So Much for Spy Oversight: The Danger Room Guide to The Next Congress (Part 3) [Updated]
It can be easy to forget that “oversight” has two meanings. But longtime spy-watchers never do. “It could mean ‘oversee,’” reminds John Pike, the intel-and-military analyst who runs GlobalSecurity.org, “or it could mean ‘overlook.’” The senators and congresspeople who staff the intelligence oversight panels on Capitol Hill are increasingly inclined to the second interpretation.
There’s no shortage of things to examine in spyworld. The CIA is waging an unacknowledged war in Pakistan using missile-equipped drones. The uniformed command responsible for defending the military from cyberattacks is located alongside the electronic-snooping wizards of the National Security Agency. The National Counterterrorism Center’s analysts still don’t have a search tool as good as Google (.pdf) to comb spy databases for potential terrorists.
But the observers of the intelligence world don’t anticipate that the 112th Congress is going to spend much time airing the spy world’s dirty laundry. Not only do the committees do much of their own work behind closed doors, but the leadership that’s sticking around has been cozy with the spy agencies. Structurally, the committees have limited investigative power, even after the passage of a long-delayed bill that expanded their purview.
On the other hand, anticipated GOP gains in next month’s elections are likely to bring new scrutiny on the Obama administration’s decisions on using intelligence. Look for Obama’s restrictions on the CIA’s role in interrogations to come under pressure. Same for the FBI reading suspected terrorists Miranda rights. Whether it’ll be able to change those policies is less certain. Welcome to the third installment of Danger Room’s Guide to the Next Congress.
First up is the House Permanent Select Committee on Intelligence, run by chairman Silvestre Reyes, a Texas Dem, and ranking member Peter Hoekstra, a Michigan Republican. Reyes didn’t make the greatest impression before running the committee in 2007, proving unable in an interview with Jeff Stein to command the basic facts of the Sunni-Shiite divide and the Iraq war. In any event, he’ll cruise to reelection.
Hoekstra, though, is leaving the House after losing a gubernatorial primary. His likely replacement as top Republican is Mac Thornberry, a Texas conservative and armed-services committee member who followed cybersecurity issues starting back in 2003 as a subcommittee chairman. In 2004, he co-wrote a report (.pdf) warning that the Department of Homeland Security wasn’t adequately structured to prevent cyberattacks — not groundbreaking stuff in 2010, maybe, but this was back when cybersecurity was obscure.
With Thornberry likely to chair the committee in the event of a GOP House victory, he’ll probably elevate cyber to a higher position on the panel’s agenda. (His office politely ducked questions on whether he wants to run the committee and what his priorities for it might be.) Suzanne Spaulding, a former staffer for both the House and Senate intel panels, says that it’s “not at all clear to me if the committees have been involved” in crafting cybersecurity legislation, especially compared to the more aggressive homeland security and judiciary committees.
Beyond cybersecurity, Thornberry and the other GOPers on the panel have emerged as strong critics of Obama and the Democrats. In a Politico op-ed shortly after Faisal Shahzad tried to detonate an explosives-filled SUV in Times Square, Thornberry blasted Obama for stopping the CIA’s “enhanced interrogation” program and warned that reading terrorism detainees their Miranda rights would let them clam up in interrogations. Another Republican on the panel, Mike Rogers, also makes that case — even charging that detainees in Afghanistan get Mirandized — with the added credibility of being an ex-FBI special agent. (General David Petraeus denied that Afghan detainees are Mirandized; and top FBI national-security official Sean Joyce countered Rogers last week that detainees still talk to interrogators after getting the Miranda warning, just that their statements become inadmissible in court.) Peter King of New York, one of Obama’s most aggressive critics on counterterrorism, is also on the panel, and he’s expressed concern that the intelligence agencies don’t get enough say in whether to try terror suspects in civilian courts.
Given that, it’s a safe bet that the committee’s public hearings will put the Miranda and interrogations questions to administration and intelligence officials. Spaulding considers that healthy. “It makes sense to try and get a stronger consensus [on] what the law allows and the courts allow, as well as what the scope of [Miranda] can be from a policy perspective,” she tells Danger Room — but adds that it’s not clear what law Congress could pass to bar its usage in terror cases.
Daveed Gartenstein-Ross of the Foundation for the Defense of Democracies doesn’t think House Republicans would go that far. Interrogations and prosecutions are “traditional executive prerogatives,” he notes, making Republicans reluctant to tie the president’s hands with laws when they could find themselves back in the White House shortly.
However far the committee goes on Miranda, some think that’s as far as it’ll go to scrutinize the intelligence agencies in public on any other issue. On any of the other major issues facing the committee — drone strikes, reauthorizing provisions of the Patriot Act, reorganizing the spy agencies — Pike says that on the Hill, “everybody drank the Kool-Aid.” Whatever scrutiny members apply will be done behind closed doors. “The era of Otis Pike and Frank Church” — the congressman and senator who held groundbreaking public hearings in the 1970s on spies’ wrongdoing — “is long ago and far away,” he says.
That attitude is firmly in place at the Senate Select Committee on Intelligence. Under the leadership of Dianne Feinstein, who’s likely to retain her gavel if the Dems keep the Senate, the panel has had superficial disagreements with the spy agencies. Feinstein initially opposed the nomination of Leon Panetta to helm the CIA and, with her GOP counterpart Kit Bond, also didn’t want James Clapper to become director of national intelligence. She lost on both fronts.
But beyond the leadership disputes, Feinstein hasn’t been publicly holding the intelligence agencies’ feet to the fire. Last year, she launched a closed-door investigation into detainee abuse by CIA interrogators. Although she said last April that the committee had finished looking into at least two cases of abuse and was “shocked” at what it found, nothing’s been made public, even after the administration declassified a 2004 internal CIA review on the subject.
“She’s a conciliator when conciliation is not what is needed,” says Steve Aftergood, a spy watcher at the Federation of American Scientists. “I would have liked to see a more aggressive defense both of congressional prerogatives and the public interest.” Aftergood worries that it’s going to get worse if Russ Feingold, the Senate’s main civil libertarian and committee member, loses his tight re-election race.
So don’t expect public review of the drone program — or the CIA’s other covert counterterrorism actions in places like Yemen. Paul Pillar, a retired senior CIA analyst, finds the committee’s public silence on the drones hard to understand. In Pakistan, “we’re talking about the CIA using the same sort of equipment and tactics” as the military does in Afghanistan, he says, blurring the line between spying and warfighting. “The committee should consider what is and what should be the CIA role in this.” If that’s happening at all, it’s happening in hearings that the public can’t attend — or influence.
That’s not to say Feinstein and Bond — who’s retiring from the Senate — haven’t brought some criticisms of the spy agencies out into the open this past year. In May, they singled out the National Counterterrorism Center for failing to keep would-be Christmas bomber Umar Farouk Abdulmutallab off a U.S. plane. And their beef with Clapper wasn’t personal: he just wasn’t interested in their efforts to give the director of national intelligence greater powers to run the 16 spy agencies. And on Tuesday, Bond alleged that the spies have wasted “billions and billions of taxpayer dollars” in an interview — but said classification rules barred him from getting specific.
So it’s possible that the committee will revisit those structural issues when the Senate reconvenes — especially the weaknesses at the National Counterterrorism Center, where politics might compel a sustained committee effort. As Pike puts it, the panel has “got to keelhaul somebody, and they’re the point person” on the recent near-miss terror attacks.
But the panel’s own structural weaknesses — like that of its House counterpart — have proven difficult to overcome. Last month, Congress finally passed the first intelligence bill in almost six years, which was hung up over a provision that let the full oversight committees know about the CIA’s most sensitive operations, rather than just the congressional leadership. Obama opposed it for fear of leaks. But when he signed it, he said it only compels him to provide a “general description” of the covert programs to the full committees. In the past, these programs have included the assassination of terrorist leaders.
The secrecy hanging over the committee’s operations is what stops Bond from even explaining how the $75 billion annual intelligence budget — which neither committee controls and is classified — gets wasted. Outside from approving intelligence nominees and receiving an annual unclassified briefing on security threats, most of its hearings are classified. That arrangement helps protects legitimate secrets. But it also allows longstanding intelligence problems to fester, resulting in disasters like, well, 9/11. It’s unclear who’ll replace Bond on the GOP side, but there aren’t many senators from either party who demand greater sunlight from the spooks.
In general, “if the intel committees are doing something it’s so deeply behind closed doors that it publicly might as well not exist,” Aftergood says. “Once it’s taken on by the committees, it’s effectively removed from the public domain.” That’s oversight. In one sense of the word.
Update, 9:58 p.m.: I’ve edited the context surrounding Suzanne Spaulding’s cybersecurity quote for clarity.