Congress’s Right to Counsel in Intelligence Oversight

This Article examines Congress’s ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch’s insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial in connection with the Bush administration’s warrantless surveillance program. Senate Intelligence Committee Vice Chair Jay Rockefeller noted the “profound oversight issues” implicated by the surveillance program and lamented the fact that he felt constrained not to consult the committee’s staff, including its counsel. This Article puts this issue into the larger context of Congress’s right to access national security-related information and discusses congressional mechanisms for protecting the confidentiality of that information. The Article also provides a comprehensive history of congressional disclosures of national security-related information. History suggests that the foremost danger to confidentiality lies with disclosure to members of Congress, not to staff. The Article identifies several constitutional arguments for Congress’s right to share information with its lawyers and other expert staff, and explores ways to achieve this reform.

The full text of this Article is available to download as a PDF.