Order Code RL32525 CRS Report for Congress Received through the CRS Web A Joint Committee on Intelligence and Alternatives: Proposals from the 9/11 Commission and Others Updated October 7, 2004 Frederick M. Kaiser Specialist in American National Government Government and Finance Division Congressional Research Service ˜ The Library of Congress A Joint Committee on Intelligence and Alternatives: Proposals from the 9/11 Commission and Others Summary In mid-2004, the U.S. National Commission on Terrorist Attacks Upon the United States — commonly known as the 9/11 Commission — released a unanimous report covering a wide range of issues and concerns. As part of this, the panel concluded that congressional oversight of intelligence was “dysfunctional” and proposed two distinct solutions. These were: (1) creation of a joint committee on intelligence (JCI), modeled after the now-defunct Joint Committee on Atomic Energy (JCAE), with authority to report legislation to each chamber; or (2) enhanced status and power for the existing House and Senate select committees on intelligence, for instance, making them permanent standing committees and giving them both authorization and appropriations authority. Since then, Congress has looked into the matter, through existing committees and a Senate bipartisan working group. Congress’s consideration of a JCI is not new. It dates to 1948 and the infancy of the Central Intelligence Agency (CIA) and Director of Central Intelligence (DCI). Similar recommendations have arisen in the meantime, although the lion’s share were made before intelligence committees were established in the House (1977) and Senate (1976). But the numerous proposals for a joint committee on intelligence — with authority to report legislation to the floor of both chambers — vary meaningfully across a number of dimensions. Differences exist in membership characteristics: number; representation of standing committees with overlapping membership; specified number of at-large selections; and permanent or term-limited memberships. Leadership is also affected: chairmanship rotation with each Congress or each session; and a vice chairman from the other chamber and/or minority party versus reliance on the usual replacement procedure, with the next in line from the majority party. Proposed controls over classified information in the committee’s custody range from secrecy oaths for members to security clearances for them, from exacting requirements for non-member access to its holdings to less stringent ones, and from disclosure of classified information by the committee alone or each chamber or both together. Finally, staffing requirements, although consistent in requiring security clearances, reflect different selection procedures. Competing pros and cons have accompanied JCI proposals throughout their history, in part because of practical matters and matters of principle. Differing viewpoints, for instance, separate advocates and opponents over the benefits and costs of a bicameral panel, along with its possible impact on relations between the two chambers as well as between the legislature and executive. One fundamental divide is about whether a JCI would strengthen or weaken oversight of intelligence, by comparison to the select intelligence committees as they exist now or with revised powers and characteristics. The 9/11 Commission did not resolve this division. This report first describes the current select committees on intelligence and briefly covers the former Joint Committee on Atomic Energy. It then sets forth proposed characteristics for a Joint Committee on Intelligence, their differences, and their pros and cons; it also discusses alternatives for congressional oversight in the field. This report will be updated as events dictate. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 House and Senate Select Committees on Intelligence . . . . . . . . . . . . . . . . . . . . . . 2 Jurisdiction and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Membership and Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Secrecy Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Joint Committee on Atomic Energy as a Model . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Proposed Joint Committee on Intelligence Characteristics . . . . . . . . . . . . . . . . . . 5 Methods of Establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Jurisdiction and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Terms and Rotation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Secrecy Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Staffing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Budget and Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Pros and Cons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Pros . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Cons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Alternatives to a Joint Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Changing the Select Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Coordination Between the Two Intelligence Panels . . . . . . . . . . . . . . . . . . 15 Joint Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Leadership Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Constraints on Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Interchanges with Other Panels and Members . . . . . . . . . . . . . . . . . . . . . . . 16 Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Observations on Oversight of Intelligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Obstacles to Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Secrecy Constraints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Appeal of Intelligence Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Overcoming the Obstacles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Objectives and Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 The Joint Committee Approach and Alternatives . . . . . . . . . . . . . . . . 19 A Joint Committee on Intelligence and Alternatives: Proposals from the 9/11 Commission and Others Introduction Congress saw the first proposal to create a joint committee on intelligence (JCI) in 1948.1 It appeared just one year after the establishment of the Cental Intelligence Agency (CIA) and the Office of Director of Central Intelligence (DCI), both integral parts of the most far-reaching executive reorganization in United States history.2 Numerous other plans along the same lines have materialized in the meantime, including one in 2004 from the 9/11 Commission.3 This report reviews the basic characteristics of proposed joint committees on intelligence, differences among them, and perceived advantages and disadvantages.4 It also covers the congressional panels a JCI would replace: namely, the House and Senate select committees on intelligence, which also provide a base of comparison. Along with this is a brief review of the former Joint Committee on Atomic Energy (JCAE) — often cited as an organizational model for a joint intelligence panel, as it has been for the 9/11 Commission — as well as consideration of alternatives to a joint committee on intelligence, including standing committees on intelligence.5 1 H.Con.Res. 186, 80th Cong., 2nd sess., introduced by Rep. Devitt, April 21, 1948. 2 The monumental National Security Act of 1947 also gave birth to the National Security Council and National Military Establishment, later re-designated as the Department of Defense (61 Stat. 496 et seq.). 3 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report: Final Report (Washington: GPO, 2004), p. 420. The commission offered a second option to strengthen oversight: i.e., “a single committee in each house of Congress, combining authorization and appropriating authorities .... “ (ibid.). 4 Additional coverage of JCI recommendations, characteristics, and perceived advantages and disadvantages, which are detailed below, are available in U.S. Congress, House Committee on Rules, Subcommittee on Rules of the House, House Rule XLVIII, hearing, 101st Cong., 2nd sess. (Washington: GPO, 1990); Frederick M. Kaiser, “A Proposed Joint Committee on Intelligence: New Wine in an Old Bottle,” Journal of Law and Politics, vol.5, fall 1988, pp. 127-186; and Independent Task Force, Council on Foreign Relations, Making Intelligence Smarter: The Future of U.S. Intelligence (New York: Council on Foreign Relations, 1996), pp. 32-33. 5 The House and Senate are considering proposals in this area through their existing committees as well as a bipartisan working group in the Senate, which has recommended enhancing the powers and status of the current intelligence committee. Sen. Mitch McConnell, “Senators Reid and McConnell Convene Meeting of Bipartisan Working Group (continued...) CRS-2 House and Senate Select Committees on Intelligence A joint committee on intelligence would replace the current House Permanent Select Committee on Intelligence, established in 1977, and the Senate Select Committee on Intelligence, created a year earlier.6 These units emerged after extensive, detailed congressional and executive investigations revealed widespread abuses in the intelligence community and concluded that effective congressional oversight was lacking. The panels were set up to consolidate legislative and oversight authority over the entire intelligence community, supplanting the fragmented system at the time, which relied exclusively on disparate standing committees. Although titled “Select,” the intelligence panels are hybrids of standing and select committees, adopting characteristics of both types. For instance, the panels have only temporary membership, as select committees have, because they are usually short-term constructions; yet each panel holds authority to report legislation to its own chamber, a power usually reserved to standing committees. Jurisdiction and Authority The intelligence committees have broad jurisdiction over the intelligence community and report authorizations and other legislation for consideration by their respective chambers. Most of the jurisdiction of the current intelligence committees is shared. The select committees hold exclusive authorizing and legislative powers only for the Central Intelligence Agency, Director of Central Intelligence, and National Foreign Intelligence Program. This leaves the intelligence components in the Departments of Defense, Homeland Security, and Justice, among other agencies, to be shared with appropriate standing committees. The House and Senate intelligence panels have nearly identical jurisdictions for the intelligence community. The House panel’s domain, however, also encompasses an area that the Senate’s does not: “tactical intelligence and intelligence-related activities,” which cover tactical military intelligence. In another departure, the House 5 (...continued) to Reform Congressional Oversight of Intelligence,” Press Release, Oct. 4, 2004; Sen. Bill Frist, “Frist, Daschle Appoint Members to Working Group Evaluating 9/11 Commission Proposals,” Press Release, Aug. 25, 2004. 6 Development of congressional oversight of intelligence is examined in U.S. Congress, Senate Select Committee on Intelligence, Legislative Oversight of Intelligence Activities, S. Prt. 103-88, 103rd Cong., 2nd sess. (Washington: GPO, 1994); Frederick M. Kaiser, “Congress and the Intelligence Community,” in Roger Davidson, ed., The Postreform Congress (New York: St. Martins Press, 1992), pp. 279-300; Loch K. Johnson, “Congressional Supervision of America’s Secret Agencies,” in Loch K. Johnson and James J. Wirtz, eds., Strategic Intelligence (Los Angeles: Roxbury Publishing, 2004), pp. 414-426; and Mark M. Lowenthal, Intelligence: From Secrets to Policy (Washington: CQ Press, 2000), pp. 133-154. CRS-3 select committee has been given authority to “review and study on an exclusive basis the sources and methods of entities” in the intelligence community.7 Membership and Leadership The membership of the committees has been limited in time, staggered, and connected to the standing committee system and political party system in Congress. These features, moreover, differ between the two panels. Each select committee, for instance, reserves seats for members from the chamber’s committees on Appropriations, Armed Services, Foreign Relations/International Relations, and Judiciary. But the specifics differ: the Senate requires two persons, a majority and minority member, from each of these standing committees, while the House calls for only one member from each standing committee with overlapping jurisdiction. The two panels also differ in size (20 on the House panel and 17 on the Senate counterpart, plus two ex officio members on each), tenure, and other membership features, including partisan composition and leadership arrangements. Since its inception, the Senate panel has had only one more member from the majority party than the minority (a nine-to-eight party ratio); and its vice chairman, who takes over if the chair is unavailable, must come from the minority party. The House select committee, in contrast, reflected the full chamber party ratio when it was established in 1977: two-to-one plus one, resulting in a nine-to-four ratio on the panel. In the meantime, however, the minority party has been given additional seats on the committee; and the party ratio in the full House has grown nearly equal, as has the select committee membership ratio (at eleven-to-nine in the 108th Congress). Secrecy Controls The committees also have different secrecy arrangements regarding controls over their classified holdings. Secrecy oaths distinguish the two chambers. All Members of the House, including, of course, those on the intelligence committee, must swear or affirm not to disclose classified information, except as authorized by the rules of the chamber; the current oath is modeled after a previous one which had been required only for the members of the House Permanent Select Committee on Intelligence. The Senate does not impose a similar obligation on its Members.8 Non-member access to classified materials also separates the two panels. The House committee has a more detailed and exacting set of requirements for nonmembers than its Senate counterpart. In addition, the Senate panel is authorized to disclose classified information publicly on its own (following elaborate procedures in which the President and the full Senate have an opportunity to act). By comparison, the House select committee 7 8 House Rule 3(l), added by H.Res. 5, 107th Cong., Jan. 3, 2001. CRS Report RS20748, Protection of Classified Information by Congress, by Frederick M. Kaiser. CRS-4 cannot do so, if the President objects to its release; in that case, the House itself makes the determination by majority vote. Joint Committee on Atomic Energy as a Model The Joint Committee on Atomic Energy — set up by the Atomic Energy Act of 1946, along with the Atomic Energy Commission (P.L. 79-585) — is often cited as an appropriate organizational model for a joint committee on intelligence, a reference the 9/11 Commission also adopted.9 The JCAE, an 18-member panel composed of an equal number of Members from each house of Congress, held authority to report legislation to the floor of both chambers, a power unique among joint committees.10 Many reasons have been offered for considering the JCAE as a model. These include its: favorable record for keeping highly confidential material secret; largely bipartisan approach to policy-making; considerable unity among its members; close working relationship with the executive in this secretive and sensitive area; consolidated jurisdiction for a growing field; explicit, comprehensive oversight mandate, supported by a then-unprecedented directive that the executive keep the joint committee “fully and currently informed;” and ability to streamline the legislative process in general and to act rapidly, if necessary, in particular instances. Because of these attributes, the joint committee became a formidable congressional panel. In its prime, JCAE was even considered by some as “probably the most powerful congressional committee in the history of the nation.”11 Despite this — or perhaps because of it — the JCAE was abolished in 1977, nearly 30 years after its birth. It was evidently the victim of a number of reinforcing developments: concerns in Congress and outside it about JCAE’s close, some thought cozy, relationship with the executive agency it was overseeing; changing executive branch conditions, such as the breakup of the Atomic Energy Commission into the Nuclear Regulatory Commission and the Energy Research and Development Administration, now the Department of Energy; new rivals in Congress, as the expanding nature of atomic energy and nuclear power extended into the jurisdictions of a number of House and Senate standing committees; efforts in the Senate at the time to realign 9 For background and further citations on the JCAE, see CRS Report RL32538, 9/11 Commission Recommendations: Joint Committee on Atomic Energy — A Model for Congressional Oversight?, by Christopher M. Davis; Harold P. Green and Allen Rosenthal, Government of the Atom: The Integration of Powers (New York: Atherton Press, 1963); and Kaiser, “A Proposed Joint Committee on Intelligence,” pp. 138-141. 10 One caveat to the unique status of the JCAE is the Temporary Joint Committee on Deficit Reduction; it was authorized to report legislation but only on a narrow subject and on a caseby-case basis. In contrast to the JCAE, this joint panel was a short-term, periodic addition to Congress, set up by the Gramm-Rudman-Hollings Act of 1985. The panel could come into existence only when legislation on budget sequestration was needed and was empowered to report only a joint resolution setting forth specified reports from the Directors of the Office of Management and Budget and the Congressional Budget Office. P.L. 99177, 99 Stat. 1037, 1100 (1985). This provision apparently was never activated and was not included in the 1987 revision of GRH. 11 Green and Rosenthal, Government of the Atom, p. 266. CRS-5 and consolidate committee jurisdictions and reduce the number of assignments for each Member; and a relatively high number of vacancies on the JCAE (six of the 18 seats).12 Proposed Joint Committee on Intelligence Characteristics Recommendations to create a joint committee on intelligence have surfaced over nearly five decades, most predating the establishment of the two select committees on intelligence in the mid-1970s. Although many of these suggestions, including that from the 9/11 Commission, have followed the design of the Joint Committee on Atomic Energy, not all have; consequently, the specifics in the blueprints have varied in a number of fundamental ways. Differences extend to: the range and exclusivity of the panels’ jurisdiction; makeup of their membership; selection and rotation of chairmen; possibility of and characteristics of a vice chairmanship; requirements for representation of certain other committees as well as at-large members; special secrecy requirements for members and staff, including a secrecy oath and security clearances; staff size, method of selection, and restrictions on activities; official disclosures of classified information; mechanisms for investigating suspected unauthorized disclosures of such information; and access by non-members to the joint committee’s classified holdings. Even suggested methods of establishment have varied. Methods of Establishment A Joint Committee on Intelligence could be created by a concurrent resolution, a joint resolution, or a regular bill. The Joint Committee on Atomic Energy, for instance, was established by public law through the regular bill process (i.e., the Atomic Energy Act of 1946, P.L. 79-580, 60 Stat. 772). A concurrent resolution has the advantage of requiring only the approval of Congress, while a joint resolution or regular bill must be signed by the President or his veto overridden. A joint resolution or a bill, however, may offer certain benefits over a concurrent resolution. A number of existing provisions in public law, especially ones dealing with intelligence reporting requirements to Congress, designates the House and Senate select committees on intelligence as recipients (e.g., the intelligence oversight provisions and the reporting requirements for the CIA Inspector General, codified at 50 U.S.C. 413-415 and 50 U.S.C. 403q, respectively). A bill or joint resolution, when creating a joint committee, could amend these statutory provisions, whereas a concurrent resolution could not do so directly. But a concurrent resolution, although solely a congressional device, could have the same effect. By changing the rules of both chambers, a concurrent resolution could recognize that the powers, authority, and jurisdiction of the former select committees would be transferred to a new joint committee. 12 Kaiser, “A Proposed Joint Committee on Intelligence,” pp. 140-141. CRS-6 Jurisdiction and Authority A joint intelligence committee could consolidate jurisdiction for the entire intelligence community, extending to all intelligence entities as well as intelligence and intelligence-related activities, including significant anticipated activities (i.e., covert operations). Legislative authority over intelligence could be shared for all entities with overlapping jurisdiction; or, as is now the case in the House and Senate, it could be held exclusively for certain components (e.g., CIA and DCI), while being shared for others. Membership A bicameral body requires equal membership from both the Senate and House. Besides bicameralism, a joint committee on intelligence could be directed to accommodate three other criteria: bipartisanship, representation of specified standing committees, and at-large selection of members. For example, the membership from each chamber could be required to have representatives from standing committees with overlapping jurisdiction (e.g., Appropriations, Armed Services, International Relations/Foreign Relations, and Judiciary), as both the House and Senate intelligence committees do now. This selection might include both a majority and a minority party member from each represented committee. A JCI could also call for a specified number of members selected at-large, as the Senate intelligence panel does now. As an illustration, an 18member JCI could include nine Senators and nine Representatives, with five majority and four minority party members from each chamber. At least one member, but not more than two, could come from each of the four committees with overlapping jurisdiction; this option (a maximum of eight from each chamber) would still allow for one selection at large from each house. By comparison, a larger committee or a panel requiring only a single member from each of the specified standing committees would allow for more members to be selected at-large. Provision could also be made for ex officio members, particularly the majority and minority party leaders from the Senate and the Speaker and minority leader from the House. Terms and Rotation Membership on the joint committee could have no term limits or be given a maximum length of service (six or eight years, as the House and Senate Intelligence Committees have had, or shorter or longer terms). Under term limits, the total time on the committee might be measured either by continuous service or by noncontinuous service accumulated over a specified number of Congresses (e.g., a total of eight years over six Congresses). If a JCI had maximum lengths of service, it could be treated as a temporary assignment, which might not count against other standing committee assignments in each chamber. By comparison, membership on CRS-7 the JCI could be permanent.13 If so, it might be treated as if it were a standing committee in each chamber, counting against other committee assignments. Member terms could also be staggered, so that new members would arrive with each new Congress. Staggered terms, however, would mean that a portion of the original membership could not serve the maximum period, at least not as part of the original composition. Leadership The chair, selected at the beginning of each Congress or each session (as some proposals called for), could alternate between the two chambers and/or political parties. A vice chairmanship could also be established; this officer would replace the chair when he or she is absent (as occurs now on the Senate intelligence committee). The vice chair could be a member of the other body and/or the other political party. Secrecy Controls Various types of secrecy controls could be applied to a joint committee on intelligence to regulate access to its classified holdings by non-committee members, protect against the unauthorized disclosure of classified information, and allow its authorized release. Such controls could set requirements for determining access by non-members; require security clearances, oaths, and/or secrecy agreements for committee members and staff; and provide for investigation of suspected security breaches, conducted by the House and Senate ethics committees. Controls could also spell out procedures for disclosing classified information to which the President objects, either by a joint committee itself, by the joint committee in concert with either or both chambers, or by either or both chambers as the final arbiter. One of five distinct options might be adopted: (1) the joint committee on intelligence could act alone; (2) the panel could act only after one house responded to a request from it to release classified information; (3) the JCI could act only after both houses responded; (4) a single house could disclose the information; or (5) both chambers would have to agree to do so. Currently, disclosure procedures differ between the House and Senate intelligence panels. The House select committee does not have authority to release classified information on its own. The full House must act to disclose it, at the request of its intelligence panel, if the President objects to the release. On the Senate side, the select committee may disclose classified information on its own, after both the President and full Senate have acted.14 It appears that this procedure has not been used by the Senate panel. 13 The 9/11 Commission — referring to both a joint committee on intelligence and a new standing committee in each house — recommended that “Members should serve indefinitely on the committees, without set terms, thereby letting them accumulate expertise.” 9/11 Commission, Report, p. 421. 14 The select committee’s charter provides for three responses from the full Senate to an intelligence committee request to release classified information, if the President objects to it. The chamber can: approve the disclosure; disapprove the disclosure; or “refer all or any (continued...) CRS-8 Staffing The number of staff on a new JCI would presumably be smaller than the combined total for both the House and Senate intelligence committees. Hiring could be accomplished in seven different ways: (1) by the majority party on the full JCI, (2) by the majority party from each chamber on the committee, (3) by full committee vote, (4) by the majority party and minority party separately, (5) by the chair alone, (6) by the chair and vice chair/ranking minority member together, or (7) by individual members (with each legislator selecting a single staff member). Additionally, staff could be selected by a combination of several compatible ways (e.g., individual member selections for some plus committee-wide selections for others). The staff could also be required to meet certain agreed upon criteria set by the committee, such as fitness for the duties and without regard to party affiliation.15 Staffers could be required to have an appropriate security clearance (for Top Secret and access to Sensitive Compartmented Information), as is now mandated by both House and Senate select committees. They could also be directed to sign a nondisclosure or secrecy agreement not to reveal classified information, again a requirement for the staff of both intelligence panels. Budget and Funding The budget for a joint committee on intelligence would presumably be smaller than the combined budgets of the House and Senate intelligence panels. Funding could be shared by both chambers, deriving equally from the contingent funds of the Senate and House. Pros and Cons Differences over the establishment of a joint committee on intelligence tie into practical matters as well as matters of principle. Pros Supporters of a joint committee on intelligence argue that it would make for a more effective and efficient overseer than the current arrangement, which the 9/11 Commission concluded “is now dysfunctional,” because of limitations on the two 14 (...continued) portion of the matter back to the committee, in which case the committee shall make the final determination with respect to the public disclosure of the information in question.” Sec. 8(b)(5), S.Res. 400, 94th Cong., 2nd sess. 15 The 9/11 Commission, for instance, recommended that the “staff of this committee should be nonpartisan and work for the entire committee and not for individual members.” 9/11 Commission, Report, p. 420. CRS-9 select committees.16 According to its proponents, a single joint committee, housing fewer members and staff than the two existing ones combined, would: 16 ! Strengthen oversight of intelligence for four primary reasons. The executive would be more open and forthright with a single, small oversight body than with two with a larger combined membership; the legislators and staff on the JCI, recognizing that there is no other authorizing panel to conduct oversight, would attach a greater importance to this responsibility; a committee composed of legislators from both chambers could better integrate and take advantage of congressional expertise and experience in the field; and a JCI could be established with fewer restraints and restrictions than the separate select committees now have. ! Improve coordination, cooperation, and comity between the House and Senate and among other relevant committees (with overlapping jurisdiction) in both chambers. A joint committee could serve as a conduit of information and advice and as a facilitator for policy formulation between the two chambers as well as between the political parties; a JCI could also encourage mutual respect and trust between the chambers and parties; this could occur by treating all of its members equally in committee leadership posts and voting, by merging the stands of Members of both houses in committee deliberations and decisions, by taking a joint committee consensus on legislation, endorsed by Members of both chambers, to the floor of each house, and by providing an opportunity for House Members to be involved, if only marginally and informally, in a Senate function (i.e., confirmation of presidential nominees). ! Streamline the legislative process, because only one committee, rather than two, would have to consider and report legislative proposals and authorizations to the floors of both chambers; members from the same joint committee, moreover, might comprise all or a majority of the membership of conference committees, which might be less necessary in the first place because of the bicameral, bipartisan makeup of a joint committee. Competing views on a joint committee on intelligence are available from Members and committees of Congress, among other sources. Supportive arguments are included in: U.S. Congress, Senate Temporary Select Committee to Study the Senate Committee System, Report (Washington: GPO, 1984), pp. 13-14; Sen. Howard Baker and Rep. Henry Hyde, statements before the Temporary Select Committee, Senate Resolution 127, To Study the Senate Committee System (Washington: GPO, 1984), part I, pp. 5-11 and part 2, pp. 83-85; Rep. Henry Hyde, statement before the Joint Committee on the Organization of Congress, Committee Structure, hearings, 103rd Cong., 1st sess. (Washington: GPO, 1993), pp. 832-841; and Minority, Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition and House Select Committee to Investigate Covert Arms Transactions with Iran, Report, S.Rept. 100-216 and H.Rept. 100-433, 100th Cong., 1st sess. (Washington: GPO, 1987), p. 583. CRS-10 ! Respond rapidly to investigate a major development, when conditions dictated. ! Increase the stature of overseeing and legislating on intelligence matters and, thus, make serving on an intelligence panel more attractive and important than on either select committee. This could result from making the joint committee the equivalent of a standing committee, by granting it permanency and authority to report legislation to each chamber and giving the members indefinite tenure. A JCI with these characteristics would be unique in the current era, the first of its kind since 1977, and apparently one of only a few in the history of Congress, also elevating its stature. ! Make for more efficient government. A single panel, versus two, would probably reduce the amount of time that the Administration and intelligence officials would spend on Capitol Hill testifying, briefing, notifying, and meeting with members and panels. ! Improve the protection of classified information in Congress’s possession. A smaller number of legislators and staff on a joint committee would have access to it and a single office would be easier to secure. ! Encourage trust between Congress and the Executive in this sensitive field. This could occur by reducing the number of panels, Members, and staff with access to such highly classified information and by easing the cooperative relationship between the branches by way of a single committee, instead of two. ! Pinpoint responsibility in Congress for oversight and legislation affecting intelligence, thereby avoiding any confusion or uncertainty about it. ! Cut back the total number of committee seats for legislators in the House and Senate combined, by replacing the two panels with a single committee with fewer seats; for instance, a new 18-member joint committee with nine Senators and Representatives would be half the size of the combined total of 37 on the two select committees. The replacement would modestly help reduce the number of legislators holding too many committee assignments and/or being “spread too thin.” Reducing the number of seats available for Representatives and Senators would allow them to concentrate on one less committee assignment. ! Reduce costs, because of fewer staff and a single suite of offices. Cons Critics of proposals for replacing the current House and Senate intelligence committees with a single joint committee contend that it would weaken oversight and CRS-11 compromise a fundamental feature of the Congress, namely, two different (and sometimes competing) bodies.17 As viewed by its opponents, a JCI would: 17 ! Adversely affect oversight of intelligence. This would occur by reducing the number of legislators and staff who have an incentive and opportunity to conduct oversight and by reducing the number of separate panels, with different characteristics and incentive structures, to conduct it; in this regard, the number of committees to which the President reports covert action plans is now only two (the select committees on intelligence), having been reduced from eight in 1980, at the request of the executive. ! Undercut the legislative benefits (e.g. longer deliberation time and different viewpoints) of relying on two committees from separate and distinctive chambers. This usual situation allows two panels — each reflecting different chambers, types of constituencies, and electoral schedules — to examine the same legislation and authorizations and conduct oversight from different vantage points, based on their own priorities and demands; the loss of a second view would be felt not only in the initial committee deliberations but also in later conference committee action, which might be dominated by joint committee members. ! Cause a loss in continuity, stability, and experience. This would be especially evident in joint committee leadership, if the chair (and ranking member or vice chair) rotated every two years; this in turn would make membership on the joint committee less desirable than on other panels; the turnover could also extend to staff, because of the frequent change in leadership; finally, this loss of stability and experience could hamper Congress’s ability to influence public policy and compete with the executive. ! Result in a more acute impact on Congress if a joint committee develops a close and supportive relationship with the executive entities it oversees, rather than a neutral and critical one. With a single panel, Congress would have only one locus for oversight and checks on the executive, not two; if this happens, the impact on Congress, on oversight, and on legislation would be more extensive Criticisms and concerns are voiced by Rep. Dan Glickman, Rep. Larry Combest, and Sen. Dennis DeConcini, statements before the Joint Committee on the Organization of Congress, Committee Structure, hearings, 103rd Cong., 1st sess., pp. 64-79 and 406-412; Rep. Larry Combest, Chairman of the House Permanent Select Committee on Intelligence, “IC21 — The Intelligence Community in the 21st Century, The Intelligence Community Act of 1996,” Mar. 4, 1996, p. 7; U.S. Congress, House Permanent Select Committee on Intelligence. IC21: Intelligence Community in the 21st Century (staff study), committee print, 104th Cong., 2nd sess. (Washington: GPO, 1966), pp. 316-318 and 328; House Select Committee on Committees, Final Report (Washington: GPO, 1980), p. 416; and Majority, Senate and House Select Committees Investigating the Iran-Contra Affair, Report, p. 427. CRS-12 and significant, because of the absence of a possible balance from a second committee. 18 ! Operate contrary to the long-term tendency to end reliance on joint committees, either by abolishing them or not establishing them in the first place.18 A JCI, if authorized to report legislation to the floor of both houses, would be unique currently; it would be the only such empowered joint committee since 1977 (when the JCAE was abolished), and one of the few in the history of the Congress; a joint committee on intelligence would also raise the prospect of similar panels for other policy areas, including homeland security, which have wide-ranging jurisdictions that cross a number of executive agencies and programs along with congressional committee jurisdictions. ! Harbor uncertainty regarding confirmation of presidential nominees. It might be unclear whether House Members should play any role at all in the process or, if so, perhaps only at certain stages (e.g. initial meetings and interviews, background investigations, formal hearings). ! Artificially make the political parties equal or nearly so. This could occur, even though the differences in party ratios in each chamber could be substantial, as they have been in the past. ! Artificially make the two chambers equal on the joint committee. The number of Members from each chamber would be the same, even though the House is more than four times larger than the Senate; because of this situation, Representatives would have proportionately fewer opportunities to serve on a joint committee than Senators. ! Cut back the possibility of serving on an intelligence panel for all Members of Congress, especially if there are no term limits on JCI membership. This reduction in numbers would, in turn, reduce the diversity and representational characteristics of the membership compared to two separate committees. ! Bring about a change in the different jurisdictions that the current select committees now hold. The House panel having a broader jurisdiction than its Senate counterpart. The 9/11 Commission (p. 421), for instance, did not advocate a joint committee for homeland security. Instead, it called for consolidating jurisdiction in a permanent standing committee in each chamber. For additional discussion on such a transformation, see CRS Report RS21901, House Select Committee on Homeland Security: Possible Questions Raised If the Panel Were to Be Reconstituted as a Standing Committee, by Judy Schneider. CRS-13 ! Not necessarily improve protection of classified information over the current two select committees. Their controls over it are exacting and their reputations in this regard are good; a JCI could also require new procedures for the public release of classified intelligence information held by the joint committee; this would raise the prospect of (and cause disagreement over) whether the joint committee alone could do so, whether one chamber could do so, or whether both houses must act together as the final arbiter. ! Add confusion and conflict over investigations of suspected unauthorized disclosures of classified information. This could arise, for instance, if the ethics committee from one chamber conducted investigations which involved Members of the other body, even if only tangentially and in an initial inquiry. ! Raise practical difficulties in setting meeting schedules, times, and locations for panel members from two different chambers of Congress. Alternatives to a Joint Committee There are other options which might increase and improve congressional oversight of intelligence. These changes, both formal and informal, would have an impact on the structure of the current select committees on intelligence, as well as implications for the relationship between the new panels, if approved; between each one and other committees and Members in its chamber; and with the executive. Changing the Select Committees Most direct and immediate among the options would be ways to enhance the status, stature, and resources of the existing select committees on intelligence or replace them with standing committees.19 This might be accomplished through several avenues: ! 19 grant the current select committees status as standing committees, along with indefinite tenure for their membership, to reduce The 9/11 Commission emphasized the need for “substantial change” in congressional oversight, either by establishing a joint committee or by creating “a single committee in each house of Congress, combining authorization and appropriating authorities .... “ Each panel would be a standing committee and hold subpoena authority. The membership would be relatively small and serve without term limits. Its composition would be nearly equal between the parties, with the majority having only one more member than the minority, and representing four panels with overlapping jurisdiction (i.e., Armed Services, Judiciary, Foreign Affairs, and the Defense Appropriations Subcommittee) with one seat each on the new committee. 9/11 Commission, Report, p. 420-421. For further information and analysis, see CRS Report RS21908, Senate Select Committee on Intelligence: Term Limits and Assignment Limitations, by Judy Schneider. CRS-14 turnover; increase experience, stability, and continuity; and make membership on the panel more attractive; ! expand their authority, giving them power to report appropriations as well as authorizations and to hold subpoena authority on their own; ! add professional staff, especially in fields where the panels might require new or expanded expertise and skills; and ! increase use of the Government Accountability Office, formerly the General Accounting Office, and other congressional support agencies, to augment the staff capabilities of the current committees or their successors.20 Concerns. This set of changes, producing a restructured intelligence committee in each chamber, might also generate concerns and criticisms. A standing committee — smaller than the existing select committees in each chamber, with representation from four standing committees with overlapping membership and indefinite tenure for its members — would substantially reduce: the number of Members in each chamber serving on such a panel at any one time; the number of at-large seats available; the number of vacancies available over time; and, thus, the likelihood of a Member finding a seat on the committee. These changes in tandem could also lead to fewer former members from the committee, thus, reducing the ability of the full chamber and non-members to be knowledgeable about how the intelligence community operates and intelligence policy; and it could result in a decline of the ability to question if not challenge the committee. Arguably, this could result in a more likely prospect of a closed system, making it easier for the intelligence panels to dominate the agenda and debate in their respective chambers and in the full Congress. A second set of cautions might surround the proposed new authority, particularly, adding appropriations to its authorizing control and independent subpoena power. Such subpoena authority, which could cover either or both materials and individual testimony, would be held (and used) without needing approval in each instance by the chamber. This might be seen as infringing on an 20 Most significantly, GAO is limited in its independent authority to audit and investigate the CIA, which apparently is off-limits to the Office because of provisions in public law and congressional rules. The CIA, however, is the only intelligence component which makes such an across-the-board claim. See U.S. General Accounting Office, Central Intelligence Agency: Observations on GAO Access to Information on CIA Programs and Activities, statement by Henry J. Hinton, GAO-01-975T (Washington: GAO, 2001); U.S. House Government Reform Subcommittees on Government Efficiency and on National Security, Is the CIA’s Refusal to Cooperate with Congressional Inquiries a Threat to Effective Oversight of the Federal Government, hearings, 107th Cong., 1st sess (Washington: GPO, 2001); Frederick M. Kaiser, “GAO Versus the CIA: Uphill Battles Against an Overpowering Force,” International Journal of Intelligence and Counterintelligence, vol. 15 (2002), pp. 330-389; and CRS Report RL30349, GAO: Government Accountability Office and General Accounting Office, by Frederick M. Kaiser. CRS-15 important full-chamber power and removing a check on this particular committee, which would be already subject to fewer constraints than the current select committees have. The addition of appropriations approval would apparently produce a unique situation in the contemporary Congress and a rarity in its entire history. Enhanced by this new power, the panel might be perceived as too powerful. It would hold two impressive and reinforcing authorities and would no longer be subject to a check and competition from a significant outside source (i.e., the Appropriations Committee in its chamber). At the same time, the change would remove an important part of the Appropriations Committee’s jurisdiction; and it might encourage other authorizing committees to request the same treatment, that is, control over appropriations along with authorizations. Although the appropriations and authorization processes are parallel to one another, they are not identical and not always reinforcing or complementary to one another. The augmented authority could result in substantially more work for the intelligence committee in each session, with the need to “scrub” the intelligence budget twice each year. Or, alternately, it could result in less detailed examination of the appropriations and authorization, if each occurs only in alternative sessions within a single Congress. The potential increase in the panel’s workload could have two adverse ramifications: (1) short-change either the appropriations or authorization process, or both, or (2) reduce the panel’s time for other legislative and oversight efforts. Coordination Between the Two Intelligence Panels Such changes would affect the intelligence committees’ individual structure and powers. Others could be designed to increase coordination and shared responsibility between the two panels — so as to avoid duplication, encourage cooperation, develop working relationships across chambers, enhance understanding, and share expertise, information, and knowledge — while at the same time, maintaining the distinct characteristics of each panel. These might include joint hearings and crosscommittee leadership meetings, which may already exist on a regular basis. Joint Hearings. One option along these lines is to schedule joint hearings for relatively routine and regular matters, such as the initial annual authorization briefings from the Executive. Another opportunity for a joint session would occur when the inspectors general in the intelligence community, especially at the CIA, submit their semiannual reports to Congress. These shared enterprises could allow the combined membership to receive the same information and data as each panel would individually, establish working relationships among the two groups of members, encourage cross-fertilization among them, and reduce duplication for the Executive. Of course, followup hearings could be handled separately by the two panels and may even be stimulated by such joint efforts. The shared experience over the initial budget submission could also help to avoid duplication of effort over some modest matters, while helping to set priorities for more significant ones. CRS-16 Joint hearings could also be conducted into critical events, as they were with the select intelligence committees combined inquiry into 9/11 attacks.21 Another example of an inquiry with panels from both chambers was the Iran-contra affair, an investigation conducted by two temporary committees working together and issuing a joint report.22 Leadership Meetings. Another means of encouraging inter-chamber cooperation is for the leadership of the two panels to meet regularly, to discuss issues, concerns, and priorities (recognizing, of course, the practical and political limitations on such exchanges). These efforts might include only the full committee chairs or might extend to subcommittee heads, and majority and minority members. These sessions could be supplemented by meetings of senior staff on both panels, at the direction of the leadership. Whatever the arrangement, a number of different opportunities exist to enhance awareness of common concerns and cooperation in examining them between the two panels. Constraints on Coordination. Coordination between two panels from different chambers may encounter practical and political problems. Scheduling meetings and hearings, especially if a large number of members are involved, for instance, runs into several hindrances. These include different priorities and meeting arrangements for each committee; competing chamber and committee responsibilities for members, especially Senators, each of whom serve on more committees than Representatives; and different electoral and campaign requirements, which affect the demands on Members and the time they spend in the Capital. In addition, rival political affiliations and policy stands, along with competition between the chambers for influence over public policy, might make cooperative ventures few and farbetween. Interchanges with Other Panels and Members Besides increasing the powers of each panel and their cooperative ventures, another approach might be considered: ease the exchange of information with noncommittee members and allow for more oversight by other committees. Along these lines, the 9/11 Commission wrote that the “new committee or committees should conduct studies of the activities of the intelligence agencies and report problems relating to the development and use of intelligence to all members of the House and Senate.”23 Goals. This change could reduce the challenge of intelligence oversight on the select committees, bring different viewpoints be bear on intelligence matters, expand 21 U.S. Congress, Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence, Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, S.Rept. 107-351 and H.Rept. 107-792, 107th Cong., 2nd sess. (Washington: GPO, 2002). 22 U.S. Congress, Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, and House Select Committee to Investigate Covert Arms Transactions with Iran, Report on the Iran-Contra Affair, S.Rept. 100-216 and H.Rept. 100433, 100th Cong., 1st sess. (Washington: GPO, 1987). 23 9/11 Commission, Report, p. 420. CRS-17 the knowledge of Members not on the panels, and allow for their informed judgments on intelligence policy and programs as well as on committee activities and operations. Strict controls over the classified information would have to be maintained. But the current committee rules — which on the House side are more stringent than on any other committee — might be modified to accommodate additional sources for review and oversight; such a revision could begin with a comparison to access controls by other panels, particularly the committees with overlapping membership. In addition, House and Senate chamber rules authorizing secret or closed sessions might be used more often to allow for an open exchange of information from the intelligence committees to all the Members. Along with this, committee members might be allowed to present “declassified” versions of sensitive or otherwise classified reports to their colleagues, in secret sessions or not. Techniques. Several potential techniques to expand non-committee involvement and non-member information are: ! ensure that relevant information is appropriately and expeditiously shared with committees with overlapping membership; ! give greater allowance for other committees to conduct oversight of intelligence components, activities, and programs, including standing committees without overlapping membership;24 ! ease access for non-members to intelligence committee holdings, by reducing the exacting requirements over the availability of the classified; ! encourage the intelligence committees, on their own initiative, to share information as appropriate with the full membership of their house; and ! make more information available to non-members by securing declassification of certain intelligence reports or by providing classified and declassified versions of IC reports (for the committees and for the general membership, respectively); the agencies proper or their inspectors general (charged with preventing and detecting waste, fraud, and abuse) could do either or both, possibly at the request or directive of the intelligence committees. Limitations. Interchanges between the intelligence committees, on the one hand, and other panels and Members, on the other, might be limited for several reasons. Concerns about the unauthorized disclosures of classified information might be raised as the possibility of leaks rises, because of the increased number of individuals with access to sensitive information. Along with this, intelligence agencies would likely be reluctant to respond to congressional requests for sensitive and classified information, even from the intelligence committees, if the agencies 24 See especially House Subcommittees on Efficiency and on National Security, CIA Refusal, 2001. CRS-18 anticipate that all or some of it will be disclosed outside the sequestered intelligence committee rooms, possibly to the floors of both houses. Another possibility, which might retard information-sharing by the intelligence committees, could be a concern about a reduction in their control over the intelligence agenda and debate. As more Members and panels became familiar with the relevant information and policies, more questions might arise relating to the committees’ policy positions. This development might be seen as weakening the committees, a condition that might reduce their (and, in turn, Congress’s) influence over intelligence agencies and policies in dealings with the Executive. Observations on Oversight of Intelligence Obstacles to Oversight Congressional oversight of intelligence meets obstacles that are not usually present in other areas. Secrecy Constraints. The most significant constraint is the high degree and pervasiveness of secrecy surrounding intelligence policy, information, activities, operations, resources, and personnel. For Congress, this means that the legislature, its committees, and its Members are circumscribed in a number of ways: what they know; who receives the information and how; who provides it and in what form and detail; what can be shared with other Members and panels and how; and what nongovernmental outside sources can contribute to legislators’ knowledge, to what degree, and in what ways. The secrecy imperative also results in a system that is often closed to outsiders — not just the general public but also Representatives and Senators who do not have seats on the select committees on intelligence. The secrecy requirement is evident in the restrictions on access to and disclosure of classified information in the panels’ custody as well as on restraints covering what the select committee members themselves can discuss. The access restrictions slow down or stop access by nonmembers; the demanding procedures may also deter requests in the first place, thus, having a “chilling effect” on some non-members. As noted above, other secrecy controls extend to the Government Accountability Office, Congress’s chief audit and investigative agency. The impact and implications of secrecy are extensive and arguably burdensome. The 9/11 Commission summarized the effects this way: “Secrecy stifles oversight, accountability, and information sharing.”25 Appeal of Intelligence Oversight. Along with this is the apparently limited appeal of overseeing intelligence and making intelligence policy, including 25 9/11 Commission, Report, p. 24. CRS-19 authorizing the budget. Congressional efforts here remain largely hidden and have only marginal direct effects on Members’ constituencies and their districts or states.26 Overcoming the Obstacles Objectives and Goals. The upshot of these limitations on Congress’s oversight of intelligence is that it is significantly more difficult than in other fields; and the usual incentives for Members to serve on certain committees and conduct oversight appear to be more modest or non-existent for intelligence. Steps have been advanced to increase Congress’s capacity to overcome these hurdles. Prospects along this line include increasing the appeal of serving on an intelligence panel; enhancing the expertise and knowledge of the members, both on and off the panels, and staff; reinforcing the shared responsibilities between the intelligence committees, on the one hand, and the panels with overlapping memberships, on the other; changing the relationship between the two chambers on intelligence matters, which could occur through a joint committee or through increased contacts between the existing committees; and developing a connection between Congress and the Executive that lends itself to more effective oversight. The Joint Committee Approach and Alternatives. Growing out of this are a number of recommendations to strengthen oversight of intelligence, which have arisen since the genesis of the modern intelligence community nearly sixty years ago. Recent ones have come in 2004, from the 9/11 Commission, which proposed two separate alternatives: an intelligence committee in each house with enhanced powers or a joint committee on intelligence. Over the years, however, the drafts for a JCI have differed in important respects: membership, leadership, jurisdiction, authority, staffing, and controls over classified information, among other matters. In addition, rationales for a JCI have met with competing objections and concerns. Finally, various other options — including modifying the powers and procedures of the House and Senate intelligence committees — continue to play a role in considering changes for congressional oversight of intelligence. 26 Ibid., pp. 420-421.