There are big changes coming to the congressional intelligence committees in the 114th Congress, with new leadership in both the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI). Incoming chairmen will be defining their own agendas that set them apart from their predecessors and help the intelligence community (IC) confront evolving challenges. But the first priority for the new intelligence committees should be restoring the public’s trust in their oversight of America’s intelligence agencies. That trust is severely lacking today.
Because the general public cannot have access to national security secrets, we delegate oversight responsibilities to the courts and Congress—most prominently, the Foreign Intelligence Surveillance Court (FISC) and the two intelligence committees. There are other oversight bodies—the President’s Intelligence Advisory Board and the Privacy and Civil Liberties Oversight Board are the two that spring to mind—but these are stopgaps and secondary. The courts and Congress are supposed to serve as the primary check against intelligence overreach and abuse. For this reason, trust in these institutions is even more important than trust in the IC itself. It is one of the foundations upon which the rest of our intelligence activity depends.
In recent years and especially since the Snowden disclosures began in June 2013, we have seen an erosion of public trust in both the IC and in the oversight bodies. This is reflected in the commonly heard “rubber stamp” critique of the FISC. The same basic charge has been levied against the intelligence committees regarding their oversight of activities like drone strikes and surveillance.
This lack of trust threatens not just perceptions of the committees but also America’s intelligence capabilities. For example, if the public had more faith that committees were conducting strong, invasive drone oversight, there would be less debate about issues like “signature” strikes and casualty counts. Instead, the lack of faith in drone oversight fuels critique of the actual drone program.
Explanations for this lack of trust vary depending upon whether one is generally supportive or critical of the activities in question. Critics argue that the IC and oversight bodies have not been deserving of trust, that the community overreached while the oversight bodies allowed them to do so. Supporters point instead to the system of secrecy that limits transparency into the important work of the IC and checks aggressive oversight by the FISC and the intelligence committees.
I struggle to decide where to come down on the critique of Congress. In my experience, the members and staff working on these committees are some of the sharpest, most knowledgeable, and most well-intentioned individuals on the Hill. Because their legislative activities are quite limited, they spend much of their time performing oversight and they take these responsibilities very seriously. At the same time, their brand of oversight is certainly different and less aggressive than that occurring, for example, on the House Oversight & Government Reform Committee.
But regardless of particular views, it is undeniable that the trust deficit exists.
Secrecy is a vulnerability for our intelligence efforts if it results in a systematic lack of trust and a backlash that might undermine intelligence capabilities. This is the fundamental problem the IC and the oversight bodies now face. The IC, and especially the Office of the Director of National Intelligence (ODNI), appears to have recognized this problem and is taking steps to address it. The ODNI has declassified legal opinions and documentation about surveillance programs, which provide a degree of transparency into both the IC and the FISC.
Although members of Congress have supported moves to increase IC transparency, they have not taken comparable steps to increase their own transparency or to rebuild trust in congressional oversight. Nor do they appear to clearly recognize that this is even a problem.
The public has no body of material with which to judge the trustworthiness of the congressional intelligence committees or of Congress in general. I have two suggestions to address this issue.
First, the committees need to find ways to show the public that they are asking tough questions of the intelligence community. Public hearings provide the best mechanism to do that, and the committees should hold a larger number of those hearings on the full spectrum of intelligence-related issues.
Some on these committees would likely advocate a more traditional strategy, one that involves holding the line against calls for greater congressional transparency. That is the wrong approach. If legislators want to the safeguard and strengthen intelligence capabilities, the most effective thing they can do is hold hearings and allow the public to see their committees in action.
To be sure, there are some issues that shouldn’t be discussed in a public setting. And committee members would have to be diligent to ward against disclosure of classified information. But there are also plenty of issues that can be raised at an appropriate level of detail without the use of classified information. Holding public hearings with outside experts might be an initial step in the right direction that would allow for greater public engagement without risking the revealing of classified information.
Second, the intelligence committees need to do a better job educating their colleagues. Members outside the committees are woefully unprepared to vote on intelligence issues. This is clear from last year’s surveillance disclosures.
Documents provided to Congress about the NSA’s bulk phone records collection program indicate that the Administration was quite clear about its surveillance activities and about the ways certain FISA statutes were being interpreted. While there appears to be one case in which these documents were not provided by HPSCI to the rest of the House, members of Congress were generally provided with sufficient opportunity to know about the extent of the country’s surveillance activity. Nonetheless, they did not take advantage of those opportunities and do not appears to have known what they were voting for when they reauthorized certain FISA authorities.
Simply put, outside of the intelligence committees, members of Congress don’t know enough about intelligence to deserve trust. While members have an obligation to get smart on intelligence issues, they do not have the time or incentives to do so. Actors outside of government can help educate—Overt Action, a new online platform for intelligence professionals to engage in public debate, is running a series of pieces over the next few weeks highlighting issues that should be on the legislative and oversight agenda. But this is a problem the intelligence committees must solve themselves. They are the gateways through which information about intelligence activities flows from the Executive Branch, and they need to redouble efforts to engage with the rest of Congress.
Our current system of intelligence oversight will only work if the public is provided enough insight to know that oversight actually occurs. Of course, that creates a challenging balancing act for Congress. But the new intelligence committees’ leadership must work to find that balance or they will be doing the IC—and the country—a disservice.