DEPARTMENT OF JUSTICE DRAFT REPORT ON H.R. 1013, ON CONGRESSIONAL OVERSIGHT OF INTELLIGENCE ACTIVITIES.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B00017R000300670011-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 22, 2016
• Document Release Date: June 12, 2012
• Sequence Number: 11
• Publication Date: June 1, 1987
• Content Type: MEMO

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OFFICE OF CONGRESSIONAL AFFAIRS
Routing Slip
Name/Date
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EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET WASMNOT0N. O.C. 20503 SPECIAL
June 1, 1987
~~gg~~ /~~
LEGISLATIVE REFERRAL MEMORANI~nn~~ f1JAn QJon7
TO: Legislative Liaison Officer -
National Security Council
Department of the Treasury (Carro 566-8523) 28
Department of State (Howdershell 647-4463) 25
partment of Defense (Brick 697-1305) 06
telligence Agency
SUBJECT: Department of Justice draft report on H.R. 1013, on
congressional oversight of intelligence activities.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular.
A-19.
A response to this request for your views is needed no later than
12:00 NOON, WEDNESDAY, JUNE 3, 1987.
Questions should be referred to Annette Rooney/Sue Thau
.(395-7300), the legislative analyst in this office.
RONALD K. PETERSON for
Assistant Director for
Legislative Reference
cc: A. B. Culvahouse, Jr.
J. Cooney
A. Donahue
J. Eisenhour
SPECIAL
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U.S. Department of Justice
Office of Legislative and Intergovernmental Affairs
Representative Matthew F. McHugh
Chairman, subcommittee on Legislation of the
House Permanent Select Committee on Intelligence
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This letter presents the views of the Department of Justice
on H.R. 1013, a bill relating to the system of congressional
oversight of intelligence activities. The Department of Justice
opposes enactment of this legislation because we believe it would
unconstitutionally intrude on the President's authority to con-
duct the foreign relations of the United States. If H.R. 1013
were to pass both Houses of Congress, the Department of Justice
would recommend to the President that he disapprove the bill.
H.R. 1013 would make substantial revisions of both the con-
gressional reporting requirements of the National Security Act
and the Hughes-Ryan Amendment. Besides appearing to broaden the
congressional notification requirements, section 3 of K.R. 1013
would delete from section 501(a) of the National Security Act the
present express acknowledgment that the Act imposes reporting
requirements on the President only insofar as the requirements
are consistent with Its authorities and duties under the United
States Constitution. It would also delete the Act's provision
Section 501(a) presently provides (emphasis added)t
To the extent consistent with all applicable
authorities and duties, including those conferred
by the Constitution upon the executive and
legislative branches of the Government, and to the
extent consistent with due regard for the
protection from unauthorized disclosure of
classified information and information relating to
intelligence sources and methods, the Director of
Central intelligence and the heads of all
departments, agencies, and other entities of the
United States involved in intelligence activities
shall --
(1).keep the Select Committee on Intelligence
of the Senate and the Permanent Select Committee
on Intelligence of the House of Representatives
W
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acknowledging the President's independent constitutional author-
ity, namely section 501(b), which provides for presidential
discretion in deferring notice to Congress Soncerning excep-
tionally sensitive intelligence activities. In place of the
current Act's provision acknowledging the President's authority
to provide "timely notice" in such sensitive situations, section
3 of H.R. 1013 would purport to require that such notice be given
within 48 hours after the initiation of such operations.
Section 2 of H.R. 1013 goes even further with respect to
operations involving the Central Intelligence Agency. it would
purport to require that copies of Hughes-Ryan "findings" be
provided to certain executive branch officials and that this be
done before the initiation of any operation requiring such find-
ings. While the 48-hour provision of the new section 501(e) of
1 Cont. . . . fully and currently informed of all
intelligence activities which are the
responsibility of, are engaged in by, or are
carried out for or on behalf of, any department,
agency, or entity of the United States, including
any significant anticipated intelligence activity,
except that (A) the foregoing provision shall not
require approval of the intelligence committees as
a condition precedent to the initiation of any
such anticipated intelligence activity, and (B)
if the President determines it is essential to
limit prior notice to meet extraordinary
circumstances affecting vital interests of the
United States, 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 the
majority and minority leaders of the Senate.
Needless to say, deleting the underscored language would be only
symbolic and could not alter the constitutional rights or duties
of either branch.
2
Section 501(b) currently provides (emphasis added):
The President shall fully inform the
intelligence committees ina timely fashion of
intelligence operations in foreign countries,
other than activities intended solely for obtain-
ing necessary intelligence, for which prior notice
was not given under subsection (a) of this section
and shall provide a statement of the reasons for
not giving prior notice.
3 The Hughes-Ryan amendment, 22 U.S.C. 2422, provides in its
present form:
No funds appropriated under the authority of
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the National Security Act would apply to congressional notifica-
tion of the 'Hughes-Ryan' operations, this unprecedented re-
quirement of notification of subordinate executive branch4offi-
cials appears to impose an absolute rule of prior notice.
In keeping with the long-standing view of Presidents of
both parties who have considered this issue, the Department
believes that these provisions of H.R. 1013 are unconstitutional.
As you know, these same issues were the subject of thorough
debate and extensive negotiation in 1980, when Congress was
considering proposals for intelligence oversight legislation.
It was the position of the Carter Administration then, as it is
of this Administration now, that there may be exceptional occa-
sions on which the President's exclusive and inalienable consti-
tutional duties in the area of foreign affairs would preclude him
from giving prior notice of very sensitive intelligence-related
operations.
The Carter Administration, like this Administration, was
anxious to work with Congress in devising arrangements to satisfy
the Congress' legitimate interests in legislative oversight, and
was even willing, in the spirit of accommodation, to agree to an
extraordinary and novel form of ongoing congressional access to
the plans and intentions of our nation s most sensitive and
secret agencies.
But the Carter Administration recognized that there is a
point beyond which the Constitution simply would not allow it to
go in encumbering the President's ability to initiate, direct,
and control the sensitive national security activities at issue
here. Testifying before the Senate Select Committee in 1980,
Admiral Stansfield Turner emphatically pointed out that the prior
notification then being considered 'would amount to excessive
intrusion by the Congress into the President's exercise of his
powers under the Constitution.' See National Intelligence Act
3 Cont. this chapter or any other Act may be
expended by or on behalf of the Central
Intelligence Agency for operations in foreign
countries, other than activities intended
solely for obtaining necessary intelligence,
unless and until the President finds that
each such operation is important to the
national security of the United States. Each
such operation shall be considered a
significant anticipated intelligence activity
for the purpose of section 413 of title 50
I .e., section 501 of the National Security
Act],
Section 2 of H.R. 1013 also requires that the national
security finding be in writing. We do not, however, interpret
this to mean that signed copies of the finding must be provided
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of 1980: Hearings before the Senate Select Committee on intelli-
ae`, 96th Cong., 2d Bass. 17 1980).
The Constitution confers on the President the authority and
duty to conduct the foreign relations of the United States.
Covert intelligence-related operations in foreign countries are
among the most sensitive and vital aspects of this duty, and they
lie at the very core of the President s Article II responsibili-
ties. In this necessarily brief letter the Department will not
seek to detail all the authorities and precedents relevant to our
conclusion that an absolute prior notice requirement of the kind
proposed in H.A. 1013 would be unconstitutional. in summary,
however, the Department believes that the clear intent of the
Framers, which has been confirmed by long historical practice and
by clear statements of the United States Supreme Court, was to
leave the conduct of foreign relations, including the conduct of
foreign intelligence operations, in the hands of the President
except insofar as the Constitution gives Congress specific roles
to play.
The principal textual source for the President's wide and
inherent discretion to act for the nation in foreign affairs is
section 1 of article II of the Constitution= The executive
Power :hail be vested In a President of the United States of
America." The clause has long been held to confer on the Presi-
dent plenary authority to represent the United States and to
pursue its interests outside the borders of the country, subject
only to limits specifically set forth in the Constitution itself
and to such statutory limitations as the Constitution permits
Congress to impose by exercising one of its enumerated powers.
The President's executive power includes all the discretion
traditionally available to any sovereign in its external rela-
tions, except insofar as the Constitution places that discretion
in another branch of the government.
Before the Constitution was ratified, Alexander Hamilton
explained in The Federalist why the President's executive power
would include the conduct of foreign policy: "The essence of the
legislative authority is to enact laws, or, in other words to
prescribe rules for the regulation of the society; while the
execution of the laws and the employment of the common strength,
4 Cont. to Congress or to subordinate executive branch
officials.
5 The Constitution also makes the President Commander in Chief
of the armed forces (Art. Ii, sec. 2); gives him power to make
treaties and appoint ambassadors, subject to the advice and
consent of the Senate (Art. ii, sec. 2), and to receive
ambassadors and other public ministers (Art. II, sec. 3); the
Constitution also requires that the President "take Care that the
Laws be faithfully executed" (Art. II, sec. 3). These specific
grants of authority supplement, and to some extent clarify, the
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either for this purpose or for the common defense, seem to com-
prise all the functions of the executive magistrate." See
ist No. 75, at 450 (A. Hamilton) (C. Rossiter ed. 19.
By recognizing this fundamental distinction between 'prescribing
rules for the regulation of the society" and "employing the
common strength for the common defense the Framers made clear
that the Constitution gave to Congress only those powers in the
area of foreign affairs that directly involve the exercise of
legal authority over American citizens. As to other matters in
which the nation acts as a sovereign entity in relation to out-
siders, the Constitution delegates the necessary authority to the
President in the form of the executive Power."
The authority of the President to conduct foreign relations
was asserted at the outset by George Washington and acknowledged
by the First Congress. Without consulting Congress, President
Washington determined that the United States would remain neutral
in the war between France and Great Britain. The Supreme Court
and Congress, too, have recognized the President's broad discre-
tion to act on his own initiative in the field of foreign af-
fairs. In the leading case, VniSed toes Curt Los-Wright
ExporS 299 U.S. 304 (1936)t the Court drew a sharp dis-
tinction between the President's relatively limited inherent
powers to act in the domestic sphere and his far-reaching discre-
tion to act on his own authority in managing the external rela-
tions of the country. The Supreme Court emphatically declared
that this discretion derives from the Constitution itself, stat-
ing that "the President [is] the sole organ of the federal gov-
ernment in the field of international relations -- a power which
does not require as a basis for its exercise an act of Congress."
299 U.E. at 319-320 (emphasis added), Moreover, as the Cur ss-
Wright Court noted, the Senate Committee on Foreign Relations
acknowledged this principle at an early date in our history,
stating that "the President is the constitutional representative
of the United States with regard to foreign nations." The
Committee also noted "that [the President s constitutional]
responsibility is the surest pledge for the faithful discharge of
his duty" and the Committee believed that "interference of the
Senate in the direction of foreign negotiations [is] calculated
to diminish that responsibility and thereby to impair the best
security for the national safety.' 299 U.S. at 319 (quoting U.S.
Senate, Reports! Committee on Foreign Relations, vol. 8, p. 24
(Feb. 15, 1816)). Curtiss-Wright thus confirms the President's
inherent Article II authority to engage in a wide range of ex-
traterritorial foreign policy initiatives, including intelli-
gence activities -- an authority that derives from the Constitu-
tion, not from the passage of specific authorizing legislation.
Of course, despite this wide-ranging authority? Presidents
have been, and no doubt will in the future remain, careful to
5 Cont, discretion given to the President by the Executive Power
Clause.
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consult regularly with Congress to seek support and counsel in
matters of foreign affairs. Moreover, we recognize that the
President's authority over foreign policy precisely because its
nature requires that it be wide and relatively unconfined by
preexisting constraints, is inevitably somewhat ill-defined at
the margins. Whatever questions may arise at the outer reaches
of his power, however, the conduct of secret negotiations and
intelligence operations lies at the very heart of the President's
executive power. The Supreme Court's Curtiss-Wright decision
itself notes the President's exclusive power to negotiate on
behalf of the United States. The Supreme Court has also, and
more recently, emphasized that this core presidential function is
by no means limited to matters directly involving treaties. In
United States v. Nixon, 418 U.S. 683 (1974), the Court invoked
the basic Curtiss -aright distinction between the domestic and
international contexts to explain its rejection of President
Nixon's claim of an absolute privilege of confidentiality for
all communications between him and his advisors. While rejecting
this sweeping and undifferentiated claim of executive privilege
as applied to communications involving domestic affairs, the
Court repeatedly and emphatically stressed that military or
diplomatic secrets are In a different categgory: such secrets are
intimately linked to the President's Article II duties, where the
"courts have traditionally shown the utmost deference to Presi-
dential responsibilities. 418 U.S. at 710 (emphasis added).
Such statements by the Supreme Court reflect an understand-
ing of the President's function that is firmly rooted in the
nature of his office as it was understood-at the time the Consti-
tution was adopted. indeed in the Federalist gaperg John Jay
specifically observed that intelligence operations' in particular
must be implemented with such "secrecy" and "dispatch" that
their execution should be wholly entrusted to the President
rather than to Congress. See The Federalist No. 64, at 392-393
(J. Jay) (C. Rossiter ed. 1961).
Nor does any provision of the Constitution affirmatively
authorize Congress to take the kind of role provided for it in
H.R. 1013. Congress' implied authority to oversee the activities
of executive branch agencies is grounded on Congress' need for
information consider and enact needful and appropriate legisla-
tion. Congress, however, is not inhibited in the performance of
this legislative function if it receives information about intel-
ligence activities after they are completed. Oversight of ongo-
ing operations, however, could in some cases interfere with
duties imposed on the President by the Constitution. According-
ly, the President must retain his constitutional discretion to
refrain from providing prior notice, even as he recognizes the
desirability of seeking counsel -- and, thus, providing notice --
whenever possible. Since the current legislation was adopted in
1980, of course, the President has provided prior notice of
covert operations in virtually every single case.
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The Department of Justice also objects to Section 2 of K.R.
1013, which would purport to require that the Presidentfurnish
copies of his national security findings to the Vice President,
the Secretary of State, the Secretary of Defense, and the Dirac-
tor of Central Intelligence before the initiation of any opera-
tion requiring a Hughes-Ryan finding. Like the congressional
prior'notice requirements, though for somewhat different rea-
sons, this provision is inconsistent with the President's con-
stitutional authority. By requiring certain of the President's
subordinates to be notified of covert actions before they occur,
this proposal would infringe'on the President's prerogatives as
head of a unitary executive branch to exercise full discretion in
consulting and communicating with his subordinates.
The Constitution places the whole executive power in the
hands of the President. In contrast to political systems that
employ some form of cabinet government our Constitution is based
on the principle of the unitary executive. It is vorthllempha-
sising that the Framers deliberately c~hoossee this principle and
deliberately a ct the cabinet (or privy council) alternative,
with which they were quite familiar from British practice and
from the constitutions of most of the original states. 'Indeed
Article Ii, section 2, of the Constitution provides that the
President "MU require the Opinion, in writing, of the principal
Officer in'each of the executive Departments, upon any Subject
relating to the Duties of their respective Offices" (emphasis
added). Plainly, it is the President who decides when he re-
quires the advice of others in the Executive Branch andlwhich
persons he will consult. Neither his authority to iadvice
from such officials as he may choose nor the manner in hich he
makes such consultations may be circumscribed by Congress.
The Framers' two main reasons for choosing to create a
unitary executive were complementary and mutually reinforcing.
First, they thought that for the executive branch, in sharp
contrast to the legislative branch, rapid and decisive decision-
making is sufficiently Important that it outweighs the 'inevitably
concomitant danger that rash or ill-considered actions will be
undertaken. See The Federalist No. 70, at 423-24 (A. Hamilton)
(C. Rossiter ed. 1961). Second, the Framers believed that unity
in the executive would promote what today we call "accountabili-
ty." As Alexander Hamilton pointed out, the more that theexecu-
tive power is watered down and distributed among various persons,
the easier it is for everyone concerned to avoid the blame for
bad actions taken or for desirable actions left undone. See ..Thy~
federalist No. 70, at 427.(A. Hamilton) (C. Rossiter ed!;. 1961)."
Certainly, it would be unwise, as well as. unconstitutional, to
move our governmental institutions in a direction that Could
lead to less presidential accountability.
6 The Framers also believed that placing the whole of the
executive power in one man was usefully "conducive" to secrecy --
a consideration directly relevant to H.R. 1013. See The
me
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Of course, we acknowledge that consultation with the mem
bars of the National Security Council would almost always.be a
prudent presidential policy. We object only to undertaking to
make such consultation a legal obligation. As a constitutional
matter, there is no difference between the subordinate officials
listed in this bill and thousands of other executive. branch
officers. If one statute could require the President to notify
any of them of his national security findings prior to initiating
a covert operation, another statute could just as easily require
him to notify other subordinates, or, of them. Thus, given
the framers' decision to create a unitary executive, the cabinet
notification requirements in section 2 of this bill, like the
congressional notification requirements discussed earlier, are
inconsistent with Article II of the Constitution.?
In closing, the Department notes that when proposals simi-
lar to those in H.R. 1013 were introduced in 1979 and 1980, it
was recognized that President Carter had neither the right nor
the power to alter the Constitution's allocation of powers. among
the institutions of our government. This Administration is in
the same position.
The Office of Management and Budget has advised this Depart-
ment that the submission of this report is in accord with the
Administration's program.
Sincerely,
John R. Dolton
Assistant Attorney General
Office of Legislative Affairs
6 Cont. Federalist No. 70, at 424 (A. Hamilton) (C. Rossiter ed.
1961).
7 The requirement in section 2 of H.R. 1013, that the national
security finding mandated by the Hughes-Ryan Amendment be in
writing also raises questions insofar as it has some potential to
interfere with the President's discretion in choosing how to run
his own office. On the other hand, because this provision does
serve the legitimate purpose of facilitating after-the-fact
congressional oversight, it is the least objectionable feature of
H.R. 1013.
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