SFRC Access to Intelligence Information During Force Authorization Debate

On Wednesday, the Senate Foreign Relations Committee held a hearing on the Administration’s proposed strategy to defeat the Islamic State featuring Secretary of State John Kerry.  Ryan wrote about the chilly reception, from both sides of the aisle, Secretary Kerry received as he advanced the Obama Administration’s theory of existing statutory authority under the 2001 AUMF to conduct military operations against the Islamic State.

I write separately to highlight an exchange about congressional oversight and exclusive intelligence committee jurisdiction that raises significant issues of impairment of core legislative functions. The key concern is that the SFRC is being asked to legislate on matters of war and peace without being adequately briefed by the administration on intelligence activities. The source of the problem lies not only in the Executive Branch but also in the structure of the committees.

An important  exchange occurred when Sen. Mark Udall (D-CO) awkwardly asked Secretary Kerry a question based on public reports that there has been a covert operation to train-and-equip the non-Islamic State Syrian resistance groups fighting the Assad regime that the Administration describes as “moderate.”  Specifically, Sen. Udall asked Secretary Kerry:  “[W]hat has been the effectiveness over that last two years of this covert operation, of training 2-to-3,000 of these moderates?”

Secretary Kerry demurred as to the existence of any covert activity and indicated that, if there were any such activity, it could be discussed only in a classified session.  To be fair to Sen. Udall on the classification issues, earlier in the hearing Secretary Kerry had said:

That’s why the President is asking for that open training under Title 10, in order to try to build that up as fast as possible. Our estimates are there are now currently tens of thousands still of fighting members of the opposition. And if you can get more people better trained — and by the way, every month that I have been secretary of state, we have been adding to the effort of what we are doing with respect to the Syrian opposition, and most of that needs to be covered in a classified setting, as you know. But our assessment is that we can and, given the urgency of the situation, begin to move this program to a greater degree.

Secretary Kerry’s invocation of Title 10, along with references to “open training,” a classified setting, and moving “this program to a greater degree,” leave the impression that his reference point of contrast is Title 50 activity.

SFRC Chairman, Sen. Bob Menendez (D-NJ), then noted that the SFRC would seek as “robust intelligence briefings” as possible.  He then referenced the problem presented by the exclusivity of intelligence committee jurisdiction over sources and methods related to covert operations:

However, to the core question that you raise, this is a problem that both the administration, as well as the Senate leadership must be willing to deal with because when it comes to questions of being briefed on covert operations, this committee does not have access to that information. Yet it is charged with the responsibility of determining whether or not the people of the United States should, through their representatives, support an authorization for the use of military force.

It is unfathomable to me to understand how this committee is going to get to those conclusions without understanding all of the elements of military engagement, both overtly and covertly. And so I am foursquare with you, but this is a challenge – I’ll call it for lack of a better term a procedural hurdle – that we’re going to have to overcome if we want the information to make an informed judgment and to get members on board.

Sen. Menendez raises a legitimate concern that goes to the heart of a problematic structure of congressional committee jurisdiction.  Sen. Udall’s substantive question – even if inappropriate for public discussion – is completely valid.

Assume, for a moment, that the public reports are true that the President issued a finding authorizing the Intelligence Community to engage in a covert operation to train-and-equip favored Syrian opposition forces.  The President “welcomes” congressional authorization, and seeks congressional appropriations, for his new strategy – one which seeks a visible and acknowledged train-and-equip mission.  During the hearing, Secretary Kerry argued it is “critical that Congress authorize the opposition train-and-equip mission when it comes to the floor.”

Information about any previous covert train-and-equip effort is a natural part of the Senate authorization inquiry.  It would help establish a baseline of the groups’ operational capacity, it would shed light on the efficacy of such a strategy, and it would assist the Senate in making determinations about the relative emphasis of various implements of national power.

Secretary Kerry referred to the President’s “holistic strategy.”  Sen. Menendez described it as a “comprehensive, holistic strategy that purports to integrate all the tools of U.S. power to defeat ISIL.”  These are the code words of recent national security strategy thinking about integrated power, along the lines advocated by the Project on National Security Reform.  Thus, the Administration presumably seeks to bring to bear our diplomatic, military, development, financial, and intelligence powers.  In addition, the Administration seeks to align with certain indigenous fighters and a coalition of other nations.

A congressional debate about authorization of a proposed strategy will necessarily evaluate the relative elements of power.  The United States could go with a comprehensive approach led by military airstrikes (as called for); it could emphasize diplomacy (like the ultimate approach to Syrian chemical weapons); it could conduct its effort by the primary means of covert action (like, for example, Afghan resistance to the Russian invasion).  Sen. Udall’s interest in any prior covert efforts integrally relate to the questions presented to the Senate during a debate over authorization and resources.

However, as Sen. Menendez notes, SFRC’s jurisdiction presents a problem in the face of Senate Select Committee on Intelligence (SSCI) exclusive authorizing and legislative powers over the Central Intelligence Agency and the Director of National Intelligence.  (Unlike SSCI, the House Permanent Select Committee on Intelligence (HPSCI) has a further provision granting it power to “review and study on an exclusive basis the sources and methods of entities” in the Intelligence Community.)  Thus, Sen. Menendez raises a real concern, grounded in experience, that the Intelligence Community will balk at briefing SFRC members on jurisdictional grounds about covert operations.

The present intelligence committees were designed during the reform movement of the 1970s to provide more vigorous oversight and accountability to covert efforts run amok that came to light during the Church Committee era.  They were also designed to give confidence to a wary executive branch that they would protect national secrets as contemplated in the National Security Act.  While there is plenty of criticism of their oversight rigor, oversight as a means of accountability and restraint has been at the center of discussion.

While congressional oversight properly may serve as an accountability check for executive branch overreach or misconduct, the core constitutional rationale for the power of legislative inquiry is to inform policy judgments.  As the Supreme Court observed in McGrain v. Daugherty: “A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”

Here, congressional consideration of an authorization of military force is not served by exclusive intelligence committee jurisdiction provisions.  Knowledge of facts relevant to the authorization and resources questions by SSCI membership alone would be insufficient for purposes of SFRC’s determinations.  In light of the Senate’s consideration of matters of war and peace, I hope that Sen. Menendez’s request for robust and appropriate intelligence briefings for SFRC members is honored. This will be especially important if the Senate turns to consider an authorization for the use of military force against the Islamic State in the coming weeks. 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.