Covert Action, Congressional Inaction

In 2013, the CIA began a secret program to arm and train Syrian rebels. Four years and more than $1 billion later, when Operation Timber Sycamore was unceremoniously shut down, it wasn’t hard to see why. The deeply divided opposition was never able to force a transition from Syrian dictator Bashar al-Assad, who simply turned to Iran, Russia, and Hezbollah for support. “I question the wisdom of arming and training the Syrian rebels,” Susan Rice, U.S. President Barack Obama’s national security adviser in this period, later reflected in her memoir, concluding that stopping Assad’s ground war would have required an unwise, “Iraq-scale invasion.” Rice could have mentioned the other costs of prolonging Syria’s civil war: the deaths of many thousands of Syrians, the influx of hundreds of thousands of refugees into Europe, an increase in Iranian influence in Syria, and heightened U.S. tensions with Russia. On every score imaginable, the program failed miserably.

But that failure was not the CIA’s alone, nor can it be blamed entirely on the Obama administration. All along, Congress was theoretically overseeing the effort. Since their establishment over 40 years ago, the House and Senate Intelligence Committees have been charged with supervising such clandestine operations. By law, the committees have the right to receive virtually any information they request. They wield major authority over the CIA’s budget and the appointments of its top officials. Yet in the many investigative reports about the Syria program and the memoirs that touch on it, there is no evidence that the intelligence committees ever used their powers to prevent, seriously modify, or terminate this fatally flawed operation.

Congress’s refusal to check Operation Timber Sycamore was representative of its broader attitude toward oversight of covert action: for decades, legislators have largely declined to interfere with unwise or dubious ventures, at great cost to U.S. national security and democratic accountability. In recent years, covert action has formed a key part of U.S. foreign policy, from drone strikes to cyberattacks to paramilitary operations, and when Joe Biden becomes president, his administration is unlikely to reduce its role. His picks for secretary of state, national security adviser, and director of national intelligence were all associated with Obama-era covert actions, and none have gone as far as Rice’s modest mea culpa on the Syria program. All the more reason, then, for Congress’s intelligence committees to stand up and do their job.

SECRET MISSTEPS

Covert actions, as Congress has defined them in the National Security Act, are “activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.” Long a cornerstone of Cold War strategy, this kind of operation subsided after the fall of the Soviet Union but took off after 9/11. As part of the George W. Bush administration’s war on terrorism, the CIA detained suspected terrorists at secret prisons and subjected many of them to brutal “enhanced interrogation tactics,” such waterboarding them and depriving them of sleep for up to 180 hours. Seven years after the program ended, it was skewered in a 6,700-page document released by the Senate Intelligence Committee. The “torture report,” as it was known, concluded that among the program’s many deficiencies, the CIA’s techniques were “not an effective means of acquiring intelligence.” The agency’s director at the time of the release, John Brennan, demurred, but later admitted that the program suffered from “significant weaknesses” and made “many mistakes.”

Under Obama, the United States stepped up CIA drone assassinations of alleged terrorists, including so-called signature strikes, whereby targets were identified not individually but through their suspicious patterns of behavior. After years of complaints from human rights groups about the loss of civilian life, the Obama administration announced that it was tightening the criteria for targeting—tacitly acknowledging it had killed too many innocent people.

In 2011, the CIA gave paramilitary assistance to Libyan rebels seeking to overthrow the regime of Muammar al-Qaddafi with help from a NATO air campaign. Although the U.S.-led intervention helped topple the regime, it was followed by chaos, including a murderous assault on State Department and CIA facilities in Benghazi. Fighters and weapons streamed into neighboring countries, leaving them destabilized to this day. The Libyan affair also sounded the death knell for the Obama administration’s attempt to “reset” relations with Russia, which bitterly opposed regime change. As Obama himself said bluntly of the Libya campaign, “It didn’t work.”

Even after making it clear that my questions were procedural, not one of the leaders agreed to an interview.

Throughout, the intelligence committees do not seem to have engaged in much oversight. The torture report revealed that it took four years for the Senate Intelligence Committee’s full membership to be briefed on enhanced interrogation tactics. On drone strikes, the intelligence committees were able to frustrate the Obama administration’s effort to move the program from the CIA to the military, a shift that legislators feared would lead to more civilian casualties. But the committees did not force any changes to the program itself. As for the CIA’s operation in Syria, the House Intelligence Committee did vote unanimously in 2015 to cut the program’s approximately $1 billion budget by as much as 20 percent. But the actions of the committee’s Senate counterpart were never made public, so it’s possible that even that modest reduction never went into effect.

In an effort to learn more about the committees’ oversight procedures, I contacted eight former and current Democratic and Republican committee leaders about the Syria program. There was no question that my inquiries would push committee members to disclose a classified operation. Ben Rhodes, a deputy national security adviser to Obama, announced the general program of military assistance to the rebels in 2013. Democratic and Republican leaders of the House Intelligence Committee then declared that they were moving it forward. And in 2017, President Donald Trump publicly pronounced its conclusion. Even after making it clear that my questions were procedural rather than substantive, not one of the leaders agreed to an interview.

A HISTORY OF DEFERENCE

In the absence of transparency about the committees’ current work, one is left to extrapolate from past deficiencies. As studies written by scholars and former committee staffers have made clear, from the time the committees were established, during the Carter administration, the oversight process has failed to live up to its potential. The committees have not compelled presidents to strictly adhere to the law requiring that they receive timely advance notice of new programs. Instead, they have often allowed the White House to unreasonably stretch a narrow statutory exception for “extraordinary circumstances affecting vital interests,” which allows it to notify only “the Gang of Eight”: the chair and ranking member of the House and Senate Intelligence Committees, along with the majority and minority leader of each chamber of Congress. Once that exception is invoked, the administration may delay notification to the full committee for six months or more.

Moreover, the committees have not always insisted on their rights under the National Security Act: to be “fully and currently informed of all covert actions” by intelligence agencies and to be furnished “any information or material concerning covert actions” that they request, in a way that protects classified sources and methods from public disclosure. Time and time again, the CIA has declined to provide briefings, limited them to the Gang of Eight (or even smaller groups), barred relevant staff from attending, and refused to answer questions. Sometimes, the committees have let the CIA brief certain members one by one at different times rather than in a group setting, where everyone gets the same information, a broad discussion can take place, and records are kept.

Worse, the executive branch has frequently provided misleading or inaccurate information. In the early 1980s, for example, the CIA told the committees that its military assistance to the contra rebels in Nicaragua was aimed at forcing that country’s government to stop supplying arms to leftist guerrillas in El Salvador, when its true purpose was to overthrow the regime. More recently, according to the torture report, much of the information the CIA furnished the committee on enhanced interrogation tactics misrepresented their nature and effects.

The executive branch has frequently provided misleading or inaccurate information.

But it is not just that the committees have given in to executive branch manipulation; they have also refrained from taking full advantage of the powers at their disposal. In 1985, the Reagan administration’s national security staff, abetted by the CIA, circumvented a congressional prohibition on military support to the contras and lied about it when the aid became public. Yet the committees did little in response—declining, for example, to require relevant U.S. officials to testify under oath and interview private Americans alleged to be collaborating with the officials.

Around the same time, the committees displayed similar passivity concerning CIA support for insurgents in Angola. The members approved covert lethal aid to rebels who were backed by South Africa’s apartheid regime and were committing egregious human rights violations. Content to sit at the feet of the Reagan administration and lobbyists for the insurgents, the committees refused to hear from the many experts, businesspeople, diplomats, and former U.S. officials who opposed the program.

The committees have been so lax in part because of the political incentives at play. The classified nature of oversight means that constituents are simply unaware of many of the decisions their representatives are taking, which makes it easier to give in to the president. What’s more, critics of covert action worry about getting blamed, especially by the opposite party, for sabotaging national security or leaking classified information. Standing up for oversight often takes political courage. Back in 1984, a member of the Senate Intelligence Committee offered an astute reflection, after admitting that he and his fellow members had failed to follow up on misleading testimony the CIA had given about its role in Nicaragua. “We have lost the resolve to make the system work,” he said. “It would be nice to have an infusion of backbone, myself included.” The senator: Joe Biden.

On occasion, members of the committees have displayed backbone and made a difference. In the early 1980s, Edward Boland, the Massachusetts Democrat who chaired the House Intelligence Committee, sponsored a series of amendments that eventually resulted in Congress cutting off covert aid to the contras. In 1990, members of both committees secured passage of legislation that laid out conditions under which the CIA would suspend lethal assistance to Angolan rebels. From 2009 to 2014, Dianne Feinstein, then the chair of the Senate Intelligence Committee, drove the preparation and publication of the torture report, which led Congress to restrict the list of permissible interrogation techniques.

OVERSIGHT DONE RIGHT

There is ample reason and sufficient political space for the intelligence committees to strengthen oversight. But what would meaningful reform look like?

For starters, the committees should uphold the law on congressional notification by rejecting the overuse of the exception that allows the executive branch to notify only the Gang of Eight. They should insist on all necessary briefings, requiring that they be conducted not on an individual basis but in a group, and with detailed records kept. (One of the torture report’s most stunning disclosures was that the Senate Intelligence Committee kept no detailed record of the briefings its leaders received on enhanced interrogations.) The committees should ensure that they have enough staff members, including those with foreign policy and investigative expertise, to monitor programs that can occur anywhere in the world.

New technologies have made another type of covert operation possible.

The committees should also oblige government witnesses to testify under oath, so that evasiveness raises the prospect of criminal consequences. Instead of hearing only the administration’s line, they should actively seek out alternative perspectives—from academia, think tanks, the press, foreign governments, foreign opposition groups, former U.S. officials, and congressional colleagues. They should refuse to accept illegal denials of information, deploying subpoenas as needed, and punish agencies for providing inaccurate information, cutting their budget, for instance. Finally, the committees should conduct frequent reviews of ongoing covert action programs and study past ones to extract useful lessons.

To build congressional and public support for this effort, the committees should publicly disclose their current procedures for handling covert action (without, of course, revealing any classified information). They should detail how the process worked or didn’t work in operations whose existence has been generally acknowledged by U.S. officials—such as targeted drone killings and paramilitary action in Syria.

TIME FOR REFORM

At a time when policymakers are increasingly reaching for covert action, these reforms are needed more than ever. Both Democratic and Republican presidents have long seen clandestine operations as offering an attractive third way—an alternative to costly wars and slow-moving diplomacy that avoids public debate. A confluence of trends is making them all the more appealing. With the United States’ “unipolar moment” over, the country has been facing a growing number of state and nonstate adversaries whose actions seem to demand some sort of response. Yet after Afghanistan and Iraq, the American public has soured on overt military intervention. The economic pressure campaigns being waged against Iran and Venezuela, meanwhile, have revealed the limits of coercive diplomacy, along with their steep humanitarian price. And although alternative diplomatic tools for resolving conflicts exist, it will take time to recover them after a decade of neglect.

At the same time, new technologies have made another type of covert operation possible. The United States is now supplementing its traditional covert actions with cyberattacks. In 2010, the world learned of the Stuxnet worm, a U.S.-Israeli cyberattack on Iran’s nuclear enrichment program. Although that attack may have set back Iran’s nuclear program by a year or so, in the long run, it may have merely strengthened the country’s determination to go nuclear while opening a Pandora’s box of international cyberwar.

Such operations should not be thought of as bloodless. In 2018, according to a report from Yahoo! News, the CIA launched a covert program of cyberattacks against targets in China, Iran, North Korea, Russia, and elsewhere. In some of these assaults, according to a former intelligence official quoted in the article, “stuff is on fire and exploding.” And as the scholars Jason Healey and Robert Jervis have warned, in times of crisis, such attacks are “destabilizing,” creating “greater opportunities for provocation, misperception, mistake, and miscalculation.”

These are dangerous ingredients: a growing temptation to resort to covert action and an emerging category of appealing yet risky operations. Unless the intelligence committees do their jobs, national security will suffer. So, too, will democratic accountability.

The views expressed in this article do not necessarily reflect the views and editorial stance of the SOHR.