Wait, Did the System Just Work?

Wait, Did the System Just Work?

By Amy Zegart - March 29, 2013

The Obama White House deployed a new unmanned aerial vehicle last week: the drone trial balloon. According to several well-placed leakers, the CIA's not-so-secret targeted killing program will probably be not-so-secretly handed over to the Pentagon in the coming months. It was the rarest of moments in American politics: a time when congressional oversight of intelligence seemed to work.

The government's targeted killing program went from a hot prospect to a hot potato with lightning speed for the policy world. Just months ago, the Obama administration was trumpeting the effectiveness of targeted killing operations -- which have been publicly carried out by the Pentagon in some places and publicly known to be carried out by the CIA in others like Pakistan and Yemen. Republican presidential candidate Mitt Romney out-droned the president on the campaign trail, saying in the October 22 presidential debate that he supported the drone strikes "entirely" and that "we should continue to use [drone technology] continue to go after the people who represent a threat to this nation and to our friends." To be sure, the ACLU has complained and filed lawsuits, think tanks have been counting up collateral deaths, and professors have had a field day debatingjust war theory and exploring the creepiness of remote control killing. But these criticisms did not move the policy dial much until February 7, when John Brennan faced his Senate confirmation hearing to be CIA director.

Brennan's hearing was a crucial focal point, the first time anything resembling a public debate about targeted killing had ever occurred. Brennan wasn't just some sideline figure caught up in someone else's policy fight like Chuck Hagel was in the Benghazi brouhaha. Targeted killing was Brennan's baby. In his old job as Obama's White House czar for homeland security and counterterrorism, Brennan had masterminded the program, from creating the bureaucratic processes determining which agency did what, right down to naming names for the kill list. In his new job, Brennan would have enormous sway over the CIA's future activities, including lethal drone strikes.

The timeline is revealing: On February 4, just three days before Brennan was slated to appear before the Senate Select Committee on Intelligence, someone leaked the administration's drone "white paper" summarizing the legal arguments used to justify drone strikes against Americans abroad. Suddenly, senators on the intelligence committee started getting partial access to some of the legal documents they had been requesting for months. This may not sound like much, but it beat what they had before: no access at all. You could hear chinks opening in the drone stonewall all over town.

At Brennan's hearing, there were anti-drone protesters a'plenty, many with giant posters they had somehow smuggled inside. One by one, heckling protesters were taken from the hearing room by Capitol police. But like one of those circus clown cars, more protesters kept appearing, seemingly from nowhere. Committee chair Dianne Feinstein had to halt the proceedings several times and eventually clear the entire room before Brennan could finish enough of his opening statement to thank his 91-year-old mother. It was a powerful scene, and it set the tone. Senators ranging from Republican Susan Collins to Democrat Ron Wyden pounded the soon-to-be CIA director on targeted-killing policy. Brennan responded with a masterful political performance -- long on assurances, short on concrete commitments. The White House promised to release more, but not all, the drone-related documents that the committee wanted. That was enough for Feinstein's committee, but not for Rand Paul, the wacky rookie Republican senator from Kentucky, who delivered a decidedly unwacky 13-hour filibuster against Brennan's confirmation, demanding better answers and greater transparency in drone policy. Paul's filibuster drew bipartisan support, tremendous national attention, and would have gone longer, except that he had to pee.

The intelligence committee's establishment politics and Paul's populist filibuster proved strange but effective bedfellows. It took just 42 days from Brennan's hearing to get wind that the CIA may be getting out of the drone business. That's warp speed under any circumstances. Consider this: Immediately after 9/11, it took longer to pass the PATRIOT Act, and that's back when Republicans and Democrats were singing "God Bless America" together on the Capitol steps.

However you feel about targeted killing, this moment was undoubtedly an oversight success, bringing an important policy into the public domain, where it can be scrutinized, defended, challenged, and discussed in a vigorous exchange between the legislative and executive branches, all without compromising national security. Was it pretty? No. But it was American democracy at its spirited best. Secrecy and accountability both won.

But don't get used to it. The drone policy shift is the exception that proves the rule: On most intelligence issues on most days, intelligence oversight is feckless, and Congress knows it. "I've been on this committee for more than 10 years," Senator Barbara Mikulski told Brennan during his confirmation, "and with the exception of Mr. Panetta, I feel I've been jerked around by every CIA director." And that's just what she says in public.

It's true that no administration lays out the CIA welcome mat for Congress. But Congress lets itself get jerked around far more than it should. Want to guess how many members of the current Congress have ever worked in intelligence before? Two. This means that most intelligence committee members have to learn on the job, which takes the one thing in shortest supply: time. If legislators want to win the next election, they're better off devoting time to other committees that offer pork and other benefits to folks back home and involve policy issues that they can at least talk about in public. From a re-election perspective, intelligence committee service is always a political loser. This is no secret. My research has found that fewer of Congress's most powerful members serve on the House and Senate intelligence committees today than they did in the 1980s, even though intelligence is arguably more important and challenging. What's more, the House still imposes term limits for representatives serving on the House intelligence committee (almost no other committees have them), ensuring that members have to rotate off just when they finally know what they are doing.

The Senate, meanwhile, has been holding fewer and fewer public hearings. As Steven Aftergoodnotes, the committee held only one public hearing in all of 2012, "the smallest number of public hearings the Committee has held in at least 25 years and possibly ever." To be fair, much oversight is done in private. But if the drone debate is any guide, the public part counts. A lot.

This article originally appeared in Foreign Policy on March 27. It is reprinted with permission from Stanford University's Hoover Institution

Amy Zegart

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