Forewarned is Forearmed

| Walter Pincus
Walter Pincus
Columnist, The Cipher Brief

Members of the House Permanent Select Committee on Intelligence have shown their frustration with what they believe has been a failure of the Pentagon to keep Congressional intelligence committees “fully informed” about Defense Department intelligence operations.

In their report on the 2017 Intelligence Authorization bill that the House passed overwhelmingly by a 371-35 vote Tuesday night, members fenced off $20 million in next year’s spending bill until the Department of Defense (DoD) certifies it is “in compliance with intelligence notification requirements as established” by law.

The committee (referred to informally as HPSCI) said in its report that its members were “frustrated by the varied scope, quality, and timeliness of written Congressional notifications from DoD and the military services, particularly those regarding intelligence acquisition programs and sensitive intelligence and intelligence-related activities.”

The panel’s report does not specify what specific events or issues triggered this legislative step, but the committee said it “remains deeply concerned that many DoD intelligence and intelligence-related activities are improperly excluded from the MIP,” the Military Intelligence Program over which the committee has jurisdiction.

Instead, the committee said, these activities are carried in the Defense budget as “Operational Preparation of the Environment (OPE),” which translates into gathering information to help fight in a foreign country, with the Pentagon claiming these “as traditional military activities and not as intelligence functions.”

The Pentagon announced that the MIP budget request for 2017 is $16.8 billion—that’s a big drop from FY 2010 when it was $27 billion, which may be one reason the committee is taking a look outside the MIP.

 “Clandestine military intelligence-gathering operations, even those legitimately recognized as OPE, carry the same diplomatic and national security risks as traditional intelligence-gathering activities, and intelligence-related activities are improperly excluded from the MIP,” the HPSCI report said.

As a result, the committee said, “these activities often escape the scrutiny of the intelligence committees, and the congressional defense committees cannot be expected to exercise oversight outside of their jurisdiction.”

Although OPE activities are funded in the main Pentagon budget, the committee directed DoD “to ensure that the committee receives proper insight and access to information regarding all intelligence and intelligence-related activities of DoD, including those presently funded outside the MIP.”

A 2011 directive from the Director of National Intelligence says that all elements of the Intelligence Community, which includes DoD intelligence activities, are to “‘keep the Congressional intelligence committees fully informed, in writing, of all significant anticipated intelligence activities, significant intelligence failures, significant intelligence activities, and illegal activities.’’

The HPSCI report points out, “There is currently no comprehensive DoD policy establishing guidelines for notification of intelligence activities to Congress.”  Under the committee’s report provision, the hold on $20 million remains until there is “written guidance to the DoD and military service intelligence components regarding notification to Congress of intelligence activities,” and the Under Secretary of Defense for Intelligence certifies the department is in compliance.

By raising the possibility that something that should be within its jurisdiction was not getting proper oversight because it appears to be solely under the jurisdiction of another committee – in this case the House Armed Services Committee – the intelligence panel was touching one of the third rails of Congress.

But reading further in the intelligence committee report shows HPSCI members are not limiting their complaint just to things like preparation of the battlefield. They actually went further into the Armed Services Committee terrain.

By a special law, first passed in 2008, the Defense Department was authorized to carry out a program called “nonconventional assisted recovery capabilities.” In fact, that meant the military could do what was necessary to rescue downed American service personnel from aircraft or others who were on missions in enemy or foreign-country controlled territory, such as Pakistan or Libya.

Such a rescue mission could easily involve intelligence operations, since they could involve using foreign or irregular forces or groups, or even civilians, and having to pay them. The law authorizing such recovery operations requires quarterly reports to “relevant congressional defense committee” on any such rescues undertaken.

In its fiscal 2017 Defense Authorization bill, the House Armed Services committee extended through 2020 the 2009 authorization for such recoveries. In its report on that bill, the Armed Services committee reminded the DoD “that this authority constitutes a traditional military activity for personnel recovery and should not be interpreted as an intelligence activity.”

If that was a challenge, the House intelligence panel decided to respond to it. In its report, the committee directed the Defense Department that “to the extent DoD conducts intelligence

or intelligence-related activities pursuant to [the section authorizing such recovery operations], DoD shall keep the Committee [HPSCI] fully and currently informed of such activities.”

Also in its report, HPSCI members directed the Pentagon to continue “pertinent updates regarding DoD’s efforts to address UAS [unmanned aerial systems, i.e. drones] acquisition and interoperability challenges.” That request was added because the Armed Services committee had repealed that reporting requirement in its version of the fiscal 2017 Defense Authorization bill.

In its report, HPSCI members also piggybacked on concerns raised by Armed Services on various new pieces of military equipment that involve Army and Air Force systems that distribute intelligence. It also directed the Army and Marine Corps intelligence elements to report to both it and Armed Services “on the feasibility of developing a common controller for all Brigade and below” unmanned air systems.

For years, both House and Senate members of the intelligence committees have chafed at what they have felt has been the Defense Department’s treatment of them as second class citizens when it came to reporting fully on their military intelligence operations. For much of that time, the intelligence panels focused primarily on CIA activities.

With the Pentagon’s increasing role in intelligence gathering through technical and human means in the era of terrorism, the HPSCI members are showing they want to get more informed and involved. Report language, such as described above, does not carry the weight of law, but if the Defense Department and military services don’t respond to it, the next step would be to put the current requests into statutory language that if passed, would have the force of law.

Forewarned is forearmed, as the old slogan goes.

The Author is Walter Pincus

Walter Pincus is a Columnist and the Senior National Security Reporter at The Cipher Brief. He spent forty years at The Washington Post, writing on topics from nuclear weapons to politics.  In 2002, he and a team of Post reporters won the Pulitzer Prize for national reporting. He also won an Emmy in 1981 and the 2010 Arthur Ross Award from the American Academy for Diplomacy.  He can be reached at [email protected]

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