HEARING ON H.R. 1013 AND OTHER PROPOSALS WHICH ADDRESS THE ISSUE OF AFFORDING PRIOR NOTICE OF COVERT ACTIONS TO THE CONGRESS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B00017R000200340005-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 143
• Document Creation Date: December 22, 2016
• Document Release Date: December 1, 2011
• Sequence Number: 5
• Publication Date: April 1, 1987
• Content Type: MISC

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HEARING OH H.R. 1013 AHD OTHER PROPOSALS WHICH
ADDRESS THE ISSUE OF AFFORDING PRIOR NOTICE OF
COVERT ACTIONS TO THE CONGRESS
Wednesday, April 1, 1987
U.S. House of Representatives,
Permanent Select Committee on Intelligence,
Subcommittee on Legislation,
Washington, D.C.
The Subcommittee met, pursuant to call, at 9=00 a.m., in
Room 2247, Rayburn House Office Building, Hon. Matt McHugh
[Chairman of the Subcommittee] presiding.
Present: Representatives McHugh [presiding], Stokes,
Kastenmeier, Kennelly and Livingston.
Also Present: Representatives Beilenson, Hyde, Wright and
Michel.
Staff Present: Michael J. O'Neil, Chief Counsel; Thomas
R. Smeeton, Associate Counsel; Bernard Raimo, Jr., Counsel;
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Robert J. Surrette, Professional Staff Member; Jeanne M.
McNally, Clerk; Sharon Curcio, Assistant Clerk; Merritt R.
Clark, Chief, Registry'Security; Lawrence D. Covington,
Assistant, Registry/Security.
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Chairman MCHUGH. The Committee will please come to order.
Today the Subcommittee begins two days of hearings on the
subject of congressional oversight of covert operations.
More specifically, we will be examining whether existing
procedures governing the President's authorization of covert
operations, as well as his notification of and consultation
with Congress, are adequate to assure meaningful
congressional oversight of such operations.
Despite the fact that covert operations represent only a
small fraction of the intelligence community's work, they
tend to generate the most attention and controversy when
publicly revealed. We would all agree that such operations
are appropriate in certain cases. However, because of their
sensitivity and potential for controversy at home, it is
particularly important that covert operations be soundly
conceived and be seen as advancing the legitimate interests
of the United States if they become publicly known.
It is for this reason, as well as Congress' right to share
in the establishment of U.S. foreign policy, that the
intelligence committees are involved in the oversight of
covert operations.
The primary legislation governing congressional oversight
is the Hughes-Ryan amendment of 1974, as amended by the
Intelligence Oversight Act of 1980.
The statute then provides that the intelligence committees
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of the Congress must be kept "fully and currently informed
of all intelligence activities... including any significant
anticipated intelligence activity... " This provision
establishes the general requirement that the intelligence
committees must be given prior notice of any covert
operation.
However, the Oversight Act then goes on to create two
exceptions to the general rule. First, "if the President
determines it is essential... to meet extraordinary
circumstances affecting vital interests of the United
States," the President may restrict prior notice to the
House and Senate leadership and the chairman and ranking
minority members of the two intelligence committees--this
group of eight in the leadership is sometimes referred to as
the "Gang of Eight".
Second, the Act recognizes that in some cases the
President may not give prior notice to anyone, but in those
cases the Act requires the President to "fully inform the
intelligence committees in a timely fashion..."
This second exception to the general rule requiring prior
notice will be a main focus of these hearings. In the case
of the President's decision to covertly sell military arms
to Iran, he signed his Finding authorizing the operation in
January of 1986. The President not only failed to provide
anyone in Congress with notice of this operation prior to
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its inception, he never provided notice. It was not until
November of 1986 that anyone in Congress learned of this
covert operation, and then only because a magazine in the
Middle East disclosed it.
Our purpose in these hearings will not be to revisit the
entire Iran-contra episode. That is for other committees to
do. However, inasmuch as the President may decide to
initiate other covert operations, it is important for the
intelligence committees to determine whether existing law
contributed to the breakdown of congressional oversight in
the case of the Iran arms sales.
Of course, many of us in Congress believe that the
President should have given the intelligence committees
prior notice of his intent to covertly sell arms to Iran.
If he had done so, Members on both sides of the aisle surely
would have expressed strong objections. While these
objections would have been advisory only, they might have
helped the President avoid embarking on a policy which was
so deeply flawed in its conception and its implementation.
This is a classic example of why prior notification and
consultation with the intelligence committees are not only a
benefit for the committees, but a benefit for the President
as well.
However, as previously noted, current law does not require
the President to give prior notice in all cases. He may
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defer notice until after the operation has begun, but in
those cases he must provide notice "in a timely fashion."
The problem here is that appropriate cases for deferring
notice are not defined, nor is there a definition of what
constitutes timely notice after the fact.
The Subcommittee has before it today two bills that have
been introduced to deal with these questions. One is
H.R.1371, which was introduced by a former member of the
Intelligence Committee, Mr. Mineta of California. It would
require the President to provide prior notice of all covert
activities. The other bill is H.R.1013, which was
introduced by Mr. Stokes of Ohio, who is the Chairman of the
House Intelligence Committee, and Mr. Boland of
Massachusetts, its first Chairman. It has been cosponsored
by all of the Majority Members of this Committee and by 49
of our colleagues in the House.
H.R.1013 is designed to eliminate the ambiguities in
current law. It would retain the general requirement that
the two intelligence committees be given prior notice of all
covert activities, as well as two exceptions to this general
rule. The President would continue to have discretion to
restrict prior notice to the so-called Gang of Eight where
required by "extraordinary circumstance affecting vital
interests of the United States" However, the President
could withhold prior notice only where such extraodinary
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circumstances exist and where "time is of the essence";
and in such cases notice would have to be given not more
than 48 hours after the President has signed his finding or
the intelligence activity has begun.
Thus under this bill timely notice would be specifically
defined. The bill would also strike the preambular clauses
of the Oversight Act, which the authors maintain adds
nothing to the statute's clarity.
H.R.1013 would also require that findings by the President
be in writing, and that copies be provided to the two
intelligence committees, and to the Vice President, the
Director of Central Intelligence, and and the Secretaries of
State and Defense.
The Committee has a very distinguished group of witnesses
to address these issues. We are very appreciative that they
have taken time to be with us. We look forward to the
testimony.
Before calling our first distinguished witness, I would
ask Mr. Livingston if he has any opening comments.
[The full statement of Mr. McHugh follows:]
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166
Mr. LIVIKGSTOK. Thank you very much, Mr. Chairman.
I have no formal statement. While I sympathize with the
motivations of the Members who have authored these bills
that are before the Committee, and we agree that certain
facts uncovered in recent months might prompt such
legislation, I have grave reservations about the
implementation of legislation of this sort, and its
potential impact upon the powers of the President as
Commander-in-Chief.
So I am looking forward to hearing the witnesses. I look
forward to asking questions, and I hope that we will indeed
unveil some facts which might broaden our perspective of
what is a very serious matter. I appreciate your giving me
this opportunity.
Chairman MCHUGH. Thank you.
I would also like to ask our Chairman, Mr. Stokes, who is
the primary author of this bill, if he would like to make
any opening remarks.
Mr. STOKES. Mr. Chairman, I do have an opening statement
but I would yield if you would like to recognize the Speaker
of the House, and I can yield my statement at this time.
Chairman MCHUGH. Without objection, that would be made
part of the record.
[The statement of Mr. Stokes follows:]
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Chairman MCHUGH. At this time, we would ask the
distinguished Speaker of the House, Jim Wright of Texas, to
lead off in our witnesses. The Speaker has been very
interested in a very capable intelligence capacity and in
the oversight function which Congress must necessarily
exercise.
As Majority Leader he served ex officio as a member of the
Intelligence Committee and took part in many of our
proceedings. So we are delighted, Mr. Speaker, that you are
here with us this morning.
Mr. WRIGHT. Thank you. I appreciate the invitation to
come and talk with the committee in behalf of this
legislation which I think is vitally necessary. As I have
observed the operation of the Rational Security Act,
Sections 501 and 502, that it has become painfully apparent
to me that certain ambiguities have been exploited
permitting activity to occur which clearly was not intended
in the original legislation.
The bill before you makes two very simple changes, both of
them quite clearly consistent with the original intent of
Congress, in creating this committee and this procedure for
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consultation.
I recall very clearly when the procedure was created in
law. It was done so at the request of the Chief Executive
who felt that representatives of the Executive Branch of
government were being required to report to a proliferating
number of committees and subcommittees in Congress. The
President himself wanted one repository of this type of
information.
The Speaker, Speaker O'Neill, very assiduously interviewed
and selected Members to serve on this committee. One of the
qualifications for service on this committee was that a
person be capable of maintaining secrecy and silence, not of
leaking information given to the committee by the Executive
Branch of government with regard to classified activities.
At the same time, it was felt that the creation of the
committee itself very clearly implied that the members of
the committee should serve as one part of a two-way conduit
with the Executive Branch and that we could know of things
in advance in order that we might give our advice to the
Executive Branch of government, advice and consent being
part and parcel of the operation between the two branches.
Now, I am quite sure in my mind that if the provisions
intended in the law--and I think unambiguously contained in
the law--had been followed as Congress intended, most
assuredly members of the Legislative Branch of government
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would have expressed our reservations to the Chief Executive
about the appropriateness of this covert plan to sell arms
to Iran, and quite possibly the entire embarrassment which
has been visited upon our country might have been avoided.
it was that kind of thing that was anticipated in the
requirement that there be reports to some limited number of
people.
Now, this bill, the Stokes bill, would modify section 662
of the Foreign Assistance Act to require that all covert
action findings be in writing. These written finding would
have to be provided to the House and Senate Intelligence
Committees, the Director of Central Intelligence, and the
statutory members of the National Security Council prior to
initiation of the proposed covert action.
The bill would retain a provision in existing law which in
certain circumstances permits the required prior notice to
be given to 8 specified leaders of Congress, a bipartisan
group of people, rather than to the full membership of both
intelligence committees as prior notice.
I would contend from my reading of the law that what was
expressly anticipated was no situation at all in which prior
notice could be withheld from any congressional person. I
don't believe that the reading of section 501, or section
502 of our Act, anticipates any situation whatever in which
all Members of Congress may be excluded from knowledge,
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prior knowledge, of what is going on because section 501B in
reference to the requirement that a select committee on
intelligence of the Senate and the House be fully and
currently informed, is modified only to the extent that if
the President determines that it is essential to limit prior
notice, not to exclude prior notice, but to limit prior
notice, to meet extraordinary circumstances affecting vital
interests of the United States, then such notice shall be
limited to the Chairman and Ranking Minority Members of the
Intelligence Committees, the Speaker and Minority Leader of
the House of Representatives, and Majority and Minority
Leaders of the Senate.
It shall be limited to those people. Not shall be
excluded, not shall be withheld, but shall be limited to
those people if these exigencies require it to be limited
and time is such that members of the Committee cannot be
notified.
Now, there have been situations, two of which I can recite
to you, in which these leaders were informed in a prior way
when it clearly was not possible nor perhaps advisable to
notify the full Committee in advance.
One of them involved the invasion of Grenada, and on the
eve of that action the President sent representatives to the
Capitol and asked certain ones of us to follow certain
procedures by which we assembled in the White House that
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evening rather late, and discussed with the president and
the Secretary of Defense and Secretary of State and certain
others what was about to happen. What did happen occurred
at approximately 5 a.m. and we were learning of this about
10:30 p.m. or 10:00 p.m. when our conversations were going
on. That was prior notice, it complied with the law.
Surely in a matter of that kind prior notice could be and
properly was limited, but it wasn't excluded, it wasn't
withheld. It was given.
A second instance involved the bombing of Libya. I was
out of town, I was at Ft. Worth when this occurred. I
received a notification that I should find a secure
telephone so that at 4 o'clock in the afternoon I might talk
with people in the Central Intelligence Agency and
representatives of the White House.
I did so, the only secure telephone which I could
establish in my home community being at the FBI in one of
the Federal buildings and I did so and completed the
telephone call and was advised of what was getting ready to
happen. It happened within 2 hours of my being notified,
perhaps an hour-and-a-half.
But it did constitute prior notice. Prior notice was
given.
So it seems to me that this timely notice then was given
in each of those instances to the committee after the action.
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had begun. That was in keeping with the statute.
In the case of the Iran arms sales, however, there was no
prior notice given to anybody. Nobody was advised. No
consultation was held. No congressional party was notified.
Nobody knew anything about it until of course it was
printed some 10 months later in a Middle Eastern newspaper.
And then at that point the so-called timely notice began to
take place.
Obviously that is not what is intended by the statute, ten
months later after people find out about it through a leak
in the newspaper. That is not timely notice.
So I think it must become necessary that to avoid those
ambiguities or any contention on the part of anybody in the
Executive Branch, that timely notice is fulfilled by
withholding all information until after a leak establishes
public knowledge we must define what constitutes timely
notice. There has been a breach and I think this bill
properly defines timely notice as not more than 48 hours.
That would be reasonable and it seems to me that in the
interests of maintaining the right and proper balance of
powers between the Executive and Legislative Branches, we
must take this kind of action.
Even in those instances in which the statute has permitted
prior notice to be limited to certain few, even then it is
quite clear that the statute requires that timely notice be
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given and that it anticipates that timely notice would be
maybe a couple days, not months surely, not weeks, and most
assuredly not months.
The President shall fully inform the intelligence
committees. in a timely fashion of intelligence operations
in foreign countries fox which prior notice was not given
under subsection A, and shall provide a statement of the
reasons for not giving prior notice. Well, this bill in my
opinion should not have been necessary, Mr. Chairman; as
someone who has served ex officio on this select committee
for nearly 10 years, I can state from experience that when
the present legislation was enacted the Congress intended it
be notified before any covert actions took place.
When we use this term "timely fashion" in the law with
regard to those extraordinary circumstances when time did
not permit prior notification, the Congress meant a couple
days, not months.
The colossal misjudgments made by some in the
Administration in the arms deal with Iran confirm the need
now I think for legislation tightening this law.
It is my honest belief that had the President notified the
Congress as to what was intended in Iran, he might have
gained a clearer understanding of the risks involved. Had
the Congress received prior notification, it is certain that
some of us would have advised against that unfortunate
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policy. The United States government might well have been
spared this embarrassing and costly episode which continues
to undermine our foreign policy.
So, Mr. Chairman, I commend your leadership in holding
these hearings on this important matter, and I know that you
are planning expeditious action which this issue warrants.
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Chairman MCHUGH. Thank you very much, Mr. Speaker, for
your testimony. We will proceed under the five-minute rule
with questions.
Mr. Speaker, I think some will argue that in certain
limited cases, particularly where life is at stake, that is
where agents are asked to undertake especially risky
operations, the President should have discretion not only to
withhold prior notice, but also to withhold notice beyond 48
hours.
That is to give the President some flexibility beyond that
limitation of time when he believes that there is an
especially risky situation for agents conducting the
operation.
Do you believe there is any justification for giving the
President that flexibility in that type of situation; or,
should the President be required as the bill suggests to
provide this kind of notification to Congress, either
through the intelligence committees or to the limited
leadership group of eight?
Mr. WRIGHT. I don't believe that the statute anticipates
that the lives of our agents or any other people would have
been adversely affected or endangered in any way by the
President's carrying out the provisions in the statute
giving prior notice to a limited number of people. I don't
think there is any suggestion that the lives of United
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States intelligence agents would have been endangered by the
President's giving notice as the law required him to do, to
the Chairman of this committee and the Ranking Minority
Member of this committee, their counterparts in the Senate,
the Speaker and the Minority Leader of the House and the
majority and minority leaders of the Senate.
I cannot imagine anybody suggesting or thinking that the
lives of American intelligence agents would be endangered by
the President's giving that information to that limited
number of people on a prior basis.
Chairman MCHUGH. Let's assume that everyone agrees that
in the case of the Iran arms sale, notice should have been
given and that certainly the president could have provided
notice on a prior basis or within 48 hours. But of course
this legislation will apply to all cases, and the question
is whether or not in other types of situations, let's say a
hostage rescue situation which plays out over a period of
some days, and in which covert activity is required and that
covert activity places the agents involved in the rescue
operation in jeopardy.
Should the president in that situation be required to
share that information with Members of Congress?
Mr. WRIGHT. Well, I think--
Chairman MCHUGH. I think that is the hard case that we
will be presented with.
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Mr. WRIGHT. Let's look to the case of what happened with
regard to our abortive attempt to rescue the hostages in
Iran during President Carter's administration.
In that instance I an not aware of whether prior notice
was or was not given to the Speaker and Minority Leader, or
to the Chairmen and Ranking Members of the House. I suspect
that it was not. I received a telephone call at
approximately 2 o'clock or 2:30 in the morning from
Secretary of State Vance telling me what had happened. At
that moment the disaster had occurred, the debacle of our
misfortune had just occurred and they were at that time
striving to extricate themselves, our Service personnel who
were attempting to return to safety of our ships.
I think in that particular instance prior notice probably
wasn't given but timely notice surely was. It may have been
that timely notice was given and had it not been given, we
learned of it anyway in the most egregious manner. I cannot
believe that if President Carter had followed the provisions
explicit in section 501 of the Act, the lives of the
rescuers would have been put in jeopardy. It is conceivable
that in the secretive mind which is part and parcel of
intelligence operatives--and I don't say that in a pejorative
sense, I am saying secretive mind not in the sense of being
critical but rather I am trying to be analytical--that they
would suppose that telling anybody in the Legislative Branch
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would put their plans in jeopardy.
That after all is the warp and woof of the makings of
executive arrogance--the idea that certain actions are two
precious, too risky, too important to be shared with the
Congress. That isn't what was in the minds of the people
who wrote the Constitution.
Chairman MCHUGH. Thank you.
Mr. Livingston.
Mr. LIVIHGSTOK. Thank you, Mr. Chairman.
Mr. Speaker, I appreciate your remarks and frankly, with
regard to your assessment of the current Iranian situation I
really don't find much to quarrel with. But I am reminded
of the old courtroom adage that bad facts make bad law, and
I am really concerned that we are rushing to judgment here
with a piece of legislation that is geared to prevent a
reoccurrence of the circumstances surrounding the Iranian
situation, and that we will ultimately cause great harm to
unknown individuals in the future by virtue of our somewhat
hasty action.
Specifically, I guess I am concerned about the 48 hour
provision. I am reminded that--you recall the bombing of
Libya, and I am reminded of the fact that Sam Donaldson
minutes, perhaps as many as 30 minutes or so prior to the
actual bombing, was on television talking about a projected
strike in Libya, and in fact we are not the best keepers of
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secrets in the United States Congress.
That is not an indictment of any single individual, but
when you deal with a body as large as ours with the Members,
with the staffs, in fact we just don't keep secrets well. I
am concerned that there would be or might be circumstances
that might arise that might necessitate the Commander-in-
Chief of Armed Services keeping the lid on an operation for
much longer than 48 hours, and I use as an example the
situation that involved the--again going back to the first
Iranian hostage situation--the folks who were hiding in the
Canadian Embassy.
In fact there were ongoing operations to try to free those
people over a prolonged period of time, many months if my
memory serves me correctly, and had it gotten out that those
folks were in the Canadian Embassy, Lord knows what would
have happened to them and to the Canadian people.
I think that--I just have grave concerns that we are
seeking to remedy a single situation which may have far
broader implications than our initial objectives. I will
just invite your comments.
Mr. WRIGHT. First, with regard to your apprehension that
we might be rushing to judgment, I would simply point out
that it has been more than four months since we learned of
what I believe to be a clear and unambiguous violation of
the statute. Most certainly all of us would agree, a
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violation of the intent of the statute, the spirit of the
statute, I believe a violation of the letter of the statute.
I don't believe that is a question of ambiguity at all.
We learned of that four months ago. Those of us who have
some responsibility to protect the integrity of the
Legislative Branch in the constitutional scheme of things
have felt quite strongly for all of these four months that
something must be done. For this committee in its
deliberate way to have studied and pondered and taken
testimony and have learned everything that can be learned
about what happened and why, to examine the rationale of
those who advised the President that he could and should do
as he did and not advise the Congress in keeping with the
statute, we have had four months.
Now, it seems to me that what is being done here is done
in a very deliberate way. I don't believe it is rushing to
judgment. I think this committee as an agent of the
Congress is fulfilling its responsibility in attempting to
guarantee for the benefit of the nation and for the
protection of the Executive Branch as well that misjudgments
of this kind shall not recur and that at least we will have
some means of attempting to dissuade people from this kind
of a misadventure in advance.
With regard to the contention that there may be
circumstances in which it would be wise for Congress to be
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kept entirely in the dark, and I don't know for how long a
period of time you think that is wise, but I believe the
entire Constitution and the spirit of this law does not wish
to leave that discretion entirely in the hands of the
Executive Branch.
If you just leave it wide open and allow the Executive
Branch to decide when the situation is sufficiently worthy
that it warrants violating this statute and not advising
Congress, is in effect to have no statute at all. You might
as well not have an intelligence committee if the Executive
Branch is simply expected to come when it wants to and when
it is convenient to their purpose and consult with Congress.
So unless there is some clear criterion which the
gentleman would establish, I don't think it would be wise
for us just to anticipate that circumstances could arise and
it is up to someone in the Executive Branch to decide if it
wants under those circumstances to advise the Congress. In
such case who is going to make the decision?
Is it going to be the President? The Secretary of State?
Is it going to be the Chairman of the Joint Chiefs of Staff?
Is it going to be the National Security Council? Is it
going to be some Lieutenant Colonel?
You know, if you leave it undefined you leave it up in the
air and invite this kind of thing again it seems to me.
Mr. LIVINGSTON. My time is up. Thank you.
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Chairman MCHUGH. Mr. Stokes.
Mr. STOKES. Thank you very much, Mr. Chairman.
Firstly, I would want to express my appreciation to the
distinguished Speaker for his appearance here this morning,
and for the excellent testimony he has given on behalf of
the Stokes--Boland legislation.
Mr. Speaker, it appears to me that in this legislation we
are attempting also to address a more grievous situation.
The gravamen of the offense is as I see it here, is that
from everything that we know in the public domain at this
point in time, the President of the United States decided
either upon his own or upon advice of someone that this was
an operation which could not be revealed to Congress because
Congress could not be trusted with this information, but it
is even broader than that, not only was Congress not
trusted, members of his own Cabinet were not trusted. So he
cannot just say it was his fear of leaks in the Congress.
But it seems even more grievous that he trusted in this
operation a foreign nation and principles in a foreign
nation.
The ultimate leak came from the Iranians themselves who
leaked the matter to a Beirut newspaper and as a consequence
of it this matter became known publicly.
I would just like to have you address that broad principle
in terms of any evidence that Congress in the case of this
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sort ought not to be trusted.
Mr. WRIGHT. Well, I think that comes to the heart of the
balance of powers. Perhaps it is inherent in the Executive
Branch to want to protect the prerogatives of that branch of
government. If I were in that branch of government, perhaps
I would see it that way.
But I am certain in my mind that the people who wrote the
Constitution intended that Congress could be trusted.
Thomas Jefferson surely intended that the people themselves
could be trusted. That was at the heart of the very central
core philosophy of this government.
Now, if we were to assume that Congress cannot be trusted
with information, then we betray a lack of confidence in
this fundamental system of ours. It rests upon the
assumption that Congress can be trusted.
With respect to the leak which found its way to Sam
Donaldson--you know, I think I can certainly say to you that
that didn't come from Congress: I don't believe anybody has
suggested that it did. It must have come from some other
source. I am quite absolutely sure in my mind that it did
not come from Congress.
This committee has been privy to information which has not
been leaked until much later and then--much, much later than
the time when it was made available to this committee on
several instances, and members of this committee will recall
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some of those instances.
Now, I should like to say as Speaker, that if it ever were
to come to my attention that any Member or staff person of
this committee had in violation of his or her oath leaked
information, then I would ask that person to resign from the
committee. This is not the kind of a committee that the
Speaker has nothing to say about. This is the kind of
committee on which the Speaker does have something to say as
to personnel.
I think all of you would expect that. If there were any
reason to believe that any member of this committee had
violated the sacred oath which is concomitant with accepting
membership on the committee, then that person should not
expect to serve on this committee.
I just don't believe that has happened. I don't think the
House Committee has leaked information. We need to be very
careful about personnel, people whom we hire on both sides
to serve on this committee. We owe that obligation, not to
the Executive Branch per se but to the United States and to
our oath of office.
I would recall an instance which Mr. Livingston may be as
cognizant of as I am. I was not in the Congress at that
time though I am sure some of you think I have been here
that long, during World Max II knowledge of the atomic
arrangements, the tests, the experimentation was held by a
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1 623
very small number of people.
Sam Rayburn and the Chairman of the Appropriations
Committee knew of it, and they asked for the money quite
frankly saying that, to the committee, we cannot tell you
what this is for, but we think it may end the war sooner.
That is all they knew. They provided the money based upon
that information.
I think Congress can keep confidences. If we cannot, we
don't deserve to be here.
Mr. STOKES. Thank you, Mr. Chairman.
Chairman MCHUGH. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman, and I have so much to
ask and so little time it is an occupational hazard though.
But apropos of your last remarks, Mr. Speaker, let me quote
to you from November 14, 1985, Washington Post, an article
by Daniel Shore, "In 1975 the CIA support of the anti-
communist faction in Angola, also a Kissinger Project, was
disclosed after it became an issue in the House Foreign
Affairs Committee. The late Representative Leo Ryan, a
member of that committee, told me in an interview at that
time that he could condone such a leak if it was the only
way to block an ill-conceived operation.
How, I suggest to you that was not unique with Mr. Ryan,
and citing chapter and verse the other day we had a briefing
and I don't, I won't tell you what the substance of the
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briefing was but March 23, immediately thereafter, page 7 of
the Newsweek Magazine, covert help for Corey Aquino. The
Agency will add about a dozen agents to its 115 member
station in Manilla, et cetera, et cetera, et cetera.
Now, the instances of dangerous leaks--and I don't say the
are from Congress but I say that this Congress has a problem
that it ought to consider at least equal to the problem of
inadequate dissemination of secret information, and that is
the leak. We cannot keep a secret, and a democracy is
indeed in peril in a dangerous world if we cannot keep a
secret.
There are many instances here of enormous violations. Let
me read to you from the Tower Commission report. The
obsession with secrecy and preoccupation with leaks threaten
to paralyze the government in its handling of covert
operations. Unfortunately, the concern is not misplaces.
The selective leak has become a principal means of waging
bureaucratic warfare. Opponents of an operation kill it
with a leak. Supporters seek to build support through the
same means.
We have witnessed over the past years a significant
deterioration in the integrity of process. Rather than a
means to obtain results more satisfactory, than the position
of any of the individual departments, it has frequently
become something to be manipulated, to reach a specific
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outcome. The leak becomes a primary instrument in that
process. Et cetera, et cetera.
How, I asked Richard Helms, a former Director of Central
Intelligence, for comment on this bill. Let me read you one
thing he says and then I will ask for your comment and beg
your indulgence.
This bill proposes to tighten up certain reporting
requirements on new covert actions undertaken by the Central
Intelligence Agency. In so doing it demands that
Presidential findings be in writing and that a copy of the
written finding be furnished to certain Members of Congress
and to the Vice President, Secretaries of State and Defense,
and the Director of Central Intelligence.
At the rate written documents of the Executive Branch
appear in the newspapers these days, I would have thought
that this requirement almost constitutes a guarantee that no
action would long remain covert. When a written finding is
sent to a Senator, a Congressman or a Cabinet officer, how
many individuals on their staffs actually see this document?
Quite a few I would surmise. Put another way, this
legislation would further insure that with the inability of
the Executive and Legislative Branches to identify leakers,
covert action as an option in support of U.S. foreign policy
is doomed.
This is not necessarily because future presidents and
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directors would be unwilling to take the chance but because
the experienced officers who must carry out such operations
would not wish to become involved in what they would
inevitably regard as a no-win situation.
Then Mr. Speaker, he mentions a colleague of ours in the
other body who shall be nameless, former chairman of the
Senate Select Committee on Intelligence?
Mr. WRIGHT. I don't have the faintest idea who that would
be. I appreciate your keeping his identity secret.
Mr. HYDE. Good, I think we have--we will try to keep that
covert.
He was quoted in the Washington Post and many other media
including the Jerusalem Post as having exposed during a
speech in Florida an alleged American intelligence operation
in Israel.
Now, sure, we have a problem. Congress is entitled to
know. We cannot exercise oversight unless the Executive has
confidence in us and unless we have confidence in them, and
there is a problem.
I am not sure, in fact I am sure this is not the solution
to the problem, but we ought to address ourselves to
security, to punishing peoplg who leak and devising ways to
find out what the leaks are and who the leakers are.
I would ask for your comment.
Mr. WRIGHT. Mr. Hyde, I think you raise a really very
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interesting question. There has to be a distinction between
policy on the one hand and the means employed to carry out
that policy on the other hand. As to the precise and
specific means of carrying out covert policy, I suppose
Congress would be foolish to expect that we should be told
in such minutia and detail as the identity of each of our
agents whom he is contacting and when he is going to take a
given course of action and where it will occur. That would
be ridiculous obviously.
But at the outset, at the inception of a policy creation,
I believe the law anticipates--and I think the Constitution
anticipates--that Congress needs to have a voice. I don't
believe either the law or the constitution ever has
suggested that it be a monolithic decision made in the White
House alone that gets us into a war, for example, but that
Congress should have the opportunity and does have the
responsibility to make a judgment as to whether we get
America into a war.
How you make reference to an article by Daniel Shore in
the Washington Post in November of 1985 that involves what I
would suppose to be a policy determination with respect to
Angola.
Perhaps you and I might agree on that matter so far as
policy were concerned. I don't know whether we do or not,
but the point is that there is a right for Congress to know
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that a given policy is being carried out and the Congress
should have the opportunity to consult.
Now as to how it is carried out obviously Congress has no
reasonable expectation of being told of the matter of its
being carried out in detail. But let me offer a couple of
other suggestion, times in which people appointed in the
Executive Branch--not elected personnel, not people directly
responsible to the American public--have made judgments and
launched activities that would be unlawful, that would be
contrary to our treaty agreements with other nations, and
that quite probably would not be supported by the Congress
as a whole.
And in the mid-1950s, perhaps 1954, I am not certain what
year, I think my recollection would tell me 1953 or 1954,
the CIA conceived and carried out an assassination effort
involving a man named Jakabo Arbenz in Guatemala. Jakabo
Arbenz I guess was a Marxist, I don't know just how to
define his political philosophy. He was not a great friend
of the United States. It might have been in our best
interests that someone else be elected rather than he, but
an election was going on as I recall and we have no right to
go into another country in my judgment and certainly no
person in the Executive Branch has the unilateral right to
decide who in another country should be allowed to live and
who should be assassinated.
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774
775
776
In 1971 if memory serves, in that time frame, in that era,
a decision was made unilaterally in the covert sanctums of
the CIA that we should go into Chile where an elected
president was serving peacefully and not attempting to
consolidate his gain to my knowledge with the use of armed
militia nor attempting to call off regular or free
elections; he was I suppose Marxist, I don't know that he
was a Marxist, probably he was a socialist--
Mr. HYDE. A liberal anyway.
Mr. WRIGHT. Well, I think that is a mild description.
Mr. HYDE. Yes.
Mr. WRIGHT. In any event he was probably not the person
that the United States in general would have liked to see
president of Chile, but he had been elected president of
Chile. Chileans had voted for him and I am persuaded by
people who think they know what was going on down there that
if left alone, he would have been rejected at the poles and
someone more moderate would have been elected, if we would
have let it alone.
The CIA conceived a plot to destabilize--destabilize--the
government of Chile. How there is a euphemism for you. We
decided that we--not we but someone in the sanctums of the
CIA, decided that he had the right to go down and
destabilize a government of an elected president in Chile.
That has created bad will for our country. It has confused
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798
the clarity of our policy. It has contributed to criticism
of the United States subsequently. And it ushered in a
militaristic regime in Chile which still to this day
prevails.
It wasn't necessary for us to, in my judgment, to have
undermined that elected government in Chile. Congress
didn't decide to do that. Congress wasn't given any choice.
Mr. HYDE. Is your point, Mr. Speaker, we should leak some
things and some we shouldn't?
Mr. WRIGHT. No, no.
Mr. HYDE. I am asking you how to deal with the problem of
leaks.
Mr. WRIGHT. Henry, I think you know.
Mr. HYDE. Not a listing of alleged sins which I say are
very much in dispute, of the CIA. How do we deal with
congressional leaks was really my question. I should have
put it more directly.
Mr. WRIGHT. Henry, I think you know the answer to that.
Of course you know the answer is not that we who are privy
to this classified information should presume any right to
leak it. Did I not just say that we have no right to do
that. Of course I said that.
Mr. HYDE. Right.
Mr. WRIGHT. Of course we don't.
Mr. HYDE. We have no right to leak, but the question is
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what are we going to do about it and are there any
legislative suggestions that perhaps you have that would--
Mr. WRIGHT. Henry, what I an suggesting is that the
Congress does have a right and a responsibility through the
exercise of its orderly procedures to know what is going on.
Mr. HYDE. I stipulate that. I agree with that.
Chairman MCHUGH. Mr. Kastenmeier.
Mr. KASTEKMEIER. Thank you, Mr. Chairman.
I would like to congratulate the Speaker on his
presentation as well, and his response to questions.
I must say myself as far as the House Committee on
Intelligence is concerned, I an not sure that there is any
example we know of where the House has, where the House
Committee has been proven to be the source of leaks. We
have enormous numbers of leaks nationally and as a matter of
fact, the Acting Director of Central Intelligence recently
suggested to us that the principal source of leaks is not
the Congress, is not the Congress--not the Congress--but Mr.
Speaker, I would like to talk about a different question,
and it is a larger question that is perhaps I think
aggravated by the tension that has existed between the
Administration and the Congress in the last few years.
Particularly, although it could happen anytime, and it is a
situation which you have related as producing a situation
where the President in his own mind can elect to comply with
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848
the law or not comply with the law.
As a matter of fact, I think whether it is under the Max
Powers Act or notification of covert action even, the two
cases you cite did not involve any prior consultation, maybe
minimal notice but certainly not the consultation; you were
not consulted in that sense; the leadership was not
consulted; and really there has been an erosion of the
relationship between the Executive Branch and the Congress
in terms of more serious activities done in this nation's
name.
Would you not agree that what is recommended here is
indeed modest. Ten years ago, for example, when some of the
actions you have just referred to were reviewed, there were
those who asked whether we ought to permit covert action,
whether we ought to forbid it or whether we ought to have
some mechanism for congressional approval or much more
stringent prior notification. So what this is, is it not
merely a restatement of existing law to make it more
efficacious and remove ambiguities so that we can proceed
with a sort of new understanding of the relationship between
the Congress and the White House?
Mr. WRIGHT. I have that feeling, of course, Mr.
Kastenmeier. I do believe that what is proposed in this
legislation is simply a tightening up of the statute in
order to carry out its original intent. I am aware of the
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apprehension that may have been expressed about putting it
in writing, putting in writing of a finding. Conceivably
you may want to think in terms of how broadly that is to be
interpreted or how widely disseminated any such writing
could be, but I think it is within the scope of this
committee to handle that kind of determination.
I can find nothing in this present proposed amendment to
the statute that violates the initial purpose of the
statute. It seems to me that it clarifies and carries it
out. Doesn't it? That is my interpretation of it.
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89.1
892
RPTS BRADFIELD
DCMH DOHOCK
10:00 a.m.
Mr. KASTEHMEIER. Thank you, Mr. Speaker.
Chairman MCHUGH. Mr. Beilenson?
Mr. BEILEMSOH. I don't really have any questions of our
esteemed Speaker. As one of the co-sponsors of this
legislation, I, too, along with many of our colleagues,
found his comments very cogent, very compelling.
First of all, all of us agree with a couple of points that
our friend from Illinois, Mr. Hyde, made. We have got to
improve out security and do our very best to find out who
leaks information, and to punish those people.
But coming back to the bill which is before us, its
intention basically is to carry out the intention of the
existing law. If you worried about leaks, then you have
that exact problem, of course, as Mr. Hyde pointed out.
You have that exact problem to a certain extent under
existing law. A recent study by the Intelligence Committee
of the other House found out that 147 recent occasions of
information having been leaked, that the attributable
sources in all but 12 of those cases was the Administration,
someone in the Administration rather than someone in the
Congress.
There clearly is a problem, and the larger problem clearly
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1 908
has to do with the Executive Branch of the Government, for
all kinds of obvious reasons, most obvious is there are very
few individuals, both staff and members, Senate and House,
who know these secrets, and in most instances, there are
many dozens, hundreds, sometimes thousands of people who
know these self-same secrets which some of our colleagues
are urging us to deny, even eight of the most trusted
Members of the Congress, and there is a lot of competition
between these Executive Branch Departments, some of whom
don't believe that the CIA should be tasked with some
particular operation or not.
Often, people within the CIA itself think that they have
been asked to do something foolish or dangerous, or
counterproductive potentially, and if you ask any good media
person if that person told you the truth, they would tell
you in virtually every instance that person's source was
somebody from the Executive Branch, not from the Congress of
the United States.
Mr. HYDE. Would the gentleman yield for just a brief
question?
You mentioned a study by the Senate Intelligence Committee
that found 100-some leaks came from the Administration.
Mr. BEILEHSOM. In the articles themselves, the
information was attributed to someone in the Executive
Branch of the Government.
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Mr. HYDE. Who is the chairman of that Senate Select
Committee?
Mr. BEILEKSOX. I can't remember his name, but he was a
former chairman. It may have even been the person that the
gentleman was speaking of earlier, I an not sure.
We are concerned about possible risks, loss of life. All
of the members of this committee are aware of certain
operations that are carried out that we cannot even speak
of, where there is continual potential risk to people's
lives.
Let me just say one more thing, if I may, Mr. Chairman,
there is a particular question which perhaps we could speak
at some greater length about. The hardest questions of all
were those which were raised by Mr. Hyde, Admiral Turner and
others, and hostage rescue situations, where you are trying
to save lives, so on, those are situations which tend to be
short-lived, you can't afford any kind of talking about it
whatsoever.
And at the same time, if I may be frank, from this
member's point of view, those may be the kinds of operations
where some of us feel that we don't really need to know.
They are not policy undertakings, cover operation in a
larger term, and it seems to me that in such kinds of cases,
perhaps there is no need for the Congress to know, even
under its right to know, to do oversight, some will
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eventually find out.
It may well be that we might perhaps think of making some
exception for those kinds of rescue operations. I do not
know as a policy matter that we need to know. At least
beforehand, anyway, and that might solve a lot of people's
problems with the most risky of these potential kinds of
situations.
It might not offend some of us to find out about those
things until after they are over, but they may be a useful
avenue for us to explore, Mr. Chairman.
Chairman MCHUGH. Thank you.
Mrs. Kennelly?
Mrs. KEHHELLY. Thank you, Mr. Speaker, for being with us
this morning, and for your statements. I want to make my
comments as a new member, and thank you, Mr. Speaker, for
appointing me, but I found in my life, sometimes you say
things so often they become a truism.
Members can't keep secrets, Congress can't keep secrets.
I see people who can keep secrets to my left. Because this
was said so many times, it seems to me that now we have
private individuals, retired military members, unelected
officials, and Lieutenant Colonels running many things.
I appreciate your being here, because it shows the support
you have for this committee, for the oversight charge of
this Congress.
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Mr. Chairman, do you think individual Congressmen and
women can keep secrets?
Mr. WRIGHT. Women, of course, surely Congressmen and
Congresswomen can keep secrets. Perhaps some of us cannot.
We are like people. Those who cannot keep secrets have no
business on this committee.
Mrs. KEKMELLY. As a new member, I am in a wonderful
position of a new beginning, and hopefully this bill will be
a new beginning. We went full circle, those that couldn't
keep a secret were given the charge of doing things, because
we couldn't keep a secret.
Hopefully, the oversight charge of the Congress will go
back to the place it should have been, the seriousness, and
to bring these things into being for taking all this time to
be with us, and I hope we can prove that we can keep a
secret.
Chairman MCHUGH. Mr. Speaker, we all appreciate your
being with us this morning.
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999
1000
1001
1002
1003
1004
1005
1006
1007
1008
1009
1010
1011
Chairman MCHUGH. Our next witness is the distinguished
Minority Leader from the House of Representatives, Robert
Michel of Illinois.
Mr. Michel, like the Speaker before him, has been an ex
officio member of the Intelligence Committee and has added
considerably to our deliberations, and functions, and we are
very grateful for your presence here this morning.
Mr. MICHEL. Well, thank you, Mr. Chairman, and my
colleagues on the committee, as you indicated, I have been
very privileged to serve as an ex officio member of the
committee. My only regret is, because of our duties
otherwise, we are limited in our attendance; but I would
like to address myself, if I might, to the bill, H.R. 1013,
introduced by the chairman, which would amend the National
Security Act of 1947, and section 662 of the Foreign
Assistance Act of 1961--the Hughes-Ryan amendment.
When the chairman introduced his bill on February 4th of
this year, he said, and I think it bears well to have it
read here:
"With these amendments, the scheme for covert action
reporting will be quite clear. First, in almost all cases,
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prior notice must be given to the Intelligence Committees;
second, in rare cases, where the President believes there is
an unusual degree of sensitivity, prior notice must be
given, but it may be given to the leadership group set out
in section 501; and third, in even rarer cases, where the
President must react with speed because of an immediate
threat to our national security, notice must be deferred for
a maximum of 48 hours.''
I am not a constitutional scholar. But I have been a
Member of the Congress for over 30 years. I have seen the
Legislative Branch and the Executive Branch come to
loggerheads on constitutional prerogatives over and over
again.
But nowhere has the issue been more forcefully joined than
in the language of the amendment I have just read. And
nowhere has the issue been more serious. What we are
dealing with here is a fundamental question of foreign
policy.
If I may judge from the remarks made by the chairman
during that same Floor speech in February, his amendment has
its origins in the controversy surrounding the Iran-contra
arms affair and the notification issue.
I will not comment on the facts of the Iran-contra affair
because we already have two Congressional committees working
full time to uncover those facts. And while I have read
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with interest varying interpretations of the President's
decision not to notify Congress, my appearance here today is
not concerned with the legal and historical questions of
that issue.
I would rather talk about the future than the past, about
the dangers I see to our Nation if the chairman's amendment
ever becomes law. Legislation proposed in the heat of
political passions, with long-range questions of national
security overshadowed by short-term response to current
controversies, is not Congress acting at its best.
I fully understand the motivation that led to this
proposed legislation. I understand the frustration that
supporters of the legislation might feel given their
perceptions of the events surrounding the Iran-contra
affair. But a sense of frustration, justified or
unjustified, is not a sufficient cause to create legislation
like this.
In dealing with intelligence oversight, the Congress has
never intended to confront an American president with
language that is the functional equivalent of a foreign
policy strait-jacket.
There is an old rule of thumb about problem-solving. It
says that we should never try to seek more accuracy in our
answers than the facts of the question permit. In short, we
should never sacrifice the good to the best. We should
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never try to find a perfect formula for states of affairs
that do not, by their very nature, allow perfection.
James Madison, in Federalist Paper No. 48, described the
possibility of the Legislative Branch encroaching on the
legitimate functions of the other Branches. Speaking of the
Legislative Branch, he wrote:
"Its constitutional powers being at once more extensive
and less susceptible of precise limits, it can with the
greater facility, mask under complicated and indirect
measures, the encroachments which it makes on the coordinate
Departments."
To put the matter in the less eloquent but perhaps more
emphatic language of our own time, Congress can pass
legislation whose stated aim is doing good for all
concerned, but whose effect will be encroachment on the
rights of the order branches of government.
The Constitution of the United States made it clear from
the beginning that there could be no clear-cut, easy-answer,
ready-made formulation to do away with the inherent tension
between two Branches of Government, each with legitimate
powers.
They knew that sometimes we would have to live in that
gray, fog-shrouded area of the political landscape between
the Executive and the Legislative powers, where clarity
isn't always possible.
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If you feel, Mr. Chairman, as you said in your statement,
that "the bond of mutual respect between the committee and
the CIA has been broken," the worst way to reestablish that
old bond of trust is by forging new chains of legislative
language.
We should not fool ourselves that we can solve these
complex problems simply by writing new language. I wish it
were that simple. But it is not. Under a system of
government like ours, we have to take risks. Democracy
itself is a risk. There are no guarantees.
But one risk we cannot take: We cannot risk having our
adversaries--and indeed, our friends--perceive an American
President as not being able to move quickly and decisively
because Congress has restricted his flexibility.
I stress the word "perceive." There are learned
counselors and expert witnesses on both sides of this issue.
We who are not constitutional lawyers or experts can only
listen and try to make judgments.
But whatever the constitutional issues involved, if this
legislation became law, the perception of a weakened
Presidency would be universal. No amount of convoluted
arguments about what the legislation means could erase the
impression that the Congress intends to limit a President's
flexibility.
This may not be your intention. But it will be the
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perception. And in politics, including geopolitics,
perception is all-important.
I can think of no worse scenario than one in which a
Soviet leader meets with an American President--any American
President--believing that our President has been stripped of
the freedom to act swiftly and with flexibility.
Again, I don't question the motivation behind this
proposal. What I question is the wisdom of Congress, acting
in the emotion of this Iran-contra affair, placing
restrictions upon the very institution of the Presidency
itself, restrictions that are, in my view, constitutionally
dubious and strategically dangerous.
Let me turn for a moment to another aspect of the issue.
It may seem peripheral, but I believe it is important in the
overall context of the debate over Congressional oversight.
There are those who say no Administration can afford to
trust the Congress with secret information for fear it will
be leaked. The Tower Commission report addressed this point
among its recommendations. What the report had to say about
the problem of possible "leaks" is worth quoting in full:
"There is a natural tension between the desire for
secrecy and the need to consult Congress on cover
operations. Presidents seem to become increasingly
concerned about leaks of classified information as their
Administrations progress. They claim Congress
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disproportionately. Various Cabinet officials from prior
Administrations indicated to the Board that they believe
Congress bears no more blame than the Executive Branch.
"However, the numbers of Members and staff involved in
reviewing covert activities is large; it provides cause for
concern and a convenient excuse for Presidents to avoid
Congressional consultation.
"We recommend that Congress consider replacing the
existing Intelligence Committees of the respective Houses
with a new joint committee with a restricted staff to
oversee the intelligence community, patterned after the
Joint Committee on Atomic Energy that existed until the mid-
1970s.11
I am glad to see that the Tower Commission did not engage
in "Congress-bashing" when it came to discussing leaks of
classified information.
But it is worth repeating that the report did say the
"number of Members and staff involved in reviewing covert
activities is large; it provides for concern--11
I think it is a very fair and accurate assessment of the
situation.
Our distinguished colleague, Mr. Hyde, has proposed
legislation that there be one joint Congressional
Intelligence Committee, a proposal I support. I think that
we should embrace Mr. Hyde's proposal since it reflects the
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concerns of many, including the members of the Tower
Commission.
In conclusion, my view is that intelligence oversight can
work, as it has in the past, when there is the give-and-take
of debate, the freedom for a President to maneuver, along
with the acknowledgment, in deed as well as word, of the
legitimate right of Congress to be properly informed in
order to perform its oversight functions.
I think the legislation we already have on the books
reflects a wise, prudent compromise to a complex problem.
The legislation ain't broke. So let's not fix it.
Very briefly, on that 48-hour limitation, I an thinking of
the difficulty involved there, depending upon who those
members are that we want to be notifying, and how many,
Congress is away on weekends all so frequently, and then
when we are on break, whether it is Lincoln's birthday, the
Fourth of July, or in August or whenever, the Congress
adjourns, and we are spread to the four winds all around the
globe, and you are going to require within 48 hours
notification of individual members on a secure basis?
We could be in Timbuktu, where even today, we are
recognizing in the Soviet Union, we got a real serious
problem for the Secretary of State getting back to his
government.
Now, that has got to be a very serious problem for us.
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Then, the very fact of all that has developed by way of
communication intercepts, yes, I have tried to be very, very
careful about some of the sensitive information that I
received, to make absolutely sure that I am on some secure
line, but how, how accessible are those secure lines to
those of us who may not be right in our offices where the
facilities are there for us to use?
Finally, in the deletion of part of the existing law
there, that provision which has to do specifically, Mr.
Chairman, with other than activities intended solely for
obtaining necessary intelligence. Not even an exception for
intelligence-gathering.
Now, let's suppose we have got an agent or a couple or
whatever, someplace abroad, and the President says now, we
would like to plant a seed someplace, if you are given the
opportunity. I am not altogether sure under the language of
the chairman's bill here, whether or not the President at
that point is supposed to be advising Members of Congress,
this is what I am proposing out there, and when is the time?
The agent may be behind the screen that we are all too
familiar with today. He is given a commission to do a
certain thing prospectively, depending upon some other act
out there, and certainly within the President's right to
maintain the security of our country to have those eyes and
ears out there, to do certain things for intelligence-
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gathering, I just don't see--you know, when you wipe out that
exception again in your legislation, we have got a problem.
I am reminded in this growing controversy here, you know,
I remember, and no reflection at all upon our own individual
Members of Congress, with respect to how we are given to
leaking information, but I can remember several Speakers of
the past who refrained from appointing certain members of
the House of Representatives to certain committees because
of those Speakers' doubts about those members' abilities,
whatever, to serve on those committees.
Now, they may very well, when we take the oath of office,
support and defend the Constitution, but I will tell you,
there is nothing in that oath under those circumstances that
forecloses possible leaks of very sensitive information, and
then this issue of covert versus overt operations, I dare
say there are some members of the House of Representatives
of the Congress who frankly have a personal bias against
covert operations, period.
I happen to think they are absolutely essential, even in a
free society, and in my own responsibility as leader, would
never, never appoint a member to this committee who frankly
had that personal bias against covert operations, because I
don't think that would serve the system well, or the House
of Representatives well, so those are the thoughts I have.
I would be happy to subject myself to questions.
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Chairman MCHUGH. Thank you very much, Mr. Michel, for
your statement.
First, I think it is important to stress, as you did, that
we should look at this issue dispassionately and not in any
sense of frustration, and I hope that is the manner in which
the committee will proceed.
Secondly, it is important to distinguish between
collection of intelligence on the one hand, and covert
operations on the other, and I think that this bill clearly
is directed to covert operations.
I would point out that in President Reagan's Executive
Order of December 1981, he defined covert operations as
those "conducted in support of national foreign policy
objectives abroad which are planned and executed so that the
role of the United States is not approved or acknowledged
publicly, but which are not intended to influence U.S.
political processes, public opinion, policies or media,"
and this is the part that is important, "and do not include
diplomatic activity for the collection and production of
intelligence for related support functions."
Covert operations to which this bill is directed does not
cover the collection of intelligence, which we all agree
should not be subject to prior notification to Congress.
Mr. MICHEL. If this, perchance, this legislation should
get to the House Floor, and then in the legislative history,
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that would be a very, very important point that would have
to be arrogated and discussed because the language deleted,
automatically wipes out that exception that we at this day
have in the law specifically.
Chairman MCHUGH. Well, I don't think that is correct, but
we can certainly make it clear in the legislative history
that we are not intending to influence or affect collection
of intelligence.
You indicated that you would like to look forward in terms
of this proposal, and its impact. That is an important
thing for us to do, but it is not irrelevant for us to
consider the Iran arms transaction, because that is a real-
life case.
It reflected not just what happened in that particular
instance, but it reflects what we perceive to be an attitude
with this particular Administration with respect to
Congressional oversight generally.
We may be wrong, but nonetheless, the perception is there.
As others will testify, there is an argument that you
should not try to write something into law to cover
Congressional oversight and notification, but rather, it
should be based on trust and comity, and I agree with that
so long as the trust exists, but as the Iran-case
demonstrates, at least to some of us, there is a perception
in the Administration, on the part of some, that Congress
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can't be trusted, or it is an inconvenient or obstacle
rather than a help.
And I would ask you with respect to that case, whether or
not the President complied with existing law, which requires
in the case where prior notice is not given, that the
President shall notify the Intelligence Committees in a
timely fashion.
The President signed his finding authorizing this
operation on January 17, 1986. We did not learn of this at
any time from the White House or from anyone else in the
Administration, as was mentioned earlier; we learned about
it because it was disclosed in a Middle East magazine.
Well, does that comply with existing law, never mind the
proposal which is being made here today?
Mr. MICHEL. I am personally offended by the fact that I
was left out of the loop for so long, and I am certainly not
going to apologize for my own Administration for having
taken that tact, because as you indicate, there are those of
us who know how to keep a secret, can be trusted with this
country's security, and there is an obligation for a shared
role and responsibility between the Executive and
Legislative Branches, and so on, but what I am saying, and I
am not altogether sure the system is wrong, some of the
individuals involved are victims of their own individual
body chemistry, what their feelings were vis-a-vis an
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Executive Branch versus Legislative.
And so, I have a real reluctance to put that kind of, or
to put some kind of a strait-jacket on some future
President.
I would like to think no matter who he or she may be, and
those around them, that they will have learned certainly
from this experience that that was not the appropriate way
in which to conduct that operation, certainly.
Chairman MCHUGH. I presume that if the President had
notified you of his plans to sell arms to Iran controversy,
that you would have expressed some reservation or objection
to that?
Mr. MICHEL. There would certainly have been those of us
who would have reminded whomever at that time of some of the
other commitments which were made to us for which we went
out on the line as a matter of principle with respect to our
absolute prohibition of dealing with terrorists, period, you
know.
And I must confess, that I had a very hard time
assimilating what had gone on.
Chairman MCHUGH. Don't you think the Iran case in this
connection is a good example of why prior notification in
most cases is a benefit to the President as well as a right
of the Congress?
Mr. MICHEL. I know we have left this rather ambiguous in
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the past, by way of timely notification, and we have argued
that point on the Floor of the House any number of times,
and it is going to be open to various interpretations,
depending upon who the individual is, I guess.
And I would just--I am very reluctant to deny a President
of the future that kind of flexibility, trusting hopefully
that whoever he or she might be will have learned from this
experience that that was not in the spirit of the law, to
have that long a gap between the Act and the notification of
those of us who deserved some heads-up on what was going on,
because those of us who are really active on that political
cutting edge out there on a day-to-day basis do have some
good things to volunteer once in a while.
Chairman MCHUGH. Thank you very much.
Mr. Livingston?
Mr. LIVIKGSTON. I want to commend you on an outstanding
statement, and thank you for your input. I just want to
concentrate on your point about the amendment to section B
of existing law.
In reading that specific exception, the words "other than
activities intended solely for obtaining necessary
intelligence" would be struck, as I have pointed out, which
would require that even the most mundane obtaining of
necessarily intelligence, and all of the covert activities
inherent in that activity, would be required to be shared by
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NAME: HIG091020 PAGE 59
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the President and the Executive Department with various
Members of Congress, and in most cases, in advance rather
than 48 hours after the fact.
Is that your understanding, Mr. Michel?
Mr. MICHEL. Well, I always considered this to be a very
important exception that we had currently written into the
law, and that when we are about to wipe out very important
exceptions, then I have to ask why.
What is the reason for it?
Mr. LIVINGSTOH. I totally agree with you. Even if it
were the most significant intelligence-gathering activities,
it would seem that this is not the type of thing that should
be shared, and could very well totally close down our
capability to gather intelligence around the world.
Mr. MICHEL. I am not the specialist here. We got a few
behind us here, Bill Turner and Bill Colby, and there may be
others that can probably speak more directly to that, but I
have a real problem with that.
Mr. LIVIHGSTOH. Well, I thank you for your statement. I
have no further questions.
Chairman MCHUGH. Thank you.
Mr. Stokes?
Mr. STOKES. Thank you very much, Mr. Chairman.
Let me also commend our distinguished Minority Leader for
his appearance here this morning, and the excellent
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NAME: HIG091020 PAGE 60
statement he has given in support of his views.
On the statement that you made with reference to putting
the President in a foreign policy strait-jacket, as the
distinguished Minority Leader knows, the law already
requires timely notice to the Congress, so we are not saying
that the President has to do something he is not already
required to do under law.
Does the distinguished Minority Leader by any stretch of
the imagination say to us that notice after 14 months, we
take McFarlane's testimony in public domain, where he said
it was August of 1985, when the President first gave
approval for the sale of the arms by the Israelis to Iran,
by any stretch of the imagination, would the distinguished
Minority Leader say that was timely notice to the Congress?
Mr. MICHEL. That was not.
Mr. STOKES. I can say to you that in crafting this
legislation, I don't think either I or Ed Boland, the
distinguished former chairman of this committee, one of the
most distinguished members of the House, and a gentleman who
distinguished himself by chairing this committee for six
years, co-sponsor of this legislation, intends in any way to
tie the President's hands.
We respect the fact that the President has to make certain
exigent decisions, and must have latitude for that, but Ed
Boland has stated on several occasions that when they
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entered into the original language on timely notice, that it
was based upon mutual trust between the Congress and the
President, and it seems to me here now that you would
probably agree with me that we are confronted with a
situation where, because the President made a unilateral
decision on his part without the involvement of the
Congress, we are now in a situation where the President
himself, as a consequence of this Act, has requested an
Independent Prosecutor to conduct a criminal investigation
of this Act.
He has requested both Houses of the Congress to
investigate the consequences of his Act, and I think that
the distinguished Minority Leader would agree with me that
had he complied with the law, say timely notice being
somewhere within a 48-hour period, or if the law as proposed
had been enacted, say 48 hours, and he had come over to the
Congress and said to our committee which you have sat on now
for 10 years, that he planned to do what he planned to do;
isn't it conceivable that some of us on that committee would
have had enough common sense to say to him, "Mr. President,
this is bad. Go back to the drawing board and think about
this one again, Mr. President."
Don't you think that would have happened?
Mr. MICHEL. I an not altogether sure it would have been
the President himself who would have come up, but at least
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MAKE: HIG091020 PAGE 62
someone speaking on his behalf personally responsible, and
there would have been a significant reaction on our part, I
think, maybe from both sides of the aisle.
It would vary in degree, but as I said and indicated, that
timely fashion is open to interpretation, and from my point
of view, I.felt offended that it took that long before we
were notified, and bearing in mind, I guess, it was an
operation that was somewhat far removed from the kind of
normal things we think of here, and this whole hostage issue
is one in more recent years that has come to the fore that
we, a number of years ago, when I first came to the
Congress, I don't think anything gave any serious thought to
what the problem might be for us in respect to the hostage
issue.
But in more recent years, the Carter Administration, and
this one, we have been caught up in things, and new
developments probably require a reassessment of how to deal
with it. That was part of the reason for the lengthy delay
in notification, because it took so long through
intermediates to get the kind of contacts that eventually
were supposed to bear fruit, but as I said, I am troubled by
that long delay.
Mr. STOKES. Thank you, Mr. Chairman.
Chairman MCHUGH. Thank you.
Mr. Hyde?
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Mr. HYDE. I want to congratulate you for a superb
statement, analysis of a very thorny problem, and I want to
associate myself with your sharp criticism of the
Administration in not timely notifying Congress.
The law is clear, and 14 months is not timely, and I think
the law in that sense was not observed, and I think that the
Administration is paying a political price for that, as
every Administration will when they do not observe the
letter or the spirit of the law, and I would personally like
to see timely fashion stay in there, and we will define
timely fashion, as we are doing now, by saying this surely
wasn't, and the Administration is paying a price for that.
In addition, by notifying Congress, you get some risk
insurance when something is high-risk, and doesn't go right,
but that said, and I firmly believe that, and I agree with
the spirit of this legislation, but I sure don't agree with
how it handles it, you all, except Mrs. Kennelly, who was
not on the committee, remember perfectly well when the
Secretary of State came into our committee and told us of a
very sensitive operation, and those were his words, and the
next day, it was in The Washington Post in detail.
There are people who say a life was probably lost on that
disclosure. Now, I can understand the White House and Mr.
Casey being concerned that the leaks come from his own
agency, from the State Department, from Capitol Hill where
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NAME: HIG091020 PAGE 64
we are besieged by media after every meeting, just for
background, confirm what I have heard from somebody also,
and I can understanding the paranoia, the leaks are legion,
and I have so many of them here, and I don't like to talk
about them, because you give some legitimacy to the
disclosure, but the 48 hours is hog-tying a President in
matters where we ought to leave it at timely notice, and if
they don't observe it, force that political price to be
paid.
Two more things, we are besieged by spy scandals, the
Kampiles case where this employee sold a manual about a very
highly sensitive satellite, the Morrison case, the Walker
case, the three Marines, at cetera, at cetera, and we are
spending our energies trying to disseminate more classified
information instead of trying to address, at least in tandem
with our concerns about notification, some of these serious
problems.
Permit me to digress to answer something that the Speaker
said that really deserves an answer, and in all fairness, he
assailed the CIA for conduct on two matters, one of which
was Chile, and I just want to indulge the chairman by
reading two paragraphs from a book written by Mr. Colby,
that is an excellent book on the CIA.
"Honorable Men, My Life in the CIA," by William Colby;
and he discusses that Chilean myth that we have heard for
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time immemorial, how dirty the CIA was, and how we overthrew
this democratically-elected leftist Allende. Two points
need to be made about the CIA's assistance during this
period after 1970, and both are a contrast to the general
impressions abroad about it.
The first is that CIA's help was to center political
groups, not the right-wing extremists. Of the millions of
dollars spent in Chile by CIA, the most prominent right-wing
group received some 38,000 during the track-two effort in
1970, and about 7,000 more during 1971 and none thereafter.
The second is that the 1973 coup was carried out by the
Chilean military with no participation by CIA. In fact, CIA
sent clear instructions to its station in Santiago in May
and June 1973 to separate itself from any contact with the
Chilean military, so that it would not be misunderstood to
have been involved in any coup action the military might
undertake.
The real thrust of CIA's program was to support the center
political forces so they could win the next elections and
thus remove Allende through peaceful means.
This is going out over C-SPAN, and the record ought to be
clear that the CIA performed adequately in Chile. They made
mistakes, being human, but they are not to be assigned guilt
for overthrowing the great democrat Allende, because they
didn't.
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HAKE: HIG091020 PAGE 66
I thank the chairman for that time.
Chairman MCHUGH. Mr. Kastenmeier?
Mr. KASTEHMEIER. Thank you, Mr. Chairman.
I am glad to greet the Minority Leader here. On the point
of 48 hours, I would think the committee would want to look
at the time in terms of whether 48 hours has some peculiar
validity as a time frame or something else.
I think that and other issues were appropriately raised by
Mr. Michel. I do take issue with him with the implication
that somehow those appointed to the committee should be
predisposed to support covert action.
I think that that is a basic fundamental difference I
perhaps have with the gentleman from Illinois. There are
many who feel, in the agency and others, that frankly in
terms of the agency that covert action has been sort of the
bane, the thing that has damaged the agency over the years.
Granted, there have been effective, useful covert action
programs historically, and some that have been an
embarrassment to this country. Therefore, I would
suggest--and furthermore, the Intelligence Committee is
concerned with intelligence-gathering, and analysis, much of
it highly technical, in terms of, let's say, 96, 98 percent
of our budget, and our efforts are in intelligence,
intelligence-gathering, and the covert action is a small
portion.
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NAME: HIG091020 PAGE 67
I would think that this is where we need critical review
that is a sort of dispassionate view, second-guess, if you
will, on the part of the Congress, and that should not
imply, as my friend, Mr. Hyde, suggests, that those who
might oppose certain initiatives are disposed to leak those
initiatives.
I don't think the connection is there. If I am disposed
to oppose a program, I feel I must be purer than Caesar's
wife on that with respect to possibly leaking anything about
Mr. HYDE. Would the gentleman yield?
I hope I did not imply that opposition predisposed someone
to leaking. I don't believe that at all. I simply say
there are isolated instances where people really think it is
a higher duty to leak a program or a policy if they are
against it, and I quoted one former member, whom we all knew
and admired, as that was his duty, to leak a program, and
there are others who feel that way, and we know why they
are.
Mr. KASTEKMEIER. Those are members on other committees,
but I accept the Speaker's premise that those appointed to
this committee, above all, are absolutely bound to
confidence, whether we like activities, support them or not.
I hope that we can be effective in ensuring that the
confidence in the committee is justified by the House.
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Chairman MCHUGH. Mr. Beilenson?
Mr. BEILEKSOK. Thank you, Mr. Chairman. I, too, enjoyed
having our good friend from Illinois, Mr. Michel, here with
us today. He has made some very useful points, and among
them, the point you made with respect to where one of these
eight folks might be when time for notification came around.
That is something we should perhaps take a look at. We
might, for example, limit it to require the notification
only amongst those eight members are in the country or even
in Washington, D.C., can be notified personally, certainly
not when they are overseas, or there can be somebody else
you might notify in their stead, or you don't have access to
a secure line.
The gentleman brings up some valid points. Maybe the
Speaker might take some of his friends from Illinois
overseas sometime, and being called a month from now,
calling him up and trying to inform him of something the
Soviet Union should not know about, well, perhaps we could
address that more carefully.
Mr. MICHEL. One other point, Tony, our adversaries know
who the members are on this committee, and they know who the
leaders are, and when, at one given time, all these members
are given a simultaneous notification of something is up, if
you don't believe that in itself is a key and a tip-off to
your adversary, then that is another element in this thing,
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and I Just, from a point of being extraordinarily careful
about how we tip our hand, that that ought to also be taken
into account.
Mr. BEILEMSOX. Thank you.
Let me go on for a moment, Mr. Chairman, and respond to a
few things that Mr. Michel said. If you believe, and I
think you used the word that legislation on the books that
we have now is wise legislation, then one would have to ask
what is wrong with spelling out the requirements a little
bit, because as you and Mr. Hyde and everybody quite
properly feel, that the timely notice requirements didn't
work in this particular case, then perhaps 48 hours is not
the cure-all, but somehow what we have got now is not quite
adequate, although we all believe that it is wise
legislation in general; so, let's struggle to find some way--
Mr. HYDE. Would my friend yield to me on that point?
Mr. BEILEHSOH. Of course.
Mr. HYDE. The observation of the law was inadequate, not
the law. Every time the law is not obeyed, we don't need to
change the law, but better observance of the law.
These hearings are moving us in that direction, but when
you start putting time limits on it, it gets to be
micromanagement.
Mr. MICHEL. It is a bit embarrassing, frankly, for Henry
and myself, because it is our Administration that did not do
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what we would have thought they should have been doing, but
even with that, we would take the strong position, not
knowing who ongoing Presidents might be, we want to be very
careful.
Mr. BEILEKSOK. You want to lay down some explicit
guidelines as to what is timely for them. It is not enough
to hope that some future Administrations will remember, or
will have learned, because in fact, we learned through
history that people forget, and the folks who are carrying
out the policy, they may be in their thirties, forties, and
may not have been even around at the time of the next
crisis.
You talk to folks at home about the Second World Max, the
kids in high school were not even around when the Vietnam
Max was here. You got to keep reminding people, and to the
extent that you can usefully put something in legislation,
you should do so.
With respect to a weekend Presidency, I don't think
anybody is suggesting we strip the President of his ability
to act. We are trying to require again, concentrating on
our right to be informed, as a coordinating branch of the
government, to be informed.
In speaking about espionage cases, those in fact are cases
which are far more costly, far more destructive and damaging
to our national interests probably than anything we are
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talking about.
We are talking not about those sorts of things or even
intelligence-gathering, but we are talking about policy
matters, covert actions, and part of the problem--and I have
probably exceeded my five minutes--part of the problem one
must say frankly is that the main foreign policy initiatives
of this particular Administration, the so-called Reagan
Doctrine, are initiatives that are designed in such ways
which are often funded or done through the Intelligence
Committees which cannot be openly debated on the Floor.
It leaves us all in a very difficult situation. The
Congress has to be part of this in one respect or another,
but we can't debate it on the Floor, talking about how much
money we are spending, because it has all been given to us
in this other form of covert action, not because the
President or the Administration wants to avoid this kind of
debate, but because he believes in these kinds of covert
actions.
It makes it difficult for us, because we have a part to
play, and it is difficult for us to play that part, because
we are not allowed to talk about any of these things, and
they are in the paper, but we can't talk about them.
Chairman MCHUGH. Mrs. Kennelly?
Mrs. KENHELLY. Mr. Michel, I am just curious, I know some
of the things that were set up for the Speaker, are you
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satisfied, that the statute as written now that you could be
adequately notified that at all times contact would be
gotten with you.
Is that mechanism set up presently under the statute as
written now?
Mr. MICHEL. There has to be a certain measure of trust,
and when the American people, and of course, we are in that
time when both parties are picking candidates to run for
President, a long, long tortuous trail to that end of the
line, we have to give a certain measure of trust and
confidence to whomever the American people at that time have
chosen to be their Commander-in-Chief, and I have to trust
in that judgment of the people from time to time.
It may be against my best wishes.
Mrs. KEHHELLY. Since we do live in a time of possible
terrorism within this country, which is considered a real
possibility, are you always available to know, does the
White House know where you are?
Mr. MICHEL. I don't know that they have had any real
problem every running me down personally.
Mr. BEILEHSOH. They knew where you were on the override.
Mr. MICHEL. Oh, yes, and I make a special point of
letting them know where we are going to be at any given
time.
Mrs. KEHHELLY. Are you satisfied that this committee
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NAME: HIG091020 PAGE 73
1712 could contact you, if in fact this legislation passed,
1713 within the 48-hour notice?
1714 Mr. MICHEL. There may be--sometimes I might be
1715 inaccessible for some limited period of time, but I tell
1716 you, I guess my concern is, when you are doing it
1717 simultaneously, a signal that is tipped on that, because
1718 that can be, people can be aware of that, simultaneous
1719 notification, there are ways and means by which that is
1720 determined, and then the further away from this capital city
1721 of Washington you are, the more of a problem that becomes.
1722 Mrs. KEKKELLY. Thank you, Mr. Chairman.
1723 Chairman MCHUGH. Mr. Hyde?
1724 Mr. HYDE. One more brief question.
1725 What do you do, Mr. Michel, when another country that you
1726 are dealing with in tandem on an operation conditions their
1727 participation on non-disclosure? They have got their
1728 citizens involved, their agents, their people, and they read
1729 the papers, and they will help you and we may desperately
1730 need their help, but they condition their participation on
1731 non-disclosure.
1732 What do you do then, if you are trapped into a 48-hour
1733 notification?
1734 Mr. MICHEL. That is an interesting question. The very
1735 raising of the question by the distinguished gentleman begs
1736 some kind of answer from the committee eventually.
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NAME: HIG091020 PAGE 74
Chairman MCHUGH. Thank you very much, Mr. Michel. I want
to reassure you again on the question of whether or not what
we are proposing here would affect the collection of
intelligence, and I would point out that section 662 of the
Foreign Assistance Act, which the Hughes-Ryan amendment,
which is still in effect, and would be after this bill were
enacted, covert operations and notice requirements are not
intended to affect intelligence-gathering, so your
understandable concern about that would be taken care of by
this particular language.
Mr. STOKES. Just one question.
Since you agree that 14 months is not timely notification
under the statute, and since he feels that 48 hours severely
constricts the President, does the gentleman care to offer a
time limit that he is agreeable to?
Mr. HYDE. Split the difference.
Mr. MICHEL. Well, I can tell by the gentleman's demeanor
that he was about to pop that question, and I guess I have
to say, it must be someplace in between, but as I said, I
have a real problem when we get to finally delineating and
specifically tying that down, that is a difficult one to
call, but more than anything, to really--I think the
committee has been made aware of the real serious problem,
whereas in that type of frame, and I will leave it go at
that.
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Mr. STOKES. Thank you very much.
Chairman MCHUGH. Thank you very much, Mr. Michel.
Our next scheduled witness was to be Senator Moynihan of
New York, but he is the Floor leader on the question of the
highway bill override in the Senate, so he has submitted his
statement, and will not be with us.
There is one comment in his statement which I would,
without objection, like to read at this point, because it
gets to the heart of the question of whether Congress can be
trusted, and Mr. Hyde has suggested that in certain cases,
the intelligence community should be able to share
information with other perhaps intelligence communities, and
not be burdened with telling Congress.
Mr. Moynihan says, "There is a nation that the Congress
cannot be trusted. That the Congress is a national security
risk. Wrong. Committees here take matters with great care.
You treat matters before your committee with great care.
We are not to be held responsible for the revelation of
public belligerent acts such as the mining of Nicaraguan
harbors, or revelations by adversaries such as happened in
the Beirut newspaper, Al Shiraa.
When you get to the point where you trust a Ghorbanifar, a
man the career intelligence service did not trust, before
you trust the Speaker of the House; or when you decide to
pass on intelligence information to the Ayatollah but will
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NAME= HIG091020 PAGE 76
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not inform the Chairman of the Intelligence Committee of a
Presidential finding, then matters are confused. And it is
time to add some order with amendments such as these.
[The statement of Senator Moynihan follows:]
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MANE: HIG091020 PAGE 77
Chairman MCHUGH. I would like to invite our next
witnesses to join us in a panel in an effort to save your
time and ours.
We are very grateful for your patience, as well as your
presence here today.
Our first panelist will be Admiral Stansfield Turner, who
served as Director of the Central Intelligence Agency during
the Carter Administration, graduated from the Naval Academy
in 1946, spent two years at Oxford as a Rhodes scholar, and
his naval experience included two years as Commander of the
NATO Southern Command.
Our second panelist will be Mr. William Colby, who also
served as Director of Central Intelligence, and had a very
long and distinguished career in the intelligence business
before that. He has appeared before our committee, as
Admiral Turner has, many times, and they have always
contributed significantly to our discussion.
Our third panelist will be Ray Cline. Dr. Cline is
presently CHairman of the U.S. Global Strategy Council, and
is a young Professor of International Law of Georgetown
University School of Foreign Service, and previously served
as a Deputy Director for Intelligence, CIA, and the
Department of State, and Senior Advisor at the Center of
Strategic International Studies.
We appreciate all of you being here, and Admiral Turner,
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ii we may start with you, please?
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RPTS BOYUM
DCMK SPRADLING
[11:00 a.m.
STATEMENTS OF ADMIRAL STANSFIELD TURNER, U.S. NAVY (RET.),
FORMER DIRECTOR OF CENTRAL INTELLIGENCE; WILLIAM E. COLBY,
ESQ., FORMER DIRECTOR OF CENTRAL INTELLIGENCE; and RAY
CLINE, CHAIRMAN, U.S. GLOBAL STRATEGY COUNCIL AND FORMER
DEPUTY DIRECTOR FOR INTELLIGENCE, CIA
Admiral TURNER. Thank you, Mr. Chairman.
In view of the time I have sat here I cut my presentation
in half. I believe you have a written copy of it as well as
a classified addendum to it.
Chairman MCHUGH. Without objection, we will include that
in the record.
Admiral TURNER. Let me hit the highlights as quickly as I
can for you, sir.
With one exception which I will note below, I believe it
is very desirable that the intelligence oversight committees
of the Congress be informed of all covert activity within
the 48 hour limit proposed by the bill. The question is is
this provision of law the best way to ensure that the
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Congress will in fact be informed within 48 hours of the
signing of a covert action finding by the President.
We have recently had an unfortunate example of the Finding
of January 17, 1986 regarding CIA support in facilitating
the delivery of arms to Iran. The fact the notification was
not given to Congress of that Finding stands starkly in
contrast with the written agreement made between the
Director of Central Intelligence and the Senate Select
Committee on Intelligence in the spring of 1984 in the wake
of the controversy over whether the Congress was adequately
informed about the mining of the Nicaraguan harbors.
The Director of Central Intelligence purportedly pledged
in a written document that had the approval of the President
to ensure that the Congress was informed in the future of
all significant intelligence activities. It would appear
reasonable to consider that the CIA support fox the sale of
arms to Iran was a significant intelligence activity. In
short, the written pledge of the Director in the spring of
1984 was not sufficient to ensure that the Congress was
informed in January of 1986.
I would suggest then, Mr. Chairman, that the establishment
of good will and cooperation between the Executive Branch
and the two congressional committees on intelligence may be
more important than written agreements or provisions of law.
The essential question is how to restore mutual trust and
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confidence. We are very fortunate on the 4th of March that
the President, in his address to the Nation on TV, stated
unequivocally that his Administration had come to a new view
that there must be congressional oversight.
I quote, "I an also determined to make the congressional
oversight process work. Proper procedures for consultation
with the Congress will be followed not only in the letter,
but the spirit."
Let me suggest that there might then be some advantage in
allowing the Executive to prove itself in this regard
without the Congress first tightening the legal screws. I
am suggesting at this particular moment discretion on the
part of Congress may be the better part of valor. When the
intelligence community is adjusting to the new Presidential
Directive, it may be best not to sound any more alarms than
are necessary. Especially not with the provision of law
that may well not be effective anyway if there is not good
will in addition.
Mr. Chairman, I cannot speak for the Administration, of
course, but you do raise the specter that the Administration
may find it necessary to veto this bill if it comes before
it. I know that when a similar provision was discussed in
1980 in connection with the Intelligence Oversight Act of
that year, I recommended to President Carter that he veto
such a bill if it did pass the Congress, and I believe the
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President was inclined to do so at that time.
I would hate to see at this particular juncture that kind
of adversarial relationship develop between the committees
and the Administration.
Now, as I mentioned at the beginning, I would suggest
there is one case in which notification to the Congress in
48 hours poses a genuine concern to the intelligence
professionals. That is when a chief of intelligence finds
that it is desirable to ask an American employee, or a
foreign agent to put his or her life on the line in some
covert activity. I did this on three occasions.
I would have found it very difficult to look such an
individual in the eye and tell him or her that I was going
to discuss this life threatening mission with even half a
dozen people in the CIA who did not absolutely have to know,
that is, who were not necessarily and intimately involved in
supporting this activity.
Let me describe very briefly the three instances to which
I referred, all are efforts in connection with the attempt
to release our hostages from Tehran in 1979 to 1980.
I will only sketch them briefly. There are more details
in the classified appendix to my comments.
First, as you will recall and as has been mentioned
earlier this morning, six Americans escaped from the Embassy
compound and eventually took refuge in the residence of the
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NAME: HIG091020 PAGE 83
Canadian Ambassador. We in the CIA assumed responsibility
for obtaining the release of those six Americans. We did
that in part by sending in a CIA covert action professional
into Tehran to engineer the departure of these six.
How, for this person voluntarily to step into that hostile
environment at that time was an act of bravery and self-
sacrifice. Only a bare handful of people in the CIA were
privy to what was going on, and in my conscience I cannot
inform anyone else who was not essential to the operation.
We did proceed without informing the Congress. As you know,
it was a highly successful undertaking.
The second instance concerned what has come to be known as
the Desert 1 operation. The military needed to refuel
helicopters as they flew from an aircraft carrier in the
Arabian Sea to Tehran. They were having great difficulty in
finding any way to do this without risk of revealing that a
rescue effort was in progress. I asked the CIA covert
action experts to turn their minds loose on this problem.
They came back to me in about a week with the thought that
the desert floor in Eastern Iran might be sufficiently firm
to take the fixed-wing aircraft carrying the fuel for the
helicopters.
What is more, they actually flew a light plane into the
desert by the light of a full moon. They took core samples
and proved that the desert floor was sufficiently firm.
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Here again I was asking people to insert themselves into a
hostile country at high risk, only a handful of CIA people
knew of this venture and we did not inform the Congress.
The third example concerned providing support for the
rescue force once it reached the environs of Tehran by
helicopter. CIA personnel went repeatedly into hostile
Tehran to survey what the rescue force would find on its
arrival, and to acquire trucks to transport the men from
where the helicopter would drop then to the walls of the
Embassy.
Each such trip into Tehran was a highly risky venture and
any hint we were doing such a thing right through Marabad
airport would certainly have roused suspicions and raised
the possibility that our people would have been caught in an
Iranian noose.
Again, very few individuals in the CIA knew of this
activity and we did not notify the Congress.
I believe instances like these three will be infrequent.
I also believe the odds are high that these would be the
kinds of operations with which the Congress would agree were
they informed. There is no guarantee of that.
Here though we come back to the question of mutual trust
and confidence. I would hope that a President who endorsed
congressional oversight as President Reagan has just done,
would not undertake even a life threatening covert action
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that was also a major change in foreign policy without
informing the Congress.
One other recent development will minimize the risk that
there will not be such notification in cases like that.
That is another new policy which president Reagan also
enunciated in his speech on March 4th. He said, "I have
also directed that any covert activity be in support of
clear policy objectives and in compliance with American
values. I expect a covert policy that if Americans saw it
on the front page of the newspaper they would say "That
makes sense."
That pledge not only makes sense, I believe it gives
greater assurance that almost all covert actions conceived
by the Executive will be acceptable to the Congress.
Finally, Mr. Chairman, let me offer one final suggestion.
Oversight of intelligence has broken down but the fault is
not entirely with the Executive. The Congress, the media,
the public were all aware in August of 1985 that Lt. Colonel
Oliver North was engaged in activities in support of the
contras, whether or not these were legal or illegal
activities was unclear, but there was little question in any
of our minds that Colonel North was deliberately attempting
to circumvent the spirit of the law governing support to the
contras.
Thus the oversight process did not work at the time the
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President needed the advice of the Congress. Why he did not
get that advice is something that you know far more better
than I. I would only suggest that it is not adequate to say
that Mr. McFarlane or others misled the Congress. If that
is a sufficient excuse the very oversight process that we
are working on so hard is not worth the attention we are
giving it.
There is then some danger in my view that the public and
the Congress might look on this bill as all of the action
necessary by the Congress to correct recently disclosed
shortcomings in the oversight process.
I would hope that Congress would concentrate instead on
measures to improve its own conduct of oversight, to make it
more rigorous and on steps to improve the relations between
the intelligence community and the Congress. We need, Mr.
Chairman, to return to conditions where we can conduct
oversight in a cooperative and constructive manner.
Thank you, sir.
[The statement of Admiral Turner follows:]
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Chairman MCHUGH. Thank you very much, Admiral.
Mr. Colby.
STATEMENT OF WILLIAM E. COLBY
Mr. COLBY. Mr. Chairman, thank you for the invitation. I
have read over this proposed bill, Mr. Chairman, and I think
it is perfectly understandable why the bill has come to be.
The long delay of a timely fashion obviously was a
violation of the concept of the law. I think in that
situation one should first look to the proper execution of
the law rather than necessarily changing it; every time we
have a murder we don't necessarily change the laws against
murder.
We try to execute them better and more effectively.
You have a situation where the Administration was dealing
with a rag tag bunch of Middle East arms merchants and was
not willing to share the same information with the
responsibility leadership of the Congress. I mean,
obviously there is a contradiction there, a total
contradiction.
Even an estimate as to whether that operation would have
remained secret is really highly obvious that it couldn't
possibly remain secret considering the people that the
Administration was dealing with.
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The fact is that the law as it existed was not really
followed. That is all--we all know that. The problem of
leaks is a very serious one and it is a very serious one to
share the information with the Congress. We all know from
our personal lives that if we have a secret we have a
secret, but if we share it with someone, we have half a
secret and if you apply the same proportionality to the
kinds of secrets we have now, I think many of our very
serious national secrets are in the category of a .00001 of
a secret rather than any kind of a real secret, and it is a
problem we are wrestling with.
I have great respect for the Congress in its role of
oversight. I think it is an essential part of our
constitutional system. It is not a happenstance that this
is a select committee, It was set up as a select committee
so that the Speaker and the Minority Leader could be
selective about who appears on this committee and they can
keep the people that they do not have faith in off the
committee.
They will have a difference of opinion certainly, but they
will have a faith that those people will be responsible in
their activities.
The fact should the Congress know everything, the fact is
the answer to that is obviously no. There are things that
the Congress does not need to know. When we got into our
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first set of investigations of the Agency, I called upon the
Chairman of the various committees that were investigating
me and I said, look, I am not going to contest your
constitutional right to know everything because that is a
dead issue. I will never win that.
We have decided that we are having a constitutional
separation of powers.
But I want to convince you of the same rule that we apply
to ourselves in the intelligence community. It is called
need to know. Do I need to know some item of information?
Because if I don't I shouldn't know it. I said, I as
Director do not need to know the names of individuals
serving for us secretly in, for instance, Eastern Europe. I
arrange my affairs so I don't know their names. I know
there are people there, I know roughly how good the
information is, all the rest of it, but I don't need to know
their names.
Today I don't know their names and I am glad I don't. I
had one effort by somebody to be nice to one of these
fellows and send him a letter with my signature at the
bottom congratulating him on what a good job he had done,
which I was quite willing to send my name, no problem, but
it had his name there and I almost blew the roof off the
place.
The idea of putting his name and my name on the same piece
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of paper was a death warrant for that individual, no
question about it.
The two chairmen I am delighted to say did agree with me
that we would conduct that massive investigations into
American intelligence without the names. I think that is
the kind of arrangement that can be made. Leave the
constitutional issue aside, make the arrangement based on
sense.
The law says that the Congress will be informed in a
timely fashion and if the action is already taken and shall
provide a statement of the reasons for not giving prior
notice.
I think Admiral Turner has just given us three reasons for
not giving prior notice, and I don't think anybody in the
Congress would take issue with the fact that that
information was not passed to the Congress before or during
that sensitive operation.
The fact is the machinery is there. Now, whether the
Congress wants to go ahead and counter a somewhat
imaginative bit of legalese that a finding could be oral and
not in writing, it is a kind of micromanagement of the
President's office and I think we really have to let the
President pretty well be responsible for how he runs his
office. I find that a rather magical thing but I think that
even this bill, I might add, has some loopholes in it.
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For instance, it says at the very top, to the extent
consistent with due regard for the protection of
unauthorized disclosure of classified information--due regard
for that in Admiral Turner's case I think would say, well, I
had due regard for the importance of the protection of these
sources, these individuals and thereafter I didn't follow
the rest of the provision.
It points out below, it says that nothing in the Act shall
be construed as authority to withhold information from the
intelligence committees on grounds that providing it to the
committees would constitute unauthorized disclosure.
We are not talking about whether giving it to the
committee would be an unauthorized disclosure, we are
counting upon the risk to the due regard for protection of
our intelligence sources.
So there is a loophole here. The Congress can pass this
law and if some president doesn't want to follow the
sensible rules of getting along with Congress, we are going
to have another meeting just like this two, three, five
years from now at which somebody will say well, he is not
allowed to have due regard for that, he got to tell
everything.
Then that won't pass because it really doesn't make too
much sense.
So my conclusion, Mr. Chairman, is fairly simple, I think
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it does depend upon the relationship between the committee
and the Administration, that in this case there was a
failure of that relationship and that this should be
improved. To borrow a phrase from my neighbor the Admiral
here, I think the mere submission of this bill and holding
of these hearings is a shot across the bow or perhaps across
the stern of the Administration on this case, and that this
will certainly be taken due note.
I am a great believer in the case law system in which we
don't try to define every last detail of relationships, but
let developments determine how the law is to be interpreted
and applied over the years. That is how our judicial system
works, and I think it applies to this.
If I may as one point, Mr. Chairman, just take a moment, I
think the Speaker did misspeak himself a bit on a couple of
details and I deeply appreciate Mr. Hyde's correcting the
record on the alien decision. There was a CIA operation
there long before the coup, that was not a secret CIA
operation, it was directed by the President of the United
States, very, very precisely, to the then Director of
Intelligence. It was a legal order at that time.
It would not meet the Hughes-Ryan requirements at this
time but that even came long before it.
Secondly, the Speaker referred to the plan to destabilize
Chile. I must take a point of personal privilege on that
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because that word was put in my mouth by a former Member of
the Congress and it was proved to the satisfaction of the
committee at that time that I had never used that word. I
would not use that word because that was not our policy.
So that word has been improperly assigned to the CIA's
activities as Mr. Hyde points out.
And thirdly, the Arbenz case that the Speaker mentioned,
the CIA did not have a plan to assassinate Mr. Arbenz, it
had a plan to overthrow him. I think this is a difference
and I would just like to clarify that for the record. With
great respect to the Speaker, I an afraid he was somewhat
misinformed on that.
[The information follows:]
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Chairman MCHUGH. Thank you very much, Mr. Colby.
Dr. Cline.
Mr. CLIME. Thank you very much, Mr. Chairman.
I can be fairly brief because I want to begin by
associating myself with the views of my two former
colleagues at the table with me. It gives me special
pleasure because I have been worrying about intelligence
operations and congressional oversight for more than 40
years, and I was chief of the current intelligence staff for
Bill Donovan in OSS when we dropped Bill Colby in France and
he has been doing well ever since.
And of course I was at Oxford almost ten years before Stan
Turner, so I have links with these gentlemen for a long
time, and I agree with everything they said today.
My familiarity with the congressional oversight problem is
particularly related to the earlier period of congressional
oversight before these committees were established, when
there were a variety of committees trying to observe what
CIA was doing.
I often briefed them, the then-committees in the 1960s
when Senator Richard Russell and Representative Carl Vinson
were the principal congressional representatives, and I can
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assure you they ran their committees with a very firm hand
and the briefings were very thorough, and as far as I know
they learned everything that they needed in the way of
understanding of covert operations and sensitive operations
of all kinds, and I am happy to say in those days I am not
aware of any leaks from congressional committees.
It is a happy day in some ways compared to our present
controversial position.
It is for that reason, recalling those days, that I want
to say that I feel obliged to make a single comment on
H.R.1013 much along the lines that Mr. Michel and
Congressman Hyde have already made, so I can be brief about
that.
In my view these new amendments prescribe an unwarranted
rigidity with respect to timing of notification. That is
essentially what the critics have been saying. Forty-eight
hours or 14 months or whatever is a rigidity however you
define it.
They also are counterproductive in the micromanagerial
congressional intrusion into the executive authority of the
President to conduct sensitive national security operations.
I am sure that that is not the intention, but my belief
based on running clandestine and covert operations, is that
there would be a chilling effect from such close supervision
by the Congress, and Stan Turner has given you an example of
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how that might be, and how the present law allows exceptions
to be made.
I think the key is that Mr. Stokes and Mr. Boland are
right in saying that, and I quote Mr. Stokes, "a
congressional committee's oversight efforts are largely
dependent on the willingness of the Executive Branch to
provide information." And Boland said, there exists a
serious and fundamental disagreement between the Executive
Branch and the Congress over the requirements of the
existing law. He is referring of course to this
notification in a timely fashion.
I submit that the answer to that as has been suggested by
many people, is not a dictate from the Congress. It is an
attempt to work out a reasonable cooperative relationship
between the Executive Branch and these committees on the
question of what the best meaning of prior notice and timely
fashion is from the point of view of both of the interested
parties, and an understanding that there may be an area of
ambiguity and flexibility in the interpretation of that
reasonable law.
I believe this legislation departs from that principle.
It smacks a little bit of an attempt at a congressional
political coup to nail down its point of view which clearly
will be opposed by the Executive Branch and I think
correctly so.
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It is certainly true and this is a footnote in the
previous discussion, I can easily imagine operations where
the President makes a finding and initiates a chain of
events which may well not have any precise impact for many
hours, many days or even many months. It was not totally,
it is not totally impossible that there should be a very
long lapse before the necessity of timing notification to
Congress exists.
That is a complex and often controversial subject. But I
believe you should approach it with a view to the problems
of the Executive Branch and particularly the intelligence
officers in carrying out what you want to be carried out if
there is such an operation to be taking place and, an
efficient secret operation.
Regrettably as has been pointed out, the likelihood that
controversial covert action proposals on sensitive
operations will leak to the press and the public in one way
or another if prior notice is rigidly required means the
Executive Branch will be hesitant, will be forthcoming, and
may forego very important operations that would be useful to
the United States. I think that is something the Congress
ought to be concerned about.
The worst outcome of course would be a prolonged dispute
in adversarial climate between the Executive and Legislative
Branches after notification is given. The damage will be as
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2280 great from this as from the rather exceptional cases in
2281 which delaying notification more than 48 hours might occur.
2282 The President certainly ought to have the opportunity to
2283 conduct high risk, high win activity in foreign policy and
2284 national security field.
2285 He should have the right to determine when there is a good
2286 reason to delay notification because of extreme sensitivity
2287 to leakage and failure. Timely fashion--that carefully
2288 wrought phrase, seems to me to be the best phrase you can
2289 use in the circumstances.
2290 So I would say rather than passing H.R.1013, the House
2291 committee would be well advised to promote a way of
2292 improving security of information, provided by the oversight
2293 committees and their staffs, and to reassure the Executive
2294 Branch of their ability to do this and to invite a more
2295 cooperative and informative attitude on that basis.
2296 I would like just in passing to endorse the House Joint
2297 Resolution 48 providing for an establishment of a joint
2298 committee on intelligence sponsored by Congressman Hyde,
2299 because that would be a move to soothe executive-
2300 congressional relations, a step in the right direction
2301 rather than one to exacerbate them.
2302 In summary then, Mr. Chairman, I would just like to say
2303 that I believe the Congressmen have the duty to represent
2304 the views of their constituents in giving broad strategic
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guidance to shape U.S. legislation and policy. There is no
question about that. With respect to foreign policy and
national security, the Chief Executive also is mainly
responsible for decisionmaking and execution of laws and
policies. The Congress should not try to legislate the
specific modalities of the execution of policies in the
foreign policy and national security field, particularly
when the element of secrecy is involved.
It does seem to me therefore that it is likely to reduce
rather than increase the effectiveness and cooperative
relationship between the Congress and the Chief Executive in
dealing with covert operations if H.R.1013 is passed, and
therefore I would respectfully submit that discussion of
this issue is better than passing a piece of legislation on
this item.
Thank you.
(The statement of Mr. Cline follows
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Chairman MCHUGH. Thank you very much, Dr. Cline.
You all represent a very significant amount of experience
and that is something we should take into account in our
consideration here of these bills, and so we appreciate your
testimony.
Admiral Turner, I guess I would start with you. You
mentioned in your statement that the oversight process broke
down in part because the congressional committees didn't
exercise sufficient aggression, I suppose, in pursuing the
reports which were in the press about Oliver North's
activities in the White House.
That may be true, but I think it is important to state for
the record that when we read those reports, we invited Mr.
McFarlane to visit with us in the committee room. We all
had an opportunity to ask him questions specifically about
those reports to determine whether or not indeed the White
House was engaged in this type of activity.
Mr. McFarlane assured us that he had investigated this
thoroughly and that there was nothing to these reports
whatsoever.
On a subsequent occasion, we visited Mr. North himself in
the Situation Room in the White House and we inquired of him
very specifically whether or not he was involved in any of
these activities which were reported. Mr. North assured us
that that was not the case.
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Now, it is quite possible that we should have not taken
them at their word, but frankly we were relying upon the
kind of trust and comity which you gentlemen are suggesting
we rely upon in these cases. And we have learned from
bitter experience that we were lied to.
Indeed our congressional oversight responsibilities which
is a serious one, was compromised and in some respects, we
feel as you have suggested, some responsibility for that
breakdown.
How the question of course is how to deal with it.
Hopefully people will tell us the truth in the future. But
the question here is whether or not we should rely upon that
hope or whether or not there is some other framework which
will give further encouragement to the white House in future
cases.
So I want to make that statement, because while I think it
is fair to say that we might have been more aggressive and
not accepted the word of Mr. McFarlane and Colonel North,
the fact is we did try and we did rely upon those
representations to us and we learned in hindsight that we
were foolish to do so.
Now, I think Admiral, you have presented us with hard
cases. The ones you have outlined are difficult cases
because as you say people's lives are in jeopardy, and you
as the responsible director have to send people out to risk
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their lives for the country in these cases.
So I think those cases that you have described pose one
set of examples which are important for us to consider, and
the Iran case poses the other example, and they are both
legitimate cases it seems to me.
On the one hand, in your situations there were a handful
of people in the Executive Branch who necessarily had to
know. You say a handful and I an not sure how many that
would be, but presumably there were at least a few others
beside yourself who knew about this.
The question for us is whether or not the key leaders of
the Congress would not be as trust worthy to know that
information as the handful in the Central Intelligence
Agency or the Executive Branch? Naturally we are inclined
to think that the Speaker of the House, the Minority Leader,
the Chairman of the Intelligence Committee and the Ranking
Member of the Intelligence Committee and their counterparts
in the Senate are trustworthy people and can hold that kind
of very sensitive information carefully.
On the other hand, in the Iran case to the extent that it
is an example and we have to consider it as one here, the
fact that the President did not notify or consult with
anyone in Congress in part at least contributed to not just
the fact that Congress wasn't notified, but contributed to
what I think most of us would consider a very substantial
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amount of damage to American interests, our counterterrorism
policy is in shreds as a result of this foolish policy of
selling arms to Iran, as the Minority Leader and Speaker
have both said they will have objected strongly if the
President had shared this notion with them in advance.
Presumably it might have helped avoid not just a failure
to notify Congress, but would have avoided this very
substantial damage. So these two cases, yours on the one
hand which are compelling cases I admit, but the Iran
situation on the other, pose these conflicting interests for
us. The real question for us I think is whether or not,
first in limited situations where there is a sensitivity
such as you have described, the leadership, this handful of
eight people, can be trusted with sensitive information and
I guess my question is do you have anything i your
experience-to indicate that these leadership people cannot
be trusted even with the most sensitive information?
Admiral TURNER. No, sir. I certainly do not.
Let me say though that I would not have told eight people
in the CIA who were not involved in it. It is not a
question of are they Members of Congress, it is a question
of looking a person in the eye and saying I am going to tell
even one person who isn't involved in this in a way that is
necessary to support your activities.
I would also point out that it can get much more
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complicated as it was in the three cases I cited. Had
we--first of all I didn't have the option of eight at that
time because the intelligence oversight of 1980 had not been
passed. So I would have taken my chances if I had gone to
the Members, the Chairman and Ranking Minority Members of
the two intelligence committees whether they would have kept
it to themselves, or limited the amount of disclosure,
whether they would have agreed that only they would have
responsibility for knowing that.
But in that case, we had another curious connection
because the President under the War Powers Act had not
informed the Armed Services Committees or the Foreign
Relations Committees that there was a rescue operation
contemplated. We were a subsidiary supporting part of it
and had we come to the intelligence committees or the eight
leaders of the Congress to inform them that intelligence was
participating in a supporting action, surely the other
committees would have had to have been included too, so the
number would have ballooned to at least 16 at that point.
Again certainly they are the 16 top people in these areas
of the Congress, they are reliable. But we are foolish if
we say the Congress cannot be trusted at all, it always
leaks. We are equally foolish to say that the Congress
never leaks. When you are dealing in a situation like this,
even though I think the Congress has a better record than
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the Executive Branch as far as leaks is concerned, the
Congress does leak. The Executive Branch leaks more. But
it isn't a question of a better record here when a man or
woman's life is at stake. Even if you are 10 times as
reliable as the Executive Branch, if the leak did happen to
come from one of the people notified in the Congress,
somebody may have lost his life unnecessarily.
Mr. KASTENMEIER. Thank you very much.
Mr. Livingston.
Mr. LIVINGSTON. I thank you.
There has been some discussion about the time limits and I
think Mr. Hyde said split the difference between 14 months
and 48 hours, I know you have said it facetiously.
Is this legislation any more palatable if you extend the
deadline for notice and actually set an arbitrary time
limit, be it 48 hours, a month, two months, six months, 10
months, a year, what have you? Does it become more
palatable or do your objections still lie?
Admiral TURNER. My objection still lies. I don't think
14 months as illegal or unreasonable. I think taking that
loophole was wrong in the first place, but if the
President's reasons for not notifying the Congress in a
really instantaneous manner were correct, 14 months is not
to me untimely. The timely is not measured by a clock. The
timely is measured by this risk, and I waited three months
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in one case, and we were three months getting the six people
out from the Canadian Embassy, we were six months doing the
other two operations I mentioned to you.
So I don't think we should focus on hours and days. I
think we should focus on the completion or the diminution of
the risk. It could be that there is as an operation goes
along the risk drops off to human life, but the operation
under the Finding is still continuing. That would be the
point that the Executive should come. When that risk to
human life is diminished sufficiently is when it is timely
to notify the Congress in my opinion, sir.
Mr. LIVIKGSTOK. Mr. Colby.
Mr. COLBY. I would basically concur. I would not limit
it only to the human life problem. There are many other
things. People take risks with their lives for various
reasons and don't get very upset about it, but there are
other things that are of more importance than the human life
of some of our people, and they understand that wen they go
in the business. They know that.
I do think that the one answer to the question is that the
timely fashion is obviously a general word requiring a
judgment, but to respond to the Chairman's example of the
discussions with Colonel Korth and Mr. McFarlane and others
about that, there is a statute that makes it a criminal
offense not to fully inform the Congress.
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This has been very rarely used but in the case of a direct
contradiction of the truth I think that is something that
the end counsels will be looking into and that that is the
remedy, in other words the question is is there a remedy?
The answer is yes, there is a remedy. It is for a violation
of the law and there it is.
Mr. LIVINGSTON. Mr. Cline.
Mr. CLINE. I simply concur in the view that defining
timely fashion in a number of hours or days or months is a
Solomon's exercise, a paradox, it cannot be resolved by this
committee or by anybody else. It depends on these complex
factors that my colleagues have mentioned.
I think discussing it is wise, I think trying to out the
Gordian knot with a slice of the sword is not a wise
decision and I can definitely visualize operations where the
success factor is prolonged.
You don't know, it will be a long time to get blocks in
place before you get the final result, and that the risk
would be very great for many, many months.
So I don't even agree with the 14 months. There would be
cases in which that time was not the objectionable feature,
and I think the objection to the handling of the Iran issue
is not over the timeliness, it is over the fact that there
was a difference of view about the operation itself.
Mr. COLBY. Frankly I think in some cases you might get a
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situation where if you have the timely fashion requirement
and the eight individuals listed, that if the thing began to
get at the edge of the timely fashion I could envisage a
President talking to the Speaker and the Ranking Minority
Member only and trying to get their acceptance of not going
any further with it. I don't think you can write that in
the law, but it is clearly what Admiral Turner was referring
to that he didn't feel he could do at that early time.
Mr. LIVIKGSTOK. Mr. Colby, you mentioned you saw
situations that might mandate the withholding of information
from Congress in other than life-threatening situations.
Could you elaborate on that. Could you give us a couple of
examples?
Mr. COLBY. You could have a highly sensitive penetration
into some terribly important situation which took you months
and months to set up and which could have a major effect on
the political direction of another country, and an adversary
country possibly, and you just couldn't take any risk at all
with that operation. It would be a high stakes operation
and you just, not only if it didn't work you would lose a
great opportunity, but if it were revealed you would suffer
a great deal and your nation could suffer a great deal.
You might have a cause for war on your hands for all you
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Mr. CLIME. Yes, I do. Could I add another refinement
which--since we are really discussing this issue
philosophically in an attempt to understand it rather than
coming to a solution, a covert intelligence operation may
well begin as an intelligence collection effort of
penetration. If you get a source in a foreign country who
will give you a lot of information and then you find out he
can do something politically, that is terribly important to
your country, he becomes a covert action source at that
point and hen you lay on an operation it becomes rather
ambiguous.
so I feel we are trying to deal with a very fluid
situation here as if it were a constitutional law. And it
is not. It is a matter of executive judgment when a covert
action begins.
So I think we are just saying it is a very complicated
thing, and there may well be good grounds to reserve
judgment on when to notify the Congress.
Mr. LIVIMGSTOM. If this legislation were passed as is,
would any of you or all of you anticipate any instances in
which you might refrain from undertaking some dangerous but
very important intelligence activities because of concerns
about participants' safety or for the other reasons you have
cited?
Mr. CLIME. I wanted to suggest there might be a chilling
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effect on planners and decisionmakers thinking perhaps that
they had a perfectly legitimate intelligence objective which
might turn into a very great covert action opportunity but,
say, oh, my God if we go down and explain this today it will
be washed out or it will be blown, we shouldn't do it.
Yes, I would think you might well miss opportunities with
that kind of thinking. It is not so much the language you
are putting across, but the attitude that, the watchdogging
of the sensitive and difficult operations might cause people
to refrain.
Mr. COLBY. We would once again have to go around and hold
a lot of hands of our agents, of our liaisons saying, well,
now, wait a minute, the Congress is going to demand knowing
everything you do within 48 hours, are you kidding? We are
not going to get involved in that with you. Not a chance.
We had quite a problem with that when the first thing of
congressional review came up, and we sort of wobbled our way
through it, but it is still there with some countries. Some
countries still have a reservation because some of them
don't have the same high respect for the membership of the
committees that we do.
Admiral TURNER. The problem will be we won't know which
covert actions are not proposed by the professionals,
because they have this concern inside and the people at the
top won't hear about them I am afraid.
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Mr. LIVIKGSTOH. Thank you.
Chairman MCHUGH. Mr. Stokes.
Mr. STOKES. Thank you, Mr. Chairman. Let me at the
outset express my appreciation to all three of our
panelists, three very distinguished gentlemen who appear
here this morning.
Mr. Colby, let me ask you, you made the statement there
are things that Congress does not need to know. You do not
include in that category, do you, illegal or criminal
activity by Members?
Mr. COLBY. Absolutely not, no.
Mr. STOKES. Of the government?
Mr. COLBY. No. That provision I think is clear that if
anything illegal or improper comes up the requirement is to
report it and there is no if's, and's or but's about that
one.
Mr. STOKES. In terms of Iran, and the Iran situation, how
would you classify that? Something that Congress needed to
know or should not have known?
Mr. COLBY. I think that I would go back to the point that
what Congress doesn't need to know is the details of a
policy program, a policy operation. It should know about a
general policy and I think the general policy of selling
arms to the Iranians is something that the Congress should
know about. They don't have to know who the intermediary
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is. That is really a detail that is beyond them.
Mr. STOKES. Sources and methods you mean?
Mr. COLBY. Yes.
Mr. STOKES. But the general policy they should be aware
Mr. COLBY. The general policy that you are going to go
right against your overtly expressed policy I would
certainly say, you better check that one out. We have had
covert actions in the past which have contradicted the
impression we have given to different countries, but those
you can explain to Congress and if they make sense, the
Congress will buy it.
If it doesn't make sense the Congress will object to it.
Mr. STOKES. Well, basically I think that is what we are
trying to keep intact and that is what all of you have
addressed and that is the special relationship between the
Executive Branch and the Congress, based upon some degree of
mutual trust and forthrightness and candidness, and it is
difficult for us to conceive of a situation where when we
talk about the Gang of Eight, for instance, we are talking
about the Speaker of the House, the Majority and Minority
Leaders of the House, the Chairmen of the Intelligence
Committees and similar officials on the other side.
It would seem to us that these are highly responsible
positions, people obviously concerned about the national
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security of the United States, not irresponsible people. It
would just seem that if the President, because of the high
risk of some type of adventure, or high risk of human life,
felt that he could not tell both intelligence committees
that at least the Gang of Eight so to speak would be given
this information, and I would think we would all look at
them as being responsible individuals who would not be
leaking highly sensitive information or data that would
possibly cause the loss of human life.
Let me ask you this, Admiral Turner. In your opinion in
those three cases you cite--and they are three very classic
cases, very difficult to argue with--as has been stated by
Chairman McHugh, but what in your opinion would have been
reasonable knowledge assuming we had timely notice in the
law at that time. What in your opinion would have been
timely in reference to those matters?
Admiral TURKER. When my agents came out of risk, came out
of Iran, when the people went in to support the Canadians,
six were aboard the airplane and on their way home, for
instance, Zurich.
Mr. STOKES. The Canadian six matter you were able to
accomplish within about 48 hours, weren't you?
Admiral TURKER. No, the agent who went in stayed in
Tehran about a week but we were all three months or three-
and-a-half months before that actually took place preparing
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it, working with the Canadians, preparing the documentation,
the cover, the new personalities, new jobs, new identities
for these individuals, and getting that training done so the
six knew who they were and why they were in Iran, so they
could answer questions when they came out.
You know about the one who got quizzed on his passport,
Mr. Stokes. Customs inspector said, I notice your middle
initial is H, and you are on a West German passport, and I
have never seen a West German passport in which the middle
name wasn't spelled out. And. this State Department employee
with great resourcefulness looked up and said, yes, you will
notice I was born in 1935. I am ashamed of my middle
name--Hitler.
That is a true story.
Mr. STOKES. That is a good one. My last question to the
three of you would be this: I an reluctant in terms of the
criteria or standard of risk to human life to accept that as
sole criteria. What we are talking about is subjective
evaluation made by the President, and it is very difficult
if we set that up as the criteria to be sure that that
criteria is always used in the sense that it is subjective,
because it could very well, the President could very well
substitute for it political risk as I am sure probably the
decision was made in terms of Iran more than in any terms of
any risk to human life.
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It was more the political risk. How do you see that?
Admiral TURNER. Oh, it is a danger, and the
Administration, the present Administration went first
justifying not notifying the Congress about the CIA role in
the Iran affair, did claim human life. They claimed that
the lives of the hostages held in Beirut might be
jeopardized if it came out the United States was
collaborating with Israel to get the hostages out and there
is undeniably a shred of argumentation there. I think it is
not more than a shred, sir, so, yes, but I think we are all
three trying to say, I think, that there is no way to
legislate these boundary lines without risking, pushing
yourself up against an unreasonable position.
You have to have reasonable men there as well as here to
interpret them.
Mr. COLBY. As I said, I think the human life is not the
only judge, should not be, but the Congress' control on this
is the requirement that the President explain why he
delayed. Either that explanation will be accepted when it
is given or you will have a challenge to it. It will be an
after-the-fact challenge but it is nonetheless a requirement
that he justify to the Congress the fact that he did not
pass over that information.
And that is why I suggest that a president will probably
seek some middle ground between informing all 8 and yet not
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telling anybody. I think that the pressures on him will be,
well, eight people is a lot of people; and that you learn in
the Executive Branch when you find out how many people are
in on a secret it becomes such a small secret in the in-
group despite the loyalty of all the people in the group, it
becomes a general conversation among them and it begins to
slip out to secretaries and assistants and all that sort of
thing.
Just inevitably that happens. So the attempt would be
made to limit it to those eight.
Mr. STOKES. Mr. Cline.
Mr. CLIME. I would add two comments. I think the very
valuable role of these two committees is to keep the
Executive Branch advised of what seems sensible from a point
of view of strategic coherence and continuity. You should
be advising on broad issues, not exactly whether someone's
life is at risk or not because those are very professional
and subjective judgments.
I hope that there will be a greater receptivity to advise
back and forth on these matters. I believe it can happen as
I say. In earlier days I think we had a better
understanding between the Congress and the Executive people
and the intelligence people, and it worked pretty well.
The second thing though relates to the later comments.
With all respect I want to tell you that the Congress is a
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tremendous target for the release of unauthorized
information. Everybody in this city is trying to get you
Members who have secrets to disclose them, and the more your
heads are full of details about operations that should not
be disclosed, the more in hazard you and your staff members
and people who, even over here as guests on some of the
subjects discussed, are likely to be tripped up ox trapped,
not only by foreign intelligence agents of which there are
hundreds wandering around Capitol Hill all the time, but by
the most expert espionage group in town, the U.S. Press.
They do everything that intelligence agencies do to try to
elicit and if necessary, in somewhat unusual irregular
fashion, get someone to disclose things off the record that
they should not disclose.
So you are an important target and I think you ought not
to look at-suggestions that the congressional committees
leak as a kind of moral and personal issue. That is
certainly true of the eight men you were talking about.
Everyone assumes they are extremely conscientious and
patriotic and all that. But they probably should not have
in their heads information that as my colleague suggested,
that they don't really need to know to do this broader job,
advise the President in a proper congressional role on the
broad issues of our national policy.
Mr. STOKES. Thank you very much.
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Thank you, Mr. Chairman.
Chairman MCHUGH. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman.
I think we can agree, too, that disclosure by Congress or
Executive people sometimes is innocent. It cannot be,
needn't be malicious but inadvertent. If you know
something,--once, I confess I made a statement on the floor
about a specific matter that was secret and I didn't realize
what I had said or done until the press called me and asked
me if I really meant what I said, and it suddenly dawned on
me that I used a number, it would cost so much to accomplish
a certain thing, and that was classified.
So that is part of the problem.
The Canadian Embassy, I dare say would just as soon this
never got disclosed in many ways, at least the people that
still have to be over there inside Iran.
Mr. CLIME. That is right.
Mr. HYDE. Although the people who are heroic I am sure
had mixed feelings about having their heroism kept under a
bushel. But I can understand where sometimes these things
just as soon never get disclosed and everybody is the
happier.
Also on the Iran thing, Admiral, I would think that in
addition to the lives or maybe it was you, Mr. Colby, the
lives that the Administration used as justification of the
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hostages, the involvement of a third country participating
might have been another reason for keeping this quiet.
I think we can agree we need mutual trust between the
Executive and the Hill. There is a lack of mutual trust
between the Executive and the Hill. We have some
justification for questioning the forthrightness of some of
the things we have heard from the Administration as well as
some of the things we have not heard from the
Administration. But the Executive, too, has a lot of
justification for being skeptical about our ability to keep
a secret.
Once more, I sound like I am promoting your book, Mr.
Colby, and I am--
Mr. COLBY. Thank you.
Mr. HYDE. Page 423, "Thus by mid-1975 appearances on the
Hill had become a pervasive aspect of my job as DCI. I was
going up there to report on every new step taken in the
Angolan issue, Kurdish issue and other current operations
underway as well as testifying on practically everything the
CIA had ever done during the last three decades to the
select committees investigating intelligence."
Here is the important part, "sadly the experience
demonstrated that secrets if they are to remain secret
cannot be given to more than a few Congressmen. Every new
project subjected to this procedure during 1975 leaked and
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2824 the covert part of CIA covert action seemed almost gone."
2825 I have been unfair somewhat, unintentionally, to Admiral
2826 Turner because you too have a great book, Secrecy and
2827 Democracy.
2828 Admiral TURNER. Thank you, sir.
2829 Mr. HYDE. I am chagrined that I don't have it with me
2830 today. I will have it next week.
2831 Mr. CLIME. Point of order, Mr. Congressman, I have
2832 several books and you haven't mentioned any of them.
2833 Mr. HYDE. The reason yours are not here, Ray, is they are
2834 too heavy to carry.
2835 But I would like to ask--I want to thank you, Admiral
2836 Turner, for your great testimony and I am sorry you left out
2837 the parts you did because I thought they were excellent as
2838 well and I hope every member of this subcommittee will read
2839 the classified annex as well.
2840 I thank you for your letter to me of January 27th last
2841 year supporting the concept of a joint intelligence
2842 committee and I would like to offer this letter in the
2843 record if I may to be a part of this record from Admiral
2844 Turner supporting that.
2845 Chairman MCHUGH. Without objection.
2846 [The letter referred to follows:)
2847
2848*a* INSERT 3A-1****m
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Mr. HYDE. I have another letter from Richard Helms,
commenting on H.R.1013, and also supporting the joint
committee concept rather strongly. I would like to offer
that for the record.
Chairman MCHUGH. Without objection.
[The letter referred to follows:J
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Mr. HYDE. And I would like to ask you, Mr. Colby, if you
also support the notion of a single select committee on
intelligence, made up of Senators and House Members, smaller
staff, smaller membership, select people, if that might not
facilitate this development of mutual trust and confidence
and disclosure that we all recognize we need.
Mr. COLBY. I fully support it and I very much applaud you
for the effort to launch it. Thank you.
Mr. HYDE. Thank you. And Ray Cline, you have already
fortunately initiated mentioning it and I take it you have
not changed your mind in the last few minutes.
Mr. CLINE. No, you have not dissuaded me. I think it is
a good idea. I would also like to add this, though, I think
the two separate committees can do a good job and that is
why I feel it is so important to develop that better spirit
of cooperation on the intelligence planning that we all
spoke about.
Mr. HYDE. Thank you.
I thank you, Mr. Chairman. You have been most kind and
indulgent. I am not a member of this subcommittee and you
have permitted me to be here. I appreciate that.
Chairman MCHUGH. It is always a pleasure to have you, Mr.
Hyde, although I sense a campaign under way here for a joint
committee.
Mr. HYDE. Two years now. This is the third year.
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Chairman MCHUGH. Mr. Kastenmeier.
Mr. KASTEHMEIER. Thank you, Mr. Chairman. You have all
three been coopted by Mr. Hyde, I don't know what we can say
other than to say this about the joint committee, it might
be thinkable at some particular point in time, but I suggest
that is not now thinkable. If two separate committees
cannot render proper oversight, one surely won't. That has
been the problem throughout, as a matter of fact, a joint
committee is one step away from distinguishing all
committees of the Congress in terms of intelligence, and I
understand that as well as anybody else.
But to the extent that we still do exercise statutory or
constitutional authority with respect to these matters, I am
a little discouraged by not only, say, the opposition or
such highly qualified acceptance of any statutory change
that I see very little grounds to pursue the matter. But I
do think in the light of what has been said that, and
Admiral Turner suggested he was interested in what steps to
make oversight more vigorous and effective, and as the
Chairman has pointed out far more sharply than the gentleman
from Illinois, a couple of real instances, major instances
in which we have been lied to and let us assume that these
are not unique in the last year or two. Let's assume that.
What is, Admiral Turner, is our alternative here?
I suggest to seek some sort of mutual trust is not
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2907 effective. What action can we take to prevent that sort of
2908 destructive relationship in which we know we are lied to and
2909 have presumably no recourse. What recourse should we have
2910 other than, let us say other than to change this particular
2911 statute?
2912 Admiral TURNER. Mr. Kastenmeier, with all respect I
2913 think, and I use the word in my testimony, the committee can
2914 be more rigorous in pursuing whether the Executive Branch is
2915 telling them all and telling them honestly.
2916 In this instance, long before August 1985 when it came out
2917 that Colonel Korth was doing something in support of the
2918 contras, it seems to as there was great evidence that it was
2919 not a spirit of cooperation on the Executive Branch side
2920 with respect to oversight of intelligence. Therefore it
2921 seems to me you had cause to be suspicious when the
2922 President's own right hand men denied something that was
2923 obvious, what they were telling you is they were doing this
2924 within the law but it was obvious they were doing it against
2925 the spirit of the Congress of the United States, against the
2926 spirit of what the people of the United States through the
2927 Congress had mandated, no governmental support for the
2928 contras.
2929 Was there any question in anybody's mind that Colonel
2930 North was doing that? I don't think so. I remember being
2931 incensed at the time that nothing was being done in the
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media or in the Congress to stop this. And I an sorry, Mr.
Chairman, there is an old athletic saying that I learned one
time when we ought Notre Dame from Navy to a 6-6 tie but
ended up on the goal line with a goal line stand that we
thought was heroic, we charged into the locker room very
enthusiastic about our performance and the coach looked at
us and said, gentlemen, long after the deeds have been
forgotten, the score will be remembered you men tied. And
with respect, sir, the answer was did you get to the bottom
of the case and you didn't.
The score is what we remember, and I think you have to be
more rigorous. I would say with all candor that in my four
years when I think we had a very cooperative relationship, I
think the committees of the Congress could have been more
rigorous with me and I would have appreciated it in many
ways. Rigorous in paying less attention to the details of
my budget, and $50 here and $100 there, and more in asking
Turner are you going in the right direction? What are your
plans for the future? What is your track record on how you
used your resources over the last ten years, let's say in
developing the recommendations on Iran.
You ended up in a debacle on Iran, well, somebody should
have come after that from the Congress and said let's go
back 10 years, Turner, and trace what you said to people
about this, what the whole Community said and trace whether
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your sources were good, what were you relying on ten years
ago, what are you relying on now, were you using this well?
I think there is a lot more that you can do if you will
take a longer range look at what our intelligence needs,
sir, and it would be helpful if you are probing and
rigorous.
Mr. KASTEMMEIER. I gather you wouldn't suggest a tighter
reign with respect to the budget in the process?
Admiral TURNER. No, I would suggest a looser reign in
many ways, particularly in the RED field where I think they
need more freedom to go out and invent the U-2 again which
was done in a skunk works with nobody looking over their
shoulder. And I am worried today whether we have that
inventiveness that is keeping us one step ahead of the
opposition in the technical field.
Mr. KASTEMMEIER. Mr. Colby, what would you recommend?
Mr. COLBY. I have already mentioned one, if you find a
case where somebody actually lies to you there are
provisions of law by which that person can be prosecuted.
There are ways to do it. I think it is a matter for the
committee to take a look at and see whether there is a
recommendation that action be submitted to the Justice
Department to follow up on such a case.
Secondly, traditionally this is the house which has
control of the purse and while I agree fully with Admiral
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Turner that fooling around with $50 here or there is not the
point, the fact is that a Congressman once asked me exactly
this question, you come up and tell us one of these things,
what do we do about it? I said well, you have everything
you can do about it. And if it gets back to--you can express
opposition by individually, you can get a majority vote of
the committee against it, if necessary you can do as
Chairman Boland I think so brilliantly did, develop a
resolution of the Congress which circumscribes without
revealing the specifics, circumscribes the ability of the,
agency to the agent.
That was done to me on Angola and it was done to Casey on
Nicaragua. If you find people getting around that, I always
thought that there was a way you could catch the attention
of the Director's mind fairly quickly, just say, well, Mr.
Director, you just keep on going on that but you put, take
your little notebook out and put the figure $10 million down
on it because $10 million is coming out of next year's
budget, and I don't care where you distribute it but it is
coming out. That will catch his attention.
That is the power of the purse. It is part of the
constitutional arrangement that the Congress is not
helpless. It has power.
Mr. KASTENMEIER. Thank you, Mr. Chairman.
Chairman MCHUGH. Mr. Beilenson.
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Mr. BEILEMSON. Thank you, Mr. Chairman.
There has been a lot of comment about the 48 hour
requirement, whether or not that is proper or adequate or
useful, but let me go back to basics for just a moment. I
am not sure at this point about the feelings of each of our
three witnesses with respect to the current requirement of
the law that the Congress or portions of the Congress be
notified in a timely fashion.
Are you supportive of that, of the existing law or are you
arguing against extending it or making the requirement more
specific than it is, the 48 hours? Or are you supporting
the current law?
Mr. COLBY. I support the current one, yes, sir.
Admiral TURNER. Yes.
Mr. CLIME. I do, too, and specifically because it has a
certain flexibility.
Mr. BEILENSOM. What are you all exorcized about? Is it
the 48 hours? is that all we are talking about, 48 hours
instead of timely fashion?
Mr. COLBY. It is making the whole process rigid rather
than reflective of the real world.
Mr. CLIME. Right.
Mr. BEILENSON. But when you start talking and I am
talking not to you so much, Mr. Colby, but to the other two,
you don't want timely fashion or 48 hours or anything else.
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I am not sure we are focusing on something that is useful.
Mr. CLINE. The present law gives certain grounds we have
established for withholding either permanently or
temporarily notice. All intelligence operations for the
purpose of collection of information are excluded. You
pointed that out. So this is not a cut and dried
proposition. The present law takes into account exceptions
to notification, it mandates timely notification on covert
action operations. It doesn't define timely.
Mr. BEILENSON. I think it is the posture of the authors
of the bill they are not proposing anything terribly
radical. They are in effect trying to require that the
requirements of existing law are complied with by saying,
all right, you folks don't seem to know what timely means,
so we will tell you. It is 48 hours. We can agree maybe it
is something other than 48 hours. I am trying to get a feel
for if you are offended by the requirements of the existing
law or whether it is the 48 hours?
Mr. COLBY. It is the 48 hours because there are
situations where we both mentioned which would be far beyond
48 hours.
Mr. BEILENSON. Let me go on if I may, Mr. Chairman, I am
just trying to--since this is the legislative subcommittee
and like Mr. Hyde I apologize I am not a member of this
distinguished subcommittee--I wish I were--I think the
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NAME: HIG091020 PAGE 130
3057 question for us and for the full committee eventually, is
3058 whether we should be changing the law and if so, how we
3059 should change it.
3060 We have had useful suggestions, witnesses have tried to
3061 give us helpful suggestions. Admiral Turner spoke about
3062 this risk of life criteria and putting one's life on the
3063 line. Some have suggested that may not be a terribly useful
3064 criteria and certainly not as a sole criterion.
3065 As I mentioned earlier and I think perhaps others have, we
3066 are aware now of a number of intelligence operations which
3067 we cannot even describe of course in which people's lives
3068 are on the line right now. We all know about them. All of
3069 you on this committee. So that cannot be the sole
3070 criterion.
3071 We have discussed that it does not include under existing
3072 law intelligence gathering operations. If we were to be
3073 parachuting Mr. Colby into the Soviet Union perhaps instead
3074 of France--
3075 Mr. COLBY. I would rather not.
3076 Mr. BEILEHSON. I understand. We are not really talking
3077 about that either.
3078 Mr. Colby suggested something, a criteria which I
3079 personally found more useful and that is the need to know.
3080 It is not even so much need to know but I guess should we
3081 know, should Congress know about these sorts of things just
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in terms of the common sense approach to it.
We go back to the examples that the Admiral gave, all of
which were hostage rescue related, things that I again
personally suggested earlier I don't think we need to know,
don't particularly need to know or care about knowing, but
you can say under Mr. Colby's criteria should we know, no,
we don't need to know.
Mr. HYDE. Would the gentleman yield?
Mr. BEILEKSOM. I yield to my colleague.
Mr. HYDE. The Iran thing was a hostage thing. How you
may say it wasn't but you cannot have it both ways. Either
Reagan was interested in arms for the hostages or he was
not. So you cannot just say--
Mr. BEILEKSOK. Henry--
Mr. HYDE. It is different.
Mr. BEILEKSOK. Your earlier interruptions were useful.
This is not terribly useful. I am not talking about that.
Mr. HYDE. I feel an interruption of you is always useful.
Mr. BEILEKSOK. I speak more kindly of you than you do of
Mr. HYDE. I am just retaliating.
Mr. BEILEHSOK. All right.
Mr. HYDE. Sorry I interrupted.
Mr. BEILEKSOK. This is a bigger thing, we are not talking
about sending people into the desert and rescuing hostages,
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and it will be all done in 48 hours. We are talking about
big policy changes. Everybody has agreed to that. Under
Mr. Colby's suggested criteria, should we know or need to
know, I would agree in terms of applying it to the three
examples, the only three the Admiral gave to us, we don't
need to know. You guys don't need to tell us. Go ahead,
good luck, we hope it turns out all right.
But you get to other things, especially policy-related
things, and I think we are talking about something else.
What worries me, Mr. Colby, my friend, is the example you
started giving that made me a little uneasy because you
started talking about penetration for political purposes.
Mr. Cline was talking about various opportunities which
might be lost if the folks in CIA and elsewhere knew a
certain number of folks had to be told.
Now you are raising some warning flags it seems to me.
You are talking about--I don't know what you are talking
about. What are you talking about? Are you talking about
getting someone involved in somebody's government who may
have something to do with eventually overthrowing that
government? Why shouldn't those policy-related things not
be told to the eight Members under the existing law?
Mr. COLBY. Mr. Beilenson, I think your points are well
taken. I fully supported the effort by this committee some
years ago to try to write a new charter for the Intelligence
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Committee and I think we all kind of gave up on it. It was
so complicated and so difficult that the thing just kind of
disappeared and it has been replaced by these individual
actions, all of which I fully agree, of amendments to the
existing law correcting problems that have arisen from time
to time.
I think you get the same thing when you try to explain a
need to know. If you try to define a need to know you get a
very great difference of opinion by different onlookers as
to what he needs to know and what he doesn't. And it
immediately gets transferred into do you have faith in me,
which is not the question. The question is does he have a
need to know. Then how can you define that?
Clearly one side of it is a clear policy change. The
other side of it is the identity of the agent. Row,
sometimes the mere insertion of an agent can create a policy
problem. I went to Henry Kissinger one time and said that I
knew he was engaged in a very delicate negotiation with a
foreign country, at the same time we had hopes of recruiting
an officer of that country, and I just wanted to make sure
that if it blew up in our face as you have to anticipate,
that he, that it wouldn't upset his thing. He said go
ahead. You do your business, fine.
But at least I was sensitive to the fact that he did need
to know that there was a very substantial risk to his policy
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being adopted in the actions I was taking. That was a more
agent recruitment issue and if you try to define it in
words, I think you would have a very difficult time with it.
Mr. BEILERSOM. The more you talk about these things, the
more you come to agreement even though one might start from
a different side, pretty much exactly you come to what it is
we ought to be told about.
On the particular instance you were speaking, of course we
shouldn't know. The hostage thing, I would say to my
friend, Mr. Hyde, that we were talking about a vast change
in policy obviously, not only with respect to supplying arms
for hostages but quite different from the problems Admiral
Turner faced where we had some Americans over there who were
posted over there by their government who were serving us
who we had every responsibility to do what we possibly could
to help them out or get them out, even if it had to be by
rescuing them.
It is a whole different policy, and that the Congress
should have been spoken with, and was not.
With respect to the more recent Iranian situation where
you have private American people who had, to be blunt about
it, no business being over there and the President of this
country had no business holding hostage the foreign policy
of this great country of 230 million people because of
Americans not sent by us, not serving us in the CIA or State
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Department who decided they wanted to go to Beirut for their
own good purposes--which is fine and good. We should help
them if we possibly can. But it is a totally different
situation than the one the Admiral faced in my opinion.
Mr. HYDE. Would you yield.
Mr. BEILENSON. Never again.
Chairman MCHUGH. Mr. Beilenson's time is about up. Go
ahead.
Mr. HYDE. Can I make a point for the record. The book
that has been admirably prepared by your staff and given to
all of us to discuss this suggested new bill has an
interesting paragraph on page 9, Executive Branch practice,
as far as we know since enactment of the Oversight Act in
the fall of 1980 the Committee has been given notice prior
to implementation of all findings except for the January
176, 1986 Iran Finding.
In addition, as far as we know all covert actions carried
out since 1980 again with the exception of the pre-January
17, 1986 Iran arms transfer activities have been the subject
of findings. There has been one occasion since enactment of
the Oversight Act when prior notice was given only to the
Chairman and Ranking Minority Member of the Committee and
one occasion when notice was limited to the designated
leadership group.
So I think that sets the context, the environment for this
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hearing that we are talking about one aberrational, and I
concede aberrational act by the Administration, the
Executive, and I just wonder if we are not overreacting.
That is the point I wanted to make. Thank you.
Chairman MCHUGH. Thank you.
I think this has been a very helpful discussion and I
think the dialogue between the panel and Mr. Beilenson has
been especially interesting. I assume, based on what has
been said that all of you agree that the intelligence
committees of the Congress, or in some limited cases the
Gang of Eight should be advised about any policy change,
albeit in covert form, when that is decided upon by the
President.
Mr. COLBY. Yes.
Admiral TURNER. Yes.
Mr. CLINE. Yes.
Chairman MCHUGH. All of you agree with that. All of us
would agree, Mr. Cline, that we don't have to have our heads
full of all the details of every single covert operation.
That is the other extreme.
As Mr. Beilenson has said, we don't need to know all of
that. It is the policy formulation that really is the
critical area. The frustration some of us feel in this
particular case at least, and I think that some of the
Senators felt on both sides of the aisle in the case of the
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mining of the harbors of Nicaragua, is that when you have an
Administration some of whose members are prepared not to
tell the truth on policy issues, you have an Administration
that will read timely notice in a very liberal way to say
the least.
Now as you said, Mr. Colby, you can punish people who lie
to you about policy matters but there is not much resource
available to us as Mr. Kastenmeier said where a President
and his Administration chooses to disregard timely notice,
because as you said, Mr. Cline, it is a very flexible term
and therefore the remedy for us is very difficult. It is
out of that concern that this bill is before us.
I think you have all raised some interesting points and I
think have helped us to wander through this difficult issue.
I am sure I speak for all the members of the committee in
thanking you for being with us.
Mr. HYDE. Thank you.
Chairman MCHUGH. I would like before we adjourn to ask
unanimous consent to insert in the hearing record letters
concerning H.R.1013that the committee received from Cyrus
Vance, McGeorge Bundy and Admiral Turner, two memoranda
concerning the constitutionality of a priority reporting
requirement prepared by Mr. Ray Celada, Senior Specialist in
the American Law at the Library of Congress, and letters to
the committee from Professor William Van Alstyne, Duke
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3261
University Law School and Professor Laurence Tribe of the
Harvard Law School.
[The documents referred to follow:
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3263
3264
3265
3266
3267
Chairman MCHUGH. Again thank you to all the witnesses
from our colleagues on the Committee. The Committee will
adjourn now and adjourn its hearings next week at this same
time.
[Whereupon, at 12:30 p.m., the Subcommittee was adjourned,
subject to the call of the Chair.]
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*
SPEAKER LISTING * * *
RPTSBOYUM
1,
79
DCMHSPRADLIHG
1,
79
MCHUGH
3,
8,
10,
18,
19, 21,
25,
28,
36,
39,
42,
43, 44,
54,
55,
57,
58,
59,
62, 66,
68,
71,
73,
74,
75,
77, 79,
87,
94,
100,
111,
118,
120, 121,
122,
123,
127,
135,
136,
137, 139
LIVIHGSTON
8,
21,
24,
58,
59, 105,
106,
107,
108,
109,
111
STOKES
8,
25,
28,
59,
60, 62,
74,
75,
111,
112,
113,
114, 116,
117
WRIGHT
10,
18,
19,
20,
22, 26,
31,
34,
35,
36,
37,
43
HYDE
28,
31,
34,
35,
36, 40,
41,
63,
67,
69,
73,
74, 118,
119,
120,
121,
122,
131,
135, 137
KASTENNEIER
36,
39,
66,
67,
105, 123,
126,
127
BEILEHSO
H
39,
40,
41,
68,
69,
70,
72,
128,
129,
130,
131,
134,
135
KEHHELLY
42,
43,
71,
72,
73
MICHEL
44,
54,
56,
57,
59,
60,
61,
68,
69,
72,
73,
74
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COLBY
87,
106,
107,
108,
110,
111,
112,
115,
119,
122,
126,
128,
129,
130,
132,
136
CLIME
94,
107,
109,
116,
118,
120,
122,
128,
129,
136
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MAKE: HIG091020 PAGE 1
C O N T E N T S
STATEMENT OF THE HONORABLE JIM WRIGHT, SPEAKER OF THE HOUSE
OF REPRESENTATIVES
STATEMENT OF HON. ROBERT H. MICHEL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
STATEMENTS OF ADMIRAL STAHSFIELD TURNER, U.S. NAVY (RET.),
FORMER DIRECTOR OF CENTRAL INTELLIGENCE; WILLIAM E. COLBY,
ESQ., FORMER DIRECTOR OF CENTRAL INTELLIGENCE; and RAY
CLIME, CHAIRMAN, U.S. GLOBAL STRATEGY COUNCIL AND FORMER
DEPUTY DIRECTOR FOR INTELLIGENCE, CIA
STATEMENT OF ADMIRAL STAHSFIELD TURNER
STATEMENT OF WILLIAM E. COLBY
STATEMENT OF RAY CLIME
PAGE... 79
PAGE... 79
PAGE... 87
PAGE... 94
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I N S E R T S
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