The Role of Congressional Intelligence Committees

Dean Reuter:                     Welcome to The Federalist Society's Practice Group podcast. The following podcast, hosted by The Federal Society's International and National Security Law Practice Group, an Article I Project. It was recorded on Wednesday, April 18th, 2018, during a live telephone conference call, held exclusively for Federal Society members. Welcome to the Practice Group Tele form conference call as today we discuss the role of congressional intelligence committees. I'm Dean Reuter, Vice-President of General Council and Director of Practice Groups here at the Federal Society. Please note that all expressions of opinion are those of the excerpts on today's call, also this call is being recorded for use as a podcast in the future and will likely be transcribed. We're very pleased to welcome a returning guest. He is going to act as our moderator today. It is Matthew R.A. Hymen, he's Vice-President, Corporate Secretary, and Associate General Council at Johnson Controls. He's also a long time member of the Federal Society's international and national security law practice group executive committee. We'll leave it to him to lay out the format today and introduce our other guests. And with that Matthew Hymen the floor is yours.

Matthew Heimen:           Thank you Dean and thanks to those of you who have dialed in to listen to the tele form. We've got three excellent guests today to talk about the topic of Congressional oversight of the Intelligence community. I will give very brief introductions for each of them, but if you want to see more details about their career which all three have very impressive careers, you can go to the website and you can see full profiles of each speaker. So, in alphabetical order I believe we will be joined momentarily by Michael Bahar. Michael Bahar is a partner at Ever shed Sutherland, a law firm where he is the U.S. leader of their cyber security and privacy practice. German to today's conversation he was the former deputy legal adviser to the National Security Council at the White House. He was former Minority Staff Director and General Council for the U.S. House Intel Committee. He was also former active duty Navy jag officer.

                                                Michael Jeffroy our second guest is the Senior Vice-President at HSBC Bank and their Office of Public Affairs where he focuses on public policy on government affairs at the federal level. He was the General Council for the U.S. Senate Select Committee on intelligence. He was the General Council, I'm sorry, he was the Assistant Director for Enforcement at the Department of Treasury's office of Foreign Asset control. He was also a Lieutenant Colonel in the U.S. Marine Corps.

                                                Our final guest in alphabetical order is Heather Molino. She is the Senior Vice-President at Cornerstone Government Affairs. Prior to that she was the Minority Staff Director for the House Permanent Select Committee on intelligence. And prior to her time on Capitol Hill she was in broadcast journalism for a number of years. So I thank all of our panelists for joining us today. And to get things kicked off I thought maybe we could begin, maybe we'll begin with Michael Jeffroy.

                                                Michael can you just sketch out at a very high level the structure of intelligence committee oversight by the House and Senate. In other words can you give us a sense of what the committees, how they're put together, and what do they do day to day?

Michael Geffroy:              Sure, first of all thanks for having me and just let me state from the start here I'm speaking in my own capacity, I'm not speaking on behalf of the bank, so if I do say anything silly please don't close your accounts or anything like that. So, the Congress addresses I think in [inaudible 00:03:44] oversight in lots of different ways, but principally through the two intelligence committees, one in each chamber. And I think it's important to note that in terms of the congress the two committees are relatively young in their existence that you know they first came into existence back in the 1970's during the 94th Congress and they were initially preceded by the church committee back in 1975, so after the Church Committee did its thing Congress decided to form these two committees.

                                                And at the time, there's some good history on this, the Congress I think contemplated doing any number of models. They contemplated doing one sort of super committee that would embrace both chambers. The contemplated putting separate committees within the Armed Services committees. They contemplated doing separate committees within the Appropriation committees etc. But what they ended up with was two Authorization Committees, one in the House and one in the Senate. And so that's why they're relatively young, only about 40 years old. Both committees are what we call select committees in that they are of the leadership in each chamber selects who the members on each of those committees may be and what type of tenure they'll have on the committee. The Senate and the House take slightly different approaches to tenure on the committees, how long members can stick around or not. I think the House limits their terms for membership, in the Senate we don't have the term limits. So, we have a little more longevity typically in the Senate.

                                                Senate Intelligence Committee is comprised of 15 members. Eight majority and seven in minority. It has additional ex officious members who are able to attend committee hearings, but don't vote. So the leader and minority leader and then the two members, the chairman and a ranking member of the Senate Armed Services committee will sit on the committee ex officious. So they get to attend all of the hearings and ask questions, but they don't get to vote. Heather can probably tell you a little bit more about how the House intel Committee is set up in terms of membership. In the Senate we have as I said 15 members, we typically have a staff at any given time of approximately anywhere between 50 and 60 staff. And that's typically split fairly evenly between the majority and the minority.

                                                The Chairman and what we call the Vice-Chairman on the committee, not the ranking member and I think that's meant to communicate that it's supposed to be a collective effort between the two staffs and the members. It's meant to also communicate that we're trying to avoid as much as possible the politics that ultimately and almost inevitably get involved in a lot of the things they are responsible to discuss. If there's a flip in the majority in the chamber, there's typically just one side will lose a member, another will gain a member. Typically the staff will pretty much stay the same except for normal attrition. And what the model that they've developed in the Senate is each member of the committee has what is called a designee. So they are dedicated to that member and that member's concerns. But they're also typically responsible for a portfolio. So there may be a designee who's assigned to Senator Chairman Burr who also has responsibility for the CIA portfolio or the NSA portfolio or FBI portfolio, those type of things.

                                                There are additional staff on the committee who are not designees who are basically professional staff assigned particular areas of their expertise. And what typically happens or has evolved a little bit over time is there is a majority staffer and minority staffer who are assigned to the same portfolios. And they are encouraged or required to work as closely as possible if they can. Heather I don't know if you want to say anything about how the HPSCI's set up.

Heather Molino:               Yeah so this is Heather Molino. Thanks so much everyone for tuning today at lunch time to listen to this. HPSCI is set up with the same end goal of oversight of the intelligence community, but it's set up a little differently. The committee ranges in size from members. It's done completely on ratios on who is the majority in party and who is the minority. When I was there, Mr. Ruppersberger of Maryland was the ranker and Chairman Rogers of Michigan was the chair. At that time we had 20 members but as the election after that in 2014 they expanded that to 22 members. So it goes by the ratio that if there's more they tend to add more members rather than take them away. So, right now, I was just looking on the website actually. There are 13 majority members, so 13 Republicans and 9 Democrats. It was tighter when we were there, we had 10 and then had 10 as well, no they had 11 and we had 10. So it ranges anywhere from 20 to 25.

                                                We do not have designees to go get exactly what Michael Jeffroy did. We do not have designees in the House. There are a majority and minority staff. Everyone serves at the pleasure of the Chairman, but it's pretty much gentleman's agreement that the minority side has between 10 and 15 professional staffers and the majority side has between 25 and 30. There's a staff director and a deputy and then they are just split up on issue areas. So, you'll have someone who handles the CIA account, someone who handles Overhead Architecture, you're technical person, someone who handles emerging threats, your cyber sort of set up that way. The HPSCI there are four sub-committees. CIA is one, DOD Overhead Architecture is two, Emerging Threats which is sort of cyber and related things is three, and foreign adversaries and then there's an NSA sub-committee as well.

                                                So that is set up a little bit differently but the biggest thing and Michael and I were talking about this before the call. The biggest responsibility we felt when I was on the committee from 2010-2014 was the biggest way to do oversight was to do an Intelligence Authorization Act which was the budget bill, the authorizing side of the budget bill for Congress. So, one of the things when my boss took over as ranking member in 2010 with Chairman Rogers the other staff director and I sat down and there hadn't been an intel audit for several years and we said this was the best way to do oversight because the intelligence community if we are not passing a bill they sort of do what they want because the appropriators appropriate the money. But then there's no one looking in the nitty gritty programs which is what the authorizers do so at the time we passed an Intelligence Authorization Act.

                                                We passed five of them in the four years I was on the committee that gave the budget down to program level with a lot of specificity on what we felt the best way to spend the money was and we also used that as a carrot or stick depending on what we were doing at the time to make sure the intelligence community was informing Congress in making the decisions that Congress approved in that way. So that's the setup of HPSCI. HPSCI is definitely very different than the Senate intel.

Matthew Heimen:           Yeah, no I appreciate those descriptions because I think sometimes to a casual observer you would assume that they're pretty much doing the same thing which leads to my next question and that is. How much interaction is there between the House committee and the Senate committee? In other words, is there duplication of effort between the two committees? I know each is serving their respective chamber, but is there ever a time in which the two committees are communicating with each other and dividing labor or at least sharing work product? I'm wondering how that works. 

Michael Geffroy:              Heather I'll jump in if you want, and I would note that Heather mentioned that the HPSCI has sub-committees and that's one model that the Senate does not have. We just have the straight up committee in part because our memberships are a little bit smaller. But that's a fine point of distinction.

                                                But to answer your question, typically each chamber is doing its own business. But there is, just because of the nature of the subject matter. There are frequently opportunities for joint briefings. There's a, Heather I can't think of a time when we did a joint hearing, certainly not during my tenure. But there will be times when staff are welcome to come over and listen in to the other chamber's hearings, especially if they have the appropriate clearance levels and what not.

                                                When we craft the Intelligence Authorization Bill or if there's other legislation that we're working on like back in 2015 we passed out the Cyber Security Information Sharing Act and the intelligence committees were given the responsibility to craft and shepherd that bill to Congress and we worked when I was the General Council at the time and we worked very closely with our counterparts in the House. I on a daily basis there is not much joint activity. I'd say it's more kind of specific in nature and that's just the nature of the beast. And you'll frequently see on one day the Director of National Intelligence will come and testify before the Senate and then the following Thursday he'll come over to the House side and do the same.

                                                One other point, when we were crafting the Authorization bill each year, we among the staff would typically every other year one committee would have the pen on the legislation and would be responsible for the nuts and bolt of putting the actual bill together and that would flip from year to year which chamber would have the pen so to speak.

Heather Molino:               Yeah and this is Heather and so I'll just echo this comment. So we had a few joint briefings here and there if a high profiled guest would come like a King of a Middle-Eastern country would come several times and we would all get together in the House side and the Senate side and do that but not as many joint hearings but I will say where a lot of the time we spent with Senate intel was on the Intel Authorization Bill.

                                                We would, the House, just to give you a little process, the House when I was there would almost always mark up the bill in the spring like now, put in on the floor of the House in May usually of the week before or after Memorial Day weekend and then send it over to the Senate. And then what we, I spent a lot of August, over in the Senate Intelligence Committee in that hearing room or in that side conference room negotiating the bill. We would try and clear as much brush as we could as staff to agree on as many things and that's really how we worked together the best was going through section by section. Okay our staff feels this, your staff feels that. How do we work through it and we would go through it section by section and clear as much as we could. And then at that point bring it up to the member level. Through the members of the committees and then bring it up to what we used to call the Big Four. Which at the time was Senator Chandlice, Senator Feinstein, Chairman Rogers, and my old boss Congressman Ruppersberger. And we would sit in that conference room, I remember sitting in that conference room a lot, and go through, that's really how we worked together, like how do we negotiate our way out of this. Because we want to pass the bill and we want to speak as one voice to the intelligence community as to what we want them to do and what we feel is effective. And that was our most effective way of oversight was to pass those bills. And we did, as I said, we passed together five of them in four years. And that was the majority of the interaction focused on the intel [inaudible 00:17:03] throughout the year between the two committees.

Michael Geffroy:              I don't think that process is inherently different than my experience on other committees where each chamber did its own work and the staff typically that's their job, they're responsible for crafting the actual language of the bills or putting the hearings together and then ultimately when the soup is ready to get it to the members to see how they like it or not. Of course with their guidance along the way.

Matthew Heimen:           And along those lines it sounds like there's a fair amount of cooperation I'm sure there's a fair amount of negotiation and maybe some consternation along the way too. But, can you talk about your respective experiences? Obviously, Michael you were on the Republican side and Heather you were on the Democrat side. In terms of the level of partisanship within the confines of intelligence community oversight, was it highly charged if you were to compare it to other committees or obviously when there are disagreements it hits the newspaper, but in the main was there a lot of alignment in terms of the broad things you were trying to accomplish in terms of oversight?

Michael Geffroy:              So I think, like everything up on the Hill, bipartisanship and community is a choice that the members have to make amongst themselves. And my experience with the members that I worked with whether it was Senator Chandlice or Senator Burr or any of the current membership on the committees was that they took this role as a member of the committee extremely seriously. And they would always be very well prepared and well staffed. And they understood that if they were going to get anything done they would really need to be able to find the middle ground.

                                                Heather mentioned that when Dutch and Mike Rogers came in and Senator Feinstein was the Chairman at the time and before that in the mid-2000's there was a period of time, I think maybe it was five or six years where the Intel Authorization Bill was not passed. And that was a direct result of the rank opinions and feelings of the war in Iraq and the counter-terrorism efforts. So there were a lot of many challenges that precluded the ability of the members to get together to create an Authorization Bill. I'm sure there's a lot of history on that and a lot of reasons that happened, but, when the new leadership came over to HPSCI, they made a deliberate effort to say, hey we need to exercise our authority here because as Heather pointed out, the Authorization Bill is the too for Congress to exercise direct authority over the community, the various agencies of the community. It's in the Authorization Bill and the classified amex that gets attached to it where each program is taken apart and is authorized where guidance is given and if you don't pass that bill, then as Heather said, the appropriators get to appropriate a big pile of money but the various agencies have no formal guidance on what they can and can't do, so its hugely important to get those bills passed and for the past, oh gosh let's think, a solid nine or ten years at this point that they've passed an Authorization Bill. What I think is a good point to make here is that the bill typically does not get passed as a stand alone bill. It will come out of a committee and go to each chamber's floor, but it is typically, it ends of being attached to a larger vehicle whether it be an omnibus spending bill or other must-pass legislation. And in that sense, that is in more recent history, that's been the typical path to get the Authorization Bill passed into law.

Heather Molino:               And this is Heather, so one of the things when we came and Michael Jeffroy put it very very well that there was a lot of partisan rancoring when we came in and I remember it was a very personal thing. We sat down with Chairman Rogers and his staff director was Michael Allen, still a really good friend of mine, and the Congressman Ruppersberger and I, we sat down and we said Myrna we are not goin to let partisanship get in the way of getting the intel op back on track and becoming a fully functioning committee that does oversight and that communicates with the intelligence committee and makes sure we do what's best for the country.

                                                It took real commitment and granted there wasn't, we didn't, my tenure was way before Russia and all that other mess that has happened. But we sat down and said we are not going to let partisanship get in the way. And there were times when we had to be partisan, but we would always make sure that the majority knew what we were doing and why we were doing it. We never surprised them, we never sniped at them without them knowing what was going on. It was this is what we have to say, this is what you, we know you're position, this is our position. But we were able to be strong advocates of what we thought was right but also be professional and be kind and do what we needed to. We were civil and we were able to get the intel op back on track and pass the Cyber Info Sharing Bill. I mean we passed it twice, two times, two terms, while we were there and then it finally went into law a year or two after I left, after I left the commitment when Mr. Ruppersberger left.

                                                So, but it was a real commitment to saying we're going to do what's right. And it's hard because there's a lot of external factors, but we made a commitment to bipartisanship and believed it was the right thing to do and follow through on that.

Michael Geffroy:              [crosstalk 00:23:23] One point to add on that is, in both offices and the staff sit in common areas. I mean there are a couple private offices in each skiff that each chamber has. The staff director, the general council, deputy staff director might have private offices, but generally speaking, the staff members sat in common areas. Now it's difficult for practical reasons in work environments, the noise and stuff like that, but my understanding when those decisions were made it was this is meant to be common staffed with common goals and the politics are supposed to be checked at the door. My experience, my three years on the committee were from very political issues that would surface now and again. Think about the 215 Metadata Program and FISA and FISA authorities more recently and so there are political issues, but for the most part when I was on the committee nearly everything that came out of the committee in terms of legislation was almost exclusively unanimous. Occasionally you had, usually it was 15-0, but occasionally you had 12-3 votes on various pieces. But there was a lot of effort that went into finding that middle ground among the members and the staff.

Matthew Heimen:           And just to follow on from that, our call today is obviously not about what's going on with the Russia investigation and I know you were both somewhat removed from that. But, I'm just wondering as you observe it and I don't want to get specifically into what's going on in the House and Senate, but is there something culturally that is maybe different about the Senate versus the House because as an observer when I read the papers I note that there is clearly a heightened level of partisanship on the House side. It seems to be the less pronounced and it seems to be a greater level of collegiality on the Senate side. Is that driven by structure or is that driven by personality and just specific individuals?

Michael Geffroy:              Well the joke has always been the air is finer over on the Senate side. I worked in both chambers and I think the answer is that it is largely structural and that there is only 100 senators and there are, I don't know what the exact number is, 535 members of the House that have to run for re-election every two years and it's a constant cycle over there. So I think there tends to be a little more rancor over there in the House because people need to get attention for themselves and their connectivity with the people is that much closer in real time. The Senate is supposed to be the saucer that cools the hot water and there were definitely members who had very strong opinions on particular issues and that's evident when you see those debates that overflow into the hallway or onto the floor. But, I can tell you with my own experience with both Senator Chandlice and Senator Burr was a specific direction, we're going to play this down the middle and we're going to work together, these issues are too important, lives are at stake, national security, we really need to make an effort. So I think it's a little bit structural in between the two chambers but also the guidance that I always received from my employees, we're going to do this calmly and deliberately and we're going to try and find common ground.

Matthew Heimen:           Heather I'd be curious to get your perspective on that [crosstalk (laughter) 00:27:34] as well.

Heather Molino:               Yes, so it's structural and it's personalities. I think structurally the House is a majority rules sort of thing, the legislation passes by simple majority. There's no need for 60 votes like you need in the Senate to do things, so that changes things. I think, and then it's also personality. People feel strongly, people have their own relationships. I think things have evolved, I know I was there when Mr. Schiff and Mr. Nunes took over.

                                                I was there very briefly just to help get the new team settled before I moved into private industry. And I know at the time there was a commitment to bipartisanship and to working things through. It's been, I mean I can't imagine what it has been to be in those walls since everything has broken in the last two, three years. But it's challenging. I'm sure it's a very challenging place to work right now given the external factors and I think everyone is attempting to do the best they can in a really challenging environment, trying to keep our bipartisanship along the way.

                                                I know they did pass an intel op for 2018. I know they weren't able to attach it to the omnibus this last time around, but I know they're still working on that. I know they're getting ready for 2019, they're starting all of the committee hearings and other things and I think that's the best way to march forward even in a challenging environment is to get that intel op out there. Make sure to have oversight in that way and document that the intelligence community must follow, that's the best way. But it's challenging, it's challenging times on the Hill. I think everyone especially on the committee will acknowledge that.

Michael Geffroy:              I think Heather made a great point about the voting requirements in the two different chambers. In the Senate, one member can delay things in perpetuity as they say. So you always had to keep that in mind as you were crafting the Authorization Bill or other legislation that the perfect be the enemy of the good so to speak.

Matthew Heimen:           So if we go back to the question of the committee structures on both sides. I know from my time at the Department of Justice following 911 there were significant changes at the Department of Justice, following the recommendations of the various the 911 commission and other organizations that said we've got an executive branch, we don't have a center focus for our counter-terrorism and other intelligence efforts. So there were reorganization efforts at the DOJ which gave birth to the National Security Division. Obviously the Department of Homeland Security before 911 and that pulled a bunch of agencies out of various departments and put hem in one place. And I know there was re-org in other parts of the executive branch, but there wasn't ever any real re-org within Congress in terms of oversight of the intelligence community other than perhaps the creation of the Homeland Security committee, so I'm just wondering if you all have some thoughts as to why that didn't happen with that view that oversight was working just fine and there was no change needed. I'd just be curious to any thoughts you have on that.

Michael Geffroy:              My experience was a lot of that boiled down to turf. That there are only so many committees in the House and so many committees in the Senate and folks like their jurisdictional lanes and I think that's still playing out this day with regard to the Homeland Security Department. They still have to go up to the Hill and answer to a crazy number of committees. If you look at some those orb charts from a few years ago there's as many as 80 committees that technically can claim some jurisdiction over the department. So, I think that was a big deal. Committee chairmen like their jurisdictional lanes. Heather do you have any thoughts?

Heather Molino:               Yeah and on the House side there were changes that were made but they didn't last. So there was a committee that was created that had the turf, as Michael put it was absolutely correct, the turf was the biggest challenge. And there was a committee that was created before I was on HPSCI that was members of the Appropriations committee as well as members of the House Intel committee and they sat on a committee together and the point would be make sure at the time they were passing bills, they weren't passing intel auth, so to have the appropriators and authorizers talk and coordinate and make sure the information sharing between the agencies was going on. That, I want to say lasted a handful of years and then when the Republicans took control in 2010, they got rid of that committee but then what they did in changing it was to bring three members of the Appropriations committee specifically the defense sub-committee two in the majority and one in the minority.

                                                So at the time it was two Republicans and one Democrat. And bring them and have them sit on the House Intelligence Committee. Not just for budget bills but through all the hearings. So we had the Chair and the Ranker of the hack-D on our committee as well as one other member a very senior member. Mr. Calvert has filled the position from California since 2010. And what they would do, they were a great conduit across the committees so you were appropriating and authorizing in a way that coordinated and that made sense and was doing effective oversight. So it ended up being a pretty efficient way of sharing information and making sure the information we were getting on the intel committee was going back to the defense, the hack-D, the appropriations committee the defense subbed to make sure we were using the power of the person the way it was needed and doing the oversight the way it was needed. And those were the changes, and they were subtle changes and probably if you were on the committee you probably didn't even know. But those were the things that we did and it was an effective way to continue that.

                                                They're talking now on the Hill, they have an appropriations committee, a sort of a side committee they are trying to do more effective appropriations management after the budget mess of the last two years. Those are ways, it's hard to change things in Congress because of the turf war but people are trying to look at new and different ways of having better communication and having things flow easier. And for the budget bills are the things that pass year in and year out. It's taken longer in the two years than it has in a while. Omnibus is now in the spring of the current fiscal year which is not the best way to legislate but at least it's happening and people want to fix that and make it more efficient that we may go back to getting a budget bill October one. The beginning of the fiscal year, which would be effective oversight.

                                                It's policies through funding and those are the things that they're working on the Hill. It's not easy because there's only a certain amount of power and to give power to someone else, someone has to give it up. But I think there are those conversations going on. But they're a little sort of below the radar because it's not the sexiest thing to say, committees being formed to make more efficient oversight.

Matthew Heimen:           If we then shift to the relationship of the committees to the intelligence community. So, obviously you're providing oversight to a significantly important aspect of the government, the intelligence community. Can you talk to me a little bit about the relationship that the committee has. Obviously there's some tension there because you are providing oversight, they're having to respond to that oversight, but there also has to be a certain level of cooperation and I'm just wondering if you could talk about how those relationships are built, how you maintain that reserve that you need to maintain in terms of doing effective oversight. And then how you also have the cooperation you need to obviously get the information and to be able to, you can't do oversight if you don't have any information or knowledge about what they're doing. So I'm just wondering how do you square that circle?

Dean Reuter:                     Hey Matthew, this is Dean Reuter, let me break in here. I think before we get an answer to that question I think Michael Bahar has joined the call is he on?

Michael Bahar:                  Yes, yes I have [crosstalk 00:36:20] and I'm happy to even take that question on first and-

Matthew Heimen:           I was going to say the cavalry's arrived [crosstalk 00:36:29] I'll be happy to, let's hear your answer Mr. Bahar, please proceed.

Michael Bahar:                  Well first of all as a preliminary matter let me just say whatever Mike Jeffroy said I completely disagree with and I just want to get that on the record first and foremost and everything Heather's said I completely agree with. But in all seriousness, before I got to the Congress I was with the White House and when I got congressional inquiries from the White House I did everything in my power to try to keep that information from Congress. Throwing every flag and every White House equity I could. And then when I got to the Congress I realized what a mistake that was and realized how important it is to have a productive and cooperation relationship between the branches no matter which side you were on whether you were with the Executive or Congress. The relationships really really matter. More than I think most people appreciate. And that's why it was really important that the relationships we had at the HPSCI with our majority were very important but also with both the minority and majority in the Senate.

                                                So, Mike Jeffroy and I would work a lot together and any time there was a problem when Heather was staff director, she would go off and talk to the other side and she would solve the problem and it was all because of those relationships and the same thing happens with the intelligence community. Having those relationships to really understand what is your interest what is our interest. Have that conversation and then being able to find solutions. Of course there are times that you can't find solutions and there are going to be differences of opinion and that's fine and that's how the system should work. But, the relationships really matter.

Matthew Heimen:           Thanks Michael Bahar. Michael Jeffroy or Heather any thoughts on the relationships and effective oversight that is doing what you're supposed to do as the Congress but then also being effective in terms of developing those relationships to be able to effectuate the oversight?

Michael Geffroy:              I think Michael is right, I worked in both the executive branch and the Legislative branch and when I was in the executive, the last thing I wanted to see was a congressional inquiry. But one thing I learned about working in the executive branch was when I went back to Congress, the requests that I made for information of the executive branch became much more refined and I stopped sending send me everything about anything requests and became much more rightful shot requests which were much more effective at the end of the day.

                                                On the Senate staff there is typically significant longevity on the membership of the staff and I think that goes to sort of the efforts made to make it as nonpartisan a place as possible. So there's a lot of staff who will be there for five, ten, close to twenty years at a time sometimes. But there are other folks who will come and go. I was there for three years there are other folks who had even shorter time spent there. There is some back and forth of agency staff to the communities and I think that is a good thing. And that helps keep lines of communication open when a community staffer or anyone from the community comes to work on the staff. The knowledge base is greatly expanded because they know how things work internally so that's a good thing. And I think people go out of their way to try to cultivate the relationships.

                                                Whole offices have been created over at the agency as a specific requirement of membership on particular subject matters. There are whole section dedicated to particular things because members of those committees thought they were particularly important. So, and the periodic briefings back and forth between the staff and the executive branch on those matters which is pretty robust. I hope that's responsive in some way.

Heather Molino:               [crosstalk 00:41:07] And this is Heather, I worked for Congressman [inaudible 00:41:13] of Maryland for twelve years and anyone who knows him besides his comment about spicy food keeping him up in the middle of the night is, I'm sure you all laugh anyone who knows him uses that one all the time. The other thing is relationships and trust and he's a big believer and has been serving in public office for, he's coming up on almost thirty years maybe more, but his big thing was relationships and trust and that's how it's all built.

                                                And one of the biggest things that we did at the beginning of every session of Congress was go and have an offsite. It was like two days and we invited all of the heads of the intelligence community as well as their top staff as well as their congressional affairs people and we spent two days sort of learning all the products of going through their programs, what are they doing? But the other really important piece was to sit down with them one on one at lunch and at dinner and for breakfast and get to know each. Because it's harder to send a bomb over the bow of the boat if you know who's inside.

                                                And that was one of the things we really believe in, get to know them, get to know what they're trying to do. We may disagree with you, but we can be professional about it and we can exchange information and then in the end we'll see where it goes out if there's some language in Intelligence Authorization Bill that does this or does that, it's effective oversight but it's also in a professional and civil manner where you're going to get, we felt, you get a better product from it because you know where they're coming from and you know what type of person they are and then you act accordingly and make sure we're taking another look at it. Okay they say this, we say this, let's looks, let's gather more information.

                                                They'll actually give us the documents. We'll review them, and we did a lot of negotiation with the intelligence committee and then the biggest thing was the billets and who got to see what through the White House and we negotiated a lot more access by being good stewards, by being professional and civil and explaining to the White House, okay we need two more billets for this counter-terrorism program because of the staff we have they need to do effective oversight they need to be able to access the information. And we were able to do it nine times out of ten. Get more staff in the room to get more opinions and get a broader look, but it took a lot of time, a lot of patience and a lot of back and forth which we were willing to do because we knew it was the right thing but it was quite a lift for the four years that I was there.

Michael Bahar:                  And this is Michael Bahar again, and I completely agree with Heather and that was the approach I took when I succeeded Heather as staff director. That the relationship matters, trust really matters, but I can certainly sort of hear people thinking through the phone, well isn't this also a problem. Are we worried about capture where the agency which are agencies, which are skilled essentially at manipulating people, isn't this a way for them to weaken oversight? And I think we were always on guard against that fact both sort of ourselves to make sure we were not being played and I never really got the sense that they were trying that but also institutionally. So for example Speaker Pelosi was very concerned with that and that's why she always enforced this idea of term limits on members on the House side so that you wouldn't have years and years of relationships because they would turn over and that natural skepticism would come back in.

                                                So, there were a number of checks but I know I can hear people through the phone being worried about capture.

Matthew Heimen:           Well I appreciate that comment and you anticipated where I wanted to go next which is to check with Dean to see if we have any questions on the line.

Dean Reuter:                     Thanks Matthew, let's open the floor to questions and in a moment we will all hear an announcement saying the floor mote is on. After you hear that announcement if you are in the audience, push the star button and then the pound button on your telephone.

                                                So once again, if you have a question push the star button and then the pound button on your telephone, our lines are wide open. We don't have anyone ringing in yet Matthew but if we get someone I'll interject. But for now, push the star button and then the pound button if you have a question.

Michael Bahar:                  [crosstalk 00:45:35] You know if we're waiting for a question, this is Michael Bahar, I would say one of the things that's going to be really interesting I think to this readership is the constitutional issues that in a sense require this level of trust. Because if you look at things like the National Security Act of 1947 and you look an even covert action reporting all these requirements, the role of Congress in this is not really as spelled out as the role of the President, the executive branch.

                                                And there are Supreme Court cases that will say things like in the realm of foreign affairs the executive is the sole organ. And when push comes to shove a lot of times Legislator of course has its powers but they're much blunter. They're powers to purse being fund or defund, but so short of that we have to rely on much more informal mechanisms whether it's re-programmings, whether it's calling agency heads to task before the committee or whether it's just this idea where we're going to show up and ask you a question anytime, anywhere in the world because we did travel a lot and we're not going to tell you in advance what our question will be. And we want to check to see how well you answer those questions and that's a pride element.

                                                So even if you're talking about a legal matter, the constitutional aspects will always come front and center in our minds when push came to shove, when these things started to really escalate. Could we force the executive branch to do something? The executive ought to think well we could probably resist it but is it worth the pain that Congress can otherwise inflict upon us.

Matthew Heimen:           Well that's an interesting point Michael and I wonder as you all think about your tenures with these committees. Are there areas where you would say there could be improvement whether it's additional resources or it's a different structure. As you came away from your tenures did you look back and think this would work better, it would be more effective oversight, it'd be better relationship building, intelligence community whatever it may be if we had this or we had the opportunity to do that. Are there any things on your mind like that?

Dean Reuter:                     Matthew this is Dean Reuter chiming in just to let you know we have one question for after the answer to this question we can turn to the audience if you'd like.

Matthew Heimen:           Perfect.

Michael Geffroy:              This is Michael Jeffroy, on the question one thing I've always felt was that well for both committees is that they can easily be much bigger with additional staff because there are obviously agencies and programs that get a lot of attention, but there are other things that don't get as much attention as maybe they should have on a perfect day. So I do think that staffing could be enhanced which I'm not making the government a bigger guy but that would be one area that this opportunity for additional consideration.

                                                The other thing is there are frequently, to go back to the question about why didn't the committee structure change after 911 in the jurisdictional turf battles? There are still some jurisdictional scenes between certain committees and that is sort of a congressional issue that leadership is worth examining that further refining jurisdictional lanes such that there aren't these scenes or gaps that could sometimes be manipulation in one way or another.

Heather Molino:               And this is Heather, and the other thing that was challenging which is very weedy but was very challenging between the House and the Senate. I agree, totally agree with staff. We were under staffed, but the other issue was that House and Senate are run differently so when we would negotiate the intel auth, there was a piece that was in the House committee's oversight some of the defense programs that we shared with [inaudible 00:49:45] but the Senate intel committee did not have oversight. [inaudible 00:49:51] had a Senate Armed Services committee that was also always a massive challenge and a massive stumbling block that really slowed us down that if the House and Senate, they're different bodies and they operate differently, but if they had the same oversight in that capacity, it wouldn't have been so complicated. That was always a challenging piece that took forever.

                                                The Armed Services bill, the [inaudible 00:50:13] had to move first before intel auth could move on the Senate side and on the House side and if that were different that would be easier to sort of get to the oversight and pass the bill. That was, as I said, a sort of weedy structural issue but something that would have helped. 

Michael Geffroy:              [crosstalk 00:50:31] Heather puts the finer point to what I was trying to say so thank you Heather for explaining that much better and that was a big challenge [crosstalk 00:50:41].

Michael Bahar:                  Yeah I agree with Mike and Heather, I think those are really important points. And when in the first two years under Congressman Schiff and Nunes at least on the House side, we did try to correct two of those things by adding certain designees members from the Armed Services committee as well as the Appropriations committee. And we actually got a pretty significant increase to build up our staff, because there is a sense that we're all outmatched by sheer numbers. On the other hand there was always these proposals to give the House the designee system like the Senate had.

                                                The Senate had the designee system which means that each member has an individual staff member devoted solely to their interest in terms of oversight. I'm not sure, perhaps Heather and I have the same view on this, but I certainly was skeptical of that working in the House for a number of reasons, the most important of which, just because the member may have had a designee that person would still have to be located in the skit in our secure environment. The member couldn't talk about these issues in their personal office, in the car, getting coffee, doing all the things that personal staffers are usually accompanying the members on. Because it was so highly confidential and so secret it still needed to be discussed and the member still had to go all the way to the bunkers we affectionately called it to have these discussions. And my view was that they're already coming down, they can still have them with the existing staff most of whom were very experienced and as Mike Jeffroy said, probably had some experience in the executive branch in the intelligence community. So they had that additional level of expertise not to mention the overall context to see how all the pieces of intelligence fit together.

                                                That was Heather's point about getting clearances and getting billets. Why that's so important is really it's the congressional intelligence committee that can see over hedges and say okay CIA is doing this but NSA is sort of doing this, are they aligned? We had the readings to be able to see over everyone's fences to see how all the pieces should or are not fitting together.

Matthew Heimen:           I appreciate that comment Michael, Dean why don't we in the last few minutes take the call we have on the line and then we'll close out?

Dean Reuter:                     Happy to do that. Trying to reach the caller now at area code 540 go ahead caller.

Caller:                                   Hello, my name is John Tuttle, I'm a former Army jag and I'm working for the state of Michigan and I had a brief foray in the intelligence world and it was somewhat tangential but one thing that strikes you is just how tight it is, how compartmentalized it is and the great lengths you go to have discussions, go into the skip or the bunker as they often are called. My question is, given the tight-knit nature of the community, what are the means by which the committee learns of activities. Are they solely through the testimony of executive branch officers, military officers, explaining situations or are there other means? I'm thinking, do they ever visit a site and speak with individuals or is it solely through communications that are obviously filtered by the intelligence community? I'm thinking in particular what the five [inaudible 00:54:19] FBI in this recent Russian investigation brouhaha somewhat filtered and so very much skewed with the [inaudible 00:54:28] court decided to do. I'm wondering [crosstalk 00:54:32] talk about [inaudible 00:54:34] means and methods.

Matthew Heimen:           Yeah, no thanks for question. So maybe Heather, how did the committees learn about stuff beyond what we might see on a C-SPAN hearing or a classified hearing.

Heather Molino:               [inaudible 00:54:47] I think it was Michael Bahar said we traveled overseas, traveled to foreign sites, traveled to domestic sites. Met with, we would meet in the committee room with the top brass, the director of this or the director of that and then we'd go out into the world to the United States and overseas and meet with frontline workers and my old boss that was always the best way to get the read of what was really going on. Because some we'd sit in a room overseas or in the US and say okay, what are you guys doing, what are you hearing, what's effective, what's not, what are your problems, do you have enough man-power, do you have enough of the tools, do you have enough technology which we would hear a lot they didn't. Things like that and that was how we would get up front information on what was going on.

                                                And that was incredibly important to make funding decisions down the road and then we'd go overseas and then we'd come back and we'd bring in the committee, the organization they were talking about. Oh you told us this was happening but we were out in the field and they said this was happening. What's going on? Oh well, maybe that was true. So it was a good way to get out of the office which was fun anyway and also give, receive, and learn. And learn and say what's going on and what's not. I was not, to answer the Russia question, I was not on the committee when that all went through and so I would hand that off to Bahar or Jeffroy. If they'd like to answer that. And do it in an unclassified way on an open line, have fun.

Matthew Heimen:           Well it looks like we're out of time. Well gents anything to add to the maybe understanding that you can't get specifically into the Russia aspect of the question, but anything to add in terms of how you gathered and learned about what it was you were overseeing?

Michael Bahar:                  Sure, no you definitely didn't rely on testimony and before anybody comes in to testify, you're doing a lot of work in advance to read documents, gather documents, and you treat it as an investigation. Not necessarily adversarial, but at times it can become adversarial. To do what Heather was saying, you told us this on x-date and everything is transcribed right? But when we went out to this country 14 hours away, they said this. How do you square that circle or we read in this filing and we mapped this all out and there's a trend line that we find disturbing. Or even if the biggest picture you just read. You read the papers, you read novels, you read history and say are we making mistakes we should not be making?

                                                So for example the very [inaudible 00:57:33] that I worked on for FY-17, we took a grand view of [inaudible 00:57:38] and this is all public so we set it on the floor. Are we spending too much of our time and energy on ct, counter-terrorism in the Middle-East and not focusing sufficiently on the so called hard target. The major players, the Russia, the China, and this is all before the hacking this is months before. And I came and during that period of formulating that I had traveled to Russia, China, India, and started to formulate this theory that maybe we are not spending sufficient time on those areas. I agree with Heather and that's another way we didn't just ever rely on what they told us. We always did our own independent work as well.

Michael Geffroy:              Yeah I enjoyed those remarks, this is Michael Jeffroy. I enjoyed those remarks and one other thing that we would do is not only travel overseas, but we made a point to travel domestically. And to visit each agency and whatever facility it might be on a very regular basis and our staffs had very particular portfolios and over time they would build up more and more expertise in these areas and be able to see, have more and more formed opinions. One other thing we haven't talked, touched on, Congress will frequently legislate the requirement to provide information and in a lot of legislation you'll see these laundry list of reports that are required of each agency. And sometimes those are throwaways to make members of congress feel happy that they have a provision in a bill but other times they are the result of a agency perhaps being reluctant to provide certain pieces of information and they say hey there's nothing in the statute that says we have to give you this and well now there is.

                                                And I'll take one good example, one recent example that is the reporting requirement that Congress imposed upon the Treasury Department to publish a public list on the Russia sanctions, oligarchs. And the report's published and several months later there's a laundry list of new sanctions that are issued. So sometimes it doesn't happen over night but, that's another tool that the Congress has to get information out of sometimes a reluctant agencies.

Matthew Heimen:           Well I think that is a great way to close out and I want to thank our group of speakers, Michael Bahar, Michael Geffroy, Heather Molino, I really appreciate your time. I think it was a good conversation. And I will turn it over to Dean to close us out.

Dean Reuter:                     Thank you very much and I would add to that list of thank yous Matthew Heiman for moderating today. And the audience as well. Thank you for dialing in, thank you for the single question we got but a reminder to our audience to check the Federal Society's website and monitor emails for upcoming tele form conference calls. As it happens, later tody at 2:00 Eastern Time at this same number, we'll have a tele form on state regulation of economic rights specifically whether you can advertise as a business happy hour, but until that next call we are adjourned. Thank you very much everyone. Thank you for listening, we hope you enjoyed this practice group podcast.