JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England Law | Boston say that Congress’s effort to gain greater oversight of certain intelligence actions through the Intelligence Authorization Acts for Fiscal Year 2010 is a clear example of a bipartisan effort to exercise the constitutional responsibilities that it shares with the executive branch for national security….

Congress has sought to enhance its capacity to oversee national intelligence operations through the Intelligence Authorization Acts for Fiscal Year 2010. Among other requirements, the House bill would require the President to notify members of Congress about certain intelligence developments. The Senate bill would go further and require every member of the intelligence committees to be informed of the “main features” of certain intelligence activity. In addition, provisions in both bills would amend current law to allow the General Accounting Office to conduct intelligence oversight, by allowing any Congressional committee with some jurisdiction over an intelligence program to request a GAO review.

The White House has announced its opposition to these proposals. On March 15, 2010, the Director of the Office of Management and Budget, Peter Orszag, wrote the chairs of the Congressional intelligence committees to explain that the notification provisions, the GAO provisions, and the provisions concerning funding for the National Intelligence Program were problematic from the administration’s perspective. Indeed, Orszag went so far as to suggest that President’s senior advisers would recommend that he veto any bill containing these provisions.

At least in respect to the notification and GAO provisions, what the administration seems to oppose is any change in the relationship between the President and Congress in respect to the latter’s supervision of the work of the intelligence community. Currently, Congress is informed by proxy of significant intelligence activity — the President limits notification to senior leaders from both parties on the intelligence committees. In the administration’s view, the bills encroach upon “the President’s responsibility to protect sensitive national security information,” according to the Conference Letter prepared by the Office of Management and Budget.

Similarly, the administration argues that the GAO provisions would provide the GAO unprecedented authority. Currently, the intelligence community and the GAO have operated without any formal guidelines to govern their relationship. The administration fears that express GAO authority to engage in intelligence oversight would “alter the long-standing relationship and information flow between the [intelligence community] and intelligence committee members and staff,” as the Conference Letter argues, and "undermine the ability of the committees to contribute to improving the quality of intelligence operations through interaction with “a cadre of knowledgeable and experienced staff.”

The administration’s qualms with these Congressional proposals miss the mark. Neither the notification procedures nor the GAO provisions would undermine the relationship between the Congressional intelligence committees and the intelligence community. Neither proposal would compel the executive to disclose any sensitive national security information. Rather, these proposals would simply enhance the ability of members of Congress to be informed about the nation’s intelligence activities and, if necessary, to review those activities through GAO oversight that appear suspect. What the administration fears, in the end, appears to be a Congress that is better-informed and capable of acting more quickly to investigate executive actions in the area of national security.

Some might suggest Congress is simply operationalizing its constitutional obligation to keep the executive in check. There is no question that the textual allocations of national security authority in the Constitution are divided between both the executive and Congress. The Supreme Court, when called upon to determine where the line should be drawn between the executive and Congress on matters of national security, has held that the Constitution favors active political checks and balances. (See Youngstown Sheet and Tube Co. v. Sawyer, Hamdan v. Rumsfeld, Medellin v. Texas).

Congress’s effort through the authorization acts to gain greater oversight of certain intelligence actions is a clear example of a bi-partisan effort to exercise its shared constitutional responsibilities. One only has to look back a few years to see what can happen when Congress abdicates this responsibility. The intelligence oversight regime in effect back in 2005, which the Obama administration wants to preserve, is a regime that allowed the executive to engage in a multi-year warrantless domestic surveillance program. The full scope and details of this program remain unclear even to this day. It is noteworthy that the oversight — or lack thereof — kept members of Congress in the dark about the very existence of the program until the story broke in the New York Times in December 2005. It was several years after the fact and only after a great deal of legislative effort that Congress was able to exercise some form of regulation and oversight in this area. With the kind of freedom of action that the current oversight regime allows the President, it is small wonder that the Obama administration would be opposed to any change.

This is not an instance in which Congress should defer to the executive or to the intelligence community. Our constitutional structure is premised on the belief of the framers that each of the political branches of government should serve as a check on the excesses of the other, and should push back when the other branch pushes too far. The oversight mechanisms envisioned under the Intelligence Authorization Acts are precisely the kinds of programs that would allow Congress to exercise these constitutional responsibilities. This is not a partisan issue; Congress should not bow to the threat of a presidential veto. These changes should be preserved in the proposed legislation, and Congress should fulfill its constitutional obligations.

Victor Hansen teaches criminal law and criminal procedure and Lawrence Friedman teaches constitutional law and state constitutional law at New England Law | Boston. Their book, The Case for Congress: Separation of Powers and the War on Terror, was published in 2009 by Ashgate.
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