Congressional Control of Intelligence Programs (sometimes)

In the last ten days, an interesting controversy has bubbled up over congressional control of the drone program.  The quarrel, which has been both internal to the Senate and between the Congress and the Executive, raises some important issues regarding Congress’s ability to control controversial but classified programs (such as the current drone program and CIA's previous interrogation program). The latest controversy became public when the Washington Post’s Greg Miller reported earlier this month that House and Senate appropriators had inserted a provision into the classified annex accompanying the FY14 omnibus appropriations bill restricting the use of funds to transfer the drone program from the CIA to the Pentagon.   The provision angered Senator McCain, who complained on the Senate floor that Senate appropriators had no business inserting a substantive policy restriction on the drone program into the classified annex of an appropriations bill, and certainly not without consulting the Senate authorizing committees.  (Senate Intelligence Committee Chair Dianne Feinstein is a member of the Appropriations Committee and was presumably aware of and supported the provision, but the Armed Services Committee was apparently kept in the dark.) Greg Miller reports further in today’s Post that the drone restriction has put Senator Feinstein at odds with President Obama’s desire to move more drone operations to DoD.  But Miller quotes our own Steve Vladeck as saying that the real issue:

is not the daylight between the President and Senator Feinstein.  It’s the lack of daylight between Senator Feinstein and the intelligence community….[T]o my mind the larger concern over the last six months is a lack of any evidence that there’s ever been a significant pushback from either of the intelligence committees on any of the more controversial initiatives.

Steve might not have limited his comment about the lack of congressional pushback on controversial intelligence programs to the last six months.  Congress has been reluctant to raise concerns about many intelligence counter-terrorism programs after 9-11, presumably because they believe the American people would support the programs or perhaps out of fear of being blamed in the event of another terrorist attack.  But the current public disagreement demonstrates that Congress can -- when it chooses to do so -- stop or significantly restrict intelligence programs of which it disapproves, and it can do so in secret.  This might lead human rights groups and other critics of the CIA interrogation program to ask why Congressional authorizers and appropriators (Democrats controlled both the House and Senate in 2007 and 2008 and chaired the intelligence and appropriations committees in both houses) chose not to place any specific restrictions on the CIA interrogation program (even if only to ask how it complied with international law) and instead continued to authorize and fund the program, even as they distance themselves from the program now. Clarification:  An SSCI staffer has reminded me that the Intelligence Authorization Act of 2008 included a public provision that prohibited the intelligence community from using any interrogation technique not permitted by the Army Field Manual.   President Bush vetoed the bill over this provision in March 2008 (a decision I opposed).  My point in this post is that Congressional authorizers or appropriators could have used the classified annexes of the authorization or appropriations bills in 2007 or 2008 to refuse to fund or otherwise restrict the interrogation program, just as they have apparently done with the drone program.   Although it is possible that the President would have vetoed an authorization act over a restriction in a classified annex, I doubt the President would have vetoed an approprations bill. As a footnote, I would add that some Executive branch lawyers have quietly questioned whether legislative language in classified annexes is actually legally binding (I have never seen a legal analysis of this question myself and do not have a view), but the White House and, more important, the intelligence agencies have long been loath to ignore restrictions in classified annexes for fear of angering Congressional intelligence overseers.