LETTER TO DICK CHENEY FROM WILLIAM H. WEBSTER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M01264R000100070030-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 13
• Document Creation Date: December 23, 2016
• Document Release Date: December 4, 2012
• Sequence Number: 30
• Publication Date: May 18, 1988
• Content Type: LETTER

SA/A1
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
Central Intelligence Agency
The Honorable Dick Cheney
Permanent Select Committee
on Intelligence
House of Representatives
Washington, D.C. 20515
Dear
Washingon DC 7.050S
18 May 1988
ocjk 88-1426
I read with great interest the paper you presented to the
American Bar Association Standing Committee on Law and National
? Security, as reprinted in the Congressicnal Reccrd and excerpted
in the 3 May Wall Street Journal, concerning the Legislative and
Executive roles in Covert Operations. I was especially interested
in your analysis of the interplay between the constitutional power
of the President and Congress in matters of foreign affairs, the
practical and constitutional problems with any law requiring
Congressional notification of all Presidential Findings within 48
hours without exception, and your suggested alternative approach
to pending legislation mandating such notification.
As you know, I am in agreement with many of the points you
make with respect to the proposed 48-hour notification
requirement. I believe the Congress should seriously consider
your proposed alternative approach that would retain the
President's discretion to delay notification in rare cases.
As always, your views are widely read and respected by officers
here at CIA. You have my compliments for a most thoughtful and
useful analysis.
Sincerely yours,
William H. Webster
Director of Central Intelligence
Distribution:
Original - Addressee
-1 - DCI . 1 - DDCI
1 - Executive Registry
1 - EXDIR ? - D/OCA
1 - ,DDL/OCA 1 - OCA/RE.gist7 (Reference ACTIONkOCA 1396-88)
E-1---OCA/Legilation_Subj_ect_
{/Signer ? 1 - Signer
OCA/Leg/ (5 May 1988)
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
STAT
, Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
CENTRAL INTELLIGENCE AGENCY
Director of Congressional Affairs
9 May 1988
NOTE FOR THE. JUDGE:
I recommend you sign this letter to
Dick Cheney praising his recent article
on the 48-hour bill. Your response
borders on the political, but you have
already stated, publicly and formally,
your similar views on this bill.
Cheney's "alternate framework" is
detailed in the first column of the
last page of the attached material from
the Congressional Record.
Attachment
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
STAT
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04 : CIA-RDP90M01264R000100070030-8
TUE-a.u.et:MAY 3, 18
'Covert Qkration
By Dick ClitNEY
'There is a consensus in Washington at-
' ter Iran-Contra that the process for man-
aging legislative-executive relations on co-
vert operations could be improved. The
? consensus quickly breaks down, however,
- as people begin putting ,forward concrete
suggestions. . .
. A bill, already passed by the Senate
?and moving forward in the House, would
require the president under all conditions,
with no exceptions, to notify Congress of
Covert operations within 48 hours of their
' start. It is a typical example, of "never
i ?
again" thinking by Congress. To make
i sure the last disaster Will never again re-
)
r peat itself, Congress is willing to deprive
t future -presidents of all possible discretion
l wider Conditions Congress cannot possibly
? foresee.
At the heart of the dispute over.this bill
?? is a deeper one over the scope of the presi
.
dent's inherent constitutional power. I be-
lieve the president has the authority, with-
, out statute. to use the resources placed At
1
his disposal to protect American lives
i abroad and to serve other important for-
eign-policy objectives short of war.
(I- Congress does have the power, how-
'4 ever, to control the money and material
'.. resources available to the president for co-
? vert actions. Because -Congress arguably
' cannot properly fulfill its legislative func-
tion on future money bills without informa-
tion, some kind Of a reporting requirement
i can be understood as a logical extension of
: ? a legitimate legislative power.
? Limiting the Money Power
, The constitutional question is: What are
the limits to what Congress may demand
as an adjunct of its appropriations power?
, Broadly speaking, Congress may not use
? the money power to achieve purposes that
it would be unconstitutional for it to
,, achieve directly. It could not place a condi-
, '. tion on the salaries of judges, for example,
: to prohibit the judges from spending any
time to reach a particular constitutional
conclusion. In the same way, Congress
could not use its clearly constitutional
powers over executive-branch resources
and procedures to invade an inherently
presidential power.
How does this reasoning apply to the
proposed 48-hour rule? In 1980, Congress
revised the intelligence oversight law to
require the president to notify the House
and Senate intelligence committees before
beginning any significant, anticipated in-
telligence activity. It justified the require-
ment on its need for information to fulfill
its legislative pokk.el to appropriate
money.
There is a line of SI:: 7?..'.? Court cases,
dating back to 1S21. tr. ' ...: -,,c Cong,,ress's
implied power to'dernand information. But
what happens if the Power to demand in-
formation confronts another implied power
'held by another branch that is equally well
grounded on a constitutional foundation?
That was the issue in thi executive-privi-
lege case of U.S. b. Nixon. In that case, we
learned that the decision in -any particular
case must rest on the competing claims of
the two branches it Odds with each other.
That is how I -think the 48-hour rule must
be considered.
The 48-hour bill recognizes the presi-
dent's inherent power to initiate a covert
action?as long as that action is limited to
resources already available to the presi-
dent. If Congress ever tries to insist on ad-
vance approval, That would surely be over-
turned as a legislative veto.
But if the president has the inherent
power to initiate covert actions, then the
? i
? The Carter administrati4
.gress for about three months
smuggled out of the Eanadial
same rule that gives 'Congress the implied
power to demand information also gives
the president the implied Powers be may
need to put his acknowledged power inks
effect. In Virtually all cases there is no
conflict between the president's power to
initiate an action and requiring the presi-
dent to notify the intelligence committees
(or a Smaller group of leaders) of :that op-
eration in advance. In a few _very rare cir-
cumstances, however, there can be a di-
rect conflict. ? .
One good example was the Carter ad-
'ministration's decisions to withhold riotifi-
:cation of some Iran hostage rescue opera-
tions. In one case, notification was with-
held for about three months until six
? Americans could, be smuggled out of the
Canadian Embassy in Tehran. In fact,
. Canada made withholding notification a
? condition of its participation.
? ? The Iranian hostage examples show
that when notification has to be withheld
may depend net on bow much time has
elapsed, but on the character of the opera-
tion. There is no question that when other
governments place specific security re-
quirements on cooperating with the U.S.,
the no-exceptions aspect of the 48-hour rule
would be equivalent to denying the presi-
dent his inherent power to act.
What is the constitutional justification
for the proposed bill? The best argument,
to quote the Senate Intelligence Commit-
tee, is that notification is needed "to pro-
vide Congress with an opportunity to exer-
cise its responsibilities under the Constitu-
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04 : CIA-RDP90M01264R000100070030-8
1
Who/ s in Charge.
?
tion." The problem:is ihat there is no 'leg- .
islative power that requires notification un-
-der all conditions during any precisely:
specified time period. All Congress needs'
to know is whether to continue, funding on-
going operations."' ,.....
. Who should have the power to decide
that notification Viould make action impos-
sible? In the rate situation in which a pres-
ident believes he must delay notification as
a necessary adjunct to fulfilling his consti-
tutional mandate, that decision must rest
iwith thepresident. The president obViously
cannot consult with Congress about
whether to consult.
You could argue that failure to notify
might, in the extreme, deprive Congress of
this power. Iran-Contra was such an ex-
treme. But the price of assuring notifica-
tion within . a specific time period is to
' make some potentially life-saving opera-
on withheld notifying Con-
6,61 six. Americans ,coidd be
It Embassy in Tehran.
tions impossible. On the scale of risks,
there is more reason to be concerned about
-depriving the president of his ability to act
than about Congress's alleged inability to
respond. Congress eventually will find out
about decisions of any Consequence. When
that happens, it has the political tools to
" take retribution. President Reagan learned
? this dramatically. It is a lesson no future
president is likely to forget.
The current approach certainly does
have some problenis. We have seen that it
too often breeds frustration and mistrust
An both the legislative and executive
? branches. This is not a one-sided problem.
Congress had every reason to be angry
: about the way the National Security Conn;
cil staff deceived us about the Contra re-
? supply effort. But the president has just as
much cause to be angry 'about the way the
speaker and the Rules Committee use their
scheduling power to delay, prevent or
structure floor votes, about the way mem-
'hers can unilaterally decide that a pre-
, viously covert operation Is ripe for public
debate, and about the incessant problem of
leaks. Each side has good reason to think
the other has contributed to a breakdown
of comity.
What we need is a modified set of pro-
cedures that will permit each side to rec-
ognize the other's appropriate constitu-
tional role. In this spirit. I offer the follow-
ing as a framework for amending the Intel-
ligence Oversight Act.
1) The president should retain the con-
stitutional power to initiate a covert action.
r even if .sonie theinhers .of Congress con-
sider the operation controversial.
- Requiring trotification xithin 48 hours
can be incepted-in general, but only if
? there is an escape clause for-the presi-
dent io invoke unilaterally in?exceptional
circumstances. "
Congress also needs to taki steps to im-
prove its own ability to opted secfeti.
Current procedures almost require an op-
eration's cover to be blown before the op-
eration can be discussed outside of com-
mittee. If Congress had adequate security
, laws and procedures, with Stiff penalties
for violations, the end result probably
would be more frank discussion, not less.
? . As long as Congress is considering dis-
? - closure, let me make One more modest
proposal. The U.S. needs only one secre-
? tary of state. No member Of Congress ever
should take it upon himself to negotiate
with a foreign government: Fact finding is
an acceptable part Of a legislator's fob.
Negotiating is not. All discussions ',that
even might turn into negotiation, therefore,
ought to be held only within a' context Of
regular State Department communication
,and guidance: .
A 48-Hour .Rule for .Congress
,
To help restore a proper respect for the
separation of powers, it might be a good
idea to apply something like the 48-hour
rule in reverse. Members of Congress
should be required to submit written re-
ports to the State Department describing
' any communications they have with a for-
eign government within 48 hours after they
. occur.
Whether or not this proposal is accepted
by Congress, it points to an important un-
derlying issue. Legislative-executive rela-
? tions did break down during the Iran-Con-
tra affair. Congress made? the president
pay a stiff price for that breakdown, and
. the president has taken Several important
steps to improve procedures on his end of
Pennsylvania Avenue. But the real prob-
lems are two-way. We in Congress ought to
look at what we can do to improve our own
behavior.
The .48-hour bill would "get back" at
? President Reagan by tying the hands of all
future presidents. That approach Will
achieve nothing useful. The better way is
with procedures that encourage each
branch to respect the other's proper role.
Comity comes through hard work on a
daily basis. But the first step must be mu-
tual respect.
Rep. Cheney (R., Wyo.) is a member
of the House Intelligence Committee and
was the ranking minority member of tlic
House Committee to invesboate Cucert
Arms Transactions will; Ira::
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
Declassified in Part- Sanitized Copy Approved forRelease2012/12/04 : CIA-RDP90M01264R000100070030-8
/7
ROUTING AND RECORD SHEET
SUBJECT: (Optional)
Thank You Letter to Representative Dick Cheney
FROM:
John L. Helgerson
Director of. Congressional
TO: (Officer designation, room number, and
buildin
9 MAY Igo
Executive Director
Deputy Director of
Central Intelligence
4.
Director of Ceritral
Intelligence'
Return to Director of
Congressional Affairs
3
10.
1
EXTENSION
NO.
OCA 88-1426
DATE 6 9 MAY igrm
REC.EIVED
FORWARDED
OFFICER'S
INMALS
12.
1 3 .
14.
15
FORW.
1-79
61C..
COMMENTS (Number eakh comment to show from whom
to whom. Draw a line OCTOSS column atter each comment.)
STAT
STAT
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04:
CIA-RDP90M01264R000100070030-8
6
TO:
EXECUTIVE SECRETARIAT
ROUTING SUP
'
ACTION
INFO
DATE
INITIAL
1
DCI
X
2
DDCI
X
3
EXDIR
4
D/ ICS
5
DDI
6
DDA
7
DDO
8
DDS&T
9
ChmjtsaC
10
GC
11
IG
12
Compt
7>
DPOCA
X
4
D/ PAO
15
D/ PERS
16
D/Ex Staff
17
18
19
20
21
22
SUSPENSE
Date
Remarks
D/OCA to have response prepared for
DCI signature,
3637 (1"1)
STAT
4/Executive Secretary
3 May 88
Dote
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04 : ?
CIA-RDP90M01264R000100070030-8
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04:
CIA-RDP90M01264R000100070030-8
34-re?vc
at /6776'`
STAT
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04:
CIA-RDP90M01264R000100070030-8
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04 : CIA-RDP90M01264R000100070030-8
AC [I ON
April 20, 1988 CONGRESSIONAL RECORD ? Extensions of Remarks
EXTENSIONS OF REMARKS
DICK CHENEY'S PAPER ON CON-
GRESSIONAL OVERSIGHT OF
COVERT OPERATIONS
HON. HENRY J. HYDE
OF ILLINOIS
IN THE HOUSE OF REPRESENTATIVES
Wednesday; April 20, 1988
Mr. HYDE. Mr. Speaker, DICK CHEPEY is a
Congressman respected on both sides of the
aisle for his reasoned logic and careful ap-
proach to complicated issues. He is one of
those Members who "does his homework,"
voracious reader knowledgeable on a wide
range of issues.
On March 30, Mr. CHENEY presented to the
American Bar Association Standing Commit-
tee on Law and National Security a paper on
"Clarifying Legislative and Executive Roles in
Covert Operations." It is a topic on which he
is particularly qualified to speak, as he is a
member of the House Intelligence Committee,
former ranking Republican member of the
fran-Contra Committee and current chairman
of the House Republican Conference. More-
over, because DICK has been a Member of
the House since 1979, and before that was
President Ford's White House Chief of Staff
during 1975-77, he has unique exposure to
foreign policy decisionmaking and to the inter-
ests of both the executive and legislative
branches.
Soon we will be considering legislation on
whether to impose a requirement that Con-
gress be notified within 48 hours of any covert
action. I believe Members would benefit from
Congressman CHENEY'S thoughts on this
issue. Over the next several days, therefore, I
will submit his paper for publication in the
CONGRESSIONAL RECORD. The first portion,
submitted today, considers the constitutional
basis and history of power over foreign affairs,
plus the nature of recent legislation providing
oversight over covert action. The second seg-
ment addresses the proposed 48-hour notice
legislation and some problems with it. In the
final installment, the underlying issue of how
to achieve informed consent or veto without
public debate is considered, and Congress-
man CHENEY offers his own solution as a sub-
stitute for the proposed 48-hour legislation.
The material follows:
CLARIFYING LEGISLATIVE AND EXECUTIVE
RoLvs IN (DOVER'? OPERATIONS?PART I
(By Dick Cheney)
There is probably a consensus at this con-
ference. and in Washington generally, that
the process for managing legislative-execu-
tive relations with respect to covert oper-
ations could be improved. The consensus
quickly breaks -down, however, as people
begin putting forward concrete suggestions.
There are two general areas in which pro-
posals seem to concentrate. One has to do
with requiring that Congress be notified of
all covert operations within 48 hours of
their start. The other deals with the broad-
er issue for which notification is a substi-
tute: the conditions under which covert op-
erations should be deprived of their covert
character to be made the subject of public
debate. I shall discuss each of these subjects
today, first criticizing the bills that have
been moving through Congress and then
concluding with a new set of OroPosala for
grappling with what has become a highly
contentious set of issues.
The reason there is so little consensus
about solutions is that any Idea for hnprvv-
ing the oversight process for covert oper-
ations must rest on some premises about the
appropriate role of the legislative and exec-
utive branches in foreign policy, more gener-
ally. I shall not spend a great deal of time
on broad questions of constitutional law.
You have already heard from several noted
experts in that field. Suffice it to say that I
tend to agree with Robert P. Turner's and
John Norton Moore's arguments on legisla-
tive and executive power.
A few words on the subject will help place
the rest of my remarks in context, however.
One of the main institutional objectives for
the Framers of the Constitution as they
worked through the hot summer of 1787 in
Philadelphia. was to create an independent-
ly powerful executive branch of govern-
ment?unlike the executive in most states at
the time, or under the Articles of Confeder-
ation. The Framers specifically wanted an
executive who would be able to act with suf-
ficient energy, secrecy and dispatch, to re-
spond to the foreign policy crises the new
nation inevitably would face. So they cre-
ated the Presidency?one person placed
clearly in charge of the executive branch?
because they knew that when too many
people share power and responsibility, deci-
sions become muddy and actions are not
taken. Then they gave that single executive
the power to be the nation's leader in for-
eign policy. They made him the "sole
organ" for diplomatic communication and
gave him broad, discretionary power to
deploy the government's resources to pro-
tect American lives and interests abroad.
Of course, the Constitutional Convention
did not make the President all-powerful. It
also gave Congress an important role to play
In foreign policy, most obviously by giving
the full Congress the power to declare war,
tax, appropriate, and regulate foreign com-
merce, and also by giving the Senate the
power to ratify treaties. But by giving Con-
gress an important role to play, the Consti-
tution?contrary to Edward S. Corwin?was
not an unbounded "invitation to struggle."
Congress and the President were not given
the same powers. Rather, each branch was
given different powers to influence overlap
ping policy decisions, with each branch gen-
erally being given the powers most appro-
priate to its own capacities. The expectation
was that the President would be able to use
his diplomatic monopoly, and his ability to
deploy the government's resources, to lead
the government by taking concrete actions
toward other countries. Congress could
always support or oppose the President by
granting or denying him the resources
needed to follow up on what he had started.
But the relationship between initiation and
Congressional ratification was to be very
different from the domestic field. where
Presidential initiation either rests on a stat-
utory delegation, or else must be limited to
'Edward S. Corwin.
Powers (1957).p. 17L
I1129
introducing an idea and then trying to per-
suade Congress to adopt it.
Since the Vietnam War, as is well known,
Congress has gone well beyond its tradition-
al role to develop institutional levers for
placing the legislature at every stage of the
foreign policy process, from initiation
through negotiation and implementation.
Nothing could-be clearer from the constitu-
tional scheme, for example, than the Presi-
dent's role as the country's "sole eyes and
ears" for diplomatic communication. This
issue seemed to have been settled during the
new government's first months. On October
9, 1789, tleorge Washington answered a
letter that the King of France had ad-
dressed "to the President and Members of
the General Congress" by saying that the
task of receiving and answering such letters
"has devolved upon me" alone, and not
Jointly with the Congress. As Judge Sofaer
noted in his excellent 1976 book, the Senate
twice confirmed this assertion by rejecting
motions to request the President to commru-
ideate messages of behalf of the United
States.'
A few years later, the Congress debated
the same issue in another guise. Dr. George
Logan was accused of meddling in negotia-
tions between the United States and France
in 17.98. Although there was dispute over
the matter, he was suspected by many Fed-
eralists of being a secret envoy sent to
France to represent the Jeffersonian Demo-
crats. In response, Congress passed a law in
1799, popularly known as the Logan Act, to
make it criminal for any citizen of the
United States, without the permission of
the U.S. government?
"Directly or indirectly (to] commerce, or
carry on, any verbal or written correspond-
ence or intercourse with any foreign govern-
ment, or any agent or officer thereof, with
an intent to influence the measures or con-
duct of any foreign government, or of any
officer or agent thereof, in relation to any
disputes or controversies with the United
States, or defeat the measures of the, gov-
ernment of the United States."
The only exception in the act is for indi-
viduals seeking to redress a personal injury
to themselves.'
The Logan Act is still a part of the U.S.
Code, with only minor grammatical
changes.4 Although aimed at the most obvi-
ous level against private citizens, congres-
sional debate at the time made it clear that
the function involved belonged to the execu-
tive branch, and outrage was expressed not
only at Dr. Logan's own role, but at the al-
leged support he received from members of
the opposition political party who did not
have the President's blessings. It is signifi-
cant, as the noted consititutional historian
Charles Warren wrote when he was Assist-
ant Attorney General, that the more than
two hundred pages of debate about the act
are printed in the Annals of Congress under
the heading, "Usurpation of Executive Au-
thority." 6
'Abraham D. Sofaer, Wan Foreign Affairs and
Constitutional Powes"(1976). p. SS.
1 Stat. 613 (1799).
? 18 U.S.C. 953.
Annals of Congreen Fifth Congress, 3d Sem.,
The President* WI-we and - iDec.3. 1798-March 3, 1789). pp. 2487-2721. See
also, Charles Warren, Assistant Attorney General.
-II This "bullet" symbol identifies statements or insertions which are not spoken by a Member of' the Senate on the floor.
Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor.
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04 : CIA-R6P90M01264R000100070030-8 .
, ftioirt
eclassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
kfts,
E 1130 . CONGRESSIONAL RECORD? Extensions of Remarks April 20, 1988
Despite this clear legislative history
behind a statute almost as old the Republic,
members Of Congress today feel they can.
negotiate with foreign leaders directly, in
the name of the legislative branch and in
opposition to the President. It would be
hard to imagine a cleailer usurpation of ex-
ecutive authority than House Speaker Jim
Wright's meetings with Nicaraguan Presi-
dent Daniel Ortega last November 11-12,
without informing or involving the State
Department, to discuss and influence a San-
dinista cease-fire proposal that was still in
draft form. Ortega's draft contained de-
tailed items for ending U.S. military support
for the Nicaraguan Democratic Resistance.
This was only one of a series of meetings in-
dividual House Democratic opponents to the
President's policy have held with the Nica-
raguan Communists to discuss what the
Communists should do in Nicaragua to per-
suade a majority in Congress to vote against
the President's program.
Nor was that the only recent occasion of
creative legislative usurpation of executive
authority. Some Democratic Senators tried
to use the Department of Defense authori-
zation bill in 1987, for example, to try to
Impose its interpretation of a treaty on the
President. Similarly, many Senators tried to
use the same bill?as members of Congress
have done ever since the War Powers Act
was first introduced in the early 1970's?to
assert that the executive's power to deploy
governmental resources rests solely on stat-
utory grounds, as if there were no constitu-
tionally independent, inherent power for
the executive to act against anything short
of an armed invasion of the U.S. mainland.
My view of each of these actions is evident
from my use of the word "usurpation." It is
equally obvious, however, that a significant
number of my Democratic colleagues con-
sider each to have been perfectly appropri-
ate. The underlying difference affects any
discussion of reforming the laws for con-
gressional oversight of covert operations.
Ultimately, we seem to run up against prin-
cipled differences over the proper constitu-
tional roles of the legislative and executive
branches. Congress could take some practi-
cal steps?to match ones the executive al-
ready has taken?that would help repair the
breakdown in comity that occurred during
Iran-Contra. I shall suggest a few specific
Ideas at the end of this essay. Before I
present those ideas, however, I shall first
say a few words about the way the oversight
process now works, and the problems with
the bill now working its way through Con-
gress to tighten up so-called "loopholes."
? OVERSIGHT OF COVERT OPERATIONS
During the opening months of President
Ford's administration, Congress attached
the Hughes-Ryan Amendment to the For-
eign Assistance Act of 1974. Born out of gen-
eral post-Vietnam and post-Watergate suspi-
cions of the executive branch, as well as spe-
cific congressional opposition to some past
operations,8 the provision sponsored by Sen.
Harold Hughes (D-Iowa) and Rep. Leo J.
Ryan (D-Cal.) was intended to insure that
Congress would be informed of covert oper-
ations conducted by or on behalf of the
Central Intelligence Agency. As originally
. History of Laws Prohibiting Correspondence With a
Foreign Government and Acceptance of a Commis-
sion, U.S. Senate. 64th Congress. 2d Sess., S. DOC.
64-696 (1917). p.7.
?See U.S. Senate, 94th Congress. 2d Sess., Hear-
ings and Final Report of the Select Committee to
Investigate Government Operations With Respect
to Intelligence (1976) (Church Committee) and U.S.
House of Representatives. 95th Congress, 1st Sess.,
House Select Committee on Intelligence. Recom-
mendations of the Final Report (1977) (Pike Com-
mittee).
written. Hughes-Ryan prohibited the ex-
penditure of atly funds by or on behalf of
the CIA for any operations in foreign coun-
tries, except those solely intended to obtain
necessary intelligence, unless (1) the Presi-
dent specifically found that each such activ-
ity was important to U.S. national security
and (2) each such -operation was reported
"In a timely fashion" to the appropriate
committees of Congress. The amendment
specifically named the Rouse Foreign Af-
fairs and Senate Foreign Relations Commit-
tees, but the list of appropriate committees
also was generally understood to include the
? two Armed Services Committees, the two
appropriations committees and, after they
were formed in 1976 and 1977, the Senate
and House Select Committees on Intelli-
gence.,
Hughes-Ryan quickly caused problems
that were evident even to some of its origi-
nal supporters. By requiring notification to
so many committees, the law in effect was
requiring the CIA to notify more than half
of the Senate, one-quarter of the House,
and vast numbers of staff. It was impossible
to prevent leaks under such conditions. In
fact, wrote former Director of Central Intel-
ligence William Colby, "every new project
subjected to this procedure leaked, and the
'covert' part of CIA's covert action seemed
almost gone." a
In response to this situation, Congress
sought, and found, a reasonable middle
ground. In 1980, after abandoning its efforts
to pass a lengthy and problematic legislative
charter for the intelligence community.
Congress decided to revise the oversight law
to expand the notification condition from
the CIA to all departments, agencies and en-
tities of the United States involved in intel-
ligence activities, and to limit the commit-
tees receiving notification to the two intelli-
gence committees. In general, the 1980 law?
"to the extent consistent with all applicable
authorities and duties, including those con-
ferred by the Constitution upon the execu-
tive and legislative branches"?required the
executive branch to notify the intelligence
committees (or, under special conditions,
the chairmen and ranking minority mem-
bers of the two committees, and four leaders
of the House and Senate) before beginning
any significant, anticipated intelligence ac-
tivity. The law also contemplated, however,
that there might be some conditions under
which prior notice would not be given. In
those situations, it required the President
"to fully inform the intelligence committees
In a timely fashion."
Under this law, the intelligence commit-
tees in fact have become significant players
whose support any prudent Administration
would do well to encourage. The 1980 law
did not challenge the President's inherent
constitutional authority to initiate covert
actions. In fact, that law specifically denied
any intention to require advance congres-
sional approval for such actions. Neverthe-
less, Congress does have a very strong lever
for controlling any operation that lasts
more than a short period of time. Oper-
ations undertaken without prior approval
have to be limited to the funds available
through a contingency fund, or other
budget devices, all of which are well known
to Congress. Legislative control comes from
the fact that Congress may constitutionally
abolish these flexible tools and require
project-by-project funding. Of course, such
a decision would be suicidal because it would
deprive the President of all discretion and
Pub. L. 93-559. Sec. 32,88 Stat. 1804 (1974). The
present? version of Hughes-Ryan, as amended by
the 1980 Oversight Act, may be found at 22 U.S.C.
2422.
William Colby. Honorable Men (1978). p.423.
also deprive the country of any ability to
react quickly to breaking events. Congress
-therefore would not ever l*e likely to use its
power to insist on project-by-project fund-
ing. Nevertheless, because the Constitution
does give Congress this draconian lever, the
Intelligence committees can and do use the
-annual budget process to review every single
ongoing operation. Any time Congress feels
that an operation is unwise, it may step in
to prohibit funds in the coming budget cycle
from being used for that purpose. As a
result, all operations of extended duration
have the committee's tacit support (or non-
opposition). Considering how many people
in Congress and the general public oppose
covert operations in principle, this is an im-
portant political base for any administra-
tion concerned about the country's long-
term intelligence capacities.
A TRIBUTE TO MS. RUTH
PACKARD
HON. CURT WELDON
OF PENNSYLVANIA
IN THE HOUSE OF REPRESENTATIVES
Wednesday, April 20, 1988
Mr. WELDON. Mr. Speaker, I would like to
take this opportunity to honor a lady of out-
standing accomplishment in my community.
This week Ms. Ruth Packard, of Media, PA,
will be celebrating her 40th year as an active
member of the Rose Valley Chorus and Or-
chestra. For 40 years, Ms. Packard has dem-
onstrated her committment not only to the
Rose Valley Chorus and Orchestra, through
her constant work in all aspects- of its produc-
tions, but to the entire community. By serving
this theater group so faithfully through the
years, Ruth Packard has helped to weave the
fabric of a closely knit, caring community.
It is not often that we take the time to rec-
ognize an individual's service to the communi-
ty for low-profile work. But to accomplish
things with no need of glory and recognition is
to be truly deserving of praise. Ruth -Packard
is just such a person. Her motives were never
selfish?never to gain personal recognition,
and I am sure that none will be more sur-
prised than herself to find that her selfless ac-
tions have gained her such wide appreciation.
Although Ms. Packard will be retiring as an
active member of the Rose Valley Chorus and
Orchestra this year, I have no doubt that her
involvement over the years will continue to
serve as a fine example for all those who care
about the community in which they live.
WASHINGTON STATE SENATE
RESOLUTION 1988-8715
HON. AL SWIFT
OF WASHINGTON
IN THE HOUSE OF REPRESENTATIVES
Wednesday, April 20, .1988
Mr. SWIFT. Mr. Speaker, last year this
House agreed to cut the Coast Guard budget
to such an extent that many of the States with
coastal regions are suffering from a severe
deterioration in their ability to provide maritime
safety and law enforcement. It is for this
reason that I would like to enter into the
RECORD a resolution passed by the' Washing-
ton State Senate which expresses our State'.s
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
,E 1188
CONGRESSIONAL RECORD Extenstom oiktnade; itp. tit ?'1 1911
DICK CHENEY'S PAPER ON CON-
GRESSIONAL OVERSIGHT OF
COVERT OPERATIONS
HON. HENRY J. HYDE
OP ILLINOIS
IN THE HOUSE OF REPRESENTATIVES
Thursday, April 21, 1988
Mr. HYDE. Mr. Speaker, today I am honored
to submit for publication the seCond of three
installments Of DICK CHENEY'S recent paper
for the American Bar Association on how to
clarify executive and congreisional responsi-
bilities in supervising covert 'actions. In the
first section, submitted for the RECORD yester-
day, Mr. CHENEY argued that constitutionally
and historically, the Presickint has a monopoly
on diplomatic communication- and the power
to initiate foreign policies, inCluding to lead the
Government in concrete actions involving de-
ployment of existing resources; the Congress.
on the other hand, through its budgetary con-
trol has the power to sustain or veto those ini-
tiatives which endure over some period of
time. On oversight of covert .action, all oper-
ations of extended duration in effect have the
committees' tacit support,. the Iran/Contra pro-
gram being the notableaxception. .
In the second segment-submitted today, Mr. ogy, however, is that even when Congress
CHENEY considers the proposed, 48-hour rule speaks, and the President's power is at its
on notification of covert actions. Existing bills, lowest, Jackson acknowledged that there
he argues* are limits beyond which Congress cannot
the Senate has recently passed, and the
House will soon consider, bills that would
require the President under all conditions,
with no exceptions, to notify Congress of all
covert operations within 48 hours of their
start. Those bills, in my opinion, are typical
examples of "never again" thinking by Con-
gress. To make sure the last disaster will
never again repeat itself. Congress is willing
to deprive future Presidents of all possible
discretion under conditions Congress cannot
possibly foresee. The result is an approach
to legislative-executive relations that I con-
sider fatally flawed for interrelated consti-
tutional and practical reasons.
At the heart of the dispute over this bill Is
a deeper one over the scope of the Presi-
dent's inherent constitutional power. I be-
lieve the President has the authority, with-
out statute, to use the resources placed at
his disposal to protect American lives
abroad and to serve other Important foreign
policy objectives short of war. The range of
the President's discretion does vary, as Jus-
tice Jackson said in his famous concurring
opinion in the Steel Seizure case. When the
President's actions are consonant with ex-
press congressional authorizations, discre-
tion can be at its maximum. A middle range
of power exists when Congress is silent.
Presidential power is at its lowest ebb when
it is directly opposed to congressional man-
date.' What Is interesting about this typol-
? " ? are typical examples of "never
again" thinking by .Congress. To make sure
"no [Iran/Contra) disaster will never again
-st itself. Congress is willing to deprive
Presidents of all possible discretion
?r conditions Congress cannot possibly
foresee. The result is an approach to legisla-
tive-executive relations that I consider fatal-
ly flawed for interrelated constitutional and
practical reasons,
commend this analysis to other Members
and urge them to stay tuned for the final sup-
plement next week. In his conclusion, Con-
gressman CHENEY offers a substitute to pro-
posed legislation which is designed to en-
hance congressional oversight while not in-
fringing on executive prerogatives.
legislate." Those limits are defined by the
scope of the inviolable powers inherent in
the Presidential office itself.
Let me now apply this mode of analysis to
the sphere of covert action. Congress was
legislatively silent about covert action for
most of American history, knowing full well
that many broad ranging actions had been
undertaken at Presidential initiative, with
congressionally provided contingency
funds.0 For most of American history.
therefore. Presidents were settng in the
middle range of the 'authority Jackson de-
scribed. Congress does have the power, how-
ever, to control the money and material re-
sources available to the President for covert
actions. Hughes-Ryan and the 1980 Over-
sight act represent attempts by. Congress to
place conditions on the President's use of
congressionally provided resources. Those
condlUons, for the moat part, have to ft
with providing information to Congress. Be-
cause Congress arguably cannot properly
fulfill its legislative function on future
money bills without information, the re-
porting requirements can be understood as
logical and appropriate extensions of a le-
gitimate legislative power.
The constitutional question In what are
the limits to what Congress may demand as
an adjunct of its appropriations power?
Broadly speaking, Congress-may not use the
money power to achiefe purposes that it
would be unconstitutional for Congress to
achieve directly. It could not place a condi-
tion on the salaries of judges, for examrde,
to prohibit the judges from spending any
time any part of their salaries) to reach
a particular constitutional conclusion."
In the same way. Congress could not use
its clearly constitutional powers over execu-
tive branch resources and procedures to
Invade an inherently Presidential power.
CLARIFYING LEGISLATIVE AND EXECUTIVE
ROLES IN COVERT OPERATIONS?PART II
(By Dick Cheney)
PROPOSED 48-HOUR RULE
The intelligence committees can only
review covert operations if they know about
them, however. President Reagan did not
notify the intelligence committees of the
Iran arms sales for eleven months after
signing a formal finding- to authorize them.
I do not think anyone in Congress believes
this was timely. The important questions
are, how should Congress respond? Should
Congress try to close the "timely notifica-
tion" loophole legislatively? Or are the costs
of loophole-closing so severe that it pays to
seek more creative and more politically and
operationally sensitive ways out of the prob-
lem? I favor the second approach. A majori-
ty of my colleagues, however, seem to be
stuck in a legalistic and largely sterile at-
tempt to close loopholes. I will discuss posi-
tive alternatives at the end of this presenta-
tion. First, let me indicate what I think is
wrong with the dominant mode of congres-
sicalil thought.
? Youflostown Sheet and rube Co. V. Sainver 343
U.S. 579. 63542(1952).
.? /bid. at 645.
"POT a summary. see U.S. House of Represents-
Um. 100th Congress. First Session, Select Commit-
For example, Congress does not have the
constitutional power to use an appropria-
tions rider, such as the Boland Amendment,
to deprive the President of his authority as
the "sole organ of diplomacy" to speak per-
sonally, or through any agent of his choice,
with another government about any subject
at all. I mean this last statement specifically
to include asking another government to
support the Nicaraguan Democratic Resist-
ance. Congress does have the power to pre-
vent the President from offering another
country something of value in return for
such support. For example, it could prevent
a President from conditioning foreign aid on
another country's support for the Contras
for fear that U.S. foreign aid, the control
over which is in Congress's province, would
just become a laundering device. But despite
protestations and innuendoes galore during
the Iran-Contra hearings. Congress may not
prevent the President from using exclusive-
ly Presidential powers to achieve results
Congress may not like.
How does this reasoning IMPLY to the pro-
posed 48-hour rule? Congress quite properly
justified the 1980 notification requirement,
as I mentioned earlier, on the need for in-
formation as a necessary adjunct to the leg-
islative power to appropriate money. By
doing so. Congress stood squarely within a
line of eases upholding Congress's contempt
power. In the 1821 case of Anderson v. Dunn
the Supreme Court upheld the use of con-
tempt as an implied power needed to imple-
ment others given expressely by the Consti-
tution. In a statement that clearly applies to
all of the government's branches. the Court
maid: "There is not in the whole of that ad-
mirable instrument, a grant of powers
which does not draw after it others, not ex-
Dressed, but vital to their enereisc not sub-
stantive and independent, indeed, but auxil-
iary and subordinate." 1'
Using this line of reasoning, the Court
argued that even though courts were vested
with the contempt power by statute, they
would have been able to exercise that power
without the aid of a :astute. For the same
reason, the court held. Congress must have
Inherent authority to exercise a similar
power." Later eases tried to circumscribe
Congress's contempt power, but the power
itself was always held to be a necessary ad-
junct to Congress's legislative functions and
therefore to rest on an implied constitution-
al foundation,'
So far. the Court's argument would seem
to support Congress's right to demand infor-
mation of the executive. But what happens
if that pottier confronts another implied
power held by another branch that is equal-
ly well grounded on a constitutional founda-
tion? That was the issue in the executive
privilege ease of U.S. V. Nixon." In that
case, we learned that the decision in any
particular case must rest on the competing
claims of the two branches at odds with
each other. That is how I think the 48-hour
rule must be decided.
The proposed 48-hour bill recognizes the
President's inherent power to initiate a
covert action, as long as that action is limit-
ed to resources already available to the
President. That is why the 1880 oversight
act and the proposed 48-hour bill both take
pains to say that by requiring notification.
Congress is not asserting a right to approve
Presidential decisions in advance." If Con-
gress ever tries to insist on advance approv-
al, that would surely be overturned as a leg-
islative veto."
toe to InvesUgate Covert Arms Trensactions wtth
Dan end U.S. &sista 100th Congrem, Pint Sessloft
Select Committee On Secret Wiliam Montano* 191
Iran and the Nicaraguan Opposition. Report at tho
Coogreulovial Cosuentees invest:krona* the IMF.
Castro Affair, R. Rept. 100-423, B. Rept. 100416
(November 1987), pp. 467-49.
?? Id. st 624-29. -
"Kon v. ltionspede. NW VA 16e (1961)
read the power narrowly, but Ilee3reta v,Doettyher?
273 0.13.1.26 (1927) and Stactotr v. US-. 279
Por a somewhat analogous but less *bond ease. 262 (1929) In turn read Mama narrowly. Later
see Brown v. Cablatio 617?. 2d 1221 (1NO). *ism bare Sanded to Immilve *inflicts between the
"Anderson v. Dana 6 Wheat. 204. 225-211 (1621). eretiorwrit eh. vs..* A ........elswamwt Oaf-
npriassified in Part - Sanitized Copy Approved for Release 2012/12/04 : CIA-RDP90M01264R000100070030-8
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
? ?
f. April 21, 1988 CONGRESSIONAL RECORD ? Extensions of Remarks E 1189
But if the President has the inherent So, on the one side of the scale, we see
Dower to initiate covert actions, then the that the President's implied power to with-
slime rule that gives; Congress the right to hold notification may be a necessary ad-
demand information,. and- the related con- junct to the inherent power to act. What is
tempt power, also gives the President the on Congress's aide of the scale? In the same
necessary implied powers he may need to report on the 48-hour bill that acknowl-
put his acknowledged power into effect. In edged the President's power to initiate
virtually all cases. there is no conflict be- action, the Senate Intelligence Committee
tween the Pres1dent's power to initiate an offered two constitutional justifications for
action and requiring-the President to notify its notification requirement. The first was
the intelligence comniittees, or a smaller "to provide Congress with an opportunity to
PIMP of leaders, of that operation in ad- exercise its responsibilities under the Con-
vance. In a few very- rare circumstances, stitution."11 The second was "to ensure that
however, there can be a direct conflict decisions to undertake covert actions are
According to Admiral-Stansfield Turner, not left solely to a handful of single-minded
who was the Director 'of Central Intelli- executive officials.""
gence at the time. there were three occa- The second of these reasons is nothing
storm, all involving Iran, in which the Carter less than a demand that Congress partici-
Administration withheld notification during pate in a decision it has already acknowl-
an ongoing operation. Notification was with- edged belongs to the President. Prudence
held for about three months until six Amer- undoubtedly should lead to consultation,
leans could be smuggled out of the Canadi- but the dictates of prudence do not settle
an Embassy in Teheran. As Representative questions of constitutional power. The first
Norman Mineta pointed out in testimony argument about legislative responsibilities is
following Turner's, the Canadian govern- more weighty. but I would submit that
caent made withholding notification a condi- there is no legislative power that requires
Um of their participation." Notification notification under all conditions, with no
was also withheld for about six months in exceptions, during Any precisely specified
two other Iranian operations during the time period. All we need to know is whether
hostage crisis. Said Turner "I would have to continue funding ongoing operations. We
found it very difficult to look . . . a person have had that information in every case.
In the eye and tell him or her that I was with the exception of President Carter's and
going to discuss this life threatening mission President Reagan's hostage-related Iran int-
with even half a dozen people in the CIA tiatives.
who did not absolutely have to know"." In I suppose you could argue that failure to
these situations. President Carter thought notify might, in the extreme, deprive us of
his constitutional obligation to protect our ability to decide about continuing to
American lives could not have been fulfilled fund a particular operation. Iran-Contra
if he had been required to notify Congress was such an extreme. But the choice is not
within 48 hours. And as the Canadian exam- one-sided. The price of assuring notification
pie makes clear, the choice between not no-
tifying or not going ahead at all is some- about all operations within a specific time
? period is to make some potentially life-
trol, times put on us by people outside U.S. con-
saving operations impossible. On the scale
of risks. I am more concerned about depriv-
The Iranian hostage examples also show
lag the President of his ability to act than I
that the situations under which notification
am about Congress's alleged inability to re-
may have to be withheld depend not on how
spond. I Seel this way not because I am san-
much time has elapsed, but on the charac-
guine about every decision Presidents might
ter of the operations themselves. It is worth
emphasizing that the proposed bill would take. Rather, it is because I aro confident
require notification within 48 hours of an that Congress eventually will find out in
operation's start?that is, when the II.13. this leaky city about decisions of any conse-
begins putting people in place, not when the quence. When that happens. Congress has
operation is fintshed. Let us put aside for the political tools to take retribution
the moment whether fear of Congressional against any President whom It feels with-
leaks would be a legitimate reason for with- held information without adequate Jostif
holding notification about a particularly cation. President Reagan learned this dra-
sensitive operation. I believe there is good mattaxlly in the Iran-Contra affair. It is a
reason to be concerned about leaks, but am lesson no future President is likely to forget.
willing to defer argument about whether
this concern carries constitutional weight,
_ -
because there are better examples to mate " Id. at 43. 8es alio 411 at MAIL
nip point. There can be no question that Flystempeacevieffaigia Ace ansig. g. Rept. my.
when other governments Place specific secu- D. 11.
rity requirements on cooperating with the 11?Th4d-- 0.22.
United States, the no-exceptions aspect of
the proposed 48-hour rule would be equiva-
lent to denying the President his constitu-
tionally inherent power to act.
Who should have the power to decide that
notification would make action Impossible?
In the rare situation in which a President
believes he must delay notification as a nec-
essary adjunct to fulfilling his constitution-
al mandate, that decision must by its nature
rest with the President. The President obvi-
ously cannot consult with Congress about
whether to consult That would itself be a
form of consultation. If the President could
gO that far, there would not be a problem
and we could just accept the rule.
.1?143. V. Nixon 418 U.S 583419741
Utiles 1:18.. Senate Select. Comninter on Meal-
Dence. 100th Cowes. 25.Beeston. haellipeoes
Oversight Act of 1988. 8, Rept. 100-2/8, pp. la. 24.
28.
108/0 INS V. auutha. 482 12.13, 010 (1583k
"U.S. Boom of Recamentattm. Permanent
Select Onsmittee an Intelligent" 8ntecemottfte on
LotentstIon. 100t12 0313$.. lel fkas. Ihrrins. on
B.R. 1013. 8.R. 1321. and Other-P/000mM Which
ffr....44... -A
n,,,-Inecifiarl in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
L.)
April 27, 1988 CONGRESSIONAL RECORD ? Extensions of Remarks
DICK CHENEY'S PAPER ON CON-
GRESSIONAL OVERSIGHT OF
COVERT OPERATIONS
HON. HENRY J. HYDE
OF ILLINOIS
IN THE HOUSE OF REPRESENTATIVES
Wednesday, April 27, 1988
Mr. HYDE. Mr. Speaker, today I am asking
that we publish the last portion of DICK CHE-
NEY'S paper for the American Bar Association
on executive and legislative roles in covert op-
erations. The previous two installments were
published in the CONGRESSIONAL RECORD of
April 20 and 21.
In his conclusion, Congressman CHENEY,
who formerly served as President Ford's
White House Chief of Staff, states that the
current procedures for handling legislative-ex-
ecutive disputes over covert action are woe-
fully inadequate. He proposes an alternative
approach which departs from both past prac-
tices and the proposed 48 hour legislation.
Before voting on the later, I believe we are
obligated to study his seven suggestions as a
serious alternative.
CLARIFYING LEGISLATIVE AND EXECUTIVE
Rotes IN COVERT OPERATIONS?PART III
(By Dick Cheney)
UNDERLYING ISSUE: SUBSTITUTION FOR PUBLIC
DEBATE
Underlying the dispute over notification is
a more basic issue. Congress insists on noti-
fication because the executive's consulta-
tions with the intelligence committees sub-
stitute for the open debate and deliberation
available in other policy arenas. The com-
mittees thus serve as a forum for mediating
the tension between the Constitution's two-
side concern for security and informed con-
sent. On the whole, they are not simply bar-
riers for Presidents to overcome. In good
times, they can help the Presidents build
the needed political support for operations
when the normal public tools for building
such support cannot be used.
But what happens when there is no con-
sent? That is, what if the committee, or a
significant proportion of its members, think
a particular covert operation is a bad idea,
Sometimes, the committee can persuade the
executive branch to change its mind. But
what if persuasion does not work?
One answer offered by some of my col-
leagues is that no covert actions should be
undertaken unless they are supported by a
bipartisan consensus. It sounds good to say
foreign policy should be bipartisan, but that
Is no answer to actual legislative-executive
branch conflicts. The fact is that we only
have to be concerned about managing con-
flict when there is no consensus about what
should be done. Insisting upon consensus as
a precondition for action is equivalent to
saying the President should not act in the
face of disagreement. In effect, it is equiva-
lent to taking the President's- power and
giving it to Congress, In fact, demanding
consensus could be worse than requiring an
up or down vote. If- taken seriously, the
President would need the support of a
super-majority before he could do any
thing. A consensus requirement, therefore,
would be a decision rule weighted heavily
toward the inaction side of any action-
versus-inaction dispute. In the real world of
breaking events, it is important to recognize
that inaction is a form of action or decision.
To require or expect a consensus before
action, in other words is only one possible
answer to questions that should be articu-
lated more clearly and openly. Some of the
questions are: Who should hold what levers
at what stage of the process? Under what
political and legislative conditions should
the presumption be weighted toward the
President or toward Congress? That is, what
rules should decide who prevails under con-
ditions of stalemate is itself a form of deci-
sion that has policy consequences? In
normal policy arenas, Presidents can always
consider responding to stalemate by trying
to persuade the public. For covert actions, it
Is first necessary to decide the ground rules
under which public debate should be per-
mitted or required. My final question there-
fore is, under what conditions should Con-
gress, on Its own initiative, be able to force a
debate about particular covert operations
Into the public arena?
The current procedures for handling legis-
lative-executive disputes are woefully inad-
equate, in my opinion. As the situation now
stands, congressional opponents of a par-
ticular operation have two courses available
to them if Iluiet persuasion fails. One is to
leak. That method is criticized by everyone
in the abstract, but no one can deny that it
happens. My colleague Henry Hyde talked
about this problem earlier today, and we de-
voted a chapter of the Iran-Contra minority
report to specific examples of congressional
leaks.23 It is no defense on this issue to say
the executive branch leaks too. In point of
fact, the executive branch does not tend to
leak highly compartmented information
about ongoing operations. Yes, we do need
to have a tightening, and more vigorous
prosecution, of the laws governing unau-
thorized disclosures of classified informa-
tion by executive branch personnel, and
others. But the fact that unauthorized be-
havior occurs in the executive branch does
not make the same kind of unauthorized,
unilateral behavior appropriate for Con-
gress in interbranch policy conflicts.
The other method currently available to
Congress is a fully legitimate one. It is to
cut off funding for a particular operation by
adding a limitation amendment to an au-
thorization or appropriation bill. That Is
what Congress did with the Clark Amend-
ment on Angola and the Boland Amend-
ment on Nicaragua. There are two problems
with this approach. First, the Boland
Amendment was a very small part of a more
than 1,200 page government-wide continu-
ing resolution. In order to veto the amend-
ment, the President would have been forced
to shut down the whole government just
three weeks before an election. This increas-
ingly used procedure, in other words, is
meant to, and does, weaken the President's
bargaining power.
The second problem with current proce-
dures has to do with who makes the decision
to force public debate. I am not talking here
about an unauthorized disclosure by a single
person, but a decision authorized by a com-
mittee majority to take an issue to the full
House and Senate floor. We can see the
same problem even more clearly by. consid-
ering a bill my colleague Lee Hamilton in-
troduced in the 99th Congress, H.R. 4976.
That bill was reported favorably in 1986,
after partisan votes, by both the Intelli-
gence and Foreign Affairs committees" and
Is Report cat the Congressional Cbminittees, Inves-
tigating the Iran-Contra Affair, Minority Report,
ch. 13, pp. 575-79.
"U.S. Souse of Representatives. Permanent
Select Committee on Intelligence, 99th Congress,
VI Session. Report to accompany H.R. 49/6. Re-
quiting That Any United States Government Sup-
Port For Military or Paramilitary ?Perak:41s in
Agnola Be Openly Acknowledged and Publicly De-
bated. ELFtcpt, 00-so8. Part I (March 25. 19131); U.S.
Hose. ofRepresentatives. Committee on Foreign
Affalig. ibith Congress. 24 Session. Report to-sc-
E 1263
was reintroduced in the 100th Congress by
Rep. Matt McHugh as H.R. 3633.
Under the Hamilton bill. the President
would have been prevented from helping
the Angolan resistance unless Congress first
held a public debate and then voted to sup-
port such aid. The bill was specific to
Angola, but Hamilton made it clear he be-
lieved that its principles about public de-
bates and votes should apply to all covert
actions about which there is significant con-
troversy. Hamilton thus would have taken
the current procedures an additional step.
Under current procedures. the Intelligence
Committee can use a limitation amendment
to insist on a public debate and vote in the
first budget cycle after a President initiates
an action. Hamilton thus would have de-
prived the President of his constitutional
power to initiate controversial actions by de-
manding a public debate and vote before the
action could begin.
The problem the Hamilton bill shares
with the typical limitation amendment is
that they both combine deliberation by
Congress with public disclosure and debate.
Unfortunately, even though public discus-
sion may seem as if it is a motherhood-and-
apple-pie issue, it is not neutral with respect
to policy results. Like the related consensus
requirement, holding a public debate is in
itself a decision that precludes some actions
and favors others. In fact, the idea of hold-
ing a public debate over a covert operation
is an oxymoron. There is no way to debate
an operation in public and still keep it
secret. The decision to debate, therefore, is
the same as a decision not to proceed covert-
ly. It could be argued that controversial
policies should not be conducted in secret.
But since some programs cannot be conduct-
ed at all any other way?for example, ones
involving the help of other countries and in-
dividuals whose support of the United
States could be dangerous to them if
known?debating an operation can some-
times have the same effect as killing it.
AN ALTERNATIVE APPROACH
I have no quarrel with the idea that Con-
gress may vote to kill an operation with
which it disagrees. I have a real problem,
however, with the idea that any group of
members, well short of a majority of both
chambers, can force an operational result by
demanding a public debate and vote. There
must be a better way to manage,legislative-
executive conflicts.
The current approach certainly does have
some problems. We have seen that it too
often breeds frustration and mistrust in
both the legislative and executive branches.
On issues of deep policy conflict, where
each side considers the other's policy not
Just bad but potentially disastrous, frustra-
tion and mistrust too often lead each side to
bend the rules or engage in other forms of
behavior that breed further mistrust, Poi-
soning future attempts at interbranch coop-
eration. I want tO emphasize here that I am
not talking about a one-sided problem. Con-
gress had every reason to be angry about
the way the National Security Council staff
deceived us about the Contra resupply
effort. But the President has just as much
cause to be angry about the way the Speak-
er and the Rules Committee use their
scheduling power to delay, prevent or struc-
ture floor votes, about the way members can
unilaterally decide that a previously covert
operation is ripe for public debate, and-
company H.R. 4976. Requiring That Any United
States Government Support Por Military or Para-
military Operations in Angola Be Openly Acknowl-
edged and Publicly Debated, H.Rept. 99-508. Part
II (May 16. 1986).
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04 : CIA-RDP90M01264R000100070030-8
-
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264R000100070030-8
CONGRESSI NAL RECORD ? Extensions of Remak)
E 1264 April 27, 1988
about the incessant problem of leaks. Each
, side, has good reason to think the other has
contributed to a breakdown of cornitY.
What we need, therefore, is a modified set
of procedures that will permit each side to
reco
role. In this spirit, I offer the follow-
ing as a framework for amending the Intelli-
gence Oversight Act.
s ould retain the consti-
tutional power to initiate a covert action,
even if some Members of Congress consider
the operation to be controversial. This prin-
ciple is accepted in the pending 48-hour bill
but not in the principle underlying the
Hamilton bill.
(2) Requiring notification within 48 hours
can be accepted in general, but only if there
is an escape clause for the President to
invoke unilaterally in exceptional circum-
stances.
(3) When the President believes that ex-
ceptional circumstances require him not to
inform Congress within 48 hours, Congress
may want to follow Lloyd Cutler's sugges-
tion and require the President to notify the
intelligence committees of the fact that
there now exists a finding whose contents
temporarily are being withheld.
(4) If Congress wants to consider cutting
off funds for a particular operation, the de-
cision to consider this option should not
have to be made in public. Instead, such a
Proposal should be offered in a separate bill
that puts all identifying information in a
classified annex. Such a bill should have
privileged access to the House and Senate
floor.
(Alternative to 4) Congress may want to
continue using amendments to authoriza-
tions and appropriations bills as the vehicles
for cutting off a covert operation. I would
prefer requiring separate bills, but this may
be a necessary political compromise. I
firmly believe, however, that such amend-
ments should not be allowed in continuing
resolutions unless and until the President is
given an item veto. In addition, any limita-
tion amendment should include expedited
procedures to guarantee a separate, subse-
quent, up or down vote on the same oper-
ation by the full House and Senate. In all
such limitation amendments, subsequent
bills, and accompanying reports, as with the
separate bills described in (4) above, all
identifying information should appear only
In a classified annex.
(5) Debate by the full House and Senate
should be in executive session, with severe
punishment for leaks. I would be willing to
go so far as to say that leaking by members
of Congress and staff should be considered
criminal. The Supreme Court decision in
Gravel v. U.S. made it clear that the Speech
and Debate Clause protects members of
Congress and staff only in work that relates
to their legislative business.25 I would argue
that because all legislative business under
these procedures would be conducted in
secret, there would be no defensible legisla-
tive reason for public disclosure. If Members
are skittish about the Speech and Debate
Clause, however, I would pursue expulsion
and findings of contempt of Congress
against _members or staff who disclose. In
addition, I would require the Speaker of the
House and the President Pro Tempore of
the Senate to open debate by declaring that
the House or Senate is in executive session
to discuss sensitive national security inf or-
mation, and that members will be held sub-
ject to prosecution, contempt proceedings.
or expulsion, for disclosure.
(6) If the President vetoes a bill that cuts
of f funds for a covert operation, his veto
message should be classified, and any over-
de vote should take place in an executive
session governed by the same stringent se-
crecy rules as the initial debate.
(7) If the President falls to muster Con.
lanai support for an operation, or his
is overridden, it then will be up to the
ent to decide whether to make a
public case for the operation. If the Presi-
dent decides not to do so. all of the preced-
ing steps will remain secret, and the Pre.si-
t will be bound by the result.
I believe that the above procedures will go
a long way toward restoring the President's
constitutional role, while retaining and reaf-
firming the appropriate sphere for Congres-
sional action. The President could continue
to initiate operations and Congress could
continue to terminate extended ones of
which it disapproves. The main difference is
that Congress would not have to blow an op-
eration's cover by deciding to debate it.
That would help preserve the President's
power in some respects. If stringent secrecy
rules were properly enforced, however,
these procedures could also, paradoxically,
help satisfy Lee Hamilton's desire to see
controversial issues more widely discussed
within Congress. There is no reason deliver-
ation by Congress necessarily has to mean
public disclosure.
The general effect of these procedures,
however, would be to set guidelines to re-
place the vague notions of "controversy"
and "consensus." Presidents would still have
to maintain significant support in Congress
to continue an extended operation under
the cover of secrecy, but they would not
have to maintain the super-majority of an
overwhelming consensus. In general, Presi-
dents would be limited to operations that
support the prevailing conventional wisdom
about the nation's policy objectives. If the
President wanted to change the convention-
al wisdom, he would have to make a public
case for his position. But the decision to go
public would rest with the person who
wants to take 'action, not with those who
want to stop it. The President has a duty to
persuade the public when he wants to mar-
shal support for a new policy direction. But
the President also should have the discre-
tion to decide that a particular objective is
not worth, or is not consistent with, such an
effort. When a President makes the latter
decision, Congress has the duty to establish
procedures that make it possible for the two
branches to proceed cooperatively. '
Legislative-executive relations broke down
- during the Iran-Contra Affair. Congress
made the President pay a stiff price for that
breakdown, and the President has taken
several important steps to improve proce-
dures on his end of Pennsylvania Avenue.
Now, we ought to look at what we can do on
our end. The way to improve legislative-ex-
ecutive relations is with procedures that en-
courage each branch to respect the proper
role of the other. Comity comes through
hard work on a daily basis. But the first
step must be mutual respect.
" Gravel v. U.S. 408 U.S. 806 (MI).
ANDREW K. SORDONI III, HON-
ORED FOR COMMUNITY SERV-
ICE
HON. PAUL E. KANJORSKI
OF PENNSYLVANIA
IN THE HOUSE OF REPRESENTATIVES
Wednesday, April 27, 198
Mr. KANJORSKI. Mr. Speaker, it is my
pleasure to draw your attention to Mr. Andres
J. Sordoni III, who will be honored tonight by
the Greater Wilkes-Barre Society of Fellows
and the Anti-Defamation League of WOW
Irrith for his outstanding contribution to the
Wyoming Valley community.
I have known Andy Sordoni for as long as I
can remember, our families have been friends
for generations. Although he easily could have
relocated his very successful businesses any-
where in the country, he chose to remain in
his native Wyoming Valley. His contributions
to the community are so completely interwo-
ven into the fabric of the Wyoming Valley that
it is almost impossible to imagine our commu-
nity without him. He serves as president of the
Sordoni Foundation, a philanthropic organiza-
tion which has provided countless grants for
education, health care, economic develop-
ment, social services, and the fine arts.
Mr. Sordoni is a director and past chairman
of the Pennsylvania Chamber of Business and
Industry, Pennsylvania for Effective Govern-
ment, and the Pennsylvania Business Round-
table. He is a director of the Committee for
Economic Growth, Geisinger-Wyoming Valley
Medical Center, Pennsylvania Economy
League, and the public television station,
WVIA Channel 44. By supporting economic
development efforts in northeastern Pennsyl-
vania, Mr. Sordoni has shown the kind of fore-
sight and enthusiasm which has led to the
current economic resurgence in the Wyoming
Valley. C-Tec Corp. which Mr. Sordoni chairs,
is a leader in the telecommunications industry,
as well as cable television, information serv-
ices, consulting engineering, and facilities
management Mr. Sordoni is also chairman of
Sordoni Enterprises, Inc., Sordoni Construc-
tion Services, Sterling Industrial Corp., and
Whitman Tower, Inc.
Mr. Speaker, Andrew J. Sordoni III, is more
than a pillar of the community, he and his
family are the foundation. I am pleased to join
my friends at the Greater Wilkes-Barre Society
of Fellows and the Anti-Defamation League of
B'nai B'rith in honoring Mr. Sordoni for his out-
standing community service.
NO VICTORY THROUGH
SURRENDER
HON. CHARLES B. RANGEL
OF NEW YORK
IN THE HOUSE OF REPRESENTATIVES
Wednesday, April 27, 1988
Mr. RANGEL. Mr. Speaker, syndicated col-
umnist A.M. Rosenthal wrote a column which
appeared in the New York Times of Friday,
April 22, 1988, entitled "No Victory Through
Surrender." In his column Mr. Rosenthal re-
marks that Democratic Presidential candidate
Jesse Jackson was asked on the campaign
trail in New York, "since it is so obvious that
the country is not winning the war against
drugs, why not try legalization?" Mr. Jackson's
response was, "you do not win a war by sur-
render."
Mr. Speaker, Jesse Jackson deserves credit
for elevating the issue of drug abuse to the
forefront of this year's political campaign.
Mr. Rosenthal in his editorial marshals the
arguments of the proponents of legalization,
namely that:
Hundreds of thousands of people are
forced to break the law because society re-
jects their particular narcotic of choice
while accepting alcohol and tobacco. Hun-
dreds of millions of dollars spent on law en-
Declassified in Part - Sanitized Copy Approved for Release 2012/12/04: CIA-RDP90M01264Rnnn1 rinn7nn,zn 0