PREPARED TESTIMONY AND STATEMENT FOR THE RECORD OF MORTON H. HALPERIN DIRECTOR AMERICAN CIVIL LIBERTIES UNION OFFICE ON H.R. 1013 PRIOR NOTICE OF COVERT ACTIONS BEFOR E THE LEGISLATION SUBCOMMITTEE OF THE HOUSE SELECT COMMITTE ON INTELLIGEN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B00017R000200380009-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 22, 2016
• Document Release Date: December 8, 2011
• Sequence Number: 9
• Publication Date: April 8, 1987
• Content Type: MISC

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PREPARED TESTIMONY
AND
STATEMENT FOR THE RECORD
OF
MORTON H. HALPERIN
DIRECTOR
AMERICAN CIVIL LIBERTIES UNION WASHINGTON OFFICE
PRIOR NOTICE OF COVERT ACTIONS
LEGISLATION SUBCOMMITTEE
HOUSE SELECT COMMITTEE ON INTELLIGENCE
APRIL 8, 1987
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Mr. Chairman,
I very much appreciate the opportunity to testify on behalf
of the American Civil Liberties union on H.R. 1013. The ACLU is
a non-partisan organization of over 250,000 members dedicated to
the defense and enhancement of civil liberties guaranteed by the
Bill of Rights.
There is no doubt, in my view, that Congress ought to go at
least as far as this legislation doss. Indeed, I believe that
this legislation simply makes explicit what Congress clearly
intended in 1980.
The record now before this committee and the nation
demonstrate that covert operations are fundamentally
incompatible with'a democratic society. The ACLU has held that
position for a number of years, and I have had the privilege of
presenting it to this committee on more than one occasion. The
basic argument is that covert operations are used by.our
Presidents to avoid the public and congressional debate mandated
by the Constitution, a debate which is particularly crucial when
questions of war and peace are at stake. Granting officials the
authority to conduct covert operations inevitably leads to abuses
of power, as it did in the Iran-contra affair. Officials begin
to believe that they can and must lie to the American people and
their colleagues, and that they have a license to break the law.
These are the inevitable results of permitting such activities;
they cannot be cured by more perfect legislation. (These
arguments are spelled out in?more detail in the first attachment
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 --_ Jr
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to this statement and I will not belabor them here.)
Taking as given that the committee at this stage is simply
interested in clearing up the question of prior notice with regard
to covert operations, let me offer the following observations.
First and most important, I would urge you to keep in mind
what the 1980 Intelligence Oversight Act sought to accomplish.
Its goal was to create a surrogate for public and full
congressional debate. if this is done, it is essential to have
the most complete possible substitute. Congress is thus
entitled, in permitting such operations to go forward, to insist
on procedures which in another context might constitute an
unwarranted and even perhaps unconstitutional intrusion into the
prerogatives of the President.
As fiche letters received by this committee from
constitutional scholars make clear, there is no serious doubt as
to the constitutionality of the provisions in the bill. I would
go further and argue that they are necessary if the Congress is
to perform its constitutional obligations to conduct effective
oversight of activities which could lead to war.
During the first day of hearings on -H.R. 1013, there were
suggestions both from witnesses and members of the committee
counseling against even this modest legislation. Two kinds of
arguments were heard. The first suggested that since the key to
effective oversight is cooperation between the executive and
legislative branches, legislation would do no good and might even
be counter-productive. The second suggested that the legislation
would compel the intelligence agencies to disclose information
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which might place the lives of agents in jeopardy. Let as
? express my views on both of these concerns.
Even a cursory review of the events of the past six years
should leave no doubt that new legislation is necessary. The 1980
Intelligence Oversight Act was a carefully crafted compromise
between the intelligence agencies and Congress. Its meaning was,
I believe, well understood by all of those who participated in
its drafting and approval. The difficulty, of course, arose
because those in the executive branch who became responsible for
its implementation after 1981 were not participants in the
process. The new administration consistently chose on a range of
issues, not simply the arms transfer to Iran, to ignore the
letter as well as the spirit of the legislation. The statements
of administration officials, and the legal analysis offered by
the Department of Justice, leave no doubt that the administration
never accepted the 1980 compromise. Oversight cannot work if
there is fundamental disagreement about the President's
obligations.
The record also makes it clear that legislative history,
Presidential directives, and agreements between the intelligence
committees and the Congress are no substitute for clear
legislative language.
One does not have to read the legislative history of the
1980 Intelligence Oversight Act to understand that "timely" does
not mean "never." The legislative history in fact leaves no
doubt that the auortty off-fibs-President to avoid-prior notice
could be exercised only in the most extraordinary circumstances,
when the survival of the nation could be said to be at stake.
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Moreover, it makes clear that "timely" notice could not be
delayed indefinitely. Yet the administration on a number of
occasions simply ignored, and perhaps was not even aware of, the
legislative history of these phrases. Attachment two to this
statement is a detailed analysis of the legislative-histbry which
leaves no doubt that the Act was repeatedly violated. Yet since
this is not an area in which litigation is possible, there is no
way to secure a judicial interpretation of the legislative
history, or to enforce it.
Obviously, executive branch officials may simply choose to
disobey the law. However, they are much more likely to do so
when the words of the law are not absolutely clear, or when they
seem to permit exceptions. Congress has an obligation not.to
offer such temptations to those who.exercise power.
If careful legislative history is no substitute for
statutory language, neither is a presidential directive. Here
the report of the Tower Commission is instructive, even if its
recommendations are not. The Commission notes that.many of the
procedural requirements that it recommends, and that would be
mandated by the legislation you are considering, were included in
an Executive Order in effect when this administration took
office. That Order was replaced by a new one which did not
include such procedures as requiring written findings, or
consulting with members of the National Security Commission. The
Tower Commission report states that the President later issued a
secret directive, NSDD 159, which reinstated these procedures.
But the report found that this directive was "promptly ignored"
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in the Iranian arms sales.
From this history, the Commission reached the conclusion that
the President should issue a directive and that it should be
followed. From this history, this committee must conclude that
any order that the President issues can be rescinded in public or
in secret, or simply ignored.
Finally, explicit agreements between the intelligence
committees and the Director of Central Intelligence cannot be
counted on. Senator Moynihan has presented this committee with a
copy of the agreements negotiated and signed by William Casey and
the leadership of the Senate committee. They are staggering in
what they reveal about the administration's willingness to abide
by its agreements. Mr. Casey promised to inform the committee of
any new Presidential findings in advance of implementation; he
did not do so. He promised to let the committee know if any
existing Presidential orders were ignored; he did not do so.
Finally, he promised to notify the committee of any weapons
transfers; he did not do no. The agreement was consistently
disregarded by the administration. No committee serious about
oversight would rely in the future on such agreements.
This brings as to the question of the committee's role in
the oversight process. There is no doubt that the executive
branch disobeyed the letter as well as the spirit of the law,
both the Intelligence Oversight Act and the Boland Amendment.
There is also little question in my view that this committee, and
its counterpart in the Senate, failed to live up to its
obligations. When Congress asks the public to accept secret
operations and when it assigns committees to monitor them on
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behalf of each house, those committees have a special obligation.
Members of the committee and its staff must probe and question
and take seriously charges of wrongdoing. With regard to the
violation of the Boland Amendment, this committee did not, in my
view, meet its responsibilities. One trusts that the lesson has
been learned.
Let me turn briefly next to the issue raised by Admiral
Turner and others about the risk of providing details about
specific operations to any members of the Congress. I sympathize
with the desire to keep such details secret, but I do not
understand H.R. 1013 to require their disclosure. This concern
confuses the requirement to notify the committees in advance
about a covert operation with the requirement to keep the
committees fully and currently informed and to inform them in
advance of any significant anticipated intelligence activity.
The legislation would require advance notice of any
Presidential finding authorizing a covert operation, but not
necessarily of all specific details of the operation. Thus, to
use Admiral Turner's example, if President. Carter had issued a
finding authorizing ah operation to rescue the hostages in Iran,
and had properly informed the two committees, neither the law as
it now stands, nor as it would be amended, would require that the
committee be noticed of each sub-operation. That is not to say
that some activities within a covert operation should not be
reported to the committees in advance, clearly they should. It
is only to say that the law contemplated by the bill would not
specify that they should.
6 r
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If there is any ambiguity on this score, the legislation
could, and probably should, be rewritten to separate the
requirement with regard to a Presidential finding, which should
be absolute, from the requirements to answer questions and to
report in advance on other significant anticipated activities.
With regard to the latter, some leeway and give and take between
the committees and the executive branch may be in order. Once
the committees know that an operation is underway, they have an
obligation to press and probe and to make clear what information
they want. I believe that the statute should require that the
requested information be provided unless its compromise would
directly and immediately place the lives of agents in danger
during a finite period, and the proposed action did not raise
questions of policy, propriety, or-legality.
Finally, Mr. Chairman, I want to say a brief word about the
proposal to create a joint intelligence committee. The Tower
Commission, having detailed a willful refusal of the executive
branch to obey the law, suggests that the solution is to create a
single committee in the hope that executive branch officials
would feel compelled to inform as required by the law. There are
two fatal flaws in this argument. First, the Congress reduced
the number of committees that had to be informed from eight to
two based on exactly the same argument. Second, current law
permits the Presit to notify only eight leaders of the
Congress. Since he did not avail himself of this option in the
case of the Iran operation, it is impossible to believe that he
would have informed a joint committee. (Also attached is a more
extensive analysis of the joint committee proposal.)
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Mr. Chairman, let no once again command you for holding
these hearings and thank you for providing an opportunity to the
ACLU to testify. I stand ready to answer your questions and to
assist the committee in any way that we can.
Thank you.
04/07/1987
PC #3
covop2.tes
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