LETTER TO DICK CHENEY FROM WILLIAM H. WEBSTER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R001300100021-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 22, 2016
• Document Release Date: October 4, 2012
• Sequence Number: 21
• Publication Date: May 18, 1988
• Content Type: LETTER

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lcntrai Intclli,cncc . tncv
ocA 88-142
18 May 1988
The Honorable Dick Cheney
Permanent Select Committee
on Intelligence
House of Representatives
Washington, D.C. 20515
I read with great interest the paper you presented to the
American Bar Association Standing Committee on Law and National
? Security, as reprinted in the Con ressicnal Reccrd and excerpted
in the 3 May Wall Street Journa , concerning the Legislative and
Executive roles in Covert Operations. I was especially interested
in your analysis of the interplay between the constitutional power
of the President and Congress in matters of foreign affairs, the
practical and constitutional problems with any law requiring
Congressional notification of all Presidential Findings within 48
hours without exception, and your suggested alternative approach
to pending legislation mandating such notification.
As you know, I am in agreement with many of the points you
make with respect to the proposed 48-hour notification
requirement. I believe the Congress should seriously consider
your proposed alternative approach that would retain the
President's discretion to delay notification in rare cases.
As always, your views are widely read and respected by officers
here at CIA. You have my compliments for a most thoughtful and
useful analysis.
Sincerely yours,
STAT
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OCA/Leg pap (5 May 1986)
William H. Webster
Director of Central Intelligence
STAT
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CENTRAL INTELLIGENCE AGENCY
Director of Congressional Affairs
9 May 1988
STAT
STAT
I reccrn end you sign this letter to
Dick Cheney praising his recent article
on the 48-hour bill. Your response
borders on the political, but you have
already stated, publicly and formally,
your similar views on this bill.
Cheney's "alternate framework" is
detailed in the first column of the
last page of the attached material from
the Congressional Record.
Attachment
o e Berson
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THE WALL STREET JOURNAL TUESDAY. MAY 3. 1985
Covert Operations:
By Dtcx Ctte:e5
There is a consensus in Washington af-
ter Iran-Contra that the process for man-
aging legislative-executive relations on co-
vert operations could be improved. The
consensus quickly breaks down. however,
as people begin putting forward concrete
suggestions.
A bill, already passed by the Senate
and moving forward in the House, would.
require the president under all conditions,
with no exceptions, to notify Congress of
covert operations within 48 hours of their
start. It is a typical example of "never
again" thinking by Congress. To make
sure the last disaster will never again re-
peat itself, Congress is willing to deprive
future presidents of all possible discretion
under conditions Congress cannot possibly
foresee.
At the heart of the dispute over this bill
is a deeper one over the scope of the presi-
dent's inherent constitutional power. I be-
lieve the president has the authority. with-
out statute, to use the resources placed at
his disposal to protect American lives
abroad and to serve other important for-
eign-policy objectives short of war.
Congress does have the power, how-
ever. to control the money and material
resources available to the president for co-
vert actions. Because Congress arguably
cannot properly fulfill its legislative func-
tion on future money bills without informa-
tion. some kind of a reporting requirement
can be understood as a logical extension of
a legitimate legislative power.
Limiting the Money Power
The constitutional question is: What are
the limits to what Congress may demand
as an adjunct of its appropriations power'
Broadly speaking, Congress may not use
the money power to achieve purposes that
it wo ld be unconstitutional for it to
achieve directly. It could not place a condi-
tion on the salaries of judges. for example,
to prohibit the judges from spending any
time to reach a particular constitutional
conclusion. In the same way. Congress
could not use its clearly constitutional
powers over executive-branch resources
and procedures to invade an inherently
presidential power.
How does this reasoning app':y to the
prcop:'se-d 48-hour rule` In 19S11'. Congress
revised the intelligence o?. ersi. ht law to
require the president to nowt: the House
and Senate intelligence comn-J:: be; e
j beg nl_: I any significant. antic nate^ in
,, E- pow-1
.!iii' of Su
implied power to demand information. But
what happens if the power to demand in-
formation confronts another implied power
held by another branch that is equally well
grounded on a constitutional foundation?
That was the issue in the executive-privi-
lege case of U.S. v. Nixon. In that case, we
learned that the decision in any particular
case must rest on the competing claims of
the two branches at odds with each other.
That is how I think the 48-hour rule must
be considered.
The 48-hour bill recognizes the presi-
dent's inherent power to initiate a covert
action-as long as that action is limited to
resources already available to the presi-
dent. If Congress ever tries to insist on ad-
vance approval, that would surely be over-
turned as a legislative veto.
But if the president has the inherent
power to initiate covert actions, then the
The Carter adrninistrati.:
gress for about three months
smuggled out of the Canadia?
same rule that gives Congress the implied
power to demand information also gives
the president the implied powers he may
need to put his acknowledged power into
effect. In virtually all cases there is no
conflict between the president's power to
initiate an action and requiring the presi-
dent to notify the intelligence committees
(or a smaller group of leaders) of that op-
eration in advance. In a few very rare cir-
cumstances, however. there can be a di-
rect conflict.
One good example was the Carter ad-
ministration's decisions to withhold notifi-
cation of some Iran hostage rescue opera-
tions. In one case, notification was with-
held for about three months until six
Americans could be smuggled out of the
Canadian Embassy in Tehran. In fact.
Canada made withholding notification a
condition of its participation.
The Iranian hostage examples show
that when notification has to be withheld
may depend not on how much time has
elapsed. but on the character of the opera-
tion. There is no question: that when other
governments place specific security re-
quirements on cooperating with the U.S..
the no-exceptions a sce'ct of the 48-hour rule
would be equivalent to denying the pre"
den' his inherent pt u er to act.
What is th,'
for the procosed cd best ar. _..._...
to q the C. -
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tins." The problem Is that there is no leg-
4slative power that requires notification un-
tfler all conditions during any precisely
specified time period. All Congress needs
Ito know is whether to continue funding on-
o1ng operations. -
Who should have the power to decide
that notification would make action Impos-
f$ible? In the rare situation In which a pres-
4dent believes he must delay notification as
Is necessary adjunct to fulfilling his consti-
ttutional mandate, that decision must rest
with the president. The president obviously
cannot consult with Congress about
whether to consult.
You could argue that failure to notify
might, in the extreme, deprive Congress of
this power. Iran-Contra was such an ex-
treme. But the price of assuring notifica-
ltion within a specific time period is to
,make some potentially life-saving opera-
on withheld notifying Con-
until six Americans could be
Embassy in Tehran.
tions impossible. On the scale of risks,
:'there is more reason to be concerned about
.depriving the president of his ability to act
than about Congress's alleged inability to
respond. Congress eventually will find out
about decisions of any consequence. When
that happens, it has the political tools to
take retribution. President Reagan learned
this dramatically. It is a lesson no future
president is likely to forget.
The current approach certainly does
have some problems. We have seen that it
too often breeds frustration and mistrust
in both the legislative and executive
branches. This is not a one-sided problem.
Congress had every reason to be angry
about the way the National Security Coun-
cil staff deceived us about the Contra re-
supply effort. But the president has just as
much cause to be angry about the way the
speaker and the Rules Committee use their
scheduling power to delay, prevent or
structure floor votes, about the way mem-
bers can unilaterally decide that a pre-
viously covert operation is ripe for public
debate, and about the incessant problem of
leaks. Each side has good reason to think
the other has contributed to a breakdown
of comity.
What we need is a modified set of pro-
cedures that will permit each side to rec-
ogr::zc the other's app*opnate constitu-
tional role. In this s,,;in*. I ofic, the follow-
ho's din charge ?
even if some members of Congress aon-
sider the operation controversial.
2) Requiripg flotification within 48 hours
can be accepted In general, but only if
there is an escape clause for the presi-
dent to invoke unilaterally in ,exceptional
circumstances.
Congress also needs to take steps to Im-
prove its own ability to protect aectets.
Current procedures almost require an op-
eration's cover to be blown before the op-
eration can be discussed outside of com-
mittee. If Congress had adequate security
laws and procedures, with stiff penalties
for violations, the end result probably
would be more frank -discussion, not less.
As long as Congress Is considering dis-
closure, let me make one more modest
proposal. The U.S. needs only one secre-
tary of state. No member of Congress ever
should take It upon himself to negotiate
with a foreign government. Fact finding is
an acceptable part of a legislator's job.
Negotiating is not. All discussions ` that
even might turn into negotiation, therefore,
ought to be held only within a context of
regular State Department communication
and guidance. .
A 48-Hour Rule for Congress
To help restore a proper respect for the
separation of powers, it might be a good
idea to apply something -like the 48-hour
rule in reverse. Members of . Congress
should be required to submit written re-
ports to the State Department describing
any communications they have with a for-
eign government within 48 hours after they
occur.
Whether or not this proposal is accepted
by Congress, it points to an important un-
derlying issue. Legislative-executive rela-
tions did break down during the Iran-Con-
tra affair. Congress made the president
pay a stiff price for that breakdown, and
the president has taken several important
steps to improve procedures on his end of
Pennsylvania Avenue. But the real prob-
lems are two-way. We in Congress ought to
look at what we can do to improve our own
behavior.
The -48-hour bill would "get back" at
President Reagan by tying the hands of all
future presidents. That approach will
achieve nothing useful. The better way is
with procedures that encourage each
branch to respect the other's proper role.
Comity comes through hard work on a
daily basis. But the first step mus' be mu-
tual respect.
Rep. Cheney (R., K'uo. ' is c n,cmher
of thr House In iclhoen: c Con. ,?: : r al:;
wac the rankin,q m.ino !o IJ;e)! t C,' '!ie
Hoes( Committee to _ .. .
ri'!itS Traesactio!.' O 11: 1"!tt
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n =
ROUTING AND RECORD SHEET
Thank You Letter to Representative Dick Cheney
John L. Helgerson No---- - --- --- -- -
Director of Con-,ressiun - _ . OC.A 88-~14'G__._
DATE EZ 9 MAY
r
b td nil .s
. -49 lv"Ay q.
3 1%e' ;ity Director of
Central Intelligence
Director of Central
1rteI1 ig,ence
514 EDt
F179
79
OFFICERS I COMMENTS (Number each comment to show from whom
INmALS to whom. Draw a line acrass column after each comment.)
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Or"
Director of Congressional Affairs
NOTE FOR TIE JUDGE:
9 May 1988
I reccnTnend you sign this letter to
Dick Cheney praising his recent article
on the 48-hour bill. Your response
borders on the political, but you have
already stated, publicly and formally,
your similar views on this bill.
Cheney's "alternate framework" is
detailed in the first column of the
last page of the attached material from
the Congressional Record.
Jo L Helgerson
Declassified in Part - Sanitized Copy Approved for Release 2012/10/04: CIA-RDP90M00005R001300100021-9