Reforming Intelligence Oversight

Amidst the discussion of the ACLU Aulaqi lawsuit – both the procedural moves made in court and the underlying debates over the lawfulness of targeting – as well as new revelations from the Woodward book about the size of the CIA’s proxy ground forces in Afghanistan, cross-border “overt” raids made by US military forces into Pakistan, and finally reporting in today’s papers of CIA drone strikes intensified in Pakistan for the specific purpose of disrupting a feared terrorist attack presumably in Europe … well, there’s a lot going on.  I will comment on several of those issues at some point, but for now I wanted to add yet another item to the ferment – this being the matter of covert activities oversight by Congress.  (This thanks to Jeff Stein (Spytalk blog) writing in the Washington Post newspages today, September 28, 2010, A4).

Stein reports that the Senate has reached agreement on revisions to Congressional oversight and reporting on covert activities by the intelligence community under USC 50; it now goes to the House, but the article seemed to think that something like this version would finally emerge.  The net effect is to widen the group of legislators that has to be notified of covert activities; the compromise involves giving the White House more time in which to do so (including the ability it already has to do so after the fact):

Under a bill approved by the Senate on Monday night,the White House would be required to notify the full membership of both congressional intelligence committees of presidential directives to conduct covert action, known as “findings.” At present, the administration is required to notify only the “Gang of Eight”: the chairmen and ranking members of each committee and the party leadership in both chambers.

But the new language still gives the White House flexibility, including a 180-day period in which to notify all 22 House and 15 Senate intelligence committee members of a finding.

The White House can defer full notification even longer, according to the bill, if it provides “a statement of reasons that it is essential to continue to limit access” because of “extraordinary circumstances affecting vital interests of the United States.”

The Senate bill also contains a couple of specific provisions of interest in today’s environment, including a new cybersecurity element of reporting, and a provision requiring that the “White House provide the legal grounds for certain intelligence operations and estimates of whether “significant” costs or a “significant risk of loss of life” might be involved.”

My own general view is that Congressional oversight of covert activities needs to be strengthened and reformed – not because I think the CIA is out doing rogue stuff with, say, targeted killing, but instead because I think it is the only way to ensure that the political branches are on the same page on policy, what is acceptable and lawful and what is not.  It is an essential element in protecting intelligence agency personnel from actions by courts or, for that matter, Congress itself claiming that they overstepped their authority.  Likewise it is a crucial element in ensuring that the political branches retain their role – Steel Seizure cases-style – in foreign policy and the conduct of self-defense operations abroad and armed conflict.  CIA Director Panetta clearly understands that it is essential that no senior leader of Congress be able to perform a Pelosian denial after the fact of things of which she was clearly informed concerning intelligence activities.  This legislation is of a piece with that concern, from the executive branch point of view – you can only protect your people and, hence, protect the ability to undertake covert activities particularly involving uses of force, if you have a clear understanding that the political branches are united, united in advance, and that going after some CIA officer is tatamount to going after Pelosi.

Bringing Congress in is essential. But the downside problem is the same as it always has been – how do you maintain operational secrecy while informing Congressional leadership?  To start with, historically you try to keep the numbers down while maintaining the legitimacy of the process.  That has meant the Gang of Eight; it has also meant informing the leadership of both parties.  It has also always involved the ability to inform after the fact.  After the fact partly means the reality that sometimes the president believes he must act with speed; but it also means greater operational secrecy.  There is a decent argument for widening the number of people informed, at least afterwards, but greater numbers means greater security breaches. This runs to a core concern of the White House, and the post-hoc regime allows important flexibility.

The security question draws in another consideration, however – one often overlooked in the question of a broader legislative enactment of counterterrorism.  This is the problematic role of a regime of classified information that is at once far too sweeping but, for precisely that reason, largely incapable of having the teeth necessary to keep secrets.  It is a classification regime that serves as nip for the cat, and a marker of access rather than a lockbox for necessary secrets.  A better system – not likely in our lifetimes, presumably – would be far less ability to classify things, including a classification system clearly tied to a range of sanctions from loss of job to prison.  But the things that were classified at the levels necessary for operational security would have clear and enforced criminal sanctions, including against legislative branch actors (I’m skipping over any potential issues involving separation of powers, immunities, and members of Congress; start with their staffs).  Fewer classified documents, more punishment for revealing the ones at the top of the food chain.  Don’t hold your breath.

But the most important element, when it comes to uses of force by the intelligence community, is that operations both be kept secret – but that oversight by Congress be sufficiently robust that it maintains its democratic legitimacy, sufficient to satisfy the American public and to make clear that the courts do not have a place in review of these operations abroad in order to confer legitimacy.  That means no ability of Congress-members who are informed to be able to deny that they were fully informed, and that the most senior leadership has had an opportunity wherever possibility to raise any concerns or objections in advance.  It’s not just a check the box consideration, a pro forma nod to a co-equal political branch; as Jack Goldsmith pointed out in The Terror Presidency, it is a good idea all on its own for plans hatched in a hermetically sealed executive branch environment to be presented to a group of legislators if only so that there is a broad based review on grounds of basic common sense.  This can be done with enough legal bells and whistles attached for the executive to indicate that it is not, by engaging in these exercises, ceding any inherent authority, nor Congress vice-versa.

An additional point about oversight and the targeting of American citizens abroad who have taken up with groups such as Al Qaeda in the Arabian Peninsula.  I would cautiously favor – subject to more discussion with experts in the intelligence community – the addition of provisions to the oversight legislation to specifically require that the President inform the oversight committees of Americans being made the subject of covert uses force, such as targeted killing directed against Aulaqi.  Such specific oversight could be accompanied by a requirement that the President specifically inform the committee of the specific reasons why an American citizen should be regarded in any particular case as a lawful target.  I do not at this point favor adding any requirement that the executive show why attempts to arrest or detain would be impracticable, because I think it introduces an improper suggestion that once beyond the reach of ordinary American territorial justice, the President has some serial obligation to risk the lives of soldiers and agents trying to detain, or to inform a target in advance, before targeting as such or in lieu of it.

But I am not unalterably opposed on principle to a specific oversight regime; it is instead the worry that these provisions would somehow become vested individual or legal rights that do not exist now.  So I would affirmatively provide in such legislation that the requirement of oversight review is revocable or amendable by the political branches, and it does not create any rights on an individual basis or any ability or jurisdiction of the courts to enforce or review any part of these procedures.  The specification of such review is precisely in order to establish that the political branches have acted in a matter that is purely interse and preclusive of any ability of the judiciary to insert itself.  This sensible idea to have some form of specific oversight if and when American citizens are targeted abroad – something that is going to happen much more in future years – will be a terrible idea if it serves merely as a slippery slope to judicial oversight over uses of force and armed conflict abroad (in my view, obviously).  So the political branches cannot afford to go down that otherwise good road if it involves significant risks that it turns into something else, viz., a point of entry for the ACLU and CCR into intelligence decision-making via the courts.

This of course is part of a general meme pursued by people like me, Ben Wittes, Jack Goldsmith, Bobby Chesney, and others, calling for Congress to step up to the plate and legislate counterterrorism policy in this as in other areas.  It is to point out that the consequence of an executive branch policy of “go it alone” in order to have maximum discretion to act turns out to be highly counterproductive.  First, it invites Congress merely to stand aside and kibitz to death after the fact, when it can see which way the political wind is blowing. Second, it invites the courts into the process by reason of lack of unity of the political branches.  And third, it invites later presidents to turn on a dime, using that same discretion.  As many have pointed out, the Obama administration, while campaigning on the turn on a dime model, has found that it is not that easy.  Still, what lives by executive discretion dies by executive discretion.