Homeland Security forum

There is rarely a time that goes by that there is not some discussion in the news of how to establish the critical balance between privacy and national security. In fact, for some, it is not a matter of balance. They would advocate that we err on ensuring that the nation is secure no matter the infringement upon privacy rights; or conversely that the right to privacy trump all other endeavors, including national security. However, most contend that there is indeed a balance between the two, but it remains a significant challenge to determine exactly what that looks like.

This challenge is particularly prevalent in the intelligence field. As you have learned, much of what occurs in the intelligence field in conducted in secrecy. While the inputs to the intelligence process may very well be open source material that everyone can access, once analyzed and combined the intelligence products contain very sensitive and guarded information of national significance.  However, the U.S. is a democracy that embraces the ideals of government transparency and the protection of constitution rights. As such, congressional oversight of intelligence activities is employed to ensure these ideals are upheld.

Congressional Oversight

It is not difficult to imagine that the intelligence community and congress can often find themselves at odds with one another. This is in part due to the fact that congress has three distinct mechanisms by which to mange the IC:

1. Controlling Resources

2. Passage of new legislation

3. Release of information to the public

Controlling Resources: Like all agencies, Congress is responsible for the review and authorization of funding for intelligence agencies. The power for Congress to do this function comes from the Intelligence Authorization Act. By controlling the funding, Congress can effectively threaten to withhold funding from the IC until the IC is able to thoroughly justify their needs and proposed expenditures (Riley & Schneider, 2010).

Passage of New Legislation: Another function that Congress exerts over all agencies, including the IC, is legal in nature. Congress is charged with ensuring that new legislation is passed that “authorizes, constrains, or otherwise affects the operations of the intelligence agencies”. Therefore, Congress has the ultimate ability to control the actions that the IC is legally allowed to execute.  The IC does not grant their rights or powers (Riley & Schneider, 2010).

Release of Information to the Public: Senate Resolution 400 created the Senate’s intelligence oversights committee and also provides for the ability for Congress to declassify information for public release. This action has never been executed, although the ability for Congress to do so remains a power (Riley & Schneider, 2010).  

Events Leading to Congressional Control

Interestingly, Congress did not always have the powers over the IC that they do today. In fact, there were several events that lead to this current relationship. Historically, oversight of intelligence was left to the executive branch until 1947 when the CIA was created along with the National Security Council (NSC).  Once this occurred, the Armed Services Committee and the Appropriations Committee conducted oversight activities. However, it was widely acknowledged that no real Congressional oversight occurred during this period as the intelligence agency reports provided to lawmakers were lacking in any needed detail and lawmakers showed little interest in managing the intricacies of intelligence activities (Riley & Schneider, 2010). 

Several events occurred that made stricter oversight a necessity, including the U2 incident of 1960, the 1961 Bay of Pigs Invasion and the Vietnam War. However it wasn’t until the mid 1970s, when articles surfaced in the New York Times on CIA violations that Congress got involved by holding several commissions and investigations. Ultimately this led to three critical actions:

1. The creation of House Permanent Select Committee on Intelligence (HPSCI)

2. The creation of the Senate Select Committee on Intelligence: Oversight Subcommittee (SSCI)

3. The passage of the Foreign Intelligence Surveillance Act (FISA), Public Law 95-511 (October 25, 1978)

The SSCI and HPSCI remain today as the primary committees that provide oversight to U.S. intelligence activities (Riley & Schneider, 2010). 

Foreign Intelligence Surveillance Act (FISA) and FISA Court

FISA plays a very unique role in that it essentially creates a “set of rules”

References

Riley, J. & Schneider, M.K. (2010). Congressional oversight of U.S. intelligence.  In Homeland security and intelligence, edited by Logan, K. Santa Barbara, CA: Praeger Security International. Retrieved from 

http://ezproxy.apus.edu/login?url= http://psi.praeger.com/doc.aspx?d=/books/gpg/C9095C/C9095C-1079.xml