The Era of Asking Is Over

By Steven A. Cash

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For decades, congressional oversight of national security relied on accommodation and trust. If the Executive no longer honors either, Congress must stop asking for access and start exercising the constitutional authority it already possesses.

Fifteen years ago, former U.S. Naval Academy professor and General Counsel for the Senate Select Committee on Intelligence Vicki Divoll published what remains one of the most important scholarly works ever written on congressional oversight of intelligence: The “Full Access Doctrine”: Congress’s constitutional Entitlement to National Security Information from the Executive, 34 Harv. J.L. & Pub. Pol’y 493 (2011).

The article’s central thesis was bold. The Full Access Doctrine asserts that Congress does not receive access to national security information as a matter of executive grace. It is constitutionally entitled to that information because Article I responsibilities - legislation, appropriations, oversight, and impeachment - cannot be exercised in ignorance.

Yet what strikes me most today is not the boldness of Vicki’s doctrine. It is her restraint.

Although she meticulously dismantled legal arguments for executive secrecy, she still expressed respect for the centuries-old principle of interbranch comity. Cooperation, she wrote, “is, of course, a good thing.” She acknowledged that accommodation between the political branches had often resolved disputes without constitutional confrontation. Her warning was simply that comity could not become a substitute for constitutional principle. If Congress depended solely upon executive goodwill, it would eventually discover that it had surrendered powers the Constitution never intended it to relinquish.

That moment has arrived. Indeed, it may already have passed.

The constitutional architecture assumes two branches jealously guarding their respective authorities while recognizing each other’s legitimacy. That is the premise underlying accommodation. The branches disagree. They negotiate. They compromise. Each recognizes that the other possesses constitutional prerogatives worthy of respect. But comity cannot exist unilaterally.

Today, we increasingly confront an Executive Branch that does not merely argue for expansive presidential authority. It rejects oversight altogether. It delays or withholds information required by statute. It treats congressional inquiries as optional. It invokes privilege reflexively, often without meaningful accommodation, and increasingly portrays oversight itself as an illegitimate intrusion upon presidential power. And yet we increasingly see Congress passive and quiet.

These are not the conditions, with an Executive Branch appearing actively hostile to the concept of oversight, under which the tradition of accommodation evolved. They are the conditions Vicki Divoll warned about. The Full Access Doctrine was never intended to replace comity. It was designed for the day comity failed.

Congress, therefore, should stop treating complete access to intelligence and national security information as something it politely requests. It should begin treating such access as what the Constitution makes it: an institutional right essential to carrying out Article I responsibilities.

That means writing statutes that leave less room for unilateral control by the Executive over access to information necessary for oversight. It means enforcing subpoenas. It means using appropriations and confirmation authority to compel compliance. And when necessary, it means asking the courts to recognize what the Constitution already implies: that meaningful oversight cannot exist if one branch controls what the other is allowed to know.

Some will argue that such an assertion and exercise of Congressional authority risks escalating conflict between the branches. But conflict is not the danger. Submission is. The Founders did not design separated powers to avoid constitutional confrontation. They designed them to ensure that ambition would counter ambition. The Constitution assumes friction because friction prevents the concentration of power.

For decades, Congress extended extraordinary trust to the Executive Branch in intelligence matters. Much of that trust was justified. Informal understandings often worked because officials on both sides accepted that they served the same constitutional system, even while disagreeing over particular questions. When that shared commitment erodes, informal understandings cease to be constitutional virtues.

Vicki Divoll recognized this long before most observers. Her article was not merely a defense of congressional oversight. It was a warning against allowing courtesy to replace constitutional duty.

Congress should finally heed that warning. The era of asking is over. The era of exercising the Full Access Doctrine has begun.

Steven A. Cash served as a prosecutor in the Manhattan District Attorney’s office before joining the CIA in 1994 as Assistant General counsel and subsequently serving as an intelligence officer in the Directorate of Operations. In 2001 he joined the Senate Select committee on Intelligence as Counsel and designee-staffer to Senator Diane Feinstein). He later served as a senior staffer in the House Select Committee on Homeland Security, the Department of Energy, the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security and the Department of Energy. In the private sector he has advised on national security, counterintelligence, and technology policy and served on the Biological Sciences Experts Group under the Director of National Intelligence. Mr. Cash is currently the Executive Director of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 400 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.