Ten National Security Oversight Issues to Watch in 2016

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

It was a tumultuous 2015. The fight against the Islamic State, Syrian refugee crisis, and the Paris and San Bernardino terrorist attacks brought national security issues to the center of American political discourse. The public’s attention on security will further encourage Congress to forge ahead with ongoing investigations and initiate new inquiries in 2016. Below, I offer 10 issues to watch in 2016 along with a few observations about the dynamics of the oversight environment in a presidential election year.

This list is not intended to be exhaustive, and new issues will surely present themselves. (Or, in Rumsfeld-speak, I can’t be responsible for the unknown-unknowns.)

First, the presidential and congressional elections cycle will shape the oversight environment. Republicans still hold the House and Senate gavels and therefore control the oversight agenda. Like last year, committees’ oversight agendas will reflect Republican policy preferences, political incentives, and partisan themes. Congress will address many sober allegations of fraud, waste, and abuse in our national security apparatus. There will also be many other issues ripe for congressional oversight that remain under-addressed. However, Republican committee chairs will be sure to call hearings and conduct investigations that help develop themes of Democratic weakness on national security and softness on counterterrorism that might strengthen party electoral narratives.

Second, like the legislative calendar overall (see here and here), the congressional oversight calendar will be truncated due to the election. Congress will barely return to serve after the August recess. All year, Members will be focused on their own campaigns, as well as any surrogate obligations for others on the ballot.

Third, the media environment will become less hospitable to oversight stories and fact-intensive scandals as we get deeper into 2016. Journalists tend to consume information differently in election years versus non-election years. In fact, this process has already started. Media outlets that breathlessly covered stories about Benghazi and Hillary Clinton’s email use in early 2015 started to accept the Clinton campaign’s political witchhunt talking points after Rep. Kevin McCarthy’s explicitly took credit for the negative effect the congressional investigation was having on Clinton’s poll numbers.

Therefore, while the presidential and congressional campaign cycle incentivizes politicized oversight, the calendar and media environment will mute the electoral effect of oversight. In boxing terms, there will be less time in each round, less opportunity to land punches, and increasingly skeptical scoring judges.

Without further ado, the 10 oversight issues to watch:

(1) Islamic State & Counterterrorism Oversight. This will be a hot topic for substantive and political reasons. The United States is intensifying its operational tempo against ISIS. Law enforcement and intelligence agencies are investigating the San Bernardino terrorist attack for advance warnings and ISIS links. Such complex and expensive activities call out for oversight by congressional policymakers. In November, President Obama ordered an inquiry into intelligence on the ISIS threat. More recently, Congress initiated a multi-committee investigation of allegations that intelligence was manipulated to make the ISIS threat appear less severe to policymakers.

(2) The Benghazi Attack & Hillary Clinton’s Email Use. The Benghazi investigation will continue well into 2016. The Benghazi Committee took testimony from former senior State Department officials throughout December, and has scheduled former CIA Director David Petraeus for January 6. Several events took some of the political bite out of the investigation, including McCarthy’s gaffe and Bernie Sanders’s exclamation that “we’re all tired of hearing about your damned emails.” However, the political incentives for Republicans to simultaneously portray Clinton as weak on terrorism and untrustworthy are undeniable. In addition, court-mandated FOIA releases of Clinton State Department emails in the first quarter of 2016 could provide some oxygen to this faltering investigative flame.

(3) Government Hacks. Hacks of government agency data are happening with unfortunate frequency, and they present a host of oversight issues such as damage assessments, cybersecurity infrastructure and policy, victim notifications and redress, perpetrator investigations, and mitigation measures. This year, hacks of the Internal Revenue Service, Office of Personnel Management (OPM), and CIA Director John Brennan’s AOL account made the Wired’s “11 biggest hacks” of 2015. The OPM hack had particular national security implications because it targeted those with national security background investigations. (Disclosure: Like 21.5 million of my closest friends, I am a victim of the OPM hack.) In 2016, Congress will continue to call agencies to account for their cyber vulnerabilities.

(4) Iran Deal Oversight. After Congress failed to remove the President’s authority to enter the Iran nuclear agreement, opponents vowed to conduct vigorous oversight of the implementation of the plan. Earlier this month, Sen. Bob Corker, Chairman of the Senate Foreign Relations Committee, outlined a “rigorous program” of oversight. I anticipate there will be significant oversight activity in the House as well.

(5) Guantánamo Closure. President Obama has renewed his long-stalled effort to close the detention facility at Guantánamo Bay, Cuba. Around the time of the Paris attacks, the administration delayed release of its plan to close the facility. Throughout the Obama administration, Congress has thrown roadblocks in the way of the President’s closure policy. In 2016, committee chairs who oppose closure will likely conduct oversight designed to highlight detainee recidivism as well as the significant costs of new facilities and relocation.

(6) Inspector General Document Access. As I addressed in a previous post, congressional leaders and Inspectors General are upset about an Office of Legal Counsel opinion that construes several statutes as limitations on IG access to certain agency records. Congress and IGs often have a symbiotic relationship in matters of executive branch oversight. Here, IGs have an incentive to fan congressional outrage both to enhance the prospect of a legislative fix and to put pressure on agencies to produce more records. Congress, in turn, can add pressure to the executive branch through hearings and legislation to cooperate with IGs and congressional requests. Further, partisan opponents can use the IG dispute to portray the Obama administration as secretive and unprincipled.

(7) US Secret Service. The Secret Service has been under significant scrutiny in light of multiple security lapses at the White House complex and the revelation that agents engaged Colombian prostitutes during a presidential trip. Earlier this month, the House Oversight and Government Reform Committee issued a rare bipartisan committee report titled The United States Secret Service: An Agency in Crisis. Since that report was issued, news outlets widely reported that an agent had his badge, gun, and radio stolen.

(8) Government Surveillance. Government surveillance — from above, within machines, in banking, on phones, and across social networks — has become the vanguard of the contested dividing line between the public and private spheres of modern civil society. At present, this contest plays out in all three branches of the federal government. The current Congress has not demonstrated a significant public appetite to conduct rigorous and skeptical oversight of government surveillance. However, a court decision regarding civil liberties, or the facts of a terrorism investigation, or some other unforeseen information could bring this issue to the fore of congressional oversight.

(9) Senate Select Committee on Intelligence “Torture Report.” A number of commentators addressed the one-year anniversary of the SSCI Democrats’ report on rendition, detention, and interrogation practices of the Central Intelligence Agency. Any move toward “accountability” for the officers involved in the alleged activities is unlikely but there could be other fallout, including further declassifications, related FOIA releases, or leaks that shed new light on the report in the coming year.

(10) Operation Fast and Furious & Holder Litigation. The House of Representatives filed a civil action to enforce the congressional subpoenas that served as the basis of former Attorney General Eric Holder’s contempt citation. The case arose from the congressional investigation of mishandled gun trafficking investigations on the Arizona-Mexico border. The case has been pending for several years after some initial rulings, and a more consequential ruling to separation of powers could come at any time. 

About the Author(s)

Andy Wright

Professor at Savannah Law School, Former Associate Counsel to the President in the White House Counsel’s Office Follow him on Twitter (@AndyMcCanse).