VI. Conclusions and Recommendations
Once largely acquiescent in matters of national security, Congress took on a more assertive role in the 1970s, reflecting a loss of confidence in executive branch leadership after the Vietnam war and Watergate as well as a desire to establish itself as a coequal branch of government where national security was concerned. It is a role the legislative branch is not likely to relinquish.
To perform this role, Congress requires information about the rest of the world. For the most part, its needs can be satisfied (indeed, they often are better satisfied) without resort to intelligence. Nevertheless, there are times, not altogether infrequent, when intelligence agencies provide a unique source of relevant information. If Congress is to base its decisions on the best available evidence, it must have access to this information and integrate it into its own process.
In principle, the executive branch does not disagree. For at least the last 20 years, a steadily increasing flow of substantive intelligence has been provided to the Hill. For the executive branch, however, the results have been mixed. On one hand, intelligence has produced a more informed Congress, one better able to understand what is motivating the executive branch on the international stage and one less apt to make irrational overtures of its own. On the other hand, intelligence has provided, and continues to provide, the Congress with ammunition it can use to challenge the executive. Thus intelligence-sharing can be seen as fostering bipartisanship on foreign affairs and military issues in some cases and in other instances as undermining it.
Most of the intelligence shared with Congress is channeled through its two intelligence committees. In recent years, however, other committees as well as individual Members have increasingly been gaining access on their own terms.
In practice, the road has been a bumpy one. While reasonably well-developed, well-understood practices govern some aspects of intelligence-sharing, for the most part there are no formal rules.
Undoubtedly there is virtue in this kind of system for both sides. It allows maximum flexibility to deal with circumstances that all concede cannot be safely predicted. It allows leaders on each side (for instance, a new DCI or new chairman of a key committee) to take a greater hand in constructing and managing the overall relationship.
But such a system also leads to uncertainty and conflict. Because little is written down, existing practices are more apt to be challenged or violated, unreasonable or inappropriate demands are more likely to be made, and confusion is more apt to reign. What is accepted in one circumstance becomes precedent for the next. What is learned must be relearned.
Judging from the interviews conducted for this study, Congress seems more satisfied with the present system than does the executive--largely, one suspects, because in recent years Congress has been able to get what it wants from intelligence agencies. Indeed, most observers believe the Intelligence Community has bent over backward to accommodate in some fashion whatever Congressional demands are placed on it. Some see this compliant posture beginning to take a toll on managers and analysts within the Intelligence Community. Clearly, it is straining their relationship with the rest of the executive branch. As demands from Congress continue to grow, the greater these stresses will become.
Congress itself, though relatively satisfied with its ability to tap into intelligence information, still remains at the forbearance of the executive in terms of the intelligence it is given. Even in the categories it is permitted to see or hear, Congress cannot request information it does not know exists.
Congress also has no systematic way for integrating the intelligence it receives with other information that bears upon a particular issue. Committee staffs or individual Members may attempt to do this, but their efforts are subject to the vagaries of the Congressional process. So long as this remains the case, the greater are the odds that Members will rely on intelligence and come to the wrong conclusions.
Some things need to change. The author's recommendations on this score are enumerated below.
The Need for Written "Rules of the Road"
Written "rules of the road" are needed to govern intelligence-sharing with Congress. They are needed to govern what intelligence is shared and how such sharing is accomplished. They are also needed to govern the Intelligence Community's internal efforts in support of Congress as well as the coordination of this support with the rest of the executive branch.
These "rules of the road" should be put in the form of "understandings to be generally observed" rather than "absolutes from which there is never deviation." They should incorporate those longstanding, time-tested practices that have worked and end those that have not. The author's notions of what has worked and what has not worked are set forth in the following three subsections.
Congress, through appropriate representatives, should participate in the development of these written understandings--even those internal to the executive branch--to alleviate any concern that the policies and procedures agreed upon by executive agencies may allow intelligence support to Congress to be manipulated or politicized. Congress should understand how the executive branch plans to develop and provide such support and should be satisfied with those arrangements.
Finally, these written understandings should be subject to ongoing review and amendment. What does not work should be discarded.
What Should Be the "Rules of the Road"To Govern the Provision of Intelligence to the Congress?
1. Published Intelligence. The eight Congressional committees that share principal responsibility for national security matters should continue to have access to finished intelligence published for general circulation within the government. The daily current intelligence publications, the National Intelligence Daily and the Military Intelligence Digest, should continue to be provided in hard copy to these committees, and other finished intelligence pertinent to their needs should be available to them electronically, where feasible, or upon request. The intelligence agencies that produce finished intelligence should work directly with the staffs of each of these committees to determine specifically what the substantive intelligence needs of the committees are and how best to satisfy them. If needs exist that can be predicted at the beginning of each session--for example, intelligence relating to a vote on "most favored nation" treatment for China, renewal of the Export Administration Act, or ratification of a particular treaty--intelligence producers ought to factor these requirements into their planning at an early stage.
As a general rule, Congress should be content with the intelligence analysis produced for use by the executive branch and should not be part of the formal process in the executive branch for tasking such analysis. At the same time, Congressional needs ought to be taken into account in that process by the intelligence agencies themselves. In addition, where Congressional requests for new analysis happen to coincide with the needs of policymakers, intelligence producers should try to accommodate such requests with available resources.
Committees that have, or acquire, electronic access to finished intelligence should consider hiring a computer specialist (preferably with experience in the Intelligence Community) who is able to identify and retrieve pertinent reporting in response to Member or staff requests. Similarly, committees that lack computer access should be served by liaison officers from the producing agencies who can identify and obtain finished intelligence pertinent to the needs of Members and staff.
Several of those interviewed for this study thought the Intelligence Community should go further by establishing a secure "liaison office" on the Hill, similar to the office operated by the military services, that would be linked electronically to intelligence producers and provide immediate responses to requests for finished intelligence from committees and Members. While this proposal deserves closer scrutiny, whether the advantages would justify the costs is not altogether apparent.
Finished intelligence should not normally be furnished to committees or individual Members who do not have responsibilities in the national security area. Requests from such committees or Members for written analyses should ordinarily be referred to the Congressional Research Service, which produces highly professional analyses using publicly available information,(1) or, if that does not suffice, should be satisfied by intelligence briefings.
Access to finished intelligence that has been tailored to the needs of the President and other senior officials should continue to be limited to situations in which such analysis is pertinent to an oversight investigation or inquiry. "Raw" intelligence should not routinely be provided to the Hill, but it should continue to be made available for oversight purposes and should be provided to the oversight committees where relevant to substantive briefings.
2. Intelligence Briefings. Consistent with security requirements, intelligence briefings on substantive topics should continue to be provided in response to the requests of Congressional committees, so long as the requests relate to matters within the jurisdiction of such committees. Intelligence briefings for individual Members should ordinarily be limited to matters within the jurisdiction of a committee to which the Member is assigned or to issues of specific concern to the Member's state or district.
Where it appears that a Member's request for a briefing can be satisfied with unclassified information (for instance, background for a foreign visit or for a meeting with a foreign dignitary, or material relating to a constituent request), intelligence agencies should try to ascertain whether the request can be satisfied by the Congressional Research Service. If the needs of an individual Member cannot be met in this manner, intelligence agencies should provide a briefing under the auspices of the pertinent intelligence committee. This will ensure that the briefing is given in a secure environment, provide an opportunity for the Member to be educated on the handling of classified information, and subject him or her to the intelligence committee's rules prohibiting disclosure of the information except in a closed session of the parent body.
Substantive briefings should not divulge information concerning intelligence operations, budgets, and programs unless the briefings are being presented before the intelligence committees. Otherwise, distinctions should not be made in terms of the substantive analysis briefed to Congressional committees, even if this means "sourcing" relevant information. What is said to one should be said to all, assuming the requisite security measures are in place.
Intelligence briefings should as a rule be provided in closed session. Such briefings inherently involve the presentation of information derived from classified information. Forcing intelligence agencies to present this information in public jeopardizes security, places an undue burden on the participants, and in the end substantially diminishes the value of the briefing. If a committee sees a compelling public interest in having an intelligence briefing made public, a sanitized transcript of the briefing can be created and released.
Intelligence briefings also should not be given in partisan settings. To do so creates the impression that the Intelligence Community is lending itself to partisan purposes. It should be understood by both sides that requests to brief the Members or staff of one political party on a substantive issue are not appropriate unless the requester is willing to open the briefing to Members of the other political party.
Finally, requests for intelligence briefings to Congress should come from Congress itself. If an administration wants Members of Congress to receive intelligence briefings on a particular issue, it should suggest this directly to the Members concerned rather than levying the requirement upon intelligence agencies to make such contacts.
3. Intelligence That Is Neither Published nor Briefed. Some understanding needs to be reached with respect to the obligation of analysts (and their superiors) to bring significant intelligence to the attention of Congress when such information is not included in finished intelligence going to the Hill and is not otherwise being provided in response to a Congressional request. Clearly, if the analyst (or producing agency) concludes that the information is patently unreliable, there should no obligation to convey it. Moreover, when the information is "interesting" but has little significance in terms of US security or the functions of Congress itself, there should be no obligation to provide it.
If, on the other hand, the information is deemed reliable and bears directly on a matter that Congress is considering or will soon act upon, the obligation to convey it is strong. Similarly, if the information is judged reliable and discloses a development that could pose a serious national security problem for the United States (whether or not a Congressional response is immediately indicated), the obligation is strong.
It should also be understood by both sides that intelligence agencies may choose to use a variety of means and channels for conveying intelligence to Congress. Especially sensitive but highly relevant information might be limited to the Congressional leadership and/or the leaders of the intelligence committees; less sensitive but highly relevant information might be limited to the leaders of the policy committee(s) concerned; sensitive but less relevant information might be limited to the leaders of the intelligence committees. Committee staff directors could act for their respective bosses in most circumstances.
Congress needs to understand that a decision to convey sensitive intelligence that is not otherwise being reported to it involves a subjective evaluation of its reliability as well as its value to Congress. When an intelligence producer decides not to provide sensitive intelligence because it meets neither test, that decision ought to be accorded reasonable deference on the basis of the facts that were known, or should have been apparent, to the producing agency at the time the decision was made.
For its part, the Intelligence Community needs to understand that, if sensitive intelligence is deemed reliable and Congressional interest in having such intelligence is strong, someone in Congress needs to be advised. Close calls should be resolved in favor of notice in some appropriate manner. Congress has traditionally been far more agitated if no one on the Hill received word of significant intelligence than if intelligence agencies simply chose the wrong person(s) to advise.
What Should Be the "Rules of the Road" To Govern the Intelligence Community's Preparations for Briefing Congress?
Preparations for intelligence briefings vary widely. More attention is given to briefing committees than to briefing individual Members or staff. In fact, however, briefings to individual Members or staff often have greater consequences than briefings to full committees, or can lead to briefings of full committees. The degree of preparation should be roughly the same whatever the audience.
First, when a request for a briefing is received, the analyst assigned to provide the briefing should be advised by the Congressional affairs office of precisely what is expected by the Congressional requester. Currently, such guidance is provided to some degree, but it often consists of vague instructions conveyed over the telephone or by electronic mail. Often the Congressional affairs office itself has an unclear understanding. A more routinized, systematic approach would mean fewer problems.
Analysts who have never given Congressional briefings need to be instructed by their respective Congressional affairs offices. They should be told to avoid being drawn into policy discussions and how to deal with the situations that commonly arise. In this regard, they should be given the same latitude they have with consumers in the executive branch. That is, if they are permitted to set forth alternative scenarios for policymakers and opine as to the likelihood or consequences of each one, they ought to have the same latitude before Congress.
Analysts who have never briefed Congress should also be instructed as to what sorts of information are appropriate in their briefings and what sorts, if any, are to be avoided. This should include being told to make clear and comprehensive recitations of the evidence supporting their analytical judgments. If there are concerns about sourcing some of the evidence, the analyst should be told how to handle them. If analysts are appearing before other than the intelligence committees, they should be told to avoid giving information that concerns intelligence operations, programs, or funding.
Intelligence agencies should require that all Congressional briefings--to committees, to individual Members, to staffs, or to entire bodies--be scripted. These scripts should contain all the hallmarks of good analysis--that is, they should set forth the pertinent background, state the key judgments as well as the presumptions and evidence underlying them, and make explicit what is known and unknown. Scripting takes time and effort, but it is the only way an analyst's agency has of knowing exactly what he or she expects to say to Congress and the only means of establishing with the rest of the executive branch what an analyst plans to say or has said.
A systematic process should also be established to identify any briefing that is likely to be controversial. Briefings should be considered controversial if they present analytical judgments (as opposed to reporting factual material) on a topic where there is dispute in Congress or among the public about what US policy should be. Determining whether this situation exists should, at a minimum, involve a communication between the analyst(s) and the Congressional affairs staff concerned.
For those briefings identified as potentially controversial, a special set of procedures should apply:
- A senior analyst should be selected to do the briefing or, at a minimum, to accompany the junior analyst to the Hill. Analysts who are known to have "axes to grind" on particular issues--those who have strong personal differences with the assessments being briefed--should ordinarily not be selected for these assignments.
- Thorough internal coordination of the proposed presentation should take place. Analysts should not be sent to give briefings on controversial subjects that their superiors would not be prepared to give. Where time permits, "dry runs" of the briefing should be conducted.
- An analyst conducting a briefing should be "educated" if necessary by the Congressional affairs staff on what sorts of responses and questions the analyst may encounter at the briefing so that he or she can prepare sufficiently. If Members being briefed have already taken positions on the issue involved, or have expressed concerns about the issue, the analyst providing the briefing should be aware of these factors--not for the purpose of modifying the briefing but rather to facilitate a coherent discussion at the time the briefing occurs.
- Coordination should occur with the other Intelligence Community briefers, if any, by telephone, video conference, or face-to-face meetings. The purpose of such coordination should not be to reconcile competing analytical views, but rather to identify likely areas for questioning as well as to ensure that appropriate policymakers are aware of the briefings.
Whether or not a briefing is deemed controversial, analysts who have not previously briefed on the Hill should be instructed on the techniques to use--and those to avoid--in making oral presentations to the Congress. For most occasions, analysts should not read from the prepared script. Indeed, more often than not, they will not be allowed to. Analysts should be expressly told this and should prepare themselves for it. If they hope to hold the attention of their audience, oral presentations should come directly to the point with a minimum of background explanation. Analysts should take the key points from their prepared script, and, where points are known to be controversial, should use precisely the same wording for the oral presentation. Otherwise, the briefing can take on an "Alice in Wonderland" quality. Leave the details to questioning.
What Should Be the "Rules of the Road" Governing Coordination of Intelligence Support to the Congress With the Rest of the Executive Branch?
As a practical matter, because so much intelligence is provided to the Hill, it would be impossible (and ultimately unproductive) for intelligence agencies to effect coordination on all of it with the rest of the executive branch. A more selective approach seems called for.
As a starting point, the National Security Council staff should identify those (perhaps five or six) national security issues of particular significance to the incumbent administration on which it wishes to be notified before intelligence on these issues is given to the Hill. The NSC staff should provide this list at the start of each session of Congress. If such a list is not immediately forthcoming, the Intelligence Community should request it. Relevant Congressional affairs staff and analysts should also be made aware of this list.
Beyond this, advance notice should, at a minimum, be provided to pertinent policy officials when the intelligence to be provided to Congress conflicts with, or otherwise can be expected to undermine, policies or proposals under their cognizance. Such notice should be provided by the analysts involved (or by their superiors) and should go directly to the policymakers or to their staffs. Congressional affairs channels should not be solely relied upon for this purpose. Where possible, a copy or draft of the proposed briefing script should be delivered in time for affected policymakers (and/or their staffs) to read it.
If policymakers object to what intelligence agencies plan to say on the grounds that it will undermine their policies or proposals, intelligence agencies must have the intestinal fortitude to withstand their complaints. If, on the other hand, a policymaker's complaint concerns the accuracy or completeness of the analysis proposed to be briefed, the agency involved should satisfy itself that the quality of the analysis is sound by reviewing the evidence and the reasoning and, where feasible, interviewing the complaining policymaker. The determination of the intelligence producer should be regarded as final. Once an intelligence agency has determined that the analytical work is sound, it should be provided to the Hill and the complaining policymaker so informed.
If a policymaker asks that analysis be delayed in going to the Hill, the intelligence agency ought to ask why. If the analysis simply does not "suit" the policymaker or if he or she only wants more time to formulate a rejoinder, delay is not justified. On the other hand, if there are demonstrable problems that might be created--for example, if the United States has promised a foreign government to treat a matter confidentially and needs time to consult this government before briefing Congress--greater latitude should be shown. If the delay is expected to be substantial, the Congressional requester should be consulted about the situation.
Occasionally, information will be sent to the Hill without an intelligence agency perceiving its "flap" potential in advance; the dustup occurs after the material is presented. In these circumstances, the intelligence agency concerned should take the initiative to notify the policymaker(s) affected as soon after the briefing as possible, providing a copy of the script and other information that may be necessary to understand what transpired.
The Need for a More Systematic Effort To Integrate Intelligence Into Congressional Decisionmaking
Congress, like consumers of intelligence in the executive branch, needs to be able to place the intelligence it receives into context. Unlike executive branch consumers, few of its Members enter service as experts in national security affairs, and fewer still have the time and energy outside their normal duties to become experts.
On any given issue, in addition to the intelligence they receive, consumers in the executive branch ordinarily have information regarding the US posture on the issue (what the United States is doing about it, what US capabilities are for dealing with it, and what the domestic implications of the issue are), as well as information about the postures of other governments on the same issue. Moreover, they are usually in touch with experts in the private sector, including academics, media people, "think tanks," and specialists in the United States and abroad.
Lawmakers have access to the same type of information, should they seek it, but this does not occur naturally. The flow of information to Members is haphazard and unfocused. Even the work done in particular committees will ordinarily not encompass all aspects of a particular national security issue--that is, diplomatic, military, intelligence, and domestic considerations. For those who have access to the intelligence, the tendency is to place too much reliance on this aspect of the decisionmaking process. As seen in the Persian Gulf episode described earlier, this tendency can lead to undesirable consequences for particular Members when the intelligence proves to be wrong; it also may ultimately undermine the relationship these Members have with the Intelligence Community.
While intelligence analysts cannot be expected to know--much less inform Members--about all the considerations weighing upon a particular policy decision by the executive branch (apart from the intelligence analysis they are briefing), they can alert Members and/or their staffs to the existence of such considerations when they are aware of them. Doing so would at least put Members on notice that other relevant information exists and help them discern where to look for it.
Congressional committees themselves should make a more systematic effort to ensure that their Members receive a complete picture of significant issues. In most circumstances, the preferable alternative is to have policy witnesses appear at intelligence briefings and intelligence witnesses appear at policy briefings. When this is not feasible, an effort should be made to have separate policy and intelligence briefings. Policy departments and intelligence agencies, for their part, need to recognize the legitimate need of Congressional committees in this regard and abandon their predilections to appear before only "their" committees.
Beyond the briefing process, committee staffers should be designated to develop appropriate "context" for their Members where significant national security issues are concerned. This might entail establishing networks of contacts at policy agencies, military services, other Congressional committee staffs, the Congressional Research Service, private think tanks in the United States and abroad, the academic community, the media, and other institutions--networks that could be quickly tapped when "context" was needed on a given issue. To some extent, this kind of networking occurs today, but whether and how well it is done depends on how much time, energy, and ingenuity a staffer devotes to it. Higher priority and greater management attention should be given to this aspect of staff work.
Finally, Congressional committees should from time to time assess how well they have been served in terms of the information (including the intelligence) they received on a particular issue. Did the intelligence analysis prove correct? If not, where did it fail and why? Did the committee receive all of the relevant information bearing upon the issue? If not, why not? What additional information should have been obtained? At present, this sort of assessment rarely, if ever, occurs.
The Need To Discourage Political Use of Intelligence
Operating as part of a political institution, Members of Congress and their staffs are frequently tempted to make political use of the intelligence to which they have access. On the whole, they do a commendable job in resisting this temptation. Still, scoring political points on issues of public importance will be justification enough for some. Experience has shown that when these leaks occur very little is done about them.
While none of this is likely to change, several preventive actions could be taken to discourage such disclosures by the legislative branch. (The executive branch is equally culpable but beyond the purview of this study.)
One safeguard is simply for intelligence briefers to be good analysts by giving a complete, unbiased picture of every issue, identifying the caveats and uncertainties. If a Member is tempted to make selective use of information for political purposes, this approach by briefers will at least force him or her to confront intellectually the information on the other side of the coin. Few Members wish to be accused of intellectual dishonesty by their colleagues who heard the same briefing. If they recognize that the analysis provides something less than full support for their political position, they may be less tempted to make use of it at all.
Another preventive measure is for briefers to tell Members specifically (if it is not apparent) of the harm that might result if the intelligence is disclosed. If an intelligence agency has a particular concern, it might well work with staff of the Member concerned, either before or after the intelligence is conveyed, to explain what the specific harm might be--for example, damage to diplomatic relations with country X, loss of a SIGINT source, endangerment of a human agent, or countermeasures to thwart US military operations. Members may not, in the end, find such warnings persuasive, but at least they would be using the information with their eyes open. At present, many Members simply do not appreciate the possible consequences of their actions at the time they use the information.
Disclosures might also be prevented by adoption of the suggestion earlier in this study that intelligence briefings for individual Members who are not assigned to a committee with national security responsibilities be channeled through the intelligence committees of their respective Houses.
Finally, some control ought to be exerted over Congress's growing practice of requesting that "sanitized" versions of intelligence reports be prepared for public use. Such control might take the form of (1) limiting the initiation of such requests to the committees that have national security responsibilities (as opposed to individual Members or committees without jurisdiction in the national security area); (2) establishing as a matter of policy that intelligence agencies will not "sanitize" selected portions of documents that support one side of a political argument without sanitizing and, if necessary, releasing the portions that support the other side; and/or (3) accommodating such requests only when they meet a higher threshold--for example, when the issue involves an important matter of general public interest and sanitization can be readily accomplished without jeopardizing sensitive sources and methods.
Congress relates to the Intelligence Community essentially in three ways: by annually providing funds for intelligence, by performing oversight of intelligence, and by receiving and using intelligence.
Where funding and oversight are concerned, Congress relates to the Intelligence Community in much the same way Congress relates to other departments and agencies of the executive branch. The third aspect of the relationship, however, while played out in the same contentious, complex crucible, has at its heart a different purpose: namely, to help Congress carry out its own responsibilities. Thought of in this way, intelligence-sharing is not only different from other aspects of the Intelligence Community's relationship with Congress but is qualitatively different from the functions performed by other executive branch agencies. (Is there another element of the executive branch whose charter includes providing assistance to the Congress in the performance of its duties?)
By the same token, this particular function--supporting Congress with information bearing on policy issues--at times creates tensions with the rest of the executive branch, which is unaccustomed to having other departments and agencies more or less openly undermine administration policies and proposals on the Hill.
One would think enough self-interest exists on each side of this political triangle to drive the parties toward a mutual accommodation where intelligence-sharing is concerned. Congress has an interest in seeing that its needs are met and that information is not being improperly withheld. Intelligence agencies have an interest in ensuring that Congressional requirements do not outstrip their resources, that their information is protected, and that their independence from the political process is respected. The rest of the executive branch has an interest in seeing that the intelligence support rendered Congress is, to the extent possible, consistent with the executive's own needs.
Thus far, however, the players involved have shown little interest in developing an agreed-upon framework for intelligence-sharing, preferring instead the rough and tumble, give-and-take of the political process, uncertain and contentious as this may be. Their reluctance may stem in part from an inability to envision what such a framework might look like and what the benefits might be for themselves. If a study such as this one can make a difference, it is hopefully by providing a vision of the possibilities.
Footnotes(1) It is apparent that the CIA and perhaps other intelligence producers need to establish a working relationship with the Congressional Research Service. Both are involved in providing information support to Congress. Many requests now referred to intelligence agencies could be satisfied (indeed, should be satisfied) with publicly available information. A mechanism for handing off such requests to the Congressional Research Service ought to be created.