Covert Action and Clandestine Activities of the Intelligence Community: Framework for Congressional Oversight In Brief

Summary

Since 9/11, a number of factors have complicated Congress’s efforts to improve oversight of covert and clandestine activities of the intelligence community. Greater integration of military operations and intelligence activities has resulted in a blurring of authorities associated with Title 10 and Title 50 of the United States Code. In addition, Congress has expressed concern that DOD’s overuse of terms that are not defined in statute, such as traditional military activities and operational preparation of the environment (OPE), has allowed DOD to circumvent the more stringent oversight requirements of the congressional intelligence committees for activities that may bear close resemblance to covert action or clandestine intelligence collection.

Self-imposed limitations on how Congress conducts intelligence oversight may be inhibiting the oversight’s effectiveness. The congressional intelligence committees’ jurisdiction is limited to intelligence authorizations; the congressional defense sub-committees of the chambers’ appropriations committees exercise sole jurisdiction over intelligence appropriations. There is also no natural public constituency for intelligence. Intelligence programs and analytical products are classified and generally removed from the public domain. In addition to not having to be responsive to a constituency for intelligence matters, term limits for Members of the House Permanent Committee on Intelligence (HPSCI), intended to prevent co-optation by the intelligence community (IC), may present an obstacle to the development of deep expertise.

In spite of these inhibiting factors, congressional oversight of intelligence is widely viewed as essential to the proper functioning of the government, especially the intelligence community. Highly classified covert action and clandestine intelligence programs do not often have visibility outside of Congress. Congressional oversight, therefore, may provide the only meaningful checks on the President’s execution of intelligence policy and programs that may have significant bearing on U.S. national security.

Congressional oversight of covert action can be organized around a framework of five issue areas: (1) the activity’s statutory parameters, (2) U.S. national security interests, (3) U.S. foreign policy objectives, (4) funding and implementation, and (5) risk assessment. These categories enable Congress to analyze and assess the specific elements of each activity from a strategic point of view. By extension, Congressional oversight of anticipated clandestine intelligence activities that might also shape the political, economic or military environment abroad can apply the same framework and, as with covert action oversight, address the risk of compromise, unintended consequences, and loss of life.