Foreign Policy Research Institute A Nation Must Think Before it Acts Intelligence “Oversight” or Forbidden Intrusion: How Far Can Congress Go?

Intelligence “Oversight” or Forbidden Intrusion: How Far Can Congress Go?

The very public demands made by the House Permanent Select Committee on Intelligence (HPSCI) or, more accurately, by its current chairman, Devin Nunes,[1] and other members of the Republican majority, for information related to intelligence activities connected with the investigation of Russian meddling in the 2016 presidential election have focused unusual attention on a subject generally devoid of public curiosity: the proper scope of congressional oversight of U.S. foreign intelligence and counterintelligence efforts. Whatever one’s views on the particulars of the investigation by Special Counsel Robert Mueller, the unprecedented demands issued by Nunes for access to sensitive intelligence information bring a novel, and potentially dangerous, application of “legislative oversight” to highly classified intelligence operations conducted by the executive branch.

The Department of Justice and the Federal Bureau of Investigation (FBI), with the support of the Director of National Intelligence, have consistently refused to disgorge original “source” documentation relating to the origins of the FBI counterintelligence investigation that included the use of electronic surveillance directed against certain members of the Trump campaign. That surveillance was conducted under judicial orders obtained pursuant to the Foreign Intelligence Surveillance Act (FISA). Nunes, in a series of letters following the HPSCI’s issuance of subpoenas last August, demanded unrestricted access to the original FISA applications used with those surveillances and to a number of other highly classified documents including the original EC (“Electronic Communication”) that purportedly served to initiate the Russian inquiry. After early resistance to these demands, the Justice Department—its position no doubt compromised by the apparent ambivalence of the president to the protection of intelligence sources and methods at least insofar as relates to the Russia investigation, has sought to accommodate—through private briefings, Nunes and those other Republicans pressing for access. But tensions still simmer, and there is little reason to think that the situation has been permanently defused.

Amidst this uncertainty and the swirl of accusations, questions abound regarding the boundary separating legitimate congressional oversight from unwarranted legislative interference.

A Historical Look at Congressional Oversight

Congressional oversight of military and intelligence activities conducted by the executive branch has a lengthy and, at times quite checkered, history. Historically, there is ample evidence to support the proposition that such legislative oversight has had substantial impact on the conduct of American military and foreign policies. In December 1861, in response to the Union military disaster at Ball’s Bluff, Congress created the Joint Committee on the Conduct of the War, chaired by Senator Benjamin Wade. Dominated by Radical Republicans, the Committee became the bête noire of the Lincoln administration’s war efforts: questioning strategy, criticizing any perceived lack of loyalty or courage on the battlefield, and attempting to either manipulate, or belatedly condemn, virtually every aspect of Union tactical and strategic planning. The historical consensus is that the Joint Committee’s meddling activities seriously impeded the Union war effort due, in part, to fanaticism, vindictiveness and petty jealousies, but principally to the committee members virtually universal ignorance of military matters.[2] The “oversight” conducted by the Civil War Joint Committee was so dysfunctional that General Robert E. Lee estimated that the harm caused to the Union effort by its machinations was worth two divisions to the rebel cause.[3]

So discredited was the historical reputation of the Joint Committee on the Conduct of the War that Senator Harry Truman specifically cited it as the standard that his committee sought to avoid in conducting its far less intrusive but significantly more effective investigation into American military efforts during the Second World War.[4] The Truman Committee’s reputation stands as the polar opposite of the Civil War Joint Committee on the Conduct of the War, and is generally recognized as one of the most successful investigative efforts ever mounted by the U.S. government: an initial budget of $15,000 was expanded over three years to $360,000 to save an estimated $10–15 billion in military spending and thousands of lives of U.S. servicemen.[5]

Yet another revealing, but consequentially different, example of the effect of legislative oversight on national policy is found in the work of the Nye Committee formed following World War I. The Nye Committee examined the impact that business interests exerted on the U.S. decision to enter that war. While the inquiry was conducted more than a decade after the war’s close, the committee determined that banking and industrial interests, particularly in the armaments industry, had exercised inordinate influence on the government to protect their economic investments, which were disproportionally directed to the Allied powers. The committee’s findings convinced many that the U.S. entry into the war had been largely undertaken for reasons of profit, not policy: a conclusion considered by many historians to have encouraged neutrality sentiments and retarded U.S. military preparedness prior to entering World War II.

As revealed by these examples, congressional investigation or oversight of military activities has been a corollary of virtually every significant American military undertaking since the Civil War. With the Cold War arising from the international reconfigurations that followed World War II, a major feature of this new form of confrontation was played out through clandestine actions and paramilitary, oftentimes covert, activities conducted by competing intelligence services. Given the necessarily surreptitious nature of these activities, many perceive congressional oversight as affording the most effective, if not the only, check on these particular areas of executive branch action. Given that perception, what are the parameters of appropriate legislative oversight in this secretive and volatile area of national security?

Analyzing the Parameters of the Congressional Power to Oversee and Investigate

More than 60 years ago, in the midst of inquiries by multiple congressional committees related to concerns of communists in government and American society, the Supreme Court commented on the proper scope of legislative oversight, saying:

We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.[6]

This power to obtain information has long been viewed as an essential attribute of the power to legislate and was so treated in the British Parliament and in the colonial legislatures in this country. Although, no specific power of inquiry is granted to Congress in the Constitution, Congress has asserted such a right since the establishment of the Constitutional structure that governs the country today and, as the Supreme Court has recognized, the power is “inherent in the legislative process.”[7]

But congressional activity in this area is not without limits. The congressional power of inquiry must be exercised “in aid of the legislative function.”[8] The separation of powers concept that the Supreme Court has repeatedly confirmed as an essential element of the Constitutional system of checks and balances restricts legislative intrusions into spheres reserved for the executive and judicial branches of the government. In this regard, the Supreme Court has explicitly recognized that congressional inquiries may not be used to arrogate to Congress functions allocated by the Constitution to another branch.[9] A related principle of the separation of powers doctrine establishes that when Congress has authorized executive departments to perform certain tasks, the rights and duties created by that authorization or by its execution may not be altered by the actions of a congressional committee or other agent or arm of Congress. Any measure that alters those rights and duties must be approved by each House of Congress and presented to the President.[10] Once Congress has created a bill that has become law in the manner prescribed by the Constitution (e.g., FISA), it is the sole province of the executive branch to execute that law faithfully.

The Constitution does not contemplate “a complete division of authority between the three branches [of government];” rather, it “enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”[11] Accordingly, there is undoubtedly a gray area in which the president’s responsibility for managing the executive branch and Congress’ power of oversight conflict, and where the respective rights and obligations of the president and Congress may be seen as unclear. Such uncertainty does not warrant Congress exercising its power of inquiry in a manner that negates or compromises the president’s constitutional responsibility for managing and controlling affairs committed to the executive branch.

Thus, while Congress constitutionally can investigate the manner in which the executive branch has executed existing law in order to determine whether further legislation is necessary, it cannot conduct such investigations for the purpose of facilitating an ability to exercise day-to-day control over the management of executive branch agencies or functions, or otherwise to direct the manner in which existing laws are interpreted and executed. As Joseph Story, the famed Supreme Court justice and Constitutional commentator observed: “Public bodies, like private persons, are occasionally under the dominion of strong passions and excitements; impatient, irritable, and impetuous. . . . If [a legislature] feels no check but its own will, it rarely has the firmness to insist upon holding a question long enough under its own view to see and mark it in all its bearings and relations on society.” [12]

In sum, Congress may not vest in its committees or its officers the power to supplant the president’s executive functions, whether under the guise of its investigative oversight authority or otherwise.

The exercise of congressional oversight in the immediate aftermath of the passage of the National Security Act in 1947 (which, among other actions, established the Central Intelligence Agency) was rarely viewed as trespassing into matters of executive purview, but the toxic combination of Vietnam and Watergate altered the perceived balance of power between the two branches of government precipitating, among other things, congressional hearings in the 1970s into the activities of the intelligence community. These hearings, broadly covered by the media and occurring in the shadow of Watergate and Vietnam, produced the conclusion, in the words of Senator Frank Church who chaired the eponymous “Church Committee” that conducted the Senate inquiries, that “the intelligence community’s immunity from congressional oversight had been a basic reason for the failures, inefficiencies, and misdeeds of the past.”[13] The work of the Church Committee and its counterpart in the House (the “Pike Committee” under the chairmanship of New York Representative Otis Pike) spawned the two committees now principally responsible for intelligence oversight in Congress today: the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI). The same dynamics prompting these 1970s inquiries into intelligence activities also birthed the Foreign Intelligence Surveillance Act (FISA) giving these newly created committees an entirely new intelligence authority to oversee.

In the four decades since FISA was enacted, intelligence oversight has been largely nonpartisan. There have been disagreements and arguments over budgets, and over intelligence policy, and, as part of those policy disagreements, over the extent to which, for example, intelligence activities encroach on civil liberties. But, Congress has not sought to use its oversight powers acting through the intelligence committees to publicly intrude into the specifics of particular intelligence or counterintelligence initiatives.

But the deliberate vagueness with which the Constitution often delineates the boundaries between the national authorities virtually assures that parsing through those competing authorities will be problematic whenever the actions of one branch of the government creep into areas of authority arguably held by another branch. The oversight responsibilities of the Congress in the areas of national security and foreign affairs almost inevitably collide with the activities of the executive branch because both Congress and the courts have acknowledged the primacy, albeit not the exclusivity, of the president’s Constitutional authority in these areas. Consequently, intelligence oversight presents one of the most challenging separation of powers issues in government.

The principal statutory authority for current legislative oversight of intelligence activities continues to be found in the National Security Act of 1947, as amended most recently by the FISA Amendments Reauthorization Act of 2017 signed by the president in January of 2018. Codified as part of the national security provisions found in Title 50, the law requires that the president “shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity,” while simultaneously providing “[n]othing in this subchapter shall be construed as requiring the approval of the congressional intelligence committees as a condition precedent to the initiation of any significant anticipated intelligence activity.”[14] The latter proviso represents an obvious effort to insure that the legislative reporting mandate not be construed as an infringement on the president’s inherent Article II powers as commander-in-chief and chief national spokesperson in foreign affairs.[15]

With this historical background and legal analysis of legislative oversight in mind, certain practical considerations that arguably impact on the current actions of the HPSCI chairman and other members of the Republican majority bear mention. At this time of fractious political debate on a multitude of national issues, there are some practical reasons why it is the House intelligence committee, and not the Senate’s, leading this particular charge. While the more intense politics and polarization found in the House, and simply the personalities of the committee’s respective chairmen (Devin Nunes at the HPSCI v. Richard Burr at the SSCI), help explain why the HPSCI is more deeply, and controversially, involved in examining the intelligence activities related to the Russia investigation, there are also institutional reasons that likely contribute. For example, the HPSCI’s jurisdiction within the House of Representatives is arguably broader than the SSCI’s under Senate rules: HPSCI jurisdiction extends over both major intelligence budgets, the National Intelligence Program (NIP) and the Military Intelligence Program (MIP), while the SSCI’s jurisdiction extends only to the former. Moreover, the HPSCI also has been given authority by House rules to “review and study on an exclusive basis the sources and methods of entities” in the Intelligence Community, an authorization not provided to the SSCI by Senate rules.

The membership of both committees has been limited in time, staggered, and connected to the standing committee and political party systems in Congress. These features, however, differ between the two panels and arguably furnish another reason for the HPSCI’s more visible politicization because House rules afford the controlling party a more comfortable numerical majority. The HPSCI has 22 members, with a party ratio of 13 majority to 9 minority in the current Congress. The Senate counterpart has 15 members traditionally configured in an 8-to-7 party ratio. There are ex officio members on each, representing the leadership in each chamber. Taken collectively, these institutional differences in the rules governing the role of each committee in its respective congressional chamber offer some explanation for a more politically aggressive HPSCI.

Aside from institutional elements, there is the inescapable practical fact that it is the mid-term election cycle: every seat in the House is on the ballot, including those held by Nunes and every other Republican HPSCI member; conversely, only four of the 15 SSCI members, and no Republicans, are facing the voters. No Republican member of the SSCI need imminently worry about the viewpoint held by his or her constituency regarding Robert Mueller, the Russian election meddling investigation, or any possible collusion of the Trump campaign—at least not in terms of this election cycle. Conversely, the views held on these issues by the electorate in the individual districts of each HPSCI member are almost certain to be a factor in the coming campaign.

The HPSCI’s Actions Regarding the Special Counsel’s Investigation

Which brings us to the Special Counsel’s probe into Russian election meddling or, more precisely, to the HPSCI’s demand[16] that the FBI and the Department of Justice provide the HPSCI with sensitive classified documents concerning the FBI’s counterintelligence investigation of that Russian meddling. With its subpoenas and correspondence publicly demanding access to classified documents like unredacted FISA applications and internal FBI investigative memoranda (like the EC) for the avowed purpose of passing some sort of legislative judgment on an ongoing investigation being conducted by the executive branch, the HPSCI Republican majority has crept ever closer to areas reserved for executive branch cognizance.

Department of Justice officials, the FBI, and the Director of National Intelligence (DNI) all have objected strenuously to the HPSCI demands raising both national security concerns and the traditional law enforcement reluctance to share information regarding an ongoing investigation. In another sign of these unusual political times, these arguments proffered by senior executive branch officials have been sapped, if not effectively neutered, by the White House’s tepid support for their concerns—a reflection, many say, of the Trump administration’s satisfaction with anything the HPSCI Republicans can accomplish by way of hampering the Special Counsel’s investigation.

However, the indifference of the White House’s current occupant cannot deflect that the HPSCI demands, in the view of many executive branch officials, are intended primarily to ascertain the scope and progress of the Mueller investigation—hardly a purpose “in aid of the legislative function” that is the sine qua non of legitimate congressional oversight. Indeed, it is difficult to discern, for example, how HPSCI access to original, unredacted highly classified (almost certainly Sensitive Compartmented Information or “SCI”[17]) FISA applications approved by the Foreign Intelligence Surveillance Court (FISC) and used in connection with an FBI counterintelligence investigation serves such a legislative purpose. The FISA statute commits solely to the executive branch the task of identifying FISA targets and preparing the FISA applications that furnish the legal justification for surveilling those targets. The judiciary has the function of ascertaining whether those FISA applications submitted by the executive branch meet the statutory and Constitutional standards required to lawfully conduct foreign intelligence electronic surveillance. This is the statutory process legislated by Congress and, once that process has produced a FISA order from the FISC, it is difficult to find a legitimate congressional oversight purpose requiring access to the unredacted, highly classified FISA application that precipitated that FISC order.

Admittedly, it is virtually impossible to draw “bright line” distinctions in this area. As noted earlier, by design, the Framers created a governmental structure characterized by both autonomy and interdependence that produces an inherent friction in all areas except those relatively few where the Constitution’s grant of authority to a specific branch is textually explicit. Thus, for example, Congress has an appropriate interest in ascertaining whether the FISA process functions in the manner specified by Congress in the statute; or, how the executive branch’s conduct of electronic surveillance for foreign intelligence affects the nation’s foreign relationships. But those sorts of inquiries do not require access to original FISA applications prepared by the executive branch and protected by executive branch procedures designed to safeguard the highly sensitive sources and methods described in those applications—procedures and restrictions that Congress itself has recognized as essential elements that must be considered in the efforts of the DNI “and the heads of all departments, agencies, and other entities of the Unites States Government involved in intelligence activities” to keep the congressional intelligence committees “fully and currently informed of all intelligence activities.”[18]

This is not an instance where the HPSCI is seeking FISA application data to ascertain whether FISA is being implemented in the manner intended by Congress. The HPSCI receives multiple reports on FISA operations and activities from both the executive and judicial branches.[19] Moreover, the HPSCI is free to hold hearings on how the executive and judicial branches are administering FISA and summon witnesses to testify at those hearings. But the current demands by Nunes and the Republicans insist on access to highly classified FISA applications already approved by the FISC in its exercise of a function committed exclusively to the judiciary; i.e., whether the executive branch applications satisfied the statutory and Constitutional requirements for a FISA surveillance order to issue. It strains any reasonable construct of appropriate oversight to conclude that Congress may either legitimately “investigate” the “adequacy” of a FISA application prepared by the executive branch that already has received the imprimatur of the FISC, or “oversee” the judicial determination that that application met the statutory and Fourth Amendment criteria required for a FISA order. This is especially so when the ostensible “oversight” is aggressively pursued in the midst of an ongoing law enforcement investigation and there are grounds to support the reasonable belief that the “oversight” is actually intended to expose and perhaps compromise that investigation.

It is difficult to predict how far Nunes and the HPSCI majority will seek to push their version of congressional “oversight,” especially given the conflict of interest that likely has diminished, and will continue to attenuate, the normal vigor with which a presidential administration might otherwise be expected to defend executive branch prerogatives in the areas of national security and law enforcement. But, as the Supreme Court has observed in a caution that seems particularly apposite here, “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.”[20]

[1] Curiously, Nunes has ostensibly recused himself from the actual “Russia investigation” but has persisted in his demand for information relating to, and the origins of, certain intelligence activities related to that investigation. For a discussion of the memorandum provocatively titled “Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation” released by Nunes and the HPSCI Republican majority earlier this year, read my article “Where’s the Beef? The House Intelligence Committee Memo Provides Few Answers and Leaves Many Questions,” FPRI E-Notes, February 6, 2018.

[2] See generally, Bruce Tap, Over Lincoln’s Shoulder, The Committee on the Conduct of the War, University Press of Kansas, 1998.

[3] David McCullough, Truman, Simon & Schuster (1992) at 304.

[4] The Truman Committee, formally known as the Senate Special Committee to Investigate the National Defense Program, was a bipartisan congressional investigative body, headed by Senator Harry S. Truman formed in March 1941 to find and correct problems in U.S. war production with waste, inefficiency, and war profiteering.

[5] See, James A. Thurber. Rivals for Power: Presidential–Congressional Relations, Rowman & Littlefield (4th Ed. 2009) at 301 (“Over seven years (1941–1948) the committee heard from 1,798 witnesses during 432 public hearings. It published nearly two thousand pages of documents and saved perhaps $15 billion and thousands of lives by exposing faulty airplane and munitions production.”).

[6] So said the U.S. Supreme Court in in Watkins v. U.S., 354 U.S. 178, 187 (1957).

[7] Id.

[8] See, McGrain v. Daugherty, 273 U.S. 135, 161 (1927) (The investigation at issue in the McGrain case grew out of the infamous Teapot Dome scandal and, demonstrating the enduring collision between legislative oversight and executive functions, spawned legal commentary at the time on the reach of congressional investigations. See generally, Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153 (1926)).

[9] By way of example, the constitutionally based doctrine of executive privilege limits Congress’s ability to obtain information from the executive branch. See, e.g., United States v. Nixon, 418 U.S. 683 (1974).

[10] INS v. Chahda, 462 U.S. 919, 951 (1983).

[11] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952).

[12] As quoted in INS v. Chadha, 462 U.S. at 949-950.

[13] To Create a Senate Select Committee on Intelligence: A Legislative History of Senate Resolution S. 400, Congressional Research Service (August 12, 1976).

[14] 50 U.S.C. § 3091(a). What constitutes “fully and currently informed” has been a matter of past dispute between the president and Congress. Many presidents have interpreted this phrase as requiring only that they inform the “Gang of Eight” (i.e., the the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, and the majority and minority leaders of the Senate) of sensitive intelligence operations; notwithstanding that this “exception” to keeping both intelligence committees “fully and currently informed” textually applies only to covert actions and only where there are “extraordinary circumstances affecting vital interests of the United States.” See, 50 U.S.C. § 3093(c)(2).

[15] It is also notable that the executive branch’s responsibility to keep the congressional intelligence committees “fully and currently informed of all intelligence activities” is to be performed “with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.” 50 U.S.C. § 3092(a).

[16] To be clear, the reference to “HPSCI” in this context means the Committee’s Republican majority operating principally through its chairman, Devin Nunes.

[17] “SCI” refers to a type of classified information derived from sensitive sources, methods, or analytical processes that must be handled within formal access control programs established by the DNI. Although often referred to as “above Top Secret,” information at any classification level may exist within an SCI control system, and that categorization is generally designated by the use of a codeword associated with the particular control system.

[18] 50 U.S.C. § 3092(a).

[19] For example, among other statutory reporting mandates, 50 U.S.C. § 1807 requires an annual report to Congress from the Attorney General on FISA activities that, insofar as possible, is to be in unclassified form and made publicly available. 50 U.S.C. § 1808 mandates a semi-annual report from the Attorney General to the intelligence and judiciary committees in both the House and the Senate, also on FISA activities, but that is generally presented in classified form. 50 U.S.C. § 1873 requires annual reports from both the Administrative Office of U.S. Courts (on FISC activities), and from the Director of National Intelligence on FISA activities. For a more thorough discussion of the contents of this FISA-related reporting, see my article, “The 2017 FISA Reporting Season Has Ended: What Do the Numbers Mean?,” FPRI E-Notes, May 15, 2018.

[20] INS v. Chadha, 462 U.S. at 951.