The contemporary presidency: presidents, lawmakers, and spies: intelligence accountability in the United States.

This article has two objectives. As a means for understanding the contemporary state of intelligence accountability, the first is to present a thumbnail sketch of executive-legislative relations in this policy domain since the end of the Second World War. The second is to examine the chief obstacles that continue to vex efforts at maintaining supervision over America's secret agencies.

In the United States, as in every other nation, intelligence agencies have been treated as exceptions from the rest of government. They are hidden from public view, enjoy special access to high councils of government, and are given wide discretionary powers to guard against threats to the nation's security. In 1789, America's founders were acutely aware of how vulnerable the new republic was to the military might of European regimes and were willing to give intelligence officers loose rein (Knott 1996). Even as the United States grew stronger and more self-confident, this philosophy of intelligence exceptionalism endured.

Eras of Intelligence Accountability in Modern Times

Since the Second World War, intelligence accountability has moved through five major phases: an Era of Trust (1947-1974), an Era of Uneasy Partnership (1975-1986), an Era of Distrust (1987-1991), an Era of Partisan Advocacy (1992-2001), and an Era of Ambivalence (2002-).

The Era of Trust (1947-1974)

The modern U.S. intelligence "community"--a popular misnomer among intelligence officers that exaggerates the degree of collaboration among the member agencies-began with the creation of the Central Intelligence Agency (CIA) in 1947 (50 U.S.C. 401, the National Security Act). Today, the community has grown into 15 organizations with an aggregate budget of approximately $40 billion per annum.

The rationale for constructing a large apparatus of secret agencies during the Cold War--indeed, the most elaborate and expensive in history--was clear: the struggle against global communism sponsored by China and the Soviet Union required a strong intelligence shield. In the nuclear age, the United States might not survive a military surprise attack like Pearl Harbor; America's secret agencies would have to be especially robust and sharp-eyed.

This is not to say the CIA and its companion agencies faced no constraints. Most of their activities were reviewed by the president's National Security Council (NSC) and reported, at least in broad outline, to small supervisory subcommittees in the House and Senate (U.S. Senate 1976; Barrett 1998; Johnson 2003c). Yet the NSC allowed the Director of Central Intelligence (DCI), the nation's chief spymaster, broad discretionary authority to fill in the details; and the DCI's reports to Congress tended to be sketchy, perfunctory, and often unwanted by lawmakers reluctant to assume responsibility for risky and often unsavory clandestine operations abroad. Model democracy or not, the United States would follow the practice of other nations in placing its secret agencies outside the normal framework of government. If Americans were to be secure in a hostile world, the intelligence community would have to be free to move quickly and in secret, with minimal "oversight" restrictions.

The Era of Uneasy Partnership (1975-1986)

In 1975, this laissez-faire philosophy underwent a dramatic transformation. The shift resulted not from any sudden sea change in world affairs; that would not happen until the dissolution of the Soviet empire in 1991. Rather, the stimulus was a series of articles appearing in the New York Times in late 1974, accusing the CIA of spying on American citizens (Operation CHAOS) as well as toppling a democratically elected regime in Chile. In response, on December 31, 1974, lawmakers enacted the first major statute to establish closer supervision over the CIA: the Hughes-Ryan Act (Pub. L. No. 93-559; 32, 88 Star. 1804). This law strengthened executive and legislative control over covert action, the most aggressive form of intelligence, in which the CIA attempts to manipulate events abroad through secret propaganda, political, economic, and paramilitary operations (as occurred in Chile).

Turning in January 1975 to the even more worrisome charges of spying at home, White House investigators (the Rockefeller Commission) and lawmakers (the Church and Pike Committees) uncovered a startling number of intelligence transgressions in what is now remembered as the "Year of Intelligence." The inquiries revealed illegal mail openings, electronic surveillance, and international cable interceptions; intelligence files on over a million American citizens; improper drug experiments and the unlawful sequestering of prohibited chemical and biological materials; a master spy plan to conduct surveillance against Vietnam War dissenters in the United States (the Huston Plan); intelligence infiltration of a range of groups in American society, from universities to religious and media organizations; the incitement of violence among African-American factions; and questionable covert actions abroad, including assassination plots against foreign leaders (U.S. Senate 1976; Johnson 2004; Smist 1994).

These investigations had a profound effect. From 1975 on, America's support for an unbounded intelligence capability would have to compete with another value that had long invested the rest of the government, namely: liberty--the safeguarding of the people against the power of their own government, not just foreign governments. President Gerald R. Ford set up an Intelligence Oversight Board (10B) in the White House and signed an executive order, still in effect, to prohibit assassination plots (except in times of war). In 1976, senators created a Senate Select Committee on Intelligence (SSCI) and, in 1977, representatives followed suit with a House Permanent Select Committee on Intelligence (HPSCI).

Lawmakers established the precedent of serious, ongoing reviews of intelligence programs and budgets within the hearing rooms of SSCI and HPSCI. The judiciary committees also got into the act, demanding a continued jurisdiction over the FBI; and the armed services committees kept a tight grip on matters related to tactical military intelligence. Congressional staff experts pored over budgets, organized hearings, and, less formally, met with intelligence officers to evaluate their operations. With various degrees of enthusiasm, lawmakers posed questions at hearings, visited the secret agencies, and traveled abroad to speak with field operatives in U.S. embassies. As Treverton has noted (1990), the intelligence agencies had become a part of the regular government and now faced the full panoply of oversight procedures.

The Era of Distrust (1987-1991)

When congressional Democrats moved during the 1980s to curb covert action in Nicaragua (through the Boland Amendments, named after their sponsor, HPSCI chairman Edward P. Boland, D-MA), the Reagan administration turned to extraordinary means for achieving its regime-change objectives. The NSC staff created a secret organization known as "The Enterprise" to conduct privately financed covert actions outside the framework of the intelligence community and the constitutionally based appropriations process.

In face-to-face meetings with SSCI and HPSCI leaders, the staff-architects of this super-secret operation denied its rumored existence. In 1986, however, a Middle East magazine disclosed this attempt to bypass Congress and ushered in the Iran-contra affair (so-named because covert funding for the anti-Marxist contras in Nicaragua, supported by the Reagan administration, came partly from secret CIA weapons sales to Iran). Reeling from the rupture of trust that lawmakers had nurtured since 1973, intelligence accountability descended into the acrimony of public investigative hearings and proposals for new laws to tighten control over the intelligence agencies. Inter-branch comity slid backward.

The Era of Partisan Advocacy (1992-2001)

In the aftermath of the Iran-contra scandal, DCIs William H. Webster (1987-1991) and Robert M. Gates (1991-1993) attempted to heal the breach between lawmakers and the executive branch. According to one study, Webster "set a new standard in comity between the branches of government ... intelligence oversight had reached its full flowering" (Ott 2003, 81). Gates established a close relationship with SSCI chairman David Boren (D-OK). Nevertheless, the United States was about to enter into a period of political warfare on Capitol Hill, as the rise of strongly ideological lawmakers introduced a new level of discord in Congress. In 1994, the Republican Party achieved its goal of House and Senate majorities. The firebrand Newt Gingrich (R-GA) became Speaker of the House. "What is distinctive in the period after the Republican takeover in 1995," writes Aberbach (2002, 20), "is the level of oversight hostile not only to the intent and behavior of political appointees, but to the missions of many federal programs and agencies."

Once largely immune to the tides of politics (except for the hot-button issue of Nicaragua during the 1980s), intelligence soon proved vulnerable to the rising tide of partisanship. Lawmakers drifted into their separate party camps, casting votes and often verbal stones against the opposition. Knott attributes the polarization, in part, to a Republican wariness over President Bill Clinton's foreign policy initiatives and to "simple partisan payback for years of perceived Democratic hectoring of Republican presidents" (2000, 57). The Gates nomination for DCI in 1991 (his second bid for the office) was an important turning point, as Republicans rallied behind President George H. W. Bush's choice "as a matter of political loyalty and obligation" (Ott 2003, 82-83). Even though Chairman Boren, a Democrat, backed Gates, the hearings and final vote were racked with partisan bickering. Another confirmation hearing in 1997--the DCI candidacy of Anthony Lake, President Clinton's national security adviser--also produced a partisan firestorm and Lake eventually withdrew his name. The Lake hearings, characterized as "vitriolic" by a former SSCI staffer (Ott 2003, 87), were the most bitter public exchanges among lawmakers in the Committee's history.

With an occasional exception, as in the case of SSCI chair Richard C. Shelby (R-AL) in his final years on the Committee, Republican members of the panel proved less gimlet-eyed reviewers of intelligence programs than uncritical advocates. Nor did many Democrats cast a critical eye. As even one of the more dedicated overseers, SSCI Chairman Senator Bob Graham (D-FL), conceded, "... we probably didn't shake the [intelligence] agencies hard enough after the end of the Berlin Wall to say: "Hey, look, the world is changing and you need to change the ways in which you operate ... new strategies, new personnel, new culture.' We should have been more demanding of these intelligence agencies" (Graham 2002).

The Era of Ambivalence (2002-)

In the midst of the partisan squabbling that plagued the intelligence committees since the end of the Cold War, terrorists struck the United States on September 11, 2001. Now the committees faced a much more serious matter than party differences: the intelligence agencies had flailed to protect the nation and, by implication, so had lawmakers on the oversight panels. The members of the two intelligence committees formed into an ad hoc Joint Committee to investigate the failure, holding extensive hearings in 2002 and 2003. Much of the time the Joint Committee was on the defensive, experiencing first a brouhaha over decisions made by its first staff director (who was fired), followed by accusations of Committee leaks. Members allowed an investigation of their committee by the FBI, one of the agencies it was supposed to be investigating. The Committee did manage, however, to highlight significant mistakes made by the intelligence agencies, especially the lack of communication between the CIA and the FBI; but, after its slow start, time ran out and members had to call for the creation of a special commission to carry on their work. In response to this request, Congress and--reluctantly-the president jointly appointed members to a "9/11 Commission" in 2003, led by the former Republican governor of New Jersey, Thomas H. Kean (and known as the Kean Commission).

In the aftermath of the 9/11 terrorist attacks, a new attitude toward intelligence accountability began to dominate the White House and Congress. President George W. Bush quashed a report on intelligence reform prepared for him by Brent Scowcroft, who had served as national security adviser under both Presidents Gerald R. Ford and George H. W. Bush. Scowcroft had recommended sweeping changes, including the shifting of key military intelligence entities away from the secretary of defense (secdef) toward the full (not just titular) budgetary and personnel control of the DCI. This went too far for the president, who was no doubt lobbied vigorously by the secdef to reject the proposed restructuring. So apparently did all other proposals for intelligence reform, because none were announced by the White House.

Finally, in April 2004, the public pressure on the president to testify before the Kean Commission grew too strong to ignore. Behind closed doors and with Vice President Dick Cheney at his side, Bush spent three hours with the panel. Afterward, the president conceded in a brief press conference--two and a half years after the September 11th attacks--that "now may be the time to revamp and reform our intelligence services" (Milbank and Allan 2004). He mentioned no specifics, however, and the topic again seemed to fade away, at least so far as the White House was concerned.

On Capitol Hill, some members of the Joint Committee (chiefly the Democrats) chided the secret agencies for their mistakes preceding the 9/11 terrorist attacks. Even SSCI's new chairman, Pat Roberts (R-KS)--normally a reliable champion of GOP presidents and the CIA--complained in 2004 that no one in the intelligence community had "been disciplined, let alone fired" for the failures surrounding the attacks and the subsequent war in Iraq. He said that the "community is in denial over the full extent of the shortcomings of its work" (Drogin 2004). Moreover, HPSCI Chairman Porter J. Goss (R-FL) shepherded through his committee in 2004 a toughly worded report that chastised the intelligence community for its poor management of human spying operations. Goss may have stepped up his criticism of the CIA in an attempt to persuade Democratic senators to support his confirmation, should the president select him to assume the DCI's mantle in the wake of George J. Tenet's retirement in the summer of 2004.

For the most part, however, the Joint Committee appeared (like the White House) reluctant to move aggressively toward major intelligence reform. Accountability on SSCI and HPSCI came to mean rallying behind the secret agencies in the war against terrorism and in support of operations in Iraq--laudable enough goals, but only part of an overseer's responsibilities. According to an experienced newspaper reporter, the relationship between the oversight committees and the intelligence community had "degenerated into a mutual admiration society for secret agencies" (Gertz 2002, 113).

Major Obstacles Hindering Intelligence Accountability

Individual Motivation

Nothing is more important to effective accountability than the will of individual lawmakers and executive overseers to engage in a meaningful examination of intelligence programs. "Determination is the key. Members [of Congress] have to be willing to break arms and legs," emphasizes a staffer with three decades of experience on the Hill (Johnson 2003b), "but not too many are willing." In 2003, a former special assistant to DCI William J. Casey of the Reagan administration urged former lawmakers and other officials on the Kean Commission to pursue their responsibilities with utmost seriousness, in a "helicopter-raids-at-dawn, break-down-the-doors, kick-their-rear-ends sort of operation" (Meyer 2003)--although, ironically, no DCI had been more resistant to accountability than Casey.

The day-to-day reality of intelligence accountability has been starkly different than these tough words. Flaccidity has been the hallmark. "Congress is informed to the degree that Congress wants to be informed," former DCI William E. Colby stressed, noting that several overseers had expressed little interest in briefings from the CIA (U.S. House 1983, 29). Recalled another DCI, Admiral Stansfield Turner: "I believe the committees of Congress could have been more rigorous with me [during the Carter administration] ... it would be more helpful if you are probing and rigorous" (U.S. House 1987, 66). Several lawmakers, though, hold quite a different view, preferring the role of advocate over adversary. For them, the president and the DCI know best in this sensitive domain; better to follow their lead than to second-guess and perhaps harm this nation's national security. In their view, efficiency trumps accountability--especially in the war against terrorism.

Institutional Comity

Vital for effective accountability, too, is the cooperation of the White House, the Justice Department, and the intelligence agencies in working with Congress. Lawmakers only know about intelligence activities to the extent that the executive branch permits them to know (Jackson 1990, 115; Snider 1997). As Currie puts it, oversight works "only if there is honesty and completeness in what the members of the intelligence community tell their congressional overseers" (1998, 203). Yet this sine qua non is often missing. In 1975, the Church Committee ran into one roadblock after another erected by the Ford administration to slow the panel's progress (Johnson 1986). On one occasion, a Defense Department truck dumped enough documents on the Committee's doorstep at the Dirksen Office Building to keep it busy for weeks--without a single significant paper in the whole lot.

More recently, the Joint Committee complained in 2002 about stonewalling by the Bush administration. DCI George Tenet tried to put the Committee on the defensive in public hearings with edgy responses to questions about 9/11. Allotted 10 minutes to speak, he went on in a "somewhat defiant tone" for 50 minutes, despite a request from co-chair Graham that he abbreviate his remarks (Guggenheim 2002, A1). Tenet also refused to declassify information the Committee asked to make public; and, just before a scheduled hearing, he often withdrew intelligence witnesses the Committee had called to testify. "Witnesses are requested, refused, requested again, granted, and then--at the last minute--refused again," groused a Committee member on the Senate floor (Shelby 2002).

When word leaked that the staff had cautioned members about the likely elusive responses of a scheduled CIA witness, Tenet blasted the Committee for prejudging the veracity of CIA officers. Yet, in the past, some intelligence officers had indeed misled Congress, even under oath, during the Iran-contra investigation (U.S. Congress 1987, 121-28). Moreover, according to a senior staffer, the CIA "flat lied" to SSCI in 1995-1996 when the Committee attempted to investigate its ties with a controversial military officer in Guatemala (Johnson 2003a).

With a growing dissatisfaction over Tenet's belligerent posture before the Joint Committee, Graham "toughened his stance toward the intelligence agencies when the Administration began to stonewall" (Johnson 2002a). When the DCI refused to provide the SSCI with CIA documents on Iraq and then failed to appear at a closed Joint Committee hearing, Graham accused the CIA of "obstructionism" and said that its behavior was "unacceptable" (Lewis 2002, A12). A former Hill staffer concluded that the CIA had "stuck its fingers in the eye of the oversight committee, which--under Graham-was waking up very late to the fact that it is being rolled" (Johnson 2002b). Though Graham and Shelby were clearly agitated, most of their colleagues seemed to adopt a more benign view of the intelligence community's behavior and preferred to focus on the terrorist threat.

Any discussion of executive branch cooperation must address the issue of excessive secrecy. As former HPSCI chair Lee H. Hamilton has stated (U.S. House 2001), "... the great task is to strike a balance between the need to ensure accountability and the intelligence community's need to gather and protect information. It's the balance between oversight and secrecy." In democracies, the presumption is that openness leads to better decision making and a more informed electorate. Yet the second Bush administration has shifted the balance far toward the side of secrecy. In 2001, the number of classification actions increased by 44 percent over the previous year, to a record 33,020,887 instances (Information Security Oversight Office 2002).

Throughout 2002, the Justice Department routinely snubbed queries from the Senate Judiciary Committee (Eggen 2002, A4); and, for over a year, Attorney General John Ashcroft sidestepped every request from the Committee to appear for hearings since his brief testimony before the panel on March 4, 2003. A reporter further observed that, "exhibiting a penchant for secrecy that has been striking," Ashcroft issued a directive in 2003 that encouraged federal agencies to reject requests for documents under the Freedom of Information Act (Clymer 2003, A1). In an echo of the Judiciary Committee, the chairman of the Senate Armed Services Committee, the usually reliable administration supporter John Warner (R-VA), grumbled about being left "out of the loop" on significant defense and national security issues. "I will not tolerate a continuation of what's been going on the last two years," he warned (Novak 2003).

Conclusion

The experience in intelligence accountability since 1975 has been largely a story of discontinuous motivation and ad hoc responses to scandals. What are the ingredients for better oversight? Of foremost importance is greater devotion to "police patrolling" by executive and legislative overseers--routine day-to-day checking on programs, instead of waiting for "fire alarms" to sound in the night (McCubbins and Schwartz 1984). In the closed world of intelligence, fire alarms are unlikely to erupt in the media until a major scandal or failure occurs.

Overseers need to pay closer attention to a wide range of intelligence activities, including the merits of the intelligence community's threat assessments (as underscored by the controversy over whether weapons of mass destruction existed in Iraq on the eve of the U.S.-led invasion in 2003); its balance between human and technical collection operations; its data-mining capabilities; the assumptions in its analytic reports; charges of intelligence politicization; and efforts to achieve institutional and computer integration in the federal government, as well as with state and local counterterrorism units. A serious approach to accountability would also give closer scrutiny to covert action, particularly the unprecedented recent efforts by the Department of Defense to develop its own capabilities in this high-risk domain.

One would hope to see, too, a renewed focus on counterintelligence: appraising the merits of an MI5-like unit in the United States, reviewing the current efforts to guard against foreign "moles," and establishing firewalls against hostile penetrations of newly integrated intelligence computers. Further, lawmakers and the president must examine more closely the arguments in favor of greater authority for the DCI, as a means of overcoming the powerful centrifugal forces in the intelligence community. On the civil liberties side, overseers must rework the flawed provisions of the Patriot Act of 2001 (P.L. 107-56), clarify the procedures of the Foreign Intelligence Surveillance Court, and shore up protections for the rights of law-abiding Americans of Middle Eastern and South Asian heritage. Vital, too, are measures to make the government less secretive, including more open hearings in Congress and fewer classification actions by the executive branch.

The time has never been more propitious for reform. Enormous incentives exist for improving intelligence--above all the prevention of another major terrorist attack. If overseers in the executive and legislative branches will address the deficiencies examined here, the United States has a chance of achieving a more perfect balance between security and liberty.

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Loch K. Johnson is Regents Professor of Public and International Affairs at the University of Georgia. He serves as editor of the international journal Intelligence and National Security, and his most recent book is Bombs, Bugs, Drugs, and Thugs: Intelligence and America's Quest for Security.