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[Senate Hearing 110-794]
[From the U.S. Government Printing Office]
S. Hrg. 110-794
CONGRESSIONAL OVERSIGHT OF INTELLIGENCE ACTIVITIES
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 13, 2007
__________
Printed for the use of the Select Committee on Intelligence
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
CHRISTOPHER BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California JOHN WARNER, Virginia
RON WYDEN, Oregon CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
HARRY REID, Nevada, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
----------
Andrew W. Johnson, Staff Director
Louis B. Tucker, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
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NOVEMBER 13, 2007
OPENING STATEMENTS
Rockefeller, Hon. John D., IV, Chairman, a U.S. Senator from
Virginia....................................................... 1
Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from
Missouri....................................................... 6
WITNESSES
Hamilton, Hon. Lee H., former Vice Chairman of the 9/11
Commission and former Member, U.S. House of Representatives.... 11
prepared statement........................................... 15
Roemer, Hon. Timothy, former Vice Chairman of the 9/11 Commission
and former Member, U.S. House of Representatives............... 17
prepared statement........................................... 20
Zegart, Amy B., Associate Professor, Department of Public Policy,
School of Public Affairs, University of California, Los Angeles 41
prepared statement........................................... 45
Saturno, James V., Specialist, Congress and the Legislative
Process, Congressional Research Service, Library of Congress... 48
prepared statement........................................... 51
SUBMISSION FOR THE RECORD
Families of September 11, prepared statement..................... 10
CONGRESSIONAL OVERSIGHT OF INTELLIGENCE ACTIVITIES
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TUESDAY, NOVEMBER 13, 2007
----------
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 2:37 p.m., in
room SH-216, Hart Senate Office Building, the Honorable Jay
Rockefeller, Chairman of the Committee, presiding.
Committee Members Present: Senators Rockefeller, Feinstein,
Wyden, Feingold, Whitehouse, Bond, Snowe and Burr.
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, CHAIRMAN, A
U.S. SENATOR FROM WEST VIRGINIA
Chairman Rockefeller. The meeting will come to order. The
Senate Intelligence Committee meets in open session, which is
actually required under the rules if we have nothing which is
classified, so that's why we're here. But we have a very
serious purpose, which is to examine how to optimize what you
all talked about in the 9/11 Commission, and that is
congressional oversight of the United States Government's
intelligence activities.
To help in this undertaking we're going to hear from panels
of expert witnesses. Our first panel will be two members of the
9/11 Commission--a rather distinguished gentleman by the name
of Congressman Lee Hamilton, and another rather distinguished
gentleman, the former Congressman Tim Roemer. Both are former
Congressmen.
Our second panel witnesses will be Professor Amy Zegart
from UCLA and Mr. James Saturno of the Congressional Research
Service.
The Senate and House Intelligence Committees were created
over 30 years ago as the congressional authorizers of the U.S.
intelligence community budget and sensitive classified
programs. In this role, the Senate Intelligence Committee is
charged with carefully evaluating the legal foundation and
operational effectiveness of a wide array of intelligence
collection and analytic efforts that are linchpins to America's
economic, diplomatic and security wellbeing.
The Intelligence Committee is unlike any other Senate
committee. Our secure workspaces are windowless. Everything is
enclosed in lead. We are guarded by the Capitol Police. Much of
our oversight efforts take place in hearings, most of which are
necessarily held in closed session. Because the Committee deals
with the nation's most sensitive secrets on a daily basis, we
must conduct our work with great care to make sure that the
public interest is served without compromising details that
could give our adversaries an advantage.
In the aftermath of 9/11, the intelligence community's
performance in the months leading up to the attacks came under
considerable scrutiny. The sobering findings of this difficult
but necessary retrospective investigation were published in the
Joint Congressional Inquiry Report of 2002 and the 9/11
Commission Report of 2004.
Two weeks before the 9/11 Commission issued its report, the
Senate Intelligence Committee released a sweeping and
devastating report on the flawed collection, analysis and use
of intelligence preceding the invasion of Iraq. Together these
efforts provided the push that led by the year's end to the
passage of landmark legislation reforming the intelligence
community to a certain extent.
The focus on reform was not limited to the intelligence
community, however. The effectiveness of Congress in overseeing
these intelligence activities was brought into question as well
and specifically by the 9/11 Commission, very pointedly and
very properly.
Were there ways that the legislative branch could improve
its own efforts at ensuring that our counterterrorism efforts
and other critical intelligence programs were responsive and
effective to the threats that are facing our Nation?
The Senate passed Senate Resolution 445 in October of 2004
which set forth a blueprint of reforms designed to strengthen
the Senate Intelligence Committee and eliminate artificial
hindrances to carrying out oversight, such as doing away with
the 8-year limitation, which had a long and sordid history,
placed on Senators serving on the Committee. We now serve at
the will and pleasure of our two leaders.
Additional steps have been taken since the passage of
Senate Resolution 445 to further improve the Intelligence
Committee's oversight efforts. In February of this year, as the
new Chairman of the Committee, I signed a memorandum of
agreement, or MOA, with the Chairmen and Ranking Members of the
Senate Appropriations Committee and the Appropriations
Subcommittee on Defense, which is a bunch of words, except when
you look at what I just said. And that improves the
coordination and the transparency in how our Committees
authorize and appropriate intelligence activities, which is a
primary concern that was voiced by you on the 9/11 Commission.
It's not us doing authorizing but it's--and I'll explain
further--it's an integration which has been working of these
two Committees.
In order to improve the flow of information between the
Committees under the MOU--memorandum of understanding--staff of
the two Committees are notified of and allowed to attend the
intelligence hearings of the other. In order to provide optimum
staff support to Members, each member of the Intelligence
Committee who also serves as an appropriator can bring his or
her Intelligence Committee staff members during Appropriations
Committee hearings and markups.
In order to improve coordination between the two committees
in their respective reviews of intelligence activities, all
Senators and cleared staff of one committee are permitted under
the MOA--memorandum of agreement--to review and report on any
classified annex of the other committee before action is taken.
So that gives us an insight into what the authorizers are
doing, and it gives us a chance, the Vice Chairman and I, in
order to intervene before they do markup. Before they do
markup, we can go over there and talk loud.
Moreover, the Chairmen and Ranking Members, as I've
indicated, of each committee have the opportunity to appear
before the other to present their respective views prior to the
markup, which I've indicated.
While there are other ideas for coordinating the oversight
efforts of the two committees, which we will explore at today's
hearing, I believe this memorandum of agreement, little known
to the outside world, has made great strides toward bringing
our committees together in a unity of effort that was lacking
before. If not perfect, it is better.
Strengthening congressional oversight, however, is more
than changing boxes and lines on an organizational diagram. It
is first and foremost about marshaling the resources at the
Committee's disposal to ask the hard questions and do the
necessary digging and conduct the sort of objective and
unflinching evaluation needed to understand where change within
the intelligence community in fact is required.
In this regard, the Vice Chairman and I established study
groups--we decided to go out on our own on this--within the
Committee to get ahead of the curve and to examine the
intelligence community's posture toward high-priority issues
such as Iran, terrorist safe havens--wherever they might be--
China, and many, many other subjects. It's all done on a
bipartisan basis. They all work together. They're, you know,
furiously working, and then they give us their reports and it's
very, very helpful to us.
These efforts augment the invaluable work done by our core
budget and issue staff monitors as well as the evaluations
completed by our technical advisory group--something which most
people don't know about but which is a group of five or six
absolutely brilliant people entirely outside of Government who
just have extraordinarily smart thoughts and things to say and
say them very freely and openly to us.
We've also held two to three Committee oversight hearings a
week since January, covering a multitude of topics, including
Iraq, Iran, Afghanistan, Pakistan, North Korea, covert action,
cybersecurity, terrorist ideology, human intelligence
collection, technical collection systems and detention and
interrogation programs.
In fact, the Committee has held over 60 oversight hearings
and meetings in 2007, while at the same time reporting out a
bipartisan bill on reforming FISA by a vote of 13 to 2, and the
first authorization bill to pass the Senate in 3 years--and
that's not necessarily big news to the outside world, but
that's huge news to us, absolutely huge. And it's not done yet.
It's not agreed to yet by the entire Congress or the President,
but I think it will be.
So the operation tempo of the Intelligence Committee has
indeed been very high in 2007 thanks to the Vice Chairman and
all of our Members, but there's always room for improvement and
that is why we're holding our hearing today.
Before turning to Vice Chairman Bond for his opening
remarks, I want to vent a bit to highlight what I consider to
be the greatest impediment to effective congressional
oversight.
For 7 years, I have witnessed firsthand how the
Intelligence Committee has been continually frustrated in its
efforts to understand and evaluate sensitive intelligence
activities by an administration that responds to legislative
oversight requests with indifference, if at all, and with
usually outright disdain.
For 5 years after 9/11, the administration refused to brief
the full membership of the oversight committees on the
existence of NSA's warrantless surveillance program and the
CIA's secret prison system and interrogation techniques, the
two programs the administration publicly touts as indispensable
tools in the war against terrorism. Oh, they said that the
``gang of eight,'' so to speak, or the top leadership in the
Intelligence Committees were briefed, but having attended all
of those briefings, I can say that that is one of--the way you
advertise movies; it's just a bit of an overstatement.
Those few congressional officials who were briefed were
prevented from disclosing any details or having any
conversations to any other Intelligence Committee members. I,
for example, had Vice Chairman Bond and I had been receiving
those, I could have not talked to him, nor could I talk to my
chief of staff. I did write two letters of protest about the
programs under review to the Vice President, one of which is
public and one is not. But to discuss it with anybody? No--not
with Dianne Feinstein, Senator Wyden, not with Senator Bond. I
mean, it just didn't make any sense at all.
It was a way of controlling what we had access to--giving
us insufficient briefings about huge topics in which they had
been potentially breaking the law and then preventing it from
going any further in discourse.
Now, these few congressional officials who were briefed, as
I said, were muzzled. The end result was that the Intelligence
Committees were bypassed for 5 years at a critical time when
oversight into controversial legal and operational questions
was needed in the most urgent fashion. It was an amazing
asymmetric way of thinking.
You know, you can get endorsement, you can get support from
the Intelligence Committee, but you have to tell them what
you're doing, and you can't withhold information from them, and
you can't lie to them, and we faced a bit of that.
In retrospect, the administration's unwillingness to deal
with Congress as a full partner after 9/11 in authorizing and
funding these programs was shortsighted and in turn created the
compounded problems that we are dealing with this day.
In my capacity, first as Vice Chairman and now as Chairman
of the Senate Intelligence Committee, I am in an ongoing,
pitched battle with an administration that myopically views
congressional oversight as being at odds with protecting
national security. In recent months, I have unsuccessfully
urged the White House to give all members of the Intelligence
Committee access to a number of so-called gang-of-eight
programs--those are so-called very secret ones, like the NSA
surveillance and the CIA detention programs, which I've
mentioned that before.
These programs are known--and just think about this: These
programs are known to hundreds if not thousands of executive
branch employees but cannot be shared with the Intelligence
Committees, the Senate or the House--cannot be shared, will not
be shared, and that's just the way it is. Only eight members of
the legislative branch are trustworthy enough to know about
them. Is that a proper standing of the public interest? I think
not.
For years, the White House and the intelligence community
have repeatedly withheld information and documents, even
unclassified documents, from the Committee that we have asked
for. For instance, I have pressed the administration for years
without success to turn over the Committee legal reviews
concerning the lawfulness of the CIA's secret detention program
interrogation techniques. We were successful in getting that
done, but it was not a happy exchange.
Just last week officials uniquely knowledgeable about the
CIA program were prevented from meeting with the Committee
staff to answer questions--not with the Committee members, but
with the staff. They were here; they were ready. The meeting
was set; the staff was set and then they were told to go to the
airport and leave.
It doesn't make this Chairman very happy. And it's
something that I think that the 9/11 Commission understands but
the American people need to understand very fully--that this is
not just about how we get along with the authorizers; this is
about a fundamental withholding of information which is, under
the 1947 law, ours to understand. It legally is ours to
understand, and they have ignored it. Maybe they ignored it in
the previous administration. I don't know; I wasn't on this
Committee then.
So while we discuss today ways of further improving
congressional oversight, I'd like to hear the views of each of
our witnesses on the harm done to this statutorily mandated
oversight when the executive branch decided it would rather
bypass or ignore Congress in carrying out controversial
intelligence programs.
From my vantage point, the notion that congressional
oversight is impeded simply because an authorizing committee
may have a different view on spending priorities than an
appropriation committee, I won't say it's simplistic; I just
think it misses the larger point. We can work things out with
the authorizers; we can work nothing out--we can work
absolutely nothing out with the administration unless they
choose to let it be worked out.
Intelligence does not belong, evidently, to the
Intelligence Committee. It belongs to those who, for political
or policy reasons, decide that it will be given to us or not.
And I am profoundly frustrated by this.
And so, I mean, in closing, effective oversight is never
going to be fully realized as long as the administration views
the Congress as little more than a speed bump when it wants to
carry out intelligence activities unfettered by what Congress
might have to say about some of those programs.
I now recognize the Vice Chairman.
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A
U.S. SENATOR FROM MISSOURI
Vice Chairman Bond. Thank you very much, Mr. Chairman, for
holding this hearing today. You have received requests from our
members to hold this hearing, and I appreciate you scheduling
it.
With respect to the points that you made, I was pleased to
work with you so that we were able to have the Committee
briefed on those critical programs such as the terrorist
surveillance program and detention and interrogation
techniques, which you discussed. And I think that goes a long
way.
But you will recall that during the debate on the 9/11 bill
in March, you and I supported the sense of the Senate provision
calling on the Committee and the Senate Homeland Security and
Government Affairs Committee to conduct hearings on
intelligence reform, specifically on congressional reform of
fiscal oversight of intelligence, which is why I believe we're
here today. Even though the Senate has adopted some of the 9/11
Commission's recommendations on congressional reform, this most
important area, in my view, has not been addressed.
The 9/11 Commission stated that, of all our
recommendations, strengthening congressional oversight may be
among the most difficult and important, further stating that
congressional oversight of intelligence and counterterrorism is
now dysfunctional. The recommendation of the Commission to deal
with that dysfunction was to consolidate authorization and
appropriations in a single committee.
I understand Senators Burr, Bayh, Snowe and Hagel and
Feingold from this Committee, along with other Members,
introduced a resolution on the Senate floor this morning to do
exactly that, and I commend them for bringing greater attention
to the issue. The traditional authorization and appropriations
process, while not perfect, serves the Nation's needs
adequately in most instances.
So what's different about the oversight of intelligence
within today's national security framework? How does it differ
from the past?
Well, throughout the cold war, there were two superpowers
dominating the international arena. The primary function of
national intelligence was to provide strategic warning of
Soviet intentions or actions. The risk of miscalculation on
either side could have resulted in a cataclysmic war involving
nuclear weapons. Both the United States and the Soviets
understood the conflicts; therefore the Soviets sought their
political objectives through intimidation and coercion rather
than actual war.
That threat and, with it, the former purpose of national
intelligence changed with the dissolution of the Soviet Union
and the rise of a new and potentially more ominous threat. The
Soviets did not seek violent confrontation as primary
objectives, but our new adversaries seek violent confrontation
and death as a primary means to their goals.
The conversion of Islamist extremism with the spread of
weapons of mass destruction technologies has dramatically
shifted the burden and the need for national intelligence
requirements at this point in our history. A failure of
intelligence over the next decade and beyond, similar to that
of 9/11, could result not in several thousand deaths but
potentially several million.
Surprise attacks by large-scale military forces of hostile
nations can easily be detected by national technical
capabilities, but a small suicidal cohort armed with a weapon
of mass destruction is extremely hard to detect. This
necessitates a fundamental shift in the purpose, organization,
training and operations of our national intelligence
capabilities.
With that shift comes an increased demand for rigorous and
consistent intelligence oversight by Congress. The question
before us today is whether or not today's traditional
bifurcated Senate oversight process is suitable to achieve the
goals of oversight.
Some would like to say that the change has already
occurred, so we should call it a day. Well, as one of three
appropriators for intelligence who also sits on the Committee
along with Senators Feinstein and Mikulski, I can tell you that
if the change has occurred, I haven't seen it. On the contrary,
in my experience I've seen more evidence of a need for a better
synthesis between the two.
For example, this Committee is currently conferencing our
2008 Intelligence Authorization Act with the House and we're
looking at a number of issues where our bill is disjointed from
the 2008 Defense Appropriations Act. As recently as a few hours
ago, my staff was receiving calls from intelligence officials
worried about a number of potential ``A not A''--appropriated
but not authorized--issues. That's not a showstopper in most
fields, but when it comes to national security and
intelligence, it usually does not make a whole lot of sense.
We have almost 50 professional staff on this Committee who
spend all their time doing nothing but intelligence oversight
day in and day out. And, as the Chairman so adequately said,
we've had over 60 hearings. We spend a lot of time going in
depth into all these issues.
On the other hand, the Defense Appropriations Committee has
fewer than a half dozen staff who write the intelligence
appropriation portion of the defense appropriation bill, and
that's less than one-tenth of the overall money in the bill.
Our Committee has held scores of intelligence oversight
hearings, the Defense Appropriations Subcommittee has held
notably few. I think the disparity is clear. What I'm saying is
this oversight, their power, on the budget is now disjointed.
Let me be fair to my other committee, the Defense
Appropriations Subcommittee. That committee does outstanding
work, and I commend Chairman Inouye and Ranking Member Stevens
for the attention and the time they've put into defense
matters.
But that is my point. That committee is consumed with
defense matters--and they are major--not intelligence matters.
The committee is wrapped up in nearly half-trillion-dollar
appropriations bills, with less than one-tenth of it comprising
the national intelligence program that we in the SSCI oversee.
As SAC/D is currently constructed, it can't give intelligence
the attention it deserves.
Mr. Chairman, we discussed this issue at the beginning of
this Congress and you believed, as you indicated, that the best
path was to sign a memorandum of agreement with the chairmen
and ranking members of the Appropriations Committee promising
better coordination. I expressed to you my disagreement because
I believed the MOA was weak and would not effect real change.
I had hoped we would move together, but when I returned
from an overseas trip and I found that an MOA had been signed--
and Senate counsel advises me it's invalid, but I don't think
it would work anyhow. But since you brought it up, let's look
at how difficult the issue has been by showing how ineffective
the MOA has been.
The MOA has four points. The first says the staff of each
committee will be notified and allowed to attend the
intelligence hearings of the other. I canvassed our staff and
one of them once was invited to one meeting. My staff was never
even notified of them, and I'm on that committee. Strike one.
Second, it states that the members, the overlapping
members, could bring one staffer with us to the SAC/D markups.
Well, we've always been able to do that, yet the marks were
decided well beforehand, so by the time we got there, the pie
had already been sliced. Strike two.
Third, we're supposed to be able to review the SAC/D mark
before markup. We were shown it right beforehand, with no
opportunity to provide SSCI influence to it. Strike three.
Fourth and finally, the Chairman and Vice Chairman were
supposed to appear before SAC/D to make our case for our marks
and the SAC/D's Chairman and the ranking member were supposed
to appear before our Committee to do the same thing. It didn't
happen.
Strike four.
I have been looking at better integrating intelligence
expertise in the appropriations process for some time, and
regrettably I thought MOA would fail, as it has. I also don't
think even if it were followed religiously it would address all
of the concerns that your commission raised, and that's why I
did not support it.
So has anything really changed since the 9/11 Commission
recommendation over the past few years? Well, this year our
Intelligence Committee included in particular four major
oversight initiatives. Each of these represents a substantial
departure from business as usual.
One, stop funding of cold war technology collection
capability.
Two, move to cheaper technical collection capability so
more sensors can be deployed and provide more data to
policymakers and the military.
Three, realign the management of a collection program that
has failed for more than a decade to deliver a capability
integral to its mission. This represents the third consecutive
year the Committee has identified severe technical and
managerial difficulties in the program, some of which going
back a decade.
Four, undertake an innovative technology demonstration
program.
The first three of these initiatives were ideas the
Chairman and I jointly supported and were recommended by staff.
The fourth was an amendment offered by Senator Mikulski and me
that was adopted on a bipartisan vote.
Each of these issues was fully briefed to the SSCI members
and approved by a vote of Committee members; on the
Appropriations Committee, however, that did not happen.
Senators Mikulski, Feinstein and I are members of the Defense
Appropriations Committee, yet none of these four issues was
brought before the SAC/D so that members could be briefed on
them, debate and vote on them. In fact, the SAC/D marked up the
nearly half a trillion dollar Department of Defense bill in
about 20 minutes in an open session. That's far less time than
we spent just debating one of the issues I discussed.
If anyone thinks it's a new problem, it's not. In 2000, the
previous administration proposed a new collection program. Our
Intelligence Committee analysis indicated the program would
cost substantially more than estimated and the utility of data
collected did not justify the cost. Chairman Shelby and Vice
Chairman Bryan at the time opposed the program. Subsequently
Chairman Roberts and Vice Chairman Graham opposed the program.
Chairman Rockefeller and I have supported program termination
as well.
We've been recommending termination of the program on a
bipartisan basis for years. If you think the fight was just an
inter-committee squabble, nothing could be further from the
truth. Every outside technical review conducted on the merits
of the program by the administration's outside experts
recommended killing the program.
In 2001, the Scowcroft panel recommended termination in
NSPD-5. In 2004, an independent panel of technical collection
experts appointed by the Bush administration recommended
terminating the program. The outside technical advisory board
of the agency in charge of the program recommended terminating
it consistently. The first Director of National Intelligence,
John Negroponte, recommended killing it.
Chairman Rockefeller, when you were Vice Chairman and now
as Chairman, you've been a consistent, vocal and articulate
advocate for the program's termination. It took until recent
time to end a program that at least should have been terminated
a number of years ago, and unfortunately, all told, the loss to
the taxpayers is astronomical--in the billions of dollars.
I could go on, but suffice it to say that the same
institutional and structural problems that have existed for
years still impede our effective oversight.
I'd like to hear what our witnesses say that Congress
should do about it. I'm not backing any particular option yet.
I've seen the 9/11 recommendations and the panel that Speaker
Pelosi put together on the House side to address this issue and
I've heard a number of others, a few of which I'm looking at
closely, but I think there are good options from which to
choose. They need to be discussed.
Well, I think we can do better for the American people and
for our job, Mr. Chairman. That's why I'm pleased you called
this hearing so we can hear from our really distinguished
expert witnesses and then at our business meeting next week we
can discuss their ideas among others. I thank you, Mr.
Chairman. I look forward to hearing from our witnesses.
Chairman Rockefeller. Thank you very much, Chairman Bond.
Vice Chairman Bond. Oh, let me ask unanimous consent.
There's a short statement from the families of 9/11 that I ask
be included in the record of today's hearing.
Chairman Rockefeller. Without objection.
[The information referred to follows:]
STATEMENT OF FAMILIES OF SEPTEMBER 11
To be submitted for the record for the November 13, 2007
public hearing of the Senate Select Committee on Intelligence
More than 6 years after 9/11, the U.S. Congress can be
applauded for the many changes it has enacted to ensure
terrorists cannot attack our homeland again. Congress passed
the Intelligence Reform and Terrorism Prevention Act of 2004,
reforming the intelligence community and creating the Office of
the Director of National Intelligence, while implementing
dozens of other 9/11 Commission recommendations. This past
summer, Congress passed the Implementing Recommendations of the
9/11 Commission Act of 2007, providing for improved aviation
security, creating a commission to study the prevention of
Weapons of Mass Destruction terrorism and increasing
information sharing among Federal, state and local law
enforcement. These were much needed measures that are making an
impact in the prevention of future attacks.
Families of September 11, an organization of more than
2,500 victims' family members, survivors and concern citizens,
dedicated to making sure what happened on 9/11 never happens
again, is proud to have worked with Congress over the past 6
years to lend our support to their efforts. However, as big an
impact as Congress' work has had, more needs to be done, and
done now.
The 9/11 Commission Report states ``[o]f all our
recommendations, strengthening congressional oversight may be
among the most difficult and important.'' The report outlines
the pressing need for the overhaul of the current congressional
intelligence oversight structure. ``Under the terms of existing
rules and resolutions, the House and Senate intelligence
committees lack the power, influence, and sustained
capability'' to adequately oversee our nation's intelligence
community.
Families of September 11 understands what is at stake, and
fully supports the 9/11 Commission's call for either a ``joint
committee for intelligence'' or the creation of ``House and
Senate committees with combined authorizing and appropriations
powers''.
This type of congressional overhaul is not easy. Some
members stand to lose power. Change is uncomfortable, inertia
takes over.
But the consequences are too important to allow inertia to
stave off needed structural reforms in Congress. Since 9/11,
the intelligence community has been restructured to meet the
new threat, but Congress has not.
Now is the time for Congress to heed to the warnings and
advice of the 9/11 Commission, to shine a spotlight on its own
structure and evaluate its strengths and weaknesses in its
ability to oversee our intelligence community.
Families of September 11 is glad the Senate Select
Committee on Intelligence is holding today's hearing, and
welcomes an opportunity to share our unique perspective on the
importance of reforming congressional oversight. Unfortunately,
our membership knows all too well the possible consequences of
inaction--in human terms--when bureaucratic self interest
stymies oversight of the essential government function of
intelligence collection and analysis. Due to the secretive
nature of intelligence, American citizens can do little more
than trust that our government is doing its job in both the
executive and legislative branches. To do its job, properly and
effectively, Congress must have all the tools necessary to do
its job. The 9/11 Commission made clear that was--and is not
now--the case.
This year, Congress passed legislation that enacted
virtually all of what were the report's as yet unimplemented
recommendations. Is it really possible that the 9/11 Commission
was right on everything except the changes needed within
Congress itself? Please take the difficult step of re-
organizing to meet the current threat, so that Americans can
begin to trust Congress again.
Thank you for the opportunity to submit this statement for
the record. Signed,
Board members and founders of Families of September 11
Donald Goodrich, Chairman of the Board
Nancy Aronson, Treasurer Elinor Stout, Secretary Tim Barr,
Board member Paul Bea, Board member Paul Chicos, Board member
David Edwards, Board member Carle Lemack, Founder
Chairman Rockefeller. And also without objection, we're
going to keep the record open so that any Senator who wishes to
include a statement in the hearing record can do that. Also
without objection, the written opening statements of all
witnesses will be included in the hearing record in full.
It's now my honor to call on a most distinguished American,
Lee Hamilton.
STATEMENT OF HON. LEE H. HAMILTON, FORMER VICE
CHAIRMAN OF THE 9/11 COMMISSION AND FORMER MEMBER OF THE U.S.
HOUSE OF REPRESENTATIVES
Mr. Hamilton. Thank you very much, Mr. Chairman, Mr. Vice
Chairman, distinguished members of the Select Committee on
Intelligence. Thank you for the honor to appear before you
today. I testify on behalf of Governor Thomas Kean. He's not
able to be with us today, but he joins me in the statement that
I'm about to present.
He and I both commend the Chairman and the Vice Chairman,
of course, for holding this hearing. The importance of
congressional oversight simply cannot be overstated. Senator
Bond just has entered into the record the statement of the
families of September 11. I was very pleased to see that
statement. We've worked closely with them over a period of
years and they are supporting, I think, the basic thrust of our
testimony and we're very happy to have their support.
Public Law 110-53 expresses the sense of the Senate that
the Select Committee on Intelligence should report by December
21 of this year on its recommendations for improving
intelligence oversight. Therefore, this hearing is timely and
we welcome the opportunity to present the perspective of the
Chairman and the Vice Chairman of the commission. Tim Roemer is
here as well. He was an absolutely outstanding member of the 9/
11 Commission, and I'm pleased, of course, to testify with him.
Senator Bond mentioned that we wrote several years ago
that, of all of our recommendations, strengthening
congressional oversight may be among the most difficult and the
most important. Carrying out effective oversight of
intelligence is very, very hard to do. If you're the Chairman
of a committee that works in the unclassified world, you get a
lot of help--a lot of reporters who bring issues to your
attention, trade associations write reports, citizens speak up,
watchdog groups do studies; you get the Congressional Research
Service, you have the General Accounting Office--on and on and
on, all kinds of help.
Not so in the classified world. The world of intelligence
is vast. It is closed and it is complicated. It is comprised of
16 agencies with well over 100,000 employees, as then-Director
Negroponte indicated. The budget is $43.5 billion a year
announced last week, even bigger if the spending for military
intelligence is included. If you're on the outside world of
intelligence, you know nothing about it other than what the
executive branch decides to tell you.
The Intelligence Committees are completely on their own.
They serve as the proxy for the American people on
intelligence. They provide the sole check and balance on a huge
and important Government activity. If they don't provide the
independent oversight, it simply doesn't get done. It's an
awesome responsibility. In short, this is why we believe the
Intelligence Committees need to be powerful and active. They
need to carry out the robust oversight our system of Government
requires. They need to look into every nook and cranny of the
intelligence community's business. They need to ensure that
laws are obeyed. They need to ensure that the American people
are safe and that their freedoms are protected.
The Founders understood the importance, of course, of
checks and balances on Executive power. That's why they gave
you the power of the purse. The single most important step to
strengthen the power of the Intelligence Committees is to give
them the power of the purse. Without it, you will be
marginalized. The intelligence community will not ignore you,
but they will work around you, and in a crunch they will go to
the Appropriations Committee.
Within the Congress, the two bodies with the jurisdiction,
time, expertise to carry out a careful review of the budget and
activities of the intelligence community are the Senate and
House Committees. Senator Bond mentioned a moment ago the 50 or
so staff members you have here and the handful of staff members
you have on Appropriations in the Senate.
When we were preparing the recommendations for the 9/11
Commission, Governor Kean and I came up here and asked Members
of the Senate caucuses, Republican and Democrat, House and
Senate, how good a job you were doing on oversight. The word
``dysfunctional'' was used by you over and over again, and we
put it in the report. Two Senators said to me, looking back on
the preceding fiscal year, that they had spent about five or 10
minutes overlooking the intelligence budget in the
Appropriations Committee for the entire year. Now I believe
it's gotten better than that, but that's why we use the word
dysfunctional.
All of us have to live by the golden rule, and the golden
rule is that he who controls the gold makes the rules. Leaders
of the intelligence community also understand the golden rule.
They work hard to get the answer they want from the people who
control their dollars. They take advantage of the fact that the
defense appropriators are mightily distracted from intelligence
oversight because of their other responsibilities. You've also
referred to that in your opening statement.
I want to be very clear here. The Appropriations Committee
performs the best oversight work it can. The difficulty is that
that subcommittee is simply overburdened. It has responsibility
for a $500 billion-plus defense budget, it's fighting three
wars--terrorism, Iraq, Afghanistan--it has hundreds and
hundreds of complex issues before it. It also has a
responsibility for an intelligence budget about one-tenth the
size of the defense budget.
I can appreciate that the Appropriations Committee has
brought on additional expert staff on intelligence issues. I
was pleased to hear the Chairman talk about the integration of
the Appropriations and the Senate Intelligence Committees and
the work that has been done to improve the system.
I like to hear about the focus on the key issues. You're
going to be judged on a handful of issues, the big ones that
confront American national security. Whether or not it's seen
whether you do your job or the Senate does its job or the House
does its job is really going to depend on a handful of issues,
the big, big intelligence issues that this country confronts--
we all know what they are--with regard to our national
security.
So I appreciate the efforts that are being made in both
houses in the Intelligence and the Appropriations Committees to
improve coordination and transparency. They're useful steps,
but they are not a substitute for fundamental reform.
As the 9/11 Commission recommended 3 years ago, the
Congress should either create a joint committee for
intelligence--with budget power, of course--or create House and
Senate committees with combined authorization and appropriation
powers.
It was a disappointment to us, but it came as no surprise,
that the Congress did not act on the commission's
recommendations. It's much easier for the Congress to reform
the executive branch than it is to reform its own institutions.
Committee powers in the Congress are carefully balanced. They
are jealously protected. Changing jurisdiction means
redistributing power. Few things are more difficult to change
in Washington than committee jurisdictions.
I served in the Congress. I was involved in several efforts
at congressional reform. Some failed; none of them achieved
more than partial success. And so I have a lot of sympathy with
those who take up the challenge of reform.
The approach that Governor Kean and I have taken since the
commission issued its report is pragmatic. Our preference is
for a single committee with authorization and appropriation
powers. We believe that's the best approach. We can also count
votes and, so far as I know, we don't see them.
We believe that there are other constructive approaches.
The same law that calls on this Committee to make
recommendations on congressional oversight also requires the
declassification of the overall intelligence budget. Last
October 30, the Director of National Intelligence publicly
released information on the overall intelligence budget. That
was a recommendation of the commission and we applaud the
Director's statement. A public number for the intelligence
budget means it no longer has to be hidden inside the defense
budget. A public number opens the way for the creation of a
separate Appropriations subcommittee on intelligence.
I understand full well that a separate Appropriations
subcommittee on intelligence may not be the preference of this
Committee. It was not the recommendation of the commission. But
ways have to be found to bring greater focus and additional
resources to the oversight of intelligence appropriations.
Governor Kean and I will support reforms and structures that
increase the opportunity and likelihood of robust congressional
oversight of the intelligence community.
Let me give you some practical examples as to why oversight
of the intelligence community is more important than ever and
why congressional oversight must be reformed and strengthened.
First, the United States will without a doubt intervene
again somewhere with military force. It may be the most
important foreign policy question of the coming decades.
Decisions whether to intervene and how to intervene will ride
largely on what the intelligence tells us. It is vitally
important that the intelligence community get it right.
Oversight is vitally important to help the community get it
right.
Second, the Congress since 9/11 has provided broad
authorities to the executive branch to conduct investigations
and collect data. Enhanced collection capabilities and data
mining pose high risks to civil liberties and to privacy. To
safeguard our liberties, the Congress must conduct robust
oversight over the exercise of the authorities it has granted.
Third, the success of reform also needs congressional
oversight. Reform in the intelligence community, the most far
reaching since 1947, is not easy to implement. Reform is a long
and hard road. Crises distract, attention wavers, senior
officials are pulled in 100 different directions. The executive
cannot carry out reform on its own. Support and guidance from
the Congress are necessary to sustain reform. Sustained
oversight is necessary.
Chairman Rockefeller requested comment from us with regard
to this very difficult question of access to information.
That's not a new problem in the Congress. That goes back 30,
maybe 40 years, when the committees have been fighting for more
information from the intelligence community. When I was
Chairman of the Intelligence Committee in the House, we fought
that battle every single week. It has not been resolved.
I don't know the answer to that except the only way to get
the attention of the executive is to withhold the money. You'll
get their attention quick when that money is withheld.
The checks and balances in the Constitution are there for
the Senators and the Members to exercise, if they will do it.
If you want access to information and the executive branch
won't give it to you--don't give them the money. You'll get the
information.
To conclude, let me just say that, under our Constitution,
Congress cannot play its proper role unless its oversight
committees are powerful and active. I was immensely pleased to
hear a moment ago that you have had over 60, I think it was,
oversight hearings during this year thus far. That shows a
vitality and activity that I think is just extraordinary on the
part of this Committee and you are to be commended for it.
Strong oversight provides the checks and balances our
Constitution requires. Strong oversight by the Congress
protects our liberties.
It makes our policies better. Strong oversight, I believe,
keeps our country safe and secure.
Thank you very much. After Congressman Roemer testifies,
I'll be glad to help answer questions.
[The prepared statement of Governor Kean and Mr. Hamilton
follows:]
opening statement of the hon. lee h. hamilton, former vice
chair of the 9/11 commission, on behalf of himself and the
hon. thomas h. kean, former chair of the 9/11 commission, before the
select committee on intelligence, u.s. senate
November 13, 2007
Mr. Chairman, Mr. Vice Chairman, distinguished members of
the Select Committee on Intelligence: Thank you for the honor
to appear before you today on the topic of congressional
oversight of intelligence.
My testimony today is also on behalf of Governor Thomas H.
Kean, the former Chair of the 9/11 Commission. He is not able
to be present today. He joins me in this statement.
Gov. Kean and I commend the Chairman and Vice Chairman for
holding this hearing. The importance of congressional oversight
of intelligence cannot be overstated.
Public Law 110-53 expresses the sense of the Senate that
the Select Committee on Intelligence should report by December
21, 2007 on its recommendations for improving intelligence
oversight. Therefore, today's hearing is especially timely. I
welcome the opportunity to present the perspective of the 9/11
Commission's Chair and Vice Chair.
strengthening oversight
As the Commission wrote in its final report 3 years ago,
``Of all our recommendations, strengthening congressional
oversight may be among the most difficult and important.''
Carrying out effective oversight of intelligence is very
hard to do.
If you are the Chairman of a Committee that works in the
unclassified world, you get a lot of help. There are lots of
reporters who bring issues to your attention. Trade
associations write reports. Citizens speak up. Watchdog groups
do studies. You can get the Congressional Research Service to
analyze an issue. You can get the Government Accountability
Office to investigate.
Not so in the classified world. The world of intelligence
is vast, and it is closed. It is comprised of 16 agencies with
well over 100,000 employees. Its budget is $43.5 billion a
year, and even bigger if spending by the military services is
included. If you are outside the world of intelligence, you
know nothing about it other than what the Executive branch
decides to tell you.
The intelligence committees are completely on their own.
They serve as the proxy for the American people on
intelligence. They provide the sole check and balance on a huge
and important government activity. If they don't provide the
oversight, it doesn't get done. It is an awesome
responsibility.
In short, this is why we believe the intelligence
committees need to be powerful and active. They need to carry
out the robust oversight our system of government requires:
They need to look into every nook and cranny of
the intelligence community's business.
They need to ensure that laws are obeyed.
They need to ensure that the American people are
safe and that our freedoms are protected.
what needs to be done?
The Founders understood the importance of checks and
balances on Executive power. That is why they gave the power of
the purse to the Congress.
The single most important step to strengthen the power of
the intelligence committees is to give them the power of the
purse. Without it, they will be marginalized.
The intelligence community will not ignore you, but they
will work around you. In a crunch, they will go to the
Appropriations Committee.
Within the Congress, the two bodies with the jurisdiction,
time and expertise to carry out a careful review of the budget
and activities of the Intelligence Community are the Senate and
House intelligence committees.
Yet all of us have to live by the Golden Rule: That is, he
who controls the Gold makes the Rules.
The leaders of the Intelligence Community also understand
the Golden Rule. They work hard to get the answer they want
from the people who control their dollars. They take advantage
of the fact that the Defense Appropriators are mightily
distracted from intelligence oversight because of their other
responsibilities.
why should the intelligence committee control appropriations?
I want to be very clear here: The Appropriations Committee
performs the best oversight work it can. The difficulty here is
that the Committee is overburdened. The Defense Subcommittee of
Appropriations has responsibility for a $500 billion-plus
Defense budget. It has responsibility for three wars:
terrorism, Afghanistan and Iraq, as well as hundreds of other
complex issues. It also has responsibility for an intelligence
budget about 1/10th the size of the defense budget.
Now I appreciate that the Appropriations Committee has
brought on additional expert staff on intelligence issues. I
appreciate that the Intelligence and Appropriations committees
are making efforts to improve coordination and transparency.
These are useful steps, but they are no substitute for
fundamental reform.
As the 9/11 Commission recommended 3 years ago, the
Congress should either create a joint committee for
intelligence, or create House and Senate Committees with
combined authorization and appropriations powers.
why is reform difficult?
It was a disappointment, but came as no surprise to us that
the Congress did not act on the Commission's recommendations.
It is much easier for the Congress to reform the Executive
branch than it is to reform its own institutions.
Committee powers in the Congress are carefully balanced.
They are jealously protected. Changing jurisdiction means
redistributing power. Few things are more difficult to change
in Washington than committee jurisdiction.
During the time I served in the Congress, I was involved in
several efforts at Congressional reform. Some failed. None
achieved more than partial success. Therefore, I have great
sympathy with those who take up the challenge of reform.
what is the next step?
The approach that Governor Kean and I have taken since the
Commission issued its report is a pragmatic one.
Our preference, as the report stated, is for a single
Committee with authorization and appropriation powers. We
believe that is the best approach. We can also count votes. So
far, we don't see them.
We believe there are other constructive approaches. The
same law (PL 110-53) that calls on this Committee to make
recommendations on congressional oversight also requires the
declassification of the overall intelligence budget.
On October 30, 2007 the Director of National Intelligence
publicly released information on the overall intelligence
budget. That was the recommendation of the Commission, and we
applaud the Director's statement.
A public number for the intelligence budget means it no
longer has to be hidden inside the defense budget. A public
number opens the way for the creation a separate appropriations
subcommittee on intelligence.
I understand full well that a separate appropriations
subcommittee on intelligence may not be the preference of this
Committee. It was not the recommendation of the Commission.
Yet ways must be found to bring greater focus and
additional resources to the oversight of intelligence
appropriations. Governor Kean and I will support reforms and
structures that increase the opportunity and likelihood of
robust congressional oversight of the intelligence community.
why oversight is more important than ever
Let me give some practical examples as to why oversight of
the intelligence community is more important than ever, and why
congressional oversight must be reformed and strengthened.
First, the United States will, without a doubt, intervene
again somewhere with military force. Decisions whether to
intervene and how to intervene will ride largely on what our
intelligence tells us. It is vitally important that the
intelligence community get it right. Oversight is vitally
important to help the community get it right.
Second, the Congress since 9/11 has provided broad
authorities to the Executive branch to conduct investigations
and collect data. Enhanced collection capabilities and data
mining pose high risks to civil liberties and to privacy. To
safeguard our liberties, the Congress must conduct robust
oversight over the exercise of the authorities it has granted.
Third, the success of reform also needs congressional
oversight. Reform in the intelligence community, the most far-
reaching since 1947, is not easy to implement. Reform is a long
and hard road: Crises distract. Attention wavers. Senior
officials are pulled in a hundred different directions. The
Executive cannot carry out reform on its own. Support and
guidance from the Congress are necessary to sustain reform.
Sustained oversight is essential.
conclusion
Under our Constitution, Congress cannot play its proper
role unless its oversight committees are powerful and active.
Strong oversight provides the checks and balances our
Constitution requires.
Strong oversight by the Congress protects our liberties and
makes our policies better.
Strong oversight keeps our country safe and free.
I appreciate your time and attention, and look forward to
your questions.
Chairman Rockefeller. Thank you very much, Congressman
Hamilton.
Congressman Roemer, we welcome you.
STATEMENT OF HON. TIMOTHY ROEMER, FORMER MEMBER,
9/11 COMMISSION, AND FORMER MEMBER OF THE U.S. HOUSE OF
REPRESENTATIVES
Mr. Roemer. Thank you, Mr. Chairman.
I'm going to ask unanimous consent that my entire statement
be entered into the record, and I want to speak from the heart
as a former Senate staffer, where I had my first job in the
U.S. Senate, as a former Member of Congress, where I often
fought with the executive branch for information, as a former
member of the Intelligence Committee, where I will talk a
little bit about some of the experiences and the frustrations
we had on that committee getting information and answers as,
Mr. Chairman, you have eloquently stated in your opening
comments.
Mr. Vice Chairman, nice to be with you. I applaud your
efforts to recognize Senator Burr and Senator Bayh's bipartisan
bill, because at the end of the day, that's the only way that
we can successfully approach and solve this problem of gaining,
rebuilding, reforming congressional oversight to counter the
Executive power and will on that side.
When I told my 7-year-old daughter, Grace, that I was
coming up here to testify before Members of the Senate, she
said, ``Daddy, are you in trouble?'' I think I knew the answer
to that. Yes, I was walking into trouble. I'm a former staff
member who did appropriations work for a United States Senator
from the State of Arizona, Senator DeConcini, and I knew very
well the battle that takes place between authorizers and
appropriators.
I remember when I decided to run for Congress and go back
home to Indiana and they gave me a going away party. Running
against an incumbent, we won. And I remember being greeted
coming back, and they had a coming back to Washington party and
they said: ``Mr. Roemer, you just went from being an
appropriator to being a lowly House authorizer. We welcome back
the intellectually challenged to Washington, D.C.''
There is no doubt that this is a battle going on here in
the Senate and over in the House.
I want to talk about 9/11. I want to talk about the three
most compelling reasons why we need these reforms, and I want
to talk about some of the options that we have before the U.S.
Senate and the U.S. House.
The 9/11 attacks exposed a great many flaws in our defenses
on that horrific day where we lost 3,000 people. Turf wars,
cultures preventing information sharing and a lack of unity led
to some of the problems on 9/11.
Terrorism thrives on this division. They take advantage of
it with dynamic action and entrepreneurial activity. And they
can strike with airplanes as weapons and kill hundreds and
thousands of Americans. Imagine if they get a dirty bomb or a
nuclear weapon.
Recognizing these flaws, the U.S. Senate and the U.S. House
took action. They recognized that we needed to unify the
executive branch in order to confront some of these
difficulties and problems. You created a strong DNI; you
created a strong National Counterterrorism Center. You created
a Department of Homeland Security; I'm not so sure how strong
that one is, but the effort was to centralize power.
Now it's time to focus on a unified and robust
congressional oversight structure. You've done that for the
executive, now we need the countervailing balance, that power,
on the legislative side, as Madison talked about, the first
branch of Government. Let's make it a first-class and first-
rate power to compete with the executive branch.
So I applaud this Committee's willingness to look at this
difficult problem, to take on turf and money and internecine
warfare.
What are the three most compelling cases for reform? First,
as Senator Bond I think very eloquently stated, there is a
growing budget and growing fiscal responsibility to do this
right. George Tenet released and declassified the budget in
1997 for intelligence spending and back 10 years ago it was
roughly $27 billion for the taxpayer. Mike McConnell just
released this figure the other day; he said it was $43.5
billion. Now you have 50 staffers on the Intelligence Committee
to peruse, to look into that budget, to try to ask the tough
questions about renditions, covert operations, special access
programs.
The Defense Subcommittee doesn't have 20 and they don't
have 10; I think they have roughly a half a dozen people. And
they have responsibility not for the $40 billion, but for about
a $500 billion defense budget--including supplementals that
come through that committee--so those staffers and those
Members, as good a job as they can possibly do, are overtaxed
and overburdened. And I think Congress needs to recognize that
and address that.
Furthermore, in intelligence we have some of the most
sensitive collection technologies, the most sophisticated spy
architectures, the most extensive covert programs and
renditions and special access programs. Those need vibrant
oversight.
Two, the world has changed dramatically since 9/11. The
cold war structure that was meant to deal primarily with armies
and nation states around the world is not necessarily the
primary threat to America today. It's rogue states; it's remote
villages. It's the Internet, where al-Qa'ida recruits day in
and day out. Al-Qa'ida, as I said before, can use airplanes to
strike this Nation in a moment, in an instant, and try to kill
hundreds of people.
We still may have legacy budgets and legacy architectures
from that cold war. We need to spend less time on the tactical
side and more time on the long-term strategic planning to try
to make sure our intelligence budgets are right and they're not
just right for tomorrow, we get them right for the next five to
10 years.
Thirdly, very compelling reason for this reform is the
critical nature today of intelligence. Intelligence has always
concerned matters of life and death. Now we know that they also
concern matters of going to war, of winning wars and of staying
out of wars. And we also know that intelligence is compelling
in that it will give us information on Iran and what we might
do next and what options are out there to make the critically
right and important decisions.
We have assaults from a bloodthirsty enemy that creates a
climate of fear in and out of our Government today, so it's
very important that we get these intelligence budgets right.
It's very important that we get the right kind of people before
these committees. And my experience on the Intelligence
Committee tells me that oftentimes when you serve on the
authorizing committee that the intelligence community
understands that and can game the system. They can circumvent
that authorizing committee that has spent months doing budget
oversight, that has spent years doing language capabilities and
requirements and how needed that is for our rebuilding of our
human resources and our human capacities, and they go to two or
three people on the Appropriations Committee and get around
months or years or work on the authorizing committee.
Those 60 and 70 hearings, Mr. Chairman, that you pour your
heart and soul into to find out what we need to do to get that
intelligence community going in the right direction after
mistakes, are sometimes absolutely ignored and circumvented and
the intelligence community knows the game and they know how to
play it. There is an old saying that if that play keeps working
three yards up the middle in a cloud of dust, they're going to
keep running the same play.
What options do we have, Mr. Chairman and members of the
Committee, going forward? I think, Senator Rockefeller, you
outlined some ideas that are positive steps, progress: the
memorandum of agreement, the creation of the Technical Advisory
Group, the subcommittee that has empowered audit and
investigative capability. I hope that is empowered even more
with more staff and more capabilities.
And the Speaker of the House led the way in creating a
House oversight panel on appropriations that I think is working
very well. I talked to several of those Members over the course
of the last several weeks and they say it's working better with
more staff doing oversight, with more Members doing oversight,
with increased cross-pollination between the authorization and
the appropriations committees and much progress is being made.
I hope that that continues and that the Senate and the House
will go further in how to address the problems before them.
As the distinguished former Member of Congress, Congressman
Hamilton stated, the 9/11 Commission has recommended two
different options. And I have to say what an honor it is to be
here in this room where the 9/11 families gathered so often
with their pictures of their family members, where the
committee held its hearings, where our distinguished Vice Chair
who's led Indiana and is looked up to by so many Americans for
his role in Congress and his post-roles since Congress, that
I'm very honored to be before all you Members of the U.S.
Senate.
We recommended either combining the authorization and
appropriations committees, no term limits, try to empower those
members with increased knowledge and experience, as we don't
put term limits on other committees, or create a joint
committee on intelligence, similar to the Joint Atomic Energy
Committee that worked in secret, that worked in a bipartisan
fashion and worked effectively with the executive branch.
In conclusion, let me just say going back to my days in
graduate school, we were forced to read over and over and over
again Woodrow Wilson's book, the classic that he wrote in 1885
called ``Congressional Government.'' And he made two important
observations. One, he stated, ``Quite as important as lawmaking
is vigilant oversight of administration''--vigilant, vigorous
work from our staff and our Members prying into what the
executive branch is doing when they're doing more and more
sensitive things that could possibly violate Americans' rights
and liberties.
And second he made the observation that, ``The informing
function of Congress is to be preferred even to its legislative
function, even to legislating and creating new laws, that
Congress be empowered to do its job of overseeing the
President, whatever party he or she may be, whatever views they
represent.'' That is the fundamental responsibility of what you
do every day when you come to work, I think, to make sure that
we feel that the exceptional nature of intelligence warrants
this exceptional approach from Congress to create this powerful
type of committee.
With that, Mr. Chairman, Mr. Vice Chairman, distinguished
members, Mr. Hamilton and 9/11 families, I thank you.
[The prepared statement of Mr. Roemer follows:]
statement of hon. timothy roemer
Reforming Congressional Oversight of Intelligence
Testimony Before the Senate Select Committee on
Intelligence
13 November 2007
Of all our recommendations, strengthening congressional
oversight may be among the most difficult and important. So
long as oversight is governed by current congressional rules
and resolutions, we believe the American people will not get
the security they want and need.
-The 9/11 Commission Report
Mr. Chairman, Senator Bond, Members of the Committee, I am
honored to be here today. The honor is particularly great given
the presence of my former colleague and fellow Hoosier, Lee
Hamilton.
The 9/11 attacks revealed a great many flaws in the conduct
of America's defense, many of which stemmed from a lack of
unity across the institutions designed to protect us.
Terrorism, we learned, thrives on division: turf wars between
foreign and domestic intelligence agencies hampered information
sharing; the Central Intelligence Agency and Department of
Defense sparred over control of the intelligence budget; at the
state and local level, first responders lacked compatible
equipment and a sufficiently unified incident command system.
Recognizing these flaws, Congress responded by attempting
to enforce unity of effort throughout the government. It
created the Directorate of National Intelligence and the
National Counterterrorism Center to centralize control of the
intelligence community and the nation's counterterrorism
efforts. Domestically, it created the Department of Homeland
Security to coordinate infrastructure protection and ensure a
seamless transition between Federal and local security
programs.
I commend Congress for taking these important steps, as
outlined by the 9/11 Commission, toward unity in the executive
branch. Now it is time for Congress to focus on itself and on
what the Commission labeled as one of its most important
recommendations: a unified intelligence oversight structure in
the Congress.
The 9/11 Commission recommended a more coordinated--and
therefore more robust--Congressional oversight structure
because we recognized the critical role that the legislative
branch plays in the conduct of America's national security. We
acknowledged that countering the threat of terrorism
necessitated a shift of authority to the government. The
intelligence capabilities behind such enhanced authorities are
more powerful and penetrating than at any time in American
history. And yet, for the government to sustain the powers
necessary to win the war on terrorism, it must maintain the
public's trust that it will wield them appropriately.
To do that, Americans must be reasonably assured that the
Congress is fulfilling its constitutionally mandated role as a
check on the executive. Reforming the structure and nature of
Congressional oversight remains the best way to ensure Congress
does so in the most effective manner possible.
I applaud this committee for its willingness to examine
such a difficult and complex issue.
the case for more and better oversight
I would contend that the Commission's suggestions on
oversight reform stand on their own merits apart from current
events. But a growing intelligence budget, a more dangerous
world and a growing reliance on intelligence for important
policy choices have made reform all the more imperative.
A Growing Budget
Last month, the Director of National Intelligence revealed
that the budget for the United States National Intelligence
Program stood at $43.5 billion dollars. Hidden within those
billions of dollars are the paychecks for a growing number of
talented personnel and the price tags for some of the most
sophisticated collection technologies and most sensitive
programs in American history. With wars in Iraq and
Afghanistan, a global fight against al-Qaeda and the need to
maintain and improve our traditional collection activities, the
prospect of either declining or stalled growth in the
intelligence budget seems remote in the near term.
The sharp growth in the intelligence budget also strains
the existing and already taxed oversight structures in
Congress. In addition to overseeing a growing intelligence
budget, the Defense Appropriations Subcommittees in both the
House and Senate--the bodies responsible for appropriating the
intelligence budget--have to contend with the responsibility to
oversee an even faster growing defense budget. Put simply, we
need more oversight of intelligence because there is so much
more intelligence to oversee.
The World Has Changed
Congress cannot remedy all of the problems of oversight by
simply doing more of the same in part because the intelligence
community of today little resembles the one which Congress
first designed its oversight structures to monitor. In years
past, no single official enjoyed central command of the many
intelligence agencies. The intelligence budget represented the
priorities of agencies more than the community as a whole.
Much work still remains to be done to ensure the
intelligence community moves in unison. Today it is nonetheless
more of a unified entity than before. The 2004 Intelligence
Reform and Terrorism Prevention Act, as well as subsequent
legislation, have placed broad authority over the community's
budget and personnel into the hands of a single official. Faced
with an intelligence community more unified in asserting its
own priorities, the voice of Congress remains splintered across
four committees in two chambers.
The world that the intelligence community is charged with
providing information on has changed drastically, as well. The
end of the cold war brought with it rogue states and non state
actors willing to challenge the world's remaining superpower.
The most critical information no longer resides exclusively in
military bases or in European embassies, but also in remote
villages, on the internet and in the world's forgotten corners.
It is of the utmost importance that the intelligence committees
seek to do more long term planning to better match resources
with changes in the global security environment. Unfortunately,
the twin pressures of authorizing each year's multibillion
dollar intelligence budget and attending to the numerous
foreign policy ``hotspots'' consume most of Congressional
overseers' time. This leaves precious little time to devote to
the development of a strategic outlook.
The Critical Nature of Intelligence
Intelligence, as a supplement to American foreign and
national security policy, has always concerned matters of life
and death. It can win wars, lose wars or prevent them
altogether. In today's increasingly uncertain world--
particularly one in which preemption features prominently in
America's defense policy--it is especially crucial. We are not
simply collecting more intelligence, but asking more of it, as
well. In 2003, our decision to use military force in Iraq
hinged on it. Both today and tomorrow, intelligence will play a
crucial if not deciding role in the important decisions we must
make about our policy toward Iran. Given the great numbers of
lives at stake, in a scenario of either military action or
inaction against Iran, Congressional oversight to ensure the
accuracy of Iranian WMD intelligence--or intelligence on any
other nation's WMD capability for that matter--will in no small
way influence the course of American history.
It is also undeniable, regardless of one's views on the
many controversial intelligence programs undertaken since 9/11,
that the intelligence community is using more aggressive tools
to collect information than ever before. The assault on America
and its allies from a swift and ruthless enemy has
understandably created a climate of fear both inside and
outside of government. The mixture of threats, fear and
enhanced executive power can prompt the intelligence community
to push right up to the line of legal and ethical
acceptability. This climate can just as easily push it far
across. Congress' increased attention is required to ensure
that the latter does not happen.
options
In the face of such challenges, Congress has undertaken
some reforms to address past difficulties and to address the
fluid national and international environment.
The House has taken a constructive step forward
in the creation of the House Appropriations Select Intelligence
Oversight Panel.
The Senate reduced the number of spaces on the
Intelligence authorization committee from 17 to 15.
The Senate Select Committee on Intelligence has
signed a memorandum of understanding with the Senate's Defense
Appropriations Subcommittee pledging to share information more
freely and coordinate better on budget priorities.
These changes are praiseworthy. But the revolutionary
changes in the world and in government demand a solution from
Congress that is more than the sum of a few individual reforms.
The 9/11 Commission recommended two options that would reform
oversight in proportion to the different world in which it must
now operate.
Combine Authorization and Appropriations Powers in Each
Chamber
First, Congress could grant joint authorization and
appropriation authority to a single committee in each chamber.
The necessarily secret nature of intelligence denies
intelligence committees the ability to oversee the community in
ways that are routine for other committees. Classification
means only a small number of outside experts, nongovernmental
organizations or members of the private sector are able to help
Congress independently evaluate the intelligence community's
management and activities. Similarly, it prevents Congress from
leveraging public pressure against executive branch actions of
which it disapproves.
In the realm of intelligence, Congress is forced to check
and balance the executive with one hand tied behind its back.
Devoid of the full range of tools available to other
authorizers, the intelligence committees must rely heavily on
the power of the purse to assert their will. By combining
authorization and appropriation powers into a single committee
in each chamber, Congress could speak to the executive branch
on intelligence matters in a more unified voice using the
language that most commands its attention.
A Joint Committee on Intelligence
A second option would be to combine the authorizing bodies
from each chamber into a single committee modeled on the Joint
Committee on Atomic Energy. The Joint Atomic Energy Committee
serves as a particularly apt framework because its consolidated
jurisdiction over authorization in the House and Senate allowed
Congress to oversee a powerful new capability, with speed,
secrecy and the confidence of the executive branch.
Either new structure would require a range of other powers
and changes, codified by resolution, in order to function as
intended. It should reduce the number of seats available, both
to encourage greater accountability in the legislative branch
and greater trust from the executive branch. Membership should
be drawn from the Defense Appropriations Subcommittee, as well
as the Judiciary, Foreign Affairs and Armed Services
Committees, in order to reflect the views of intelligence's
many constituencies. Membership should also not be constrained
by term limits to allow Members to develop the expertise
necessary to oversee a dense and complex collection of
agencies.
Critics note that both of the Commission's proposed reforms
represent an exception to the general practice of Congressional
oversight. We feel that the exceptional nature of intelligence
warrants an exceptional approach from Congress.
conclusion
Woodrow Wilson, as many of you may recall from your
government classes, wrote a classic book in 1885 called
Congressional Government. He made two particularly perceptive
insights regarding oversight. First, he stated that ``quite as
important as lawmaking is vigilant oversight of
administration.'' His second observation was that the
``informing function of Congress is to be preferred even to its
legislative function.'' Absent vigilant oversight, the
informing function is weakened and, as Wilson concluded, both
Congress and ``the country remain in embarrassing, crippling
ignorance of the very affairs which it should understand and
direct.''
If Congress is to be the ``First Branch'' of government,
then focusing on greater efficiency and accountability in the
intelligence community is worth doing the right way.
I thank you for the opportunity to speak on this important
matter and look forward to your questions.
Chairman Rockefeller. Thank you very much, Congressman
Roemer. You spoke from the heart with a lot of erudition.
Mr. Roemer. Thank you, sir.
Chairman Rockefeller. You just memorized that Woodrow
Wilson book.
Mr. Roemer. It's a terrific book; I think I had to for
graduate school.
Chairman Rockefeller. OK. Let's just cut to the nub of
this. Actually it was very interesting to me.
The Vice Chairman and I never look at each other's
statements before we open meetings. And we have a very good
record, I think, I believe, on working in a bipartisan fashion.
And I think it's been noticed in the intelligence community.
But let's get down to some of the practical considerations,
and I'm really seeking your guidance on this. I gave a
statement in which I talked about the appropriations matter,
which to be honest was sort of fulminated over a particular
not-to-be-talked-about matter. Having said that, the concept of
having the Intelligence Committee doing both the authorizing
and the appropriations is deeply attractive to me, is deeply
attractive to me. Where I run into trouble is not on the
philosophy of it or on the righteousness of it, because we have
so much more expertise than they have, as the Vice Chairman so
eloquently put--I mean so much more; it is our obsession.
The question comes, when this was put to the Senate, this
idea, it got 23 votes, and Congressman Hamilton referred to
that, you know, when he said, ``I can count.'' And so that
brings me to a conundrum. In other words, one part of me says,
OK, so you get 23 votes. So you persist. That's what life is
about. That's the way both the Vice Chairman and I were able--
incidentally, they don't just game us, Congressman Roemer; we
can also game them, and I've gotten pretty good at that. And
it's an interesting process and not all that difficult.
But if we push this concept and we get 23 votes--but that
was before. Now, we come back at them again. There is no
particular weakening of the Appropriations Committee that I've
noticed, but I may be entirely wrong; I mean, I'm not on it and
I wouldn't be on it. I wouldn't be on it; that's not
interesting to me. This is interesting to me. But if you push
the vote again and you again get 23 votes, you get 25 votes,
you get 27 votes, you get 20 votes, can it be said that, in
fact, your position has weakened, and that other efforts to
cooperate with them, if that is possible, are also weakened
because the vote failed by a large margin?
Now, the Appropriations Committee is a very mysterious and
amazing presence among all of us. And everything always comes
down to that because they have the money and it's hard to get
around. But if you get 23 votes for something, you can either
come back and try it again and try it and try it again, or you
can also look at some of the things that I suggested, what I
think Vice Chairman Bond pointed out very well that hadn't
necessarily worked, although I think in many cases that's
simply because the effort was not made because maybe we were
doing too many hearings and also the appropriators are very
skillful in the way they time what they do.
But speak to me in plain terms about the strategy of
getting the Congress or getting the American people to
understand that unless we do both of these processes--we do the
authorizing and we do the appropriating--I am all for that, and
you can put me right on the Burr bill. Don't do it quite yet,
please.
[Laughter.]
Chairman Rockefeller. But I need to know the answer to that
question, because if you fail, then you fail again, you're
weaker. If you're weaker, then other things that you're trying
to do to try and supplement or to move in further directions,
to go around a corner or to come up from underneath behind them
or something of that sort, are also weakened.
And I am perplexed by such and would seek your wisdom.
Mr. Hamilton. The new factor is the publication of the
intelligence budget.
Now, in the past, the defense appropriators have always
said no, no, we can't disclose that figure and therefore we
can't have a subcommittee to deal with just the intelligence
budget. That is by the boards now. Everybody now knows what the
intelligence budget is and you can bypass, if you would, the
traditional opposition of the defense appropriators, at least
on that point. So that's an important point.
Secondly, the mere fact that you negotiate a memorandum of
agreement and that the House, as Tim was testifying a moment
ago, has changed their way of handling the budget and all of
the discussion indicates that the Senate recognizes you're not
doing the job or you wouldn't be thinking about all these
reforms. There must be then a feeling in the Senate that we're
not doing as good a job as we ought to be doing on intelligence
oversight. If there isn't that feeling, you wouldn't be making
reforms. But you are making reforms.
The third point would be look at what tactical moves should
you make as the Chairman of the Committee in order to garner
more votes above the 23 for this authorizing and appropriating.
I don't know that I can be very helpful. You have to make those
judgments yourself after talking with your colleagues about it.
To me, the strong point simply is that the Senate of the
United States and the House of the United States is not doing
its job. And because you're not doing the job, the country is
not as safe as it ought to be, because one of my premises is
that robust oversight is necessary for a stronger intelligence
community. I don't think the intelligence community agrees with
that.
They may rhetorically agree with it, but deep down I don't
think they really agree to it. But you and I, I think, would
agree to it. And you just have to keep pushing to go as far as
you can to get necessary changes.
Now, this is not a trivial matter. You're not dealing with
the jurisdiction of the Education Committee, where it doesn't
make very much difference, frankly, who has the control of it.
You're dealing here with the national security of the United
States, and the Senate and the House ought to have the deep
down feeling that we've got to get this thing right.
So that's about all I can say. I applaud, Mr. Chairman,
your efforts within the world you have to operate in, but I
think we're on the right side of this issue in terms of the
effectiveness of the Senate or the House in conducting its
responsibilities and you just have to keep pressing that issue.
And the appropriators, look, have to be persuaded here that
they haven't been doing their job on intelligence, not because
they don't want to. I'm sure they do want to. They're just
simply overloaded.
You cannot take a $500 billion budget--that doesn't include
the supplementals, I don't think it does--and do an effective
job of oversight on that kind of a budget, even with the staff
they have. They just have so many questions. With all of that
responsibility, they cannot do an effective oversight of
intelligence.
And if I'm right about the importance of intelligence in
American foreign policy in the future--intervention being the
key question--your responsibility is to get the very best
intelligence you can possibly get. I think that's what you have
to work toward.
Chairman Rockefeller. I apologize to my colleagues, but the
declassifying of the top line I don't think was a huge matter
to the Appropriations Committee. It was not a huge matter. It
was not a big deal because it doesn't----
Mr. Hamilton. Well, it's a big deal in terms of
jurisdiction because----
Chairman Rockefeller. Yeah, but it doesn't tell you
anything.
Mr. Hamilton. What's that?
Chairman Rockefeller. It doesn't tell you anything.
Mr. Hamilton. No, I don't think it tells any secrets.
Chairman Rockefeller. Right. And then the second matter
is--I mean, I can't escape it. I mean, we can pass a law if we
could ever get the votes. I'd vote for it. But I don't think
you answered my question.
Mr. Roemer. Mr. Chairman?
Chairman Rockefeller. I don't think you answered my
question because you said we have responsibility for the
national security. You better believe that we understand that.
You better believe that when I was one of four being briefed on
certain programs and they were appearing on television all the
time saying: Oh, the Congress has been briefed, and I'd love to
discuss some of those briefings to you and I won't do it, but
they were superficial, they were inconsequential.
And so it's a question of us reforming ourselves and then
me, as Chairman, working with our Committee members and Vice
Chairman Bond trying to get that 23 up and educating the
Appropriations Committee.
But it's also a little bit the responsibility of the
executive branch of Government, and I just don't think you can
pass that over. I just don't think you can say well, they're
all the same. There's never been anything like this--never in
the way of shut-out of information--willful, gleeful--stemming
from the Vice President's office and David Addington and other
things of that sort.
And I've gone on too long. I'm very angry about it. I'm
very angry about it, and I think it's a very, very big factor.
Mr. Hamilton. You have a right to be angry about not
getting access to information. You can't do the job unless
there is trust between the executive and the legislative
branch.
Chairman Rockefeller. And there is not.
Mr. Hamilton. Trust is the coin of the realm, and no matter
what kind of institutional structure you put into place, no
matter what kind of organization you make, if you don't have
that underlying trust, the system's not going to work very
well. And part of underlying trust is whether or not they're
willing to share information with you. I'm 100 percent with you
on that.
OK, they don't share information. What do you about it?
You've only got one tool: ``If you don't give us this
information, you're not going to get the money.'' That's it.
Mr. Roemer. Mr. Chairman?
Chairman Rockefeller. Please. And I apologize to my
colleagues in genuine, genuine terms.
Mr. Roemer. Mr. Chairman, I want to just underscore and
associate myself with Mr. Hamilton's remarks.
Answering what you said might be a strategy to go at this
in the next round after you get 23 or 24 or 25 votes on
something like this, first of all, I think that I completely
share your frustration about the example that you used about
the gang of eight.
I was never one of the gang of eight, but part of the rules
on the Intelligence Committee is when you get briefed into a
special access program oftentimes you're in there with no
staff, no other Members, you cannot take notes, you cannot go
out of the room and go to Senator Feinstein or Senator Snowe or
Senator Whitehouse or anybody else and say, ``I've got an idea
for an amendment; there's a cost overrun that I'm concerned
about.'' You can't do any of that.
These are extraordinary restrictions so there is
extraordinary action and robust congressional oversight that
needs to be considered for that. You can use the press in other
hearings. When you find that oversight and that abuse on
budgets on the Education Committee, we can expose that with
sunlight. You cannot do that on the Intelligence Committee.
Secondly, what Congressman Hamilton I think emphasized
was--what was that saying in the Tom Cruise movie--show me the
money. That's absolutely the way to get their attention.
And the way for you to argue this with the appropriators is
for each and every staffer that has oversight on the defense
appropriations committee, they're responsible for about $100
billion. Who can do that real well? Who has the time and the
energy and the resources to oversee both the defense and the
intelligence budgets combined with supplementals to do that
effectively for our taxpayers? And we just saw in the New York
Times the cost of architectures when they go over budget to the
American taxpayer.
And third, you know, just saluting Senator Burr, who has
left, I think when you have the time to begin to focus on a
particular bill and amendment and you can talk to your
colleagues on the floor rather than just a surprise amendment--
here's a 9/11 recommendation; you know, by the way, it's to
consolidate committees and so forth and you're taking on
power--that's very difficult.
But when you have a bill, a bipartisan bill with respected,
respectable, good, thoughtful people on it and this one does--
and if you joined, Mr. Chairman, it really gives it added
impetus and momentum with Mr. Bond--then you begin to work your
colleagues and you have a few weeks or months to try to show
that you can get that vote up into the 30s or 40s or maybe
prevail.
So I think given the time and the resources, I think you've
got a vehicle now to go forward and a more effective way to do
this.
Chairman Rockefeller. I thank you, sir, and I apologize to
my colleagues and the Vice Chairman.
Vice Chairman Bond. Thank you, Mr. Chairman and Congressman
Hamilton and Congressman Roemer. We really appreciate your very
thoughtful and very important testimony, and I was going to ask
you a couple of questions. If I have any time left, I will do
that. I certainly want to follow the 5-minute rule.
But I want to point out that there's some things that have
changed. Number one, we've had experience under the new
structure of the Director of National Intelligence. I didn't
vote for that, the initial bill, because I didn't think it gave
the DNI enough power. And we're going to hold hearings and
we're going to work with him because we're finding they don't.
Also I think we have seen that there is still a real gap
between authorization and appropriations that is costing money
and inhibiting our effective oversight. I outlined in my
opening statement where we blew a lot of money, and I think we
were not nearly as effective as we could have been.
Now, I should say by way of aside, what I mentioned
earlier--and that is that I've worked very closely with the
Chairman, with the director of national security and we have
greatly expanded in this year the access to all members of the
committee and most of the staff to these most sensitive
programs, and I am strongly committed to expanding that.
But I think you made the point that if you don't show me
the money, you're not going to get the bill. You're not going
to get the resources you need. And this is--I think your
testimony, the experiences that we've had, the fact that we've
had time to look at it, I think this is a game-changing mode.
And I like Congressman Hamilton's idea.
We don't necessarily have to go so far as to take away from
the Appropriations Committee the appropriating authority. But
what we do need to have is a statutory responsibility that our
recommendations of this Committee, implemented through our
staff experts on budget--and we've got excellent budget people
on this authorizing committee--should be in a position to take
the initial allocation for the national intelligence program,
working with our Committee, lay it out, and have overlapping
members of this Committee and the SAC/D with additional
committee members and Chairman and Ranking Member, if
appropriate, serve on a subcommittee and bring that up to the
full committee.
I have no doubt that, within the committee structure of the
Appropriations Committee, if you brought a well-thought-out,
well-staffed national intelligence program, it would be very
rare when the full committee--unless there was an
overwhelmingly good reason--would overrule it.
But our good ideas haven't even had a chance. I'll take the
opportunity in the limited sunlight of a closed appropriation
hearing. If we have our staff working with the full members of
the SAC/D along with authorizers, I think we can make the case.
If they beat us on one or two, they're going to have to have a
good reason.
So I thank you, and I think you've given us a game-changing
scenario.
I just thought I'd ask the two of you if, in your
experiences when you served on the House Permanent Select
Committee on Intelligence, you were shut out from
recommendations from the Appropriations Committee or were not
permitted--you did not have opportunities to make changes in
the appropriations measures that your committee, authorizing
committee, thought were very important.
Did you have any such experiences?
Mr. Hamilton. Well, of course we did, Senator Bond. And you
have to work in the environment and in the context and under
the rules that you have.
And when I was Chair of the Intelligence Committee, we were
frequently, continually bypassed. How did I deal with that?
Well, I dealt with it by very, very close contact,
consultation, with the Chairman of the Appropriations Committee
and the Chairman of the Defense Subcommittee. And I tried to
persuade them of the value of the Committee recommendations. In
other words, I tried to use what influence I had as an
authorizer with the appropriators.
The intelligence community wasn't going to pay any
particular attention to me, even though I was Chairman of the
Committee, because they knew they didn't have to. And they
didn't.
How did I deal with it? Well, I went to the Chairman and
the ranking members of the appropriating committees and dealt
through them.
I want to comment on one thing that I think you alluded to,
this question of who do you inform on the Intelligence
Committee. It used to bother me a great deal.
Bill Casey was the Director of the CIA when I was the
Intelligence Chairman, and we had a very good working
relationship. He was a very able director. But he would
continually come to me, almost on a daily--not daily, but
weekly basis and say, ``Lee, I've got some information here
that I'm perfectly willing to share with you, but I don't want
you to share it with anybody else on the Committee.''
And I told Bill Casey, I said, ``Bill, that just puts me in
an awful spot as Chairman, and I'm not comfortable with it.''
And so I said my general rule is going to be that unless you
can share it with members of the Committee don't bring it to
me. And that's basically the rule we adopted.
Now, I'm not sure I was right about that. That's kind of an
agonizing situation to be in, but that's the choice I made at
the time.
Bill Casey would come back and say, ``Well, you're denying
yourself information that you ought to have as Chairman.'' But
what good is the information if I can't do anything with it?
And you're often in that spot if you're in the gang of eight
today or in some other roles and you're given information that
is terribly important. What good does it do to have the
information if you can't do anything with it?
That's a dilemma that I think you must confront. It's a
difficult one. That's the way I resolved it. I'm not sure
that's the right way.
Mr. Roemer. Senator, I thought, first of all, you made a
very good point about the DNI authorities. And the Senate bill
is different from the House bill. I think the Senate bill is
strengthening and defining those authorities more clearly and
giving the DNI more power. The House bill doesn't go quite as
far as the Senate bill does.
One of the things we said on the 9/11 Commission is when
you create this very powerful and strong executive branch
entity, the Director of National Intelligence, you best create
a very strong entity to oversee it and create robust and
vigorous congressional oversight. You're going to be looking to
strengthen this body over here. You better make sure that, you
know, our body--the congressional body here can continue to
oversee those authorities.
To your point about staffing and authority and the House
panel, I thought the Speaker and the Members on the House side
took some very good steps about increasing staff on the House
side on this appropriations panel. I think it went from one and
a half to five or six, and they're trying to get to seven,
eight or nine people.
They're also spending much more time doing oversight on
that appropriations panel. The members that I talked to are
very pleasantly surprised. They think they are making a
significant difference.
They're also pleased with their relationship with the
Defense Subcommittee and their work between the intelligence
panel, the subcommittee panel and the full defense
appropriations. Their recommendations are generally being
accepted by the defense appropriations full committee.
So the working relationship is good. The staff in
increased. The amount of oversight is increasing, and then
there are three members of that panel that are on the
authorizing committee on the House side, and they're increasing
the power of the authorizing committee.
So those are positive steps going forward. I think
Congressman Hamilton and I would still say that the single
committee, the approach that you're taking and Senator Bayh and
Senator Burr, is the preferred approach.
Vice Chairman Bond. Thank you very much, Mr. Chairman.
Chairman Rockefeller. Thank you, Mr. Vice Chairman.
Senator Wyden?
Senator Wyden. Thank you, Mr. Chairman.
One question for each of you that deals with concrete
examples of what I think needs to be done for effective
oversight.
I noted that in your 9/11 Commission report, Chairman
Hamilton, you said that the FBI had little appreciation for the
role of intelligence analysis, and the FBI's information
systems were woefully inadequate.
So, recently we had FBI senior officials up here and I said
part of effective oversight means you go back and see what's
been done to correct what your commission found. And so I had
to go round and round with them, but finally we managed to pry
out of these senior FBI officials that only two of the 24
senior intelligence analyst positions created by the Congress
had been filled and that a very substantial portion of these
analysts and agents at this point do not have access to the
Internet at their desk.
So we've got a problem you found. We, doing our job in the
oversight area, ask about it again. I'm planning to bulldog
this until it gets corrected.
What's your sense about the next move?
Mr. Hamilton. The first observation would be if the
principal role of the FBI is shifted from law enforcement to
counterterrorism or domestic intelligence, the role of the
analyst becomes critical, to the point where what the analyst
does should drive the whole FBI.
Now, as you'll recognize, what I just said goes against the
whole culture of the FBI because, in the FBI, the special agent
in charge is the king. He's the king of the hill. So you have
to improve the quality, the expertise of the analyst if they're
going to carry out this function of counterterrorism.
I'm not persuaded that that's happening in the FBI today.
In other words, the law enforcement culture is so deeply
ingrained it's hard to change, and I recognize Director
Mueller's making a heroic effort here.
Now part of that is the systems that you have identified.
They do not yet have the tools to get the information they need
to be an effective analyst. And my sense of that, Senator
Wyden, is that the FBI has just had huge management problems
and they've not dealt with them effectively. I think they're
dealing with them better than they did. You know the systems--
the problems they've had with their IT system.
So you're going to ``bird dog'' it. That's terrific. That's
exactly what needs to be done. Somebody has to focus on the
role of the analyst in the FBI and to make sure that the
analyst has the information he or she needs in order to fight
the war on terror.
And my belief is that's more of a management problem today
than anything else for the FBI.
Senator Wyden. Let me see if I can get one other question
in.
I want to ask my longtime friend, Tim Roemer.
I think, Mr. Roemer, you're probably aware of the news
reports indicating that the Director of the CIA has now ordered
an internal investigation of the CIA inspector general. And I
found this very troubling and going right to the heart, again,
of the ability to do effective oversight.
The inspectors general, of course, are a key source of
information for the Congress, number one. Number two, when the
administration fights--as Chairman Rockefeller has just noted--
to keep Congress in the dark, the inspector general, in effect,
is the only independent oversight force out there. In other
words, there isn't anybody else.
So I have asked Director McConnell to order General Hayden
to suspend this internal investigation. I think it is a
chilling development. I've been very pleased by the comments
I've seen of the Vice Chairman on this. I know the Chairman has
been concerned about this.
What is your assessment of something like this, which I
believe is without precedent and in my view probably the
inspector general of the CIA is just about as important as any
inspector general that's out there? I'd be interested in your
reaction to this.
Mr. Roemer. Well, Senator, great to see you, and I applaud
your good work on the Intelligence Committee.
Going back to your question on the FBI, the IG at the FBI--
a man by the name of Glenn Fine--has done some exceptionally
important work in overseeing some of the cultural problems,
some of the management difficulties, some of the budget issues.
And he has firmly focused the spotlight on those problems and
exposed those problems, oftentimes to the chagrin of the FBI.
Back to your bird-dogging question, you know, how do we get
more IGs to be in positions at the CIA, at the DIA, at NSA, at
the various 15 other intelligence agencies in addition to the
CIA? How do we make sure they're empowered with that same kind
of line-item authority and authority to go after issues and
expose those issues?
I think the Senate bill, if I'm not mistaken, in the
authorization process is looking at possibly confirming some of
those people, having some more oversight over who goes into
those positions. That might be a good role to begin with.
And it all comes back, I think, Senator--and you perform
this role exceedingly well--it comes back to bird-dogging these
issues and not letting up on them. Lee will be one of the first
to tell you on the 9/11 Commission we had very, very long,
heated debates about what to do with the FBI. Do we let them go
along the reform path that they've gone on with Mr. Mueller,
who's a very, very capable and decent guy? Do we carve out a
new national security role, or do we stand up a brand new MI5
agency? And many of us decided that standing up yet another new
agency in addition to DNI and Department of Homeland Security
was probably not the right way to go at this time.
So we said it was up to Congress to oversee this carve-out
within FBI, that they and the President had to make sure that
these reforms took place, and if they didn't oversee them with
strong oversight, these information management systems, this e-
mail system difficulty, the problems with the analysts will
probably continue.
So I would continue to have exposure to these problems. I
would build support like the Burr-Bond-Feingold-Bayh bill. And
I would continue to try to get the changes and use money to do
it at the end of the day--shift money from one account to the
other on the appropriations subcommittee if you can't find any
other way to do it.
Mr. Hamilton. Senator Wyden, every department head in
government is nervous about the inspector general. And if a
department head could investigate the inspector general, you
will dramatically weaken the inspector general.
Senator Wyden. Lee Hamilton knocks it out of the park once
more. That's why I'm asking Director McConnell--and I see the
Vice Chairman has come into the room as well. I was very
appreciative of the Vice Chairman's comments when we learned
that General Hayden was investigating the inspector general,
Mr. Helgerson.
And the Vice Chairman's comments on this very much echo
mine and yours, so there's bipartisan interest in it.
I thank you both for your public service.
Thank you, Mr. Chairman.
Chairman Rockefeller. Thank you very much, Senator Wyden.
Senator Feinstein, to be followed by Senator Whitehouse, to
be followed by Senator Snowe, unless Senator Burr comes back.
Senator Feinstein. Thank you very much, Mr. Chairman.
And thank you, gentlemen, for coming back and back and back
and giving us the benefit of your expertise.
I want to just share with you what my experience and views
are--that we are engaged in a system that by its very nature
resists oversight. The administration feels they own the
intelligence. We are the interlopers there. They would like to
tell us as little as they possibly can. We are hamstrung,
limited in staff, can't take notes home, can't take classified
material home, can't really do much homework at all in the
traditional sense.
We spend two afternoons a week--the 60 hearings you've held
about--hot spot briefings, not oversight.
How do we do oversight? Well, let me suggest a way. One of
them is, I believe we ought to have subcommittees. We ought to
have a subcommittee on human intelligence which involves the
CIA, the DIA, whatever it may be; on satellite intelligence; on
the budget, and on special issues, whether those special issues
are the culture of the FBI, whether it's rendition, whether
it's covert action. And those subcommittees can hold their own
meetings, be staffed separately, go out and take a look.
We've got sixteen intelligence agencies, tens of billions
of dollars. It is very difficult to do the kind of oversight on
the premises--noticing, asking, investigating, writing--when
you spend 2 days a week on hot spot briefings or various
reports the Committee may be doing, or specific legislation the
Committee might be considering.
So I think more than anything else, if there were
subcommittees that were literally empowered--now, I sit on all
the crossover committees and have for a long time--Judiciary,
Defense and this Committee. The defense intelligence budget,
the black budget, is a very short budget. It's very difficult
to zero in there.
That, in my view, supplements the need to have the Budget
Committee, which isn't just during the time the budget is being
put together but is year around, that is talking with the DNI.
The DNI is supposed to be able to do more than move the deck
chairs on the Titanic. He can't do that under his present
authority. Does he need the authority expanded? How should it
be expanded? How should this budget best be controlled and
contained?
You know, the FIA program left many of us with a lot of
scar tissue after many, many years of trying to do what had to
be done. And this Committee took a position; the Defense
Subcommittee had a different position. And I think it was
Senator Bond that just went into this, and he's right: It's
very hard.
Now, if you had a group that was just on FIA as part of the
satellite program day in, day out, year in, year out, that was
intimately familiar with it, had all the notes, all the staff
work, all the investigation done, knew where the points of
failure were, we could have gotten to it a long time ago.
So my view is the tension between the administration and
the Congress--one owns; the other controls the purse strings.
Lee, as you've said, theoretically we control the purse
strings. When push comes to shove, that budget's going to get
passed.
So the work has to be done a long time before it gets
passed. We have to have the time to share with all of our
colleagues what we have found out that's between the budget
lines. And we're not set up now to do that.
So I have come to the conclusion, rightly or wrongly, that
if I ever were in a position to make those changes, those are
the changes I would make. And I would see that those committees
reported regularly to the whole, that there be hard questions
asked, that people be limited--this is another thing that
happens. When people come and testify before you, they go on
and on and on. And we're all under a time burden so, you know,
if it's quick and if you can have that discussion around a
table and go back and forth, you get something out of it.
Otherwise, they are very practiced on how to move down a very
wordy path, and it's difficult to break through that.
That's all I wanted to say.
If you have any comment, I'd love to hear it.
Mr. Hamilton. I think it's probably not our role to try to
tell you how best to organize the Committee to do your work.
What you say about subcommittees and their ability to
specialize certainly makes a lot of sense.
I think the toughest job that you have in exercising
oversight is to establish what your priorities are. I said in
my testimony that the intelligence field is vast. And the
intelligence community will brief you to death. They will come
up with more reasons to brief you than you can imagine. They
will brief you and brief you and brief you.
And there may be appropriate briefings, but if you spend
your whole time listening to briefings, you're probably not
doing any thinking about what the priorities should be.
I think you have to sit down and say OK, we can't cover the
whole universe. But we've got to identify five, six, 10
problems that we think are most important, and then you set the
agenda. Don't let the intelligence community set your agenda.
You set the agenda, and you tell them you come up here and tell
us about this and not about that.
Now, when you do that there are some risks involved because
you may not select the right priorities. But I don't know any
other way you can do it. You have to drive the agenda and not
let the intelligence community drive your agenda.
Mr. Roemer. Senator?
Senator Feinstein. Yes.
Mr. Roemer. I agree with what Congressman Hamilton has
outlined and associate myself with your frustrations as a
member of the committee.
Oftentimes I think I felt sometimes on the Committee that
you're drowning in budget hearings and then you're mesmerized
by hot spot briefings. And it's one or the other. The Director
will come up and tell you about what the latest threat is in
North Africa or what the latest threat might be in the Middle
East or some of the challenges going on in Southeast Asia.
I think one of the areas to really focus on is to try to
look--as Lee has said, establish priorities. I think one of
those priorities should be to try to look more strategically at
where the intelligence budget and agencies need to be rather
than tactically going day to day. I think we get consumed on
the tactics and not looking at the long-term strategy.
We tried to do this oftentimes in bipartisan ways on the
Committee. We tried to establish a language reserve corps to
build the membership of Arabic and Urdu and foreign speakers in
the intelligence community, and oftentimes we put money into
that budget on the authorizing side, and lo and behold, it
would never make it into the appropriations process.
So I think, you know, looking strategically, establishing a
priority to make a difference on rebuilding human intelligence
and working in a bipartisan, bicameral way to see it through.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Mr. Hamilton. Senator Feinstein, I'm sorry to take a little
additional time, but I think at the end of the day you have to
ask yourself how are we going to really be judged on this
Committee? And how you're going to be judged in my view is how
you perform with regard to Iran, Iraq, terrorism, nuclear
proliferation, North Korea. That's what's important. That's
where the national security interest lies at the moment.
What kind of a job is the intelligence community--I don't
know that I've listed them all, there may be some others--doing
with regard to those big national security questions? That's
what's really important to the American people.
Senator Feinstein. That's a good point.
Chairman Rockefeller. Before going to Senator Whitehouse, I
just want to point out to the distinguished Chairman of the 9/
11 Commission that the intelligence community never comes up
here to brief us on what they want to brief us about. They come
up and they brief us only on what we want to be briefed about,
and there is no exception to that.
Mr. Hamilton. I applaud that.
Chairman Rockefeller. The Senator from Rhode Island,
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Thank you, gentlemen, for coming yet again before us. I
appreciate it.
I'd like to talk with you for a minute about
classification. We deal with classified information all the
time. You are very familiar with dealing with classified
information. It puts us at a very considerable institutional
disadvantage.
The executive branch classifies and to a large extent
declassifies at will. In fact, many executive officials who we
deal with just say something publicly and that's not a leak,
that's not a security breach, that's a declassification. If we
were to do it, there'd be FBI agents crawling around and
looking at us and seeing if we'd committed treason. That's a
very considerable disadvantage to be at.
The classification function--or the classification system--
I think impedes oversight.
Congressman Roemer, you mentioned a quote from Woodrow
Wilson. I don't have the words in mind exactly, but I think you
said the informing function is to be preferred over even the
lawmaking function? Well, if something's classified, I may know
it but I can't inform, so that function is totally disabled to
the extent that that piece remains classified.
And it also takes away a piece that exists in our regular
oversight function which is that one Senator can usually make a
difference by just going public with something, by just raising
hell with something, by just being a thorn in somebody's side.
Because you can't go public, it takes a majority of this
Committee to get any action going, and I don't think that the
intelligence community is unaware of that fact.
I recognize that there is a significant security value to
classifying national security information. On the other hand,
there's a balance between that and the accountability value
that oversight creates. And the judge in that balance is
exclusively at this stage, it seems to me to be, the executive
branch, which makes it, again, very, very one-sided.
And my experience is that things are wildly over-
classified. I have read things on the front page of the New
York Times, come into this Committee and read them in deeply
classified documents. You know, thanks a bunch. That's really
not very helpful. I already knew that.
We have just been shown various legal opinions, and there
are elements of them that I would like to talk about and I've
asked the administration to allow me to talk about them. They
are legal theories. You could take that legal theory and you
could put it in any law journal in the country and it would
have absolutely no meaning to anybody. It's totally without
classification merit, and yet it is classified to the full
depth of the underlying document out of which it comes.
So once again, we are disabled. And I do not think that the
administration is unaware of this imbalance and is unaware of
the authority that this imbalance gives us with respect to this
whole issue of classification.
What structural recommendations might you have to enable us
to fight back through this? Because the day-to-day tide of
just, you know, they classify, they classify, now you start--
it's weeks trying to fight your way back to get three little
phrases unclassified. It's a real uphill struggle, and I think
it impedes--I feel it as a huge imposition on my ability to be
an effective Senator and effective member of this Committee.
Mr. Hamilton. Well, you've learned a lot more about the
classification system early on than I did. It took me a long
time to figure out how you get jacked around because of the
classification system.
He who controls information has the power in government.
And the executive branch knows they control the classification
process, that the Congress can't do very much about it, and it
is an enormous tool in their hands.
I think we classify way too much information, and we
declassify way too little. It's a serious problem. We are
stacking up warehouses full of classified information day after
day after day, and it's hugely expensive to classify all that
information.
Now, one of the problems is the incentives. Certain
officers in the U.S. Government are given the authority to
declassify--Secretary of State. Well, the Secretary of State
doesn't sit around and say this document is secret and this
document is not secret. She delegates that responsibility. She
delegates it way down the line, and the incentives work so that
it is safe to classify when in doubt. And so they sit there and
they stamp everything classified. And we just keep piling it
up.
Senator Whitehouse. If I might add, Congressman Hamilton,
unless and until it becomes useful----
Mr. Hamilton. To them.
Senator Whitehouse.--to the administration's rhetoric----
Mr. Hamilton. That's correct.
Senator Whitehouse.--to declassify their side of the
argument, while leaving your side of the argument classified.
Mr. Hamilton. That's right. And you're put at a huge
disadvantage because of that.
I don't know--there is a way. I think I remember that there
is a way for the Congress to declassify information, but as I
recall, it has never been used. It takes a----
Senator Whitehouse. Act of Congress?
Mr. Hamilton.--very complex process. It takes a vote, I
think, in both houses and it just has never been used.
I think the whole area of classification needs examination
and a new framework has to be developed to deal with it or you
are going to be continually at this disadvantage. I don't have
any doubt in my mind the executive branch--not just this
administration, but any administration--uses it to their
advantage time and time again, puts you at a disadvantage, and
there's not very much you can do about it.
Mr. Roemer. Senator, I just want to say that on the 9/11
Commission, we made two very, very strong recommendations to
your point.
One was that there is a gross over-classification of
information and second, there's an underutilization of open
sources, and we recommended addressing both, that working with
Congress and working with other entities in the executive
branch and IGs that there be a way of declassifying this
information and doing it in an orderly fashion, in a regular
fashion, viewing that information and getting it out.
And then the second part was that there's a lot of open-
source information that we get access to that we don't utilize
appropriately enough and quickly enough in the intelligence
community.
Senator Whitehouse. Thank you, Mr. Chairman.
Chairman Rockefeller. Thank you, Senator Whitehouse.
Senator Snowe?
Senator Snowe. Thank you, Mr. Chairman.
I want to welcome both of you here today and appreciate
your commitment and dedication and perseverance and persistence
in advocating your views and following up as you have so
consistently before this Committee and others since your
service--yeoman service--on the 9/11 Commission. So we really
appreciate that.
I know you identify with all of our frustrations in trying
to change the institutions. You know, it faces many challenges
and impediments, without question. And frankly, it was
disappointing that we only received 23 votes on the question of
consolidating the intelligence in both the authorizing and
Appropriations Committee. I mean, it's just--I was one of the
23 because I believe that both the House and Senate are
underestimating the challenges that we face.
And also our ability to effect change within the
intelligence community is through, as you have indicated time
and again, through the appropriations process. I mean, we saw
that underscored in the hearing that was held here recently
regarding FBI reform which is, you know, proceeding at a
snail's pace. They're resisting efforts to elevate intelligence
analysts to the level of special agents, as we've learned and
what Senator Wyden referred to as well in the number of agents.
So we still have some critical challenges and we see, based
on the NIE that was released in July, that we have a persistent
evolving terrorist threat facing the homeland. Al-Qa'ida has
regenerated key elements of attacking our homeland and their
capabilities. So we're facing some enormous challenges.
I know, Congressman Hamilton, you mentioned in your op-ed
piece with co-chair Tom Kean in the Washington Post several
months ago that we still lack a sense of urgency in the face of
grave danger, and you also indicated that we still lack focus.
Could you describe what you mean by a lack of sense of urgency?
Mr. Hamilton. I think a lot of things have been done in the
government with regard to protecting the homeland that are
helpful and good.
I believe and I know Tom Kean believes that we're safer
today than we were at 9/11. The amount of money that we've
spent, the procedures we've put in place, there may be a
question of cost effectiveness in some of those, but overall a
lot of good things have been done.
All of us are aware of agencies and departments that are
expending very large efforts and resources to protect the
American people.
Having said all of that, I think both Tom Kean and I felt
that there is a lack of urgency, and by that I think we meant
largely, as you visit these various offices and agencies and
you hear what they're doing and how much they're doing, you
kind of get a sense of business as usual. And we believed, as
we stated, that the threat of terrorism is genuine, is real,
that they're plotting out there to get us and there's been no
diminishment in that intent. We have questions, of course,
about their capabilities.
You and I would understand, I mean, Government is dealing
with so many problems that kind of press upon you and distract
you, the inbox is always full for everybody. Tom and I are
trying to say look, this threat is genuine, it's real, and it
is urgent and it is not a matter for business as usual. I think
that's what our attitude was.
Mr. Roemer. Senator, I'd just add on to that by saying
that, as you noted in your comments, al-Qa'ida is changing
every day. They're recruiting on the Internet; they're going
into the remotest places on the Earth to gain a bigger and
quicker following. They can strike with airplanes or other
weapons and cause horrific damage to our country, either here
or abroad. They're entrepreneurial. They are adapting the
forces of globalization to their cause.
And that sense of urgency does not seem to be reflected in
some of the activities that we're engaged in to take on that
very rapidly changing threat.
Senator Snowe. No, I agree.
I think it's like we've sort of resorted and reverted back
to the times where you just sort of protect your jurisdiction
and you consolidate all the bureaucratic resistance. And we're
facing it time and again.
You know, one of my recommendations was to create a
Department of Homeland Security inspector general, you know,
department-wide. And of course that's met with great resistance
by the department and the administration. Again, we're just
facing the same bureaucratic hurdles and inertia that overtakes
our ability to effect change. And it's what you've indicated.
And what's even more disturbing is that your commission
made this one of the top recommendations. It was one of the
most significant recommendations among all the recommendations,
and we can only manage to get 23 votes for it in the U.S.
Senate. It really is disturbing because I think the more
disparate these functions become--as you say, dysfunctional and
diffused--the less likely that we have the capacity to oversee
those areas in which it's so important, because we can't
leverage that change because of the appropriations process.
And that is the bottom line. That is the reality. And
unfortunately we're going to have to find ways in which to
overcome that because I think that still has to be the driving
force and the ambition, is to change the process so that we can
fuse these two responsibilities.
In 2005 you gave, on this recommendation you gave a grade
of D on congressional oversight. Would you still agree that
it's a D?
Mr. Hamilton. What's that?
Senator Snowe. In 2005, Congress was given a D.
Mr. Roemer. We gave them a D in 2005.
Mr. Hamilton. To whom?
Mr. Roemer. To the Congress.
Senator Snowe. On intelligence oversight.
Mr. Roemer. You know, as we noted, Senator, I think that a
D at that time reflected very little progress and no positive
steps forward.
I think, not speaking for Congressman Hamilton but as I
acknowledged in my opening statement, there have been some
steps forward. The House has created this intelligence panel.
There have been steps forward on the Senate side with an
investigative and audit subcommittee.
But I still think that it's--in my opinion, it would still
be a D- plus. It's something that is not going hard enough. And
when Congress is pointing its finger everywhere to the
executive branch--the FBI's not doing enough, the CIA needs to
rebuild human intelligence, the Department of Homeland Security
is not working well enough--and they fail to do the one
requirement in their book, that's not a good reflection on
Congress.
Mr. Hamilton. I agree.
Senator Snowe. Says it all. Thank you.
Thank you both for your service. Thank you.
Mr. Hamilton. Thank you.
Chairman Rockefeller. Thank you, Senator Snowe.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman, for holding the
hearing.
It really is a pleasure to hear from these two very
distinguished witnesses on really the most important issue of
our time, so I appreciate everything you've done.
As the 9/11 Commission concluded and as our witnesses have
reiterated today, intelligence reform, which is so critical to
protecting our country, depends on effective congressional
oversight. I supported the commission's recommendation to give
appropriations authority over the intelligence budget to the
Intelligence Committees when it was first proposed in 2004, and
I continue to support it today.
In recent years, however, it has become overwhelmingly
clear that the greatest impediment to effective congressional
oversight of intelligence is this administration's consistent
and really almost unbending contempt for Congress's
constitutional role in this area.
A full account of the administration's actions begins, of
course, with its secret violations of the laws passed by
Congress, specifically the Foreign Intelligence Surveillance
Act, and despite the outcry prompted by its illegal,
warrantless wiretapping program, the administration still won't
commit to abide by the laws of this country, issuing so-called
signing statements as statutes become law and refusing to rule
out future assertions of the President's supposed authority to
disregard FISA.
Recently the administration has even stated in writing that
it intends to simply ignore Congress's budgetary oversight of a
classified intelligence program. The administration has also
repeatedly refused to brief this Committee on important
intelligence matters as is required by law. The country is by
now familiar with the administration's failure to inform the
Committee about the warrantless wiretapping program for 5 years
before the program was revealed and acknowledged and then for
months thereafter.
But this problem continues. We know that the administration
continues to abuse the so-called gang of eight provision by
hiding important intelligence matters from the full Committee.
What we don't know is the full extent of this abuse.
The list of reports and other information sought by the
Committee and denied by the administration is extensive and
much of it classified. The administration's efforts to deny
Congress information even extends to the third branch of
government, the FISA court, whose interpretations of the law
Congress needs to conduct oversight and to consider new
legislation. Imagine if the administration sought to keep from
Congress Supreme Court decisions related to the legality and
constitutionality of the laws passed by Congress and of the
Government's actions. In the area of intelligence surveillance,
it is the FISA court that makes these decisions, and the
administration's attempts to hide them from Congress, even as
it demands that new FISA legislation be passed, is
unacceptable.
The public record of the administration's contempt for
congressional oversight of intelligence is lengthy. The
administration's threat to veto the current intelligence
authorization bill is based almost completely on Congress's
efforts to improve oversight. The administration opposes
efforts to obtain intelligence-related documents generally and
with regard to detention and interrogation. It opposes
congressional efforts to learn about how the administration is
interpreting the Detainee Treatment Act and it opposes a Senate
confirmation of important leadership positions in the
intelligence community.
And this list is only a partial indication of this
administration's contempt for Congress's constitutional
responsibility to conduct oversight of intelligence. The
administration's actions not only violate our constitutional
principles and our system of checks and balances, they have
undermined our national security.
As our distinguished witnesses have stated clearly and
consistently, congressional oversight is critical if we're to
have an effective intelligence community that defends our
national interests as well as our laws, our Constitution, and
our principles as a Nation.
Now you both said, I understand, that Congress should use
the power of the purse to compel information from the
administration. What would you advise Congress to do if the
administration still refuses to provide the information and
simply ignores Congress's efforts to exert its power of the
purse?
Mr. Hamilton. I'd withhold the money.
Senator Feingold. Mr. Roemer?
Mr. Roemer. I agree with Mr. Hamilton, Senator.
I think, as you stated, the executive branch is the
greatest impediment to Congress's role in oversight. I would
say that the battle is not so much with waterboarding per se or
wiretapping per se or Abu Ghurayb per se or secret prisons per
se or American rights per se. It is for Congress to strengthen
its ability to discover these things and debate these things
where appropriate because of their difficulty overseeing them
and getting access to these programs with the executive branch.
It's incumbent upon Congress to exert its power and
authority here. There are actions you can take like creating
this Committee with dual appropriations and authorizing
capabilities that will then have the power to say to the
executive branch, the money's not coming with your request.
We're not having you run around the authorizes. We have the
information. We know what we need, and we have the power of the
purse to withhold the money. And it's done within one
committee.
Senator Feingold. Mr. Chairman, I think that's an excellent
note to conclude on. Thank you.
Chairman Rockefeller. Thank you very much, Senator
Feingold.
And I want to thank both of you very much. It's been a long
afternoon for you, but I think a very instructive one for us
because, as you did in your reports, you've thrown us a
challenge. The challenges aren't easy to solve, and yet you're
very firm, and that in and of itself is a part of helping us to
do a better job because we respect you and your commission so
much.
Mr. Roemer. Thank you, Mr. Chairman.
Chairman Rockefeller. Now we've also totally alienated the
two gentlemen who are going to follow you in the second panel,
but we're going to get right to them.
So we thank you.
Mr. Roemer. Thank you.
Vice Chairman Bond. Thank you very much, gentlemen. It's
been very informative and very helpful.
Chairman Rockefeller. The Chairman of the Intelligence
Committee apologizes for referring to the next panel as two
men. In fact, Professor Amy Zegart from UCLA and Mr. James
Saturno from the Congressional Research Service, I personally
apologize to you for not--I don't ultimately apologize for
taking so long on the first panel because it was very basic
stuff and you understood that. But I hate putting you at a
situation where not only do you not have the full committee
before you, but you have the best part of it before you, and we
want very much to hear what you say, so you proceed.
Dr. Zegart, why don't we start with you?
STATEMENT OF AMY B. ZEGART, ASSOCIATE PROFESSOR,
DEPARTMENT OF PUBLIC POLICY, SCHOOL OF PUBLIC AFFAIRS,
UNIVERSITY OF CALIFORNIA, LOS ANGELES
Dr. Zegart. Thank you, Mr. Chairman, Mr. Vice Chairman.
Chairman Rockefeller. And pull that right up real close.
Dr. Zegart. There we go. I'm a Z, so I'm used to waiting
for a while to go, so not a problem for me.
Mr. Chairman, Mr. Vice Chairman, distinguished Committee,
it's an honor to be here today to talk about this very
important issue of congressional oversight of U.S.
intelligence. Let me just thank you two in particular and the
rest of the Committee not only for holding this hearing but for
holding it in open session. I fully appreciate that security
considerations often require closed sessions, but there is no
more powerful force for change than an engaged American public.
As you know, I'm an associate professor at UCLA. For more
than a decade, I've been researching organizational
deficiencies in U.S. intelligence agencies. I've also been a
consumer of intelligence on the National Security Council staff
and I worked in the private sector, which has its own
adaptation challenges, as a strategic consultant at McKinsey &
Company.
Mr. Chairman, when I last appeared before this Committee it
was August of 2004. The 9/11 Commission had just finished its
report and intelligence reform was in the air. It's now 3 years
later, 6 years after the worst terrorist attacks in our
Nation's history, and intelligence reform is progressing in a
halting and disappointing fashion.
Congressional oversight, as we've heard this afternoon, is
vital to American national security, but it is broken and it
has been broken for years. Unless substantial changes are made
to the current system, intelligence reforms will fail.
My remarks this afternoon will cover briefly--which is hard
for a professor but I will try to be brief--three points: why
oversight matters, enduring problems and what we can do about
them.
The bottom line is that these organizational weaknesses in
oversight and possible remedies to address them have been well
known for quite a long time, and so the challenge we face now
lies not so much in inventing new ideas but in implementing the
ones that we already know.
Mr. Chairman, as this Committee has discussed this
afternoon, U.S. intelligence agencies have never been more
important. The spread of weapons of mass destruction, the
information revolution, the rise of transnational terrorist
groups have created an unprecedented asymmetric threat
environment. For the first time in history, great power does
not bring security. It is the weak who threaten the strong, and
it is intelligence, not sheer military might, which provides
our first and last line of defense in a way that it has never
been before.
Oversight is crucial to our intelligence system because it
guards against two dangers. The first is that our intelligence
agencies will become too powerful, violating the laws and
liberties and values that we Americans hold dear. The second
danger is that intelligence agencies will become too weak, too
weak to protect American lives and American vital interests.
Good oversight ensures that our agencies get the resources
they need, provides strategic guidance to deploy those
resources more effectively, and proactively evaluates what's
working and what isn't before disaster strikes so that our
intelligence agencies can adjust and improve. And I want to
applaud this Committee for the FBI oversight hearings that
occurred just a couple weeks ago. That is a prime example, an
extraordinary example, of exactly that kind of proactive
oversight function.
Today, U.S. intelligence agencies are confronting
substantial challenges in both areas, but the executive branch
cannot and must not and should not go it alone. Ensuring that
our agencies are powerful enough but not too powerful requires
vigorous and bipartisan oversight by Congress.
Let me turn briefly to enduring problems.
Congressional oversight of intelligence has always been
problematic. For the first 30 years of the CIA's existence,
oversight consisted of a few senior legislators not wanting to
ask questions because they didn't want to hear the answers.
Between 1947 and 1974, there were more than 150 legislative
proposals to reform this system and all of them failed, most of
them by overwhelming votes. It took revelations that
intelligence agencies were assassinating foreign leaders and
spying on Americans before Congress established the select
committees. These Committees, as you know, have been a
substantial improvement, but deficiencies have persisted.
My research found that between 1991 and 2001, there were 12
major unclassified studies that examined U.S. intelligence and
counterterrorism capabilities. They issued more than 500
recommendations for reform. Most of these reports found
congressional oversight to be a big part of the problem.
Recommendations--and this is before 9/11 in the decade
preceding 9/11--recommendations included: streamlining the
splintered and overlapping committee jurisdictions in
intelligence and homeland security; combining authorizing and
appropriations powers in a range of national security
committees, including intelligence; and eliminating term limits
on the Intelligence Committees to enhance member expertise.
None of these recommendations was adopted before 9/11. In
fact, the only organization in our intelligence system that
failed to implement a single reform from all these reports
wasn't the CIA, wasn't the National Security Agency or the FBI;
it was the U.S. Congress.
Despite the 9/11 Commission's warning that congressional
oversight was dysfunctional and vital, two key problems
remain--too much fragmentation and not enough expertise. As you
know well, oversight is fragmented and uncoordinated against a
number of committees. I know Congressman Hamilton and Governor
Kean wrote in the Washington Post that the Department of
Homeland Security still reports to 86 different subcommittees
and committees. A system that is splintered is naturally prone
to error and inefficiency. Individual programs, even crucial
ones, can and do fall between the cracks because oversight can
always be seen as somebody else's job.
This is exactly what I found in the late 1990s when no
congressional committee undertook a serious examination of the
FBI's struggling counterterrorism reform efforts. Why did this
happen? In large part, because the Intelligence Committee
thought it was a Judiciary Committee issue, and the Judiciary
Committee thought it belonged in Intelligence. Fragmented
jurisdictions also make it unlikely that any one panel will
have an integrated view of an agency's activities or the trade-
offs involved. Multiple committees are also more likely to give
contradictory guidance and overload managers with too many
uncoordinated hearings and reporting requirements. And of
course, as we've heard this afternoon, savvy executive branch
officials can and do play the committees off one another.
This split between the intelligence authorization and
appropriations committees has allowed executive branch agency
officials to game the system. The press has public reported
about how this Committee in recent years has repeatedly tried
to kill expensive and, in the view of the Committee,
unnecessary and ineffective satellite programs only to have
other committees reverse those decisions after pressure from
the Pentagon and other allies. One intelligence official called
this kind of bureaucratic maneuvering the two-parent approach:
If mom says no, go to dad. Separating authorizations from
appropriations is a long-standing and revered congressional
practice, but this division in intelligence has become
increasingly unworkable.
Let me talk briefly about expertise.
As you know, intelligence activities are highly complex and
technical and shrouded in secrecy more than any other activity
of our Government. This is unique among policy issues. In
intelligence, there is no natural public constituency, no set
of interest groups, no public interest groups that have a
capability of gathering independent information, of alerting
the public or holding officials' feet to the fire. These
factors make the intelligence oversight learning curve
especially high, members' oversight experience especially
valuable, and staff capabilities essential. Unless overseers
know what to ask, they will not get the information they need
to make intelligence agencies effective.
The Senate took the very important step in the 108th
Congress of ending term limits for this Committee, but
experience gaps between this Committee and other committees
remain striking in terms of continuous service to the
Committee.
And notably, the House Intelligence Committee still has
term limits for its members, even though the 9/11 Commission
and a number of other blue ribbon studies during the 1990s
recommended abolishing them.
Staff capabilities are also critical and in need of
augmentation. The Government Accountability Office currently
lacks full authority to investigate all components of the
intelligence community, particularly the CIA. Some have
suggested bolstering oversight committee staff capabilities by
creating a new congressional support agency with nonpartisan
cleared staff that could provide additional classified and
unclassified analyses to Congress. And the inspector general
system offers an underutilized mechanism to provide
information. The Senate's 2008 authorization bill includes
important improvements to the inspector general system along
these lines, and it is essential that these improvements be
enacted.
What can we do? All reforms, as we've discussed today,
necessarily involve tradeoffs, but the history of intelligence
reform I believe suggests two guiding principles for reform.
The first, as I mentioned at the beginning, is to focus on
implementation rather than developing new ideas. For 60 years,
turf and politics have stacked the deck against robust
intelligence oversight. The 9/11 Commission noted that few
things are more difficult than rearranging congressional
committee jurisdictions. And, as this Committee knows well,
overseeing intelligence is a hard and largely thankless task
because it takes precious time away from issues that
constituents back home care about more. Very few voters care
about the nitty gritty aspects of the FBI's analyst program, as
this Committee examined a couple weeks ago. No intelligence
reform ever won a landslide election. But turf and politics
must be overcome.
Mr. Chairman, I was struck that the Implementing the 9/11
Commission Recommendations Act, passed last summer, tackled
just about every aspect of the 9/11 Commission report except
congressional oversight reform. Congress can do better.
American lives depend on it. This hearing is a crucial step
forward, but continued success requires continued leadership
and a relentless focus on implementation.
The second guiding principle is to be careful to pick the
low- hanging fruit. Dramatic improvements I believe do require
dramatic changes. Nevertheless, some important improvements can
be accomplished without new legislation, without turf wars,
without dramatic rule modifications. This low-hanging fruit
involves some of the steps that this Committee has already
taken to make the most of the existing oversight activities
that are already being conducted, and they include: holding
regular staff meetings across the relevant committees, both
within the Senate and across the Senate and the House to
coordinate hearings and other oversight activities; instituting
periodic leadership meetings along the same lines; and
integrating technology systems so that various intelligence
oversight staff with the appropriate clearances can share
information more easily.
Mr. Chairman, I thank you for this great honor to be here
today and look forward to answering your questions.
[The prepared statement of Dr. Zegart follows:]
statement of dr. amy b. zegart, associate professor,
department of public policy, school of public affairs, university of
california, los angeles
Mr. Chairman, Mr. Vice Chairman, distinguished Members of
the Select Committee on Intelligence, it is an honor to appear
before you today to discuss congressional oversight of U.S.
intelligence agencies.
My name is Amy Zegart. I am an Associate Professor in the
School of Public Affairs at the University of California, Los
Angeles (UCLA).
For more than a decade, I have been researching and writing
about organizational problems in U.S. intelligence agencies. My
newest book, Spying Blind (Princeton University Press, 2007),
examines why the CIA and FBI failed to adapt to the rise of
terrorism after the cold war. Before my academic career, I
served on the National Security Council staff and advised
Fortune 500 companies about organizational effectiveness as a
McKinsey & Company management consultant.
When I last appeared before this committee in August of
2004, the 9/11 Commission had just released its report and
intelligence reform was in the air. Three years later, and 6
years after the worst terrorist attacks in American history,
progress has been halting and disappointing.
Congressional oversight of intelligence is vital to
American national security. And it has been broken for years.
Without substantial changes to the current system, intelligence
reforms will fail.
Mr. Chairman, my remarks cover three main points:
Why oversight matters
Enduring problems
What can be done
The bottom line: Oversight weaknesses and possible remedies
have been known for a long time. The critical challenge now is
not so much inventing new ideas, but implementing the ones we
already have.
why oversight matters
U.S. Intelligence agencies have never been more important.
The spread of weapons of mass destruction, the information
revolution, and the rise of transnational terrorist networks
have created an unprecedented asymmetric threat environment.
For the first time in history, great power does not bring
security; it is the weak that threaten the strong.
As CIA Director Michael Hayden recently noted, during the
cold war the Soviet Union was easy to find but its most deadly
forces--tanks, ICBMs, and troops--were hard to kill. Today the
situation is reversed: our principal terrorist enemies are easy
to kill but hard to find.
Successful defense requires penetrating and stopping the
adversary before he ever gets to his target battlefield, not
defeating him with overwhelming force once the battle begins.
More than ever before, intelligence has become our nation's
first and last line of defense.
Robust congressional oversight is crucial to an effective
intelligence system because it guards against two dangers. The
first is that intelligence agencies will become too powerful,
violating the liberties, laws, and values that Americans hold
dear. The second danger is that intelligence agencies will
become too weak to keep Americans safe. Good congressional
oversight ensures that intelligence agencies get the resources
they need, provides strategic guidance to deploy those
resources effectively, and proactively evaluates what works and
what doesn't so that agencies can improve and adjust their
collection and analysis before disaster strikes.
Today, U.S. intelligence agencies are confronting
substantial challenges in both areas. Many both inside and
outside the Intelligence Community are gravely concerned that
intelligence agencies are overreaching--engaging in warrant-
less surveillance programs and interrogation methods that are
legally questionable and morally troubling. Many also worry
that intelligence agencies are under-performing, that they are
not adapting fast enough to the demands of a post-9/11 world.
The executive branch cannot, should not, and must not go it
alone.
Ensuring that U.S. intelligence agencies are powerful
enough but not too powerful requires nonpartisan and vigorous
oversight by Congress.
enduring problems
Congressional oversight of intelligence has always been
problematic.
For the first thirty years of the CIA's existence,
oversight consisted of a few senior legislators not asking
questions and not wanting answers. As Senator Leverett
Saltonstall (R-Mass.) noted in 1956, ``It is not a question of
reluctance on the part of the CIA officials to speak to us. . .
.Instead, it is a question of our reluctance, if you will, to
seek information and knowledge on subjects which I personally,
as a Member of Congress and as a citizen, would rather not
have.'' Between 1947 and 1974, more than 150 legislative
proposals to reform this oversight system were defeated, nearly
all of them by overwhelming majorities. It took revelations
that intelligence agencies were assassinating foreign leaders
and spying on Americans before Congress finally established the
Select Intelligence Committees.
Although the committees were a substantial improvement,
deficiencies persisted. Perhaps nowhere was the system's
weakness more apparent than in the failed efforts to overhaul
executive branch intelligence agencies before 9/11.
In 1992 and again in 1996, this committee and its House
counterpart pressed for sweeping intelligence reforms. Both
times, bills were torpedoed by the Defense Department and
members of the armed services committees, who stood to lose
their own turf and power.
My research found that between 1991 and 2001, twelve major
unclassified studies examined U.S intelligence and counter-
terrorism capabilities, issuing more than 500 recommendations
for reform. Most of the reports found congressional oversight
to be a big part of the problem. Recommendations included
streamlining the splintered and overlapping committee
jurisdictions in intelligence and homeland security, combining
intelligence authorizing and appropriating powers, and ending
intelligence committee term limits to enhance the expertise of
members. None of these recommendations were adopted before 9/
11. In fact, the only organization in the U.S. intelligence
system that failed to implement a single reform from all these
reports wasn't the CIA, NSA, or FBI. It was Congress.
Despite the 9/11 Commission's dire warning that
congressional oversight was ``dysfunctional'' and vital to
intelligence reform, two key problems remain: too much
fragmentation and not enough expertise.
Fragmented Jurisdictions: Creating a System Prone to Error
and Inefficiency As you know well, intelligence oversight is
fragmented and uncoordinated across too many committees.
Governor Kean and Congressman Hamilton have noted that even
now, the Department of Homeland Security reports to 86
different congressional committees and subcommittees. While
this may be the extreme case, other intelligence agencies also
face multiple oversight committees--chief among them,
judiciary, armed services, and appropriations.
A system that splintered is naturally prone to error and
inefficiency.
Individual programs--even crucial ones--an and do fall
between the cracks because oversight can always be seen as
somebody else's job.
In the late 1990's, for example, no congressional committee
undertook a serious examination of the FBI's struggling
counterterrorism reform efforts. Why? In large part, because
intelligence committees thought it was a judiciary issue and
the judiciary committees thought it belonged in intelligence.
What's more, fragmented jurisdictions make it unlikely that
any one panel will have an integrated view of an agency's
activities and the appropriate cross-programmatic tradeoffs
involved. Multiple committees are also more likely to give
contradictory guidance and overload managers with too many
uncoordinated hearings and reporting requirements. And savvy
executive branch officials can play committees off one another.
In particular, the split between the intelligence
authorization and appropriations committees has allowed
executive branch agencies to game the system. As the press has
publicly reported, this committee in recent years has
repeatedly tried to kill expensive satellite programs only to
have other committees reverse decisions after pressure from the
Pentagon and other allies. One intelligence official called
this kind of bureaucratic maneuvering the ``Two-parent
approach: If mom says no, go to dad.''
Separating authorizations from appropriations is a
longstanding and revered congressional practice. But in the
realm of intelligence, this division has become increasingly
unworkable.
not enough expertise
Intelligence activities are complex, highly technical, and
shrouded in secrecy. Unlike all other policy issues,
intelligence has no natural interest group constituencies
capable of gathering independent information, alerting the
public, or holding elected officials' feet to the fire.
These factors make the intelligence oversight learning
curve especially high, Members' oversight service
extraordinarily valuable, and staff capabilities essential.
Unless overseers know what to ask, they won't get the
information they need to make intelligence agencies effective.
Although the Senate took the very important step in the
108th Congress of ending term limits for this committee, the
experience differential between the SSCI and other Senate
committees remains striking. For example, Senator Warner has
served on the armed services committee for 9 years. Chairman
Levin has served for 28 years. If my calculations are correct,
that's four times longer than the longest-serving member of
this committee. Notably, the House intelligence committee still
has term limits for its members, even though the 9/11
Commission and a number of other studies during the 1990's
recommended abolishing them.
Staff capabilities are also critical and in need of
augmentation. The Government Accountability Office (GAO)
currently lacks full authority to investigate all components of
the Intelligence Community, particularly the CIA. Others have
suggested bolstering oversight committee staff by creating a
new congressional support agency with nonpartisan, cleared
staff that could provide both classified and unclassified
analyses of important oversight issues to Congress. The
Inspector General system also offers an under-utilized
mechanism to provide nonpartisan, independent information to
Congress about waste, fraud, and abuse within and, importantly,
across intelligence agencies.
what can be done
All reforms necessarily involve tradeoffs; there is no one
ideal solution. The history of intelligence reform, however,
suggests two guiding principles for improving congressional
oversight.
Principle #1: Focus less on developing new ideas and more
on implementing the ones we already have.
For sixty years, turf and politics have stacked the deck
against robust intelligence oversight. As the 9/11 Commission
noted, few things are more difficult than rearranging committee
jurisdictions.
And as this committee knows well, overseeing U.S.
intelligence agencies has always been a hard and largely
thankless task that takes precious time away from all the other
issues that concern and benefit constituents more. Few voters
care about the nitty-gritty aspects of the FBI's analyst
program or the number of Pashto speakers at the CIA.
The issues are often complicated and the effects on the
daily lives of Americans are usually indirect and unseen. No
intelligence reform ever won a landslide election.
But turf and politics must be overcome. The ``Implementing
the 9/11 Commission Recommendations Act'' passed last summer
tackled just about everything except congressional oversight.
Congress can do better. American lives depend on it.
This hearing is an important step forward. But success will
require continued leadership, commitment, bipartisanship, and a
relentless focus on implementation.
Principle #2: Pick the low-hanging fruit.
Dramatic improvements require dramatic changes.
Nevertheless, some important improvements can be accomplished
without new legislation, turf wars, or rule modifications. This
``low-hanging fruit'' involves improving informal coordination
and technical capabilities to make the most of existing
oversight activities. These include:
Holding regular staff meetings across relevant
Senate committees and between House and Senate intelligence
committees to better coordinate hearing schedules and
activities.
Instituting periodic leadership meetings of the
House and Senate intelligence committees to share information,
improve coordination, and enhance strategic planning.
Integrating technology systems so that various
intelligence oversight staff with appropriate clearances can
share information more easily.
Mr. Chairman, I'd like to conclude by thanking this
committee not only for holding this hearing to address the
critical issue of intelligence oversight, but for doing so in
open session.
While I fully realize that security considerations often
require closed sessions, there is no more powerful force for
change than an engaged public.
Thank you.
Chairman Rockefeller. Thank you, Dr. Zegart.
Mr. Saturno.
STATEMENT OF JAMES V. SATURNO, SPECIALIST, CONGRESS
AND THE LEGISLATIVE PROCESS, CONGRESSIONAL RESEARCH SERVICE,
LIBRARY OF CONGRESS
Mr. Saturno. Thank you. First of all, I want to thank the
Chairman and the Vice Chairman and the other members of this
Committee for the invitation to appear today and to talk about
one aspect of the 9/11 Commission's recommendations, namely the
recommendation concerning the separation of authorization and
appropriations, particularly the historical record regarding
their relationship. It's a history lesson but one that I hope
that the Committee will find useful.
The U.S. Constitution does not establish a specific budget
process. The power of the purse is assigned to Congress in
Article I, section 9, which states simply that, ``No money
shall be drawn from the Treasury but in consequence of
appropriations made by law.'' How this authority is put into
practice, however, has naturally been the subject of periodic
congressional debate.
Historically, Congress has implemented this power through a
two-step process--first, establishing agencies and programs,
and then funding them in separate legislation. This separation
is a construct of congressional rules and practices and is
neither mandated nor suggested in the Constitution. Instead, it
has been developed and formalized over time pursuant to the
constitutional authority in Article I, section 5, for each
chamber to determine the rules of its proceedings. This power
permits Congress to enforce, modify, waive, repeal or ignore
its rules as it sees fit. The result has been an evolving
relationship and one that is malleable enough to meet the
changing needs of Congress.
Legislation that establishes, continues or modifies a
Government agency activity or program is today termed an
authorization. While authorizations form an essential part of
the Federal budgeting process, by themselves they don't permit
funds to be obligated, although they are typically enacted with
the idea that subsequent legislation will provide funds.
Instead, they simply give direction, both to congressional
appropriators and to the agency.
Agencies or programs are typically affected by more than
one authorizing statute. One law may set up an agency and
establish its underlying mission, while another may establish
specific programs to be administered by the agency, another may
provide specific guidelines for agency organization and yet
another may provide explicit authorization for appropriations
or limits on what activities may or should be funded through
the appropriations process.
Jurisdiction over all of these various aspects of
authorizations is frequently shared by more than one committee.
As substantive law, furthermore, authorizations are generally
permanent unless otherwise specified, but there are no
underlying requirements concerning their duration. This is
further complicated when authority for an agency's activities
is permanent but the authorization for appropriations action is
limited to specific fiscal years. All of these variations can
have an impact that is felt in the appropriations process and,
more importantly, in the oversight of funding of various
agencies and their activities.
Appropriations, in contrast, specifically refers only to
legislation which provides budget authority, that is, authority
for Government agencies or programs to obligate funds.
Appropriations are typically provided for a single fiscal year,
although appropriated funds can be specified as being available
for a multiyear period or even until they're spent. While there
is no constitutional requirement that an appropriation follow
an authorization, historically that has been the case.
Authorizations have been separated from appropriations by
congressional rules and practices reaching back to the colonial
era. The distinction between what we today term authorizations
and appropriations appears to have been understood in practice
long before it was formally recognized in the rules.
This distinction is reflected in the practice of early
Congresses to refer appropriations legislation as supply bills
whose purpose was simply to supply funds for Government
operations already defined in law. Combining funding with
policy-oriented legislation, it was feared, would delay the
provision of funds or lead to the enactment of matters that
might not otherwise become law. Indeed, it was the failure of
the fortifications appropriations bill to be enacted in 1835
due to controversy over a legislative provision in the bill
that apparently was the trigger that inspired the next Congress
to take action, and the House adopted a rule in 1837 which
emphasized the two-step nature of the process through explicit
language for the very first time. The Senate adopted a similar
rule in 1850.
In the 19th century, Congress occasionally recast the
procedural divisions between legislation and funding questions
but never changed the fundamental distinctions between the two.
Throughout the 19th century, the concept of what would today be
called authorizations continued to mean primarily permanent
legislation involving general questions of the authority and
activities of agencies while the appropriations legislation of
the era was typically quite precise, including provisions
detailing such things as the number and positions of Federal
employees and their specific salaries or even how much to be
spent for office supplies.
One salient change in the late 19th century, one of
particular interest with respect to the recommendations by the
9/11 Commission, was the idea of jurisdiction over
appropriations being dispersed among various committees.
Beginning in 1880, the House Commerce Committee and the House
Agriculture Committee were given jurisdiction over bills
providing funding for rivers and harbors and for agriculture
respectively.
This was expanded to include additional House committees in
1885, and the Senate effected a similar dispersal of
jurisdiction in 1899.
House and Senate rules, however, continued to preserve the
formal distinction between legislation and appropriations.
Despite having jurisdiction over both types of measures,
legislative committees do not seem to have made any major
changes in the form of measures they reported. It's important
to note that even after they gained appropriations
jurisdiction, they did not attempt to merge it with their
legislative jurisdiction and continued to address broad policy
and organizational questions separate from the details of
funding agency activities. This system lasted until the 1920s,
when appropriations jurisdiction was reconsolidated and
reorganized in the way that we are familiar with today.
In modern practice, legislative committees have attempted
to play a more direct role in the oversight of Federal agencies
and in the process revamp the concept of how authorizing
legislation should be constructed. Committees have frequently
taken an approach with authorizing legislation that now means
both a periodic and a more detailed review of agency
organization and activities. The refocusing of authorizing
legislation on programmatic details, enumerating how funds
ought to be spent, sometimes leads to the criticism that they
seem to be duplicative of appropriations and leads to conflict
and tension between authorizers and appropriators.
Unlike appropriations, however, authorizations are not
always made in the form of a single annual measure. Although
the more detailed modern approach is widespread, authorizing
committees as a whole have not adopted a uniform approach to
their legislation. Various authorizing committees can frame
their legislation in terms of administrative divisions, whether
that means a single department or individual agencies, in terms
of reauthorizing single specific pieces of legislation or in
terms of broad topical issues. The result is that
authorizations relating to any one department and the programs
it administers can be a complex web of varying specificity and
duration, often falling within the jurisdiction of multiple
committees.
At the same time, the appropriations committees have also
changed the focus of their legislation and have generally moved
away from the level of detail that was once common. In modern
practice, appropriations legislation often provides funding for
specific agencies or programs in only one or a handful in lump
sum paragraphs. The few details in the legislative language are
typically supplemented by other nonstatutory guidelines such as
report language.
Although the evolution of authorizations and appropriations
has sometimes brought them into conflict, nevertheless they
remain conceptually distinct. Authorizing committees and their
legislation remains the primary venue for assessing whether a
program constitutes a good idea, while appropriations remains
the primary venue for deciding among competing demands for
Federal resources and for assessing questions of how well
Federal funds are spent.
The historical record does not give us an answer as to
whether joining authorization and appropriations would improve
oversight, but it shows no barrier to change. It tells us that
Congress has experimented in the past with their relationship
and in the past found various ways to meet their changing
needs.
I want to thank you for your attention, and I welcome your
questions.
[The prepared statement of Mr. Saturno follows:]
Statement of James V. Saturno, Congressional Research Service, before
the Senate Committee on Intelligence, November 13, 2007
The Separation of Authorizations and Appropriations: A
Review of the Historical Record
Mr. Chairman and members of the Committee, thank you for
your invitation to appear today to offer testimony regarding
committee jurisdiction and responsibilities related to the
separation of authorizations and appropriations. I am James V.
Saturno, a Specialist on the Congress and Legislative Process
with the Congressional Research Service of the Library of
Congress.
Authorizations and Appropriations Defined. The U.S.
Constitution does not establish a specific budget process. The
power of the purse is assigned to Congress in Article I,
Section 9 which states that ``No Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law.''
How this authority is put into practice, however, has naturally
been the subject of periodic congressional debate.
Historically, Congress has implemented this power through a
two-step process: first establishing agencies and programs, and
then funding them in separate legislation. This separation is a
construct of congressional rules and practices, and is neither
mandated nor suggested in the Constitution. Instead, it has
been developed and formalized over time pursuant to the
constitutional authority in Article L Section 5, for each
chamber to ``determine the Rules of its Proceedings.'' This
power permits Congress to enforce, modify, waive, repeal, or
ignore its rules as it sees fit. The result has been an
evolving relationship.
Legislation that establishes, continues, or modifies a
government entity (such as a department or agency), activity,
or program is termed an authorization. While authorizations
form an essential part of the Federal budgeting process, by
themselves they do not permit funds to be obligated, although
they are typically enacted with the idea that subsequent
legislation will provide funds.
Instead, they give direction, both to congressional
appropriators and to the agency. Some agencies or programs may
be affected by more than one authorizing statute. One law may
set up an agency and establish its underlying mission, while
another may establish a specific program to be administered by
the agency, another may provide specific guidelines for agency
organization, and yet another may provide explicit
authorization for appropriations or limits on what activities
may be funded through the appropriations process.
The web of authorizing statutes can be complicated because
there are no underlying requirements concerning their duration
or specificity. As substantive law, authorizations are
generally permanent unless otherwise specified, but they can
have any duration. This can be further complicated when
authority for an agency's activities are permanent, and the
authorization for appropriations actions is limited to specific
fiscal years. For example, authorization of appropriations for
defense and intelligence activities have typically been on an
annual cycle, while those for other agencies or programs are
often on two- to 5-year cycles. Authorizations also may be
differentiated as definite or indefinite. That is, they may
authorize specific amounts for specific activities, or they may
provide that ``such sums as are necessary'' are authorized.
Both the duration and specificity of limitations can have an
impact on the appropriations process.
Appropriations, in contrast, specifically refers to
legislation which provides budget authority, that is, authority
for government agencies or programs to obligate funds.
Appropriations are typically provided for a single fiscal year,
although the availability of appropriated funds can be
specified as multiyear or ``no year'' (i.e., to remain
available until spent without regard to year). Although there
is no constitutional requirement that an appropriation follow
an authorization, historically that has been the case.
Longstanding Tradition. Authorizations have been separated
from appropriations by congressional rules and practices
reaching back to the colonial era. The distinction between what
are today termed authorization and appropriations appears to
have been understood and practiced long before it was formally
recognized in the rules, being derived from earlier British and
colonial practices.
The distinction between authorization and appropriations
was reflected in the practice of early Congresses to designate
appropriations legislation as ``supply bills,'' whose purpose
was simply to supply funds for government operations already
defined in law. The inclusion of new legislation, it was
feared, might delay the provision of funds, or lead to the
enactment of matters that might not otherwise become law. The
idea of authorizing appropriations was understood to be
implicit in legislation defining or prescribing duties or
activities of an agency, rather than explicit as it is in
modern practice.
By the 1820's and 1830's, the inclusion of legislative
``riders'' in appropriations bills had become frequent enough
that some Members began to fear that they could no longer rely
on unwritten understandings to keep appropriations separate
from general legislation, and thus prevent spending legislation
from being subject to prolonged consideration as a result. The
failure of the fortifications appropriations bill to be enacted
in the 24`s Congress, due to a legislative provision,
apparently inspired the next Congress to take action. Language
was added to the Rules of the House in the 25th Congress
(September 14, 1837) which emphasized the two-step nature of
the process by providing:
No appropriation shall be reported in such general
appropriation bills, or be in order as an amendment thereto,
for any expenditure not previously authorized by law.\l\
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\1\ As adopted in the 25th Congress. Congressional Globe, 25th
Cong., 2nd sess., Mar. 13, 1838, p. 235.
Although the rule did not explicitly prohibit language
changing existing law until 1876, as early as 1838, the House
established by precedent that legislative language was not in
order in appropriations bills.\2\ The Senate adopted a similar
rule in 1850, when it prohibited amendments proposing
additional appropriations unless they were for the purpose of
carrying out the provisions of an existing law.\3\
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\2\ As described in Asher C. Hinds, Precedents of the House of
Representatives of the United States, including references to the
Constitution, the laws and decisions of the U.S. Senate, vol. IV, '3578
(Washington: GPO, 1907).
\3\ Congressional Globe, 31st Cong., 2nd sess., Dec. 19, 1850, p.
94.
The Late 19th Century. The history of Congress in the 19th
century shows that it has sometimes recast the procedural
division between legislation and funding questions, without
revisiting the fundamental issue of their distinctiveness.
Throughout the 19th century, the concept of what would today be
called authorizations continued to mean primarily permanent
legislation, involving general questions of the authority and
activities of agencies, while the appropriations legislation of
the era was generally precise, even including provisions
detailing such things as the number and positions of post
office clerks at each specific rate of pay.
In 1876, the House's rule separating legislation and
appropriations was amended by what is know as the Holman Rule
after one of its chief advocates, Representative William Holman
of Indiana. This new provision allowed for appropriations bills
to include changes in existing law if it were germane to the
subject matter of the bill and retrenched expenditures. At
least one scholar has suggested that initial enthusiasm for the
new rule stemmed from its use as a device to allow the House to
gain leverage against the Senate and President for repeal of
several Reconstruction-era laws, including changes in jury
qualifications and Federal election supervisors for the South,
as well as a reorganization of the Army.\4\
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\4\ Stewart, Charles H., Budget Reform Politics: The Design of the
Appropriations Process in the House of Representatives, 1865-1921, (New
York: Cambridge Univ. Press, 1989), p. 89.
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A second major change in the relationship between
authorizations and appropriations in the late 19th century was
the dispersal of appropriations jurisdiction among several
legislative committees.
The expansion of the workload of the Committee on Ways and
Means during and after the Civil War (especially due to
banking, currency, and debt questions) led to the 1865 creation
of two new committees in the House (Banking and Currency, and
Appropriations) and a division of the workload. The
jurisdiction of the new Appropriations Committee was defined as
the ``appropriation of the revenue for the support of the
Government.'' This jurisdiction, however, was extensive, but
not all-inclusive, and the Committee had to deal with its
erosion at an early stage. Sometime after the creation of the
Appropriations Committee, the Commerce Committee was able to
establish a unique joint jurisdiction over the rivers and
harbors bill, reporting the bill which would then be referred
to the Appropriations Committee before it could be considered
on the House floor. Beginning in 1878, however, the Commerce
Committee began to use suspension of the rules as a method of
circumventing the jurisdiction of the Appropriations Committee.
This challenge to Appropriations jurisdiction became accepted
practice, and was codified in the House rule revision of 1880,
which gave the Commerce Committee ``. . . the same privileges
in reporting bills making appropriations for the improvement of
rivers and harbors as is accorded to the Committee on
Appropriations in reporting general appropriations bills.''
The rule revision of 1880 also extended the power to report
appropriations to the Agriculture Committee (for the Department
of Agriculture). The jurisdiction of the House Appropriations
Committee was further eroded when the rule revision of 1885
took away its control over the Military Academy, Army, Navy,
Post Office, consular and diplomatic, and Indian appropriation
bills, and distributed these bills to various authorizing
committees. The Senate likewise created a separate
Appropriations Committee in 1867, and, in January of 1899,
effected a similar dispersal of jurisdiction.
The distinction between legislation and appropriations was
preserved in House and Senate rules, however, and the exercise
of jurisdiction over both aspects of the funding process by
these authorizing committees does not seem to have caused any
major changes in the form of measures enacted. It is important
to note that, even after they gained appropriations
jurisdiction, legislative committees did not attempt to merge
it with their legislative jurisdiction, and continued to
address broad policy and organizational questions separate from
the details of funding agency activities.
Reconsolidated Appropriations. By the end of World War I,
the idea of a more centralized budgetary process, including
reconsolidated appropriations jurisdiction, gained prominence.
The Bureau of the Budget, newly established under the Budget
and Accounting Act of 1921, also recommended that
appropriations bills be reorganized along administrative lines,
with appropriations for salaries and expenses of the various
departments being carried in the same bill as funding for the
programs and activities they administered (this grouping had
previously existed only in the Department of Agriculture
appropriations bill). The House Appropriations Committee, with
its newly reconsolidated jurisdiction, adopted the Bureau's
concept and reorganized the structure of appropriations bills
and its subcommittees so extensively that only the Agriculture
bill remained essentially unchanged.
Prior to this reorganization, appropriations bills tended
to be organized along topical lines. For example, the military
activities of the War Department were considered in
appropriations bills reported by the Military Affairs
Committee, the activities of the Corps of Engineers were
considered in the Rivers and Harbors appropriations bill
reported by the Commerce Committee, and the salaries and
contingent expenses of the civilian administration of the
Department was carried in the Executive, Legislative, and
Judicial bill, which was in the jurisdiction of the
Appropriations Committee. A similar division existed for most
departments, and was true even for those agencies whose
appropriations were wholly within the jurisdiction of the
Appropriations Committee. Funding for the activities of
agencies as disparate as the Interstate Commerce Commission,
the Coast Guard, and the Bureau of Mines were carried in the
Sundry Civil bill, while their salaries and expenses were
generally funded in the Executive, Legislative, and Judicial
bill.
The House's reorganization created jurisdictional
difficulties for the Senate, which attempted to retain a
structure based on the topical organization of appropriations
bills, as well as multiple committees sharing jurisdiction over
appropriations bills. Confronted with the difficulty of
considering the House's reorganized appropriations bills, the
Senate reorganized its own appropriations jurisdiction and
subcommittee structure in 1922.\5\
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\5\ S.Res. 213, 67th Congress. For its consideration see
``Consideration of Appropriations Bills,'' Congressional Record, vol.
62, Mar. 1-Mar 4, Mar. 6, 1922, pp. 3199-3207, 3279-3291, 3331-3344,
3375-3392, 3400, 3418-3432.
The Modern Congress. In modern practice, legislative
committees have attempted to play a more direct role in the
oversight of Federal agencies, and in the process, revamped the
concept of how authorizations should be constructed. Committees
have frequently taken an approach with authorizing legislation
that now means both a periodic, and a more detailed, review of
agency organization and activities. The refocusing of
authorizations on programmatic details, enumerating how funds
ought to be spent, sometimes leads to the criticism that they
seem to be duplicative of appropriations. Unlike
appropriations, however, authorizations are not always in the
form of a single, annual measure. Despite their more detailed,
modern approach, authorizing committees have not uniformly
adopted a single approach to their legislation. Authorizing
legislation can be framed in terms of administrative divisions,
whether that means a whole department or individual agencies;
they can be framed in terms of reauthorizing a single, specific
piece of legislation; or they can be framed in terms of an
issue or topic. The result is that the authorizations relating
to any one department, and the programs it administers, can be
a complex web of varying specificity and duration. One law
might set up an agency and establish its underlying mission,
while a second might establish a program to be administered by
the agency, and a third might provide specific guidelines for
agency activities, including limits on what activities may be
funded through the appropriations process. These laws might
also be subject to differing sunset provisions.
At the same time, the appropriations committees have also
changed the focus of their legislation, and have generally
moved away from the level of detail that was once common. In
modern practice, appropriations legislation often provides
funding for specific agencies or programs in only one or a
handful of lump-sum paragraphs. The few details in the
legislative language are typically supplemented by other, non-
statutory guidelines, such as report language.
Although the evolution of the form of authorizations and
appropriations has sometimes brought them into conflict,
nevertheless, they remain conceptually distinct. Authorizing
committees and their legislation remain the primary venue for
assessing whether a program constitutes a ``good idea,'' while
appropriations remain the primary venue deciding amongst
competing demands for Federal resources, and for assessing
questions of how well Federal funds are spent.
Thank you for your attention. I welcome your questions.
Chairman Rockefeller. Thank you. Thank you very much. That
was a good history lesson which has a lot to say to us.
The experience in the last part of the 19th and early part
of the 20th centuries, what was the experience of having
authorization and appropriation power combined, number one?
What were the practical consequences of that? Was there an
overall effect on the Federal budgeting process? And why did
the pendulum swing back to a single appropriations committee to
the extent that it has?
Why did that appropriations committee, in your judgment,
other than the usual, you know, we don't do any more earmarks
so life is getting a lot tougher--why did they become what they
have become, which, if you're on the Commerce Committee or the
Finance Committee or the Intelligence Committee or the
Veterans' Committee, like I am, the Appropriations Committee is
a real problem, is a real problem.
Now, there are two very powerful people that lead that
committee and so one could posit that its role has changed over
time depending upon what the leadership is or whether the
leadership is willing to work with the White House unbeknownst
to the authorizing committees that are very much a part of the
congressional pursuit. So I'm interested in your thoughts on
that.
Mr. Saturno. Well, the general problem as perceived by
legislative committees in the 1800s was what they would term an
excessive economy of the appropriators. And quite simply, they
were looking to control the appropriations process because they
felt that the appropriators were not providing a sufficient
amount of funds for the programs and for the agencies that they
had the greatest interest in. That's partly why it began,
beginning in 1880, with the river and harbors bill and with the
agriculture bill. Those were the things that most directly
involved widespread funding that was dispersed throughout the
country that----
Chairman Rockefeller. I'm not clear as to your answer. Are
you saying that the authorizing committees rose up in rage and
changed the appropriators?
Mr. Saturno. Yes. Literally, the House Commerce Committee
in particular, on a number of occasions attempted to share or
take jurisdiction over the bill to provide funding for river
and harbor projects away from the appropriators. And it was
eventually written into House rules beginning in 1880 that they
had exclusive jurisdiction over that particular piece of
spending legislation. Other committees saw similar
opportunities, and the House was eventually willing to disperse
almost half of the jurisdiction of the Appropriations Committee
to these other legislative committees at various times in the
1880s.
Chairman Rockefeller. OK. Well, now, it's a little bit
later, and the Appropriations Committee has--and I might say
that my Vice Chairman is a very distinguished member of that
committee and I'm very glad that he is, very glad that my
colleague from West Virginia is. On the other hand, it's become
weighted and they have developed their own kind of psyche that
you can't cross the Appropriations Committee because they'll
never forget. And there are people I could point to on the
Appropriations Committee about which that would be absolutely
true.
So why is it that the Appropriations Committee is where it
is when what it's doing, at least with respect to this hearing,
may not be in the national interest or the national security
interest? Why is it they were able to assemble all that power?
You said that the committees all rose up and demanded more of
the action, but that was then, this is now. It's not the case
now.
Mr. Saturno. The reverse swing of the pendulum began early
in the 20th century based on the idea that dispersed
appropriations was a pretty inefficient way to do budgeting,
that it led to a lot of venue shopping by agencies that would
sometimes come to the Appropriations Committee, sometimes go to
other committees looking for money to fund various projects and
activities, and that this led to an increase in spending.
Especially after the First World War, the idea of inefficiency
in Government institutions, particularly in legislative
institutions, helped the idea of reform take strong hold. And
that was the reason for the reconsolidation, so that there
would be less of an opportunity for agencies to try and find
the most malleable congressional committee to provide funds for
them and would only be able to go through a single committee.
And that's essentially the system that we still have today.
The rationale for it is that it prevents agencies from coming
to multiple committees to seek funding, and whether or not that
continues to be useful, whether that's particularly useful in
the case of intelligence funding, well, that's certainly for
Members such as yourself to decide.
Chairman Rockefeller. Thank you.
Senator Bond.
Vice Chairman Bond. Thank you very much, Mr. Chairman.
And thanks to you, Mr. Saturno and Professor Zegart, for
giving us some very good background.
I was fascinated to hear that the reform was to bring all
the power back into the Appropriations Committee. What's the
status in other democracies around the world? How many of them
split the authorizations and appropriations? What's the
practice elsewhere? Can we learn anything from looking at other
legislative bodies to guide us?
Mr. Saturno. I don't know the extent to which most other
legislative bodies formalize it within their rules, but almost
all of them keep separate the question of budgetary legislation
and, on the other hand, general legislation to affect the
organization and activities of Government departments.
Vice Chairman Bond. But you don't see anything in the
Founding Fathers' system of checks and balances that would say
that they felt it necessary to provide checks and balances
within Congress to keep authorizing committees from having a
say in appropriations. Is that a fair statement?
Mr. Saturno. Yes. Their conception of authorizations at the
time was generally that they would pass permanent legislation
detailing the authority of different agencies. In fact, the law
passed in 1789 creating the Department of the Treasury still in
large part defines the basic functions and the activities of
the Department of the Treasury. That's partly why they don't
have, or aren't perceived to need, an annual authorization Act.
So the conception of what's considered necessary or useful in
terms of authorizing legislation is in large part what's
changed over the past 200 years.
Vice Chairman Bond. Professor Zegart, I was fascinated by
your analysis. Obviously, you have followed what's going on in
Congress and in intelligence very closely. You said that of 12
major unclassified studies, none were adopted before 9/11. What
do you think the major impediment to that was? Is it an
analysis of the mood or problems of organizing this body? What
do you see as the major impediments to reform?
Dr. Zegart. Well, Senator, I think the major impediments
are the same ones that have been problematic for all kinds of
intelligence reform, not just congressional reform, and there
are three. And I think Congress has an even harder time than
than executive branch agencies. The three are, first, inertia.
No organization changes easily on its own, whether it's IBM or
GM or the Congress.
The second is turf. And here, it's helpful, I think, to
think of the decentralization of Congress, which was
accelerated in the 1970s with congressional reforms serving
individual interests of individual Members. So the more
disparate power centers there are in the Congress, the better
it is for any individual Member because the pie is divided. It
makes perfect sense from the standpoint of the reelection
interest of individual Members, not so helpful for national
interest overall. And so that turf division which was
accelerated in the 1970s has proven particularly problematic
from the standpoint of congressional reform.
And then the third factor is politics, and I think this
Committee hearing today has talked a lot about how intelligence
is different. Historical precedents are helpful, particularly
in enlightening us that there really is no stringent
requirement for either separating or combining authorizations
and appropriations. But in intelligence, what strikes me as
particularly different, as Congressman Hamilton noted, is that
this is the only committee that really stands watch over the
executive branch, that there aren't nonpartisan think tanks
that have access to that information, there aren't academics
like me who have easy access.
Vice Chairman Bond. You're about as close as we've got to
that.
Dr. Zegart. You're a lot closer than I am.
And so there's a particularly important role that
Intelligence Committees play, and at the same time members of
the American public are not engaged in intelligence precisely
because it's secret. So when I teach my students in California
and I ask them what they know about the intelligence community,
most of them learn a lot more from what they see in Hollywood
where I live than being able to figure out from information
coming out of Washington. The tremendous secrecy involved in
intelligence makes it hard from a political standpoint to get
the American public energized about intelligence reform, as
we've seen over the past decade.
Vice Chairman Bond. When I was first elected Governor, my
biggest challenge was to reorganize the executive branch of
Missouri State government. And the turf, every senior member of
the General Assembly had a particular agency that was his
agency, and he didn't want anybody in the executive branch
running that agency. And the water patrol knew they reported to
one Senator, and that Senator would take care of them and the
water patrol chauffeured him around every lake in the State and
was his own private navy. And you talk about a cat fight, I was
in it.
But let me ask for your advice. You heard our discussion
earlier, and we went into the issue with Congressman Roemer and
Congressman Hamilton--very good testimony--saying we've got to
change the process because without having any input in
appropriations, the Intelligence Committee has been divorced
from the appropriations process. From your experience, how do
you see us bringing this movement to fruition so we can have
some impact, we can have an effective oversight impact in the
$40-plus billion of intelligence community appropriations?
Dr. Zegart. Well, I think that's the $64,000 question.
Vice Chairman Bond. That's why we waited to the end to ask
you.
[Laughter.]
Dr. Zegart. Well, I appreciate what the Chairman, Senator
Rockefeller has said about the 23 votes and just how difficult
this task is. If you look at the history of intelligence
reform, we've seen the dangers; we've known the imperative for
organizational changes in Congress and the executive branch.
It's very hard to get from here to there.
I think history does suggest that there are game-changing
junctures, and this could well be one of them. And in those
game- changing junctures, what makes the difference is
leadership of individual either Members of Congress or the
President and engaging with a public to force change on a
change-resistant system. And I'm thinking in particular of two
moments in time. The first is 1947 when President Truman
undertook a tremendous battle with the Department of War and
the Department of Navy to create our current national security
system. The New York Times back at the time reported it as a
brass knuckle fight to the finish. It took 4 years and bitter
wrangling, public wrangling, lots of press about it, lots of
open hearings about it, and ultimately Truman prevailed. It
wasn't perfect, but it was a tremendous example of a game-
changing moment and making the most of that moment.
The second example that comes to mind is Goldwater-Nichols,
1986, where we had a convergence of forces. Military experts
had known for years that the services needed better
coordination, very similar to intelligence, and yet there
wasn't the impetus, so there wasn't the opportunity for reform.
Well, suddenly there was a convergence of circumstances. There
was the failed rescue effort in Iran in 1980. There was
Grenada. There was the Marine barracks bombing in 1983. And
there was momentum for reform in Congress, and so two Members
of Congress pushed through that momentum to get this incredibly
important legislation.
So I think windows of opportunity arise every once in
awhile, and this I think could very well be one of them, so you
may get more than your 23 votes if we push hard enough.
Vice Chairman Bond. Well, I thank you and I believe your
testimony helps us move down the line. I just wish we had 60 of
our colleagues sitting here listening to you instead of--if you
want to play Goldwater, I'll be Truman, or you play Truman and
I'll be Goldwater.
And I thank you both very much because we need to change
things and come together with our colleagues to work out a
responsible means of assuring that our efforts with the 50
staffers and all on this Committee are not for naught. I thank
you.
Chairman Rockefeller. You've got to end better than that,
not for naught.
Vice Chairman Bond. That they mean something.
Chairman Rockefeller. There you go.
Thank you both very much. Incidentally, the number you need
to focus on is not 50 but 60 votes because all important
matters are filibustered.
Vice Chairman Bond. Oh, well, we can get----
Chairman Rockefeller. It's 23 to 60 here.
It's interesting--I mean, it really is--to listen to the
four of you this afternoon. And you were talking about the way
history has worked, and it's brought those revolutions. And
working within what we do now almost makes you--you could on
the one hand ask if we had both the authorizing and the
appropriating power for the Intelligence Committee, would that
be wise? Would that be a wise thing? Should there be some kind
of a check or balance on our decisionmaking? Because we tend to
get pretty worked up about situations around the world.
And then the other side would be is there an interim way,
which was also discussed this afternoon, of gradually
persuading people or being more aggressive with our staff with
respect to the appropriators? And they're a very tough bunch.
They always have been, at least in the 23 years I've been here.
And they don't yield, and they take great pride in that.
So I mean, very important questions have been raised in
this hearing this afternoon, and I'm very grateful to you. I
only apologize that the Vice Chairman had such a long opening
statement.
[Laughter.]
Vice Chairman Bond. Mr. Chairman, sometimes we
appropriators think that the authorizing committees are really
causing a great deal of trouble, so I put on my other hat and I
say and all of the equities are not on the side of authorizers.
Thank you.
Dr. Zegart. Thank you.
Chairman Rockefeller. The hearing is adjourned.
[Whereupon, at 5:20 p.m., the Committee adjourned.]