H.R. 3822, TO STRENGTHEN THE SYSTEM OF CONGRESSIONAL OVERSIGHT OF INTELLIGENCE ACTIVITIES OF THE UNITED STATES

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• Sequence Number: 1
• Publication Date: March 10, 1988
• Content Type: OPEN SOURCE

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MDR. 100449 ?1 V 1 MAW 11111111 1 UM SYSTEM OF CONGRESSIONAL
OVERSIGHT OF INTELLIGENCE ACTIVITIES OF THE UNITED
STATES
HEARINGS
BEFORE THE
- SUBCOMMITTEE ON LEGISLATION
OF THE
PERMANENT.
SELECT COWTTEE ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
ONE HUNDREDTH CONGRESS
SECOND SESSION
FEBRUARY 24 AND MARCH 10, .1988
U.S. GOVERNMENT PRINTING OFFICE
85-813 WASHINGTON : 1988
For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20902
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PERMANENT SELECT COMMIrILE ON INTELLIGENCE
(Established by H. Res. 658, 95th Congress, 1st session)
LOUIS STOKES,
ANTHONY C. BEILENSON, California
ROBERT W. KASTENMEIER, Wisconsin
ROBERT A: ROE, New Jersey
MATTHEW F. McHUGH, New York
BERNARD J. DWYER, New Jersey
CHARLES WILSON, Texas -
BARBARA B. KENNELLY, Connecticut
DAN GLICKMAN, Kansas
NICHOLAS MAVROULES, Massachusetts
BILL RICHARDSON, New Mexico
Ohio, Chairman
HENRY J. HYDE, Illinois
DICK CHENEY, Wyoming
BOB LIVINGSTON, Louisiana
BOB McEWEN, Ohio
DAN LUNGREN, California
,BUD SHUSTER, Pennsylvania
Thomas K. LATIMER, Staff Director
MICHAEL J. O'NEIL, Chief Counsel
THOMAS R. SmKgroN, Associate Counsel
SUBCOMMITTEE ON LEGISLATION
MATTHEW F. McHUGH, New York, Chairman
NICHOLAS MAVROULES, Massachusetts
BILL RICHARDSON, New Mexico
LOUIS STOKES, Ohio
ROBERT W. KASTENMEIER, Wisconsin
DAN GLICKMAN, Kansas
BOB LIVINGSTON, Louisiana
BUD SHUSTER, Pennsylvania
DAN LUNGREN, California
BERNARD RADIO, Counsel
STEPHEN D. NELSON, Counsel
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CONTENTS
HEARING DAYS
Page "
Wednesday, February 24, 1988 1
Thursday, March,10, 1988 133
LIST OF WITNESSES
WEDNESDAY, FEBRUARY 24, 1988
Testimony of the Honorable William H. ,Webster, Director of Central Intelli-
gence 7
Testimony of the Honorable Clark M. Clifford, former Secretary of Defense 46
Testimony of the Honorable John H. Buchanan, Jr., chairman, People for the
American Way 74
Testimony of the Honorable Lee H. Hamilton, Member of Congress 97
Testimony of Dr. Allan E. Goodman, associate dean, School of Foreign Serv-
ice, Georgetown University 116
THURSDAY, MARCH 10, 1988
Testimony of the Honorable Frank C. Carlucci, Secretary of Defense 213
Testimony of Lt. Gen. Brent Scowcroft, former Assistant to the President for
- National Security Affairs 236
Testimony of Dr. George A. Carver, -Jr., Senior Fellow, Center for Strategic
and International Studies 239
Testimony of Dr. Gregory _Treverton, Senior Fellow, Council on Foreign Rela-
tions 316
APPENDIX
Appendix A, H.R. 3822 337
Appendix B, letter of the Honorable Clark M. Clifford 347
Appendix C, letter of Dr. Allan E. Goodman 352
Appendix D, letter of Louis Henldn 354
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H.R. 3822, TO STRENGTHEN THE SYSTEM OF
CONGRESSIONAL OVERSIGHT OF INTELLI-
GENCE ACTIVITIES OF THE UNITED STATES
WEDNESDAY, FEBRUARY 24, 1988
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON LEGISLATION,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:00 a.m., in room
2203, Rayburn House Office Building, Hon. Matthew F. McHugh
(Chairman of the Subcommittee) presiding.
Present: Representatives McHugh, Stokes, Livingston, Shuster,
Richardson, Glickman, Hyde and McEwen.
Staff present: Thomas K. Latimer, Staff Director; Michael J.
O'Neil, Chief Counsel; Thomas R. Smeeton, Associate Counsel; Ber-
nard Raimo, Jr., and Stephen D. Nelson, Counsel; Jeanne M.
McNally, Clerk; Karen W. Schindler; Angel R. Torres; and Merritt
R. Clark.
Chairman McHuGH. The Committee will please come to order.
Today the Subcommittee continues its hearings on legislative
proposals designed to improve congressional oversight of covert op-
erations. These hearings were initiated last April following disclo-
sure that the Reagan administration had covertly sold arms to
Iran, and that profits from the sale of those arms had been divert-
ed to finance the operations of the Nicaraguan contras.
While that disclosure raised many questions that have been ad-
dressed elsewhere, our hearings have focused primarily on whether
this secret operation was consistent with current law governing
covert activities and what changes may be needed to avoid similar
mistakes in the future.
The responsibility for formulating U.S. foreign policy is shared
by the Executive and Legislative Branches of our government, and
generally policy decisions are debated openly. However, in excep-
tional circumstances the security interests of the United States re-
quire that foreign policy be formulated and conducted in secret; in
those cases, special procedures apply.
Currently, the law provides that the Intelligence Committees of
Congress must be kept "fully and currently informed of all intelli-
gence activities . . . including any significant anticipated intelli-
gence activity." This provision establishes a general requirement
that the Intelligence Committees must be given prior notice of any
covert operation. However, the law allows two exceptions to this
general rule.
(1)
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First, "if the President determines it is essential . . . to meet ex-
traordinary circumstances affecting vital interests of the United
States," he may restrict prior notice to the House and Senate lead-
ership and to the Chairmen and Ranking Minority Members of the
two Intelligence Committees, the so-called "Gang of Eight."
Second, the law also recognizes that in certain undefined cases
the President may withhold prior notice entirely, but in such cases
he is required to "fully inform the Intelligence Committees in a
timely fashion."
In the case of the arms transfer to Iran, the President signed his
finding authorizing the transfers in January, 1986, well after the
operation had begun. The President never provided notice of this
operation. Indeed, it was not until November of 1986, a full 10-plus
months after the President signed his finding, that anyone in Con-
gress learned of the operation, and then only because it was dis-
closed in a foreign publication.
No one who testified before this Subcommittee last year argued
that Congress had received timely notice of the sale of arms to
Iran. However, in a letter and legal memorandum submitted to
this Subcommittee and made a part of the record, the Justice De-
partment took the position that notice "in a timely fashion" means
whatever the President in his sole discretion says it means. As the
Iran arms case clearly demonstrates, if the Justice Department's
position is allowed to stand, it could effectively deny the Intelli-
gence Committees pertinent information about significant policy
decisions for very long periods of time.
To many of us in Congress, the administration's position is incon-
sistent with the clear intent of existing law and would preclude the
Intelligence Committees from meeting their responsibility to exer-
cise meaningful oversight.
Moreover, the requirement for timely notice and consultation is
designed not simply to protect prerogatives of Congress, but to give
the President the benefit of independent counsel on important
policy decisions. If the President had told the Intelligence Commit-
tees that he contemplated selling arms to Iran, strong objections
would surely have been expressed. Members on both sides of the
aisle have so stated in these hearings. While their objections would
have been advisory only, they might have helped the President
avoid embarking on a policy that was flawed in both its conception
and implementation. And that, in short, is what the oversight proc-
ess is all about: helping to ensure that covert actions advance
rather than damage the national security interests of the United
States.
The purpose of our hearing today is not to condemn past mis-
takes but to determine whether the oversight process can be
strengthened so that we avoid similar mistakes in the future. The
specific focus of our hearing is H.R. 3822, which represents a re-
finement of legislation introduced last February. It incorporates
many of the recommendations of the select committees that inves-
tigated the Iran-contra affair.
This bill requires that the Intelligence Committees, or the so-
called "Gang of Eight," be given prior notice of covert actions. In
rare cases, where "time is of the essence" and the President deter-
mines it is important to the national security interests of the
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United States, the President may initiate a covert operation with-
out giving prior notice, but in such cases he would be required to
notify the Committees within 48 hours.
H.R. 3822 would also do the following.
It would require that a Presidential finding initiating a covert
action be in writing, that it specify each agency, department or
entity authorized to fund or participate in the activity, and that it
state whether non-governmental third parties will participate in
the action.
It would permit an oral finding when immediate action is neces-
sary but require that a contemporaneous record be made and that
the finding be committed to writing within 48 hours.
It would prohibit retroactive findings and prohibit findings from
authorizing an action that violates any law of the United States.
It would define covert operation to include requests made by the
U.S. Government to other countries or private citizens to conduct a
special activity on behalf of the United States.
And it would prohibit the expenditure of funds on covert actions
until a finding has been made.
A similar bill was reported favorably by the Senate Intelligence
Committee on January 27th of this year by a vote of 13 to 2.
Currently, this Committee is engaged in discussions with repre-
sentatives of the Intelligence Community, the Department of Jus-
tice, and the National Security Council to perfect the bill. I trust
that we can continue to work together on these issues, and I very
much appreciate the suggestions and advice the Intelligence Com-
munity has already provided.
In prior hearings the administration representatives have been
strongly opposed to any change in existing law. Of course, they
have every right to do so, but I would hope that we can arrive at a
constructive accommodation.
As I said earlier, our purpose here is not to replow the ground of
the select committees that investigated the Iran-contra episode.
Yet, it would be a mistake to ignore their findings and recommen-
dations.
In their final report, a bipartisan majority found as follows:
The common ingredients of the Iran and contra policies were secrecy, deception,
and disdain for the law. A small group of senior officials believed that they alone
knew what was right. They viewed knowledge of their actions by others in the Gov-
ernment as a threat to their objectives. They told neither the Secretary of State, the
Congress nor the American people of their actions. When exposure was threatened,
they destroyed official documents and lied to Cabinet officials, to the public, and to
elected representatives in Congress. They testified that they even withheld key facts
from the President.
The report then concluded as follows:
Congress cannot legislate good judgment, honesty, or fidelity to law. But there are
some changes in law, particularly relating to oversight of covert operations, that
would make our processes function better in the future.
Many of those ..recommendations are contained in H.R. 3822. The
question we now face is whether we are, content to let the recom-
mendations of the select committees gather dust, or whether we
are going to enact the kinds of changes they recommended. We
have a distinguished group of witnesses to help us address that
question today, and I look forward 'to their testimony.
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Before calling upon our first distinguished witness, however, I
would like to recognize the Chairman of our full Committee, the
Hon. Louis Stokes from Ohio.
Mr. STOKES. Thank you very much, Mr. Chairman.
I join this morning with Chairman McHugh in welcoming today's
witnesses as we continue hearings on intelligence oversight legisla-
tion. Each of them brings a distinct and useful perspective based on
many years of experience to the important issues with which the
Committees must deal.
The prior notice provision of this bill and of the Senate bill S.
1721 has caused a great deal of controversy, but as has been point-
ed out, there are other important provisions. None of them are cast
in concrete, and we have and we will work with the administration
to accommodate as best we can traditional intelligence interests
and to correct drafting mistakes or omissions.
I think I speak for all of us when I state that we are not seeking
confrontation or endeavoring to criticize the administration for the
sake of criticism or partisan advantage. Some of us?I think most
of us?see a problem and are trying to correct it. There is no ulteri-
or motive.
Part of the problem is the apparent ambiguity of the current
statute. In this regard, I would note that in 1980, during the Carter
administration, a majority of the Intelligence Committee preferred
a more clear and concise version of the prior notice provision than
was enacted. At that time, however, the Committee deferred to a
Democratic Senate and a Democratic President and compromised
on the vague language of the timely notice provision.
The arguments made at that time in the Committee were that,
considering the fate of the Nixon administration, no President
would ever in the future withhold notice of a covert action from
the Congress. The Committee was also told it was better to proceed
on the basis of an expectation of trust, rather than pursuant to a
strict statute.
Well, the Intelligence Committee, of which I was not then a
Member, and the House of which I was a Member, were persuaded.
And now I am here today, and, as Yogi Berra said, "It's deja vu all
over again." We are told that the law should not be changed be-
cause of an aberration like Iran-contra and that it is better to avoid
strict reporting requirements that offend the Executive Branch.
Mr. Chairman, I appreciate the fine work that you have done on
these hearings and on the bills we have introduced. I would also
like to publicly commend Senators Boren and Cohen for the leader-
ship they provided on these issues.
As you know, in January S. 1721, a bill substantially the same as
H.R. 3822, was reported favorably by the Senate Intelligence Com-
mittee by a vote of 13 to 2. While we may not be able to match
these numbers, I think we should try. In any case, we hope to
report an equally worthy bill very shortly.
As I noted when Mr. McHugh and I testified on S. 1721 before
the Senate Intelligence Committee,
Although S. 1721 would revise the structure of the Intelligence Oversight Act, its
substantive changes in law are few. Indeed, they are more in the nature of refine-
ments of a statute now seven years old than they are structural changes in congres-
sional oversight. They are, nonetheless, essential revisions.
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Congress established its Intelligence Committees to act as surro-
gates for the House and the Senate in reviewing covert actions.
Since those operations, in effect, are secret foreign policy initia-
tives, prior notice?prior consultation?takes the place that exten-
sive debate plays with respect to other foreign policy decisions.
Congress plays an important constitutional role in U.S. foreign
policy debate. It cannot perform that role at all with -respect to
covert action if it is denied, through its surrogate committees, the
most basic knowledge of such covert actions.
I thank you very much, Mr. Chairman, for yielding to me.
Chairman, McHuGH. Thank you very much, Mr. Chairman, and
thank you for your leadership on this issue.
It is my pleasure now to introduce our Ranking Republican
Member for any opening remarks he would like to make, Mr. Liv-
ingston of Louisiana.
Mr. LIVINGSTON. Thank you, Mr. Chairman.
I appreciate the opportunity to make a statement. I will not
make a formal statement at this time, although I would like to
-make some comments. I would like to reserve the right to submit a
formal statement for the record later on.
I would like to say that in my view, the laws on the books with
respect to intelligence activities are indeed sufficient to provide
adequate congressional _oversight of intelligence activities, and in
fact they have permitted us to provide a great deal of oversight
over the facts at hand, the facts which prempted this hearing and
the bill that is before us.
Iran was an extraordinary situation. It was extraordinary for the
administration. It was extraordinary for the country. But the fact
remains that Congress has looked extensively at the facts of that
entire episode, and those who have stepped beyond the bounds of
propriety have been dealt with and perhaps have paid dearly for
whatever mistakes they have made. I happen to think that all of
the people involved in that episode were well-intentioned and had
nothing but the best interests of the country at heart. But be that
as it may, they have paid dearly, primarily because Congress has
acted and acted severely.
I think that it would be .a great mistake for us to use the facts of
the Iran-contra episode to jump in and pass, willy-nilly, legislation
to avoid a recurrence of similar activities. There is an old saying in
the courtroom that "bad facts make bad law," and I think the
same can be said with respect to legislation and our activities here
in Congress. We have an unusual situation with Iran-contra, but
we have laws on the books which deal with oversight. They have
been appropriate in the past and they will be in the future. If any-
body .abuses those laws, they will, as has been done in the past, be
dealt with severely.
But the bill before us is bad law, and it should not under any
circumstances, in my opinion, be passed. There are various exam-
ples of its deficiencies.- Those have been testified to in- two previous
hearings by the vast majority of witnesses that have appeared
before this committee. The most glaring example of problems pre-
sented by this bill occur in the requirements for prior notice by the
President to consult with Congress in advance of any covert activi-
ties or to provide them notice, at the very latest, after only a 48-
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hour leeway, to consult with at least the "Gang of Eight," if you
will, the leaders of Congress and of the Intelligence Committees.
The vast majority of the witnesses have testified against that 48-
hour provision. They have said it is unwarranted, and it is a dan-
gerous intrusion into the powers of the Chief Executive of the
United States.
The Minority report of the Iran Committees?you quoted from
the Majority Report, Mr. Chairman, I would like to quote from the
Minority Report?which talks about that. Nearly all of the Minori-
ty Members of the Iran-contra hearings concluded and said they
are convinced, that this approach would be unconstitutional. Equal-
ly important, we think it is not needed. The Members who think
they need new legislation underestimate the political leverage they
now have to ensure that a President will not abuse his inherent
power.
That is not the only evidence we have that this could be a bad
bill and a bad provision. Previously at one of these hearings, Mr.
Ray Cline, former Assistant to the Director of the CIA, said, in his
view, that "new amendments regarding the 48-hour notice provi-
sion prescribed an unwarranted rigidity with respect to timely noti-
fication. They are also counterproductive in the micromanagerial
congressional intrusion into the Executive authority of the Presi-
dent to conduct sensitive national security operations. . . . [M]y
belief, based on running clandestine and covert operations, is that
there would be a chilling effect from such close supervision by the
Congress." ?
And Admiral Stansfield Turner, former Director of the CIA
under President Carter, said, "I would have found it very difficult
to look such an individual in the eyes"?speaking about people who
were jeopardized while undertaking foreign operations, such as the
rescue of the people who took refuge in the Canadian Embassy
during the Iran hostage situation, and were hiding from the Irani-
ans in Iran?"I would have found it very difficult to look such an
individual in the eye and tell him or her that I was going to discuss
this life-threatening mission with half a dozen people in the CIA
who did not absolutely have to know, who were not involved in
supporting this activity," implying of course that if we consulted
the Members of Congress, the hazard to those people under life-
threatening situations would be all the greater.
So we have various people, most of the witnesses who have ap-
peared before us, who have said that this is a very dangerous provi-
sion and that the bill, if passed, would tie the hands of the Chief
Executive and would virtually halt all critical and reasonable intel-
ligence and defense activities through unnecessary congressional
interference and micromanagement. It would destroy the remarka-
ble gains the United States has made in world relations and unnec-
essarily jeopardize our security on the world front, and leave our
citizens around the globe open to a vastly increased threat of ter-
rorism and mayhem.
So, Mr. Chairman, for this reason and for others which I think
will be elaborated on by Judge Webster, a number of which are
critical to performance of the duties of the CIA to protect our secu-
rity and to conduct intelligence activities, I think this is a bad bill.
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I?
I would urge this Committee drop it right away and just to forget it
ever existed.
Thank you.
Chairman McHuGH. Thank you, Mr. Livingston.
We are very pleased this morning to have as our first witness the
distinguished Director of Central Intelligence, the Hon. William H.
Webster. Director Webster has been in his present position since
May of last year, and prior to that he served as Director of the FBI,
as Judge for the United States Court of Appeals for the Eighth Cir-
cuit, and as a U.S. Attorney for the Eastern District of Missouri.
Judge Webster, we appreciate your indulgence in listening care-
fully to our opening remarks, and we are delighted you are with us
this morning. Please proceed.
TESTIMONY OF HON. WILLIAM H. WEBSTER, DIRECTOR OF CEN-
TRAL INTELLIGENCE, ACCOMPANIED BY RUSSELL BRUEMMER,
GENERAL COUNSEL; DAVID PEARLINE, OFFICE OF CONGRES-
SIONAL AFFAIRS; JOHN HELGERSON, DIRECTOR, OFFICE OF
CONGRESSIONAL AFFAIRS; AND GEORGE JAMESON, OFFICE OF
GENERAL COUNSEL
Judge WEBSTER. Thank you, Mr. Chairman.
I am pleased to be here today to share some of my thoughts on
H.R. 3822, the Intelligence Oversight Act of 1987. The views ex-
pressed in this statement also reflect the position of the adminis-
tration, with respect to the issues my statement addresses. Other
administration witnesses have discussed, or will do so, the signifi-
cant constitutional problems that this bill raises as well as the
impact it may have on the activities and programs of other agen-
cies.
I will also draw your attention to the administration's position as
conveyed to the Congress in the President's legislative message last
month that a bill which fails to preserve the flexibility and author-
ity the President needs to conduct intelligence activities effectively
will not be acceptable to the President.
The bill being considered by the Committee today is similar in
many respects to a bill reported out of the Senate Intelligence
Committee last month. During its consideration of that bill, the
Senate Intelligence Committee invited me to provide my views. I
testified at that time on two issues: whether legislation was neces-
sary, and what practical impact the Senate bill would have on the
Intelligence Community. I intend to address both points in my tes-
timony today on the House bill.
As you are probably now aware, in my remarks before the
Senate Intelligence Committee I questioned the need for this type
of legislation. Although the Senate Intelligence Committee subse-
quently decided to recommend approval of the legislation, I still
strongly doubt that this legislation is a necessary response to the
concerns Members of Congress have expressed about the oversight
of special activities.
As you know, the President recognized last spring that there was
room for improvement in the way the two branches were meeting
their responsibilities, and he took concrete, substantial steps to es-
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tablish improved procedures to ensure that Congress is given the
opportunity to play its appropriate oversight role.
These new procedures in the form of a new National Security
Decision Directive on Special Activities (NSDD 286), which this
Committee has had for review in full and much of which was re-
cently declassified, clarify the rules by which special activities are
reviewed, approved, and reported to the Congress. In fact, many of
the proposals contained in H.R. 3822 are already contained in
NSDD 286. That is not surprising, because the procedures the
President has installed were developed following close and pro-
longed consultation with Members and staffs of the Intelligence
Committees.
While a Presidential directive is not the same as legislation, I ani
not persuaded that new legislation at this time is the best way to
address the concerns that Members have with the congressional
role regarding special activities. In my view, a legislative remedy
should, be employed only if it is clear that there is a basic deficien-
cy in the oversight process. That is doubly the case when the legis-
lative remedy proposed raises constitutional issues which threaten
to divide the two branches in an area where effective work places a
premium on cooperation.
The Iran-contra matter, while extremely serious, has not in ? my
view demonstrated that the system of congressional oversight of
the Intelligence Community established under current statutes is
seriously flawed. Many of the problems exposed in connection with
that unfortunate period were the rest of officials failing to follow
existing procedures and rules.
As the Committee is aware, I have taken steps within the CIA to
discipline those employees who failed to follow CIA procedures and
meet the standards of conduct expected of CIA employees or who
testified to Congress in a manner that was not candid or forthcom-
ing. Those actions, taken in light of the requirements defined by
current statute, in my view have adequately addressed the prob-
lems we found.
Similarly, to the extent that there were any procedural short-
comings demonstrated by the Iran-contra matter, they have al-
ready been addressed by the new Presidential directive within the
present statutory framework.
I would like, to emphasize that any legislation that is enacted
must not adversely affect the Intelligence Community's ability to
do its job.
In this connection, Mr. Chairman, the bill you introduced, and
the bill reported out of the Senate Intelligence Committee, have
sought to address constructively some of the important concerns I
and other administration officials raised before the Senate Intelli-
gence Committee when it considered its original bill. That bill, for
example, recognizes the need to report on special activities and in-
telligence collection in a manner consistent with due regard for the
protection of sensitive intelligence Sources and methods.
I am also pleased that neither the House nor the Senate bills re-
quire that the finding specify the identity of foreign countries as-
sisting the Agency in the conduct of special activities. The proviso
on protection of sources and methods, and the ability to protect the
identity of fOreign countries assisting us, will go a long way in as-
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suring friendly services and potential agents that source identify-
ing information will not be widely disseminated and possibly com-
promised.
While the House bill addresses several concerns previously raised
in my testimony before the Senate Intelligence Committee, there
are four areas of the bill that are troublesome. The first area of
difficulty involves the provision of the bill that requires notifica-
tion of a special activity to Congress, without exception, within 48
hours after the signing of a finding.
Last summer you received the views of the Department of Jus-
tice about the constitutionality of such a provision, so I will not ad-
dress that issue here. I have two concerns about this provision.
First, the fact that there is a sharp difference of interpretation
between the view of the Department of Justice and the position
embodied in this bill regarding this provision's constitutional valid-
ity will promote tension between the Executive and Legislative
Branches for years to come. In the intelligence area such tension
has the potential to disrupt the kind of cooperation and trust effec-
tive national policy requires.
Second, I believe that some allowance must be made for that
rare case where a limited delay in congressional notification is crit-
ical to preserve the absolute security of an operation when, for ex-
ample, lives are at stake.
Furthermore, it is worthwhile to note that any concerns about
excessive delay in congressional notification of a special activity
have already been addressed by NSDD 286. That directive requires
the National Security Planning Group to reevaluate at least every
10 days a decision to delay congressional notification of a given
finding. This will ensure that when a delay in notification is neces-
sary, the reason for that decision will be continually reassessed so
that the delay will be as short as possible. I repeat, however, that I
can think of few circumstances that Would ever necessitate such
extraordinary steps.
My second area of concern is with the definition of "special ac-
? tivities." This term is used to describe covert action operations.
There currently is no definition of the term "special activities" in
the law. The bill creates a special activities definition, but singles
out and applies to CIA a standard that is different from that ap-
plied to all other departments and agencies of the U.S. Govern-
ment.
For CIA, the bill defines a special activity to cover any operation
in a foreign country other than activities intended solely for ob-
taining necessary intelligence. This definition is the same as that
set forth in the Hughes-Ryan Amendment (22 U.S. Code Section
2422), which provides the existing statutory framework for deter-
mining whether an activity of the CIA in a foreign country re-
quires a finding.
By contrast, for all other departments and agencies, a special ac-
tivity is described as any activity conducted in support of a nation-
al foreign policy objective abroad which is planned and executed so
that the role of the U.S. Government is not apparent or acknowl-
edged publicly, and functions in support of such activity, but does
not include activities to collect necessary intelligence, or diplomatic
activities carried out by the Department of State or persons other-
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wise acting pursuant to the authority of the President. This defini-
tion is similar to that set forth in Section 3.4(h) of Executive Order
12333, issued by President Reagan on December 4, 1981.
I understand that in crafting these definitions of special activi-
ties in the bill, it was not your intention, Mr. Chairman, to change
in any way the current standard by which CIA determines whether
to obtain a finding to authorize a particular activity.
Unfortunately, Mr. Chairman, my general counsel, Russell
Bruemmer, who is seated behind me, has advised me that this defi-
nition, if adopted, may cause confusion about the standard used to
determine whether a finding is necessary to authorize an activity.
We have also requested the Department of Justice to examine this
issue, and they have reached a similar conclusion.
The proposed definition of special activities in the bill could alter
current practice. The Executive Branch, as the Committee knows,
has interpreted the Hughes-Ryan Amendment in a manner that we
believe is consistent with its legislative intent.
The Hughes-Ryan Amendment, if given an overly restrictive in-
terpretation, would require Presidential authorization for even the
most minor, or routine activities of the CIA overseas if they were
not related solely to intelligence collection. In my judgment, that is
not a proper interpretation and was never the intent of Congress in
enacting Hughes-Ryan.
The legislative history to Hughes-Ryan and the Oversight Act of
1980 contemplate a finding for those activities that truly can be
considered covert action operations. In this connection, the defini-
tion of special activities contained in the Executive Order gives
meaning to the language and intent of the Hughes-Ryan Amend-
ment in determining whether that law would require a finding to
authorize a particular activity.
Enacting H.R. 3822 as drafted would make it extremely difficult
to continue such an interpretation because the Executive Order
definition would by terms of the statute not apply to CIA. The
clear implication would be that Congress intends that the language
of Hughes-Ryan be given a more restrictive interpretation.
This could be construed to mean the following types of activities,
for which findings are not obtained today, would henceforth re-
quire specific Presidential authorization in every case no matter
how minor the CIA role: counterintelligence activities; support
given to the Department of State in the conduct of diplomatic ac-
tivities (this would include, for example, having the Chief of Sta-
tion present the U.S. Government position on a particular matter
to the Foreign Minister because of his close relationship with the
Foreign Minister, or arranging for secure transportation or a meet-
ing site for an ambassador or a diplomatic official); minor support
to the Department of Defense or Department of State in the evacu-
ation of Americans from foreign countries; minor support provided
to the DoD and ?other agencies through the purchase of equipment
or the provision of services under the Economy Act.
If we are in agreement not to alter the current practice within
CIA on whether to obtain a Presidential finding to govern a par-
ticular activity, I would urge the Committee to modify the defini-
tion of special activities contained in the bill.
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One approach would be to repeal the Hughes-Ryan definition and
use the Executive Order definition, of special activities to cover
every department or agency, including CIA. There are other possi-
ble ways to resolve our concern, and I have instructed my staff to
work with the Committee to come up with mutually acceptable lan-
guage. The key, again, I think we can agree, is formulating lan-
guage that will maintain the status quo.
I must add as a final note, moreover, that the definition proposed
in the bill today, as well as that in the Senate bill, are different
from that which I addressed when I testified before the Senate In-
telligence Committee. For that reason, I did not have the opportu-
nity then to express these concerns at the time of my previous tes-
timony.
My third area of specific concern is with Section 4 of the bill,
which amends Section 502 of the National Security Act of 1947.
Section 502(a) of the National Security Act limits the use of appro-
priated funds.
Currently, appropriated funds available to an intelligence agency
may be spent only if, one, funding for the activity has been author-
ized by Congress; two, in the case of release from the reserve for
contingencies, notice of the intent to release such funds is given to
the Intelligence and Appropriations Committees; or, three, in the
case of reprogrammings or transfers, the activity to be funded is a
higher priority intelligence activity, the need for funds for such ac-
tivity is based on unforeseen requirements, and notice is given to
the Intelligence and Appropriations Committees of the intent to
make funds available for the activity.
The bill would amend Section 502(a) of the National Security Act
to restrict expenditure of all funds, and not just appropriated
funds. I am concerned that this amendment would jeopardize our
authority to conduct certain activities which Congress has support-
ed in the past. Specifically, the amendment would restrict our abili-
ty to use income generated by proprietaries for certain expenses
necessary to make the proprietary appear as a commercial entity.
This would make it extremely difficult to operate our proprietaries
in a secure manner.
The amendment would also eliminate the authority of several
agencies in the Intelligence Community to make certain accommo-
dation purchases for other countries.
Finally, the amendment would eliminate our authority to receive
funds donated by other countries to finance special activities for
which a finding has been obtained.
I should emphasize that I have no objection to keeping the Com-
mittee generally informed of our activities in these three areas.
However, there has been no stated rationale for the need' for this
change, and in my view adoption of this provision would have a
very serious and detrimental effect on our continuing ability to
conduct special activities, liaison activities with foreign govern-
ments, and operations of proprietaries.
The fourth area of concern is with the provision of the bill
amendment Section 503 of the National Security Act, which cur-
rently provides for the reporting to the Intelligence Committees of
the transfer of defense articles or services in excess of $1 million by
an intelligence agency. The section would be ,amended to require
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?
the reporting of defense articles or services which are individually
worth less than $1 million but which aggregate to a figure more
than $1 million.
I do not believe it is necessary to change the current standard for
reporting the transfer of defense articles and services. Further-
more, I note that the provision does not provide standards to deter-
mine when defense articles or services should be aggregated.
Accordingly, if this provision remains in the bill in its current
form, I would urge the Committee to consider statutory language
or legislative history that would provide clear guidance on how the
Intelligence community should aggregate defense articles or serv-
ices for purposes of reporting to the Intelligence Committees.
There also are several other provisions in the bill that, while not
as worrisome as the ones I have touched on, would, as written, pose
problems for the Intelligence Community. My staff has already had
useful discussions with the Committee staff on these provisions.
In closing, Mr. Chairman, I would like to reemphasize to each of
you my personal commitment to making the oversight process
work. It has always been clear, and recent experience has again
demonstrated, that the implementation of the foreign policy of our
government, including special activities, can only be successful
when the Executive and Legislative Branches of Government work
together in an atmosphere of mutual respect and trust. This spirit
of cooperation can only occur if the Intelligence Committees re-
ceive the appropriate information needed to review and make in-
formed judgments on special activities, while at the same time en-
suring that this information is protected from unauthorized disclo-
sure.
The law should reflect not only the need for cooperation, but also
the President's responsibility for the conduct and management of
our intelligence and the importance to the Nation of ensuring that
the President has the necessary flexibility and authority to employ
our intelligence capability effectively.
As I have noted, the President has taken corrective steps to im-
prove the oversight system through a Presidential directive. At
CIA, I have approved a number of measures which will help to pre-
vent a repetition of the shortcomings in the Agency's performance
in the Iran-contra matter. In short, significant changes have been
made. I would respectfully submit that they should be given a
chance to work.
I am convinced that the current framework, and not new laws,
represents the most appropriate and effective means to achieve our
shared commitment to have Congress play an active, effective role
in the oversight of United States intelligence activities.
Mr. Chairman, that now concludes my statement. I would be
more than pleased to respond to your questions.
Chairman McHuGH. Thank you very much, Judge Webster.
The Committee will proceed with questions, as usual, under the
five-minute rule.
I do appreciate the fact that you are here today and, more impor-
tantly, your personal commitment to making the oversight process
work. As you said in your testimony, if more than policy implemen-
tation is going to be effective, we have to have a spirit of coopera-
tion and trust between the two branches. And one of your state-
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ments was particularly relevant: This spirit of cooperation can only
occur if the Intelligence Committees receive the proper information
needed to review and make informed judgments on special activi-
ties, while at the same time ensuring that this information is pro-
tected from unauthorized disclosure.
I think we all agree with that. The problem is that in the Iran-
contra affair, this clearly did not happen. I realize that some Mem-
bers would dismiss that episode as an aberration, and I hope it is.
Nonetheless, it is a real-life case; it happened. And the facts are
well known.
The substance is that the President signed a finding authorizing
sale of arms to Iran in January, 1986, and never provided notice to
the Congress until after the sales were disclosed by a foreign publi-
cation, more than 10 months later.
The law as presently written provides that in most cases there
will be prior notice, and I am sure you would agree there was no
prior notice to the Intelligence Committees or the 'Gang of Eight."
It then says that essentially in the President's discretion, he may
withhold prior notice but must given timely notice to the Intelli-
gence Committees. I will ask you if you think that was timely
notice.
In any event, the Justice Department, has said that whether or
not it was good policy, it was legal and that the President was
within his authority not to provide prior notice and not to provide
indeed any notice to the Intelligence Committees or the leadership
for more than 10 months after the authorization was signed. For
me at least, that poses the major problem.
You have indicated that the President has signed an Executive
Order which in essence says that the President voluntarily, at his
own discretion, will not do this again. He will in most cases at least
provide much more timely notice than that. But that can be with-
drawn any time this or another President chooses, and it is some-
thing solely within his discretion. From a congressional perspec-
tive, where we have certain responsibilities for oversight, this is
very problematic.
I would like to get your reaction to that observation, and com-
ment, if you will, on whether or not you believe this was timely
notice, and if not, can you give us any better definition of what
timely notice would be? We have said in our bill a period of 48
hours. That admittedly is an artificial period. There is no sacro-
sanct quality to that time. But certainly 10 months is unacceptable
to at least a majority of us on this Subcommittee.
And so, therefore, I would appreciate your observation first as to
whether or not the President's actions in the Iran arms sales case
were consistent with current law. Was it timely notice, and if not,
what is your conception of timely notice?
Judge -WEBSTER. Mr. Chairman, I won't presume to give the legal
opinions. They have been conveyed to you by other means. My own
sense is that in that situation, 10 months was not timely. Timely
does not have a definition unless you choose to give it one, but I
believe stimely means as soon as can reasonably be done, given the
factual Circumstances.
I would like to make clear in answering your question that the
CIA can for all circumstances I foresee provide that notice within
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48 hours if it comes through us, or make certain that it is made
available to the Committee provided that the requisite Committee
Members designated to receive that have not put themselves out of
the reach of secure communication, given that it is not a mechani-
cal process. It can be done in very short order, and most of the
findings are now being delivered well within that 48-hour period.
Historically, it is my understanding that ever since these laws
were in place there have been only three occasions when Congress
was not given very timely notice of findings, all of which ironically
involved Iran. My understanding is that those were the Canadian
situation to which reference was made, the planning for the rescue
attempt, and more recently, the Iran-contra issue.
My concern with the necessity for putting 48 hours into a statute
has to do with a tension that arises whenever you face this kind of
confrontational issue. In the past, the Congress and the President
have always been able to find some means to accommodate that
tension and provide some minor looseness in the joints.
In this case, the President has asserted that he will voluntarily
provide that notice within 48 hours except in the very rare circum-
stance that requires him to delay it. He has also publicly commit-
ted himself under the National Decision Directive to reassess that
decision, cause it to be reassessed by the National Security Council
Planning Group every 10 days. This is one of the approaches that I
advocated early on, because it was the making of an initial decision
not followed by any review of that decision that caused it to go up
on the shelf.
The National Security Planning Group, which is normally
chaired by the President and consists of the major Cabinet officers
involved with national security?the Secretary of State, the Secre-
tary of Defense, the Attorney General, Secretary of the Treasury,
with the Chairman of the Joint Chiefs and Director of Central In-
telligence participating as advisers?it would be very difficult in
my view for this group to continue to review every 10 days a de-
ferred finding and not quickly come to the conclusion that the ex-
traordinary reasons had expired and to give you proper notice.
There are a few circumstances that I could think of where that
potential for exception would be exercised by the President, and
survive a 10-day review test again. Nevertheless, it is my view that
we don't need to build that kind of tension and raise a constitution-
al issue if we have a system that works.
And given the very few times that the President has not provid-
ed the notice and his additional commitment now to do it within 48
hours or to review it every 10 days with his full National Security
Council is a very important and significant public commitment
from which I do not see how he could recede.
Chairman McHuGH. Thank you, Judge Webster.
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STATEMENT OF THE
DIRECTOR OF CENTRAL INTELLIGENCE
BEFNE THE PERrANENT SELECT corrITTEE ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
FEBRUARY 24. 198S
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MR. CHAIRMAN AND MEMBERS OF THE PERMANENT SELECT COMMITTEE
ON INTELLIGENCE, I AM PLEASED TO BE HERE TODAY TO SHARE SOME OF
MY THOUGHTS ON H.R. 3E22, THE INTELLIGENCE OVERSIGHT ACT OF.
1957. THE VIEWS EXPRESSED IN THIS STATEMENT ALSO REFLECT THE
POSITION OF THE ADMINISTRATION WITH RESPECT TO THE ISSUES MY
STATEMENT ADDRESSES. OTHER ADMINISTRATION WITNESSES HAVE
DISCUSSED, OR WILL DO SO, THE SIGNIFICANT CONSTITLTIONAL
PROBLEMS THIS BILL RAISES AS WELL AS THE IMPACT IT MAY HAVE ON
THE ACTIVITIES AND PROGRAMS OF OTHER AGENCIES. I WOULD ALSO
DRAW YOUR ATTENTION TO THE ADMINISTRATION'S POSITION, AS
CONVEYED TO CONGRESS IN. THE PRESIDENT'S LEGISLATIVE MESSAGE
LAST MONTH, THAT A BILL WHICH FAILS TO PRESERVE THE FLEXIBILITY
AND AUTHORITY THE PRESIDENT NEEDS TO CONDUCT INTELLIGENCE
ACTIVITIES EFFECTIVELY WILL NOT BE ACCEPTABLE TO THE PRESIDENT.
THE BILL BEING CONSIDERED BY THE COMMITTEE TODAY IS SIMILAR
IN MANY RESPECTS TO A DILL REPORTED OUT OF THE SENATE
INTELLIGENCE COMMITTEE LAST MONTH. DURING ITS CONSIDERATION OF
THAT BILL, THE SENATE INTELLIGENCE COMMITTEE INVITED' ME TO
PROVIDE MY VIEWS. I TESTIFIED AT THAT TIME ON TWO ISSUES:
WHETHER LEGISLATION WAS NECESSARY; AND WHAT PRACTICAL IMPACT
THE SENATE BILL WOULD HAVE ON THE INTELLIGENCE .COMMUNITY. I
INTEND TO ADDRESS BOTH POINTS IN MY TESTIMONY TODAY ON THE
HOUSE BILL.
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THE NEED FOR LEGISLATION
AS YOU ARE PROBABLY NOW AWARE, IN MY REMARKS BEFORE THE
SENATE INTELLIGENCE COMMITTEE I QUESTIONED THE-NEED F6R THIS
TYPE :OF LEGISLATION ALTHOUGH THE SENATE INTELLIGENCE
COMMITTEE SUESEQUENTLY DECIDED TO RECOMENC APPRCVAL OF THE
LEGISLATION, I STILL STRONGLY DOUBT THAT THIS LEGISLATION IS A
NECESSARY RESPONSE TO THE CONCERNS MEMBERS OF *CONGRESS HAVE
EXPRESSED ABOUT THE OVERSIGHT OF SPECIAL ACTIVITIES.' As YOL
KNOW, THE PRESIDENT RECOGNIZED LAST SPRING THAT THERE WAS Rcor
FOR IMPROVEMENT IN THE WAY THE Two BRANCHES WERE MEETING THEIR
RESPONSIBILITIES, AND HE TOOK CONCRETE, SUBSTANTIAL STEPS TO
ESTABLISH 1MPROVED-PROCEDURES TO ENSURE THAT CONGRESS IS GIVEN
THE OPPORTUNITY TO PLAY ITS APPROPRIATE OVERSIGHT ROLE. THESE
NEW PROCEDURES IN THE FORMOF A NEW NATIONAL SECURITY DECISION
DIRECTIVE ON SPECIAL AOTIVITIES (NSED 2EiG), WHICL THIS
COMMITTEE HAS HAD FOR REVIEW IN FULL AND MUCH OF WHICH WAS
RECENTLY DECLASSIFIED, CLARIFY THE RULES BY WHICH SPECIAL
ACTIVITIES ARE REVIEWED, APPROVED', AND REPORTED TO CONGRESS.
IN FACT, MANY OF THE-PROPOSALS CONTAINED IN H.R. 3822 ARE
ALREADY CONTAINED IN NSDD 286. THAT IS NOT SURPRISING, BECAUSE
THE PROCEDURES THE PRESIDENT HAS INSTALLED MERE DEVELOPED
FOLLOWING CLOSE AND PROLONGED CONSULTATION WITH MEMBERS AND
STAFFS OF THE INTELLIGENCE COMMITTEES.
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WHILE A PRESIDENTIAL DIRECTIVE IS NOT THE SAME AS
LEGISLATION, I AM NOT PERSUADED THAT NEW LEGISLATION AT THIS
TIME IS THE BEST WAY .TO ADDRESS THE CONCERNS THAT MEMBERS HAVE
?WITH THE CONGRESSIONAL ROLE REGARDING SPECIAL ACTIVITIES. IN
MY VIEW, A LEGISLATIVE REMEDY SHLULD EE EMPLOYED ONLY IF IT IS-
CLEAR THAT THERE IS A BASIC DEFICIENCY IN THE OVERSIGHT
PROCESS. THAT IS DOUBLY THE CASE WHEN THE LEGISLATIVE REMEDY,
PROPOSED RAISES _CONSTITUTIONAL ISSUES WHICH THREATEN TO DIVIDE
ThE TWO BRANCHES IN AN AREA WHERE EFFECTIVE WORK .PLACES A
pREvIum ON COOPERATION.
THE IRAN/CONTRA MATTER, WHILE EXTREMELY SERIOUS, HAS NOT IN
MY VIEW DEMONSTRATED THAT THE SYSTEM OF CONGRESSIONAL OVERSIGHT
OF THE INTELLIGENCE COMMUNITY ESTABLISHED UNDER CURRENT
STATUTES. IS SERIOUSLY FLAWED.- MANY OF THE PROBLEMS EXPOSED IN
CONNECTICk WITH THAT UNFORTUNATE PERIOD WERE THE RESLLT OF
OFFICIALS FAILING TO FOLLOW EXISTING PROCEDURES ? AND RULES. As
THE COMMITTEE IS AWARE, I HAVE TAKEN STEPS WITHIN THE CIA TO
DISCIPLINE THOSE EMPLOYEES WHO FAILED TO FOLLOW CIA PROCEDURES
AND MEET THE STANDARDS OF CONDUCT, EXPECTED OF CIA EMPLOYEES OR
WHO TESTIFIED TO CONGRESS INA MANNER THAT ?WAS:NOT CANDID OR :
FORTHCOMING. THOSE ACTIONS, .TAKEN IN.-LIGHT OF THE REQUIREMENTS
DEFINED BY CURRENT STATUTE, IN MY VIEW HAVE ADEQUATELY
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ADDRESSED THE PROBLEMS WE FOUND, SIMILARLY, TO THE EXTENT THAT
THERE WERE ANY PROCEDURAL SHORTCOMINGS DEMONSTRATED LY THE
IRAN/CONTRA MATTER, THEY HAVE ALREADY. BEEN ADDRESSED BY THE NEW
PRESIDENTIAL DIRECTIVE WITHIN THE PRESENT 'STATUTORY FRAMEWORK.
I WOULD LIKE TO EMPHASIZE THAT ANY LEGISLATION THAT IS
ENACTED MUST NCT ADVERSELY AFFECT THE INTELLIGENCE CONMUNITY'S
ABILITY TO-DO ITS JOE. IN THIS CONNECTION; MR. CHAIRMAN, THE
BILL YOU INTRODUCED, ANL THE DILL REPORTED OUT OF THE SENATE
INTELLIGENCE'COMNITTEE: HAVE SOUGHT TO ADDRESS CONSTRUCTF,VELY
SOME OF THE IMPORTANT CONCERNS I AND CTHEP ADMINISTRATION
OFFICIALS,RAISED BEFORE THE SENATE INTELLIGENCE COMMITTEE WHEN
IT CONSIDERED ITS ORIGINAL SILL, THAT BILL, FOR EXAMPLE, .
RECOGNIZES THE NEED TO REPORT ON SPECIAL ACTIVITIES AND
INTELLIGENCE 'COLLECTION IN A MANNER CONSISTENT WITH DUE REGARD
FOR THE PROTECTION OP SENSITIVE INTELLIGENCE -SOURCES AND
METHODS. I AN ALSO PLEASED THAT NEITHER THE HOUSE NCR THE
SENATE BILLS REQUIRE THAT THE FINDING SPECIFY THE IDENTITY OF
FOREIGN COUNTRIES ASSISTING THE AGENCY IN THE CONDUCT OF-
SPECIAL ACTIVITIES. THE PROVISO ON PROTECTION OF SOURCES AND
METHODS, AND THE ,ABILITY TO PROTECT THE IDENTITY OF FOREIGN
COUNTRIES.ASSISTING US WILL GO ,A LONG WAY IN ASSURING FRIENDLY
SERVICES AND POTENTIAL AGENTS THAT SOURCE IDENTIFYING ?
INFORMATION WILL NOT BE WIDELY DISSEMINATED AND POSSIBLY
COMPROMISED.
_5_
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PRIOR NOTICE OF SPECIAL ACTIVITIES'
_WHILE THE 'HOUSE BILL ADDRESSES SEVERAL ,CONCERNS PREVIOUSLY
RAISED IN MY TESTIMONY BEFORE THE SENATE INTELLIGENCE
COMMITTEE, THERE ARE FOUR AREAS OF THE BILL THAT ARE
'TROUBLESOME. THE FIRST AREA.OF DIFFICULTY INVOLVES THE
PROVISION OF THE BILL THAT REQUIRES NOTIFICATION OF A SPECIAL
ACTIVITY TO, CONGRESS, WITHOUT EXCEPTION, WITHIN 48 HOURS AFTER
THE SIGNING OF A FINDING. LAST SUMMER YOU RECEIVED THE VIEWS
OF THE. DEPARTMENT OF JUSTICE ABOUT THE CONSTITUTIONALITY OF
SUCH A PROVISION, SO I- WILL NOT.ADDRESS THAT ISSUE HERE. I
HAVE TWO CONCERNS ABOUT THIS PROVISION. FIRST, THE FACT THAT
THERE IS A SHARP DIFFERENCE OF INTERPRETATION BETWEEN THE VIEW
OF THE DEPARTMENT OF JUSTICE AND THE POSITION EMBODIED WTHIS ?
BILL REGARDING THIS PROVISION'S CONSTITUTIONAL VALIDITY WILL
PROMOTE TENSION BETWEEN THE EXECUTIVE AND LEGISLATIVE BRANCHES.
FOR YEARS TO COME. IN THE INTELLIGENCE AREA SUCH TENSION HAS
THE POTENTIAL TO DISRUPT THE KIND OF COOPERATION AND TRUST
EFFECTIVE NATIONAL POLICY REQUIRES., SECOND, I BELIEVE THAT
SOME ALLOWANCE MUST EE MADE FOR THAT RARE CASE WHERE A?LIMITED
DELAY IN CONGRESSIONAL NOTIFICATION IS CRITICAL TO PRESERVE THE
ABSOLUTE SECURITY OF AN OPERATION WHEN, FOR EXAMPLE, LIVES ARE
AT STAKE. FURTHERMORE, IT AS WORTHWHILE TO NOTE THAT ANY .
CONCERNS ABOUT EXCESSIVE DELAY IN CONGRESSIONAL NOTIFICATION OF
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A SPECIAL ACTIVITY HAVE ALREADY BEEN ADDRESSED BY NSEL 266.
THAT DIRECTIVE REQUIRES THE NATIONAL SECURITY PLAW.ING GROUP TO
REEVALUATE AT LEAST EVERY 15 DAYS A DECISION TO DELAY
.CONGRESSIONAL NOTIFICATION OF A GIVEN FINDING. THIS WILL
ENSURE THAT WHEN A DELAY IN NOTIFICATION IS NECESSARY, THE
REASON FOR THAT DECISION WILL BE CONTINUALLY REAS cF"FD SO THAT.
THE DELAY WILL BE AS SHORT AS POSSIBLE. 1 REPEAT, HOWEVER,
THAT 1 CAN THINK OF FEW CIRCUMSTANCES THAT WOULD EVER
NECESSITATE SUCH EXTRAORDINARY. STEPS-.
SPECIAL ACTIVITIES EEFIf.1101.,
MY SECOND AREA OF CONCERN IS WITH THE DEFINITION OF
"SPECIAL ACTIVITIES." THIS TERM IS USED TO DESCRIBE COVERT
ACTION OPERATIONS. THERE CURRENTLY IS NC DEFINITION OF THE
TERM "SPECIAL ACTIVITIES" IN THE LAW. THE BILL CREATES A
SPECIAL ACTIVITIES DEFINITION, BUT SINGLES OUT AND APPLIES TO
CIA A STANDARD THAT IS DIFFERENT FROM THAT APPLIED TO ALL OTHER
DEPARTMENTS AND AGENCIES OF THE U.S. GOVERNMENT. FOR CIA, THE
BILL DEFINES A SPECIAL ACTIVITY TO COVER ANY OPERATION IN A
FOREIGN COUNTRY OTHER THAN ACTIVITIES INTENDED SOLELY FOR
OBTAINING NECESSARY INTELLIGENCE. THIS DEFINITION IS THE SAME
AS THAT SET FORTH IN THE HUGHES/RYAN AMENDMENT (22 U.S.0 ?2422)
WHICH PROVIDES THE EXISTING STATUTORY FRAMEWORK FOR DETERMINING
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WHETHER AN ACTIVITY OF THE CIA. IN A FOREIGN COUNTRY REQUIRES A
FINDING. BY CONTRAST, FOR ALL. OTHER DEPARTMENTS AND AGENCIES,
A SPECIAL ACTIVITY IS DESCRIBED AS ANY ACTIVITY CONDUCTED IN
SUPPORT CF A NATIONAL FOREIGN POLICY OBJECTIVE ABROAD WHICH IS
PLANNED AND EXECUTED SC THAT THE ROLE CF THE U.S. GOVERNMENT IS
NOT APPARENT. CR ACKNOLEDOEL PUBLICLY, AND FUNCTIONS IN SUPPORT
OF SUCH ACTIVITY, BUT DOES NOT INCLUDE ACTIVITIES TO COLLECT
NECESSARY INTELLIGENCE, OR DIPLOMATIC ACTIVITIES CARRIED OUT EY'
THE DEPARTMENT OF STATE OR PERSONS OTHERWISE, ACTING PURSUANT TO
THE AUTHORITY OF THE PRESIDENT. THIS DEFINITION IS SIMILAR TO
THAT SET FORTH IN SECTION 3.4(H) OF EXECUTIVE ,ORCER 123,
ISSUED BY PRESIDENT REAGAW ON EECEMBER 4, 1551.
I UNDERSTAND THAT IN CRAFTING THESE bEFINITIONS OF SPECIAL
ACTIVITIES IN .THE BILL, IT WAS NOT YOUR INTENTION, MR.
CHAIRMAN, TO CHANGE IN ANY WAY THE CURRENT STANDARD BY WHICH
CIA DETERMINES WHETHER TO OBTAIN A FINDING TO AUTHORIZE A
PARTICULAR ACTIVITY. UNFORTUNATELY, MR. CHAIRMAN, MY GENERAL
COUNSEL, RUSSELL BRUEMMER, WHO IS SEATED BEHIND ME, HAS ADVISED
ME THAT THIS DEFINITION, IF ADOPTED, MAY CAUSE CONFUSION ABOUT
THE STANDARD USED TO DETERMINE WHETHER A FINDING IS NECESSARY
TO AUTHORIZE AN ACTIVITY; WE HAVE ALSO REQUESTED THE
DEPARTMENT OF JUSTICE TO EXAMINE THIS ISSUE', AND THEY HAVE
REACHED A SIMILAR CONCLUSION,
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THE PROPOSED DEFINITION OF SPECIAL ACTIVITIES, IN THE DILL
COULD ALTER CURRENT PRACTICE. THE EXECUTIVE BRANCH', AS THE
COMMITTEE KNOWS, HAS INTERPRETED THE HUGHES/RYAN AMENDMENT IN A
MANNER THAT WE BELIEVE IS CONSISTENT WITH ITS LEGISLATIVE
INTENT. THE HUGHES/RYAN AMENDMENT, IF GIVEN -AN OVERLY
RESTRICTIVE INTERPRETATION, WOULD REQUIRE PRESIDENTIAL
AUTHORIZATION FOR EVEN THE MOST MINOR OR ROUTINE ACTIVITIES OF
THE CIA OVERSEAS IF THEY WERE NOT RELATED SOLELY TO
INTELLIGENCE COLLECTION, IN MY JUDGMENT, THAT IS NOT A PROPER
INTERPRETATION AND WAS NEWER THE INTENT OF CONGRESS IN ENACTING
HUGHES/RYAN.
THE LEGISLATIVE HISTORY TO HUGHES/RYAN AND THE OVERSIGHT
ACT OF 1980, CONTEMPLATE A FINDING FOR. THOSE ACTIVITIES THAT
TRULY CAN BE CONSIDERED COVERT ACTION CPERATIONS IN THIS
CONNECTION, THE DEFINITION, OF SPECIAL ACTIVITIES CONTAINED IN
THE EXECUTIVE CkDER GIVES MEANING TO THE LANGUAGE AND INTENT OF
THE HUGHES/RYAN AMENDMENT IN DETERMINING WHETHER THAT LAW WOULD
REQUIRE A FINDING TO AUTHORIZE A PARTICULAR ACTIVITY.
ENACTING .H.R.. 3822 AS DRAFTED'WOULD'MAKE IT EXTREMELY
DIFFICULT TO CONTINUE SUCH AN INTERPRETATION BECAUSE THE
EXECUTIVE ORDER DEFINITION WOULD BY TERMS 0F THE NOT
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APPLY TO CIA,- THE CLEAR 'IMPLICATION WOULD BE THAT CONGRESS
INTENDS THAT THE LANGUAGE OF HUGHES/RYA. BE GIVEN k MORE
RESTRICTIVE INTERPRETATION.
THIS COULD EE CONSTRUES TO MEAN THE FOLLOING TYRES CF
ACTIVITIES, FOR WHICH FINDINGS ARE. NOT OBTAINED-TODAY, WOULD
HENCEFORTh REQUIRE SPECIFIC PRESIENUAL AUTHORIZATION IN EVERY
CASE NO MATTER HOW MINOR THE CIA ROLE:
0 COUNTERINTELLIGENCE ACTIVITIES.
0 SUPPORT GIVEN TO THE DEPARTMENT OF STATE IN THE
CONDUCT OF DIPLOMATIC ACTIVITIES. THIS WOULD INCLUDE,
FOR EXAMPLE, HAVING THE CHIEF OF STATION PRESENT THE
U.S. LOVERNNENT POSITION ON A PARTICULAR MATTER TO THE
FOREIGN MINISTER BECAUSE OF HIS CLOSE RELATIONSHIP
WITH THE FpREIGN EINISTER, OR ARRANGING FOR SECURE
TRANSPORTATION OR A MEETING SITE FOR AN?AMEASSADOR OR
DIPLOMATIC OFFICIAL:
-
0 MINOR SUPPORT 70 THE DEPARTMENT OF DEFENSE OR
DEPARTMENT OF STATE IN THE EVACUATION OF AMERICANS
FROM FOREIGN COUNTRIES.
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0 NINOR SUPPORT PROVIDED TO THE DOD AND OTHER AGENCIES
THROUGH THE PURCHASE OF EGuIPMENT OR THE PROVISION OF
SERVICES UNDER THE ECONOMY ACT.
IF WE ARE It: AGREEMENT NCT TO ALTER THE CURRENT PRACTICE
WITHIN CIA ON WHETHER TO OBTAIN A PRESIDENTIAL FINDING TO-
? GOVERN A PARTICULAR ACTIVITY, I WOULD URGE THECOMITTEE TO
MODIFY THE DEFINITION OF SPECIAL ACTIVITIES CONTAINED IN THE
BILL. ONE APPROACH .WOULD BE TO REPEAL THE HUGHES/RYAN
DEFINITION AN: USE THE EXECUTIVE ORDER DEFINITION CF SPECIAL
ACTIVITIES TO COVER EVLRY DEPARTMENT CR AGENCY;' INCLUDING CIA.,
THERE ARE OTHER POSSIBLE WAYS TO RESOLVE OUR CONCERN, AND I
HAVE INSTRUCTED MY STAFF TO WORK WITH THE COMMITTEE TO COME UP
WITH MUTUALLY ACCEPTABLE LANGUAGE. THE ?KEY, AGAIN, I THINK WE
CAN AGREE, IS FORMULATING LANGUAGE THAT WILL-MAINTAIN THE
STATUS QUO. I MUST ADD AS A FINAL NOTE, MOREOVER, THAT THE
DEFINITION PROPOSED IN ?THE BILL TODAY, AS WELL AS THAT IN THE
- SENATE BILL, ARE DIFFERENT FROM THAT WHICH I ADDRESSED WHEN I
TESTIFIED BEFORE THE SENATE, INTELLIGENCE COMMITTEE. FOR THAT
REASON, I DID NOT HAVE THE OPPORTUNITY TO EXPRESS THESE
CONCERNS AT THE TIME OF MY PREVIOUS TESTIMONY.
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FUNDING OF INTELLIGENCE ACTIVITIES
MY THIRD-AREA,OF SPECIFIC CONCERN IS WITH SECTION 4 OF THE
DILL, WHICH AMENDS SECTION 502 OF THE NATIONAL SECURITY ACT OF
1947. SECTION 502(A) OF THE NATIONAL SECURITY ACT- LIMITS THE
USE OF APPROPRIATED FUNDS. CURRENTLY, APPROPRIATED FUNDS
AVAILABLE TO AN INTELLIGENCE AGENCY -MAY BE SPENT ONLY IF (1)
FUNDING FOR THE ACTIVITY HAS BEEN AUTHORIZED BY CONGRESS; (2)
IN THE CASE OF RELEASE FROM THE RESERVE FOR CONTINGENCIES,
NOTICE CF THE INTENT TO RELEASE SUCH FUNDS IS GIVEN TO THE
INTELLIGENCE AND APPROPRIATIONS COMMITTEES; OR (3) IN THE CASE
OF REPROGRAMMINGS OK TRANSFERS, THE ACTIVITY TO BE FUNDED_ IS A
HIGHER PRIORITY INTELLIGENCE ACTIVITY, THE _NEED FOR FUNDS FOR
_SUCK'. ACTIVITY IS BASED,ON'UNFORSEEN'REOUIREMENTS,'AND NOTICE IS
GIVEN TO THE INTELLIGENCE AND APPROPRIATIOK COMMITTEES OF THE
INTENT TO MAKE FUND& AVAILABLE FOR THE ACTIVITY. THE BILL
WOULD AMEND SECTION 502(A) OF THE NATIONAL SECURITY ACT TO
RESTRICT EXPENDITURE OF ALL FUNDS, AND NOT JUST APPROPRIATED
FUNDS. I AM CONCERNED THAT THIS AMENDMENT WOULD JEOPARDIZE OUR
AUTHORITY TO CONDUCT CERTAIN ACTIVITIES WHICH CONGRESS HAS
SUPPORTED IN THE PAST. SPECIFICALLY, THE AMENDMENT WOULD
RESTRICT OUR ABILITY TO USE INCOME GENERATED BY PROPRIETARIES
FOR CERTAIN EXPENSES NECESSARY TO MAKE THE PROPRIETARY APPEAR
AS A COMMERCIAL ENTITY. THIS WOULD MAKE IT EXTREMELY DIFFICULT
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TO OPERATE OUR PROPRIETARIES IN A SECURE MANNER. THE AMENDMENT
WOULD ALSO ELIMINATE THE AUTHORITY OF SEVERAL AGENCIES IN THE
INTELLIGENCE COMMUNITY TO MAKE CERTAIN ACCOMMODATION PURCHASES
FOR OTHER COUNTRIES. FINALLY, THE AMENDMENT WOULD ELIMINATE
OUR AUTHORITY TO RECEIVE FUNDS DONATED BY OTHER COUNTRIES TO
FINANCE SPECIAL ACTIVITIES FOR WHICHA FINDING HAS BEEN
OBTAINED. I SHOULD EMPHASIZE THAT I HAVE NO OBJECTION TO
KEEPING THE COMMITTEE GENERALLY INFORMED OF OUR ACTIVITIES IN
THESE THREE AREAS. HOWEVER, THERE HAS BEEN NO STATED RATIONALE
FCR THE NEED FOR THIS CHANGE, tND IN MY VIEW ADOPTION OF THIS
PROVISION WOULD HAVE A VERY SERIOUS AND DETRIMENTAL EFFECT ON
OUR CONTINUING ABILITY TO CONDUCT SPECIAL ACTIVITIES, LIAISON
ACTIVITIES WITH FOREIGN GOVERNMENTS, AND OPERATIONS OF
PROPRIETARIES.
TRANSFER OF DEFENSE ARTICLES AND SERVICES
THE FOURTH AREA OF CONCERN IS WITH THE PROVISION OF THE
BILL AMENDING SECTION 503 OF THE NATIONAL SECURITY ACT, WHICH
CURRENTLY PROVIDES FOR THE REPCRTING TO THE INTELLIGENCE
COMMITTEES OF THE TRANSFER OF DEFENSE ARTICLES OR SERVICES IN
EXCESS OF $1,000,000 BY AN INTELLIGENCE AGENCY. THE SECTION
WOULD BE AMENDED TO REQUIRE THE REPORTING OF DEFENSE ARTICLES
OR SERVICES WHICH ARE INDIVIDUALLY WORTH LESS THAN $1,000,000
BUT WHICH AGGREGATE TO A FIGURE MORE THAN $1,000,000. I DO NOT
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BELIEVE IT IS NECECESSARY TO CHANGE THE CURRENT STANDARD FOR
REPORTING THE TRANSFER OF ,DEFENSE ARTICLES AND SERVICES.'
FURTHERMORE, I NOTE THAT THE. PROVISION DOES NOT PROVIDE
STANDARDS TO DETERMINE_WHEN'DEFENSE ARTICLES OR SERVICES SHOULD
BE AGGREGATED. ACCORDINGLY, IF THIS PROVISION REMAINS IN THE
EILL IN ITS CURRENT FORM, I WOULD URGE THE COMMITTEE TO
CONSIDER STATUTORY LANGUAGE OR LEGISLATIVE HISTORY THAT WOULD
PROVIDE CLEAR. GUIDANCE ON HON THE INTELLIGENCE COMMUNITY SHOULD
AGGREGATE DEFENSE ARTICLES OR SERVICES FOR PURPOSES OF.
REPORTING TO THE INTELLIGENCE COMMITTEES.
?
THERE ALSO ARE SEVERAL OTHER PROVISIONS IN THE BILL THAT,
WHILE NOT AS WORRISOME AS THE ONES I HAVE. TOUCHED ON, WOULD AS '
WRITTEN POSE PROBLEMS FOR THE INTELLIGENCE COMMUNITY. MY STAFF-,
HAS ALREADY HAD USEFUL DISCUSSIONS WITH THE COMMITTEE STAFF ON
THESE PROVISIONS.
IN CLOSING, I WOULD LIKE TO REEMPHASIZE TOEACH OF YOU. MY
PERSONAL COMMITMENT TO, MAKING THE OVERSIGHT PROCESS WORK. IT
HAS ALWAYS BEEN CLEAR, AND RECENT EXPERIENCE HAS AGAIN
DEMONSTRATED, THAT THE IMPLEMENTATION OF THE FOREIGN POLICY OF
OUR GOVERNMENT, INCLUDING SPECIAL ACTIVITIES, CAN ONLY BE
SUCCESSFUL WHEN THE EXECUTIVE AND LEGISLATIVE BRANCHES OF
GOVERNMENT WORK TOGETHER IN AN ATMOSPHERE OF MUTUAL RESPECT AND
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TRUST. THIS SPIRIT OF COOPERATION CAN ONLY OCCUR IF THE
INTELLIGENCE COMMITTEES RECEIVE THE APPROPRIATE INFORMATION
NEEDED TO REVIEW AND MAKE INFORMED JUDGMENTS ON SPECIAL
ACTIVITIES, WHILE AT THE SAME TIME ENSURING THAT THIS
INFORMATION IS PROTECTED FROM UNAUTHORIZED DISCLOSURE. .THE LAW
SHOULD REFLECT NOT ONLY THE NEED FOR COOPERATION, BUT ALSO THE
PRESIDENT'S RESPONSIBILITY FOR THE CONDUCT AND MANAGEMENT OF
OUR INTELLIGENCE AND THE IMPORTANCE TO THE NATION OF ENSURING
THAT THE PRESIDENT HAS THE NECESSARY FLEXIBILITY AND AUTHORITY
TO EMPLOY OUR INTELLIGENCE CAPABILITY EFFECTIVELY.
As I HAVE NOTED, THE PRESIDENT HAS TAKEN CORRECTIVE STEPS
TO IMPROVE THE OVERSIGHT SYSTEM THROUGH A PRESIDENTIAL
DIRECTIVE. AT CIA, I HAVE APPROVED A NUMBER OF MEASURES WHICH
WILL HELP TO PREVENT A REPETITION OF THE SHORTCOMINGS IN THE
AGENCY'S PERFORMANCE IN THE IRAN/CONTRA MATTER. IN SHORT,
SIGNIFICANT CHANGES HAVE BEEN MADE. I WOULD RESPECTFULLY
SUBMIT THAT THEY SHOULD BE GIVEN A CHANCE TC WORK, I AM
CONVINCED THAT THE CURRENT FRAMEWORK, AND NOT NEW LAWS,
REPRESENTS THE MOST APPROPRIATE AND EFFECTIVE MEANS TO ACHIEVE
OUR SHARED COMMITMENT TO HAVE CONGRESS PLAY AN ACTIVE,
EFFECTIVE ROLE IN THE OVERSIGHT OF UNITED STATES INTELLIGENCE
ACTIVITIES.
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THIS CONCLUDES MY STATEMENT. 1 AM PREPARED TO ANSWER
WHATEVER QUESTIONS YOU MAY HAVE ON OUR PCSITION ON THIS BILL.
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31
Chairman _McHum'. Mr. Livingston.
Mr. LIVINGSTON. Thank you, Mr. Chairman.
If H.R. 3822 were adopted, Judge Webster, do you see any cir-
cumstances under which it might be unlikely that the CIA might
take action to help rescue people or save the lives of threatened in-
dividuals or protect the security of the U.S. if they were bound by
the sweeping provisions of this particular bill?
Judge WEBSTER. I think the Central Intelligence Agency would
undertake to do whatever the President would authorize us to do
on a finding made after a presentation to the National Security
Council. The more practical questions would come up in terms of
whether or not we could do this effectively and successfully consist-
ent with commitments that we might have to others.
One small example?the other intelligence agencies of friendly
countries with whom we work are far more sensitive to the matter
of dissemination of information affecting their assets and their
agents acting abroad than we have seemed to appear in the past.
If, for example, we were to receive?they were to provide us with
information, and I use this purely hypothetically, the location of a
hostage somewhere in the world, but would want the opportunity
to extradite their own asset from the scene, which normally takes
place to protect that asset, and declined to give us the information
without assurances that that information would go no further, we
would be put in a very heavy dilemma. We could not make that
commitment to our foreign service if we were compelled in that un-
usual circumstance to tell the Congress.
I use that as a kind of example to show that it is possible to come
up with something that would present us with very real problems.
But we would not back away from doing our job if we could do it
and protect the lives of our sources.
Mr. LIVINGSTON. But in fact, this legislation might inhibit you
from doing your job?
Judge WEBSTER. I could see circumstances under which it would
raise serious questions of whether we could get and utilize the in-
formation, if there were not a possibility?we have been successful
in backing some of our friends off of their positions on disclosure,
but we need that little bit of breathing room. The President needs
it.
Mr. LIVINGSTON. You mentioned the provision in the bill requir-
ing all expenditures of funds by the CIA to be both authorized and
appropriated. Can you tell me whether that would go too far to in-
clude your jurisdiction or ability to expend funds coming from
third countries, for example?
Judge WEBSTER. That is my understanding, that the definition is
more restrictive than the one we currently operate under and I
would hope Congress would address it, because Congress has sup-
ported that activity in the past.
Mr. LIVINGSTON. So in fact if a country wanted to pay for activi-
ties which would suppress terrorism or activities threatening both
their country and ours, and they were prepared to foot the bill, we
would practically have to go through an Act of Congress to accept
that money, is that correct?
Judge WEBSTER. With the language in the current bill I think
you would have to do something very special. It has been my expe-
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32
rience that again the countries which assist us in this way are
often very sensitive about having their assistance publicly adver-
tised. We have been very careful to keep the committees fully in-
formed of the fact that foreign countries have given us assistance,
and it is not an attempt to have foreign countries do something in-
consistent with the foreign policy of this country, but one where
their assistance has been vital and appreciated.
Mr. LIVINGSTON. You touched on changing the definition of spe-
cial activity. I understood what you meant was that by the chang-
ing of that definition in this bill that it ultimately would require?
why don't you explain it for me?
Judge WEBSTER. I listed a number of circumstances in my state-
ment that I think would be adversely affected by making the dis-
tinction between CIA special activities under the Hughes-Ryan
amendment and other agency special activities which would be de-
fined consistent with the existing executive order 12333.
One of the most important of these is counterintelligence activi-
ties. Surely Congress ?did not intend that these activities require
special findings in order to keep track of the hostile intelligence of-
ficers operating around the world targeted at us and at our agen-
cies of government. We give considerable support to our State De-
partment. The contacts that we make, the liaison efforts developed
through the years, have been extraordinarily useful to the State
Department.
The CIA does not have a foreign policy, a separate policy, it is
implementing with the knowledge and approval of the State De-
partment the foreign policy of this country.
We do other things?a number of recent elections where there
was some possibility of violence in another country, preparations
were underway to consider whether the CIA could assist US citi-
zens in getting out of that country. Certainly Congress didn't
intend that type of activity--
Mr. LIVINGSTON. My time has expired, but isn't it fair to say that
if this bill were passed that your flexibility to carry out the oper-
ations in the interest of American citizens and in the security in-
terests of the U.S. would be gravely curtailed?
Judge WEBSTER. I think that is correct. Particularly with respect
to the last three of the four issues that I mentioned, I think that
those need adjusting.
The other one is more of a judgment call in terms of our ability
and the frequency with which it would be implicated. But the last
three, certainly that is true.
Mr. LIVINGSTON. Thank you.
Chairman McHuGH. Mr. Stokes.
Mr. STOKES. Thank you very much,-Mr. Chairman.
Judge Webster, you mentioned in your testimony at page 4 that
you have taken steps within the CIA to discipline those employees
who fail to follow CIA procedures and meet the standards of con-
duct expected of CIA employees who have testified to Congress in a
manner that is not forthcoming and candid. You have done that
and I want to take this opportunity to publicly commend you for
the forthright action you have taken with reference to instituting
procedures to insure that CIA employees will comply with the law
and that in their testimony before the Congress they will be forth-
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right and candid. You dealt adequately, I think, with those who
have not done so in the past. And so you are commended for that.
The problem that we see here is that, unfortunately, you are not
speaking for the entire Administration. You would have no control
whatsoever over people like Lieutenant Colonel Oliver North or
Admiral Poindexter, people who arrogated unto themselves powers
not constitutionally given to them.
So, there is a very real problem here, notwithstanding the confi-
dence, faith and trust we place in a person of your high integrity
and capability.
A part of the problem here is when you speak of placing a premi-
um on cooperation. The essence of our foreign policy initiatives
being able to work under our intelligence laws is cooperation be-
tween the Administrative and the Congressional Branches.
But what we have seen is a breakdown of that policy. I do not
think the Iran-contra situation would have occurred had the Presi-
dent just complied with the law, had he given the Congress notice
as we have been given notice of so many other covert actions.
You speak, in fact, of the new Presidential Directive. There are a
couple of things I think we ought to talk about in conjunction with
that. That new Presidential Directive was the response of the
President to the Iran-contra hearings conducted by the House and
Senate. In fact, it came about as a result of an initiative through
Senator Boren and contact with the White House.
There were many meetings held. In fact, we, our committee, also
attended a couple of those meetings. Finally, the President worked
out, executed, and issued the Directive.
I served on the Iran-Contra Committee. During the course of
those hearings, we -found a covert action policy approval and co-
ordination procedure, National Service NSDD 159, in which the
President had made his findings and talked of what he would do
with reference to complying with the law.
The problem was that the President did not follow his own
NSDD. I don't know how you would avoid that situation now with
this new Presidential finding. Obviously, the Senate Intelligence
Committee did not have much faith in it, because it reported S.
1721 in spite of the Directive having been issued.
Could you respond to that for us?
Judge WEBSTER. Well, I see my responsibility to make sure that
that finding is communicated to the Congress within 48 hours, as
the NSDD currently requires. It would take a specific order by the
President to in any way defer my getting that information to you
within 48 hours, and it would?I would personally, as well as other
members who have that responsibility, require the National Securi-
ty Planning Group to reassess that decision every 10 days.
I agree with the chairman that there were many things that hap-
pened in Iran-contra that would not have happened had existing
procedures in place been followed. The-most egregious, of course,
was allowing the process to be dictated by?in an operational way
by the National Security Council, whose employees had no real un-
derstanding or experience with the requirements of notification
and cooperation with the Congressional oversight committees.
I think it is very clear that that must never happen again. The
commitments are publicly made that there will be no operational
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responsibility out of the National Security Council; and the only
other assurance that I can give you is that I personally?and I be-
lieve it is the requirement of every subsequent Director of Central
Intelligence to see that those procedures are followed.
Mr. STOKES. Thank you very much, Judge Webster.
Chairman McHuGii. Mr. Shuster?
Mr. SHUSTER. Thank you very much, Mr. Chairman.
We certainly appreciate your testimony today, Judge Webster.
One of my deep concerns about this legislation is that I think we
have to put it in the context of the kind of world in which we live,
which is a very dangerous world in which there are many govern-
ments and many people who would like to put the United States
and American citizens in harm's way.
I have read this?tried to read this proposed legislation through
the eyes of intelligence directors, your counterparts, from friendly
countries. I would be interested in your observation, your views on
how you think your counterparts in foreign governments, friendly
foreign governments, would interpret this, and what changes, if
any, would they make in their dealing with the United States and
with you?
Judge WEBSTER. I have already had some experience with that.
When the initial discussions that Chairman Stokes referred to took
place between Senator Boren and others in an effort to work out
an accommodation with the President, the President wrote a letter
to the Congress expressing his intentions to notify the Congress of
various things.
That letter had been put together on fairly short notice. We had
not had an opportunity to point out what we expected would be the
concerns of other intelligence services. They really lined up, some
in writing, delivering written letters, messages from Chiefs of Intel-
ligence to me, wanting to know precisely what that meant in terms
of our current relationship and expressing their alarm and concern
that the sacrosanct third agency rule, which is understood through-
out the intelligence world, might be breached in the process.
I think that the National Security Decision Directive appropri-
ately deals with that issue and the language, the current language
of the bill that you are considering minimizes that risk somewhat.
From language that was originally suggested, I believe, in the
Senate bill. But there is anxiety whenever another government be-
lieves that we lack the capacity to protect as to their information,
their information, from becoming a part of the general, widely dis-
seminated intelligence information. We have that obligation not to
pass it along without their expressed approval.
So, I think it does present some problems for us, but they have
been largely minimized by the negotiations between our represent-
atives and staff.
Mr. SHUSTER. IS it fair to say that we are significantly dependent
upon other intelligence agencies of other countries for information,
that we rely on them on an ongoing basis? As they rely on us?
Judge WEBSTER. That is certainly true. If it were not for the fact
that they are very significantly dependent on us for places?infor-
mation for places in the world where they have no coverage, I sus-
pect the kinds of things we do in terms of spreading information
around would cause them to break off relations with us entirely.
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We take that view with intelligence agencies with whom we
work. We do, in fact?without getting into anything in a public
hearing?I recently had to take steps where I thought information
that was of a very sensitive nature had not been properly handled
by people to whom it was properly disseminated, but got out.
It is a sensitive area. We need to build the assurance of the ca-
pacity to protect information.
Mr. SHUSTER. In our general provisions, we say that the commit-
tees are to be kept fully and currently informed of the intelligence
activities of the United States, including any significant anticipat-
ed intelligence activities.
Then we modify that to some extent over on page 6 by saying to
the extent consistent with due regard for the protection from unau-
thorized- disclosure of classified information relating to sensitive in-
telligence sources and methods.
The question of sources and methods. Is this modifying language
clear enough to give you what you need to withhold sources and
methods when you feel lives may be jeopardized or other intelli-
gence activities may be adversely affected, or is this language too
vague?
Judge WEBSTER. Well, I would rather not be the last word on the
technical aspects of that language. It is the kind of language we
have worked with in the past, and it is the kind of language that is
sort of the counterpart to giving the President a little bit of breath-
ing room.
We will try to keep Congress fully informed, recognizing that in
the area of sources and methods, we need extra protection, and the
Congressional committees, I think, have in most instances been
very cooperative with us in not pressing for that kind of informa-
tion.
Mr. SHUSTER. Thank you very much.
Chairman McHuGH. Mr. Hyde?
Mr. HYDE. Thank you, Mr. Chairman.
Good morning, Judge Webster.
Judge WEBSTER. Good morning, Mr. Hyde.
Mr. HYDE. It just seems to me this legislation is a response to the
old adage, "Don't just stand there, do something, even if it is
wrong." We had a situation involving Iran-contra where the laws
may well have been violated, bent, ignored, or circumvented. So, in-
stead of focusing on the people whose misfeasance, or malfeasance
contributed to that situation, we rushed to change the law, as
though it were inadequate.
Now, overhanging this whole issue, it seems to me, is something
we do not talk about in this committee. That is, the total criminal,
obscene inability of Congress and government people in general to
keep a secret.
If sensitive information cannot be held closely, cannot be kept
confidential, our country has a real problem. We don't address that
here. In fact, I do not know of any real serious legislative efforts on
the part of the Majority to address that problem. Since I have been
on the committee, I can think of three major leaks that occurred to
the press that involved people's lives and sensitive operations.
One most recently, Judge Webster, involved a defector; and infor-
mation was developed about him that was so closely held by this
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committee that I did not know about it, as the ranking Republican.
I heard about it from a Washington Post newspaper reporter who
asked me some questions about it. I had never heard about it
before.
It is damaging to our national security, to our entire counterin-
telligence operation. I guess we are conducting an investigation of
that, but I will not hold my breath waiting for any results, because
those things just never seem to produce any results.
We also have the phenomenon of Members of Congress believing
it is their duty to leak information if they do not agree with the
policy. I have citations on that. So, I guess until we deal with the
problem of keeping senstitive information confidential, you are
always going to have poor intelligence people and government
people who have to communicate wondering whether they will be
signing the death warrants of people.
Once it gets to us, it gets in the paper. I don't want to give a
commercial for Woodward's book, but it seems to me if you read
that, you ought to wonder whether we are equipped to survive in
the world today with information of a highly sensitive nature just
common knowledge on the street.
The Canadian cooperation in Iran, where for three months, Con-
gress was not notified simply because the Canadians said, "Don't
you do it, our people's lives are at stake. We will help you get your
people out of Iran. They can stay at our Embassy. We will cooper-
ate with the passports and everything, but don't tell Congress, be-
cause our people's lives are at stake."
You just could not enlist their cooperation if this bill was the
law; is that correct?
Judge WEBSTER. They would not, in a situation such as you de-
scribed, they might very well decline to supply the information or
to take the action that exposed their own people to risk if we could
not assure them that it would go no further.
It is not a reflection on the Congress as it is an effort to limit to
absolute need-to-know and the fewest number of people as a proc-
ess of protecting lives. I think Congress?other countries and?I
must say in candor, Canada faces similar problems in current
pending legislation. So, we might be reluctant to give them some
information now if they could not give us the appropriate assur-
ances that would protect our people.
Mr. HYDE. In other words, six lives would probably not have been
saved at least in the way they were and gotten out of that country,
because you would not guarantee?you could not live up to the con-
ditions set by Canada, namely don't tell anybody, if this were the
law; is that correct?
Judge WEBSTER. Well, I think that is correct, Mr. Hyde.
Mr. HYDE. Okay. Do you live for the day Congress will address
the problem of leaks and how we deal with them? Or do you think
that is too Utopian? I do, I must say.
Judge WEBSTER. It is a problem I have been observing for about
10 years. I have no quick fix for it, other than a recognition that
the possibility of public dissemination grows exponentially with the
number of people in government who have the information.
Mr. HYDE. It would be reassuring, though, if we address the prob-
lem, would it not?
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Judge WEBSTER. It would be very helpful if everyone involved
took it seriously and took serious action against known leakers.
Mr. HYDE. Thank you.
Chairman McHum" Mr. McEwen?
Mr. McEwEN. Thank you, Mr. Chairman.
Judge Webster, thank you for your excellent testimony. I believe
most of my questions have been answered. Something I would like
for you to address, if you could, in particular, is as we are consider-
ing this legislation, an additional recommendation is being made.
Keeping in mind, as you know, people who hold information on
covert activities have a virtual veto power over the success of those
covert operations.
If they chose in many instances to use that information improp-
erly, they can subvert the operation. We are going to be advised
after your testimony, that is given a proposal, that the legislation
should also include a provision that any government officer or em-
ployee who knowingly or willingly conspired to violate the prohibi-
tion of expenditure of funds for covert activity would face criminal
penalties.
In other words, if the President did not notify in what was deter-
mined to be a timely manner, the 48 hours, then anyone in the
government could be held criminally liable, and thereby a sense of
responsibility to take self-protective action on their own would be
created.
If the 48-hour notification isn't sufficiently troublesome, what
would be your reaction to this? ?
Judge WEBSTER. I want to be sure that I understand the provi-
sion. Would you mind going through it again? If it becomes a crimi-
nal offense to conspire to use--
Mr. McEwEN. It says not only must the President notify within
48 hours, but if he doesn't and proceeds to implement a covert ac-
tivity, any government official?let me say any government officer
or employee who then knowingly and willfully conspires to violate
that prohibition against the expenditure of funds would face crimi-
nal penalties.
In other words, a carrot to the bureaucracy to say if you feel that
the President has not acted properly, that in your interests, you
had better do something? Any reaction to that at all?
Judge WEBSTER. You are really catching me cold on it. I would
like to think through the implications. I have far less concern
about the people who are charged with knowledge of the failure of
compliance than someone who has been given an order out in the
field to carry something out that he has every right to assume has
been properly authorized.
I certainly -would not want to hold that kind of person accounta-
ble for doing something that would otherwise be entirely reasona-
ble. If you are suggesting penalties for people who violate laws, I
think there is a lot to be said for putting penalties on prohibitions.
Prohibitions without penalties are not always very useful.
Mr. McEwEN. Thank you, Mr. Chairman.
Chairman McHuGH. Mr. Richardson?
Mr. RICHARDSON. Thank you very much.
Judge Webster, first of all, I want to thank you for a series of
excellent briefings I received at the Agency the other day. I think
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you have an excellent staff I appreciate the work you did to see
that as a new Member, I got that exposure to the Agency.
Let me just put forth a little aside before I ask you a couple of
questions. My colleague from Illinois mentioned the issue of leaks
in the Congress. I think many of us would be willing to join in ad-
dressing the issue of leaks with a recognition and understanding
that leaks come from every agency of the government.
I think the gentleman from Illinois mentioned the book, "Veil."
If he reads that book once again, one of the major sources of Bob
Woodward were agency officials, including the head of the CIA.
Mr. HYDE. That is a given. We all know that.
Mr. RICHARDSON. Yes. I just want to emphasize that I think leaks
have been a problem, but they come from everybody. They come
from the Executive Branch. As long as we have that understand-
ing.
Judge, I guess my question on the 48-hour issue is this: Apart
from the constitutional issue of notification, that obviously has to
be formulated in the White House legal office, you mentioned this
Canadian example. But are there any other sufficient reasons why
this provision, this 48-hour provision messes up our intelligence op-
erations?
What is the disadvantage of having this provision in pure, stark
intelligence terms?
Judge WEBSTER. Well, I have given you the one example that
comes to mind when the President's options are limited because of
the involvement of necessary assistance from outside the United
States, where the authorities of that country will not allow the in-
formation to be used other than inside the intelligence community.
Beyond that, I am frank to admit that my mind does not raise
many hypothetical situations; and I feel a little better about it, be-
cause as I said earlier, there have only been three situations in the
history of this legislation where information was withheld.
So, it is not mechanically a tough thing to handle. We can do the
48 hours. I would expect that we would do the 48 hours?I really
would be surprised if, in my tenure, we ever had a situation where
the President would invoke that privilege, executive privilege; but
it also seems to me that it forecloses the possibility of that situa-
tion at a time when we would most need it, when lives would be
involved. As long as the President has made the accommodation
with Congress to publicly acknowledge his commitment to deliver
and to reassess any decision not to deliver.
Mr. RICHARDSON. Then, Judge, I take it that you prefer that the
definition of timely notification not be changed? I guess my ques-
tion to that is how would you at this juncture define "timely"?
Judge WEBS'TER. I view "timely" to mean as soon as you can rea-
sonably get the information to the Congress. I either ought to
decide that it is too sensitive to further disseminate, in which case
the President has to make that finding in writing, order in writing,
which is reviewed in ten days, or if he does not do that, everything
should get up here? as quickly as possible, considering that you
would view 48 hours and he views 48 hours as leaving enough room
for us to find you, get all the documentation, information, and so
on to you. Less than 48 hours in almost every situation.
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Mr. RICHARDSON. In the "extraordinary cases" language, you
really are talking about only eight senior Members of Congress
that are notified. I attended a briefing the other day where there
was a small amount?there wasn't an extraordinary case situation.
But there were Department of Defense, State liaison people,
there were 20 people in the room. I guess in the face of such num-
bers, is it realistic to contend that telling eight congressional lead-
ers under that Senate bill is enough of a risk to override the Con-
gress' prerogatives in this area?
I just fail to see how that--
Judge WEBSTER. I understand your position. As I repeatedly said,
I can foresee very few circumstances where?scenarios where the
risk would warrant it. The one that comes repeatedly to mind to
me is a situation in which the information was not generated from
within our own community, but was offered to us on a commitment
not to further disseminate that kind of information because of the
life-threatening characteristics of the information, as it relates to
the citizens or agents of the country providing us with the informa-
tion.
Mr. RICHARDSON. Judge, my time is up. I just want to point out
the only time when prior notification was not given was this recent
decision which was opposed by the Secretary of State, the Secre-
tary of Defense, was done by mid-level NSC personnel, and was not
properly staffed out even in the agency. I do think that this legisla-
tion on the early face of it is needed.
I thank you, Judge. Once again, I thank you for what appears to
be very high morale at the agency and very fine officers.
Judge WEBSTER. Thank you.
Chairman McHuGH. Mr. Glickman.
Mr. GLICKMAN. Thank you, Mr. Chairman.
I, too, as a new member want to thank you and the agency for
your help. Your number-two man is a contemporary of mine from
my home town. His brother is the principal of the high school I
went to. So I have a stake in his success, as well as your success.
I was also pleased with your nomination. I think the agency has
become too politicized, and you bring a depoliticized aura to this
agency. I would like to see it so we have a CIA Director that we all
could trust that could retain that position in successive administra-
tions, kind of like we did a little bit with the FBI.
Let me pursue a different line of questioning. It looks to me like
covert activities on occasion are necessary. But we may be taking
the focus away from the gathering of information, which is the
most significant part of your job, by what I consider to be a rather
free-wheeling and routine reliance on covert activities.
Knowledge is power. If we overly focus on things other than
gathering information, we are not as smart as the their side, and,
therefore, we do not know what kind of foreign policy actions to
take, and I guess what concerns me about all of this is we are jeop-
ardizing the chief function of your agency: the collection of infor-
mation.
I would like to ask you as Director of this agency: what is your
personal philosophy on the use of covert actions vis-a-vis gathering
of information, and how do you see your personal role in this proc-
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ess? Are you just carrying out whatever the President and the Na-
tional Security Advisor want to do?
Do you see yourself as kind of an independent operator, not only
doing what is right within the law, but making an input to the
process itself? Notwithstanding what we do in the law right here,
you guys are going to be chiefly responsible for deciding if these
things are carried out or not.
I do not want to see a CIA so focused on intervention and unfo-
cused on intelligence and collection of information.
Judge WEBSTER. I will be glad to respond to that question. I think
it is a very important one.
I think it is somewhat ironic that we are looking?we are dis-
cussing the tension between the executive and the congressional
branches over the issue of 48-hour notification in covert action
where, at least I have said, I have difficulty in seeing any kinds of
situations where 48 hours cannot be complied with, but I would un-
derstand why the President wants to have that room.
Then we look and say, okay, we are talking about almost a non-
existent problem as it applies to covert action. We look at covert
action and we find that it represents about three percent of the
total resources of the Central Intelligence Agency.
So it is a very small activity in relation to what we do. Yet if we
do not do it well, or if we do it other than by prescribed procedures,
it becomes a matter of enormous, and legitimately so, public inter-
est.
So our main mission is to obtain information, as you point out,
which will be useful in the form in which it is printed?I am talk-
ing about analytical capability?to the policy makers of this coun-
try to make wise decision.
That information is shared full with the oversight committees as
well because they have a role in policy making efforts.
But I do not think that we are ever going to be in a position
where this country can sacrifice its ability to engage in covert
action where appropriate. Covert action is not a separate thing, as
I see it.
I think I am responding to your question. It is to implement the
foreign policy of this country. It usually comes as a result of the
State Department or others with the State Department asking us
to deal with a problem that cannot be handled through convention-
al diplomatic means or diplomatic personnel, and where the United
States would want, if possible, to be in a position not to acknowl-
edge its role.
Again, there are many reasons why this can happen and does
happen, not the least of which is that the country with whom we
are dealing or assisting may not wish our role known, and there
are other diplomatic reasons for not wanting it to be publicly
known.
So they come to the one agency with worldwide bases and con-
nections capable of engaging in covert action.
Most of that action is in the effort of getting a United States
message across through various forms of communication. It does
have some paramilitary- capability to assist organizations, either
existing governments that we favor or insurgencies that are fight-
ing for democracy, to have a capability to succeed.
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So when we are asked to do that, we comply, but in devising a
covert action program, and understanding the procedures that I am
satisfied are fully now in place, we review those scenarios internal-
ly through the different directorates, and then it comes to a cross
directorate organization called the CARG, the Covert Action
Review Group, in which all considerations are tested against such
questions as is this consistent with the overt foreign policy of this
country?
That would have wiped out the Iran-contra activity had we been
doing it instead of the National Security Council.
We ask ourselves is it consistent as we understand it with Ameri-
can values?
If it becomes public, as so many of these do, will it make sense to
the American people?
Having crossed all of those bridges, we take the program to the
National Security Council, where it is fully vetted with the cabinet
officers involved sitting on the National Security Planning Group.
Most often, I think every time since I have been doing this,
chaired by the President. Everyone has an opportunity to have
their say before the presidential finding approving the covert
action is made.
So, truly, it is not something the CIA goes off and does by itself.
It is something that has been fully thought through and authorized
at the highest levels of our government with the knowledge of the
President.
Those are pretty good protections for the future, and to the three
percent of our funds that are used for this purpose, the very limit-
ed possibility that Congress will be deferred in knowing, I think we
are on the right track.
Mr. GIACKMAN. Thank you. My time has expired.
Chairman McHuGH. Thank you, Mr. Glickman.
At this point, we will see if any other Members have questions.
I just have one or two.
Judge Webster, we have understandably focused on the 48-hour
provision which is, I think, the most controversial of the proposals,
but in doing so, I want to be clear that we are all in agreement as
to what the current law is.
The general rule, as I understand it, is that in virtually all cases,
the Administration will notify the Intelligence Committees at the
beginning before a covert action commences. That is, the prior noti-
fication is the general rule. You have no disagreement with that,
do you?
Judge WEBSTER. No, I don't.
Chairman McHum." And the reason for that?I appreciate that
answer?the reason for that is that not only does the Congress
have the right to know about fundamental policy decisions, but
that the President might just benefit from the feedback he gets
from members of the Intelligence Committees or the leadership.
As other Members have said before, if the President had shared
with us the idea of selling arms to Iran, I am sure Members on
both sides of the aisle would have raised strong objections. It is pos-
sible the President could have been dissuaded from what I think
most of us now agree was a mistake.
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You have very honestly, I think, plumbed your line to determine
if there are particular cases where 48 hours would be a problem for
notification after an action commenced. And you have come up
with at least one situation where I think all of us would agree we
don't want to impede the intelligence community, and thus, I hope
in drafting this legislation, working with your people, we can avoid
that.
Contrast that with our concern of what we think?many of us
think at least is not a trivial problem for Congress. That is that on
a fundamental policy decision for the United States of America, no
one in the Congress was told for a long period of time.
Now, our problem is not just that that happened in the Iran case,
which it did, but that the Justice Department and as I understand
it, the Administration generally, takes the position it is legally
okay. I understand and appreciate the fact that you say we will not
do that, but the position of the Administration is that "we have the
right to do it. It is our constitutional lawful prerogative to withhold
this information."
That is what concerns me. Let me try to explore briefly the con-
stitutional issue. I know you prefer to defer that to the lawyers, al-
though you are a distinguished judge.
I presume you would agree that Congress has the lawful author-
ity to provide no funds for CIA activities?
Judge WEBSTER. That is correct. That is an admission against in-
terest, but it is correct.
Chairman McHuGH. There is nobody on this committee that
would do that, but we are talking here about lawful authority.
Therefore, I assume it follows that we would have the lawful au-
thority to provide no funds for your contingency fund and, there-
fore, for covert activity?
Judge WEBSTER. That is also correct.
Chairman McHuGH. I have a difficult time, therefore, ? under-
standing why, when we do provide funds we do not have the right
to say, "as a condition for these funds, we need to be told what is
happening on fundamental policy decisions."
The position of the Administration is, yes, you have the author-
ity not to fund us, but you don't have the authority to ask us to tell
you what we are doing with those funds unless we choose to tell
you.
That is what bothers me. I have a difficult time understanding
that legal proposition and in practice it has led, at least in this one
case, to a situation where, in fact, the Administration has withheld
fundamental information about a policy decision affecting the
people of the United States and the Administration takes the posi-
tion to this day that that was okay legally, even though it might
have been bad judgment.
Mr. HYDE. Would the gentleman yield?
Chairman McHuGH. I will be happy to yield.
Mr. HYDE. Just to add a little addendum to your question. I sug-
gest the problem of constitutionality is very complicated and in-
volved here. I do not believe Congress would have the right to with-
hold salaries from the Supreme Court even though no one can take
a gun to our head and say you must appropriate money for sala-
ries.
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But if we were to pass a law saying unless the court reverses Roe
versus Wade, no funds appropriated may be used for salaries for
the Supreme Court, clearly that would be unconstitutional. In fact,
I know there is case law that we may not abuse the power of the
purse to achieve certain policy decisions.
I am far from capable or competent to outline the parameters of
that, but I guess what I am saying is the power of the purse is not
unlimited. We cannot force certain policy decisions through the use
of the power of the purse.
I simply throw that out as a qualifier to the general statement
that we have the power of the purse, therefore, we can require any
sort of information that Congress sees fit.
Thank you.
Chairman McHuGH. I appreciate the gentleman's comment. I
simply wanted to express to you, Judge Webster, the concern which
at least some of us have about the practical implications as well as
the legal implications of the position which I think the Administra-
tion is taking.
Again, I appreciate also the fact that you and the Administration
in your judgment are prepared to abide by what we all think are
reasonable rules. The question is, for us, in the future can we
depend upon that? I do not know there is any way you can guaran-
tee us in the absence of the law being clarified that this would not
happen again.
Mr. Livingston.
Mr. LIVINGSTON. Thank you, Mr. Chairman.
I think you stated your position well. I want to commend Mr.
Hyde for responding to you.
Basically, you are right. We do appropriate the funds for the
CIA, and we should expect that they should notify us in all reason-
able situations. But the Director in his definition of what "timely"
means, in his response to Mr. Richardson, said that "timely"
meant that he would bring any information about covert activities
to us as soon as you can reasonably get to Congress. In most in-
stances, he said in response to your question, that that would be
before the covert activity even took place.
I think that that is reasonable. But it is also reasonable to under-
stand that there are times when it is not possible to come to Con-
gress before the covert activity takes place. It is not possible to
come within a provisional 48 hours, or even perhaps 48 days.
In fact, it has happened three times. One time in the Iran situa-
tion, the contra situation we are dealing with here, and we may
quarrel that ten months is not timely. Another time, three months
was timely for President Carter. It happened one other time.
My point is that by simply arbitrarily passing legislation which
binds the President's hands, which compels the CIA to live within
certain defined restrictions eliminates any possibility that unfore-
seeable circumstances might happen and which might ultimately
endanger the lives of innocent people or threaten the security in-
terests of the United States.
When the Director says that he would get here as soon as he rea-
sonably can, obviously that means that there may be circumstances
when he cannot do so right away. I want to state for the record to
Mr. Richardson that "timely" was defined by Admiral Stansfield
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Turner in a committee meeting here just a few months ago. He
said that, "The timeliness is not measured by a clock. Timeliness
should be measured by the risk. . . . [W]e were three months get-
ting the six people out of the Canadian Embassy. We were six
months doing the other two operations. . . . So I don't think we
should focus on hours and days. I think we should focus on the
diminution of the risk. It could be that as an operation goes along
the risk to human life drops off. . . . When that risk to human life
is diminished sufficiently is when it is timely to notify the Con-
gress. . . ."
End quotes. I might say former Directors Colby and Ray Cline
agreed with that fundamental proposition. If there is an endanger-
ment to human life, it seems to me we are just taking an extraordi-
nary move in ignoring that possibility by binding the President and
binding the Director of the Central Intelligence Agency to an arbi-
trary rule which might one day, in your term, Mr. Director, or in
some other President's or Director's term, force you or them to
take action which endangers the people or the security interests of
our country.
I would be happy to yield to the gentleman.
Mr. RICHARDSON. I really do not necessarily quarrel with what
the gentleman has just said. Adding to this troublesome situation?
and I think Mr. McHugh made the point?is the Justice Depart-
ment's December 1986 memorandum supporting the President's po-
sition in delaying notification for ten months. That new, novel
theory was that the President may determine what is timely now
based on the sensitivity of the covert activity. If you follow this
theory, the President would never have to inform Congress of a
particularly sensitive activity.
Mr. LIVINGSTON. If I may reclaim my time, I would just respond
to the gentleman by saying that the President and the Administra-
tion have paid dearly for that decision. That was an interpretation
which I sincerely doubt any future Administration would apply to
this work.
Let us not jump into the fray and pass legislation to cure a prob-
lem that probably will not ever exist again.
Mr. HYDE. Mr. Chairman, may I make just one more comment,
please?
Chairman McHuGH. Briefly, Mr. Hyde.
I want to be sure we move on in order.
Mr. HYDE. I think there was more than failure to notify Con-
gress. I don't want to let the Administration off the hook or be re-
corded as totally defending what they did. They did more than fail-
ure to notify. They should have notified some in Congress. There
ought to be somebody trustworthy up here that they could notify.
But they misled Congress. There was testimony before our com-
mittees that actually, actively misled us. I have always resented
that. I think it was far more than a failure to notify.
I want to go on record as saying that. But also, to fill in the
mosaic, I want to point out something concerning two of the gang
of eight, a previous chairman and vice-chairman of the other body's
committee. The vice chairman has resigned from the committee
over a release of a transcript to one of the networks which the
committee voted to keep confidential. He gracefully resigned.
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The Chairman of that Committee is still under investigation by
the Ethics Committee of the other body for having revealed some-
thing about the Pollard spy case. So it is not a simple problem. And
it involves trust, trust from the Administration, trust in Congress,
and you cannot legislate that. That is all I am saying.
Thank you, Mr. Chairman.
Chairman McHuGh. Thank you, Mr. Hyde.
Mr. Stokes.
Mr. STOKES. Thank you, Mr. Chairman.
I just want to respond for a moment to Mr. Livingston's com-
ment that we ought not try to create the impression a problem
exists where one does not exist. The United States Congress has
just spent several million dollars conducting an investigation of
Iran-contra, the American people have sat in front of their T.V.
sets and radios for three months listening to what went wrong in
their government. It seems to me that the Congress has a responsi-
bility pursuant to the expenditure of millions of dollars to try and
shore up what went wrong in this government and correct that
problem, not ignore it.
It seems to me we ought to admit in this context we are not
tying the hands of the President or the hands of the CIA. Firstly,
Mr. Webster, I am sure you would agree with me that under cur-
rent law whenever the President signs a finding, you then come up
before the Intelligence Committees of the House and Senate and
advise us of the finding.
We have no power to stop that finding, do we? The President is
free to do what he pleases?
Judge WEBSTER. That is correct, Mr. Chairman, as long as some-
one does not go public with it or do something like that.
Mr. STOKES. That is right. Now, under this law which we are at-
tempting to enact here, we do not tie the President's hands. We do
not prohibit him from taking that action. All we say is that 48
hours after you have taken that action, you must notify the Con-
gress.
Isn't that correct?
Judge WEBSTER. That is correct.
Mr. STOKES. So we are not tying hands. There is an additional
problem here that I think that the American people would want us
to take into account. That is that if we do not do something here
with reference to this third party situation where foreign countries
can say to our President we will only cooperate with you provided
that you do not tell your government, we are right back to Iran-
contra again, where the Iranians knew, other foreigners knew
about this problem, but Members of the United States Congress,
representing the American people in this forum, had no knowledge.
Iranians were running all over the White House at midnight
taking tours and things of that sort while Members of the United
States Congress sat downstairs in Mr. Poindexter's office and were
being lied to.
That is why it is important for us to say simply that the Presi-
dent can take whatever action he deems necessary in defense of
this country in terms of a foreign policy initiative, but you must
within 48 hours notify the elected representatives of the Congress
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through the special mechanism, in this case being the Intelligence
Committee.
Thank you.
Chairman McHuGH. Any other questions?
Mr. McEwen.
Mr. McEwEN. No, thank you, Mr. Chairman.
Chairman McHuGH. Mr. Richardson.
MT. RICHARDSON. No.
Chairman McHuGH. Mr. Glickman.
Mr. GLICKMAN. No, thank you.
Chairman McHuGH. Mr. Hyde.
Mr. HYDE. No, thank you.
Chairman McHuGH. Judge Webster, thank you again very much
for being with us. We appreciate your testimony. We look forward
to working with you and your staff on trying to accommodate the
legitimate interests which have been expressed.
Judge WEBSTER. Thank you very much, Mr. Chairman.
Chairman McHuGH. Our next witness is the Honorable Clark
Clifford. Mr. Clifford was present at the creation of the National
Security Act of 1947 while serving as Counsel to President Truman
and later served as Secretary of Defense during the Johnson Ad-
ministration.
He was also a member of the President's Foreign Intelligence
Advisory Board. I think all of us are very familiar with his long
record of distinguished public service, and his wise counsel to this
Nation's leaders is well documented.
Mr. Clifford, it is an honor to have you with us today. Let me
express, on behalf of the committee, our appreciation not only for
your presence, but for your patience, as we went two rounds of
questions with Judge Webster. Thank you very much for being
with us. We would be delighted to hear your testimony this morn-
ing.
STATEMENT OF HON. CLARK M. CLIFFORD, FORMER SECRETARY
OF DEFENSE
Mr. CLIFFORD. Thank you, Mr. Chairman.
Judge Webster and I have been friends for a great many years. I
respect him. I admire him. I honor him for his service to our coun-
try. Through all those years, I would say that he and I have been
in substantial agreement on matters of public concern.
This time, I differ with him profoundly. I think the reason must
be the dramatic difference in our backgrounds in the field of intel-
ligence.
One of my first assignments when I served as counsel in the
White House in the Truman Administration was to start the study
which led to the creation of the CIA. That was 42 years ago. I have
been in the field in different capacities all through these years.
This is possibly why he and I differ, and with that brief introduc-
tion, I have a short statement, and because I think it does high-
light the differences between him and me, I would like your per-
mission to read it.
Chairman McHuGH. By all means, go right ahead.
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Mr. CLIFFORD. Chairman Stokes, Chairman McHugh, members of
the committee, I am pleased to appear before you today to offer my
views on the subject of covert activities, and in particular, the legis-
lation under your consideration for improving the process whereby
these activities are approved by the President and made known to
the Congress.
This is a subject of great significance to our Nation's foreign
policy and our system of government. It is also, as we have recently
seen, a subject of serious potential abuse. Therefore, the commit-
tee's efforts are both timely and vital.
As the committee knows, covert activities have become numerous
and widespread, practically constituting a routine component of
our foreign policy; and with these activities have come repeated in-
stances of embarrassing failure?where the goals of the operations
themselves were not fulfilled, and unforeseen setbacks occurred in-
stead.
I believe that, on balance, covert activities have harmed this
country more than they have helped us. Certainly, efforts to con-
trol these activities, to keep them within their intended scope and
purpose have failed.
We have reached the point now where we must reassess the very
idea of conducting covert activities. If we are to continue and gain
any benefit from them, we must find a way to keep them consist-
ent with the principles and institutions of the Constitution and our
foreign policy.
If we determine that this cannot be done, then I say we are
better off without covert activities entirely than with them out of
control.
On this score, we must keep in mind what is meant by covert ac-
tivities. These are only part, a very small part, perhaps 2 or 3 per-
cent, of the intelligence activities of our government. Covert activi-
ties, in my definition, are active efforts to alter political conditions
in foreign countries through financial, paramilitary, and other
means. That the government should want to disavow responsibility
for such activities is understandable.
Over the last year or so, the cost that covert activities can inflict
on our system of government also has been clear. Whatever the
specific actions or individual responsibility, the sale of arms to Iran
and the diversion of profits from those sales to the contras in Nica-
ragua caused severe damage to our government and the institution
of the Presidency. The President's credibility suffered drastically
and with it the integrity of the Nation's foreign policy.
One of the principal shortcomings of the Iran-contra affair was
the failure of the President to notify the intelligence committees of
the government's activities. The oversight process could have
served a significant, salutary purpose: Giving the President the
benefit of the wisdom of those who are not beholden to him, but
beholden like him directly to the people, and prepared to speak
frankly to him based on their wide, varied experience.
Had the President taken advantage of notifying Congress, he and
the country might well have avoided tremendous embarrassment -
and loss of credibility.
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The Iran-contra affair presents this committee and the country
with a crucial question: Should the laws governing covert activities
be changed?
To answer this question, we first might examine the attitude of
President Reagan. In his letter to the Senate Intelligence Commit-
tee of August 7, 1987, the President said that the current laws are
adequate and that any changes could occur by Executive Order. I
strongly disagree.
In the Iran-contra affair, the President displayed an attitude that
is antithetical to the oversight process. You will recall that the
President signed a finding that explicitly instructed the Director of
the CIA to notify the Congress of the activity.
For 10 months, the Director and others involved abided by this
instruction. In fact, the President finally notified the Congress only
after the activity had become public knowledge.
Much later, after the Congress had begun its inquiry, the Presi-
dent in his letter to the committee supported the concept of notifi-
cation but insisted on two exceptions. These exceptions would re-
lieve the President of the notification requirement in "cases of ex-
treme emergency" and "exceptional circumstances." I suggest to
this committee that to permit these two exceptions would make
any notification requirement meaningless.
Further evidence of the Administration's attitude is the Justice
Department's December 1986 memorandum supporting the Presi-
dent's position in delaying notification for 10 months. The memo-
randum offered the novel theory that the President may determine
what is timely notice based on the sensitivity of the covert activity.
According to this theory, the President would never have to
inform Congress of a particularly sensitive activity. This theory
clearly would undermine the whole concept of the duty of the
President to keep the Congress informed.
Moreover, we find that this continues to be the legal theory of
the Justice Department. In testimony before the Senate Intelli-
gence Committee in December 1987, two months or so ago, a De-
partment representative made the following statement:
There may be instances where the President must be able to initiate, direct, and
control extremely sensitive national security activities. We believe this presidential
authority is protected by the Constitution, and that by purporting to oblige the
President under any and all circumstances, to notify Congress of a covert action
within a fixed period of time, S. 1721 infringes on this constitutional prerogative of
the President.
In other words, it is the attitude of the Administration that,
whatever laws exist, the President may interpret them as he choos-
es. This is not the way that I understand our Constitution is sup-
posed to work. So, my answer to the question confronting us today
is that the laws governing the oversight process must be changed.
And the changes must be specific, direct, and as clear as possible.
I wish to lend my full support to H.R. 3822, the legislation that
the Committee is considering today.
Late last year, I testified before the Senate Intelligence Commit-
tee and supported S. 1721, the companion bill to H.R. 3822. I under-
stand that the committees have worked together on these bills, and
I commend your cooperation, as well as its result.
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The legislation that you have crafted meets the need for change
that exists in the important area of notification to the Congress.
It would require the President to sign a written finding, setting
forth the particulars of a covert activity, normally when approving
it but in no event more than 48 hours afterwards.
The legislation would require the President to provide the intelli-
gence committees with the signed finding normally before the ac-
tivity begins, but in no event more than 48 hours after it is ap-
proved.
The President could limit notification to the so-called Group of
Eight, but he would have to explain why he was doing so. Findings
that purported to validate past activities or authorize illegal meas-
ures would violate the law.
I view these provisions as welcome and worthwhile improve-
ments in the oversight process; however, I believe that they do not
go far enough to redress the recurring perils of covert activities.
In order to discourage further abuses of our foreign policy and
consequent subversion of our institutions of Government, I recom-
mend that the legislation also should contain sanctions to penalize
any failure to notify Congress within the required period.
Therefore, I would like to propose for the committee's consider-
ation a provision to be added to H.R. 3822 that would automatically
terminate and prohibit the expenditure of funds for any covert ac-
tivity with respect to which the President had failed to follow the
oversight process.
This provision would go beyond the ban on funding of unauthor-
ized activities in the proposed legislation, because it would require
the President, within the statutory period, to notify the intelligence
committees, as well as sign a finding.
Moreover, I would go a step further. According to my proposal,
any Government officer or employee who knowingly and willfully
violated or conspired to violate the prohibition against the expendi-
ture of funds for such a covert activity would face criminal penal-
ties.
This addition to the legislation, in my view and the views of the
Constitutional scholars whom I have consulted, would be fully con-
sistent with the letter and spirit of the Constitution. Furthermore,
it would be fully warranted by the principle of the rule of law
which is our country's creed.
As I see it, there is no reason or excuse for failing to notify the
Congress according to the law, and there should be no exception to
the sanction against violating such law.
The purpose of this legislation is not to assume good faith, but to
ensure good Government, and Congress should do whatever is nec-
essary and proper towards that end.
It is a grave matter to propose criminal penalties for official mis-
conduct. Even so, it is a recourse that has ample precedent, and re-
garding covert activities, it is a measure that I consider to be neces-
sary.
I can recall testifying some 12 years ago before the Select Com-
mittee to Study Governmental Operations with respect to Intelli-
gence Activities?the Church Committee?regarding the gross
abuses in covert activities that were the concern of that committee.
In my testimony in 1975, I said,
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The lack of proper controls has resulted in a freewheeling course of conduct on
the part of persons within the intelligence community that has led to spectacular
- failures and much unfortunate publicity. A new approach is obviously needed, for it
is unthinkable that we can continue to commit the egregious errors that have
caused such consternation to our friends and such delight to our enemies.
The Church Committee helped enact the 1980 Intelligence Over-
sight Act, and this certainly was a step forward. But today we
know that it was not enough. Sadly, my words from 1975 are all
too pertinent today.
I wish to make another point. It bears emphasizing that it was
by Act of Congress that the CIA was established and exists today;
it was by Act of Congress that covert activities were authorized and
continue to occur.
This is so because our Constitution confers on Congress the
power to make the laws, and the President is charged with taking
care-that the laws are faithfully executed according to the intent of
Congress.
In my judgment, the Constitution clearly provides to Congress an
important role in foreign policy, and this role includes the process
of overseeing covert activities.
It is part of the system of checks and balances among the sepa-
rate branches of Government. And we should remember that the
oversight process does not give the Congress a veto, but only a
voice.
At no time in recent memory has there been more need than
now for Congress to speak on the subject of covert activities. In the
aftermath of the Iran-contra affair and the damage that it did to
our nation's credibility and influence, it is incumbent on all who
hold positions of authority to take the necessary steps toward re-
storing our former position.
The legislation before you is a splendid move in this direction
and will be of vital importance in reducing the possibility of an-
other similar disaster.
I thank you.
Chairman McHuGH. Thank you very much, Mr. Clifford, for your
thoughtful statement.
[The statement of Mr. Clifford follows:]
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UNITED STATES HOUSE OF REPRESENTATIVES
PERMANENT SELECT COMMITTEE ON INTELLIGENCE
SUBCOMMITTEE ON LEGISLATION
February 24, 1988
STATEMENT OF THE HONORABLE CLARK M. CLIFFORD
Chairman Stokes, Chairman McHugh, and members of the
Committee:
I am pleased to appear before you today to offer my views
on the subject of covert activities, and in particular the
legislation under your consideration for improving the process
whereby these activities are approved by the President and
made known to the Cohgress. This is a subject of great
significance to our nation's foreign policy and our system of
government. It is also, as we have recently seen, a subject
of serious potential abuse. Therefore, the Committee's
efforts are both timely and vital.
As the Committee knows, covert activities have become
numerous and widespread, practically constituting a routine
component of our foreign policy. And with these activities
have come repeated instances of embarrassing failure -- where
the goals of the operations themselves were not fulfilled and
unforeseen setbacks occurred instead. I believe that on
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balance covert activities have harmed this country more than
they have helped us. Certainly, efforts to control these
activities, to keep them within their intended scope and
purpose, have failed.
We have reachedthe point now where we must reassess the
very idea of conducting covert activities. If we are to
continue with them and gain any benefit from them, we must
find a way to keep them consistent with the principles and
institutions of the Constitution and our foreign policy. If
we determine that this cannot be done, then I say we are
better off without covert activities entirely than with them
out of control.
On this score, we must keep in mind what is meant by
covert activities. These are only part, a very small part --
perhaps 2 or 3 percent -- of the intelligence activities of
our government. Covert activities, in my definition, are
active efforts to alter political conditions in foreign
countries through financial, paramilitary, and other means.
That the government should want to disavow responsibility for
such activities is understandable.
Over the last year or so, the cost that covert activities
can inflict on our system of government also has been clear.
Whatever the specific actions or individual responsibility,
the sale of arms to Iran and the diversion of profits from
those sales to the contras in Nicaragua caused severe damage
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- 3 -
to our government and the institution of the Presidency. The
President's credibility suffered drastically and with it the
integrity of the nation's foreign policy.
One of the principal shortcomings of the Iran-contra
affair was the failure of the President to notify the
intelligence committees of the government's activities. The
oversight process could have served a significant, salutary
purpose: giving the President the benefit of the wisdom of
those who are not beholden to him, but beholden like him
directly to the people, and prepared to speak frankly to him
based on their wide, varied experience. Had the President
taken advantage of notifying Congress, he and the country
might well have avoided tremendous embarrassment and loss of
credibility.
The Iran-contra affair presents this Committee and the
country with a ,crucial question: should the laws governing
covert activities be changed?
To answer this question, we first might examine the
attitude of President Reagan. In 1-i(e letter to the Senate
Intelligence Committee of August 7, 1987, the President said
that the current laws are adequate and that any changes could
occur by executive order. I strongly disagree.
In the Iran-contra affair, the President displayed an
attitude that is antithetical to the oversight process. You
will recall that the President signed a finding that explic-
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itly instructed the Director of the CIA not to notify the
Congress of the activity. For ten months, the Director and
others involved abided by this instruction. In fact, the
President finally notified the Congress only after the
activity had become public knowledge. Much later, after the
Congress had begun its inquiry, the President in his letter to
the Committee supported the concept of notification but
insisted on two exceptions. These exceptions would relieve
the President of the notification requirement in "cases of
extreme emergency" and "exceptional circumstances." I suggest
to this Committee that to permit these two exceptions would
make any notification requirement meaningless.
Further evidence of the Administration's attitude is the
Justice Department's December 1986 memorandum supporting the
President's position in delaying notification for ten months.
The memorandum offered the novel theory that the President may
determine what is timely notice based on the sensitivity of
the covert activity. According to this theory, the President
would never have to inform Congress of a particularly
sensitive activity. This theory clearly would undermine the
whole concept of the duty of the President to keep the
Congress informed.
Moreover, we find that this continues to be the legal
theory of the Justice Department. In testimony before the
Senate Intelligence Committee in December 1987, a Department
representative made the following statement:
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There may be instances where the President must
be able to initiate, direct, and control
extremely sensitive national security
activities. We believe this presidential
authority is protected by the Constitution, and
that by purporting to oblige the President
under any and all circumstances, to notify
Congress of a covert action within a fixed
period of time, S. 1721 infringes on this
constitutional prerogative of the President.
In other words, it is the attitude of the Administration
that, whatever laws exist, the President may interpret them as
he chooses. This is not the way that I understand our Consti-
tution is supposed to work. So, my answer to the question
confronting us today is that the laws governing the oversight
process must be changed. And the changes must be
direct, and as clear as possible.
I wish to lend my full support to H.R. 3822,
specific,
the legis-
lation that the Committee is considering today. Late last
year, I testified before the Senate Intelligence Committee and
supported S. 1721, the companion bill to H.R. 3822. I under-
stand that the committees have worked together on these bills,
and I commend your cooperation, as well as its result. The
legislation that you have crafted meets the need for change
that exists
in the important area of notification to the
Congress. It would require the President to sign a written
finding, setting forth the particulars of a covert activity,
normally when approving it but in no event more than
forty-eight hours afterwards. The legislation would require
the President to provide the intelligence committees with the
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signed finding normally before the activity begins but in no
event more than forty-eight hours after it is approved. The
President could limit notification to the so-called Group of
Eight, but he would have to explain why he was doing so. Find-
ings that purported to validate past activities or authorize
illegal measures would violate the law.
I view these provisions as welcome and worthwhile
improvements in the oversight process; however, I believe that
they do not go far enough to redress the recurring perils of
covert activities. In order to discourage further abuses of
our foreign policy and consequent subversion of our institu-
tions of government, I recommend that the legislation also
should contain sanctions to penalize any failure to notify
Congress within the required period.
Therefore, I would like to propose for the Committee's
consideration a provision to be added to H.R. 3822 that would
automatically terminate and prohibit the expenditure of funds
for any covert activity with respect to which the President
had failed to follow the oversight process. This provision
would go beyond the ban on funding of unauthorized activities
in the proposed legislation, because it would require the
President, within the statutory period, to notify the
intelligence committees, as well as sign a finding. Moreover,
I would go a step further. According to my proposal, any
government officer or employee who knowingly and willfully
violated or conspired to violate the prohibition against the
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expenditure of funds for such a covert activity would face
criminal penalties.
This addition to the legislation, in my view and the
views of the Constitutional scholars whom I have consulted,
would be fully consistent with the letter and spirit of the
Constitution. Furthermore, it would be fully warranted by the
principle of the rule of law which is our country's creed.
As I see it, there is no reason or excuse for failing to
notify the Congress according to the law, and there should be
no exception to the sanction against violating such law. The
purpose of this legislation is not to assume good faith but to
ensure good government, and Congress should do whatever is
necessary and proper towards that end.
It is a grave matter to propose criminal penalties for
official misconduct. Even so, it is a recourse that has ample
precedent, and regarding covert activities, it is a measure
that I consider to be necessary.
I can recall some twelve years ago testifying before the
Select Committee to Study Governmental Operations with respect
to Intelligence Activities -- the Church Committee --
regarding the gross abuses in covert activities that were the
concern of that ,committee. In my testimony in 1975, I said:
The lack of proper controls has resulted in a
freewheeling course of conduct on the part of
persons within the intelligence community that
has led to spectacular failures and much
unfortunate publicity. A new approach is
obviously needed, for it is unthinkable that we .
can continue to commit the egregious errors that
have caused such consternation to our friends
and such delight to our enemies.
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The Church Committee helped enact the 1980 Intelligence
Oversight Act, and this certainly was a step forward. But
today we know that it was not enough. Sadly, my words from
1975 are all too pertinent today.
I wish to make another point. It bears emphasizing that
it was by act of Congress that the CIA was established and
exists today; it was by act of Congress that covert activities
were authorized and continue to occur. This is so because our
Constitution confers on Congress the power to make the laws,
and the President is charged with taking care that the jaws
are faithfully executed according to the intent of Congress.
In my judgment, the Constitution clearly provides to
Congress an important role in foreign policy, and this role
includes the process of overseeing covert activities. It is
part of the system of checks and balances among the separate
branches of government. And we should remember that the
oversight process does not give the Congress a veto, but only
a voice.
At no time in recent memory has there been more need
than now for Congress to speak on the subject of covert
activities. In the aftermath of the Iran-contra affair and
the damage that it did to our nation's credibility and
influence, it is incumbent on all who hold positions of
authority to take the necessary steps towards restoring our
former position. The legislation before you is a splendid
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move in this direction and will be of vital importance in
reducing the possibility of another similar disaster.
I thank you.
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Chairman McHuGH. As you can appreciate, as a co-sponsor of
the legislation, I am delighted with the substance of what you have
said.
One of the arguments, as you know, against our approach is that
there is a problem with leaks.
Mr. Hyde has eloquently talked about that today and on other
occasions and, of course, we are concerned about leaks.
I guess I would like to draw upon your long experience both in
the Executive Branch and as a person very close to Government to
ask about your experience with leaks.
Frankly, we have heard arguments on both sides of the question
as to where the problem is more substantial, in the Executive
Branch or in the Congressional branch, and I just want to invite
your comments if you have any on this problem because it is at the
center, I think, of some of the opposition to the legislation which
we are offering.
Mr. CLIFFORD. Two major observations.
Leaks have occurred in our Government back to the Administra-
tion of President Washington. Leaks will always occur in our Gov-
ernment. There is no way that I know of that they can be prevent-
ed 100 percent.
I have the feeling now that there is a greater sense of responsi-
bility on the part of Congress. I think that reducing the group who
knows to eight in those particularly sensitive matters is a step in
the right direction.
I think that the experience of these last years would show that
Congress holds most of the important intelligence information care-
fully within itself.
Leaks occur in the Executive branch of the Government. One
time we had a very serious leak in the Johnson Administration and
there was a lot of thundering against Congress, and as we got to
the bottom of it, we found it was President Johnson who leaked the
information in a telephone conversation.
I noted with interest that one time Colonel North was critical of
Congress for a certain leak and when the matter was traced back,
it was found it was Colonel North who had leaked the story to a
reporter for Newsweek Magazine.
So they occur in both branches of the Government.
Here is my conclusion. I would rather take the risk of the possi-
bility of leaks than leave it up to one individual in the Executive
branch of Government to decide which of the covert activities
would go on without anybody else being notified. That is the big
danger in our Government. It is contrary, in my opinion, to the
basic precepts of our system.
These were developed to have checks and balances, where in the
Legislative, Executive and Judicial branches each is constantly
checking the others.
Here, however, it is suggested that we carve out a new theory. It
offends me that a President can say I am going to go down this
road and, according to the Justice Department, because I consider
it to be an extreme emergency, I don't need to tell anybody about it
at all. I think that is contrary to our form of Government and I
would hope we would recognize that fact.
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There is a great tendency to confuse the ordinary functions of
our intelligence department with this very narrow area of covert
activity.
I do not want the Congress to interfere in the conduct of intelli-
gence. We have worked on that for 40 years.
I served 7 years on the Intelligence Board. We were in constant
contact with Congress and we went all over the world to try to im-
prove our intelligence operation.
It isn't our intelligence operations that cause the trouble. It isn't
dealing with foreign countries and the gathering and use of intelli-
gence. It is when we break away from the original concept of the
functions of intelligence and get into the covert field, mainly when
we want to change something that is going on in the government of
another country.
Look at the mistakes?we went wrong in Indonesia years ago.
We tried to unseat Sukarno and a CIA pilot went down in a plane
and blew our cover.
We tried to conduct an offensive against Castro in the Bay of
Pigs, one of the great debacles in American history.
In the sixties and early seventies, we were conducting an effort
to assassinate Castro and it came out, embarrassing us in our
standing in the world.
We got into Chile and wanted to depose Allende and as a result
of our efforts, he ended up dead, either by suicide or by an assas-
sin's bullet.
Every one of these instances involved straying from the ordinary
field of intelligence and getting into the covert field and they were
all very serious mistakes.
This is another one.
Some 12 years ago, I sat in such a situation as this because we
had a terrible embarrassment over a series of covert actions, and
the Congress said we are going to take action, and they passed the
law of 1980. It wasn't good enough. It hasn't done the job.
I say let's do the job. We can do it without interfering with the
ordinary functions of the CIA.
Let's just stop the freewheeling in this very dangerous area of
trying to go around changing governments in other areas of the
world.
Chairman McHuGH. Thank you.
Mr. Livingston?
Mr. LIVINGSTON. Mr. Clifford, I appreciate your sincere concern
for?as expressed in your testimony?for the conduct of our inter-
national relations, and I am just worried though that your concern,
if applied by law as you propose, would, in fact, do what you say
you don't want to do.
You said that you didn't want to interfere with the intelligence
activities of this Nation, but in fact, if this bill were passed, there
is a strong likelihood that we would be doing a great deal of inter-
fering with the conduct of our intelligence activities.
The bill defines special activity so there is a very broad scope of
activities which would come under the oversight functions of Con-
gress, much broader than exists today.
It would redefine the process by which we authorize and appro-
priate funds for intelligence activities, very restrictively, which
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would probably mean that Congress will be micromanaging the ac-
tivities of the CIA.
There are restrictions in the bill on the transfer of articles and
funds to other countries, putting in arbitrary aggregates which
build up?I don't even think there is a limitation in terms of
years?so that the ceiling would be reached in very short order.
We may well find that we are incapable of transferring on an
emergency basis funds or articles of defense to countries that are
in desperate need of help in an emergency.
Then the 48-hour notice provision as well, which does say that
there are no conditions, no circumstances under which the Presi-
dent and the Central Intelligence Agency might reasonably with-
hold information from Congress, even though it might mean the
loss of lives of individuals. And you would take that one step fur-
ther?you would say that you would add a provision to this bill
that would automatically terminate and prohibit the expenditure
of funds for any covert activity with respect to which the President
had failed to follow the oversight process.
As I have pointed out, this bill provides a very rigid oversight
process.
Are you going to tell us that you believe that if the President, for
example, delayed until 49 hours instead of the 48, even though he
might be acting in good faith, the notification of Congress of a very
necessary and vital intelligence covert activity, that you would just
cut off all funds and terminate the program no matter what the
consequences to the United States and its citizens might be?
Mr. CLIFFORD. The early part of your statement is one with
which I disagree. You pick out parts of the bill. I don't believe that
the bill interferes with the normal operation of the CIA or with our
intelligence community.
I think there are needed restrictions, I think they are there, and
I think they are reasonable. One hour over? I guess you could take
any rule and draw an analogy from it. If you are going to have a
rule, then I would abide by the rule. And I would enforce the rule.
If I have to file my appeal with the Supreme Court of the United
States within 30 days, I must file it in 30 days. If I file it on the
31st day, it is no good.
So if you set a law, I think the law should be obeyed.
And keep in mind that all we are talking about is that when the
President gets it in mind, he says, "It has been suggested to me
that here would be a very interesting covert activity where we
might be able to dislodge this Administration in a foreign country."
And he says, "I think it is one we ought to do."
All we are suggesting is that he meet with a committee of the
Congress and tell them that. I think he might get some valuable
expressions from them, and he does it within 48 hours.
If they say, "We don't think you ought to do that," he says,
"Thank you, gentlemen," and he goes ahead and does it, which he
can do under the law, but it gives him the benefit of advice from
men who have served many years, much longer than he.
I would like him to get the benefit of that wisdom before he
starts off on a course of action that may result in a disaster.
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Mr. LIVINGSTON. I agree that the President can get a great deal
of knowledge and consultation from the Congress and should do so
at every available opportunity.
I am concerned that we are rigidly imposing a set of rules that
will bind his hands no matter what the circumstance might be,
which ultimately require that he defer any action or defer any no-
tification of Congress, and if we rigidly bind him to those rules?we
are not talking about a case in court. We are not talking about the
consequences of losing your appeal.
We are talking about the possibility that people will lose their
lives and that the security of the United States might be unduly
jeopardized because we have confined the President to a rigid set of
rules.
In my opinion, the rules are too rigid. There is no flexibility, and
I think that is a dangerous step for the Congress to take.
Mr. CLIFFORD. Mr. Livingston, our system is filled with rules. The
President must veto a bill in ten days. If he waits until the 11th
day, it is untimely.
We have any number of rules of that kind. I don't see why this
should be subject to any different interpretation than any other
rule in this very limited field.
I think it comes down to this?a person's attitude toward our
present intelligence operation in this field depends to a great
extent upon his attitude toward covert actions.
If he thinks that covert actions should be an ordinary, common
function of our intelligence community, then he would feel con-
cerned at any kind of limitation.
I don't feel that way at all. I think they should be launched after
only the most careful consideration, because they turn up in the
most embarrassing manner..
I was abroad?I don't know when it was?when it was discovered
that we had been mining the waters off of Nicaragua, and I was
with a group who couldn't understand it.
The United States had been mining the waters and some of our
allied ships encountered the mines. One friend said something that
has haunted me ever since. He said, "I have the feeling that Amer-
ica has lost its way."
I had that feeling in Iran-contra; we have lost our way. We took
a public position, thundering in attitude, the rhetoric was harsh
about not dealing with terrorist nations, while under the table we
were sending anti-tank weapons, sending weapons to knock down
planes from the sky.
The world saw what has happened; it looks as if America has lost
its way. I want to prevent that.
The damage we sustain from one tragic covert action, in my
opinion, is much more damaging than five or six or ten covert ac-
tions.
We have not had many successful covert actions.
One reason is that, if we are successful, you don't ordinarily hear
about it. But we heard about them a lot through the years on the
Intelligence Board and we found them, I will wager every man of
the ten-man committee, working seven years in that area, I believe
every man left with the feeling, "If I had my choice, I probably
would say cut out covert activity; it is not worth the danger."
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That is really what we are discussing?not the whole field of in-
telligence.
We expanded intelligence. We had 208 suggestions over a four-
year period that we made to the intelligence operators, and some
204 of them were adopted and put into operation.
We have got a good intelligence operation, very effective. A lot of
countries look to us.
If a country says to us, "Here is some information, Judge Web-
ster. I am giving it to you, but I don't want you to share it with the
Congress," if I were in Judge Webster's position, I would say,
"Don't tell me. If I can't share it with the Government, with the
Congress, don't tell me."
That should be our position. We either have a system of democ-
racy and function in that manner or I don't think we deserve to
have the feeling that we all have toward our country.
Chairman McHuGH. Mr. Stokes?
MT. STOKES. Thank you, Mr. Chairman.
Mr. Clifford, you have had a long and distinguished career in
Government and it is a real honor to have you appear here this
morning and testify on this legislation.
Mr. CLIFFORD. Thank you, Mr. Chairman.
Mr. STOKES. The last answer that you just made to us touches on
a question I was going to ask and maybe you could expand upon it
a little bit?the argument appears plausible on its face, whereas
Mr. Webster says a foreign government or a third-party govern-
ment says, "The only way we will cooperate with you is that you
do not tell other persons," and, therefore, our President feels that
in order to carry out this effort, he must make that type of a- com-
mitment to this foreign country and then, of course, our Govern-
ment should understand why he cannot comply by telling the Con-
gress is because he had to make this commitment to a third coun-
try.
Would you elaborate on that a little bit for us?
Mr. CLIFFORD. Yes. We get right to the heart of our system. We
either have a system of checks and balances or we don't have such
a system.
If a foreign government should say to you, "Mr. Chairman, while
you are traveling abroad, I want to give you some very vital infor-
mation regarding your country and mine, but I am only going to
give it to you if you promise not to tell your President," that isn't
the way our system works.
You don't say, "All right, tell me; I won't." We have to work to-
gether.
We can't isolate the President or the Executive Branch so that it
can have this information having made a commitment not to
inform the Congress.
We don't want to get in that posture.
To see what exists here in this effort to try to get some rules,
let's go back over the situation that existed in the Colonel North
days.
Two-and-a-half years this went on, operating under the table, ex-
panding all through the world?Bill Casey had an idea that this
was working so successfully that he would make it a permanent op-
eration financed privately. They were getting money in from differ-
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ent private sources and thought it would be of immense usefulness
to continue.
The trouble is that it isn't our system. It isn't the way we run
our Government. It is the way the Soviets run theirs. It is the way
it may operate in Libya, but not in the United States. So I am sug-
gesting let's have some rules and if Colonel North, or some other
colonel in the future, decides that he is going down the road of
some secret covert operation, as soon as there is no notice to the
Congress, he is in violation of law and he shouldn't be using any
funds so appropriated.
And if he is in violation of law and he does it in the knowledge
that there was no notice to the Congress, then he is doing it know-
ingly and willfully?that is the language of many of our felony
statutes?and he has committed an offense.
Now, I don't know that it would absolutely prevent it, but I
assure you it would slow it up.
I can picture one meeting when Colonel North had his colleagues
there and he said, "Here is a new idea. I think we ought to start
down this road."
Somebody said, "There are a number of laws like the National
Security Act of 1947, the Hughes-Ryan Act, and it is in violation of
those laws, Colonel," and he said, "What is the penalty under those
laws of my violating them?" and the lawyer said, "There aren't
any penalties," and the colonel said, "Well, then, don't interrupt
me."
I think this is the attitude. Let's take a position. Let's see if we
can't get the people to conform to our system and not operate se-
cretly in this secret kind of Government.
Mr. STOKES. I was particularly struck by your statement that this
legislation has nothing to do with good faith. It is about good gov-
ernment. Within that phrase you really struck at the heart of what
we are trying to do here.
But another seemingly plausible argument is the one advanced
by Mr. Webster this morning when he says "I have initiated cer-
tain changes to correct the problem of persons who lie to the Con-
gress, and I have dealt properly with those individuals and we are
running a type of thing now where this won't occur in the future."
And he says, "In addition, the President has signed an NSDD in
which he says he is going to comply with the law.'
Can you address that argument.
Mr. CLIFFORD. I think there are two important answers to that.
We have been down that road, Mr. Chairman.
That is what the 1980 law was for. There was a lengthy hearing.
Congress said, "Now we have the answer. The President or the Ex-
ecutive Branch must report to the Congress, give us reasonable
notice"?I think that was the language?"and now we have the
matter buttoned down so we won't have these embarrassing events
occur anymore."
It just didn't work at all. We have tried all this. We have tried
what Judge Webster told us about this morning, leaving it up to
the Executive Branch.
There is another part of that, that if everybody in the Executive
Branch were a Judge Webster, we could sit back and relax, but
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they sure aren't and they haven't been over this 'past number of
years.
Also keep in mind that Judge Webster could handle the CIA as
expertly and as judiciously as it could be handled and things might
still be going on in our country that would ultimately embarrass us
deeply.
When these last events were going on and Admiral Crowe was
asked his reaction, he said "I didn't know anything about it."
In the financial arrangement, nobody ever told the Secretary of
the Treasury about it. They confined their information and activi-
ties to those they wanted to. This was a call within our Govern-
ment. It isn't enough to say that they have dismissed some people
from the CIA, and the President says that now, he is going to coop-
erate better. That doesn't do it. Then for the President to write the
letter and say, "Yes, I will cooperate and I will comply with the 48-
hour notice with two exceptions; one, extreme emergencies and the
other exceptional circumstances." Well, almost every opportunity
in the covert field is one of them.
They are not routine. You may go months and months handling
the intelligence work ably and professionally and not have a single
covert activity come into view.
So each time that escape clause could be used, and it is trouble-
some.
So let's have a clear set of rules. Let me conclude by saying how
many more times do we have to go through this? We have been
through it ever since we had the law, since 1947.
We have used occasional parts of it and done it effectively, but
we have had one embarrassment after another.
Now we have the most serious embarrassment of them all?the
Iran-contra affair.
How much longer do we have to wait? So let's step up to it now.
It isn't just the next ten months of President Reagan. It is the
next four, five, six Presidents that come along.
Let's set a clear path so we don't go down this mistaken road
again.
Mr. STOKES. Thank you.
Chairman McHuGH. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman.
We have revisited the Iran-contra hearings at great length and I
wish we had a lot of time to go over that.
I would like to fill in a bit of background from another perspec-
tive.
Mr. Casey is not here to defend himself; he died, and the witness
has characterized him as supporting his own agency, and not sub-
ject to oversight. It was stated by one of the witnesses that he had
talked to Casey about that, but Mr. McMahon said that would be
the furthest thing from Mr. Casey's mind.
So it is unfortunate that we don't have Mr. Casey to defend him-
self.
You have hypothecated North talking to people and saying,
"Let's disobey the law."
I sat through all the hearings; I don't recall any such occurrence,
but it is helpful, I suppose, to the argument. And, when it comes to
diverting money to the contras, $3.5 million, which may or may not
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have been the Treasury's money, I view that in the light of divert-
ing $8 million of the taxpayers' funds in the continuing resolution
for a school in Paris, for "refugees" from North Africa, which the
Senator who pushed that had the good grace to ask that it be re-
voked.
So there are diversions and there are diversions.
Let me ask you, I take it when you were in the Truman Adminis-
tration, you opposed the covert activity that helped save Italy in
the post-war years from being taken over by the communists who
were pouring millions of dollars in there? Your distaste for covert
activity, I take it, was expressed in the Truman Administration?
Mr. CLIFFORD. No. I heartily supported it.
Mr. HYDE. That is one covert activity you supported?
Mr. CLIFFORD. I sure did. And it was very successful.
Mr. HYDE. Then you support the successful ones, but not the un-
successful ones?
Mr. CLIFFORD. No. That is not the point. Here was a carefully
structured plan to meet the communist menace in Italy. They were
making an all-out plan to get a communist government in Italy.
Careful, lengthy study indicated to us that the proper, intelligent
use of funds in Italy might prevent that from occurring.
So we did it. We did it successfully. I would do it today. That is a
very useful covert activity.
Mr. HYDE. That is my point. You are not against all covert activi-
ty?
Mr. CLIFFORD. Oh, my, no.
Mr. HYDE. I misunderstood you. I thought you said if you had
your way, you would do away with all covert activity.
You understand the Bay of Pigs, what really happened there,
don't you? You certainly do not blame it because it was a "covert
activity"?
You blame it, I am sure, as most people do, by the change of
mind in the Administration, the decision to deny air cover to those
people we had trained, we had supplied, and we had said go hit the
beach at the Bay of Pigs, worst possible place. At the last minute,
the President changed his mind and withheld air cover. Some
people, like Oliver North analogize that case of leading people into
fighting and then not supporting them to the contras case of lead-
ing people into fighting and not supporting them. They view that
as a betrayal.
You mentioned the Bay of Pigs as a debacle. It was. Oh, was it
ever.
But I think why it was a debacle is important to know.
Now, I would never fence with you on the law, because you are a
distinguished lawyer with one of the great reputations of all time,
and deservedly so let me say. I simply am puzzled by your state-
ment that you disagree with the Justice Department when it says
that to notify Congress of a covert action within a fixed period of
time infringes on this constitutional prerogative of the President.
You say, "In other words, the attitude of the Administration that,
whatever laws exist, the President may interpret them as he choos-
es. This is not the way I understand our Constitution is supposed to
work."
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Well, I would say that is too flat a statement from my imperfect
position as a lawyer. The President signs the law as Congress
passes it. It seems to me the signer of the document has something
to say about what it means to him, what his interpretation is, as
much as those who debate and put the language together and pass
it.
It seems to me that with regard to the Executive function of de-
termining that a covert action will occur and the performance of
that as to time, telling the President, okay, but you have got 48
hours to tell us about it, I wouldn't say that is constitutionally
flawless, would you?
Don't you see a constitutional question there?
Mr. CLIFFORD. I do not.
Mr. HYDE. You do not?
Mr. CLIFFORD. I do not. I think that the Congress has a reasona-
ble right when it passes a law to have the President keep it in-
formed of the manner in which the law is being carried out.
Mr. HYDE. I would agree with that, but covert activity, you say,
depends on some statutory enactment. Isn't our history replete
with covert activities back to the presidency of Jefferson that did
not have statutory warrant?
The Barbary pirates? Things were done in Florida. Even the Lou-
isiana Purchase was covert. Congress never knew about it.
Mr. CLIFFORD. You go to the Barbary pirates; that was military
action.
Mr. HYDE. Yes, but Congress did not know what the President
did. He did it. He achieved his purpose.
I am just suggesting that covert activities may well be a part of
the inherent Executive power of the President which is given by
the Constitution to the President generically, and that for Congress
to fine-tune and say, you will perform an Executive function within
the time we say you will, I just see a constitutional question.
I don't know whether it is right or wrong, but I don't think it is
as clear, Mr. Clifford, as you say.
Mr. CLIFFORD. Well, then I have not been very persuasive.
Mr. HYDE. Oh, with those who agree with you, I am sure you are
totally persuasive.
Mr. CLIFFORD. It is clear to me; I do not believe there is any in-
herent power in the President to go off and make these very impor-
tant decisions affecting the security of our country and to do it all
alone. I don't think the Constitution gives him any such power as
that. I do not think the President has the sole right of conducting
foreign policy in the United States.
I don't find that in the Federalist Papers at all.
Mr. HYDE. You find it in the Curtiss-Wright decision, but of
course that is the invitation to struggle that has gone on for many,
many years. What are the parameters?
Mr. CLIFFORD. There are two points about the Curtiss-Wright
case. One, it has been almost completely overruled. It was 50 years
ago.
It has been almost completely overruled by the Youngstown
Sheet and Tube case.
Second, a comment in there regarding the power of the President
is plainly obiter dictum.
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Mr. HYDE. I will send you my paper on that, Mr. Clifford. You
don't have to read it, but I will send it to you.
Mr. CLIFFORD. I look forward to it.
Mr. HYDE. Thank you.
Chairman McHuGn. Mr. Richardson.
Mr. RICHARDSON. I would hate to get into an argument with you
because of your breadth of knowledge and experience. Let me say I
have been persuaded by a good part of your testimony, except for
one provision that you are recommending, and that is the provision
that deals with criminal penalties.
The concern I have is I think there is no question when you talk
about being on the edge of legality and illegality if there is some-
thing out there that the. official might make sure he acts on proper
legal grounds.
However, can this provision be interpreted by those that are con-
cerned about having an effective intelligence gathering agency and
a covert action that is prescribed within law and the national inter-
ests?
Are we not, perhaps, clipping the agency a bit? Won't this provi-
sion have a deleterious effect in that maybe that official that sees
all these restrictions on him?again, not on the legality question,
but sees these numerous constraints?let me be the devil's advo-
cate and say, what about that argument?
Mr. CLIFFORD. I think it is not an appropriate argument. Ninety-
eight percent of our intelligence activities are devoted to what they
should be: The gathering and evaluation of intelligence. We do it
very well. That is not our danger.
We do not have embarrassments that come from the ordinary
conduct of our intelligence. We are doing that 24 hours a day.
It is the toughest, meanest activity that goes on. We do it be-
cause we have to.
We probably would not survive without it. I strongly support it
in every way.
All we are talking about is that very narrow two percent again.
That is what has gotten us into the trouble.
This last Iran-contra affair did not have to do with ordinary in-
telligence. Again, it was that very narrow two percent.
On that two percent, I would like to surround that with such re-
strictions that it makes it much less likely that we are to have an-
other tragedy in that area. That is why I think it is appropriate to
do it.
I do not think it interferes with the other 98 percent in any way.
I think it just justifies and sends the warning out that you cannot
free-wheel in this area. Two-and-a-half years this group was doing
it. It expanded all over. They owned ships, they sent arms, they did
all kinds of things. It was going on all the time, using?much of
it?government funds. I would like to say that, if you do not give
notification to the Congress, then you cannot use government
funds.
I find that reasonable. That is one of the fundamental functions
of Congress, to appropriate. The only branch of the government
that can.
So you say, "we appropriate the funds, but if you don't comply
with this reasonable restriction, then you may not use ' those
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funds." I think you have the right to say that. Then, if anybody
knowingly and willfully despite that knowledge goes ahead and
uses funds, then I think he should be subject to criminal penalties.
Mr. RICHARDSON. I do not quarrel with the notification of Con-
gress provision and on the propriety in enacting some kind of stat-
ute. I just think there may be within that narrow two percent some
contingency where the appearance of this kind of provision might
be in the long run deleterious.
I will not press that.
I have a second question which may have been touched in your
testimony. Regrettably I was not here. That is on the CIA's fund,
the reserve for contingencies. By the time these funds end up in
the regular budget process?we are talking about the congressional
power of the purse role?it is very difficult to cut these funds off.
Are you also advocating some restraints on the use of the reserve
to initiate covert actions, such as perhaps setting a maximum
amount that can be used for a particular action, for prohibiting the
use of the reserve for certain kinds of activities? Are you going
that far in advocating congressional control?
Mr. CLIFFORD. No. The distance that I do go is that when a Presi-
dent decides that he is going to launch a new covert activity, 99
percent of the time, it will take some funds to be carried out. The
President decides the source of those funds. I say, if he comes up
and gives you the notification, all right, perhaps he uses those
funds at his discretion. If he does not give you the 48-hour notifica-
tion, which I consider to be reasonable, then whatever funds he in-
tended to use he must not use because he has failed to comply with
the law.
Mr. RICHARDSON. That makes it clear.
Thank you, Mr. Chairman.
Chairman McHuGH. Thank you, Mr. Richardson.
Mr. Kastenmeier.
Mr. KASTENMEIER. Thank you, Mr. Chairman.
I, too, was sorry I was not here when Mr. Clifford delivered his
testimony. I did hear his testimony before the Senate Intelligence
Committee some months ago and thought it was extraordinarily ef-
fective and useful not only for its recommendations but for the his-
toric perspective that Mr. Clifford gave to the question and for his
analysis. I happened to be persuaded.
I also happened to be persuaded by the necessity of including
criminal penalties. I think it is extremely difficult for any country,
particularly a free society, to cope with its perhaps necessary na-
tional security trappings, because very often they are driven by
idealogical concerns and excesses, and there is very little normally
to restrain such activity.
As Mr. Clifford suggests, it is likely to recur again. It has in the
past. When we think we have restrained some of the excesses, we
see in another year that they have returned to us.
I wonder whether, Mr. Clifford, you are sanguine about being
able to deal with that issue of the embarrassments and excesses in
the name of national security that might be committed in the long-
term? Or are we doomed to have to re-learn these lessons over and
over again?
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Mr. CLIFFORD. I think in every nation's history, at some point,
the country must face reality. I think that time has come for our
country. We have been through this. We have had setback after
setback. As I mentioned earlier, we made a determined effort in
1980 to come to grips with this. The Administration at that time
said, oh, you do not need to go nearly so far as you are considering;
rely upon us, depend upon us, we will cooperate with you.
And I think somebody mentioned at the time that it was a Demo-
cratic President and a Democratic Congress.
So we have been down this road of expecting that good fellows
will work together and we will get results. It has not paid off at all.
We are right back where we were.
I say how long do we have to go through this? Let us face up to it
now. I think that this committee has an opportunity of rendering a
significant service to the country by saying we have been through
this enough.
Now, let us take a new approach to it, let us confine this area
very carefully.
I want a President to think much more carefully about starting
off on a covert course of action than they have been doing in the
past. It has been pretty easy. You do not tell anybody about it. You
say, "well, it is up to me as to whether I sign a finding. I may do it
ten months later or I may give notification ten months later."
It is so loose and all. He may say, "this is such an opportunity to
make such a great gain," and he may be doing it with the best of
intentions. They go just as sour as those that perhaps don't have
such good intentions.
We have learned enough now, I believe, from the record that we
can say let us have a new set of rules and see if that does not limit
us from going through these national tragedies.
MT. KASTENMEIER. I thank you.
Thank you, Mr. Chairman.
Chairman McHuGH. Thank you.
Mr. Glickman.
Mr. GLICKMAN. Thank you very much.
First of all, I think I need to respond to one thing Mr. Hyde said.
Quite frankly, I thought it was not subject to the substance of what
we were talking about. Somehow the comparison was made that
some funds that Congress has spent improperly itself was equiva-
lent to improper expenditures on covert activities by the Executive
Branch of Government.
It is true. We sometimes are wasteful. The example was given,
the $8 million to a French school which we have subsequently re-
pealed. That in no way, in no way parallels the use of funds for
covert activities that have not been approved and may be done in
connection with violations of law because as bad as the $8 million
to French schools was, it did not involve war and peace, did not in-
volve the possible lives of Americans in action, did not involve
American prestige in the world.
I do not want the public of this country to think that maybe one
example of wasteful spending is equivalent to another example
which goes far beyond wasteful spending and goes to the heart of
our checks and balances.
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It looks to me like the heart of all this is the question of mis-
trust. That is why you have laws in the first place, to prevent
people from doing things they ought not to be doing.
I wanted to try to go again to Mr. Richardson's question. I agree
with you about criminal penalties. I wanted to ask a question. Your
penalties for anybody who would willfully and knowingly violate
the section, would that apply to the President of the United States,
as well?
Mr. CLIFFORD. It would.
Mr. GLICKMAN. I happen to believe, like yourself, that that is the
best inhibitor of?best preventer of illegal conduct. It may not be
utilized very often, but the cloud of criminal activity is what we
use. in voluntary compliance with our tax laws and just about ev-
erything else in this country.
I do disagree with you a little bit on the issue. You say if there is
an illegal activity we would automatically terminate and prohibit
the expenditure of funds for those covert activities. You might be
involved in the middle of something that would be far more dan-
gerous for the United States to stop because of the peculiarities of
international politics.
I am just wondering, would not the criminal activities really take -
care of this problem, rather than stopping a covert action right in
the middle of it, when perhaps that could involve a loss of lives to
some of our friends?
Mr. CLIFFORD. In the event that there has been a covert activity
that has been going on for some period of time, and if the Presi-
dent chose not to comply with the law and he had not given the 48-
hour notice and it might have been going on for some three months
thereon, and then possibly there is a leak someplace and it comes
to your attention, I think the law should be applicable.
I don't believe you can create exceptions. If he chooses not to
comply with this reasonable requirement and report to you, then
he operates at his peril, in my opinion.
Mr. GLICKMAN. The problem is it is not just his peril at that
point; it is the country's peril. We may have other objectives that
would be far more seriously damaged from a standpoint of loss of
American lives and folks out in the field not withstanding the mis-
take he has made.
What I am trying to say to you is that I would like to punish him
and his people for doing improper activities by failure to notify us,
and therefore I support the criminal penalties.
Maybe we ought to terminate the employees as well as some
form of criminal penalties, but we may be punishing innocent folks
by just automatically terminating that activity after a period of
time. I think we have to be very careful about going down that
road.
Otherwise I find your testimony to be extraordinarily credible. I
have learned a lot today.
Thank you, Mr. Chairman.
Chairman McHuGH. Thank you, Mr. Glickman.
Are there any other questions?
Mr. HYDE. Mr. Chairman?
Chairman McHuGH. Mr. Hyde.
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Mr. HYDE. Just for my friend's edification or disedification, the
similarity between the $8 million and the alleged diversion of
funds to the contras is simply that they were both done in the dead
of night without people knowing about it.
Secondly, I am not sure the $3 million that went to the contras
were taxpayers' funds. They were from the proceeds of the sale of
the arms to the Iranians, the price jacked up by General Secord.
Secord paid for the arms, every penny the CIA wanted.
It was just that things happened, and nobody knew about them.
One was $8 million, one was $3 million. I don't find them too dis-
similar.
One last question to my friend?a person I admire. I wish he
were my friend.
I wish we knew each other better. That is what I meant. Insofar
as we know each other, I certainly consider you to be my friend.
Do you still agree with this statement that you made before the
Church committee on April 26, 1976?I want you to know before-
hand, I certainly agree with it; I hope you do?"Second, the cre-
ation of an effective joint House-Senate committee to oversee intel-
ligence operations. I consider this the most important function of a
new law. Proper congressional oversight has been sadly lacking. I
would hope that a small oversight committee of possibly five mem-
bers of each chamber might be created. It should be considered an
assignment of outstanding importance and the members should be
willing to give the necessary time to it. By keeping the committee
small, security can be maintained and the possibility of disclosures
can be minimized."
I say "amen" to that. I wonder if you still stand by that state-
ment.
Mr. CLIFFORD. I support that today.
Mr. HYDE. Thank you, sir.
On a winning streak, I yield back the remainder of my time.
Chairman McHuGu. I find Mr. Hyde always comes back until he
wins.
Mr. GLICKMAN. Who says he won?
Chairman McHuGH. Well----
Mr. HYDE. You weren't listening.
Chairman McHuGH. Mr. Clifford, we are very much indebted to
you for your presence here today and for your testimony. We hope
that we will have the opportunity to hear from you again on other
matters, as well.
Thank you very much.
Mr. CLIFFORD. Thank you, Mr. Chairman.
Chairman McHuGH. Our next witness is a former colleague and
friend, the Honorable John Buchanan, Jr. He represented the 6th
District of Alabama for many years, serving on the Foreign Affairs
Committee.
John is a senior associate at the Kettering Foundation and
Chairman of its International Affairs Committee. Since 1981 he has
served as Chairman of People for the American Way.
Mr. Buchanan is accompanied this afternoon by the Legislative
Counsel of People for the American Way, Mr. Steven Katz.
John, it is a pleasure to have you with us. We appreciate your
staying with us during the prior testimony, as well. Please proceed.
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STATEMENT OF JOHN H. BUCHANAN, JR., CHAIRMAN, PEOPLE
FOR THE AMERICAN WAY ACTION FUND, ACCOMPANIED BY
STEVEN KATZ, LEGISLATIVE COUNSEL, PEOPLE FOR THE
AMERICAN WAY
Mr. BUCHANAN. It is a privilege to testify before you and the dis-
tinguished members of your committee on behalf of the 270,000
members of the People for the American Way, the nonpartisan
constitutional liberties organization which it is my privilege to
chair.
The importance of secrecy to the security of our nation is undeni-
able. But even national security is not very well served by exces-
sive government secrecy.
In December 1987, People for the American Way released its
report, "Government Secrecy: Decisions Without Democracy." We
sent each member of this committee a report. It costs $8.75. Keep
it, read it. I hope you will. Steve Katz was its author. We hope it
will make a contribution not only to this discussion but to the over-
all problem we addressed in that report.
It culminates almost two years of investigative research into the
growth of official secrecy in the United States and its consequences
for our government and citizens. It documents the ongoing tension
between secrecy and democracy, the existence of a secrecy system
at work well before the Iran-contra affair, and the potential for ex-
cessive secrecy by future administrations?Democrat or Republi-
can.
The bill you consider today, the "Intelligence Oversight Act," is
an essential piece of legislation, a reform mandated not only by the
Iran-contra affair, but also by the rightful role of congressional
oversight in our constitutional government.
Mr. Chairman, it seems to me you are acting to make sure the
prerogatives of the Congress are honored and its responsibilities
fulfilled under the Constitution in our system of checks and bal-
ances.
We believe that Americans strongly support congressional over-
sight and access to information. In a November 1987 nationwide
poll commissioned by People for the American Way, the Roper or-
ganization asked Americans about government secrecy. Overall the
response to the poll was a call for greater "openness in govern-
ment"; 93 percent of those surveyed specifically supported "open-
ness in government" because Congress needs the information to
perform its oversight role.
The question before us today, of course, is not simply congres-
sional access to information in general. It is information about in-
telligence activity, particularly notification of covert activity per-
formed by the Central Intelligence Agency and other government
entities.
Congressional oversight of the intelligence community, particu-
larly "special" or covert activities, is central to the legitimate for-
eign policy and national security role of Congress. This goes beyond
the fundamental oversight role of Congress in the authorization,
funding and execution of government programs and policies.
American foreign policy and our system of government cannot
succeed unless the President and the Congress cooperate. The Con-
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stitution gives both the Congress and the Executive specific foreign
policy powers. It does not make foreign policy the exclusive domain
of one branch of government.
The result is a system of checks and balances which ensures that
our nation's foreign policy and national security framework is con-
sistent with the policy, law and interests of our nation. To do other-
wise, as we have seen in the Iran-contra affair, is to subvert our
constitutional system, contravene established foreign policy and
ignore the rule of law.
Indeed, the former Director of Central Intelligence, Admiral
Stansfield Turner, states in his book, "Secrecy and Democracy":
In gauging whether congressional oversight has done more good than harm, we
have to look at the benefits it affords . . . Most of all, the requirement to report to
Congress is valuable because it forces the DCI and his subordinates to exercise
greater judiciousness in making decisions about which espionage operations are
worth the risks. We have seen some of the unfortunate past excesses that can be
attributed to the absence of adequate accountability . . . Finally, contact with the
congressional committees is salutary for the CIA's people because it helps them
keep in touch with national views . . . For all these reasons, congressional oversight
is a definite plus.
The proposed Intelligence Oversight Act, like its Senate counter-
part passed in committee last week, provides the necessary reforms
to guarantee that the legitimate role of Congress and our checks
and balances system are functioning effectively.
Democracy demands the vigilance of its citizens and elected offi-
cials. The passage of the legislation before us today is necessary for
such vigilance to be meaningful.
Congress must be kept fully and currently informed of the intel-
ligence activities of the United States, whether it is the CIA, the
National Security Council or other entities. Notification of "spe-
cial" or covert activities is particularly important.
We support the proposed requirement that the intelligence com-
mittees are informed of a finding "as soon as possible after such
approval and prior to the initiation of the special activity author-
ized by the finding," and in exceptional circumstances, we support
the proposed 48-hour time limit for notification pursuant to initi-
ation of a covert operation.
Congressional oversight and notification as outlined in this bill is
essential for our support of legislation on covert activities.
It is also important to recognize, however, that the proposed leg-
islation not only makes the president more accountable, but ap-
pears to expand the president's power to authorize covert activity.
Under current law and executive order, authority to engage in
covert activity is limited to the CIA unless the president makes a
determination that another agency can do the job better. We have
reservations about your using language that would encourage the
president to reach out beyond the CIA in this kind of activity.
We have some reservations about what could be interpreted as
an apparent expansion of authority, particularly as our nation
emerges from a scandal where agencies outside the CIA acted with
indifference to the law.
Covert operations should be limited. By their very nature and as
a matter of policy, covert operations are not accountable to many
in government. They lack the broad congressional and public sup-
port necessary to serve and protect the nation's vital interests.
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Mr. Chairman, at this juncture in our nation's history, it is un-
clear why Congress would so readily dispatch the performance of
covert activities to more, not fewer, agencies of our government.
? Mr. Chairman, our organization supports the proposed legislation
in large measure because it aims to ensure that our government
operates under established policy and law on intelligence activity,
even though particular covert operations and plans remain vital se-
crets.
We believe, however, that the legislation will fall short of its goal
of an established policy and law on intelligence activity unless the
committee recognizes the impediments posed by the promulgation
of secret presidential directives.
These directives are issued through the National Security Coun-
cil and have established covert action policies binding on the gov-
ernment today. Such directives have made it possible for govern-
ment officials to operate outside the scope of public laws and execu-
tive orders on covert action, and are indifferent to statutory action
for congressional oversight.
The use of such directives, evolving through administrations
since President Truman, has increased in sophistication and au-
thority. They started out almost as position papers. They are far
stronger than that today.
In 1976 a special Senate committee studying presidential power
concluded that these directives:
Represent a new method for promulgating decisions, in areas of gravest impor-
tance. Such decisions are not specifically required by law to be published in any reg-
ister, even in a classified form; none have prescribed formats or procedures; none of
these vital Executive decisions are revealed to Congress or the public except under
irregular, arbitrary or accidental circumstances.
That description holds true today. Under President Reagan, the
series is called the National Security Decision Directives, or
NSDDs. Awareness of the series in Congress is very limited. As
Representative Anthony Beilenson, Chairman of ,the Intelligence
Oversight and Evaluation Subcommittee, stated before a House
Government Operations subcommittee last year:
What I have to say about NSDDs, as they are called, will be brief. It is based on
an incomplete understanding of this form of presidential decision. That is because
the Permanent Select Committee on Intelligence does not receive copies of NSDDs.
I share with the former Secretary Clifford great admiration?and
the members of this committee?great admiration for Judge Web-
ster. I think we are all reassured to have a person of his caliber in
the position of being Director of Intelligence for our country.
Like Secretary Clifford, I disagree with his position on this
matter. I was particularly intrigued that he cited an NSDD as the
cure to the problem which confronted us in the Iran-contra affair.
Actually I would say it is part of the disease, not part of the
cure. It is part of the problem, not the answer.
The President could sign?and in this case notify?the Congress
of the content of that NSDD today. You could decide it sufficed,
and tomorrow it could change and you would not necessarily know
it.
But if this President stood by his present policy and did not in
secret?as happened before?change, modify the NSDD or create
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new ones that would contradict that policy as expressed in Judge
Webster's testimony, the next president could certainly do so.
I would advise the committee to hear the wise words of Thomas
Jefferson and "bind men with the chains of law."
As of January 1, 1988, President Reagan has issued at least 286
NSDDs. Some are innocent, but many are not. On three occasions
Congress has overturned or nullified specific NSDDs through legis-
lation. NSDDs have been found to secretly create national policy,
to permit fugitive policymaking and to avoid oversight and ac-
countability.
President Reagan has issued NSDDs to authorize an array of ac-
tivities, including the secret transfer of millions of taxpayers' dol-
lars to Argentina to train Nicaraguan rebels in 1981, increasing
U.S. military activity in Central America and the Caribbean in
1983, and authorization of the Libyan disinformation campaign in
1986.
In the case of covert action policies, at least two NSDDs demon-
strate the ability of the President to secretly modify established
policy and law, and we believe could undermine the purpose of this
legislation. These are NSDD 159, "Covert Action Policy Approval
and Coordination Procedures," and NSDD 286, which is untitled,
but sets policies and procedures regarding congressional oversight
of covert action which fall short of the stricter requirements of
today's bill.
Focusing on NSDD 159, its history tells much about its purpose
and its danger. NSDD 159 was issued by the President on January
18, 1985, shortly after the most significant of the Boland amend-
ments had taken effect terminating military and paramilitary aid
to the Nicaraguan rebels.
As stated in the Iran-contra committee report:
Still the President felt strongly about the contras, and he ordered his staff, in the
words of his National Security Adviser, to find a way to keep the contras "body and
soul together." Thus began the story of how the staff of a White House advisory
body became an operational entity that secretly ran the contra assistance effort,
and later the Iran initiative. The action officer placed in charge of both operations
was Lieutenant Colonel Oliver L. North.
NSDD 159 facilitated the operational independence of the Na-
tional Security Council in two important ways: appeared to in-
crease the ability of agencies other than CIA to engage in covert
activity; second, it carves out an exemption from reporting to Con-
gress about a vast array of activities in support of CIA operations
performed by non-CIA government entities.
First, NSDD 159 grants the use of a finding by agencies other
than the CIA, appears to contravene President Reagan's own Exec-
utive Order on intelligence activities. Issued in 1981, the order
states that "no agency except the CIA may conduct any special ac-
tivity [covert activity] unless the President determines that another
agency is more likely to achieve a particular objective." [E.O.
12333, Section 1.8(e)]
In the arms-for-hostage transfers, for example, which the Nation-
al Security Council coordinated, no determination was ever made
that the NSC would "more likely achieve [this] particular objec-
tive" than the CIA. Nonetheless, one finding was issued for this
action in December, 1985, and two in January, 1986. Even so, the
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findings were deliberately withheld by the President from Con-
gress, which learned of the arms sales, with the rest of the world,
from a disgruntled Iranian middleman.
Second, because the NSDD carves out an exemption from report-
ing to Congress about an array of activities in support of CIA
covert, we believe the proposed legislation will fall short of its
goals. NSDD 159 weakens the reporting requirement by distin-
guishing "substantial support" to the CIA which must be described
in the "finding or memorandum of notification" from "routine sup-
port" which is exempt from the reporting requirements.
On its face, "routine support" may sound minimal, but NSDD
159 describes its scope as including "personnel, funds, equipment,
supplies, transportation, training, logistics, and facilities." The di-
mensions of these activities enlarge significantly when one consid-
ers the unreported covert NSC activities in Central America and
the Middle East following issuance of NSDD 159.
We cannot be certain that even the reforms proposed today will
prevent bizarre .and mistaken actions by our Government. Howev-
er, every effort should be made to ensure that the legislation will
be able to meet its objectives.
We urge you to include the following provisions in the bill or in
its legislative history.
One, existing NSDDs on covert action not consonant with the
terms of this law should be understood as inoperative and should
be officially rescinded by the President.
Two, the National Security Council must provide the Congress
- with copies of all existing NSDDs, and to the extent classified, then
the appropriate committees and leadership.
Three, copies of all newly issued Presidential National Security
Council directives must be provided to the Congress when promul-
gated, and to the extent classified, then to the appropriate commit-
tees and leadership.
Four, lastly, all support?"substantial," "routine," or otherwise?
by non-CIA Government components to CIA covert actions must be
fully and currently described in the finding or memorandum of no-
tification provided to the Congress by the Director of Central Intel-
ligence.
Mr. Chairman, we support this legislation and appreciate the op-
portunity to testify.
[The prepared statement of Mr. Buchanan follows:]
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'People For The IA
mencan Fray
ACTION FUND
TESTIMONY OF
JOHN H. BUCHANAN, JR. 4
CHAIRMAN, PEOPLE FOR THE AMERICAN WAY ACTION FUND
February 24, 1988
HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE
SUBCOMMITTEE ON LEGISLATION
HEARING ON H.R. 3822 "INTELLIGENCE OVERSIGHT ACT"
L
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1
I am John Buchanan, Chairman of the People for the American
Way Action Fund, a nonpartisan constitutional liberties
organization. I am pleased to testify today on behalf of the
270,000 members our organization. I am accompanied by our
legislative counsel Steven Katz.
Today's hearing is not without historic importance. It is
one of the first opportunities since the Iran-contra hearings for
the public, Congress, and administration officials to debate the
scope of intelligence oversight reforms. In a larger sense, it
is a debate over the foreign policy and national security role of
the Congress. As a citizen, and as a former Member of Congress
who served on the Foreign Affairs Committee, I am very pleased to
appear before you today to address these crucial issues.
SECRECY AND DEMOCRACY
The importance of secrecy to the security of our nation is
undeniable; but even national security is not very well served by
excessive government secrecy. In December, 1987, People for the
American Way released its report "Government Secrecy: Decisions
Without Democracy." The report culminates almost two years of
investigative research into the growth of official secrecy in the
United States and its consequences for our government and
citizens. It documents the ongoing tension between secrecy and
democracy, the existence of a secrecy system at work well before
the Iran-contra affair, and the potential for excessive secrecy
by future administrations -- Democrat or Republican.
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2
As historian and former presidential aide Arthur Schlesinger
states in the preface to our report:
Secrecy is the bane of democracy because it is
the enemy of accountability. The framers of the
American Constitution designed a system of
government intended to bring power and
accountability into balance. The secrecy
system, as it has been nurtured by the
executive branch over the last forty years and
with special zeal over the last seven years, is
the indispensable ally of the Imperial
Presidency.
CONGRESSIONAL OVERSIGHT
The bill you consider today, the "Intelligence Oversight
Act" is an essential piece of legislation, a reform mandated not
only by the Iran-contra affair, but also by the rightful role of
congressional oversight in our constitutional government. We
believe that Americans strongly support congressional oversight
and access to information. In a November, 1987, nationwide poll
commissioned by People for the American Way, the Roper
Organization asked Americans about government secrecy. Overall,
the response to the poll was a call for greater "openness in
government." 93% of those surveyed specifically supported
"openness in government" because Congress needs the information
to perform its oversight role.
OVERSIGHT OF INTELLIGENCE ACTIVITY
The question before us today, of course, is not simply
congressional access to information in general. It is information
about intelligence activity, particularly notification of covert
activity performed by the Central Intelligence Agency (CIA) and
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3
other government entities.
Congressional oversight of the intelligence community,
particularly "special" or covert activities, is central to the
legitimate foreign policy and national security role of Congress.
This goes beyond the fundamental oversight role of Congress in
the authorization, funding, and execution of government programs
and policies. American foreign policy and our system of
government cannot succeed unless the President and the Congress
cooperate. The Constitution gives both the Congress and the
Executive specific foreign policy powers. It does not make
foreign policy the exclusive domain of one branch, of government.
The result is a system of checks and balances which ensures that
our nation's foreign policy and national security framework is
consistent with the policy, law, and interests of our nation. To
do otherwise, as we have seen in the Iran-contra affair, is to
subvert our constitutional system, contravene established foreign
policy, and ignore the rule of law.
Indeed, former Director of Central Intelligence, Admiral
Stansfield Turner, states in his book Secrecy and Democracy:
In gauging whether congressional oversight has done
more good than harm, we have to look at the
benefits it affords. ... Most of all, the
requirement to report to Congress is valuable
because it forces the DCI and his subordinates to
exercise greater judiciousness in making decisions
about which espionage operations are worth the
risks. We have seen some of the unfortunate past
excesses that can be attributed to the absence of
adequate accountability... Finally, contact with
the congressional committees is salutary for the
CIA's people because it helps them keep in touch
with national views...For all these reasons,
congressional oversight is a definite plus.
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The proposed "Intelligence Oversight Act", like its Senate
counterpart passed in committee last month, provides the
necessary reforms to guarantee that the legitimate role of
Congress and our checks and balances system are functioning
effectively. In a perfect world, these principles would be self-
executing. We know from experience, however, that the mechanisms
for accountability must be both crafted and implemented
carefully. Democracy demands the vigilance of its citizens and
elected officials. The passage of the legislation before us today
is necessary for such vigilance to be meaningful.
Congress must be kept fully and currently informed of the
intelligence activities of United States, whether it is the CIA, .
the National Security Council (NSC), or other entities.
Notification of "special" or covert activities is particularly ,
important. We support the proposed requirement that the
intelligence committees are informed of a Finding "as soon as
possible after such approval and prior to the initiation of the
special activity authorized by the finding," and in exceptional
circumstances, we support the proposed 48-hour time limit for
notification pursuant to initiation of a covert operation.
The present notification system is ineffective for purposes
of proper congressional oversight. Frequently, the White House
has failed to comply with the notification rules, and when it
has, Congress's role is no greater than that of an umpire dusting
off homeplate after the batter has hit a home run.
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Congressional oversight and notification as outlined in this
bill is essential for our support of legislation on covert
activities. It is also important to recognize, however, that the
proposed legislation not only makes the president more
accountable, but appears to expand the president's power to
authorize covert activity. Under current law and executive order,
authority to engage in covert activity is limited to the C.I.A.
unless the president makes a determination that another agency
can do the job better. The bill you consider today establishes, a
new section of the National Security Act entitled "Presidential
Approval and Reporting Of Special Activities," and states that
"the President may authorize the conduct of a special activity by
departments, agencies, or entities of the United States
Government." We have some reservations about this apparent
expansion of authority, particularly as our nation emerges from a
scandal when agencies outside the C.I.A., acted with indifference
to the law. Covert operations should be limited. By their very
nature and as a matter of policy covert operations are not
accountable to many in government. They lack the broad
congressional and public support necessary to serve and protect
the nation's vital interests. Mr. Chairman, at this juncture in
our nation's history, it is unclear why Congress would so readily
dispatch the performance of covert activities to more, not fewer,
agencies of our government.
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NATIONAL SECURITY COUNCIL COVERT ACTION POLICY
Mr. Chairman, our organization suppports the proposed
legislation in large measure because it aims to ensure that our
government operates under established policy and law on
intelligence activity, even though particular covert operations
and plans remain vital secrets.
We, believe, however, that the legislation will fall short
of its goal of an established policy and law on intelligence
activity, unless the committee recognizes the impediments posed
by the promulgation of secret presidential directives. These
directives are issued through the National Security Council and
have established covert action policies binding on the government
today. Such directives have made it possible for government
officials to operate outside the scope of public laws and
executive orders on covert action, and are indifferent to
statutory action for congressional oversight.
The use of such directives, evolving through administrations
since President Truman has increased in sophistication and
authority. In 1976, a special Senate committee studying
presidential power concluded that these directives
represent a new method for promulgating decisions,
in areas of gravest importance. Such decisions are
not specifically required by law to be published in
any register, even in a classified form; none have
prescribed formats or procedures; none of these
vital Executive decisions are revealed to Congress
or the public except under irregular, arbitrary, or
accidental circumstances.
That description holds true today. Under President Reagan,
the series is called the National Security Decision Directives or
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NSDDs. Awareness of the series in Congress is very limited. As
Representative Anthony Beilenson, Chairman of the Intelligence
Oversight and Evaluation Subcommittee stated before a House
Government Operations Subcommittee last year:
What I have to say about NSDDs, as they are called,
will be brief. It is based on an incomplete
understanding of this form of Presidential
decision. That is because the Permanent Select
Committee on Intelligence does not receive copies
of NSDDs.
As of January 1, 1988 President Reagan has issued at least
286 NSDDs. Some are innocent, but many are not. On three
occasions Congress has overturned or nullified specific NSDDs
through legislation. NSDDs have been found to secretly create
national policy, to permit fugitive policymaking, and to avoid
oversight and accountability. President Reagan has issued NSDDs
to authorize an array of activities including the secret transfer
of millions of taxpayers dollars to Argentina to train Nicaraguan
rebels in 1981, increasing U.S. military activity in Central
America and the Caribbean in 1983, and authorization of the
Libyan disinformation campaign in 1986.
In the case of covert action policies, at least two NSDDs
demonstrate the ability of the president to secretly modify
established policy and law; and we believe could undermine the
purpose of this legislation. These are NSDD 159 "Covert Action
Policy Approval and Coordination Procedures," and; NSDD 286,
which is untitled, but sets policies and procedures regarding
congressional oversight of covert action which fall short of the
stricter requirements of today's bill.
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Focusing on NSDD 159, its history tells much about its
purpose and its danger. NSDD 159 was issued by the President on
January 18, 1985, shortly after the most significant of the
Boland Amendments had taken effect terminating military and
paramilitary aid to the Nicaraguan rebels. As stated in the Iran-
contra Committee report:
Still the President felt strongly about the
Contras, and he ordered his staff, in the words of
his National Security Adviser to find a way to keep
the Contras "body and soul together." Thus began
the story of how the staff of a White House
advisory body, became an operational entity that
secretly ran the Contra assistance effort, and
later the Iran initiative. The action officer
placed in charge of both operations was Lt. Col.
Oliver L. North.
NSDD 159 facilitated the operational independence of the
National Security Council in two important ways. First, it
extended the use of a Finding, the presidential license for
covert activity, to agencies other than the CIA. Second, taking
the opposite tack towards accountability, it carved out an
exemption from reporting
activities in support of
government entities.
First, the use of a
to Congress about a vast array of
CIA operations performed by non-CIA
Finding by agencies other than the CIA
appears to contravene President Reagan's own executive order on
intelligence activities. Issued in 1981, the order states that
No agency except the CIA may conduct any special
activity [covert activity] unless the President
determines that another agency is more likely to
achieve a particular objective. [E.O. 12333, Sec.
1.8(e)]
In the arms-for-hostage transfers, for example, which the
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National Security Council coordinated, no determination was ever
made that the NSC would "more likely achieve [this] particular
objective" than the CIA. Nonetheless, one Finding was issued for
this action in December 1985 and two in January 1986. Even so,
the Findings were deliberately withheld by the President from
Congress, which learned of the arms sales with the rest of the
world from a disgruntled Iranian middleman.
Second, because the NSDD carves out an exemption from
reporting to Congress about an array of activities in support of
CIA covert, we believe the proposed legislation will fall short
of its goals. NSDD 159 weakens the reporting requirement by
distinguishing "substantial support" to the CIA which must be
described in the "Finding or memorandum of notification" from
"routine support" which is exempt from the reporting
requirements. On it's face, "routine support" may sound minimal,
but NSDD 159 describes its scope as including "personnel, funds,
equipment, supplies, transportation, training, logistics, and
facilities." The dimensions of these activities enlarge
significantly when one considers the unreported covert NSC
activities in Central America and the Middle East following
issuance of NSDD 159.
Mr. Chairman, my incredulity increases each time I revisit
the facts of the Iran-contra Affair, and yet it happened. What's
worse is that it happened after Watergate and after the Church
Committee investigations of the CIA.
We cannot be certain that even the reforms proposed today
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will prevent bizarre and mistaken actions by our government.
However, every effort should be made to ensure that the
legislation will be able to meet its objectives.
I urge you to include the following provisions in the bill
or its legislative history: (1) Existing NSDDs on covert action
not consonant with the terms of this law should be understood as
inoperative and should be officially rescinded by the President.
(2) The National Security Council must provide the Congress with
copies of all existing NSDDS, and to the extent classified, then
the appropriate committees and leadership. (3) Copies of all
newly issued presidential National Security Council directives
must be provided to the Congress when promulgated, and to the
extent classified then to the appropriate committees and/
leaderUHip.(4) Lastly, all support, "substantial," "routine" or
otherwise by non-CIA government components to CIA covert actions
must be fully and currently described in the Finding or
memorandum of notification provided to the Congress by the
Director of Central Intelligence.
Mr. Chairman, and distinguished members of the committee,
thank you again for the opportunity to appear before you today.
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Chairman McHuGH. Thank you very much, Mr. Buchanan. I ap-
preciate your being here today and giving us your insights. Per-
haps you can begin by just saying an extra word or two about the
organization that you represent and its purpose.
Mr. BUCHANAN. We are, as I indicated, ? 270,000 strong. We are
private citizens; we are nonpartisan. Our purpose is to protect, en-
hance the constitutional liberties of American citizens, and we
sought to do so in a series of ways.
One of our areas of operation is in protecting freedom to learn
and combatting censorship activity in public education. We have
sought to combat religious intolerance in political life in the
United States. We think the pluralism of this country is its
strength and we have sought to protect the 1st amendment and
other constitutional rights and liberties of American citizens.
We also are attempting to do our part to uphold democratic
values, and toward that end, we are trying to increase voter and
citizen participation in the Government.
Chairman McHuGH. I am sure some of the people observing
these hearings did not know about your organization.
I would like to make one point. I think you have raised a number
of interesting and important issues in your testimony which we
should look at more carefully.
I want to reassure you that, at least on my behalf, there is no
intent to expand the authority that the President holds. There is
no real attempt to restrict the President from conducting covert op-
erations as compared to what he has now.
The real thrust of this legislation, as you know, is to require that
the Congress know what decisions are being made with respect to
covert operations so that we can perform our oversight function
and so that the President might have the benefit of our advice in
the case of a significant policy decision.
And, therefore, at least with respect to the one point you made,
it may appear that we are attempting to expand the President's au-
thority, but we really are not intending to? do that. We are simply
saying that if in fact he uses one of these organizations under exist-
ing authority, which perhaps is a question here, he must notify us
through the procedures described in the bill.
Beyond that, I will pass to my colleagues in the interest of time.
But thank you for your presentation this morning.
Mr. LIVINGSTON. Thank you, Mr. Chairman.
Mr. Buchanan, you have made a good contribution to this effort
although I don't completely agree with you. I am curious?I notice
you have come out in favor of the restrictive reporting period com-
pelling the President to consult with the Congress before he en-
gages in covert activity, under the most exceptional circumstances,
within 48 hours.
When the intelligence oversight legislation of 1980 was under
consideration by the Foreign Affairs Committee of Congress, on
which you served in the House, at that time Chairman Zablocld of-
fered an amendment which provided the President the realistic
flexibility to defer prior reporting if essential to meet extraordi-
nary, vital interests of the United States or was essential to avoid
unreasonable risk to the safety or security of the personnel or
methods provided.
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It seems to me that was a pretty good rule, and unfortunately I
am not sure that the Iran situation complied with that rule, but
you voted for that rule and now you have changed' your mind ap-
parently, and I wanted you to have a chance to explain your rever-
sal.
Mr. BUCHANAN. I yield to no one in my admiration for the gen-
tleman from Louisiana, whose integrity and reliability are quite an
asset to your district and to the Congress.
I guess we both have the right to be wrong, since perhaps I erred
in fulfilling similar responsibilities to the ones you are fulfilling
here. I was in the position of trying to defend the prerogatives of
the President, which, as a minority Member of the committee,
often fell my lot. When I first came to Congress, there were a few
people who would say "I agree with your voting record 100 per-
cent." I was tempted to say, 'If we are lucky we may be 75 right,
but the chances are it is more like 50/50."
I feel strongly at this juncture that what is more broadly at
stake is what I believe to be an affront to the Constitution in the
Iran-contra affair and to the constitutional prerogatives of the Con-
gress. I think there is an effort to get at something very important,
that Congress fulfill its constitutional responsibilities and that its
prerogatives be honored.
You represent the people. I have faith in the American people
themselves, and more faith in elected representatives than you
seem to have in yourselves and each other, because we are talking
about eight persons who have to be notified, eight persons in whom
I have specific trust, and eight persons who ought to be persons the
people can trust.
It seems to me we should not, in the name of preserving of a
democratic society, stray away from the very system that has made
it a democratic society, and therefore, if I had that vote to cast
again, I might cast it differently.. But I urge the Committee to deal
with the present problem as illustrated in Iran-contra, and one
that we in our report found to be a growing problem in Govern-
ment in areas beyond this.
The American people in majority, we have found, want greater
openness in government. They specifically want the Congress to
have the information it needs to exercise oversight in their behalf,
and I don't think it is an unreasonable provision of law to require
it.
Mr. LIVINGSTON. I appreciate your position, but I am concerned
that rigid rules will cause greater problems. I agree with you. The
implementation of the Iran-contra affair rubs against my sensibili-
ties for the same reason it does every Member of this Committee.
Mr. Hyde has expressed his opinion to that end. There were errors
made in implementation of that policy. The policy was well-moti-
vated, that we free our hostages and help the Freedom Fighters in
Nicaragua, but there were errors committed.
My concern is down the line if you are going to use this as an
example to compel the Central Intelligence Agency to make sure
that they dot their "i's" in every circumstance, we may find our-
selves in some circumstance in the future whereupon, frankly,
American lives again or the security interests of the United States
are seriously jeopardized.
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For example, right now we have a possibility of?let me back-
track. The CIA, in conducting operations, often need some menial
support from other agencies, such as weather reports from NOAA.
They can have the flexibility to rely on those other agencies to pro-
vide those functions and those services for people, to do it without
reporting to Congress, without reporting to the President, to do it
as a day-to-day routine matter.
What you are saying is that if we pass this bill, they have to
report to Congress virtually everything they do, and wouldn't this,
in addition to jeopardizing the security of the country and the
safety of Americans, wouldn't this end up in Congress being over-
whelmed with paperwork and oversight to the extent that we
couldn't possibly accomplish the micromanagement that is required
by the bill?
Mr. BUCHANAN. I don't think reporting of the NSDDs to Con-
gress would constitute a burden on the Administration, and it
could be limited to Members of Congress holding these responsibil-
ities. So I don't think that does constitute an overwhelming
burden.
Let me say that I think that congressional oversight may give
you the kind of need-to-know in the language of the Intelligence
Community that to do your job constitutionally, you have the need-
to-know about these things. If I were President, I would seek the
ge-htleman from Louisiana's counsel, that of the gentleman from Il-
linois, Mr. Hyde, the gentleman from Ohio, Mr. Stokes and others
in-Congress I trust, to get your judgment on whether we should do
A or B in the area of covert activities. If you had been consulted,
for example, you might have in 1984 not have agreed to the CIA
mining of harbors in Nicaragua, certainly not when two Members
of the Senate were on the scene there and could have been blown
up in the process.
There has been a series of decisions that had Congress been in
this way notified, your counsel might have been of benefit to the
President or the Director of Intelligence in a way that would have
been persuasive and prevented mistakes. "
Mr. LIVINGSTON. We were notified. There was an instance involv-
ing the Libyan raid in which Members of Congress? were notified in
advance, and whether you trust us or not, Sam Donaldson half an
hour before the raid came on the air and said there was going to be
a significant event involving Libya. There is a problem with disclo-
sure.
Thank you, Mr. Chairman.
Chairman McHuGH. Mr. Stokes.
Mr. STOKES. Thank you, Mr. Chairman.
I want to express my appreciation to Mr. Buchanan for his ap-
pearance here and his testimony. Most of us remember when he
served in this body with us and the high esteem we had for him
and the great integrity with which he served in this body. It is
indeed always a pleasure to see him.
MT. BUCHANAN. Thank you, sir.
Mr. STOKES. I have one question, perhaps just to invite a com-
ment. I think in this whole picture people sometimes tend to lose
sight of the fact that in this case, the Iran-contra case, what really
happened is that the law was circumvented. There was nothing in
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Iran-contra which prohibited the President of the United States
either from calling in the "Gang of Eight" or calling the Intelli-
gence Committees of the House and Senate and advising them of
what he was going to do.
Then he had a third alternative. Had he decided it was so sensi-
tive he could not comply with the law in that respect, he could
have then initiated his action, then given timely notice to the Con-
gress, and Iran-contra would never have been out of control as it
was.
Here, instead of complying with any one of the three options, the
President chose to instruct the CIA not to notify the Congress and
to let this action proceed in this unconstitutional manner.
From time to time our Committee -receives in the normal course
of business notification about covert actions and those covert ac-
tions proceed without any leaks or without any disclosures of any
kind, and in most instances, they are successful ventures. The prob-
lem here got out of hand because they actually circumvented the
natural, normal processes of government and actually circumvent-
ed the CIA.
People in the CIA, had they been permitted to carry out this
function in the normal way, could have carried it out because of
their ability to carry out actions of this sort, so this legislation
really deals with a situation were the President and others in our
administration attempted to circumvent the laws.
I don't know how much good it will do to enact this law. If they
choose to disobey the law, we are still in the same position. But at
least I think the American people will have seen the Congress act
responsibly in this respect.
Do you have a comment?
Mr. BUCHANAN. Mr. Chairman, I think your words I would
simply echo. It seems to me that while the American people over-
whelmingly want more openness in government and they want you
to have the information you are seeking to acquire by the reporting
requirements of this legislation, I don't think outside the Beltway
people have generally perceived the constitutional crisis that is em-
bodied in Iran-contra that I perceive. It seems to me that it is a
scandal. It is outrageous and it constitutes a challenge to the Con-
stitution itself.
We simply can't have a situation where lieutenant colonels run
secret wars from the basement of the White House as functionaries
of an agency that was never intended to be an operational agency
but an advisory body to the President. We can't have a situation
where the President and the Secretary of State are denouncing a
policy of doing business with terrorists while we are implementing
that policy from the basement of the White House.
We don't need a situation in which we have a disinformation
campaign going on toward Libya and all in secret, without knowl-
edge or participation by the people or their elected representatives.
I think that is a challenge to the Constitution and Bill of Rights,
whose bicentennial we celebrate now.
If the American people don't understand how precious a heritage
this is, they need to get themselves educated. They need to be con-
cerned about this. And if they are not, they ought to be ashamed.
Mr. STOKES. Thank you.
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Chairman McHuGH. Mr. Hyde.
Mr. HYDE. I, too, welcome John Buchanan, a very able Congress-
man and useful person now that he is elevated from the political
fever swamps to citizenhood.
On page 4 of your prepared statement, you say, "Frequently, the
White House has failed to comply with the notification rules.. . ."
Background material prepared by committee staff for last year's
hearings stated, "As far as we know, since enactment of the Over-
sight Act in the fall of 1980, the Committee has been given notice,
prior to implementation, of all findings, except for the January 17,
1986 Iran finding." So how do you reconcile your claims of frequent
Administration noncompliance with notification rules with our
committee's knowledge that in only one instance since 1980 has
prior notice not been given?
Mr. BUCHANAN. The White House has engaged in a struggle with
Congress over the spirit and level of White House requirements,
and timely notice has been stretched to its limits?the invasion of
Libya is a good example.
Mr. HYDE. Once.
Mr. BUCHANAN. There was no effective way for Congress to re-
spond. This behavior only contributed to the inability of Congress
to support the invasion. The letter of the law requiring findings
and reporting of findings has been ignored in coordinating Iran
arms sales, covert action without a finding or notification to the
Congress.
In November '85 the President authorized the covert sale of
Hawk missiles to Iran supposedly in exchange for hostages. The
hostages were never forthcoming.
Mr. HYDE. I wonder if I could interrupt. Regarding your refer-
ence to the exchange of arms for hostages, really that is not the
way it was supposed to work. The hostages were held in Lebanon
by Hizballah or the Islamic Jihad. We hoped the Iranians could in-
fluence the terrorists who were holding the hostages. Because you
couldn't deal with the terrorists, and Iran subsidized, trained and
supported the terrorists, you tried to get at the terrorists through
them. So it wasn't exactly weapons for hostages, it was weapons for
access. It is very complicated, and we say things so trippingly from
the tongue that make it weapons for hostages. It wasn't conceived
as such.
Mr. BUCHANAN. I think the whole phenomenon of NSDDs, which
I urge the committee to look at in further consideration of the leg-
islation, would start as position papers and then become what Mr.
Brooks calls secret laws. The number of these directives, the con-
tent of some of those you know about seem to say there was an
effort on the part of this President to do a good many things which
were at least unknown to you and some of which appeared to con-
travene a law you had passed and the will of the American people.
Perhaps that has not been true in as many instances as I believe,
but we know that the problem has existed. I need to make sure
that that particular, problem can't exist.
Mr. HYDE. I agree with almost everything that Mr. Stokes said.
He talked about options that were available to the President. I
don't see how you can have a successful foreign policy, especially a
high risk one, without taking into your confidence at least some of
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the important leaders in Congress. It is risk insurance. It shares
some of the responsibility. You get advice from a different perspec-
tive that the "yes men" around the President might not give him,
and I think it is foolish and counterproductive not to get that noti-
fication. I think that is wise, I agree.
I have a problem with rigidly circumscribing it by a number of
hours, because you deny a flexibility that I think the President has
constitutionally, but also that he may have to have, as we saw in
the Carter administration's Iran situation. Where we had six of our
people in the Canadian Embassy for a? matter of some three
months. There President Carter on two occasions failed to notify
Congress when they went in to test the ground and later when the
planes came in, because lives were at stake.
Ultimately notice was given in a timely fashion. I think the
standard of "timely fashion" makes sense. I think to try to micro-
manage it down to 48 hours is to put a chilling effect on operations
that may be necessary to save lives in a world of increasing terror-
ism and the need to cooperate with other countries who may have
people on the ground in places, whose lives are at stake, too. So I
think we need the "timely" notification, and I think it should be
statutory.
I think the President should have flexibility there. Ten months
in the Iran arms transfer situation is not timely, I couldn't agree
more, but I think he has not gone unscathed for failing to notify in
a timely fashion.
Mr. BUCHANAN. He supports timely fashion. The 48 hour period,
it seems to me that is a matter of negotiation for the committee
itself. But I would remind my distinguished friend that 200 years
ago today we were in the midst of the ratification struggle for the
Constitution of the United States and it was really threatened and
there had to be promised a Bill of Rights before some states would
ratify it.
And during that period of writing of the Federalist Papers, the
Bill of Rights?during that time frame, the Constitution was fully
explored by conventions of the various states, and the words were
pored over, and in the conventions the words were very carefully
drawn. It seems to me that it was very wise of the American people
to take a hard look at that which was to become the basic law of
the land.
It seems to me further that it is always right to bind men by the
chains of law?in Jefferson's words?and if you have a situation
where a President and his functionaries have disregarded the law,
have failed to do what the law required and in so doing, have
brought a challenge to the Constitution, I think it is not unreason-
able that Congress try to make sure that that not happen again.
I won't argue about the 48 hour thing. You can negotiate what is
reasonable and timely notification, but even with the 48 hours we
are talking about eight persons, or four if the Senate provision is
adopted, and four I believe to be trustworthy.
I want to say finally, and my good friend from Illinois I know
agreed with this, that the real strength of this country lies not in
our military establishment, though it is necessary. It certainly does
not lie in covert operations, although sometimes they may be nec-
essary. The real strength of our country lies in its people, like
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Bonnie Blair of Champaign, Illinois. People of courage and people
who are champions, I think, are the strength of this country.
I believe that the Congress is like a mirror reflecting what the
American people are. You see the strengths and the weaknesses,
the diversity, but I see no reason to trust more that vast array of
people in the military down at the low ranks who are privy to clas-
sified information, that vast array of people in the Executive
Branch, foreign nationals, as in the case of Iran/contra, private
citizens as in that case, more than we trust the elected representa-
tives of the people, and more than we trust a carefully selected
group of leaders who get to share in this process that can be impor-
tant to the American people.
I really think that you are doing right in this bill and I thank
you for it.
Chairman McHum'. Mr. Kastenmeier.
Mr. KASTENMEIER. Thank you,.Mr. Chairman.
I think you are right. We haven't, I suppose, as a committee done
a survey on whether notice was timely in a number of situations
that may or may not have been, but certainly as to the Iran/
contra, the Iran affair?there have been others, as you point out,
both the attack on Libya and the Grenada invasion?this commit-
tee was notified as a committee, the leadership was I think in both
cases, brought down to he White House and notified that the
attack was underway and in terms of what the statute contem-
plates, notification and consultation, they were not consulted, they
were merely informed, and informed so late in the process that
anything they would have said would have been irrelevant. That is
not the spirit of the law. Would you admit to that?
Mr. BUCHANAN. Absolutely.
Mr. KASTENMEIER. We heard the preceding witness suggest if we
were serious that we might consider in light of past failures, the
invocation of criminal penalties. I don't know that you dealt with
that question. What is your reaction to Mr. Clifford's suggestion in
that regard?
Mr. BUCHANAN. I think if I were in the gentleman's position, I
would have to very carefully weigh that proposal and anything I
said would be opinion, not judgment, because it is also new to me. I
do share the frustration of the gentleman from Illinois, Mr. Hyde,
about the problem of leaks and how to handle it. It seems appropri-
ate for the Congress to do something to put some kind of teeth into
law that would make it more injurious to guilty parties to leak in-
formation that could affect human lives or the national security of
the U.S.
I am not sure whether this is the right thing to do, and I would
share the reservations of the gentleman from Kansas about cutting
off an operation that might in itself have importance, but the
criminal provisions I think you should at least consider. I think
you should take a hard look and try to find some way?although
you can never completely eliminate leaks that are costly to the
country?I think it is appropriate to try to do something about it.
Mr. KASTENMEIER. You raise?you devote quite a bit of your tes-
timony to the interesting subject of national security directives,
NSDDs. Obviously, none of the directives would apparently be op-
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erable if the text of the directive were in opposition to existing
statutory law, isn't that correct?
Mr. BUCHANAN. Yes, but I don't know what has happened in the
past in that area. It would appear to me that some of the NSDDs
that were in-house being enacted by Lt. Colonel North and others,
from my point of view appeared to be in contravention of existing
law, and therefore, it seems to me if you can make sure either in
language in the legislation, or in the legislative history, to try to
strengthen the possibility that that doesn't happen in the future, it
would be a good thing to do.
Mr. KASTENMEIER. I want to join my colleagues in thanking you
for appearing today, both your organization and you personally, be-
cause it is a very sensitive area and there are many who testified
who have a direct interest institutionally in the area, and not very
many who have an interest which is not institutional in the sense
of being part of it, and you and your organization are in that mold
and the objectivity you bring to us is I think beneficial and appreci-
ated.
I thank the gentleman for his appearance.
Thank you, Mr. Chairman.
Chairman McHum'. Mr. Buchanan, let me, as chairman of the
subcommittee, express for all of us our appreciation. We admire
your record in Congress, which was a long and distinguished one,
but it is obvious that you are continuing to contribute in important
ways as a private citizen, and we thank you for your help here
today.
The subcommittee stands in recess until 2 o'clock.
[Whereupon, at 12:45 p.m., the subcommittee was recessed, to re-
convene at 2:00 p.m., the afternoon of the same day.]
Chairman McHuGH. The Subcommittee will please come to
order.
We are delighted this afternoon to have as our first witness our
colleague and good friend, Congressman Lee Hamilton, who has
served very capably as a Representative for Indiana's Ninth Dis-
trict since 1965. He is a senior member of the Committee on For-
eign Affairs and chairs that Committee's Subcommittee on Europe
and the Middle East.
He is also Vice Chairman of the Joint Economic Committee.
From 1981 through 1986, Congressman Hamilton was a member
of the Permanent Select Committee on Intelligence serving as
Chairman during his last two years on the Committee.
He was also Chairman of the Select Committee to Investigate
Covert Arms Transactions with Iran, and we were all, I might say,
Lee, very proud of the job you did for us in that capacity. We very
much appreciate your coming this afternoon to give us the benefit
of your insights on this legislation and we welcome your testimony.
STATEMENT OF HON. LEE HAMILTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF INDIANA
Mr. HAMILTON. Thank you very much, Mr. Chairman.
I appreciate the opportunity to testify and to appear before your
subcommittee and the Intelligence Committee whose work I respect
and-for whose members I have the highest esteem.
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I, of course, support H.R. 3822 and urge its enactment. In the
opening part of my testimony, I identify several provisions which I
think are important provisions, and so far as I know, relatively un-
controversial. Nonetheless; I want to mention them in the testimo-
ny because I think it is important to identify several of those provi-
sions which will provide a better understanding of the require-
menti and structure of congressional oversight of intelligence ac-
tivities. I ask my statement be included in the record in full.
? The requirement that you have a written covert finding, it seems
to me, is crucial. The requirement that the covert action support
foreign policy goals is important, a prohibition on retroactive find-
ings is important, a requirement that you have a full description of
the scope of the covert action and those parties that are going to
participate in it is important, and the requirement that you have a
signed presidential finding submitted to the Committee likewise is
important for the reasons I set forth in my statement. .
I understand, of course, that the prior notification requirement is
the critical feature of H.R. 3822. The structure of the bill is that
prior notification must be given to the Intelligence Committees or
to the Gang of Eight in all cases unless things are moving so fast
and you have an extraordinary situation which makes that provi-
sion for such notification impossible.
This is the formulation that I thought the Congress had enacted
in 1980. Timely notification was inserted into the statute to reflect
that formulation. At that time, the Administration?a Democratic
administration?persuaded the Intelligence Committees and the
Foreign Affairs Committees that the term "timely notification", al-
though ambiguous, was more in keeping with the spirit of intra-
branch comity and less offensive to Executive Branch sensibilities.
Now, we are told by the Administration that "timely" means
whatever the President says it means and that he can withhold no-
tification as long as we wants. It seems to me if we let this inter-
pretation stand, an interpretation that says the President can with-
hold information from the Congress at his discretion, then Con-
gress will have seriously weakened its oversight capabilities and
consented to a basic shift of power away from the Congress to the
Executive Branch.
Once the power to withhold information from the Congress is
granted to the President, how can it then be maintained that Con-
gress stands equal in power to the President?
The record suggests to ,me that Congress should pass an unam-
biguous, straightforward statute that permits no evasion from the
responsibility to keep Congress currently informed. Such a statute
must provide for prior notification of covert actions. Covert actions
do not fit comfortably within the traditional processes of our gov-
ernment.
Many times I believe?and I think most members of this commit-
tee believe?that covert actions are necessary. They can be a most
useful instrument of policy when their objectives are understood
and focused, when they complement accepted policy, when they are
used as a tool of foreign policy and not as a substitute for foreign
policy.
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Because covert actions can be so bound up with important for-
eign policy issues and because only the Intelligence Committees
can provide independent oversight over them they must be the sub-
ject of thorough discussion and divergent advice within the Intelli-
gence Committees.
Someone outside the foreign policy bureaucracy must have the
President's ear. When it becomes known within that bureaucracy
that the President is tilting one way or another on an issue, the
bureaucracy tilts the same way. That tilt is, it seems to me, appro-
priate. He is, after all, the President of the United States.
But few, if any, will tell the President that a proposed activity is
unwise. That is why it is so important for him to have outside inde-
pendent advice. And, when covert actions are at issue, that advice
cannot come from the public. It cannot come from the press, and it
cannot come from the Congress as a whole. It can only come from
the Intelligence Committees or the Gang of Eight. It must come at
a time when it will do some good.
That is why, in my opinion, the prior notice provision of the bill
is so crucial. Covert actions are too important, their implications
are too great, to consign their formulation to a closed group of pol-
icymakers loyal to the President. Remember, too, that once a major
covert action is begun, it is next to impossible to stop it.
Some say covert actions are too sensitive to divulge to the Intelli-
gence Committees, or to the gang of eight, or, as in the Senate bill,
to the gang of four.
What an astounding admission that argument is. It says, in
effect, that our most distinguished members, our leadership, cannot
be trusted. Also, the Intelligence Committees regularly receive in-
formation concerning intelligence programs and covert actions that
directly involve risk to human life. These secrets, and covert action
secrets, are protected, and protected well by the Intelligence Com-
mittees.
Dozens, even hundreds of people in the Executive Branch know
of covert actions. A few more senior Members do not expand the
risk.
Moreover, if Congress grants that some things are too sensitive
to tell Congress, is not then the whole oversight process irreparably
undermined? We have a government of coequal branches. Secrets
are not Executive Branch secrets; they are U.S. Government se-
crets.
Each branch must be responsible for them. Each House of Con-
gress must act to discipline any Member or staffer of the Intelli-
gence Committee thought to have breached his duty to protect in-
formation. But the Congress cannot, without seriously eroding its
powers, accept the notion that some secrets can be held only by the
Executive Branch, and not by the leadership of the Congress.
In the final analysis, it is a question of balance. We must balance
the harm that may result from the disclosure of a secret against
the value of consultation and independent advice for the President
prior to the initiation of a covert action. Have not the events of
recent years shown us that the President needs that kind of advice
in all circumstances? When covert actions are contemplated that
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will have profound effects on our security interests, the balance, in
our democracy, must be struck in favor of prior consultation.
In the long run that approach will serve us best.
Thank you very much, Mr. Chairman.
[The statement of Mr. Hamilton follows:]
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STATEMENT
OF
? THE HONORABLE LEE H. HAMILTON
FEBRUARY 24, 1988
SUBCOMMITTEE ON LEGISLATION
PERMANENT SELECT COMMITTEE ON INTELLIGENCE
MR. CHAIRMAN, MEMBERS OF THE COMMITTEE. I APPRECIATE THE
OPPORTUNITY TO APPEAR HERE TODAY TO DISCUSS CONGRESSIONAL
OVERSIGHT OF INTELLIGENCE ACTIVITIES.
I SUPPORT H.R. 3822 AND URGE ITS SWIFT ENACTMENT. IT SETS
OUT REASONABLE AND PRECISE PROCEDURES UNDER WHICH THE CONDUCT
OF NECESSARILY SECRET GOVERNMENT ACTIVITIES CAN BE SQUARED WITH
THE TRADITIONS AND VALUES WHICH UNDERLIE OUR REPRESENTATIVE
DEMOCRACY. IT DOES SO WITHOUT ANY RADICAL CHANGE IN EXISTING
STATUTES, AND WITHOUT RESTRICTING THE ABILITY OF THE PRESIDENT
TO RESPOND RAPIDLY IN EMERGENCY CIRCUMSTANCES. H.R. 3822 Is, I
BELIEVE, A MODEST RESPONSE TO RECENT EVENTS.
THE BILL HAS SEVERAL IMPORTANT AND SALUTARY PROVISIONS,
INCLUDING:
0 A REPEAL OF HUGHES-RYAN, AND COMBINING ITS SUBSTANCE
WITH THE PROVISIONS OF THE NATIONAL SECURITY ACT,
MAKES IT EASIER TO UNDERSTAND THE REQUIREMENTS AND
STRUCTURE OF CONGRESSIONAL OVERSIGHT OF INTELLIGENCE
- ACTIVITIES;
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0 A REQUIREMENT, IN MOST CASES, FOR A WRITTEN COVERT
ACTION FINDING INSURES ACCOUNTABILITY AND MORE
THOROUGH STAFFING;
O A REQUIREMENT FOR THE PRESIDENT TO FIND THAT A COVERT
ACTION IS "NECESSARY TO SUPPORT THE FOREIGN POLICY
OBJECTIVES OF THE UNITED STATES" WILL FORCE THE
PRESIDENT AND HIS STAFF TO FOCUS DIRECTLY ON THE
FOREIGN POLICY IMPLICATIONS OF THE COVERT ACTION;
A PROHIBITION ON RETROACTIVE FINDINGS WILL AVOID
RESORTING TO LEGAL STRATAGEM TO COVER PAST ERRORS OF
JUDGMENT OR POLICY;
O A REQUIRMENT THAT THE FINDING CONTAIN A FULLER
DESCRIPTION OF THE SCOPE OF THE COVERT ACTION AND OF
THOSE THAT WILL PARTICIPATE IN IT INSURES A MORE
THOROUGH REVIEW OF THE PROPOSAL, IN BOTH THE EXECUTIVE
BRANCH AND THE CONGRESS; AND
O A REQUIREMENT THAT A SIGNED PRESIDENTIAL FINDING BE
PROVIDED TO THE INTELLIGENCE COMMITTEES MAKES CLEAR
THAT THE DOCTRINE OF PLAUSIBILE DENIABILITY APPLIES TO
THE ABILITY OF THE UNITED STATES TO DENY TO-THE WORLD
RESPONSIBILITY FOR A COVERT ACTION; NOT TO THE ABILITY
OF THE PRESIDENT TO AVOID ACCOUNTABILITY AND
RESPONSIBILITY WITHIN THE UNITED STATES GOVERNMENT.
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THE PRIOR NOTICE REQUIREMENT, HOWEVER, IS THE CENTRAL
FEATURE OF H.R. 3822. As I UNDERSTAND IT, PRIOR NOTICE MUST BE
GIVEN TO THE INTELLIGENCE COMMITTEES -- OR THE GANG OF EIGHT --
IN ALL CASES, UNLESS THE EXIGENCIES OF A FAST MOVING AND
EXTRAORDINARY SITUATION MAKE THE PROVISION FOR SUCH NOTICE
IMPOSSIBLE. THIS FORMULATION IS WHAT I THOUGHT CONGRESS HAD
ENACTED IN 1980. "TIMELY NOTICE" WAS INSERTED INTO THE STATUTE
TO REFLECT THAT FORMULATION. AT THAT TIME, THE ADMINISTRATION,
A DEMOCRATIC ADMINISTRATION, PERUADED.THE INTELLIGENCE
COMMITTEES AND THE FOREIGN AFFAIRS COMMITTEES THAT THE TERM
"TIMELY. NOTICE", WAS, ALTHOUGH AMBIGUOUS, MORE IN KEEPING WITH
THE SPIRIT OF INTRA-BRANCH COMITY AND LESS OFFENSIVE TO
EXECUTIVE BRANCH SENSIBILITIES.
Now WE ARE TOLD BY THE ADMINISTRATION THAT "TIMELY" MEANS
WHATEVER THE PRESIDENT SAYS IT MEANS AND THAT HE CAN WITHHOLD
NOTICE AS LONG AS HE WANTS. IF WE LET THIS INTERPRETATION
STAND -- AN INTERPRETATION THAT SAYS THE PRESIDENT CAN WITHHOLD
INFORMATION FROM CONGRESS AT HIS DISCRETION -- THEN CONGRESS
WILL HAVE WEAKENED SERIOUSLY ITS OVERSIGHT CAPABILITIES AND
CONSENTED TO A BASIC SHIFT OF POWER AWAY FROM THE CONGRESS TO
THE EXECUTIVE BRANCH. ONCE THIS POWER TO WITHHOLD INFORMATION
FROM THE CONGRESS IS GRANTED TO THE PRESIDENT, HOW CAN IT THEN
BE MAINTAINED THAT CONGRESS STANDS EQUAL IN POWER TO THE
PRESIDENT?
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THE RECORD SUGGESTS TO ME THAT CONGRESS SHOULD PASS AN
UNAMBIGUOUS, STRAIGHTFORWARD STATUTE THAT PERMITS NO EVASION
FROM THE RESPONSIBILITY TO KEEP THE CONGRESS CURRENTLY INFORMED.
SUCH A STATUTE MUST PROVIDE FOR PRIOR NOTICE OF COVERT
ACTIONS. COVERT ACTIONS, AS A CONCEPT, DO NOT FIT COMFORTABLY
WITHIN THE TRADITIONAL PROCESSES OF OUR GOVERNMENT.
MAN,(TIMES COVERT ACTIONS ARE NECESSARY. THEY CAN BE A
MOST USEFUL TOOL OF POLICY:
- WHEN THEIR OBJECTIVES ARE UNDERSTOOD AND FOCUSED;
- WHEN THEY COMPLEMENT ACCEPTED POLICY; AND
- WHEN THEY ARE USED AS A TOOL OF FOREIGN POLICY, NOT AS A
SUBSTITUTE FOR FOREIGN POLICY.
BECAUSE COVERT ACTIONS CAN BE SO BOUND UP WITH IMPORTANT
FOREIGN POLICY ISSUES, AND BECAUSE ONLY THE INTELLIGENCE
COMMITTEES CAN PROVIDE INDEPENDENT OVERSIGHT OVER THEM, THEY
MUST BE THE SUBJECT OF THOROUGH DISCUSSION AND DIVERGENT ADVICE
WITHIN THE INTELLIGENCE COMMITTEES. SOMEONE OUTSIDE THE
FOREIGN POLICY BUREAUCRACY MUST HAVE THE PRESIDENT'S EAR. WHEN
IT BECOMES KNOWN WITHIN THAT BUREAUCRACY THAT THE PRESIDENT IS
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TILTING ONE WAY OR ANOTHER ON AN ISSUE, THE BUREAUCRACY TILTS
THE SAME WAY. THAT TILT -IS, IT-SEEMS TO ME, APPROPRIATE. BUT
FEW, IF ANY, WILL TELL THE PRESIDENT THAT A PROPOSED ACTIVITY
IS UNWISE. THAT IS WHY IT IS SO IMPORTANT FOR HIM TO HAVE
OUTSIDE INDEPENDENT ADVICE. AND, WHEN COVERT ACTIONS ARE AT
ISSUE, THAT ADVICE CANNOT COME FROM THE PUBLIC, FROM THE PRESS,
OR FROM THE CONGRESS AS A WHOLE. IT CAN ONLY COME FROM THE
INTELLIGENCE COMMITTEES OR THE "GANG OF EIGHT." IT MUST COME
AT A TIME WHEN IT WILL DO SOME GOOD.
THAT IS WHY, IN MY OPINION, THE PRIOR NOTICE PROVISION OF
THE BILL IS SO CRUCIAL. COVERT ACTIONS ARE TOO IMPORTANT,
THEIR IMPLICATIONS TOO GREAT, TO CONSIGN THEIR FORMULATION TO A
CLOSED GROUP OF POLICYMAKERS LOYAL TO THE PRESIDENT. REMEMBER,
TOO, THAT ONCE A MAJOR COVERT ACTION IS BEGUN IT IS NEXT TO
IMPOSSIBLE TO STOP IT.
SOME SAY COVERT ACTIONS ARE TOO SENSITIVE TO DIVULGE TO THE
INTELLIGENCE COMMITTEES, OR TO THE GANG OF EIGHT, OR, AS IN THE
SENATE BILL, TO THE GANG OF FOUR.
WHAT AN ASTOUNDING ADMISSION THAT ARGUMENT IS. IT SAYS, IN
,EFFECT, THAT OUR MOST DISTINGUISHED MEMBERS, OUR LEADERSHIP,
CANNOT BE TRUSTED. ALSO, THE INTELLIGENCE COMMITTEES REGULARLY
RECEIVE INFORMATION CONCERNING INTELLIGENCE PROGRAMS AND COVERT
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ACTIONS THAT THAT DIRECTLY INVOLVE RISK TO HUMAN LIFE. THESE
SECRETS, AND COVERT ACTION SECRETS, ARE PROTECTED, ?AND
PROTECTED WELL BY THE INTELLIGENCE COMMITTEES.
NEXT, DOZENS, EVEN HUNDREDS OF PEOPLE IN THE EXECUTIVE
BRANCH KNOW OF COVERT ACTIONS. A FEW MORE SENIOR MEMBERS DO
NOT EXPAND THE RISK.
MOREOVER, IF CONGRESS GRANTS THAT SOME THINGS ARE TOO
SENSITIVE TO TELL CONGRESS, IS NOT THE WHOLE OVERSIGHT PROCESS
IRREPARABLY UNDERMINED? WE HAVE A GOVERNMENT OF COEQUAL
BRANCHES. SECRETS ARE NOT EXECUTIVE BRANCH SECRETS; THEY ARE
U.S. GOVERNMENT SECRETS. EACH BRANCH MUST BE RESPONSIBLE FOR
THEM. EACH HOUSE OF CONGRESS MUST ACT TO DISCIPLINE ANY MEMBER
OR STAFFER OF THE INTELLIGENCE COMMITTEE THOUGHT TO HAVE
BREACHED HIS DUTY TO PROTECT INFORMATION. BUT THE CONGRESS
CANNOT, WITHOUT SERIOUSLY ERODING ITS POWERS, ACCEPT THE NOTION
THAT SOME SECRETS CAN BE HELD ONLY BY THE EXECUTIVE BRANCH, AND
NOT BY THE LEADERSHIP OF THE CONGRESS.
IN THE FINAL ANALYSIS, IT'S A QUESTION OF BALANCE. WE MUST
'BALANCE THE HARM THAT MAY RESULT-FROM THE DISCLOSURE OF A
SECRET AGAINST THE VALUE OF CONSULTATION AND INDEPENDENT ADVICE
FOR THE PRESIDENT PRIOR TO THE INITIATION OF A COVERT ACTION.
HAVE NOT THE EVENTS OF RECENT YEARS SHOWN US THAT THE PRESIDENT
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NEEDS THAT KIND OF ADVICE IN ALL CIRCUMSTANCES? WHEN COVERT
ACTIONS ARE CONTEMPLATED THAT WILL HAVE PROFOUND EFFECTS ON OUR
SECURITY INTERESTS, THE BALANCE, IN OUR DEMOCRACY, MUST BE
STRUCK IN FAVOR OF PRIOR CONSULTATION.
IN THE LONG RUN IT WILL SERVE US BEST.
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Chairman McHuGH. Thank you, Lee, very much for your state-
ment:-
You and your colleagues on the special committee investigating
the Iran-contra episode spent many months looking into the cir-
cumstances of that case, and heard from many witnesses, including
many Administration witnesses.
During the course of those investigations, what justification was
offered, if any, by the White House, by the Administration officials,
for not telling Congress about its covert operations to transfer arms
to Iran?
As you know, the express policy of our government was to not
deal with the terrorist-supporting states, including Iran, but there
was this covert, secret policy to do just the opposite.
Did the Administration have any justification to offer during the
course of your investigation about why Congress was not advised of
that covert operation?
Mr. HAMILTON. I think the position of the Administration was
that they did not advise the Congress of those activities that you
have correctly described because they did not trust the Congress
with the information. They thought the Intelligence Committees
would leak it.
The events of Iran-contra occurred when you had a law on the
books that required prior notice in most instances, and I guess, in a
few cases, limited instances, it required timely notice. The basic
justification by the Administration was its constitutional theory
that the President of the United States has an inherent power to
withhold information.
And if you accept that, then it really does not matter what we
write into statute. We can put the President has to notify us imme-
diately, or we can say 10 days, 100 days; but if you take the posi-
tion the Administration has taken that there is an inherent consti-
tutional power not to inform the Congress, then the statute in a
real sense becomes irrelevant. That was the justification. It is a
constitutional theory.
Quite frankly, when we passed the Intelligence Oversight Act in
1980 with that preambular clause in it, we simply did not address
this question head on.
This was, as you all know, passed under a Democratic Adminis-
tration. The Executive then, as the Executive now, was trying to
protect the Executive Privilege.
I think you have an extraordinarily expansive view of that power
today.
Chairman McHuGH. I presume it is fair to say that from your
perspective, given all the facts of that case, there was no justifica-
tion for withholding that information from the Intelligence Com-
mittees, or certainly the Gang of Eight?
Mr. HAMILTON. I think there was no justification for it. Indeed, I
would argue just the other side.
I think we would have had a very good chance to have saved our-
selves a lot of agony in this Nation if the procedures of the statute
had, indeed, been followed and elected members of the Intelligence
Committees or the Gang of Eight had had an opportunity, which I
am almost certain they would have exercised, to object vigorously
to the policies that were followed.
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Chairman McHuGH. Indeed, this is one of the reasons why prior
notice should be written into the law and seen as the namal proce-
dure?
Mr. HAMILTON. Yes. I agree.
Chairman McHuGH. Judge Webster, when he was here this
morning, emphasized that the President, has agreed through the
President's National Security Decision Directive, to abide by more
reasonable rules, taking the position, in effect, that although he
has the legal right to withhold information under the Constitution,
he promises not to do that.
What is your opinion about the National Security Decision Direc-
tive as a guarantee that Congress will have an opportunity to get
notice of these kinds of covert operations in a timely way? Is that
sufficient protection for the Congress?
Mr. HAMILTON. First, I think we should recognize that the Presi-
dent has taken a lot of commendable steps, as a result of the hear-
ings, as a result of the Tower Review Board, as a result of the In-
telligence Committees activities. The steps he has taken with re-
spect to the procedure to be followed on covert actions are com-
mendable.
They have been done by the National Security Decision Direc-
tive, as I understand it. I believe that those steps are sincerely
taken, and I would doubt that this Administration would carry on
any covert action today without informing the Congress.
In other words, I think I would argue that the Iran-contra hear-
ings have had a deterrent effect on the manner in which covert ac-
tions are carried out. Nonetheless, you are dealing here with a
matter that will affect far more than just the Reagan Administra-
tion, and we all know the difference between an Executive Order
and a law.
This matter is so basic?it is so fundamental?that I think it
should be a matter of statute. The President of the United States
must clearly understand that if he is going to conduct these covert
operations, he must notify the Congress in all circumstances. I
think the country will be strengthened as a result of that.
If I were the President, it would seem to me I would want that
power. I would want to take an idea for a covert action and get an
opinion on it from elected representatives who have some sense of
what the American people think and what this country should do
and to test my proposal against their independent judgment.
Presidents must know that the people that advise them so closely
are people many of whom he has appointed and are loyal to him,
as they should be, but even those who are not appointed by him
are people who believe that the President is the Commander in
Chief, and they serve the President, not the Congress.
Chairman McHuGH. Thank you very much.
Mr. Livingston?
Mr. LIVINGSTON. Thank you, Mr. Chairman.
Welcome, Mr. Hamilton. I have always enjoyed working with you
throughout your service and my service in Congress. I certainly en-
joyed serving under you when you were chairman of the full Com-
mittee on Intelligence.
Mr. HAMILTON. Thank you.
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Mr. LIyINGSTON. But as luck would have it, we do disagree on
this issue, and I hope you will not take offense if I say, in response
to your statement, I am aware that you are under the impression
that the only issue before us is the 48-hour notice and the prior
consultation by the President.
Let me say, referring back to the testimony of the current Direc-
tor of the Central Intelligence Agency, Judge Webster?there are
several concerns about this particular bill.
There are concerns about the vague language on the aggregation
of the dollar value of arms transfers which applies to specific coun-
tries.
There are concerns about the requirement to impose a process of
authorization and appropriation on nonappropriated funds at the
micro-management level of Central Intelligence Agency activities,
covert activities, and to involve the U.S. Congress at that level.
There are concerns that our definition of "special activities," as
this bill would change the Hughes-Ryan Act, became too broad and
that, frankly, a number of activities which have never been antici-
pated by the drafters of this bill might be under the purview of
Congress as covert action requiring a finding, again resulting in
micro-management.
All of these are problems. If you would like to comment on any
one of those problems, I certainly welcome your thoughts.
But I do want to go further and talk specifically about the 48-
hour notice.
Mr. HAMILTON. Well, I appreciate the gentleman's comments. I
saw the Director's statement this morning. I recognize that he
brought out several problems that, frankly, until then I did not
know were problems with the bill.
The early part of my statement, that portion of it not related to
the 48-hour notice provision, comments on important aspects of the
bill under consideration, which arose out of, incidentally, our expe-
rience in the Iran-contra hearings.
I would hope the gentleman would take a look at those, and my
comments with respect to the specific provision you mentioned are
limited because I do not know much about those.
Mr. LIVINGSTON. We will certainly have an opportunity to look at
those at greater length later on. We do have hearings on this sub-
ject scheduled, I think, for March 10th; is that correct?
Let's talk about the 48-hour notice. You said the events of recent
years have shown us that the President needs that kind of advice,
meaning consultation with Congress, in all circumstances. Let's
talk about "all circumstances."
This bill seeks to rigidly compel the President and the CIA to
consult with Congress in almost all circumstances before they
engage in covert action; then under extraordinary circumstances,
always, without exception, within 48 hours after commencing the
covert activity.
I question whether or not that really envisions all circumstances.
I wonder if we are not foreclosing our options and if?in fact, Mr.
Hamilton, can't you foresee some circumstance so volatile that if
even one person comes into the loop and gets the information and
finds out about the information who doesn't really need to know
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about the activity, that the project?and, more importantly, lives of
people?could be jeopardized?
Don't you think there is any situation that could develop at such
a time that if Congress is notified prior to or 48 hours after a
covert action is authorized in response to the incident, that such an
event might occur and that people might genuinely be placed in
danger if just one person finds out that doesn't really need to know
about that project?
Mr. HAMILTON. Mr. Livingston, I think the risk is greater on the
other side. I think the risk is greater when the President does not
have the independent advice than is the risk that you describe.
I really can not think of any specific factual circumstance when
a president could not notify at least the gang of eight within the
48-hour period.
Any covert action is going to?certainly any paramilitary covert
action, but probably any covert action?is going to involve a lot of
people. It is going to involve scores of people at the White House, it
is going to involve scores of people in the Central Intelligence
Agency. If you use military forces, it is going to involve hundreds
of people. If all of those people can know about it, but the Speaker
of the House and the Minority Leader of the House cannot know
about it, I just think that is a situation that is unacceptable to the
Congress.
If you take the position of the Administration, Mr. Livingston,
you do not define the circumstances where a president can with-
hold notice. It is a wide-open situation for them, if you use the
phrase "extraordinary circumstances."
When we asked Mr. Meese what kind of circumstances you are
talking about, he responds in the most vague kind of sentences, so
that, in effect, a President has extraordinary power just to with-
hold information.
My view is that the risk really is not great that you described,
but it is much greater for a President to act without sufficient in-
dependent advice.
Mr. LIVINGSTON. I think your reference to Mr. Meese's testimony
really describes his approach or his interpretation of timeliness at
the time they were conducting the Iran covert activities. I daresay
his interpretation of timeliness today would be much different and
that he would probably say that it was a much briefer period of
time.
Mr. HAMILTON. Keep in mind, Mr. Livingston, that we never
would have been notified of the activities of Iran-contra had it not
come out in the press. The Administration never did come to a po-
sition.
Mr. LIVINGSTON. Let's just put the shoe on the other foot for a
second.
You recall the incident where we attacked Libya. Our planes
went in and attacked. There was consultation there. There was a
leak to the press, which resulted apparently in Sam Donaldson's
announcement that some big project was about to occur some half
an hour before the raid. We ended up losing a pilot.
I don't have any idea who ended up leaking that information,
but it is quite possible that whoever did leak it could have en-
hanced the anti-aircraft readiness of the Libyan government. We
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might have lost that plane and that pilot because that information
was leaked prematurely.
It seems to me that we ought to have some concern for the
people who are out there in the field protecting the security inter-
ests of the nation and who frankly could be jeopardized by some
unforeseen event, an event we can't contemplate today, which does
require a withholding of information from the Congress for longer
than 48 hours.
Mr. HAMILTON. Well, I think you need to be commended for your
sensitivity to that. I hope I do not appear insensitive to the prob-
lem that you raise, because the problem of leaks can be a serious
one.
I want to check my recollection here, but my recollection is that
the bombing in Libya was printed in the European newspapers a
day or two before it occurred. I will check that. But that is my
recollection of that particular instance. So I don't think it was any
overwhelming surprise that that raid took place.
But let's assume that the information is terribly sensitive. The
premise really of your position is that the leadership of the Con-
gress is going to leak it, that the most respected members of our
institution are going to leak that information. I just do not think
that is the case.
I would share your view if we were requiring the President to
notify the Congress of the United States, but every member of this
Intelligence Committee is selected with enormous care. I know that
because I participated in the selection process, although it is obvi-
ously the Speaker's call. You do not put members onto this com-
mittee unless those members are respected and are thought by
their peers to be able to keep silent. .
What is true of the members of the Intelligence Committee is
surely true of the leadership of this Congress. If we cannot trust
the Speaker and the Minority Leader and the Gang of Eight, our
institution is in grave peril.
Mr. LIVINGSTON. Thank you.
Chairman McHuGH. Mr. Stokes?
Mr. HAMILTON. May I make one comment, Mr. Chairman?
Chairman McHuGH. Yes, please.
Mr. HAMILTON. This respects the Gang of Eight. This is not rele-
vant to Mr. Livingston's question. But I noticed the Gang of Eight
excludes the Majority Leader of the House.
I just put that before you for your consideration. You identify the
Speaker and the Minority Leader, the leaders of the Intelligence
Committees, but I just wonder if you ought to exclude the Majority
Leader of the House from the people who are notified.
Chairman McHuGH. Thank you for that thought. We will cer-
tainly take that under consideration.
Mr. Stokes?
Mr. STOKES. Thank you very much, Mr. Chairman.
I just want to express my appreciation to Lee Hamilton for his
appearance here this afternoon and his testimony on this bill.
I had the pleasure of serving under his chairmanship on this full
Intelligence Committee and under his distinguished chairmanship
of the Iran-contra committee. It is indeed an honor to have him
here this afternoon.
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I wonder if I might ask you to comment upon what I thought was
some excellent testimony this morning from the Director of the
CIA, Judge Webster. I thought he made two points which I think
need to be given serious consideration.
One point was, as he said in his testimony, "I have taken steps
within the CIA to discipline those employees who failed to follow
CIA procedures and meet the standards of conduct expected of CIA
employees or who testified to Congress in a manner that was not
candid or forthcoming." To his credit, he has done that, and he is
to be commended for it.
He also says in his testimony, "Similarly to the extent there
were any procedural shortcomings demonstrated by the Iran-contra
matter, they have already been addressed by the new Presidential
directive within the present statutory framework."
As you know, Lee, during the course of the Iran-contra hearings
we ran across another NSDD that had been issued by the President
relative to Presidential findings and notice to Congress which had
been totally ignored by the President.
I just wonder if you would comment on those two aspects of the
Director's testimony?
Mr. HAMILTON. Well, with respect to the discipline steps taken, I
am not familiar with those in detail, but my impression is the
same as yours. I think the Director should be Commended for the
steps he has taken, and I know he has been responsive, in part at
least, to the pleas of members of Congress. I would join you in your
commendation of him.
I also note, with regard to the second point, that he himself rec-
ognizes that the Presidential directive is not the same as legisla-
tion. He goes on to say that he is persuaded that new legislation is
not the best way to address the concerns that members have.
I think the fundamental difference here is a kind of a difference
in time perspective. Members of Congress serve through several ad-
ministrations, sometimes many administrations, and we recognize
that presidential directives, after all, do not get much publicity
within the Congress.
There are few members of Congress who know what is in a presi-
dential directive. We tend to know much more about legislation,
and there is a permanence to the legislation that is important.
You are dealing in this area with the fundamental national secu-
rity interests of the United States, and you are dealing with it not
with respect to President Reagan but with respect to many presi-
dents to come.
I think the features of the bill deserve to be stated in permanent
legislation.
Mr. STOKES. Let me ask you this. In light of our experience in
terms of the Iran-contra investigation, the things we learned there,
do you have an opinion as to whether or not we should write some
prohibition into this legislation that the NSC should not have an
operational role in covert actions?
Mr. HAMILTON. I think the NSC should not have an operational
role in covert actions and, as I understand it, the President has
written that into a Presidential directive. I think he is to be com-
mended for that.
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I think I would feel more comfortable about it if it were written
into law.
Mr. STOKES. Thank you very much.
Thank you, Mr. Chairman.
Chairman McHuGH. Thank you, Mr. Stokes.
Mr. Kastenmeier?
Mr. KASTENMEIER. Thank you, Mr. Chairman.
I guess my recollection is a little bit different than that of my
colleague, Mr. Livingston, about a couple of matters in which there
was alleged to be notice and consultation, the Libyan attack and
the Grenada invasion.
It is my recollection that the leadership, certainly privately and
perhaps publicly, complained that they were called in at the last
minute when, as a matter of fact, the operations were underway;
that in no way can one suggest that they were, pursuant to law,
consulted. They were informed and probably not timely informed.
Is that not your recollection?
Mr. HAMILTON. Mr. Kastenmeier, I am not certain about that. I
think my recollection is that they were informed when the planes
were in the air. That is when the actual notification was made at
the White House.
It seems to me that is what I recall.
Mr. KASTENMEIER. That is my recollection, as well.
One witness this morning suggested that based on his long expe-
rience and based on the fact that we have been through this a
couple of times, several times, one as late as 1980?I am referring
to Mr. Clifford?he suggested that failure to observe the statutory
restraints should be accompanied by a criminal penalty. Of course,
that is not, as I understand it, in either the House or Senate legis-
lation pending before us, but I am wondering what your reaction to
Mr. Clifford's suggestion is.
Mr. HAMILTON. It is a new suggestion to me. I have not consid-
ered it. My initial reaction to it is not supportive. I don't think a
violation would ordinarily rise to the level of a criminal sanction, if
by criminal sanction you mean a felony, a prison sentence and all
the rest. I don't think that would be necessary.
Mr. KASTENMEIER. In other words, is it your view that you think
no sanction would be necessary?
Mr. HAMILTON. I think what is necessary is a clear and precise
statement of what the Congress of the United States expects the
President to do in these situations and I think presidents will do it
so long as it is clear.
When you have a phrase like "timely notification", that obvious-
ly invites a difference of interpretation, an ambiguity. Before I
would want to consider a step that I would consider to be quite se-
rious, the inclusion of criminal sanctions, I think the first step
surely should be just a clear statement of what we think the re-
sponsibility of the President is.
Incidentally, I think all of us here would agree that the Constitu-
tion would permit the Congress of the United States to prohibit
these activities if we wanted to. We do not want to, but if the Con-
gress has the power to prohibit these activities, then surely we
have the power to say that these activities may go on, but that the
President must notify us.
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That is much less of a requirement than prohibition.
Mr. KASTENMEIER. Another suggestion that was parenthetically
made by our colleague, Mr. Hyde, with which the witness agreed?
that is to say, Mr. Clifford?was that the Congress ought to think
about terminating the present arrangement of two intelligence
committees and go to a single joint committee with a very limited
number of members.
What is your reaction to that suggestion?
Mr. HAMILTON. Well, the Select Committees considered that. It is
a point there was some difference on. The majority recommenda-
tion was that we should not approve a joint committee. I agreed
with that majority recommendation.
I was reminded by some of my staff friends that I at one time
had supported the idea of a joint committee. From time to time
here, you change your mind on matters. I have come to the view
that the lesson of Iran-contra and other events, too, I guess, is that
the intelligence communities require a very rigorous oversight, and
my suspicion is that many who favor a joint committee really favor
less oversight, not more.
I don't think that is true, may I say, of all who support the joint
committee idea, but I think it is true of many.
I believe that the independent evaluation by the two separate in-
telligence committees makes sense.
There is another factor here, I think, that is important. That is
the intelligence committees are extremely sensitive committees
within the Congress.
And you all know that Members of Congress look carefully to
what you do and think about issues and there is a certain respect
that builds up in the House for Members of the Intelligence Com-
mittees that I think is peculiar to the institution of the House and
peculiar to the institution of the Senate, and if you combined them
in a joint committee, I think you would have less respect than you
may now have.
So I do not approve of the idea of a joint committee.
Mr. KASTENMEIER. Thank you, Mr. Chairman.
Chairman McHum'. Thank you, Mr. Kastenmeier.
Are there any other questions?
Thank you very much, Lee, for being with us and for your testi-
mony and especially for all the fine work you did as chairman of
that select committee and as chairman of this permanent commit-
tee.
Mr. HAMILTON. Thank you, Mr. Chairman.
Chairman McHum'. Our next witness is Professor Alan Good-
man, Associate Dean of the School of Foreign Service at George-
town University.
From 1975 to 1980, he served in the Central Intelligence Agency
as an analyst with the Directorate of Intelligence, then as Special
Assistant to the Director of the National Foreign Assessment
Center, and as Presidential Briefing Coordinator for the Director of
CIA.
He holds an MPA and Ph.D. from Harvard and a BS from North-
western. At present, he is also a lecturer at the Foreign Service In-
stitute, a consultant to the Rand Corporation, and Chairman of the
Editorial Advisory Board of The Atlantic Quarterly.
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We are delighted to have you with us and we appreciate your
testimony.
Mr. Goodman.
STATEMENT OF DR. ALLAN E. GOODMAN, ASSOCIATE DEAN,
SCHOOL OF FOREIGN SERVICE, GEORGETOWN UNIVERSITY
Dr. GOODMAN. Thank you, Mr. Chairman.
I do appreciate the chance to express my views and I have fo-
cused my statement which you have and would like to focus my re-
marks largely on the prior notice requirement of H.R. 3822.
I think this legislation is very important. I think it strengthens
congressional oversight. I think it incorporates further into intelli-
gence law the principle of checks and balances. I also think it is
consistent with sound intelligence practices.
Rather than read my statement, I think I will try to summarize
by doing two things: One, refer to how I think the intelligence com-
munity is going to positively benefit from a prior notice require-
ment; and second, address two questions that I know from prior
testimony are on your minds.
One is, is this consistent with security; and the other is, will it
inhibit foreign intelligence services from cooperating with the
United States?
? Let me begin with the first point in terms of how the intelligence
community, I think, will positively benefit from the prior notice re-
quirement.
I would like to make two points; the first by quoting a publica-
tion of the Central Intelligence Agency which is an extract from
their in-house journal called "Studies in Intelligence" published
this fall in commemoration of our Constitution.
On pages 78 and 79, a top intelligence officer who has appeared
many times at your committee, I think, writes, "Another benefit of
congressional oversight is that it forces the CIA, an organization
schooled in activities abroad, to confront the American political
process. Many CIA managers are well informed about situations in
other countries, but uninformed about the home front. Exposure of
these managers to Congress not only forces them to learn how a
closed intelligence agency fits into an open society, but also forces
them to acquire skills and experience that make them better man-
agers. The result is development of a CIA cadre that appreciates
from experience the role of Congress in the political system."
It seems to me in perhaps no other facet of intelligence work is
the need for the manager at Langley to be aware of and sensitive
to our political process greater than in the area of covert action,
and I think this bill furthers that goal, because covert action oper-
ations involve the CIA deeply and directly in something that intel-
ligence agencies rarely do, namely, the active promotion and sup-
port of American foreign policy.
I think it is especially vital that those who propose and manage
covert activity have access to the political experience and the inde-
pendent appraisal and wisdom of the members of the Intelligence
Oversight Committees before these operations are launched.
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So I think the confrontation with Congress, the exposure to our
political process, is a very positive political benefit and something
which the CIA recognizes itself in this publication.
Second, I think it is really important to look at the matter of
prior notice from the perspective of an intelligence officer and from
the perspective of those officers who may have to carry out a
covert action.
In previous testimony, I know several DCI's referred to the diffi-
culty they would have had in looking an agent in the eye and
asking them to conduct a covert operation if they had to also tell
that agent that the senior leadership of Congress was being in-
formed before the operation was launched.
I think the next DCI is going to find a changed attitude among
intelligence officers at Langley, and I think it is the direct result of
the Iran-contra affair.
The intelligence officer today, and especially tomorrow, who may
have to carry out a covert operation is going to want to know two
things: First, that the operation can be kept secure, and I will come
to that when I address whether or not prior notice is consistent
with security. But the other thing he will want to know is that
Congress has been duly and properly informed and that he is going
to undertake an activity that is fully consistent with U.S. laws.
Because not to have that kind of assurance results as it did in
the Iran-contra affair in ruined careers, recriminations, low
morale, and ultimately the exposure of a covert operation through
the investigation and hearing process.
So it seems to me that from the perspective of a professional in-
telligence officer they would want to know that Congress has been
informed, that it is a lesson they are going to draw from the Iran-
contra affair and something that a DCI in the future owes them
just as much as they owe secrecy and security.
I know two questions are much on your minds: Is prior notice
consistent with security?
The answer to that question, in my mind, is yes, partly because
we have had good experience with it.
As the CIA General Counsel testified before you in June of 1987,
prior notice has been the norm, and I can only find three instances
between the Carter and the Reagan Administrations when prior
notice has been withheld.
So it would seem to me that the oversight process with respect to
voluntary prior notice is working well from the point of view of se-
curity.
It also occurs to me because we have to think about unforeseen
circumstances that what we have going for us today which we
didn't have a few years ago is the new Crisis Management Commu-
nications Center in the White House, something created by Mr.
Meese and Judge Clark a few years ago and it has been substan-
tially upgraded.
This Crisis Management Center, I think, provides the secure
communication facilities that would make it possible to inform at
least the senior membership of Congress, if not the appropriate
members of the Oversight Committee of a covert operation before
it is launched, no matter how serious the crisis, how precious the
time, how dire the emergency.
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I think the capability in the facility is here now and it might not
have been here a few years ago, and I think it is something that
would facilitate briefing the appropriate senior Members of Con-
gress without risking the disclosure of a covert action operation
before it was launched.
The second issue I know of concern is the question of whether
having a requirement for prior notice would inhibit foreign intelli-
gence services from cooperating with the United States.
This is a very sensitive area, but I think you have to look at the
record of the Casey administration, because my answer is no, I
don't think it will inhibit the kind of cooperation we need from for-
eign intelligence services.
The late Mr. Casey made it a high priority to increase foreign
intelligence cooperation, particularly in the area of counterterror-
ism and narcotic interdiction with foreign intelligence services.
From statements he made about this priority and the success he
had with it, I think he did succeed. He did so at a time, of course,
when prior notice had been given to Congress of virtually all covert
operations and it seems to me that the decision about whether or
not a foreign intelligence service cooperates with us or vice versa is
based much more on considerations of what is in it for us or them
than it is on whether or not their parliament or our Congress has
intrusive oversight of covert action in intelligence operations.
So it seems to me that intelligence cooperation is going to contin-
ue whether or not this provision is enacted into law, and enacting
a prior notice requirement, I don't think, will have a chilling effect
on this important area of intelligence, namely the cooperation be-
tween the United States and foreign intelligence services.
In conclusion, Mr. Chairman, I think that the H.R. 3822 makes
good sense and I also think it sends, if passed, a very important
signal that we have put the Iran-contra affair behind us; we have
learned appropriate lessons from it, and we have applied them in a
way that won't cripple the, effectiveness of American intelligence in
the future.
Thank you very much.
Chairman McHuGH. Thank you very much for a good summary.
[The statement follows:]
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'STATEMENT BY
Dr. Allan E. Goodman
Associate Dean, School of Foreign Service
Georgetown University
HOuse Permanent Select Committee On Intelligence
Hearing on H.R. 3822
24 February 1988
Mr. Chairman, I appreciate your invitation to express my
views on H.R.3822. The focus of my statement will be on that
part of the bill which requires the president to assure that
the intelligence oversight committees of Congress are fully
informed about covert action operations before they are
initiated.
Covert action is a very small part of what the
intelligence community does, but has repeatedly gotten the
CIA into enough trouble with Congress to warrant this change
in the law. As the CIA's own in-house journal, STUDIES IN
INTELLIGENCE, recently concluded: "When an administration
resorts frequently to covert action, credibility problems are
exacerbated, and CIA pays a high price." It has certainly
done so in the wake of the Iran/Contra affair, where covert
action was used to carry out operations directly contrary to
stated U.S. foreign policy positions and in a manner that
violated basic tenets of the intelligence profession.
But unless or until the president finds that covert
action is no longer in the nation's interest, I think it is
vital that its use be regulated by our laws and that the
1
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cburse of action it represents be wisely chosen. The
requirement of H.R. 3822 for prior notice would at least
assure that these operations are legal and that they are
credible to more than the strong personalities who make
national
security policy in the White House.
incorporate the principle of checks and balances
cornerstones of our constitutional system-- into
law.
And it would
--one of the
intelligence
Moreover, given the necessity for effective oversight of
covert action, the prior notice requirement is essential to
allowing Congress to perform its proper function. H.R. 3822
is, thus, a major step both toward improving congressional
oversight and one that is consistent with sound intelligence
practices.
As previous testimony before this committee and before
the Senate Select Committee on Intelligence (on S. 1721) has
established, such prior notice has been given to the Congress
for nearly every covert action authorized by presidents
Carter and Reagan. Prior notice thus does not appear to have
been an encroachment on the president's power to conduct
foreign policy. In reviewing the testimony previously given
to this committee, I was struck by the fact that while prior
notice of covert action has been the norm for at least a
decade (according to the CIA's general counsel), it has not
had a chilling effect on the Reagan administration's vigorous
resort to this instrument of foreign policy. In fact, the
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121
number of covert action operations increased in the Reagan
administration some five times compared to the record of the
Carter administration.
Nevertheless, the administration's spokesmen have
opposed H.R. 3822 (and its companion bill in the Senate) on
grounds that to require prior notice in all instances would
compromise security, would be logistically difficult to
implement in crisis situations, an would weaken the
credibility and effectiveness of the intelligence community.
The experience to date suggests that when prior, notice
has been given, the Congress has kept the operation secret.
While details of many covert actions have eventually been
revealed, this has not occurred as a result of the DCI
providing the oversight committees or congressional leaders
with prior notice. Moreover, the operations run as covert
actions where such notice was withheld -- the aborted rescue
of American hostages in Iran in 1979 (when a considerably
larger number of representatives and senators had to be
informed of covert actions than is the case today), the
Iran arms-for-hostages initiative undertaken by the NSC staff
in 1985-1986, and the Contra re-supply effort -- have
resulted in far more damage to the credibility of the United
States and the effectiveness of the intelligence community
than would have been the case had Congress been properly
informed. And clearly in the case of the Iran arms
initiative, the oversight committees would have been more
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reliable in keeping the details of the operation secure than
foreign privateers and Iranian mullahs._
Another frequently-made argument against the prior
notice requirement is that unforseen circumstances in a
crisis may make it impossible for even a handful of senior
Congressional leaders to be briefed before an operation had
to be launched. I do not find this argument compelling in
light of the secure communication capabilities that the White
House now has as a result of the creation of its crisis
management center. Even in the most dire of circumstances,
this facility makes it possible to contact at least some
congressional leaders immediately and to brief them on the
operation without risking disclosure.
Nor does the practice of giving the congressional
oversight committees prior notice of covert action appear to
have had a chilling effect on the cooperation of foreign
intelligence services with the CIA. I infer this from the
statements made by the late William Casey (at conferences
sponsored by SRI International and the Fletcher School of Law
and Diplomacy in 1985), indicating that such cooperation had
been increasing during his tenure as DCI, especially in the
areas of counter terrorism and narcotics interdiction. In
any case, the principal motives for foreign intelligence
services to cooperate with United States agencies have been
traditional friendships and affinities, as well as
hard-headed appraisals of what they were likely to gain from
4
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such intelligence sharing. These considerations appear to
have far outweighed concerns with the ability of either the
U.S. or allied intelligence services to keep secrets or limit
parliamentary oversight. For example, the relationship the
U.S. has maintained over the years with British intelligence
continues despite the fact that the British services have
been repeatedly penetrated by the KGB and the CIA has,
according to the Deputy Director of Central Intelligence
(writing in the winter issue of FOREIGN AFFAIRS), become "the
most visible, most externally scrutinized and most publicized
intelligence service in the world."
Instituting a prior notice requirement now would benefit
the intelligence community in two important ways. First, as
a top intelligence officer recently noted in the CIA's
in-house journal, STUDIES IN INTELLIGENCE, "congressional
oversight...forces the CIA...to confront the American
political process. Many CIA managers are well informed about
situations in other countries, but uninformed about the home
front. The exposure of these managers to Congress not only
forces them to learn how a closed intelligence agency fits
into an open society, but also forces them to acquire skills
and experience that make them better managers." In perhaps
no other facet of intelligence work is the need for the
manager to be aware of and sensitive to the American
political process greater than in the area of covert action.
Because covert action operations involve the CIA directly
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in active measures to support U.S. foreign policy, it is
vitally important that those who propose and manage them have
access to the political experience and independent appraisals
of the members of :the intelligence oversight committees
before such operations are launched.
Second, I think it is important to look at the matter of
prior notice from the perspective of an intelligence officer,
who may have to carry out a covert action. In previous
testimony, several former DCI's have referred to the
difficulty they would have had in asking their agents to
undertake a covert action mission if it had to be reported to
Congress before it was underway. To do so, they argue, would
increase the probability that details of the operation would
be revealed and that the agent's life would be put at even
greater risk. But the Iran/Contra affair, especially, has
changed the outlook of many intelligence officers. Today, an
operative would want to be assured both of secrecy and of the
fact that the Congress was given the appropriate prior notice
of the covert action they were about to Undertake in order to
avoid charges of impropriety later, charges which might well
result in the hearings and public exposure that ruins careers
and damages the credibility of the U.S. intelligence
community.
In short, Mr. Chairman, prior notice makes good sense
for both the intelligence community and the oversight
process. Swift passage of H.R. 3822 would be an important
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signal at home and abroad that we have learned some lessons
from the Iran/Contra affair and have begun to put it behind
us without crippling the nation's intelligence services.
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iz6
Chairman McHuGH. I think it is interesting at least to me that
you 'have taken a different perspective on the attitude of "intelli-
gence agents than we have heard before from other witnesses.
As' you have Said, your former superior at the CIA testified that
he would be reluctant to tell an agent who was going out on a sen-
sitive mission that he had to share that information with Members
of Congress.
Your experience here is relevant because you take a different
tack, which is that agent might well appreciate knowing that at
least the leadership in Congress is advised and, therefore, is not
likely to raise objections later if the operation becomes public.
Perhaps in that context you could tell us a little bit more about
your contacts with intelligence agents and the agency.
I know you have worked in the agency, but you have continued, I
think, to take an interest in these issues.
Perhaps you can expand a bit on your background and what
leads you to believe beyond your own instinct that agents of the
CIA or other agencies would feel this way.
Dr. GOODMAN. Let me point out, first, with respect to Admiral
Turner's testimony that he did qualify it by saying that the time
he withheld prior notice, the rescue mission for hostages in Iran,
notice was given to a much larger number of Congressmen and
Senators than it is today.
I don't know if he would feel with a smaller number more
secure, but I think that was a difference.
Another interesting point that the publication makes is that two-
thirds of the people working at Langley these days have grown up
under a system of strong congressional oversight. I think that they
respect it. I think that they do feel that Congress has an important
role to play in something that no other country has ever done, had
a secret intelligence service in an open society subject to rule of
law and subject to congressional oversight.
I think the younger people at Langley understand this, appreci-
ate it, and see the need for it because they see the negative conse-
quences.
They see that failures to comply with law or failure to provide
Congress notice create problems for them, for public confidence
when these fundamental principles are not followed, so I think you
will increasingly be working with the CIA personnel system that is
producing people who respect oversight and appreciate the need for
it most importantly in the operations area because the last thing
an operations officer wants is to conduct an operation that is going
to end up on national television all through the summer being in-
vestigated because it is illegal, improper, or because there was not
prior notice. They want to be protected in that regard.
Chairman McHuGH. I would like to ask your views on two issues,
first with respect to the notice requirement. Where the President
believes it is a particularly sensitive operation, he may choose in
his discretion to notify the so-called "Gang of 8." The Senate bill
has a provision which would reduce that number to four.
Do you have any views on whether it should be eight or four, and
if so, why? And secondly, the issue which Mr. Kastenmeier raised
earlier with Mr. Hamilton, with regard to a Joint Intelligence Corn-
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mittee compared to the two separate committees we have today,
which would be better in terms of oversight?
Dr. GOODMAN. I strongly favor notice to the Gang of 8, or every
conceivable human effort made to create that notice, because I
think on particularly risky, sensitive, time-sensitive operations, the
President and the DCI need the independent appraisal and to make
sure that these stand the test of your scrutiny which you are going
to have to give judgment on, either in your annual report or later
on.
So, I support your version of the bill and think you should aim at
eight. If someone is out of the country and totally unreachable, if
you have eight and can only reach six, I think you have gone closer
to the spirit of the law than if you have four and can only reach
two.
The principle of prior notice is so important, because the DCI
gets the benefits of the checks and balances system. I favor a joint
committee, but until Congressman Hamilton spoke, I didn't realize
that many support it because it would weaken intelligence over-
sight.
I don't think that should happen, but to the extent that a joint
committee would create greater security so that people at Langley
and elsewhere would feel that they could share more with this
committee, that it would create the kind of staff and time that you
might need to go into more detail on things that are appropriate,
those are some of the positive benefits.
I think the present system has worked very well, both oversight
committees do different things, their annual reports and investiga-
tions are quite different, and I think we benefit a lot from that as
well.
Chairman McHum'. Thank you.
Mr. Livingston?
Mr. LIVINGSTON. I want to commend you on your lucid testi-
mony. You have given us a lot to think about. Let's explore a
couple of your points.
You said that probably most foreign countries would not be in-
hibited because we involve Congress in the decision-making process
whether or not to engage in covert actions, yet Canada specifically
said as a requirement for their housing those individuals, they
didn't want any word sent to Congress.
What makes you think that won't happen again and again and
again where some countries are going to not only hesitate to act in
the best security interests of the U.S., but even perhaps fail to act
to save lives of Americans unless under the conditions that the
President not inform the Congress?
Dr. GOODMAN. With respect to the Canadian case, I think you are
referring to the rescue of the hostages when a much larger number
of Congressmen and Senators had to be informed, when this over-
sight process was much newer, when there was a fear than Con-
gress was going to be the great source of leaks rather than the Ex-
ecutive--
Mr. LIVINGSTON. You think that is not a fear anymore?
Dr. GOODMAN. I don't think so.
Mr. LIVINGSTON. As a matter of record, we have had one incident
involving a member of the other body who is currently under some
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ILO
degree of investigation for statements of confidential material,
secret material, and that does go on. We have had Members who
have admitted publicly or who have been investigated.
What makes you think that is any less likely today than it has
been in the past?
Dr. GOODMAN. I think in the area of covert action, pending the
investigation that you are referring to, there has been no leak from
Congress. In all my experience dealing with you in the Carter Ad-
ministration and outside observing it since, there is no question in
my mind that the Congress takes this as a very serious, very risky
operation.
Mr. LIVINGSTON. Certainly the Congress as a whole does, but
questioning your attitude that eight Members are better than two,
isn't it a fact in intelligence circles that any one extra person can
be a security threat to an operation?
Dr. GOODMAN. Yes, it is.
Mr. LiviNGsToN. We are politicians and given to working with
our mouths, and isn't it human for good politicians to talk about
things, and isn't it a possible risk to human life and safety and to
the security interests of the United States by involving any more
Members of Congress in the decision-making process on covert ac-
tivities than is absolutely necessary?
Dr. GOODMAN. Yes, sir, but the question is, what is necessary,
and it seems to me in our system it is necessary to have them in-
formed before these are launched. We are dealing with a situation
where the record of Congress is excellent. We don't have a record
of lots and lots of leaks and lots of compromises of covert oper-
ations.
I think the risks on the other side are greater. We are in worse
shape if we haven't consulted you and then end up on national tel-
evision.
Mr. LIVINGSTON. I am not going to argue that there haven't been
mistakes made. But your initial point that operational security and
the full informing process, bringing Congress into the loop, are
compatible is questionable to me, and I am concerned about the ri-
gidity, excluding any possibility that not informing Congress so
soon might be a lot safer and a lot wiser in the long run in certain
isolated circumstances.
But we are excluding that with this legislation, and you don't
seem to worry about that.
Dr. GOODMAN. I knew you were going to ask me that question,
and I have been thinking about it ever since you asked Congress-
man Hamilton. I can't foresee those circumstances except in the
case of a declared war, and that is where covert action began in
our country. We didn't have covert action all the time. We never
had it in peacetime until 1947, when it was created by the Act.
In wartime, it seems to me the Congress gives the President
through emergency powers the latitude, and the only circum-
stances that I could see where time and risk and security might
make it impossible might be covered by a wartime situation in
which you would pass special legislation.
Mr. LIVINGSTON. In fact, isn't it true that properly secure covert
activity might avoid the probability of war? That is what covert ac-
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? tivity is about in many instances, is keeping us from going to
armed conflict.
Dr. GOODMAN. I think we owe it to you and to the political proc-
ess to make sure that you are informed that we are about to do
that, and have you prepared that if this operation fails, we are
moving close to war.
Mr. LIVINGSTON. Were you here for the Director's testimony this
morning?
Dr. GOODMAN. I was not.
Mr. LIVINGSTON. I would like you to get a copy of his testimony
and respond to other points other than the notice issue that was
raised by him, if you could comment on those, because he has indi-
cated that there are grave concerns in addition to the notification
that we ought to take into consideration, and the fear is that Con-
gress may well be into the micromanagement of the activities of
the CIA, and we really don't need to be.
Look at it, and we would love to have your letter on it.
Dr. GOODMAN. I will do so.
Chairman McHuGH. Let me state for the record for Mr. Living-
ston's benefit that our staffs have been working closely with the in-
telligence agency staffs on these points which the Director raised
this morning.
It is my impression that there is not real substantive disagree-
ment between the Agency and the drafters of the bill and that
these language questions, which are legitimate questions, can be
worked out between our staff and the Agency staff. ?
So, I think the really fundamental difference in principle does go
to the heart of this notice issue, and the other issues, while perfect-
ly legitimate to address, are being worked out between the staffs.
Mr. Stokes?
Mr. STOKES. Thank you, Mr. Chairman.
Dr. Goodman, we thank you for an excellent statement. I was in-
terested in your comments with reference to the CIA in-house jour-
nal, and I think one of the ironic things about the Iran-contra
hearing is that the CIA got painted with a very broad brush.
As you know, under ordinary circumstances, covert action is au-
thorized by law to be carried out by the CIA. CIA got brushed here
for something that the Agency as such did not do. We know from
the Iran-contra hearings that Director Casey was involved with
Poindexter and North, but the Agency as an agency was circum-
vented here, and this operation was carried out by the NSC, which
is not authorized by law to carry out covert actions.
So, I would suppose that men who are involved in their business
and who take pride in the fact that, notwithstanding some of the
adverse publicity the Agency gets, they are professionals, dedicated
to their country and performing their jobs professionally, would
possess a great deal of a situation, wouldn't you?
Dr. GOODMAN. Yes, sir, I do. In fact, in the article I quoted earli-
er, in it there is another statement from a CIA officer that said
when Administrations frequently resort to covert action, the CIA
pays a very high price, and I think we have witnessed this, wheth-
er or not it conducted the operation or whether or not it was cir-
cumvented.
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As you know from my statement and prior writings, I have
major reservations about using this instrument of foreign policy.
Mr. STOKES. The other thing I would like you to comment on is
this argument about a third country saying to the United States,
"Because of the possible risk to life, that we won't cooperate unless
you agree that you will not tell other officials."
That, to me, is really very offensive, particularly as one who sat
in as a member of the Iran-Contra Committee, and listened to how
Iranians knew all about this operation, here are foreign govern-
ment officials and persons not even officials of that government,
the so-called moderates who had all of this information, but our
government said, we can't trust the Speaker of the House and the
Majority or Minority Leader of the House or the leaders of the
Senate, but yet they were trusting foreign officials who have no re-
lationship to this government whatsoever, and Members of Con-
gress, elected representatives of the people, could not be provided
this kind of information.
It just seems to me that by any adherence to this argument we
allow ourselves to get into a situation that is totally contemptuous.
Would you aggree?
Dr. GOODMAN. I agree, and I think any professional intelligence
officer would want to be absolutely certain that Congress was in-
formed of what they were doing. In this situation, I do think it was
ludicrous that they would withhold information from Congress and
give it to Iranians and foreign privateers rather than the elected
representatives of our people.
I think most foreign intelligence services probably understand
and know that we have an oversight system, know that it is getting
stronger, and know that it is irreversible and are prepared to work
with it.
Mr. STOKES. Thank you.
Chairman McHuGH. Mr. Kastenmeier.
Mr. KASTENMEIER. Thank you, Mr. Chairman.
I would like to compliment Dr. Goodman for his presentation. I
have very little to ask him. We, of course, constantly get the sug-
gestion that there is a danger in informing the Congress, that we
put certain persons at peril, but that seems to be just one side of
the coin.
The other side of the coin is that if an Administration scrupu-
lously acknowledges the law and abides by it in terms of carrying
it out and indeed does solicit the views of the Congress, that in
some cases it may not enter a covert action which, if they had en-
tered it, would have been dangerous for personnel indeed.
I think sometimes this is overlooked in this argument, the other
side of it. I surely do not want to revisit the rescue mission argu-
ment with respect to Iran, but the irony is that the Congress was
not informed, maybe for good reason, but the fact is that it turned
out disastrously anyway.
Lives were lost, it had nothing to do with the fact that the Con-
gress was informed; in fact it was not, and indeed the hostages all
did return home safely. So, I think the question of putting people
at risk cuts both ways, and the balancing of objectives in terms of
public policy suggests that you recommend here in terms of sup-
port of the bill.
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That is my only observation. If you care to comment--
Dr. GOODMAN. I do. I think that any DCI would want to think
very carefully about using covert action, and part of the thinking
very carefully is consultation of the Congress. This might result in
fewer covert operations, and that might be a healthy thing.
It also might prepare us for the risk that one of them fails, but I
think in future, that is something we ought to leave, as Congress-
man Hamilton said, unambiguous. That ought to be part of the
way we do our business, and I think this law makes it so.
Mr. KASTENMEIER. Thank you, Mr. Chairman.
Chairman McHuGH. Mr. Livingston.
Mr. LIVINGSTON. Just to answer your last question and some-
thing you wrote, an article called "Reforming U.S. Intelligence,"
published last year, it leads me to believe that you are not only
just in favor of restricting covert activity as this bill would do, but
you would like to see it abolished altogether, wouldn't you?
Dr. GOODMAN. Yes, sir.
Mr. LIVINGSTON. Don't you foresee any opportunities for covert
action that might enhance the security of the Nation or protect the
citizens of this country?
Dr. GOODMAN. In that article I mentioned the many dimensions
of covert action, black propaganda, support of political parties cov-
ertly abroad, that most of those activities could be better accom-
plished either openly through institutions that the Congress and
State Department have created, like the National Endowment for
Democracy.
I did say that in the paramilitary area particularly with respect
to the rescue of hostages, there probably was a role for covert
action operations, but I thought it was better placed in the Depart-
ment of Defense than in the CIA, because the latter really has
been long since out of the business of training, fielding armies and
having experience with them.
But I do believe in general it is a very risky and very unwise
option, and I would urge any future President not to use it, and
would prefer that we didn't have it.
Mr. LIVINGSTON. You don't deny that the Soviet Union and the
communist bloc countries engage in covert action on a regular
basis, do you?
Dr. GOODMAN. No, and I think a great deal of it falls flat on their
faces, particularly their propaganda and active measures cam-
paigns, which are revealed almost all the time. But because they
have it doesn't mean we ought to have it.
Mr. LIVINGSTON. You see no benefit at all in our using covert ac-
tivity to combat that, then?
Dr. GOODMAN. I see very little benefit.
Mr. LIVINGSTON. If it were up to you, you would be here advocat-
ing the abolition of covert activity rather than simple restriction of
it?
Dr. GOODMAN. I think so, but first, I advocate prior notice.
Mr. LIVINGSTON. Congressman Hyde asked of Clark Clifford earli-
er this morning about an incident involving post-war Italy. We en-
gaged in a covert activity which ultimately led to keeping Italy in
the Western bloc as opposed to losing it to the Eastern bloc.
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Even Mr. Clifford, who does not like covert activity, said that
was outstanding.
Dr. GOODMAN. I agree. I think a lot of the covert activity that we
engaged in between 1947 and 1955 was effective, was secret and
was kept secret, and served our interests very well, but I think that
the world has changed.
Mr. LIVINGSTON. It has, and I would venture to say that the Ex-
ecutive Branch didn't labor under anywhere near the amount of
second-guessing and restrictions that the Executive Branch now
suffers under, and you want to intensify it. You want to increase
those restrictions.
So, in effect, you would say bye-bye Italy.
Dr. GOODMAN. Two points?I am not increasing it all that much
from what it is at present, because all but three covert actions
have been given prior notice to Congress in the past 10 years in
both Administrations, and we are talking about a number much
larger than three that have been given prior notice.
The Italian operation is a good case in point. We could do it se-
cretly then and we were able to keep it secret then, but we could
have done it then as now just as effectively through the National
Endowment for Democracy, through a chartered organization of
Congress that most other countries do the same thing with. The
German political party institutes do the same kind of thing today.
So I think it could have been done equally well.
Mr. LIVINGSTON. Don't you agree we kept it secret because we
didn't have all that oversight and all the Congressional interfer-
ence in the operation?
Dr. GOODMAN. I don't.
Mr. LIVINGSTON. Thank you.
Chairman McHuGH. Thank you very much for your testimony
here today. We appreciate it, particularly given your background
in the field, and you have given us material which I think will be
very helpful to us during our deliberations.
We have one more committee hearing scheduled for March 10,
and hopefully, speaking for myself as chairman, after the conclu-
sion of that public hearing, we will proceed to consider the bill in
committee.
The hearing is now adjourned.
[Whereupon, at 3:30 p.m., the subcommittee was adjourned.]
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H.R. 3822?INTELLIGENCE OVERSIGHT ACT
OF 1987
THURSDAY, MARCH 10, 1988
HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
SUBCOMMITTEE ON LEGISLATION,
Washington, DC.
The subcommittee met at 1:30 p.m. in room 2203 of the Rayburn
House Office Building, Hon. Matthew F. McHugh, chairman of the
subcommittee, presiding.
Present: Representatives McHugh, Stokes, Kastenmeier, Living-
ston, and Shuster.
Full committee members present: Representatives Beilenson,
Hyde, and McEwen.
Staff present: Thomas K. Latimer, committee staff director, Mi-
chael J. O'Neil, committee chief counsel, Thomas R. Smeeton, com-
mittee associate counsel, Bernard Raimo, Jr., subcommittee coun-
sel, Stephen D. Nelson, subcommittee counsel, Diane S. Dornan,
professional staff, Jeanne M. McNally, clerk,_Karen W. Schindler,
secretary, and Merritt R. Clark, chief, registry/security.
Mr. McHum.' [presiding]. The subcommittee will please come to
order. This is the fifth and final day of the hearings on legislation
to amend the Intelligence Oversight Act of 1980. More specifically,
the Subcommittee is considering H.R. 3822, a bill introduced by
Chairman Stokes, Congressman Boland and me. It incorporates
many of the recommendations of the Special House and Senate
Committees that investigated the Iran-Contra Affair and is sub-
stantially similar to a bill reported favorably by the Senate Intelli-
gence Committee, S. 1721.
The provisions of H.R. 3822 have been described and debated at
some length at our prior hearings. Suffice it to say that the center-
piece of the legislation is a requirement that the President notify
the Intelligence Committees of any covert operation he has author-
ized prior to its implementation.
In extraordinary circumstances, the President may limit such
prior notice to a small group of eight in the leadership.
And when the President believes that time is of the essence, he
may dispense with notice to anyone in Congress for up to 48 hours
after the covert action has begun.
There are other provisions in the legislation, but the heart of the
debate is whether the President's discretion to withold notice to
Congress should be limited in any way.
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Under current law, the President is generally required to give
prior notice to the Committee, or to the leadership group of eight.
But he may withhold notice at his discretion, in which case he is
obligated to provide it to the committee "in a timely fashion."
In the case of the arms sales to Iran, the President construed
current law as permitting him to withhold notice for more than 10
months after the covert sales had been authorized, an interpreta-
tion which is totally unacceptable if congressional oversight is to
have any meaning. This is not a hypothetical case.
The President signed his finding authorizing arms transfers to
Iran in January of 1986. The first arms delivery had actually been
made some months beforehand. In any case, the President did not
provide anyone in Congress with notice of these transfers before he
made them.
If he had done so, as the law generally requires, he would surely
have heard some strong objections and might have spared the
country a serious foreign policy setback and himself a major politi-
cal embarrassment.
Not only did the President withhold prior notice of this covert
action, he never informed Congress of the arms transfers to Iran at
all. Although Iranian officials, arms merchants and others knew
about them, the elected Representatives of the American people
were never told.
We learned of this policy only because a publication in the
Middle East reported the information. We've indicated previously,
and I would like to reemphasize, that our purpose here is not to
dwell on past mistakes, or engage in criticism of the Iran arms case
for the sake of any partisan purpose.
But I don't think any Member of Congress with any interest in
meaningful oversight of covert activities can accept the situation as
it presently exists.
While the Administration witnesses have admitted that the cir-
cumstances in the Iran case deprived Congress of timely notice,
and while they pledge to do better in the future?and we appreci-
ate that, the Justice Department has taken the position in these
hearings and in the Senate that the President was wholly within
his legal authority to withhold notice from Congress, as he did in
the Iran arms case.
This is an interpretation of law which we simply can't accept,
and that's why we've introduced H.R. 3822.
This afternoon, we have a number of very distinguished wit-
nesses who will comment on the legislation, as well as on the gen-
eral issue itself, including our old friend, the Secretary of Defense,
Frank Carlucci.
Before calling upon you, Mr. Secretary, however, I'd like to
invite Mr. Livingston and Mr. Stokes to make any opening remarks
they may have.
Mr. LIVINGSTON. Thank you very much, Mr. Chairman.
I'm firmly convinced that H.R. 3822 is an unnecessary and poten-
tially harmful piece of legislation. To this point, the committee has
had the benefit of a great deal of testimony on both?sides _of the
issue, but one of the things which struck me with the greatest force
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is the practical difficulties this bill would cause for our covert ac-
tivities, which comprise a small but important part of our intelli-
gence activities.
There are also some very serious constitutional concerns that a
number of witnesses have brought to our attention as well.
Former intelligence officials in both Democratic and Republican
Administrations have told the committee that the Iran-Contra
Affair was an aberration, that the failure was in the people run-
ning the program rather than the process itself.
They pointed out that the 48-hour notice period could potentially ?
increase the danger to the lives of foreign operatives and would
have a chilling effect on the cooperation that we have come to
expect from our allies.
I believe that covert operations are an important part of our
effort to protect the national security interests of the United
States. It's clear to me that the majority of the witnesses that sup-
port this legislation do not believe that we should be engaging in
covert activities at all.
If we pass this legislation as it stands, their wish could come
true. Our allies would become increasingly reluctant to cooperate
with us if they felt that the information would be broadcast to too
many people, and future administrations would think twice about
engaging in any covert activity unless they felt that there is a con-
census among all members that must be notified.
That's a bad way to do business. As I said, I'm very concerned
about the practical difficulties that H.R. 3822 will cause. But there
are also major concerns about the constitutional impact of this leg-
islation.
Scholars and, for that matter, officials of both branches argue
about the constitutional prerogatives of the executive and the legis-
lative branches. But this bill's rigid procedural constraints and mi-
cromanagerial rules in the guise of oversight create conditions of
permanent constitutional conflict that will be harmful to the spirit
of cooperation that must exist between future administrations and
Congress.
I believe it is a serious mistake to build into the statutory struc-
ture of executive/legislative branch relations a permanent invita-
tion to discord.
We need to think whether in our zeal to extend the bounds of
congressional oversight what we are actually doing is harming our
national security interests.
The original drafters of this law recognized that there were le-
gitimate interests of both the executive and the legislative
branches that needed to be protected.
They realized that the cooperation between the branches was
necessary in order to have both effective oversight and a useful in-
telligence program.
So they did not try to overregulate the intelligence functions of
the administration. In effect, they opted for pragmatic ambiguity
instead of statutory micromanagement.
There is no doubt that the administration was less than coopera-
tive in this regard during the Iran-Contra Affairs, but it has also
made a major effort to install corrective procedures.
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We should allow enough time to see if the new rules will work.
At this point, I see no reason to inflict a statutory formula for con-
stitutional conflict between the branches.
In addition, Eugene B. Rostow, currently Sterling Professor of
Law Emeritus, and Senior Research Scholar at Yale Law School
and formerly Under Secretary of State for Political Affairs in 1966
through 1969, and then later Director of the Arms Control and Dis-
armament Agency for 1981 through 1983, has submitted a state-
ment which we would like to incorporate in the record at this
point.
[The statement and articles follow:]
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Hearings on H. R. 3822, the Intelligence Oversight Act 1987
Before the Subcommittee on Legislation
Permanent Select Committee on Intelligence
House of Representatives
Prepared Statement
of
Eugene V. Rostow*
March 10, 1988
Mr. Chairman, I appreciate your invitation to testify on the constitutionality
of H.R. 3822, the Intelligence Oversight Act of 1987. The Bill would require the
President to ensure that the Select Committee on Intelligence of the Senate and
the Permanent Select Committee on Intelligence of the House of Representatives
are kept fully and currently informed of the intelligence activities of the United
States, including any significant anticipated intelligence activities.
The term "intelligence" is not defined by the Bill, except by indirection in
Section 503 (e), which distinguishes the "special activities" of the Central
Intelligence Agency from its operations in foreign countries intended solely for
obtaining necessary intelligence. For other departments and agencies of the
United States, "special" activities are defined as activities conducted in support of
national foreign policy objectives abroad which are planned and executed so that
the role of the United States government is not apparent or acknowledged publicly,
and does not include activities to collect necessary intelligence, or diplomatic
activities carried out by officers of the Department of State or other persons
---------
* Sterling Professor of Law Emeritus and Senior Research Scholar, Yale Law
School. Formerly Undersecretary of State for Political Affairs, 1966-69, and
Director of the Arms Control and Disarmament Agency, 1981-83.
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representing the President. Section 503 (e) also covers foreign countries or private
citizens requested by United States officials to conduct a "special activity" on behalf of
the United States. In short, the "special" activities covered by Section 503 (e) seem to
be "covert" or deniable operations initiated or conducted secretly by our government in
order to influence the policy of foreign governments. As section 501 (f) makes clear,
however, the Bill is not confined to so-called "special" intelligence activities defined in
Section 503 (e), but encompasses a vast and uncharted range of activities undertaken in
support of the foreign policy of the United States by civilian officials and military
officers under the direction of the President. It is impossible to tell how far the Bill
could be interpreted to reach into the activities of the government outside the
intelligence community. In my experience, intelligence routinely flows into the
government from many sources, public and private, and many routine secret or
confidential diplomatic negotiations would seem to fit the definition of "special"
activities in the Bill.
I attach two articles as a fuller exposition of the legal theory from which the
conclusions of this statement,are drawn.
In my opinion, H. R. 3822 is unconstitutional for four related reasons:
1. The Bill would require the President to disclose information which
Congress can request but not command the President to provide;
2. In fact, the Bill does more than require information: it seeks to
establish a procedure of compulsory consultation between the President
and two designated committees of Congress. This goal is beyond the
legislative powers of Congress;
3. De facto, the Bill would give the two intelligence committees of
Congress, or one acting alone, an unconstitutional legislative veto over
a wide and undefined class of Presidential decisions in the field of
intelligence; and
4. The procedures mandated by the Bill would largely remove the
Central Intelligence Agency and other intelligence entities in the
executive Branch from the control of the President with respect to
many of their functions, and place them under the direct control of
Congress Instead.
2
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1.
The first reason why the Bill is unconstitutional is that it would command the
President to provide two Congressional Committees with information dealing with
extremely sensitive areas of his responsibility for the conduct of foreign relations and
for limited military and quasi-military operations in self-defense. Section 501 (a)
properly recognizes that the power to decide whether such operations should be
undertaken and how they should be carried out is entrusted to the President by the
Constitution.
As judicial opinions and constitutional practice since the Presidency of George
Washington attest, Congress does not have the power to compel such disclosures of
information. In Marbury v. Madison, Chief Justice Marshall declared that "the secrets
of the cabinet" were beyond judicial scrutiny, and "executive privilege" has been
recognized both in the Courts and in Congress ever since. The Bill therefore violates
the principle of the separation of powers, by crossing the boundary between the
legislative and the executive departments of our tripartite government. The balance
among conflicting Constitutional policies is of course different where the information is
sought by the accused in a criminal proceeding, but there are limits to even these. For
example, Thomas Jefferson did not comply fully with judicial demands in the trial of
Aaron Burr.
It cannot be recalled too often that ours is not a Parliamentary system, and that
the President is not a Prime Minister. Chief Justice Marshall said in
Marbury v. Madison, that ",b.y the Constitution of the United States, the President is
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character, and to his own conscience." As Marburtv. Madison itself demonstrates,
the principle does not mean that the President is ever above the law, or that
appropriate means for assuring democratic responsibility are not available and
should not be used. It does mean, however, that the means chosen for the purpose
in H. R. 3822 are inappropriate and unconstitutional.
When Congress seeks information from the President, it should follow nearly
invariable precedent by "requesting" the information "only insofar as the
transmission of it, "in the President's judgment," is compatible with the public
interest," to recall the language used by Senator Spooner of Wisconsin in 1906.
This is not a matter of courtesy or comity between the two branches of
government. Senator Spooner explained his judgment in the following terms:
"The State Department stand upon an entirely different basis as to the
Congress from other Departments. The conduct of our foreign relations is
vested by the constitution in the President. It would not be admissible at all
that either House should have the power to force from the secretary of state
information connected with the negotiation of treaties, communications from
foreign governments, and a variety of matters which, if made public, would
result in very great harm in our foreign relations?matters so far within the
control of the President that it has always been the practice, and it always
will be the practice, to recognize the fact that there is of necessity
information which it may not be compatible with the public interest should be
transmitted to Congress?to the Senate or to the House.
"There are other cases, not especially confined, Mr. President, to the state
Department, or to foreign relations, where the President would be at liberty
obviously to decline to transmit information to Congress or to either House
of Congress.*
* Quoted in Edward S. Corwin, The President: Office and Powers (1940) at p. 404.
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Every study of the subject agrees with Corwin's conclusion. From the
earliest days of the government, the overwhelming majority of attempts by
Congress to obtain information from the President or the Secretary of State in the
field of foreign affairs were requests, not demands, and were qualified by
provisions authorizing the President to withhold information if he thought its
disclosure would be inconsistent with the public interest. Where Congressional
requests for information did not include the usual qualification, Presidents treated
them as if the qualification had been included, and declined to answer nearly as
often as they responded. President Washington's refusal to give the House of
Representatives information about the negotiation of Jay's Treaty in 1794 is
perhaps the most famous of these episodes. Others concerned military, and quasi-
military and even covert operations during the period of acute controversy with
Spain prior to the acquisition of Florida, the Civil War, and later periods of strain.
The reasons for the practice and the rule are rooted in the nature of things.
The President is often called upon to prepare or to initiate lines of policy for which
public and Congressional opinion is not yet ready. In response to those initiatives,
circumstances may change, and opinion with it. Could Lincoln have obtained
Congressional support for many of the steps he took before and after Fort Sumter,
while the Civil War was still a threat rather than a consuming reality? In handling
those problems, Lincoln kept his own counsel, consulting with very few persons,
each carefully chosen by him. Nearly every President has faced problems of the
same character, though not of the same magnitude (save in the case of Franklin D.
Roosevelt), and they all acted in the same way.
5
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Despite its form, however, H.R. 3822 is not a Bill simply requiring the
transmission of information the Congress regards as important to it in discharging
its legislative functions. As most of its supporters freely concede, the Bill is
designed, despite the disclaimer of section 501 (a), to put the members of the two
intelligence committees squarely into the center of the President's decision-making
process as active and indeed "equal" participants. This is surely unconstitutional,
for a number of obvious reasons, not the least being the provisions of Article I,
Section 6.
Some defend this extraordinary Congressional intrusion into the President's
domain as no more than a requirement that under certain circumstances H. R. 3822
"merely" requires the President to "consult" Congress, as if such a requirement
were of obvious constitutionality. This is not the case.
Consultation between the President and members of Congress is a political
necessity both for members of Congress and for the President. It is an endless
process which takes place continuously in a thousand forms--at meetings and poker
games; over the telephone; at funerals and weddings; and at solemn meetings in the
White House. The President can never "consult" Congress; he can only consult
members of Congress. The word "consultation" is not a term of Constitutional
import. Congress is a collective body which can act authoritatively only by passing
a bill or joint resolution which is then presented to the President for signature.
When, how, and whom to consult is a political art, often one of supreme importance
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to Presidents and members of Congress alike. But it cannot be structured and
regulated. As I said two years ago in an article called Once More Unto The Breach,
a copy of which is enclosed, "Congress cannot command the President to consult
with a particular Member of Congress any more than it can tell him who his
Secretary of State or his most trusted advisers should be. Any such attempt would
interfere with the President's most sensitive executive discretion, that of political
leadership." That comment was addressed to the War Powers Resolution of 1973.
It applies equally to H. R. 3822.
The President's Constitutional discretion to conduct aspects of his foreign
policy in secret has not been seriously challenged until the recent past, when the
circumstances leading to President Nixon's resignation in 1974 encouraged
Congress to take a number of radical steps in seeking to change the Constitutional
balance between Congress and the Presidency in the making and conduct of foreign
policy. The recent dispute over President Reagan's secret arms sales to Iran has
stimulated the further step in this direction of H. R. 3822.
Some of the witnesses before this Committee, notably Clark Clifford, have
defended the constitutionality of the Bill on the ground that it is consonant with
our system of "checks and balances." Checks and balances in managing the
relationship among the three branches of our government have proved to be an
admirable source of friction and tension in the working of the government, thus
helping to prevent tyranny and to protect personal liberty. But the formula is not a
universal panacea. In creating the Presidency, the goal of the Founding Fathers
was to establish an executive capable of "energy, secrecy, and dispatch."
7
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One cannot recite the words "checks and balances" as a magic incantation to
justify a Bill which would introduce a serious check on a Presidential power
hitherto deemed to be exclusively executive in character. Congress cannot
supplement the Constitution by inventing new Constitutional checks at will. The
Constitution itself has been extraordinarily effective in this respect,--some would
say much too efffective, and it requires no augmentation.
At first glance, the reporting requirements of the Bill seem innocuous.
Nonetheless, they challenge the President's Constitutional discretion in extremely
important ways. They are not in fact reporting requirements at all, but would
confer upon two committees of Congress the right and power to advise the
President in advance of his decisions about how to execute the laws. It is a long
Constitutional step between making laws and applying them to particular cases.
Congressman Hamilton was commendably frank in his testimony before you on
February 24, 1988, where he said,
"Now we are told by the Administration that "timely" means whatever the
President says it means and that he can withhold notice as long as he wants.
If we let this interpretation stand--an interpretation that says the President
can withhold information from Congress at his discretion--then Congress will
have weakened seriously its oversight capabilities and consented to a basic
shift of power away from the Congress to the Executive Branch. Once this
power to withhold information from the Congress is granted to the President,
how can it then be maintained that congress stands equal in power to the
President?"
But Congress and the President are not constitutionally equal in power with
respect to all aspects of the making and conduct of foreign policy. Congress has
enumerated legislative powers, the President, "the" executive power. In some
areas Congress is clearly supreme, in others, the President. Only Congress can
appropriate money,
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?
declare war, and enact laws; only the President can nominate and remove high
officials, recognize foreign governments, and conduct foreign relations. In all
areas, however, cooperation between Congress and the President is necessary if our
complicated government is to function effectively. But cooperation is not a simple
rule of thumb, equally applicable in every case. And it is not a matter for
legislative timetables. The timing and sequence of that cooperation must be
flexible and responsive to circumstance. Its success depends ultimately on the
political insight and intuition of the chief participants in the process.
The unfettered Executive autonomy of the President has been a critical
factor over and over again in assuring the survival of the nation. Washington,
Lincoln, Franklin Roosevelt, and many other Presidents have exercised their
executive powers in decisively important ways without informing the Congress or
consulting with Congressional leaders. At a later point, when in their judgment the
situation was ripe for such action, they turned to Congress for legislative or
political support.
The necessity for dealing with problems in stages--the executive usually first,
and Congress thereafter--is often a matter of supreme importance, fully congruent
with the animating ideas of our Constitutional arrangements. Our constitutional
system of separate powers is in fact a system of intermingled powers, as Madison
saw clearly. Neither Congress nor the President can proceed very far in any given
direction without the help of the other. Congress can declare war but the
President must conduct it. Congress declared war on Great Britain in 1812.
President Madison secretly initiated negotiations for peace eight days later.
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14b
President Washington declared our neutrality in the great European war of the time
despite our Treaty of Alliance with France, and then discovered that he could not
enforce neutrality without a statute, which came a year later. So now, in dealing
with the confused and often obscure thrusts of the Cold War the Soviet Union has
been waging against us for more than forty years, the conduct of American
diplomacy and security policy requires an active, resourceful Presidency, taking
advantage of every opportunity to advance the interests of the United States, in
public and in secret, by methods which must include first-rate intelligence and
effective defense against the covert and quasi-military attacks of our adversaries
as well as more visible military attacks.
HI.
In fact, however, the purpose and effect of the reporting requirements of
H. R. 3822 are not to transmit information or to require consultation; they are
designed and defended as devices which would allow two Congressional Committees
to prevent Presidents from acting as President Reagan did in seeking to improve
our relations with Iran by methods which included secret arms sales.
As Senator Cohen said in his speech on the floor of the Senate on
March 3, 1988, the object of the Bill is to allow small groups of Congressmen to
keep the President from making what they regard as mistakes--that is, in plain
language, to substitute their judgment for that of the President on how to conduct
our foreign relations.
Senator Cohen insists that Congress is looking for a "voice" in the decision
making process, not a "veto". The Senator's contention is without constitutional
substance. Neither the Constitution nor the pattern of Constitutional practice
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before 1980 gives the slightest support to the claim that the law-making authority
has the right to offer the President advice in advance of his decision about how to
carry out his constitutional duty faithfully to execute the laws. The Senator's
claim of such a right crosses the boundary line between the legislative and the
executive power. There is no such right, even with respect to treaties. In many,
perhaps most cases, a wise and prudent President will consult members of Congress
or citizens he regards as specially qualified to advise him on a given subject before
he decides on his course of action. But the choice has always been his. The cases
where a President chooses not to consult in advance have been among the most
important in our history.
In any event, under the highly charged circumstances of cases covered by H. R.
3822, a Congressional voice cannot be distinguished from a Congressional veto. It
requires a robust imagination to suppose that a President would continue in a
covert operation if an influential group of important Congressmen advised him
vehemently that the proposed action would be a political disaster:?another -
Watergate or Irangate. Senator Cohen concedes that in consultations under the
1980 Statute, Congressional advice has invariable been followed. The conclusion is
hardly surprising.
Thus the Constitutional problem presented by Section 503 is similar to
that presented by the War Powers Resolution. To be sure, there is no formal
provision in H. R. 3822 for a legislative veto which would override a President's
decision to undertake the intelligence activity he has reported to the Intelligence
Committees of Congress. It does not provide for veto by concurrent Resolution or
one-House Resolution, but by the secret advice of one or both of the Intelligence
Committees, or of a smaller group.
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IV.
The focus of public controversy over H. R. 3822 has been Section 503 CO,
which provides that no special intelligence activities may be initiated before the
intelligence committees are formally notified, except where the President
determines in special circumstances that time is of the essence. Even where delay
in notification is justified, the Committees are to be notified not later than forty-
eight hours after the special activity has been authorized by the President.
These provisions are fundamental to the character of the Bill with respect to
the compulsory provision of information, consultation, and the legislative veto,
which I have already discussed. -They have another _constitutional dimension.
In Section 502, the Bill seeks to impose separate and comprehensive reporting
requirements on the Director of Central Intelligence and the heads of all other
departments, agencies, and other entities involved in intelligence activities. Such
a requirement would be constitutionally appropriate for ministerial functions of the
branches of the government involved in intelligence, but not for their policy
programs. As written, the Bill can only have the effect of weakening the ties
between the intelligence community and the President and bringing it more and
more under the control of the two Congressional Intelligence Committees.
Manifestly, this would-be an unconstitutional development, which all concerned
with the integrity of the Constitution should oppose.
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V.
Many justify the Bill as an attempt to prevent what are widely regarded as the
errors or follies of the Iran-Contra affair. Rigid procedures of disclosure and
consultation, however and a de facto legislative veto vested in a small group of
Congressmen and Senators cannot guarantee that all the policies and programs the
United States government undertakes will always be wise, or will always succeed.
Members of Congress are quite as capable of error as the President.
It is characteristic of us to believe that if something goes wrong we can fix it by
passing a law. So, in the mood of shock and agitation caused by Watergate and
President Reagan's secret dealings with Iran, we turn automatically to legislative
remedies. I urge you to resist the temptation and approach your task in the spirit of
No. 41 of the Federalist Papers. Measures of self defense will always be governed,
Madison wrote, by "the impulse of self-preservation." It is better not to confine the
discretion of the government in dealing with such problems by rigid rules. The problems
usually arise in unfamiliar forms and without warning. Rigid rules may hamper the
government when action contrary to the rules is necessary, and tempt government to
act in violation of the rules when such action is not necessary. The example of the War
Powers Resolution should stand as a warning in your minds. With the best intentions in
the world, it is easy to do more harm than good.
H. R. 3822 belongs with a group of most unfortunate statutes passed since the
time when the campaign in Vietnam became unpopular. Through those statutes,
Congress has attempted to "micromanage" the President's conduct of foreign relations.
The Supreme Court has long since indicated that most of these statutes are
unconstitutional. Its decisions on the separation of powers have been sharp and clear
for many, many years. In my view, the greatest contribution Congress could make to
the future of our foreign policy and to the preservation of the rule of law in the
commonwealth is to bring the statute book into conformity with the law of the
Constitution on the relation between Congress and the President in the field of foreign
affairs.
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Mr. Rostow is Sterling
Professor of Law and
Public Affairs.
We reproduce here the
text of a September
23. tom. letter from
Mr. Rostow to William
G. Miller. staff director,
and Frederick A. 0.
Schwarz, Jr., chief
counsel, of the Select
Committee to Study
Government Operations
with Respect to Intelli-
gence Activities. United
States Senate.
Yale Lay Penort
Faculty Opin: Snrine 1976 p.12
Eugene V. Rostow
On Foreign Covert
Action Operations
I am happy to respond to your letter of
July go, asking my views (t) on the legal basis
for the conduct by the President of what you
call "foreign covert action operations" in the
absence of specific statutory authority; and (a)
whether, or to what extent. Congress may by
statute limit or prohibit the conduct of such
"foreign covert action operations" by the Presi-
dent. Your letter gives several examples of what
you mean by the phrase, ranging from the Bay
of Pigs episode to sabotage, propaganda, and
assistance to foreign political groups.
I have prepared this letter during a sabbati-
cal in the country, without benefit of library. It
will therefore be general and informal in char-
acter.
In brief, my answers to your questions are
as follows:
(s) In the absence of statutory authority.
the President has inherent constitutional
power to conduct "foreign covert action oper-
ations'' because he is the President under our
Constitution: that is, he is the sole organ of
the nation in the conduct of foreign rela-
dons, the commander-in-chief of our armed
forces; and the head of State.
(a) Congress cannot prohibit the Presi-
dent from carrying out "foreign covert action
operations," but it may establish and regulate
the methods through which the President car-
ries them out, as it establishes and regulates
the work of the courts and the action of the
President in other aspects of his duty. Con-
gress cannot deny the President the capacity
to function effectively in this area any more
than it could deny the courts the capacity to
carry out their independent constitutional
duties, or deprive the President, for example,
of his pardoning power, or his power to re-
move Cabinet officers at will.
Let me start with the unassailable proposi-
tMn that since 1776 the United States has been
a nation among the nations, fully vested with
sovereignty, as that concept is known to interna-
tional law, and endowed with the capacity to
do whatever nations do in world politics, in
accordance with the effective norms of interna-
tional lass.
But the limitation of the previous sentence
does not help much in articulating a sound an-
swer to your questions. The nations are of
course under an obligation to respect and obey
the generally accepted norms of international
law. Tice United States has always purported to
base its foreign policy on scrupulous respect for
international law, a policy I strongly support.
But other nations do not always follow the
sante policy. And international law fully ac.
knowledges the fact that nations have the sover.
eign power, if not the right, to breach their
obligations under international lass and take
the consequences. Our constitutional law fully
recognizes this fact (Gray v. United Slates, 21
Ct. CI. 340 (1886); Diggs v. Schultz, 470 Fad
46s (Ct. App. D. of C. 1972)). It follows, both
under international law and our own constitu-
tional lass, that we must be capable of employ-
ing the remedies 49 sehhelp contemplated as
legitimate tinder international law to deal effec-
tively with such wrongful acts. International
law does not know the remedy of specific per-
formance.
To paraphrase Chief Justice Hughes' fa-
mous comment about the scope of the war
power, the authority of the nation to protect
its interests in world politics is the authority to
protect those interests successfully. As a matter
both of international ancl of constitutional law,
the extent of the nation's rights, duties, powers,
and privileges in foreign affairs will therefore
depend upon the condition of world politics
and upon circumstance. In all legal systems lass
derives from the nature of things. What the
United States can do turns on what it must
do: that is, on what its responsible political
officials believe it should do to safeguard the
security, prosperity, and honor of the nation,
both in serene times, and in times of trouble.
Under the Constitution of i787 the author.
by of the United States to act as a sovereign
nation in "the great external realm" is divided
between the Presidency and the Congress. The
allocation of power between Congress and the
Presidency in dealing with external affairs has
never been and can never be mapped with pre.
vision. As Hamilton said, the threats which may
arise to plague the nation are infinite and be-
yond prediction. The powers of the nation must
always be adequate to deal with whatever men-
ace may arise. The point I am trying to make
is nowhere more. evident than in the astonish-
ing arrangements we have made. and take for
granted, about the President's singular duties
with regard to the nuclear weapon. Since the
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Presidency is the only institution of our govern-
ment capable of dealing with the problem, we
entrust it to the President.
A familiar constitutional paradox domi-
nates your enquiry. On the one hand, the Presi-
dency is one of the three autonomous branches
of the government, often called "independent";
on the other, as Madison saw from the begin-
ning. the principle of the separation of powers
does not mean that the three branches of the
government are really separate at all. For the
most part, their powers are commingled and
shared. They are therefore not independent but
interdependent, although there are some func-
tions unique to each branch. Only a judge can
issue a mandamus. Only Congress can declare
war. Only the President can order the troops
into battie. If one visualizes the powers of the
President and of Congress in the field of foreign
affairs diagramatically, they could be repre-
sented by two circles, tangential to each other,
with a third circle, its center on the point of
tangency, including about half of each of the
others. The parts of the first two circles outside
the third would represent the distinct and inde-
pendent powers of Congress and of the Presi-
dency; the third circle, the powers they share. I
shall not attempt here to survey the field, recon-
ciling the respective foreign affairs powers of
Congress and the President. You are familiar
with Corwin's magisterial book on the Presi-
dency and Professor Louis Henkin's comprehen-
sive recent treatise. I examined one panel of the
problem in an article in the Texas Law Review,
"Great Cases Make Bad Law," 50 Tex. L. Rev.
833 (1972).
Suffice it to say, for the purposes of this
letter, that nearly two centuries of experience
permit us to identify the ideas which govern
the division of -authority between the Presi-
dency and Congress in the Foreign Relations
Law of the United States.
In my judgment, that allocation of author-
ity corresponds to functional necessity?that is,
to the nature of the tasks involved and of the
institutions themselves. I have no quarrel with
the existing constitutional plan, difficult as it is
to carry out. In my opinion, it corresponds to
the nature of our constitution and people. com-
bining the capacity for swift executive action
with ample means for assuring democratic re-
sponsibility.
The President speaks for the nation in
diplomacy. He is commander-in-chief of the
armed forces. And he is head of state, endowed
therefore with residual emergency powers
Lincoln used. In many areas, the President
makes policy himself, in addition to carrying
out the policies of Congress. The Monroe Doc-
13
trine, for example, is a presidential policy but
not less a national policy for that reason.
The Congress is the legislature, deliberately
denied any executive power. The Senate has a
special role in certain appointments and in
treaty-making. And only Congress can declai e
war.
Defining the limits of Congressional power
in relation to the inherent authority of the
other two branches is never an easy task, but
it is a familiar one in our constitutional system.
We know, for example, that while Congress can
regulate the jurisdiction of the federal courts
and the appellate jurisdiction of the Supreme
Court, it has never deprived the courts of the
capacity to carry out their judicial duties. Con-
fronting such a possibility, Justice Story once
said that the courts would exercise their in-
herent rule-making power to assert jurisdiction.
The test has never arisen, and I trust it will
never arise. But I believe Justice Story was
right. There is a point beyond which regulation
becomes usurpation. In relation to the Presi-
dency, too, all sorts of limits are recognized.
Congress can, for example, establish a Civil
Service System, but it cannot deprive the Presi-
dent of his indispensable power to remove Cabi-
net officers and other high officials at will. Nor
can Congress interfere with the President's par-
doning power, although it can, I should sup-
pose, pass amnesty statutes of its own.
What your letter identifies as "foreign
covert action operations" belong to two realms
in which the President and Congress are at once
independent and interdependent?the conduct
of foreign relations and the international use of
force. Perhaps it would be more accurate to say
that diplomacy and the limited use of coercive
measures are equally normal aspects of the con-
duct of foreign relations in times of war and
peace alike. As the Supreme Court once com-
mented, secret services "are sometimes indispen-
sable to the government," both in hostilities and
in "matters respecting our foreign relations."
Totten v. United States, 92 U.S. 105, 106-107
(1876). Since the conduct of foreign relations
under our Constitution is peculiarly Presiden-
tial in character, especially in those of its as-
pects where secrecy is essential, the task of de-
fining the limits of Congressional authority
with respect to the secret aspects of diplomacy
is unusually difficult.
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I assume that you are mainly interested in
the international and constitutional legal prob-
lems raised by foreign covert action operations
during peace time. Once Congress has moved
the nation to a state of war, within the intend-
ment of international law, most of the ques-
tions suggested by your letter disappear.
International law contemplates the possi-
bility that a long list of limited coercive meas-
ures may be employed in international rela-
tions during peace time to redress violations of
international law which cannot be dealt with
by less drastic means. They range from ordinary
intelligence gathering procedures to the exer-
cise of what Article 51 of the United Nations
Charter acknowledges as each nation's "inher-
ent right of self-defense" against armed attack
(or the imminent threat of armed attack), and
its equally "inherent" right to respond recipro-
cally to lesser forms of coercion or to assist
another nation under attack or threat of attack.
The clumsy drafting of Article 51 subsumes a
comprehensive array of measures of self-help a
nation may take in peace time to defend itself
against violations of international lass by
another nation to its detriment. Some involve
the use of force. Others, like ordinary diplom-
acy and less visible methods of gathering infor-
mation, seek to discover, to anticipate or to
deal with harmful or hostile actions other states
may be planning or taking against the best in-
terests of the United States. Such measures of
self-help should be limited and addressed to the
breach itself. They are never intended as acts
of general war, nor are they intended to affect
the territorial integrity or political indepen-
dence of the nation to which such defensive
measures are addressed.
One of the accepted rules of this branch of
international law, both before and since the
enactment of the Charter of the United Nations,
authorizes the international use by force by way
of proportional response to the use of force by
or from another nation in breach of its obliga-
tions in international law. For example, when
guerrillas conducted raids within the territory
of the United States from Spanish Florida in
1819 or from Mexico in 1916, Spain in the one
case and Mexico in the other had violated their
duties to us under international law by failing
to prevent such activities from their territories.
Prompt relief being unavailable through diplo-
matic channels, the United States was legally
authorized to send troops in order to eliminate
the danger. We acknowledged the principle when
the shoe pinched the other foot. In 1837, armed
bands assembled in up-state Ness' York to help
an insurrection in Canada. We conceded that,
14
in such a case, Great Britain could send troops
into the United States for the limited purpose
of eliminating the threat to Canada if the
United States did not disarm and disperse the
guerrillas with dispatch.
This principle of international law has
been appropriately invoked nearly every week
in the Middle East during recent years, when
Israel has raided guerrilla camps in Jordan or
Lebanon from which attacks have been launched
against it, or made limited attacks in Egypt or
Syria, in response to guerrilla attacks from those
countries.
Constitutionally, such limited uses of force
to defend the United States or its allies against
breaches of international lass have been con-
sidered to be among the duties of the Presi-
dent, acting alone. The President has sometimes
had the support of a Congressional Resolution
before or after the event in cases of this kind.
It is always desirable, when it is also feasible,
for the Congress to join the President in putting
the full weight of the nation behind an Ameri-
can warning or other act of permissible self-
help. But Congressional support is not necessary
to the legality of such actions under the Consti-
tution. Thus, the President has used force on
his own authority many, many times since 1789,
not only in dealing with armed attacks, like
those from Spanish Florida or Mexico I have
just mentioned, but also in protecting American
citizens and property abroad, when they were
subjected to treatment which violated the stand-
ards of international law and when, as a prac-
tical matter, political or judicial remedies could
not be obtained immediately.
The practice is so familiar that it requires
no evocation of precedents. The Mayaguez epi-
sode is the most recent occasion on which a
President deemed it necessary to use force in
the exercise of his responsibility to protect
American citizens and property abroad against
a breads by another state of its obligations to us
under international law.
The use or the threat to use military force
or other coercive measures is also a familiar fea-
ture of diplomacy, especially, of course, during
Periods of turbulence like the modern era.
Thus, the United States put 5o.000 troops on
the Mexican border after the Civil War to back
the President's suggestion that France withdraw
its support from the government of Maxi-
milian. The United States made this threat to
use force on the authority of the President
alone, as an integral part of his responsibility
for the conduct of foreign relations in general
and the enforcement of the Monroe Doctrine
in particular. Under our constitutional practice,
it would have been time to involve Congress
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formally before or after hostilities broke out if
the President's warning had failed of its pur-
pose.
President Kennedy's handling of the Cuban
Missile Crisis in 1962 should be viewed, I be-
lieve, in the same perspective, as permissible
self-help authorized by Article 51 of the Char-
ter. We actually used a small amount of force,
in stopping Soviet vessels on the high seas, and
threatened a greater use of force, in order to
reinforce a diplomatic demand on the Soviet
Union. Our policy in the Cuban Missile Crisis
of 1962 was not a move to defend the United
States against the threat of imminent nuclear
or other attack. There was no risk of any such
attack. As President Kennedy pointed out at
the time, the emplacement of Soviet missiles in
Cuba was not in itself the crux of the contro-
versy: Soviet missile-carrying submarines roamed
the Atlantic at will.
Here again, the action taken was Presiden-
tial. Because of the controversy over the consti-
tutionality of President Truman's course in
Korea and the amendment to the Constitution-
proposed by Senator Bricker, a hasty Resolution
had been passed by Congress purporting to deal
with the Cuban crisis. But it did not cover the
situation as it developed. There is no doubt,
however, that Congress supported the President
in what he did.
The most recent and most portentous threat
to use force in aid of diplomacy was President
Nixon's series of warnings to the Soviet Union
not to attack China. This was the essence of
his diplomacy for achieving a rapproachement
with China as a step towards stabilizing the
relationships among the Soviet Union, China,
and the United States and its European and
Asian allies. The President was addressing the
ominous Soviet mobilization on the Siberian
frontier between China and the Soviet Union.
What he said, in context, was a secret threat to
use force in the event of a Soviet attack on
China. Thus far, that Presidential threat has
been effective.
Here too, what the President did has had
general and Congressional support. I am not
aware of any criticism of President Nixon's
rapproachement with China on constitutional
grounds.
In all these instances, and many others, the
action required of the United States was Presi-
dential in character. In some?like President
Nixon's recent warnings to the Soviet Union to
protect China and Israel?secrecy added to the
possibility of success and was perhaps essential
to success. It is easier for a nation to yield to a
secret than to a public threat. In such affairs
a hint is far more likely to be effective than an
15
ultimatum. All were situations requiring a
quick response and a nearly continuous course
of action. They were "executive" rather than
"legislative" in nature?if those two slippery
words can be considered to possess tangible
cores of meaning. They involved either limited
defensive responses to an attack on the interests
of the nation or equally limited recourse to
pressure in aid of diplomacy.
III
What you describe as "foreign covert ac-
tions" are accepted and relatively minor ex-
amples which fit into both the general cate-
gories I have sketched out in the second part
of this letter.
The Soviet Union and some other nations
engage in large-scale and systematic programs of
"foreign covert operations" directed against our
interests all over the world. I assume your Com-
mittee has carefully studied the events behind
the important Mexican decision in 1971 to ex-
pel over fifty Soviet diplomats and the corres-
ponding decision of the British government (in
the same year, I believe) to expel an even larger
number "for espionage and sabotage." These
were dramatic instances which came close to the
surface of public knowledge. Neither customary
international law nor the law of the United
Nations Charter?insofar as it may differ from
customary international law?provides any rem-
edies against such policies, save self-help in the
pattern of Article 51. Are we to stand by and
allow NATO allies, like Portugal, Italy, Greece,
or Iceland to be subverted and conquered by
well-financed Soviet programs of propaganda,
sabotage, and even direct revolutionary activity
(like that publicly revealed in Mexico in 1971)
without any response?
It seems to me that the long tradition of
using secret agents in diplomacy provides the
simple and sensible answer to that question.
That answer must be, "Of course not." The use
of secret agents was a familiar feature of the
diplomacy our Founding Fathers knew and
practiced. It has been commonplace ever since.
And today it is employed by our adversaries on a
larger and more sophisticated scale than at any
previous time in history. It makes no sense to
claim that either international law or our own
Constitutional law prevents the United States
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from defending its interests against such pres-
sures.
The defense of the nation against these un-
remitting pressures may sometimes involve ele-
ments of international coercion which would be
of doubtful international legality if they were
not intended to defend our interests against
illegal coercive pressures mounted against us by
the Soviet Union or other states. But they are
far less burdensome than the uses of coercion
mentioned in Part II of this letter. If it was
permissible under international law for Presi-
dent Wilson to send troops into Mexico in
order to capture Patch? Villa?and it was?it
is a fortiori legal for the United States to pro-
vide funds for democratic newspapers or politi-
cal parties in Chile or Portugal or to engage
in some of the other kinds of foreign covert
actions contemplated by your letter. Such oper-
ations should be deemed proper exercises of our
inherent right of self-defense, as activities nor-
mal to the conduct of our foreign relations in
this period of intense and dangerous interna-
tional rivalry.
IV
Finally, I come to the question whether
Congress can constitutionally limit or prohibit
the activities of the President in this field.
Let me start by making it crystal clear that
I oppose, and I believe our constitution op-
poses, unreviewable power in any branch of
the government. The American constitutional
system is based on the principle of democratic
responsibility. It has an answer for the famous
and ultimate question of all government, "Quis
custodiet custodes?" Our answer is plain, and
the passion of our convictions on the subject
was fully revealed in the Watergate affair
through which we have just passed.
The forms and methods of public accounta-
bility are not uniform, however. Some involve
judicial or congressional review; for others, the
only available remedy is at the polls. If the
Supreme Court errs, in the judgment of the
country, the remedy is a statute or a constitu-
tional amendment, embodying the sober second
thoughts of the American people.
Many, many decisions of government are
necessarily entrusted by the Constitution and
the laws to the uncontrolled discretion of the
President, or Congress, or both. These are the
16
so-called "political questions" courts cannot re-
view. Some are purely Presidential; others
purely Congressional; many involve the action
of both branches?a declaration of war, for ex-
ample. For such exercises of the power of the
political branches to make political decisions,
the appropriate way to assure democratic re-
sponsibility is oversight and ultimate recourse
to the political process. Great Britain, France,
and other democratic countries make it a rule
never to discuss their secret services in public.
So strict a standard is not congenial to our
political system. Nonetheless, in my view, Con-
gress should follow the holding in the Totten
case, which requires the courts to respect the
government interest in secrecy and conduct
their oversight hearings in private.
Such, I believe, is the constitutionally cor-
rect predicate for an answer to the questions
posed by your letter, "Can Congress limit or
prohibit the President's activities in the field
of foreign covert action operations?"
The question of prohibition . is easy, I
think. Congress cannot deny the President au-
thority to use secret agents in the conduct of
his constitutional duties as President any more
than it could interfere with any other "in-
herent" or "independent" feature of his power.
Regulation within the boundaries estab-
lished by our constitutional history is another
matter.
The problem, I suggest, is like that in-
volved in establishing and organizing the State
Department. Only Congress can establish on-
going governmental institutions to assist the
President in carrying out his responsibility for
the conduct of foreign relations. It can pass
comprehensive legislation to regulate the func-
tioning of the State Department. But in doing
so, Congress cannot limit or control the exer-
cise of the President's constitutional discretion.
It could not, for example, decide questions of
recognition or non-recognition. They are for
the President alone. It cannot, I believe, require
the President or any other executive officer to
reveal what Chief Justice Marshall, in Marian);
v. Madison, called "the secrets of the cabinet."
Congress could not require the President to act
only on the recommendations of the Secretary
of State, or the National Security Council, or
the Senate Foreign Relations Committee. It
could not require the President to use only
members of the Foreign Service or Ambassadors
as his agents in diplomacy. From the time Presi-
dent Washington sent the Chief Justice to nego-
tiate Jay's Treaty to the day of Colonel House,
Harry Hopkins, or Henry Kissinger (before Ile
became Secretary of State). Presidents have often
chosen to conduct diplomatic business through
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channels convenient to them.
Similarly, Congress cannot control the Pres-
ident's discretion as Commander-in-Chief, save
through its power of the purse, although it can
and does legislate on a large scale to organize
and regulate the military establishment. It
could not order President Roosevelt to start a
Second Front in France or prevent a President
from negotiating and signing an armistice or a
cease fire.
In the nature of world politics today, what
your letter calls "foreign covert action opera-
tions" will often be "indispensable to the
government" to recall the phrase from the
Totten case. Under most circumstances, they
come well within the areas of action the Presi-
dent is fully authorized to take on his own re-
sponsibility. In Totten the Court ruled that in
hiring a secret agent without statutory author-
ity, the President made a contract binding on
the United States and payable from contingent
funds entrusted to him by Congress. Congress
can probably alter that practice and regularize
the President's mode of making such contracts.
But it cannot deprive him of the function.
Can Congress limit or control the Presi-
dent's discretion in carrying on foreign covert
operations, save through a refusal to appropri-
ate funds? To a degree, I believe it can. For
example, I see no reason why Congress could
not declare that it is against the policy of the
United States to engage in political assassina-
tion. To my official knowledge, that was the
firm and immutable policy of the United States
while I served in the government in high
enough positions to know, and I was assured
that it had always been the policy of the United
States. Congress has passed legislation and rad-
fled treaties dealing with many aspects of the
law of war. Those statutes and treaties restrict
the powers of the President as commander-in-
chief. If the Senate can ratify treaties and Con-
gress pass legislation outlawing the use of
poison gas or the bombing of open cities, I
see no reason why Congress could not outlaw
certain practices by our CIA agents, so long as
the function itself is not crippled or controlled.
Manifestly, there is no chance whatever
that the rules of the game for the secret services
will ever be prescribed by international agree-
ments like the Geneva Conventions regulating
the use of force in war and other hostilities.
Whether it is prudent to consider such legisla-
tion is therefore a difficult question. But your
letter asks only whether under the Constitution
Congress has the power to pass any substantive
legislation at all in the field beyond house-
keeping statutes.
17
My answer to that question is a qualified
"Yes." In my opinion, Congress can pass legis-
lation dealing with foreign covert action opera-
tions of the President as chief diplomat of the
nation, commander-in-chief of its armed forces,
and head of state, so long as it does not cross
the intangible boundary between the legislative
and executive aspects of the problem. Admit-
tedly, the delineation of that frontier is difficult
and will always be difficult for the reasons I
suggested earlier. -Certainly my colleague Pro-
fessor McDougal was correct when he wrote to
you on August 21 that "Congress has no more
authority to regulate the independent powers
of the President than the President has to regu-
late the independent powers of the Congress."
But which part of the President's powers are
truly independent and which are shared with
Congress? There are many fields in which the
President can and should act in the absence of
Congressional action but where Congress can
act if it wishes to do so: the abrogation of
treaties, for example; the exclusion of aliens;
the regulation of international cables and other
devices of telecommunication.
In trying to analyze the division of the
foreign affairs power and the war power be-
tween Congress and the President, the conduct
of foreign covert action operations is surely an
aspect of diplomacy and of the President's
duties as commander-in-chief, which should be
classified close to the Presidential end of the
spectrum. It is necessarily secret and intimately
associated with the conduct of foreign relations,
rather than the articulation of legislative policy.
Nonetheless, I should be the last to deny that
there is some room for substantive policy legis-
lation in the field, so long as the basic process
of the Constitution is respected.
The democratic quality of American life
depends ultimately not only on the rectitude
of our governors but on the inevitable rivalries
and jealousies of the three branches of govern-
ment. Those rivalries produce the tensions
which have made it possible to preserve our
Constitutional system for nearly two centuries
and thus to protect our liberty. The present
study of your Select Committee represents one
manifestation of that constitutional tension. Of
course tension should not be carried so far as
to paralyze government. It never has. But it
should go far enough to satisfy us that any
abuses of the system have been cured; that
every reasonable precaution against possible
future abuse has been established; and, above
all, that the proper functioning of the Presi-
dent's secret services as indispensable agencies
of government has been facilitated and assured.
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Valparaiso University
Law Review
THE EDWARD A. SEEGERS
LECTURES
LECTURES
"ONCE MORE UNTO THE BREACH:"
THE WAR POWERS RESOLUTION REVISITED
Eugene V. Rostow
COMMENTARY
? ON WAR-MAKING, ORIGINAL INTENT,
AND ULTRA-WHIGGERY
Charles A. Lofgren
THE POLITICAL QUESTION OF THE
WAR POWERS RESOLUTION
John M. Lewis
ARTICLE
? FUNDAMENTAL PROPERTY RIGHTS
R. George Wright
NOTES
THE CHILD ABUSE AMENDMENTS OF 1984:
INADEQUATE PROCEDURAL DUE PROCESS
SAFEGUARDS
THE BREAKDOWN IN MICHIGAN'S SOLID
WASTE REGULATION
A REMEDY FOR INDIANA'S PRODUCT
LIABILITY MALADY
CONTEXTUAL REGULATION OF INDECENCY:
A HAPPY MEDIUM FOR TELEVISION
?
VOLUME 21, NUMBER 1 FALL 1986
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Valparaiso University Law Review
Volume 21 ?
Fall 1986 Number 1
"ONCE MORE UNTO THE BREACH:" THE
WAR POWERS RESOLUTION REVISITED
EUGENE V. ROSTOW*
LECTURE I.
The War Powers Resolution was enacted over President Nixon's veto
in 1973, as the twin dramas of Vietnam and Watergate were approaching
their climax in the President's resignation nearly a year later. The sponsors
of the statute told the American people it would protect the nation from
"another Vietnam" and piously restore the constitutional balance the
Founding Fathers intended between Congress and the President with regard
to the use of the national force. That balance had been disturbed, the sup-
porters of the Resolution claimed, by a series of Presidents since McKinley
who had stolen the war-making powers entrusted to Congress by the Con-
stitution, and thereby made Congress the impotent slave of an Imperial
Presidency. Once we return to the true constitutional faith, these Soions
said, the peace, security, and prosperity of the United States and its allies
would be assured.
The critics of the statute were equally apocalyptic. The Resolution,
? Sterling Professor of Law and Public Affairs Emeritus and Senior Research
Scholar, Yale University; Distinguished Visiting Research Professor of Law and Diplomacy,
National Defense University. The paper is based on two Edward A. Seegers Lectures given at
the Valparaiso University School of Law on March 18 and 19, 1986. 1 thank my hosts on that
agreeable occasion, and particularly my old friend Dean Louis Bartelt, for the honor of their
invitation and the kindness of their hospitality.
My purpose in this paper is to reconsider and supplement my earlier writings on the War
Powers Act and bring them up to date. Those writings include: War. Foreign Affairs and the
Constitution, 4 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 2007-2013 (1986); Com-
mander-in-Chief, I ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 316, 317 (1986); Great
Cases Make Bad Law, 50 TEX. L. Rev. 833 (1972); Response to Professor Henkin, 61 VA L.
R v . 797 (1975); Learning Lessons from Vietnam, CONGRESS, THE PRESIDENT, AND FOREIGN
POLICY 89 (1984); War Powers: Hearings Before the Subcomm. on Nat'l. Security Policy and
Scientific Developments of the House Comm. on Foreign Affairs. 93rd Cong., 1st Seas 395
(1973) (statement by Eugene V. Rostow). The present article rescues some pages of my testi-
mony in the 1973 War Powers Hearings from the unindexed limbo of such documents.
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2 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
they argued, rested on a mistaken understanding of the intentions of the
Founding Fathers and the course of constitutional history. The proponents
of the Resolution were guilty of a cruel and hypocritical deception in prom-
ising the American people immunity from "another Vietnam." Not even an
Act of Congress can guarantee that our wars will always be conducted
wisely and effectively, and won. In any event, they pointed out with some
asperity, the Vietnam War had been authorized not only by the decisions of
four Presidents, but by two treaties and repeated Congressional acts and
joint resolutions which. amply satisfied the procedural requirements of the
new statute. Moreover, the War Powers Resolution could not "restore" the
balance of the Constitution; that balance had never been disturbed. The
foreign affairs powers, including the war powers of the United States, had
been exercised in much the same way between the time of Washington and
John Adams and that of Franklin Roosevelt, Truman, and Lyndon Johnson.
If enforced, the War Powers Resolution would accomplish the most revolu-
tionary constitutional change in American history. It would deprive the
President of his capacity for prompt and decisive action which has been
critical to his effectiveness both in the conduct of foreign relations and in
the management of crises. These powers are inherent in the Presidency and
necessary to the security of the nation?more necessary today than ever
before. Actually enforcing the War Powers Resolution would convert the
strong, autonomous President which is one of the great achievements of the
Constitution into a mere lackey of an omnipotent Congress. Such action
would repudiate Hamilton's theory of the Presidency which has dominated
judicial decisions and constitutional practice in the domain of foreign affairs
since 1789, and for the first time embrace what Corwin scornfully called
the "ultra-Whig" view of the office.' If the War Powers Resolution had
been in effect, Lincoln could not have saved the Union, Franklin Roosevelt
could not have taken the early steps which made it possible in the end to
defeat Hitler, and Kennedy could not have conducted the Cuban Missile
crisis successfully. Thus, in the eyes of Hamiltonians, the War Powers Res-
olution would restore the Articles of Confederation as our norm for han-
dling the foreign affairs of the nation, and leave the United States drifting
helplessly in stormy seas, naked before its enemies. In their view, the ultra-
Whigs have revived a familiar and beloved constitutional controversy in or-
der to avoid the disagreeable fact that changes in the magnetic field of
world politics since 1789 have imposed novel and dangerous tasks on the
people and government of the United States.
With the benefit of hindsight, these two lectures attempt to review the
continuing debate about the War Powers Resolution against the back-
ground of international law and politics and the nation's experience in con-
I. CORwIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1957 at 17 (4th ed. 1957).
See also CORwiN, THE PRESIDENT'S CONTROL OF FOREIGN RELATIONS 126-207 (1917).
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1986) WAR POWERS RESOLUTION 3
ducting its foreign relations under the Constitution of 1787. The first lec-
ture examines the controversy in the light of constitutional theory and early
practice; the second takes up the War Powers Resolution and its reception.
For purposes of international law. the United States is a unitary, not a
federal state. Internationally, the American states are provinces, devoid of
4-sovereignty." Since we prevailed in the Revolutionary War, the United
States is considered legally to have come into being as a full fledged mem-
ber of the family of nations with the Declaration of Independence, vested as
of that date with all the powers, rights, immunities, and privileges acknowl-
edged by international law as the prerogative of widely recognized states.
Correspondingly, the United States is liable to other states for the perform-
ance of the duties imposed upon all states by international law. In the
"great external realm" of foreign affairs, the United States can do whatever
other states do?that is, whatever it deems necessary and reasonable to as-
sure its safety and well-being in international society.
The Constitution does not purport to "grant" international powers to
the United States any more than it purports to create the United States. On
the contrary, as is natural in a document reorganizing the institutions of a
functioning government for the second time more than a decade after its
creation, it treats the United States as an existing and on-going political
entity. The Constitution is written in the name of "the people of the United
States," and notes as obviously valid the treaties made under the authority
of the United States between 1776 and 1789, Thus the international pow-
ers of the United States are conferred and defined by international law.
Internationally, the government of the United States possesses all the pow-
ers possessed by any other state under international law, including the sov-
ereign power to violate international law. The Constitution commits these
powers to the political discretion of Congress and the President in accor-
dance with the principle of functional necessity. If Congress or the Presi-
dent should decide to use the national force in violation of international
lav., courts and citizens are bound thereby, as they are bound by other offi-
cial decisions with in the discretion of the political branches of govern-
ment.' The division of the foreign affairs and war powers between Congress
and the President reflects the grand Design of the American polity, to recall
2. U.S. CONST. preamble.
3. U.S. CONST. art. VI, cl. 2;
4. Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972), ten. denied, 411 U.S. 931 (1972);
Cook v. United States. 288 U.S. 102 (1933); The Chinese Exclusion Cases, 130 U.S. 581
(1899); Whitney v. Robertson, 124 U.S. 190 (1888); Head Money Cases, 112 US. 580
(1884), L. HENNIN. FOREIGN AFFAIRS AND THE CONSTITUTION 15-16 (1972).
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4 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
the favorite major premise of John Marshall's constitutional opinions.' In
this instance, the great purpose of the Constitution is to fullfil the twin
objectives of executive effectiveness and democratic responsibility: a strong,
energetic President and a strong, energetic Congress. The international
powers of the nation which are legislative in character, with some excep-
tions, are Congressional, and those which are executive in character, with
some exceptions, are Presidential. The Senate must give its advice and con-
sent to the appointment of high officials and the ratification of treaties, and
only Congress can "declare" war.
The President created by the Constitution was in no Sense to be a
Prime Minister. No member of Congress can serve in the executive
branch" And the President is elected not by Congress but by an indepen-
dent national constituency for a different term. As Professor Corwin wrote,
Mlle fact is that what the Framers had in mind was not the
cabinet system, as yet nonexistent even in Great Britain, but the
'balanced constitution' of Locke, Montesquieu, and Blackstone,
which carried with it the idea of a divided initiative in the mat-
ter of legislation and a broad range of autonomous executive
power or 'prerogative'. Sir Henry Maine's dictum that 'the
American Constitution is the British Constitution with the mon-
archy left out' is, from the point of view of 1789, almost the
exact reverse of the truth, for the presidency was designed in
great measure to reproduce the monarchy of George HI with the
corruption left out, and also of course the hereditary feature.'
[italics in original]
There is comfort in reciting these familiar words, and it is intellectu-
ally necessary to do so, but they are no more than a starting point for anal-
ysis, and a fairly boggy starting point at that. The boundary between the
legislative and the executive power is not always easy to draw in the domes-
tic governance of the United States, although with regard to some problems
one can in desperation invoke Justice Potter Stewart's celebrated comment
about "hard-core" pornography:
I shall not today attempt further to define the kinds of material
I understand to be embraced within that shorthand description;
and perhaps I could never succeed in intelligibly doing so. But I
know it when I see it, and the motion picture involved in this
5. Gibbons v. Ogden, 22 U.S. (9 Wheat.) I, 17 (1824); McCullogh v. Maryland, 17
U.S. (4 Wheat.) 316, 405 (1819); Marbury v. Madison, 5 U.S. (1 Cranch) 137. 166 (1803).
6. US. CONST. art I I 6, cf. 2.
7. CORWIN. THE PRESIDENT: OFFICE AND POWERS, 1787-1957, at 14-15 (4th ed.
1957).
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WAR POWERS RESOLUTION 5
case is not that.'
With regard to foreign affairs, including the respective powers of the
President and Congress over the use of force, the normal difficulties of con-
stitutional construction arc complicated by two special factors: (I) modern
American citizens and lawyers are less familiar with international law than
their predecessors in the late eighteenth and early nineteenth centuries; and
(2) the turbulence of the world since 1914 has required a far more active
American foreign policy than was the case for most of the nineteenth cen-
tury. Since 1914, foreign affairs have been a much more constant preoccu-
pation of American domestic politics and a much more important factor in
the perennial tug of war between Congress and the President than has been
the case since the Presidencies of George Washington and John Adams. It
is no wonder that John Quincy Adams once remarked that the boundary
between Presidential and Congressional power in the field of foreign affairs
is as yet undetermined, and perhaps never could be defined.'
A great deal of the heat in the debate over the War Powers Resolution
derives from a popular and sometimes even professional misunderstanding
of the clause in the Constitution which specifies that Congress has the
power "to declare war." The phrase has acquired a mystic denotation in
the vocabulary of American politics quite unjustified by its meaning and
history. Despite nearly two hundred years of experience to the contrary,
people cling to the view that there is something improper, perhaps illegal or
even a bit dictatorial in hostilities authorized by the President alone, or by
the President and Congress acting together but without benefit of a Joint
Resolution labelled a "Declaration of War."
The national force has been used abroad more than two hundred times
since 1789, and its use hinted at or threatened by Presidents in secret or
public diplomatic messages many more times, but only five "Declarations of
War" have been adopted." The practice of other nations in this regard is
the same. "Declarations" of war are rare; and no nation has issued a "Dec-
laration of War" since the United Nations Charter was adopted in 1945.
8 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
9. ADAMS, EULOGY ON MADISON 47 (1836).
10. U.S. CONST. art. 1, 3 8. cl. 11. See W.REVELY, WAR POWERS OF THE PRESIDENT
Amp CONGRESS 0980; C. TFIACH, CREATION OF THE PRESIDENCY. 1775-89 (1923); C. BER-
DAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES (1921).
I I. J. ROGERS, WORLD POLICING AND THE CONSTITUTION 46-47 (1945); A. SOFAER,
W. FOREIGN AFFAIRS, AND CONSTITUTIONAL POWER, THE ORIGINS (1976); Javiu, War
Po.ers Reconsidered, 64 FOREIGN AFFAIRS 130, 140 (1985); War Powers Legislation: Hear-
ings on S. 731, Si. Res. 18 and Si: Res. 39, before the Senate Comm. on Foreign Relations,
92nd Cong., 1st Sess. 359-79 (1972) (testimony of Senator Goldwater). Senator Javits* solu-
tion of the problem is to characterize all Presidential actions since 1789 which do not conform
to his model as "unconstitutional."
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6 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
Nonetheless, the words "declare war" and "declaration of war" remain the
focus of uneasy concern in the endless American argument about the war
powers of the nation. The War Powers Resolution does not commit this
vulgar error in form, but it does so in spirit. Politicians find it all too easy to
exploit that concern when wars become unpopular, as all wars do, and es-
cape from the battlefield by denouncing "John Adams' Undeclared War,"
"Harry Truman's Undeclared War," or "Lyndon Johnson's Undeclared
War," as the case may be.
There is no excuse for the survival of this hoary bit of verbal necro-
mancy. Both the text and the context of the Constitution give an obvious
substance?indeed a "plain meaning"?to the words "declare war."
With the possible exception of the clause endowing each state with two
Senators, no provision of the Constitution is less ambiguous than the
paragraphs of Article 1 Section 8 which state that Congress has power:
To define and punish piracies and felonies committed on the
high seas and offenses against the law of nations; and
To declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water.
The language of these paragraphs is peculiar to international law, and
can only be understood in the setting of international law. The phrase "to
declare war" in the Constitution has a specific meaning in international
law. Under international law, force may be used between states both in
time of war and in time of peace. All international uses of forces are not
"war" in the legal sense of the word, however bloody and extended the
conflicts may be. The older treatises on international law generally ap-
peared in two volumes, one devoted to the Law of War, the other to the
Law of Peace. A "declaration of war" transforms the relationship between
the belligerents into a state of war and challenges the relation of non-par-
ticipants to the belligerents. The state of war contemplates unlimited hostil-
ities between the belligerents, the internment or expulsion of enemy aliens,
the termination of diplomatic relations, the sequestration or even confisca-
tion of enemy property, and the imposition of regulations?censorship, for
example?which would be unthinkable in liberal-minded states during
peacetime. And it gives rise to thorny and nearly insoluble problems of neu-
trality which were important factors in the involvement of the United
States in a least four wars and a number of diplomatic controversies which
approached the point of war.
On the other hand, the permissible international use of force in time of
peace, as international law defines peace, stretches across a wide spectrum
of situations from "showing the flag" and other kinds of diplomatic warn-
ings to actual hostilities in the exercise of a state's sovereign and inherent
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WAR POWERS RESOLUTION 7
right of self-defense."
The doctrines of international law on the subject of self-defense are
reasonably clear cut. The dominant characteristic of such international uses
of force in peacetime is that they should be limited and proportional re-
sponses to a prior illegal act of a forceful character for which another state
is responsible." Thus if State A violates certain fundamental rights of State
B?for example, by sending guerrillas, armed bands, or terrorists from its
territory into that of State B in order to assist a rebellion against the gov-
ernment of State B or by failing to prevent such incursions?and diplo-
macy, arbitration, and other peaceful procedures for curing the breach are
unavailing, State B and states which decide to help it are entitled to use
whatever force against State A is necessary to cure State A's breach of
international law: so much and no more.
In one of the leading cases of this kind, which took place in 1837. the
United States had failed to prevent some anti-British enthusiasts assembled
on the Niagara River in northern New York from forming armed bands
which crossed the river to join an insurrection against British authority in
Canada. After remonstrance failed, the British sent a company of soldiers
into New York to disperse the "freedom fighters." In the Anglo-American
diplomatic correspondence on the subject, still frequently cited, the United
States conceded that Britain had the abstract right under international law
to do what it did, but should have given the United States more time to
eliminate the camps itself. There was no confusion about what was happen-
ing. The United States did not suppose that Great Britain was waging gen-
eral war against it. The British intervention was limited by the nature of
the breach of international law it was intended to cure."
In an even more famous episode, Great Britain paid the United States
a large sum in damages, as established by arbitration, for having failed
12. See BOWETT, SELF DEFENSE IN INTERNATIONAL LAW (1958); BROWNL1E, INTER-
NATIONAL LAW AND THE USE OF FORCE BY STATES (1963); M. McDouGAL & F. FELICIANO,
LAW AND MINIMUM WORLD PUBLIC ORDER (1961); N. Rosiou, Low and the Use of Force by
Starts: The Brezhnev Doctrine.7 YALE J. WORLD Pus ORD. 209 (1981); Waldock, The Reg-
ulation of the Use of Force by Individual States in International Low; 81 ACAD. Dam Nil.,
HAGUE RECEUIL DES Cowers 455 (1952); N. Rostow. Nicaragua and the Law of Self De-
fen.se, 12 YALE J. Ho's. L.(in press).
13. See BRIERLY, THE LAW OF NATIONS 405-32 (6th ed. 1963); L. BUCHHEIT, SECES-
SION: THE LEGITIMACY OF SELF-DETERMINATION (1978); INTERVENTION IN WORLD POLITICS
(H. Bull ed. 1984); LAW AND CIVIL WAR IN THE MODERN WORLD (J. Moore ed. 1974); E.
Rostou, The Politics of Force, YEARBOOK OF WORLD AFFAIRS 38, 46 (1982); 0. SCHACTER,
INTERNATIONAL LAW IN THEORY AND PRACTICE Ch. 7-11 (1985); J. STONE, AGGRESSION
AND WORLD ORDER 41-77 (1958).
14. See J. MOORE, DIGEST OF INTERNATIONAL LAW 409-14 (1906); H. WHITEMAN,
DIGEST OF INTERNATIONAL LAW 211-36 (1969): R. Jennings, The Caroline and McLeod
Cases. 32 Am. J. INT.!. L. 82 (1938).
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8 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
during the Civil War to prevent the Confederate cruiser Alabama from
slipping out to sea unarmed from Liverpool where it was being built. The
United States repeatedly warned Great Britain that the ship was intended
to be used as a commerce raider. Britain agreed that its failure to prevent
the escape of the vessel violated its international legal duty to the United
States."
Another important branch of the law of self-defense in international
law concerns assistance to friendly states in putting down riots, insurrec-
tions, rebellions, and civil wars, as well as incursions from other states. A
state has an absolute right to assist another state if it wishes to do so under
such circumstances. Article 51 of the United Nations Charter refers to this
right as the right of "collective self-defense" and provides that nothing in
the Charter shall impair "the inherent right of individual and collective
self-defense." On the other hand, states are absolutely prohibited by inter-
national law from assisting rebels against the government of a state, even if
hostilities reach the level of actual belligerency, as the Alabama episode
demonstrates. The civil wars in the Congo and in Nigeria during the sixties
were modern applications of the principle. There states were considered free
to assist Nigeria in putting down the Biafran secession, and three states did
so publicly, but no state was allowed to help Biafra."
There have been many comparable applications of the principle of self-
defense throughout modern history, involving not only the protection of bor-
ders, but the protection of citizens and nationals in danger abroad; the elim-
ination of what a state perceives to be a threat to its national interests, like
President Kennedy's limited use of force during the Cuban Missile crisis of
1962," and interventions on. humanitarian grounds where organized govern-
ment has broken down." Israel, for example, had the right under interna-
tional law to use whatever force was reasonably required to gain the release
IS. See PAPERS RELATING To THE TREATY OF WASHINGTON (1872-73); C. CAMP.
BELL, THE TRANSFORMATION OF AMERICAN FOREIGN RELATIONS, 1865-1900 at 25-49 (1976);
A. COOK, THE ALABAMA CLAIMS (1975): J. DAvis, MR. FISH AND THE ALABAMA CLAIMS
(1893).
16. See L. BUCHHEIT, supra, note 13; T. FARER, THE REGULATION OF FOREIGN IN-
TERVENTION IN CIVIL ARMED CONFLICT (1974); THE INTERNATIONAL LAW OF CIVIL WAR
(R. Falk ed. 1971); THE INTERNATIONAL REGULATION OF CIVIL WARS (E. Luard ed. 1972);
J. MOORE, LAW AND THE INDO-CHINA WAR (1972), reviewed in 82 YALE LJ. 829 (1973); E.
LEFEVER, UNCERTAIN MANDATE, Pouvics or THE U.N. CONGO OPERATION (1967).
17. WOHLSTETTER & WOHLSTETTER, CONTROLUNG THE RISKS IN CUBA (1965). See
also H. DINERSTEIN, THE MAKING OF A MISSILE CRISIS 1962 (1976). In his memoir. THE
CUBAN MISSILE CRISIS (1974). Abram Chayes advances the untenable argument that the
American legal position in 1962 was based on the authority of the Organization of American
States, not on the right of self defense. A regional organization cannot supersede the Security
Council by its own ipse dixit, as Article 53 of the United Nations Charter makes clear.
18. See M. MCDOUGAL, H. LASSWELL & CHEN, HUMAN RIGHTS AND WORLD PUBUC
ORDER (1980).
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WAR POWERS RESOLUTION 9
of iu citizens held hostage at Entebbe in 1976, and to attack PLO installa-
tions in Lebanon in 1982 and in Tunisia in 1985." The United States had
the same right to use force when our Embassy staff was held in Tehran
during the Carter Administration, and when citizens were similarly held in
Beirut more recently."
There arc many diplomatic episodes, arbitrations, and judicial opinions
dealing with the legality of such uses of force under international law. The
rule they represent is applied and discussed with striking uniformity at the
professional level. This uniformity is hardly surprising, since the rule re-
flects the principle of the sovereign equality of states on which the system of
world order is based."
In addition, the United States like other countries has used force or the
threat of force many times in support of its diplomacy, from the visit of
Commodore Perry to Japan in 1853 to President Nixon's secret nuclear
warnings that induced the Soviet Union not to attack Chinese nuclear in-
stallations in 1969. This behavior, too, is accepted as legitimate under inter-
national law in times of peace.
How should this wide array of national power to use force internation-
ally. both in times of peace and of war, be exercised under the American
Constitution - by Congress, by the President, or by both? Can there be a
single rule applicable to situations of such unpredictable diversity, beyond
the provision that only Congress can declare war?
11
The outbreak of the second round of the Great European War in 1793 cre-
ated as many difficult problems for the United States and as much heated
disputation about the foreign affairs powers of the President and Congress
as the Vietnam War. The United States was embroiled from the beginning.
We fought twice in order to protect what we considered our legal rights as
neutrals, once on each side - in John Adams' famous "Undeclared War"
against France between 1789 and 1800," and later against Great Britain in
19. E. Rostou, Remarks, PROC. OF THE 77TH ANN. MEETING, Am. Soc'v. Inrrl L.J.
217 (1983)
20. Falk. Editorial Comment, The Iran Hostage Crisis: Easy Answers and Hard Ques-
tions, 74 Am. J. MI L. 411 (1980); Fisher, The Iranian Crisis: Who Should Do What? 14
A k sot: L. REV. 1 (1980); Gross, The Case Concerning United States Diplomatic d Consular
Staff in Tehran Phase of Provisional Measures, 74 AM.). INT'L L. 395 (1980); Grzybowski,
The Regime of Diplomacy d the Tehran Hostages, 30 In-r's & COMP. L. Q. 42 (1981); E.
Rostov,. Rescuing Missions, AMERICAN SPECTATOR 10 (1980); Note, The Iranian Hostage
Agreement under International and United States Law, 81 COLUM. L. REV. 822 (1981).
21. E. ROSTO%v, Obtaining Peace, chapter in DAVID ARSHIRE, Ed., HISTORY AND
MODERN STRATEGY: WAR IN AN HISTORICAL PERSPECTIVE (in press).
22. A. SOFAER, supra note II, at ch. 3; DE CONDE, THE QUASI-WAR (1962).
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the War of 1812, which was formally declared." There was a most contro-
versial Presidential proclamation of neutrality in 1793," backed thc next
year by an equally controversial Neutrality Act, parts of which are still on
the statute books." And in Jefferson's administration we indulged in .11
trade embargo which proved to be as futile as every other act of economic
warfare and stirred the first cry for secession in the nation's history."
Out of the crucible of that experience there emerged a workable and
consistent division of authority between Congress and the President with
regard to the making and execution of foreign policy, including the toie of
the national force. That division has survived with little change until the
present time. It constitutes a pattern of cooperation and rivalry characteris-
tic of all our constitutional arrangements. Its main lines are determined by
the nature of things. Only the President can conduct the day to day diplo-
macy of the nation and command its armed forces. Only Congress can pass
laws needed to make conduct criminal," appropriate money, or
give longer
range policy a completely solid footing. As Judge Abraham D. Sofaer con-
eludes in his comprehensive study of the early constitutional development of
the war power, the framework of executive-congressional relations achieved
during the first eight years of the Constitution "differs more in degree than
in kind from the present framework."" The President has inherent consti-
tutional rights and obligations, Judge Sofaer contends, to use the national
force under many circumstances, at least until Congress acts to the con-
trary, and, absent valid legislative direction to the contrary, may well be
considered to be "a sufficient embodiment of the national sovereignty to
exercise its rights under the law of nations.""
The controversy over Washington's Neutrality Proclamation of 1793 is
a useful point of departure.
France declared war on Great Britain in 1793, initiating a world crisis
which did not end until Napoleon was safely ensconced on St. Helena The
United States was bound to France by treaties of perpetual alliance noon-
_
23. Declaration of War of 1812. ch. 102, 2 Stat. 755 (1812).
24. C. THOMAS, AMERICAN NEUTRALITY' IN 1793 (1931): C. WARREN, TH1 S1,11IIME
COURT IN UNITED STATES HISTORY 105 (1932): Henfield's Case, ii F. Cat. 1099 Ili Pa.
1793) (No. 6360).
25. Neutrality Act of 1794, ch. 50. 1 Stat. 381 (1794).
26. D. MALONE, JEFFERSON THE PRESIDENT, Vol. 5. THE SECOND TERM. 1805 ISO.
ch. 15-16 (1974).
27. The Supreme Court has held that there is no federal common law of crimes. lisitrd
States v. Hudson & Goodwin, 11 U.S (7 Cranch) 32 (1812); United States v. Conhilv. 14
U.S. (1 Wheat.) 415 (1816).?Story and Jay. among others, had taken a different vies. Si""
Ifl
the United States v. Coolidge, 25 F. Cas. 619, 619-20 (D. Mass. 1813) (No. 14,857). .IA% ta
presenting HenfieId's Case to the Grand Jury. Henfield's Case, 11 F. Cas. at 1105
28. A. SOFAER, supra note II, at p 127.
29. Id. at 5.
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WAR POWERS RESOLUTION 11
ated in 1778 by Benjamin Franklin." Those treaties were universally (and
rightly) regarded in the United States as the rock on which the indepen-
dence of the nation was founded. Franklin's treaties seemed to require the
infant Republic, in the event of war between France and Great Britain af-
ter the end of the Revolution, to side with France, protect the French colo-
nies in the Caribbean, and allow France to fit out privateers in the United
States, conduct naval war from American ports, and hold consular prize
courts in the United States.
Any such course of action by the United States would have been an act
of war against Great Britain, entitling Britain to respond with force. In
1793, the United States could easily have been reconquered by Great Brit-
ain both from Canada and from the seas. The other frontiers of the nation
were held by British or Spanish forces which could readily have attacked or
incited Indians to do so. Spain was dubious both about the fact and the
example of the American Revolution, and would become Britain's ally in
the war with France. The United States had no navy at the time, and little
by way of an army. Washington and his cabinet?including both Jefferson
and Hamilton?were determined to preserve neutrality despite the treaties
with France. They were equally agreed in advising the President not to call
Congress into special session, because of the inflamed state of public
opinion."
With the passions of the Revolution still very much alive, the country
was violently pro-French and anti-British, and the Jeffersonian party made
enthusiasm for France and the French Revolution a political principle. As
John Marshall commented in his book Life of Washington, "by a great
proportion of the American people, it was deemed almost criminal to re-
main unconcerned spectators of a conflict between their ancient enemy and
republican France."2
Some argued that since only Congress could adopt a Declaration of
War, only Congress could adopt a Declaration of Neutrality. To their
minds, Congress' authority to declare war included every possible facet of
the sovereign national power to use force or not to use it: to avoid the ap-
parent obligation of the treaties, or to embrace them heroically.
Hamilton recommended that the President side-step the issue. In his
view, Franklin's treaties did not apply because they were defensive in char-
30. Treat) of Alliance. Feb. 6, 1778, United States-France, 8 Stat. 6, T. S. 82; Treaty
or Amity and Commerce. Feb. 6, 1778, United States-Francc, 8 Stat. 12.1. S. 83. See gener-
ally S. BEMIS. THE DIPLOMACY OF THE, AMERICAN REVOLUTION, Ch. 5 (1956); W. MALLOY,
TREATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTOCOLS, AND AGREEMENTS BETWEEN
THE UNITED STATES AND OTHER Powtas, 1776-1920, 468-483 (1910).
31. S. BEMIS, A DIPLOMATIC HISTORN OF THE UNITED STATES 94-101 (Id ed. 1950).
32. THE LIFE OF GEORGE WASHINGTON 256-57 (2nd ed. 1834).
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12 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
acter and France had declared war on Great Britain. If the President con-
sidered this construction too controversial politically, Hamilton advised him
not to recognize the revolutionary government in France, nor to receive its
Minister, the notorious Citizen Genet, thus suspending the treaty until a
better day; or, in any event, to make his interpretation of the treaties a
condition of receiving Genet. All sides in the controversy agreed that the
President had the sole power of recognizing foreign governments. Jefferson
supported the policy of neutrality, although in deference to his pro-French
sensibilities the word "neutrality" was avoided in the Proclamation the
President finally issued. But Jefferson was offended by the thought that rev-
olutionary America, which had dealt happily with Bourbon France as an
ally, might treat republican France as a pariah. If the President decided to
receive Genet, Hamilton replied, he should issue the Proclamation on his
own authority."
Hamilton's exposition of the President's power to act under the circum-
stances was published after the event in a series of seven newspaper articles,
signed Pacificus. They are one of the neglected masterpieces of our litera-
ture both about the Constitution and about our foreign policy."
The Proclamation of Neutrality had two functions, according to Ham-
ilton: (1) to notify the world that the United States was at peace with both
belligerents, and intended to respect its international law duties of neutral-
ity towards each; and (2) to warn United States citizens to abstain from
acts which would contravene these duties and thus risk dragging the United
States into war. The issuance of the Proclamation necessarily rested on the
President's opinion that under the circumstances the United States was not
bound to execute certain key features of the treaties with France. Does the
President have the authority to make such a decision, and act on it, at least
in the first instance?
Hamilton's answer is a categorical "yes." The same answer would be
generally accepted today. A recent instance of the exercise by a President
of his power to act on his own interpretation of a treaty was President
Carter's decision that he could exercise the authority of the United States
pursuant to its Security Treaty with the Republic of China to terminate
that Treaty in accordance with its text on one year's notice."
33. See. e.g., C. THOMAS, supra note 24, at 95; J. FOSTER, A CENTURY OF AMERICAN
DinokrAcl 141-59 (1900).
34. THE WORKS OF ALEXANDER HAMILTON 432-89 (H. Lodge ed.). The key essays are
conveniently available, together with Madison's answer, signed Helvidius, in E. CORWIN, THE
PRESIDENT'S CONTROL OF FOREION RELATIONS 7-32 (1917).
35. Goldwater v. Carter, 617 F.2d 697 (D. C. Cir.) vacated as non-justiciable with
directions to dismiss, 444 U.S. 996 (1979). See also Gable. Taiwan Relations Act : Legisla-
tive Rerecognition, 12 VANE). .1. TRANSNAT1 L. 511 (1979); Scheffer. The Low of Treaty
Termination as Applied to the United States De-Recognition of the Republic of China, 19
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As for the particular problem of neutrality, the constitutional power is
joint and several?a concurrent power. Both the President and Congress
can proclaim neutrality, each in its respective sphere. Congress' view is nec-
essarily final. But circumstances often make it prudent for the President to
act quickly and decisively, and the President's action can affect the situa-
tion with which Congress may have to deal later.
A Proclamation of Neutrality, Hamilton pointed out, is a normal and
proper act for a government determined to remain at peace. Its principal
purpose is "to prevent the nation's being responsible for acts done by its
citizens, without the privity or connivance of the government, in contraven-
tion of the principles of neutrality, an object of the greatest moment to a
country whose true interest lies in the preservation of peace."Can such a
proclamation be issued by the President alone, or does it require an act of
Congress? Hamilton's argument for Presidential power goes to the essence
of the problem the nation faced: "a correct mind," he wrote, "will discern
at once that it can belong neither to the legislative nor judicial department,
and therefore of course must belong to the executive."" The President, not
Congress, is charged with conducting the foreign relations of the United
States. Congress is not responsible for making or interpreting treaties and is
"not naturally that member of government which is to pronounce on the
existing condition of the nation with regard to foreign powers or to admon-
ish citizens of their obligations and duties in consequence; still less is it
charged with enforcing the observance of those obligations and duties."
The proclamation of neutrality did not alter the legal status of the nation
with regard to the war raging in Europe and on the seas; it simply called
attention to the fact that the United States continued to be at peace with
both belligerents, a condition only Congress could change. The question
could not be submitted to the courts, which have jurisdiction over treaties,
to be sure, but only when contending parties bring such matters before
them as part of a justiciable controversy. As everyone at the time knew,
Washington had asked the Supreme Court for its opinion on the matter,
and the Court had refused, on the ground that it was not authorized to
issue advisory opinions, but only to decide actual cases or controversies." It
follows, Hamilton concludes, that since the United States has the power
and the duty under international law to make its neutrality clear promptly,
and since neither Congress nor the courts can carry out that duty effec-
tively, it must be considered the function of the executive, who conducts the
NAV.. INT1 L.J. 931 (1978).
36. THE WORKS OF ALEXANDER HAMILTON. supra note 34, at 436 (italics in original).
37. Id.
38. Id.
39. Letter from Secretary of State Thomas Jefferson to Chief Justice John Jay, (July
18, 1793). and Jay's reply to Jefferson (Aug. 8, 1793), reprinted in 3 Johnston, Correspon-
dence and Public Papers of John Jay 486-89 (1891); C. WARREN, supra note 24, at 105-11.
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14 VALPARAISO UNIVERSITY LAW REVIEW (Vol. 2L
foreign relations of the United States; interprets treaties in the first instance
in cases where the courts are not competent?that is, between government
and government; is the power charged with the execution of the laws, of
which treaties form a part; and is Commander-in-Chief of the armed
forces."
This "natural and obvious" view of the matter, Hamilton continued,
anticipating the magisterial style of some of Marshall's greatest opinions, is
not precluded by the language of the Constitution. The grant of the execu-
tive power of the United States to the President in the Constitution is com-
prehensive; the mention of certain aspects of the executive power in the
document does not confine the President's authority to those enumerated.
Under the Constitution, the President has the full executive power of the
nation -- that is, the powers of the British Crown, subject only to the ex-
ceptions and qualifications stated in the instrument. Among those excep-
tions and qualifications, of course, is the right of Congress "to declare war,
and grant letters of marque and reprisal." "It deserves to be remarked,"
Hamilton said, "that as the participation of the Senate in the making of
treaties, and the power of the legislature to declare war, are exceptions out
of the general 'executive power' vested in the President, they are to be con-
strued strictly, and ought to be extended no further than is essential to their
execution."" Jefferson later expressed the same view that Congress' war
power should be strictly construed as an exception to the President's execu-
tive power.
In the exercise of its power to declare war, Hamilton continued, Con-
gress can and should consider whether the treaties with France put the
United States under an obligation to make war. But before Congress acts,
the President has the same right of judgment in fulfilling his own obligation
to conduct the foreign relations of the country in accordance with its best
interests as he perceives them." Because of the division of the executive
power in the Constitution, the authority of Congress and of the President in
this regard is concurrent. Congress has the last word, but often under cir-
cumstances carefully arranged by the President acting independently. Nor-
mally, the procedure adopted to deal with the emergency represents the
best judgment of the President and the Congressional leadership as to the
most appropriate way to reach the end they both have in mind, taking polit-
ical reality into account. To make delicate judgments of this kind and im-
portance is the quintessence of the President's political responsibility as
President ? his share in the nation's sovereign prerogative.
To recapitulate Hamilton's reasoning from the vantage point of mod-
40. THE WORKS OF ALEXANDER HAMILTON, supra, note 34, at 437.
41. Id. at 437-43.
42. Id: at 440-442.
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ern constitutional law: Since the nation has all the powers conferred on
pates. by international law, each of those powers must exist somewhere in
she government. If they are not within the judicial province, and could not
be or have not yet been exercised by Congress, the President may exercise
them both in his own right as holder of the executive power and as the
embodiment of the residual sovereignty of the United States."
Hamilton's Pacificos Papers were so influential that Jefferson, who wa-
vered badly on the issue of neutrality under the pressures of politics, in-
duced an unwilling Madison to reply. Madison's response, signed Helvidius,
failed in its purpose, although it has remained a persistent dissenting view,
and has recently been revived somewhat under the pressure of events."
Hamilton's analysis of the Presidency leads logically to the conclusion
that while only Congress can move the nation into a state of "public, notori-
ous. and general war," as that term is known to international law, the Presi-
dent can use the national force under all the other circumstances in which
international law acknowledges the right of states to use force in time of
peace. While the President alone has authorized most of the two hundred or
snore international uses of force the United States has undertaken in time
of peace, the pattern of practice is by no means so symmetrical. When it is
politically possible for a President to do so, he prefers to obtain Congres-
sional support for his military actions before or after the event. No Presi-
dent can forget the outcry against "John Adams' Undeclared War," which
helped make Adams a one-term President and killed the Federalist Party.
The irony of the problem of course, is that obtaining congressional sup-
port for his actions does not always protect a President against the political
storms normally stirred up by war. Poor John Adams had at least four stat-
utes to support his limited maritime war against France. They did him no
political good. Later Presidents have had the same experience. As President
Lyndon Johnson once remarked about the Vietnam War,
I said early in my Presidency that if I wanted Congress with me
on the landing of Vietnam, I'd have to have them with me on
the take off. And I did just that. But I failed to reckon with one
thing: the parachute. I got them on the takeoff, but a lot of them
bailed out before the end of the flight."
WAR POWERS RESOLUTION 15
43 See. e.g.. E. Comm, supra note I, at 170-226; L. HENRIK, FOREIGN AFFAIRS AND
1111 CONs117CTION (1972); A. SorAut, supra note II, at C11. 2.
44 See CoRwiti, supra note 1; at 17 (referring to Madison's Helvidius papers as a
major statement of the ultra-Whig conception of the Presidency).
45. Letter from President Lyndon Johnson to Eugene Rostov. (March 25, 1972). See
oho L Rosto%. Organizing the Goternment to Conduct Foreign Policy: The Constitutional
Queittons. 61 VA. L. RES". 797, 801-03 (1975) (Response to Henkin's article, immediately
preceding. at 747).
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As Professor Thomas M. Franck has written, "Much of Congressional-
presidential jockeying appears to proceed with Snoopy's epigram in mind
(which was directed towards the playing of mixed doubles tennis): 'It mat-
ters not whether you win or lose, it's how you lays the blame.'""
This fact of American political life is one of the main reasons why the
War Powers Resolution is so profoundly misconceived. It purports to re-
quire Congressional approval for every international use of the national
force. But unless great national issues are at stake, most Congressmen and
Senators prefer not to take responsibility for the President's use of the
armed forces. It is a political risk they are happy to leave to the President.
As Congressmen and Senators have often told me when, as a government
official, I solicited their support for the President on the Hill, "The Presi-
dent has to do what has to be done. I want to be re-elected next year."
The constitutional battles of the first generation after 1789 settled the
respective roles of Congress and the President with regard to the use of the
armed forces in the Hamiltonian mode. Later experience has only filled in
the details. Until the War Powers Resolution was passed, the debate over
the respective powers of the President and Congress was largely a matter of
political rhetoric or ideological advocacy, not constitutional law. Congress'
power to "declare" war does not embrace all aspects of the nation's author-
ity to use or threaten to use armed force in international affairs. And it does
not mean that the national force can only be used if Congress has first
approved the President's action through a declaration of war. In the early
case of Talbot v. Seeman, dealing with a problem arising out of John Ad-
ams' Undeclared War, Chief Justice Marshall welcomed the fact that
neither counsel in the case made any such claim." The Supreme Court
commented in a comparable case, Bas v. Tingy:
Congress is empowered to declare a general war, or congress
may wage a limited war; limited in place, in objects, and in
time. If a general war is declared, its extent and operations are
only restricted and regulated by the jus belli, forming a part of
the law of nations; but if a partial war is waged, its extent and
operation depend on our municipal law . . . Nile acts of con-
gress have been analyzed to show that a war is not openly de-
nounced against France, and that France is nowhere expressly
called the enemy of America: but this only proves the circum-
spection and prudence of the legislature."
As Professor Franck says, "Since the decision of the Supreme Court in Bas
46. Franck. Constitutional Practice until Vietnam. CONGRESS, THE PRESIDENT. AND
FOREIGN POLICY 15. 16 (1984).
47. 5 U.S. (1 Cranch) I, 28-29 (1801).
48. 4 U.S. (4 DaII.) 37. 43-45 (1800).
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WAR POWERS RESOLUTION 17
r. Tiny' in 1800 and in the Prize cases in 1862, and up to and including the
Vietnam cases of 1971 to 1973, the courts have refused to sustain the pro-
position that the use of force by the President is unconstitutional except
after a formal declaration of way by the Congress.""
It is equally settled that it is constitutionally proper?indeed inevita-
blc?that the President can use or threaten to use the armed forces without
any action by Congress both in support of his diplomacy and in situations
where international law justifies the limited and proportional use of force in
times of peace in order to deal with forceful breaches of international law
by another state.
President Andrew Johnson did not require an Act of Congress before
sending 50,000 hardened troops to the Mexican border in order to help per-
suade France to withdraw its troops from Mexico at the end of our Civil
War." Nor did President Truman need congressional permission, at a time
of great tension with the Soviet Union over Greece and Turkey, before
sending the battleship Missouri to Turkey with the body of a deceased
Turkish Ambassador." For the same reason, President Kennedy acted con-
stitutionally in using a limited amount of force during the Cuban Missile
Crisis, and threatening to use a great deal more if necessary, without the
comfort of a statute behind him. The President did not seek Congressional
action as the crisis approached, but the Congress passed and the President
signed a law nonetheless. The statute was hastily drafted, however, and did
not cover the situation President Kennedy actually faced, although it does
cover the problems President Reagan faced in Grenada and is currently
facing in Nicaragua. The Act provides that the United States is determined
(a) to prevent by whatever means may be necessary, including
the use of arms, the Marxist-Leninist regime in Cuba from ex-
tending, by force or the threat of force, its aggressive or subver-
sive activities to any part of this hemisphere; [and] (b) to pre-
vent in Cuba the creation or use of an externally supported
military capability endangering the security of the United
States."
Thus military actions to preserve the nation's maritime rights, protect
its citizens or other nationals abroad, or carry out its treaty obligations, do
49. Franck, supra, note 46, at 17.
50. Bancroft, The French in Mexico and the Monroe Doctrine, 2 Pot_ Sci. Q. 30
(1896).
51. D. McLEit...ov & D. ANDERSON, THE STATE DEPARTMENT YEARS 98-101 (1976);
M. MILLER, PLAIN SPEAKING 242-244 (1973).
52. S..1. Res. 230, Pub. L. No. 87-733,76 Stat. 697 (1962). See also A. CHAVES, THE
CUBAN MISSILE CRISIS 10-11 (1974); E. Rostov., Great Cases Make Bad Law: The War Pow-
ers Act, 50 TEXAS L. REV. 833. 839-40 n.12 (1972).
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18 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
not require Congressional approval, before or after the event. It is charac-
teristic that when Congress passed a Joint Resolution supporting President
Wilson's extensive military operations in Mexico in 1914, it did not purport
to "authorize" what President Wilson had done. Instead, it stated that the
President was "justified" in his use of force in Mexico, and disclaimed any
hostility toward the Mexican people or any purpose to make war on them."
As the Supreme Court remarked in the great case in In Re Neagk, the
President has the inherent power to use force without the support of a stat-
ute not only to enforce "acts of Congress [and) treaties . . : according to
their express terms, [but also to protect] rights, duties, and obligations
growing out of the constitution itself, our international relations, and all the
protection implied by the nature of the government under the Constitu-
tion."'" This view of the Constitution echoes Chancellor Kent's comments
early in the nineteenth century about the scope of the power of the govern-
ment to deal with the "great interests which relate to this country in its
national capacity."
LECTURE 11.
Ill
In the literature of the American Constitution, there has always been a
minority view opposing the Hamiltonian gospel sketched in the first lecture.
The dissenters, broadly speaking, interpret the foreign affairs powers of the
nation in the constitutional spirit of those who opposed the ratification of
the 1787 Constitution. Where Hamilton extolled a strong national govern-
ment, led by a strong President and a strong Congress, the ultra-Whigs
argue for a weak national government, a weak President, and a somewhat
stronger Congress, but a weak Congress nonetheless, checked and balanced
at every turn by the states, the courts, and the people. Constitutionalists of
this persuasion fear a strong national government, and above all a strong
President, as dictatorship in disguise. With respect to foreign affairs, they
fear that a Hamiltonian government could well drag the United States into
foreign adventures which do not concern the security of the nation, and
convert the ideal bucolic Republic of their dreams, the beacon of enlighten-
ment and the hope of mankind, into just another grubby imperial power.
To people of this persuasion, it seems reasonable to suppose that if the
United States were weak, pacifist, and unarmed, the predators of the jungle
would fully respect its rights under international law. The constitutional
doctrine of the ultra-Whigs fully matches their perception of world affairs.
53. H.R.J. Res. 251, 63d Cong., 2d Sess., 51 CONG. REC. 7076-78 (1914).
54. 135 U.S. 1.64 (1890).
55. Ex Parte Yarbrough. 110 U.S. 651, 666 (1884): 1 KENT's COMMENTARIES 201.
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They read the Constitution with suspicious literalism as a document impos-
ing limitations on government, and rarely granting power. And they are
shocked and repelled by the Marsha!Ilan mode of constitutional interpreta-
tion, which Hamilton anticipated with grace and skill, and particularly by
the notion of "inherent" or "implied" powers. The ultra-Whigs exemplify
the naive jurisprudence of those who read text without context, and believe
that every power of the national government must be grudgingly derived
from "specific" words in the Constitution, rather than from the design and
purposes of the Constitution as a whole and from its history as an instru-
ment of government.
The fullest flowering of the ultra-Whig view with respect to the foreign
affairs powers of the nation, including the war power, occurred during and
after the Vietnam War, especially in connection with Congressional efforts
to draft legislation which would restrict the President's authority to use the
national force." There were many other manifestations of the ultra-Whig
outlook. Congress sought to take advantage of President Lyndon B. John-
son's unpopularity and President Nixon's political weakness by passing a
series of statutes which encroached on the President's authority to conduct
the foreign relations of the country." But the successful campaign which
achieved the War Powers Resolution in 1973 is by far the most important
victory in the Congressional assault on the Presidency since the Vietnam
War turned sour.
I should make it clear that I participated in the controversy about the
passage of the War Powers Resolution," and that I am and have been a
firm opponent of unlimited Presidential discretion in using the armed
forces, and a firm believer in the constitutional pattern of shared power
between Congress and the President as it has evolved for nearly two hun-
dred years. The argument of my earlier articles is that the Hamiltonian
principle of shared power, which requires cooperation and concurrence be-
tween Congress and the President as the exigencies of circumstance permit,
cannot be reduced to a simple formula. As Hamilton wrote in Federalist
56. R. CLARA. A. EGELAND. JR., & D. SANFORD, THE WAR POWERS RESOLUTION
(1985) (particularly useful bibliography); W. REVEL), WAR POWERS OF THE PRESIDENT AND
CONGRESS (1981); R. TURNER, THE WAR POWERS RESOLUTION: ITS IMPLEMENTATION IN
THEORN AND PRACTICE (1983); Tuley, The War Powers Resolution, 25 A.F. L. REV. 244
(1985).
57. See. e.g., Balmer. Use of Conditions in Foreign Relations Legislation, 7 DEN. J.
INT'L L. & Poi:v 197 (1978); Berger, Tug-of-War Between Congress and the Presidency:
Foreign Policy and the Power to Make War; 16 WASHBURN LI 1 (1976); Franck, After the
Fall: The New. Procedural Framework for Congressional Control Over the War Power, 71
Am. J. INT1 L. 605 (1977): Rovine, Separation of Powers and International Executive Agree-
ments, 52 IND. L.J. 397 (1977). See generally Presidential Power (I & II), 40 LAW & CON-
TEMP. PROBS. (Spring 1976 &. Summer 1976).
58. See supra prefatory. note, at p. I.
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Paper No. 23, the developments which may endanger the safety of the na-
tion and call for the use or the threat to use the national force are infinitely
varied, so that "no constitutional shackles can wisely be imposed on the
power to which the care of it is committed."
Since the early seventies, there have been a number of serious and well
considered scholarly studies of the constitutional issues," as well as Judge
Abraham D. Sofaer's meticulously careful War. Foreign Affairs, and Con-
stitutional Power: The Origins." In order to bring out the intellectual
background of the War Powers Act, I thought it might be useful to begin
by reviewing a few of the articles of that period published after my 1972
article was written - articles which fairly represent the ultra-Whig view, as
well as Professor Franck's important 1977 article, "After the Fa11," which
derives from the same intellectual universe. I shall direct my observations
here first to articles by Prof. Charles A. Lofgren, Prof. William Van Al-
styne, Prof. Francis D. Wormuth, and Mr. Raoul Berger." These writers
offer related, but somewhat different hypotheses as restatements of the orig-
inal intent of the Founding Fathers embodied in the text of the
Constitution.
Mr. Berger believes that the Constitution "conferred virtually all of
the warmaking powers" upon Congress, leaving the President only the
power "to repel 'sudden attacks' on the United States." Professor Lofgren
is more cautious. He says: "Waken together, then, the grants to Congress
of power over the declaration of war and issuance of letters of marque and
reprisal likely convinced contemporaries even further that the new Congress
would have nearly complete authority over the commencement of war.""
Lofgren carefully points out that in the cases arising from the undeclared
war with France, "none of the Justices explicitly stated that only Congress
might wage imperfect war, but that conclusion," he believes, "was clearly
implicit in their remarks." He sums up in these terms: "Evidence from the
years immediately following ratification of the Constitution thus cot-
59. A HAMILTON, J. JAY & J. MADISON, THE FEDERALIST 142 (Modern Library ed.,
1937).
60. See supra notes 56 and 57.
61. (1976).
62. See supra note 57.
63. Lofoten. War-Making Under the Constitution. The Original Understanding, 81
YALE L.). 672 (1972); Van Alstyne, Congress. the President. and the Power to Declare War:
A Requiem for Vietnam, 121 U. OF PA. L. REV. 1 (1972); Berger, War-Making by the Presi-
dent, 121 U. OF PA. L. REV. 29 (1972); Berger, The Presidential Monopoly of Foreign Rela-
tions, 71 MICH. L. REV. 1(1972); Wormuth, The Nixon Theory of the War Power: A Cri-
tique, 60 CALIF. L. Rev. 623 (1972).
64. Berger. supra note 63. 121 U. OF PA, L. REV. 29, 82 (1972).
65. Lofoten, supra note 63. at 700.
66. Id. at 701.
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roborates the conclusion that Americans originally understood Congress to
have at least a coordinate, and probably the dominant, role in initiating all
but the most obviously defensive wars, whether declared or not.'47
Van Alstyne reaches much the same conclusions as Berger, but with
important variations on subsidiary issues. To Van Alstyne, the grant to
Congress in Article 1 of the power "to declare war" includes by implication
the power to authorize every possible use of the national force, save to repel
attacks on the United States, its armed forces, or its citizens abroad.
In Van Alstyne's view, the lodgment of the power to declare war in
Congress forbids the sustained use of armed force by the President in the
absence of a prior, affirmative, explicit authorization by Congress. Van Al-
styne would permit only one exception to the rule be distills from the text:
an interim emergency defense power in the President to resist invasion or
repel sudden armed attack until Congress can be convened to decide
whether it will sustain or expand the President's defensive effort by specific
declaration or, by doing nothing, require the President to disengage our
forces from the theater of action."
Berger and Wormuth appear willing to accept the holding in the Prize
cases allowing Congress to ratify what the President has done in a situation
of emergency." Van Alstyne does not agree. He sums up his analysis in this
way:
I. In the absence of a declaration of war by the Congress,
the President may not sustain the-systematic engagement of mil-
itary force abroad for any purpose whatever.
2. The interim use of military force solely to repel invasion
of the United States or to relieve American citizens from an ex-
isting attack is an authorized executive war power granted by
the Constitution. That power expires ex proprio vigore when the
Congress has had reasonable opportunity immediately to con-
vene and to authorize the continuation or enlargement of hostili-
ties by express declaration. i.e., even the constitutional authori-
zation of emergency executive war power of immediate self-
defense terminates upon opportunity and failure of Congress to
sustain it by express declaration.
3. In the event that the Congress authorizes the initiation,
continuation, or enlargement of military hostilities by express
67. Id. at 701-702.
68. Van Alstyne. supra note 63, at 9.
69. Berger, supra note 63, 121 U. OF PA. L. R Ev. 29, 61-67; Wormuth, supra note 63,
at 628-629, 699.
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22 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
declaration, the constitutional initiative of logistical, tactical,
and strategic decision in the conduct of those authorized hostili-
ties belongs to the executive.
4. A residual power of review and control is vested in the
Congress through its continuing authority over appropriations,
levies upon manpower, and its prerogative to modify or to repeal
its declaration of war."
Wormuth can accept no advance "delegation" of authority by Con-
gress to the President to determine the occurrence of defined events which,
Congress says, require or authorize the use of force." Berger's position is
almost the same. But Van Alstyne is willing to allow some small and con-
servatively construed practical leeway for the necessities of circumstance by
way of Congressional delegation to the president of authority to use force in
certain contingencies." It is difficult to sec how Berger and Wormuth can
justify their purist positions, in view of the fact that since 1792 at least
Congress has repeatedly joined its powers to those of the President in sup-
porting the use of force by the President under specified circumstances, e.g.,
in dealing with Indian raids and other attacks."
These nuances aside, all three writers assert congruent positions?the
President can act only as the agent of Congress in the use of force, except
for a short time in narrowly defined emergencies directly affecting the terri-
tory or the armed forces of the United States. Some writers of this school
go a quarter of an inch further and allow for the possibility?perhaps?that
the President might be conceded to possess the authority to rescue citizens
in distress abroad: a commonplace right which all nations have under inter-
national law and which the President of the United States has asserted and
exercised repeatedly ever since the United States became a sovereign
nation.
IV
According to the laws of logic, one fact inconsistent with a theory dis-
proves the theory. The hypothesis must be discarded and reformulated in
terms which are consistent with the demonstrable evidence.
Much can be said of the related theories of Messrs. Berger, Lofgren,
Van Alstyne, and Wormuth as versions of the original intent of' the Found-
ing Fathers?their relationship, for example, to the President's autonomous
70. Van Alstyne, supra note 63. at 13.
71. Wormuth, supra note 63, at 692-703.
72. Van Alstyne. supra note 63. at 15-18
73. See E. Rostoss, supra note 52, at 851-856, 858-863.
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WAR POWERS RESOLUTION 23
constitutional authority over the conduct of foreign relations, which in
troubled times has often involved the use of force or the threat to use it. But
one fact looms up as the missing Hamlet of these four articles, a fact which
conclusively disproves all their hypotheses at once: the treaty power, and
the Founding Fathers' immediate experience with that power in connection
with Benjamin Franklin's Treaties with France of 1778."
The contemporary debate about the war powers of the President and of
Congress is a response to the bitter experience of Korea and Vietnam.
Those wars were fought under the authority of treaties?the United Na-
tions Charter in the case of Korea, and the Charter and the Southeast Asia
Collective Defense Treaty in the case of Vietnam." Without reference to
those treaties and to the respective role of the President and of Congress in
making, interpreting, applying, and abrogating treaties, the conflicts in Ko-
rea and Vietnam would be constitutionally far more difficult to explain. But
the treatment of the problem is cursory, at best, in all four of the articles
selected for examination here.
Van Alstyne recognizes the issue when he writes
Even assuming a limited power in Congress to shift the determi-
nation to embark upon war to the President, under specified con-
ditions expressed in clear and definite guidelines, the transfer of
such authority cannot be accomplished by treaty. The House of
Representatives' prerequisite consent to this nation's involve-
ment in war was most deliberately required by the declaration of
war clause after consideration of several alternatives, including
the specific proposed alternative of vesting the power jointly in
the Senate and President alone which was itself rejected. As the
House does not consent to treaties, manifestly a treaty cannot be
among the possible means of delegating its authority. To imply
that the constitutional draftsmen could possibly have formulated
a document so specific in its precautions against involvement in
war while simultaneously creating an enormous loophole of ex-
clusive Senate power to give it away by simple treaty ratification
is wholly without logic or evidence."
Van Alstyne's argument is perfectly logical. Like many logical argu-
ments, however, it is destroyed by a page of history.
While the attempt to reconstruct the Founding Fathers' state of mind
is always shadowy and intangible work, and "original intent" can never be
74. See supra note 30.
75. Signed September 8, 1954, entered into force February 19, 1965. 6 U.S.T. 81
(1955)
76 Van Alstyne, supra note 63, at -22.
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24 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
more than one guiding factor among many in the growth of the law, we can
be certain of one feature of the original intent of the Founders: they ac-
cepted the possibility that the United States, like every other nation, could
if it wished enter into treaties of military alliance. The United States had
such an alliance with France, embodied in two treaties, plus a secret annex,
a Treaty of Alliance, signed in Paris on February 6, 1778, ratified on May
4, 1778, and abrogated by Act of Congress on July 7, 1798, and a Treaty of
Amity and Commerce, signed on February 6, 1778, and ratified on May 4,
1778." And the Founding Fathers regard the French alliance with grati-
tude and reverence as a pillar of the Nation's existence. Surely these two
related treaties are covered by the provision of Article VI of the Constitu-
tion, that "all Mafia made, or which shall be made, under the Authority
of the United States shall be the supreme law of the Land."
For present purposes, two aspects of those treaties are of special impor-
tance: (1) the American guaranty of "the present possessions of the Crown
of France in America" in Article 11 of the Treaty of Alliance; and (2) the
provisions of Articles 21-29 of the Treaty of Amity and Commerce, which
France, and many Americans, construed as authorizing France to fit out
privateers and establish consular prize courts in American ports, in the
event of war between France and Great Britain after the end of our War of
Independence.
The debate over the American policy of neutrality adopted in 1793 is a
sufficient answer of principle to the argument made by Messrs. Van Al-
styne, Berger and Wormuth. Legally, Van Alstyne's argument against mili-
tary commitments by treaty cannot be admitted. Treaties and statutes are
equally the supreme law of the land. Even tax and tariff problems are often
handled by treaty, despite the Constitutional requirement that money bills
originate in the House of Representatives.
It is however, worth taking the argument a step further. In 1793, Pres-
ident Washington decided not to join France in war with Great Britain
under the treaty and to declare our neutrality. Congress acted to the same
effect a year later. Suppose, however, that the President's initial decision
had gone the other way, and had in turn been duly supported, or not op-
posed, by Congress. Suppose President Washington had put garrisons and
naval forces in the French islands of the Caribbean which were among the
French possessions in America we had guaranteed to France "from the pre-
sent time and forever" under Article 11 of the Treaty of Alliance. Suppose
he had convoyed vessels to those islands, and repelled British attacks on the
vessels or the islands.
Would it be possible under those circumstances to say that the Presi-
77. See supra note 30.
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dent could not respond to attacks exactly as if they were "sudden" attacks
upon the United States? When through a treaty, or through a joint resolu-
tion of the Congress, or both, the United States guarantees the territorial
integrity and political independence of an ally, or of another nation, isn't
the President duty bound to see to it that the treaty is faithfully executed?
Can he take no steps to implement the guaranty, in order to head off a
danger that might have to be fulfilled later by war itself, without the prior
consent of Congress? Is it Constitutional for a treaty to declare, is Article
5 of the North Atlantic Treaty does, that an armed attack against one or
more of the allies shall be considered an attack against them all?" The
declaration of the NATO Treaty flies in the face of the supposed constitu-
tional principles the four scholars selected for examination here, and, I
should add, Professor Franck as well," find the original intent of the
Founding Fathers. Their version of the Constitution would confine the Pres-
ident's emergency powers to attacks on the territory of the United States.
Either the North Atlantic Treaty is unconstitutional, or their version of the
original intent is inadequate and erroneous."
The reasoning of Van Alstyne, Berger, Wormuth, Lofgren, and Franck
would equally disable the United States from participating in the activities
of the United Nations, as the peace-keeping policies adopted by the United
Nations during the crises in Korea, the Congo, Greece, and Rhodesia,
among others, demonstrate. That organization sometimes authorizes, en-
courages, or indeed requires the use of coercive measures, including the use
of force, both under Article 51 and Chapter VII of the Charter. The ultra-
Whig view would forbid such activities under the United Nations Charter
and the United Nations Participation Act unless ratified in each case by
Congress."
Berger notes with apparent approval the activities of Presidents Wilson
and Roosevelt before the First and Second World Wars, when they con-
vo)ed vessels, and, in President Roosevelt's case, established bases in
Greenland, Iceland, and Bermuda, without benefit of a treaty obligation to
Britain or France, or a Joint Resolution of the Congress." Would he
equally approve preventive and precautionary steps of this order with re-
gard to the obligations of a treaty?
78. 63 Stat. 2241 (1949).
79. See supra note 57.
80. Professor Franck recognizes the problem by contending that the War Powers Reso-
lution is a breach of the international legal obligations of the United States in this regard,
requiring the President to call Congress into special session if necessary in order to consider a
declaration of war or a joint resolution authorizing hostilities, see supra note 57, at 634-637.
SI. United Nations Participation Act of 1945 as amended. P.L. 264, 79th Cong., 59
Stat. 619 (1945), 63 Stat. 734 (1949). and 79 Stat. 841 (1965), 22 U.S.C. 287 (1980).
82. Berger. supra note 63. 121 U. OF PA. L. REv. 29, 66.
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In applying a treaty, there is clearly a spectrum of decisions which can
and should be made, from the purely Presidential to the purely Congres-
sional. As the experience of 1793 attests, the President has an independent
power to interpret and apply the treaty in the first instance, in the exercise
of his share of the national authority to conduct foreign relations, a vital
part of the Executive power. That is what the United States does every day,
on the President's instructions, in voting at the United Nations. When such
decisions involve coercive measures, or other substantive policies, Congress
may tacitly accept the President's construction and application of the
United Nations Charter, which is a treaty, or overrule it, as it did a few
years ago in the case of an embargo on imports from Rhodesia." Exactly
the same process occurs in the conduct of our affairs at the North Atlantic
Council, the International Monetary Fund, and many other multilateral
bodies based on treaties, executive agreements made under the authority of
treaties or statutes, or purely Presidential executive agreements.
This realistic sense of the wide range of policies and actions which may
be involved in carrying out a treaty obligation animates the testimony of
Secretary of State Dulles in his exposition of the Southeast Asia Collective
Defense Treaty before the Senate Foreign Relations Committee in 1954.
Article IV of that treaty provides:
I. Each Party recognizes that aggression by means of
armed attack in the treaty area against any of the Parties or
against any State or territory which the Parties by unanimous
agreement may hereafter designate, would endanger its own
peace and safety, and agrees that it will in that event act to
meet the common danger in accordance with its constitutional
processes. Measures taken under this paragraph shall be imme-
diately reported to the Security Council of the United Nations.
2. If, in the opinion of the Parties, the inviolability or the
integrity of the territory or the sovereignty or political indepen-
dence of any Party in the treaty area or of any other State or
territory to which the provisions of paragraph 1 of this Article
from time to time apply is threatened by any fact or situation
which might endanger the peace of the area, the Parties shall
consult immediately in order to agree on the measures which
should be taken for the common defense.
3. It is understood that no action on the territory of any
State designated by unanimous agreement under paragraph I of
this Article or on any territory so designated shall be taken ex-
cept at the invitation or with the consent of the government
83. Diggs v. Schultz, 470 F.2d 461 (D.C. Cir. 1972).
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concerned."
WAR POWERS RESOLUTION 27
The Treaty, the Secretary said, was based on the inherent right of indi-
vidual and collective self-defense recognized in Article 51 of the United
Nations Charter?a right whose initial exercise is not subject to the prior
decision of the Security Council. So far as the United States is concerned,
the Treaty includes "the understanding," in the words of President Eisen-
bower's transmittal statement, "that the only armed attack in the treaty
area which the United States would regard as necessarily dangerous to our
peace and security would be a Communist armed attack!"
With regard to action under Paragraph I of Article IV?that directed
against "armed attack"?Dulles said:
The agreement of each of the parties to act to meet the common
danger 'in accordance with its constitutional processes' leaves to
the judgment of each country the type of action to be taken in
the event an armed attack occurs. There is, of course, a wide
range of defensive measures which might be appropriate de-
pending upon the circumstances. Any action which the United
States might take would, for course, be in accordance with its
constitutional processes."
The term -armed attack" in Paragraph 1 of Article IV is the operative
- phrase of Article 51 of the United Nations Charter. It is used in a number
of other treaties and international documents. By 1954, it had a considera-
ble gloss, and a long history, embracing the support of revolution in Greece
from Yugoslavia, Albania, and Bulgaria in the late forties to the attack on
Korea.?'
Berger does not discuss the meaning of the term "constitutional pro-
cess" in paragraph 1 of article IV: whether the President can act to initiate
and conduct hostilities pursuant to the treaty, as President Truman did in
Korea; or take preparatory and precautionary measures "short of war"
without obtaining prior congressional approval; or whether every step under
the treaty, from diplomatic consultation and secret or public warnings to
deter an adversary, to the making of military contingency plans, requires
prior Congressional assent. Van Alstyne, as was indicated earlier, takes the
view that it is constitutionally impossible to consider treaties as a legitimate
84. Southeast Asia Collective Defense Treao..- Nov. 11, 1954: Hearings on Exec. K.
Part I. before Senate Committee on Foreign Relations. 83rd Cong.. 2nd. Sess. 6 (1954).
85. 'Id. at I.
86. Id. at 4.
87. RevivAed jr E. ROSTON', THE POLITICS or FORCE. THE 1982 YEARBOOK or
WORLD AFFAIRS 38; 0 SCHACHTER, INTERNATIONAL LAN' IN THEORY AND PRACTICE Ch.
VIII-IX (1985).
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28 VALPARAISO UNIVERSITY LAW REVIEW (Vol. 21
basis for authorizing war. He therefore reads the treaty not as empowering
the President to 'undertake the use of force, but as establishing an interna-
tional contractual obligation which requires the President to call Congress
into special session if necessary, and requires Congress to make a declara-
tion of war if it intends to fulfill the treaty commitment by the use of
force."
- Secretary Dulles' testimony dealt with the full range of possible re-
sponses the United States might consider using once the President has de-
termined that "an armed attack" has occurred, thus justifying any country
protected by the treaty to exercise its inherent right of individual and col-
lective self-defense under the United Nations Charter. In response to a
question from Senator Smith, one of the signers of the treaty, be explained
that the obligation under Section 1 of Article IV was substantially the same
as that in the North Atlantic Treaty. Secretary Dulles' and Senator Smith's
exchange is reported as follows:
Secretary Dulles. You will remember, Senator Smith, the consti-
tutional debate which was evoked in relation to that clause in
the North Atlantic Treaty, which said that an attack upon one
is an attack upon all. It raised the question as to whether that
automatically gave the President powers to exercise so that in
the event of an attack upon Norway, for example, he would have
exactly the same power as he would have if there was an attack
upon New York or Washington.
That matter was very fully debated in the Senate at the
time. I had the honor of being a Member of your body at that
time and participated in that debate.
Therefore, when I had the responsibility of starting to nego-
tiate treaties in the Pacific, I felt that it would be preferable to
adopt the language which was taken from the declaration of
President Monroe, and which reflects our oldest and, in a sense,
most respected foreign policy, the Monroe Doctrine, where we
declared that an intrusion would be dangerous to our peace and
security.
Now, that was a formula which I recall that Senator Taft,
who opposed the North Atlantic Treaty formula, has said would
have been acceptable so far as he was concerned.
It seemed to me that the practical difference between the
two from the standpoint of its giving security to the other parties
was not appreciable, and that it was better to avoid a formula
88. See supra note 63. at 14.
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which would reopen the constitutional debate which took place
in reference to that provision of the North Atlantic Treaty, so
that formula was used in the Philippine Treaty, in the ANZUS -
Treaties, it has been reproduced now in the Korean Treaty, and
been reproduced in this treaty.
I think that the difference practically is not great, but that
the present formula does avoid at least a theoretical dispute as
to the relative powers of the President and the Congress under
these different formulas.
Senator Smith. Well, this particular treaty which we have just
signed and the other bilaterals that you have initiated might be
said to have the Monroe Doctrine approach, which over a period
of a good many years now has been very effective. This ap-
proach has accomplished the results that were sought originally
by the Monroe Doctrine. We are practically giving a Monroe
Doctrine warning here against aggression and we are standing
by the votes that we took.
Secretary Dulles. The language used here which has now be-
come, I would say, almost conventional with reference to these
treaties, makes perfectly clear the determination of our Nation
to react to such an armed attack. It does not attempt to get into
the difficult question as to precisely how we act and precisely
how the responsibilities are shared between the President and
Congress.
But as far as our national determination is concerned, it is
expressed here; that is the thing that other countries are con-
cerned with, and the question of our internal procedures is not
properly a matter of their concern, and, in fact, none of the
countries with whom we have dealt are concerned about the dif-
ference in the, formula.
Therefore I think it is better to use this language, which
does avoid constitutional controversy, which has been used in
these other treaties, and which stems from one of our oldest for-
eign policies, that of the Monroe Doctrine.
In a sense, it is perhaps not quite as automatic as the other,
but that would depend on circumstances. It is a clear determina-
tion of our national resolve, which I think will adequately serve
to deter, if it is possible to deter at all."
89. The Southeast Asia Collective Defense Treaty.: Hearings Before the Senate Com-
mittee on Foreign Relations, 83rd Cong., 2nd Sess, 21, 22 (1954) thereinafter cited as
Hearings].
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The obligation of the United States in the event of an armed attack
within the treaty area, as he made clear, is of course several, and not depen-
dent upon the prior agreement of other members of SEATO, except for the
country concerned. That action could take many forms, including the use of
mobile striking power against the source of the attack." Far from repudiat-
ing the precedent of President Truman's handling of the Korean war, Sec-
retary Dulles had the following colloquy with Senator Wiley:
The Chairman. Well, in any case, I take it that paragraph 1 of
Article IV applies?that part particularly?to meeting the com-
mon danger. Would it be in accordance with the constitutional
processes?
Secretary Dulles. Yes Sir.
The Chairman. So whether it were the threat mentioned in Sec-
tion 2 or the common danger resulting from open attack, action
could be taken only after consultation with Congress?
Secretary Dulles. Yes Sir."
Thus, both the Senator and the Secretary carefully avoided the view that
the United States could act under paragraph I of Article IV only after a
congressional declaration of limited or unlimited war.
As for threats other than "armed attacks," Secretary Dulles testified:
The danger from subversion and indirect aggression is dealt with
in paragraph 2 of article IV, which meets this difficult problem
more explicitly than any other security treaty we have made. It
provides for immediate consultation by the parties whenever any
party believes that the integrity of the treaty area is threatened
by other than armed attack. The threat may be to the territorial
inviolability or integrity, or to the sovereignty or political inde-
pendence of any party in the treaty area or any other state or
territory to which paragraph 1 of the article may from time to
time apply. The paragraph contains no obligation beyond con-
sultation, but the purpose of consultation is to agree on mea-
sures to be taken for the common defense. In its understanding
with reference to article IV, paragraph I, the United States af-
firms that in the event of any aggression or armed attack other
than Communist aggression it will observe the consultation pro-
visions of article IV, paragraph 2."
90. Hearings, supra note 89, at 13-14.
9). Hearings, supra note 89, at 20 (testimony of Secretary Dulles).
92. Hearings, supra note 89, at 4 (testimony of Secretary Dulles).
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He was repeatedly questioned on the distinction between action under
Section 1 and Section 2 of Article 4 of the Treaty.
Senator Smith. Now, referring to Indochina where we are all
very much concerned. According to a number of reports, one of
the areas mentioned in the protocol, the present territory and
jurisdiction of Vietnam, is in danger of falling under Communist
domination. If that occurs, due to internal or external pressure,
will the treaty involve us in measures to resist Communist con-
trol of the area? I think you answered that before, but 1 would
like to get a clear answer as to whether a sudden movement tci-
ward Communist domination in South Vietnam would bring this
treaty into operation.
Secretary Dulles. Are you referring now to armed attack?
Senator Smith. It would be armed attack; but suppose there
were internal pressures?the subversive activity; was that not
one of the questions we were trying to include?
Secretary Dulles. Yes, I just was not clear as to whether your
question is directed to article IV, paragraph 1, or article IV,
paragraph 2.
Senator Smith. Let us consider them both. Suppose there is an
armed attack under article IV, paragraph I. I would think there
would be no question in this instance, but if there is subversive
activity which is threatening the integrity of South Viet-
nam?free Vietnam?would we feel that we were called upon
under the treaty to give a danger signal and get together with
our allies and consider it?
Secretary Dulles. Well, article IV, paragraph 2, contemplates
that if that situation arises or threatens, that we should consult
together immediately in order to agree on measures which
should be taken. That is an obligation for consultation. It is not
an obligation for action.
Of course, we are free to and taking measures already,
apart from the treaty and before the treaty is enforced to assist
in combating subversion in that area.
But we can do much more effectively, I think what needs to
be done, if the treaty is in force, and we have procedures for
consultation under the treaty as to how to deal with these
situations."
93. Hearings, supra note 89, at 25-26 (testimony of Secretary Dulles).
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Secretary Dulles developed the idea further in an exchange with Sena-
tor Gillette.
Senator Gillette. Mr. Secretary, I have just one question to ask.
Referring to article IV again, the first section is clear. It states
that each party recognizes an armed attack as threatening all,
and agrees to act in meeting the common danger according to its
constitutional processes.
But section 2 provides that any similar threat, other than
by armed attack will be met by consultation among the parties
and agreement as to what action will be taken. ?
Now, keeping those two things in mind, we come to the
concluding paragraph, which states that we only recognize the
obligation under section I in case of Communist aggression
when we will proceed by our constitutional processes.
Now, this is a hypothetical question?very improba-
bly?but one that I should like to have answered. In the event
that there is armed attack in this area by other than a Commu-
nist country, does that mean that we, as a signatory cannot take
any action in case of such armed attack in accordance with our
constitutional processes until we have consulted with all the
others and obtained agreement as to what we should do?
Secretary Dulles. No sir. In that respect we retain entire control
of our own policy, according to our own judgment. If there
should be an armed attack which is not a Communist attack,
affecting one of the parties to this treaty, the question of what
we should do would then be determined by us as a matter of
national policy. We would not be obligated under this treaty.
Senator Gillette. May I supplement my question by saying I do
not quite see why that follows. We provide by agreement that in
case of an armed attack by a Communist country, we shall pro-
ceed, as you have just designated, by our constitutional
processes, but we specifically provide in this concluding para-
graph that if there is an armed attack by any other than a Com-
munist country that we shall first consult with these associates
and obtain their agreement before we take any action.
Secretary Dulles. No. I think you have read into that more than
it contains.
Senator Gillette. Well, I hope I have.
Secretary Dulles. It does not say that we will only act in agree-
ment or consultation. It does say that in that event we will be
willing to consult.
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Senator Gillette. No; it says that we will consult under the pro-
visions of article IV, paragraph 2.
Secretary Dulles. Yes Sir.
Senator Gillette. The language does not state that we will be
willing to consult but before we take any action we "will" con-
sult under that provision and obtain agreement as to what action
shall be taken.
Secretary Dulles. No Sir. It does not say that we will consult
before we act. All it says is we will consult.
Senator Gillette. And that may be subsequent to action that we
take?
Secretary Dulles. It could be.
Senator Gillette. That we take independently?
Secretary Dulles. As you say, it is quite unlikely as a practical
matter that we would act first, because as I indicated unless the
armed attack is of Communist origin, it is difficult to say truth-
fully that is seriously affects the security of the United States. If
communism throws aside all restraints and goes in for armed
attack, then I think we can reasonably conclude that it is start-
ing on a course of action which is directly aimed at the United
States, that we are the target. We could not say that truthfully
in the event that there is an armed attack which occurred be-
tween two of the parties to this treaty, which would not be of
Communist origin. That would not prove that there was any de-
sign against the United States. Therefore, we do not assume the
same commitments in that respect.
We do say that we will consult. We do not say that we will
consult prior to any action. We merely say we will consult,
period".
There is thus no possible way to assert, as many do, that the obliga-
tions of the treaty could be carried out, so far as the Senate was concerned,.
only by a vote of the entire Congress. Both the Senators and the Secretary
preserved the full range of possibilities implicit in past practice, including
the precedent of President Truman's pattern of action in Korea.
As Senator Cooper points out in his memorable statement of Individ-
ual Views with respect to the Javits bill, one of the ancestors of the War
Powers Resolution, there is no basis in constitutional usage for declaring
94. Hearings. supra note 89. at 33.36 (testimony of Secretary [Julies).
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the Korean war unconstitutional." Cooper wished to clarify the point by
statute, if he. could, by requiring congressional action to justify the use of
force in behalf of treaty obligations "beyond the emergency authority of the
executive."" His position fully accepted the authority of the President to
take emergency action in carrying out treaty obligations, as President Tru-
man did in the first few hectic days and weeks of the Korean war, not with
regard to the territory of the United States, but with regard to the territory
covered by our treaty obligation?in that case South Korea, protected by
the Charter of the United Nations. In this, Senator Cooper's position rests
on the principles which governed President Washington's handling of the
neutrality problem in 1793.
In the Vietnam war, both the Presidency and Congress went beyond
the formal pattern of Korea. Starting in 1957, the executive branch repeat-
edly invoked Article IV of the South East Asia Collective Defense Treaty,
and characterized the activities of North Vietnam against South Vietnam
as "deliberate aggression," invoking Section 1, not Section 2 of Article
IV." So did the Council of the South East Asia Treaty Organization."
95. Senate Committee on Foreign Relations - War Powers, S. REP. No. 606, 92nd
Cong., 2nd Sess. 28 (1972), to accompany S. 2956, 92nd Cong., 2nd Sess., 30-32 (1972).
96. Id. at 30.
97. Joint Statement of President Eisenhower and President Ngo Dinh Diem, May II,
1957, 36 DEP*7 Si. BULL. 851 (1957) ("Noting that the Republic of Viet-Nam is covered by
Article IV of the Southeast Asia Collective Defense Treaty, President Eisenhower and Presi-
dent Ngo Dinh Diem agreed that aggression or subversion threatening the political indepen-
dence of the Republic of Viet-Nam would be considered as endangering peace and stability.")
State Department Bulletin, May 27, 1957, at 851-852; Message of President Johnson to Con-
gress on May 4, 1965, H.R. Doc. No. 157, 89th Cons., lit Sess.(1965) ("We will do
whatever must be done to insure the safety of South Vietnam from aggression . . . South
Vietnam has been attacked by North Vietnam. . . . Our commitment to South Vietnam . . .
rests on solemn treaties, the demands of principle, and the necessities of American security
. . . The Southeast Asia Collective Defense Treaty 'committed us to act to meet aggression
against South Vietnam.'" State Department Bulletin, July 12, 1965; Address by Secretary
Rusk. 53 DEP'T Si. BULL. 50, 53 (1965) ("A cruel and sustained attack by North Viet-Nam
upon the people of South Viet-Nam. . . . (The President) has recognized the obligations of
this nation under the Southeast Asia Treaty."); Statement of Undersecretary Ball at Meeting
of Ministerial Council of the Southeast Asia Treaty Organization on May 3, 1965, 52 DEP.T
Si. But.t. 920, 921 (1965) ("The evidence establishes beyond the shadow of a doubt that
South Viet-Nam is the victim of deliberate aggression. . . We have provided assistance for
the same reason that we aided Greece and Turkey in 1947, that we fought in Korea, that we
joined in forming NATO, and ANZUS, and SEATO. . . .") State Department Bulletin, June
7, 1965.
98. Communique of May 6, 1965, 52 DEP'T ST. Buzz. 920, 924 (1965) ("9. The Coun-
cil reaffirmed its conclusion at Manila a year ago that the defeat of this Communist campaign
is essential not only to the security of the Republic of Viet-Nam but to that of Southeast Asia,
and would provide convincing proof that Communist expansion by such tactics will not be
permitted. Member governments recognized that the state of affairs in Viet-Nam, as described
above, constitutes a flagrant challenge to the essential purpose for which the) had associated
together under the Treaty: to resist aggression.")
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WAR POWERS RESOLUTION 35
Congress fully supported this view of the affair. The Tonkin Gulf Resolu-
tion recites that it was passed in accordance with our obligations under the
South East Asia Collective Defense Treaty." And the Supplemental Ap-
propriation Act of May 5, 1965, and other statutes and resolutions, were
specifically addressed to the hostilities in Vietnam.'"
As 1 commented elsewhere, "the unsettled state of doctrine analyzed
by Senator Cooper permitted some to indulge in a meaningless gesture of
protest against the war in Vietnam by voting for the repeal of the Tonkin
Gulf Resolution, while leaving the SEATO Treaty untouched. By accepting
Truman's viev. of the matter?for the moment, at least?they could enjoy
the best of both worlds."t'
By concentrating here on the treaty-power aspects or the problem 1 do
not mean to suggest that the President does not have some independent
constitutional authority to use force, or to threaten its use, in the absence of
treaty or advance congressional authorization through Joint Resolutions like
the Middle Eastern Resolution of 1957 and 1961.'" These dimensions of
the war powers have been extensively discussed elsewhere.'?'
V
Between the Congress of Vienna and the turn of the twentieth century,
the United States was not a major action in world politics. We were a ward
of the Eurocentered state system which governed the world in those days -
and, on the whole, governed it a great deal more effectively than it has been
governed since. The system of order conducted by the Concert of Europe
left much to be desired in the realm of justice, although it did take the lead
in abolishing slavery. But it did achieve a high degree of international
peace, which proved to be a political environment congenial to rapid social
progress throughout the world.
Even during this period, the United States pursued an active regional
foreign policy which involved the nation in three general wars and many
international uses of limited force in times of peace, both in aid of our
diplomacy and by way of self-defense. Man) of these episodes generated
strain between Congress and the Presidency, and some became heated polit-
ical issues within the United States, and led to the recitation once more of
99. Southeast Asia Collective Defense Treaty, Pub. L. 88-408, 78th Stat. 384 (1964).
100. Senate Committee On Foreign Relations, Background Information Relating To
Southeast Asia And Vietnam, 89th Cong.. 1st Sess. 219 (1965) (message of President Lyndon
B. Johnson).
101. See supra note 52. at 880 n.88.
102. Middle East Resolution - Promotion of Peace and Stability, Pub L. 87-70, 71
Stat. 5(1957), as amended by Pub L. 87.195. 75 Stat. 424 (1964).
103. See. e.g., E. Rostou, supra note 52.
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36 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
the constitutional arguments of the Hamiltonians and the ultra-Whigs
about the constitutional division of authority over foreign affairs between
Congress and the President.
There were five principal areas of international contention for the
United States during the century before the United States became a deci-
sive factor in the world balance of power.
A number of problems arose from the twin sacred texts of American
foreign policy: George Washington's Farewell Address and John Quincy
Adams' Monroe Doctrine. The Farewell Address laid down some practical
rules for keeping the infant republic out of Europe's consuming political
quarrels during times of relative peace and stability. Washington carefully
recognized that periods of extraordinary convulsion in European politics
might well require extraordinary remedies, including temporary alliances
and participation in war. However, Washington advised the United States-
to take advantage of its distance from Europe by refraining from participa-
tion in the ordinary combinations and collisions of European politics."
The obverse of the policy Washington recommended was that Europe
should stay out of the political life of the Western Hemisphere. During the
period of revolution against Spanish authority in South and Central
America after 1815, Britain was concerned about the possibility that Spain,
France, and even Austria might attempt to reconquer the former Spanish
colonies, and thereby affect the equilibrium of Europe. The British Foreign
Minister, George Canning, therefore proposed that Britain and the United
States jointly adopt the principle of the Monroe Doctrine. The United
States, equally alarmed by the possibility of new European intervention in
the Western Hemisphere, but anxious not to be "a cock-boat in the wake of
the British man of war," as John Quincy Adams remarked, announced the
policy as its own. But the Monroe Doctrine would have been meaningless
without the backing of Great Britain, the Queen of the Seas in those far off
days.'"
While American popular opinion gave these two eminently pragmatic
documents an absolute character they did not have, they were and continue
to be a powerful influence in the American mind. Perhaps it would be more
accurate to describe them as a powerful part of America's collective
unconscious.
104. S. BEMIS, A DIPLOMATIC HISTOR1 OF THE UNITED STATES (1936): A. BURT, THE
UNITED STATES, GREAT BRITAIN. AND BRITISH NORTH AMERICAN FROM THE REVOLUTION TO
THE ESTABLISHMENT OF PEACE AFTER THE WAR OF 1812 (1940); F. GILBERT, To THE FARE-
WELL ADDRESS (1961).
105. S. BEMIS. JOHN QUINCY ADAMS AND THE FOUNDATIONS OF AMERICAN FOREIGN
POLIC1 k MAY. THE MAKING OF THE MONROE DOCTRINE (1975): D. PERKINS. THE
MONROE DOCTRINE 1823-1826 (1927).
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WAR POWERS RESOLUTION 37
The third factor in America's nineteenth century foreign policy which
led to a good deal of international friction was the doctrine of Manifest
Destiny. From the beginning, the American imagination was possessed by
the glowing vision of the nation as a great empire stretching from the At-
lantic to the Pacific. Manifest Destiny was the driving force in American
foreign policy, leading to the acquisition of Spanish Florida, the Louisiana
purchase, the Transcontinental Treaty of 1819, .the Oregon ,Question,
Alaska, and the Mexican War. The same impulse led also to the American
presence in China and other parts of the Far East from the earliest days of
the Republic; the opening of Japan in 1853; the acquisition of Hawaii and
later of the Philippines, Guam, and the Marianas.
The fourth key problem of our foreign policy during this period was
the gradual disintegration of thy Spanish Empire and above all the revolt in
Cuba at the end of the nineteenth century.
Finally, the Civil War had critically important international dimen-
sions, which generated both diplomatic and constitutional controversy - the
blockade; the long struggle to prevent British and French recognition of the
Confederacy; the Alabama affair; and the expulsion of the French from
Mexico. Constitutionally, President Lincoln's management of the tense
early months of the Civil War is the supreme example of the Presidency as
an independent branch of the American government. On issue after issue,
the President acted alone on the basis of his inherent authority as Chief
Executive and Commander-in-Chief of the armed forces; the Congress
followed.
The pattern of constitutional practice in the handling of these contro-
versies confirmed and deepened the Hamiltonian construction of the Consti-
tution which took shape during the first thirty-five turbulent years of the
nation's experience under the Constitution of 1787. There were areas of
foreign policy recognized as exclusively presidential - the recognition of
governments, for example, and the conduct of diplomatic business. And
there were exclusively congressional areas such as declarations of war and
the enactment of other kinds of legislation. For the rest, Corwin com-
mented, "the Constitution, considered only for its affirmative grants of
power capable of affecting the issue, is an invitation [to Congress and the
President] to struggle for the privilege of directing American foreign
policy."0'
Corwin's celebrated remark misses the Constitutional point. It is often
read as criticizing the draftsmen of the Constitution for ambiguity and con-
fusion. In my view this is unjustified because sooner or later most aspects of
the conduct of foreign affairs involve both legislative and executive deci-
106 Corin, supra. note I. at 171.
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38 VALPARAISO UNIVERSITY LAW REVIEW (Vol. 21
sions. They are therefore the business of both Congress and the President,
in a pattern which reflects no sharp lines of constitutional power but hun-
dreds of subtle and supremely political judgments about how the indispen-
sable cooperation between the branches can best be organized under the
circumstances of the moment. It would have been foolish of the Founders,
as well as impossible, to try to draw the line between executive and legisla-
tive power in the field of foreign affairs precisely and in detail.
The flexibility of the constitutional arrangements for making and car-
rying out the foreign policy of the nation is not peculiar to the field of
foreign affairs. As Madison saw from the beginning, the principle of the
separation of powers does not mean that the three branches of the govern-
ment are really separate at all." For the most part their powers are com-
mingled. The branches are not independent but interdependent, and the
preservation of the functional boundaries between the legislative and the
executive depends as much on the conditioned reflexes of the political sys-
tem and the political strength of the President as on the occasional rulings
of the Supreme Court. For example, Congress can establish a Civil Service
Commission, but it would be unthinkable for Congress to interfere with the
President's power to remove Cabinet officers and other high officials at will.
The one occasion on which Congress sought to do so ? the Tenure of Of-
fice Act of 1867 ? became a constitutional crisis of extreme gravity, lead-
ing to the impeachment of Andrew Johnson."
As Justice Brandeis once said, "The doctrine of the separation of pow-
ers was adopted by the Convention of 1787, not to promote efficiency but to
preclude the exercise of arbitrary power. The purpose was not to avoid fric-
tion, but, by means of the inevitable friction incident to the distribution of
governmental powers among the departments, to save the people from
autocracy."
VI
The traditional tension between Congress and the President with re-
spect to the making of foreign policy in general, and the use of the armed
forces in particular, was greatly intensified during the Twentieth Century.
The cause of this phenomenon was not the malign ambitions of Presidents
who dreamed of becoming emperors, or the supine passivity of Congress-
men and Senators who abdicated their historic responsibilities. The cause
was quite different, and quite simple. The structure of world politics had
changed profoundly. The state system governed by the Concert of Europe
107. THE FEDERALIST, Not. 47, 48 (J. Madison).
108. Myers v. United States. 272 U.S. 52, 276 (1926); Trial Of Andrew Johnson
(Washington 1868); COR WIN, supra note 7, at 62-66, 351-356.
109. Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).
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39
collapsed in 1914. No new Great Power Concert has emerged to replace it ?
a new grouping with the wisdom and the will to govern world politics as the
Concert of Europe did in the century which followed the Congress of Vi-
enna. For the United States, the era of free security was over.
After 1914, we began reluctantly to realize that if our primary na-
tional security interest, that in preserving the world balance of power, was
to be assured, we should have to take an active part in the process of doing
so. There was no alternative. Thus the United States felt impelled to fight
in both World Wars in order to prevent Germany from conquering Russia
and thereby achieving an unacceptable accumulation of power. In 1949,
alarmed by Soviet expansion, we helped to organize NATO in order to pre-
vent the Soviet Union from gaining control over Germany and Western
Europe.
The two World Wars and the dissolution of all the European Empires,
except for the Russian, caused a profound change in the balance of world
power and the magnetic field of world politics. Europe ceased to be the
center of 'the world political universe. The Concert of Europe could no
longer manage the system of world public order. Japan and the Soviet
Union were factors in world affairs on a new scale. The United States, no
longer a peripheral adjunct to the European system, faced altogether new
tasks in attempting to protect its national security. In 1823, when Canning
suggested the policy now known as the Monroe Doctrine, he said he was
calling in the New World to redress the balance of the Old. Since World
War 11, the United States has had to play Britain's role as arbiter of the
world balance of power. No other power could organize and lead the coali-
tions required to contain the Soviet Union's thrust for dominion, especially
because of the history of the nuclear weapon.
This transformation of the American national interest in world politics
naturally stimulated an active debate within the United States both about
the ends and the means of foreign policy and imposed new strains on the
American political system. That debate reached an explosive climax during
the early Nineteen-seventies. The bitter and prolonged war in South East
Asia dragged on, to the accompaniment of anti-war rioting and disorder of
a kind the nation had not experienced since the Draft Riots of the Civil
War period and the troubles of Reconstruction. At the same time, the con-
troversy over President Nixon's behavior with respect to the Watergate
scandal envenomed the political atmosphere, and produced so strong a
movement for the President's impeachment that in August, 1974,?less
than two years after his triumphant reelection in 1972?President Nixon
resigned.
In this atmosphere of extreme political excitement, a bipartisan major-
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ity in Congress succeeded in passing the War Powers Resolution of 1973.11*
Its nominal purpose was to assure the people that a vigilant Congress could
and would protect the nation against future Vietnams. The political goal of
Congress in its perennial war with the President, however, was quite differ-
ent. That goal was to take advantage of President Nixon's weakness and
annex some Presidential territory as its own. For the first time in nearly two
hundred years, the Hamiltonian view of the Presidency suffered at least a
nominal defeat.
The Resolution is an assertion of Congress' claim to supremacy with
regard to the war power, but it does not adopt an extreme form of the
ultra-Whig view. It does not say, for example, that the national force can
be used by the President only if Congress has first passed a Declaration of
War. Nor does it adopt the position that the President's right to use force
without the prior approval of Congress is confined to cases of "sudden at-
tack." On the contrary, it acknowledges what history and common sense
make obvious?that in the nature of world politics there will be many occa-
sions when the United States, like other nations, will have to use force
quickly and decisively in order to protect its security, and that the President
is the only possible representative of the nation capable of carrying out such
actions. This is the essence of the argument for an "energetic" President
which echoes through.the Federalist papers.
The War Powers Resolution begins with the statement that its purpose
is to fulfill the intent of the framers of the Constitution, and purports to
summarize their intent in three propositions: (1) the armed forces should
not be introduced into or continued in hostilities or situations where they
might well become involved in hostilities without the collective judgment of
both the Congress and the President; (2) Congress has the power to pass all
laws necessary and proper for carrying into execution the powers of the
President; (3) the constitutional powers of the President as Commander in
Chief can be exercised by him to introduce the forces into hostilities or into
situations where their imminent involvement in hostilities is "clearly indi-
cated by the circumstances" only pursuant to a declaration of war, "spe-
cific" statutory authorization, or a national emergency created by an attack
upon the United States, its territories or possessions, or its armed forces. It
will be noted at once that this attempt at restatement omits any reference
to treaties and the role of the Senate.
Section 3 requires the President to "consult" with Congress "in every
possible instance" before introducing the armed forces into hostilities or
into situations where hostilities are an imminent risk, and also to "consult"
regularly with Congress after hostilities have begun until they are
110. War Powers Resolution of 1973. Pub. L. 93-148, 87 Stat. 555 (1973) (passed over
President Nixon's veto November 7, 1973).
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terminated
"Consultation" between the President and Congress is not a term of
constitutional import. The President cannot consult with "Congress." He
can consult only with members of Congress and of course he does so in a
early continuous political process that occurs in many forms?through
meals, telephone calls, poker games, meetings over drinks or more solemn
meetings between Congressional leaders and the President at the White
House, funerals, weddings, and so on. The Resolution makes no attempt to
define the word "consultation," and none is possible. The injunction requir-
ing the President to "consult" with Congress is meaningless piety. Congress
has many vital functions in the political 'process. Its debates help to lead
and crystallize public opinion, the ultimate source of political power in a
democracy. Its Committees can serve as the Grand Inquest of the nation,
investigating, probing, and proposing. But Congress can act only as a col-
lective body, by enacting legislation. The Constitution confers certain legis-
lative powers on Congress, and it can have no other powers. Furthermore,
Congress cannot command the President to "consult" with a particular
member of Congress any more than it can tell him who his Secretary of
State or his most trusted advisers should be. Any such attempt would inter-
fere with the President's most sensitive executive discretion, that of political
leadership.
The fourth section of the Resolution requires the President to report to
Congress within forty-eight hours and regularly thereafter whenever he has
introduced armed forces into hostilities or into situations risking involve-
ment in hostilities in the absence of a declaration of war. Section 5 is paired
with Section 4, and provides that the President shall terminate any use of
the armed forces coming under Section 4 within sixty days, unless Congress
has declared war or enacted a specific authorization for the use of the
armed forces in another form, or extended the sixty-day period to not more
than ninety days upon certification by the President that unavoidable mili-
tary necessity requires an extra thirty days. Subsection (c) of Section 5
provides that where hostilities are being conducted abroad without a decla-
ration of war or a "specific" statutory authorization in another form, Con-
gress may require the President to terminate hostilities and remove the
armed forces by concurrent resolution?that is, a resolution not signed by
the President or passed over his veto. Subsections (b) and (c) of Section
5?the guillotine provisions?are the heart of the Resolution.
Sections 6 and 7 undertake to establish procedures purporting to bind
future sessions of Congress to consider issues arising under Section 5 expe-
ditiously. Section 8 prescribes that Presidential authority to use the armed
forces shall not be inferred from any statute unless it "specifically autho-
rizes the introduction of United States armed forces into hostilities, . . .
and states that it is intended to constitute 'specific' statutory authorization
WAR POWERS RESOLUTION 41
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within the meaning of this joint resolution," and that no treaty shall be
deemed to authorize the President to use the armed forces unless it is im-
plemented by legislation of the same tenor. The Section concludes with the
ineffable thought that nothing in the Resolution is intended to alter the
Constitutional authority of the Congress or the President. This Section, too,
with its emphasis on "specificity," is legal nonsense. Where would it leave
the reasoning of Morbury v. Madison or McCullogh v. Maryland?
If the War Powers Resolution were to be carried out literally, it would
constitute the most fundamental change in the Constitution ever accom-
plished?far more drastic in its effects than the shift of authority from the
states to the national government which began after the Civil War. It
would reduce the Presidency, as Senator Javits had urged, to the status of
General George Washington as Commander-in-Chief during the Revolu-
tion, subject to the orders of an omniponent Congress and its officious Com-
mittees." The deterrent influence of American treaties, already weakened
by the experience of Vietnam, would decline even further. The United
States would be the only country in the world which lacked the capacity to
enter into normal treaties and alliances and to conduct secret negotiations
where the use of force was in question, and it would be hampered in many
others ways in the conduct of its foreign relations.
Enforcing the Resolution would produce all kinds of paradoxes. No
President could do what Lincoln did during the Civil War, what Franklin
Roosevelt did during the tense period before Pearl Harbor, or what Ken-
nedy did during the Cuban Missile Crisis in 1962. But the legal arrange-
ments for the Vietnam War would have fully satisfied the requirements of
the War Powers Resolution of 1973. That war was authorized not only by
the United Nations Charter and the Southeast Asia Collective Defense
Treaty of 1954, but by the highly "specific" Tonkin Gulf Resolution of
1963 and other explicit acts of Congress as well. Above all, as has been
evident in the thirteen years since it was passed, the Resolution would con-
vert almost every serious problem of American foreign policy into an acrid,
arid, and irrelevant debate about constitutional power, making our proce-
dures for the conduct of foreign relations even more cumbersome and con-
tentious than they are already.
Constitutional theology is our national passion. Every American heart
beats faster when we try to divine the intentions of the Founding Fathers
from materials Justice Jackson once said were "almost as enigmatic as the
dream Joseph was called upon to interpret for Pharoah." Such exercises are
more than lively sport and evidence of our profound commitment to the rule
of law. When guided by error or wishful thinking, or when they transcend
the permissible limits of construction in interpreting the policies and Ian-
I H. E. Roston, supra note 52. at 840
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guage of the Constitution, they can do a great deal of harm?witness the
Neutrality Act of 1939,11' which helped to convince Hitler that the United
States would never help Britain, France, and the Soviet Union, and the
War Powers Resolution, which similarly hobbles our diplomacy, makes de-
terrence less credible, and therefore greatly increases the risk of major war.
The methods of the ostrich are of no avail in the realm of foreign affairs.
The War Powers Resolution is in profound conflict with the necessities
of governance in the turbulent world of the late twentieth century and with
the Presidency which has evolved from the experience of the nation under
the Constitution of 1787. It is therefore safe to anticipate that the
Hamiltonian conception of the War Powers to which Washington, Lincoln,
both Roosevelts, Wilson, and Truman made such notable contributions will
prevail as the constitutional norm, and that the War Powers Resolution will
become a footnote to history, either through repudiation or desuetude.
Institutional pride may keep Congress from confessing error and re-
pealing the Resolution directly, although a face-saving repeal disguised as a
revision is not unthinkable. The courts will almost surely declare the Reso-
lution unconstitutional if an appropriate case should arise. The 1983 ruling
of the Supreme Court in I.N.S. v. Chadha"' is fully applicable to the chief
operative part of the War Powers Resolution, Section 5. According to that
section, the President's authority to use force evaporates unless, within sixty
days, Congress votes a Declaration of War or a statute supporting the Pres-
ident's use of force in limited war. Section 5 also allows Congress to termi-
nate a Presidential use of force within the sixty-day period, or at any time
in the future (even after it has once voted to support the President's use of
force) by Concurrent Resolution, that is, by a Resolution passed by both
Houses of Congress but not signed or vetoed by the President.
Section 5 is a classic example of the legislative veto, a modern develop-
ment in legislation. It purports to reserve to Congress the power to termi-
nate or reverse a President's action under a statute or even to repeal the
statute by Concurrent Resolution. The practice originated in 1932, at the
dreariest point of the Great Depression, when a doomed Republican Presi-
dent faced a vigorous Democratic Congress already scenting the blood of
pov,er. Since then nearly two hundred such statutes have been forced upon
protesting Presidents. They authorize both Houses, or one House, or even a
112 Neutralit) Act of 1939, 22 U.S.C. ? 441 (1982).
113. I.N.S. Chadha. 462 U.S. 919 (1983); Franck & Bob, The Return of Humpy-
Dumpt.t.. Foreign Relations Law After the Chadha Case. 79 Am. J. or INT'L L. 912 (1985):
Note, Resolving Challenges to Statutes Containing Unconstitutional Legislative Veto Provi-
sions, 85 COLUM. L. Re'.. 1808 (1985); Note, Severability of Legislative Veto Provisions: A
Polio. Analysis, 97 Hkav. L. 112B. 1182(1984); Note, The Aftermath of Chadho. The Im-
pact of the Sflerabilit.: Doctrint on the Management of Intragovernmental Relations, 71 VA.
L. REN. 1211 (19S5)
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44 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
Congressional Committee to enact legislative vetoes, often in statutes of the
greatest importance, like the War Powers Resolution of 1973.
But Chadha ruled that Congressional action can have legislative effect
only through Acts or Joint Resolutions fully subject to the President's veto.
If Congress cannot terminate a war by passing a Concurrent Resolution, it
can hardly do so by not passing such a Resolution.
Section 5 is not separable from the rest of the War Powers Resolution.
Without Section 5, the statute is devoid of substance. As was pointed out
earlier,'" the provisions about "consultations with Congress" are at best an
admonition or a prayer. Even the reporting requirements of Section 4,
which seem innocuous at first glance, may well be unconstitutional as a
usurpation of the President's discretion in the conduct of foreign relations,
and especially of his discretion to use force in situations short of general
and unlimited war. Should the President trumpet to the world the substance
of a secret warning or signal designed to deter a hostile move by another
power? It will normally be easier for a target state to heed a secret warning
than a public one. Can Congress require the President to make all such
warnings or signals public?
The Chadha case has not been popular in the law reviews." Professor
Tribe's treatment of the case is characteristic of a currently fashionable
view among law professors and law journal editors. It appears as Chapter 6
of Constitutional Choices."' Tribe mentions the application of the Chadha
decision to the War Powers Resolution obliquely, discussing it in a series of
footnotes."'
The first sub-heading of Tribe's chapter gives the reader a clue to the
thrust of the author's argument: "The Judiciary's Renewed Assertion of
Structural Checks on Congressional Innovation." The topic sentence of the
first paragraph sounds the theme: "At least since 1976, the Supreme Court
has been anything but receptive to Congress' more innovative assertions of
authority." A page later Tribe identifies such "innovative assertions of
authority" by Congress as "the pragmatic accommodations of our times" to
114. See supra text accompanying notes 42-55.
115. Elliott. INS. v. Chadha: the Administrative Constitution. the Constitution, and
the Legislative Veto, Sup. Ct. Rey. 125 (1983); Glennon, The War Powers Resolution Ten
Years Later: More Politics Than Law, 78 AM. J. OF INT1 L. 571 (1984); Levitas & Brand,
Congressional Review of Executive and Agency Actions After Chadha: 'The Son of Legisla-
tive Veto" Lives On, 72 GEO. Li. 801 (1984); Note, Chadha and the Nondelegation Doctrine..
Defining a Restricted Legislative Veto. 94 YALE Li. 1493 (1985).
116. L. TRIBE. CONSTITUTIONAL CHOICES (1985). The paragraphs which follow borrow
a few passages from a review of Professor Tribe's book in the Washington Post, December 22,
1985.
117. See, e.g id. at 78 and 316; Id. at 79 and 317.
118. Id. at 66.
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the development of administrative agencies and other extensive "delega-
tions" of legislative authority.'" A page further on, it is suggested that the
legislative veto appealed both to those who oppose the executive regulation
of American life and industry and to their opponents "who resist deregula-
tion but espouse increased democratic control over those regulations which
remain."'" We are not told why Presidential and judicial controls over the
activities of the executive branch are inadequate or "undemocratic," or at
least less "democratic" than Congressional controls, especially when Con-
gressional controls like the legislative veto preclude judicial review.
One of the basic structural features of the Constitution is what Corwin
palled "the divided initiative" in legislation, the President's capacity to veto
bills passed by a simple majority of both Houses, and Congress' capacity to
override such vetoes promptly by a two-thirds majority. Wilson thought the
President's veto power was his most important prerogative. The veto is cer-
tainly one of the most important tools available to the Presidency. Starting
long before 1976, the Supreme Court, has gone to great lengths to safe-
guard both the President's veto and Congress' capacity to override it."
It is therefore hardly surprising that many serious students of Ameri-
can politics do not perceive the legislative veto as an "innovative assertion"
of democratic legislative authority or "a pragmatic accommodation" to the
development of administrative law, but a naked grab for Congressional
supremacy intended to transform the American President into a weak
Prime Minister. Tribe gingerly concedes that such concern with Congres-
sional encroachment on the President's power might justify the conclusion
that some (unspecified) legislative vetoes are unconstitutional. He denies,
however, that the issue was raised by Chadha, in which the Supreme Court
said that all legislative vetoes are unconstitutional."
The Chadha case involved the deportation of an alien by the vote of
one House of Congress, reversing a decision in favor of the alien by the
Immigration and Naturalization Service. Tribe nowhere tells us flatly
whether he considers the Court's decision to be right or wrong, although he
clearly prefers the position taken in Justice White's dissent. Apart from his
cursory reference to a desire to bring administrative agencies under "demo-
cratic" control, he makes no attempt to examine the problem of the legisla-
tive veto in its broader setting of history and constitutional policy and of its
application to the President's executive authority, particularly in the field of
foreign affairs. Instead, he indulges in a few pages of verbal jousting with
119. Id. at 67.
120. Id. at 68.
121. The Pocket Veto Cases, 279 U.S. 655 (1929): Wright v. United States, 302 U.S.
583 (1937): Kenned v. Sampson, 511 F.2d 430 (D.C. Cir. 1974).
122 TRIBE. supra note 116, at 74.
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46 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 21
the arguments of the Court's opinion in the pyrotechnical style of "Paper
Chase." Tribe thinks he has disposed of the logical contradictions and infe-
licities of the Court's opinion and left the decision in intellectual ruins as a
"mystery."
But has he? Tribe says it is hard to refute the Court's thesis, which he
ridicules as the proposition that "a law is a law is a law," and adds that the
Court's statement "sheds little light on why the veto at issue in Chadha was
so law-like' an action that it 'had' to be deemed legislative."4 A few
paragraphs later, however, he commends Justice Powell for his contention
that the legislative veto provision ruled upon in Chadha was a bill of attain-
der. Tribe says the decision in Chadha might be deemed defensible on this
ground."
A bill of attainder is punishment imposed by legislation rather than by
judicial action. Is Powell's argument therefore really different from Bur-
ger's? The vote of the House of Representatives deemed unconstitutional in
Chadha purported to have effect, in Justice Powell's view, as a legislative
punishment. What Powell and Tribe contend in effect is that is would have
been an unconstitutional bill of attainder if it had been approved by both
Houses and signed by the President, and therefore must be condemned as
doubly unconstitutional because it was passed by one House and not signed
by the President. Alternatively, Tribe could have said that the bill of attain-
der issue was not reached because what purported to be "legislation" was
passed by one House only, and not signed by the President. In either case,
isn't Tribe, like Burger, saying that "a law is a law is a law," for an ex-
tremely important reason of constitutional policy, namely, the protection of
the President's veto?
I have no difficulty with the Court's decision and opinion in Chadha,
and believe they will and should survive as a bulwark against legislative
encroachment on the executive power?a danger against which Madison
warned eloquently in the Federalist. I should also contend that Chadha
most emphatically applies to the problems of the War Powers Act, which
purports to deal not only with the acts of the President under statutes and
treaties, but also with exercises of his inherent and independent constitu-
tional power as head of the third branch of government.
In holding the War Powers Resolution unconstitutional, the Court may
well go beyond the Chadha case and deal with features of the Resolution
which raise even more fundamental aspects of the separation of powers
principle, for example, its effects on the President's power to conduct secret
negotiations and on his hitherto unquestioned authority as Commander-in-
123. Id. at 75-76.
124. Id. at 70.
125. Id. at 74.
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Chief to bring hostilities to an end, by receiving surrenders or negotiating
cr.ase-fire or armistice agreements; and its attempt, recalling the thrust of
the Bricker Amendment, to require legislation before treaties can actually
be applied as the supreme law of the land." Even the reporting require-
ment of the Act, so innocuous at first glance, challenges the President's
constitutional discretion in fundamental ways. Suppose there is growing
tension in one or another troubled area of the world, and the President
moves to protect our interests and at the same time prevent a crisis. He
may wish to warn an adversary secretly, or signal our purposes by shifting
troops to the theatre of possible conflict; going on alert; or taking a number
of other possible measures of comparable import. It is usually easier for the
adversarial power to heed such warnings if they are made secretly than if
they are trumpeted to the world and thus become a matter of pride and
prestige. Should Congress try to control the President's judgment on bow to
handle so delicate a problem in the conduct of foreign relations? Under the
Constitution, can it do so?
If the Resolution is neither repealed nor declared unconstitutional by
the Courts, it is bound to be ineffective nonetheless as an influence on the
behavior of Presidents. It will be repealed in fact by a force more powerful
than Congress or the Supreme Court, the nature of the problems of foreign
policy and national security with which the government has to deal. It is
striking, for example, that even at the height of the agitation which pro-
duced the War Powers Resolution, a Congressional vote rejected the propo-
sal to subject the President's control of the nuclear weapon to the proce-
dures of the Act." The most extreme of the ultra-Whigs who supported
one or another version of the War Powers Resolution conceded that the
control of the nuclear weapon has to be Presidential.
At least eleven episodes involving the use of force or the imminent risk
of using force occurred during the first decade after the War Powers Reso-
lution was passed. Several more have occurred since then. In each case the
Presidents involved (except for President Carter) protested that the Resolu-
tion was unconstitutional, but made an effort at least to consult with Con-
gressional leaders and to keep Congress informed about the course of
events. In no case did the procedure mandated by the statute prove conven-
ient or appropriate and in no case was it followed. And in each case the
Resolution precipitated Congressional protests that the War Powers Resolu-
tion was being violated, and even that the President should be
126. Professor Franck characterizes Section 8(a) (2) of the War Powers Resolution as
"a stunning and, in international la%, perhaps illegal alteration of the conditions" of United
States accession to the North Atlantic Treat) and others. Franck supra, note 57, at 635. In
effect, the Resolution attempts to do uhat Senator Bricker and his colleagues thought could be
dont onl b Constitutional Amendment, i.e., make all treaties non-self-executing.
127. Id at 605
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48 VALPARAISO UNIVERSITY LAW REVIEW (Vol. 21
impeached.'"
VII
This review of the controversy over the War Powers Resolution would
be incomplete without a comment on Professor Thomas Franck's article in
the American Journal of International Law, one of the most significant of
the recent treatments of the subject."
After recalling the pattern of constitutional practice with regard to the
use of the national force much as it is described here, Franck writes: "None
would deny that the rules relating to the conduct of our foreign relations
have been fundamentally altered or restored to something nearer the classic
intent of the Constitution's framers" by the recent assertion of Congres-
sional activism in seeking a larger role in the making of foreign policy and
the conduct of foreign relations.'" It is one of the purposes of these lectures
to puncture that familiar but altogether erroneous myth, a product of the
self-deceptions so common during the Vietnam period. Unless we assume
that the men who directed and debated the stormy diplomacy of the United
States between 1789 and 1825?many of them alumni of the Constitutional
Convention of 1787?knew less than we do about the "classic intent" of the
Founding Fathers, the myth cannot survive even a cursory examination of
the record.
Professor Franck's argument suffers from an even deeper weakness. He
allows his analysis and his prescriptions to be shaped by an untenable major
premise. We should not be trying to guide the evolution of our constitu-
tional practice closer to what we imagine to be -the classic intent" of the
Founding Fathers. Even if we could define that goal - and we cannot - it
would not in itself be a relevant or appropriate objective for policy. The
policy goals of the Constitution - effective government and democratic re-
sponsibility - should of course continue to govern the growth of our consti-
tutional law of foreign relations. That is the essence of the process through
which any body of law grows. But the principle does not require us to cre-
ate a kind of Williamsburg Government, with Tip O'Neill costumed in silk
knee britches and a wig. The problem facing the nation is to fashion and
refashion the Presidency and Congress as responsible and cooperative insti-
tutions capable of carrying out a foreign policy adequate to the security
needs of our times and of the foreseeable future. That is an entirely differ-
128. R. TURNER, THE WAR POWERS RESOLUTION: In IMPLEMENTATION IN THEORY
AND PRACTICE (1983); CLARK, EGELAND & SANFORD, THE WAR POWERS RESOLUTION
(1985); Tule), The War Powers Resolution; A Questionable Solution, 25 A.F. L. REV. 244
(1985).
129. See Franck, supra note 57.
130. Id. at 605.
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WAR POWERS RESOLUTION 49
ent matter.
Professor Franck gives his case away when he concedes that only the
president can decide when to use the nuclear weapon. He quotes Professor
Henkin with approval to the effect that the President's power to use the
Nuclear weapon must include the power to execute a preemptive nuclear
strike when the President and the President alone decides that a major at-
tack on the United States or its vital interests is imminent." If the Presi-
dent has this awesome power, on what conceivable ground can it be claimed
that he lacks the inherent constitutional power also to use ordinary conven-
tional force, or to threaten its use, in order to limit, defuse, or resolve ordi-
nary diplomatic confrontations before they become catastrophic? Those
who deem orthodoxy a serious problem in answering that question can take
appropriate comfort from the fact that Presidents have used force to this
cnd since we first had Presidents in 1789.
Professor Franck refuses to follow this course. Instead, he would make
the nuclear weapon an exception to an otherwise implacable rule, and re-
write the War Powers Resolution to that end. In other words, he would
revise the Act? in order to achieve the goal of having Congress "participate
fully" in making all decisions about the use of force except those involving
the use of nuclear weapons. At various points in his article, he describes this
goal as "healthy" and suggests that it was once the norm of practice, a
suggestion conclusively refuted by the evidence he himself marshals."
In order to accomplish "full participation" by Congress in decision
making for situations within the ambit of the War Powers Resolution, Pro-
fessor Franck proposes a Congressional "consultation," not a vote. The per-
suasiveness of his conclusion is not enhanced by his assertion that "it is
virtually beyond debate that some form of consultation is both legally and
politically necessary." He recommends amending the War Powers Reso-
lution to meet President Ford's trenchant account of his adventures in at-
tempting to "consult" with Congressional leaders who were scattered at the
critical moment between China, Greece, the Middle East, and Mexico.
President Ford concluded that in times of crisis, decisiveness is every-
thing?and the constitution plainly puts the responsibility for such decisions
on the President of the United States. There are constitutional limits on the
Congress which cannot be legislated away."4 Professor Franck responds by
suggesting that the War Powers Resolution be amended to designate ten
congressional leaders as a committee to consult with the President before he
131.
id. at 608, 613.
639.
641.
132.
Id. at 605, 606,
610,
625.
133.
Id. at 625.
134.
Id. at 624.
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50 VALPARAISO UNIVERSITY LAW REVIEW (Vol. 21
sends the armed forces into situations of conflict.'"
Franck characterizes the provisions of the War Powers Act about trea-
ties as "a stunning and, in international law, perhaps illegal alteration in
the conditions of U.S. accession" to the NATO Treaty, the Rio Pact, and
presumably, other security treaties as well.'" After a page of discussion,
however, he concludes that the provisions of the War Powers Resolution
about treaties should be left untouched, although he says that under the
Resolution all a President could do in the event that Germany or Japan
were attacked would be to call Congress into special session.
This feature of Professor Franck's article is its most startling and dan-
gerous proposal. It is incompatible with the basic thesis of Perez v. Brown-
MI" and many other cases that the United States has all the powers pos-
sessed by other states under international law ? in this instance, the power
to make effective treaties of alliance ?and it flies in the face of what Presi-
dent Washington did and Alexander Hamilton wrote during and after the
Neutrality Crisis of 1793.
Writing in 1977 ? that is, before the decision in Chadha ?Professor
Franck concluded that the concurrent resolution and guillotine features of
Section 5 of the Resolution should be scrapped as unconstitutional. In their
place, he recommends that Congress attempt to codify the circumstances in
which the President could use the national force without prior approval by
Congress, and then to have those limitations enforced by unenforceable ad-
visory opinions of the courts. The remedy of codification, as long experience
has shown, is far worse than the disease, especially because Franck would
confine the President's inherent constitutional authority to use force to cases
of attack on United States territory, its armed forces, and "perhaps" its
citizens abroad. The provisions he suggests for having the courts act as um-
pire of the revised Act?without the power to order compliance?are cer-
tainly unconstitutional under Article III, since they would require the
courts to perform non-judicial functions. Even more important, they would
further clog the conduct of our foreign relations. Franck reproaches Con-
gress for not insisting on Presidential compliance with the War Powers Res-
olution, and wants to give the task to the courts. But Congress' refusal thus
far to insist on Presidential compliance with the War Powers Resolution has
rested in each case on sensible political judgments. This is precisely the
kind of judgment the nature of the issues requires. Strict judicial compli-
ance procedures would only make a difficult problem unmanageable.
135. Id. at 624, 625.
136. See supra note 126.
137. 356 U.S. 44 (1958).
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WAR POWERS RESOLUTION 51
VIII
Once the constitutional aberration of the War Powers Resolution has
been digested and forgotten, it will be apparent again that the President
and Congress, separately and together, have been entrusted by the Consti-
tution and by its history with sovereign prerogatives in exercising the for-
eign affairs and war powers of the nation. Those prerogatives have been in
uneasy balance for two hundred years. Over a wide range, the President
and Congress can exercise their discretion as a matter of their joint or sev-
eral political judgments in dealing quickly with complex and swiftly moving
events on the basis of often fragmentary information. The only constitu-
tional restraints on which the people can rely to secure them from the abuse
of such discretion, as Chief Justice Marshall commented in Gibbons v.
Ogden, is the electoral process itself.'"
This conclusion applies, 1 hasten to add, only to the truly political deci-
sions Presidents and Congress make about foreign affairs and the use of the
national force. I do not mean to question the constitutional rightness of
decisions like Ex parte Milligan,'" Youngstown Sheet and Tube,'" Cov-
ert,'" Kent v. Dulles,'" and other cases in which the courts have held that
certain decisions purporting to be based on the foreign affairs and war pow-
ers of the nation unjustifiably trespassed on the legislative powers of Con-
gress or the rights of citizens. On the contrary, I revere that line of deci-
sions as one of the finest justifications of our claim to be a nation under law.
The real lesson of the War Powers Resolution, I suggest,?and the
main lesson of the Vietnam experience of which it is a part?is the primacy
of substance over procedure. We try to devise procedural solutions for
problems like Vietnam because the leaders of our public opinion have not
achieved a national consensus about the kind of foreign policy the safety of
the nation requires at this stage of world history. Part of the responsibility
rests on our educational institutions which do not often train our youth to
understand history, the processes of politics, and the phenomenon of war.
Another part represents a failure of leadership. When the war in Vietnam
became unpopular, far too many Congressmen were willing to forget their
own repeated votes for the war, denounce what they called a Presidential
war, and assure their constituents that no President in the future would be
able to lure America into war by "stealth."
Democracy will not survive?and will not deserve to survive?unless it
138. 9 Wheat. 1, 42 (1824).
139. 2 Wall. 2 (1867).
140. Younistown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
141. Reid v. Covert. 354 U:S. 1 (1957).
142. 357 U.S. 116 (1958).
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takes foreign policy seriously, for in that realm, to recall Holmes' vivid
phrase, "the price of error is death." We cannot, we must not escape from
the demanding but manageable task of dealing with reality by retreating
into the insoluble and dangerous realm of myth?myth about the nature of
the world, and myth also about the nature of our constitution.
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Mr. LIVINGSTON. I simply would point to his specific four summa-
ry points in support of my own statement against this legislation.
Professor Rostow says that, in his opinion, "H.R. 3822 is uncon- -
stitutional for four related reasons:
"1. The bill would require the President to disclose information
which Congress can request but not command the President to pro-
vide;
"2. In fact, the bill does more than require information: it seeks
to establish a procedure of compulsory consultation between the
President and two designated committees of Congress. He says this
goal is beyond the legislative powers of Congress";
Third, and I think this answers the question raised by Mr. Stokes
earlier on, and specifically, how it ties the President's hands, Mr.
Rostow says:
"3. De facto, the bill would give the two intelligence committees
of Congress, or one acting alone, an unconstitutional legislative
veto over a wide and undefined class of Presidential decisions in
the field of intelligence;" and
Fourth, he maintains, "The procedures mandated by the bill
would largely remove the Central Intelligence Agency and other in-
telligence entities in the executive branch from the control of the
President with respect to many of their functions, and place them
under the direct control of the Congress instead."
Mr. McHuGn. Thank you, Mr. Livingston.
I will ask Mr. Stokes, the chairman of the committee, if he has
any opening remarks.
[The complete statements follow:]
STATEMENT OF HON. LOUIS STOKES
Mr. Chairman: I would just take a moment to commend you for the leadership
you have exercised on this issue, and for the informative, and fair hearings you
have organized and conducted. You have gone out of your way to accommodate
those Members of this Committee who oppose this legislation, although strongly
supporting it yourself. You have insured that all sides were heard, all issues aired,
and that the discussion was full and frank.
I would also note that you and I and other Members of the Committee began
working on this legislation well over a year ago. As you noted, hearings began last
April. We have examined the issues presented by H.R. 1013 and H.R. 3822 carefully,
thoroughly, and at length. Prior to the Iran-Contra revelations, the Intelligence
Committee, members and staff, engaged in review and oversight of the 1980 Act.
Indeed, in 1983 the Full Committee conducted public hearings on covert action over-
sight. So these issues are not new; our deliberations are fully informed; we have not
rushed to judgment.
STATEMENT OF HENRY J. HYDE
Mr. Chairman and distinguished Committee colleagues, today we have our second,
and I understand final, hearing on H.R. 3822.
In view of the revelations which emerged from the comprehensive Legislative and
Executive Branch inquiries into the Iran/Contra Affair, it is understandable that
some would urge that a significant tightening of the intelligence oversight statutes
is necessary. However, I think that on more mature reflection, such measures do
not appear necessary, at least not yet.
The Tower Commission (President's Special Review Board) wisely concluded that
statutory changes in the system of decision-making on intelligence operations and
oversight were not necessary, and that the failures of the system should be laid to
the failures of individuals to follow the pertinent procedures of the established proc-
ess. As the Commission's report notes:
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"In the case of the Iran initiative, the NSC process did not fail, it simply was
largely ignored. The National Security Advisor and the NSC principals all had a
duty to raise this issue and insist that orderly process be imposed. None of them did
so.
Similarly, despite their somewhat inconsistent and superficial recommendations,
in my view, the congressional select committees on Iran laid responsibility on
human rather than systemic failings. The committees' majority report concluded.
". . . that the Iran/Contra Affair resulted from the failure of individuals to ob-
serve the law, not from deficiencies in existing law or in our system of governance."
It is also fundamentally important to keep in mind the fact that the covert Iran
arms transfer was an aberration, a unique departure from past experience of at
least a decade or more involving executive and congressioinal relations on covert
action. That fact was made clear in the materials prepared by our committee staff
for last year's series of subcommittee hearings on H.R. 1013, the predecessor bill to
H.R. 3822. A staff background paper prepared for those hearings noted in part:
"AsJar as we know since enactment of the Oversight Act in the fall of 1980, the
Committee has been given notice prior to implementation of all findings except for
the January 17, 1986, Iran Finding.
"In addition, as far as we know, all covert actions carried out since 1980, again
with the exception of the pre-January 17, 1986, Iran arms transfer activities, have
been the subject of findings. There has been one occasion when prior notice was
given only to the Chairman and Ranking Minority Member of the Committee and
one occasion when notice was limited to the designated leadership group."
President Reagan did take expeditious and appropriate action to reform and
strengthen the NSC process for approval and review of covert actions as soon as he
received the Tower Commission's report and recommendations on what had gone
wrong in the handling of the Iran initiative. A year ago, on March 4, 1987, the
President announced his commitment to implementation of the Tower Commission's
recommendation and took the first steps to commence that implementation. After
very lengthy and intense study, as well as some consultations with Congress, at both
the Member and staff level, last year the President signed a new National Security
Decision Directive (NSDD) 286 setting forth the revised procedures for the approval
and review of covert actions, including procedures for effectively carrying put the
President's responsibilities for notification to Congress on those matters.
NSDD 286 addresses in a very constructive manner a number of issues related to
those processes which are of interest to the Congress, and this Committee in par-
ticular. Among its important features, NSDD 286 provides that: (1) no covert action
("special activity") may be conducted except under the authority of a written find-
ing; (2) there can be no "retroactive" findings; (3) all findings will be reviewed at
least annually and will "sunset" unless the President specifically takes action to
prevent their termination; and (4) a copy of each finding signed by the President
will be provided to the intelligence committees as part of the notification proce-
dures. Moreover, the directive makes clear that there is a well-understood and ac-
cepted expectation of prior notification to Congress of covert actions. Only if the
President determines that it is necessary, in order to meet rare, extraordinary cir-
cumstances, will notification be delayed until after the initiation of a "special activi-
ty" and then only consistent with the timely notice standard of section 501(b) of the
National Security Act of 1947. In those very rare cases where notice would be de-
ferred, NSDD 286 provides for notification within two working days unless the
President specifically directs otherwise. In those truly exceptional circumstances of
a deferral of notification for longer than two days after a special activity has been
authorized by the President, the grounds for that delay must be memorialized in
writing and reevaluated by the National Security Planning Group (NSPG) of the
NSC at least every 10 days. That procedural requirement is certainly calculated to
keep the President and NSC members constantly mindful of the need to notify Con-
gress as soon as possible.
I believe procedures such as these and the obviously strongly renewed commit-
ment of the Administration for a constructive relationship with Congress in the
field of special activities should enable us to conduct effective oversight on those op-
erations without the troublesome statutory changes proposed in H.R. 3822. So far,
those procedures seem to be working well, I believe we should give this revised and
strengthened process a reasonable chance to demonstrate its workability before we
start setting narrow and inflexible legislative requirements into statutory concrete.
I know that some feel burdensome restrictions such as those in H.R. 3822 are
needed or, notwithstanding the reforms of NSDD 286, the Executive Branch will in-
definitely ignore, whenever it pleases, its responsibilities to give timely notice to
Congress. However, it should be clear to even casual observers that any Administra-
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tion clearly risks paying a fearful political cost when it unreasonably defers congres-
sional notification. The effects of the political penalties President Reagan has paid
have been felt throughout the breadth of his program initiatives, foreign and domes-
tic. The consequent loss of political capital has emboldened opponents of Adminis-
tration policies and programs in a wide range of areas, both at home and abroad.
Certainly this has been a costly lesson which this Administration and future presi-
dents for years to come will long and vividly remember. As I have indicated before,
congressional notification and consultation are a valuable form of "political risk in-
surance" whose importance has been starkly reemphasized in the wake of the Iran/
Contra Affair.
My most fundamental concerns about H.R. 3822 are the potentially serious practi-
cal problems which the rigidity of its prior notification and extremely limited, 48-
hour deferral provisions represent. In the most sensitive circumstances where covert
action might be an extremely valuable policy tool, these very inflexible notification
requirements could exert a fatally chilling effect. The problems with attempts to
legislate a rigid limit of 48 hours on the circumstance-dependent concept of timely
notice was highlighted eloquently by expert testimony regarding the predecessor
bill, H.R. 1013, last year.
Admiral Turner, President Carter's DCI, described two covert activities related to
the Desert I Iran hostage rescue and a covert action in cooperation with the Canadi-
an Government to secretly exfiltrate six U.S. diplomats from the Canadian Embassy
in Tehran. He convincingly explained circumstances laden with serious risks to the
lives and physical safety of personnel involved which he felt left him no reasonable
choice but to defer notice to Congress until the high level of dangerous risks de-
dined sufficiently. Moreover, as we recall, in the "Canadian operation" the essential
participation of Canada was contingent on deferring congressional notification until
the safety of Canadian personnel was reasonably secure. That case involved a very
friendly government with long democratic traditions and a relatively sophisticated
understanding of the U.S. system of government. Not all governments we might
have to cooperate with will possess these attributes.
In his very persuasive testimony, Admiral Turner gave a thoughtful and realistic
explanation of what timely notice means:
"The timeliness is not measured by a clock. Timeliness should be measured by the
risk. I waited three months in one of those cases, and we were three months getting
the six people out from the Canadian Embassy. We were six months doing the other
two operations I mentioned to you.
"So I don't think we should focus on hours and days. I think we should focus on
diminution of the risk. It could be that as an operation goes along the risk to human
life drops off but the operation under the Finding is still continung. That would be
the point at which the Executive should come to Congress. When that risk to
human life is diminished sufficiently is when it is timely to notify the Con-
gress. . . ."
Former DCI William Colby and former senior intelligence official Dr. Ray Cline
basically concurred with Admiral Turner's views. At a subsequent hearing Presi-
dent Carter's counsel, Lloyd Cutler, who played a major role in the drafting of the
existing statute, expressed similar serious reservations about the very restrictive 48-
hour time limit contained in H.R. 3822. During his appearance, Mr. Cutler told us:
"[lit does seem to me that none of us are bright enough to devise an absolute 48-
hour rule that will cover all situations and to drive the President into the refuge of
a constitutionally inherent right to do something which Congress cannot interfere
with, it seems to me goes a bit too far.
"I think the point of notice is not so much that it be beforehand, so that there is
consultation with the band of eight or two committees that might amount to 40 or
50 members and their staffs, it is that nothing can be done and kept secret, so that
you never know that it happened, and whether you get the notice two days later or
a week later, or a month later, it seems to me, in most cases, isn't going to make
that much difference. And we can all conjure up situations in which 48 hours isn't
enough. * * *
"There are all sorts of situations like that that could come up and I think myself,
you have got to allow a certain amount of intitiative to the President, although you
require him to account to you afterwards."
The thoughtful, compelling concerns of such experienced witnesses are powerful
arguments against the basic approach of H.R. 3822 to the intelligence oversight
process. Those concerns are given additional weight when we consider the epidemic
proportions which the Washington disease of leaking has assumed. Of course leaks
come from both the Executive and Legislative Branches, and ironclad proof of their
sources is extremely rare. They are probably greater in number from the Executive
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Branch because numerically more people are privy to classified information than
here on the Hill. However, as a percentage of the number of people in each branch
with access to classified information, Congress, despite its sanctimonious and out-
raged pretense of unsullied virtue, may be ahead in this dubious competition.
A Senate Intelligence Committee study released to the press and others, reported-
ly found that in selected leaks of classified information, journalists referenced con-
gressional sources only eight to nine percent of the time, but cited Reagan Adminis-
tration officials 66 percent of the time. This research methodology is suspect, since
journalists are alleged frequently to protect their most vulnerable sources, and per-
sons on the intelligence oversight committees would in many cases be particularly
exposed by virtue of being the only knowledgeable "congressional" sources. Let us
take the Senate study at face value, however, and also generously assume that Con-
gress has 2,500 people with clearances, as opposed to 2.2 million in the Excutive
Branch and military. Reliance on the Senate study forces us to conclude that Con-
gress maintains just over 0.1 percent of the number of Executive Branch clearances,
but is responsible for eight to nine percent of the leaks on national security issues.
Specifically, on average, a cleared person in Congress is 60 times more likely than
his counterparts elsewhere to engage in unauthorized disclosures.
In any case, it is a cliche to acknowledge the widespread existence of a permissive
culture regarding unauthorized disclosures to the media. "Leaking has become a
standard operating procedure for a significant number of Washington insiders,"
Robert Garcia concluded in an August, 1987 article for American Politics on leaks
by a variety of Washington officials, including congressmen. We, therefore, can no
longer honestly claim, contrary to all common sense and experience, that Capitol
Hill somehow has risen above it all.
As Chapter 13 of the Minority Report of the Iran Committees makes clear, leaks
have been a problem since the days of the Church and Pike Committees, Moreover,
the Iran Committees themselves had their own problems with numerous leaks of
sensitive classified information given in executive session to the Members and/or
staff. That chapter concludes with a simple truth:
"In the final analysis, as Chairman Hamilton noted in a perceptive article on pro-
tecting secrets that appeared in the September 4, 1985 Congressional Record, 'Leaks
are inevitable when so many people handle secrets.' The most effective way of en-
suring secrecy is to restrict access to sensitive information to just a handful of re-
sponsible people."
Interestingly, Lee Hamilton and his Senate counterpart, Daniel Inouye, followed
their best instincts on how to keep secrets when it came time to depose Admiral
Poindexter. As the Minority report observes:
"The two select Committees recognized that the Admiral's testimony on the diver-
sion of funds was the pivotal, and potentially most explosive political question of
this whole investigation. As a result, extraordinary steps were taken to protect the
information. Specifically, only three staff attorneys and no members of either Com-
mittee participated in the secret questioning. The success of these procedures speaks
volumes on how to protect secrets."
While the remedy for reducing leaks is thus well-known, the circumstances we
must work with ignore it. For even the most sensitive intelligence information is
available to some 67 Members of Congress and 60 to 65 congressional staff between
the two intelligence committees and certain appropriations subcommittees in each
house.
Of course, the fact as well as the more widespread perception that Congress is a
source of leaks means that requiring the kind of inflexible prior reporting called for
in H.R. 3822 will have a chilling effect on the willingness of some to cooperate with
us on some extremely important covert actions in the future. Ultimately, that chill-
ing effect will extend its influence to the minds of those officials who must consider
whether in any specific case to propose covert action as a policy option. Unfortu-
nately, they may refrain from even suggesting a covert action, although the rewards
of its success could be great, because they believe necessary participants will fear
premature disclosure to Congress under an inflexible congressional prior notifica-
tion requirement and decline to cooperate. Those supporters of H.R. 3822 who are
opposed to any and every covert action as a policy tool fervently hope and expect
the bill to have such a chilling effect.
There are other concerns with H.R. 3822 touched upon by Director Webster. The
expansion the bill would make in the categories of funds which must be "specifically
authorized" under current law, in the sense of being both authorized and appropri-
ated, could have very disruptive and deleterious effects on some important intelli-
gence activities, such as the maintenance of "proprietaries" and the handling of fi-
nancial support from friendly governments to joint covert actions which might be
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approved by Congess. There are also serious potential problems with the way the
bill phrases the definition of "special activities." Director Webster has indicated
that as it now reads that definition might well result in cumbersome and impracti-
cal requirements for signed Presidential findings for categories of intelligence activi-
ties which have never previously been considered to be covert action.
For all of these important reasons, I strongly conclude that this legislation, no
matter how well intentioned, is a fulfillment of the old adage, "Do something, even
if it's wrong!" We are encroaching on the President's constitutional prerogatives by
diminishing essential flexibility he may need, especially when cooperating allied
citizens' lives, as well as our own, are at stake. Unusual circumstances make bad
law?and the Iran/Contra Affair was more than unusual, it was one of a kind. I
think we don't need new laws, just better observance of the ones we have.
Mr. McHuGH. So, Mr. Secretary, as I said earlier, we are delight-
ed to have you. We understand the pressures on your time. As we
all understand, there are few people with as much experience in
Government as you and, therefore, your insights on not only the
legislation itself, but also the issue of the general relationship be-
tween the Congress and the executive are important to us.
And we are delighted to have you. Please proceed.
STATEMENT OF HON. FRANK C. CARLUCCI, SECRETARY OF
DEFENSE, UNITED STATES OF AMERICA
Secretary CARLUCCI. Thank you very much, Mr. Chairman. I ap-
preciate this opportunity to appear before you. I also appreciate
your accommodating my schedule and the rather extraordinary ar-
rangements under which I have asked to appear.
I asked to appear on a one-time basis as a former National Secu-
rity Advisor, as opposed to a sitting Secretary of Defense.
At the outset, let me say that I am a strong supporter of the
oversight process. In my experience in the Agency and DOD, it has
been extraordinarily helpful. I believe that the relationship be-
tween the executive branch and the Intelligence Committees has
evolved into a very solid and productive relationship.
At the outset, let me say I am certainly not going to claim that
mistakes were not made in the Iran-Contra Affair. The President
has admitted the mistakes. Let me make only two quick points.
. The first is that the kind of mistakes that were made do not lend
themselves to a legislative solution. The Congress' own Iran-Contra
report said, and I quote:
"The Iran-Contra affair resulted from the failure of individuals
to observe the law, not from deficiencies in existing law. Experi-
ence has shown that these laws and procedures, if respected, are
adequate to the task." End quote.
The second point I would make is that the managerial and per-
sonnel deficiencies revealed as a result of those events have been
fully addressed. The President appointed a new National Security
Advisor. There is a new and very capable director of Central Intel-
ligence. Under the President's direction, I as the National Security
Advisor, did much what any CEO would do coming into a some-
what troubled company.
There was a sizable turnover in the staff, a complete reorganiza-
tion of the NSC, and the Office of Political and Military Affairs
was abolished because it didn't make any sense for me to have that
kind of cross-cutting office.
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On direction of the President, we banned the National Security
Council staff from having any role in the implementation of covert
action programs because, in my judgment, it was a conflict of inter-
est.
NSC is the overseer of the system. We've upgraded substantially
the Office of General Counsel and given him direct access to me
and direct access to any of the papers, documents or any of the
meetings in the NSC.
We also developed early on in cooperation with the Senate Select
Committee on -Intelligence a new NSDD, which you are all famil-
iar, requiring that all findings be in writing and that they not be
retroactive.
We called for annual review of all covert actions with a sunset
clause after 1 year. And the President personally attended the
review of all the covert action programs.
It called for prior notification of the Congress in all but extraor-
dinary circumstances, and in extraordinary circumstances, the so-
called "gang of eight" could be identified. In rare extraordinary cir-
cumstances, the President could delay notification until after initi-
ation of the covert action and notify within 2 working days.
And in the event further delays were necessary, the President
must say so in writing and there would be an NSC review of that
action every 10 days.
As a result of this NSDD, it's my own believe that a statute is
unnecessary. It's also my belief that the provision to which you re-
ferred in the statute could damage the oversight process in a seri-
ous way; that is to say, the 48-hour mandatory reporting require-
ment.
I am not a lawyer. The Justice Department has made its case on
constitutional grounds. But I can assure you that this President
feels strongly about the issue, as did his predecessor. As you know,
I was in the CIA under President Carter and he felt very strongly
on this issue.
The heart of our constitutional process is trust between the exec-
utive and legislative branches. Admittedly, this trust broke down
in the so-called Iran-Contra Affair. It seems to me that our job is to
restore it in a way that makes the oversight process more effective,
not less effective.
We must ask ourselves the question:
If this legislation were passed and if it provokes a veto, as it most
surely will, then will it be followed by an interminable debate
about its constitutionality, much like the War Powers Act? If that
happens, will it help or. hinder the oversight process? Will it con-
tribute to trust and dialog? Or will it perpetuate an adversarial re-
lationship for years to come in an effort to ensure that a one-time
human error can never be repeated?
I think we have to admit that there are some things that just
cannot be done by statute. At some point, we have to re-impose
trust in the management of the executive branch and measure
what that branch has done to correct its managerial mistakes?and
there will always be managerial mistakes?rather than -attempting
to correct them by circumscribing what the Justice Department re-
gards as the President's constitutional authority.
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This of course is not just a theoretical issue or a separation of
powers issue. It can become a practical issue. You cited the Iran-
Contra Affair. The other one which the committee is aware of on
the other side is the rescue operation in Iran from the Canadian
Embassy.
I was in the CIA at the time and I can remember participating in
the planning of that operation, worrying about whether the dis-
guises were right, how would they get through the airport, would
the Canadians cooperate?
We were holding our breath while they went in and got those six
people out. The Canadians?and we received testimony on this, or
at least testimony has been received on the Senate side?made it a
condition of their cooperation that the Congress not be notified.
You and I can say that's wrong. And you and I could argue that
the Congress does need information.
But, that is not always convincing to foreign governments. Had
we chosen to ignore the Canadian offer, who knows what would
have happened to those people. Do we really want to force a future
President to make a choice between lives?because, in this case, it
was a question of lives?and a law which his Justice Department
tells him is unconstitutional?
I submit, sir, that that kind of an agonizing choice put before the
President does not further the oversight process.
Let me just comment on one specific aspect of the bill. And I
would hope that this Committee could affirm, as the Senate did in
its committee report on S. 1721, that it intends to preserve the cur-
rent understandings and practice on what constitutes a "special ac-
tivity".
As Secretary of Defense, to put my other hat on for the moment,
I'm concerned that the tactical military activities which are clearly
not intelligence covert actions continue to be treated as such.
For example, when we attempt to deceive the Soviet Union con-
cerning the movement of nuclear weapons, that clearly should not
require Presidential findings.
This is important because, if we change the current practice and
understanding, the result could be confusion in the field as to when
a Presidential finding should be sought for military-related activi-
ties.
I do not think that is the intent of the committee, but I would
hope that you could spell that out in report language as the Senate
has done.
In summary, I don't believe the new legislation is necessary to
restore the trust, confidence and accountability between the execu-
tive and legislative branches. The Iran-Contra Affair is, by and
large, behind us.
Under the improved' procedures set up by the President, much
better cooperation is now taking place between the executive
branch and the Intelligence Committees. And I hope the committee
will act in a way that promotes that kind of cooperation, and that
our efforts over the past year will not be dissipated in a fruitless
and enervating constitutional haggle that will impact adversely on
the oversight process.
Thank you, Mr. Chairman. That completes my statement.
[The complete statement follows:]
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TESTIMONY OF THE HONORABLE FRANK C. CARLUCCI
SECRETARY OF DEFENSE
BEFORE THE HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE
SUBCOMMITTEE ON LEGISLATION
ON H.R. 3822
THURSDAY, 10 MARCH 1988
Mr. Chairman, at the outset, allow me to thank you and the
Committee for the opportunity to exchange views with you on the
proposed Intelligence Oversight Act of 1987. Historically,
Secretaries of Defense testify before only one Subcommittee on
each side of the Capitol. My appearance here today should not
be construed as a change in that policy. The subject matter of
the legislation, the degree of Presidential interest, and my
prior position as National Security Advisor during the period
when important NSC reforms were made which bear directly on these
hearings brings me here today on behalf of the Administration.
In effect, I am testifying on a one-time basis as a former NSC
Advi?or, not as a sitting Secretary of Defense.
Since H.R. 3822 is very similar to the Senate bill, S. 1721,
you may already be familiar with the many concerns which I raised
before the Senate Select Committee on Intelligence on December
16. The changes subsequently made by the Senate committee in
its mark-up of S. 1721 addressed some of my earlier concerns.
H.R. 3822 reflects a number of the Senate's modifications.
Therefore, I will not repeat all of the same points here today.
Instead, I would like to offer the Committee my thoughts on
this entire process of reconsidering our intelligence statutes
-- to reflect on the circumstances which prompted the intelligence
committees to consider new legislation, and to ask whether this
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bill would improve the situation. I hope that the members will
give my message serious consideration before committing themselves
to a position on this legislation or on any particular provision
within it. The consultation which has taken place at the staff
level over the past two months, and the Committee's evident
desire to consider all the facts and arguments before endorsing
any change in the law, give me confidence that the Administration's
views are receiving a thoughtful hearing before this committee.
do not mean to patronize the members. The reason I raise
the question of adequate consultation is that I strongly believe
that this legislative proposal is the unhappy result of a breakdown
in consultation between the Executive and Legislative branches.
It serves no purpose to cast blame. An attitude of mistrust on
both sides complicated the kind of confidence in one another which
our Presidents and our legislator's need in order to carry out their
respective Constitutional duties effectively, and successfully.
The Congressional Iran-Contra report was right when it said:
"In a system of shared powers, decisionmaking requires
mutual respect between the branches of government....
Democratic government is not possible without trust
between the branches of government and between the
government and the people." (p. 20)
Today, I would like to offer the committee my thoughts on H.R.
3822 as it relates to the goal of fostering these all-important
relationships of trust and respect between the branches and
between the government and the people. Those relationships
suffered a setback in the Iran-Contra affair, as actions were
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concealed from Congress and, in one key instance, from the
President himself. An unhealthy lack of shared purpose between
the Congress and the Executive -- to be blunt, an adversarial
relationship -- kept key actors on each side from sharing
confidences and building a lasting consensus whiCh would apply
to all of the tools of statecraft which support national foreign
policy objectives.
I can think of no step by the Congress which would do more
harm to the process of rebuilding an atmosphere of trust and
candor between the branches than unilaterally to lay claim to
prerogatives whieh the President firmly believes are vested in
the Executive by the Constitution. Who among us can say with
absolute certainty that no future President will ever be faced
with circumstances requiring that notification of a covert action
to the Congress be delayed beyond 48 hours?
One recent example, which both intelligence committees have
discussed, is the assistance which Canada rendered to the United
States in 1980 in helping to smuggle six American hostages out
of Iran. As the Subcommittee has heard from a colleague who
served on the full Committee at the time, Canada had one request
in offering its cooperation: that the President not tell the
Congress. Was this unreasonable? You and I might say "yes,"
believing that the Congress could be trusted to protect this
information. But from Canada's perspective, clearly it feared
having its own Embassy in Teheran laid siege, as our own had
been, if its assistance became known. President Carter authorized
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a covert action to get those six Americans safely out of Iran.
He did not tell the Congress until after the fact. some members
disagreed but others argued that President Carter had done the
right thing.
This example helps us to separate politics froM process, and
to understand how the founding fathers did the same thing when
they designed our Constitutional separation of powers. Virtually
all Americans would regard the rescue of six citizens in that
situation as a goal justifying covert action, and they would
view the Government of Canada as a worthy partner in that endeavor.
Canada's demands for extreme secrecy would also appear reasonable.
Yet the cold fact remains that if H.R. 3822 had been the law of
the land in 1980, President Carter would have had to say "thanks
but no thanks" to Canada. what would have happened to those six
Americans, who were separated from the fifty-two Americans held
in the American Embassy in Teheran, no one can say.
So there is more to the 48-hour notification issue than abstract
theory. President Reagan's policy, as laid down in NSDD 286, is
to do precisely what H.R. 3822 would compel him to do -- to
notify the intelligence committees of covert action findings no
later than 48 hours after they are signed. If this policy cannot
be followed for exigent reasons, the NSPG is required to review
the situation every ten days. Other provisions of the NSDD have
been praised by the sponsors of the Senate legislation. This is
not surprising' since we consulted with the Senators as we devel-
oped our guidelines. We believe the NSDD works well with the
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current statutory framework governing intelligence activities.
However, I urge the members to consider the effect of provoking
a Presidential veto on legislation governing the entire realm of
intelligence activities. will this really improve the situation,
or will it simply add to the atmosphere of mistrust in an effort
to be certain that never again will an admitted mistake be repeated?
The failures of the Iran affair were human and managerial. No
statute can prevent these mistakes. How much better it would be
to have a procedural and statutory framework that heals the wounds,
provides for reasonable safeguards and encourages an atmosphere of
trust. If trust, candor and accountability are the remedy to
the problems which brought about the Iran-Contra affair -- as I
believe they are -- the Congress risks undermining all of those
goals, and reintroducing instead an unhealthy adversarial basis
to the oversight process for years to come, if it incorporates a
fundamental Constitutional disagreement into the law.
I have dwelt on this one central issue because I hope to
persuade the members that the position taken by President Reagan
and his immediate predecessors is reasonable and correct. Ap-
propriate action was taken as soon as the President be/ame aware
of the true nature of what had transpired in the Iran-Contra
affair. A new National Security Advisor was brought in. Judge
Webster was nominated as Director of Central Intelligence.
President Reagan prohibited the National Security Council staff
from participating in covert action, and he upgraded the position
and authority of the NSC Legal Advisor.
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The President directed that findings be set in writing prior
to initiation of the covert action. He ordered a full review of
ongoing covert actions, and revised or terminated any which were
not seen to be necessary or effective. Under a "sunset" clause,
Presidential authority for a covert action now expires after one
year unless he revalidates it.
The Congress' Iran-Contra investigation led to the conclusion .
that "the Iran-Contra Affair resulted from the failure of indivi-
duals to observe the law, not from deficiencie? in existing law
or in our system of governance." (p. 423) With specific reference
to the existing "laws and procedures to control secret intelligence
activities, including covert actions," the congressional report
concluded that, "Experience has shown that these laws and procedures,
if respected, are adequate to the task. In the Iran-Contra Affair,
however, they often were disregarded." (p. 375)
I do not believe statutory change is necessary. If government
is to function effectively as well as responsively, there must
be a line where the statutory framework ends and the President's
internal management responsibility begins. No two Presidents
are alike in their management styles. No two Administrations
have used identical procedures and mechanisms for recommending
options to the President or implementing_Presidential decisions.
We must allow our Presidents to manage, and each President must
be allowed to manage his Administration in the manner which
suits him best.
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I note that the Senate committee report on S. 1721 states
that the definition of the term "special activity," as used in
the bill, "is intended, as written, to reflect and incorporate
existing law and mutually-agreed upon practice." (p. 38) If
this Committee intends to change the accumulated body of mutual
understandings on these very important definitional and juris-
dictional matters, I believe it is important to spell out the
rationale. As Judge Webster noted in his recent testimony before
you, a deviation from the existing practice regarding what
constitutes a special activity could result in Executive branch
agencies having to obtain findings for categories of activities
that do not reauire findings today. I support Judge Webster's
position that the Congress should not change the existing practice
within the Executive branch on which activities are governed by
a Presidential finding.
As Secretary of Defense, I have a particular concern in this
regard that tactical military activities continue to be understood
as distinct from covert intelligence actions. This is not a
question of what the Congress should be told, but rather a question
of which activities should require a Presidential finding. For
example, should a finding be required every time we attempt to
deceive the Soviet Union on the movement of nuclear weapons or
the capabilities of our own military forces? Clearly not,
according to the current definition. In addition, should a
finding be required whenever the CIA lends clandestine support to
an overt military operation by providing communication assistance
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or by convincing local officials to assist in the evacuation of
Americans froma foreign country? Again, clearly not under
current practice. I hope that the members will recognize the
importance of preserving the body of mutually-agreed upon practice
between the branches.
We will not put the mistrust which caused the Iran-Contra affair
behind us until we trust each other again. I urge the Committee
to consider the very real adverse consequences of attempting to
impose a new and inflexible statutory framework on our Presidents
and our intelligence community. Let us instead test each other's
good faith and professionalism, and give responsible officials
in both branches a chance to earn each other's respect by giving
real meaning to the concept of consultation. Not only does such
an approach have the advantage of bringing the best out of our
public servants: it is the way the founding fathers intended the
system to work.
Thank you, Mr. Chairman.
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Mr. McHuGH. Thank you very much, Mr. Secretary.
As I said at the outset, you are very highly regarded here. And
your testimony will certainly be considered very carefully.
Let me just make a few observations on behalf of myself at least,
if not the other authors.
I think it is important to stress that we are not seeking to per-
petuate an adversarial relationship. You're quite right in suggest-
ing that the substance of our government process in many ways de-
pends upon trust and confidence. And no legislation can mandate
that.
So we do agree that whatever our differences in policy terms
may turn out to be, it is important to try to foster, not impede, the
growth of that trust and confidence.
What we're trying to do in terms of this legislation is together
flesh out what is the proper balance in this Constitutional sharing
of powers and this constitutional process, using as we must the ex-
perience that we have gained not only through the Iran-Contra epi-
sode, but in other ways.
I'll get to your Canadian case in just a minute, which I think is a
tough case from the standpoint of those of us who propose this ap-
proach.
Try if you can to put yourself in the position of the Congress of
the United States. We are faced with a real situation in the Iran-
Contra case where the President made what I believe was not just
a management decision, not just an implementing of policy deci-
sion, but basically decided to fundamentally change the policy of
the United States of America with respect to Iran.
Our public policy was, as you know, not to deal with Iran but the
President decided for reasons which I'm sure he sincerely believed
were valid to covertly sell arms to Iran.
I think that was a fundamental policy decision.
The President decided not to tell anyone in the Congress of the
United States of that decision. And, indeed, we didn't learn of it
until a Middle East publication released the news some 10 months
later.
The Justice Department and the administration witnesses gener-
ally have said that the President's action in that case was fully in
conformity with law. The administration has not taken the position
that people violated the law in that set of circumstances.
Indeed, the Justice Department is on record in these hearings
and in the Senate taking the position that the President acted law-
fully.
That means, regardless of what good intentions now may be?
and I don't question for one moment the intentions of people like
you and Director Webster and the National Security Advisor, or
the President himself?that we are faced with a legal opinion
which said that not only this administration, but any administra-
tion can on its own handle withhold fundamental policy decisions
from the Congress of the United States.
And I think that's a major issue for us here in terms of our re-
sponsibilities for oversight.
I think you raised, as you say, a tough question with respect to
the Canadian case, where lives clearly were in jeopardy, and where
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I'm sure none of us, whether we're in the executive or legislative
branches, would want to jeopardize those lives.
What our legislation would do, assuming it fully applies to that
case?and I'm assuming that?would say to the President:
"You should share that very sensitive information with no more
than eight people in the Congress."
You know who those people are. They include the Speaker of the
House, the minority leader, the majority leader of the Senate, the
minority leader there, and the two top people on the Intelligence
Committees.
You said that trust is an important part of our Government. And
I think it's reasonable to suggest that the President can trust these
people even with the most sensitive kind of information.
Now, the argument is made, understandably, that the Canadians
or other governments would say:
"We don't want you to notify the members of Congress because
we're afraid that information might leak."
I think it's incumbent in a case like that for the administration
representative?the CIA or whomever?to say to our Canadian
friends:
"Well, look, we have a somewhat different form of government.
In your parliamentary system, the executive and legislative
branches overlap. In our form of government, we have two sepa-
rate branches who share power. We believe we can trust, and you
can trust these top leadership people, who number only eight.
Therefore, we would urge you in your interest and ours to cooper-
ate with us. This information will be kept secret."
_I think that is a more reasonable position, granted the risks,
granted the sensitivities, than the alternative position which under
current law and current interpretation by the administration says:
"No one in Congress may be told about a fundamental policy de-
cision for many, many months if the Administration in its discre-
tion chooses to withhold that information unilaterally."
Those are the two alternatives we're dealing with. And those of
us in Congress who are concerned with a real live case and a legal
interpretation in the Iran arms sales situation believe that the
legal interpretation which we're faced with can in fact deny us, if
not in this Administration, again, sometime down the road, funda-
mental policy information.
And on balance, we don't think it's too much to ask the Adminis-
tration, even in sensitive cases, to share sensitive information with
these eight leaders, because we have confidence in the? trust that
would be put in those people.
So that's the problem that we face. And it is a common problem
because the last thing we want is a confrontation and an adversar-
ial circumstance.
Therefore, however this may turn out in Congress, if, in fact, the
Senate and the House pass this bill, I would hope that before the
President vetoes it, that he will consider carefully and openly the
responsibilities that we in Congress have and perhaps will not veto
so quickly this type of legislation, which I don't think is very dra-
matic. Indeed, your own Directive, the President's own Directive,
reflects in many ways what we are proposing in this legislation.
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The only difference then is that the law would be permanent as
opposed to a directive which could be unilaterally changed by the
President later on.
So I apologize for going on without really asking you a question.
But I did want to reflect with you on the perspective that many of
us have, taking into account not only the Iran-Contra problem,
which is one tough case, as well as the Canadian-type situation,
which I will concede is a tough situation for us to deal with.
But, given the two alternatives, on balance, many of us believe
that trusting a small group of leaders of the people in Congress is a
better approach than the other alternative, which could again lead
to a situation where no one in Congress for a long period of time
knows anything about fundamental policy decisions.
Secretary CARLUCCI. I would clearly agree with you, Mr. Chair-
man. We can trust the Congress. I'm not arguing that point. I
think one of the more futile exercises that we engage in is a finger-
pointing exercise between the Congress and the executive branch
on who leaks what.
Unfortunately, we have leaks out of both branches. That's not
the issue. And, certainly, we tried to persuade the Canadians that
we could trust the Congress and this would be handled discreetly.
But, other governments make their own judgments.
And if you can't persuade Canadians, who really understand
more about our system of government than most other countries,
how are you doing to persuade countries who don't have a system
of government that anywhere near resembles our system of govern-
ment?
How are you going to persuade dictatorships?
You may need the cooperation of a dictatorship in one of these
operations. And I don't know how many times I had discussions
with cooperating intelligence organizations?western intelligence
organizations?on this very subject. It is next to impossible to con-
vince them of this.
So the issue is not whether we trust you, it is whether we can
persuade other countries in exceptional circumstances that they
ought to put their own national efforts at risk, put their own na-
tional equities in the hands of our Congress; because that's the way
the Canadians looked at it. They saw their embassy, their people as
just as vulnerable as our people.
As far as the question of the President not telling the Congress
of major policy decisions, I would respectfully submit that the pro-
cedure the President has set up in the NSDD, where he has to
commit to writing any time the Congress is not informed, and then
there is an NSC review every 10 days, is sufficient to deal with
this.
There are lively NSC meetings and, as you know, there is consid-
erable controversy even in the administration over a particular un-
dertaking. I doubt whether this President or any President in the
future would want to be here constantly every 10 days to ask mem-
bers what they think about a particular operation.
Anyway, you're forcing them to focus on the details and implica-
tions of this operation on a periodic basis.
I can assure you that the President will reflect seriously on the
relationship with Congress before he vetoes the legislation, but he
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has a responsibility not just to himself. The President has said a
number of times that he does not view himself as the owner of this
office, the Oval Office. He is just a caretaker and he has to think in
terms of his successors. And how he binds his successors in their
relations with Congress is important; the precedent which he sets
for his successors is equally important.
Mr. McHuGH. My time is expired. Thank you, Mr. Secretary.
Mr. Livingston.
Mr. LIVINGSTON. Thank you, Mr. Chairman. And thank you, Mr.
Secretary, for making this appearance on what I believe to be a
very important piece of legislation, if ill-advised.
I share with you?I'm not certain what the intent of the legisla-
tion is either with respect to the President's intent to move nuclear
weapons. So I hope the redactors will make that clear before we
take this thing any further.
Secondly, your testimony is very concise. And I appreciate your
position. I share with you your appraisal of the Canadian Embassy
situation. And, basically, doesn't that, in effect, say that, in today's
complex and dangerous world, it is simply not realistic and work-
able to insist upon prior notification to Congress of all covert ac-
tions, no matter how dangerous or sensitive the circumstances may
be surrounding the operation.
Secretary CARLUCCI. That is my view, Mr. Livingston, yes.
Mr. LIVINGSTON. And the timing of the notice to Congress of
covert action should at least, in some cases, take into account the
risk to human life involved in the operation, should it not?
Secretary CARLUCCI. Yes. And let me only point out that some
covert action and operations, particularly where they're rescue op-
erations, take a long time to set up before the event actually takes
place.
So, if you notify a large number of people irrespective of who
they are, whether they're in the executive branch or the Congress,
while that operation is going on, you run the risk of compromise.
It's axiomatic that the more people who know about an operation,
the more likely chance there is of compromise.
So the actual implementation may be sometime away.
Mr. LIVINGSTON. Taking the third incident, for example, the
bombing or the attack on Libya, obviously, if this legislation were
in force, we wouldn't be talking about notifying Congress as late as
the bombing itself. We'd be talking about notifying members of
Congress weeks, or even months ahead of time, once the President
committed the movement of any personal toward affecting the raid.
Is that right?
Secretary CARLUCCI. That would be correct, but I hope that this
does not apply to military operations. That's under the jurisdiction
of a different committee.
Mr. LIVINGSTON. That's not clear in this legislation.
Secretary CARLUCCI. I would hope that the committee could
make that clear.
Mr. LIVINGSTON. Thank you. I think you've raised some serious
questions. We haven't touched much on the constitutionality of this
legislation, but expect to explore that later on with others.
But I certainly do appreciate your appearance.
Mr. McEwEN. Will the gentleman yield?
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Mr. LIVINGSTON. I'll be happy to yield.
Mr. McEwEN. On that point, even though it was a military oper-
ation, the Libyan raid was a secret operation, was it not?
Secretary CARLUCCI. Oh, yes.
Mr. McEwEN. Did the Presdident brief the Members of Congress
with the express stipulation that it not be discussed publicly? I be-
lieve, in that case, the point that the gentleman has chosen to
raise, that those in attendance chose to hold a press conference on
the driveway of the White House, did they not?
Secretary CARLUCCI. I wasn't in government at the time, so I'm
not an authoritative person to answer that.
Mr. McEwEN. Well, the answer is yes. The answer is that they
did, at the pleading of the President that lives were at risk and the
operation, that they were going to be flying at night, and a situa-
tion in which they would be vulnerable and could they please, in
the interest of peace and in the interest of American lives, hold
their fire for a matter of hours.
That proved to be too strong a request for them to accommodate.
And I think that it's very appropriate for the gentleman from Lou-
isiana to raise it.
Thank you.
Mr. LIVINGSTON. Thank you. I yield back my time.
Mr. McHuGH. We don't have time to get into this issue that Mr.
McEwen has raised, at least I don't. I think he's incorrect.
I would refer Mr. McEwen and others to the statement that Sen-
ator Inouye made during the Iran-Contra hearings in which I
thought he rather forcefully and convincingly demonstrated that it
was not the Senators or anyone in Congress who released that in-
formation. Indeed, Colonel North himself may well have been the
source of this information.
Mr. McEwEN. If the gentleman would yield on that point.
Mr. McHum'. I won't yield because we do have a very short
amount of time.
Mr. McEwEN. I admit that's right.
Mr. McHuGN. The Secretary has to leave at 2:15. I'll be happy to
take the gentleman on another time on this.
Mr. Stokes.
Chairman STOKES. Thank you very much, Mr. Chairman.
Mr. Secretary, let me express my appreciation for your appear-
ance here today. I guess one of my concerns would be your men-
tioning the new NSDD that has been signed by the President as
being evidence of the fact that a statute is unnecessary.
I have some very real concerns about that because, as a member
of the Iran-Contra Committee, we learned that there was in exist-
ence what was known as NSDD No. 59. I'm sure you're familiar
with that. It was in existence at the time of the Iran-Contra situa-
tion.
That NSDD, which had been signed by the President, required
that all findings be in writing, and further required that there be
notification to the Congress of all findings.
It further required that the NSC and its members make all rec-
ommendations related to covert findings to the President, and that
they be kept fully informed.
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The President never took the action to repeal NSDD No. 59. He
just ignored his own NSDD.
So, when you say to us that you now have issued a new NSDD,
what is there that would be different now with this NSDD from
NSDD No. 59, which can be totally ignored by the President, since
he is the one who initiates it. It has no validity of law.
Secretary CARLUCCI. I don't think there's anything in NSDD 59
that circumscribes the President's consitutional authority to deter-
mine what "in a timely fashion" means.
It does not require him to inform Congress of every event within
a fixed time frame. So, within the confines of NSDD 59, he had the
flexibility not to inform the Congress.
Now, the President himself, and he said this many times, was
not fully informed of the facts in the Iran-Contra Affair. That's
why the Iran-Contra report said that it was a failure of individuals
rather than laws.
So, if an NSDD can be disregarded, so can a law be disregarded
for that matter.
I don't want to prejudge what the Special Prosecutor might do.
I'm not trying to try people up here in this forum. I'm just citing
the Congress' own report.
Chairman STOKES. I guess one of our major concerns is in the
same way at page two of your statement you make reference to the
Iran-Contra report. You say that it was right when it says, "In a
system of shared powers, decision-making requires mutual respect
between the branches of government," and so forth.
But, also in that report at chapter 28 under Recommendations,
we said:
Congress cannot legislate good judgment, honesty or fidelity to law, but there are
some changes in law, particularly relating to oversight of covert operations that
would make our processes function better in the future. And they are set forth
below.
One of the first things that was set forth are Findings and
Timely Notice. I'm really concerned over how we are in any way
taking away any powers from the President when we simply say to
the President:
You can make whatever finding you want to make, exercising your powers as
President of the United States. It is just that you must notify the Congress within
48 hours.
And we're saying that to the President because under the cur-
rent law he had the right to make any decision he wanted to make,
it was just that the law said, if he opted for that particular option
not to notify the intelligence committees, not to notify the gang of
eight, that he must then give timely notice to the Congress, which,
in this case, was not done.
So we say that, in its stead, in the stead of the timely notice, he
must notify the Congress within 48 hours.
How do we take away from the President's power in that re-
spect?
Secretary CARLUCCI. The Justice Department can better make a
constitutional argument that I can, Chairman Stokes. I'm not a
lawyer. But there is sigmficant difference between "in a timely
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fashion", leaving that to the President's determination, and a fixed
time requirement.
The latter clearly circumscribes the President's authority and
flexibility to conduct foreign policy. As I say, I'm not equipped to
make the legal argument.
Chairman STOKES. Thank you very much.
Thank you, Mr. Chairman.
Mr. McHuGH. Thank you, Mr. Stokes.
Mr. Shuster.
Mr. SHUSTER. Thank you very much, Mr. Chairman.
Mr. Secretary, we certainly appreciate your being here today. It
seems to me that a very important point, and I appreciate your
agreement or disagreement on this, that hasn't been made yet is
that the President has paid an enormous price for not infoming the
Congress of a covert action, which I think Republicans and Demo-
crats, liberals and conservatives alike can agree was a very, very
bad policy.
? On the other hand, for President Carter, there's no outcry at all
for the Congress not having been informed on the Canadian oper-
ation because that's understandable. That's reasonable.
Yet, we lump both the reasonable and the unreasonable together.
We catch them all in this dragnet, in this straitjacket. It's akin to
the farmer going out on the south 40 with a blunderbuss to shoot a
skunk, and he hits his prize bull in the process.
And that's what we're doing here.
Would you agree or disagree?
Secretary CARLUCCI. I would agree, Mr. Shuster. As you say, I
worked on a daily basis with the President during the post-Iran-
Contra Affair period. And while he suffered publicly, I can tell you
that he suffered much more in private. He would agonize over this
problem day after day and wonder why he wasn't fully informed by
his own staff.
He was very frustrated by the process. So, yes, he suffered. But,
may I also point to a certain irony here. And I don't want to open
another debate, but I mention the analogy between what this legis-
lation might do to relations between the executive and congression-
al branch and what the War Powers Act has done.
It's perpetuated a constitutional debate. The War Powers Act,
had the administration subscribed totally to it, might well have
prevented us from doing what we are doing in the Persian Gulf,
which has restored our credibility in the region to an amazing
degree.
I have been out there and I've seen how our relationships with
the moderate Arab States have improved markedly as a result of
what we have done in that area.
So it was a mistake, yes.
Mr. SHUSTER. Is it reasonable to say that, absent any law, as a
result of the terrible price this administration has paid, any future
President is going to think an awfully long time about the justifica-
tion and the reasonableness of withholding information from the
Congress?
Secretary CARLUCCI. I think that is clearly the case. And as I said
in my earlier remarks, we have to allow the President s-o-iife-mana-
gerial flexibility.
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Mr. SHUSTER. He will at least have the capability to withhold in-
formation if he can justify having done so to save American lives.
Secretary CARLUCCI. Absolutely. And he needs to have that capa-
bility. The Canadian case is one case, but I can think of any
number of cases that could come up where the choices would be ag-
onizing.
Most cases, I am sure that the President would opt in favor of
?informing the Congress. The bias is clearly in that direction. The
track record is good. The oversight method is important and there
is an atmosphere of trust evolving.
So I think future Presidents would choose to work cooperatively
with the Congress.
Mr. SHUSTER. Thank you.
Mr. McHuGH. Mr. Kastenmeier.
Mr. KASTENMEIER. Thank you, Mr. Chairman.
Secretary Carlucci, following up on Chairman Stokes' questions
about the issuance of national-security decision directives, ordinari-
ly those directives are for internal use only and they're classified.
Secretary CARLUCCI. That's correct. It's correct that they are
briefed in the appropriate oversight committees, certainly.
Mr. KASTENMEIER. They are?
Secretary CARLUCCI. Yes. We have briefed the appropriate over-
sight committees on NSDD's. We do not make them available en
masse to any committee. But, in appropriate oversight committees,
they are briefed.
Mr. KASTENMEIER. That is to say each time?
Secretary CARLUCCI. Not as a routine matter. But where some-
thing is germane to the oversight committee, the executive branch
does brief them.
Mr. KASTENMEIER. And it does so routinely? That is to say, each
and every directive?
Secretary CARLUCCI. I don't want to say that, no. There are direc-
tives. There are clearly directives that are not briefed. There are
some that pertain only to the executive branch. But, as I say,
where they're germane to the oversight process, they are briefed.
Mr. KASTENMEIER. With respect obviously to the one that you're
referring to, when you, in fact, were the National Security Advisor,
you did, in fact, of course, brief the Congress. And perhaps?and
I'm not sure about this?perhaps you also, the White House made
public the fact that it had voluntarily, through a new National Se-
curity Decision Directive, imposed?altered the guidelines for itself
with respect to notification to Congress.
I think that was publicly shared.
Secretary CARLUCCI. It was publicly shared. But we did more
than brief the Congress. We invited the Congress down to work
with us. The Senate Committee accepted our invitation and we
worked almost on a daily basis with them to develop the NSDD.
So they were fully aware of our rules as we went through them.
Mr. KASTENMEIER. I don't think that maybe applies to the House
Committee.
Secretary. CARLUCCI. The House Committee, I think your Chair-
man attended one meeting, if I'm not mistaken. But the House
Committee chose to wait until the directive was finished. That was
clearly their option.
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The Senate Committee chose to work with us on a daily basis.
Mr. KASTENMEIER. Of course those National Security Decision Di-
rectives are mutable. That is to say, they can be changed by the
President, amended, reissued at his discretion. He may or may not
share those with the Congress.
That seems to me, I guess, the point of this. It places these direc-
tives in a different class in terms of what they achieve as opposed
to a statute.
Secretary CARLUCCI. That's correct.
Mr. KASTENMEIER. Ten months from now, for example, we'll have
a new administration. This is also a question to which you don't
necessarily know the answer.
I assume a new President does not start with the old President's
directive, will have to reissue, reexamine and reissue National Se-
curity Decision Directives?
Secretary CARLL/CCI. That's his option. Most Presidents would
review them and make a statement that they stand until he de-
cides otherwise. I think it would be pretty difficult to revoke
them?I think he would revoke them on a daily basis.
Mr. KASTENMEIER. This is something he's not required by law to
reveal what he does in that connection to the Congress?
Secretary CARLUCCI. That's correct.
Mr. KASTENMEIER. So we still may have what you regard as
trust. But the fact is that the Congress doesn't necessarily play a
role with respect to those. And if a new President or this President
alters those directives without informing the Congress, indeed, he
may do so. And even what you've attempted, I think very appropri-
ately, to do, to work at least with some of the Intelligence Commit-
tees and to make public the changes you recommended.
And I think they were salutary insofar as they went. Nonethe-
less, that is something which is also subject to change.
Secretary CARLUCCI. That is correct.
Mr. KASTENMEIER. It is for this reason that I join with the chair-
man in suggesting that there is a reason why a permanent statute
with respect to these rules is important and why the President's
exercise of discretion with respect to issuing National Security De-
cision Directives from time to time, and possibly amending it, and
possibly not revealing it to anyone outside the executive branch is
not an adequate procedure for our purposes.
Secretary CARLUCCI. Mr. Kastenmeier, if a future President sets
out deliberately to deceive the Congress, I submit that no amount
of statutes can stop him. A President that was going to think twice
before doing that?and most Presidents come in wanting to develop
a good relationship with Congress, developing that atmosphere of
trust?now having seen this event, as was pointed out, having
looked at an executive order which makes sense, I would be very
surprised if some President would come in and throw it out and
say,"No, no, I'm going to play games with the Congress," or "I
don't want to tell the Congress anything."
Presidents look at the history of what has happened. They look
at the relationships with the Congress. They have to get their pro-
grams through the Congress.
So I submit that Presidents don't come in with the kind of
narrow focus that is implied.
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Mr. KASTENMEIER. I agree that that would not be the original in-
tention of such a President. I think they would find it necessary by
events to justify, not necessarily a deception so much as secrecy.
Silence.
I think we've seen it too often in the past.
Secretary CARLUCCI. Secrecy is an important ingredient of our
national security apparatus. But that is what is so good about a
Select Committee on Intelligence. You have upgraded your security
requirements enormously in the past couple of years.
Presidents, by and large, are coming to trust your security. So
that's not what really is at issue.
There are two things at issue. The constitutional question, which
would provoke endless haggling over this issue, which puts you in a
War Powers Act kind of situation; and the very exceptional event,
such as the one we discussed with the Canadian Embassy rescue
operation.
Mr. KASTENMEIER. Thank you, MT. Chairman.
Mr. McHum'. Thank you.
Mr. Secretary, we have two more members to take questions.
Can you bear with us for a moment?
Secretary CARLUCCI. Certainly.
Mr. McHuGH. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman.
I gather from the discussion that has gone on that, in the Cana-
dian situation, the President was left with about three options?
break the law, go ahead and do it and save the lives, or tell Canada
no can do, tough luck; or lie to the Canadians and follow our law.
But you just couldn't do it. So we really haven't solved that prob-
lem. What we have here is a constitutional issue. This is one strug-
gle, one battle in the ongoing war between an Imperial Congress
and an Imperial Presidency, both struggling for the primary power
in foreign policy.
And so the President really has very little choice if this thing is
unconstitutional. He really can't sign it, as much as he might want
to to get along and stroke some fur.
Secretary CARLUCCI. That's right.
Mr. HYDE. If you will forgive my imposition, I'm going to read to
you on the Constitution from a letter from an attorney, a constitu-
tional scholar, Robert F. Turner, of the University of Virginia, on
this very point. He says something interesting. He says:
Aside from rather sloppy scholarship and even some indication of possible dishon-
esty, a major shortcoming of the majority Iran-Contra Committees report was its
emphasis on "Foreign Policy as a Shared Power."
Now, when he talks about dishonesty, it's worth reading the foot-
note:
For example, on page 415 of the Majority Report, a reference to the President
having authority under the Constitution was mysteriously omitted from within a
quotation of the statute without ellipses being inserted to indicate the omission.
Since the dropped words would if present significantly undercut the point being
argued by the Report, if this was simply a "clerical error", it was an especially con-
venient one.
But, in any event, since you've used the term "shared powers",
and since the Iran-Contra Majority?not the Minority, I hasten to
add?used the term "foreign policy as a shared power", I think it's
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worth just taking a brief look at Mr. Turner's comments On that
issue. He continues:
Certainly it is true that both the President and the Congress have constitutional
powers that affect foreign affairs. The President is given the bulk of those "execu-
tive" powers through article II, section 1, and these are amplified by the enumera-
tion of other powers, such as that of commander in chief. But, the Senate is given a
veto over the ratification of treaties, and the full Congress is given a veto over the
decision to launch a war against another State. Article I, section 8, also vests other
important powers with foreign affairs implications in the Congress. But the sugges-
tion that these are "shared" powers?while in some respects not technically inaccu-
rate?invites imprecise analysis. To conclude that, because both the President and
the Senate have a role in the treaty-making process, it is Constitutionally permissi-
ble for the Senate to assume the negotiation function or to transmit an approved
agreement to the United Nations, is simply wrong. It would be akin to saying that,
since both the President and the Senate have a role in the appointment?process, the
Senate could assume the function of nominating Cabinet officials and then appoint-
ing them over the President's objection.
A far more precise analysis, in both instances, is to recognize that the President,
the Senate, and the Congress each have certain specific powers which influence
United States relations with the external world.
In this regard, however, it is important to recognize that the constitutional grant
of "executive power" to the President in article II, section 1, was in broad terms,
conditioned only by specific constitutional grants to the Senate or Congress and the
rights guaranteed to the people; while the grant to Congress in article I, section 1,
was limited to, and I quote, "'(6) [41 legislative powers herein granted'."
That's important: "Herein granted."
As Jefferson, Hamilton, and Madison observed, the exceptions to the executive
power that were vested in the Senate and Congress were intended to be construed
strictly. Since the powers vested in the President by the Constitution may not be
taken away by simple statute, a statute which pretends to compel the President to
provide national security information to the Congress would not be a part of the
Supreme Law of the Land.
And why is that important?
Because the Constitution says, quote:
This Constitution and the laws of the United States which shall be made in pursu-
ance thereof and all treaties made, et cetera, shall be the Supreme Law of the Land.
Since the President is required by the Constitution to take an oath to preserve, pro-
tect and defend the Constitution of the United States, and since the Constitution is
the preeminent law that the President is required by the Constitution to "take
care" that it be faithfully executed, even a cooperative President would not have the
legal option of acquiescing in such an unconstitutional procedure.
Now we're talking about the law, the constitutional authority,
not the policy. Policy is another matter entirely. Presidents can
waive these things. They can act differently. I couldn't agree more
that as a policy comity is required. We'd better not just notify, we'd
better consult, get some input, take Congress in as a partner, as a
matter of comity and common sense and policy.
But not as a matter of constitutional law.
Now, what's going to happen?
And I'm nearly through, Mr. Chairman, but this is important.
This bill is going to pass like it sailed through the Senate. The
President is going to veto it. We'll have a big constitutional debate.
He may or may not be overridden, depending upon how the rail-
road is going. And I don't know how we'd get a court case on these
things, except the President has to break the law, has to engage in
a covert activity?deliberately break the law and get excoriated
and impeached and everything else, to get a court decision.
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But, finally, we'll get a court to decide that Congress just can't
overreach. It just can't tell the President how he must exercise his
executive authority given him without limit by the Constitution.
And we give him, we not only tell him he's got to tell us, but
within 48 hours. That's a problem. And I don't see any way around
it.
And I am somewhat relieved to have had the opportunity to at
least state it.
Thank you.
Secretary CARLUCCI. Mr. Hyde, I hope I didn't say that the for-
eign policy is a shared responsibility. If I did, I stand corrected.
Mr. HYDE. You quoted from the Iran-Contra report, which made
that mistake, in my judgment.
Secretary CARLUCCI. That's not directly attributed to me. I appre-
ciate that because I quite agree, we have different constitutional
roles.
You're exactly right in what is going to happen, at least in my
view. And in the War Powers case, we've been unable to get any
standing, to find anybody to get standing to bring the issue to a
head in the courts.
I suspect we'll have the same problem here if this law is passed.
So it will go on and on and on.
Mr. HYDE. Or take these things because they're political ques-
tions in their judgment and they'd like not to be involved.
Secretary CARLUCCI. That's what one Judge has said on the War
Powers Act. Look at the haggling we had over our Persian Gulf
policy on this issue. We went through agony, not so much on the
House side, but on the Senate side. And we'll go through the same
kind of agony on this.
MT. HYDE. Exactly.
Mr. McHuGH. Mr. McEwen.
Mr. McEwEN. Thank you, Mr. Chairman. I think my point's al-
ready been made. Thank you.
Mr. McHuGH. Thank you, Mr. Secretary, not only for being with
us, but for your patience in extending your time.
Secretary CARLUCCI. I appreciate the opportunity, Mr. Chairman.
Thank you very much.
[Pause.]
Mr. McHuGH. We welcome our witnesses. As I understand from
staff, and as I observe, we're going to have, in effect, a panel of dis-
tinguished witnesses. And I appreciate you gentlemen being here
for that purpose.
Our first witness will be Gen. Brent Scowcroft, who has had a
very distinguished career in the U.S. Air Force. Before he joined
other parts of our executive branch, he rose to the rank of lieuten-
ant general in the Air Force. He also served most notably here as
National Security Adviser under President Ford.
He's currently vice president of Kissinger Associates.
Our second witness, following General Scowcroft, will be George
A. Carver, Jr. He is the John M. Olin Senior Fellow at The Center
for Strategic and International Studies here in Washington.
Dr. Carver retired from the Central Intelligence Agency in 1979
after a 26-year career in which he served in several overseas posts
as an Operations Officer.
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From 1966 to 1973, he held the position of Special Assistant to
the Director of Central Intelligence for Vietnamese Affairs.
From 1973 to 1976, he served as Deputy DCI for National Intelli-
gence.
Our third witness will be Dr. Gregory Treverton, currently a
Senior Fellow at the Council on Foreign Relations. He previously
served for 6 years on the faculty of the John F. Kennedy Center for
Government at Harvard, and also has served on the staffs of the
National Security Council and the Church committee.
He's recently authored a book called "Covert Action?Limits of
Intervention in the Postwar World."
We're delighted to have you, gentlemen.
STATEMENT OF LT. GEN. BRENT SCOWCROFT, USAF (RETIRED),
NATIONAL SECURITY ADVISER TO PRESIDENT FORD
Lieutenant General ScowcRorr. Thank you, Mr. Chairman. It's a
pleasure to be here to comment on this important legislation. I
have submitted a statement which speaks for itself. Unless you
prefer, I see no reason to read it, or even to summarize it at length.
Mr. McHuGH. We will be happy to include it fully in the record,
General, if you would like to make some comments.
Lieutenant General ScowcRoFr. Let me just make two very gen-
eral introductory comments, Mr. Chairman.
The first one is I believe it very important not to let the Iran-
Contra Affair color the entirety of the intelligence relationship be-
tween the Intelligence Committee and between the Congress and
the executive branch.
The Iran-Contra Affair was a serious mistake. It was a mistake
for which the President paid a very high political price. There are
lessons in that affair, not only for the President and future Presi-
dents, but for all his National Security associates.
Those lessons, it seems to me, are far more effective than at-
tempts to tie the President down with a variety of small ropes so
he's unable to commit error.
I think, as Secretary Carlucci so eloquently said, our system can
work effectively only on the basis of mutual trust and cooperation.
It was not designed by the founders necessarily to work efficiently,
but to protect the rights of the individual against an overweaning
government. It does that very well.
But we have to fill the gaps between the branches with coopera-
tion and mutual trust if we're to turn our system into an effective
system. It is my judgment that, since the time I was in the White
House, cooperation on intelligence matters between the Intelli-
gence Committees and the executive branch is really proceeding
very, very well.
Indeed, I would suspect that access to material for you all is
probably more efficient than it is for the White House on a day to
day basis.
The second point I would make is that I think it is very impor-
tant to preserve the capability for covert action by the U.S. Gov-
ernment, even though it is a very difficult thing to conduct effec-
tively in the present climate.
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There are two things we have learned about covert action result-
ing from the Iran-Contra Affair which should have been apparent
before, but certainly are the case at the present time.
The first one is that covert action should never be used counter
to public foreign policy, to go in contradiction to it. That is a mis-
take in every sense of the word. And I think that the one who real-
izes it now more than anyone else is the President of the United
States. And I hope, every Presidential candidate.
The second one is that, in this day and age, covert action is very
difficult to conduct if it does not represent a general consensus
within the body politic, within the Congress and the executive
branch.
I would point out the difference between covert action in Central
America and covert action in Afghanistan. Covert action in Af-
ghanistan has gone flawlessly?no leaks, no problems, no contro-
versy?because it has been generally accepted that it's a worth-
while thing for the United States to do.
In Central America, it's been quite the opposite because there is
no agreement on what the underlying policy ought to be.
The executive branch has to be conscious of those practical limi-
tations now in our present climate about the use of covert action.
But, if we are to preserve covert action, and I think it vitally im-
portant that we preserve that ability, then we want not only to be
able to use it effectively, but to have the people involved in con-
ducting it confident that they are being provided all the protection
that the U.S. Government can give them.
I think that this legislation does not serve us well on either of
those points.
Thank you.
[The complete statement follows:]
STATEMENT OF BRENT SCOWCROFT ON H.R. 3822
I have been asked to comment on H.R. 3822, dealing with Congressional oversight
of intelligence activities. I am happy to do so. You have already received copious
comments on every aspect of the bill, so I will be brief and to the point.
The principal thrust of this bill, to tighten the requirements for notification of
covert action, is an understandable reaction to Congressional frustrations arising
from the Iran-Contra affair. But while the reaction is understandable, I do not be-
lieve it is wise.
The whole subject of intelligence activities is a particularly difficult part of the
generally troublesome issue of executive-legislative cooperation on the formulation
and conduct of U.S. foreign policy. The conflict between the need for consultation
and the requirement for secrecy to ensure an effective intelligence system is not
easily reconciled. The problem becomes especially acute over the matter of covert
action.
Covert action, in my opinion, is a valuable instrument of foreign policy, one which
it is important for the country to have available for certain highly selective situa-
tions and circumstances. But I want to underscore that covert action is a tool of
policy. It should not?it must not?become the policy itself. That said, it is impor-
tant to recognize that, as an instrument, covert action can be useful only to the
degree that it remains secret. The Executive Branch deals with the extraordinary
requirements for secrecy in handling covert actions through the device of "need to
know." In its simplest terms, that phrase means that no one is entitled, solely by
virtue of his position, to be informed on any particular intelligence activity. With
respect to the Intelligence Committees of the Congress, the device of "need to know"
is not so easily administered.
The Constitutional scholar Edwin Corwin has said that in the area of foreign
policy, the Constitution is an invitation to struggle between the Executive and the
Congress. But however the respective roles may be defined at any particular histori-
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cal period, it is generally conceded at present by the Executive Branch that the Con-
gress has a role to play with respect to the formulation of foreign policy and to over-
sight of the execution of those policies, including the employment of covert actions.
The question with respect to application of the "need to know" principle in these
circumstances is what precisely does the Congress need to know and when, in order
to be able to exercise its responsibilities. The proposed bill, in my judgment, takes a
rigid view of those needs, with insufficient regard to the principle of "need to know"
and the requirement for secrecy.
While there are several troubling elements in H.R. 3822, my principal concern is
the requirement in Section 503 which mandates notification of covert action "in no
event later than forty-eight hours after the special activity has been authorized."
This requirement could in some rare circumstances pose unacceptable risks to the
conduct of a covert action. There could be cases where Presidential authorization
might be required considerably in advance of the execution of the activity in order
that adequate preparatory measures could be taken. Notification upon authorization
could risk exposure of the project and put the lives of Americans or others assisting
the country in jeopardy.
This clause is designed to close the "loophole" in current law which permitted the
President to avoid notification of the Iranian arms shipments for many months.
Concern over this particular event is understandable and warranted, but the exces-
sively restrictive language proposed seems a case of throwing out the baby with the
bath. It is not possible to eliminate every opportunity for abuse by the Executive
without at the same time paralyzing the ability to act.
The rigid notification requirement apparently stems from the belief that if the In-
telligence Committees had been notified of the Iranian arms proposals, the members
would have reacted negatively and the President would on that account not have
proceeded with his plans. There is no evidence to support this assumption. Indeed,
as it was, the President was confronted, by his principal advisors, with views strong-
ly in opposition to the Iranian arms sales.
Another operation having the unique characteristics of the Iranian arms for hos-
tages affair is not likely. In the Iranian case, every senior U.S. official involved
made serious mistakes. That, I think we can be confident, will remain a rare phe-
nomenon. The cause of this particular foreign policy failure must be attributed to
people, not process. In addition, and even more important, the Iranian affair is cer-
tain to be a graphic object lesson for future Administrations. The political costs to
the President of the Iran/Contra affair have been severe. The President has been
demonstrated to be accountable, in the most real sense, for the actions of the Execu-
tive Branch and, very directly, for the NSC and its staff. If there is a political mes-
sage in this unfortunate matter it is that the President, in his own interest, ought to
seek consultation with appropriate elements of the Congress, especially where im-
portant policy issues are at stake, He simply cannot go it alone, not over the longer
run, on issues of significance.
Problems of governance, in our system of shared powers, cannot effectively be re-
solved by each branch pressing its extreme position. If the system is to avoid paraly-
sis and to perform well in the interests of the American people, it can only be
through a cooperative, not a confrontational, approach, While the Constitution may
be an invitation to struggle over foreign policy, we do not have to accept that invita-
tion. We can instead try comity.
There are great lessons in the Iran/Contra mess, beyond the political costs of
trying to bypass the Congress. Many of them, for the Executive Branch, were set out
in the Tower Board report. Additionally, it should be clear that covert action should
be undertaken only in support of our foreign policies, not in contradiction to them.
In the Iranian case, in particular, the exception to policy had the practical effect,
albeit unintended, of undermining seriously the strongly supported public policy.
We may also have to recognize, regrettably, that in the present climate covert
action should be undertaken only when there is broad consensus on the underlying
policy it is designed to promote. That is unfortunate, because covert action can fre-
quently be most useful when problems are incipient, when modest efforts can be
more effective than the massive involvement which may subsequently be required if
issues are allowed to fester until their implications become apparent to all and
there is a consensus on action.
But while there are many lessons for the Executive?most if not all of which are
recognized and being dealt with by the President?the Congress has responsibilities
as well. Leaks, for example, which are at the heart of this issue, are a shared prob-
lem. It is even possible that the situation may be worse in the Executive Branch
than on Capitol Hill. However, justified or not, a President understandably is reluc-
tant to share fully the most secret of matters with people some of whom may have
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sharp policy differences with him and over whom he can exercise no authority or
discipline whatever, Congress must accept some responsibility for the satisfactory
resolution of these matters. It should accept that it is an integral part of the proc-
ess, not simply a judge and jury of the mistakes it perceives being made by the Ex-
ecutive Branch.
The Tower Board recommended against legislation to deal with the problems re-
vealed in the Iran/Contra affair. I support that recommendation. In my opinion,
H.R. 3822 is a step toward paralysis, not effective Government.
Mr. McHuGH. Thank you very much, General.
We'll now hear from Dr. Carver.
STATEMENT OF DR. GEORGE A. CARVER, JR, OLIN SENIOR
FELLOW AT THE CENTER FOR STRATEGIC AND INTERNATION-
AL STUDIES
Dr. CARVER. Mr. Chairman, esteemed members, I'm honored by
your invitation to be here today to comment not only on the specif-
ic bill you are considering, but also on the larger issues addressed
in that legislation.
These larger issues impinge directly on our Nation's security and
even its chances of survival in this strife-ridden and now thermo-
nuclear world.
As we all know, it is not easy for an open democracy, such as
ours, to have the kind of effective intelligence structure our nation
needs, one that is capable of protecting our democratic freedoms,
but does not curtail, or even worse, subvert them.
These are issues to which I devoted the first 26 years of my pro-
fessional life, and in which, as a citizen, I have an abiding interest.
It is a pleasure as well as a privilege to discuss them with this
Subcommittee I feel confident that, as fellow citizens, we have
common goals and objectives, for the issues here involved tran-
scend personal, political, parochial or partisan considerations.
Our differences and your differences among yourselves will be
over the optimum means of achieving these common goals, and the
best way of resolving the complex, thorny questions these issues, in
a democracy, inevitably pose.
The matters addressed in H.R. 3822 are of enormous importance,
as well as complexity. The time you have available in this hearing
for considering them, particularly the time you can allocate to any
single witness, is necessarily constrained.
I have had separately submitted in writing for the record and for
your consideration at your convenience my detailed comments on
H.R. 3822 and the issues with which it deals.
I would ask, Mr. Chairman, that you enter that full submission
with the record.
Mr. McHuGH. Without objection, certainly.
Mr. LIVINGSTON. Excuse me, Dr. Carver, if I can interrupt. I just
want to make sure that General Scowcroft and Dr. Treverton's
statements likewise get in the record, as well as Professor Rostow's.
Mr. McHuGH. That's been taken care of.
Go ahead, Doctor.
Dr. CARVER. In this orally presented summary, I will draw on
that full submission to highlight some points to which I particular-
ly want to direct your attention.
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But, Mr. Chairman, here I must ask your guidance. I timed my
summary this morning and it takes me 21 minutes. I can cut it
short if you would prefer.
Mr. McHum'. I would prefer that you do so. [Laughter.]
Dr. CARVER. I will skip a great deal, but I would like to turn to
one of the conditions that are imposed on the finding. That is the
fourth condition in section 503(a)(4) because that involves some
things that I think we ought to be willing to take about 8 minutes
to discuss.
Mr. McHum'. Go right ahead.
Dr. CARVER. This fourth condition is that "each finding shall
specify whether it is contemplated that any third party which is
not an element of or a contractor or contract agent of, the U.S.
Government, or is not otherwise the subject to the U.S. Govern-
ment policies and regulations, will be used to fund or otherwise
participate in any significant way in the special activity concerned,
or be used to undertake the special activity concerned on behalf of
the United States."
As_do the other conditions, this one has a clear, eminently under-
standable Iran-Contra inspiration; but, no matter how reasonable
and defensible this condition's intent may be, its language contains
the potential for more problems, of greater severity, than those en-
gendered by all of the other conditions combined.
As it stands, this fourth condition's language can be construed as
being either trivial or as being extraordinarily dangerous, pn secu-
rity grounds.
Virtually no foreign intelligence operation, certainly no covert
action operation or "special activity," can be successfully conducted
without the cooperation and utilization of foreigners?including in-
dividuals, entities or organizations, such as intelligence services,
governments, or some combination of any or all of these.
No sensible U.S. intelligence officer or service could plan a "spe-
cial activity" without, at a minimum, "contemplating" that one or
more foreign individuals, organizations, services, or governments
might be used "to fund or otherwise participate", in some signifi-
cant way, "in the special activity concerned on behalf of the United
'States".
In this whole matter, indeed, H.R. 3822 attempts to draw a dis-
tinction which may sound very simple, neat and tidy in a proposed
statute, but which in the real world is very difficult to draw, and
often does not exist.
In the actual conduct of intelligence activities abroad, the cooper-
ating institutional and individual assets?agents if you will?used
in special activities, and those used in normal, albeit sensitive, in-
telligence collection activities are often the same?the same institu-
tions, the same organizations, and the same people.
Given the real world's exigencies and complexities, consequently
there is often no way you can meaningfully distinguish?for pur-
poses of reporting to Congress?between foreign institutions and in-
dividuals who assist in the conduct of "special activities" and those
who assist in the conduct of intelligence activities in general.
This is significant, Mr. Chairman, because there was one point
that I made in my opening remarks that I would like to direct your
attention to, and skipped in my summary abridgement.
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Covert action is an important intelligence community and, specif-
ically, CIA responsibility, but it is an ancillary one. Extreme care
should be taken to ensure that any "fixing" you do of covert action
does not unintentionally hamper the agency's and the intelligence -
community's ability to perform their primary mission, for example,
by putting sensitive intelligence sources at risk.
This is particularly important when arms limitation treaties, es-
pecially ones involving strategic arms, are being considered and ne-
gotiated, for our compliance monitoring capabilities in this critical
sphere hinge on the U.S. intelligence community's overall effective-
ness.'
Now, back to proposed subsection 503(a)(4). If this fourth condi-
tion is construed as requiring only a general statement, than it is
virtually meaningless; for if so construed, it can be satisfied by a
standard, boilerplate sentence mechanically incorporated in every
finding and saying something along the lines of "The special activi-
ty herein described of course contemplates the use and participa-
tion of one or more non-U.S. individuals, persons, organizations, or
entities."
If subsection (4) is supposed to mean more than that, however,
particularly if it is intended to require giving some specific indica-
tion of what types of non-U.S. Government "third parties" will be
participating, and in what ways, in the special activity covered by
a particular finding, then that condition lays down a security mine-
field impossible to traverse unscathed.
The language of the final sentence of H.R. 3822's proposed sub-
section 503(e) could easily be read as supporting a broad construc-
tion of this fourth condition of subsection 503(a). That sentence
says, in language evoking Gertrude Stein:
A request by any agency or department of the United States to a foreign country
or private citizen to conduct a special activity on behalf of the United States shall
be deemed to be a special activity.
If H.R. 3822 is enacted, as currently drafted, this sentence could
easily be construed as meaning that the Executive Branch is re-
quired to write and submit a separate finding on each and every
request to a foreign government and each and every recruitment
pitch to a foreign national for assistance in a U.S. covert action op-
eration.
Should proposed section 503(a)(4) ever be given this type of broad
construction, now or in the future, satisfying its requirements
would inevitably involve security risks so grave that no prudent
U.S. President, administration, or Director of Central Intelli-
gence?not to mention foreign individual, entity, or government?
would want to run them.
In this context, harking back to an example that has been dis-
cussed before, please remember that less than one year ago, on
April 8, 1987?in testifying before the full House oversight commit-
tee?Representative Mineta, a staunch proponent of strict congres-
sional intelligence oversight, confirmed and acknowledged, as we
have discussed, that the Canadian Government did not want its
1980 role in hiding, protecting, and safely exfiltrating American
hostages from Iran to be reported to Congress by President Carter,
at least while the operation was in train.
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I know from my own experience as Chairman of the U.S. Intelli-
gence Coordinating Committee in Germany, from 1976 to 1979, how
skittish my West German, Israeli, and other friendly foreign serv-
ice counterparts were about sharing sensitive information, especial-
ly operational information, on common concerns and targets?such
as terrorism?because of their worries about how such information,
after I reported it, would be handled back in Washington, particu-
larly if it was passed to Congress.
The strong, almost universal perception of my foreign counter-
parts was that in the United States, we were manifestly incapable
of protecting even our own secrets; hence, we could hardly be relied
on to protect theirs.
We may consider such foreign perceptions unwarranted and inac-
curate, but their widespread existence and their force are facts
that American intelligence professionals cannot ignore or brush
aside when planning operations?of any nature?in which coopera-
tive foreign participation is essential.
Such foreign perceptions and concerns would be inflamed and ex-
ponentially increased if H.R. 3822's proposed subsection 503(aX4)
should ever be enacted into law and then broadly construed.
Should it ever come to be widely believed abroad that U.S. law
required?or even if there was a serious risk that U.S. law might
require?the identification in a written document, of which at least
two copies would be sent to Congress, of all non-U.S. individuals
and entities, including governments, cooperatively participating in
any U.S. special activity, our pool of essential foreign assistance
and support would swiftly. evaporate. The extent and speed of that
pool's evaporation, furthermore, would be increased by the fact
that few foreigners would note and even fewer would pay attention
to any American legal distinctions between special activities and
other intelligence activities.
In this sphere, foreign perceptions and beliefs, not our assess-
ment of their accuracy and validity, would be controlling.
From the perspective of 26 years experience in the profession of
intelligence, I can state flatly that should H.R. 3822's proposed sub-
section 503(a)(4), or anything like it, ever be enacted into law, few
foreign individuals or entities, governments again included, whose
cooperation and assistance we would need to conduct "special ac-
tivities"?or, for that matter, any intelligence activities of any con-
sequence?would be willing to put their fortunes, reputations, or,
in the case of individuals, their freedom and even their lives hos-
tage to the discretion and secret-keeping capability of the Congress
of the United States.
Quite apart from the nature and format of findings is the point
that Secretary Carlucci took up, where there is a distinct contradic-
tion between the flexibility that is given to the President with re-
spect to authorization and is then taken away with respect to initi-
ation. The flexibility given in 503(c)(2), "in circumstances where
time is of the essence," is taken away by 503(c)(3), because fre-
quently, as Secretary Carlucci said, a period of not just 48 hours
but many months can lapse between the initiation and authoriza-
tion of a special activity.
This again gets right back to the Canadian situation, where the
Canadians for their own security protection made their essential
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cooperation contingent on Congress' not being told what was in
train or what the Canadians were doing until after the operation
was concluded. In that instance the period between authorization
and implementation was measured in weeks and not in hours. That
was a special activity under the terms of the legislation we are con-
sidering because it involved the CIA operation for purposes other
than the collection of intelligence.
But that is the net the drafters would have caught the Canadians
and the U.S. Government in.
Had H.R. 3822, as presently phrased, been on the statute books
in 1980, President Carter, not President Reagan, would have been
impaled on the horns of a dilemma. He would have had to either
ignore the law or tell the Canadians that he could not lawfully
meet the conditions that they imposed on their essential assistance
and that as a sovereign government they had the right to insist on,
even though declining that assistance clearly put American lives at
risk.
As you yourself indicated, Mr. Chairman, I can not believe that
any member of this subcommittee or of the full House oversight
committee or, for that matter, of Congress would want to put any
American President, of whatever party, in such a situation. This is
far from the least of the reasons why I respectfully urge that the
subcommittee reconsider the language of H.R. 3822, and all of that
language's implications, before recommending that this proposed
bill as it now stands be enacted into law.
In its conduct of Iran-Contra, the Reagan administration clearly -
abused the discretionary latitude afforded any administration of
any party, in conducting covert operations, by the flexibility and
ambiguity of some of the language in the current statutes dealing
with these matters.
H.R. 3822 would remove the ambiguity and virtually eradicate
the flexibility of the relevant statutes. Doing that, however, could
easily prove procrustean and generate serious problems in future
contingencies or situations not now foreseen.
By reducing the permissible exceptions to a bare minimum, not
always in consistent ways, H.R. 3822 would also push Congress far
deeper into the prior notification thicket. In the light of Iran-
Contra, this might seem desirable, but it is a punitive move that
would probably be rued by future Congresses, as well as future
Presidents?regardless of party.
As President Carter's, not President Reagan's, Deputy Assistant
for National Security Affairs, David Aaron, put the matter quite
neatly when testifying before the House Intelligence Oversight
Committee in September 1983 in connection with the "special ac-
tivities" legislation that would also have altered the National Secu-
rity Act of 1947's current section 501:
It was the purpose of [current] Sec. 501 to ensure that the Congress had sufficient
access to information, in a timely way, to be able to exercise [its proper] functions in
the field of intelligence activities. It was not [one of] the goals of Sec. 501 to make
the Congress a codecisionmaker on covert action operations.
Drafted in the immediate aftermath of the Iran-Contra Report's
preparation, H.R. 3822's language, at least to this reader's eyes, re-
flects an eminently understandable desire to rap Ronald Reagan's
knuckles and tie his hands. But Ronald Reagan leaves the Oval
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Office permanently in January 1989?less than a year hence?and
none of his successors, of whatever party, is likely to forget or
ignore the lessons of Iran-Contra.
Furthermore, if H.R. 3822 or any similar bill gets enacted, there
is no way of telling what future President's hands that law may
tie, under what particular circumstances, with what adverse
impact on U.S. interests.
Legislation affecting congressional oversight of intelligence ac-
tivities, particularly "special activities," is invariably complicated,
for it inevitably involves the judicious weighing and balancing of a
myriad of important, complex, and often conflicting considerations
and equities. Such legislation should not be drafted or enacted in
haste or under the influence of strong emotions, including pique.
Nor is it wise to draft, debate, and enact such legislation amid the
distractions and pressures of a Presidential election year, including
an election year's temptations to adopt or endorse positions, on
controversial issues, that are poll or popularity-enhancing in the
short run, but not necessarily in the long-term best interests of the
United States.
Such considerations apply with particular force, to issues involv-
ing reforms; for reforms drafted and adopted under such circum-
stances and conditions almost invariably prove to have unintended,
undesired consequences.
During my own career in Government, I was privileged to devel-
op a close association with the Honorable Birch Bayh, the Senate
Select Committee on Intelligence's second chairman. We differed
on many issues, as we still do, but became and remain good friends.
He visited me in Germany, as a guest in my home?where he
was a great favorite with my children?while I had overall respon-
sibility for the U.S. intelligence community there and he was chair-
man of the Senate Oversight Committee.
On one evening during that visit, I assembled a representative,
cross-sectional group of my abler young officers who were deeply
and personally involved in our efforts to combat terrorism and
other threats to the security of the United States. We sat up all
night, literally, having a frank, suitably lubricated, no-holds-
barred, give-and-take discussion.
During that discussion, my frontline colleagues endeavored to ex-
plain, by citing a succession of concrete examples, how difficult it
was to apply on the banks of the Rhine?and of other rivers
around the world?the sweeping, "thou shalt not, ever, under any
circumstances" reform restrictions of the mid-1970's, which sound-
ed so splendid when proclaimed, passed, issued, or endorsed along
the banks of the Potomac.
As my young colleagues kept recounting their frustrating first-
hand experiences with the results or consequences of these "re-
forms," the good Senator kept repeating, like an antiphonal re-
sponse in a High Church Anglican service, "But this was never the
intent of Congress!"
My equally antiphonal response was that in the field, we did not
have the luxury of trying to divine congressional intent. Instead,
we had to be guided and were circumscribed by what the govern-
ment's lawyers, incluidng the CIA's, construed to be the meaning
of the language in statutes Congress enacted, such as the Foreign
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Intelligence Surveillance Act, or in executive orders and internal
CIA regulations strongly influenced by congressional attitudes.
No sensible person would contend?and I certainly do not?that
our current laws dealing with covert action and its oversight
cannot be improved. This subcommittee and its staff are to be com-
mended on the thought, care, and effort that have clearly gone into
the consideration and discussions of H.R. 3822.
For reasons I have tried to explain, however, I do not believe
that the end results this distinguished subcommittee or its full
parent committee wants to achieve, in the discharge of Congress'
constitutionally mandated responsibilities, are most likely to be at-
tained by moving forward with H.R. 3822 or any similar legislation,
unavoidably drafted in some haste in the wake of the issuance of
the Iran-Contra Report and under the influence of emotions which
that unhappy affair inevitably engendered on Capitol Hill, particu-
larly when any such legislation would have to be debated and en-
acted amidst the mounting, divisive and partisan pressures of a
Presidential election year.
In my opinion, which I offer with diffident respect, our nation's
interests would be far better served if, instead, a small group of
knowledgeable senior administration officials, past or present,
could be convened to meet quietly with a corresponding, and corre-
spondingly small, bipartisan group of appropriate congressional
leaders from both houses; and then, over the course of several
months' frank, private discussion, this joint body, working together,
could develop a set of agreed principles regarding covert action,
work out a viable system for resolving executive/legislative branch
disputes, and supervise the measured, careful drafting of any new
legislation thought to be warranted?for formal introduction,
debate, consideration, and enactment after the 1988 electoral
season, with its attendant demands and pressures, has passed.
This may be a utopian dream, but as a concerned citizen who has
devoted over a quarter century to serving our Nation as an intelli-
gence professional, I would relish seeing this dream become a reali-
ty.
Thank you very much for your time and attention.
[The complete statement follows:]
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SUBMISSION OF
GEORGE A. CARVER, JR.
JOHN M. OLIN SENIOR FELLOW
CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES
ON
H.R. 3822
TO THE
SUBCOMMITTEE ON LEGISLATION
OF THE
PERMANENT SELECT COMMITTEE
ON INTELLIGENCE
U.S. HOUSE OF REPRESENTATIVES
March 10, 1988
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CONTENTS
Pace (s)
Introduction 1-3
1
Covert Action: Its Importance, Complexities
and Oversight Ramifications 3-10
Foreign Affairs and Intelligence:
The Constitution's Divison of
Responsibility and Authority 10-20
Security Concerns 20-27
Reporting Requirements and Flexibility 27-31
The Matter of "Findings" -- Pertinent
Considerations, Including Security and
Germane Foreign Attitudes ..,31-48
Notification Timing: Pertinent
Issues and Problems 4856
Some Ramifications of "Prior Notification" 56-61
The Dangers of Hasty, Emotion-impelled Reforms 61-64
What Ought to Be Done - 64-68
A*
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Mt. Chairman and Distinguished Members:
I am honored by your invitation to appear today to comment
not only on the specific bill you are considering, H.R. 3822, but
also on the larger issues addressed in that propOsed legislation
and in the parallel, very similar Senate bill, 3.1721. .
These larger issues impinge directly on our nation's
security and even its chances of survival in this strife-ridden
and now thermonuclear world. As we all know, it is not easy for
an open democracy, such as ours, to have the kind of effective
intelligence structure our nation needs -- one that is capable of
protecting our democratic freedoms but does not curtail or, even
worse, subvert them. These are issues to which I devoted, the
first twenty-six years of my professional life and in which, as a
citizen, I have an abiding interest. It is a pleasure, as well
as a privilege, to discuss them 4ith this sub-committee. I feel
confident that as fellow citizens we have common goals and ,
objectives; for the issues here involved transcend personal,
parochial or partisan considerations. Our differences, and your
differences among yourselves, will be over the optimum means of
achieving these common goals, and the best way of resolving the
complex, thorny questions these issues, in a democracy,
inevitably pose.
1
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To supplementmy orally presented summary comments, I am
submitting this fuller statement for the record. To this
.statement, I am also appending an essay entitled "A Needed
Capability JeapordiZed: Covert Action in the Wake of the Iran-
Contra Hearings", which I wrOte goon after the hearings ended and
was published in Ihs un Dieao nion (on 16 AUgust 1987), in The
Washinaton Timis (on 17 August 1987), and in various other
newspapers around the country.
?
This statement begins with a conceptual analysis of covert.
'action, its complexities, and the problems its employment poses
for an open, democratic society such as ours. I then touch on
the Constitution's division of authority and responsibility in
the fields of foreign affairs and, particularly, intelligence,
and the resultant need for our government's executive and
legislative branches to recognize each other's Constitutional
roles and to work harmoniously together, if our nation's.
interests are to be protected and well served.
Within that context, an analysis is made of H.R. 3822's
. provisions and, especially, the language in which they are.
phrased, to assess the impact of these provisions, and this
language, on a.number of topics germane .to the conduct of covert
action and of intelligence operations in general. In sequence,
this statement examines certain security concerns, reporting
requirements and flexibility, the matter of "findings", and.some
2
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of that complex issue's various ramifications. A look is then
taken at questions involved in the timing of congressional
notification and, in particular, "prior notification". My
submission concludes by noting some of the risks inherent in
emotion-impelled "reforms", especially ones drafted in haste, and
theurespectfully offering, for this sub-committee's
consideration, a fey of my own thoughts on what ought to be done,
in light of our total national interests,. with regard to the
important matters you are addressing.
COVERT ACTION: ITS IMPORTANCE. COMPLEXITIES
AND OVERSIGHT RAMIFICATIONS
The primaryfocus of the specific legislation this sub-
committee is considering, H.R. 3822, and of current congressional
concerns with respect to intelligence is, quite understandably,
covert action. Here, however,. I most respectfully ask you to be
careful, and not allow justified concerns to skew an essential
sense of proportion.
The primary function of the U.S. intelligence community is
to collect information, distill it into intelligence by analysis,
and then disseminate the fruits of this collection and analysis
to those in our government's executive and legislative branches
whom that intelligence will aid in the discharge of their
Constitutionally-mandated responsibilities. The CIA is charged
with all of these roles, plus that of being the U.S. intelligence
3
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community's central coordinating linch-pin -- a role highlighted.-
by the fact that there is no Director of the CIA (alone). Its
administrative head, the Director of Central Intelligence; is
also -- concurrently -- the President's senior intelligence
advisor and head of the U.S. intelligence community.
Covert action is an important CIA responsibility but an
ancillary one. Extreme care should be taken to ensure that any
"fixing" of covert action does not unintentionally hamper the
,Agency's and ,the intelligence community's ability to perform
their primary mission -- for example,. by putting sensitive
intelligence sources and methods at risk. This is particularly
important when arms limitation treaties, especially ones
involving strategic arms, are being considered and negotiated;
for our compliance-monitoring capabilities, in this critical
sphere, hinge on the U.S. intelligence community's overall
effectiveness.
"Covert action" is a term with such a broad scope that it is
impossible to define with any degree of-precision.' It
encompasses everything from encouraging a foreign journalist ? to
write a story or editorial which'that journalist might well have
written anyway to supporting, even guiding, fairly large-scale
military activities-in foreign-lands. Covert action's purpose-As
to influence the' behavior or policies of key foreign individuals,
groups and nations, and the course of events in key foreign
areas, in ways that further the interests ofthe nation Mounting.,
4
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the covert action in question, but also in ways that mask that
nation's hand and enables its involvement to be denied or, at,
least, officially disavowed. Perhaps the best way to understand
covert action is to think of it as a form of international
lobbying that is, ideally, discreet and unadvertised.
The usual euphemism for covert action, employed in the
legislation you are considering, is "special activities" --
defined in Executive Order 12333 (and elsewhere) as:
"activities conducted in support of national foreign
policy objectives abroad which are planned and executed
so that the role of the United States Government is not
apparent or acknowledged publicly, and functions in
support of such activities...."
As the report of the Iran-Contra Congressional Investigating
Committees notes, on page 375,
"This definition excludes diplomatic activities, the
collection and production of intelligence, or related
support functions."
Intelligence, activities, generally, are not easy for an
open, democratic society to conduct effectively, especially in
peacetime. For a plethora of reasons, covert action is
particularly difficult, for a society such as ours, and raises
particularly difficult questions -- ones that have no universally
satisfactory resolutions, let alone any simple answers.
To begin with, there is a consideration that is not polite
to acknowledge or discuss, but which has to be faced. In most
cases, conducting covert action involves contravening, infringing
upon or directly violating the laws of some other nation or
5
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nations, with which we are not in a state of war and with which,
indeed; we. may have treaty relations Whose spirit, if not letter;
such covert actions may also contravene. (The same is also true
of espionage, but that is another matter.) This does not mean we
should pass a self-denying ordinance; for covert action is a fact
of international life. It is something that virtually every
nation in the world essays, frequently targeted at us; and some
of our closest allies, such as Israel, areamong its most
indefatigible practitioners'. Such considerations do Mean,
however, that covert action should be used very circumspectly,
far more circumspectly than it sometimes has been -- as Iran-
Contra demonstrates all too clearly: Milan astutely employed,
covert action can be a very useful, effective adjunct to policy;
but it can never-be .a-substitute for-policy -- or for thought:
In ,this Context, there is a salienttfeature.of-our political
system whose consequences are frequently ignored Or brushed
aside. Our Constitution combines in one individual, our
President; two distinct offices and functions that most Other
nations divide: the government's chief executive and
administrative officer, and the nation's Chief of State. The
former is a partisan political figure chosen (in America) by
election; the latter, a-symbolic focus of national unity
suppOtedly, in that.capacity, above the fray of political
partisanship. As chief -executive officer,. a President should
certainly be-accountable for his and-his administration's
6
'Iv
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actions. Nonetheless, it is by no means necessarily in our
national interest for our Chief. of State to sign "findings" or
any other documents directing agencies or officers of the U.S.
Government to infringe upon or violate the laws of other nations
with which we are not ima state of declared war. NSC staff
members, national security advisors, cabinet officers and
Directors of Central Intelligence are all expendable; but in our
government, Presidents are not. As Chief of State, an American
President should be able to distance himself or herself from,
even disavow, a covert action that he or she approved, even
ordered, as chief executive. This may sound complicated, but so
is the real world and, hence, effective diplomacy that runs with
the grain of its complex reality.
Such messy complexities, and the troublesome issues they
raise, lead some to argue that the United States should eschew or
abandon covert action altogether. In a perfect world, this might
be desirable; but in the world in which we have no choice but to
live, it would be folly. One point on which members of the
Congressional Committees investigating the Iran-Contra Affair
were agreed is that, to use their Report's words (on page 383),
"Covert operations are a necessary component of our Nation's
foreign policy". :The real question before Congress, and the
American people, is not whether our nation should conduct. covert
action but, instead, how such operations should be handled,
controlled and reviewed to ensure that they are soundly
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conceived, efficiently executed and effective, but do not do
injury to any of our democratic polity's fundamental interests or
basic values.
Congress was quite-understandably:distressed by the kinds of
covert operations mounted during what we now term "Iran-Contra",
by these-operations' execution and, particularly, by the way in
which Congress was 'handled with respect to them. No matter how
admirable or defensible the administration's motives and
objectives-may have been, the way in which these operations-were
developed and run violated every canon and precept of sound
professionalism, not to mention common sense. Furthermore, all
other considerations apart', tne administration's manner of
dealing with Congress during this episode was both inept and
politically tone-deaf.
Congress has ample reason to be irritated at the
administration, and concerned about the way it ,handled that
specific covert action. In dealing with important issues,
however, Particularly ones as complex as these, all prudent
humans -- including distinguished members of Congress, and of
both of its intelligence oversight committees -- should avoid,
-acting hastily, vithpunitive intent, under the stimulus of
irritation.
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In its 24th Chapter of their Report -- "Covert Action in a
Democratic Society" -- the Congressional Committees investigating
Iran-Contra posed the fundamental question:
"Is it possible for an open society such as the United
States to conduct such secret activities effectively?
And if so, by what means can these operations be
controlled so as to meet the requirements of
accountability in a democratic society?"
In answering that question, the report noted the laws and
procedures adopted after the investigations and debates of the
mid-1970s, and then went on to observe (also on page 375) that
"Experience has shown that these laws and procedures, if
respected, are adequate to the task."
Amplifying this theme, the Iran-Contra Report's
"Recommendations" chapter (28) opens with two paragraphs which
read:
It is the conclusion of these Committees that the
Iran-Contra Affair resulted from the failure of
individuals to observe the law, not from deficiencies
in existing law or in our system of governance. This
is an important lesson to be,learned from these
investigations because it points to the fundamental
soundness of our constitutional processes.
Thus, the principal recommendations emerging from
the investigation are not for new laws but for a
renewal of the commitment to constitutional government
and sound processes of decisionmaking.
That chapter does go on to recommend "some changes in law,
particularly relating to oversight of covert operations", and
some of those recommended changes are reflected in the bill this
hearing was convened to address. Most respectfully, however, I
hope that this Subcommittee's -- and the entire Congress' --
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discussion and decision about the details of such suggested
changes will be framed,within the judicious context set by the
two paragraphs just quoted.
The reference in the second quoted paragraph's concluding
sentence to "the commitment to constitutional government and
sound decisionmaking" raises a whole new set of important,-
complex issues:
FOREIGN AFFAIRS AND INTELLIGENCE:
THE CONSTITUTION'S DIVISION
OF RESPONSIBILITY AND AUTHORITY
Our Constitution does not explicitly mention intelligence,
let alone covert action, nor does it use the terms "foreign
policy" or "foreign affairs". By design, nonetheless, the
Constitution divides authority and responsibility in this Sphere
as well as in others.
For example, the Constitution gives Congress the "power...to
regulate Commerce with: foreign Nations" and "To declare War"; In
addition to being named "Commander in Chief", however, the
President is given "Power, by and with the Advice and Consent of
the Senate, to make Treaties."
Most of our nation's Founding Fathers did not regard the
Constitution's division of authority over foreign affairs quite
so extensive, or ambiguous, as many would now argue. At the time
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the Constitution was adopted, the general.view was that
Congressional authorities,in,the.foreign policy sphere were
exceptions to the stipulation in the first sentence of Section 1
of the Constitution's Article II: "The executive Power shall be
vested in a President ofthe United States of America". One of
the few things on which Jefferson, Hamilton and Madison were all
in agreement was that these exceptions should be construed
"strictly".
As Jefferson put the matter, in 17904
"The transaction of business with foreign nations is
executive altogether; it belongs then, to the head of that
department, except as to such portions of it as are
specially, submitted to the Senate. Exceptions are to be
construed strictly."
Hamilton expressed almost identical thoughts in his first
pacificus letter, published three years lhter:
"It deserves to be remarked, that as the participation of
the Senate in the making of treaties, and the power of the'
Legislature to declare war, are exceptions out of the
general "executive power" vested in the President, they are
to be construed strictly, and ought to be extended no
further than is essential to their execution."
Indeed, Jefferson -- with Madison in general concurrence --
extended this line of reasoning to cover the executive's
obligation, which he considered quite limited, to account for the
expenditure of funds appropriated by Congress for the conduct of
foreign affairs. Jefferson, as President, put his thoughts on
this matter quite succinctly in an 1804 letter to his Treasury - ?
secretary, Albert Gallatin:
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"The Constitution has made the Executive the organ for
managing our intercourse with foreign nations.... The
Executive being thus charged with the .foreign intercourse,
no law has undertaken to prescribe its specific
duties..:.[I]t has been the uniform opinion and practice
that the whole foreign fund was placed by the Legislature on
the footing of a contingent fund, in which they undertake no-
specifications, but leave the whole to the discretion of the
president."
Legislative-executive branch debates over roles, and
primacy, in the general field of foreign policy are as old as, or
even ante-date, our republic. Parallel debates with specific
respect to intelligence, however, are of considerably more recent
vintage.
Though the word "intelligende" does not appear in the
Constitution, how those who !ranted it viewed the intelligence
function is quite forcefully and clearly expounded by John .Jay --
who as a co-author of the Federalist Fauers and then, under the
new Constitution, our nation's first Chief Justice is certainly a
reliable, authoritative source regarding "original intent".
In Federalist 64, discussing foreign affairs generally -and
treaty negotiations specifically, Jay wrote:
"It seldom happens in the negotiation of treaties of
whatever nature, but that perfect secrecy and immediate
dik2At= are sometimes requisite. There are cases where the
most useful intelligence may be obtained, if the persons
possessing it can be relieved from apprehensions of
discovery. Those apprehensions will operate on those
persons whether they are actuated by mercenary or friendly
motives: and there doubtless are many of both descriptions
who would rely on the secrecy of the President, but who
would not confide in that of the Senate, and still less in
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that of a large popular assembly. The convention have done
well, therefore, in so disposing of the power of making
treaties that although the President must, in forming them,
act by the advice and consent of the Senate, yet he will be
able to manage the business of intelligence in such manner
as prudence may suggest." (emphasis in original)
John Jay clearly regarded "the business of intelligence" as
being primarily a presidential or executive branch function, not
a legislative branch responsibility -- a view shared by all
serving presidents from Washington onward.
With regard to what is now called covert action, Senator
Cohen -- in a 25 September 1987 statement introducing 8.1721 --
has contended that his bill and hence, by extension, H.R. 3822 as
well: "would, for the first time, provide explicit statutory
authority for the President to authorize covert actions, or
'special activities', in support of U.S. foreign policy
objectives, provided they are authorized in accordance with the
requirements set forth in the bill."
Oval Office incumbents and many others would argue strongly,
however, that a President's authority to conduct covert action is
not a gift from.Congress and requires no Congressionally-enacted
statute. Instead, they would contend, it derives directly from
Article II of the Constitution itself, specifically, from the
previously quoted first sentence of that article's Section 1 --
"The executive power shall be vested in a President of the United
States of America." -- and from the first sentence of that
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article's Section 2, which explicitly names the President
"Commander in Chief". In appropriating funds for covert
activities, furthermore, Congress has certainly acknowledged --
by its own actions -- the right of suCessive Presidents to
initiate, or commission, the specific covert activities for which
such funds have been appropriated.
While in office, our early presidents -- who had been
directly and personally involved in the formulation and adoption
of. our Constitution -- certainly did not act as if they felt that
what we would now term covert action required Congressional
involvement or, even less, prior Congressional knowledge.
Indeed, if Jefferson, the-drafter of the Declaration of
Independence, or Madison, the principal architect of our
Constitution had shown, as President, the diffident deference to
Congress that many now claim a President-is constitutionally
obligated to show, in conducting foreign affairs, our republic
would not now have its present territorial extent and probably
would not have survived its perilous initial decades.
In these areas where the Constitution delibertely divides
authority -- our national interests are 'certainly not furthered
by executive-legislative branch squabbles over turf, or attempted
raids on each other's prerogatives. At both ends of Pennsylvania
Avenue there needs to be a greater recognition than has been
notable in.recent-months of the fact that, especially in the
.field of foreign affairs, our. Constitution yokes the legislative
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and executive branches in a single harness, and unless they can
pull together, in tandem, the nation suffers.
In this context, I commend to all members of this sub-
committee -- and to all citizens interested in these vitally
important subjects -- an essay co-authored by the Chairman of the
Senate Intelligence Committee, Senator David Boren, and his
colleague Senator John Danforth. Their perceptive analysis was
published in the 1 December 1987 edition of ma Washinaton post,
under the headline title: "Why This Country Can't Lead". All of
it is germane to the matters this sub-committee is addressing,
but the following comments of these two distinguished senators
are particularly relevant:
Since we arrived in the Senate about a decade ago,
partisanship within the institution has increased
alarmingly. Some partisan one-upmanship may be
expected in domestic matters, but it has spilled over
into foreign affairs. In consequence, the stable and
resolute foreign policy one should expect from the
leader of the free world has been undermined by ongoing
antagonism and turmoil between Congress and the
executive branch of our government.
On one hand, Congress is alarmed at the freebooting
advonturism of a go-it-alone executive, as exemplified
by the Iran-contra affair. On the other hand, the
executive branch complains that Congress consists of
533 secretaries of state who cannot resist any
opportunity to interfere with arms negotiations and to
micromanage foreign relations. The result is that
mutual suspicion and a state of flux have supplanted
the predictability and sense of purpose which
characterise a leadership position in world affairs.
Unlike parliamentary systems our Constitution
divides foreign policy responsibility between two
independent branches of government. The president is
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the commander in chief, but Congress gives its advice and
consent to treaties and to the appointment of ambassadors.
In recent times, Congress has confused this shared
responsibility for foreign affairs with incessant and
irresponsible tinkering.
Though Senator -Boren would'doubtless not consider a bill of
which he is a co-sponsor, S.1721, or its House counterpart, H.R.
3822, to be an example of the Congressional tinkering he and
Senator Danforth decry, I would respectfully suggest that a major
defect in both bills, particularly H.R. 3822, is too little
.acknowledgment of the fact that the President and the Congress do
indeed share responsibility for foreign affairs and, by
extension, intelligence, and that particularly with respect to
intelligence, as John Jay arguesin Federalist 64, the
Constitution confers some powers directly on the President, not
on Congress.
Involved here is one of our Constitution's many delicate
balances, a balance carefully and properly acknowledged in the
National Security Act of 1947's current Section 501, which both
8.1721 and H.R.3822 propose to strike and replace with new
language.
As.this Committee well knows, that 1947 Act contains what is
still- the basic charter of the CIA, the Director of Central
Intelligence,and,vindeed, theU.S. intelligence community.
Section 501 of that Act deals with Congressional oversight. It
was added to the 1947 Act by. Sec. 407(b) (1) of the Intelligence
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Authorization Act for Fiscal Year 3.981 (P.L. 96-450), known
informally as the Intelligence Oversight Act of 1980. As it now
stands, Sec. 501's sub-section (a) -- before spelling out what,
and how, the DCI and all intelligence community component heads
are required to report to the Congress -- begins with a
preambular clause that reads:
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 --
Then follows the list of reporting requirements (which, together
with the full text of the current Sec. 501, are appended to this
statement).
Both S. 1721 and H.R. 3822,. as mentioned above, would strike .
the current Sec. 501, inCluding sub-section 501(a), in its
entirety, substituting new language for some of the text so
stricken and repeating some of the former text in various places
in several of the propOsed new sections. The carefully crafted
Lead or "preambUlar" clause of current Sec. 501(a), quoted above,
would disappear, though some of it is echoed in parts of S. 1721.
Speaking of intelligence activities, for example, S. 1721's
proposed new Sec. 501(a) says "that nothing contained herein .
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shall be construed as a limitation onthe power of the President
to initiate such activities in a manner consistent with his
powers conferred by the Constitution." H.R. 3822, however, makes
no reference to any Presidential powers of any description, let
alone any conferred by the Constitution -- either in H.R.3822's-
proposed new Sec. 501(a) or anywhere else. The bill this sub-
committee is now considering, instead, speaks only of
restrictions and requirements levied on the President, the DCI
and the intelligence community, and ofthe obligations and
responsibilities of all three with respect to reporting to
Congress on current and anticipated intelligence activities.
This approach inevitably gets into very murky Constitutional
waters, for the Constitution can not be ammended or abrogated by
a simple statute. The fact that one or more Members of Congress,
if any of them were President, might not exercise Constitutionally-
conferred discretionary latitude in the same way as it was
.exercised by some particular President -- including Ronald Reagan
does not of itself mean that the Presidency, as an
institution, does not not have the diecretiOnary powers in
question.
The "preambular" Clause of the National Security Act of
-1947's current Sec. 501(4)-48 considerably more forthright than
8.1721 about what the Chairman of-the Senate Select Committee on
Intelligence has himself termed the executive and legislative
branches' "shared responsibility"; but 8.1721's passing mention
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of the powers that the Constitution confers on the President, and.
of the fact that Congress should not attempt to limit or curtail.
them,. is better than no mention at all of this Constitutionally
weighty consideration -- about which, H.R. 3822 is deafeningly
silent.
Before this sub-committee or the full oversight committee
recommends that the House, and the Congress, jettison the
carefully crafted preambular language of the National Security
Act of 1947.'s current Sec. 501(4, I respectfully urge that
renewed, careful consideration be given to the cogent arguments
presented to this very Committee in September 1983, when it was
also considering legislation on "special activities", by two
highly knowledgeable witnesses -- neither of whom is an opponent-
of strict congressional oversight of all intelligence activities
or, for that matter, a Reagan administration supporter.
In those September 1983 hearings, Mt. David Aaron -- a
member of the Church Committee's staff and then, from 1977-81,
President Carter's Deputy Assistant for National Security Affairs
remarked in his statement:
"I start from the premise that the delicate balance
struck in Sec. 501 most appropriately reflects the
Constitutional ambiguity and tension in the
relationship between the Congress and the Executive
Branch, resulting from their differing respon-
aibilities.... It was the purpose of Sec. 501 to
ensure that the Congress had sufficient access to
information, in a timely way, to be able to exercise
these [oversight and foreign policy] functions in the
field of intelligence activities. It was not the
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intended goals of Sec. 501 to make the Congress a co-
decision-maker on covert action operations."
Similar ground was covered, in those same hearings, by Mt.
William Miller, who had previously served as the Staff Director
of the Church Committee and then of the Senate's intelligence
oversight committee. In his statement, Mr. Miller observed:
"What is now the law of the land in Sec. 501 is the
result of the several years' experience of both
intelligence oversight committees and that of other
House and the Senate Committees that have had
responsibilities for intelligence activities since the
Second World War. The existing law is the result of
discussions, negotiations and give and take with two
administrations, including the direct involvement of
two Presidents, two Vice Presidents, four Directors of
Central Intelligence, three Attorneys-General and a
host of other Cabinet officials, Department' heads,
Senators, Congressmen, Chiefs of Staff, constitutional
experts and lawyers and other interested citizens. It
? is not suprising that many urge caution about amending
existing law, given the delicate issues involved and
the broad spectrum of perspectives that Sec. 501 had to
encompass."
BECORITY CONCERNS
Striking current Sec. 501 and,. hence, 501(a)'s opening
clause would not only strike that clause's carefully drafted
reference to the need to keep Congressional oversight authorities
and executive branch reporting requirements consistent with the
constitutional and "balance" issues here involved. It would also
strike the general, tone-setting reference to the need to keep
them consistent "with due regard for the protection from
unauthorized disclosure of classified information and information
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relating to intelligence sources and methods".
Similar "due regard" language does twice appear somewhat
later in H.R. 3822, in proposed Sections 502(a) and 503(b), but
with a very significant modification. There is also a statement
in proposed 501(d) that
"The House of Representatives and the Senate, in
consultation with the Director of Central Intelligence,
shall each establish, by rule or resolution of such
House, procedures to protect from unauthorized
disclosure all classified information and all
information relating to intelligence sources and
methods furnished to the intelligence committees or to
Members of Congress under this title."
Not having these security concerns reflected at the outset,
however, attenuates their importance. Furthermore, neither the
current Sec. 501 nor H.R. 3822, nor S.1721, makes any mention --
in the oversight context -- of the fact that another passage in
the National Security Act of 1947, Sec. 102(d)(3), imposes. a
statutory Obligation on the Director of Central Intelligence,
with respect to security, by stipulating that the DCI "shall be
responsible for protecting intelligence sources and methods from
unauthorized disclosure."
In addition, H.R. 3822's treatment of these critically
important matters is inconsistent,. in a way perhaps overlooked by
H.R. 3822's drafters but which is of enormous potential
significance.
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The just-quoted final clause of the National Security Act's
Sec. 102(d)(3) provides:
"That the Director of Central Intelligence shall be
responsible for protecting intelligence sources and methods
from unauthorized disclosure."
This language is repeated, and slightly broadened, in the "due
regard" text of current Sec. 501(a) 'a preambular clause -- which
H.R. 3822 would strike:
"To the extent consistent ... with due regard for the
protection from unauthorized disclosure 21 classified
information and information relating tn intelligence sources
and methods ...". (emphasis added)
H.R. 3822's proposed Sec. 501(d), quoted above, echoes this
language and broadens it a bit further by calling for procedures:
"to protect from unauthorized disclosure All classified
information and all information relating to intelligence
sources and methods furnished to the intelligence committees
or to Members of Congress under this title."
On this singularly important topic, however, the proposed
(and identical) "due regard" passages of H.R. 3822's Sec.502(a)
and 503(a) reverse field sharply, in a confusingly inconsistent
way.
H.R. 3822's proposed Sec. 502 deals with "Reporting
Intelligence Activities other than Special Activities": proposed
Sec. 503 deals with "Presidential Approval and Reporting of
Special Activities". With respect to the activities covered in
each section, both proposed 502(a), and proposed 503(b), in
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identical language, require the DCI et. al. "to keep the
intelligence committees fully and currently informed",
"To the extent consistent with due regard for the protection
against unauthorized disclosure of classified information
relating to sensitive intelligence sources and methods..."
(emphasis added)
Involved here are two semantic shifts, one is minor; the other,
decidedly not.
In the minor shift, all other variations on the "due regard"
and "protection" theme speak of protecting intelligence sources
and methods, or information relating to them, or classified
information trim unauthorized disclosure. Proposed Sec. 502(a)
and 503(b), instead, speak of protection aaainst unauthorized
disclosure. This inconsistency is slightly confusing but of no
great consequence.
The other, important shift is a very different matter. In
-Sec. 102(d)(3), which H.R. 3822 would not alter., what is to be
protected from unauthorized disclosure is "intelligence sources
and methods". In current Sec. 501(a), it is "classified
information and information relating 12 intelligence sources and
methods" (emphasis added). In H.R. 3882'.s proposed Sec. 501(d),
it is. "All classified information and sll information relating to
intelligence sources and methods" (emphasis added). H.R. 3822's
proposed Sec. 502(a) and 503(b), however, speak only of
"due regard for the protection against unauthorized
disclosure of classified information relating to sensitive
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intelligence sources and methods" (emphasis added).
-
"Sensitive" is an adjective whose definition, or
applicability in any concrete situation, is both imprecise and
subjective. H.R. 3822 makes "sensitive" a hallmark
characteristic restricting what needs to be protected, but
nowhere does H.R. 3822 give this key, limiting adjective a
definition governing its use in that particular context. Nor
does H.R. 3822 specify who is to decide in any particular case,
involving particular intelligence sources and methods, whether
those sources and methods, in that Case, are "sensitive". Is
this determination to be made by the President, by the DCI, by
the Congress as a whole, by. either or both intelligence oversight
committees -- or by whom? These may seem to be pedantic
quibbles; but such inconeistencies and ambiguities could easily
become enormously important in a complex, real-life Situation --
particularly one involving decisions at both ends of Pennsylvania
Avenue on what needs to be told to, or can legitimately be
divulged by, the Congress, and when.
These potential pitfalls are deepened if proposed Sec.
502(a) and 503(b) are read in conjunction with proposed See.
501(e):
"Nothing in this Act shall be construed as authority to
withhold information from the intelligence committees on the
grounds that providing the information to the intelligence
committees would constitute the unauthorized disclosure of
classified information or information relating to intelligence
sources and methods".
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Taken in tandem, these three proposed sections of H.R. 3822
set the stage for and, indeed, make almost inevitable future
legislative-executive branch cat fights which ill-serve our
national interests. In tandem, these three proposed sections
give Congressional oversight committees a virtually unrestricted
fishing license -- particularly if the Committees deem themselves
the Arbiters of what information is, or is not, "sensitive" --
that future administrations, of whatever party, are bound to balk
at, for very good reasons, if these administrations or their DCIs
define "sensitive" in a different fashion.
Though the executive branch is not, and never has been, any
paragon of perfection with respect to discretion, it is worth
noting that concerns about Congressional security are not only as
old as Our republic but, in fact, antedate our constitution.
Speaking of France's willingneps to provide essential covert
assistance to the revolutionary cause, Benjamin Franklin and
Robert Morris -- in their capacity as Members of the Committee of
Secret Correspondence of the Continental Congress, America's
first intelligence organization -- noted, on 1 October 1776: .
"We agree in opinion that it is our indespensable duty to
keep [this important intelligence] a secret, even from
Congress ... He find, by fatal experience, the Congress
consists of too many members to keep secrets."
As the Iran-Contra Affairs Minority Report mentions, on page
469, when Joel Poinsett (for whom the flower is named) was ,
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conducting covert action missions in South America for then-
President James Madison -- our Constitution's principal architect
Poinsett was under instructions to communicate in code, and
all his important communications were witheld from Congress.
Much more recent events unfortunately demonstrate a
continuing justification for the kind of concerns that troubled
Franklin and Madison.. In March 1987, the former Chairman of the
Senate Select Committee on Intelligence -- who had relinquished
his chairmanship only two months earlier -- spoke to a group of
potential ;supporters Convened, in Florida, by the America Israel
Public Affairs Committee. In the wake and in the context of the
Pollard affair, the former Chairman alleged to that audience that.
the Pollard case had been preceded, in 1982, by a similar U.S.
intelligence operation targeted against Israel -- an allegation.
that both the U.S. and the Israeli governments immediately and
emphatically denied. If there was any such operation, the former
Chairman committed a serious security breach. If no such
operation existed, his indiscretion was still grossly
irresponsible particularly since many 7- in Israel, America, and
elsewhere -- would presume that the former Chairman's comments,
on such subjects, must be authoritative.
In the intelligence field -- to American professionals and,
even more, to foreign individuals and services co-operating with,
U.S. intelligence -- these public remarks of the former Chairman
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of the Senate's intelligence oversight committee sent a shock
wave around the world. They doubtless caused acute private
distress to many of the former Chairman's Congressional
colleagues, and to many Hill staffers; but the former Chairman is
not likely to be called to account for his actions by anyone
save, perhaps, the voters of Minnesota -- something else the
intelligence world has not failed to notice.
PORTING REOUIREMENTS AND.FLEXIBILITy
H.R. 3822 would repeal Sec. 662 of the Foreign Assistance
Act of 1961 -- the so-called "Hughes-Ryan Amendment" -- and
strike the National Security-Act of 1947's current Sec. 501.
H.R. 3822 would replace the latter with a new 501 ("General
Provisions"), a new 502 ("Reporting Intelligence Activities Other
than Special Activities"), and a new 503 ("Presidential Approval
and Reporting of Special Activities"). The 1947 Act's current
Sec. 502 would be re-designated Sec. 504, and amended to include
the essence of "Hughes-Ryan" -- whose original (1974) language on
reporting covert action operations "in a timely fashion" was
shifted in 1980 to current Sec. 501(b) and Would now be
eliminated. Current Sec. 503 would be slightly amended and re-
designated Sec. 505. The companion Senate bill, S.1721 would
effect the same section shifts in the National Security Act of
1947 with, in certain places, a few differences in proposed
alternate language. Some of these differences are significant,
but I will not take the time to address them here.
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For reasons previously discussed, I believe the consequences
of striking the current Sec. 501(a) 'a lead or "preambular" clause
altogether, and not replacing it, would be unfortunate. Also,.
H.R. 3822's alternate language -- in its proposed new Sections
501, 502 and 503 -- makes changes in current Sec. 501's tone and
content that I respectfully urge this sub-committee to consider ,
carefully before endorsing them for enactment intolaw.
Current Sec. 501 places on "the Director of Central
Intelligence and the heads of all departments, agencies, and
other entities of the United States involved in intelligence
activities" the responsibility for keeping the intelligence
oversight committees in both Houses of Congress "fully and
currently informed" of all U.S. intelligence activities
"including any significant anticipated intelligence activity" --
among other things, a euphemism for "special activity" or covert
action. As spelled out in current Sec. 501(0's sub-paragraphs
(2) and (3), this includes the responsibility for furnishing -
information requested by either intelligence committee and for
reporting "in a timely fashion", to these committees, any
"illegal intelligence activity or significant intelligence
failure" -- plus "any corrective action" taken.
Prompted, I suspect, by quite understandable, legitimate
Iran-Contra-fueled irritation at President Reagan, H.R. 3822's
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proposed new language would divide this reporting responsibility
and fix part of it on the President, by requiring him -- in new
Sec. 501 -- to "ensure" that this reporting is done. In H.R.
3822's text, however, this change is effected in language that in
places is redundant, and hence confusing. New Sec. 501(a)
assigns "ensuring" responsibility to the President; but new Sec.
502(a) and'new Sec. 503(b) --the former with respect to
"intelligence activities other-than special activities", the
letter with.specific reference to "special activities" -- both
pick up and repeat, with only minor changes, the language of old
Sec. 501(a)4 which.essigne.the reporting responsibility to the
DCI and other intelligence community-component heads.
Since the actual reporting requirement and responsibility is
clearly fixed in law, -as--it-has been since 1980, there seems
little reason-to burden the President, formally, with "ensuring"
that his intelligence community subordinates discharge their
statutory responsibilities, in this regard. This is doubly so if
one acknowledges any force or merit in the argument that a
President's -- i.e. Chief of State's -- public connection with
? covert action should be minimized, not enhanced. In any event,
the redundancy of H.R. 3822's language on this point produces a
measure of inelegant confusion that strongly suggests hasty
drafting. For obvious reasons, intelligence oversight
legislation should not be prompted by pique, or punitive intent.
Nor should it be drafied in haste, or with anything but
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consummate, considered care and ,dispassionate craftmanship.
Present Sec. 501's language has a measure of flexibility and
creative ambiguity that may offend the tidy-minded, legalistic
purist, but is enormously useful in any statute dealing with a
subject as complex and important as intelligence, especially
covert action, conducted by an open, democratic society.
Unquestionably, the administration abused this flexibility
throughout the Iran-Contra imbroalio. In current Sec. 501, for
example, the denotation of "timely" may be a bit imprecise, by
design, but it is clearly not intended to denote an interval
measured in months. One can readily understand why some in
Congress, both members and staff -- prompted by Iran-Contra
irritation -- would want to curtail this flexible ambiguity. In
any delicate sphere, however, people impelled by understandable
emotions and admirable motives should be very careful of over-'
reaction. .
Current Sec. 501 requires the DCI and his intelligence
community colleagues to keep the Congressional intelligence
committees "fully and currently informed" of all manner of
intelligence activities and information, especially "significant
anticipated activities," but it is fairly,delphic about whether
this need be done before or after the fact. In addition, current
Sec. 501 gives the President considerable discretionary latitude
with respect to "prior notice" -- latitude that was also clearly
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abused during Iran-Contra. In erecting unambiguous barriers
against any recurrence of that particular abuse, however, H.R.
3822's proposed alternative for current Sec. 501 sets the stage
perhaps inadvertently -- for other, future problems of equal if
not greater magnitude.
THE MATTER OF "FINDINGS" -- PERTINENT
CONSIDERATIONS. INCLUDING SECURITY AND
GERMANE FOREIGN ATTITUDES
Presidents since Washington, certainly since Jefferson, have
conducted covert actions or "special activities," or directed
that they be conducted, whenever they felt the interests of the
United States would be served by, or required, such activities --
without feeling any particular need for Congressional involvement
or, often, knowledge, let alone Congressional direction or
legislatively-conferred authority. H.R. 3822's proposed Sec.
503(a), would seem to break new Constitutional ground by
stipulating, in a statute, that a President
"may authorize the conduct of a special activity by
departments, agencies, or entities of the United States
Government only when he determines such an activity is
necessary to support the foreign policy objectives of
the United States and is important to the national
security of the United States"
Proposed Sec. 503(a) then goes on to add "which determination
shall be set forth in a finding that shall meet each of the
'following conditions," of which there are five.
The National Security Act of 1947's current Sec. 501(a)
requires the Director of Central Intelligence (et al.) to keep
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the intelligence committees "fully and currently informed of all
intelligence activities .... including any significant
anticipated special activity" -- i.e. covert action -- but does
not stipulate how this is to be done. Current sec."501(a)(1)(8)
adds that:,
"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 chairmen 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:" (the so-called Gang of Eight)
How this notice is to be given, however,-ie not specified.
Current Sec. 501(b) says:
"The President shall fully inform the intelligence?
committees in a timely fashion of intelligence
operations in foreign countries, other than activities
intended solely for obtaining 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."
But once again, current Sec. 501 does not prescribe any
particular form or manner for doing this, though the phrase
"provide a statement" certainly suggests something in writing.
Section 662 of the Foreign Assistance Act of 1961, the
"Hughes-Ryan Amendment" -- which H.R. 3822 would repeal, then
incorporate in that bill with slightly modified language --
stipulates that:
"No funds appropriated under the authority of this 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 operations is important to
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the natibnal security of the United States."'
Hughes-Ryan, however, does not specifically say that the
President's finding, itself, must be given to Congress, nor does
it specify how the "description and scope" of each such operation
is to be reported.2
H.R. 3822 would change all that. The first of its proposed
Section 503(a)'s five conditions is that:
"(1) Each finding shall be in writing, unless immediate
action by the United States is required and time does
not permit the preparation of a written finding, in
1 As mentioned above, "Hughes-Ryan" orginally continued "and
reports, in timely fashion, a description, and scope of each
operation to the appropriate committees of Congress"; but this
thought, and most of this language, was shifted in 1980 to the
National Security Act of 1947's current subsection 501(b). The
1980 change also pared the number of committees to whom these
reports must be made from "Hughes-Ryan's" eight to the two
intelligence committees specified in current Sec. 501(b).
2 Hughes-Ryan was originally added to' the 1961 Foreign
Assistance Act, as Section 662, in 1974. Section 654 of that
Act, added in 1971 -- "Presidential Findings and Determinations"
does say that:
"In any case in which the President is required to make
a report to the Congress, or to any committee or
officer of either House of Congress, concerning any
finding or determination under any provision of this
Act, the Foreign Military Sales Act, or the Foreign
Assistance and Related Programs Appropriation Act for
each fiscal year, that finding or determination Shall
be reduced to writing and signed by the President."
Section 654, however, deals primarily with unclassified
"findings and determinations", to be published in the Federal
Register. It was part of a package of provisions directed at
controlling re-programming (prompted by irritation at the way aid
to Cambodia had been handled). Prior to Iran-Contra, no one ever
thought of applyinTMection 654 to Section 662 intelligence
findings, or to the informing and reporting required by the
National Security Act of 1947's current section 501. -
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which case a written record of the President's decision
shall be contemporaneously made and shall be reduced to
a written finding as soon as possible but in no event
more than forty-eight hours after the decision is
made."
I will pass over the fact that a written, permanent record
account Of a decision that may have been taken in a complex,
fluid situation and that affects a range of significant U.S.
interests is not a document that should be slapped together in
haste. Care and thought should go into any such permanent
document's drafting, a degree of internal coordination within the
executive branch may be required, and properly preparing such a
document for he President's approval and signature within 48
hours or, indeed, within two working days -- even if the
President and the congress arein Washington 7- may simply not be
possible. I would like the sub-committee to focus, instead, on
considerations more important than operational details.
While an internal, written record of such decisions --
shoeing precisely who was .directed or authorized to do what, and
why 7 should be made and kept, at least within the executive
branch, whether the official accounts of such decisions, i.e.
"findings", should be personally signed by the President of the
United States is far more debatable than some who participated in
the drafting of H.R. 3822 might be willing to acknowledge.
Particularly in the wake of Iran-Contra, the desire of many
members of Congress, including members of this Committee, to hold
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a President personally Accountable for all covert action
operations which that PreSident directs or authorizes is
eminently understandable; but germane here are two considerations
previously mentioned -- one, of extraordinary delicacy.
First, under our Constitution and governmental system, our
President is not only the chief executive, a political figure
chosen in an inevitably partisan, contested election. Our
President is also our nation's ceremonial, symbolic Chief of
State -- all of whose actions, particularly with respect to
foreign affairs, are hence our nation's, in a very important
symbolic sense. In Most parliamentary governments, partly for
this very reason, chiefs of state -- -whether put in office by
heredity or some other form of selection -- are supposedly
apolitical, "above politics". Chiefs of state can disavow or
even, at least technically, depose prime minieters and confer
their office on others, but not vice versa. In our system,
conversely, a single individual, during that individual's
presidential term, simultaneously plays both roles.,
Secondly, covert action is a very delicate tool of
statecraft,-though one that all other nations employ -- many of
them, against us -- and we hence should feel no compunction about
using it, judiciously and deftly, to protect or further our own
national interests. Covert action's delicacy derives in no small
measure from the awkward but inescapable fact that its employment
almost invariably involves infringing upon, or directly
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violating, the laws of some other nation or nations, usually
those of the nation at which a specific covert action operation
is targeted.
A covert action "finding", as that term is employed in,H.R.
3822, thus easily can be a document authorizing or directing some
component of the U.S. intelligence community to ignore the laws
of a nation with which we are not in a state of war and with
which, indeed, we may have treaty relations whose spirit, at
least, the "special activity" in question unarguably violates.
In my opinion, it is highly debatable whether it is in our
national interest for any such document to be personally signed
11 by our symbolic, ceremonial Chief. of State -- the President of
the United States --'thus.laying an undeniable paper trail that
runs directly into the Oval Office. Though all other nations,.
including our closest allies, frequently engage in covert action,
few -- if any -- are imprudent enough to make covert action
authorizations or directives a matter of written record, and none
would ever consider having any such authorization or directive
carry the personal signature of its ceremonial chief of state.
In any event, such a document -- particularly one signed by
the President -- is clearly a document of the highest delicacy
and sensitivity. Particularly in this age of Xerox machines,
having more than one record copy of such a document -- let alone.
circulating plural copies, to anyone -- is an enormous security
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risk. R.R. 3822, however, would require not only that such a
document be Prepared, in writing, for every special activity, and
personally signed by the President, it would also require -- in
its proposed Section 503(c), which I will address in a moment --
that in every instance,, two copies of each "finding", signed by
the President, be provided to Congress, one to the Chairman of
each intelligence oversight committee.
I am not for a moment defending all that was done, or not
done, during the course of Iran-Contra -- when the spirit of
current Section 501 was clearly ignored by the administration,
and its letter arguably violated. Furthermore, I am not denying
that in the complex, highly delicate sphere of covert action,
close -7 though diecreet -- cooperation between Any
administration and at least the leadership in Congress is
essential if our national interests are to be well served.
Nonetheless, I do Most respectfully urge this Committee to weigh
and ponder the considerations I have just discussed before moving
forward with proposed,sub -section 503(a)(1) of H.R. 3822, as that
?..!,,proposed sub-section is currently phrased.
-The fifth condition which H.R. 3822 stipulates that every
finding "shall meet" (Sub-section 503(a)(5)) is:
"A finding may not authorize any action that would violate
any statute of the United States."
This relates to the extraordinarily delicate considerations just
discussed in connection with the first condition (503(a)(1)). A
treaty is not a statute, but H.R. 3822 is here skating where the
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legal ice gets very thin; for some findings are going to direct,
.or authorize actions that certainly impinge on treaty
relationships. Whether all this should be spelled out in open
legislation is, to my mind, a very debatable question.
H.R. 3822's second condition (Sec. 503(a)(2)) is:
"A finding may not authorize or sanction special activities,
or any aspect of such activities, which have already
occurred."
This has an obvious Iran-Contra impetus, and Congressional
distaste for retroactive findings is quite understandable. This
condition's phrasing, implications and consequences, however,
merit further consideration; for as it stands, this condition
could easily be construed as a Ring Canute-like directive.
Actions that have already taken place can not be undone, any more
than waves can be rolled back, by decree. Also, this condition,
proposed Sec. 503(a)(2), is not entirely consistent with the
immediately preceding one, proposed Sec. 503(a)(1), which
. . ?
explicitly addresses situations in-which "immediate action by the
Utited States is required and time does not permit the
preparation ofa written finding". A later finding, even one
only 48 hours later, is still retroactive.
This particular-inconsistency is not serious, but it is yet
another indication of hasty drafting -= something that should not
mark intelligence oversight legislation, especially such
legislation dealing with the complex, complicated subject of
covert action. All in all, proposed Sec. 503(a)(2) might perhaps
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best be dropped.
The third of H.R. 3822's five necessary conditions for a
valid finding (Sec. 503(a)(3)) is:
"Each finding shall specify each and every department,
agency, or entity of the United States Government
authorised to fund or otherwise participate in any
significant way in such activities: provided, That any
employee, contractor, or contract agent of a
department, agency, or entity of the United States
Government other than the Central Intelligence Agency
directed to participate in any way in a special
activity shall be subject either to the policies and
regulations of the Central Intelligence Agency, or to
written policies or regulations adopted by such
department, agency or entity, in consultation with the
Director of Central Intelligence, to govern such
participation:" (emphasis in original)
This is obviously another Iran-Contra inspired ratchet-tightener,
intended to prevent covert action free-wheeling by U.S.
Government groups or entities, such as Lt. Colonel North's NSC
staff office, which are not under the CIA's direction, or under
guidance in which the DCI has formally concurred, and thus
potentially outside the oversight jurisdiction of the
Congressional intelligence committees.
The fourth of H.R. 3822's five conditions for a valid
finding (Sed. 503(a)(4)) is that:
"Each finding Shall specify whether it is contemplated
that any third party which is not an element of, or a
contractor or contract agent of, the United States
Government, or is not otherwise subject to United '
States Government policies and regulations, will be
used to fund or otherwise participate in any
significant way in the special activity concerned, or
be used to undertake the special activity concerned on
behalf of the United States:"
This also has a clear, eminently understandable Iran-Contra
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inspiration; but no matter how reasonable and defensible this
condition's intent may be, its language contains the potential
for more problems, of greater severity, than those engendered by
all of the other conditions combined. As it stands, this fourth
condition's language can be construed as being either trivial Or
extraordinarily dangerous, on security grounds, or both.
Virtually no foreign intelligence operation, certainly no
covert action operation or "special activity", can be
successfully conducted without the cooperation, and utilization, ?
of foreigners -- including individuals, entities or
organizations, such as Intelligence services, governments, or
some combination of any or all of these. No sensible U.S.
intelligence officer or service, could plan a "special activity"
without, at a minimum, "contemplating" that one or more foreign
individuals, organizations, services or governments might be used
"to fund or otherwise participate", in some-significant way, "in
the special activity concerned on behalf of the United States".
Foreign individuals or organizations who cooperate with a
U.S. intelligence service might be styled "agents" of the United
States or even, if there is some compensation agreement for
providing that cooperation, as "contract agents". Also, by
.forcing language .a bit, it might be argued that such "contract
agents" are, to some extent - under their "contracts" --
"subject to United States Government policies and regulations."
But theseare exercises in irrelevant casuistry. Few if any of
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the foreign individuals or entities -- "third parties" -- bound
to be participating in some "significant way" in any given
"special activity" could be meaningfully or accurately described
as "an element of, or a contractor or contract agent of, the
United States Government... subject to United States Government
policies".
If sub-section (4) is construed as requiring only a general
statement, then it is Virtually meaningless; for if it is so
construed, it can be satisfied by a standard, boiler plate
sentence mechanically .incorporated in every finding and Saying
something along the lines of\"The special activity herein
described of course contemplates the use and participation of one
oi more non-U.S. individuals, persons, organizations or
entities." If sub-section (4) is supposed to mean more than
that, however, 'particularly if it is intended to require giving
some specific indication of What types of non U.S. government
"third parties" will be participating, and in what ways, in the
"special activity" covered by a particular finding, then that
condition lays down a security minefield impossible to traverse
unscathed.
The language of the final sentence of H.R. 3822's proposed
sub-section 503(e) could easily be read as supporting a broad
construction of this fourth condition of sub-section 503(a).
That sentence says (in language evoking Gertrude Stein):
"A request by any agency or department of the United
States to a foreign country or a private citizen to
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conduct a special activity on behalf of the United
? States shall be deemed to be a special activity."
/f H.R. 3822 is enacted, as currently drafted, this sentence
could certainly be construed as meaning that the executive branch
is required to write and submit a separate finding on each and
every, request to a. foreign government, and each and every
recruitment pitch to a foreign national, for assistance in a U.S.
covert action oieration.3
Should proposed'Sec.. 503(a)(4) ever be given this type of
broad construction, now or in the future, satisfying its
requirements would inevitably involve security risks so grave
that no prudent U.S. President, administration, or Director of
Central Intelligence -- not to mention foreign individual, entity
or government -- would want 'to run them.
Consider, for a moment, the position in which a broadly-
construed Sec. 503(a)(4) would place any Director of Central
Intelligence. ThaNational Security Act of 1947's Sec.
102,(d)(3), as mentioned earlier, makes the DCI "responsible for
protecting intelligence sources and methods from unauthorized
3 A broad construction of proposed sub-section 503(a)(4) of
the National Security Act of 1947 goes directly against the grain
of the clause in section 6 of the CIA Act of 1949 which reads:
the Agency [i.e., CIA] shall be exempted from ... the
provisions of any other law which require the publication gr
, disclosure gf the organization, functions, games, official
titles, salaries, or numbers of personnel employed by the
Agency. (emphasis added)
This, however, is a complication that may have escaped the
drafters of proposed 503(a)(4).
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disclosure". 1.11t. 3822's proposed Section 501(e), rePeating the
language of current 501(e), stipulates that:
"Nothing in this Act shall be construed as authority to
withhold information from the intelligence committees
on the grounds that providing the information to the
intelligence committees would constitute the
unauthorized disclosure of classified information or
information relating to intelligence sources and
,methods."
In addition to engendering difficulties already discussed,
however, this sentence does not solve the problem a broadly
construed 503(a)(4), as proposed, would create;, because subtle
but very important semantic distinctions here come into play. .
The National Security Act's Sec. 102(d)(3) makes the DCI
"responsiblq for protecting intelligence sources and methods from
unauthorized disclosure" (emphasis added). Note that Sec.
102(d)(3), furthermore, is quite specific. It makes the DCI
responsible for protecting intelligence sources and methods
themselves -- not just "information relating to intelligence
sources and methods" -- from unauthorized disclosure.
Section 501(e), both current and proposed, does not absolve
a DCI of this responsibility. It only denies a DCI the authority
to withhold information "on the grounds that providing the
information to the intelligence committees would" -- i.e., of
itself -- "constitute the unauthorized disclosure of classified
information or information relating tp intelligence sources and
methods." (Again, emphasis added.)
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If broadly construed, proposed Sec. 503(a)(4) would require
a DCI, in the case of each "special activity", to approve or, at
a minimum, concur in a written "finding", to be signed by the
President, specifying the fact and nature of all non-U.S.
participation in that "special activity", with a minimum of two
copies of that document being sent to Congress for permanent
retention on Capitol Hill. Such a written reporting requirement
could easily put a conscientious DCI in an impossible position.
In a given case or in connection with any particular covert
action operation, a DCI might feel that the very existence of the
document required under a broad construction of Sec. 503(a)(4)
would put specific, sensitive intelligence sources and methods at
unacceptable risk. In such an instance, the DCI would have no
authority to block the preparation or transmission of that
particular document, even if that DCI felt his or her
responsibility for protecting the intelligence sources or methods
in question made it mandatory for that DCI to do so.
In this whole context, I respectfully urge this Committee to
consider over two centuries of relevant American reflection,
experience and precedents.
As John Jay observed in the previously quoted passage in
Federalist 64:
"There are cases where the most useful_ intelligence
may be obtained, if the persons possessing it can be
. relieved from apprehensions of discovery. Those
apprehensions Will operate on those persons whether
they are actuated by-mercenaryor.friendly motives.; and ,.
there doubtless are many of both descriptions who would
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rely on the secrecy of the President, but Who would not
confide in that of the Senate, and still less in that
of a large popular assembly."
Just over a half century later, President James Polk, in
refusing to disclose confidential intelligence expenditures to
Congress, forcefully argued in a letter to the House of
Representatives:
"In no nation is the application of such sums ever made
public. In time of war or impending danger the -
situation of the country may make it necessary to
employ individuals for the purpose of obtaining
information or rendering other important services who
could never be prevailed upon to act if they
entertained the least apprehension that their names or
their agency would in any contingency be divulged."
Only a year ago, on 8'April 1987, in testifying before this
very committee, Representative Norman Y. Mineta -- a staunch
proponent of strict Congressional intelligence oversight --
confirmed and acknowledged that the Canadian government did not
want its 1980 role in hiding, protecting and safely exfiltrating
American hostages from Iran to be reported to Congress by
President Carter in a finding -- at least while that operation
was in train.
In this whole matter, furthermore, H.R. 3822 attempts to
draw a distinction which may sound very simple, neat and tidy in
a proposed statute; but which in the real world is Very difficult
to draw, and often does not exist. In the actual conduct of
intelligence activities abroad, the cooperating institutional and
individual assets ("agents", if you will) used in "special
activities" and those used in normal, albeit sensitive,
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intelligence collection activities are often the same -- the same
institutions, the same organizations, and the same people. Given
the real world's exigencies and complexities, consequently, there
is often no way you can meaningfully distinguish -- for purposes
of reporting to Congress -- betweeen foreign institutions and
individuals who assist in the conduct of "special activities" and
those who assist in the conduct of intelligence activities in
general.
I know from my own experience as Chairman of the U.S.
Intelligence Co-ordinating Committee in Germany, from 1976-1979,
how skittish my-WestGerman, Israeli, and other friendly foreign
service counterparts were about sharing sensitive information,
especially operational information, on common concerns and
targets -- such as terrorism -- because of their worries about
how such information, after I reported it, would be handled back
in Washington, particularly if it was passed to Congress. The
--strong, almost universal perception of my foreign counterparts
was that in the United States, we were manifestly incapable of
protecting even our own secrets, hence we could hardly be relied
on to protect theirs. We may consider such foreign perceptions
unwarranted and inaccurate, but their widespread existence and
their force are facts that American intelligence professionals
can not ignore or brush aside when planning operations -- of any
nature -- in which cooperativcvforeign participation is
essential.
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Such foreign perceptions and concerns would be inflamed and
exponentially increased if H.R. 3822's proposed sub-section
503(a)(4) should ever be enacted into law, and then broadly
construed. Should it ever come to be widely believed abroad that
U.S. law required -- or even that there was a serious risk that
U.S. law might require -- the identification in a written
document, of which at least two copies would be sent to Congress,
of all non-U.S. individuals and entities, including governments,
cooperatively participating in any U.S. "special activity", our
pool of essential foreign assistance and support would swiftly
evaporate. The extent and speed of that pool's evaporation,
furthermore, would be increased by the fact that few foreigners
would note, and even fewer would pay attention to, any American
legal distractions between "special activities" and other
intelligence activities. In this sphere, foreign perceptions and
beliefs -- not our assessment of their accuracy or validity --
would be controlling.
From the perspective of 26 years' experience in the
profession of intelligence, / can state flatly that should H.R.
382241 proposed sub-section 503(a)(4), or anything like it, ever
be enacted into law, few foreign individuals or entities,
governments again included, whose cooperation and assistance we
wduld need to conduct "special activities" -- or, for that
matter, any intelligence activities of any consequence -- would
be willing to put their fortunes, reputations or, in the case of
individuals, their freedom and even their lives hostage to the
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discretion,or,secret-keeping capability of the Congress of the
United States.
NOTIFICATION TIMING PERTINENT I-S AND PROBLEMS ?
In H.R. 3822, "findings" are the official mechanisms by
which Congress, through .its intelligence oversight committees, is
apprised of "special activities" -- i.e., covert action
operations -- conducted by the executive branch, the intelligence'
community generally and, specifically, the CIA. Let us now put
aside the mechanics of notification and turn back .to the matter
of precisely who in Congress must be notified, and when: At what
point in a covert action operation's planning, development or
execution must that operation's existence, Mature and scope be
reported, must a "finding" about it be submitted, and to whom?
As mentioned earlier, these are .matters about which there is
a measure of flexibility and creative ambiguity in current
practice and legislation, including "Hughes-Ryan" and the
National Security Act of 1947's current section 501. During
Iran-Contra, the administration patently abused this flexibility
and ambiguity, provoking amply justified ire in Congress
generally and in the intelligence oversight committees, including
-- specifically -- this sub-committee's parent committee. To
prevent these particular abuses from recurring, H.R. 3822 would
curtail that flexibility and clarify the relevant ambiguities;
but as also mentioned earlier, H.R. 3822's proposed solutions to
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what are perceived as current problems would create new ones of
at least equal gravity.
H.R. 3822 would repeal "Hughes-Ryan" and strike current 501,
thus eliminating the "in a timely fashion" flexibility, of which
the administration took such politically inept advantage during
Iran-Contra. That done, H.R. 3822's proposed language would nail
shut all such "loopholes" and move briskly, purposefully and -
rigidly in the direction of "prior notification."
H.R. 3822's proposed subsection 503(c)(1) begins:
"The President shall ensure that any finding approved
pursuant to subsection (a) shall be reported to the j
intelligence Committees as soon as possible after such
approval and prior to the initiation of the special
sctivitv authorized by the finding." (Emphasis added.)
This is somewhat attenuated, in the next sentence, by the .
proviso:
"That if the President determines it is essential to
limit access to the finding to meet extraordinary '
circumstances affecting vital interests of the United
States such finding may be reported to the Chairmen
and ranking minority members of the intelligence ,
committees, the Speaker and minority leader of the
House of Representatives, and the majorityand minority
leaders of the Senate." (The so-called Gang of Eight.).
This proviso is inimediately followed, however, by a sentence
Stipulating:
"In either case, a copy of the finding, signed by the
President, shall be provided to the chairman of mgh
intelligence committee." (Emphasis added.)
Thus are mandated the two Capitol Hill copies! of each finding,
referred to and discussed above. 503(c)(1) then concludes:
"Where access to a finding is limited to the Members of ,
Congress identified above, a statement of the reasons
for limiting such access shall also be prdVided."
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Section 503 continues:
(c)(2) "In circumstanCes where time is of the essence
and the President deteraines.that it is important to
the national security interests of the United States to
initiate a special activity before the notice required
by paragraph (1) can be given, such activity may be
initiated without such notice.
(c)(3) "The President shall ensure that notice of a
special activity undertaken pursuant to paragraph (2)
is provided to the intelligence committees, or to the
Members of Congress identified in paragraph (1), AA
Soon as possible. but in no event later than forty-
eiaht hours after the special activity has been
authorized pursuantto subsection fal. Such notice
shall be accompanied by a statement of the President
setting forth why time was of the essence and why
proceeding pursuant to paragraph (2) is important to
the national security interests of the.United States.
(emphasis added)
(d) "The President shall ensure that the intelligence
committees, or, if applicable, the Members of Congress
specified in subsection (c), are notified of any
-significant change in a previously-approved special
activity, or any significant undertaking pursuant to a
previously approved funding, in the same manner as
findings are reported pursuant to subsection (c).
(e) "As used in this section, the term 'special
activity' means, with respect to the Central
Intelligence Agency, operations in foreign countries
other than activities intended solely for obtaining
necessary intelligence, and, with respect to any other
department -or agency of the United States, any activity
conducted in support of national foreign policy -
objectives --abroad which is planned and executed so that
the role of the United States Government. is not
apparent or acknowledged publicly, and functions in
support of such activity, and does not include
activities to collect necessary intelligence, or ,
diplomatic activities carried out by the Department of
State yr persons otherwise acting pursuant to the
authority of the President. A request by any agency or
department of the United States to a foreign country or
a private citizen to conduot a special activity on
behalf of the United States shall be deemed to be a
special activity.
ri
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(f) "No special activity may be conducted if it is
intended to influence United States political
processes, public opinion, policies, or media."
All of these stipulations merit some comment, starting with the
last one. On quick reading, proposed Sec. 503(f) might seem only
to repeat, in almost identical language, a thought inherent
sub-section 3.4(h) of Executive Order 12333:
"but which are not intended to influence United States
in
and
'do not include diplomatic activities or the collection and
production of intelligence or related support functions."
(emphasis added)
Actually, however, an easily overlooked shift in mood -- from
declarative to imperative -- produces a potentially very
significant shift in meaning between H.R. 3822's proposed 503(f)
and E.O. 12333's 3.4(h).
Executive Order 12333's Section 3.4 is titled "Definitions",
its sub-section 3.4(h) is a definition of "special activities",
and the words following "but which are not intended to" are
simply part of that definition.
H.R. 3822's proposed Sec. 503(f), conversely, is a
prohibition -- not. part of a definition. It says, as quoted
above,
"Nc special activity max bg conducted if it la intended to
influence United States political processes, public opinion,
policies or media." (emphasis added)
This mood shift makes the intent of the special activity in
question a threshold test of permissibility in H.R. 3822's
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proposed Sec. 5.03(f), not simply one defining characteristic of
"special activities" as is the case in.sub-section 3.4(h), of E.O.
12333. ,
A properly conceived, soundly managed and effectively run
covert action operation or "special activity" -- by definition --
will attempt to influence the course or evolution of events, in
some important foreign region, in a manner beneficial to U.S.
interests. If that operation is successful, its results are
bound to be widely reported in the media -- even if the U.S. hand
or the full extent of U.S. involvement in helping bring about
those results can be concealed. If such concealment proves
impossible -- as, in time, will usually prove to be the case
the fact of U.S. involvement will become a major part of the
story or, indeed, the major story itself. If a covert action
operation is successful, furthermore, its success is bound to be
politically advantageous to the U.S. administration then in
office -- and even more so if that administration's role in that
success becomes a matter of public knowledge (something any such
administration, of any party, would be strongly tempted to
ensure). If the operation in question is a failure, conversely,
or publicity about the U.S. hand in it becomes an embarrassment,
this is bound to have at least some adverse impact on the
political fortunes of the administration which planned and
launched that operation.
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Whether a success or i failure, in sum, a covert action
operation or "special activity" of any consequence even if it
was planned,. approved and run with only foreign objectives in
mind -- is bound to have some degree of effect or influence on
"United States political processes, public opinion, policies, ? or
media". This being the case, in real world life, proposed sub-
section 503(f) -- as presently drafted, (without any legal
penalties for its violation) -- would be very hard to construe
and apply (or enforce) in concrete situations, and could be
employed by opponents of covert action in an effort to block
"special activities" altogether. This was doubtless not the
drafters' purpose. Indeed, their objective semi reasccably
clear; but when this passage is couched in the imperative mood,
as a prohibition, the verb "intend" has to carry more weight than
it may prove capable of bearing.
Where definitions are concerned, there is also a serious
problem in proposed Sec. 503(e) -- one addressed and discussed in
some detail by DCI William Webster in his testimony before this
sub-committee, and its parent full Committee, on 24 February
(1988). Proposed Sec. 503(e) 'defines "special activity" in one
way with respect to Central Intelligence Agency "operations in
foreign countries" and a different way with respect to the
activities of "any other department or agency of the United
States". This produces precisely the confusion and difficulties
that the DCI forcefully and accurately described.
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There is another semantic problem, also an important one, a
bit earlier in proposed section 503. Proposed Sec. 503(c)(2)
says that:
"In circumstances where time is of the essence and the
President determines that it is important to the
national security interests of the United States to
initiate a special activity before the notice required
by paragraph (1) can be given, such activity may be
initiated without such notice."
Proposed Sec.,503(c)(3), however, says;
"The President shall ensure that notice ,of a special
activity undertaken pursuant to paragraph (2) is
provided to the intelligence committees, or to the
Members of Congress identified in paragraph (1), as
soon as possible, but in no event later than forty
eight hours after the special activity has been
authorized pursuant to subsection (a) -"-
(emphasis added in both of the above quotations.)
There is a latent contradiction between (2) and (3) which
could become very important in certain situations. In the real
world, there is frequently a delay of at least 48 hours, often
longer, between the authorization -- in Washington 7- of a
complex covert action operation or "special activity", and its
initiation half a world away. In such a situation, the short-
term tactical flexibility given the President by proposed
503(c)(2), "in circumstances .where time is of the, essence", is
taken away by proposed 503(c)(3).
This is by no, means a purely hypothetical problem. The
previously mentioned 1980 exfiltration from Tehran of six
American Embassy personnel, who hid for several weeks in the
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Canadian Embassy there, provides a perfect illustration of a real
world situation that would put a President directly in the cross-
fire between proposed 503(c)(2) and proposed 503(c)(3).
Exfiltrating American citizens -- in this case, U.S.
government employees who had escaped from a U.S. Embassy seized
by hostile local elements who were holding, as prisoners, the
other U.S.. personnel in that embassy -- might not be what the
term "covert action" would normally suggest or denote to most
people. Nonetheless, at least for the CIA, this would clearly be
a "special activity" within the definition given in proposed
503(e);.for such an operation would patently be something "other
than" an activity "intended solely for Obtaining necessary
intelligence".
In the 1980 Tehran situation, however -- as mentioned
earlier and as Representative Mineta explained to this very sub-
committee's-parent committee on 8 April 1987 -- the Canadians,
for their own security and protection, made their essential
cooperation contingent on Congress' n2t being told about what was
in train, or what the Canadians were doing, until after the
operation was concluded. In the 1980 Tehran situation,
furthermore, the period between the "authorization" and the
?initiation" of the "special activity" in question --
exfiltrating the endangered Americans Was measured in weeks,
not hours.
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Had H.R. 3822, as presently phratied, been on the statute
books in 1980; President Carter -- not President Reagan -- would
have been directly impaled on the horns of a very difficult
dilemma. He would have had to either:
(a) ignore the law, or
(b) tell the Canadians that he could not lawfully meet
the conditions they imposed on their essential
assistance, even though declining that assistance
clearly put American lives at risk.
I can not believe that any member of this sub-committee, or
of the full House oversight committee, would want to put any
American President, of whatever party, in such a situation. This
is far from the least of the reasons why I respectfully urge this
sub-committee to reconsider the language of H.R. 3822, and all of
that language's implications, before recommending that this
proposed bill, as it now stands, be enacted into law.
$0148 RAMIFICATIONS OF ',PRIOR NOTIFICATION,'
In its conduct of Iran-Contra, as previously stressed, the
Reagan administration clearly abused the discretionary latitude
afforded any administration of any party, in conducting covert
operations, by the flexibility and ambiguity of some of the
language in current statutes dealing with these matters. As the
legislative history of the pertinent statutes quite clearly
demonstrates, however, much of this flexibility and ambiguity was
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deliberately inserted into the.statutes in question, .for
excellent reasons. Particularly where matters as complex as
covert action are involved, even the most astute, discerning
legislators and staff drafters of legislation can not possibly
foresee, or codify in advance, all the concrete contingencies and
difficult real life dilemmas that are bound to arise. Sound
legislation in such spheres, consequently, has to give both the
executive and the legislative branches of our government some
measure of wiggle-room.
For reasons that are quite understandable but nonetheless, I
respectfully submit, seem focussed on an event (Iran-Contra)
unlikely to re-occur, H.R. 3822 would remove the ambiguity and
virtually eradicate the flexibility of the relevant current
statutes. Doing that, however, could easily prove procrustean
and generate serious problems in future contingencies or
situations not now forseen.
By reducing -the permiseible,exceptions to a bare minimum,
not always .inconsistent ways, H.R. 3822 would also push Congress
far deeper into the "prior notification" thicket. In the light
of Iran-Contra, this might seem desirable; but it is a punitive
move that would probably be rued by future Congresses, as well as
by future Presidents -- regardless of party.
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For one thing, making "prior notification" the required norm
for all but the most time-urgent "special activities", and then
,
adding an inflexible 48 hour notification strait jacket for them,
would exponentially increase the difficulty of keeping covert
actions covert. As the witting circle on Capitol Hill widens,
with respect to staffers as well as actual members of Congress,
there would be a concomitant increase in any given "special
activity's" vulnerability to being torpedoed by a pre-emptive
leak, even if a majority of both oversight committees endorsed
the "special activity" in question.
In the preceding sentence, the verb "endorse" was used
advisedly, for here involved is an irony to which I respectfully
direct this Committee's attention. The risk in question -- of a
pre-emptive leak torpedo -- is increased, not diminished, by the
last sentence proviso in H.R. -3822's proposed 501(a), which
repeats, in slightly altered language, the thought of current
501(a)(1)(A):
"Provided, That nothing contained in this title shall
be construed as requiring the approval of the
intelligence committees as a condition precedent to the
initiation of such activities." (emphasis in original)
The clear intent of this q, is Constitutionally
admirable; but its practical effect, in the real world, is likely
to be complex.
Most "special activities" will be controversial. The more
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-important or significant those activities potentially are, and
ditto the regions of the world on which they focus, the more
controversial they are likely to be. In any given instance --
particularly with respect to an activity that, for any reason, is
highly controversial no matter how many members, or staffers,
of either or both intelligence Oversight committees may .think the
operation in question is wise, even necessary, there are bound to
be some members, and staffers, who have reservations about it or
oppose it strongly.
As we all know, in real world situations -- personal,
professional and political 7- informed silence is frequently
construed, by others, as tacit assent. If a given, controversial
"special activity" goes sour or retrospectively becomes
politically unpopular, the argument that "Yes, I knew about it
and yes, I kept silent about it, but I really didn't approve of
it -- honest)." is not likely to carry much weight in debates with
opponents or (perhaps even less) with friends, in the voting
booth, or in some cases, with the individual consciences of
certain members or staffers of an oversight committee.
Even if legally impeccable, the language of proposed Sec.
30l(a)'s last sentence proviso is pragmatically ambiguous. It
purports to buttress executive branch authority,-or at least to
.refrain, explicitly, from derogating that authority; but what it
actually -- or also -- tries to do is absolve Congress of
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responsibility.
As is unfortunately the case with all of us, however,
members of Congress, and of Congressional. staffs, simply can not
have it both ways. They can not insist on prior knowledge of, in
this instance, special activities but disclaim responsibility for
the consequences of activities, or of actions, that they knew
about in advance and did not demonstrably try to prevent.
Particularly in a charged, partisan atmosphere such as that now
prevailing with respect to many important issues (e.g. Central
American policy), this is a consideration that members of
Congress Or staffers, strongly opposed to any given proposed
"special activity", would be disinclined to brush aside. It
would always provide a handy, conscience-salving rationale for
breaking discipline, ignoring secrecy pledges and attempting to
sandbag, by a leak, a contemplated, reported special activity
that Congress or an intelligence oversight committee,
institutionally, was not inclined or willing to oppose.
By insisting on almost universal prior knowledge of
projected "special activities", in short, Congress inevitably
assumes responsibilities it may not. wish to assume.-- including a
responsibility for increased security hazards. _While it may
disclaim responsibility for the consequences of special
activities it did not explicitly approve, furthermore, Congress
can not altogether avoid or deny that responsibility and must
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assume at least some of it if Congress is going to insist on
being informed, in writing, of virtually all such activities in
advance of their initiation. All of this, in turn takes Congress
into constitutionally murky waters, getting it deeply involved in
tasks it is not structured to perform and can ill-spare the time
to undertake, particularly when Congress has demonstrable
difficulty in discharging some of the responsibilities that the
Constitution clearly does assign to it -- such as passing
appropriations bills.
Once again, as President Carter's, not President Reagan's,
Deputy Assistant for National Security Affairs, David Aaron, put
the matter quite neatly when testifying before the House
intelligence oversight committee in September 1983 in connection
with "special activities" legislation:
"It was the purpose of [current] Sec. 501 to ensure
that the Congress had sufficient access to information-,
in a timely way, to be able to exercise [its proper]
functions in the field Of intelligence Activities. It
was not [one of] the goals of Sec. 501 to make the
Congress a co-decision-maker on covert action
operations."
THE DANGERS OF HASTY. EMOTION-INPELLED REPO.=
Drafted in the immediate aftermath of the Iran-Contra
Report's preparation, H.R. 3822's language, at least to this
reader's eye, reflects an eminently understandable desire to rap
Ronald Reagan's knuckles and tie ,his hands. But Ronald Reagan
leaves the Oval Office, permanently, in January 1989 less than
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a year hence -- and none of his successors, of whatever party, is
likely to forget or ignore the lessons of Iran-Contra.
Furthermore, if H.R. 3822 or any similar bill gets enacted, there
is no way of telling what future President's hands that law may
tie, under what particular circumstances, with what adverse
impact on U.S. interests.
Legislation affecting Congressional oversight of
intelligence activities, particularly "special activities", is
invariably complicated; for it inevitably involves the judicious
weighing and balancing of a myriad important, complex and often
conflicting considerations and equities. Such legislation should
not be drafted or enacted in haste or under the influence of
strong emotions, including pique. Nor is it wise to draft,
debate and enact such legislation amid the distractions and
pressures of an election year, including an election year's
temptations to adopt or endorse_poSitions, on controversial
issues, that are poll or popularity-enhancing in the short run,
but not necessarily, in the long-term best interests of the United
States.
Such considerations apply with particular force to issues
involving "reforms"; for reforms drafted and adopted under such
conditions almost invariably prove to have unintended, undesired
consequences. Also, they frequently get those who implement the
reforms in question, or supervise their implementation, emeshed
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in the micro-management of others' responsibilities -- such as
the Presidency's.
.During my own career in government, I was privileged to
develop a close association with the Honorable Birch Bayh, the
Senate Select Committee on Intelligence's second Chairman. We
differed on many issues, as we still do, but became and .remain
good friends. He visited me in Germany, as a guest in my home
where he was a great favorite with my children -= while I had
overall responsibility for the U.S. intelligence community there
and he was Chairman of the Senate oversight committee: On one
evening during that visit, I assembled a representative,, cross-
sectioned group, of my abler young officers who were deeply and
personally involved in our efforts to combat. terrorism and other.
threats to the security of the United States. We sat up all '
night (literally) having a frank; suitably lubricated, no-holds-
barred, give-and-take discussion. ;During that discussion, my - '-
front-line colleagues endeavored to explain, by citing a
succession of concrete-examples, how difficult it was to apply on
the banks of the Rhine -- and of other rivers around the world
the sweeping, "thou shalt not, aver, under any circumstances"
reform restrictions of the'mid*1970, which sounded so splendid
when proclaimed, passed, issued or endorsed along the banks of
the Potomac.
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As my young colleagues kept recounting their frustrating.
first-hand experiences with the results or consequences of these
"reforms", the good Senator kept repeating, like an antiphonal
response in a' Nigh Church Anglican service, "But this was never
the intent of Congress!" my equally antiphonal response was that
in the field; we did not have the luxury of trying to divine
Congressional intent. Instead, we had to be guided, and were
circumscribed, by what the government's lawyers, including the
CIA's, construed to be the meaning of the language in statutes
Congress enacted, such as the Foreign Intelligence Surveillance
Act, or in Executive Orders and internal CIA regulations strongly
influenced by Congressional attitudes.
MRAT OUGHT TO BE BONE
Despite their often vexing complexity, Mt. Chairman, and the
inordinate difficulty of conducting them effectively, let alone
securely, in an open, democratic society such as ours, I doubt if
any member of this sub-committee, or its parent, would waht to
take serious issue with the conclusion of the Congressional
Committees investigating the Iran-Contra Affair that "Covert
operations are a necessary component of our nation's foreign
policy".
In this regard, let me also redirect your attention to the
lead paragraphs in the "Recommendations" chapter (28) of those
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Committees' Report:
"It is the conclusion of these Committees that the
Iran-Contra Affair resulted from the failure of
individuals to observe the law, not from deficiencies
in.existing law or in our system of governance. This
is an important lesson to be learned from these
investigations because it points to the fundamental
soundness of our constitutional processes.
Thus, the principal recommendations emerging from the
investigation are not for new laws but for a renewal of
the commitment to constitutional government and sound
processes of decisionmaking."
No sensible person would contend, and I certainly do not,
that our current laws dealing with covert action, and its
oversight, can not be improved. This sub-committee and its staff
are to be commended on the thought, care and effort that have
clearly gone into the consideration and discussions of H.R. 3822.
For reasons I have tried to explain, however, I do not believe
that the end results this distinguished sub-committee or its full
parent Committee wants to achieve, in the discharge of its
Constitutionally-mandated responsibilities, are most. likely to be
attained by moving forward with H.R. 3822 or any similar
legislation, unavoidably drafted in some haste in the wake of the
issuance of the Iran-Contra Report and under the influence of
emotions which that unhappy affair inevitably engendered on
Capitol Hill -- particularly when any such legislation would have
to bee-liebated and enacted amidst the mounting, divisive and
partisan pressuresof an election year.
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Most respectfully, I commend an alternative course of action
to your consideration -- one suggested by the distinguished -
Chairman of the Senate's oversight committee, even though he is a
co-sponsor of H.R. 3822'e Senate counterpart, S. 1721.
In the thoughtful, previously mentioned 1 December 1987
Washinaton post essay, co-authored with Senator Danforth, Senator
Boren addresses foreign policy, generally, but his andhis co-
author's comments and suggestions have an obvious, direct
applicability to the specific matter of covert action as Well.
To underscore this point "covert action" is substituted for the
orginal's "foreign policy" in the lines from that essay quoted
below.
"What is needed is both a general statement of =art
action principles in the manner of the Vandenberg
Resolution and an ongoing process for Working out ?
specific differences as they arise, but before they are
ripe for legislative action:*
"If the views we have expressed make sense, then the
question remains: Where do we go from here?. The
answer depends on what tesponae, if any, we evoke from
the administration and members of Congress., We would
hope for an informal meeting of no more than a'handful
of administration representatives and interested
members of Congress for the purposes of 1) drafting a
statement of agreed covert actio n principles, and 2)
exploring a system for resolving covert action
disputes. If the call is for volunteers to convene
such a meeting, then count us in."4
4 "Foreign policy" is used in the original in the three
places where "covert action" appears in these two quoted
paragraphs.
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With respect to covert action, as well as foreign policy in
general, I hope the Meagan administration, in its final months,
has the wit and vision to take up the distinguished Senators'
admirable suggestion. If it does, I hope you and other members
of this Committee will also be willing to be "counted in".
-The nation's essential. covert action capabilities, along
with their proper oversight, will stand a far better chance of,
being lastingly improved-by some procedure such as these two
Senators suggest-than.by any legislation quickly drafted in the
Iran*Contra Report's immediate aftermath, then considered and
debated amidstthe steadily mounting pressures and distractions
of an election year.
The nation's interests would be far better served if,.
instead, a small group of knowledgeable, senior administration
officials, past or present, could beconvened to meet quietly
with a.corresponding, and correspondingly small, bi-partisan
group of appropriate Congressional leaders, from both Houses; and
,then, over the course of several months' frank, private
discussion, this joint body, working together, could not only
draft "a statement of agreed principals" regarding covert action
and explore "a system for resolving disputes", but also supervise
the measured, careful drafting of. any new legislation thought to
be warranted --.for formal introduction, debate, consideration
and enactment after the 1988 electoral season, with its attendant
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a
e,
4
demands and pressures, has passed. This may be a utopian dream,
but as a concerned citizen who has devoted a quarter century to
serving our nation as an intelligence professional, I would
relish seeing this dream become a reality.
Thank you very much for Your time and attention.
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Mr. McHuGH. Dr. Treverton.
STATEMENT OF DR. GREGORY TREVERTON, SENIOR FELLOW,
COUNCIL ON FOREIGN RELATIONS
Dr. TREVERTON. Thank you, Mr. Chairman. It is a pleasure to be
here this afternoon.
I, too, have submitted a statement. I will pick several points that
have been touched on by the previous speakers.
I believe that from time to time the United States should engage
in covert activity. It can be important for our national security.
At the same time, I respectfully disagree with the previous
speakers in that I strongly support the principles contained in the
reporting requirements of H.R. 3822. I do so not as to the constitu-
tional argument; that is not my terrain. Instead, let me speak to
what seems to me to be the important practical implications of
those reporting requirements.
As I look over the history of American covert action in the post-
war period, it does seem to me important that the Congress be noti-
fied as a matter of law in a timely way, not as a matter of execu-
tive discretion. There are two reasons why that reporting is impor-
tant.
One is, as elsewhere, getting Congress into the loop imposes?or
at least pushes in the direction of imposing a clearer process on the
executive branch. We saw in the 1960's, and we have seen again
here in the Iran-Contra affair how easy it is for officials in the ex-
ecutive branch?the CIA in the first case, White House staffers in
the second?to protect the President through some mistaken notion
of plausible denial. It is tempting for him to interpret his winks
and nods, and so "protect" him by keeping him in relative igno-
rance of what is going on. Requiring a finding to Congress puts the
President on the line and so makes the administration think and
think again.
The second reason why it is important for Congress to be in the
loop as a matter of right, not of executive discretion, is that Con-
gress ought to be an important source of counsel to Presidents, a
source of advice about what the broad mass of American people
would find acceptable in the realm of covert action if they could
but know about it.
As Mr. Reagan himself said, the criterion for covert action ought
to be that if it were disclosed, the American people would say "that
makes sense." We have seen over and over again, with the Iranian
arms sales most recently, how if Congress is cut out, the executive
loses that source of counsel, it loses that judgment about what the
American people would support if they could but know about what
is proposed.
That takes me to a final issue, which is the one that has been
raised often this afternoon: what to do about the hardest cases, the
cases like Canada. Now, I, like Mr. Carver, would not want the ex-
ecutive branch to have to make a finding to Congress every time it
approaches a foreigner to involve that foreigner in a covert action.
I doubt that is the intent of the committee.
But it does seem to me that loopholes in the reporting-require-
ments, either letting the executive have an unlimited amount of
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time at its discretion to report or otherwise leaving a big loophole,
that loophole will always arise in the hardest cases. And those
hardest cases, it seems to me, tend to be precisely the most impor-
tant ones in which to apply some judgment about what the Ameri-
can people would find acceptable if they could know about what
was planned.
The loophole will arise in cases like the arms sale to Iran, a case
that derived from the President's passionate feeling that they
ought to get the U.S. hostages released. That seems to me exactly
the case where you most want the Congress to be involved. For
that reason, the principles embodied in H.R. 3822 are important.
Giving the designated oversight committees of Congress access to
information about covert action in a very timely way as a matter
of right, not of executive discretion, is critical.
Thank you, Mr. Chairman.
[The prepared statement of Dr. Treverton follows:]
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Statement by
Dr. Gregory F. Treverton
Senior Fellow
Council on Foreign Relations
House Permanent Select Committee on Intelligence
Hearing on H.R. 3822
March 10, 1988
Mr. Chairman: It is a pleasure for me to have this
opportunity to appear before the Committee. I will confine
myself to the requirements for reporting to the intelligence
committees of Congress about covert action that are embodied in
H.R. 3822. I strongly support the principles reflected in
those requirements. They seem to me to provide the president
with enough flexibility to respond quickly if need be to
changing circumstances while assuring that Congress will have a
serious role in the process through its designated committees.
That role is consistent with our government of separated
institutions sharing power, in Richard Neustadt's famous
phrase. It also has proven to be a matter of simple prudence,
as shown most recently in the negative by the arms sales to
Iran.
Conducting secret operations in a democratic society is a
paradox. I first came to think about it seriously when I
worked for the first Senate Select Committee on Intelligence,
chaired by by the late Sen. Frank Church, where I spent much of
my time examining American covert actions in Chile, 1963-1973;
I then had the opportunity to reflect on covert operations from
another vantage point while serving the National Security
Council during 1977-79. These experiences led me to want to
step back while in academic life and assess the sweep of
American covert action in the postwar period; the result of
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2
that project is a book, published last year, Covert Action:
The Limits of American interventioD in the Postwar World.
For me, the security interests of the United States in a
world that often is not as we Americans would have it mean that
we cannot unilaterally foreswear covert action. That
conclusion, however, brings the paradox of managing those
operations in a democratic society to center stage. I would
like the standard for employing covert action to be set high --
when vital interests of the United States are at stake and no
other instrument will suffice. Bringing Congress into the
process is important both in principle, given our democracy,
and in practice if administrations are to be pressed to think
and think again before resorting to covert action.
When the Church Committee began its intestigations in
1974, it did so in the aftermath of Watergate and accusations
of improprieties by intelligence agencies. At one point,
Senator Church likened the CIA to 'a rogue elephant on the
rampage.' In the event we did not find many 'rogue elephants,'
at least not at the CIA. What we did find was a practice of
'plausible denial that created a troubling looseness in the
executive's review and control of covert action, even as in a
pinch it seldom protected administrations in power. In the
early days, the Congressional role amounted to the 'buddy
system' -- informal conversations between the CIA Director and
a few senior members of Congress.
Plausible denial and the buddy system did not emerge because the
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CIA had broken free of its political masters. They emerged
because that was how both administrations and Congress wanted
it at the time.
The perils of that practice of plausible denial were
graphic in the instances of the plots to kill Fidel Castro. As
Richard Helms, the CIA's Deputy Director for Plans and later
DCI, restified before the Church Committee in 1975, he was
almost plaintive in drawing implications of that practice:
...it was made abundantly clear.. .to everybody involved in
the operation that the desire was to get rid of the Castro
regime and to get rid of Castro. .the point is that no
limitations were put on this injunction... [but]
one.. .grows up in [the] tradition of the times and ,I think
that any of us would have found it very difficult to
discuss assassinations with a President of the U.S. I
just think we all had the feeling that were hired out to
keep those things out of the Oval Office.
If he had ever thought he would later have to testify before
Congress about what he had done, Helms reflected, he would have
made sure that his orders were clearly in writing.
Accordingly, the Church Commitee and its parallel body in
the House, chaired by Rep. Otis Pike, set about building on the
earlier Hughes-Ryan act. The committees worked to two broad
purposes. One, reflected in Hughes-Ryan, was to put an end to
the dangerous way plausible denial had come to be practiced on
occasion. The president would be required to sign a *finding,"
thus putting his name, and his reputation on the line. There
would be no future wrangles such as those over assassinations:
covert actions, wise or stupid, would reflect presidential
decision; there would be no doubt that someone was in charge.
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Or such was the hope.
The other purpose was to attach Congress to the process in
a way more systematic than the buddy system and at the same to
create focal points for Congressional consideration of covert
action. Congress would thus acquire information and
responsibility to match; less often would its members be able
to speechify in professed ignorance of covert action. That
degree of responsibility was not, and is not always
confortable; members of Congress have little incentive to take
the responsibility, much reason not to. But it seemed
imperative if the review process within the executive were to
be held to a high standard of accountability and if the entire
process were to reflect the sharing of power.
We even hoped that in time presidents might come to see
the oversight committees as a source of counsel. Perhaps that
was naive. The constitution does not exactly prevent that sort
of comity between executive and Congress, and it has occurred
from time to time -- Truman and Vandenberg, or Johnson and
Dirksen. But it is not easy. Still, simple prudence, we
thought, would dictate that presidents would pay close
attention to the views of the oversight committees as
surrogates for the American people, as advice about what
Americans would think about a covert action could they know of
it. As President Reagan put it, the standard should be such
that if a covert action is disclosed the American people will
deem that makes sense. Including the oversight committees in
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5
the process is a way to find out something about what those
Americans would say without having to disclose the covert
action. It would serve as a check on any "can-do ? attitude
within the executive or on the temptations of White House
staffers.
The process is hardly perfect or tidy. But most of the
time the process seems to have worked as it was intended. The
congressional overseers have been informed of covert action and
recorded their views; sometimes those views have prevailed. In
others, they have expressed their concerns but then let the
program go ahead despite their doubts. Most of the time, in
either case, the process has remained secret. The Reagan
Administration wanted to make use of covert action much more
frequently than its predecessor, and the oversight committees,
reflecting the mood of Congress and probably of the American
people as well, assented to that expansion of covert action.
The exceptions -- aspects of aid to the Contras and the
arms sales to Iran -- are graphic demonstration of the dangers
of excluding Congress. That role is no guarantee of wiser
policy; perhaps the committees would have been seduced down the
road from hostages to arms sales just as the Administration
was. But at least then the aftermath would have been a joint
exploration of policy failure, not recriminations. And I
suspect that Congress would have pressed the Administration to
judge the operation again in light of the President's 'makes
sense criterion.
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t4
4
6
The principal argument against requiring that every major
covert action be reported to the committees within 48 hours
seems to be the fear of leaks. Surely it is appropriate to
take that concern seriously, for lives can be at stake.
However, as I read the history, the intelligence committees
have not been leaky, quite the contrary. From the beginning,
they have known that any leaks from them would only give the
administration in power, never mind is party, justification for
excluding the committees as 'leaky. They have been scrupulous
about leaks, careful in their compartmentation; the numbers of
people in Congress who know about any operation are few by
comparison to those in the executive.
In a curious sense, Senator Leahy's unfortunate case
illustates the special concern of the oversight committees. He
resigned, appropriately in my view, after leaking prematurely
an unclassified report that was not yet released. Applying the
same standard to the executive would, in my experience,
decimate the top ranks of any administration.
Concern over leaks, while appropriate, should not override
the reasons -- of both prudence and principle -- for including
Congress in the process of reviewing covert action. What is
important is that the inclusion be a matter of right, not of
executive discretion, and that the views of the oversight
committees be heard in time to permit an adminstration to
re-think its intentions.
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Mr. McHum'. Thank you very much.
As it happens, you three gentlemen are the last witnesses we
will hear from in this series of hearings. I think it is appropriate
for me to say that we have been very fortunate, I think, to have
people of the background and experience and thoughtfulness that
you gentlemen represent and the others we have heard from repre-
sent. It has been a very informative and interesting series of hear-
ings for me, and it is probably hard to focus on anything that is
novel or new at this point as well.
So if I repeat myself, please excuse me.
Let me pose a number of questions to you, General Scowcroft and
Dr. Carver, because as a proponent of this legislation I do have
some differences, or at least questions.
First of all, I think, as I have indicated earlier, the intent of this
legislation is to clarify what we believe to be existing law. There-
fore, I would like to begin by asking whether there is any quarrel
on your part with existing law.
As you know, under current law the President is generally re-
quired to provide prior notice to the intelligence committees or, in
particularly sensitive cases, to the small leadership group when he
authorizes a covert operation. This is, he is required to give us
notice before he begins implementing a covert operation. That is
the general rule.
Do either of you have a quarrel with that general rule, which is
now part of the law?
Lieutenant General ScowcRorr. Well, Mr. Chairman, I think it
is of questionable constitutionality, but I don't have a quarrel with
it as long as the President reserves the discretion to decide when
and under what circumstances he has to do it.
I am relaxed about the statute as it exists, but we have taken an
unfortunate step forward with this particular bill.
Dr. CARVER. Mr. Chairman, let me plug a couple of things?
which we could talk about all day but obviously won't.
First, I know that the intent of the proposed law was simply to
clarify what exists. But I do submit?and this I tried to take up
both in this statement, and in the portions that I didn't cover (in
my full statement)?with all due respect to its drafters, that this
bill displays the evidence of hasty draftsmanship. There are inter-
nal contradictions in it. There are things that would raise major
new uncertainties.
For example, it drops the preambular clause of section 501(a) in
a way that has riple effects which are quite confusing. It sets up a
new criterion for protection of intelligence sources, limiting that
protection to "sensitive intelligence sources," but in no way defines
the limiting adjective "sensitive."
There are a number of other difficulties throughout this bill.
Hence, I think that whatever be its intent, this bill needs a very
good clean drafting scrub by people looking for inconsistencies.
On the other, larger question of law, there are certain battles
that have been fought. I am just a private citizen, now retired and
not a lawyer. I don't like some aspects of the present law, but I am
not sure that change would necessarily be an improvement.
One thing that I don't like about the present law involing an
area where the present law is a little bit vague, and the way the
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bill you are considering would eliminate that vagueness I get very
skittish about Presidents signitig findings, which are written docu-
ments, partly because in our system of government, our President
performs two functions, which most other governments divide: He
is the chief Political officer, a partisan political figure. He is also
the ceremonial chief of state, the focus of national interest, who
speaks for the United States.
Most covert action, Mr. Chairman, involves violating some other
country's laws, and I think the wisdom of having our chief of
state's signature on a written document directing agents or agen-
cies of the U.S Government to violate some other nations' laws, in-
cluding nations with which we are not in a state of war, is a very
debatable proposition, more debatable than many people would ac-
knowledge.
I am also very skeptical about the advisability of insisting that
all findings, even on the most sensitive matters, be reduced to writ-
ing. I am not at all opposed to folding Congress in more carefully
than it has been folded. Certainly no one is defending Iran-Contra
and what was done there; but what is written can be xeroxed, and
when you start circulating, out of the Oval Office documents of
that nature, you are asking for trouble.
So, no, I am not uncritically supportive of everything in present
law, but I would be extraordinarily skittish about changing it, par-
ticularly in the wake of Iran-Contra, and doubly so amidst the pres-
sures of an election year.
Mr. McHuGH. In the interest of time, if we have differences on
current law, our differences are broader than I would expect and
therefore we might not be able to bridge them all.
But from the perspective of the authors, assuming that current
law is generally acceptable and current practices generally accepta-
ble, what we are doing here really is trying to define what we
mean by timely notice, where the President in his discretion with-
holds prior notice; that is to say, where he chooses not to notify
Congress before the implementation of a covert operation.
The current law requires that he provide notice in that case "in
a timely fashion," after the implementation begins.
Now, what does that mean?
In the case of the Iran arms sales, the administration interpreted
it to allow no notice, at least for a period of 10 months. There was
never any notice given to the Congress about this fundamental
policy decision.
Now, administration witnesses, reflecting upon those circum-
stances, have admitted here to a person that that was unwise. Con-
gress should have been notified.
But the problem we face is that the legal opinion of the adminis-
tration is that that was fully authorized within the law, and that
means, it seems to me,- at least theoretically, that any administra-
tion in the future could do the same thing and not be in contradic-
tion of the law, and that is not acceptable to those of us who think
that congressional oversight is something to be taken seriously.
I am not questioning the integrity or sincerity of the people who
are not testifying from the administration, but I am questioning
whether or not that legal opinion that we are facing is something
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which would provide for meaningful congressional oversight as in-
tended by current law, as at least it has been read until now.
Dr. CARVER. Mr. Chairman, I am not a lawyer. I am not going to
defend what the administration did. It was silly.
"Timely" has a certain amount of creative ambiguity. It clearly
does not mean time denoted in months, but I think any attempt to
specify a time, particularly a near-term time?I mean 48 hours,
even 2 days is ill advised. A finding is a very complicated docu-
ment. It is going to take internal preparation. It is going to take
internal coordination. It shouldn't be slapped together. Putting one
together in 48 hours, particularly if the President happens to be
out of town, and getting it disseminated is going to be extraordinar-
ily difficult.
I think in any attempt to specify 48 hours, 36 hours, 72 hours?
or whatever?you are going to find a hard case that straddles the
specification.
I would much rather Congress put a clear shot across this admin-
istration and its successor's bow by indicating "one more step out
of line and we will tie your hands in ways that you really won't
like," rather than by jumping in and trying to specify what you
can't quantify.
Mr. McHuGH. My time is about up. I will ask just one more ques-
tion.
What we are really down to in a worst case situation, from the
administration's perspective and yours, is requiring the President
within a 48-hour period to tell eight people in the leadership of the
Congress of the United States. That is what we are talking about.
Lieutenant General ScowcRorr. Mr. Chairman, it is not quite
that simple because the bill says those eight people, if you limit it
to those eight people, it can be done only to meet "extraordinary
circumstances affecting vital interests of the United States."
Now, I don't know how many vital interests we have, but it cer-
tainly would not extend to the Canadian Embassy people. That is
not a vital interest of the United States. It is to the people in-
volved, not to the United States.
We probably don't have a half dozen vital interests. Vital means
we cannot survive unless we protect them. That is an extreme re-
striction on alternative notification.
Dr. CARVER. It is probably more extreme than the drafters in-
tended, Mr. Chairman, but once again the drafters use a lot of lan-
guage whose full implications I don't think they quite know.
Mr. McHuGH. Dr. Carver, this is current law. What we are talk-
ing about now is current law.
Dr. CARVER. That is right, but those drafters were equally--
Lieutenant General ScowcRorr. That does not much help the sit-
uation if one takes it seriously.
Mr. McHuGH. I think as a practical matter that definition is left
indeed in fact to the President's discretion, and it has never been
questioned by either the Executive Branch or the Congress, and if
the President chooses to limit his notification to those eight leader-
ship people, it has never been a matter of controversy between the
two branches.
Mr. Hyde is shaking his head.
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Mr. HYDE. I just think it is a sloppy way to legislate. The words
have got to mean what they say.
Mr. McRoca. Look, the bottom line?I will defer to my col-
leagues because I have taken more than my allotted 10 minutes?I
think it is important to remember in this debate what the alterna-
tive is to doing what we are exploring here; that is, to try to make
clear what we think is important by way of notification?and it is
not a veto power we are talking about here. It is simply notifica-
tion to the Congress?the alternative to that is what we in fact got
in the Iran case.
Now, hopefully, that is an aberration and it is an exception and
it won't happen again; but we are faced with a legal opinion and a
position by this Administration and many others who are distin-
guished witnesses that that is the law and that we cannot expect,
legally at least, anything more from an administration than what-
ever the administration chooses on its own discretion to decide to
give to the Congress, even when it is a fundamental policy decision
such as selling arms to Iran.
Now, that is not, for some of us at least, an acceptable arrange-
ment and a reasonable balance between the two branches on mat-
ters of fundamental importance to the country.
Lieutenant General ScowcHorr. But, Mr. Chairman, what- you
are trying to do is to say the President can't go it alone, and I
think if there is anything that has demonstrated that in his own
self-interest, it is the Iran-Contra affair. He cannot conduct any se-
rious foreign policy on his own. Sooner or later, he has to come
back to you.
Now, if you know within 48 hours, 72 hours, does that really seri-
ously affect your oversight power?
The implication seems to be that somehow if President Reagan
had come up here and told you about the Iran affair you would
have objected and he would have said, oh, my goodness, I didn't
know that, well, I certainly won't do it. I think there is no reason
to assume that he would have changed his mind had he gone
through with notification as would be considered timely.
He heard objections, serious objections, from members of his Cab-
inet, from his principal advisers. This is something about which he
felt strongly, and it seems to me?and I am not a constitutional
lawyer?that he was within his rights to do it.
Mr. McHuGH. He was within his rights to do it. The question is
whether or not he should have.
Lieutenant General ScowcHorr. He should not have. We all
agree.
Mr. McHuGH. He should have notified at least a certain number
of people in Congress under the law.
Mr. HYDE. If the gentleman will yield.
Mr. McHuGH. I'll be happy to yield to you, Mr. Hyde, and then
to Mr. Livingston.
Mr. HYDE. The question is, as a matter of law, do we, the Con-
gress, have the constitutional authority to invade the executive
function which is given to him by the Constitution in broad terms
and tell him legally, not as a matter of policy?but legally?that he
must exercise that Executive power in a certain way, within a cer-
tain time frame?
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I submit to you that we don't have the constitutional power, but
we really don't need it. As a matter of policy, as a matter of
common sense, any President who doesn't?and it should be more
than notify, he should consult. He should talk to us and get our
input. Not just say, "Here it is, boys," but in any event, we don't
have the constitutional power to tell him how he must execute
what is clearly his constitutional authority.
We do have every justification in the world for suggesting it's
stupid. He'll pay a fearful price politically, and President Reagan is
still paying that price.
And some candidates for President are going to pay a price, or
are paying a price. And he's not getting away scot-free. We don't
have to tighten up the laws. We have to tighten up enforcement.
And they're going to be penalized.
But, to tell the President he has to exercise what is essentially
his authority within 48 hours is clearly unconstitutional, in my
humble opinion. And I think we just have to realize that. Desirable
as some may feel it is.
Mr. McHuGH. Well, Henry.
Mr. HYDE. That's just my strong feeling.
Lieutenant General ScowcRovr. I certainly agree with that.
Mr. McHuGH. Let me just say for the record that we do have
constitutional experts who take a different view, Henry. This is not
a self-evident issue.
Mr. HYDE. I understand.
Mr. McHuGH. And as a matter of record, we have people who
have given us statements to the effect that the Congress does have
the constitutional authority to ask the President in cases like this
to share with members of the Intelligence Committee.
Mr. HYDE. You said ask. We're telling him what he has to do.
That's a big difference.
May I just make a couple more comments? And then I'm
through.
Mr. McHuGu. Mr. Livingston has the time.
Are you willing?
Mr. LIVINGSTON. Go ahead.
Mr. HYDE. All right. Just very briefly. I think this has been mar-
velous testimony from all three of you.
Dr. Carver, you have written a book here and it's not going to be
wasted; I can assure you, I'll read every word of it. And I know my
colleagues will, too.
General Scowcroft and Dr. Treverton, you have made an im-
mense contribution. Let me just say this to you though, Dr. Trever-
ton.
You are much more benign than I would be when you say, as I
read the history of the Intelligence Committees they have not been
leaking. Quite the contrary.
Oh, Doctor, you know more than I, I'll tell you. And I serve on
the committees.
Page 26 of Dr. Carver's statement, and I wouldn't mention it but
he does, says:
Much more recent events here in March 1987, a former Chairman of the Senate
Select Committee on Intelligence relinquished his chairmanship only 2 months ear-
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A
lier and spoke to a group of potential suPportera convened in Florida in the wake
and in the context of the Pollard affair.
The former chairman, just 2 months away from his post, alleged to that audience
that the Pollard case had been preceded in 1982 by a similar U.S. intelligence oper-
ation targeted against Israel.
An allegation that both the United States and the Israeli Gov-
ernments immediately and -emphatically denied with some embar-
rassment?and haste, I might add.
The Chairman of the Senate Committee, who still has problems
with that disclosure, the Vice Chairman left under circumstances
you mentioned, which you say were benign.
OK. You mentioned the Pike Committee. You know the report
was taken by Daniel Schorr, and he lost his job with CBS over it.
We have leaks. I have a book of leaks this thick that I don't
know who leaked them all. If my life depended on it, I could make
some educated guesses?not as to the name, but as to the source.
So I don't think you can say that the Intelligence Committee
doesn't leak. We have yet to have a real good investigation of a
couple of them that I think demand it.
Dr. TREVERTON. Could I say a word about that?
It's certainly true that there have been leaks from the Intelli-
gence Committee. But, as a comparative matter, looking at the
time period since the committees were established, that they have
been on the whole not more and probably a good deal less leaky
than the upper echelons of administrations.
Mr. HYDE. We made a study of that. And if you take the number
of people in the Executive that have clearances and people in Con-
gress that have clearance, and then you look at the leaks pound for
pound, Congress, it seems to me, is 60 times more likely to leak.
And we've got some figures on that.
Dr. TREVERTON. But they have been leaks from other than the
Intelligence Committees.
Mr. HYDE. Of course. And we all remember Leo Ryan's famous
interview with Daniel Schorr, when he said:
I have a duty to leak. If I don't like a policy, I think it's not in the best interests
of our country, I have a moral duty to leak.
I presume, when you're confronted with that, let me just say?
my last words, and I appreciate your indulgence?we are spending
our time and our energy and our fervor and our zeal and our out-
rage on extracting better disclosures from the government, from
the administration. OK?
But we're spending no time on doing something about the leaks.
We're not criminalizing the unauthorized disclosure. We don't
bother with that.
I've got a bill to have a joint committee of the Intelligence, fewer
people within the loop, can't get hearings. I've had it since 1984.
That problem we're not looking at. But we are looking at this
problem, which I think doesn't need to be fixed, at least legally, in
a way that I think squeezes the Constitution out of shape.
Dr. TREVERTON. What would seem to me important, though, is
confronting the argument that is made against these reporting re-
quirements on the grounds that the Intelligence Committees are
leaky. That seems to me to be a red herring. There may be good
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reasons to be against those reporting requirements, but leaks are
not one of them.
Mr. HYDE. I think, if we prosecuted the leaks and if we crimina-
lized the leaks, you know, human nature is not going to change.
We have to be consulted as a matter of policy.
But my problem is with mandating the President to do some-
thing within 48 hours. We just can't do it. I'm sorry.
Lieutenant General SCOWCROFT. If I could just comment very
briefly on this, I would agree with Gregg. I'm not sure that the Ex-
ecutive is not, in general, as leaky or more leaky than the Con-
gress. But that does not apply to covert action.
The procedures in the executive branch on covert action and the
seriousness with which they're taken, I think prevent leaks on
covert action. They just don't happen.
And the President does not have that kind of control over the
Congress. Therefore, he's bound to be reluctant to share the kinds
of things where people's lives?not only the policy against disclo-
sure, but people's lives are at stake?to a body over which he does
not exercise any control.
Mr. HYDE. Thank you very much.
Mr. LIVINGSTON. Just a few loose ends I want to tie up.
General Scowcroft has indicated very clearly that current law
really is sufficient to cover the problem. What we have is not a
legal problem, we have a political problem.
If the President and the Administration made political mistakes,
they have paid dearly for them. I would certainly hope that any
future Administration would learn from those mistakes.
Not to leave you alone, Dr. Treverton, you said--[Laughter.]
You said that we don't need to leave loopholes, that the current
law leaves loopholes.
Well, the propsoed bill does more than plug loopholes. It puts un-
reasonable restrictions on the President by saying that he must
consult with Congress in advance of any proposed covert action in
all but the most exceptional circumstances.
And as General Scowcroft says, in all circumstances except those
which deal with vital security interests. Yet, President Carter took
three months under then existing law.
Now, you're essentially saying for two reasons. First of all, even
if that were a vital instance of national security, the saving of the
lives of some six people?even if that were vital?he was still long
overdue by almost 3 months, less 2 days.
And then, if you can accept the argument of General Scowcroft
that that isn't even a vital security interest, to save the lives of six
Americans, then he was wrong from the day that he committed the
covert activity.
Are you foreclosing that option? Are you saying to American citi-
zens who might be abroad, who might be jeopardized under similar
circumstances, as they were under the Carter administration, when
they were captured by Teheran, "Check off, folks, because you're
not vital and you don't count, because if we saved you, that would
be a loophole"?
Dr. TREVERTON. I share your nicely old-fashioned sense that we
ought to be careful about words. I would like us to do so as well.
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But, as a practical matter, we- all know that covert action, like
other matters of policy, is a tussle. It's going to be a struggle be-
tween the executive and Congress.
What seems to be important is to impose the burden on the
President to make him think, and think again. If Presidents are de-
termined to go ahead if they feel it's very important to go ahead,
they'll do it. We all know that,
But the burden should been the President to ask himself why he
isn't going to consult with Congress on a proposed covert action.
Mr. LIVINGSTON. Dr. Treverton, we're mandating it in law. It's
not just a legal burden. It's not just a legal discourse, the discus-
sion. What you're talking about is placing the lives of American
citizens in jeopardy.
You know, for us to sit across the table going back and forth
here and talking about that potential is academic. For the people
who might be placed in jeopardy, it may be the end of existence.
Now, are you telling me that for the sake of proposing that all
future administrations conform to legal niceties, that future lives
of American citizens don't matter?
Dr. TREVERTON. No, of course not. But, we can all imagine par-
ticular cases that fit our purposes. But imagine that Mr. Carter
had to go through the 1980 episode again under this law. Then it
seems to me he would have had several options.
He would have had one option to go back to Canada and say,
Listen, under my law, I've got to tell at least eight Members of
Congress. I'll tell them under the utmost secrecy. They'll sympa-
thize with the operation. Can I do that?
If Canada still said no, then he would have had the option of
either not doing it or of going ahead and--
Mr. HYDE. Getting impeached.
Dr. TREVERTON. In those circumstances, he would have risked
what people would say, OK, he broke the law but in exceptional
circumstances. He was justified in doing so. I dare say no one in
Congress would have moved to impeach Mr. Carter for getting six
Americans out.
Mr. LIVINGSTON. They might impeach Mr. Reagan.
Dr. TREVERTON. No one wanted to in the Iran-Contras case, and I
can understand why.
Mr. LIVINGSTON. For Dr. Carver and General Scowcroft, do you
see any redeeming qualities in the proposed bill, H.R. 3822? Or any
of the proposed changes contained therein which really need to be
made?
Lieutenant General ScowcRoFr. I guess what I would say briefly
is that I think that President Reagan has gone to extreme lengths
to correct the problems within the executive branch, which let this
unfortunate thing happen. That they are more than adequate.
If I were in the Government and this bill came to the President's
desk, I would strongly urge that he veto it on grounds that the leg-
islation demonstrates that it was not possible to cooperate with the
Congress. And, therefore, he had to insist on his constitutional
rights.
Mr. LIVINGSTON. Dr. Carver.
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Dr. CARVER. The present law was written by humans and can
certainly be improved, as any human artifact can. But the short
answer to your question, Mr. Livingston, is no. I really don't see
any material advantage that could be gained by H.R. 3822 or S.
1721.
I can see a lot of disadvantages, some of them the unintended re-
sults, I think, of hasty drafting. And I certainly would much prefer
that any changes in the law be made in a more leisured way, free
from some of the pressures that are attendant on the current legis-
lation, which I think would be regretted even by those who drafted
and enacted it within a matter of years, if not months.
Mr. LIVINGSTON. Thank you.
Dr. Carver, perhaps this is best addressed to you. Any of the
others may feel free to comment.
How difficult do you believe it will be for us to assure those for-
eign participants that including a number of Members of Congress
in the circle of knowledge in advance of covert actions does not sig-
nificantly increase the risk of harm to those participants; that is,
under circumstances such as Canada.
How easy would it be to persuade them, as Dr. Treverton pointed
out, that law compels us to advise the Congress. And it's really not
so bad, just go along with us.
Dr. CARVER. It depends, of course, on the particular case and the
particular foreigners. The short answer is I think it would be ex-
traordinarily difficult to persuade other foreigners, who are skit-
tish enough about America's ability to keep secrets, to persuade
them to go along with increasing the witting circle, particularly in-
creasing it up on Capitol Hill.
Fair or not, the perception exists of closed door hearings being
held during the Iran-Contra with General Scowcroft and his col-
leagues and then people falling all over themselves to get to the
microphones to tell what was going on in the closed door hearings.
I don't mean to be indelicate, but things like the Durenberger
episode sent a shock wave through the professional intelligence
community around the world. And I think, as a matter of practical
reality, that there is enough nervousness already about the Ameri-
can ability to keep secrets, and that nervousness would be materi-
ally increased at any intimation of passing further information to
Congress, even if that increased nervousness were unwarranted or
unjustified, particularly with regard to specific individuals.
But the specific individuals can change. A given set of eight lead-
ers might be perfectly secure. But you can easily imagine a situa-
tion where of those eight, there might be one or two, on particular
issues, about which particular governments would have certain
concerns that might not be entirely unwarranted.
Mr. LIVINGSTON. By the Durenberger episode, you are referring
to the chairman of the Senate Intelligence Committee?
Dr. CARVER. Yes, sir, coming out 2 months after this chairman-
ship and talking about a covert operation.
Mr. LIVINGSTON. And he would have been one of the designated
people?
Dr. CARVER. He would have been one of the designated eight be-
cause he was chairman of the Senate Intelligence Committee.
Mr. LIVINGSTON. Thank you very much.
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Mr. MCHUGH. Mr. Stokes.
Mr. STOKES. Thank you very much, Mr. Chairman.
Let me greet this very distinguished panel. It's a pleasure to
have your appear before the subcommittee. I would just like to
have some reaction from the panel regarding the Canadian situa-
tion.
I think that we are forgetting here to acknowledge the fact that
the currently existing law was not the law at the time that the Ca-
nadian situation arose, at the time that President Carter was con-
fronted with the Canadian situation.
The Hughes-Ryan law was in effect, which would have required
him, the President, to. notify eight committees in the Congress.
That is a lot different from having to notify the two Intelligence
Committees of the Congress, or in the alternative, notify the so-
called gang of eight.
And a part of the consideration in the enactment of the 1980 law
was to alleviate that situation. It was a cut-down from eight com-
mittees of the Congress to two committees in the Congress, and
then a further cutdown to eight members of the entire Congress.
So it would seem that we are not really confronted with the
same situation any more that President Carter was confronted
with in the Canadian situation.
I would appreciate any comments that any of you might have in
that regard.
Lieutenant General Scowcxorr. Mr. Chairman, it seems to me
that we are dealing with what is likely to be, in any case, only a
very small handful of proposed covert operations, a very small pro-
portion.
Really, those where people's lives are seriously at stake and
where an operation may involve substantial advanced planning,
maybe the implacement of agents in foreign countries, and so on.
In those circumstances, it seems to me that it's important to
leave it to the discretion of the President to have the authority to
protect those lives. I think we all agree that timely notification was
violated in the Iran-Contra Affair. There's no question about it.
But, to be so rigid as to require notification, regardless of the cir-
cumstances, within 48 hours, not of executive but of the President's
decision to go ahead, it seems to me does not leave him the flexibil-
ity to do what's required in some cases.
Dr. CARVER. Mr. Chairman, may I follow up?
I don't have the text of section 662 committed to memory, but I
believe, sir, that that language of Hughes-Ryan did give him the
"in timely fashion" wiggle room within which he didn't have to
notify anybody.
Certainly, I think that's the way he behaved. I believe that the
curtailment of notification from eight committees to two?although
again Appropriations and, to some extent, Armed Services, deal
themselves into the act a little bit, as you know?that was a step
forward.
But the wiggle room, the ambiguity, the elasticity, the loophole,
whatever you want to call it, of the "in timely fashion" enabled
President Carter to get through that situation without violating
the law.
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If there had been a 48-hour notice requirement, even on notify-
ing the Gang of Eight, I don't think you would have been able to do
so. And I think he would have been impaled on the dilemma we
have discussed.
I think, with all due respect, Mr. Chairman, that requiring a
President, without exeception, to notify?even if he's dealing in a
situation as he was then, where a foreign government?and it's
they who are providing the embassy, they don't have to help us?is
a mistake, the proponents may easily say, "I'm terribly sorry.
Don't give me a lecture on your Constitution. I'm telling you the
terms and conditions under which we will provide this assistance.
Meet it or not meet it. If you want the assistance, meet it. If you
don't, that's your problem, not ours."
That's the kind of real life situation the President has to deal
with, sir. And I think that, in that case, the flexibility of "in timely
fashion" overrode?the advantage of the flexibility overrode the
disadvantage of not having to inform the committees.
Dr. TREVERTON. Mr. Chairman, I disagree with both the previous
comments. I think the circumstances have changed since 1980. And
I think the bill as proposed would provide the President enough
flexibility to meet extraordinary circumstances.
It's certainly true that other governments always worry about us
being leaky, unable to keep secrets. If they had their druthers,
they'd all like us to be very different, a very different kind of
system then we are.
But it does seem to me that the proposal, particularly the option
of letting the President notify only eight Members of Congress in
extraordinary circumstances, which hasn't been used to my under-
standing very often, does provide enough flexibility for a President.
I think it would have provided enough flexibility for Mr. Carter
in 1980; we can't know for sure but the existing state of the legisla-
tion and the proposals you 'have made are really quite different
from what was in effect in 1980. And that is on important fact to
bear in mind.
Mr. STOKES. Thank you very much.
Thank you, Mr. Chairman.
Mr. McHuGH. Thank you, Mr. Stokes.
Let me, in closing, first reassure you, Dr. Carver, that the intent
of the bill?and I believe the terms of the bill?would not require
the President to tell us specifically which countries, or which
agents were involved in the covert operation, but only whether, ge-
nerically, other countries were asked.
And I share your concern about that. If there's any ambiguity or
question about it, we should make that clear; because I can see
that if other countries became convinced that we were providing
specific names, that would be a problem.
I don't think our bill does that. But we'll go back and look to be
sure. And if there's a question, we should make it clear that that's
not the case.
Secondly, I want to reassure you also that we're not pursuing
this in great haste. The first bill, which was the bill Mr. Stokes and
Mr. Boland introduced, is over a year old?we began these hearings
back in April of last year. And we have held five of them.
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And I think it was discussed on both sides rather dispassionately,
so I hope that we're not pursuing that in haste. Any my hope is
that we do go forward, that we'll do it objectively without the parti-
san type of debate we sometimes experience in Congress.
General, I think I'm not quite as sanguine as you about future
administrations of whatever party not repeating mistakes. We've
had administrations repeat mistakes all too often. It's the human
factor.
The Oversight Act of 1980, as you know, was initially developed
because of some fundamental abuses, or mistakes, if you wish, and
I'm not so sure that a future administration might not, for what-
ever reasons, make mistakes.
What we're trying to do here is avoid the ambiguity which per-
haps contributed to this mistake in the Reagan administration.
And I've said earlier, we really feel strongly, some of us, that
unless we make clear what we think reasonable consultation and
notice is, it increases the prospects for misunderstanding our mis-
take later.
And it's possible that if the Congress, if members of Congress
were notified, I think members on both sides would have objected
to arms sales to Iran. It's possible that the President would have
gone ahead anyway. But it's possible that he might have thought it
through a little more carefully. And it's possible that he would
have chosen not to proceed, in which event he would have spared
himself a great political embarrassment. But, more importantly, he
would have spared the country some real damage, at least in the
short term, in foreign policy.
And I think it's in that spirit that we're offering this suggestion.
I'm not sure that 48 hours is magic here and I'm not sure that any
specific time period can be defended as absolute truth.
But I do think it's important in the face of a legal opinion that
not notifying Congress for 10 months is OK, that we try to do some-
thing to clarify the existing law, or I think we're likely to see at
some future time an administration misunderstanding what we
mean.
Maybe it will look back at the history of this event and say,
"Well, the Administration in those days took the position that 10
months was timely notice, and it has taken that position legally.
Therefore, in this case, some years later, it is okay to withhold
notice for that period of time again."
And we think that, in light of these circumstances, it is impor-
tant for us at least to address the issue in a nonpartisan objective
way in an effort to clarify what we think the law is or should be.
And so I hope it's seen in that spirit and in that context.
We do appreciate, as we said earlier, your participation. You
have given us food for thought on both sides and I'm sure the com-
mittee members will think very carefully about this before we pro-
ceed to mark up.
Again, thank you for being with us.
Mr. Livingston.
Mr. LIVINGSTON. Thank you, Mr. Chairman. I just wanted to
thank the witnesses for their testimony. That was great input. And
I want to thank you for your courtesy throughout these hearings.
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This is the last hearing we're going to have on this subject, and I
think it should be the last thing we'll have anything to do with on
this subject. [Laughter.]
But I doubt that will be the case.
But, I think it's appropriate just as a finale to quote a September
4, 1985, comment in the Congressional Record from former Chair-
man of the Intelligence Committee, Lee Hamilton, who noted that,
lt. . . leaks are inevitable when so many people handle secrets
. . .
I think it's a very appropriate line and I hope that we remember
it as we go forward on this legislation.
Mr. McHucrii. I'm sure we will. Thank you.
Mr. Stokes.
Mr. STOKES. If I may, Mr. Chairman, I, too, want to join with my
colleagues in expressing our appreciation to each of you gentlemen
for your appearance here and for the contributions you've made to
these hearings.
Mr. McMimi. Thank you, Mr. Chairman. Thank you for your
leadership as well.
Gentlemen, again, thank you.
We are now adjourned.
[Whereupon, at 3:45 p.m., the hearing concluded.]
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100ni CONGRESS
1ST SBSSION
APPENDIX A
H. R. 3822
To strengthen the system of congressional oversight of the intelligence activities
of the United States.
IN THE HOUSE OF REPRESENTATIVES
MICEMBEE 18, 1987
Mr. Smuts for himself, Mr. Mown:), and Mr. McHmia) introduced the follow-
ing bill; which was referred jointly to the Committees on Permanent Select
Cramaittee on Intelligence and Foreign Affairs
A BILL
To strengthen the system of congressional oversight of the
intelligence activities of the United States.
1 Be it enacted by the Senate and House of Bepre,senta,
2 lives of the United States of America in Congress assembled,
3 SHORT TITLE
4 SECTION 1. This Act may be cited as the "Intelligence
5 Oversight Act of 1987".
6 SEc. 2. Section 662 of the Foreign Assistance Act of
7 1961 (22 U.S.C; 2422) is hereby repealed.
8 SEC. 3. Section 501 of title V of the National Security
'9 ,Act of 1947 (50 U.S.C. 413) is amended by striking the lan-
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2
1 guage contained therein, and substituting the following new
2 sections:
3 "GENERAL PROVISIONS
4 "SEc. 501. (a) The President shall ensure that the
5 Select Committee on Intelligence of the Senate and the Per-
, 6 manent Select Committee on Intelligence of the House of
7 Representatives (hereinafter in this title referred to as the
8 'intelligence committees') are kept fully and currently in-
9 formed of the intelligence activities of the United States, in-
10 eluding any significant anticipated intelligence activities, as
11 required by this title: Provided, That nothing contained in
12 this title shall be construed as requiring the approval of the
13 intelligence committees s' as a cOndition precedent to the
14 initiation of such activities.
15 "(h) The President shall ensure that any illegal intelli-
16 gence activity is reported to the intelligence dommittees, as
17 well as any corrective action that has been taken or is
18 planned in connection with such illegal activity.
19 "(c) The President and the intelligence Coniinittees shall
20 establish such procedures as may be necessary to carry out
21 the provisions of this title.
22 "(d) The House of Representatives and the Senate, in
23 consultation with the Director of Central Intelligence, shall
24 each establish, by rule or resolution of such House, prove-
25 dures to protect from unauthorized disclosure all classified
26 information and, all information relating to intelligence
es7; ratkiiiitete
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3
1 sources and methods furnished to the intelligence committees
2 or to Members of Congress under this title. In accordance
3 with such procedures, each of the intelligence committees
4 shall promptly call to the attention of its respective House, or
5 to any appropriate committee or committees of its respective
6 House, any matter relating to intelligence activities requiring
7 the attention of such House or such committee or
8 committees.
9 "(e) Nothing in this Act shall be construed as authority
10 to withhold information from the intelligence committees on
11 the grounds that providing the information to the intelligence
12 committees would constitute the unauthorized disclosure of
13 classified information or information relating to intelligence
14 sources and methods.
15 "(f) As used in this section, the term 'intelligence activi-
16 ties' includes, but is not limited to, 'special activity' as
17 defined in subsection 503(e).
18 "REPORTING INTELLIGENCE ACTIVITIES OTHER THAN
19 SPECIAL ACTIVITIES
20 "SEC. 502. (a) To the extent consistent with due regard
21 for the protection against unauthorized disclosure of classified
22 information relating to sensitive intelligence sources and
23 methods, the Director of Central Intelligence and the heads
24 of all departments, agencies, and other entities of the United
25 States Government involved in intelligence activities shall
26 keep the intelligence committees fully and currently informed
1822ffl
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ofall intelligence activities, other than ailpeoiakottivity` a,s
2 dermed in subsection 508(e), which 'are the iesikosibility -of,
3 are engaged in by, or axe carried out for or on behalf of, any
4 department, agency, or ent4 of ? the' United' 'States
5 Government, including any -'significant antioipated intelli-
6 gence activity and any significant intelligence failure.
7 "(b) The Director of Central Intelligence and the heads
8 of all departments and agencies and other entities of the
9 United States Government involved in intelligence activities
10 shall furnish the intelligence committees any information or
11 material concerning intelligence activities, other than special
12 activities, which is within their custody or control, and which
18 is requested by either of the intelligence committees in order
14 to carry out its authorized responsibilities.
15 "PRESIDENTIAL APPROVAL AND REPORTING OF SPECIAL
16 ACTIVITIES
17 "SEC. 508. (a) The President may authorize the con-
18 duct of a special activity by departments, agencies, or entities
19 of the United States Government only when he determines
20 such an activity is necessary to support the foreign policy
21 objectives of the United States and is important to the na-
22 tional security of the United States, which determination
23 shall be set forth in a finding that shall meet each of the
24 following conditions:
25 "(1) Each finding shall be in writing, unless ira-
26 mediate action by the United States is required and
Ific8822
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5
1 time does not permit the preparation of a, written find-
2 ing, in which case a written record of the President's
3 decision shall be contemporaneously made and shall be
4 reduced to a written finding as? soon as possible but in
5 no event more than forty-eight hours after the decision
6 is made;
7 "(2) A finding- may not authorize or sanction spe-
8 cial activities, or any aspect of such activities, which
9 have already occurred;
10 "(3) Each finding shall specify each and every do-
11 partment, agency, or entity of the United States Gov=
12 ernment authorized to fund or otherwise participate in
13 any significant way in such activities: Provided, That
14 any employee, contractor, or contract agent of a de
15 partment, agency, or entity of the United,States
16 ernment other than the Central Intelligence Agency di-
17 rected to participate in any way in a special activity
18 shall be subject either to the policies and regulations of
19 the Central Intelligence Agency, or to written policies
20 or regulations adopted by such department, agency or
21 entity, in consultation with the Director of Central In-
22 telligence, to govern such participation;
23 "(4) Each finding shall. specify Ivhether it is ton-
24 templated that any third party which is not an element
25 of, or a contractor or contract agent of, the United
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1 States Government, or is not otherwise subject to
2 United States Government policies and regulations,
3 will be used to fund or otherwise participate in any sig-
4 nificant way in the specie' 1 activity concerned, or be
5 used to undertake the special activity concerned on
6 behalf of the ITnited States;
7 , "(5) A finding may not authorize any action that
8 would violate any statute of the United States.
9 "(b) To the extent consistent with due regard for the
10 protection from unauthorized disclosure of classified inform-
11 tion relating to sensitive intelligence sources and methods,
12 the Director .of Central Intelligence and the heads of all de
13 partments, agencies, and entities of the United States Gov-
14 ernment involved in a special activity shall keep the intelli-
15 gence committees fully and currently informed of all special
16 activities which are the responsibility of, are engaged in by,
17 or are carried out for or on behalf of, any department,
18 agency, or entity of the United States Government, and shall
19 furnish to the intelligence committees any information dr ma
20 terial concerning special activities which is hi the possession,
21 custody or control of any department, agency, or entity of the
22 United States Government and which is requested' by either
23 of the intelligence committees in order to carry out its
24 authorized responsibilities.
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7
1 "(c)(1) The President shall ensure that any finding ap-
2 proved pursuant to subsection (a) shall be reported to the
3 intelligence committees as soon as possible after such approv-
4 al and prior to the initiation of the special activity authorized
5 by the finding: Provided, That if the President determines it
6 is essential to limit access to the finding to meet extmordi-
7 nary circumstances affecting vital interests of the United
8 States, such finding may be reported to the chairmen and
9 ranking minority members of the intelligence committees, the
10 Speaker and minority leader of the House of Representatives,
11 and the majority and minority leaders of the Senate. In either
12 case, a copy of the finding, signed by the President, shall be
13 provided to the chairman of each intelligence committee.
14 Where access to a finding is limited to the Members of Con-
15 gress identified above, a statement of the reasons for limiting
16 such access shall also be provided.
17 "(2) In circumstances where time is of the essence and
18 the President determines that it is important to the national
19 security interests of the United States to initiate a special
20 activity before the notice required by paragraph (1) can be
21 given, such activity may be initiated without such notice.
22 "(3) The President shall ensure that notice of a special
23 activity undertaken pursuant to paragraph (2) is provided to
24 the intelligence committees, or to the Members of Congress
25 identified in paragraph (1), as soon as possible, but in no
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1 event later than forty-eight hours after the special activity
2 has been authorized pursuant to subsection (a). Such notice
3 shall be accompanied by a statement of the President setting
4 forth why time was of the essence and why proceeding pursu-
5 ant to paragraph (2) is important to the national security in-
6 terests of the United States.
7 "(d) The President shall ensure that the intelligence
8 committees, or, if applicable, the Members of Congress speci-
9 fled in subsection (c), are notified of any significant change in
10 a previously-approved special activity, or any significant un-
11 dertaking pursuant to a previously approved funding, in the
12 same manner as findings are reported pursuant to subsection
13 (c).
14 "(e) As used in this section, the term 'special activity'
15 means, with respect to the Central Intelligence Agency, op-
16 erations in foreign countries other than activities intended
17 solely for obtaining necessary intelligence, and, with respect
18 to any other department or agency of the United States, any
19 activity conducted in support of national foreign policy objec-
20 tives abroad which is planned and executed so that the role of
21 the United States Government is not apparent or acknowl-
22 edged publicly, and functions in support of such activity, and
23 does not include activities to collect necessary intelligence, or
24 diplomatic activities carried out by the Department of State
25 or persons otherwise acting pursuant to the authority of the
}118?822.'
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1 President. A request by any, agency or department of the
2 United States to a foreign country or a private citizen to
3 conduct a special activity on behalf of the United States shall
4 be deemed to be a special activity.
5 "(0 No special activity may be conducted if it is intend-
6 ed to influence United States political processes, public opin-
7 ion, policies, or media.".
8 SEC. 4. Section 502 of title V of the National Security
9 Act of 1947 (50 U.S.C. 414) is redesignated as section 504
10 of such Act, and is amended by deleting "501" in subsection
11 (a)(2) of such section and inserting in lieu thereof "503", by
12 striking "Appropriated funds" at the beginning of such sec-
13 tion and inserting in lieu thereof "Funds", and by adding the
14 following new subsection (d):
15 "(d) No funds appropriated for, or otherwise available
16 to, any department, agency, or entity of the United States
17 Government, may be expended, or may be directed to be ex-
18 pended, for any special activity, as defined in subsection
19 503(e), unless and until a Presidential finding required by
20 subsection 503(a) has been signed or otherwise issued in
21 accordance with that subsection.".
22 SEC. 5. Section 503 of title V of the National Security
23 Act of 1947 (50 U.S.C. 415) is redesignated as section 505
24 of such Act, and subsection (a)(1) of such section is amended
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10
1 by adding, "or any aggregation of defense articles or defense
2 services," after "service".
0
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APPENDIX B
CABLE CL1NEY
TELEX 240356 CLEY
_0.-e. 20006
February 24, 1988
BY -HAND ?
TELEPHONE
120. exa.?20o
The Honorable Louis Stokes
The Honorable Matthew F. McHugh
Permanent Select Committee on Intelligence ,
U.S. House of Representatives
H-405 Capitol Building
Washington, D.C.
Dear Chairman Stokes and Chairman McHugh:
I want to thank you for the warm reception that you and
the members of the Committee extended during my testimony
regarding H.R. 3822.
In addition, I would like to expand on my response to two
questions that arose during my testimony concerning my
proposal for criminal penalties:
-- First, Mr. Richardson asked whether the criminal
penalties that I proposed would hinder the undertaking of
covert activities. As I responded, criminal penalties, in my
view, would not be a hindrance -- indeed, such penalties would
help to keep covert activities on their proper, narrow
course. Under my proposal, members of the intelligence
community -- acting in good faith as nearly all do -- could
rely on the risk of criminal penalties to insist on compliance
with laws that the expedient few might wish to ignore. The
threat of criminality would bolster the resolve of subordinate
and superior officials alike in resisting directives that
evaded the reasonable provisions for notifying the
intelligence committees of covert activities.
-- Second, Mr. Glickman asked whether the termination of
funding for covert activities about which the President had
failed properly to inform the committees might endanger U.S.
interests or lives. As I seated, in my view, this would not
occur. If a covert activity was underway and the President
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The Honorable Louis Stokes
The Honorable Matthew F. McHugh
February 24, 1988
page 2
and the intelligence committees felt that it should continue
to be funded to avoid risk to U.S. interests or lives, the
President simply could sign a finding authorizing continued
funding and provide it to the committees according to the
law. This finding of course would not retroactively authorize
the past activity or absolve any officials of liability for
that past activity. But such a belated finding and notice to
the committees should be necessary to restore the covert
activity to its proper course.
-Finally, I enclose a copy of my resume, as requested by
the Committee.
Permit me to express my appreciation for the courteous
reception that I received this morning.
Sincerely,
Clark M. Clifford
Enclosure
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BIOGRAPHICAL SKETCH OF CLARK M. CLIFFORD
Born in Fort Scott, Kansas on December 25, 1906, the son of
Frank Andrew Clifford and Georgia (McAdams) Clifford. Shortly thereafter
the family moved to St. Louis, Missouri.
Attended public schools and then went to college and law school
at Washington University in St. Louis, graduating in 1928.
Entered the practice of law in St. Louis in 1928 in association
with Jacob M. Lashly.
Volunteered for service in the United States Naval Reserve in 1943,
and received commission of Lieutenant (j.g.). Served as special assistant
to-the Commander, Western Sea Frontier, later as assistant Naval Aide to
the President, and as Naval Aide to the President.
Separated from the service in 1946 with the permanent rank of
Captain.
Appointed Special Counsel to the President of the United States in
Tune, 1946 by President Harry S. Truman. Served in that capacity until
February 1, 1950.
In 1945, President Thiman assigned him the task of conducting a
study in depth of the unification of the Armed Services. He worked with
the War Department, the Department of the Navy, other departments and
agencies involved, and the Congress for two years thereafter. There finally
resulted the passage of legislation in 1947 entitled "The National Security
Act." He was one of the principal architects of this legislation.
Thereafter, he served as liaison between the .White House and the.
new Secretary of Defense.
Again in 1949, he worked with the Secretary of Defense, other s
departments and the Congress to obtain passage of the "National Security
Act Amendments of 1949', which greatly strengthened the authority of the
Secretary of Defense and changed the national military establishment into
a regular executive Department of Defense.
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On February 1, 1950, he resigned as Counsel to the President
and established a law firm in Washington, D.C. under the firm name of
Clifford and Miller.
In 1960, he servedas a member of the Committee on the Defense
Establishment, appointed by Senator John F. Kennedy to survey the organi-
zation, management and administration of the Defense Department. This
committee was chairedby Senator Stuart Symington,
Between November, 1960 and January, 1961 he represented
President-elect Kennedy in the transition period involving the takeover of
the Executive Branch of Government from the Eisenhower Administration.
In May, 1961 President Kennedy appointed Mr. Clifford a member
of the President s Foreign Intelligence Advisory Board. In April, 1962
Dr. James Killian of M.I. T. resigned as Chairman of the Board because of
ill health, and Mr. Clifford was appointed Chairman by President Kennedy.
In 1965, Mr. Cliffcird made a trip to the Far East and visited
certain countries in his capacity as Chairman of the Intelligence Board.
In 1966, he served as an advisor to President Johnson at the
Manila Conference.
In 1967, Mr. Clifford and General. Maxwell Taylor visited a number
of Southeast Asian and Pacific countries as personal emissaries of President
Lyndon Johnson.
On January 19, 1968, President Johnson nominated him to be
Secretary of Defense. On January 30, 1968 he was unanimously confirmed
by the United States Senate. On March 1, 1968 he was sworn in as Secretary
of. Defense of the United States.
Mr. Clifford served as Secretary of Defense until January 20, 1969,
after which he returned to the practice of law in Washington, D.C. as
senior partner of the firm of Clifford & Warnke, with offices at 815 Conn-
ecticut Avenue, Washington, D.C.
In April, 1982 he became Chairman of the Board of First American
Bankshares, a bank holding company headquartered in Washington, D.C.
He has also served for many years as a Director of Knight-Ridder Newspapers.
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January, 1969 Awarded Medal of Freedom with Distinction by President
Johnson -highest award given to civilians
April, 1976 Received Distinguished Alumnus Award from the Wash-
ington University School of Law, St. Louis, Missouri
May, 1976 Received Honorary Doctor of Law Degree from
Washington University, St. Louis, Missouri
February, 1977 Appointed by President Carter to be his Special Emissary
to Greece, Turkey and Cyprus
May, 1978 Received Honorary Doctor of Law Degree from Loyola
College, Baltimore, Maryland
December, 1978 Received Lawyer of the Year Award from the Bar Asso-
ciation of the District of Columbia, Washington, D.C.
January, 1980 Appointed by President Carter to be his Special Emissary
to India
May, 1980 Recipient of the Harry S. Truman Public Service Award
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Thei;rathixeDivision
Schoohlfg?eiimServia
Asmciara,,
APPENDIX C
EORgETOIF.'..\(:;[1 .W ERSTE)"
15,Narch.1983
?
The Hon. Ebb Livingston
-
U.S. House of Representatives
House Permanent Select Committee on Intelligence
Washington, DC 2051576415
Dear Congressman Livingston:
I have now had a chance to review (as you requested) tha testimony of
Judge Webster before your caraittee on 24 February 198S and also the
unclassified text of NSDD 286. In his t,..t.irmny, Judge Webster states that
"any concerts about excessive delay in Congressional notification of a
special activity have already bo.n addressed by NSDD 286 (pp. 6-7)." I do
not share this view and think legislation, and specifically H.R. 3822, is
still required to assure that Congress will be kept properly informed abcut
covert actions andwill be notified before they are undertaken.
As I read it, NSDD 286 clearly recognizes the need for Congress to be
consulted about covert action operations. This appears to be the rationale
behind the statement in the "policy oantgeort" section of the document that
such operations "should be conducted only Lthen we are confident that, if
they are revealed, the American public would find them sensible." Only
Congress can really provide this insight; yet, it cannot do so if it is not
given prior notice.
Such insight is especially important in circumstances wlUch might pose
such grave risks to the United States that they require virtually immediate
action. I use the word "virtually" here because I can forsee of no
circumstance in whiCh covert action would be employed without some prior
planning being required and such planning (which is essential from an
operational viewpoint) would allow time at least to notify the senior
leadership of Congress. However, were such a circumstance to exist in
which a covert .action by the U.S. government had to be launched
immediately, I find the allowance of a grace period of two working days
before the Intelligence Committees had to be notified anomalous to say the
least. This grace period could in practice be extended to three days in
the case of federal holidays or even longer if these holidays happen to
coincidewithWastLington snowstorms.
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I also find it troublesome that while NSDD 286 permits notice as well
as information about Some covert action operations to be withheld fram
Congress, it widens the circle of those in the know in the enacutive branch
and gives the Chief of Staff to the president a key role. This position
has not been filled with persons who have had extensive foreign affairs or
intelligence experience nor should it be. And I am uncomfortable with the
liLwopwa-that a chief of staff without such experience night bwause of:
close personal relations influence the president's decisions about covert
action. Without the Cheek and balance of congressional oversight, under
NSDD 286 the president could really be loft blind about the costs and risks
of a covert action.
In sum, judge Webster's testimony has not changed my view that the
intelligence community as well as the country would benefit from passage of
H.R. 3822.
yours sincerely,
Allan E. Goodman
AEG:jrb
cc: The Hon. Matthew McHugh
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APPENDIX D
Columbia University in the City of New York I New York, N.Y. 10027
SCHOOL OF LAW
28 January 1988
Dear Mr. Stokes,
435 -West 118th Street
I have your letter of January 14 inviting my views on H.R. 3822.
My schedule makes it difficult for me to appear before the
Subcommittee on Legislation on February 4. However, my letter to you of
31 March 1987 in relation to H.1013, published as Appendix H to the
Hearings on that bill, is relevant also for H.R. 3822, and your
Subcommittee may wish to take account of it.
As you requested, I attach brief comments on the testimony on the
same subject by Assistant Attorney General Cooper before the Senate
Committee on Intelligence on S.1721,
Sincerely,
Louis Henkin
Mr. Louis Stokes, Chairman
Permanent Select Committee on Intelligence
U.S. House of Representatives
Washington, D.C. 20515-6415
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Comment on Testimony of Charles 3. Cooper
Assistant Attorney General
before
Senate Select Committee on Intelligence
December 11, 1987
Mr. Cooper's testimony deals with a number of issues. For
convenience and clarity, I address what appear to be the large
constitutional positions that underlie Mr. Cooper's testimony, and
indicate where he and I may differ.
1. Invoking the Executive Power clause (Article II, section 1), Mr.
Cooper's memorandum states: This clause has long been understood to
confer on the President a plenary authority to represent the United States
and to pursue its interests outside the borders of the country, subject of
course to the limits 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."
It has long been understood that the President has "plenary authority
to represent the United States"; it has not been accepted that he has
"plenary authority., to pursue its interests outside its borders."
Whether inside or outside the borders of the United States, there are
many things the President cannot do even "to pursue [U.S.] interests.".
2. Mr. Cooper's memorandum seems to equate "plenary" power with
"exclusive" power. Some powers of the President are perhaps exclusive and
not subject to comprehensive regulation by Congress. There are other
powers that the President may exercise when Congress is silent but as to
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2,
which the power of Congress is concurrent, and Congress can regulate and
control Presidential action.
3. Mr. Cooper's memorandum does not distinguish among "intelligence
activities." It appears to treat intelligence-gathering and other covert
activities as constitutionally identical.
In my view, they are different in critical respects. As I indicated
in my letter to your Committee last Spring, covert activities are subject
to regulation by Congress; some means for gathering intelligence --
notably through the diplomatic process -- may not be subject to
comprehensive regulation by Congress (though they, too, may be effectively
subject to the war powers of Congress, and to its power to regulate the
Executive Si-inch under powers granted to Congress by Article II and the
"necessary and proper" clause).
It is accepted that, in John Marshall's phrase, the President is the
"sole organ of the nation in its external relations". As sole organ, the
President has exclusive power over ',communication" and "relations" with
foreign states and over what is related to or implied in.the diplomatic
process. The gathering of intelligence by some means is plausibly part of
that process. As to such activities, the President can claim authority
exclusive of Congress.
Covert activities, in my 'view, are not part of the "sole organ"'
function." If the President has authority to.authorize such activities
without authorization by Congress, it can only be under some general
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"executive power", the scope of which is uncertain. There is no basis --
in Marshall, in Hamilton, in Curtiss-Wright, or anywhere else -- for
suggesting that such power is exclusive and not subject to regulation by
Congress.
The power of Congress to regulate covert activities is clear. Covert
activities are elements of "commerce" with foreign nations within the
meaning of Article I, section 8 of the Constitution. Covert activities
may be sufficiently related to war and peace to come within the enumerated
war powers of Congress. They are within the unenumerated "power of
Congress to deal with foreign relations," See Perez v. Brownell, 356 U.S.
44, 59 (1958).
4. The memorandum confuses the legislative request to be informed of
covert activities with the centuries-old issue between President and
Congress as to executive privilege. The Nixon case cited by Mr. Cooper
confirmed that the President has an executive privilege. The Court held
that in relation to the administration of justice the privilege is not
absolute; the Supreme Court may have implied that, in relation to the
administration of justice, the privilege might perhaps be absolute where
diplomatic or military matters are concerned. The Court did not consider
at all the existence, character or scope of executive privilege in
relation to Congress.
I do not express here any views on the large issue of executive
privilege. Except where the request for information may impinge on
private rights of individuals, the power of Congress to obtain information
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may know few limits, but the President may have some executive privilege
even vis-a-vis Congress.
As Mr. Cooper indicates, Congress has long respected the
confidentiality of the diplomatic process. Whether it has done so out of
courtesy or from a sense of constitutional propriety is uncertain . One
can argue that to the extent that the process is within the exclusive
power of the President, he is entitled to withhold information if he
reasonably thinks that to communicate the information to Congress, even
under injunction of secrecy, would jeopardize the activity. But the
internal confidentiality of the Executive Branch apart, the claims for
Congress's right to know are strong. I agree with Mr. Cooper that where
the President has constitutional authority to withhold information from
Congress, Congress may not Properly use its Power of the Purse to compel
disclosure.
The request for information as to covert activities is a wholly
different matter. Mr Cooper suggests that Congress "in the performance of
its ligislative function does not require notification of virtually all
intelligence activities within a fixed period of time." But the
Congressional directive that its Committees be informed when covert
action is undertaken is not a request for information for legislative
purposes only. It is a form of regulation. In my view, Congress could
prohibit such activities; a fortiori, it can declare that they may take
place only if Congressional Committees are informed of them.
CD
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