The Constitution assigns functions to Congress that are clearly facilitated by access to intelligence. Among other responsibilities, Congress must provide "advice and consent" on treaties with other governments, approve the appointment of ambassadors, declare war, regulate interstate and foreign commerce, and raise and support the armed forces. It also must appropriate the funds necessary for the conduct of the government's business, including support for US military deployments abroad, development and fielding of weapons systems, provision of financial assistance to other governments, and defense of the United States from threats outside its borders. The legislative power itself can be used to mandate or curtail defense and foreign policy initiatives by the executive.
Clearly, the information collected and analyzed by intelligence agencies can have a bearing on the conduct of these responsibilities. But intelligence agencies are part of the executive branch, created by law and executive order principally to serve that branch in the execution of its responsibilities. Moreover, a great deal of information about "things foreign" is available to Congress without resort to intelligence agencies. For example, it has its own highly capable research arm--the Congressional Research Service of the Library of Congress--to provide information and analysis using publicly available sources.
Still, US intelligence agencies often develop information pertinent to Congressional responsibilities that is not found in publicly available sources. Although the flow of this information to Congress has varied over time, it appears that the Intelligence Community, if not the executive branch itself, has--at least since 1947--accepted as a matter of principle the right of Congress to have information that bears upon its constitutional functions, albeit under sometimes controlled and limited conditions.
Some observers suggest that the executive branch provides intelligence to the Congress out of "comity"--that is, the executive recognizes that it controls information needed by another branch of government to perform its functions, and therefore provides it. Others regard the 1980 law requiring that the executive branch keep the intelligence committees "fully and currently informed of intelligence activities," and the 1992 law requiring the DCI to provide intelligence support to Congress "where appropriate," as legislative mandates to share intelligence.
Neither the constitutional responsibilities of Congress nor the two statutory mandates cited above, however, have been interpreted by the executive to require that all intelligence be turned over to the Congress, nor has Congress historically sought such access. As one intelligence official put it: "None of our customers has a right to all of the intelligence that is produced, not even the Congress. We will give it to them in due course if they need it. But they cannot see everything that is produced. The President has the right, if not the responsibility, to control it."
No case has reached US courts that involved a refusal by the executive to turn over intelligence information requested by Congress for the performance of its functions, whether pursuant to the Constitution or a statute. Thus the courts have never addressed the boundaries between the executive and legislative branches where Congressional access to intelligence is concerned.
In addition to the functions specified in the Constitution, the Congress carries out other duties implicit in these constitutional roles, which are also cited as justification for access to intelligence. The most significant of these functions is oversight, which entails keeping track of how appropriated funds are spent and whether the activities of the executive branch are consistent with the law.(1) The committees of Congress expressly charged with oversight of US intelligence activities-the SSCI and the HPSCI-assert in principle the right of unrestricted access to intelligence information, including all substantive analysis, in order to perform their oversight function. The statute establishing this right of access recognizes no exceptions.(2) In practice, however, the oversight committees have not sought access to all intelligence information.
Members also say they need access to intelligence to serve their constituents. Where constituents are concerned about a specific foreign threat--for example, narcotics smuggling, illegal immigration, or terrorism against Americans--or about the actions of a foreign government (such as denial of a contract to a local US firm), Members of Congress assert a right to know what the government knows, including pertinent intelligence--even if they cannot pass it along to their constituents--in order to be able to advise and counsel them properly.
Finally, Members of Congress as public figures and officeholders simply need to be able to comment knowledgeably with respect to international developments, whether to the news media, to foreign visitors, or to foreign officials whom they meet in the United States or abroad.(3) Members are frequently asked for their reactions, perhaps even as a story is breaking or before the reliability of a press report is established. Naturally, they do not wish to appear ill informed. As more Members have become accustomed to receiving intelligence, their first reaction is increasingly: "What does the Community have on this?" In this regard, they are not different from policymakers in the executive branch. In many other respects, they are quite dissimilar.
Few Members of Congress have expertise in national security matters at the time they are elected. To the extent that they acquire such expertise, it usually comes from service on a committee or committees with jurisdiction in the area or, occasionally, because a Member takes a personal interest in an issue. Most consumers in the executive branch, by contrast, have been selected for their positions precisely because of their expertise in some aspect of national security affairs.
Members' time is necessarily spread across the gamut of public affairs, from local to national to international. It is not unusual for a Member to start the day meeting with constituents who want a federal job for their child, then listen to a group of lobbyists who want favorable tax treatment for their trucking union, testify at a hearing on the AIDS epidemic, go to the floor to cast a vote on sending troops to country X, and return to meet with the ambassador of country Y. Mixed in may be meetings with their respective party organizations, speeches on the floor and before various private groups, media interviews, and fundraising activities.
Intelligence consumers in the executive branch typically have well-defined areas of responsibility within the national security arena--some broader than others. Although their schedules may be as busy as those of Members of Congress, there is usually a clearer focus to them.
Throughout the day, Members of Congress are bombarded with information: press clips and notes assembled by their staffs, staff briefings, hearings, conversations with their colleagues, phone calls from constituents, and so forth. Every Member's office monitors what is transpiring on the floor. One person interviewed for this article likened Members to "360-degree phased-array radars, constantly whirling, picking up blips of information here and there on their screens."
Policymakers in the executive branch are equally as likely to be bombarded with information, but on a more confined range of topics and by a smaller, less diverse group of interlocutors. They also are more apt to distinguish between the sources of the information coming to them and are more likely to challenge them.
The needs of policymakers for intelligence also tend to be more regular and action oriented. They use intelligence to make daily decisions: to vote at a meeting, to determine the direction of their program, to decide on the next step in the dialogue with a foreign counterpart, or to respond to a crisis. Within their respective areas of responsibility, policymakers are constantly updating their databases, factoring in pertinent day-to-day developments disclosed in intelligence reporting. If they are policymakers who make good use of intelligence, they are engaged in a constant dialogue with intelligence producers, refining their requirements for information.
Members of Congress, on the other hand, rarely have the time to keep abreast of day-to-day developments. Votes that might be influenced by intelligence reporting do not come down the Congressional pike with much regularity. While some committee staffers and a few individual Members may attempt to keep up with the daily intelligence reporting on particular topics, the needs of most Members are likely to be episodic and reactive. As one intelligence official put it: "They are observers, rather than customers in the usual sense. They get energized once in a while but, for the most part, we don't have the same ongoing dialogue with them that we have with customers [in the executive branch]."
On the other hand, another intelligence official noted, "there are times--usually when crises occur--when [Congress's] appetite [for intelligence] is insatiable. It's during these times that they just about overwhelm us." Members' appetites invariably grow when they are faced with a vote on a national security issue that is politically controversial, such as whether to send US military forces into a hostile situation. Such votes sometimes arise on the spur of the moment--for example, when an amendment is offered unexpectedly on the floor--but more often they occur with sufficient advance notice that Members who want to educate themselves are able to do so. It is on such occasions that intelligence agencies are usually called upon for their information and expertise. As one intelligence official noted: "Over the last five or six years, the Hill has developed a far greater appreciation of intelligence, of what intelligence sources and methods can do for you. There has been a quantum leap, for example, in what Congress now expects to know before a vote to commit US military forces abroad."
Another important distinction is the milieu in which each branch operates. Policymakers in the national security arena are accustomed to operating in a secure environment when dealing with classified information, whereas most Members of Congress are not. Members who serve on committees with responsibilities in national security matters ordinarily come to appreciate the rules governing the disclosure of intelligence and why they are important. But Members who have not served on these committees often lack such understanding. One analyst interviewed for this study described a briefing he had provided to a particular Member of Congress who had no background in national security. At the end of the briefing, the Member told the analyst that "the American people need to know what you have just told me." When the analyst reminded the Member that the briefing was classified, she replied, "Well, I'm declassifying it." [In this case, staff was able to restrain the Member from disclosing the intelligence.]
Far from living in an environment where information is tightly controlled, Congress does most of its business in public. It is, first and foremost, a political institution. Members constantly seek opportunities to get themselves and their positions before the public. Moreover, they are constantly sifting through the information that reaches them to find ammunition for use in their political battles. At hearings or briefings, their questions frequently are aimed at eliciting information that supports a position they have taken or plan to take, at times straining to the point where the connection with the substance of the hearing or briefing is totally lost to the witness. Indeed, if briefings do not lend support to Members' preordained positions, as one analyst noted, "they are apt to bash you over the head for it."
If a Member becomes aware that the executive branch possesses intelligence that undermines the administration's position on a particular issue or lends credence to the Member's own position, he or she will be especially anxious to have it. And once in hand, the stronger the implications of such information for their position, the greater will be the temptation to use it. "The public," the Member will contend, "has a right to know."
Policymakers also are looking for ammunition to use in their bureaucratic struggles, but these are not ordinarily played out in public view. Occasions arise when the executive branch decides to disclose intelligence to the public (either officially or unofficially) in order to make its case to Congress. However, the ability that the executive once had to make selective use of intelligence with Congress has been substantially eroded by the independent access that the legislative branch now has.
For policymakers, intelligence information usually forms but one element--and perhaps not the most important one--in their decisionmaking process. US capabilities, diplomatic considerations, domestic implications, and public sentiment all will be factored in and may indicate a course of action different from that indicated by the intelligence reporting.
Congress, on the other hand, is usually more inclined to give credence to intelligence reporting and to attach less significance to other factors. As one policymaker put it, "Congress regards intelligence as plaster of paris, while we regard it as clay." Intelligence is viewed as untainted by political bias and therefore as more reliable than the information provided by policymakers, who are seen as touting the administration's political line. As one observer in the executive branch ruefully noted, "The good news is, Congress takes intelligence very seriously. The bad news is, Congress takes intelligence very seriously."
By most accounts, intelligence agencies have come to regard substantive support to Congress as an important part of their mission. As one CIA analyst explained, "Until recent years, we did not see our mission as helping Congress make decisions. There were no coherent objectives which governed our relationship with the Hill beyond the protection of the DO's [Directorate of Operations's] equities . . . Most people in the Agency now have come to appreciate Congress as a partner, that Congress has important roles to perform, and it's silly for us not to help them execute those roles."
Others are not so sanguine. As one intelligence official noted, "intelligence agencies pay lipservice to enlightening Congress on substantive topics, but what really motivates them are the oversight and funding responsibilities of the intelligence committees. They want to show what they can do in order to get funding for their programs." Several analysts interviewed for this article conceded as much.
Whatever may motivate intelligence agencies, they do not relate to Congress in the same way they relate to consumers in the executive branch. For one thing, intelligence officials worry more about what Congress will do with the intelligence it is given than they do about what policymakers do with it. While most acknowledge that Congress has a good track record on protection of classified information, they also recognize that they will have very little control once the intelligence is imparted. One intelligence official said, "Wittingly or not, this affects what analysts say on the Hill and how they say it. They are more guarded." Such hesitancy will be especially apparent when the audience for a briefing has a track record of making political use of intelligence information. "The tendency," said one intelligence official, "will be to be a little less forward-leaning."
The Intelligence Community also does not involve Congress in the same way as other consumers in setting requirements and priorities for collection and analysis. In the executive branch, a formal process exists whereby consumers are consulted about their requirements and priorities for intelligence collection. These are translated into detailed collection guidance for the Intelligence Community as a whole. Beyond this formal process, executive branch consumers are frequently consulted as part of the ongoing process for tasking collection assets.
Congressional consumers, on the other hand, are not consulted as part of this process. Nor are they consulted about potential topics for intelligence analysis, such as NIEs. Moreover, while the DCI is charged with evaluating the utility of intelligence to consumers within the government, this role has never been seen as extending to the utility of intelligence to Congress.
Many interviewed for this study pointed out, however, that whether or not the needs of Congress are formally considered in setting requirements and priorities for collection or analysis, Congress can obtain "whatever it wants whenever it wants it" from the Intelligence Community. Indeed, some in the executive branch believe Congress's needs receive preferential treatment from the Intelligence Community over those of consumers in the executive. As one executive official noted: "The Community will not accept requirements from us unless they come from an Assistant Secretary. Whereas where Congress is concerned, they will do whatever any staffer says he or she wants them to do--whatever it takes . . . For Congress, the Intelligence Community is the candy store that's always open."
Others contend that it would be impractical in any case to attempt to integrate Congressional needs into the process used to identify and satisfy the needs of executive branch consumers. Congressional needs are, for the most part, impossible to predict in advance, and no process exists within Congress for producing an agreed-upon set of requirements for collection and analysis. Many in the executive branch suspect that, if such a process were to be attempted, it would be "your worst nightmare," driven by Congressional staff rather than Members and overwhelming the capabilities that now exist to support the needs of the executive branch.
Notably, the Congressional staffers interviewed for this article did not disagree. While some pointed out that there were events on the Congressional calendar requiring intelligence support that could be anticipated, such as votes on "most favored nation" treatment for China or arms control treaties, they also acknowledged that most intelligence was provided in response to events and developments that could not readily be predicted. So long as they could continue to get what they need when they needed it, they were content to rely on intelligence that was produced for use by executive branch consumers and leave themselves out of the requirements and priorities process.
(1) The courts have recognized oversight of the executive branch by Congress as a function implied in its constitutional responsibilities. See McGrain v. Daughtery 273 US 135 (1927); Watkins v. United States 354 US 178 (1957).
(2) Section 502-2 of the National Security Act of 1947.
(3) Some interviewed for this article would distinguish between the House and Senate in this regard, with most Senators being seen as "public figures" whose comments were sought on foreign affairs, whereas only a small percentage of Representatives fell in this category.
