U.S. intelligence agencies violate liberal norms. They break foreign laws, using clandestine methods to steal information from abroad. They also occasionally conceal their involvement in covert operations that meddle in other states’ politics. Success in either task requires secrecy. Intelligence collectors jealously guard their sources and methods to avoid alerting their targets. Covert operators jealously guard the details of their work to retain plausible deniability.
The demands of secrecy are contrary to the demand for accountability, however. Democracy requires mechanisms for holding government agencies accountable for their actions so that they obey the law and follow guidance from elected officials. Their work must be reasonably transparent to overseers. Forcing transparency upon intelligence agencies, however, threatens their ability to perform basic functions. Efforts to resolve this tension are at the heart of Genevieve Lester’s When Should State Secrets Stay Secret?
Lester describes a framework for understanding accountability at any given time. Intelligence oversight occurs internally (e.g., through enforcement of bureaucratic norms) and externally (e.g., through congressional committees and special courts). “Boundary spanning” mechanisms, such as investigators general, are partly internal and partly external. The balance among internal, external, and boundary-spanning oversight has shifted over time. Lester’s key insight, however, is that internal oversight has proven robust while external oversight has faltered. This is somewhat ironic, given that the modern system grew out of the 1970s, when fears of rogue intelligence agencies led to calls for more intensive congressional oversight and judicial review.
Readers may be skeptical of the idea that intelligence agencies are capable of self-oversight. The idea sounds like a logical absurdity and confounds organizational theories about the dubious notion of a self-evaluating organization. Recent intelligence scandals, like the CIA’s alleged complicity in post-9/11 torture and the National Security Agency’s domestic surveillance, cast doubt on the idea that internal oversight matters at all. But Lester argues that powerful internal norms of hierarchy and security force an adherence to institutional rules. Intelligence agencies are also populated by lawyers at all levels, who scrutinize the legality of their activities.
External oversight, on the other hand, suffers because of a basic information asymmetry. The executive branch controls intelligence information at all times, while congressional overseers have to jump through elaborate hoops just to get a glimpse. Presidents can invoke the national security privilege to restrict access to overseers, which increases their ability to control the management of secrets. Congressional oversight committees can bring intelligence officers to hearings, but cannot compel them to reveal classified information in open sessions. Congressional notification on especially sensitive matters takes place in special facilities, and the handful of senators and representatives who are privy to those briefings cannot take notes. The fact that internal accountability mechanisms have matured over the last 40 years gives the intelligence community another argument against increased external scrutiny.
Prior to the Foreign Intelligence Surveillance Act (FISA) of 1978, there was very little judicial oversight. The courts mostly deferred to the executive branch on intelligence and national security. While FISA partially broke this tradition, it only enabled oversight of a narrow category of intelligence collection activities. Moreover, the fact that the new Foreign Intelligence Surveillance Court (FISC) operated in secrecy led critics to question its utility as an oversight mechanism. Abuses were possible as long as the intelligence community avoided transparency. Again, however, defenders of the FISC arrangement point out that intelligence officers assiduously work to avoid antagonizing the senior federal judges who serve on the court, and have developed a robust system for staying in compliance.
Lester capably describes the various oversight structures that are meant to ensure accountability without denying intelligence agencies the secrecy they require. The framework provides a useful teaching tool by laying out the components of internal and external oversight. Her research benefits from secondary sources and interviews with a variety of intelligence officials, along with congressional and National Security Council staffers. She is meticulous about presenting both sides of every debate, which is important because the public discourse on intelligence tends toward hyperbole. Her discussion of internal mechanisms is particularly useful because most discussions of oversight focus on the congressional intelligence committees.
While the book contains clear descriptions, the theory is harder to follow. Lester’s “core argument” is that increased oversight has actually enabled secrecy (p. 6). Congressional inquiries are more routine but also more restricted. Judicial review is designed in a way that puts a premium on internal compliance rather than external sanction. None of the reforms have prevented the intelligence community from expanding the scope of its activities, while maintaining the executive branch’s key advantage in the control of national security information.
Why did this occur? The book does not offer a clear or consistent explanation. There is no theory of change. The author implies that a combination of security threats and variable public opinion conspire to place limits on oversight. Public demands for more oversight come in response to intelligence scandals, but public passion attenuates quickly, especially if a new threat emerges. This explanation is plausible, but it is never stated explicitly or in depth.
The argument would benefit from some attempt to measure the key components of accountability over time. This would help make the theory more convincing. It is not immediately clear, for instance, that the intelligence community is more opaque than it was before 9/11, or before the 1970s oversight reforms. The book is at its heart descriptive, but the author’s causal story is important and provocative. The notion that oversight efforts inadvertently led to a more robust secrecy regime demands explanation.
The book is also short on policy prescriptions. Strangely, Lester never answers the question posed in the title. Instead of entering the debate about secrecy, she focuses on efforts to strengthen oversight mechanisms. Her concluding chapter includes a brief set of broad recommendations, which all “come down to the requirements of good governance” (pp. 210–12). These are both vague and idealistic. Two of her key recommendations are to encourage the CIA to view investigators as legitimate, and to create “a tighter and more trusting information-sharing relationship between the Agency and Congress” (p. 211). Lester recognizes that this is optimistic, but offers no details about why optimism is warranted, nor any concrete measures to help build trust. In contrast, she provides more detail on simplifying court orders for the FISC in order to improve its efficiency. Such details may seem esoteric, but they are the stuff of oversight. More would help.
When Should State Secrets Stay Secret? appeared before the current controversy over Russian intelligence activities surrounding last year’s presidential election. Congress is now conducting multiple investigations into the Russian affair, and peering deeper into how U.S. intelligence agencies responded. The intense politics surrounding the investigation put a premium on sober, dispassionate analyses of intelligence oversight. This book is a good place to start.
