For the release of this Secrecy Report, we asked former-Representative Mickey Edwards, who is also the author of, The Parties Versus the People: How to Turn Republicans and Democrats into Americans and a noted commentator on restoring the Constitution’s balances of power, to provide insight on how to secure better oversight of national security programs.
How could Congress’ oversight of intelligence programs be improved? Or how can the system of checks and balances be restored to our intelligence programs?
First, the congress must reclaim its constitutional authority to oversee the executive branch, decide on questions of war and peace, regulate the armed forces, and determine how federal funds are to be expended. These are the proper powers of congress but more importantly they are the obligations the constitution places on congress to ensure that the people, through their representatives, control the activities of the federal government.
What does this mean in practical terms? Right now, the executive branch determines what is classified and at what level of classification, determines what information it will share with congress -- and with how many members of congress -- and instructs those with whom it shares the information (the chairs and ranking members of the house and senate intelligence committees) that they may not share the information with other members of congress nor with members of their own staffs -- this despite the fact that in each case hundreds, even thousands of executive branch employees may have access to such information. The congress must act to ensure that members of congress, who must ultimately, under the constitution, make the determinations as to use of the nation’s military forces, have the information they need to make wise decisions on behalf of the people. The Speaker and Senate Majority Leader, backed by the minority leaders in both houses, should inform the executive branch that the congress itself will determine who among its members may receive classified information and with whom among congressional staff that information will be shared.
In addition, leaders of the House and Senate should ensure that the various oversight committees of the congress -- in this case, those committees -- both authorizing and appropriating -- that share jurisdiction over defense, foreign policy, homeland security, etc., conduct vigorous and ongoing oversight over the areas of government activity that fall within their purview. Oversight must be persistent and thorough, not sporadic or superficial. And the leaders of the two houses should be prepared to use the powers of congress, including the withholding of appropriations, the use of subpoenas, and the threat of contempt proceedings to demand that the information congress requires be provided in full and in an appropriate time frame.
In short, the problem is not executive overreach -- all presidents and all executive branch officials quite rationally seek to enhance their powers to pursue the policies and actions they believe to be right. The problem is the failure of congress to understand its own authority and to exercise it on behalf of the people themselves, for whom they are merely the surrogates.
How much access to information do members of congress and their staff need to conduct effective oversight?
This is a simple management issue. As with all decisionmakers, members of congress need all the information required to ensure that they make wise choices. This is why it is unacceptable to tolerate incomplete or evasive answers to questions posed by any member of congress who may be called upon to vote on the issue at hand, regardless of whether that member is a member of the leadership, a committee or subcommittee chair, a member of the majority party, or in any other ‘special’ privileged role. Every single member of congress is under oath to uphold and defend the constitution and under an obligation to act in the best interests of the nation and its citizens; for that, they need leaders who -- whether or not they support the member’s position -- will not tolerate any member of congress being denied information the people require.
Senator Gravel famously read parts of the pentagon papers into the congressional record. Under the House and Senate’s rules, members can face steep penalties, including being removed from the intelligence committee. What do you think members should do if they believe the public needs to know information that the executive branch claims is classified?
It is up to the congress to determine what actions by individual members will be permitted or punished; but the members of congress are stand-ins for the people themselves, who retain ultimate authority over the actions of the federal government. Therefore decisions about penalties for disclosure should reflect the independent judgment of the congress as to what should be known of the government’s activities; penalties should not be imposed merely as a matter of deference to the executive. In the long run, every member of congress owes allegiance to the constitution, the nation, and the people, not to a president or a political party. In almost every case, the public’s right to know should be a very high priority.