to make the

most of the existing oversight activities that are already being conducted, and they include: holding regular staff meetings across the

relevant committees, both within the Senate and across the Senate

and the House to coordinate hearings and other oversight activities; instituting periodic leadership meetings along the same lines;

and integrating technology systems so that various intelligence

oversight staff with the appropriate clearances can share information more easily.

Mr. Chairman, I thank you for this great honor to be here today

and look forward to answering your questions.

[The prepared statement of Dr. Zegart follows:]

STATEMENT OF DR. AMY B. ZEGART, ASSOCIATE PROFESSOR,

DEPARTMENT OF PUBLIC POLICY, SCHOOL OF PUBLIC AFFAIRS,

UNIVERSITY OF CALIFORNIA, LOS ANGELES

Mr. Chairman, Mr. Vice Chairman, distinguished Members of the Select Committee on Intelligence, it is an honor to appear before you today to discuss congressional oversight of U.S. intelligence agencies.

My name is Amy Zegart. I am an Associate Professor in the School of Public Affairs at the University of California, Los Angeles (UCLA).

For more than a decade, I have been researching and writing about organizational

problems in U.S. intelligence agencies. My newest book, Spying Blind (Princeton

University Press, 2007), examines why the CIA and FBI failed to adapt to the rise

of terrorism after the cold war. Before my academic career, I served on the National

Security Council staff and advised Fortune 500 companies about organizational effectiveness as a McKinsey & Company management consultant.

When I last appeared before this committee in August of 2004, the 9/11 Commission had just released its report and intelligence reform was in the air. Three years

later, and 6 years after the worst terrorist attacks in American history, progress has

been halting and disappointing.

Congressional oversight of intelligence is vital to American national security. And

it has been broken for years. Without substantial changes to the current system,

intelligence reforms will fail.

Mr. Chairman, my remarks cover three main points:

• Why oversight matters

• Enduring problems

46

• What can be done

The bottom line: Oversight weaknesses and possible remedies have been known

for a long time. The critical challenge now is not so much inventing new ideas, but

implementing the ones we already have.

WHY OVERSIGHT MATTERS

U.S. Intelligence agencies have never been more important. The spread of weapons of mass destruction, the information revolution, and the rise of transnational

terrorist networks have created an unprecedented asymmetric threat environment.

For the first time in history, great power does not bring security; it is the weak that

threaten the strong.

As CIA Director Michael Hayden recently noted, during the cold war the Soviet

Union was easy to find but its most deadly forces—tanks, ICBMs, and troops—were

hard to kill. Today the situation is reversed: our principal terrorist enemies are easy

to kill but hard to find.

Successful defense requires penetrating and stopping the adversary before he ever

gets to his target battlefield, not defeating him with overwhelming force once the

battle begins. More than ever before, intelligence has become our nation’s first and

last line of defense.

Robust congressional oversight is crucial to an effective intelligence system because it guards against two dangers. The first is that intelligence agencies will become too powerful, violating the liberties, laws, and values that Americans hold

dear. The second danger is that intelligence agencies will become too weak to keep

Americans safe. Good congressional oversight ensures that intelligence agencies get

the resources they need, provides strategic guidance to deploy those resources effectively, and proactively evaluates what works and what doesn’t so that agencies can

improve and adjust their collection and analysis before disaster strikes.

Today, U.S. intelligence agencies are confronting substantial challenges in both

areas. Many both inside and outside the Intelligence Community are gravely concerned that intelligence agencies are overreaching—engaging in warrant-less surveillance programs and interrogation methods that are legally questionable and

morally troubling. Many also worry that intelligence agencies are under-performing,

that they are not adapting fast enough to the demands of a post-9/11 world.

The executive branch cannot, should not, and must not go it alone.

Ensuring that U.S. intelligence agencies are powerful enough but not too powerful

requires nonpartisan and vigorous oversight by Congress.

ENDURING PROBLEMS

Congressional oversight of intelligence has always been problematic.

For the first thirty years of the CIA’s existence, oversight consisted of a few senior

legislators not asking questions and not wanting answers. As Senator Leverett

Saltonstall (R-Mass.) noted in 1956, ‘‘It is not a question of reluctance on the part

of the CIA officials to speak to us. . . .Instead, it is a question of our reluctance,

if you will, to seek information and knowledge on subjects which I personally, as

a Member of Congress and as a citizen, would rather not have.’’ Between 1947 and

1974, more than 150 legislative proposals to reform this oversight system were defeated, nearly all of them by overwhelming majorities. It took revelations that intelligence agencies were assassinating foreign leaders and spying on Americans before

Congress finally established the Select Intelligence Committees.

Although the committees were a substantial improvement, deficiencies persisted.

Perhaps nowhere was the system’s weakness more apparent than in the failed efforts to overhaul executive branch intelligence agencies before 9/11.

In 1992 and again in 1996, this committee and its House counterpart pressed for

sweeping intelligence reforms. Both times, bills were torpedoed by the Defense Department and members of the armed services committees, who stood to lose their

own turf and power.

My research found that between 1991 and 2001, twelve major unclassified studies

examined U.S intelligence and counter-terrorism capabilities, issuing more than 500

recommendations for reform. Most of the reports found congressional oversight to

be a big part of the problem. Recommendations included streamlining the splintered

and overlapping committee jurisdictions in intelligence and homeland security, combining intelligence authorizing and appropriating powers, and ending intelligence

committee term limits to enhance the expertise of members. None of these recommendations were adopted before 9/11. In fact, the only organization in the U.S.

intelligence system that failed to implement a single reform from all these reports

wasn’t the CIA, NSA, or FBI. It was Congress.

47

Despite the 9/11 Commission’s dire warning that congressional oversight was

‘‘dysfunctional’’ and vital to intelligence reform, two key problems remain: too much

fragmentation and not enough expertise.

Fragmented Jurisdictions: Creating a System Prone to Error and Inefficiency As

you know well, intelligence oversight is fragmented and uncoordinated across too

many committees. Governor Kean and Congressman Hamilton have noted that even

now, the Department of Homeland Security reports to 86 different congressional

committees and subcommittees. While this may be the extreme case, other intelligence agencies also face multiple oversight committees—chief among them, judiciary, armed services, and appropriations.

A system that splintered is naturally prone to error and inefficiency.

Individual programs—even crucial ones—an and do fall between the cracks because oversight can always be seen as somebody else’s job.

In the late 1990’s, for example, no congressional committee undertook a serious

examination of the FBI’s struggling counterterrorism reform efforts. Why? In large

part, because intelligence committees thought it was a judiciary issue and the judiciary committees thought it belonged in intelligence.

What’s more, fragmented jurisdictions make it unlikely that any one panel will

have an integrated view of an agency’s activities and the appropriate cross-programmatic tradeoffs involved. Multiple committees are also more likely to give contradictory guidance and overload managers with too many uncoordinated hearings

and reporting requirements. And savvy executive branch officials can play committees off one another.

In particular, the split between the intelligence authorization and appropriations

committees has allowed executive branch agencies to game the system. As the press

has publicly reported, this committee in recent years has repeatedly tried to kill expensive satellite programs only to have other committees reverse decisions after

pressure from the Pentagon and other allies. One intelligence official called this

kind of bureaucratic maneuvering the ‘‘Two-parent approach: If mom says no, go to

dad.’’

Separating authorizations from appropriations is a longstanding and revered congressional practice. But in the realm of intelligence, this division has become increasingly unworkable.

NOT ENOUGH EXPERTISE

Intelligence activities are complex, highly technical, and shrouded in secrecy. Unlike all other policy issues, intelligence has no natural interest group constituencies

capable of gathering independent information, alerting the public, or holding elected

officials’ feet to the fire.

These factors make the intelligence oversight learning curve especially high,

Members’ oversight service extraordinarily valuable, and staff capabilities essential.

Unless overseers know what to ask, they won’t get the information they need to

make intelligence agencies effective.

Although the Senate took the very important step in the 108th Congress of ending

term limits for this committee, the experience differential between the SSCI and

other Senate committees remains striking. For example, Senator Warner has served

on the armed services committee for 9 years. Chairman Levin has served for 28

years. If my calculations are correct, that’s four times longer than the longest-serving member of this committee. Notably, the House intelligence committee still has

term limits for its members, even though the 9/11 Commission and a number of

other studies during the 1990’s recommended abolishing them.

Staff capabilities are also critical and in need of augmentation. The Government

Accountability Office (GAO) currently lacks full authority to investigate all components of the Intelligence Community, particularly the CIA. Others have suggested

bolstering oversight committee staff by creating a new congressional support agency

with nonpartisan, cleared staff that could provide both classified and unclassified

analyses of important oversight issues to Congress. The Inspector General system

also offers an under-utilized mechanism to provide nonpartisan, independent information to Congress about waste, fraud, and abuse within and, importantly, across

intelligence agencies.

WHAT CAN BE DONE

All reforms necessarily involve tradeoffs; there is no one ideal solution. The history of intelligence reform, however, suggests two guiding principles for improving

congressional oversight.

48

Principle #1: Focus less on developing new ideas and more on implementing the

ones we already have.

For sixty years, turf and politics have stacked the deck against robust intelligence

oversight. As the 9/11 Commission noted, few things are more difficult than rearranging committee jurisdictions.

And as this committee knows well, overseeing U.S. intelligence agencies has always been a hard and largely thankless task that takes precious time away from

all the other issues that concern and benefit constituents more. Few voters care

about the nitty-gritty aspects of the FBI’s analyst program or the number of Pashto

speakers at the CIA.

The issues are often complicated and the effects on the daily lives of Americans

are usually indirect and unseen. No intelligence reform ever won a landslide election.

But turf and politics must be overcome. The ‘‘Implementing the 9/11 Commission

Recommendations Act’’ passed last summer tackled just about everything except

congressional oversight. Congress can do better. American lives depend on it.

This hearing is an important step forward. But success will require continued

leadership, commitment, bipartisanship, and a relentless focus on implementation.

Principle #2: Pick the low-hanging fruit.

Dramatic improvements require dramatic changes. Nevertheless, some important

improvements can be accomplished without new legislation, turf wars, or rule modifications. This ‘‘low-hanging fruit’’ involves improving informal coordination and

technical capabilities to make the most of existing oversight activities. These include: • Holding regular staff meetings across relevant Senate committees and between

House and Senate intelligence committees to better coordinate hearing schedules

and activities. • Instituting periodic leadership meetings of the House and Senate intelligence

committees to share information, improve coordination, and enhance strategic planning. • Integrating technology systems so that various intelligence oversight staff with

appropriate clearances can share information more easily.

Mr. Chairman, I’d like to conclude by thanking this committee not only for holding this hearing to address the critical issue of intelligence oversight, but for doing

so in open session.

While I fully realize that security considerations often require closed sessions,

there is no more powerful force for change than an engaged public.

Thank you.

Chairman ROCKEFELLER. Thank you, Dr. Zegart.

Mr. Saturno.

STATEMENT OF JAMES V. SATURNO, SPECIALIST, CONGRESS

AND THE LEGISLATIVE PROCESS, CONGRESSIONAL

RESEARCH SERVICE, LIBRARY OF CONGRESS

Mr. SATURNO. Thank you. First of all, I want to thank the Chairman and the Vice Chairman and the other members of this Committee for the invitation to appear today and to talk about one aspect of the 9/11 Commission’s recommendations, namely the recommendation concerning the separation of authorization and appropriations, particularly the historical record regarding their relationship. It’s a history lesson but one that I hope that the Committee will find useful.

The U.S. Constitution does not establish a specific budget process. The power of the purse is assigned to Congress in Article I,

section 9, which states simply that, ‘‘No money shall be drawn from

the Treasury but in consequence of appropriations made by law.’’

How this authority is put into practice, however, has naturally

been the subject of periodic congressional debate.

Historically, Congress has implemented this power through a

two-step process—first, establishing agencies and programs, and

then funding them in separate legislation. This separation is a conVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
49

struct of congressional rules and practices and is neither mandated

nor suggested in the Constitution. Instead, it has been developed

and formalized over time pursuant to the constitutional authority

in Article I, section 5, for each chamber to determine the rules of

its proceedings. This power permits Congress to enforce, modify,

waive, repeal or ignore its rules as it sees fit. The result has been

an evolving relationship and one that is malleable enough to meet

the changing needs of Congress.

Legislation that establishes, continues or modifies a Government

agency activity or program is today termed an authorization. While

authorizations form an essential part of the Federal budgeting

process, by themselves they don’t permit funds to be obligated, although they are typically enacted with the idea that subsequent

legislation will provide funds. Instead, they simply give direction,

both to congressional appropriators and to the agency.

Agencies or programs are typically affected by more than one authorizing statute. One law may set up an agency and establish its

underlying mission, while another may establish specific programs

to be administered by the agency, another may provide specific

guidelines for agency organization and yet another may provide explicit authorization for appropriations or limits on what activities

may or should be funded through the appropriations process.

Jurisdiction over all of these various aspects of authorizations is

frequently shared by more than one committee. As substantive law,

furthermore, authorizations are generally permanent unless otherwise specified, but there are no underlying requirements concerning their duration. This is further complicated when authority

for an agency’s activities is permanent but the authorization for appropriations action is limited to specific fiscal years. All of these

variations can have an impact that is felt in the appropriations

process and, more importantly, in the oversight of funding of various agencies and their activities.

Appropriations, in contrast, specifically refers only to legislation

which provides budget authority, that is, authority for Government

agencies or programs to obligate funds. Appropriations are typically provided for a single fiscal year, although appropriated funds

can be specified as being available for a multiyear period or even

until they’re spent. While there is no constitutional requirement

that an appropriation follow an authorization, historically that has

been the case.

Authorizations have been separated from appropriations by congressional rules and practices reaching back to the colonial era.

The distinction between what we today term authorizations and

appropriations appears to have been understood in practice long

before it was formally recognized in the rules.

This distinction is reflected in the practice of early Congresses to

refer appropriations legislation as supply bills whose purpose was

simply to supply funds for Government operations already defined

in law. Combining funding with policy-oriented legislation, it was

feared, would delay the provision of funds or lead to the enactment

of matters that might not otherwise become law. Indeed, it was the

failure of the fortifications appropriations bill to be enacted in 1835

due to controversy over a legislative provision in the bill that apparently was the trigger that inspired the next Congress to take acVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
50

tion, and the House adopted a rule in 1837 which emphasized the

two-step nature of the process through explicit language for the

very first time. The Senate adopted a similar rule in 1850.

In the 19th century, Congress occasionally recast the procedural

divisions between legislation and funding questions but never

changed the fundamental distinctions between the two. Throughout

the 19th century, the concept of what would today be called authorizations continued to mean primarily permanent legislation involving general questions of the authority and activities of agencies

while the appropriations legislation of the era was typically quite

precise, including provisions detailing such things as the number

and positions of Federal employees and their specific salaries or

even how much to be spent for office supplies.

One salient change in the late 19th century, one of particular interest with respect to the recommendations by the 9/11 Commission, was the idea of jurisdiction over appropriations being dispersed among various committees. Beginning in 1880, the House

Commerce Committee and the House Agriculture Committee were

given jurisdiction over bills providing funding for rivers and harbors and for agriculture respectively.

This was expanded to include additional House committees in

1885, and the Senate effected a similar dispersal of jurisdiction in

1899.

House and Senate rules, however, continued to preserve the formal distinction between legislation and appropriations. Despite

having jurisdiction over both types of measures, legislative committees do not seem to have made any major changes in the form of

measures they reported. It’s important to note that even after they

gained appropriations jurisdiction, they did not attempt to merge

it with their legislative jurisdiction and continued to address broad

policy and organizational questions separate from the details of

funding agency activities. This system lasted until the 1920s, when

appropriations jurisdiction was reconsolidated and reorganized in

the way that we are familiar with today.

In modern practice, legislative committees have attempted to

play a more direct role in the oversight of Federal agencies and in

the process revamp the concept of how authorizing legislation

should be constructed. Committees have frequently taken an approach with authorizing legislation that now means both a periodic

and a more detailed review of agency organization and activities.

The refocusing of authorizing legislation on programmatic details,

enumerating how funds ought to be spent, sometimes leads to the

criticism that they seem to be duplicative of appropriations and

leads to conflict and tension between authorizers and appropriators.

Unlike appropriations, however, authorizations are not always

made in the form of a single annual measure. Although the more

detailed modern approach is widespread, authorizing committees

as a whole have not adopted a uniform approach to their legislation. Various authorizing committees can frame their legislation in

terms of administrative divisions, whether that means a single department or individual agencies, in terms of reauthorizing single

specific pieces of legislation or in terms of broad topical issues. The

result is that authorizations relating to any one department and

51

the programs it administers can be a complex web of varying specificity and duration, often falling within the jurisdiction of multiple

committees.

At the same time, the appropriations committees have also

changed the focus of their legislation and have generally moved

away from the level of detail that was once common. In modern

practice, appropriations legislation often provides funding for specific agencies or programs in only one or a handful in lump sum

paragraphs. The few details in the legislative language are typically supplemented by other nonstatutory guidelines such as report

language.

Although the evolution of authorizations and appropriations has

sometimes brought them into conflict, nevertheless they remain

conceptually distinct. Authorizing committees and their legislation

remains the primary venue for assessing whether a program constitutes a good idea, while appropriations remains the primary

venue for deciding among competing demands for Federal resources

and for assessing questions of how well Federal funds are spent.

The historical record does not give us an answer as to whether

joining authorization and appropriations would improve oversight,

but it shows no barrier to change. It tells us that Congress has experimented in the past with their relationship and in the past

found various ways to meet their changing needs.

I want to thank you for your attention, and I welcome your questions.

[The prepared statement of Mr. Saturno follows:]

STATEMENT OF JAMES V. SATURNO, CONGRESSIONAL RESEARCH SERVICE, BEFORE THE

SENATE COMMITTEE ON INTELLIGENCE, NOVEMBER 13, 2007

The Separation of Authorizations and Appropriations: A Review of the Historical

Record

Mr. Chairman and members of the Committee, thank you for your invitation to

appear today to offer testimony regarding committee jurisdiction and responsibilities

related to the separation of authorizations and appropriations. I am James V.

Saturno, a Specialist on the Congress and Legislative Process with the Congressional Research Service of the Library of Congress.

AUTHORIZATIONS AND APPROPRIATIONS DEFINED. The U.S. Constitution does not

establish a specific budget process. The power of the purse is assigned to Congress

in Article I, Section 9 which states that ‘‘No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.’’ How this authority is put

into practice, however, has naturally been the subject of periodic congressional debate. Historically, Congress has implemented this power through a two-step process:

first establishing agencies and programs, and then funding them in separate legislation. This separation is a construct of congressional rules and practices, and is neither mandated nor suggested in the Constitution. Instead, it has been developed

and formalized over time pursuant to the constitutional authority in Article L Section 5, for each chamber to ‘‘determine the Rules of its Proceedings.’’ This power permits Congress to enforce, modify, waive, repeal, or ignore its rules as it sees fit. The

result has been an evolving relationship.

Legislation that establishes, continues, or modifies a government entity (such as

a department or agency), activity, or program is termed an authorization. While authorizations form an essential part of the Federal budgeting process, by themselves

they do not permit funds to be obligated, although they are typically enacted with

the idea that subsequent legislation will provide funds.

Instead, they give direction, both to congressional appropriators and to the agency. Some agencies or programs may be affected by more than one authorizing statute. One law may set up an agency and establish its underlying mission, while another may establish a specific program to be administered by the agency, another

may provide specific guidelines for agency organization, and yet another may proVerDate 11-MAY-2000 12:54 Apr 09, 2009 Jkt 048096 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 C:\DOCS\48096.TXT PREBLE PsN: PREBLE
52

1 As adopted in the 25th Congress. Congressional Globe, 25th Cong., 2nd sess., Mar. 13, 1838,

p. 235. 2 As described in Asher C. Hinds, Precedents of the House of Representatives of the United

States, including references to the Constitution, the laws and decisions of the U.S. Senate, vol.

IV, δ3578 (Washington: GPO, 1907). 3 Congressional Globe, 31st Cong., 2nd sess., Dec. 19, 1850, p. 94.

vide explicit authorization for appropriations or limits on what activities may be

funded through the appropriations process.

The web of authorizing statutes can be complicated because there are no underlying requirements concerning their duration or specificity. As substantive law, authorizations are generally permanent unless otherwise specified, but they can have

any duration. This can be further complicated when authority for an agency’s activities are permanent, and the authorization for appropriations actions is limited to

specific fiscal years. For example, authorization of appropriations for defense and intelligence activities have typically been on an annual cycle, while those for other

agencies or programs are often on two- to 5–year cycles. Authorizations also may

be differentiated as definite or indefinite. That is, they may authorize specific

amounts for specific activities, or they may provide that ‘‘such sums as are necessary’’ are authorized. Both the duration and specificity of limitations can have an

impact on the appropriations process.

Appropriations, in contrast, specifically refers to legislation which provides budget

authority, that is, authority for government agencies or programs to obligate funds.

Appropriations are typically provided for a single fiscal year, although the availability of appropriated funds can be specified as multiyear or ‘‘no year’’ (i.e., to remain available until spent without regard to year). Although there is no constitutional requirement that an appropriation follow an authorization, historically that

has been the case.

LONGSTANDING TRADITION. Authorizations have been separated from appropriations by congressional rules and practices reaching back to the colonial era. The distinction between what are today termed authorization and appropriations appears

to have been understood and practiced long before it was formally recognized in the

rules, being derived from earlier British and colonial practices.

The distinction between authorization and appropriations was reflected in the

practice of early Congresses to designate appropriations legislation as ‘‘supply bills,’’

whose purpose was simply to supply funds for government operations already defined in law. The inclusion of new legislation, it was feared, might delay the provision of funds, or lead to the enactment of matters that might not otherwise become

law. The idea of authorizing appropriations was understood to be implicit in legislation defining or prescribing duties or activities of an agency, rather than explicit as

it is in modern practice.

By the 1820’s and 1830’s, the inclusion of legislative ‘‘riders’’ in appropriations

bills had become frequent enough that some Members began to fear that they could

no longer rely on unwritten understandings to keep appropriations separate from

general legislation, and thus prevent spending legislation from being subject to prolonged consideration as a result. The failure of the fortifications appropriations bill

to be enacted in the 24‘s Congress, due to a legislative provision, apparently inspired the next Congress to take action. Language was added to the Rules of the

House in the 25th Congress (September 14, 1837) which emphasized the two-step

nature of the process by providing:

No appropriation shall be reported in such general appropriation bills, or be in

order as an amendment thereto, for any expenditure not previously authorized by

law.1

Although the rule did not explicitly prohibit language changing existing law until

1876, as early as 1838, the House established by precedent that legislative language

was not in order in appropriations bills.2 The Senate adopted a similar rule in 1850,

when it prohibited amendments proposing additional appropriations unless they

were for the purpose of carrying out the provisions of an existing law.3

THE LATE 19TH CENTURY. The history of Congress in the 19th century shows that

it has sometimes recast the procedural division between legislation and funding

questions, without revisiting the fundamental issue of their distinctiveness.

Throughout the 19th century, the concept of what would today be called authorizations continued to mean primarily permanent legislation, involving general questions of the authority and activities of agencies, while the appropriations legislation

of the era was generally precise, even including provisions detailing such things as

the number and positions of post office clerks at each specific rate of pay.

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4Stewart, Charles H., Budget Reform Politics: The Design of the Appropriations Process in

the House of Representatives, 1865–1921, (New York: Cambridge Univ. Press, 1989), p. 89.

In 1876, the House’s rule separating legislation and appropriations was amended

by what is know as the Holman Rule after one of its chief advocates, Representative

William Holman of Indiana. This new provision allowed for appropriations bills to

include changes in existing law if it were germane to the subject matter of the bill

and retrenched expenditures. At least one scholar has suggested that initial enthusiasm for the new rule stemmed from its use as a device to allow the House to gain

leverage against the Senate and President for repeal of several Reconstruction-era

laws, including changes in jury qualifications and Federal election supervisors for

the South, as well as a reorganization of the Army.4

A second major change in the relationship between authorizations and appropriations in the late 19th century was the dispersal of appropriations jurisdiction among

several legislative committees.

The expansion of the workload of the Committee on Ways and Means during and

after the Civil War (especially due to banking, currency, and debt questions) led to

the 1865 creation of two new committees in the House (Banking and Currency, and

Appropriations) and a division of the workload. The jurisdiction of the new Appropriations Committee was defined as the ‘‘appropriation of the revenue for the support of the Government.’’ This jurisdiction, however, was extensive, but not all-inclusive, and the Committee had to deal with its erosion at an early stage. Sometime

after the creation of the Appropriations Committee, the Commerce Committee was

able to establish a unique joint jurisdiction over the rivers and harbors bill, reporting the bill which would then be referred to the Appropriations Committee before

it could be considered on the House floor. Beginning in 1878, however, the Commerce Committee began to use suspension of the rules as a method of circumventing

the jurisdiction of the Appropriations Committee. This challenge to Appropriations

jurisdiction became accepted practice, and was codified in the House rule revision

of 1880, which gave the Commerce Committee ‘‘. . . the same privileges in reporting

bills making appropriations for the improvement of rivers and harbors as is accorded to the Committee on Appropriations in reporting general appropriations

bills.’’

The rule revision of 1880 also extended the power to report appropriations to the

Agriculture Committee (for the Department of Agriculture). The jurisdiction of the

House Appropriations Committee was further eroded when the rule revision of 1885

took away its control over the Military Academy, Army, Navy, Post Office, consular

and diplomatic, and Indian appropriation bills, and distributed these bills to various

authorizing committees. The Senate likewise created a separate Appropriations

Committee in 1867, and, in January of 1899, effected a similar dispersal of jurisdiction.

The distinction between legislation and appropriations was preserved in House

and Senate rules, however, and the exercise of jurisdiction over both aspects of the

funding process by these authorizing committees does not seem to have caused any

major changes in the form of measures enacted. It is important to note that, even

after they gained appropriations jurisdiction, legislative committees did not attempt

to merge it with their legislative jurisdiction, and continued to address broad policy

and organizational questions separate from the details of funding agency activities.

RECONSOLIDATED APPROPRIATIONS. By the end of World War I, the idea of a more

centralized budgetary process, including reconsolidated appropriations jurisdiction,

gained prominence. The Bureau of the Budget, newly established under the Budget

and Accounting Act of 1921, also recommended that appropriations bills be reorganized along administrative lines, with appropriations for salaries and expenses of

the various departments being carried in the same bill as funding for the programs

and activities they administered (this grouping had previously existed only in the

Department of Agriculture appropriations bill). The House Appropriations Committee, with its newly reconsolidated jurisdiction, adopted the Bureau’s concept and

reorganized the structure of appropriations bills and its subcommittees so extensively that only the Agriculture bill remained essentially unchanged.

Prior to this reorganization, appropriations bills tended to be organized along topical lines. For example, the military activities of the War Department were considered in appropriations bills reported by the Military Affairs Committee, the activities of the Corps of Engineers were considered in the Rivers and Harbors appropriations bill reported by the Commerce Committee, and the salaries and contingent expenses of the civilian administration of the Department was carried in the Executive, Legislative, and Judicial bill, which was in the jurisdiction of the Appropriations Committee. A similar division existed for most departments, and was true

54

5S.Res. 213, 67th Congress. For its consideration see ‘‘Consideration of Appropriations Bills,’’

Congressional Record, vol. 62, Mar. 1–Mar 4, Mar. 6, 1922, pp. 3199–3207, 3279–3291, 3331–

3344, 3375–3392, 3400, 3418–3432.

even for those agencies whose appropriations were wholly within the jurisdiction of

the Appropriations Committee. Funding for the activities of agencies as disparate

as the Interstate Commerce Commission, the Coast Guard, and the Bureau of Mines

were carried in the Sundry Civil bill, while their salaries and expenses were generally funded in the Executive, Legislative, and Judicial bill.

The House’s reorganization created jurisdictional difficulties for the Senate, which

attempted to retain a structure based on the topical organization of appropriations

bills, as well as multiple committees sharing jurisdiction over appropriations bills.

Confronted with the difficulty of considering the House’s reorganized appropriations

bills, the Senate reorganized its own appropriations jurisdiction and subcommittee

structure in 1922.5

THE MODERN CONGRESS. In modern practice, legislative committees have attempted to play a more direct role in the oversight of Federal agencies, and in the

process, revamped the concept of how authorizations should be constructed. Committees have frequently taken an approach with authorizing legislation that now

means both a periodic, and a more detailed, review of agency organization and activities. The refocusing of authorizations on programmatic details, enumerating how

funds ought to be spent, sometimes leads to the criticism that they seem to be duplicative of appropriations. Unlike appropriations, however, authorizations are not always in the form of a single, annual measure. Despite their more detailed, modern

approach, authorizing committees have not uniformly adopted a single approach to

their legislation. Authorizing legislation can be framed in terms of administrative

divisions, whether that means a whole department or individual agencies; they can

be framed in terms of reauthorizing a single, specific piece of legislation; or they can

be framed in terms of an issue or topic. The result is that the authorizations relating to any one department, and the programs it administers, can be a complex web

of varying specificity and duration. One law might set up an agency and establish

its underlying mission, while a second might establish a program to be administered

by the agency, and a third might provide specific guidelines for agency activities,

including limits on what activities may be funded through the appropriations process. These laws might also be subject to differing sunset provisions.

At the same time, the appropriations committees have also changed the focus of

their legislation, and have generally moved away from the level of detail that was

once common. In modern practice, appropriations legislation often provides funding

for specific agencies or programs in only one or a handful of lump-sum paragraphs.

The few details in the legislative language are typically supplemented by other, nonstatutory guidelines, such as report language.

Although the evolution of the form of authorizations and appropriations has sometimes brought them into conflict, nevertheless, they remain conceptually distinct.

Authorizing committees and their legislation remain the primary venue for assessing whether a program constitutes a ‘‘good idea,’’ while appropriations remain the

primary venue deciding amongst competing demands for Federal resources, and for

assessing questions of how well Federal funds are spent.

Thank you for your attention. I welcome your questions.

Chairman ROCKEFELLER. Thank you. Thank you very much.

That was a good history lesson which has a lot to say to us.

The experience in the last part of the 19th and early part of the

20th centuries, what was the experience of having authorization

and appropriation power combined, number one? What were the

practical consequences of that? Was there an overall effect on the

Federal budgeting process? And why did the pendulum swing back

to a single appropriations committee to the extent that it has?

Why did that appropriations committee, in your judgment, other

than the usual, you know, we don’t do any more earmarks so life

is getting a lot tougher—why did they become what they have become, which, if you’re on the Commerce Committee or the Finance

Committee or the Intelligence Committee or the Veterans’ Committee, like I am, the Appropriations Committee is a real problem,

is a real problem.

55

Now, there are two very powerful people that lead that committee and so one could posit that its role has changed over time

depending upon what the leadership is or whether the leadership

is willing to work with the White House unbeknownst to the authorizing committees that are very much a part of the congressional pursuit. So I’m interested in your thoughts on that.

Mr. SATURNO. Well, the general problem as perceived by legislative committees in the 1800s was what they would term an excessive economy of the appropriators. And quite simply, they were

looking to control the appropriations process because they felt that

the appropriators were not providing a sufficient amount of funds

for the programs and for the agencies that they had the greatest

interest in. That’s partly why it began, beginning in 1880, with the

river and harbors bill and with the agriculture bill. Those were the

things that most directly involved widespread funding that was dispersed throughout the country that——

Chairman ROCKEFELLER. I’m not clear as to your answer. Are

you saying that the authorizing committees rose up in rage and

changed the appropriators?

Mr. SATURNO. Yes. Literally, the House Commerce Committee in

particular, on a number of occasions attempted to share or take jurisdiction over the bill to provide funding for river and harbor

projects away from the appropriators. And it was eventually written into House rules beginning in 1880 that they had exclusive jurisdiction over that particular piece of spending legislation. Other

committees saw similar opportunities, and the House was eventually willing to disperse almost half of the jurisdiction of the Appropriations Committee to these other legislative committees at various times in the 1880s.

Chairman ROCKEFELLER. OK. Well, now, it’s a little bit later, and

the Appropriations Committee has—and I might say that my Vice

Chairman is a very distinguished member of that committee and

I’m very glad that he is, very glad that my colleague from West

Virginia is. On the other hand, it’s become weighted and they have

developed their own kind of psyche that you can’t cross the Appropriations Committee because they’ll never forget. And there are

people I could point to on the Appropriations Committee about

which that would be absolutely true.

So why is it that the Appropriations Committee is where it is

when what it’s doing, at least with respect to this hearing, may not

be in the national interest or the national security interest? Why

is it they were able to assemble all that power? You said that the

committees all rose up and demanded more of the action, but that

was then, this is now. It’s not the case now.

Mr. SATURNO. The reverse swing of the pendulum began early in

the 20th century based on the idea that dispersed appropriations

was a pretty inefficient way to do budgeting, that it led to a lot of

venue shopping by agencies that would sometimes come to the Appropriations Committee, sometimes go to other committees looking

for money to fund various projects and activities, and that this led

to an increase in spending. Especially after the First World War,

the idea of inefficiency in Government institutions, particularly in

legislative institutions, helped the idea of reform take strong hold.

And that was the reason for the reconsolidation, so that there

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would be less of an opportunity for agencies to try and find the

most malleable congressional committee to provide funds for them

and would only be able to go through a single committee.

And that’s essentially the system that we still have today. The

rationale for it is that it prevents agencies from coming to multiple

committees to seek funding, and whether or not that continues to

be useful, whether that’s particularly useful in the case of intelligence funding, well, that’s certainly for Members such as yourself

to decide.

Chairman ROCKEFELLER. Thank you.

Senator Bond.

Vice Chairman BOND. Thank you very much, Mr. Chairman.

And thanks to you, Mr. Saturno and Professor Zegart, for giving

us some very good background.

I was fascinated to hear that the reform was to bring all the

power back into the Appropriations Committee. What’s the status

in other democracies around the world? How many of them split

the authorizations and appropriations? What’s the practice elsewhere? Can we learn anything from looking at other legislative

bodies to guide us?

Mr. SATURNO. I don’t know the extent to which most other legislative bodies formalize it within their rules, but almost all of them

keep separate the question of budgetary legislation and, on the

other hand, general legislation to affect the organization and activities of Government departments.

Vice Chairman BOND. But you don’t see anything in the Founding Fathers’ system of checks and balances that would say that

they felt it necessary to provide checks and balances within Congress to keep authorizing committees from having a say in appropriations. Is that a fair statement?

Mr. SATURNO. Yes. Their conception of authorizations at the time

was generally that they would pass permanent legislation detailing

the authority of different agencies. In fact, the law passed in 1789

creating the Department of the Treasury still in large part defines

the basic functions and the activities of the Department of the

Treasury. That’s partly why they don’t have, or aren’t perceived to

need, an annual authorization Act. So the conception of what’s considered necessary or useful in terms of authorizing legislation is in

large part what’s changed over the past 200 years.

Vice Chairman BOND. Professor Zegart, I was fascinated by your

analysis. Obviously, you have followed what’s going on in Congress

and in intelligence very closely. You said that of 12 major unclassified studies, none were adopted before 9/11. What do you think the

major impediment to that was? Is it an analysis of the mood or

problems of organizing this body? What do you see as the major impediments to reform?

Dr. ZEGART. Well, Senator, I think the major impediments are

the same ones that have been problematic for all kinds of intelligence reform, not just congressional reform, and there are three.

And I think Congress has an even harder time than than executive

branch agencies. The three are, first, inertia. No organization

changes easily on its own, whether it’s IBM or GM or the Congress.

The second is turf. And here, it’s helpful, I think, to think of the

decentralization of Congress, which was accelerated in the 1970s

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with congressional reforms serving individual interests of individual Members. So the more disparate power centers there are in

the Congress, the better it is for any individual Member because

the pie is divided. It makes perfect sense from the standpoint of the

reelection interest of individual Members, not so helpful for national interest overall. And so that turf division which was accelerated in the 1970s has proven particularly problematic from the

standpoint of congressional reform.

And then the third factor is politics, and I think this Committee

hearing today has talked a lot about how intelligence is different.

Historical precedents are helpful, particularly in enlightening us

that there really is no stringent requirement for either separating

or combining authorizations and appropriations. But in intelligence, what strikes me as particularly different, as Congressman

Hamilton noted, is that this is the only committee that really

stands watch over the executive branch, that there aren’t nonpartisan think tanks that have access to that information, there

aren’t academics like me who have easy access.

Vice Chairman BOND. You’re about as close as we’ve got to that.

Dr. ZEGART. You’re a lot closer than I am.

And so there’s a particularly important role that Intelligence

Committees play, and at the same time members of the American

public are not engaged in intelligence precisely because it’s secret.

So when I teach my students in California and I ask them what

they know about the intelligence community, most of them learn a

lot more from what they see in Hollywood where I live than being

able to figure out from information coming out of Washington. The

tremendous secrecy involved in intelligence makes it hard from a

political standpoint to get the American public energized about intelligence reform, as we’ve seen over the past decade.

Vice Chairman BOND. When I was first elected Governor, my biggest challenge was to reorganize the executive branch of Missouri

State government. And the turf, every senior member of the General Assembly had a particular agency that was his agency, and he

didn’t want anybody in the executive branch running that agency.

And the water patrol knew they reported to one Senator, and that

Senator would take care of them and the water patrol chauffeured

him around every lake in the State and was his own private navy.

And you talk about a cat fight, I was in it.

But let me ask for your advice. You heard our discussion earlier,

and we went into the issue with Congressman Roemer and Congressman Hamilton—very good testimony—saying we’ve got to

change the process because without having any input in appropriations, the Intelligence Committee has been divorced from the appropriations process. From your experience, how do you see us

bringing this movement to fruition so we can have some impact, we

can have an effective oversight impact in the $40-plus billion of intelligence community appropriations?

Dr. ZEGART. Well, I think that’s the $64,000 question.

Vice Chairman BOND. That’s why we waited to the end to ask

you.

[Laughter.]

Dr. ZEGART. Well, I appreciate what the Chairman, Senator

Rockefeller has said about the 23 votes and just how difficult this

58

task is. If you look at the history of intelligence reform, we’ve seen

the dangers; we’ve known the imperative for organizational

changes in Congress and the executive branch. It’s very hard to get

from here to there.

I think history does suggest that there are game-changing junctures, and this could well be one of them. And in those gamechanging junctures, what makes the difference is leadership of individual either Members of Congress or the President and engaging

with a public to force change on a change-resistant system. And I’m

thinking in particular of two moments in time. The first is 1947

when President Truman undertook a tremendous battle with the

Department of War and the Department of Navy to create our current national security system. The New York Times back at the

time reported it as a brass knuckle fight to the finish. It took 4

years and bitter wrangling, public wrangling, lots of press about it,

lots of open hearings about it, and ultimately Truman prevailed. It

wasn’t perfect, but it was a tremendous example of a game-changing moment and making the most of that moment.

The second example that comes to mind is Goldwater-Nichols,

1986, where we had a convergence of forces. Military experts had

known for years that the services needed better coordination, very

similar to intelligence, and yet there wasn’t the impetus, so there

wasn’t the opportunity for reform. Well, suddenly there was a convergence of circumstances. There was the failed rescue effort in

Iran in 1980. There was Grenada. There was the Marine barracks

bombing in 1983. And there was momentum for reform in Congress, and so two Members of Congress pushed through that momentum to get this incredibly important legislation.

So I think windows of opportunity arise every once in awhile,

and this I think could very well be one of them, so you may get

more than your 23 votes if we push hard enough.

Vice Chairman BOND. Well, I thank you and I believe your testimony helps us move down the line. I just wish we had 60 of our

colleagues sitting here listening to you instead of—if you want to

play Goldwater, I’ll be Truman, or you play Truman and I’ll be

Goldwater.

And I thank you both very much because we need to change

things and come together with our colleagues to work out a responsible means of assuring that our efforts with the 50 staffers and

all on this Committee are not for naught. I thank you.

Chairman ROCKEFELLER. You’ve got to end better than that, not

for naught.

Vice Chairman BOND. That they mean something.

Chairman ROCKEFELLER. There you go.

Thank you both very much. Incidentally, the number you need

to focus on is not 50 but 60 votes because all important matters

are filibustered.

Vice Chairman BOND. Oh, well, we can get——

Chairman ROCKEFELLER. It’s 23 to 60 here.

It’s interesting—I mean, it really is—to listen to the four of you

this afternoon. And you were talking about the way history has

worked, and it’s brought those revolutions. And working within

what we do now almost makes you—you could on the one hand ask

if we had both the authorizing and the appropriating power for the

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Intelligence Committee, would that be wise? Would that be a wise

thing? Should there be some kind of a check or balance on our decisionmaking? Because we tend to get pretty worked up about situations around the world.

And then the other side would be is there an interim way, which

was also discussed this afternoon, of gradually persuading people

or being more aggressive with our staff with respect to the appropriators? And they’re a very tough bunch. They always have been,

at least in the 23 years I’ve been here. And they don’t yield, and

they take great pride in that.

So I mean, very important questions have been raised in this

hearing this afternoon, and I’m very grateful to you. I only apologize that the Vice Chairman had such a long opening statement.

[Laughter.]

Vice Chairman BOND. Mr. Chairman, sometimes we appropriators think that the authorizing committees are really causing a

great deal of trouble, so I put on my other hat and I say and all

of the equities are not on the side of authorizers. Thank you.

Dr. ZEGART. Thank you.

Chairman ROCKEFELLER. The hearing is adjourned.

[Whereupon, at 5:20 p.m., the Committee adjourned.]

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