Prisoners being held secretly, without counsel and apparently indefinitely. The Vice President imploring senators to exempt the CIA from US law, treaties and international norms prohibiting torture. A war justified by unsupportable information. Accounts of misconduct at Abu Ghraib and Guantánamo and secret prisons beyond US borders. Extensive use of national security letters to obtain, without warrant or subpoena, information on American citizens.
Just who is minding American intelligence? The answer should be Congress. In addition to passing legislation, oversight is one of the two major functions of Congress. Only when the House and Senate intelligence committees exercise their oversight responsibilities can we guarantee the safety of intelligence personnel and the civil liberties of our citizens.
Leaders of the Republican majority have consistently stifled efforts to reform our intelligence community. But recent catastrophes have stimulated healthy debate and created bipartisan coalitions for reform. There are two basic steps we must take to build on that momentum.
First, Congress has to revise and clarify the 1947 National Security Act. Ever since its passage, there has been tension between the executive and legislative branches over how (and how much) intelligence should be shared with Congress. The National Security Act requires sharing with Congress only “where appropriate”–a clear invitation to selective sharing. Once and for all, we must revise that measure to define what information is “appropriate” for sharing with Congress, when it’s appropriate to share it and how many members of Congress should have access. The law should mandate that all information be promptly shared with members of the respective intelligence committees. Exceptions to sharing, if any can be persuasively defended, should be specifically enumerated in the amended law.
Second, we have to rein in a culture of official secrecy that results in the serious overclassification of information. Claiming security concerns, executive-branch agencies increasingly restrict or delay access to vital intelligence–often preventing or delaying Congress, or all but a handful in Congress, from having the facts. Then, even if the intelligence is shared with some, documents are classified to prohibit broader sharing. While the Bush Administration has used security threats to justify its excessive classification, emerging threats actually make the need for “real-time sharing” of sensitive information more urgent. The Congressional Joint Inquiry into September 11 strongly raised this issue, but few people took notice. Congress should follow the Joint Inquiry’s recommendation: “Review the statutes, policies and procedures that govern the national security classification of intelligence.” Current procedures are too often arbitrary and unjustified, and they inhibit intelligence oversight.
In post-9/11 America the need for better intelligence is clear. So is the need for disseminating that improved intelligence in a timely manner. Congress has to reclaim its key constitutional role in intelligence oversight to make sure that serious decisions are reached on the basis of what is best for the nation, not for a political party.