Battle looms on supervision of intelligence agencies

Posted April 04, 2010, at 9:15 p.m.

A surprising tug of war has erupted between the Obama administration and Congress over transparency and oversight of the intelligence agencies. In September 2009, the Senate passed the 2010 Intelligence Authorization Act, and on Feb. 26, the House passed a similar bill. The bills were about to be melded.

President George W. Bush had vetoed the Intelligence Authorization Act for FY 2008, so this would have been the first such act to be passed in four years.

But on March 15, Peter Orszag, director of the Office of Management and Budget, wrote to the Intelligence Committees, warning that “the president’s senior advisers would recommend that he veto the bill” if provisions of “serious concern to the Intelligence Community” were included.

Congress had a lot to be unhappy about in the intelligence arena. Our intelligence services provided limited warning before Sept. 11, 2001. The intelligence that supported going to war in Iraq was deeply flawed: From its incorrect assessments of aluminum tubes, mobile biolabs, Niger “yellowcake” uranium and the presence of weapons of mass destruction, failures of intelligence collection, sharing, analysis and supervision were evident.

What were the Obama administration’s concerns? The first involved notifying Congress of covert activities and other intelligence matters. Certain matters now are only briefed to the “Gang of Eight” — the Senate majority and minority leaders, the House Speaker and minority leader, and the chairmen and ranking members of the House and Senate Intelligence Committees. Although they are “briefed,” they may not take any notes, may not be accompanied by staff and may not discuss the briefing with anyone. The process neither seeks congressional approval, nor allows for objections.

Understandably, Congress wanted to expand such notifications and include all members of the intelligence committees. Congress also sought information on the “legal authority under which an intelligence activity is being or was conducted.” The administration resisted both provisions.

Orszag further objected to a provision in the new bill that would give the Government Accountability Office, the investigative arm of Congress, broader authority to conduct investigations of the intelligence community. Ironically, Adm. Dennis Blair, the director of National Intelligence (born in Kittery) had agreed with this during his confirmation hearing last year.

Other objections included the requirements to videotape interrogations, create an inspector general position and obtain Senate confirmation for additional leadership positions within the intelligence community, and conduct further investigation into the anthrax letters case.

The FBI closed the anthrax case last month despite dozens of unanswered questions. The administration claimed that further investigation “would undermine public confidence and unfairly cast doubt on its conclusions.” Yet the anthrax letters were a direct attack on Congress and helped usher in the Iraq war. Why shouldn’t Congress review an unsatisfactory conclusion to a crime that had profound repercussions for our country?

Does Congress have the right to vote itself additional tools to review the intelligence agencies? Congress has the duty to pay for and oversee federal expenditures and make sure federal programs accord with our laws. If the tools available are inadequate to the task, more tools must be forthcoming.

Recent congressional precedent, alluded to by Orszag, took a “hands-off” approach to intelligence. (Historically, under J. Edgar Hoover, the FBI’s covert intelligence gathering included politicians, resulting in less scrutiny.) The Obama administration wants the hands-off approach to continue. But is it wise?

Recent precedent led to violations of our Bill of Rights:

Warrantless wiretapping by the National Security Agency is prohibited by the Fourth Amendment’s protection from unreasonable search and seizure.

“Extraordinary rendition” is prohibited by the Fifth Amendment’s requirement for due process of law.

Incarceration for years, without benefit of legal counsel, is prohibited by the Sixth Amendment’s rights of the accused, including the right to a speedy trial.

The Eighth Amendment prohibits cruel and unusual punishment (torture), as do our treaties.

These violations arguably make our nation less safe. Thus Congress has a clear mission to oversee and correct the conduct of the intelligence agencies. Do others agree?

The 9-11 Commission Report asked for improved congressional oversight of intelligence, noting, “Of all our recommendations, strengthening congressional oversight may be among the most difficult and important.”

The Report of the President’s Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction warned, “The intelligence community is a closed world, and many insiders admitted to us that it has an almost perfect record of resisting external recommendations.”

Congress can expect a very tough fight over supervision of the intelligence community. Maine Sen. Olympia Snowe introduced important new oversight provisions in the 2010 Intelligence Authorization Act. It is critical for Snowe and the rest of Congress to have the public’s support of their efforts to improve performance and accountability in the intelligence community.

Meryl Nass is a physician who practices in Bar Harbor. She is also the chairwoman of the Commission to Protect the Lives and Health of Members of the Maine National Guard and has consulted for the director of National Intelligence.

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