Abstract
The structure of the American intelligence community has shifted in significant ways in recent years, moving from decentralized and redundant agencies to a more unified system. In 2004, Congress established the Director of National Intelligence (DNI) position and provided that person with some budgetary and personnel authority over the nation’s 16 intelligence agencies. Congressional oversight of the intelligence community, however, has largely remained fragmented in the aftermath of September 11, 2001. There is no primary oversight committee in either the House of Representatives or the Senate, with the Appropriations, Armed Services, and Intelligence Committees all exercising significant power.
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Notes
The writing of this chapter was supported by the National Science Foundation, Human and Social Dynamics Division, Grant No. 624296. Ellen Gilmore, Dean Rowan, and especially Tess Hand-Bender provided excellent research assistance. From 2001 to 2003,1 was atrial attorney at the Federal Programs Branch ofthe U.S. Department of Justice. As a team member helping to review designations of entities linked to terrorism before their assets were frozen and defend those designations when legal challenges were brought, I interacted with members of the intelligence community. Nothing in this chapter is based on confidential or classified information, and none of my views should be attributed to the Department of Justice.
This chapter draws from my longer article on the structure of the intelligence community and its congressional overseers. See Anne Joseph O’Connell, “The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World,” California Law Review 94 (2006): 1655–1744.
Bert Chapman, Researching National Security and Intelligence Policy (Washington, DC: CQ Press, 2004), 234–243.
Frederick M. Kaiser, A Joint Committee on Intelligence: Proposals and Options from the 9/11 Commission and Others (Washington, DC: Congressional Research Service RL32525, 2004), 1.
Glen Hastedt, “Foreign Policy by Commission: Reforming the Intelligence Community,” Intelligence and National Security 22 (2007): 443–472.
It is unclear how much those changes will improve the effectiveness of the intelligence community. See O’Connell, “The Architecture of Smart Intelligence” Tim Starks, “Intel: Lost in the Reshuffle,” CQ Weekly, May 5, 2008; Amy B. Zegart, Spying Blind: The CIA, the FBI, and the Origins of 9/11 (Princeton: Princeton University Press, 2007).
Paul S. Rundquist and Christopher M. Davis, S. Res. 445: Senate Committee Reorganization for Homeland Security and Intelligence Matters (Washington, DC: Congressional Research Service RS21955, 2004), 5.
Richard A. Posner, Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (New York: Rowman & Littlefield Publishers, Inc., 2005), 36
Timothy H. Edgar, ACLU Analysis of the 9–11 Commission’s Recommendations for Intelligence Reform (New York: American Civil Liberties Union, 2004)
Denis McDonough, Mara Rudman, and Peter Rundlet, No Mere Oversight: Congressional Oversight of Intelligence Is Broken (Washington DC: Center for American Progress, 2006), 17.
Philip B. Heymann, Terrorism, Freedom, and Security: Winning without War (Cambridge: MIT Press, 2003), 152–156
Kaiser, A Joint Committee on Intelligence, 9; see also Mathew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked: Police Patrols versus Fire Alarms,” American Journal of Political Science 28 (1984): 165–179.
Jonathan B. Bendor, Parallel Systems: Redundancy in Government (Berkeley: University of California Press, 1985)
Martin Landau, “Redundancy, Rationality, and the Problem of Duplication and Overlap,” Public Administration Review 29 (1969): 346–358.
On the other hand, such redundancy may encourage free-riding. Michael M. Ting, “A Strategic Theory of Bureaucratic Redundancy,” American Journal of Political Science 47 (2003): 274–292.
Loch K. Johnson, America’s Secret Power: The CIA in a Democratic Society (New York: Oxford University Press, 1989), 222
Members of Congress, however, juggle several committee assignments, making it hard to “giv[e] adequate time and attention to anyone of them.” Marvin C. Ott, “Partisanship and the Decline of Intelligence Oversight,” International Journal of Intelligence and Counterintelligence 16 (2003): 87.
Loch K. Johnson, Secret Agencies: U.S. Intelligence in a Hostile World (New Haven: Yale University Press, 1996), 97.
Nancy Staudt, “Redundant Tax and Spending Programs,” Northwestern University Law Review 100 (2006): 1219–1220.
Philip B. Heymann and Juliette N. Kayyem, Preserving Security and Democratic Freedoms in the War on Terror (Cambridge, MA: Belfer Center for Science and International Affairs, 2004), 258.
Loch K. Johnson, “Ostriches, Cheerleaders, Skeptics and Guardians: Role Selection by Congressional Intelligence Overseers,” SAIS Review 38 (2008): 93–108.
L. Britt Snider, “Congressional Oversight of Intelligence after 9/11,” in Transforming US Intelligence: Challenges for Democracy, ed. Jennifer Sims and Burton Gerber (Washington, DC: Georgetown University Press, 2005), 245.
E. Scott. Adler, Why Congressional Reforms Fail: Reelection and the House Committee System (Chicago: University of Chicago Press, 2002)
David C. King, Turf Wars: How Congressional Committees Claim Jurisdiction (Chicago: University of Chicago Press, 1997)
David C. King, “The Nature of Congressional Committee Jurisdictions,” American Political Science Review 88 (1994): 48–62.
Heidi Kitrosser, “Congressional Oversight of National Security Activities: Improving Information Funnels,” Cardozo Law Review 29 (2008): 1049–1090.
Frederick M. Kaiser, Walter J. Oleszek, T.J. Halstead, Morton Rosenberg, and Todd B. Tatelman, Congressional Oversight Manual (Washington, DC: Congressional Research Service RL30240, 2007), 56.
Kaiser, A Joint Committee on Intelligence, 14, note 20; Frederick M. Kaiser, “GAO versus the CIA: Uphill Battles against an Overpowering Force,” International Journal of Intelligence and Counterintelligence 15 (2002): 330–389.
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© 2009 Matthew J. Morgan
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O’Connell, A.J. (2009). Intelligent Oversight. In: Morgan, M.J. (eds) The Impact of 9/11 and the New Legal Landscape. The Day that Changed Everything?. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230100053_12
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DOI: https://doi.org/10.1057/9780230100053_12
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