I was a lawyer at the CIA from 1976 through 2009, a 34 year span that coincided with the birth and evolution of the Agency’s relationship with its overseers in the Congress, specifically, the House and Senate select committees on intelligence. Indeed, I owe to Congress the fact that I was hired at the CIA all those years ago. The Senate panel established in 1975 to investigate the CIA’s misadventures and misdeeds of the previous quarter century—known as the “Church Committee” because of its chairman, the Idaho Democrat Frank Church—had, among its final recommendations, urged the Agency to supplement its then-meager and entirely “inbred” legal staff with new and younger attorneys who had no previous ties to the Agency.
I was in that first surge of new lawyer hires, the eighteenth lawyer to join the Office of General Counsel; little did I realize that this would mark the beginning of OGC’s exponential growth over the next three decades, culminating in a legal staff that was six times that number by the time I retired as the CIA’s top legal advisor in late 2009.
So there I was, newly arrived on the scene at the CIA, just about the same time that Congress created its first permanent set of committees devoted exclusively to intelligence matters. The two committees, one in the House and one in the Senate, would immediately and forevermore be referred to (at least by us at the Agency) as HPSCI and SSCI, respectively. For my entire career, I would deal with these committees on a more or less continuing basis, usually in times of controversy and turmoil (which is, of course, usually the times when lawyers tend to become involved in most things).
In fact, looking back now, the two events that would have the most significant and lasting impact on my career—the Iran-Contra affair in the mid-80s and the CIA’s counterterrorist detention and interrogation programs in the post-9/11 years—involved in large part my interactions with the Congress. And so, drawing from those two milestones, plus countless other episodes I witnessed or participated in over the years, I offer here a few observations on the state of relations between the CIA and its overseers on Capitol Hill. Specifically, this is my personal perspective on why I think the relations have gone inexorably downhill over the past three-plus decades. There are a number of reasons I could cite for this unfortunate development, but in this piece I will focus on the one reason that I believe stands above all others: A failure to communicate.
With the notable exception of the Iran-Contra debacle, I never saw any evidence or even sentiment at the CIA for a deliberate policy of withholding information from the intelligence committees, or misleading them about what the CIA was up to. On the contrary, those of us who spent our careers at the Agency always understood that being forthcoming with Congress—especially when the information was politically sensitive and/or unfavorable to the Agency—was not only “good government,” but also could provide the CIA with a buffer of protection from subsequent criticism and political attack. However, the conundrum has always been in trying to discern what information the CIA should report to the Hill, and when exactly it should be reported. During my many years at the Agency, we never seemed to get it quite right.
Part of the problem can be traced to the statutory benchmarks Congress established for reporting matters to the intelligence committees, which consist of vaguely-couched terms like keeping the committees “fully and currently informed on all intelligence activities,” including “significant anticipated intelligence activities.” For new, presidentially-authorized covert action programs (“Findings”), it was always clear and understood that these had to be reported on a timely basis (in practice, virtually always within 48 hours of the presidential authorization). Beyond that, however, the CIA has over the years gotten little more in the way of concrete guidance from Congress.