There was a time when House and Senate Intelligence chairmen would soberly remind their colleagues: “We are the only committee in Congress that must enact our annual authorizing bills or not a dime can be spent for intelligence activities.”
[IMGCAP(1)]And, technically, they were correct. When the House and Senate permanent select Intelligence committees were created in the late 1970s, the rules of both bodies specified that “funds may not be appropriated for a fiscal year” for carrying out the activities of the intelligence community “unless the funds shall previously have been authorized … during the same or preceding fiscal year.” Moreover, in 1985, Section 504 of the National Security Act was amended to require that funds appropriated to an intelligence agency could not be obligated or expended unless “those funds were specifically authorized by the Congress for use for such activities.”
Notwithstanding these seemingly iron-clad prohibitions, the intelligence community has been chugging along quite nicely, thank you, even though an intelligence authorization bill has not been enacted since 2004. “How do they do that?” you might wonder. Have these secretive agencies stumbled upon some stealth funding device beyond the reach or knowledge of Congress?
To the contrary, it is Congress that has found a substitute mechanism to satisfy the requirements of law. It simply inserts the following paragraph in the annual Defense appropriations bills that fund the intelligence agencies: “Funds appropriated by this Act … for intelligence activities are deemed to be specifically authorized by the Congress for purposes of section 504 of the National Security Act.”
Whoever came up with the idea of anointing Congress with statutory “deeming” authority certainly saved it a lot of time and trouble. Imagine how many things Congress can deem itself to have done without actually doing them. Of course, being seen as a “deeming Congress” may be a demeaning experience if the public perceives it as having no redeeming practical value. When used as an alternative to overseeing the work of the intelligence community, it becomes a very serious oversight given all the terrorist threats since 9/11.
One can understand how Congress and the executive branch came to loggerheads over some of the Bush administration’s anti-terrorism policies. Even though the House diligently passed its authorization bills during Bush’s second term, the Republican-controlled Senate did not act in two of those years because of veto threats. With Democrats in charge in the latter two years, Congress failed to override a veto in the first and to complete its work in the second.
Last year should have been different with Democrats in control of the White House and Congress. The House Intelligence Committee dutifully reported its bill in late June and got the green light from the Rules Committee on July 8 with a special rule making 14 floor amendments in order. However, that same day the administration issued a hard-hitting Statement of Administration Policy, raising “serious concerns with a number of provisions that would impede the smooth and efficient functions of the [intelligence community] and that would raise a number of policy, management, legal and constitutional concerns.”
House Democratic leaders beat a hasty retreat by pulling the bill rather than risking a veto. That did not stop the Senate from passing its own bill with amendments by unanimous consent in September. No further action was taken on the authorization in the first session, and the requisite deeming language was enacted instead.
It therefore came as something of a surprise when House Intelligence Chairman Silvestre Reyes (D-Texas) sought a new rule for his dormant bill two weeks ago — nearly five months into the fiscal year. Rather than using the same committee-reported language, however, Reyes sought to further amend the bill to reflect negotiated compromises with the administration and some additional suggestions from colleagues. Twenty-one Democratic amendments were folded into Reyes’ manager’s amendment, meaning they would not be subject to a separate debate or vote.
Ordinarily a manager’s amendment consists of a few substantive tweaks here and there. However, this tweak turned into a big twuck carrying a cargo of 31 changes running 24 pages single-spaced. Given the magnitude of the changes, another committee markup session might have been prudent to avoid embarrassment, because that’s exactly what happened with one Democratic amendment on interrogations tucked into the manager’s amendment. It was so politically indefensible that the Rules Committee had to report a third rule to strike it from the bill.
An additional 12 amendments were made in order by the Rules Committee: five by Democrats, four by Republicans and three bipartisan — all having the support of the Intelligence chairman. (Presumably, many of the remaining 42 amendments left on the cutting room floor at the Rules Committee were not supported by the chairman.) The rule and bill went on to pass on near-party-line votes.
The latest run-in between Congressional Democrats and President Barack Obama over who in Congress should receive secret intelligence briefings and under whose criteria — the “Gang of Eight” or all Intelligence Committee members — was finally resolved by giving all committee members more general descriptions of briefings that are confined to the top leaders. It is an indication that unified party government can reach accommodations between the branches on sensitive matters where divided party government failed — especially when Congress accedes to the president’s wishes.
It would be easy to conclude that the whole intelligence process has become a partisan football following the brief, bipartisan 9/11 afterglow. There is no question that both parties now try to score points over which is tougher on national security. However, the deeper divide is produced by a clash between the branches over relative prerogatives on national security — a never-ending tug and pull that Congress usually loses as evidenced by its repeated retreats.
Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.