Targeted Killing

Observations About Targeting and Congressional Intelligence Oversight

By Matthew Waxman
Sunday, February 17, 2013, 5:06 PM

The recent controversy about the Justice Department White Paper and the closely related Senate confirmation hearings for CIA director-nominee John Brennan have raised the profile of congressional intelligence oversight.  A brief summary of some of these issues is this Politico article, and for those interested in a great general analysis of intelligence oversight and its challenges, I recommend the book Eyes on Spies: Congress and the United States Intelligence Community, by my fellow Hoover Institution National Security and Law Task Force member Amy Zegart.  Here are a few observations to think about.

Congressional oversight of covert programs is sometimes thought to be especially weak because although the President is required to keep the intelligence committees informed of significant intelligence activities and to notify them of covert actions, the relevant statutes are ambiguous as to how much detail the President must provide and the committee members then have limited leverage to object.  Much of the “law” of congressional intelligence oversight also consists of customary practices worked out between the executive and legislative branches, and special arrangements negotiated for particular programs.

Against that backdrop, debates about drones and targeted killing sometimes include calls for consolidating their use entirely under DoD/military control, often on the assumed grounds that military operations entail stronger oversight and accountability.  As a general matter, I don’t think that’s always true, but in any event I was struck by this article by Josh Gerstein of Politico which reports very frequent intelligence committee scrutiny of CIA drone strike records and videos – scrutiny of the sort that, so far as I’m aware, rarely occurs for DoD military operations (if I’m wrong about that latter point, I welcome feedback from knowledgeable readers).  [Update: In response to a helpful comment, I should clarify my last point: there is generally continuous armed services committee oversight of DoD operations, and this has included special reporting procedures for counter-terrorism operations, but my point here is that the information exchanges described in this article by the intelligence committee chairs seem to be of abnormally high frequency and granularity].

It’s true that congressional intelligence oversight is often weaker than it is in other areas of public policy, and it’s difficult and rare for Congress to pass binding legislation that restricts intelligence operations.  The DoJ document controversy and the sometimes-testy Brennan confirmation process and delayed vote show, however, that members of Congress can exact political costs on executive branch intelligence programs, even if they have little chance or interest in formally legislating.  In theory intelligence committee oversight is supposed to operate as a substitute for public accountability (because of the secrecy of intelligence programs), but the combination of investigative journalism and congressional scrutiny in this case also demonstrates how some of the many-dimensional constraints on presidential action that Jack discusses in his recent book sometimes operate best in tandem.  As Zegart notes in this New Republic article critical of congressional oversight of targeting programs: “The juice the committees get is from public support. To the extent that the committees are focusing public attention on intelligence issues, they have a lever in negotiations with the executive branch.”