V. Problems and Pitfalls in the Relationship
This section explores difficulties in the Intelligence Community's handling of its relationship with Congress, in its handling of relations with the rest of the executive branch, and, finally, in the use of intelligence by Congress itself.
Suggestions for avoiding these problems are set forth in part VI.
The Intelligence Community's Handling of the Relationship With Congress
What Intelligence Information Is To Be Provided To the Congress, and Who Decides This?
Both sides seem largely content with current practice regarding the provision of published intelligence. The Hill has access to most finished intelligence published for general circulation but not to finished intelligence tailored to the needs of high-level policymakers or to "raw" unevaluated intelligence, unless a special need exists.
Briefings given in response to Congressional requests are more problematic in that they often pose a "sourcing" question: how much information about intelligence sources and methods should be cited to explain the evidence underlying particular analytical judgments? The analysts responsible for preparing the briefings typically resolve this issue themselves, perhaps after consultation with the collection element(s) concerned.
If the information at issue is, in the view of the analysts, of marginal significance to their conclusions, it may be left out of the briefing altogether. If, on the other hand, sensitive source information is deemed so pertinent that it cannot in good conscience be left out of the briefing, the analyst may attempt to brief the information separately to the leadership of the committee concerned or, if the requester is an individual Member, tell him or her that sensitive source information is being omitted from the briefing. The other possibility is that the analyst will leave out of a briefing sensitive source information that is relevant, and no one will be the wiser.
An even more difficult situation arises when an analyst obtains significant but sensitive information that is not included in the finished intelligence that goes to the Hill and is not provided as part of any briefing specifically requested by Congress. An example of this problem was provided by a CIA analyst who several years ago had become aware of reporting that, if true, suggested that another government was attempting to develop weapons of mass destruction that could pose a threat to the United States. The analyst knew that such a report would be a significant concern for particular Members of Congress but was also aware that the report, if provided to those Members, would in all likelihood be leaked to the press. While there was doubt among the analyst's colleagues that the reporting was credible, the analyst was convinced that it was.
The analyst was torn: "Do I take the report to the Congress and watch all hell break loose, or do I keep it to myself and risk being accused down the line of hiding significant information? I just hoped and prayed I wouldn't be caught in a trap." The analyst sought advice from a colleague in Congressional affairs who could only offer: "Do what you think is right." Fortunately for this analyst, the report was soon included in a briefing requested by one of the intelligence committees, thus taking him off the hook.
But what if the briefing had not occurred? Was the analyst obliged to present such information on his own initiative to the relevant committees? Could he have been held accountable for a failure to do so? Does Congress expect to be advised in such circumstances?
One Member of Congress interviewed for this study said that Congress does expect "sensitive intelligence" to be brought to its attention, but he conceded there were no criteria for identifying "sensitive intelligence" as such. The Member suggested that "intelligence agencies need to put themselves in the place of Members and decide what information would constitute a serious matter. It might be something that could necessitate the use of military force or might relate to a terrorist threat. It may not always be something that Congress has to act on, though, and it may not always be bad news."
The Member went on to say that intelligence agencies also should have latitude in deciding who in Congress is told of such information, so long as notice reaches the pertinent Members. "Not everyone in Congress needs to know everything, but the Intelligence Community needs to communicate significant information in some fashion to the people that matter who can ensure it is factored into the decisions being made by the body as a whole."
In 1995, DCI Deutch issued new guidelines for reporting information to the two intelligence committees. The guidelines were intended principally to ensure that operational information indicating potential oversight concerns reached the committees in a timely manner. Where substantive intelligence is concerned, the guidelines were no more specific than the existing statutory standard. While CIA and the other intelligence agencies that have adopted these guidelines occasionally report significant substantive information pursuant to them, the guidelines themselves do not move this particular train any further down the track.
On What Basis Are Distinctions Made as to Who in Congress Is Entitled to What Kind of Intelligence Support?
As noted earlier in this study, while all Members of Congress, by virtue of their elected positions, are entitled to have access to intelligence, clear distinctions have evolved regarding the intelligence support provided to Congressional committees and to individual Members. What is the basis for these distinctions?
At one time distinctions evidently were made on the basis of security considerations. Until the two intelligence committees were created, there were no places on Capitol Hill that met the DCI's standards for storing intelligence. Now the Senate has a repository that serves Senate committees as well as individual Members. The House could establish a comparable facility if it chose to do so. In fact, the HAC, HNSC, and HIRC now have small facilities approved for the storage of intelligence.
Another possible basis for the distinctions in intelligence support would be the recipients' institutional "need to know." This might explain the more limited support provided to the Congress's "nonnational security" committees and to individual Members who do not have committee responsibilities in the national security area.
But "need to know" does not account for the difference in support accorded the intelligence committees and the other committees with jurisdiction over national security matters (for instance, the SFRC, SASC, HIRC, and HNSC). The explanation most frequently offered is that the funding and oversight responsibilities of the intelligence committees necessitate a broader level of substantive intelligence support. In order to reach judgments on the funding and effectiveness of intelligence activities, some interviewees asserted, the intelligence committees must be familiar with what has been produced and how. The needs of the other national security committees for substantive intelligence, it is argued, are more limited. They do not need all of the intelligence that is produced--only that which is relevant to their ongoing activities. Moreover, they need to know only what the judgments of the Intelligence Community are, not how the intelligence underlying those judgments was gathered.
Although it is clear that the Intelligence Community has made a serious effort in the last two years to improve the intelligence support provided to the other national security committees, the distinctions that remain still rankle. A staffer for one of these committees, for example, said he "resented" the fact that his committee was not given the same information the intelligence committee was given. In particular, he could not understand why his committee could not be provided with information that would help it evaluate the reliability of the evidence underlying the conclusions reached by intelligence analysts: "[We] are the ones who have to act on this stuff, not the intelligence committee."
Agreeing to, Preparing for, and Handling Intelligence Briefings on the Hill One intelligence official interviewed for this article said that, despite 20 years of experience in briefing the Congress, "everything is ad hoc . . . every situation is a new situation . . . you would think things would be thought through by now, but they haven't been."
Three aspects of the briefing process are discussed below.
1. Agreeing To Provide Briefings. If an intelligence agency is asked by a Congressional committee to provide a briefing for its Members in closed session, the agency will usually accommodate the request, assuming that appropriate security measures are in place or can be put in place prior to the briefing.
But what about a request to provide an intelligence briefing under any of the following circumstances:
- In public session.
- To a committee whose chairman is obviously seeking the briefing to obtain information for political purposes.
- To a committee whose jurisdiction over the subject matter of the briefing is questionable.
- To an individual Member who has a track record of unauthorized disclosures of classified information.
- Limited to either the majority or the minority Members or staff of a committee or the majority or minority Members of the Senate or House.
- To an individual Member or group of Members who obviously plan to use the information to support their political agendas.
- When the request originates with the incumbent administration, which wants certain committees or individual Members briefed because the intelligence analysis happens to support its position on a particular issue.
Intelligence agencies deal with such requests all the time. How do they respond? The most realistic answer is, "It depends."
For example, although no intelligence agency relishes a briefing in open session, it might agree to provide one, depending on which committee is making the request, what the committee's perceived need is, and whether the subject matter of the briefing can reasonably be discussed in public. Similarly, the idea of providing briefings requested by Members who have handled intelligence irresponsibly in the past may well grate, but most agencies if pressed will provide the briefing, albeit taking more care than usual with what they say.
Intelligence agencies normally will seek to avoid briefing in a partisan setting (that is, one limited to the Members or staff of one political party) or in a setting where it is apparent that their audience plans to make political use of the information provided. Nonetheless, most will if pressed provide the briefing, even at the risk that their information might be disclosed or their analysts drawn into one side of a public debate.
An example of what can happen when intelligence briefings are provided in such circumstances occurred during the 100th Congress, which was considering legislation to ease US export control restrictions. In May 1987, CIA analysts were called upon to brief a variety of Congressional committees concerning an alleged sale of "submarine-quieting" technology to the Soviet Union by a Japanese corporation, Toshiba, with the alleged complicity of a state-owned Norwegian firm, Kongsberg Vaapenfabrik, in violation of Western export controls. (The allegations had already been alluded to in public testimony by a Defense Department official and had been briefed to the intelligence committees several months earlier.) On 30 June 1987, largely in response to these intelligence briefings, the Senate passed an amendment to a trade bill prohibiting the United States from doing business with either of the foreign firms. The same day a group of Republican Congressmen, wielding a sledge hammer, obliterated a Toshiba video cassette recorder (VCR) on the steps of the Capitol.(1)
Later the same year, when the Japanese and Norwegian Governments confirmed that their respective companies were guilty as charged and took punitive and preventive actions against them, the issue for Congress was whether the sanctions imposed earlier by the Senate should be retained in the House version of the bill.
In the meantime, the CIA analysts involved had found indications of additional export control violations by Toshiba. While the Defense and State Departments were unpersuaded by CIA's new information and were opposed to maintaining US sanctions against the companies in the House bill, CIA was asked to give repeated briefings to a small group of Congressmen who continued to favor sanctions against the companies involved. Not surprisingly, the most damning information found its way into the press. The principal CIA briefer was profiled in several major newspapers, occasionally being referred to on a first-name basis by the Members who took political sustenance from his briefings.(2) For many observers, the impression created by the episode was something less than a politically neutral CIA.
Intelligence agencies run a similar risk when they agree to undertake Congressional briefings at the request of an incumbent administration if the intelligence happens to support the administration's position. Yet here too, agencies are likely to accommodate the request if they believe a semblance of their independence and objectivity can be maintained.
One CIA analyst interviewed for this article recalled a request by an administration to brief undecided Members of Congress on a treaty whose implementation required Congressional action. Not surprisingly, the intelligence happened to support the administration's position in favor of the treaty. CIA accommodated the request by agreeing to provide briefings to undecided Members. For those interested in receiving the briefing, analysts were sent to hold one-on-one meetings with each such Member.(3) CIA rationalized its action because other Members (on both sides of the aisle) were themselves encouraging their undecided colleagues to obtain the CIA briefing--it was not solely an administration idea--and because the briefers were careful to steer clear of any policy prescription. One of the briefers was nonetheless chagrined when a Member came up to congratulate him in the hallway on getting their side "two more votes" as a result of the briefing initiative.
2. Preparing for Briefings on the Hill
Preparations for Congressional briefings also vary widely. Briefings to committees ordinarily receive the most attention. If the briefings involve a controversial topic, briefers are more likely to follow a written text that has been coordinated beforehand within the agency concerned and with relevant players in other agencies. Such briefings are also more apt to be previewed by managers at the agency concerned. Senior analysts are more likely to be tapped to do the briefing or be sent to accompany a more junior briefer.
If the briefing is essentially informational--presenting facts rather than judgments--and does not involve a controversial subject, analysts may brief on the basis of notes that are not coordinated with anyone or simply "wing it" without notes. There is no "dry run" in such instances.
If the briefing is to an individual Member or committee staff, few analysts will go to the trouble of preparing a script. The degree of their preparation will depend upon the controversy attached to the issue and how they perceive the sophistication of their audience with respect to it. Often they will "wing it" based on their knowledge of the issue.
Whether an analyst doing an intelligence briefing is "prepped" on the political "lay of the land" that he or she can expect to encounter will also depend on the controversy attached to the briefing as well as the analyst's own experience and savvy. One Congressional staffer interviewed for this study saw such prepping as improper, perhaps leading analysts to alter their conclusions or the manner of their presentation to avoid conflict with Members. Most, however, saw this kind of preparation as essential, especially where the analyst was inexperienced in dealing with Congress. As one former CIA Congressional affairs official noted: "Most of [the analysts] see themselves as intellectually pure, immune from politics. Then they are sent to the Hill, many never recognizing what a hornet's nest they are walking into . . . Often they would not recognize where a Member was coming from with his questions, and they would give an answer that totally confused and complicated the process. Sometimes it would take us a month to work out of it."
Whether special attention is given to preparing an intelligence briefing on the Hill will also depend on the analyst's recognition that the briefing is likely to be controversial. Such recognition does not always occur. In 1993, for example, in connection with an intelligence briefing being given to a nonoversight committee on US-Russian cooperation on the space shuttle, a former Congressional affairs aide related: "The analyst doing the briefing was unaware that the administration had taken a public position in favor of this cooperative venture where they [the White House] had stated that the Russians had the technology and expertise to make a useful contribution. The analyst's briefing took much the opposite view. When staff from the committee later raised this testimony with the White House, they went through the roof [with us] because they hadn't been told about it. The fact is, the analyst didn't realize he was putting himself at odds with them."
Analysts also do not always appreciate what information has and has not been provided to Congress prior to incorporating it into their briefings. Some might assume that information from "raw" intelligence reports or from specially tailored analysis has been made available to the Hill when, in fact, it has not. In some cases, such information may be at odds with the finished intelligence the Hill has received. Where the information is especially pertinent, it may put the analyst in the position of having to explain why it had not been previously provided. Whether the analyst is made aware of these potential pitfalls seems more a matter of happenstance than systematic planning.
In sum, in most agencies, preparations for briefings on the Hill are left by and large to individual analysts and their immediate superiors. Congressional affairs staffs will try to ascertain in advance whether the briefings being planned satisfy the requirements of the Hill and whether the presentations are in a form that can be assimilated by a Congressional audience. But what the analyst plans to say and how he or she plans to say it are normally left to the analytic office concerned. Whether this office fully appreciates the circumstances surrounding a particular briefing is by no means assured under the current system.
3. How Analysts Handle Intelligence Briefings on the Hill.
Whether briefing Members of Congress or executive branch officials, intelligence analysts are trained to make factual, objective presentations. They are taught to base their judgments and conclusions on the available evidence. If those judgments and conclusions are premised on certain assumptions, the assumptions are identified. If the evidence needed to reach a conclusion is not available, analysts are expected to say so.
By all accounts, the vast amount of intelligence analysis presented to Congress substantially meets these standards. But there have been occasions, in the view of some observers, when it has not.
"Too often," said one executive branch official, "there is a selective presentation of intelligence to the Hill . . . It may not even be witting. Every bit of evidence that analysts can construe as pointing to [a foreign policy calamity in the making] is pointed out, while very little evidence is pointed out leading away from such a conclusion."
As one former executive branch official noted, this often puts the policymaker in an awkward position: "The Intelligence Community always seems to be saying `the sky is falling, the sky is falling.' Whereas policymakers are usually the ones to say `not so fast, let me put this in context for you.' Generally they will downplay the significance of the intelligence. This leads to suspicions on the Hill that policy agencies are trying to interpret intelligence for their own political purposes. Intelligence analysts, on the other hand, are given more credibility because they are seen as independent rather than pursuing the administration's policy line."
A former Congressional affairs officer also noted the tendency of analysts to want to present a lucid picture on the Hill regardless of the quality of the evidence: "Analysts often do not go to the trouble of alerting [Members] to the quality of the information that supports their conclusions. This happens particularly when they have a good story to tell. There is a tendency to want to tell that story rather than present the holes or gaps in it." A Congressional staffer put it this way: "Analysts are too focused on what the intelligence says and not what it doesn't say. Rarely will they point out to the committee when their evidence is thin."
"There is also a tendency among intelligence analysts," said another executive branch official, "to reach analytical judgments which are not theirs to make. But because they know that's what the Hill is interested in, they make them anyway." This official cited as an example an intelligence briefing in which an analyst reached a judgment that, if accepted as true, would effectively have prejudged a determination that the President, by law, was supposed to make.
Intelligence analysts are not, to be sure, in the policy business. They support policymakers; they do not make policy, nor do they opine about what policy is or should be. Indeed, it is precisely because they are not in the policy business that their analysis has value.
Members of Congress, however, often do not appreciate the principled position analysts occupy, and they attempt to draw them into policy discussions. This happens most often when the analysis being offered seems to indicate a particular policy choice and a Member wants the analyst to confirm it, or when the analysis offers no clear policy direction and a Member wants to know what conclusion the analyst would draw. Sometimes a Member's question arises so naturally that the analyst does not realize what he or she is being asked to do.
Even if the analyst demurs on the ground that he or she is not "a policy person," a Member will often press on with "well, just give me your personal opinion, then" or, "I know, but you're the expert. I've got 30 minutes to spend on this issue and that's it. So you've just got to help us on this." Or things may turn blatantly political ("So from what you've told us, the President's policy is a lot of baloney. Is that right?") The analyst may feel his or her only choice at this point is to appear rude ("I can't answer that, sir") or ignorant ("I don't have an opinion, sir.") If the briefing is being held in open session, the pressure to respond to such questions is even greater.
Analysts who succumb to such pressure usually find themselves (and/or their bosses) on the receiving end of an angry telephone call from the policymaker(s) whose territory has been violated. Their relationship with the policymaker (whom they normally support) can be seriously jeopardized as a result.
Analysts may also find that Members who disagree with the policy that their analysis appears to support sometimes try to find fault with the analysis, either by pitting other analysts against them ("Does everyone else at the table agree with what Mr. Smith just said?") or by questioning the weight to be accorded the analysis ("Does this represent only your view, Ms. Jones, or only the view of your office? My understanding is the Secretary of Defense takes a different view.")
How analysts handle such questions may be crucial to the success of the briefing. Yet most analysts are unprepared to cope with them. While analysts are accustomed to defending themselves in intellectual combat, most are not used to this kind of questioning. Few have experienced the rough and tumble, and at times downright nastiness, of the political arena.
To remedy this situation, some interviewees suggested that analysts who brief Congress be provided formal training, or at least receive instruction prior to a particular briefing, in the foibles of the political process. But it is not clear how many absolutes there are to imbue. One Congressional affairs officer, for example, on the question of providing an opinion on a policy issue, said he advises analysts that, if the pressure from Members becomes excruciating enough, "go ahead and answer the man's question . . . we'll worry about it later."
Intelligence Community Handling of Relations With the Rest of the Executive Branch
The tensions that may arise between an intelligence agency and other executive branch entities as a result of sharing intelligence with the Congress were described in part IV above. How does the Intelligence Community deal with these tensions?
Providing Advance Notice to Policymakers of Intelligence To Be Shared With the Congress
As a practical matter, so much intelligence is now shared with Congress that it is impossible for intelligence agencies to advise pertinent policymakers in the executive branch (primarily at the White House and the State and Defense Departments) of everything being provided. Nor are there any mechanisms for policy agencies to get "back-briefed" on what transpires on the Hill. Communications largely occur by word of mouth. Most policymakers are aware that the Hill has access to most finished intelligence and frequently receives intelligence briefings.
Intelligence agencies say they ordinarily make an effort to provide specific notice to affected policymakers if they anticipate that the intelligence to be shared with the Congress will cause problems for these policymakers. Obviously, unless the analyst or others involved in the process--such as the Congressional affairs staff--spot a potential problem, notice will not be forthcoming.
At other times, notice is provided but, for a variety of practical reasons, does not "take." To begin with, notice is usually left until the last minute. Players in other agencies are not consulted or notified until the intelligence agency has itself resolved what its analysts will say to the Hill. Phone calls to policymakers are missed. Proposed testimony winds up in the legislative affairs office rather than with the relevant policymaker. Or, if it is sent to the policymaker, he or she is too busy to read it.
Even if the appropriate policymakers do read what intelligence agencies plan to brief to the Hill, they may be too busy to weigh in with comments. Or, if they are uncertain the briefing will produce a "flap," they may simply decide to hope for the best. Some are also concerned that, if they comment on the proposed analysis or attempt to delay it from reaching the Hill, they may be accused of "politicizing" the process, either by the analyst concerned or by the committee or Member who requested the analysis.
The fear of subjecting analysis to political influence also inhibits intelligence analysts from confronting policymakers. While analysts insist that, in giving policymakers advance notice, they do not seek their views or concurrence, they know that policymakers frequently do not see the matter that way. If the policymaker does respond with comments, criticism, or complaints, the analyst may be left in a quandary as to how to deal with the policymaker's views within his or her allotted time frame.
Various bureaucratic means are currently used to cope with the notice problem. The DCI meets regularly with senior White House staff and the heads of policy departments, sometimes using these occasions to alert them to controversies brewing on the Hill. The DCI and heads of intelligence agencies also receive calendars that show upcoming Congressional briefings. Weekly teleconferences have been instituted between Congressional affairs offices in which upcoming briefings are identified and discussed. The principal intelligence offices at State (the Bureau of Intelligence and Research) and Defense (the Defense Intelligence Agency) participate in these teleconferences and thus are able to advise policymakers in their respective departments of scheduled hearings and briefings. On occasion, where Congressional support for important foreign policy initiatives of the administration may be affected, the National Security Council (NSC) staff has stepped in and has become the conduit for intelligence going to the Hill on a particular subject.
In the end, however, nothing short of personal contact between the analysts involved and the affected policymakers and/or their staffs is likely to be effective. By all accounts, making this connection remains a significant practical problem.
Perhaps no episode better illustrates the foibles of the Congressional process and its potential consequences for analysts and policymakers alike than the briefings in October 1993 regarding an NIE on Haiti. Work began on this Estimate in 1992, which turned out to be the last year of the Bush administration. After the US presidential election in November, the project was expedited to assist the President-elect in dealing with an anticipated exodus of "boat people" from Haiti to the United States. Intelligence personnel briefed officials in both the outgoing and incoming administrations on the draft NIE during the presidential transition period. The NIE went through the normal staffing process within the Intelligence Community and ultimately was approved by Acting DCI William Studeman and National Foreign Intelligence Board (NFIB) principals in early 1993.
By October, the political cauldron was bubbling. The United Nations had imposed an economic embargo on goods going into Haiti in an effort to force the military rulers there to accept the return of President Jean-Bertrand Aristide, who had been ousted in a military coup in 1991. An international flotilla, led by the United States, was assembled to enforce the embargo. In the meantime, the US Government was weighing its options should the embargo fail to bring about Aristide's return. One of these options was the introduction of US military forces into the country. Opposing this idea was the Senate Minority Leader, who introduced a resolution severely limiting the President's authority to send in US military forces. The President, in turn, strongly objected to this proposed limitation on his authority, and negotiations were under way to work out a compromise.
Enter the NIE. In early October, a Republican staffer on the Senate Foreign Relations Committee asked CIA for a briefing on the Estimate. The senior analyst responsible for the NIE was sent to do the briefing. No effort was made at this point to advise the National Security Council (NSC) or the State Department. The briefing was given to about a half-dozen cleared members of the minority staff, who homed in immediately on issues dealing with Aristide. (It was clear to the analyst concerned that the staff already was aware of, at least in general terms, conclusions reached in the Estimate.) At the end of the briefing, according to one participant, the staff said the Estimate should be "briefed up to the Member level," but no specific request was made at the time.
A few days later, CIA received another request, this time from the HPSCI, to brief on Haiti. The briefing was to include responses to specific questions about Aristide. This request prompted the senior analyst involved to prepare a carefully worded classified statement describing the judgments and the supporting evidence contained in the NIE. The NSC and State Department were not advised of the impending House briefing, however, until the morning of the late-October day on which it was to occur.
Earlier that day, unbeknownst to the analysts involved, Senator Jesse Helms, Ranking Minority Member of the Senate Foreign Relations Committee, had asked the White House, in the name of the majority and minority leaders, for a CIA briefing to take place as soon as possible for all Senators on the portions of the NIE pertaining to Aristide. The White House staff agreed to the request and instructed CIA to arrange such a briefing. Because the Agency's two senior Latin America analysts were already on the Hill to brief the House intelligence committee early that afternoon, the decision was to send them over to brief Senators after the House briefing had ended.
The briefing to the House committee proved an immediate sensation, provoking many, often hostile, questions. One Congressman reportedly said he intended to take the subject up with the President immediately after the hearing was over.
At the end of this grueling session, the analysts learned that they had to give a repeat performance to the Senate. It was now late afternoon, and they were exhausted, but a commitment had been made by the White House.
When the analysts arrived at the briefing room, they found that the Assistant Secretary of State with responsibility for Haiti was there, along with the Assistant Secretary for Legislative Affairs. When the briefing began, about 15 Senators, including Senator Helms, were present. The senior analyst briefed from the same script that he had used earlier before the House committee. As time wore on, additional Senators entered the room. Each time a new Senator arrived, the analyst would be asked to summarize what he had briefed earlier from the prepared script. According to one observer who was present, this happened four or five times, with the analyst using progressively more succinct "shorthand" to describe the judgments contained in the Estimate. "By the end of the briefing," said this observer, "all nuance had disappeared."
The State Department officials in attendance were immediately put on the defensive by the Senators present and were unprepared to offer a convincing rebuttal. Senator Helms announced that the information was "something the American people needed to know about." Eight or nine Senators remained behind at the briefing to question the analysts. One of them put in a call to the White House to tell it that "the administration has a real problem on its hands."
In the weeks that followed, numerous briefings and hearings were held on the NIE. Some of these sessions involved lengthy, painstaking appraisals of the evidence that formed the basis for the Estimate's conclusions. Although the President subsequently came forward with a defense of the administration's position concerning Aristide, the wounds left at the White House and at the State Department did not soon heal.
Responding to Complaints and Requests of Executive Branch Officials
As noted in the preceding section, intelligence agencies acknowledge the need to provide a "heads-up" to policymakers with respect to intelligence going to the Hill that is likely to create a problem for them. The purpose of such notice is to ensure that policymakers are not "blindsided" and have adequate time to formulate a rejoinder.
Intelligence agencies are not looking for the policymakers' concurrence or comments on the substance of the briefing. Nevertheless, this is often what they receive, especially if policymakers see their program, policy, proposal, or initiative in danger of going down the drain as a result of the material being provided to Congress. Policymakers may question whether the evidence underlying the analysis is accurate or complete, whether the judgments reached by the analyst are sound, or why this is something Congress needs to know. They sometimes ask if briefing Congress can be delayed until an ongoing initiative with an affected foreign government can be completed or until that government can be officially advised. It is not uncommon for a policymaker to elevate these issues directly to the top of the intelligence agency concerned.
What are the obligations of the Intelligence Community to policymakers in these circumstances? How far can intelligence agencies go in terms of shaping the content and timing of analysis without subjecting themselves (and policymakers) to charges of politicizing intelligence?
Most intelligence agencies say that, if a policymaker complains about the accuracy or completeness of intelligence analysis to be briefed to the Hill, the agencies will, in fact, review the preparatory work their analysts have done. As one senior intelligence official noted: "Policymakers who complain about intelligence going to the Hill are crying wolf most of the time, but about 20 percent of the time they may have a point. Let's face it. Analysis can be shoddy and unprofessional. [Intelligence producers] have an obligation to make sure it's accurate and complete before it leaves here." This may entail a de novo review of the evidence supporting the analyst(s)' conclusions and/or sending the analyst(s) involved to meet with the complaining policymaker in an effort to discern what the policymaker knows that apparently the analyst(s) do not. If the analysis proves to be inaccurate or incomplete, changes may be factored in. Ultimately, however, what is briefed to the Hill will remain the intelligence agency's call.
If, on the other hand, the policymaker's complaint is that he or she simply disagrees with the analysis or that it will adversely affect an ongoing initiative, intelligence producers typically will provide a polite turndown. "If you tell us it's wrong," said one intelligence official, "we'll fix it. But if you just say you don't like it, it goes."
Intelligence agencies sometimes will honor a request to delay providing intelligence to the Hill, depending on the circumstances. Why has the delay been requested--to avoid a legitimate diplomatic problem or because the policymaker simply wants to put off the inevitable conflict? How urgent are the needs of Congress? To what extent does the intelligence bear upon pending Congressional action, as opposed to being sought by a particular Member for a limited political purpose? Intelligence agencies recognize that, the longer they delay in responding to Congressional requests, the more likely Congress is to perceive their action as politically inspired. As one intelligence official noted: "Information that undermines an administration's policies and initiatives is precisely what Congress most wants to know about. Any effort to delay it is going to [incur] a heavy political cost."
Understandably, many policymakers are not altogether happy with this state of affairs. One who was interviewed for this study said bluntly that "the system is broken and no one can fix it--not the DCI, not the White House, and not [the policy departments] . . . What intelligence is briefed to the Hill is decided by analysts . . . Much of what goes up there is irrelevant as far as the Hill is concerned and much of it is crap. But because everyone is worried about politicizing intelligence, nobody will stop it . . . In the end, it is the analysts who are the ones that politicize intelligence by deciding what will be provided and how."
A former policymaker expressed similar frustrations: "Intelligence agencies work for the President like everybody else in the executive branch. But the intelligence they produce is not seen as subject to his control. Once it is created, a certain imperative attaches to it. No one can stop it, even if it creates political problems for the President and even if its assertions and conclusions are dubious. Anyone who tried to do so would pay a high price in terms of being charged with cooking the books . . . So it goes to the Hill where it's seen as `ground truth.' The views of the policymaker, on the other hand, are treated as suspect, tainted by his association with the administration . . . Is this good government? You tell me."
The frustrations felt by these policymakers may well be overblown. Clearly, administration policy is often the beneficiary, rather than a casualty, of intelligence analysis. Nonetheless, policymakers' concerns about how Congress will perceive and use intelligence are not entirely groundless.
How Congress Uses the Intelligence It Receives
Failure of Congress To Integrate Intelligence With Other Relevant Information
Most of the policymakers interviewed for this study faulted Congress for taking intelligence analysis too seriously. They noted that Congress is often unaware of, and does not take the time to understand, the context of the issue being addressed in intelligence briefings. They complain that what Congress often hears--particularly when analysts do not have firm evidence one way or the other--is the worst case scenario and that this, in turn, skews Congressional perceptions of the issue being briefed. They also fault Congress for too readily accepting the judgments of intelligence analysts without probing the basis for them, leading to conclusions that the policymaker regards as unjustified by the evidence.
Most of the Members and staff interviewed for this article acknowledged the need to obtain appropriate "context" in order to evaluate the intelligence they receive and conceded that at times this does not happen.(4) Some noted, however, that the fault often lies with policymakers who refuse to appear at intelligence briefings to provide "the policy side" of an issue. This happens especially when the committee making the request is not the "policymaker's committee"--that is, the committee that exercises principal jurisdiction over the department to which the policymaker belongs.
Some in Congress also fear that, if policy officials are invited to intelligence briefings, the end result is likely to be a "homogenized" presentation rather than a "gloves off" intelligence briefing. Indeed, many intelligence analysts concede that they prefer briefing Congressional audiences without policymakers present in order to avoid uncomfortable situations.
Members and staff also acknowledge the frequent failure of Members to probe the judgments offered by intelligence analysts. As one Member put it, "Many Members take what the Intelligence Community says as gospel when in fact they should look on it as an educated opinion . . . The real problem is, Members don't spend enough time probing what they hear from the Intelligence Community. If they spent more time analyzing what they were hearing, they would know more what needs to be fleshed out in order to make their own judgments."
Intelligence analysts usually cannot be counted upon for such help. They may be unwilling or unable to comment, even if asked, about the political context that surrounds a given issue. As a consequence, Members often do not receive a complete picture from an intelligence briefing.
This situation has implications not only for policymakers but also for Members themselves, especially when it later turns out that the intelligence analysis was wrong or should have been treated more circumspectly. Members who relied on such analysis in deciding how to cast a controversial vote or in formulating a position on a controversial issue may suffer politically as a consequence. They may, in turn, blame the Intelligence Community for producing what they see as shoddy analysis or, worse, for having deliberately misled them.
A graphic illustration of this problem occurred in connection with the Senate vote in December 1990 authorizing the President to send US troops to the Persian Gulf. For weeks preceding this vote, the Senate Intelligence Committee received almost daily briefings from representatives of the Intelligence Community, given principally by a senior DIA analyst, with other Community representatives also involved. These briefings focused on the strength of the Iraqi military forces. Staffers recall the committee being told "the Iraqi military was the most advanced in that part of the world, battle-tested by eight years of war with Iran . . . The Iraqis would use chemical and biological weapons against the coalition forces . . . In all likelihood, the United States was in for a prolonged conflict of at least six months' duration involving many casualties."
Largely on the basis of these dire predictions, several Senators on the SSCI--including its Chairman, David L. Boren of Oklahoma--as well as the Armed Services Committee Chairman, Sam Nunn of Georgia, ultimately voted against the resolution authorizing the President to send troops to the Gulf. Later, when it turned out that coalition forces achieved immediate air superiority and the ground war ended in a matter of days with relatively few American casualties, the Senators who had voted in the negative were understandably upset. Some had lost considerable political support in their home states as a result of their votes. Senator Nunn later said the vote not only had hurt his credibility as chairman of the SASC but also had removed any thoughts he might have had about running for President, knowing that his vote would have been a "major debating point" in any election campaign.(5) After all, they were Senators supposedly "in the know" and yet appeared to have egregiously misread the situation. Most felt "sandbagged" by the Intelligence Community.
"In the end," said a former committee staffer, "it was apparent the Intelligence Community didn't know squatola about the Iraqi military--what they had, how bad they were, or what they intended to do." A former intelligence official disputed this view and suggested that information may have been held back from the Congress for military operational reasons: "The Intelligence Community knew how poorly trained the Iraqi forces were. Some of them had been dragged out of dancehalls in Baghdad in their Bermuda shorts. But, for some reason, this wasn't highlighted to the Congress . . . perhaps because they were concerned this information would leak out and it might suggest which Iraqi forces were the softest targets."
"But the real problem for the committee," said a former committee staffer, "was that it was never given `blue team' information [information on US military capabilities]. It was never advised, for example, that stealth aircraft were to be used. It was never provided an assessment of our forces versus theirs."
Senators could, of course, have done more to seek such information outside the Intelligence Community. As one staffer said: "A lot of relevant information was not provided . . . Not because it wasn't available but because it was not asked for . . . Much of it could have been obtained by any legislative assistant in any Senator's office. But no one asked." Senators might have sought a Pentagon "net assessment" of the military forces involved in the Gulf conflict.(6) Or they might have sought personal assurances from the Secretary of Defense or the Chairman of the Joint Chiefs of Staff. Indeed, several Senators on the SSCI did seek out additional information beyond what they were receiving from the Intelligence Community. At least one of them changed his position from opposition to support for the resolution on the basis of this additional information.
The administration itself might also have done more to get this kind of information into the committee's mix. Indeed, given the closeness of the Senate vote on the resolution authorizing the President to commit US forces, in retrospect it is surprising to some of those interviewed for this study that no such effort was made. Some attribute this to a historical reluctance on the part of the executive to give Congress advance information about US operational plans. But a former intelligence official involved in planning for the operation said a more likely explanation was that "[the] administration was so busy at that point, it paid very little attention to what was being briefed to the intelligence committees. Had they known the impact it was having, they might have done something about it, but this was really not on our screens at this point."
Several of those interviewed had little sympathy for the Members who found themselves in this position. As one noted, "they are big boys now and can look out for themselves." Another pointed out that "Members are never going to get all the information known to the executive on a particular issue . . . If they miss something, they miss something."
When Members are inadequately informed, however, regardless of who is to blame, the repercussions can extend beyond the Members themselves. For those Senators whose votes against the Persian Gulf resolution were determined by the intelligence briefings they received, the high regard some of them had held for intelligence analysis was seriously shaken. Such feelings can later translate into negative votes where intelligence funding and oversight matters are at issue.
Selective Use of Intelligence for Political Purposes
It will surprise no one that Members and their staffs at times use intelligence, or information derived from intelligence, for political purposes. The same phenomenon is not unknown in the executive branch, but Members of Congress operate for the most part in an open political environment, whereas executive officials usually take things public only after having lost the battle internally.
Neither branch has done much to discourage the practice. Leakers of intelligence are rarely identified and even more rarely punished. As one Congressional staffer noted: "People here have the sense that, since no one enforces the rules, they are not to be taken all that seriously. It's like the tendency people have to speed up on a freeway if they never see a cop. Let me tell you, they aren't writing any tickets on this freeway."
Members of Congress are protected by the "speech and debate" clause of the Constitution, which immunizes them from criminal prosecution for what they say on the floor of either House. Nevertheless, because they are elected officials, they must think twice before saying anything that might jeopardize their standing for the next election or subject them to criticism by their colleagues. For most Members, these are strong inhibiting forces.
In any case, some Members, when they see a chance to score political points, will be tempted to do so, regardless of the source of their information. Members and staff concede as much. While most Members take care to protect the intelligence they are given, some will seek a way to turn it to their political advantage without (in their view) endangering national security. Few will be so bold as to publicly release classified information themselves, but there are many subtle ways to insinuate intelligence information into the political process. In the end, most Members and staff do not see a realistic means of controlling this practice. One staffer regarded it as "an artifact of the system." Another said, "the winds up here will blow where they will . . . Intelligence agencies know it and just have to factor it into their calculations."
Intelligence agencies, interestingly enough, actually give Congress high marks for protecting intelligence information. Apart from a handful of widely reported and somewhat dated examples, no intelligence agency personnel interviewed for this study could point to instances of compromise by Members or their staffs. In any event, no one saw the "leak" problem as sufficiently serious or widespread to warrant executive branch reconsideration of the amount or sensitivity of the intelligence shared with the Hill.
Widespread concern was expressed, however, over the growing number of cases in which Members or their staffs demand that information contained in intelligence briefings or reports be declassified or "sanitized"(7) so that the Member can make public use of it. According to many intelligence officials, the political motivation behind many of these requests is quite transparent. Many in Congress apparently have seized on this technique as a way of making selective use of intelligence in a legal way. Intelligence agencies have attempted to accommodate such requests, which has only encouraged more of them.
Failure of Congress To Assimilate Finished Intelligence
Another apparent problem is the failure of the national security committees of Congress (including the intelligence committees) to avail themselves in a meaningful way of the finished intelligence that is distributed to, or can be requested by, these committees. This situation was described in part III.
Having access to, but not acting upon, information described in finished intelligence can become a source of embarrassment. This happened recently to the SSCI; its chairman publicly criticized the Secretary of Defense for failing to respond to finished intelligence reports indicating a security threat to the Khobar Towers complex in Saudi Arabia, only to find that the SSCI had received the same intelligence reports and had done nothing with them prior to the bombing there in June 1996 that killed 19 US airmen. Although the committee correctly noted that security for a military complex was not its responsibility, the fact that it had not previously raised the issue with those who were responsible weakened the impact of its chairman's criticism.
[For Congress,] having access to, but not acting upon, information described in finished intelligence can become a source of embarrassment. Both branches recognize the problem, but neither has been inclined to do much about it. While the national security committees would like to do a better job of availing themselves of finished intelligence available to them, they are too busy to spend much time worrying about it. Because they are able to request and obtain intelligence briefings whenever they need them, keeping up with developments in finished intelligence does not claim a high priority on their time.
Having computer access to intelligence (now limited to the two intelligence committees) also does not appear likely to solve the problem, at least until more terminals become available and committee staffs become more adept at using them. Intelligence committee staff now must take the time to go to a computer terminal that is located outside the staff's own workspaces (and that may already be in use) and search computer files for what may be relevant. Indeed, one Congressional staffer said that computer access actually had made it more difficult for him than having "hard copy" intelligence.
Intelligence agencies, for their part, recognize that very little of the finished intelligence sent to the Hill is actually read. Nonetheless, just the fact that the material is there or can readily be made available offers the agencies some degree of protection. Committees cannot claim they did not know this or were denied access to that. If the committees choose not to avail themselves of the finished intelligence that is offered or provided, from the standpoint of intelligence producers, "It's their problem, not ours."
Footnotes(1) The Toshiba episode is the subject of an excellent case study prepared by Anna M. Warrock and Howard Husock, entitled "Taking Toshiba Public," published by the John F. Kennedy School of Government, Harvard University, Cambridge, MA, 1988.
(2)" CIA Aide tells of Toshiba Deliveries," Washington Times, 9 March 1988, p. 1.
(3) CIA rejected a suggestion by an administration representative that all undecided Members be bussed to the CIA for the briefing.
(4) One Member did express a preference for receiving intelligence briefings without policy officials attempting to provide "context." This Member also thought Congress needed to hear "the worst case" from intelligence analysts if it is trying to weigh the consequences of a particular course of action.
(5) "Nunn Regrets Vote on Gulf War," Washington Post, 26 December 1996, p. A12.
(6) One former Senate staffer who did hear the briefings to the Senate Armed Services Committee by US military officials recalled them as "every bit as pessimistic" as those presented to the SSCI.
(7) This is accomplished principally by removing references to intelligence sources and methods and recasting the analysis in more general terms.