The hearings to confirm General Michael Hayden as Director of the Central Intelligence Agency have had some unintentional effects. The culpability of Congress in what almost all observers agree is the dysfunctional nature of our intelligence community is on view. It is evident that Congressional oversight has grown far beyond its original charge of 'reining in' the CIA and has become instead a drag on our intelligence community's ability to carry out its task of protecting the country from another terrorist attack.

The cure has become the new disease.

Prior to the 1970's, intelligence gathering was the exclusive responsibility of the executive branch of government. Presidents from Washington to Nixon enjoyed an almost unlimited ability to use intelligence assets as they saw fit. Between 1947, when the CIA was established, and 1976, there was an informal arrangement between some members of the House and Senate Armed Services Committees and the CIA. A few members were kept loosely informed of some covert operations and there was joint consultation on some budgetary matters. Institutionally, the shortcomings of this haphazard arrangement became clear during the course of the Church and Pike Committee hearings that explored many of the CIA's more questionable operations including some blatantly illegal activities directed against domestic targets.

The revelations resulted in the first real attempts at Congressional oversight of intelligence activities in American history. Beginning with the Hughes—Ryan Amendment to the Foreign Assistance Act of 1961 which prohibited covert operations unless there was a 'finding' by the President that the operation was necessary and important to the national security and that such a finding be shared with the appropriate committees in Congress, lawmakers attempted to control the CIA's ability to do its job by using its prerogative as holder of the purse strings. When presented with a CIA plan in 1975 to covertly assist Jonas Savimbi's UNITA faction in the Angolan civil war against the Cuban backed government, lawmakers refused to fund the program due to fears that Angola would become another Viet Nam.

When the intelligence committees of the House and Senate were created in 1976, they initially fought for turf with other, more established committees like Armed Services and Foreign Affairs. What finally emerged from this internal fracas were two pieces of legislation that have had a direct bearing on how the Bush Administration has gone about the business of protecting American citizens from another terrorist attack while leading to controversy and now confrontation with Congress over who controls our intelligence agencies.

The first of those laws, the Foreign Intelligence Surveillance Act (FISA), which requires that a court order be obtained from a special court established by the Act for all electronic surveillance for intelligence purposes within the United States, has been in the news as a result of the President's decision to by pass the FISA court while ordering the National Security Agency to collect data on overseas calls that either originate or terminate in America. The question of whether or not the program is legal has been addressed on these pages by my good friend Clarice Feldman. However, the legality of the program takes a back seat to the oversight issues involved. As Clarice points out in her piece:

In 2002 both the New York Times and Newsweek reported that cumbersome legalities related to the Foreign Intelligence Surveillance Act of 1978 prevented crucial dots from being connected, which could have stopped the 9/11 plot. Federal Judge Royce Lamberth's criticisms and investigation of the FBI official charged under FISA with preparing FISA warrant requests had essentially shut down the process in the critical pre 9/11 period. This, in fact, was the reason why the agency had not sought a warrant to view the contents of Moussaoui's computer, a search which as we now know might have prevented 9/11. Indeed, the Joint Senate and House Intelligence Committee report detailed just that.

In the wake of 9/11 it is clear that President Bush decided to 'stretch the envelope' of executive privileges relating to intelligence activities as they impact on both judicial and congressional oversight. He has done so, basing his decisions on powers granted to him by the Constitution in his role as Commander in Chief.

The second piece of legislation whose strictures the President has come in conflict with is the Intelligence Oversight Act of 1980 which requires the President to notify members of both the House and Senate intelligence committees of all 'intelligence activities.' This requirement is waived when the President determines that informing the entire committees of covert actions would reveal intelligence 'sources and methods.' In this case, the President is required to inform what is known as the 'Gang of Eight' that includes the House and Senate Intelligence Committee Chairmen and Vice Chairmen as well as the Majority and Minority Leaders of both Houses of Congress. The President is also authorized to inform any other legislator he deems fit to receive the information.

Where the President has come a cropper of Congress with the NSA program is in the notification department. Some lawmakers are complaining that they were kept 'out of the loop' and therefore unable to discharge their oversight responsibilities. House Intelligence Committee Vice Chairman Jane Harmon complained that briefings on the program should have been disseminated to the entire Committees of both the House and the Senate. Just yesterday, Senator Olympia Snowe (R—ME) observed:

'The notification to a very limited group — they could do nothing much with that information, essentially — is not the kind of checks and balances that I think our founding fathers had in mind.'

Snowe's comment reveals problems that have plagued congressional intelligence oversight from its inception; that politics and personalities have played a disastrous role in emasculating our intelligence collection efforts while making the agencies themselves more timid and even more political.

This has been borne out by the way that Congress has shaped the way our government gathers intelligence in the last 30 years. While the excesses of the CIA revealed by the Church Committee led to some much needed reforms within the agencies themselves, Congress essentially mandated that the CIA drastically reduce its human intelligence capability and start relying more on the marvelous technological tools available to it through the use of spy satellites. The reasons are explained by Stephen F. Knott, author of Secret and Sanctioned: Covert Operations and the American Presidency:

The damage done to the CIA by this congressional oversight regime is quite extensive. The committees increased the number of CIA officials subject to Senate confirmation, condemned the agency for its contacts with unscrupulous characters, prohibited any further contact with these bad characters, insisted that the United States not engage or assist in any coup which may harm a foreign leader, and overwhelmed the agency with interminable requests for briefings (some 600 alone in 1996). The committees exercised line by line authority over the CIA's budget and established an Inspector General's office within the agency, requiring this official to share his information with them, causing the agency to refrain from operations with the slightest potential for controversy. The CIA was also a victim of the renowned congressional practice of pork barrel politics. The intelligence committees forced the agency to accept high priced technology that just happened to be manufactured in a committee member's district.

On some occasions, members of Congress threatened to leak information in order to derail covert operations they found personally repugnant. Leaks are a recurring problem, as some member of Congress, or some staff member, demonstrated in the aftermath of the September 11th attack. President Bush's criticism of members of Congress was fully justified, despite the protests from Capitol Hill. Leaks have occurred repeatedly since the mid—1970s, and in very few cases has the offending party been disciplined. One of the Founding Fathers of the new oversight regime, former Representative Leo Ryan, held that leaks were an important tool in checking the 'secret government.'

Lost in all of this politicking was assisting the intelligence community in doing its job. It's clear that President Bush and Congress apparently disagree on what the role of intelligence oversight should be. While the executive sees oversight as a simple matter of informing Congress of activities mandated by statute, lawmakers want virtual veto power over these same activities. And this collision becomes overheated especially when secret activities such as the NSA intercept program are leaked to the press. Congress plays the injured party of not being 'informed' while the President has followed the letter of the law and briefed the appropriate members. Meanwhile, the President's opponents can accuse the Administration of carrying on a program with 'insufficient oversight' despite the fact that Bush has discharged his responsibilities in this regard.

In the end, it comes down to who controls the intelligence apparatus of the United States government. This has led to politicizing the agency as high level appointees owe their allegiance to the executive while the careerists are closer to Congress. Professor Knotts comments on the consequences:

Ultimately, the CIA's ineffectiveness stems from the fact that it is, as its former Director Robert Gates observed, 'in a remarkable position, involuntarily poised nearly equidistant between the executive and legislative branches.' In becoming a partner (if not outright owner) of the CIA, Congress has put itself in the uncomfortable position of having to approve of objectionable measures. This most democratic branch of government is simply not designed to make the tough and often distasteful decisions that are required of nations competing in the international arena.

He might have added that when measures to safeguard domestic security are made public, 'the most democratic branch of government' sways in the winds of domestic opinion and as a result is unable to come to grips with their legitimate oversight responsibilities.

To some responsible civil liberties absolutists as well as irresponsible political opportunists, the President's actions in defending our security have bordered on the criminal and are designed to defeat the purposes of oversight in general. To others, the President is simply redressing a balance that for 30 years has favored the legislative branch of government and impacted negatively on the ability of the executive to carry out its duties to use our intelligence agencies to protect American citizens.

It is an interesting debate with good arguments to be made by both sides. Ultimately, where one comes down on the issue rests on the question of trust. Do you trust George Bush or any President to use the awesome power of his office in a constitutional and legal manner?

On such a question, the fate of the nation may ride.

Rick Moran is a frequent contributor. He is proprietor of the website Rightwing Nut House.