Intelligence Oversight Priorities for the 116th Congress

Most recently, the 115th Congress – and its challenges in conducting inquiries into Russian interference in the 2016 election – has provided examples of both what happens when intelligence oversight is conducted in a rigorous, bipartisan manner and, conversely, what happens when bipartisan cooperation and coordination break down. The 116th Congress, in session as of January 3, 2019, will be presented with extremely significant matters of national security. These include but are not limited to: aggressive influence activities of hostile foreign nations, including cyber operations; expanding influence of authoritarians and far-right populism, and the role of digital technologies in attempts to undermine liberal democracies; increased displacement of populations fleeing terrorism, violence, and economic instability; and continued threats from international terrorist actors and organizations. The intelligence committees, in particular, will need to determine how to apply the time and resources of members and staff in alignment with the most pressing priorities. This will be no easy task.

Background on Congressional Intelligence Oversight

The Senate Select Committee on Intelligence (SSCI) and House Permanent Select Committee on Intelligence (HSPCI) were created in 1976 and 1977, respectively. The committees were created as a result of substantial exposure of intelligence community abuses after the Watergate era. Comprehensive congressional investigations documented the abuses, and Congress acted on recommendations to establish specific committees of oversight.

The work of the intelligence committees is conducted largely in a classified setting, primarily through hearings, statutorily required reports, investigations, formal and informal briefings, and correspondence. The committees continually assess whether the intelligence community has the legal authority it needs to protect the nation and whether it has sufficient financial resources to do its job. They also authorize the annual intelligence community budget, the National Intelligence Program.²

The committees spend considerable time focused on whether the intelligence community is conducting its work lawfully and in accordance with protection for privacy and civil liberties. Much of the committees’ work that has been publicly visible since the September 11, 2001, attacks has related to surveillance law. As noted in the SSCI’s biannual report on its oversight activities, beyond the major investigation into Russian influence activities, its intelligence oversight activities in the 115th Congress included considerable time on matters pertaining to cybersecurity, culminating in the enactment of the Cybersecurity Information Sharing Act of 2015.³ Given the pervasiveness of cybersecurity threats to national security and the lack of a dedicated cybersecurity committee in Congress, the SSCI assumed significant responsibilities to evaluate cybersecurity issues over the past two years. The SSCI also conducted a wide range of oversight activities, addressing subjects including regional issues, emerging threats, and intelligence community matters such as surveillance, classification, and workforce management.⁴ As outlined in the HSPCI’s biannual report on its oversight activities, the House committee worked on surveillance legislation, considered matters relating to China, and conducted additional oversight activities not available in the public report.⁵ Both committees facilitated the development of intelligence authorization acts.

Throughout the 1990s, several outside reports concluded that congressional intelligence oversight needed improvements.⁶ The committees’ early years were challenging, as the workforce and community leadership adapted to outside oversight. Yet, according to former Director of Central Intelligence Robert Gates in 1993,

Congressional oversight, in the eyes of the intelligence professional, is a protection against the misuse of the Agency by executive authority; and congressional review of our intelligence publications and analysis helps guard our objectivity. Intelligence professionals believe that effective oversight is vital if intelligence is to have a future in this most radically democratic country in the world.⁷

In its 2004 report, the 9/11 Commission lamented that “the unglamorous but essential work of oversight” of the intelligence community “ha[d] been neglected.”⁸ In 2007, the SSCI held an open hearing regarding how intelligence oversight is conducted and sought outside views on how it could do its work more effectively.⁹ Congressional intelligence oversight has continued uninterrupted in the intervening years, but the work of the committees is mostly conducted outside the public view. As a result, the public – and even members of Congress who do not sit on the committees of expertise – may have a limited understanding of the substance and effectiveness of the committees’ work.

Proposing an Intelligence Oversight Agenda for the 116th Congress

This brief has been developed to focus the wide range of challenges the Senate Select Committee on Intelligence (SSCI) and House Permanent Select Committee on Intelligence (HPSCI) could face as part of their work in the 116th Congress and boil them down to three specific areas requiring attention.¹⁰ The proposed priorities offered are not an effort to catalogue all the dozens of important issues that the committees could theoretically take up; instead, given the limits on member and staff time and resources, these proposed oversight efforts focus on a select set of issues. These recommendations are in addition to two main bodies of work the committees are already engaged in: routine development of the intelligence budget¹¹ and the ongoing investigations into Russian influence on the 2016 election and related matters. Long-term strategic issues regarding the conduct and future of the intelligence community, however, cannot be neglected. To that end, the committees should carve out space, time, and resources to meaningfully engage on three specific topics: assessing the intelligence community’s effectiveness in providing warning of Russian influence activities targeting the 2016 election and beyond; protecting intelligence community data, sources, and methods; and evaluating the intelligence community’s handling of information concerning the murder of Jamal Khashoggi.

Assessing the Intelligence Community’s Effectiveness in Providing Warning of Russian Influence Activities Targeting the 2016 Election and Beyond

A fundamental role of the intelligence community is to provide warning to policymakers regarding present and future threats to U.S. national security.¹² The January 2019 National Intelligence Strategy discusses the role of “anticipatory intelligence,” which includes the duty of providing “warning of threats to U.S. interests” as its second-highest priority.¹³

The Russian efforts to affect the 2016 election presented a threat to the effective functioning of U.S. democratic institutions, processes, and civic discourse. That threat is now known to have continued through the 2018 midterm elections to the present day. An uncomfortable but necessary reflection on what has been uncovered by inquiries into the 2016 Russian effort is whether the intelligence community appropriately identified and warned of the threat of Russian influence in the 2016 election in time for action to be taken. In a speech on cyber doctrine held at the Center for a New American Security on December 7, 2018, SSCI Vice Chairman Mark Warner characterized the event as an intelligence failure, according to his informed judgment.¹⁴ But there is not yet sufficient information on the public record for outside observers to make a definitive judgment as to whether the intelligence community failed to warn policymakers with sufficient timeliness, whether policymakers failed to take sufficient action, or a combination of the two.

Later this year, in the Senate, the SSCI will complete its comprehensive, bipartisan investigation of Russian influence on the 2016 election, as well as related issues pertaining to ongoing Russian disinformation efforts, the role and responsibilities of U.S. social media and technology companies, and election security.¹⁵ The SSCI’s work will not be done once its report is written. Instead, as SSCI Chairman Richard Burr stated at Texas National Security Forum in November 2018, “our committee will have years of work, probably continual, on a whole different mission outside of what we have historically looked at.”¹⁶ Specifically, the committee will need to conduct follow-on oversight relating to foreign influence, online overt and covert disinformation campaigns, malicious cyber activities from foreign powers, and the activities of foreign intelligence services for years to come.¹⁷ The issues identified in the report – which will likely consist of an unclassified version approved for public release and an accompanying classified version containing sensitive investigative and intelligence details – will lead to a new portfolio of work for the committee and its members. Legislative proposals will also likely involve addressing the corporate responsibility of social media companies to combat disinformation and bolstering election security, at least. While it seems likely that the SSCI will produce a bipartisan recounting of the factual record uncovered through its investigation, it is less certain that the committee will draw conclusions that are agreed to on a bipartisan basis.¹⁸

In the House of Representatives, HPSCI appears to, perhaps, be reinvigorating parts of its stalled investigation into Russian influence on the 2016 election. This will be a difficult task given the period of disruption. One way the HPSCI could resume its investigation would be to follow the investigative leads that were left unpursued in the prior session.¹⁹ Early statements from the committee chairman indicate that the committee may focus its investigative efforts on foreign financial influence, the Trump 2016 campaign, and Trump Organization financial irregularities.²⁰ Given the significant disintegration of bipartisanship on this committee in the prior Congress, the committee’s conducting its business in a way that appears not to be politically motivated but, instead, to be a legitimate exercise of intelligence oversight activity will be a challenge. To enhance confidence in its work, it will be important for the committee to ensure that a significant part of its portfolio address broader intelligence community issues and challenges. In a constructive first step, the committee’s first open hearing was on the rise of authoritarianism across the globe and the broader threats to democracies, a highly important and timely issue.²¹

Some of the broader intelligence community challenges the committees should address include (a) whether the intelligence community failed to provide adequate warning of the Russian influence operation and (b) if so, what sort of reforms are needed to address those deficiencies. By the summer of 2016, there was enough information in the public domain to understand that a threat existed.²² But it was not until October 7, 2016, that the Department of Homeland Security and Office of the Director of National Intelligence issued a joint statement confirming the Russian interference activity.²³ There are legitimate reasons to criticize the government’s delay in releasing that assessment. On the other hand, there are also legitimate reasons to understand why political leadership may have decided that taking stronger public action could have been interpreted as being politically motivated.

In any event, from an intelligence oversight perspective, the more relevant question is not what happened from the summer to fall of 2016, but, instead, whether the intelligence community collection and analysis failed at a strategic level prior to 2016 to understand Russian intentions and activities.²⁴ The investigation into Russian election interference conducted by the Office of Special Counsel²⁵ has revealed that the activities of the Internet Research Agency date back to at least 2014.²⁶ Public-source reporting had identified some activities of the Internet Research Agency prior to the run-up to the 2016 election.²⁷ The question of whether the inability to prevent or effectively counter the Russian influence activity surrounding the 2016 election and beyond was an intelligence failure of significant proportion is an important one; it goes to the heart of whether the intelligence community is appropriately adapting to emerging strategic threats.²⁸ As intelligence community veterans of the pre- and post-9/11 era will recognize, one of the difficulties in properly assessing the counterterrorism threat prior to September 11, 2001, was that efforts directed at the domestic United States fell within the foreign/domestic “seam.” Intelligence oversight attention should be given to whether:

• there were missed signs of the Russian election interference activities, and whether efforts to collect intelligence on and analyze those activities similarly were not coordinated between foreign-intelligence collectors and analysts and those with domestic counterintelligence responsibilities sufficiently;
• intelligence reports were written and disseminated previewing Russian efforts to influence the 2016 election in the 2012–2015 timeframe;
• if the issue was identified, the intelligence community effectively shared information internally among relevant agencies and effectively communicated that information to policymakers;
• there are additional legal authorities, structural reforms, or resource allocations necessary to improve the intelligence community’s effectiveness at either providing or communicating warnings regarding strategic threats to U.S. elections and democratic processes; and
• U.S. intelligence law, policy, and practice are calibrated appropriately to facilitate effective evaluation of foreign-actor use of social media and emerging digital communications technologies.

Protecting Intelligence Community Data, Sources, and Methods

The intelligence community receives much from Congress and the American people, in terms of both funding and trust. The unclassified, top-line budget for the National Intelligence Program is over $59 billion. Trust in the community’s ability to effectively manage that budget is damaged when it collects large volumes of data and develops complex technical tools but fails to secure them. For example, according to open source and press reporting, both the CIA and the NSA have experienced the unauthorized disclosure of classified information concerning sensitive hacking tools, known as the Vault 7²⁹ and Shadow Brokers³⁰ matters, respectively. In addition, millions of sensitive and/or classified documents have been exposed in recent years, in leaks ranging from the Chelsea Manning³¹ to the Edward Snowden³² disclosures.

The intelligence committees should conduct bipartisan oversight with attention toward protecting the intelligence community’s most valuable data and the sources and methods used to collect it. Oversight of securing information and tools could be framed as oversight over what the National Intelligence Strategy describes as Objective No 5: “information sharing and safeguarding.”³³ There is an obvious need for the intelligence community to more quickly and effectively address the loss of technical tools used to conduct its activities, including sensitive cyber operations. It may be that one or both committees have been conducting the oversight described above. From the public record, however, in the past several years, understandably, they appear to have focused significantly on cybersecurity legislation not substantially focused on intelligence community data security.

What is different in recent years – and this is important for new members of Congress, who may be just beginning to engage on these issues, to be aware of – is that the community is not just losing secrets, it is losing the means by which it collects valuable intelligence and conducts sensitive cyber operations and activities. It is losing cyber weapons.³⁴ The loss of technical tools in approximately the past two years is of a different nature – and arguably more damaging to national security on a long-term basis – than the leaks of incredibly high volumes of data exposed by Manning and later Snowden in the 2010–2013 timeframe. Further, the exposure of sensitive code and cyber weapons has additional downstream effects globally to businesses, organizations, and individuals when they make their way into the public domain, infecting computers and systems worldwide. Recognition that methods are at higher risk of theft or exposure may need to be more aggressively factored in to strategic planning, development of intelligence priorities, and resource allocation.

Assuming that both the intelligence community and the oversight committees have conducted a look back as to which sensitive tools and information have been lost, how it happened, and who (or what entity) was responsible, a forward-looking approach to oversight should focus on the following:

• aside from the availability of criminal prosecution for the perpetrator of the unauthorized disclosures, what accountability mechanisms are in place for agency leadership under circumstances where there are inadequate technical or administrative processes to prevent or identify grave leaks or exposures of sensitive information and methods;
• what remedial and proactive technical, administrative, and process changes were made in 2018 to prevent similar losses in the future at the agencies most at risk; and
• whether the intelligence community – at a strategic level – is adequately addressing security threats to technical tools of collection and volumes of raw intelligence (including signals intelligence) that are retained by specific elements and to the tools used to engage in intelligence activities.

A significant part of this inquiry should address continued oversight of how the community is countering insider threats, particularly from a prevention standpoint. Understanding that it is unreasonable to expect the intelligence community to achieve a rate of zero leaks of classified information or techniques, the committees should require accountability for the loss of information and tools. The community itself conducts after-the-fact damage assessments; what is needed is strategic oversight to ensure that the community is placing proper emphasis and resourcing on preventing and disrupting insider-threat-driven leaks of sensitive information and capabilities. This coordination should be taking place under guidance provided by the National Counterintelligence and Security Center.³⁵

To the extent there have been substantial debates over intelligence authorities, those debates over the past decade have focused primarily on surveillance authorities, such as reauthorizations of and amendments to sections of the Foreign Intelligence Surveillance Act (FISA). With respect to considerations of surveillance issues, those legislative debates generally concern the collection of information and, to some extent, limits on the analysis and use of information.³⁶ Those debates have not included substantial discussion of the protection of national security information once it is collected, nor protection of the tools or techniques used to collect it. Most importantly, there appears to have been little or no public debate surrounding the viability of continued collection or development of tools in light of recent exposures.

Questions Surrounding the Handling of Intelligence Information Concerning the Murder of Jamal Khashoggi

As previously outlined, the intelligence community’s assessment of Russian intelligence activities leading up to the discovery of the specific 2016 election interference is an example of an area where the community has a duty to provide warning to policymakers at a macro level. The murder of Jamal Khashoggi, who was a lawful U.S. resident and columnist for The Washington Post, presents several issues that should be on the agenda of the committees at a micro level. Khashoggi was murdered in October 2018 in the Saudi Arabian consulate in Istanbul, Turkey.

First, certain facts that have been reported publicly³⁷ indicate that there may have been intelligence obtained that should have triggered a warning to Khashoggi or others, in accordance with Intelligence Community Directive (ICD) 191.³⁸ ICD 191 provides that there is a duty to warn “U.S. and non-U.S. persons of impending threats of intentional killing, serious bodily injury, or kidnapping.” The intelligence community has a duty to warn when it “collects or acquires credible and specific information” that the threat of intentional killing, serious bodily injury, or kidnapping exists. The duty to warn may be waived based on certain circumstances, such as a situation in which the warning would “unduly endanger U.S. . . . sources, methods [or] intelligence operations.” A warning, however, could have been crafted in a way that masked the intelligence source or method used to obtain the information, and transmitted in an unclassified tearline, if possible.³⁹

Second, Khashoggi’s execution by Saudi government officials raises the question of whether U.S. intelligence activities vis à vis Saudi Arabia have been designed to develop an accurate and complete picture of Saudi Arabian leaders and activities. In order for executive branch policymakers and members of Congress to make informed decisions about the United States’ diplomatic, military, and economic relations, they must have a current, sophisticated understanding of Saudi Arabia’s place in the world, including, for example, regime stability, economic outlook, and national security cooperation with the United States and other allies. Evaluation of the intelligence surrounding the U.S.-Saudi relationship has consequences for a wide range of military, intelligence-sharing, diplomatic, and economic activities.

Third, Khashoggi’s murder presents an issue of whether the intelligence assessment of how the action was planned and executed, and who was responsible for it, was inappropriately shielded from public knowledge for political purposes by the current administration. Whether the administration mischaracterized the intelligence as a political matter remains a serious issue and underscores yet another reason why bipartisan oversight of intelligence matters is critical. Improper political use of intelligence information is a risk in any administration. The current administration’s reluctance to hold Saudi Arabia accountable, however, raises important issues of whether the intelligence that has been developed surrounding the planning, execution, and explanation of what happened to Khashoggi has been inappropriately shielded from Congress and the public.

Accordingly, the committees should review:

• whether, from January to October 2018, any elements of the intelligence community were aware of information that should have triggered a duty to warn Khashoggi about threats to his life or safety from the Saudi Arabian government;⁴⁰
• whether, if there was such information, intelligence community element procedures were followed, and whether the existing procedures are sufficient;
• how the intelligence community is assessing Saudi Arabia as a strategic partner and/or a strategic challenge in its intelligence collection and analysis activities;
• the current assessment of who ordered Khashoggi’s murder, and how and why the decision was made to do it; and
• whether the Trump administration’s political leadership in the fall of 2018 shielded that assessment from congressional and public view – and if so, why.

Reaffirming Intelligence Committees’ Commitment to Bipartisan Intelligence Oversight

In addition to the three substantive areas of focus outlined above, the committees should reaffirm their commitment to conducting bipartisan intelligence oversight. An important question is how to demonstrate the value proposition of bipartisanship. In many other areas of congressional activity, the willingness to compromise or work across party lines appears to be perceived as a quality that can hurt a politician politically. This political calculation should have little or no place at the door of the intelligence committees. Bipartisan intelligence oversight should be the goal, because it is more effective. From the intelligence community perspective, when requests or demands for information arrive at the agencies from both parties jointly, or at least in a coordinated manner, they are viewed as more legitimate and less political. The intelligence community is likely to be more, not less, cooperative with oversight that is conducted in a bipartisan manner. Not appearing to be acting in support of partisan political objectives is crucial to the intelligence community’s maintaining credibility with the public. Similarly, when an inquiry involves testimony or input from individuals outside the government, such as witnesses who are private citizens, those individuals are more likely to cooperate with an inquiry that is supported by the committee leadership of both parties. Further, when a committee’s conclusions can be made in a bipartisan manner, their legitimacy in the eyes of outside observers and the public is heightened. A report that is issued as a result of collaboration and coordination is far more powerful than separate reports issued as a result of separate processes.

Bipartisanship in intelligence oversight does not require consistent agreement on issues or policy. It does require willingness to engage substantively and the ability to set partisanship aside in the interests of national security and constitutional needs and principles. What does bipartisan oversight look like? While there is no one-size-fits-all approach, examples of constructive collaboration include:

• joint briefings – that is, briefings available to committee membership of both the majority and minority, when provided by intelligence community leaders and staff;
• joint on-site trips to intelligence community elements for in-depth technical or analytical briefings;
• joint congressional delegations, that is, bipartisan trips of intelligence committee members or staff relating to the committee’s work; and
• selection of committee leadership and members who both have the demonstrated capacity and are willing to work constructively with their colleagues across the aisle.

The past year or more has revealed a significant difference between the levels of cooperation across the aisle on intelligence oversight in the House as compared to the Senate. Extreme partisanship fueled events surrounding the release of a memo by then-HPSCI Chairman Devin Nunes – which was abruptly declassified by the president, bypassing usual interagency process and over the strenuous objections of national security professionals. From an outside observer’s perspective, this was a low-water mark for bipartisan intelligence oversight. The intrigue surrounding its declassification and release⁴¹ called into question whether national security information was being used by the committee leadership for political purposes. One problem with the release was that it provided an incomplete portrayal of the FISA process. Another was that the release bypassed usual interagency process for declassification. Although the president unquestionably has the legal authority to declassify information, this event appeared to be declassification for political purposes, which is anathema to sound intelligence oversight. A third problem was that the release caused substantial and long-term damage to the ability of the committee to function effectively as a bipartisan entity, both at the member and the staff levels. While the leadership reversal in the 116th Congress will change the committee dynamics, it may take years to repair the damage done to the committee’s internal functions and external reputation.⁴²

In the future, congressional leaders can make greater sustained efforts to encourage bipartisan intelligence oversight through carefully selecting legislators for committee leadership and membership positions on the basis of not only on their seniority, interest, or knowledge, but also the extent to which they value the special responsibilities that come with conducting intelligence oversight. In addition, leadership should be willing to hold members accountable, through rules and process in each chamber, for inappropriately using or abusing their position on the committees and access to classified intelligence for political purposes. Further, there may be longer-term updates to committee structure and responsibilities that can facilitate and support bipartisanship in intelligence oversight.⁴³

Conclusion

The importance of the work that will be done by the intelligence committees in the 116th Congress cannot be overstated. The SSCI and HPSCI, through their unique access to classified information and responsibilities to oversee intelligence community activities, find themselves at the center of investigations concerning the intelligence activities of a foreign power directed against democratic institutions. Meanwhile, the committees have continuing responsibilities to ensure that intelligence community activities are conducted lawfully and appropriately. The committees will be most effective if they can focus their efforts on areas of highest concern, and conduct their work in a bipartisan manner, particularly in a highly politicized environment.

Note for Acknowledgement: This brief was informed, in part, by the individual views of a bipartisan group of former intelligence committee staff members and former executive branch national security professionals who participated in a roundtable discussion at CNAS in December 2018 conducted under Chatham House Rule. The author is grateful for their time and thoughtful input. Thank you also to Eric Brewer, Megan Stifel, and Andrew Wright, who provided valuable comments and feedback to a draft of this policy brief. The author further thanks several current and former intelligence officials who provided insights regarding the themes outlined in this brief and advice regarding future areas of research and study.

Disclaimer: The thoughts, positions and assertions within this paper are the author’s alone and not necessarily those of the intelligence community, the Defense Department or the U.S. Government.