The start of a new Congress wipes the slate clean for the House of Representatives, which must adopt new rules, establish new committees, and write new legislation. One major opportunity for reform is in the House Permanent Select Committee on Intelligence (HPSCI), which suffered grievously under the mismanagement of Rep. Devin Nunes and is now under the leadership of Rep. Adam Schiff.
Compared to the House, the investigations and oversight of Senate Select Committee on Intelligence (SSCI) have been seen by many as a more effective (if still imperfect) approach to handling sensitive national security topics. While the leadership of that committee deserves some credit, the work of that committee is greatly enhanced by how the committee is staffed. Each member of the Senate Intelligence Committee is provided a staff designee — a person that they hire and fire that receives the highest level of clearance and supports that member’s national security work. This is viewed as essential because that staffer represents the perspective of their employing senator, as compared to traditional committee staff who are ultimately responsible to the chair or ranking member of the committee.
Members of HPSCI have taken note. Back in 2016, eight Democratic committee members began pushing to have a member of their personal staff receive a high level of clearance — known as Top Secret Sensitive Compartmented Information (TS/SCI) — to support them in their work. While Members of Congress are permitted to have two of their personal office staffers receive Top Secret clearance, many briefings take place and documents are classified at the higher TS/SCI level, which means those staffers cannot assist their bosses on many matters.
Members of HPSCI must rely on committee staff to support them on highly classified matters, and those staff are hired by the chair and ranking member. No matter how professional, the staff have an inherent conflict of interest. Such concerns are heightened when the executive branch is in conflict with the committee and strives to undermine its authority.
A most economical approach would be to allow each member of that committee to identify a pre-existing member of their personal staff as appropriate to receive a TS/SCI clearance. The newspaper Roll Call described now-Chairman Schiff’s favorable response to this approach, saying the “idea is appealing and he is exploring it,” even while expressing the caveat that this would not automatically grant staff access.
The appropriate time for Rep. Schiff to formally adopt this policy is now. HPSCI has not yet held its organizational meeting for the 116th Congress, during which it adopts its committee rules. Nor has it made its formal request for funding for the committee, a proposal which will be made by the chair and ranking member on behalf of the committee in March. Rep. Schiff should propose this policy as part of his committee rules and include it in his funding proposal.
HPSCI isn’t the only committee where this conflict arises. A surprising number of committees have jurisdiction over matters that the executive branch has deemed classified. In fact, all members of Congress must be informed about and vote upon matters that concern matters the executive branch deems classified. With the investigation of foreign interference in the U.S. election coming to a head, and an increasing menu of national security-related issues before Congress, it is imperative that all members be able to review and understand matters that are highly classified. Because the documents to review can be voluminous and the briefings complex, all members must have a staffer they can rely upon to assist them with their review and to provide confidential counsel.
This is not a new issue. In 1978, CIA Director Stansfield Turner corresponded with House Speaker Tip O’Neill as part of an effort to decrease the number of congressional staff with TS/SCI clearances. At the time, 431 staffers had top clearances. The Speaker and CIA Director agreed on an arrangement where clearances were granted based upon a quota system for committees plus additional clearances for certain personal office staffers. Here is the crux of what CIA Director Stansfield wrote:
As you know, staff personnel of our Congressional oversight committees have been granted access to highly sensitive compartmented intelligence information. However, due to the broadening of interest in foreign intelligence within the Congress, access has been granted to staffs of other committees….
Where there is a clearly justifiable need, Members of Congress are given access to sensitive intelligence information. Personal staff of Members, however, are denied such access and I have reaffirmed that policy. The only exception, which I am initiating at this time, is to grant selected key staff members serving in the offices of the Leadership of the Congress access since their principals receive sensitive intelligence on a regular basis and require staff assistance. This will include designated personal staff members from the staffs of your offices, the President Pro-Tempore of the Senate, and Majority and Minority Leaders of both the House and Senate. (emphasis added)
There can be no doubt that members of HPSCI “receive sensitive intelligence on a regular basis and require staff assistance,” which is the express basis upon which personal staff members of leadership are granted clearance.
In the course of those negotiations, the CIA Director of Security wrote “that the DoD should make every effort to reduce the number of clearances now credited to them… we must set an example within the Executive Branch before we can insist that the Legislative Branch reduce their clearances.” As readers here know, while Congress restrained the numbers of its personnel who could access this information, the number of clearances held by federal employees and contractors in the executive branch exploded. As of October 2017, 1,194,962 people had access to top secret information, of which roughly half are federal contractors. We do not know how many executive branch staff and contractors had access to TS/SCI material, but it likely is many multiples of the total number of people who work for Congress.
As described above, Senate staffers who individual support each member of the Intelligence Committee are granted TS/SCI clearance and are deemed “staff designees,” where they are paid by the committee even though they serve individual members of the committee. Some might suggest a similar arrangement could be worked out in the House. After all, the House Intelligence Committee received a 31% increase in funding in 2017, based in part on our arguments that it was woefully underfunded and lacked capacity to support its members. While appropriate, it is unlikely that the House would provide additional funds to add 22 staff members to the committee, especially when you look at committee funding levels across the board. Granting TS/SCI clearances for one personal office staffer for each member of the House Intelligence Committee is a reasonable first step.
Providing these clearances need not be expensive or time consuming. The Director of National Intelligence recently ordered agencies to accept security eligibility adjudications conducted by another agency in a policy called mandated reciprocity. To the extent that personal office staff already have clearances from service elsewhere in the government, those clearances should be accepted by Congress. It’s not unusual for HPSCI staff to be former spies.
Other committees that oversee highly classified matters should consider a similar approach to empower their members to have the individualized staff support they need. Moreover, the House of Representatives should keep public statistics on the total number of congressional staff that have clearances, the level of clearance they have, and how long it takes them to receive their clearances, just as the executive branch does for executive branch agencies.
Congress must have sufficient cleared staff to conduct oversight, and allowing 22 TS/SCI clearances to personal office staffers in the HPSCI is a good place to start.
Image: Rep. Adam Schiff (D-Calif.), then-Ranking Member on the House Intelligence Committee, speaks with reporters on Capitol Hill on February 15, 2018 in Washington, DC. (Photo by Aaron P. Bernstein/Getty Images).