Congress' 'Black' Budgets Scrutinized

An independent investigation has found that imprisoned former Rep. Randy "Duke" Cunningham took advantage of secrecy and badgered congressional aides to help slip items into classified bills that would benefit him and his associates.

The finding comes from Michael Stern, an outside investigator hired by the House Intelligence Committee to look into how Cunningham was able to carry out the scheme. Stern is working with the committee to fix vulnerabilities in the way top-secret legislation is written, said congressional officials who spoke on condition of anonymity because the committee still is being briefed on Stern's findings.

Cunningham's case has put a stark spotlight on the oversight of classified — or "black" — budgets. Unlike legislation dealing with social and economic issues, intelligence bills and parts of defense bills are written in private, in the name of national security.

That means it is up to members of Congress and select aides with security clearances to ensure that legislation is appropriate.

The chairman of the House Intelligence Committee, Rep. Peter Hoekstra, R-Mich., and the top Democrat, Rep. Jane Harman of California, took the unusual step of hiring Stern to investigative how Cunningham used his seat on the committee to influence legislation for his own enrichment.

Federal prosecutors found that Cunningham accepted $2.4 million in bribes, including payments for a mansion, a Rolls-Royce and a 65-foot yacht, in return for steering defense and intelligence contracts to certain companies. Cunningham pleaded guilty and was sentenced to more than eight years in prison.

Stern has told the committee that Cunningham's efforts to steer business to friends and associates were far worse in the spending bills written by the House Appropriations Committee than those written by the House Intelligence Committee, congressional officials say. But the intelligence panel that draws up the blueprint for spending by the government's spy agencies was not immune to his misdeeds.

Hoekstra said Stern, as a final step, wants to interview Cunningham in prison to find out more about how he influenced the system. The Justice Department is resisting because it has other potential prosecutions pending in the case, so Hoekstra is considering subpoenaing the former lawmaker.

Hoekstra said he still has questions about how much Cunningham relied on legislation and how much he bullied people at the Pentagon to direct money to certain contractors. "We clearly see that he tried to use the committee to do bad things," Hoekstra said in an interview.

He and Harman are putting additional protections into the process of drafting legislation, although Hoekstra described Cunningham as a special case. "This guy bastardized the process the whole way through," Hoekstra said.

"But even if you put in additional safeguards, it doesn't necessarily mean that someone who wants to enrich themselves is not going to be able to," he added.

Efforts to direct money to specific projects or interests, called earmarking, are common. But more than a dozen government officials and other experts interviewed by The Associated Press agreed that the process is vulnerable to abuse because of its classified nature.

Secret legislation long has been a tool for pet projects.

In the early 1990s, Sen. Robert Byrd, D-W.Va., used classified legislation to try to move one-third of the CIA from Washington's Virginia suburbs to his home state.

In one episode stretching from 1999 until at least 2001, tensions between the then-chairman of the Senate Intelligence Committee, Sen. Richard Shelby, R-Ala., and the Defense Intelligence Agency peaked when Shelby used his panel's legislation to direct significant chunks of the agency's budget to projects in a science-intensive spying discipline called Measurement and Signatures Intelligence. The projects he pressed for benefited aerospace-focused Huntsville, Ala.

At the time, the DIA wanted to spend that money on traditional human spying. Because the money was in the classified portion of the intelligence bill, the public never knew of the debate.

Shelby's office did not respond to requests for comment.

A former chairman of the Senate Intelligence Committee, now-retired Sen. Bob Graham, D-Fla., said he does not like earmarking. "Essentially it takes what should be a rational process of allocating public dollars and makes it into politics based, not merit based," he said.

Jim Currie, a Democratic aide on the Senate committee from 1985 to 1991, said classified bills are the perfect place to slip in provisions not scrutinized. Rarely do members of Congress examine the legislation, which is stored in safes in each committee's windowless, vault-like offices.

Congressional aides play an important role in reviewing the bills for items that are suspicious. But Stern, the auditor for the House Intelligence Committee, found that Cunningham harassed staff members to get his way, undermining that oversight. Once, when an aide found out that a Cunningham spending priority had been changed, he wrote in an e-mail: "I am under my desk, ducking and covering."

One committee member, Rep. Darrell Issa, R-Calif., said Cunningham also had an exaggerated personality. "If he were talking about a tuna fish sandwich, it could drive him to anger or tears," Issa said. "Some of his actions were discounted as, 'It's just Duke."'

Issa said the best safeguard for secret legislation is awareness on the part of the committee. "The support of the staff pushing back and making more public individual requests for conversations is helping," he said.

Several committee Democrats expressed pessimism that Congress will do its job, however.

"Our committee — our 20-odd people and a comparable number of staff — cannot offer sufficient oversight over many billions of dollars of activity," said Rep. Rush Holt, D-N.J.

"We don't try," he said.