Intelligence Oversight Flexes One New Muscle

12.10.07 | 3 min read | Text by Steven Aftergood

The ability of Congress to provide an effective check on Bush Administration intelligence policy has been increasingly called into question by each succeeding departure from the norms of accepted intelligence conduct, including most recently the destruction of CIA interrogation videos.

Even the Intelligence Committee leadership has expressed a disconcerting degree of self-doubt and inadequacy.

“For seven years, I have witnessed first-hand 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 not out-right disdain,” said Senate Intelligence Committee chair Sen. Jay Rockefeller (pdf) at a hearing last month.

“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,” he said.

So it is all the more remarkable that the intelligence oversight committees have finally dusted off and used one of the tools they have always had to compel executive branch cooperation — the power of the purse.

Specifically, a provision of the new FY2008 intelligence authorization bill would prohibit expenditure of certain funds for an unidentified classified program unless and until every member of the oversight committees is briefed on intelligence about the September 6, 2007 Israeli strike on a Syrian facility.

See Section 328 (“Limitation on use of funds”) of the Conference Report on the FY 2008 Intelligence Authorization Act completed last week.

Although disputes over congressional access to information date back to the first months of the Bush Administration, a review of past legislation shows that the intelligence committees have not previously exercised their budget authorization power in this way to compel disclosure of information, or to penalize non-disclosure, under the current Administration.

In fact, a former staffer told Secrecy News he could not remember this approach ever having been used by the intelligence committees (though other committees have often made release of funds contingent on submission of required reports under their jurisdiction).

So why did they do it now?

The former staffer pointed to testimony last month by former Rep. Lee Hamilton at a Senate Intelligence Committee hearing in which he stressed the use of financial incentives to induce intelligence agencies to submit to oversight:

“Okay, they don’t share information. What do you do 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. Hamilton told the Committee on November 13.

The scales seemed to fall from the members’ eyes.

“I think you’ve given us a game-changing scenario,” replied Sen. Kit Bond (R- MO) at the hearing.

The use of appropriations authority to elicit information from the executive branch actually dates back to the earliest days of the Republic, observed Louis Fisher in a 2001 Congressional Research Service report.

“Presidents may have to surrender documents they consider sensitive or confidential in order to obtain funds from Congress to implement programs important to the executive branch. This congressional leverage is evident in a number of early executive-legislative confrontations.”

See “Congressional Access to Executive Branch Information: Legislative Tools” (pdf), May 17, 2001.

Update: To give credit where it’s due, the amendment restricting the use of funds until the requested briefings have taken place was introduced by Rep. Pete Hoekstra (R-MI), the former chairman of the House Intelligence Committee. It was adopted in the House-Senate conference.

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