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William & Mary Law Review
Congressional Oversight of Modern Warfare: History, Pathologies, and Proposals for Reform
Despite significant developments in the nature of twenty-first century warfare, Congress continues to employ a twentieth 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, over the past several years Congress has addressed oversight shortcomings by strengthening its reporting requirements, 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 military force against a country without a full understanding of options for covert operations that might achieve the same purpose with less risk. The House and Senate Armed Services Committees may be asked to approve a train-and-equip program for a partner force in a nation without knowing that the CIA is already operating essentially the same program. And the House and Senate Intelligence Committees may support a proposed covert operation without understanding the broader foreign policy context, and therefore, the reaction that it might provoke if it were 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’s discussion of solutions 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 by expanding cross-committee membership. 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.
Repository CitationOona A. Hathaway, Tobias Kuehne, Randi Michel, and Nicole Ng, Congressional Oversight of Modern Warfare: History, Pathologies, and Proposals for Reform, 63 Wm. & Mary L. Rev. 137 (2021), https://scholarship.law.wm.edu/wmlr/vol63/iss1/4
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