Good Governance Paper No. 4: Oversight of the Intelligence Community

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In each essay, a leading expert will explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information and a complete list of the essays published so far, you can read the Introduction by the series’ editors.]

Today, the U.S. intelligence community (IC) is largely its own watchdog. With some exceptions, congressional oversight of intelligence in recent years has become less effective and largely deferential to the president and the intelligence agency heads. Reduced oversight has consequences, including concerned career civil servants resorting to leaks and other unlawful means to drive change.

Meanwhile, the IC has been under assault from President Donald Trump from the start. He gave a highly political speech in front of CIA’s Wall of Heroes on his first full day in office, has openly lobbied IC leaders to support his public statements and unsupported opinions, and has voiced displeasure loudly and repeatedly when they failed to do so. When IC leaders assessed that Russia interfered with the 2016 elections to help Trump and hurt his opponent, Trump publicly berated them. When public testimony from IC leaders displeased him, Trump launched a tweet storm during a congressional hearing calling his top intelligence advisers “extremely passive and naïve.” When intelligence agencies sought to warn policymakers about Russian attempts to interfere in the 2020 election, Trump administration officials intervened to put an end to the reporting because it “made President Trump look bad.” More recently, Trump has trampled norms (and arguably some laws) installing unqualified political allies in key IC leadership positions and pushing out or reassigning professionals who were not perceived as sufficiently loyal to the president. The Trump administration’s efforts to ensure that intelligence assessments do not contradict the president’s public comments have exceeded even the most egregious examples from prior administrations.

Together, the dual problems of failing congressional oversight and politicization have made clear that the current patchwork of statutes, policies, and regulations that govern intelligence activities is fragile and open to evasion. The principles and traditions that led prior intelligence officials to comply with congressional overseers—however reluctantly—have given way to a world in which intelligence leaders reject Congress’s reasonable requests and openly refuse to appear at public hearings that have long provided accountability about intelligence related to threats to the United States. The IC workforce is also experiencing a crisis of trust after watching their institutions buckle under political pressure from the White House and Congress alike. This cannot continue, but how should policymakers fix a community that has had such little oversight for so long?

Congress should take the following actions to strengthen intelligence oversight.

1. Strengthen the IC’s statutory obligation to keep Congress “fully and currently informed”
2.
Depoliticize the Director of National Intelligence
3.
Pursue critical whistleblower reforms

Strengthen the IC’s Statutory Obligation to Keep Congress “Fully and Currently Informed”

For four decades, intelligence agencies have been subject to a statutory requirement to keep congressional oversight committees “fully and currently informed” of U.S. intelligence activities, including “significant anticipated intelligence activity.” For at least the last decade, there has been marked conflict over what these obligations require. In the absence of more specific requirements, the executive branch can—and frequently does—unilaterally determine how it will comply with these provisions, often in ways that restrict the flow of information to Congressional overseers. The Trump administration’s recent refusal to provide briefings to Congress in person on foreign espionage threats to our elections—despite mounting evidence that Russia and other foreign adversaries continue to interfere in the 2020 elections—is only the latest example of the Trump administration putting personal political interests ahead of national interests. Lawmakers of both parties have decried instances when they believed the IC’s disclosures did not meet its statutory obligations, though Republicans barely pushed back on the recent decision to cease in-person intelligence briefings.

Congress has few easy options for imposing a more robust interpretation of what the law requires on an unwilling executive branch. Other arrows in its quiver—impeachment, appropriations limitations, and subpoena authority—are all ill-suited to the task. President Trump’s acquittal earlier this year by his party’s Senators, after abundant evidence of abuse of power and extortion of a foreign power to target his American political enemies, shows impeachment to be unavailing as a check on politicization of national security. Defunding IC programs would seem disproportionate, and the executive branch has been successfully resisting subpoenas (as addressed in Good Governance Paper No. 2). Oversight committees need better options for holding an unwilling intelligence community to account. To improve these tools, a willing Congress should:

● Amend legislation to define “fully and currently informed.” To remove all doubt about what notification is required, Congress should extend the President’s obligations under 50 U.S.C. 3091 to ensure not only that the congressional intelligence committees are “fully and currently informed” of “intelligence activities,” but also of intelligence information generally.. A companion provision of the U.S. Code concerning covert actions – 50 U.S.C. § 3093(b)(2) — has exactly this broader reporting obligation, which should now be extended to all intelligence information: the IC “shall furnish to the congressional intelligence committees any information or material…in the possession, custody, or control of any department, agency, or entity of the United States government and which is requested by either of the congressional intelligence committees in order to carry out its authorized responsibilities.” This change would more fully recognize Congress as a consumer of intelligence relevant to its oversight and legislative duties. As part of the written procedures that the committees must establish in § 3091(c), Congress should specify requirements for that provision of information and intelligence to be delivered in in-person briefings at which Members of Congress could ask questions in real time, or include an obligation to furnish more detailed written and oral information in certain specified circumstances and upon request.

● Require public briefings on important issues, including worldwide threats. Congress should require the IC to provide public briefings on certain issues, including the annual worldwide threats briefing and assessments about foreign interference in elections by amending the Intelligence Authorization Act.

● Refuse to restrict access to intelligence briefings except as required by law. The group of congressional leaders known as the “Gang of Eight” is responsible for reviewing the nation’s most sensitive intelligence operations when, under “extraordinary circumstances,” the President thinks it is “essential” to restrict the full Congress’s access to information. In recent years, this limitation, which is intended to protect sensitive covert action operations, has been expanded to permit restricted briefings on other matters. As a matter of policy, Congress should reverse their own precedent and set a higher bar for the kind of intelligence information that can be restricted only to the “Gang of Eight.” Where restricted briefings are not required by law, particularly on elections and other matters essential to our democracy, Congress should insist that such briefings be made available to all committee members.

Depoliticize the Director of National Intelligence

The Office of the Director of National Intelligence is a critical post that has become untenably politicized. Just last month, in the heat of the current election, DNI John Ratcliffe, a partisan loyalist, declassified intelligence information that IC analysts had rejected as Russian disinformation in an apparent attempt to help Trump politically. Politicization of the DNI adversely impacts the IC’s mission and recently resulted in unqualified and highly partisan officials serving in the nation’s top intelligence post. To depoliticize the DNI, a willing Congress should:

● Appoint the DNI for a fixed term. Congress should ensure stability and depoliticize the role by creating a statutory 5-year term (or longer) for future DNIs. There is a ready precedent: the fixed term for the FBI Director, which is not aligned with four-year presidential terms to underscore the apolitical nature of the Bureau’s work.

● Reform DNI succession requirements. To provide clarity to the DNI succession requirements, Congress should exclude the DNI from coverage under the Vacancies Reform Act by, for example, adding the DNI to the list of excluded offices in 5 U.S.C. § 3349c or specifying that section 3026(a)(6) of the 2004 Intelligence Reform and Terrorism Prevention Act applies notwithstanding the Vacancies Reform Act. This would remove the President’s discretion under that Act to designate an Acting DNI and allow Congress to delineate an appropriate line of succession and/or specify eligibility requirements for an Acting DNI (e.g., that the role of acting DNI be filled with a career civil servant in the event that the principal deputy is simultaneously unavailable to serve).

Pursue Whistleblower Reforms

Those entrusted with intelligence information are sworn to protect it, even if they witness wrongdoing. Under the current system, intelligence whistleblowers can approach Congress only through either their agency’s or the IC’s inspector general. These internal officials investigate and send their findings on credible complaints to their agency’s director, who forwards the complaint to congressional intelligence committees. This process has flaws, as the public saw last fall when the House Intelligence Committee had to issue a subpoena for a whistleblower complaint regarding President Trump’s political requests of Ukraine that was being withheld by the Acting DNI. What if secrecy had prevented Congress from ever knowing to ask for the whistleblower report?

It is not just the reporting system that is broken. In the last year, the public saw career civil servants and military personnel repeatedly and personally attacked by the President—and later involuntarily reassigned from their duties—for complying with lawful congressional subpoenas. The public witnessed Members of Congress knowingly reveal the name of an alleged confidential whistleblower who subsequently required personal security protection. The public saw an inspector general removed from his post following disputes within the executive branch regarding whether to provide credible complaints to congressional overseers lawfully permitted to receive them. In each of these cases, the framework of laws in place to protect our national security and prevent abuses was subverted to protect the president and prevent meaningful congressional oversight.

To strengthen the patchwork of laws and policies that comprise current IC whistleblower protections, a willing Congress should:

● Expand the statutory definition of “urgent concern.” A September 3, 2019 Office of Legal Counsel opinion offered a limited interpretation of what constitutes an “urgent concern” that triggers statutory notice to Congress of a whistleblower complaint. To provide a broader definition, Congress should amend 50 U.S.C § 3033 by removing the limitation that an “urgent concern” relate to the “funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence.” The definition of an “urgent concern” should be expanded to include any “serious or flagrant problem, abuse, [or] violation of law” involving classified information, whether or not it falls within the authority of the DNI or constitutes “funding, administration, or operation of an intelligence activity.” Any issue involving classified information arguably already falls within the authority of the DNI, but the definition should be expanded to remove all doubt.

● Strengthen the IC Inspector General. Congress should also amend 50 U.S.C. § 3033 to permit the IC IG to report credible “urgent concerns” directly to Congressional oversight committees, without the DNI as an intermediary. In addition, Congress should amend current guidance to ensure that the IC IG has the sole, final authority to determine what constitutes “urgent concern” and the independent responsibility to communicate such matters to Congress. Currently, these notifications must first go through the DNI, who reports to the President and should face conflicts of interest in the reporting process.

● Better Protect Inspectors General from Reprisal. To better protect Inspectors General from reprisals, Congress should amend the Inspector General Reform Act of 2008 to clarify that inspectors general may be removed only when there is clear evidence of wrongdoing or failure to perform the duties of the office, and amend 50 U.S.C. § 3033 (c)(4) to add a similar for-cause removal standard as well as clearly require congressional notification for any change in an IC IG’s employment status short of removal. Further, Congress should require that any IC IG who is removed be replaced by a civil servant already serving in that office until a new IC IG is confirmed.

● Establish penalties for revealing a whistleblower’s identity. Congress should also impose an affirmative duty to protect the identity of whistleblowers on all officers or employees of the U.S. government and impose penalties for violations by amending the Intelligence Community Whistleblower Protection Act of 1998. Congress should also explore amending the Intelligence Identities Protection Act of 1982 to consider granting additional protection to intelligence whistleblowers under the Act.

* * *

The case for meaningful improvements in intelligence oversight has never been more urgent. Congress can and should advance a few relatively simple changes to remedy some of the gaps in congressional oversight and vulnerabilities to politicization that have become highly visible in the past few years. Doing so would help restore trust in our intelligence institutions and would help set intelligence oversight on a sustainable course for the future. 

About the Author(s)

Katrina Mulligan

Managing director for National Security and International Policy at American Progress, served as an attorney adviser and director for preparedness and response in the National Security Division at the U.S. Department of Justice, served as deputy finance director for Barack Obama’s 2004 Senate campaign. Follow her on Twitter (@ NatSecMulligan ).