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March 31, 1988
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Declassified and Approved For Release 2013/08/28: CIA-RDP91B00390R000200190012-5 ? =me R U.S. HOUSE OF REPRESENTATIVES PERMANENT SELECT COMMITTEE ON INTELLIGENCE WASHINGTON. D.C. 20515 For your information. Tom Smeeton 88-1600X 1 OREGI3TRy 2 0 APR 1988 Declassified and Approved For Release 2013/08/28: CIA-RDP91B00390R000200190012-5 Declassified and Approved For Release 2013/08/28: CIA-RDP91B00390R000200190012-5 .11arc,;: J. :388 CONGRESSIONAL RECORD ? Extenszons o, Ronar:CS HENRY HYDE'S SPEECH ON LEAKS AND CONGRESSIONAL OVERSIGHT HON. ROBERT H. MICHEL :r IL.IOIS IN THE HOUSE OF REPRESENrATIVIES Thursdav, March 11, 1988 Mr. MIChEL Mr. Soeatter. on Weenesaav. Marcn 30. 1988. rrtv aistinguisnea Illinois cot- 'eague ana our good fnend HENRY ievaE. de- ;mere? a soeecn Oetore a comerence cospon- sorea ov me Amencan ear Association Stand- ing Committee on Law and National Seeunty. the George Mason University School of Law. the Stucent ear AsSOciatem, and the Interna- tional Law Society. I want to insert Mr. HYPE'S remares in *me RECORD at this point because believe wnat he has to say =out " 'Leaks' and Cangressional Cversignt" reflects his usual gooa luagment. eommon sense. and un- common wisaom. "LEAKS- AND CONGRESSIONAL OVERSICET (By Henry J. Hyde) casions when foreign govermeras had said they would not share Information if CIA The grave effects of unauthorized disci?. provided it to Congress.3 sures upon U.S. intelligence and our foreign whether to trade information with U.S. in- telligence. what quaiity of information they will provide and whether they will actively cooperate with us in other ways. In testify- ing against proposals for mandatory and more detailed prior notifications to Congres- sional Intelligence Committees. Secretary of Defense Frank Carlucci. who formerly was a Deputy Director of Central Intelligence under President Carter and more recently served as President Reagan's National Secu- rity Adviser, stated that foreign govern- ments cooperating on special activities are wary because they don't trust Congress to keep secrets:, ?It is a matter of perceptions.' said Mr. Carlucci. 'Other Governments are extraordi- narily sensitive on this point ? ? ?.'" -If our intelligence assets around the world. particularly cooperating organ L7-1- tions. perceive that the CIA is obliged to dis- gorge whatever the (Intelligence Commit- teesl may want, then it is very clear based on my experience that our intelligence assets would dry up." Carlucci said he knew of "numerous" oc- Congressmen by nature have strong politi- cal views, cater to and depend on the press. thinking aoout with some urgency. The seriousness and universality of and are not imbued with the security habits 'leaks' are oovious. Yet many continue to of intelligence professionals. Thus, they flat- maintain there s no "proof" that Congressurally fall under suspicion. And let's not forget that congressional oversight In the leeks or that it leaks significantly. And. even wnen acknowledging problems in the aftermath of Vietnam and Watergate executive brancn or Congress. powerful leg- strained relations between Congress and the islative figures habitually object to virtually intelligence community almost to the break. every uutiative for investigating and punish- Mg point. Ex-CIA Director Colby recalls in ing these occurrences. while failing to offer his memoirs that every new covert action alternative solutions My proposal for a disclosed to Congress in 1975 was leaked. Joint Lntelligence Committee. which would "And the 'covert' part of CLA's covert action replace the existing two House and Senate seemed almost gone." The notorious laxity committees and reduce the number of Seem- of the Church and Pike investigations taint. bees and staff with access to intelligence ua- ed the more rigorous Intelligence Commit. formation. has been resisted since 1984 tees which took their place. when I first introduced the idea. Other sue- Senate study at face value. however. and No less a journalistic authority on leaks gestions. e.g, increasing use of the poly-than Daniel Schorr noted i al-so generously assume that Congress nas a Washington out the early history of problems authorized disclosures in Congress more recent examples of alleged E 961 with un- and gave concres- sional leaks published in other sources. in- cluding use of the tnreat of disclosure by several individuals in order to block execu- tive branch actions of which they disap- proved. That the majority report didn't con- sider leaes a funaamental issue is in itself a mai measure of the problem. From the outset. of the congressional Iran. Contra probe, there was a steady stream of leaks. Interestingly. House Chairman Lee Hamilton and his Senate counterpart. Daniel Inouye. followed their best instincts on how to keep secrets when it came time to depose admiral Pomdexter. 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 potential- ly most explosive political question of this whole investigation. As a result. extraordi- nary steps were taken to protect the infor- mation. Specifically. only three staff attor- neys and no members of either committee participated In the secret questioning. The success of these procedures speaks volumes on how to protect secrets." ? Officially "proven" sourcing of leaks on the Hill or elsewhere, however. is extremeiy rare. Only a handful of leaks ever have been traced through investigation to the culpable individual, so lack of proof hardly estab- lishes that Congress has a good record. ? A Senate intelligence committee study re- leased to the press reportedly found that in selected leaks of classified information. journalists referenced congressional sources only 8-9% of the tune, but cited Reagan ad- ministration officials 68% of the time. This research methodology is suspect. since Jour- nalists are alleged frequently to protect their most vulnerable sources, and persons on the Intelligence oversight committees would in many cases be particularly exposed by virtue of being the only knowledgeaote "congressional" sources. Let us take tne graph for investigative purposes. strength- Post article ? "' ? it's hnever b ening mei noncusciosure agreements and legal action against disclosers or the media. suggested that a Member of Congress could be disciplined other than by Congress are branded as paranoia and violations of This is relevant because a don't think that I first amendment rights. But the critics am baring any great Journalistic secrets) the never offer a better solution. and most seem exposure of covert Intelligence questions content to drift with the trde?or more ac- frequently a form of congressional whistle. is IL the tidal wave. blowing. A leak often occurs when a clandes- Lf. the Iran/ Contra affair had one salutary effect, it was to highlight pollernakerg fear time plan runs into substantial opposition of leaks and distrust of congressional discre- during a briefing for congressional commit- tion, and to expose dramatically the de- tees." Schorr went on to cite a number of structive effects this can have. Maximum specific examples involving reported con. aompasementalittasion within the executive. gressional leaks of information on Angola, branch and failure to notify Congress of the Chile. Nicaragua. El Salvador. and Libya. Iran mutative invited Judgmental errors and Recently, there have been several knovrn courted political disaster- Thaw MAP& were and serious disclosures on each of the Over- taken out of determination to explore a sight Committees. Those who nonetheless policy option considered potentially promis. continue categorically to defend the com- ing only if. by avoiding normal procedures. ?mum,. records apparently depend upon It could be kept secret. An unanswered OUP- congress ional courtesy to forestall a "name tion is how many times the opposite 10-names"hap-rebuttal. In the congressional Select pens?how many times are iruurrative Committees final report on the Iran-Contra preaches to difficult foreign policy Problems affair, the minority report devoted a chap- rejected or not even considered because ter to the need to patch leaks.' It pointed their success depends upon a secrecy which probably could not be maintained? Regardless of claims that Congress must BIB Gertz. -Carlucci: Cohen 13111 Wal Plug CIA be considered innocent until proven guilty Sources." Washington Times, Dec. 11. 1987. of security Lames, damage to the oversight Bob Woodward and Walter Plneua **Carlucci Process occurred as soon as a widespread Warns of Veto on covgn.Agtion Notwe." Washing. perception developed that the legislative ton Post. Dec. 17. 1987. branch could not be trusted. This percep- William Colby. -Honorable Men" (1979). D. 423, Daniel Schorr. "Cloak and Dosser Relics." tion has seriously affected executive branch Wsshutston Post. Nov. 14.1985.m.3. cooperation with intelligence oversight coin- ? -Regan of the Congressional Committees hives. mittees. A similar attitude is harbored by IramContra Affair" (Washington. DC: allied intelligence services who decide tiratulg 1" GPO. 1987). pp. 575-79. 2.500 people with clearances as opposed to 2.2 million in the executive branch and rsili- (arr. Reliance on the Senate study force's us to conclude that Congress maintains :ust over 0.1% the number of executive Grancn clearances, but is responsible for 8-9?".? of the leaks on national security issues. Ebecil? ically, on average, a cleared person in Con- gress is 60 times more likely than his coun- terparts elsewhere to engage in unautnor? tzed disclosures. Evidence that news leaks quite commonly originate on the Hill also was developed in a summer 1987 survey among the reseersrup of the periodical. American Politics. The Journal. circulated almost entirely a ithin the Washington area, asked its readership to respond to ? wide-ranging poll which in- cluded the question. "Have you ever leased information to the news media?" over soo persons, considered to be a reliable cross- section of the readership, responaect. sults on the leak question were considered so dramatic that they were published early and separately, in an August 1987 article en- titled "Leak City,"' More than one in tour ' Ibid. p 579. Results on the leak portion are ouolisneo Ui Robert Garcia. -Leak City.- American 1?Nditica August tottl. pp. 23-24. Metnoaoiogy is ? a voyaned and some additions* pertinent information . given in Ropers Garcia. "And Other Results oi tn? pinsi Annual 'Inside tne Beltway' Reapers Poll Amen. can Poiluca. Sept, 1997. pp. 14-11. Resoonnenui on inc leak section included, intr. oho. 16 tanincians. 193 Capitol Hill staffers. six memoers ot its. Diplo- matic Corps anti 66 Federal empioN ees Declassified and Approved For Release 2013/08/28': CIA-RDP91B00390R000200190012-5 Declassified and Approved For Release 2013/08/28 : CIA-RDP91B00390R000200190012-5 E 962 CONGRESSIONAL RECORD ? Extensions of Reinarin persons?over 28%?conceded at some time having shared a secret with the media. Cap- itol Hill staffers. sporting a 31% rating. were higher than average. But they were pikers compared to the "politician" category, alone at the pinnacle of the chart. in which 62% of 16 responoents admitted to having leaked information. This contrasted with 23% in the "Federal employees" category. Media in- formation sources tended to have higher salary and educational levels. Contrary to some recent accusations. conservatives were found to leak less than liberals and moder- ates. And, in delicious irony, leakers named journalists as the group they trusted the least. (Among respondents as a whole. "poli- ticians" had a slight edge over journalists in competition for this award.) The situation ha-s been allowed to deterio- rate 30 far that the task of changing this Permissive culture is now monumental. Suc- cess will come very slowly indeed. and will result only from a persistent and aggressive attack across a broad front. in both Con- gress and the executive branch. One option is stricter security procedures and increased compartmentalization. Cap- itol Hill is very quick to claim this is the preferred solution for the executive branch Problems. thereby avoiding the need to grapple with difficult civil and press liber- ties issues. But Congress is loathe to apply this option to its own operations by consoli- dating its oversight into one joint commit- tee. However, consolidation and compart- mentalization is a far more promising option for the congressional Intelligence Committees than for policy agencies. Effec- tive congressional oversight doesn't require Intelligence Committees with 32 (plus 4 ex- Officio) members and 55-plus staff. More- over, additional stall, as well as 31 Senators and Congressmen serving on the Defense Appropriations Subcommittees in both Houses of Congress, also have access to ex- tremely sensitive Intelligence. Altogether. therefore. 67 Members of Congress are in the "loop" for such information. For the policy agencies, who already have cut back on access to classified material, fur- ther restrictions on the dissemination of in- formation may be helpful in some cases. But If compartmentalization is not carefully ap- plied- the additional advantages could be limited and the answoacics serious. Already there is concern Mat the most sensitive in- telligence goes only to top policyntsucers who are too busy to read or act upon it. An- alysts who are supposed to make sense of collected Intelligence cannot do their job if Pertinent information is withheld from theta. Finished intelligence analyses. In turn. are less useful 11 they are not distrib- uted to those with an interest- in the sub- ject. If policy action is considered or at- tempted, the circle of knowledgeable Parties inevitably widens so that some people will become involve? who may disagree with the Proposed action or who for some other reason will be inclined to leak; and there Sill be too many people Involved at this stage to have much hope of finding the leaker. Even the 011ie North Iran/Contra operation, compartmentalized as it was, eventually involved great numbers of People within and outside the Government. In fact. the Iran overture was indeed leaked rather early in a little-noticed Jack Anderson column, by some still unknown person. Future use of establisned covert action and Policy deliberation procedures, insisted upon by the Tower Review Board and in congressional reports on the Iran/Contra affair, will ensure that a sizable number of People always are involved. But rather than accept for Itself the medi- cine that it has sometimes proposed for the -xecutive orancn. CJngress s now propos- ing that it P x an a :he dennition of its own 'need to know.' :n what Secretary Carlucci nas aptly :aoelea a misguided effort :o "close every conceivaole .000nole" despite esuaing oamage to U.S. foreign policy. the Intelligence Committees now are promoting 1.estislation reouiring that they almost imme- diately receive intormation on every single covert action undertaken. We should In- stead be confident that the political fallout from the Iran/Contra affair has provided far greater assurance than ever before that notification will not be withheld temporari- ly unless there is very good reason. Indeed. the executive branch cioubtless in the future will take pains to snare critical infor- mation and attendant political risks with Congress. If the first thing Congress should do is to vote down this mandatory early notification legislation and the second is to form a com- pact Joint Civersignt Committee, the third must be to study carefully our options for action and legislation to prevent future Government leaks and to investigate and punish them when they occur. The law on punishing those disclosing classified information is frequently an effec- tive barrier to successful prosecution. Spe- cifically. It is extremely hard to prove in leak cases, as the law generally requires, that there was "intent or reason to believe that the information is to be used to the injury of the United States. or to the advan- tage of any foreign nation.'' Government prosecutors are faced with a similar hurdle wnen it comes to convicting journalists who reveal the identities of un- dercover intelligence personnel. The law governing this kind of disclosure requires the Government to prove that such an indi- vidual engaged in "a pattern of activities in- tended to identify and expose covert agents and with reason to believe that such activi- ties would impair or impede the foreign in- telligence activities of the United States".' In short. although there are Inherent dif- ficulties at apprehending a leaker. neither Congress nor the executive branch cart claim that vigorous or competent attempts to do so have been undertaken or that pun- istustent is swift and sure. Given the difficulty of identifying those who have leaked classified material, we should also face the question of whether. under what circumstances, and how we should take action against the known party to the deed?the reporter and media outlet In question. Although the media sometimes have exercised restraint in these issues, here again the culture has become so permissive that potential damage to U.S. Intelligence collection and foreign policy often receive short shrift when authors and editors are deciding whether or not to publish. More- over. like the leakers themselves, journalists purporting to weigh carefully the national security implications of such writings often display notoriously poor Judgment in this regard. Yet they contend that they alone should be the judge and, for instance. hold In their hands agents' lives and the future effectiveness of intelligence collection sys- tems costing billions of dollars of taxpayer money. I believe it is beyond dispute, more- over, that the excuse of "the public's right to know." used as a defense in these cases is a rationale that would be rejected by the gait majority of the public itself. Ideally, the press should agree among themselves on some explicit or implicit code March 31. 1988 .)i conauct '.3 curtail louses. A: present. however. 'his seems unlikely. . mecna anpears more ano more inclineo iowarci -.hvesticative enortInce and advo- cacy !ournausm. the demand tor leaks ap- pears o de rising n tanaem with 'he supply. '.Ve can also expect a :urther escala- ':on oi disputes over re:ease of classuleo materials as satellite pnotograpny oi sensi- :Ive events and installations becomes avail? aole to the media. In the 1970's. Investigative reporter Sey- mour Henn reportedly :old a Navy War College seminar that as a reporter his gm ,.vas to break into the Pentagon if he could and steal ail the classified documents he could. ana that their ;op was to stop him.'0 We have to ensure somehow that the Gov. ernment anci the inetua remain fundamen- tally on the same side where national securi- ty is concerned. But the media is becoming more rather than less aggressive with recard to acquisition or publication of classi- fied information. And its enormous collec- tive resources instantly are marshalled to stigmatize as unconstitutional extremism any suggestion that the press must be held legally accountable if it does not police itself more effectively. Unwilling to grapple with these intracta- ble. messy, and politically volatile proolems. some people insist that the damage we have suffered is overstated, and that no matter how great it may be. it does not justify tam- pering with press liberties or even congres- sional perquisites. But if our Government cannot keep a secret and Congress displays no sense of urgency in solving this problem, we will become ever more severely crippled In a dangerous world where the margin for error is fast disappearing. ? Chapter 37 (Espionage and Censorship) of TlUe 10. United States Code. section 793. ? National Secunty Act of 1947 (50 U.S.C. 422), TULE VI. section 502. anri Anoroved For Release 2013/08/28: CIA-RDP91B00390R000200190012-5