Congress Wins Expanded Oversight of Intelligence Community

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After months of tough negotiations with the White House, members of Congress who monitor intelligence agencies believe they've won meaningful new oversight powers via a bill the President has promised to sign.

Among these new powers: agency directors will have to certify, under penalty of law, that they've disclosed to Congress everything that must be disclosed; criteria will be expanded for the types of covert operation planning that Congress must be briefed on; and the White House will even have to retain (for the sake of public records to be disclosed in the future) a written record of every briefing it provides to the intelligence communities and a list of attendees.

"There are, in the proposed conference draft, a number of provisions related to strengthening Congress's oversight abilities," said Courtney Littig, spokesperson for the House Permanent Select Committee on Intelligence. "The draft that the administration indicated the President would sign also contains a critical provision establishing an IC-wide Inspector General, which has been a major oversight priority for the Committee for years."

These provisions have been given little notice, but they represent how the balance of power has shifted on oversight matters. According to intelligence and Congressional officials, Congressional oversight of the Central Intelligence Agency and the National Security Agency is -- after a bumpy beginning -- robust and vigorous. It is significant that some members of Congress who've long complained about both of those agencies in particular feel as if they can get the information they request.

Both NSA director Gen. Keith Alexander and CIA director Leon Panetta have developed solid relationships with key members and senior Hill staffers, a turnaround from early in the administration, when the CIA nearly went to war with Speaker Nancy Pelosi over whether she was briefed on enhanced interrogation techniques during the Bush Administration.

There remains significant concern about the oversight of other agencies controlled mainly by the Department of Defense, including the Defense Intelligence Agency, which is one reason for the initial resistance to James Clapper's nomination to become the new director of national intelligence.

Last week, the White House reluctantly agreed to support some of the new provisions, but its budget director pointedly made public concessions the White House had won, including the scrapping of an amendment to give Congress's investigative arm, the General Accountability Office, broad power to investigate intelligence agency abuses.

Earlier this week, I wrote that the oversight language in the authorization seemed weak. I did not know about many of the provisions retained in the language that passed both the House and the Senate, largely because the intelligence committees will not make drafts of the final product public. Moreover, some of the new oversight powers are classified. Congress, for example, has requested modifications to specific programs and capacities.

Others have simply been overlooked. Sen. Kit Bond spent months crafting a provision that would significantly overhaul the way the intelligence community acquires its materiel and handles contracting personnel. An early version of the bill is here,

In negotiations with the White House, Congress stressed President Obama's campaign promise of transparency and a new era of openness in government. The White House, meanwhile, insisted that its executive intelligence authorities and ability to protect national security information not be diminished.

Details from some of the new oversight mechanisms show the strides Congress was able to make.

During the last administration (and, indeed, for decades), covert action notifications were often made orally, with no record of who attended briefings and no record of what the briefings were about. Under the new language, even oral covert action notifications must be recorded for posterity. To avoid a debate about what type of covert action qualifies for notification, agencies are now required to consider more factors when determining whether a program ought to be disclosed. The director of the CIA must sign a document on a regular basis to certify that he has met the notification requirements. Doing so will subject him to 18 USC 1001, the False Statements Statue, and potential legal penalties if he fails to disclose an important program that is discovered after the fact.

Additionally:

-- The director of national intelligence now has the power to direct intelligence agencies themselves to conduct accountability reviews.

-- A community-wide inspector general will be able to reach across agencies and will be granted broad investigative power. "These are huge steps forward in congressional oversight," Littig said.

At this point, the ball is in Speaker Pelosi's court. She wants more concessions from the White House, particularly on notification matters, but the leaders and ranking members of the intelligence committees are satisfied with what they've got. They're waiting on Pelosi to appoint conferees to reconcile the House and Senate language.

To make sure that the White House can't do an end run around Congress, Sen. Dianne Feinstein wants to make sure the President signs these new oversight powers into law before she'll open hearings on the Clapper nomination.

(Erratum: in my last post on this subject, I meant to write that an appropriations subcommittee, not the armed services committee, deals with intelligence agency budgets.)

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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