By Bob Graham
Thursday, May 21, 2009
Since President Obama released the "torture memos" -- the legal analysis of the Bush Justice Department on which the CIA predicated its enhanced interrogation techniques -- a familiar pattern regarding U.S. intelligence has recurred: We have become fixated on the rear-view mirror to the exclusion of what is coming toward us. While much discussion has focused on what House Speaker Nancy Pelosi was told seven years ago, the more important issue is the reform urgently needed in the relationship between the intelligence community, the executive branch and Congress.
For more than a year, I have chaired a congressional commission reviewing U.S. vulnerability to a weapon of mass destruction. The unanimous conclusion of our nine members, Republicans and Democrats, was that it is more likely than not that such a weapon will be used in a terrorist attack somewhere before year-end 2013. The commission made 13 recommendations to reduce this probability, many of which rely on intelligence as the first line of defense.
Avoiding a potentially catastrophic attack using weapons of mass destruction starts at the top, with reform of the interaction between the intelligence community and the executive and legislative branches. Congressional intelligence committees were created in the 1970s to ensure accountability. If the committees were fully informed of the intelligence community's anticipated activities, the thinking went, a level of accountability would be provided before specific programs were implemented. Brought in early, the committees would share a sense of responsibility and might be less inclined to point fingers in the event of an intelligence failure. The controversy over "enhanced interrogation techniques" demonstrates that this relationship of mutual respect and sharing of consequences has shattered. Indeed, the CIA's calendar of legislative briefings indicates that even the appearance of congressional notification occurred after waterboarding and other extraordinary methods of interrogation had been in use for weeks.
The president and leaders in Congress should immediately begin the consultations that will build mutual confidence and help take us back to the original ideal. While that is most important, other work must also be done if we are to sustain a relationship of shared responsibility.
The CIA needs to improve its records management system. The imbroglio over dates of interrogation briefings is not the first instance in which CIA assertions of certitude were contravened by my own records. I learned from my father to keep a detailed daily log of my activities. From my collection of spiral notebooks and my schedule for the dates in question, I confirmed, and the CIA concurred, that three of the four briefings I supposedly attended never occurred. An individual member of Congress should not have better records than the nation's premier intelligence agency. Congress and the CIA might start by establishing a practice similar to that required of publicly traded companies: keeping a transcript or at least detailed minutes of every classified briefing, with the documentation materials contemporaneously circulated among all participants and signed as having been agreed to or specifically dissented from. This would help prevent incidents of conflicting memories of an unrecorded briefing years earlier.
The exception for covert action should be reexamined. Covert actions are activities intended to influence political, economic or military conditions abroad in which the U.S. role will not be apparent or publicly acknowledged. When the president declares an action covert, saying that it affects U.S. vital interests, he may limit notification to the congressional and intelligence committee leadership, known as the "Gang of Eight."
As we learned with warrantless wiretaps and enhanced interrogation, both of which appear to have been treated as covert actions by President Bush, activities subject to the least congressional oversight have the greatest potential to sully our national honor and international reputation. The president should use this authority infrequently and cautiously. I do not believe that gathering intelligence, electronically or from detained human beings, meets the definition of covert action.
When the exemption for covert action is invoked, congressional leaders, who are then the only remaining form of oversight, should have their own version of a bill of rights, holding that:
-- No briefing will be held without adequate notice and without the subject matter of the classified briefing being disclosed. (Current practice is notification on an urgent basis with no indication of the topic, denying the opportunity for even minimal preparation.)
-- No briefing shall be held without a majority of the Gang of Eight present. (The CIA calendar of briefings on enhanced interrogations indicates that of 18 briefings of members of the Gang of Eight, none included a majority and thus provided the critical mass required for collegial consideration.)
-- At the earliest date possible, the full committees should be briefed. This is the law, honored mostly in the breach. (According to the CIA calendar, the first briefing of the full Senate and House intelligence committees took place Sept. 6, 2006, more than four years after enhanced interrogations commenced.)
Balancing the values of an open society with the need to gather, analyze and occasionally act on clandestine information is one of the great challenges a democracy faces. The "who said what, when" public catfight is not the forum to confront such challenges. The United States can and must do better if our intelligence agencies, the president and Congress are to play their crucial roles in slowing the ticking clock of when the worst people are likely to possess and deploy the worst weapons.
The writer, a former Democratic senator from Florida, was chairman of the Senate intelligence committee from 2001 to 2003. He is the author, most recently, of "America: The Owner's Manual."