It appears the House Republican project to clip the National Security Council’s (NSC’s) wings may be a larger scale project than reflected in my last post. There, I discuss legislation introduced by Rep. Jackie Walorski (R-Ind.) to bring NSC records back into the coverage of the Freedom of Information Act (FOIA). Last week, Rep. Mac Thornberry (R-Tex.), Chairman on the House Armed Services Committee (HASC), indicated he is going to offer an amendment to this year’s National Defense Authorization Act (NDAA) designed to rein in the National Security Council.
The Washington Post reports that Thornberry’s proposal would cut the NSC staff, add congressional oversight mechanisms related to the NSC process, and require the President’s National Security Advisor to be confirmed by the Senate. Like Walorski, Thornberry cites criticism by former Secretaries of Defense as a justification for NSC regulation. Such changes would represent significant alterations to longstanding presidential prerogatives and would contemplate significant congressional involvement in what the executive branch views as some of its core functions. In that last post, I offered a few potential reasons to think there has been mission creep at the NSC. However, HASC simply has not done the spade work to prepare the way for such a material change to interbranch roles. Moreover, as currently described, Thornberry’s proposal is unlikely to pass.
To date, I have not been able to find any legislative language giving effect to Thornberry’s proposal. The Chairman’s Mark of the NDAA did not contain the proposal, nor did the version that passed out of committee last week on a 60-2 bipartisan vote. Thornberry apparently plans to offer an amendment on the floor during the NDAA debate (or has decided to quietly ditch the plan).
From the press reports, however, it appears that Thornberry’s proposal has three main elements.
First, Thornberry seeks to cut the NSC staff. The NSC staff has grown fourfold since 9/11 to nearly 400 staffers. Thornberry reportedly wants to cap it at around 50 staffers, which would be approximately half the size of the NSC staff during the Clinton administration. Without benefit of legislative language, it is unclear whether Thornberry would try to effectuate this change by means of appropriations amounts or textual restrictions designed to limit the authority of agencies to detail staff to the NSC. There seems to be consensus among Republicans that shrinking the NSC staff would strengthen the Pentagon at the President’s expense. Congress’s power of the purse is not as much at issue here as the wisdom, or lack thereof, of such a drastic reduction of staff resources available to the President.
Second, Thornberry mentions unspecified congressional “oversight” or other transparency enhancements. That could be a nod toward Walorski’s FOIA legislation. It could also contemplate a series of mandates for the NSC to provide reports to Congress. However, it may be provisions designed to transform NSC staff into witnesses before Congress in the regular order. As the Congressional Research Service notes, “Congress annually appropriates funds for [NSC] activities, but does not, routinely, receive testimony on substantive matters from the National Security Advisor or from NSC staff.” As a general matter, the executive branch — under both Democratic and Republican presidents — effectively resists routinized congressional oversight of NSC activities due to its advice-giving role. (Like all congressional oversight fights, there will likely be exceptions and institutional leverage rather than categorical rules.)
The issue of NSC testimony before Congress is intimately intertwined with Thornberry’s third element: the status and role of the National Security Advisor. Thornberry wants to legislatively designate the National Security Advisor as an “Officer of the United States” for purposes of the Appointments Clause (Article II, Section 2) subject to “the Advice and Consent of the Senate.” This is not the first time Congress has considered subjecting the National Security Advisor to Senate confirmation, but such proposals have never gathered serious legislative momentum.
The National Security Advisor as a confirmable position has been a much-debated proposition over the years. Advice and consent would give the Senate significant leverage over the President’s choice of his or her closest and most senior national security staff member. Advocates of such a move argue that outsized National Security Advisor roles of Henry Kissinger and Zbigniew Brzezinski diminished the Secretaries of State and Defense. Cabinet Secretaries enjoy greater democratic legitimacy as Senate confirmees and as agency heads who are amenable to congressional oversight. There has also been the criticism of operational micromanagement. Former Obama administration official Derek Chollet provides good historical context on these longstanding lines of friction.
On the other hand, critics maintain that advice and consent, along with routine congressional oversight, would undermine the primary role of the National Security Advisor, which is to provide the President with candid advice on a range of issues, and often on a confidential and informal basis. Others are concerned that a Senate-confirmed National Security Advisor would exacerbate, rather than lessen, competition with the Secretaries of Defense and State. Some also predict that the President would simply engage another person on the White House staff in the functional role as informal national security adviser to the exclusion of the person with the title.
Like the question of the NSC as an “agency” for purposes of FOIA, the touchstone of this analysis is the functions of the National Security Advisor and NSC staff. The more they act in purely advisory and policy coordination functions, the greater the President’s need for informality and confidentiality, and the less Congress has legitimate interests in NSC regulation. However, as I acknowledged in my last post, the NSC size and role has been growing, so the modern role of the NSC in the separation of powers scheme is a worthwhile discussion.
Unfortunately, Thornberry has failed to lead that discussion. According to its website, HASC has had held approximately 170 hearings and markups during the 114th Congress. As best I can tell, not one of them focused on the NSC process or the role of the National Security Advisor. In contrast, it did extensive investigative resources on the Taliban prisoner exchange that secured the release Sgt. Bowe Bergdahl (including the NSC role in that swap). In fact, the last time HASC had a hearing had a major focus on the NSC as an entity was in March 2009, when the House was still under Democratic control. There, HASC considered a proposal by the Project on National Security Reform to create a Senate-confirmable position called the Director of National Security who would largely replace the current National Security Advisor role. At that hearing, Rep. Rob Wittman (R-Va.), then a HASC Subcommittee Ranking Member, aptly noted in his opening statement: “To be fair, designing the best system to reorganize the National Security Council and half the cabinet departments is no easy matter.”
In addition, one of the reasons I cited for the President’s increased reliance on the NSC is the premium the modern threat environment places on interagency coordination. Hamstringing the NSC would undermine that functionality. Worse, it would do so by re-emphasizing bureaucratic silos at the cabinet departments. Interagency coordination would need to be front and center in any sober reassessment of the NSC role.
Further, there are too many stakeholders in Congress and the administration to give this issue short shrift. HASC has legislative and oversight jurisdiction over military and national defense affairs, but the House Foreign Affairs Committee, House Homeland Security Committee, the House Permanent Committee on Intelligence, the House Judiciary Committee, the House Appropriations Committee, and the House Oversight and Government Reform Committee (which actually has interagency oversight jurisdiction and executive branch reorganization jurisdiction) would all have equities in a fundamental change to the NSC. The same is true on the other end of Pennsylvania Avenue: This proposed floor amendment by HASC’s Chair would present significant issues not just for the White House, but also for the Pentagon, State Department, Homeland Security Department, Department of Justice, and the Intelligence Community.
It also looks like Thornberry’s trial balloon may look more like a pincushion in the Senate. While Speaker Paul Ryan (R-Wisc.) apparently supports Thornberry’s approach, Senate Republicans have already expressed misgivings about Senate confirmation of the National Security Advisor. Sen. Bob Corker (R-Tenn.), Chairman of the Senate Foreign Relations Committee, expressed concerns that a confirmation of the National Security Advisor would elevate it in a way that might undermine the Secretary of State. However, both Corker and Sen. Lindsay Graham (R-SC), a Senate Armed Services Committee member, appear to agree with the notion of legislatively-mandated NSC staff cuts.
Should a Thornberry proposal reach the Senate, the NSC tussle will likely take on a partisan cast. The Washington Post quoted Sen. Tim Kaine (D-Va.) describing the criticism of the NSC as a “vague assertion that the White House micromanages too much” and questioning “whether it’s partisan.”
Unsurprisingly, the administration vigorously opposes this proposal as meddlesome and unnecessary. In addition to the cutbacks implemented by Rice, the administration cites concerns about restricting information flow to the President given all the myriad global security threats we face. White House Press Secretary Josh Earnest criticized Thornberry’s proposal by highlighting the importance of “ensuring that the Commander-in-Chief has access to the information and judgment of his advisors not just here in the White House but across a variety of national security agencies.” He also raised concern it would damage the vitality of the NSC interagency coordination function:
One way to ensure effective decision-making is to effectively coordinate the actions of all of the different agencies that are involved in protecting the country. And that is essentially the core function of the National Security Council – to make sure that all of these agencies who have significant responsibilities related to national security are effectively coordinated so that they can provide effective advice and information to the President of the United States, but also so that decisions that are made by the President of the United States are effectively implemented by that wide array of agencies.
The role of the NSC is too important an issue to address outside of the committee process. The stakes of national security decision-making are too high, the number of congressional and executive stakeholders affected is too broad, and the spectrum of views on the topic is too ranging to tack on a not-yet released proposal as a floor amendment on the strength of media complaints by several former Secretaries of Defense.
The topic Thornberry raises certainly warrants further discussion. His proposals may contain some good provisions. They certainly offer a vehicle to attack the President’s national security decisions during an election year. However, I do not see Thornberry building the kind of sober record befitting the stuff of serious legislation to regulate the NSC.