Testimony for the Senate Select Committee on Intelligence
(BY LT. GEN. (RET.) WM. E. ODOM)
September 11, 1991
Good afternoon Mr. Chairman and members of the committee. It is always an honor and a challenge to appear before this committee. Today is no exception in your tradition of asking hard questions.
You have asked me to comment on the draft legislation, S. 1003, which would require Senate confirmation of several additional officials of the Central Intelligence Agency. Is it desirable that they be added to the long list of executive branch officials already requiring confirmation? Would it strengthen the committee's oversight of the CIA? Would it help avert irregular behavior by these officials? Would it tend to politicize or professionalize those positions?
My first reaction to the proposed legislation is ambivalent. While I do have enthusiasm for it, I cannot say that it will inevitably be harmful. I can understand the motivation for it in light of the Iran-Contra affair. If it is your judgment that public perceptions make it imperative for confidence in the CIA, I am in no position to challenge that view. Being invited to testify, however, has forced me to think through some of the likely consequences and dynamics if the bill becomes law. I propose to share those thoughts with you, not as a strong advocate either for or against legislation.
On the positive side, the bill does make it appear that the Senate is pursuing oversight of the CIA more aggressively. That in turn, should allow the Senate to defend CIA activities more effective to the public. Perceptions are important. That should be acknowledged.
It can also be argued that confirmation would prevent the appointment of nonprofessional outsiders whose claim to the posts owes more to their political ties than their competence. That has not been a big problem in the past, but in principle it could become one.
Finally, it can be claimed that Senate scrutiny of appointees will identify potential weaknesses in competence and character, making it less likely that the incumbents will violate either policies or laws.
On the negative side, I first see a number of problems. First, Senate confirmation is no assurance against deviant behavior by officials. The committee has occasionally been unhappy with incumbents whom it confirmed.
Second, while Senate confirmation can be used to insure high standards of professional competence in an appointee, confirmation also inherently politicizes a post, making it possible for the President to treat it as justly part of the political spoils that go to the winner of an election. In that event, political loyalty is likely to stand above professional competence as a criterion for appointment. Furthermore, a confirmed official is generally expected to serve only as long as the President, leaving when the President leaves.
I seriously doubt that the committee intends this kind of outcome. The Deputy Directors of Intelligence, Operations, and Science and Technology are positions that would be greatly damaged by that kind of practice. Continuity between administrations, not change, is more appropriate. Moreover, the possibility that political criteria could undermine the professional criteria now attached to these posts would, I am sure, disturb the members of this committee.
As I am sure you have noticed, this argument is precisely opposite to the one I made for favoring the bill; that is, the Senate could insure that the President or the DCI does not undercut professional standards in making these appointments. Here you find the basis for some of my ambivalence. I believe both arguments have merit. Yet they are incompatible arguments. As you force me to think about the problem, I see it as a matter of choosing between two kinds of risks and two kinds of advantages. In making a choice, one ought to be mindful that the Senate now confirms the DCI and the DDCI.
The Senate already has a lot of leverage with those two. Extending the list could be seen as a sign that the confirmation process has not worked well with the DCI and DDCI. You confirm appointees whose judgment in making lower level appointments you do not respect or trust. The remedy would seem to be better standards in their confirmation or resort to impeachment, not the expansion of a procedure that failed to prevent the source of the problem.
I do not, however, believe the arguments against the bill apply to all six of the positions proposed for confirmation. The general counsel seems to me to fall in a different category and involve a different set of competences. In fact, I do not see good arguments against confirmation of that position. The case I am making applies to the other five.
A third argument is that the CIA is not like other agencies, and the personal and professional lives of its officials are necessarily kept out of the public eye to the extent possible. If the confirmation process involved looking back into the behavior of an official while he served in a clandestine post, this could present a security problem, not just in the revelation of activities but also in providing foreign intelligence services with a better idea of the personality and experience of the nominee. That information can be of value to them.
Fourth, I am concerned about the possible adverse incentive structure Senate confirmation could create for CIA officials who aspire to these posts. They must not only perform well in the eyes of their superiors; they are also likely to believe they must cultivate a political constituency among members of the Senate and their staffs. The leadership of an intelligence organization is difficult in its own right. It is different from most other executive branch agencies. Its personnel are required to live out of the public view, even keeping their families uninformed of their professional lives and achievements. Among the more senior officials, who believe they could be candidates for these posts that would require Senate confirmation, there would be more than the normal incentive to become publicly known. I do not see how this could fail to make the job of the Director of the CIA more difficult.
It can be instructive to realize that a similar kind of problem exists for the military services. Institutional discipline would be undercut if ambitious officers believed their political standing in the Senate were a critical factor in their careers. You now have a way of handling that problem with commissioned officers. There is a formal process for approving promotions for all ranks up to major general. And a similar process is followed for position appointments to three- and four-star posts.
I would find a similar process for CIA personnel far more acceptable than the one proposed in S. 1003. Until the National Security Act of 1947 and the creation of the CIA, of course, the OSS personnel were military, and they fell under the military promotion confirmation system.
A case for re-militarization of the CIA could be made. Intelligence is a kind of combat, a part of warfare. The appropriate discipline and professional standards of personal honor have always appeared to me to be the same as for the military. There is, however, no military-like ethos for such standards among civilian employees of the intelligence community, and there is no formal institutionalization of it with ranks and formal responsibilities. Nor, insofar as I know, are intelligence operatives of the CIA under anything like the Uniformed Code of Military Justice. Lacking both the instruments of the military for positive incentives and the UCMJ for negative incentives, the leaders of civilian intelligence agencies have an especially difficult task. Certainly the Director of the CIA has more special sanctions over personnel matters than the Postmaster General or the Secretary of Agriculture, but the personnel management system there is closer to those departments than it is to the armed services in most ways except for security clearances. The security standards may be very high, but they relate to loyalties to foreign states, not to loyalties to informal groups and values within an intelligence agency that conflict with organizational values. The very essence of the professional military ethos is that an officer subordinate his loyalties to informal small groups to the larger institutional values. The service academies, ROTC programs, and officer candidate schools strive to inculcate the ethos from the day a young person is sworn in. The academies, but they nonetheless seek to recover from those setbacks,
and they institutionalize and sustain that ethos. There is no equivalent formalized and institutionalized ethos for the intelligence agencies.
I am not proposing this solution. I am only pointing out that there are alternatives to S.1003 that might promise far greater substantive results for the ends your committee seeks.
Now I would like to step back from the particular case we are discussing and reflect on the larger trend in congressional-executive relations concerning confirmation of senior officials. The numbers, I believe, have grown, and they probably will continue to grow. What are the larger implications of such a trend? It seems to me to have invited a higher degree of politicization of appointments and to have left the President with a weakened ability to implement both the laws the Congress passes and the policies he pursues.
The popular view is often expressed that the executive branch has grown much stronger vis-a-vis the Congress. Admittedly, where one stands on such issues depends on where one sits. As a serving military officer deeply engaged in the interaction between the two branches, I was always impressed by the greater strength of the Congress. Both continuous and periodic monitoring of program development and policy implementation cause a diffusion of power in that process, not only in the administration but also within the Congress, a diffusion that has weakened the Senate and House leadership and the chairman of several of the committees. Where this diffusion is reflected in the growing number of positions requiring Senate confirmation, the impact has not always been the appointment of more effective officials. It has been paralysis on occasions, leaving positions unfilled, or confusion about Presidential policy because the incumbent must satisfy two sources of policy direction, one from the President and one from the Congress, or sometimes several conflicting ones from the Congress.
Perhaps this kind of effect will not result from S.1003, but I am inclined to believe it could. Let me explain. Last spring I testified before this committee on intelligence community organization. I noted that unlike other intelligence organizations, which are institutionally within the major users of the intelligence product, the CIA is not. That separate status inherently gives it more discretion than any other intelligence agency in responding to users of its products. One of the major consequences of the emergence of the congressional intelligence committees has been to encourage the CIA to use that discretion for serving congressional intelligence interests, sometimes above executive, branch interests. Making additional CIA officials subject to Senate confirmation certainly will not retard that tendency, and it could increase it.
I am not suggesting that the CIA should not provide the Congress with intelligence products it may demand. But I am suggesting that the first purpose of intelligence is in support of executive branch operations. And when those operations are not successful because of apparent intelligence failures, the Congress is among the first to condemn the intelligence community for poor performance. Thus it is clear that Congress sees the priority of the intelligence community's services as first to the executive branch. I do not believe, however, that the intelligence committees in Congress are always aware of the negative impact they sometimes have in the incentives they create for the CIA to shift those priorities. This is not to blame the CIA for the shift. It is to identify the incentive structure that almost insures it no matter who the incumbents are at the CIA. Their lot in this regard is not enviable. They face strong cross-pressures.
Let me offer another line of thinking about the wisdom of adding positions at the CIA to the list for Senate confirmation. I have long been puzzled by the legal concept of oversight. In principle I strongly support checks that make irregular behavior in all parts of the intelligence community difficult and sure to be discovered if they occur. I deeply share James Madison's view of human nature and the necessity for checks and balances. In principle, congressional oversight of the intelligence community should provide that kind of balance.
In practice, however, it seems to me to have failed at times and also to have generated a lot of activity that has little to do with achieving the real intent of oversight. To elaborate, is oversight really presight or after sight? It has moved strongly toward presight. Yet after-sight within a reasonable period of a few week or months is certainly adequate to prevent any intelligence agency from subverting the constitution in an irreparable way.
When it is pre-sight, it can easily become sharing in and approving executive branch decisions and directions. Not only does such a practice seem to violate the spirit of the separation of powers, but it also makes the Congress politically responsible if a directive it has approved goes awry and produces an untoward outcome. One can, of course, cite the Legislative Reorganization Act of 1946 which tells the standing committees to `exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject of which is within the jurisdiction of such committee.' That guidance essentially calls for fairly close involvement in policy formulation and implementation.
In the domestic agencies, I see little argument against this kind of a competitive process. In national security, particularly military and intelligence affairs, it seems to me to need limits. Intelligence is a type of military operation. I do not believe that anyone wanted congressional presight of General Schwarzkopf's war plans or second guessing in his operations center as he conducted the war. Nor would anyone want Senate confirmation of his J-3, that is, his chief of operations, if he decided to changed the incumbent. There is a point, therefore, beyond which congressional participation is quite different from domestic policymaking and implementation, even different from many aspects of foreign policymaking. In these operations, it makes better sense to take our chances while they are in progress. We can resort to political and professional accounting after we are sure of the outcomes.
In observing members of the intelligence committees over time, it has been apparent to me that some of then soon realize the dangers of encumbering themselves with presight and the political responsibility that inherently goes with it. They become comfortable with aftersight especially because its discovery of irregularities and bad outcomes puts them in a strong position to criticize the executive branch. At the same time, some members have been adamant that they share in the executive decisonmaking process. In a few instances, they have indeed had to take some of the public blame for poor executive branch decisions.
A former high-level legal counsel in the government, upon hearing me make this point, said that the Justice Department had looked at the legal origins and status of the concept of oversight. It is not explicitly in the Constitution. There one finds the power of purse for the Congress and the power to impeach. Oversight
is a term of fairly recent use and ambiguous legal status in congressional-executive relations. Now this is only one legal opinion, but I believe it is useful in making us reflect. Moreover, a student of the Congress, writing about oversight in 1976, notes that scholars `. . . assess oversight differently at times because they are not talking about the same thing.' He also observes that `the Joint Committee on Organization of the Congress worried at some length about appropriate terminology to describe the oversight function. . . . Their choice of `review' to replace `oversight' clarified very little.' 1
1 Morris S. Ogul, Congress Oversees the Bureaucracy (Pittsburgh: The University of Pittsburgh Press, 1976), pp. 5-7.
Oversight, whatever its origins and definitions, is here to stay. I do not see how we could go ahead without it because it seems to inhere in our constitutional structure. The question I raise is how best to define it and make it effective for the intelligence community. If it only amounts to increasing congressional infringement on executive prerogatives and an accumulation of small laws and practices created incrementally without reflection on their overall direction and consequences, it has fewer prospects of being effective. I do not pretend to have the answers from a reflection on the overall direction it has taken, but I do want to suggest that `aftersight' deserves your consideration in such a reflection.
This committee's oversight of the intelligence community is not unlike the relation of a corporate board to a business's management personnel or a university board to its president and administration. Its major tasks are to raise money and change the management when it fails to produce the desired outcomes. When boards drift into micromanagement of institutions, involving themselves in the day-to-day business of decisions, siding with different factions within the management, they soon find themselves with two unhappy circumstances. First, they are part of the management problem that disturbs them. Second, they lack the independence to impeach the management. Boards, to be sure, cannot sit back and simply wait to see what happens. They must stay informed and involved in selected ways. They must find a proper balance between the extremes of excessive passivity and excessive involvement.
Against this larger picture of the Congress's relations with the executive branch in general and the intelligence community in particular, I believe you can see why I have a mixed reaction to S. 1003 except where it concerns the general counsel at the CIA. At the same time, I admit that it is not easy to apply.
The great virtue I see in the proposed legislation is not in its details or in whether or not it becomes law. Rather it is in the set of critical questions it forces one to think about and to struggle to answer. The bill's author, Senator Glenn, has performed a great public service in causing us to address them. Perhaps others who are wiser can find unambiguous answers. I cannot. The questions keep forcing me to see the difficult search for balance between power and possibility, between political trust and professional integrity, and between institutional exigencies and the public good.
Thank you for the honor of appearing before you in such important deliberations, and I have the highest confidence that you will bring them to a sound conclusion.
Lt. General William E. Odom, Director of National Security Studies
Lt. Gen. William E. Odom, USA (Ret.) is Director of National Security Studies for Hudson Institute and an adjunct professor at Yale University. He is stationed in the Washington office of the Indianapolis-based Institute.
As Director of the National Security Agency from 1985 to 1988, General Odom was responsible for the nation's signals intelligence and communications security.
From 1981 to 1985, General Odom served as Assistant Chief of Staff for Intelligence, the Army's senior intelligence officer.
During the Carter administration, from 1977 to 1981, General Odom was a senior member of the National Security Council Staff and military assistant to the President's Assistant for National Security Affairs, Zbigniew Brzezinski. At the NSC, General Odom worked on strategic planning, Soviet affairs, nuclear strategy, telecommunications policy, terrorism, and Persian Gulf security issues.
General Odom graduated from the U.S. Military Academy in 1954. He received an M.A. in Political Science from Columbia University in 1962, and a Ph.D. in 1970. He also attended the Army Language School and the U.S. Army Russian Institute. His military education includes the Armor Officer's Advanced Course, Airborne School, Ranger School, and the Command and General Staff College.
After troop duty in Germany, General Odom completed the Army's 4-year Russian Area Specialty Program, which included his master's work at Columbia. He served as a member of the U.S. Military Liaison Committee to Soviet Forces in Germany and as Assistant Army Attache in Moscow. General Odom also taught Soviet Studies at the U.S. Military Academy and served as a Senior Research Associate at Columbia University's Research Institute on International Change.
General Odom has written widely on Soviet political and military affairs. His book, `The Soviet Volunteers,' was published by the Princeton University Press, and his articles have appeared in such journals as World Politics, Foreign Affairs, The National Interest, Foreign Policy, Problems of Communism, The Washington, Quarterly ORBIS, Military Review, and others.
General Odom is a member of the Council of Foreign Relations, the International Institute for Strategic Studies, The American Political Science Association, and the American Association for the Advancement of Slavic Studies. He holds an honorary degree from Middlebury College.