Intelligence_ From Secrets to Policy - Mark M. Lowenthal [163]
Despite the difficulty that Congress and the executive branch have experienced in making legislative changes, they offer the advantages of being permanent, of being statutes in law and therefore more enforceable, and of allowing Congress a major and proper role. However, legislation is more likely to raise major disputes between Congress and the executive branch and thus is more difficult to enact. Congress is also more likely to harbor several points of view on major intelligence issues than is the executive branch, where the major issues tend to be agency-parochial in nature. This divergence of views within Congress was evident during the debate on the 2004 intelligence reform bill.
Given the more permanent nature of legislation, some people question whether certain regulations should not be made statutory largely because the actions they cover are embarrassing or inappropriate. However, if legislation lists proscribed activities, does it implicitly permit those activities that are not listed? No one wants to or is likely able to come up with a comprehensive list of activities that should either be explicitly permitted or banned. Moreover, some activities will likely enter into a gray zone of interpretation. The debate over torture—or, more correctly—what constitutes torture, is a good example. Few people would advocate the use of torture. Moreover, torture is specifically banned in the Constitution. The Eighth Amendment bans “cruel and unusual punishment.” But few people would be comfortable going over a list of techniques and then choosing which ones should be specifically permitted in legislation.
The parameters of congressional oversight are usually not dealt with in legislation. All congressional committees are created as part of the rules of the House and Senate. The same is true for jurisdiction and membership. The National Security Act does specify types of intelligence information that have to be shared with Congress, such as that relating to covert action, but the law is written as a requirement levied on the executive. During the debate over the 2004 legislation some suggested combining the two intelligence committees into one joint committee, an old issue, for reasons of security and to reduce the time executive officials have to spend testifying, often on the same subject, before more than one committee. As has been the case in the past, congressional organization was not legislated and was left to the respective chambers.
THE ISSUE OF CO-OPTION. As eager as Congress is to be kept informed about all aspects of policy. a cost is incurred when it accepts information. Unless members raise questions about what they are told, they are, in effect, co-opted. Their silence betokens consent, as the maxim of English law says. They are free to dissent later on, but the administration will be quick to point out that they did not raise any questions at the time they were briefed. Having been informed before the fact tends to undercut Congress’s freedom of action after the fact.
This dynamic is not unique to intelligence, but intelligence makes it somewhat more pointed. The nature of the information, which is both secret and usually limited to certain members, makes co-option more easily accomplished and has more serious consequences. It also puts additional pressure on the members of the intelligence committees, who are privy to the information and are acting on behalf of their entire body.
Congress has no easy way to avoid the inherent exchange of foreknowledge and consent. It is unlikely to revert to the trusting attitude expressed by Senator Saltonstall. Nor can Congress be expected to raise serious questions about every issue