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The 9/11 Commission Recommendation Congress Forgot

As Congress conducts oversight of the executive branch in the wake of the Christmas day attack, it should also take a hard look at itself.  As a former member of the 9/11 Commission noted today, Congress has failed to implement one key recommendation of that Commission—relating to how Congress organizes its own homeland security and intelligence committees.  The Hill states that “[f]ormer Sen. Bob Kerrey (D-Neb.) said that Congress’s failure to adopt [this recommendation] contributes to problems at the country’s intelligence agencies in the wake of the failed Christmas Day attack. “ 

What follows is a piece I wrote, but never published, immediately following the 2006 elections:          

           

9/11 COMMISSION’S MESSAGE TO CONGRESS: REFORM YOURSELF 

            Nancy Pelosi, the incoming Speaker of the House of Representatives, has promised that a Democratic-led House will move immediately to enact all of the unfulfilled recommendations of the 9/11 Commission.  She has also promised to make dramatic changes in the way Congress does business. 

            Her willingness and ability to keep these promises will be tested by what is unquestionably the most important unfulfilled recommendation of the 9/11 Commission: that Congress reform itself.  Specifically, the Commission recommended significant changes with regard to how Congress is organized for oversight of intelligence and homeland security. 

            Of particular note is the Commission’s call for strengthening congressional oversight of the intelligence community.  The Commission found that the House and Senate intelligence committees lack adequate authority and capability to conduct effective oversight  Indeed, the Commission concluded starkly that “congressional oversight for intelligence—and counterterrorism—is now dysfunctional.” 

The institutional weakness of the intelligence committees stems in large part from the secrecy of the intelligence community they oversee. Information on highly classified programs is difficult to obtain and, when the information is shared with the committees, may be provided in such a compartmented fashion as to make it of little or no use.

For example, during the recent inquiry by the House Permanent Select Committee on Intelligence (HPSCI) into the activities of former Representative Duke Cunningham, we discovered a potentially relevant computer disk in Cunningham’s classified file at HPSCI. Because HPSCI did not have the technology to read the disk, it had to request assistance from an intelligence agency. After the agency obtained the disk, however, it refused to provide access to the files contained on the disk on the grounds that HPSCI was not cleared for the information in question.

The secretive nature of the intelligence community also deprives the intelligence committees of some of the most powerful oversight tools: the ability to hold public hearings and to issue public reports. Other congressional authorizing committees can use public hearings and reports to pressure agencies to modify policies and practices or simply to be more forthcoming with information, but the intelligence committees usually cannot.

Theoretically, the intelligence committees should have leverage over the intelligence agencies as a result of the legal requirement in section 504 of the National Security Act of 1947 that that intelligence expenditures be specifically authorized as well as appropriated, which would appear to require the approval of the intelligence committees as well as the appropriators. However, experience indicates that the appropriators have found ways to circumvent this requirement, ranging from putting expenditures in budget categories (such as military intelligence) which are not subject to the legal requirement to simply waiving the requirement outright. As a result, the appropriators are perceived to have far more sway over intelligence spending than the intelligence committees, a fact that undercuts the oversight capabilities of the latter.

To address these deficiencies, the 9/11 Commission recommended major changes in how the intelligence committees are structured, such as combining the appropriating and authorizing authorities in a single committee for each House. These new intelligence committees would be composed of relatively few members (with majority party representation never exceeding that of the minority by more than one) who would be “clearly accountable for their work” and would be served by a nonpartisan staff working for the entire committee.

The 9/11 Commission stressed the critical importance of the congressional reform portion of its recommendations, noting that “the other reforms we have suggested . . . will not work if congressional oversight does not change too.” Weak and divided congressional oversight makes it difficult for Congress to ensure proper and effective implementation of the Commission’s executive branch intelligence reforms, which were enacted into law by the Intelligence Reform and Terrorism Prevention Act of 2004.

Divided congressional oversight also enables agencies, contractors and others to play one committee off against another, exploiting committee rivalries for their own advantage and profit. In addition, it wastes the time and effort of agencies and high level officials who must report to and appear before many different committees.

As the 9/11 Commission recognized, however, getting Congress to reform itself is no easy task. It noted that “[f]ew things are more difficult to change in Washington than committee jurisdiction and prerogatives. To a member, these assignments are almost as important as the map of his or her congressional district.”

It is not surprising, therefore, that Congress has largely failed to implement the Commission’s congressional reform recommendations. As Thomas Mann and Norman Ornstein note in their recent book, The Broken Branch, congressional leaders responded “limply and inadequately” to these recommendations and the steps that were taken, particularly with regard to intelligence oversight, “[fell] far short of the constructive recommendations of the 9/11 Commission.”

Effective oversight of the executive branch requires more than a simple willingness to demand information and to issue a subpoena if necessary. Congressional oversight must be serious, systematic and ongoing. Oversight must be focused on improving intelligence and homeland security, rather than on getting contracts for friends or constituents, or on scoring political points.

It is much easier for Congress to reform the executive branch than to reform itself. By enacting the congressional reform recommendations of the 9/11 Commission, however, Congress can show that it is no longer business as usual on Capitol Hill.

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