A Matter of Accountability

Many controversial activities that have been undertaken as "covert
action"--assassination attempts (currently illegal), attempts at
influencing democratic elections abroad, support for corrupt
dictators as lesser evils--would have been controversial even had
they been carried out overtly. It was not the covertness of the
actions that was at issue but the actions themselves. The special
problem that covert action presents, rather, has to do with
accountability: How can one carry out covert action and still ensure
that officials are held responsible for their decisions?

The main formal control that exists today is undertaken through
Congress, and this has turned out to be a problem. Congress itself
deserves much of the blame for the breakdown in the accountability of
covert action. This, in essence, is what happened: Following lengthy
and detailed investigations of the intelligence community in the
1970s, Congress demanded a greater role in the review of covert
action. These provisions were eventually embodied in the Intelligence
Oversight Act of 1980, the current statute under which Congress
monitors the intelligence community. Under the act, which is still in
force, the U.S. government can still hide responsibility for a covert
action from the public-at-large, but to do so the president must
notify in a secret "finding" the relevant intelligence oversight
committees--namely the House Permanent Select Committee on
Intelligence and the Senate Select Committee on
Intelligence--whenever he approves such an operation.

Many critics have objected to this process, claiming that limiting
oversight to a small group of representatives that works in secret is
undemocratic. But the oversight process for covert action is wholly
consistent with other departures from pure democratic rule that most
people accept. After all, many institutions limit participation in
the American democratic system, including the Supreme Court and the
committee system in Congress. The government also operates in secret,
for example, when shield laws prohibit the disclosure of certain
witnesses or defendants in court proceedings. Congress also routinely
reviews spending for classified weapons systems secretly.

Clearly, government could not function if everyone took part in every
decision, and it could not function without some secrets. The real
questions are whether officials are, at some point, held accountable
for their decisions (if not for specific actions, then for general
policy); whether there is sufficient rotation among officials, so
that covert action policies are not decided by a static elite group;
and whether the process ensures timely accountability for extreme
abuses, so that policies can be re-examined before something really
awful happens. The Intelligence Oversight Act and the House and
Senate intelligence committees, as structured, meet all these
criteria. The problem is that the act was weakened by the Iran-Contra
affair and was never fixed. As the effects are with us still, it is
worth reviewing what happened on that occasion in some detail.

Most Americans recall the basics of the Iran-Contra fiasco and the
controversy that followed. Late in 1985, National Security Council
staff officials, with the assistance of CIA officers and the support
of Director of Central Intelligence (DCI) William Casey, developed a
plan to trade weapons for U.S. hostages held by Iranian-backed
terrorists in Lebanon. These officials did not tell Congress about
the plan. The operation careened along until November 1986, when a
Beirut newspaper disclosed the arms-for-hostages scheme. The House
and Senate appointed a joint committee to investigate. But instead of
exposing the project as the hare-brained lunacy it was, the
proceedings had exactly the opposite effect, turning quickly into a
public relations disaster for Congress and leading much of the public
to doubt whether that institution had the capability to oversee
covert action. Then matters got worse.

In 1991, after the Iran-Contra hearings concluded, the intelligence
oversight committees drafted new legislation aimed at preventing
future administrations from hiding covert action from Congress.
Unfortunately, the committees allowed themselves to get sidetracked.
The key issues were whether the president needed to notify Congress,
and whom in Congress he needed to notify. Instead of addressing these
issues, the oversight committees became preoccupied with a secondary
question: How long and under what conditions could the president
delay notification?

How did this happen? When, back in 1986, President Reagan and his
advisers decided not to notify Congress, Casey had asked the CIA's
General Counsel Stanley Sporkin (now a federal judge) to provide a
rationale. In response, Sporkin cited a provision in the 1980
oversight act that allowed the president to defer notification. The
provision was originally intended to deal with fast-breaking, urgent
situations, not to protect especially delicate but non-time sensitive
operations. Besides, the Intelligence Oversight Act--duly passed by
Congress and signed into law by President Carter--had a specific
mechanism for dealing with sensitive situations. If the president
believed that an operation was too sensitive to share with the
thirty-odd members of the two oversight committees, he could consult
with the so-called "Gang of Eight"--that is, the two party leaders of
each house, and the chairmen and vice-chairmen of the House and
Senate committees.

Until Iran-Contra, no one had ever presumed that the president could
delay notifying Congress because a covert action was too sensitive.
When executive branch officials originally made the Sporkin argument
that they could defer notification to protect sensitive operations,
Congress should have simply told them that the loophole was bogus.
Instead, the committees effectively bought Sporkin's basic argument
and began bargaining with the White House over the details during the
next several years. The committees wanted a 48-hour deadline for
notification, and in 1991 Congress included the necessary language in
the annual intelligence authorization bill. President Bush vetoed the
bill and Congress backed down. In effect, then, Congress conceded
that there was no limit to how long the president could defer
notification. And because Congress implicitly accepted the Sporkin
argument, the president was no longer obliged to use the "Gang of
Eight" mechanism, either.

If the oversight committees had been serious about enforcing the
Intelligence Oversight Act, they could have simply refused to
authorize all covert action. Alternatively, they could have
eliminated the CIA's special contingency fund for covert operations,
requested the appropriations committee to cut intelligence spending,
or deferred indefinitely the appointment of any intelligence official
requiring Senate confirmation. Instead, the combination of Sporkin's
brief and Congress' mishandling of the issue gutted the legal basis
for oversight of covert action.

 Every DCI appointed since Iran-Contra has promised the oversight
committees that he would promptly notify Congress of covert actions.
Of course, the DCI also promises to serve the president faithfully.
Do we really want to wait to see which of these conflicting
commitments proves strongest in a crunch? That is precisely the
nature of the potential train wreck that lies ahead.

Covert Action and Strategy

Despite The potential costs of such a debacle, the larger problem for
covert action during the Clinton administration has not been
notification and control. Rather, it has been bad strategic thinking.

In a memorable New Yorker cartoon, two scientists are standing in
front of a blackboard, the left third of which is covered with
complicated equations and formulae. The right third is filled with
similar hieroglyphics. The middle third, however, shows a giant arrow
running left to right, explaining the process with the annotation,
"then a miracle occurs." One scientist is saying to the other, "I
have some reservations about your methodology."

Recent covert operations suggest that U.S. officials are using a
similar methodology. They seem to conceive of covert action as a
quick fix that can magically solve problems when all else fails. In
reality, covert action works like any other foreign policy activity,
and poorly conceived operations fail whether they are covert or not.
Like all other policies, covert action requires a clear set of
objectives, an accurate understanding of the prevailing conditions,
and clear logic on how the operation will achieve goals. In terms of
the Clinton administration's failure, the CIA's recent overt
operation in Iraq is Exhibit A.

According to various press reports, the CIA ran a Cold War-style
operation against the Iraqi Ba'ath regime in various forms from 1992
to 1996. The goal was to eliminate Saddam Hussein by encouraging a
military coup, in part by reducing drastically Saddam's control over
Iraq's outlying regions--in particular, Iraqi Kurdistan.

Kurdish nationalists in northern Iraq rebelled at the end of Desert
Storm in early March 1991, when Saddam's hold on power seemed to be
weakening. Surviving Iraqi army units rallied to quash the rebellion.
Kurds fled their cities for the mountains. With a potential refugee
disaster looming, the United Nations imposed a "no fly zone" in the
northern third of Iraq and provided food and supplies to the Kurds.
As a result, beginning in March 1991 the Iraqi Kurds gained
substantial autonomy. It was also in 1991, during the Bush
administration, that the United States began its covert effort to
eliminate Saddam. At the time, U.S. officials, believing that Saddam
was weak and that his opponents would soon succeed in removing him,
saw no need to move quickly. Press reports suggest that this plan was
gradually expanded during the year before Bill Clinton took office.
The strategy was to isolate, marginalize, and weaken Saddam by
increasing the autonomy the Kurds enjoyed in the UN-protected areas.