Congressional Oversight of Intelligence: Background and Selected Options for Further Reform
Released: 2018-12-04T00:00:00

Introduction

This report provides a review of congressional oversight of the Intelligence Community (IC) since establishment of the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI), particularly since the 9-11 Commission published its recommendations in its 2004 report. It also explores selected options for further reform, and offers questions that Congress may consider to assess the effectiveness of its oversight.

In legislating, confirming appointees, authorizing programs and appropriating funds, Congress enables the IC, a community of seventeen discrete intelligence elements, to conduct the business of intelligence in support of United States national security. In addition, Congress has perspective that few others outside of the IC have. Oversight of the IC enables Congress to determine whether classified intelligence programs that are restricted from public disclosure are legal, ethical, and respectful of civil liberties. When there have been perceived abuses, Congress has often intervened to conduct hearings and legislate changes in intelligence process or organization.

Several competing, sometimes overlapping, perspectives exist on the purpose for conducting congressional oversight of the IC:

Some have argued that the primary responsibility of the intelligence committees is to provide the authority and strategic direction to enable continual improvement in the performance of intelligence programs in support of the most pressing national security challenges. Others have pointed to the role of the congressional intelligence committees in counterbalancing the power of the executive branch. This could result either through monitoring the IC as it implements programs and activities that support the executive's national security policies, or through ensuring that the IC is able to function independently of occasional instances of officials in the executive branch (including the president) choosing to politicize intelligence, or influence intelligence deliverables to support assumptions underlying policy decisions. This perspective holds that the IC must be able to exercise independence to be able to speak truth to power without abusing the power that that independence implies. Another perspective of the role of congressional oversight of the IC is that it serves as an external check on the power of the IC apart from the executive branch. This perspective draws from a perception of deep-seated biases inside the IC that proponents believe may be unethical, illegal, or resistant to executive policy. Each perspective may animate the thinking of various Members of the congressional intelligence committees at any given time. To the extent that Members share a perspective on oversight of the IC, they may be more likely to share views on the ways to conduct the oversight. Significant differences of opinion among Members on the purpose for conducting intelligence oversight, however, may signal a discordant tone in Congress's relations with the IC and hamper oversight efforts. Some believe that the intelligence committees' perceived tradition of bipartisanship and objectivity is of particular importance for effective oversight and a constructive relationship with the IC. Others, both within and outside of Congress, focus on what they perceive as weaknesses in the structure and authority of the congressional intelligence committees. While the IC has experienced significant reform over the past forty years since the establishment of the HPSCI and the SSCI, some have contended that Congress could do more to change the rules governing the committee structure and authority for conducting intelligence oversight. They note, for example, the number of committees that claim jurisdiction over intelligence matters dilutes the authority of the HPSCI and SSCI. Critics also note that despite to the diffusion of responsibility for oversight of intelligence in Congress, the growth of the IC—in the size and number of its subordinate elements, as well as its budget—has outstripped Congress's ability to provide adequate checks on the power of the executive or to develop the expertise and dedicate the time to strategically influence intelligence programs and policy.

Background

Hughes-Ryan Amendment of 1974

In 1974, the Hughes-Ryan amendment of the Foreign Assistance Act of 1961 ( P.L. 93-559 §32) provided the first statutory basis for congressional oversight and notification to Congress of covert action operations. This legislation resulted from Congress not being informed of the Central Intelligence Agency (CIA) activities abroad—in Chile and Southeast Asia in particular. The Hughes-Ryan legislation prohibits the use of appropriated funds for covert action unless the President issues a finding to Congress explaining the importance of the covert action to national security.

Church and Pike Committees

In 1974, media reporting about potentially illegal domestic surveillance by the IC of the anti-Vietnam War movement prompted Congress to establish two select committees on intelligence to investigate—in the Senate, chaired by Idaho Senator Frank Church, and in the House, chaired by Representative Otis Pike. Previously, the Subcommittees on the CIA of the Senate and House Committees on Armed Services exercised nominal oversight of the IC. However, they were viewed by many to be too close to the agencies they oversaw to be objective. Many in Congress came to believe that the legal and ethical abuses by IC agencies resulted in part from an attitude characterized by some as "benign neglect" among the committees that had jurisdiction over intelligence matters. Senator Frank Church described the situation in the 1970s saying, "the Intelligence Community's immunity from congressional oversight had been a basic reason for the failures, inefficiencies and misdeeds of the past." The work of the Church and Pike committees, therefore, provided the first formal effort to understand the scope of the IC's illegal, and unethical intelligence activities. These committees became the model for a permanent oversight framework that could hold the intelligence community accountable for spending appropriated funds legally and ethically, and in support of identifiable national security objectives.

Establishment of the Select Committees on Intelligence

In 1976, Congress established the Senate Select Committee on Intelligence (SSCI). The following year it established the House Permanent Select Committee on Intelligence (HPSCI).

Since their establishment, however, the HPSCI and SSCI have been assisted in their oversight role by other committees that long had jurisdiction over intelligence matters related to their areas of responsibility. Intelligence and intelligence-related activities are often closely tied to foreign and defense policy, military operations, homeland security, cybersecurity, and law enforcement. Committees in both chambers for Foreign Affairs/Relations, Armed Services, Appropriations, Judiciary, and Homeland Security (after they were created), therefore, today share oversight jurisdiction of intelligence programs.

Some observers of the IC have suggested these overlapping committee jurisdictions contribute to a perception of weak congressional intelligence committees that have relatively little authority and insufficient expertise. Others suggest that structural changes are less a concern than the degree of collegiality among members of the intelligence committees. These critics also suggest that committee members have had a tendency to focus less on forward-looking, strategic intelligence issues rather than tactical levels of intelligence.

Executive Order 12036

On January 24, 1978, President Jimmy Carter issued Executive Order 12036, United States Foreign Intelligence Activities . In a signing statement, President Carter described the order as: "…[ensuring] that foreign intelligence and counterintelligence activities are conducted in full compliance with the laws of the United States and are consistent with broader national security policies."

Under a section on "Oversight of Intelligence Organizations," the order established that the:

"…[Director of Central Intelligence] and heads of departments and agencies of the United States involved in intelligence activities shall…keep the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate fully and currently informed concerning intelligence activities, including any significant anticipated activities which are the responsibility of, or engaged in, by such department or agency."

Carter described these provisions as "[instructing] the DCI and senior officers of the Intelligence Community…to report to the congressional intelligence committees in a complete and prompt manner," thereby strengthening the intelligence oversight process.

Intelligence Authorization Act for Fiscal Year 1981

Congressional intelligence committees authorize intelligence activities through annual intelligence authorization acts. Section 504 of the National Security Act of 1947 (50 U.S. Code §3094) provides the statutory basis for authorization of specific intelligence or intelligence-related activities rather than a general authorization for intelligence activities within a department or agency.

The Intelligence Authorization Act for Fiscal Year 1981 ( P.L. 96-450 ) codified E.O. 12036 requirements for prior notification of Congress, specifically the requirements for the IC to keep the congressional intelligence committees "fully and currently informed" of intelligence activities, including any significant anticipated intelligence activities. This includes providing to the congressional intelligence committees information they might request in the course of their oversight responsibilities. It also requires IC elements to report any illegal activities or significant intelligence failures. Lastly, in the event of any covert action, the urgency of which prevents prior notification to Congress, the legislation requires the President to notify the congressional intelligence committees "in a timely fashion" subsequently.

The CIA Inspector General Act of 1989

The CIA did not have an independent IG until Congress, perceiving that the agency lacked the inclination to adequately oversee its own activities in the events leading to the Iran-Contra scandal, took action. The CIA Inspector General Act of 1989 provided for a statutory IG, appointed by the President and confirmed by the Senate, who is responsible for ensuring the congressional intelligence committees are kept "fully and currently informed" of "significant problems and deficiencies as well as the necessity for and the progress of corrective actions." The CIA IG is required to provide semiannual reports to the congressional intelligence committees, along with copies of other reports upon request.

The 9/11 Commission Recommendations and Subsequent Reform

The Report of the 9/11 Commission provides a rubric for assessing the progress of congressional oversight of intelligence, and the report's recommendations have helped frame discussions of further reform. As the Commission noted, oversight reform would not be easy:

"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….Having interviewed numerous members of Congress from both parties, as well as congressional staff members, we found that dissatisfaction with congressional oversight remains widespread….When their unfamiliarity with the subject is combined with the need to preserve security, a mandate emerges for substantial change….Tinkering with the existing structure is not sufficient."

Some, while acknowledging the Commission's assessment of Congress's oversight of intelligence as "dysfunctional," have suggested many of its recommendations would be very difficult to implement from a political standpoint. Ultimately, however, the Commission's recommendations provoked considerable debate and led to changes in Congress's role in ensuring the IC has the resources, organization, systems, and processes to support national security more effectively. A number of the Commission's recommendations for the Senate, for example, have been implemented. Nevertheless, many have suggested more needs to be done and continue to cite the Commission's recommendations as a frame of reference for further reform.

The Commission recommended replacing the HPSCI and SSCI with a joint committee on intelligence. It also suggested this joint committee should include a subcommittee on oversight to provide the necessary focus on programs and activities that might otherwise be overlooked. As an alternative to a joint committee, the Commission recommended consolidating authorizations and appropriations in the HPSCI and SSCI, a reform measure that would be a direct challenge to the authority of the Appropriations Committees. The Commission also recommended separating the National Intelligence Program (NIP) appropriation from the Defense appropriation, and, to promote bipartisanship, changing committee rules to ensure the majority never exceed minority representation by more than one. Finally, the Commission recommended abolishing term limits in order to promote depth and experience among committee members.

Senate Revisions

Senate Resolution 445

In October, 2004, during the 108 th Congress, the Senate adopted S.Res. 445 , an amendment of S.Res. 400 —the chamber's rules governing intelligence oversight. It included a number of the recommendations of the 9/11 Commission. This resolution to change committee rules was intended to increase the power of the SSCI as a select committee over its previous authority in relation to standing committees. S.Res. 445 , for example, gave the SSCI jurisdiction over reviewing, holding hearings, and reporting to the Senate floor presidential nominations of civilians for IC positions requiring Senate confirmation. S.Res. 445 also limited the standing committees' authority to change proposed legislation referred to them by the SSCI. Other changes included a provision to promote bipartisanship on the committee: Membership was decreased from 17 to 15, 8 members for the majority and 7 for the minority. Funding for hiring staff would be divided 60 percent to 40 percent between the majority member who chaired the committee and the minority member selected as the vice chair. Still another provision provided funds to hire a professional staff member to serve as designated representative to each SSCI member on intelligence matters. With the aim of building IC expertise among SSCI members, S.Res. 445 abolished the SSCI's eight-year term limit. In addition, one-third of members were not to have served on the committee during the preceding Congress. S.Res. 445 promoted closer ties with the Senate Armed Services Committee (SASC) by providing that the chair and ranking member of the SASC serve on the SSCI as ex officio members (with no voting authority). S.Res. 445 also created a Subcommittee on Oversight in the SSCI to enable greater focus on oversight that the 9/11 Commission and others had recommended. Lastly, Section 402 of S.Res. 445 called for the establishment of a Subcommittee on Intelligence in the Senate Committee on Appropriations.

Improved Coordination between Intelligence and Appropriations Committees

In February 2007, a memorandum of agreement (MOA) was agreed by the SSCI and the Senate Appropriations Committee (SAC) and the SAC Subcommittee on Defense (SAC-D) that allowed for staff of the committees to be notified of and attend each other's hearings on intelligence. It also allowed each member of the SSCI who also served on the SAC to have SSCI staff attend appropriations hearings and markups, and to review and comment on intelligence appropriations legislation prior to a committee vote. The leadership of the SAC claimed the MOA rendered unnecessary an intelligence appropriations subcommittee. A former Vice Chairman of the SSCI, Senator Christopher Bond, was more critical of the MOA, arguing that it was "weak and would not effect real change."

House Revisions

Coordination between House of Representatives Intelligence and Appropriations Committees

In 2007, the House of Representatives in the 110 th Congress adopted H.Res. 35 to amend the Rules of the House of Representatives to establish a Select Intelligence Oversight Panel (SIOP) of the Committee on Appropriations to (1) "review and study on a continuing basis budget request for an execution of intelligence activities"; (2) make recommendations to appropriate appropriations subcommittees; and (3) report on an annual basis to the Defense Subcommittee to provide "budgetary and oversight observations and recommendations" for consideration in the classified annex to the Defense appropriations bill. The SIOP's advantage was its composite membership from the committees with the most insight on intelligence programs and activities. The panel was composed of 13 members, not more than 8 from the majority party, appointed by the Speaker of the House, to include the chair and ranking member of the House Appropriations Committee (HAC), the chair and ranking member of the House Appropriations Committee Subcommittee on Defense (HAC-D), 6 members of the HAC and 3 members of the SSCI. The HAC-D, however, rather than the SIOP, had the authority to report a bill to the HAC. The SIOP was abolished in 2011, by H.Res. 5., 112 th Congress, to be replaced by an agreement between the HPSCI and the HAC for three HAC members (2 representing the majority, 1 representing the minority party) to be able to participate in HPSCI hearings and briefings.

Intelligence Authorization Act for Fiscal Year 2010

The Intelligence Authorization Act of 2010 ( P.L. 111-259 ) provided several measures to strengthen the layers of intelligence oversight. The legislation established an Inspector General (IG) within the Office of the DNI, appointed by the President and confirmed by the Senate. It also established IGs in the DOD intelligence agencies, the National Security Agency (NSA), National Geospatial-Intelligence Agency (NGA), National Reconnaissance Office (NRO), and the Defense Intelligence Agency (DIA). Although the reports of the IGs are classified, they are shared with the congressional intelligence committees, and consequently been seen to have reduced the burden of Congress's oversight responsibilities. P.L. 111-259 also strengthened congressional notification requirements for: (1) cybersecurity programs; (2) NIP systems acquisitions, including significant unforeseen cost increases; and (3) decisions by the executive branch not to provide notification to the full membership of the intelligence committees. Lastly, this legislation also reaffirmed the authority of the General Accountability Office (GAO) to conduct audits and evaluations of IC elements at the request of Congress, and report back to the congressional intelligence committees.

In response to Congress's reaffirmation of GAO authority to provide oversight of the IC, and to specify policy on working with the GAO, the DNI issued, on June, 30, 2011, Intelligence Community Directive (ICD) 114, Comptroller General Access to Intelligence Community Information . The directive outlines a policy of cooperation with the GAO with the exception of matters related to "intelligence capabilities and activities."

Selected Options for Further Reform

Following is an examination of selected oversight reform proposals that could be considered in developing a framework for discussion. The 9/11 Commission recommended most of them in its report, though some, such as the idea to establish a Joint Committee on Intelligence, have a much longer history.

Establish a Joint Committee for Intelligence

The 9/11 Commission recommended the establishment of a joint intelligence committee using the Joint Committee on Atomic Energy (JCAE) as a model. The Joint Committee on Atomic Energy (JCAE) was established by the Atomic Energy Act of 1946 (P.L. 585, 60 Stat. 772-773). It had equal representation from the House and Senate. It was seen as largely bipartisan, fostered expertise among its members, influenced policy of the executive branch, and enabled more efficient oversight of matters under its jurisdiction. Unlike any other joint committee of Congress the JCAE also had the authority to report legislation to the floor of the House and Senate. Until its termination in 1977, it had been considered by many to be one of the most powerful committees in Congress. It was terminated, however, in part due to its having developed what was perceived as a conflict of interest as both a committee that could influence policy on atomic energy uses and the oversight body for the Atomic Energy Commission.

The idea of a joint committee for oversight of intelligence was first proposed by the U.S. Commission on the Organization of the Executive Branch of the Government (the Second Hoover Commission ) in 1955.

During the same time frame Senator Mike Mansfield of Montana proposed a joint committee in 1955 and 1956 to provide oversight of the CIA. "Until we create some sort of 'watchdog' committee," Mansfield said at the time, "we will have nothing but continued anxiety about the Central Intelligence Agency and its widespread activities." Mansfield's joint committee would have had six members from each chamber, three from each of the subcommittees with responsibility for intelligence under the Appropriations and Armed Services committees. In 1963, Senator Eugene McCarthy of Minnesota proposed a "Joint Committee on Foreign Information and Intelligence."

Those who support the idea of a joint committee suggest it would promote more bipartisan, streamlined, and efficient congressional oversight of the IC and, therefore, better relations with intelligence agencies. The 9/11 Commission suggested such a committee be modeled on the JCAE, and that the committee have authority to report legislation to the floor, subpoena power, no term limits, and a subcommittee dedicated to oversight. A single committee could also enable Congress to have a more focused, integrated perspective of intelligence programs and strengthen Congress's accountability of IC performance, advocates say. A more efficient oversight structure appeals to those who believe the IC is already burdened by the multiple layers of oversight outside of Congress (the ODNI, and agency IGs also exercise oversight of intelligence programs, for example). Advocates have also argued that a joint committee would allow for greater depth and understanding in Congress on intelligence matters and therefore provide greater transparency of the IC without compromising security.

Opponents have argued that a joint committee would not be as effective in conducting oversight as the existing structure of committees in each chamber. Concentrating oversight of intelligence among a smaller number in Congress could limit Congress's perspective of intelligence programs that support multiple departments across the government. They assess the JCAE was not as effective as proponents have claimed. A joint committee also might not have the same degree of influence in either chamber as the HPSCI and SSCI do separately. Critics believe that a weak joint committee would encourage other committees to reassert jurisdiction over intelligence programs and consequently pose a greater risk of leaks of classified information. They also believe that the current structure of overlapping committee assignments for SSCI and HPSCI members with Foreign Relations/Foreign Affairs, Appropriations, Armed Services and Judiciary enable members to develop expertise and assess intelligence programs in context of their relation to the national security priorities and defense programs they support. Lastly, critics of a joint committee believe in the benefit of competitive analysis that the HPSCI and SSCI provide by virtue of their separate approaches to oversight.

Consolidate Authorizations and Appropriations

The second recommendation of the 9/11 Commission that may be germane to improving congressional oversight of intelligence was to give the HPSCI and SSCI both authorizations and appropriations authority. Those who support this measure maintain that it would increase the power and influence of the congressional intelligence committees on par with their importance to national security. They also believe it would improve integration of disparate IC agencies and enhance accountability of intelligence programs and managers to Congress. As the 9/11 Commission co-chair, Representative Lee Hamilton put it, "The budget is where you have power, and it's where you can make an agency or a department responsive to your interests. And if you do not have budget power, you do not have sufficient clout to bring about transformation."

Currently, the HPSCI and SSCI have jurisdiction over authorizations of the National Intelligence Program (NIP). Only the HPSCI has authorizations authority over the Military Intelligence Program (MIP), however. Senate rules allow the SSCI to provide informal recommendations on the MIP authorizations to the Senate Armed Services Committee (SASC) which has authorization authority over the entire Department of Defense budget including the MIP. In addition, House and Senate Appropriations, rather than the congressional intelligence committees, have jurisdiction over intelligence appropriations. Transfer of intelligence appropriations authority from the HAC-D and SAC-D to the HPSCI and SSCI, some maintain, would strengthen their understanding of intelligence programs and influence over intelligence policy. It could also enable a dedicated focus on intelligence programs that is impractical currently due to the time and emphasis spent on defense appropriations. Supporters of shifting appropriation authority to the intelligence committees, from the Defense Subcommittees of the Appropriations Committees, claim the latter are unable to give significant attention to the intelligence budget that represents approximately 11% of the annual national defense budget.

Those who oppose consolidating authorizations and appropriations in the HPSCI and SSCI (or under a joint intelligence committee) believe it is politically impractical, would create an artificial separation of intelligence programs from the defense programs they support, and concentrate too much power with the HPSCI and SSCI. Critics maintain that consolidation of authorizations and appropriations authority under the HPSCI and SSCI might actually weaken oversight by reducing the checks and balances within Congress that exist with broader jurisdiction over intelligence programs. In addition, several of recommendations that the 9/11 Commission believed would be more easily accomplished through a consolidation of authorizations and appropriations were later achieved without changing the rules.

Although a fundamental departure from Congress's traditional appropriations process, the Senate did introduce a measure to consolidate intelligence authorizations and appropriations in S.Res. 164 , during the 111 th Congress. This resolution, sponsored by Senators Russell Feingold of Wisconsin, John McCain of Arizona and Richard Burr of North Carolina, would have transferred appropriations authority from the SAC to the SSCI. The measure was introduced in the Senate but was not acted on following its referral to the Senate Committee on Rules and Administration.

Establish Intelligence Appropriations Subcommittees

A less sweeping proposal than the 9/11 Commission's recommendation to consolidate appropriations and authorizations under the congressional intelligence committees would be to establish intelligence appropriations subcommittees of the House and Senate Appropriations Committees. This would change the current structure by transferring jurisdiction over intelligence programs from the Subcommittees on Defense of the House and Senate Appropriations Committees to newly constituted Subcommittees on Intelligence. The Senate came close, on October 9, 2004, to establishing an Appropriations Subcommittee on Intelligence with overwhelming approval of S.Res. 445 . Section 402 of S.Res. 445 provided for a Subcommittee on Intelligence in the Senate that would "have jurisdiction over funding for intelligence matters." However, this measure was opposed by the Subcommittee on Defense, which would lose jurisdiction over the NIP, and has never been implemented.

In the House, H.R. 334 was introduced on January, 9, 2007, and referred to the Committee on Rules. H.R. 334 called for the establishment of a Subcommittee on Intelligence in the appropriations committees of both chambers.

In 2008, S.Res. 655 , To Improve Congressional Oversight of the Intelligence Activities of the United States , was introduced in the Senate. S.Res. 655 would also have established a Subcommittee on Intelligence, but it never received a vote. The resolution, like S.Res. 445 , proposed the creation of a Subcommittee on Intelligence in the Senate Appropriations Committee. Its sponsors suggested it fulfilled the spirit of the 9/11 Commission's recommendation for consolidating appropriations and authorizations authority. No further action was taken on this measure.

Critics of the current jurisdictions argue that the focus of the Defense Appropriations Subcommittee is the approximately 89% of the defense budget that is unrelated to intelligence. Proponents of an appropriations subcommittee dedicated to the intelligence budget suggest that it is both more politically viable than consolidating appropriations and authorizations authority in the HPSCI and SSCI and would significantly improve congressional oversight by enabling appropriators to dedicate time to understanding intelligence programs and conducting budget analysis.

Critics of this idea claim that it would complicate appropriations for intelligence systems that have defense applications or intelligence programs that provide significant support to combat forces. As with proposals for a joint intelligence committee, a Subcommittee on Intelligence would concentrate oversight of intelligence programs among a smaller group in Congress, thereby limiting perspective of programs that have a broad impact across the government. They also note that it would be impractical to disentangle MIP from broader DOD programs that are supported by military intelligence. Others have observed that it has been very difficult to change longstanding congressional appropriations rules and organization.

Establish a Stand-Alone Intelligence Appropriation

Originally—in 1947—the intelligence budget was placed within the appropriations for the Departments of State and Defense as a precaution against budget cuts, and revealing anything about the type of activity, agency, and total amount the government was investing in intelligence. Since 1952 the intelligence budget has been placed entirely within the defense appropriation under the belief that intelligence programs under the Department of State appropriation were more difficult to shield from cuts. Since 2007, however, following a recommendation of the 9/11 Commission, Congress has required the DNI to publish the NIP top line figure. Former DNI, James Clapper, has suggested that because there is no longer a requirement to classify the intelligence budget total, there is no longer a barrier to establishing a stand-alone NIP appropriation separate from the defense appropriation. This was also a recommendation of the 9/11 Commission. It would entail separating the NIP from the DOD budget.

Advocates of this measure believe it would facilitate long-term planning for intelligence programs, information technology (IT), and Intelligence, Surveillance and Reconnaissance (ISR) platforms, and provide a better means for the IC and Congress to oversee budget execution. Critics believe that this is effectively already the case with the inclusion of the NIP as a separate title in the Defense Appropriations Act. They also note that although the top line figure of the NIP (and MIP) are now unclassified, most of the intelligence budget is not, which would make any floor action on a separate intelligence appropriations bill difficult. Some within the IC believe that ensconcing intelligence programs within the annual DOD appropriation has allowed the IC budget to grow exponentially without much notice, offering programs greater protection from cuts. An independent intelligence appropriation might result in greater focus on programs that otherwise escape much scrutiny.

Provide Dedicated Intelligence Staff to HPSCI Members

As has been previously noted, the Senate, in S.Res. 445 (108 th Congress) amended S.Res. 400 —Senate rules governing the oversight of intelligence—in an effort to improve the oversight process, develop expertise, and promote bipartisanship. Among these proposed changes was to provide funding for a professional staff member to be assigned to each Member of the SSCI as the Member's "designated representative" on the committee. This measure was implemented to enable SSCI members to have their priorities better represented in the work of the committee.

Those who advocate for further reform of congressional oversight of intelligence, especially those who believe committees have suffered from a shortage of experienced staff, have suggested this as a feasible next step for the HPSCI with no obvious disadvantages other than the additional funding it would require.

Abolish Term Limits for HPSCI Members

Although the Senate, with S.Res. 445 (108 th Congress), abolished term limits for members of the SSCI, following the recommendation of the 9/11 Commission, the HPSCI's rules continue to limit members' terms to eight years. Term limits were intended to prevent members from becoming too close to the agencies they oversee. Critics, however, have noted the effect term limits have had in undercutting the experience among committee members that is necessary for effective oversight. Intelligence collection and analysis, organization and process has no public interest group or pool of expertise to draw upon. Expertise comes only through exposure to the IC, either within IC agencies themselves or through service on the committee.

Conclusion

There are two main, discernible perspectives on whether reform of congressional oversight of the IC is necessary. The first emphasizes the importance of the tradition of bipartisanship among members of the congressional intelligence committees as the single greatest determinant of effective oversight. Therefore the selection of intelligence committee members and the issues that drive their agendas influence the tone and the effectiveness of the committees' relationship with the IC. The second perspective places greater emphasis upon the organization and jurisdiction of pertinent committees—the intelligence, armed services, and appropriations committees in particular—and their established relationships with each other.

One scholar observed that change to congressional oversight of intelligence is especially difficult due to inertia (the resistance within organizations to change), turf (the unwillingness of congressional committees to surrender jurisdiction or reorganize), and politics (partisanship that makes more difficult efforts to establish common ground). She further noted that "History does suggest that there are game-changing junctures…And in those game- changing junctures, what makes the difference is leadership of individuals, either members of Congress or the President, and engaging with a public to force change on a change-resistant system."

Another observer noted a historical, oscillating pattern that

…is rather desultory police patrolling by members of Congress for most of the time…Not as energetic as one would like, until there is what I call 'a shock to the system,' and by that I mean a scandal of some kind…or a terrible intelligence failure such as what preceded the 9/11 events. And when you have this 'shock,' then suddenly lawmakers become very energetic…They go and conduct the investigation; and this has happened five times: It happened with the Church Committee; it happened with the Iran/Contra scandal; it happened with the Aldrich Ames counterintelligence case; it happened with the 9/11 mistakes that occurred; it happened with the wrong hypothesis about the WMDs in Iraq…What concerns me is what happens in between these fires, and how we can avoid these fires in the first place.

Critics characterize this change as "tinkering , " an approach against which the 9/11 Commission warned. Others view the cumulative change as enabling—eventually—functional, and politically pragmatic oversight of intelligence. Aside from what more might be done, a potential overarching question for Congress to frame the discussion is: Could additional changes to the rules governing congressional oversight of intelligence enable Congress to more effectively fund programs, influence policy, and legislate improvements in intelligence standards, organization, and process that would make the country safer?

Potential Questions for Congress

Is current congressional oversight of the IC "dysfunctional" as the 9/11 Commission alleged in 2004? What criteria would so indicate? Could oversight of intelligence be further improved such that the IC would, as a result, be more effective in support of national security? Would enhancements in oversight enable Congress to measure the IC's effectiveness more effectively? To what extent have oversight reform measures been effective in promoting (1) an apolitical IC; (2) committee experience; (3) committee capacity to handle workload; and/or (4) relations with the IC? Is the JCAE model an appropriate analogy for consideration of a joint congressional intelligence committee as some have maintained? Should Congress hire additional professional staff to serve on the select intelligence committees? Would parallel intelligence structures in each chamber be conducive to improved oversight? Should the HPSCI abolish term limits and adopt the model of ensuring the majority party not exceed the minority party's representation by more than one? Would a consolidation of authorizations and appropriations authority in the congressional intelligence committees consolidate too much authority or enhance congressional oversight?