CONGRESSIONAL OVERSIGHT OF MODERN WARFARE: HISTORY, PATHOLOGIES, AND PROPOSALS FOR REFORM.

• Author: Hathaway, Oona A.

TABLE OF CONTENTS INTRODUCTION 141 I. HISTORY OF CONGRESSIONAL OVERSIGHT OF MILITARY AND INTELLIGENCE ACTIVITIES 150 A. The Foreign Relations and Foreign Affairs Committees 150 B. The Armed Services Committees 154 C. The Intelligence Committees 156 II. THE CHALLENGE OF MODERN WARFARE 160 A. The Post-9/11 Title 10-Title 50 Convergence in Modern Warfare 161 1. The Rise of Modern Warfare and Its Oversight Challenges 162 2. Congress's Attempts to Respond to the Challenges of Modern Warfare 167 B. Congressional Oversight of Cyber Operations 171 1. Early Responses to the Emerging Cyber Domain 171 2. Filling Gaps While Entrenching Silos 174 III. THE PATHOLOGY OF MODERN WARFARE OVERSIGHT: INFORMATION SILOING 186 A. Information Siloing: A Problem of Congress's Own Making 187 1. The Power of the "Must Pass" NDAA 187 2. Committee Membership Rules 188 3. Classification Restrictions 189 4. Inter-Committee Turf Wars 192 B. Siloing and Its Implications for Oversight and National Security 194 1. Siloing Obstructs Deliberation and Informed Legislating 194 2. Siloing Means No Committee Has the Complete Picture 198 3. Information Siloing Exacerbates Institutional Jealousies and Impedes Agency Coordination 200 IV. PROPOSALS FOR REFORM 201 A. Why Not Create a Super Committee? 202 B. Four Proposals for Reform 206 1. Expand Cross-Committee Membership 208 2. Require Joint Briefings 209 3. Modify Classification Procedures 210 4. Create a Congressional National Security Council 213 CONCLUSION 217 INTRODUCTION

On October 4, 2017, eleven American Special Forces soldiers traveling with a small Nigerien convoy were ambushed by fighters armed with rocket-propelled grenades, mortars, and heavy machine guns. Four American soldiers--Staff Sergeant Bryan C. Black, Staff Sergeant Jeremiah W. Johnson, Staff Sergeant Dustin M. Wright, and Sergeant LaDavid Johnson--were separated from their unit and left to battle the militants for more than four hours. Their tortuous fight to stay alive was later pieced together after their deaths using video footage from overhead drones and Sergeant Wright's helmet cam. (1)

Seven months later, on May 10, 2018, the Pentagon produced a 6000-page classified report on the incident but released just an 8-page summary to the public. (2) After the Senate Armed Services Committee (SASC) received a classified briefing from the Pentagon, Senator Tim Kaine accused the military of hiding the true nature of its mission in Niger from Congress: "I have deep questions on whether the military is following instructions and limitations that Congress has laid down about the mission of these troops in Africa." (3) The legal authorization to conduct a "train-and-equip" mission in Niger was, he argued, "a fig leaf and the briefing, far from answering questions, raised concerns "about why people are hiding from us what they're doing." (4) Republican senator and SASC chairman John McCain joined in the criticism, stating that he knew "[v]ery little" about the U.S. Special Forces presence in Niger, and "[w]e're just not getting the information in the timely fashion that we need." (5) Senator Lindsey Graham, too, complained, "We don't know exactly where we're at in the world, militarily, and what we're doing." (6)

The members of Congress were right: no one in Congress understood the full extent of U.S. involvement in Niger--or in other countries with similar multi-faceted operations. But this confusion did not result, at least not primarily, from the executive branch hiding what it was doing from Congress. The problem was more pernicious: various elements of the military and covert activities in Niger had been briefed to various congressional committees, but no committee--and no member of Congress--was in a position to put all the pieces together. A former congressional staff member explained:

This was an example of stovepiping within and across committees. From what I could piece together, the DOD [Department of Defense] had sought and Congress approved programming under several different authorities for engaging with the Nigeriens. Some were Title 10 train-and-equip programs, and others were likely special operations authorities for clandestine operations... Each of them was likely sent up as an individual package to Congress.... [Everything] was notified in pieces. No one was in a position to put those pieces together. (7) This Article is about the pathologies caused by this "stovepiping"--or what we call "siloing"--of information about modern U.S. national security operations. The information barriers reflected in the Niger episode are endemic to the entire military, intelligence, and foreign affairs oversight structure as it currently exists. Crucial information about certain activities is often available only to a small cadre of congressional members and staffers. As a result, few members, if any, have access to all the relevant information. (8) This means that members of Congress are sometimes left to make decisions that bear on national security and foreign relations in the absence of essential information. In short, members of Congress lack the full picture of American force capabilities, hindering their ability to fulfill their constitutional role in overseeing the executive branch and helping to protect the country. (9)

When it works as it should, oversight ensures that Congress can serve as an effective check on the executive branch. Congressional oversight is essential to calibrating national decision-making to political and policy concerns; preventing waste, fraud, and abuse; and ensuring government programs respect civil liberties and comply with the law. (10) As outside observers, members of Congress and their staff can identify operational gaps, strategic shortcomings, bureaucratic mission creep, and groupthink. Congressional oversight can also provide democratic legitimacy, especially since national security and foreign policy activities frequently take place outside the public's view.

Given the importance of oversight, Congress's current information-sharing challenges have real consequences. To take just a few examples: the Senate Foreign Relations Committee (SFRC) and House Foreign Affairs Committee (HFAC) may have to vote on an authorization for use of force without understanding options for covert operations that could achieve a similar purpose with less risk, potentially leading to unnecessary and ill-advised operations. The House Armed Services Committee (HASC) and SASC may be asked to approve a train-and-equip program for a partner force in a nation without knowing that the Central Intelligence Agency (CIA) is already operating essentially the same program--creating the possibility that the overlapping programs might not only waste money, but actually undermine each other. And the House Permanent Select Committee on Intelligence (HPSCI) and Senate Select Committee on Intelligence (SSCI) may support a proposed covert operation without understanding the broader foreign policy context--and the reaction it might cause if discovered.

While Congress's failure to share information across committees may have always been a problem to some degree, it has grown markedly over the last decade with the rise of modern national security operations that do not fit neatly within the committees' jurisdictional boxes. In the wake of 9/11, the rise of light footprint special operations and remotely piloted aircraft (colloquially known as "drones") combined intelligence and military tactics. This led to a blurring of the lines between traditional military oversight, codified under Title 10, and intelligence oversight, codified under Title 50. (11) The convergence of Title 10 and Title 50 has become more pronounced as the share of cross-cutting operations in the U.S. operational structure has grown over the last two decades. (12) The rise in the last decade of cyber operations, which also do not fit neatly into Congress's existing oversight structure, further complicates the current oversight picture.

As these modern forms of warfare have become increasingly important to U.S. military and intelligence operations, this failure of fit has created more and more glaring problems. To begin with, modern forms of warfare do not easily map onto the War Powers Resolution (WPR) framework governing the use of force. After all, drones, special operations, and cyber operations do not generally involve many "boots on the ground," which some regard as a key trigger of the Resolution's framework. (13) Standing alone, cyber operations in particular have fallen below the threshold for "hostilities" that would trigger the WPR reporting framework. (14) Congress has responded to these challenges in the last few years by iteratively adding reporting requirements for modern warfare operations. (15) But in the process it has left too many members of Congress in the dark about modern warfare operations that are directly relevant to their work.

Drawing on interviews with current and former lawyers and professional staff members in Congress and the executive branch, (16) this Article shows that the siloing problem in modern national security operations has undermined Congress's ability to conduct adequate oversight. This, in turn, threatens to harm U.S. national security. Our focus in this Article is on modern "warfare"--that is, activities involved in war--as well as activities that support them and offer alternatives to them. But the problems we identify are not limited to "warfare"; they affect the entire U.S. national security system. Moreover, in casting a spotlight on the oversight of modern warfare, we aim to illuminate a bigger problem that plagues Congress: it is not structured to efficiently and effectively oversee issues that cross the jurisdictional boundaries of its longstanding committee structure (committees that were in some cases created over a century ago). This problem is especially pronounced in areas that involve classified...