Congressional Oversight of Modern Warfare: History, Pathologies, and Proposals for Reform

82 Pages Posted: 30 Mar 2021 Last revised: 20 Jan 2022

See all articles by Oona A. Hathaway

Oona A. Hathaway

Yale University - Law School

Tobias Kuehne

Yale Law School; Yale University - Graduate School of Arts and Sciences

Randi Michel

Yale Law School

Nicole Ng

Yale Law School

Date Written: November 16, 2021

Abstract

Despite significant developments in the nature of 21st century warfare, Congress continues to employ a 20th century oversight structure. Modern warfare tactics, including cyber operations, drone strikes, and special operations, do not neatly fall into congressional committee jurisdictions. Counterterrorism and cyber operations, which are inherently multi-jurisdictional and highly classified, illustrate the problem. In both contexts, Congress has strengthened its reporting requirements over the past several years, developing relatively robust oversight regimes. But in solving one problem, Congress has created another: deeply entrenched information silos that inhibit the sharing of information about modern warfare across committees. This has real consequences: The Senate Foreign Relations Committee and House Foreign Affairs Committee may have to vote on an authorization for the use of force against a country without understanding ongoing intelligence operations against that country that might achieve the same purpose at less risk. The armed services committees may be asked to approve a train and equip program for a partner force in a nation without having an inkling that the CIA is already operating essentially the same program. And the intelligence committees may give the green light to a proposed covert operation without understanding the broader foreign policy context and therefore the reaction that it might provoke if it is discovered.

But there is good news with the bad. If Congress is to blame for this information siloing, Congress is also able to fix it. This Article begins with a proposal made by the 9/11 Commission to address information sharing failures—the formation of a super committee to address national security matters. After explaining why this is not the right answer, this Article offers four concrete proposals to remedy the problem: First, Congress should promote inter-committee information sharing through institutional reforms. Second, Congress should require joint briefings to committees when matters cut across jurisdictional boundaries. Third, Congress should permit members to share classified information with other members under limited, clearly defined circumstances. And fourth, Congress should create a Congressional National Security Council to coordinate cross-cutting national security matters and share mutually relevant information.

Keywords: War Powers, cyber, senate foreign relations committee, house foreign affairs committee, congress, Title 10, Title 50

JEL Classification: K19

Suggested Citation

Hathaway, Oona A. and Kuehne, Tobias and Michel, Randi and Ng, Nicole, Congressional Oversight of Modern Warfare: History, Pathologies, and Proposals for Reform (November 16, 2021). William & Mary Law Review, Vol. 63, No. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3815172

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

Tobias Kuehne

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

Yale University - Graduate School of Arts and Sciences ( email )

Warner House
1 Hillhouse Avenue
New Haven, CT 06511
United States

Randi Michel

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

Nicole Ng

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
205
Abstract Views
788
rank
202,007
PlumX Metrics