The director of the Central Intelligence Agency recently set off a new controversy when reports emerged that he had ordered an embryonic secret counter-terrorism program terminated. Members of Congress were outraged, claiming they had never been informed of the program's existence. The relationship between America's spies and its lawmakers has been contentious for decades.
Besides enacting laws, one of the Congress' key duties is to monitor the programs and actions of government departments, and the trickiest is oversight of intelligence agencies, most particularly the Central Intelligence Agency.
Amy Zegart, who teaches on intelligence matters at the University of California in Los Angeles, says oversight of the U.S. spy world is about both efficiency and ethics.
"There is an efficacy argument to congressional oversight, that having someone outside of these agencies asking hard questions, demanding results, examining performance, makes our intelligence agencies operate better," she said.
"But there is also an ethical part of the equation, which is that in a democratic society we need to have democratically elected members of Congress overseeing these secret, cloistered intelligence agencies to make sure that we are protecting American values and civil liberties," she added.
Need for oversight
The need for oversight often clashes with the spies' natural need for secrecy and their fear of leaks of sensitive information. But such charges are a deep affront to members of Congress, who insist the intelligence committees are secure and do not leak information.
Most democratic countries do have some form of oversight over their intelligence agencies. Former U.S. intelligence officer Bob Ayers, now a security consultant in Britain, says Europeans tend to be more tolerant of secrecy than Americans.
"Within the United Kingdom - as an example in Europe - intelligence operations are secret," he said. "They are designed to be secret. Nobody knows, nobody talks, and nobody worries about whether or not nobody talks."
But what makes the United States unique, say analysts, is the legal requirement the president and the agencies, particularly the CIA, inform congressional intelligence committees of intelligence operations in a "timely manner".
When the CIA was founded in 1947, the Cold War was starting to pick up steam and the CIA had virtually a free hand. Oversight was informal and minimal, with no laws on the books about it. But Villanova University professor David Barrett, who has written a book on CIA-congressional relations, points out that even in those freewheeling days there was recognition that some form of oversight was needed.
"They may not have liked it, but there was always a recognition on the part of CIA leaders - and grudging recognition by presidents, even back in the early Cold War - that to some degree, at least a few members of Congress had a right to know about sensitive operations of the CIA - not the whole Congress, but some small number, small number of members of Congress," he said.
Oversight evolved for a simple, pragmatic reason: Congress holds the purse strings. If the CIA and its sister agencies wanted funding, they had to let at least some senior appropriations committee members in on a few secrets. The rest of Congress often voted on intelligence budgetary authorizations with no idea what they were funding.
Change of attitudes
Public and congressional attitudes acceptance of the spies' traditional secrecy changed sharply in the 1970s with the Watergate scandal and then revelations of questionable activities by the CIA and the National Security Agency. Those included domestic spying, planned assassinations of foreign leaders, drug testing on unsuspecting subjects, and other abuses. There were investigations in the House and Senate, which led to the creation of permanent intelligence committees in each chamber.
Today there are numerous laws on intelligence oversight. The president is supposed to inform the intelligence committees of intelligence operations, although disclosure of sensitive information can be limited to eight senior senators and House members. It should be noted that the requirement is to inform of those operations, not to seek approval for them.
But as David Barrett points out, charges periodically arise in nearly every administration that information has been illegally concealed from members of Congress.
"The really sort of interesting, and in some ways shocking, thing is that despite all these laws that have been passed, there is still a very difficult problem of intelligence oversight by Congress when the White House and/or certain intelligence leaders decide not to share that information, and then make claims that it is legal not to share that information," he said.
The Bush administration was accused of withholding information on some intelligence programs, such as an electronic eavesdropping program. CIA Director Leon Panetta is quoted as telling the Senate Intelligence Committee in closed-door session that Vice-President Dick Cheney ordered the CIA not to tell Congress of the counterterrorism program that Panetta terminated.
But analysts say that is a gray area because the program, which is reported to have targeted al-Qaida leaders back in 2001, never got off the drawing board and may not have been subject to congressional reporting requirements.