United States Intelligence Community Oversight - Executive and Legislative Give-and-Take

Executive and Legislative Give-and-Take

Congress’s oversight responsibilities over the IC often overlap with the responsibilities and authorities of the executive branch. Given the natural competition that exists between the legislative and executive branches, this overlap creates tensions as both sides struggle to accomplish certain goals using their respective powers and authorities. Hence intelligence oversight can be one of the most challenging separation-of-powers issues in government.

Executive Branch

The White House sets the national security and foreign affairs agenda. Congress and the judicial branch have affirmed the executive branch’s lead role for conducting national security affairs numerous times. Furthermore, the White House can limit congressional influence in the domain of national security and intelligence.

Access to Information

The White House has the power to control information classification, and even withhold access to information and operational details from certain members of Congress. In this way, the executive branch can directly control what Congress can or cannot see, indirectly influencing the legislative branch’s overall ability to make decisions. Thus, despite members of the Intelligence Committees and their staffs holding appropriate security clearances, they may sometimes only have a limited view into specific intelligence activities. Though the 1947 National Security Act states that Congress must be kept “fully informed” of significant intelligence activities, many Presidents have interpreted this clause to mean they only need to notify the “Gang of Eight” rather than the full membership of the congressional intelligence committees. The Gang of Eight consists of the Senate and House Majority and Minority Leaders, and the Chairs and ranking members of the House and Senate Intelligence Committees. Veto Power: The President also has the power to veto any legislation that Congress passes. For example, President Bush’s veto of the Intelligence Authorization Bill of 2009, which included language on coercive interrogation, indicates that this can be a very effective tool to control the ability of Congress to influence intelligence policy. Direct Authority: Leaders of the IC are appointed by the President to their positions, and the White House has the authority to hire and fire them. While some of these positions – such as the CIA Director– require Senate confirmation, many do not. As a result, the President is able to appoint trusted advisors to key positions in the IC.

Legislative Branch

Although the Constitution gives the executive branch preeminence in dealing with intelligence matters, Article I nevertheless provides Congress with an important oversight role. However, Congressional oversight into intelligence issues is a complex task, requiring a sophisticated understanding of the issues. The floor debate for the FISA Amendments Act of 2008 provided a clear example of the difficulties Congress faces when trying to modify intelligence legislation. Members, for reasons of classification or technical complexity, did not share a common understanding of the law, let alone how it should be adjusted.

Authorization and Appropriation

Congress’s most important source of leverage is the power to authorize programs and appropriate funds. During the authorization and appropriations process, Congress can signal its intelligence and policy priorities through both the allocation of funds and the inclusion of non budget-related clauses in the authorization and appropriations bills. Nominations: Many of the IC’s top leaders, including the Director of National Intelligence and the CIA Director, are nominated by the President and confirmed by the Senate. This sometimes grueling process forces the White House to carefully select its nominees and provides an opportunity for Senate input on both the individuals and issues related to intelligence policy. In recent years, the Senate has withheld confirmation until the executive branch agreed to share additional information on key areas of congressional oversight of intelligence activities.

Congressional Hearings

Congress invites—and, in some cases, compels—high-ranking members of the executive branch to appear before Congress to ask them targeted questions intended to create more transparent and effective IC operations. As noted previously, however, the power of this tool depends in large part on Congress’s awareness of IC activities.